McGraw-Edison Co.

NATIONAL ELECTRIC COIL DIV. National Electric Coil Div. McGraw-Edison Com- pany and International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC and its Local 745, Petitioner. Case 9-RC-8361 July 28, 1970 DECISION AND ORDER REMANDING PROCEEDING TO REGIONAL DIRECTOR By MEMBERS FANNING, MCCULLOCH, AND BROWN Pursuant to a Stipulation for Certification Upon Consent Election approved by the Regional Director on January 16, 1970, an election was con- ducted in the above-entitled proceeding on January 28, 1970, under the direction and supervision of the Regional Director for Region 9. Upon the conclusion of the election, a tally of ballots was furnished the parties which shows that of approximately 25 eligible voters, 25 cast ballots, of which 7 ballots were cast for the Petitioner, 16 ballots were cast against the Petitioner, and 2 bal- lots were challenged. The challenged ballots are not sufficient in number to affect the results of the elec- tion. On February 3, 1970, the Petitioner filed timely objections to conduct affecting the results of the election. The Regional Director caused an in- vestigation of the objections to be made and thereafter, on March 19, 1970, issued and served on the parties his Report on Objections, in which he recommended that the objections be overruled in their entirety and an appropriate certification be issued. Thereafter, on March 30, 1970, the Peti- tioner filed timely exceptions to the Regional Director's report and a brief in support thereof, submitting that the Regional Director erred in recommending that its Objections 4 and 5 be over- ruled and asking that the Board set aside the first election and direct a second election. 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. ' The Petitioner withdrew its Objections 2 and 3 poor to the issuance of the Regional Director's report 2 In Objection 4 the Petitioner alleged that "By the aforementioned con- duct (Objections I through 31 and by other acts and conduct, the Em- 184 NLRB No. 95 427-835 0 - 74 - 45 691 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 the 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 fol- lowing employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All plant clerical employees excluding all production and maintenance employees, truckdrivers, office clerical employees, en- gineering employees, watchmen, foremen, assistant foremen and professional employees, guards and supervisors as defined in the Act and all other employees. 5. The Board has considered the Regional Director's report, the exceptions and brief, and the entire record in this case, and finds as follows: In the absence of exceptions, we adopt the Re- gional Director's recommendation that the Peti- tioner's Objection 1 be overruled.' Similarly, as to Objection 5, we find, in agreement with the Re- gional Director, that the news article appearing in the Columbus Dispatch on January 27, 1970, was not attributable to the Employer or its agents, did not threaten the employees that the Employer would cause them to lose their jobs if they voted for the Petitioner, and did not otherwise create such a general atmosphere of fear, confusion, or reprisal as to render the conduct of a free election impossi- ble. With respect to its Objection 4,2 the Petitioner contends that the Regional Director erred in failing to find that an alleged no-solicitation or no-distribu- tion rule maintained by the Employer during the preelection period was encompassed within the scope of the objection, and that it should have been considered by him as grounds for setting aside the election. Without deciding whether the Petitioner's specific objections were sufficiently broad in scope to include the allegation relied on, we find merit in the exception to the Regional Director's failure to consider this allegation as grounds for setting aside the election. The record reveals that on January 27, 1970, the day preceding the election, the Petitioner filed un- fair labor practice charges with the Regional Director. During the course of investigation of the charges evidence was received by the Regional Director that the Employer had in effect what he ployer interfered with the election and restrained and coerced employees in their right to choose a bargaining agent, so as to make a valid election impossible " 692 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD described in his report as "an invalid no-solicitation rule." On March 6, 1970, after the Petitioner had filed its objections in the instant case, the Employer entered into a settlement agreement, which was ap- proved by the Regional Director, in which it agreed that it would not maintain , give effect to, or enforce the rule . On March 13, 1970, in submitting evidence in support of its objections, the Petitioner contended to the Regional Director that the allega- tion concerning the invalid no-solicitation rule was included in its Objection 4. Notwithstanding the foregoing, the Regional Director found that the Petitioner failed to offer any evidence in support of its March 13 contention . He found further that the investigation failed to disclose evidence that the ex- istence of the invalid no-solicitation rule in any manner interfered with or impaired the free choice of a bargaining representative by the Employer's employees. We disagree with the Regional Director's conclusions regarding these matters. It is the Board's established and longstanding rule that after an investigation of conduct affecting the results of an election has commenced "[T)he Re- gional Director is not required to, nor can he properly, ignore evidence relevant to the conduct of the election simply because such conduct was not specifically alleged in the objections. "3 In the instant case, whether or not the conduct in question was specifically alleged , the Regional Director discovered evidence of the existence of the al- legedly invalid no-solicitation rule during the course of investigating a concurrent unfair labor practice charge, which subsequently became the subject of a settlement agreement . The Regional Director having discovered evidence of an unfair labor practice sufficient to support a settlement agreement, it was incumbent upon him to consider whether this evidence was relevant to the conduct of the election.4 Accordingly, we adopt the Regional Director's recommendations that Objections 1 and 5 be over- ruled . As to the allegation concerning the invalid "no-solicitation" rule, we shall remand the proceeding to the Regional Director for further appropriate action consistent herewith. ORDFR It is hereby ordered that this case be, and it hereby is, remanded to the Regional Director for Region 9 for such further and other proceedings as he deems warranted in accordance with this Deci- sion and the Board's Rules and Regulations. ' Thomas Products Co., Division of Thomas Industries, Inc., 169 NLRB 706, and cases cited therein 'See, e g., Mallory Capacitor Company, 167 NLRB 647, Edmont, Inc, 139 NLRB 1528 , 1529, Marion Mills (Division of Munsingwear , Inc ), 124 NLRB 56,60