Kimco Auto Products of Mississippi, Inc.

KIMCO AUTO PRODUCTS OF MISSISSIPPI, INC. 599 Kimco Auto Products of Mississippi , Inc. and United Steelworkers of America , AFL-CIO, Petitioner. Case 26-RC-3714 July 21, 1970 DECISION AND CERTIFICATION OF REPRESENTATIVE By CHAIRMAN MILLER AND MEMBERS MCCULLOCH AND JENKINS Pursuant to a Stipulation for Certification Upon Consent Election approved on March 17, 1970, an election by secret ballot was conducted on April 24, 1970, under the direction and supervision of the Regional Director for Region 26, among the employees in the stipulated unit described below. At the conclusion of the election, the Regional Director served on the parties a tally of ballots, which showed that, of approximately 69 eligible voters, 65 ballots were cast, of which 40 were for, and 24 against, the Petitioner, and I was chal- lenged. The challenged ballot was insufficient to af- fect the results of the election. Thereafter, the Em- ployer filed timely objections to conduct affecting the results of the election. In accordance with the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director conducted an investigation and, on May 8, 1970, issued and duly served on the parties his Report of Objections, a copy of which is attached, in which he recommended that the Em- ployer's objections be overruled in their entirety, and that the Petitioner be certified as the collec- tive-bargaining representative of the employees in the stipulated unit. The Employer filed timely ex- ceptions to the Regional Director's report and a brief in support 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 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. In accordance with the stipulation of the parties, we find that the following employees of the Employer 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 employed by the Employer at its place of busi- ness at 300 South Union, Winona, Mississippi, excluding all office clerical employees, guards and supervisors as defined in the Act. 5. The Board has considered the Employer's ob- jections, the Regional Director's Report on Objec- tions, and the Employer's exceptions and brief, and hereby adopts the Regional Director's findings and recommendations. I Accordingly, as we have overruled the Em- ployer's objections, and as the Petitioner has secured a majority of the valid ballots cast, we shall certify the Petitioner as the exclusive bargaining representative of the employees in the appropriate unit. ' In our opinion, the Employer's exceptions raise no material or substan- tial issues of fact or law which would warrant reversal of the Regional Director's findings and recommendations As in the Amax Aluminum I r- trusion Products, inc., 172 NLRB 1401, we observe that , wherever prac- ticable, the Board's Regional Offices should, and normally do, keep the conduct of elections completely separate from the investigation or trial of contemporaneous unfair labor practice charges involving the same parties Thus, in the present case, if feasible, it would have been better practice for the Regional Director to have designated as election agent someone other than one of the trial attorneys representing the Board in the recently completed unfair labor practice case Nonetheless, for the reasons stated by the Regional Director in his report, we find insufficient grounds to war- rant setting aside the election CERTIFICATION OF REPRESENTATIVE It is hereby certified that United Steelworkers of America, AFL-CIO, has been designated and selected by a majority of the employees of the Em- ployer in the unit found appropriate , as their representative for the purpose of collective bargain- ing, and that, pursuant to Section 9(a) of the Act, the said labor organization is the exclusive representative of all such employees for the pur- poses of collective bargaining with respect to rates of pay, wages, hours of employment , and other terms and conditions of employment. REPORT ON OBJECTIONS Based on a petition filed on February 25, 1970, and pursuant to a Stipulation for Certification Upon Consent Election approved by the Regional Director for Region 26 on March 17, 1970, an elec- tion by secret ballot was held on April 24, 1970, among certain employees' of the Employer. The ' Included All production and maintenance employees employed by the Employer at its place of business at 300 South Union, Winona, Mississippi Excluded All office clerical employees, guards and supervisors as defined in the Act 184 NLRB No. 60 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD results of the election as disclosed by the tally of ballots served on the parties at the conclusion of the balloting were as follows: Approximate number of voters -------------------- 69 Void ballots ------------------------------------ 0 Votes cast for Petitioner ----------------------- 40 Votes cast against participating labor organization --------------------------------- 24 Valid votes counted --------------------- -------- 64 Challenged ballots ------------------------------ 1 Valid votes counted plus challenged ballots ----- 65 Challenges are not sufficient in number to affect the results of the election. A majority of the valid votes counted plus challenged ballots has been cast for Petitioner. On May 1, 1970, the Employer filed timely ob- jections to conduct affecting the election, copies of which were duly served on all parties. The Em- ployer's objections are as follows: The 26th Regional Office of the National Labor Relations Board prevented the existence of the laboratory conditions necessary to con- duct a valid election by the presence, as the Region's election officer, of the same Board agent who earlier that month had tried an un- fair labor practice case against the Employer and who came into contact with employees in the preparation and presentation of the said unfair labor practice trial. As a result the Board agent took a partisan active role in these proceedings against the Company. He served as a prosecutor charging the Company with the violation of National Labor Laws and, therefore, could not properly be neutral in conducting the election. The attorney for the Employer present at the Company on April 24, 1970, the day of the election informed the Board agent before the pre-election conference that an Objection would be filed to the election based upon his presence as the election officer. In summary, the obvious effect on the em- ployees who voted was to destroy the laborato- ry conditions necessary for a valid election. Based upon the foregoing acts and conduct and by other acts and conduct the laboratory conditions necessary to hold a free and un- trammeled vote by the unit employees were destroyed. Accordingly, the Employer requests that the Regional Director set aside the subject election and direct that a second election be conducted in this proceeding. Pursuant to section 6 of the Stipulation for Cer- tification Upon Consent Election and Section 102.69 of the Board's Rules and Regulations, Series 8, as amended, the Regional Director has caused an investigation of the objections to be made during which all parties were afforded an opportunity to ' Although offered the opportunity, the Employer's counsel declined to present evidence other than the facts contained on the face of the objec- submit evidence bearing on the issues2 and the Re- gional Director, having duly considered the results thereof, reports as follows: THE OBJECTIONS It is uncontradicted that the Board agent who conducted the election was co-counsel for General Counsel at a hearing before a Trial Examiner on April 9, 1970, in Case 26-CA-3577, involving this same Employer. The investigation disclosed that the subject hear- ing before a Trial Examiner of the National Labor Relations Board was conducted on April 9, 1970, in Greenwood, Mississippi, a distance of approximate- ly 30 miles from Winona, Mississippi, the location of the Employer's plant, and involved allegations of violations of Section 8(a)(1) and (3) of the Act re- garding the discharge of one employee. Counsel for the General Counsel called as its witnesses the al- leged discriminatee, two rank-and-file employees, and one individual who had previously been em- ployed by the Employer as a rank-and-file em- ployee. The Employer did not present any em- ployee witnesses to testify in its behalf. Thus only two employees who were eligible voters in the elec- tion were present as witnesses for those parties represented at the hearing. No evidence was presented that other employees attended the hear- ing or were even aware of it or the identity of the counsel for the General Counsel. On the basis of the foregoing, it is concluded that the facts related above fail to support the allegation that the presence of the Board agent at the elec- tion, who had appeared as one of two counsels for the General Counsel at the hearing 2 weeks earlier, destroyed the essential laboratory conditions for the holding of a fair election. As indicated, the hearing had been held over 2 weeks before the date of the election, at a community located a substan- tial distance from the home of the Employer's plant and was attended by only two rank-and-file em- ployees of the Employer. Assuming arguendo that the votes of the two em- ployee witnesses were in some way affected by the presence of the Board agent, the tally of ballots reveals that the Petitioner won the election by a margin of 16 votes and, therefore, the final results could not be affected by the two employees' votes, In any event, elections have not been set aside even in cases where the Board agent who con- ducted the election also investigated unfair labor practice charges against the Employer between vot- ing sessions.3 In view of the above, it is found that the objec- tions are without merit. Accordingly, it is recommended that the objec- tions be overruled. tions Amax Aluminum Extrusion Products, Inc, 172 NLRB 1401 KIMCO AUTO PRODUCTS OF MISSISSIPPI , INC. 601 CONCLUSION AND RECOMMENDATION recommended that the Board certify United Steel- Having recommended that the Employer 's objec- workers of America, AFL-CIO , as the exclusive tions be overruled in their entirety and as the tally bargaining representative of the employees in the of ballots reveals that the Petitioner received a unit involved herein within the meaning of Section majority of the valid votes counted , it is further 9(a) of the Act.