Keller Dye & Finishing Co.

524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Keller Dye & Finishing Company and Textile Work- ers Union of America, AFL-CIO-CLC, Petitioner. Case 10-RC-7972 July 10, 1970 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVE BY MEMBERS FANNING, BROWN, AND JENKINS Pursuant to an Order and Direction of Second Election issued March 5, 1970,1 an election by secret ballot was conducted in the above-entitled proceeding on April 3, 1970, under the direction and supervision of the Regional Director for Region 10 among the employees in the appropriate unit. At the conclusion of the balloting, the parties were furnished a tally of ballots, which showed that, of approximately 51 eligible voters, 48 cast valid bal- lots, of which 41 were for, and 7 were against, the Petitioner. There were no challenged or void bal- lots. Thereafter, the Employer filed timely objec- tions to conduct affecting the results of the elec- tion. In accordance with the National Labor Relations Board Rules and Regulations , Series 8, as amended, the Regional Director conducted an investigation and, on April 24, 1970, issued and duly served on the parties his attached Report on Objections in which he recommended that the objections be overruled and the Petitioner be certified as bargain- ing representative of the employees involved. Thereafter, the Employer filed timely exceptions to the Regional Director's report, and a brief in sup- port thereof. 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 claim- ing to represent certain employees of the Employer. 3. A question affecting commerce exists con- .;erning the representation of employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The following employees, as stipulated by the parties, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees of the Employer's Rome, Georgia, plant, but exclud- ing office clerical employees, professional em- ployees, guards and all supervisors as defined in the Act. 5. The Board has considered the Employer's ob- jections, the Regional Director's report, and the Employer's exceptions and brief, and hereby adopts the Regional Director's findings and recommenda- tions.2 Accordingly, as the tally shows that the Peti- tioner received a majority of the valid votes cast, we shall certify it as the representative of the em- ployees in the appropriate unit. CERTIFICATION OF REPRESENTATIVE It is hereby certified that Textile Workers Union of America, AFL-CIO-CLC, has been designated and selected by a majority the employees in the unit found appropriate herein as their representa- tive for the purposes of collective- bargaining and that, pursuant to Section 9(a) of the Act, the said labor organization is the exclusive representative of all employees in such unit for the purposes of col- lective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. MEMBER FANNING, dissenting: I would set this election aside. In Objection 1 the Employer refers to a leaflet distributed by the Petitioner on the morning of the election, which was scheduled for 2 p.m. The leaflet stated that the Employer "broke the law of the United States," that this was the only reason another election had to be conducted, and that "Uncle Sam" refused to believe the Company and had told the Company to "stop breaking the law." The intent and effect of the leaflet was to misrepresent to the employees, at a time when the Employer had no opportunity to respond, the cir- cumstances under which the first election of Janua- ry 6, 1970, had been set aside by the Board. The record is clear that this election was set aside by a formal stipulation to set aside election entered into by the parties before the Regional Director had an ' Not printed in NLRB volumes The parties had entered into a stipula- tion to set aside the first election conducted on January 6, 1970, which the Regional Director recommended be approved by the Board ' The Employer's exceptions as to Objection 1, in our opinion , raise no substantial issues which warrant reversal of the Regional Director's findings and recommendations In the absence of exceptions thereto, we shall adopt pro forma the Regional Director's recommendation that Objec- tion 2 be overruled 184 NLRB No. 54 KELLER DYE & FINISHING COMPANY 525 opportunity to rule upon objections filed by Peti- tioner. Consequently, neither the Regional Director nor the Board nor any other agency of the United States Government had ruled upon the merits of the Petitioner's objections. No finding was ever made that the Employer had broken the law or vio- lated the rights of the employees. Nor did the Em- ployer make such an admission in agreeing to the holding of a second election. In my opinion, these groundless charges of the Petitioner on the morning of the election seriously affect the credibility of the Board's election processes. Moreover, they cast unwarranted asper- sions upon the integrity and legality of the Em- ployer's conduct with respect to the first election. Accordingly, I am of the opinion that the Peti- tioner's misrepresentations cannot in this case be condoned as mere "partisan election propaganda." I believe such misrepresentations had a substantial impact upon the election and, in any event, con- stitute an abuse of the Board's election processes. REPORT ON OBJECTIONS The petition in the above-entitled proceeding was filed October 1, 1969. Pursuant to an Order and Direction of Second Election issued March 5, 1970, an election by secret ballot was conducted on April 3, 1970, among the employees in the appropriate unit to determine the question concerning represen- tation.' Upon conclusion of the balloting, the parties were furnished a tally of ballots which showed that of approximately 51 eligible voters, 41 cast valid ballots for and 7 cast valid ballots against the Petitioner. There were no challenged or void ballots. On April 10, 1970, the Employer filed time- ly objections to the election and a copy thereof was timely served on the Petitioner. Pursuant to Section 102.69 of the Board's Rules and Regulations an investigation of the issues raised by the objections has been conducted and the Re- gional Director, having considered the results thereof, makes the following findings and recom- mendations to the Board: OBJECTIONS Objection 1: On the morning of the election the Petitioner, by and through its officers, representa- tives and agents, distributed a campaign leaflet which misrepresented to employees that the Em- ployer had been found guilty of violating the law in connection with the previous election. This last- minute misrepresentation was purposely designed to and did deceive the voters in the election. The handbill attached hereto as Appendix was admittedly disseminated to the employees by Peti- tioner's representatives on the morning of the elec- tion. The assertion, near the middle of the sheet, that the Employer "broke the law of the United States" apparently refers to the Petitioner's objec- tions to conduct affecting the results of the January 6, 1970, election. During the investigation of the objections to the first election the parties entered into a stipulation to set aside election in which they agreed that the election conducted on January 6, 1970, be set aside and a second election be directed by the Board. Thereafter, the Board issued its Order and Direction of Second Election herein. The Regional Director has considered the hand- bill and is of the opinion that its content is readily identifiable as partisan election propaganda susceptible to employee evaluation. The assertions made therein do not constitute sufficiently grave and serious misrepresentation of fact to warrant setting aside the election. Accordingly, Objection I is without merit. Objection 2: Prior to the election the Petitioner, by and through its officers, representatives, agents and supporters, did cause the defacement of the of- ficial notice of election. The Employer's objection is based upon a con- tention that "officers, representatives, agents and supporters" of the Petitioner defaced a copy of the Board's official notice of election which was mailed to and posted by the Employer in its plant prior to the election; such defacement consisting of marking an "X" in the "yes" box of the sample ballot ap- pearing thereon. The Employer did not submit any evidence to establish that the Petitioner, or anyone acting on its behalf, was responsible for the alleged defacement of the ballot. Accordingly, Objection 2 is without merit.' FINDINGS AND RECOMMENDATION For the reasons stated above, the Regional Director finds that the objections do not raise any material or substantial issues affecting the results of the election, and recommends to the Board that they be overruled in their entirety. As the tally of ballots shows that Textile Workers Union of Amer- ica, AFL-CIO-CLC received a majority of the valid votes cast in the election, the Regional Director further recommends that said labor organization be certified as the collective-bargaining representative of the employees in the stipulated appropriate unit. ' The appropriate unit is "All production and maintenance employees of the Employer 's Rome, Georgia plant but excluding all office clerical em- ployees, professional employees, guards and supervisors as defined in the Act " ' Murray Chair Company, Inc , 117 NLRB 1385 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX UNCLE SAM DIDN'T BELIEVE EM HOW CAN WE BELIEVE 'EMS The ONLY reason we are having another vote and another election on Friday, April 3rd is because the TOP MANAGEMENT of our company violated our rights, had no respect for our intelligence and broke the law of the United States. UNCLE SAM stood up for us! Uncle Sam refused to believe the Company. UNCLE SAM said stop breaking the law Mr. Boss, try and play fair. The old, old proverb says, "FOOL ME ONCE, SHAME ON YOU -- FOOL ME TWICE, SHAME ON ME." Is there any good reason why we should believe what the boss is telling us this time? EVERYONE WANTS SECURITY, PROGRESS, FAIR TREATMENT. IT BOILS DOWN TO THE BELIEF YOU AND YOUR FELLOW WORKERS HAVE IN YOUR OWN ABILITIES TO BUILD THE KIND OF UNION THAT CAN DO THE JOB. 15 MILLION AMERICANS TODAY HAVE DONE IT. YOU CAN DO IT. . . BUT NOT IF YOU FALL FOR THE COMPANY BAIT OF SEEING THE CAMPAIGN AS SOMETHING BETWEEN THE COMPANY AND THE UNION. IT'S YOUR UNION . . . YOUR CAMPAIGN . . . YOUR ELECTION. VOTE "YES" ix KEEP YOUR FUTURE IN SIGHT ISSUED BY TWUA ORGANIZING COMMITTEE, KELLER DYE