Modern Hard Chrome Service Co.

82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Modern Hard Chrome Service Co. and International Union, United Automobile, Aerospace and Agricul- tural Implement Workers of America, UAW, Petitioner and Modern Hard Chrome Service Co. Employees Union (Ind.), Petitioner.' Case 7-RC-9905 December 8, 1970 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Pursuant to a stipulation for certification upon consent election approved on May 5, 1970, an election by secret ballot was held on May 11, 1970, under the direction and supervision of the Regional Director for Region 7, among the employees in the appropriate unit. At the conclusion of the balloting, the parties were furnished with a tally of ballots which showed that, of approximately 59 eligible voters, 29 cast ballots for the Petitioner, 16 for the Intervenor, 11 against the participating labor organizations, and none was challenged or void. Thereafter, the Employ- er 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 28, 1970, issued and duly served upon the parties a notice of hearing on objections, in which he ordered a hearing be held with respect to the Employer's objections. Pursuant thereto, a hearing was held before Hearing Officer Joseph E. Moore, and, on July 7, 1970, the Hearing Officer issued and served on the parties his report on objections. Upon a consideration of the evidence presented, the Hearing Officer found the Employer's objections lacking in merit and recom- mended that they be overruled and that the Petitioner be certified as the bargaining representative of the employees in the stipulated unit. Thereafter, the Employer filed timely exceptions to the Hearing Officer's report on objections and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National 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 i Hereinafter referred to as the Intervenor 2 The Employer's exceptions to the Hearing Officer's recommendation the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Petitioner and the Intervenor are labor organizations claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing 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 all production and maintenance employees, including truckdrivers and shipping and receiving employees, and machine shop employees employed by the Employer at 12880 and 12888 E. Nine Mile Road, Warren, Michigan, but excluding all office clerical employees, professional employees, guards, and supervisors as defined in the National Labor Rela- tions Act, as amended, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. The Board has considered the entire record in the case, including the Hearing Officer's report and the exceptions and brief, and, contrary to the Hearing Officer, sustains the Employer's Objection 2.2 Contrary to the implication contained in the Hearing Officer's report, the Board's Milchem deci- sion (170 NLRB No. 46) was not meant to be limited to situations where a party's conversations with voters in the polling place were shown to have constituted electioneering. On the contrary, the Board stated in Milchem that, thenceforth, there would be a "strict rule against such conduct, without inquiry into the nature of the conversations." As the Board pointed out, the final minutes before an employee casts his vote should be his own, as free from interference as possible. Moreover, the Board observed that: the difficulties of recapturing with any precision the nature of the remarks made in the charged atmosphere of a polling place are self-evident, and to require an examination into the substance and effect of the conversations seems unduly burden- some and, in this situation, unnecessary . . . a blanket prohibition against such conversations is easily understood and simply applied. The Board concluded that "the rule contemplates that conversations between a party and voters while the latter are in a polling area waiting to vote will normally, upon the filing of proper objections, be deemed prejudicial without investigation into the content of the remarks," observing that parties should, to assure complete compliance with the rule, instruct their agents "simply to refrain from convers- ing with prospective voters in the polling area." In the present case, according to testimony credited that Objections I and 3 be overruled raise no substantial issues of law or fact which would warrant reversal of the Hearing Officer 187 NLRB No. 11 MODERN HARD CHROME SERVICE CO. by the Hearing Officer, Petitioner's observer, Gal- braith, continued to converse with employees who approached the voting table-"beyond a mere hello"--despite the fact he and the other observers had been specifically admonished by the Board agent for having engaged in such conversations. Thereafter, when employee Kilby came to vote, and before he cast his ballot, Galbraith remarked to Kilby that the weather was "warm," whereupon Kilby agreed and commented that he would enjoy a beer, if only he had some money. Observer Galbraith stood up, took several bills from his pocket, and offered Kilby a loan. The loan was rejected by Kilby on grounds he hadjust been kidding. To be sure, as the Board stated in Milchem, a chance "hello" will not suffice to set aside an election. But the conduct of Petitioner's observer was repeated, despite admonition, and culminated in his gratuitous offer of a loan to a prospective voter. Though perhaps not a crucial fact, a single vote was determinative in this 3 In older to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Company, 394 U S 759 Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be 83 election; had Petitioner received one fewer vote, a runoff would have been required. The Board jealously guards its election process as the keystone of the Act. Observers are supposed to watch the ballot box, identify and check off voters on the eligibility list, and perform other services as requested by the Board agent. Their functions do not include offering small loans to prospective voters as they stand in line. Accordingly, as we sustain Objection 2. we shall set the election aside and direct that a second election be conducted. ORDER It is hereby ordered that the election conducted on May 11, 1970, be, and it hereby is, set aside. [Direction of second election3 omitted from publication.] filed by the Employer with the Regional Director for Region 7 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed