Wagner Electric Corp.

834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD policies and purposes of the Act , to order, as to this one, lone, and technical viola- tion, the result of blundering carelessness , but not intent, which did not, however, induce any unlawful conduct on the part of any member, that the remedial pro- cedures which the General Counsel proposes be put in motion, that is, that the Local now be required to formally notify all its members in writing of the recision of the Katz letter The evidence is so convincing that National's order received by all members of the Local within a few days after they had received the Katz letter operated effectively to correct, nullify, and wipe out the erroneous interpretation made of that order by the Katz letter, it is my opinion that further and formal remedial action to that end is not now necessary or required If despite this it were thought that to effectively remedy the error found in the Katz letter some formal and official recision should have been made, I think the Katz letter of January 6, 1958, above set out, served the formalities , although it served no practical or realistic purpose Upon the basis of the foregoing findings of fact , and upon the entire record in the case, I make the following CONCLUSIONS OF LAW 1 L B Wilson, Inc (Radio Station WCKY), the Charging Party, is, and at all the times material herein was, engaged in commerce within the meaning of Section 2(6) and (7 ) oftheAct 2 Respondents, American Federation of Television and Radio Artists, AFL-CIO, and Cincinnati Local, American Federation of Television and Radio Artists, AFL- CIO, are labor organizations within the meaning of Section 2(5) of the Act 3 None of the unfair labor practices alleged in the complaint has been estab- lished by a preponderance of the credited evidence [Recommendations omitted from publication ] Wagner Electric Corp. and International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, Local Union 926, Petitioner. Case No 6-RC-2395 December 17, 1959 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a stipulation for certification upon consent election executed August 10, 1959, an election by secret ballot was conducted on ,August 14 under the direction and supervision of the Regional Director for the Sixth Region among the employees in the stipulated unit Following the election, the parties were served with a tally of ballots which showed that, of approximately 17 eligible voters, 11 valid ballots were cast, of which 5 were for, and 6 against, the Petitioner There were no challenged ballots Thereafter, the Peti- tioner filed timely objections to conduct affecting the election The Regional Director investigated the objections, and on October 13, 1959, he issued and served upon the parties his report on objections, in which he found the objections to be without merit and recom- mended that they be overruled and the election results be certified The Petitioner filed timely exceptions to the report Subsequently, the Employer filed a document commenting on the exceptions 125 NLRB No 106 WAGNER ELECTRIC CORP. 835 The Board has considered the objections, the Regional Director's report, the Petitioner's exceptions, and the Employer's comments thereon, and upon the entire record in this case, makes the following findings : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 31 A question affecting commerce exists concerning the representa- tion of certain employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. As stipulated by the parties, the following employees of the Employer contsitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act : All employees of the parts department of the Employer's Pitts- burgh, Pennsylvania, plant, including countermen, stockroom clerks, electrical repairmen, janitors, brake bonders, and leadmen, but ex- cluding office clerical employees, outside salesmen, professional em- ployees, guards, and supervisors as defined in the Act. 5. The objections, in substance, allege that eligible voters working in the parts room during the balloting did not vote because of certain circumstances created by the Employer which denied them the oppor- tunity to do so. The Regional Director's report establishes the fol- lowing facts relative to the objections : Five of the six eligibles alleged to have been denied opportunity to vote were working in the parts room at the time of the election. The posted election notices indicated that the election would be held on August 14, 1959, from 3: 30 to 4 p.m. in the men's locker room at the plant. On the election day, the observers' table was set up in a corner of the warehouse and shop area close to the men's locker room. The observers' table was also close to one of two sliding doors con- necting the warehouse and shop area and the adjoining parts room. These doors are the usual means of access between the two rooms and are normally kept open during working hours. There is also a hall- way leading to the warehouse and shop area which on occasion was used by parts room employees. However, access to this hallway was through a door at the far end of the parts room. Sometime before the election, Nielsen, the general manager of the Employer, informed the Petitioner's election observer that the two aforementioned sliding doors would be closed during the election to insure greater privacy at the polling area. Just prior to the opening of the polls, Nielsen closed these doors and told Hay, a parts room employee whose work station was near the door closest to the polling area, that the sliding doors were to remain closed during the election to insure more privacy at the polls and instructed him not to permit 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any of the men to go through the back. He told Hay that the men would have to enter by the hallway door. Hay told two other parts room employees that they were not allowed to go into the back but he failed to relate Nielsen's statement concerning the use of the hallway door. About 10 minutes after the polls opened a parts room em- ployee asked Hay when parts room employees could go to vote and Hay replied that they just could not walk off the job to vote but would have to be told when they could go to vote. During the elec- tion, Hay and another parts room employee went out into the hallway to get a drink of water but made no effort to go back to vote. Also, an order requiring a trip to the back room for necessary parts, which it was a particular parts room employee's turn to fill, was taken by the leadman instead. The leadman was an eligible who did not vote. At one point during the election the Petitioner's observer commented that he wondered where some of the voters were but requested no action by the Board agent. Immediately after the election results became known, several of the parts room employees vehemently pro- tested that they had not voted because the doors had been locked, that they were told no one could go back to the back room, and that they were under the impression they would be told when they could vote. The Regional Director, upon the basis of the above facts,' was of* the opinion that some of the parts room employees may have been confused or under an erroneous impression as to their voting oppor- tunity. However, he concluded that such confusion or mistaken im- pression cannot reasonably be attributed to any conduct of the Employer, to any defect in the election procedure, or to any unusual circumstances. We do not agree. We believe that employees work- ing in the parts room were justified in concluding, from their observa- tion of the action of Nielsen in closing the sliding-doors and giving instructions to Hay, and from Hay's 'statements as to what Nielsen said and his answers to questions concerning voting oppor- tunity, that they would be told when they could exercise their voting franchise. That the employees were actually confused by these abnormal circumstances is shown by their (spontaneous protests, as soon as they learned that the election was over, that they were denied an opportunity to vote. The case of Dornback Furnace d Foundry Company, 115 NLRB 350, cited by the Regional Director in support of his conclusion, is distinguishable on its facts. We shall therefore set aside the election and direct that a new election be held. [The Board set aside the election.] [Text of Direction of Second Election omitted from publication.] 1 There was other evidence in the report , some of which was in conflict. However, none of this evidence affects the Regional Director 's or our conclusions as to the objections.