Ripley Shoe Products Co.

RIPLEY SHOE PRODUCTS COMPANY 95 Ripley Shoe Products Company and United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, Petitioner. Case 26-RC-3469. 26-RC-3469. June 8, 1970 DECISION AND CERTIFICATION OF RESULTS OF SECOND ELECTION BY MEMBERS FANNING, BROWN , AND JENKINS Pursuant to an Order and Direction of Second Election' issued by the Board on December 24, 1969, a second election by secret ballot was con- ducted on February 4, 1970, under the direction and supervision of the Regional Director for Region 26, among the employees in the stipulated unit. At the conclusion of the election the parties were furnished with a tally of ballots which showed that of approximately 420 eligible voters, 387 ballots were cast, 175 of which were for, and 209 against, the Petitioner, and 3 were challenged. The chal- lenges were not sufficient in number to affect the results of the election. Thereafter, the Petitioner filed timely objections to conduct affecting the results of the election. In accordance with the National Labor Relations Board Rules and Regulations, the Regional Director conducted an investigation and, on March 18, 1970, issued and duly served upon the parties his Report on Objections in which he concluded, on the basis of certain conduct revealed during the course of the investigation, that the allegations of Objection 4 relating to the retirement program had merit, and recommended that the election be set aside and a new election be ordered. He also recommended that Objections 1, 2, 3, 5, 6, 7, 8, 9, 10, and the seniority allegation of Objection 4 be overruled as lacking in merit.' The Employer filed timely exceptions to the Regional Director's recom- mendations that Objection 4 relating to the retire- ment program be sustained. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists con- cerning the representation of employees of the Em- ployer 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 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, including technicians, plant clerical employees, and truckdrivers employed at the Employer's Ripley, Mississippi, plant, excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act. 5. The Employer excepts to the Regional Director's finding and conclusion that Objection 4 be sustained on the ground that the Employer's tim- ing of the distribution of the booklet explaining retirement benefits was such as to have the max- imum impact upon the minds of the employees and to interfere with their right to make a free and un- trammeled choice in their selection of a bargaining representative, and to his recommendation that the election be set aside and a new election directed. We find merit in this exception. The record shows that many months before the election, namely, in February 1969, the Employer's parent company adopted a retirement plan for the Employer's employees. On March 5, 1969, long be- fore the commencement of the union campaign, notices were posted in the plant which announced improvements in the employees' hospitalization in- surance benefits and announced that the retirement plan had been adopted. The effective date of this plan was January 1, 1969, and the Employer made contributions to the plan commencing with the first calendar quarter of that year. In its brief, the Em- ployer asserts that it supplied data that during 1969 some $24,968 was contributed to the retirement plan by the Employer. The printing of the booklet explaining the details of the plan was delayed at the ' Pursuant to a Stipulation for Certification Upon Consent Election, a first election was held on June 20, 1969 On June 27, 1969, Petitioner filed objections to conduct affecting the results of the election Thereafter, on August 8, 1969, the Regional Director issued a Report on Objections, recommending that certain objections be overruled and finding that the remaining objections raised issues which would best be resolved by record testimony The report further recommended that the case be consolidated with Case 26-CA-3377 for the purpose of a hearing On December 16, 1969, the parties executed a stipulation to set aside the first election and a settlement agreement in Case 26-CA-3377, which was approved by the Regional Director on December 16, 1969, and submitted to the Board Y In the absence of exceptions thereto, we adopt, pro forma, the Regional Director's recommendations that these objections be overruled 183 NLRB No. 12 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer's parent company because of printing commitments for contracts and pension booklets at other plants. The delay was principally caused by revisions in contracts which necessitated delays between the parties thereto and the printer. In any event, the Employer's retirement booklet was delivered to the printer by the parent company in November 1969. The printed booklets were received by the Employer in late December 1969, and distributed to the employees as soon thereafter as practicable, on January 5, 1970. On the basis of the foregoing we are not con- vinced that the Employer timed the distribution of the retirement booklet for the purpose of interfer- ing with the unit employees' choice of bargaining representative. On the contrary, the record evidence raises little question that the distribution was made other than routinely, following the delivery of the booklets from the printer. Moreover, since the adoption and announcement of the plan was clearly made many months before, and ' Havatampa Cigar Corporation, Manufacturing Division, 175 NLRB 736 Member Brown finds the instant case distinguishable from Havatanipa, in which he dissented , because here, unlike Havatampa , the adoption of the without regard to, the pending election, the Em- ployer was under no obligation to withhold its truthful announcement of what the details of the plan were.3 We shall sustain the Employer's excep- tion and certify the results of the election. Accordingly, as we have overruled the objections and as the tally of ballots shows that Petitioner has not received a majority of the valid ballots cast, we shall certify the results of the election. CERTIFICATION OF RESULTS OF SECOND ELECTION It is hereby certified that a majority of the valid votes has not been cast for United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, and that said labor organization is not the exclusive bargaining representative of the em- ployees in the unit found appropriate within the meaning of Section 9(a) of the National Labor Relations Act, as amended. plan was announced previously and it is clear that the distribution of the booklet setting forth the details was delayed by printing difficulties and took place in the normal course