McGraw-Edison Co.

NATIONAL ELECTRIC COIL DIVISION National Electric Coil Division, McGraw-Edison Com- pany and International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC and its Lo- cal 745, Petitioner. Case 9-RC-8361 February 8, 1971 SUPPLEMENTAL DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On July 28, 1970, the National Labor Relations Board issued its Decision and Order Remanding Pro- ceeding to Regional Director in the above-entitled proceeding,' adopting the Regional Director's rec- ommendations that Petitioner's Objections 1 and 5 be overruled. The Board further found that, as to Petitioner's Objection 4, the Regional Director erred in failing to consider whether the existence of an alleg- edly invalid no-distribution rule, discovered during the investigation of a concurrent unfair labor practice charge, was relevant to the conduct of the election. Accordingly, the Board remanded the case to the Re- gional Director for such further action as he deemed warranted. On August 7, 1970, the Regional Director issued his supplemental report and recommendation on objec- tions 2 in which he found that an invalid no-distri- bution rule did exist during the critical period before the election. Holding that the mere existence of an invalid no-distribution rule prevents a free and un- coerced election, he recommended that the election herein be set aside and that a second election be di- rected. Thereafter, the Employer filed a Motion for Clarifi- cation or Reconsideration of the Board's Decision and Order Remanding Proceedings to the Regional Director and/or Request for Reconsideration of the Regional Director's Supplemental Decision, Order, and Director of Second Election 3 in which it argues that the Employer should be allowed to proffer evi- dence to show that the existence of the invalid written no-distribution rule was not relevant to the conduct of the election because the Employer informed the Petitioner's president and chief steward that they could distribute campaign materials to employees on nonwork time and in nonwork areas so long as these i 184 NLRB No. 95. 2 Although the Regional Director issued the document in the form of a Supplemental Decision , Order, and Director of Second Election , we shall treat said document as a supplemental report and recommendation on objec- tions and the same is hereby redesignated as such for the purposes of this proceeding. 3 We shall treat the Employer's motion and request as exceptions to the Regional Director's supplemental report 451 employees were not themselves working at the time and place of solicitation. The Petitioner filed a brief in opposition. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel. The Board has considered the Regional Director's supplemental report and recommendation on objec- tions, the Employer's exceptions, the Petitioner's brief in opposition, and the entire record in this case, and hereby adopts the finding and recommendations of the Regional Director.4 ORDER It is hereby ordered that the election conducted herein, on January 28, 1970, be, and it hereby is, set aside. [Direction of Second Election I omitted from pub- lication.] CHAIRMAN MILLER, dissenting: I am of the opinion that the Employer has raised a valid issue by its attempt to proffer evidence to show that the alleged no-distribution rule was in fact a "dead letter," freely ignored by all parties, and to the extent it ever had any factual existence, had been superseded by a verbal rule permitting distribution. If this proffered evidence were found reliable, it would seem abundantly clear to me that the preexisting writ- ten "rule" could not conceivably have had any impact on the conduct of this election campaign. As a result, I would send this case back for a hearing to receive and evaluate such evidence. In our view, the Employer's exceptions do not raise any substantial issues of law or fact warranting reversal of the Regional Director's supplemental repsort and recommendation. In order 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 Co, 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 filed by the Employer with the Regional Director for Region 9 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director The Regional Direc- tor 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. 188 NLRB No. 71