Consolidated Thermoplastics Co.

470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL bargain collectively, upon request, with Teamsters Food Processing Employees Local No. 943, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America , as the exclusive representative of employees in the bargaining unit described herein with respect to wages, rates of pay, hours of employment, or other terms or conditions of employment, and, if an understanding is reached, we will embody such understanding in a signed agreement. The bargaining unit is: All over-the-road long-haul truckdrivers employed by the Employer in its transportation department at its Ontario, Oregon, operation, excluding all other employees, and professional employees, watchmen, guards, and super- visors as defined in the Act. ORB-Inn Foons, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date hereof and must not be altered, defaced, or covered by any other material. - Employees may communicate directly with the Board's Regional Office; 327 Logan Building, Seattle, Washington, Telephone No. Mutual 2-3300 , Extension 553, if they have any question concerning this notice or compliance with its provisions. Turex, a Component of the Film Division of Consolidated Thermoplastics Company and United Steelworkers of Amer- ica, AFL-CIO, Petitioner. Case No. 1-RC-7674. March 24,1964 DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted oil December 23, 1963, under the direction and supervision of the Regional Director for the First Region among the employees in the unit,described below. At the conclusion of the election, the parties were furnished u tally of ballots which showed that, of approximately 72 eligible voters, 66 cast ballots, of which 38 were for, and 28 against, the Petitioner. The Employer filed timely objections to conduct affecting the results of the election. In accordance with the Board's Rules and Regulations, the Regional Director conducted an investigation, and thereafter issued and served upon the parties his report on objections, which is attached hereto, in which he recommended that the objections be overruled and the Petitioner certified. Thereafter, the Employer filed timely excep- tions to the Regional Director's report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown]. 146 NLRB No. 55. TUREX 471 Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of. the Act and- it will effectuate the- purposes of the Act to assert jurisdiction herein. 2. The labor organization involved claims to represent certain employees of the Employer. 3. 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. The parties stipulated, and we find, that the following employees of the Employer constitute u unit appropriate for the purposes of collective bargaining within the meaning of Section'9(b) of the Act: All production and maintenance employees of the Employer's Turex Plant; located in Nasonville, Rhode Island, excluding professional and office clerical employees and all supervisors as defined in the Act, as amended. 5. The Board has considered the Employer's objections, the Re- gional Director's report, and the exceptions, and hereby adopts the Regional Director's findings and recommendations.' As the tally of ballots shows that the Petitioner received a majority of the valid votes cast, we shall certify it as the bargaining representa- tive of the employees in the appropriate unit. [The Board certified United Steelworkers of America, AFL-CIO, as the duly designated collective-bargaining representative of the employees of the Employer in the unit set forth above.] 1 In its exceptions, the Employer does not point to any specific conduct by either Perry or Capobianco which would warrant sustaining its objections . We therefore reject the Employer's contention that the investigation was incomplete and the suggestion that a hearing should be held. In adopting the Regional Director 's recommendations, we find it unnecessary to rely upon Tampa Crown Distributors, Inc., 118 NLRB 1420, 1421. We agree that the presence of two so-called "unauthorized outsiders " in the plant on the elec- tion day, in the circumstances found , did not interfere with the employees ' exercise of free choice in the election. - REPORT ON OBJECTIONS Pursuant to a stipulation for certification upon consent election executed on December 13 , 1963, and approved on December 16, 1963, an election was con- ducted by Regional Director Bernard L . Alpert on December 23, 1963, among certain employees of the Employer . The tally of ballots cast at said election was as follows: Approximate number of eligible voters -------------------------- 72 Void ballots------------------------------------------------- 0 Votes cast for Petitioner-------------------------------------- 38 Votes cast against participating labor organization ------------------ 28 Valid votes counted----------- -------------------------------- 66 Challenged ballots------------------------------------------- 0 Valid votes counted plus challenged ballots------------ ------------ 66 On December 30, 1963 , the Employer filed timely objections to conduct affect- ing election, serving a copy thereof on the Petitioner . The objections , having' been marked "Attachment A," are attached hereto and made a part hereof. In substance, the objections allege that two former employees, Richard E. Perry 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Nicholas Capobianco, as "unauthorized" outsiders, carried on electioneering "in favor of the Union in close proximity to the polling place." Pursuant to Section 102.69 of the Rules and Regulations of the Board, Series 8, as amended, the Regional Director has conducted an investigation of the objections and makes this his report thereon. Investigation reveals: The polling place was located in an enclosed room on the second floor of the Employer's main building immediately adjacent to a flight of stairs about 20 feet long. The stairs lead up to the second floor from a vestibule, at the end of which is located the timeclock and the employees' entrance. A doorway opening from this vestibule leads to a storage area approximately 25 feet in width and thence to the employees' cafeteria area approximately 40 feet from the vestibule. Most of the employees gathered in the cafeteria area prior to ascending the stairs to the polling place . The union and employer observers and the Board agent were located at a 'table in the center of the room. The polling area itself was in a corner of the room and was curtained and fully enclosed. The employees on the stairs could not be seen from either the polling area or the room constituting the polling pliice. The doors leading to the other offices on the second floor were all sealed. The voting took place from 7:45 a.m. to 8:15 a.m. and from 3:45 p.m. to 4:15 p.m. Additionally, at the request of the Board agent the Employer stationed Wylie Betts, a nonsupervisory employee, at the foot of the stairs leading upward to the polling place. Betts was instructed by the Board agent to direct the employees to the polling place, saying to them, "It is now time to vote. Go upstairs and to the right if you want to vote." Betts did not wear an observer's, badge. On at least three instances during the course of the voting, the Board agent stepped out of the door to the polling place and checked to see that Betts was properly performing his function. It is not alleged in the objections that either Perry or Capobianco' threatened, intimidated, or coerced any employee. Rather, it is urged that Perry's presence "could not help but have a confusing emotional effect over those . .. employees who voted during his presence ," and Capobianco "was actively campaigning foi the Union." Perry was discharged by the Employer on December 10, 1963, for "poor at- titude and insubordination." 1 Capobianco was employed on May 13, 1963, and on September 10, 1963, notified the Employer that he was returning to school and voluntarily terminated his employment. Capobianco's name was not on the eligibility list nor did he attempt to vote in the election. The events alleged in support of the objections all occurred during the afternoon voting hours. Wylie R. Betts, the employee stationed at the foot of the stairs to direct traffic, states that Perry came in the employees' entrance alone about 4 p.m. He approached Betts and after a general, conversation stated that he had come to see some of the em- ployees and thereafter walked into the cafeteria area. A few minutes later Perry returned with a group of employees and approached the stairway. Betts asked if he was eligible to vote. Perry replied, "I'm going upstairs to see if my name is on the list." Betts then instructed Perry "to check upstairs and see." A few minutes later Perry came downstairs with a group of employees who ' had voted, stood in the hallway away from the stairs for the few minutes remaining until the polls closed, and then left the premises alone. Betts states that Capobianco came in through,the employees' door at about 4 p.m. alone. He recognized Capobianco and asked him what type of work he was doing now since he had left the company. ' Capobianco replied, "I'm on vacation from school, and I've come to see some of the fellows." He then indicated to Betts that it was his intention to go-into the cafeteria to see some of his former co- workers, whereupon Betts stated to him, "Go ahead in and get out of this area. Betts states that he saw Capobianco in the cafeteria talking to some of the employees and that he left shortly after the voting was over. About 4.10 p.m. Robert Morin, the Employer's general foreman, observed Perry in the cafeteria talking to an employee and asked Perry what he was doing there. It was then that Perry, so alleged in the objection, replied, "I'm here to put my two cents in." Morin replied, "Put your two cents in somewhere else," whereupon Perry left the premises. Harry Clark, the plant engineer, had observed Capobianco entering the plant at 3 p.m. with a production and maintenance employee. There- after, Ronald O. Knox, the Employer's plant manager, asserts that he was not able 1Perry's name was, in fact, on•the eligibility list. He voted an unchallenged ballot. The payroll period for eligibility described in the stipulation for certification upon consent election, executed by the Employer on December 13, 1963, was for the period ending November 17, 1963. TUREX 473 to locate Capobianco for a 45-minute period until Capobianco appeared at the vestibule at the foot of the stairs as described above by the employee Wylie Betts. Plant Manager Knox does state , however, that on or about December 20, 1963 (3 days before the election), Capobianco was seen in the plant and was approached by General Foreman Morin and instructed that since he was no longer an employee, he should get permission from the receptionist to enter the plant. Knox states that on that date Capobianco claimed he was seeking work with the Employer while between semesters at college. Knox' did not indicate that he had any reason to doubt Capobianco's explanation. The Petitioner denies knowledge or responsibility for the conduct of Perry and Capobianco. George Butsika, staff representative in charge of the instant organiz- ing drive, states that he did not meet the two individuals until December 31, 1963, over a week after the election . Even assuming otherwise, evidence is lacking that they acted as "agents" of the Petitioner,' nor can it be said, as the Employer alleges, that these employees were "unauthorized outsiders" since Perry had apparently been considered, albeit erroneously ,2 eligible to vote by the Employer , and Capobianco had been on the premises seeking work 3 days previous to the election. In any event, -even if considered "unauthorized outsiders " it is clear that the conduct of these two individuals was not of a character to create a general atmosphere of fear of reprisal or to have generated such confusion as to render a free expression of choice of representatives impossible.3 Moreover, in both instances the Employer had ample notification of their presence. It is significant that employee Wylie Betts states that when the plant manager had asked him prior to the morning voting ses- sion - to direct the flow of voters Knox had explained it was "to stand guard at the foot of the stairs during the balloting ." Accordingly, the Regional Director con- cludes that no merit attaches to the objections .. It is the recommendation of the Regional Director that the . objections be dismissed in their entirety. ATTACHMENT A ' OBJECTION TO CONDUCT AFFECTING ELECTION An election was held pursuant to Section 102 62 (b) of the Board's Rules and Regulations . This is a request that the election be set aside. During the entire period of the afternoon voting , when two-thirds of the com- pany's employees were scheduled to vote , an unauthorized outsider was electioneering in,favor of the union in close proximity to the polling place . This outsider was one Richard E. Perry, who had been discharged for insubordination two weeks before the election. Mr. Perry was observed at the foot of the stairs leading to the polling place five minutes before the polls opened . He was still in the plant talking with employees when the polls closed. In answer to a question , put to him by the general foreman , Perry stated that he was "putting in my two cents worth." Mr. Perry may or may not have been in the area at the request of the union. This would not seem to be important . The important point is that such conduct by a former employee , disturbed over the loss of his livelihood, could not help but have a confusing emotional effect over those two-thirds of the employees who voted during his presence . Thus the result of Mr . Perry's last minute activity interfered with the employees' untrammeled choice of representation guaranteed by the Act which the Board so diligently guards. During the investigation of this matter the presence of another outsider during the afternoon voting period should be seriously questioned . The outsider was one Nicholas Capobianco, a former employee. who had returned to school. The company has reason to suspect that Mr. Capobianco , who was first seen at the plant forty-five minutes before the polls opened , was actively camnaigning for the union . (This was not the first unauthorized visit to the plant by Mr. Capobianco; he had been discovered in the plant on another occasion prior to election and had been requested to leave .) The company believes that the investigation of Mr. Capobianco's last minute activity will uncover additional good cause for setting this election aside. In summary let me state that the foregoing activitiy is absolutely contrary to the position that the Board has been taking . As you know the Board has indicated that it is going to scrutinize last minute activity very closely and further it is a stand- ing principle of law that elections be held under laboratory like conditions. The foregoing activity was in direct violation of these concepts and denied our employees a free choice. 2 See Ra-Rich Manufacturing Corporation , 120 NLRB 1444. 3 Tampa Crown Distributors . Inc, 118 NJ.T'R 1420, 1421