Offner Electronics, Inc.

OFFNER ELECTRONICS, INC. 991 Offner Electronics, Inc. and Local 1031, International Brother- hood of Electrical Workers, AFL-CIO, Petitioner. Case No. 13-RC-6768. June 3, 1960 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted on October 23, 1959, under the direction and supervision of the Regional Director for the Thir- teenth Region, among the employees in the stipulated unit. Follow- ing the election, the parties were furnished a tally of ballots, which showed that, of approximately 98 eligible voters, 35 cast valid ballots for, and 53 against, the Petitioner. There were two void ballots and three challenged ballots, a number insufficient to affect the election results. Thereafter, the Petitioner filed timely objections to the con- duct affecting the election results. The Regional Director investigated the objections and on December 8, 1959, issued his report on objections, in which he found that two of the four objections raised substantial and material issues affecting the results of the election and recommended that the election be set aside and a new election be held. The Employer filed timely excep- tions of the Report. Upon the entire record in this case, the Board finds : 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. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer, within 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 constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All production and maintenance employees at the Employer's Schiller Park, Illinois, plant, excluding office clerical employees, truckdrivers, professional employees, laboratory employees, guards, and all supervisors as defined in the Act. 5. The Regional Director found that the conduct of the Employer alleged in objections numbered 1 and 3 impaired the employees' free choice in the election and constituted grounds for setting it aside. The first objection related to a poll or straw vote conducted by the Employer. On September 29, 1959, 2 weeks after the (stipulation was signed, the Employer distributed in the pay envelopes of its employees questionnaires for them to complete and return to the Employer. In 127 NLRB No. 125. 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the questionnaire, the employee was asked to check whether he pre- ferred to continue his present employee relationship (without a union), or whether he preferred to be represented by a union, and to check whether, in the event a union came into the plant , he would pre- fer (a) the United Electrical Workers, AFL-CIO, (b) an independ- ent union composed exclusively of Offner employees , or (c) some other union (which the employee might name if he wished ). At the bottom of the page, the employee was requested to fill out and deposit "this secret ballot" and was instructed not to identify himself on the ballot. A box for the deposit of the ballots was placed in the plant next to the employee entrance. Of approximately 98 ballots distributed, 20 were not returned and 7 or 8 were returned unmarked. Those returned and marked indicated 16 in favor and 54 against unioniza- tion. The results of the poll were not made known to the employees until after the Board-conducted election. The Regional Director believed that the taking of this straw vote, even assuming it was secret and uncoerced and the results were not used by the Employer in its campaign against the Petitioner , rendered employee free choice impossible in the subsequent Board -conducted election. The Employer excepted to this conclusion as being without support in fact or logic. Having considered the Regional Director's report and the excep- tions thereto, we conclude that the election should be set aside because of the Employer's polling of the employees on the question of union- ization after the Board 's election machinery had been set in motion. We are of the opinion that after the Board directs a representation election, or the parties agree to a Board-conducted election, the re- sponsibility to conduct a secret ballot election for the resolution of the question concerning representation rests solely with the Board, and any secret balloting or polling of the employees on the represen- tation issue by the parties, or by others on a party 's behalf, is an intrusion upon the Board 's responsibility and an interference with the Board-conducted election and may be utilized by an innocent party as a basis for setting aside the Board election. Accordingly , we shall order the election set aside and direct that a new election be held.' [The Board set aside the election conducted on October 23, 1959.] [Text of Direction of Second Election omitted from publication.] MEMBER RODGERS, dissenting : In my opinion none of the objections raises material and substantial issues affecting the election results. 2In view of our holding with respect to objection No. 1, we find it unnecessary to con- sider the Employer's exceptions relating to objection No. 3. MONTAUK IRON & STEEL CORP. 993 I am unable to agree with my colleagues that the holding of a straw vote or the conducting of a poll among the eligible employees during the critical period before a Board-conducted election is necessarily an interference with the election atmosphere which would warrant setting the election aside. It appears to me that employees, like potential voters in political elections, if polled for their views in what is obviously a "dry run" or "opinion poll," are well able to make up their own minds as to how to vote both then and when the official balloting takes place. In the circumstances of this case, the employees were not misled as to the nature of the poll and their vote was secret. I cannot conceive what effect such a poll would have upon the final vote except to produce more vigorous campaigning on the representation issue. Nor do I agree with the Regional Director that the erroneous designa- tion of the Petitioner by the Employer in the poll was of any material significance. In the absence of a showing that the polling of em- ployees herein could reasonably have interfered with their free choice, in the Board-conducted election, I would overrule objection No. 1. Moreover, unlike the Regional Director, I would overrule objection, No. 3 as the statement in the handbill circulated by the Employer that. it would proceed further in its investigation of insurance benefits for- its employees was not in my opinion a promise of benefit nor in any way conditioned upon a vote against the Union. I would therefore overrule all the objections and certify the results, of the election. Montauk Iron & Steel Corp. and Louis A. Ferland Local 815, International Brotherhood of Teamsters, Chauffeurs,. Warehousemen and Helpers of America , Independent and. Louis A. Ferland. Cases Nos. 2-CA-6701 and 2-CB-2598. June 3, 1960 DECISION AND ORDER On February 29, 1960, Trial Examiner Arnold Ordman issued his. Intermediate Report in the above-entitled consolidated proceeding,, finding that the Respondents had engaged in certain unfair labor- practices and recommending that they cease and desist therefrom and take certain affirmative action as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent Union filed exceptions to the Intermediate Report and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with- 127 NLRB No. 128. 560940-61-vol. 127-64