A. Brandt Co., Inc.

A. BRANDT COMPANY 459 A. Brandt Company, Inc. and Chauffeurs, Teamsters and Helpers Local Union No. 47, affiliated with In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Cross-Peti- tioner. Case 16-RC-5850 September 29, 1972 DECISION ON REVIEW AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On April 21, 1972, the Regional Director for Re- gion 16 issued a Second Supplemental Decision and Order in the above-entitled proceeding, in which he bypassed Objections 1 and 2, sustained Objection 3, set aside the election hereinbefore conducted, and di- rected that a second election be held.' Thereafter, in accordance with the National Labor Relations Board Rules and Regulations, the Cross-Petitioner filed a timely request for review of the Regional Director's Second Supplemental Decision and Order on the ground that in sustaining Objection 3 he departed from precedent; and the Employer filed a request for review on the ground that he should have ruled on Objections 1 and 2. By telegraphic order dated May 19, 1972, the National Labor Relations Board granted the Cross- Petitioner's request for review and remanded the case to the Regional Director, directing that he investigate and rule on Objections I and 2. On June 15, 1972, the Regional Director issued a Third Supplemental Decision in which he overruled Objections 1 and 2. Thereafter, the Employer filed a timely request for review thereof on the grounds that in overruling the objections the Regional Director de- parted from precedent. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board concluded that the Employer's re- quest for review of the Regional Director's Third Sup- plemental Decision raises no substantial issues warranting review. It is, accordingly, hereby denied.2 The Board has considered the entire record in this case with respect to the issues relating to Objection 3, i The tally of ballots for the election held on March 14 , 1972, showed that of approximately 536 eligible voters, 522 cast valid ballots , of which 304 were for and 193 against the Cross-Petitioner There were 2 void ballots and 25 challenged ballots, a number insufficient to affect the results 2 Chairman Miller dissented from denial of review of Objection 2, involv- ing the injection of racial appeals during the election campaign , and accord- mgly dissents from the certification of the Petitioner . However he joins his colleagues in overruling Objection 3. under review, and makes the following findings: Objection 3 alleged that the Cross-Petitioner in- terfered with the election by reproducing the Regional Director's Supplemental Decision and Order and publishing untruthful notations thereon creating the impression that the Board favored and supported the Cross-Petitioner. The Regional Director found that Joe Allgood, an organizer for the Cross-Petitioner, a week before the election distributed to employees a reproduction of the Regional Director's Supplemental Decision and Order containing considerable underlining and marginal comment .3 With respect to the comment on page 3 of the attached reproduction, that "The Gov- ernment would not have ordered this election if it had not been for the Teamsters Union! Vote Yes," the Regional Director stated that it was susceptible of various interpretations, one of which was that the "Government" is for "the Teamsters Union"; and he concluded that the insertion of such partisan message on a reproduction of his decision was analogous to the use of a portion of the Board's official notice of elec- tion for partisan messages, found objectionable in Rebmar, Inc., 173 NLRB 1434. The Cross-Petitioner contends that Rebmar is distinguishable as here, unlike the situation in that case, the underlinings of portions of the reproduced decision and the marginal comments were obviously not part of the decision itself. We agree. In our opinion, the marginal comments and un- derlinings on the copy of the Regional Director's Sup- plemental Decision distributed by Allgood could not reasonably be construed by the employees as part of the Regional Director's decision but were readily identifiable by them as partisan comment emanating from the Cross-Petitioner as to the import of that decision in relation to the election campaign. More- over, to the extent that the Cross-Petitioner's com- ments may have misrepresented the facts, inasmuch as the document was circulated among employees a week before the election, the Employer had ample time to respond. In the circumstances, we conclude that the disputed propaganda did not impair the vot- ers' free choice in the election.4 Objection 3 is there- fore hereby overruled. Accordingly, as the Employer's objections have 3 Attached hereto as an Appendix is a copy of the Regional Director's Supplemental , Decision indicating the parts which were underlined (herein italicized) in the copies distributed by Allgood The text of the marginal comments, although typewritten and bracketed in the attached copy for ease of reproduction herein, was clearly discernible as hand printed in the copies distributed Also, other aspects of the marginal comments , such as the vana- tions in the size and position of the lettered comments , and the configuration of the arrows leading from some of the comments to underlined portions of the text of the decision, made it clear that they were added comment and not a part of the decision itself. ° See Hollywood Ceramics Company, Inc, 140 NLRB 221; see also Heintz Division, Kelsey-Hayes Company, 126 NLRB 151 199 NLRB No. 55 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been overruled, and as the tally of ballots shows that the Cross-Petitioner has received a majority of the valid ballots cast in the election, we shall certify it as the exclusive bargaining representative of the employ- ees in the appropriate unit. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Chauffeurs, Teamsters and Helpers Local Union No. 47, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, and that, pursuant to Section 9(a) of the National Labor Rela- tions Act, as amended, the said labor organization is the exclusive representative of all the employees in the unit found appropriate herein for the purposes of col- lective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employ- ment. APPENDIX [HERE IS THE TRUTH!] [Decision and Order sent to the Union and the Company. This proves the Company and George Brandt and Bill Burke have been lying to the employ- ees.] SUPPLEMENTAL DECISION AND ORDER On January 31, 1972, a Decision and Direction of Election was issued in the above matter. Thereafter the Employer requested an investigation between the rela- tionship of the Petitioner, International Skilled Workers of America, herein called Skilled Workers, and Chauf- feurs, Teamsters and Helpers Local Union No. 47, affil- iated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Cross Petitioner, [Company stops the employees election.] alleging in its letters of February 12 and 15, 1972, to the Regional Director that there was collusion and fraud being practiced between the Skilled Workers and the Cross Petitioner. An investi- gation was made. The Skilled Workers requested per- mission to withdraw from the ballot which request we are granting in this Order along with a dismissal of their name from future proceedings . The Skilled Workers openly announced [Proves Union has been truthful.] their support for the Cross Petitioner. The parties were then advised by a letter from the Region- al Director on February 25, 1972, that the Intervenor had sought to become a Cross Petitioner and was being required to make a substantial showing of inter- est of 30% in order to qualify as a cross petitioner. We have made an investigation of the showing of interest and find that the Cross Petitioner has made an adequate showing of interest. By letter of February 29, 1972, the Employer objected to our granting any addi- tional time to the Cross [Proves Company has been lying.] Petitioner for the making of a showing of interest and to any cards improperly dated and refers to certain manual sections pertaining to showing of interest. We have now conducted our investigation to a point that we are satisfied that there is no collusion or fraud on [Proves Company has been lying.] the part of the Cross Petition- er from appearing on the Ballot. We are also satisfied that the Cross Petitioner has made an adequate show- ing of interest which matter is not a subject of litiga- tion in this proceeding. O. D. Jennings & Company, 68 NLRB 516. The results of the Regional Director's investigation into the allegations of fraud will be an- swered administratively by letter. We are satisfied that the Cross Petitioner's showing of interest is sub- stantial and is timely. Therefore, it is hereby ordered that International Skilled Workers of America be, and the same hereby is, dismissed from these proceedings with prejudice to said International Skilled Workers of America filing a new petition within six months unless good cause is shown why a new petition filed prior to the expiration of such period should be entertained; and it is further ordered that the name of International Skilled Work- ers of America be, and the same hereby is, removed from the ballot. It is hereby ordered that the Cross Petitioner, Chauffeurs, Teamsters and Helpers Local Union No. 47, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America be, and the same hereby is, accepted as the Cross Petitioner in these proceedings. It is finally ordered that the Decision and Direc- tion of Election issued on January 31, 1972, be, and the same hereby is, implemented in all respects except as to the dismissal, amendment and changes made herein; that the election will be conducted by the undersigned Regional Director among the employees in the unit found appropriate in the time and place set forth in the notice of election to be issued subsequent- ly, subject to the Board's Rules and Regulations; and that the Employer's motions to dismiss the petition be, and the same hereby are, denied. [The Government would not have ordered this election if it had not been for the TEAMSTERS UN- ION!] [VOTE YES]