Plastic Fabricating Co., Inc.

PLASTIC FABRICATING CO., INC. Plastic Fabricating Co., Inc . and District Lodge 70, International Association of Machinists and Aerospace Workers, AFL-CIO, Petitioner. Case 17-RC-5984 November 7, 1969 DECISION, ORDER, AND DIRECTION BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS AND ZAGORIA Pursuant to a stipulation for certification upon consent election approved April 1, 1969, an election by secret ballot was conducted on April 17, 1969, under the direction and supervision of the Regional Director for Region 17, among the employees in the stipulated unit described below. At the conclusion of the election, the Regional Director served upon the parties a tally of ballots which showed that, of approximately 106 eligible voters, 103 ballots had been cast, of which 51 were for, and 50 against, the Petitioner. Two ballots were challenged. The challenged ballots are sufficient in number to affect the results of the election. Thereafter, the Petitioner filed timely objections to the election. In accordance with National Labor Relations Board Rules and Regulations, Series 8, as amended, the Acting Regional Director conducted an investigation of the challenged ballots and the objections and, on August 7, 1969, issued and duly served upon the parties his report on challenges and objections. In his Report he recommended that the two challenges be overruled, that the ballot cast by James M. Yeager be opened and counted, and the allegedly void ballot be counted; and that, if the revised tally reveals that a majority of votes has been cast for the Petitioner, the Petitioner be certified and the objections then be considered as moot and no further action be taken. If the revised tally shows that the Petitioner did not receive a majority of votes cast in the election, he recommended that Objections 1, 3, 5, 6, and 8 be overruled; and that Objections 9 and 10 not be ruled upon. He also recommended, in this event, that Objections 2, 4, and 7 be sustained, that further Employer conduct revealed during the course of his investigation be found to be objectionable conduct, and that the election, therefore, be set aside and a new election directed. On August 22, 1969, the Employer filed timely exceptions to the Acting Regional Director's Report as it related to the Employer's conduct found to be objectionable, and a supporting brief in which it requests that a hearing now be held. The Petitioner filed no exception. 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. 533 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 concerning the representation of employees of the Employer 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 purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees including truckdrivers employed at the Wichita, Kansas, plant of Plastic Fabricating Co., Inc., EXCLUDING office-clerical employees and all other employees, and guards and supervisors as defined in the Act as amended. 5. The Board has considered the Acting Regional Director's Report and the Employer's exceptions. In the absence of exception thereto, the Board adopts, pro forma, the Acting Regional Director's recommendation that the two challenges be overruled; that Objections 1, 3, 5, 6, and 8 be overruled; and that no ruling be made on Objections 9 and 10. The Acting Regional Director treated the Employer's demand for a hearing, made during the course of the investigation of the objections, as a motion, and denied it in his report. In its exceptions, the Employer alleges, inter alia, that it was not given an adequate opportunity to present evidence, and requests accordingly that a hearing now be held. We find no merit in the Employer's contention it was not afforded an adequate opportunity to present evidence and that therefore a hearing was or is required in this case. We note, inter alia , that at no time has the Employer specifically denied, or offered any evidence disputing, any of the factual findings of the Acting Regional Director. We, therefore, deny the Employer's request for a hearing.' We find that the Employer's exceptions to the Acting Regional Director's recommendation that Objections 2, 4, and 7' be sustained, raise no material issues of fact or law which warrant reversal of the Acting Regional Director However, in adopting the recommendation that Objection 2 be 'Lazzara Products , Inc. 178 NLRB No 31, Louisville Chair Company. 161 NLRB 358, 375 , enfd 385 F 2d 922 (C A 6), N L R B v Difco Laboratories , 389 F 2d 663, 667 (C A 6), cert denied 393 US 828 Accord, N L R B v Tennessee Packers, 379 F 2d 172, 177 (C A 6) See N L R B v Huntsville Manufacturing Company . 203 F 2d 430, 431-433 (C A 5), enfg 99 NLRB 73 We adopt the Acting Regional Director's findings that, as to Objection 4, the acceleration of a wage increase, and as to Objection 7, the plant manager' s threats to discharge union supporters , made to employees, interfered with the election 179 NLRB No. 86 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sustained, we rely solely on his findings that the Employer (1) threatened an employee that if the Petitioner won the election, the Employer would have to "get rid of" part-time employees; (2) asked an employee how he felt about the Petitioner, warned him that employees would be sorry if the Petitioner won the election, and said employees did not know how stubborn the Company could be; (3) questioned an employee as to why he was for the Petitioner and whether he had attended the Petitioner's meetings, warned him that it was "foolish to be for the union," and promised him that there would be "lots of opportunity" in the new plant; (4) called an employee into the plant manager's office and interrogated him as to his past union affiliation and as to what the Union had done for him, told him that there was too much talk and the plant manager ran the plant, that the plant manager had a stack of employment applications and would replace employees in the event of a strike, and that there had been a layoff at another plant of the Employer when a union came in; asked him how he felt about the Petitioner, and promised that his pay would increase if he stayed with the Employer; (5) impliedly requested an employee to talk to other employees against the Petitioner; and (6) interrogated employees concerning union activity. We find it unnecessary to rule on the Acting Regional Director's findings, conclusions, and recommendations as to Employer conduct revealed during the course of his investigation and which he treated as an additional objection and found objectionable. His finding that such conduct was objectionable is only cumulative and does not affect the result herein. ORDER It is hereby ordered that the challenges be, and they hereby are, overruled. DIRECTION It is hereby directed that as part of the investigation to ascertain the representative for the purposes of collective bargaining among the employees of Plastic Fabricating Co., Inc., at its Wichita, Kansas, plant in the stipulated appropriate unit, the Regional Director for Region 17 shall, pursuant to National Labor Relations Board Rules and Regulations Series 8, as amended, within 10 days from the date of this Decision, open and count the ballot cast by James M. Yeager, and count the allegedly void ballot and , thereafter, prepare and cause to be served upon the parties a revised tally of ballots, including therein the count of said challenged ballots. IT IS FURTHER DIRECTED that in the event the revised tally of ballots shows the Petitioner received a majority of the valid votes cast , the Regional Director shall issue a Certification of Representative to the Petitioner. IT IS FURTHER DIRECTED that should the revised tally of ballots show that the Petitioner has not received a majority of the valid ballots cast, the election conducted on April 17, 1969, shall be set aside, and a second election be conducted among the employees in the unit found appropriate, at such time as the Regional Director deems appropriate. The Regional Director for Region 17 shall direct and supervise the election , subject to National Labor Relations Board Rules and Regulations. Eligible to vote are those in the unit who were employed during the payroll period immediately preceding the date of issuance of the Notice of Second Election , including employees who did not work during that period because they were ill, on vacation, or temporarily laid off . Also eligible are employees engaged in an economic strike which commenced less than 12 months before the election date and who retained their status as such during the eligibility period and their replacements. Those in the military services of the United States may vote if they appear in person at the polls . Ineligible to vote are employees who have quit or been discharged for cause since the designated payroll period and employees engaged in a strike who have been discharged for cause since the commencement thereof, and who have not been rehired or reinstated before the election date , and employees engaged in an economic strike which commenced more than 12 months before the election date, and who have been permanently replaced .' Those eligible shall vote whether or not they desire to be represented for collective-bargaining purposes by District Lodge 70, International Association of Machinists and Aerospace Workers, AFL-CIO. '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 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 filed by the Employer with the Regional Director for Region 17 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 riled