Wall Colmonoy Corp.

40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wall Colmonoy Corporation and Lodge 36, Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, Petitioner. Case 23-RC-31 12 September 27, 1968 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA Pursuant to a Stipulation for Certification upon Consent Election, an election by secret ballot was conducted on April 10, 1968, under the direction and supervision of the Regional Director for Region 23 among the employees in the stipulated unit. At the conclusion of the balloting, the parties were furnished a tally of ballots, which showed that 133 votes were cast for, and 175 against, the Petitioner, there was 1 void ballot, and 7 ballots were challenged. The challenged ballots were not sufficient in number to affect the results of the election. Thereafter, the Petitioner filed timely obji,ctions to conduct affecting the results of the election. In accord with the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director investigated the objections, and, on May 13, 1968, issued an Order Directing Hearing and Notice of Hearing, in which a hearing was directed to be held before a duly designated Hearing Officer for the purpose of taking evidence on the issues raised by all the Petitioner's objections. The Hearing Officer was directed to prepare and cause to be served on the parties a report containing resolutions of credibility of witnesses, findings of fact, and recommendations to the Board as to the disposition of said issues. Pursuant to the Notice of Hearing, a hearing was conducted at San Antonio, Texas, on May 28 and 29, June 5 and 13, 1968. On June 14, 1968, the Hearing Officer issued and served on the parties his Report and Recommendation on Objections to Conduct of Election. In his report, the Hearing Officer recom- mended that objections 2, 5, 6, and 7 be overruled, and that objections 1, 3, and 4 be sustained. The Employer filed exceptions to the Hearing Officer's recommendation that objections 1, 3, and 4 be sustained, and a brief in support thereof.' Pursuant to Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connec- tion with this case to a three-member panel. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby af- firmed. 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 concern- mg the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. We find, in accord with the stipulation of the parties, that the following unit is appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees em- ployed at the Employer' s San Antonio, Texas, plant, excluding all tool production branch em- ployees, development engineering branch employ- ees, office clerical employees, professional employ- ees, guards , watchmen, and supervisors as defined in the Act. 5. The Board has considered the Hearing Officer's Report, the Employer's exceptions and brief, and the entire record in this case, and hereby adopts the Hearing Officer's findings and recommendations2 with the following modifications: Objection 1-The Hearing Officer found and the record above shows that District Manager Baker told the employees, at a meeting held on April 3, (1) that if the Union came in, classifications would be maintained and the employees would not be allowed to shift from one job to another, and that if there was msufficient work a layoff might result, that (2) he could make negotiations last a year and therefore another election would be necessary. We find that by this conduct, the Respondent threatened reprisals and refusals to bargain if the Union were selected, and thereby interfered with the election. We therefore adopt the Hearing Officer's recommendation that this objection be sustained. Objection 3-As found by the Hearing Officer, Supervisor Wilson, on March 22, five times drove past a union meeting attended by 25 or 30 employees. We do not agree with the Hearing Officer that this event was isolated, or that it was not by itself sufficient to invalidate the election. In addition we note the Hearing Officer's finding that the surveillance in I In the absence of exceptions , the Hearing Officer's recommenda- prepared before receipt by him of the reporter's transcript, it was tion that objections 2, 5, 6, and 7 be overruled is adopted pro forma prepared after the hearing had been closed We are satisfied , after a 2 Although it would appear that the Hearing Officer's Report and careful review of the record , that the Hearing Officer's findings are Recommendation on Objections to Conduct of Election may have been adequately supported by the record testimony. 173 NLRB No. 8 WALL COLMONOY CORP. 41 conjunction with the Employer's other misconduct interfered with the employees' free choice in the election. We therefore adopt his recommendation that this objection be sustained. Objection 4-As the Employer's no-solicitation rule, which was valid on its face, was promulgated more than a year before the advent of the Union, we find that the evidence fails to support the Hearing Officer's finding that the rule was designed to stifle the Union's campaign. We agree, however, on the basis of the facts found by the Hearing Officer and supported by the record, and in the entire context of this case, that the Employer applied the rule in a manner designed to hamper the employees' organiza- tional activity, and thereby interfered with the election. Objection 4 is therefore sustained. Accordingly, as we have sustained objections 1, 3, and 4, we shall set the election aside and direct a second election. ORDER It is hereby ordered that the election conducted herein on April 10, 1968, be, and it hereby is, set aside. [Text of Direction of Election3 omitted from publication.] 3 An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 23 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. Excelsior Underwearlnc , 156 NLRB 1236.