International Technovation, Inc.

232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Technovation, Inc. and International Brotherhood of Pulp, Sulphite, and Paper Mill Workers, AFL-CIO, Petitioner. Case 26-RC-4003 November 17, 1971 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Pursuant to a Stipulation for Certification Upon Consent Election executed by the parties and ap- proved by the Regional Director for Region 26 of the National Labor Relations Board on June 7, 1971, an election by secret ballot was conducted in the above- entitled proceeding on July 15, 1971, under the direction and supervision of the Regional Director. Upon the conclusion of the election, a tally of ballots was furnished the parties in accordance with the Board's Rules and Regulations. The tally of ballots shows that there were approxi- mately 49 eligible voters and that 48 ballots were cast, of which 20 were for, and 28 against, the Petitioner. There were no challenged ballots. On July 20, 1971, the Petitioner filed timely objections to conduct affecting the results of the election. The Regional Director completed an investi- gation of the objections and, on August 24, 1971, issued and served on the parties his Report on Objections. In his report, the Regional Director recommended that Petitioner's Objections 2(a), (b), \ (c), and (d) be overruled, that Objection 1 be ,sustained, and that the election be set aside and a new election held. Thereafter, the Employer filed timely exceptions to the Regional Director's report 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 authority in connection with this proceeding 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. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing 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. We find that the following employees, as stipulated by the parties, 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 in- cluding truckdrivers and shipping clerk employed at the Employer's Malvern, Arkansas, plant, but excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. 5. The Board has considered the, entire record in this proceeding, including the Regional Director's report, and the exceptions and brief, and, contrary to the Regional Director, overrules the Petitioner's Objection 1.1 Objection 1 alleges that the Employer, through distribution of a letter dated July 9, 1971, threatened the employees with loss of jobs if the Union won the election and left the impression that a vote for the Union was hopeless. The letter, identified as a confidential communication from Malvern Plant Manager Bonner to Plant Manager Reasor in Big Spring, Texas, outlined the plan the Employer would follow to maintain production in the event a union was successful in the election and a strike resulted during the "three to six months period required for negotiation of contracts." The letter further states in pertinent part: 1. The excess capacity of the Big Spring opera- tion which will include foam, egg cartons and meat trays will be transported to Malvern for sale at a cost of list price less 10 percent. 2. Trained personnel from the Big Spring plant which will include two extruder operators, one portco operator and two brown machine operators will be transferred to Malvern on a temporary basis for a period not to exceed 30 days. This will give us assistance in training the new employees that we would begin hiring immediately. The Regional Director found that, while the Employer did not directly circulate the letter or cause it to be circulated,, a substantial number of eligible voters were apprised of its contents with the Employ- er's apparent acquiescence. The Regional Director concluded that the average voter, when apprised of the content of the letter, could readily have been convinced that his selection of the Union as bargain- ing representative would be a futile gesture that foreseeably could cost him his job. We have carefully examined the content of the letter and find, in agreement with the Employer, that it does not support' the Regional Director's conclusion. We are unable to agree with the Regional Director that the average voter would reasonably infer from the reference in the letter to the "three to six months period required for negotiation of contracts" that the 1 As neither party has excepted to the Regional Director's these recommendations pro forma. recommendations that the remaining objections be overruled, we adopt 194 NLRB No. 36 INTERNATIONAL TECHNOVATION, INC. Employer intended to engage the Union in protracted negotiations. In our view, this statement appears to be an expression of the Employer's not unreasonable belief that it takes 3 to 6 months to negotiate a first contract with a newly certified union. Rather than convey the impression that bargaining would be futile, the letter tacitly recognizes the period of serious bargaining that would be required, should the Union become certified. Nor do we find anything objection- able in the remainder of the letter. The contingency plans there outlined were to take effect only "in the event" the Union, during or after bargaining, chose to strike, and constituted a factual, unobjectionable representation of the Employer's right under existing law to carry on its business in the event of a work stoppage. 233 Accordingly, as we have overruled the objections and as the tally of ballots shows that the Petitioner has not received a majority of the valid ballots cast, we shall certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid votes has not been cast for International Brotherhood of Pulp, Sulphite, and Paper Mill Workers, AFL-CIO, and that the said labor organization is not the exclusive representative of the employees in the appropriate unit, within the meaning of Section 9(a) of the National Relations Act, as amended.