Wabash Transfer Corp.

148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wabash Transformer Corporation and Communica- tions Workers of America, AFL-CIO, Petitioner. Case 14-RC-7260 July 31, 1973 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Pursuant to a stipulation for certification upon con- sent election, an election by secret ballot was conduct- ed under the supervision of the Regional Director for Region 14 among the employees in the appropriate unit on March 16, 1973. At the conclusion of the election the parties were furnished a tally of ballots which showed that of approximately 109 eligible vot- ers, 102 cast valid ballots, of which 50 were for, and 43 were against, the Petitioner. Nine ballots were chal- lenged, which were sufficient in number to affect the results of the election. On March 23, the Employer filed objections to the election. In accordance with the National Labor Relations Board's Rules and Regulations, Series 8, as amended, the Regional Director conducted an investigation of the issues raised by the challenges and objections and on April 25 issued and served on the parties his Re- port on Challenged Ballots and Objections attached hereto in pertinent part. In his report, the Regional Director recommended that the challenges to the bal- lots of Linda Lindsey, Dana Smith, Terry Thomas, and Lucinda Sander be sustained, and that the re- maining challenges not be considered on their merits as the results of the election were conclusive. The Regional Director further recommended that the Employer's objections be overruled in their entirety and a certification of representative issued. Thereaf- ter, the Employer filed exceptions limited to the Re- gional Director's disposition of the objections and Petitioner filed an answering letter. 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. 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 pur- poses 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 the employees of the Em- ployer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. 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 em- ployed at the Employer's Farmington, Missouri facility, including the lead girls, but excluding office clerical and professional employees, guards, and supervisors as defined in the Act. 5. The Board has considered the Regional Director's report, the Employer's exceptions thereto, the Petitioner's answering letter, and the entire record in this case, and hereby adopts the Regional Director's findings,' conclusions,' and recommenda- tions. 6. Contrary to our dissenting colleague, we cannot agree that the mere statement of the Board agent that the polls were open and the employees could, if they desired, "now vote for your union representative" is a sufficient basis to set aside this election. Obviously, a Board election is an election to select a union repre- sentative. While the Board agent may have and should have made explicit what was implicit in the announcement, i.e., that the right to vote for the union necessarily carried with it the right to vote against the union, we do not believe that the agent's statement was per se so violative of the Board's standards of neutrality or so prejudicial to the employees' right to cast a negative vote that a new election must be direct- ed. Accordingly, as the tally shows that the Petitioner has obtained a majority of the valid ballots cast, we shall certify it as the exclusive bargaining representa- tive of the employees in the appropriate unit. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Communications Workers of America, AFL-CIO, and that pursuant to Section 9(a) of the National Labor Relations Act, as amend- ed, the said labor organization is the exclusive repre- sentative of all the employees in the unit found appropriate herein for the purposes of collective bar- gaining with respect to rates of pay, wages , hours of employment, and other conditions of employment. CHAIRMAN MILLER, dissenting: Contrary to my colleagues, I would sustain the 1 In the absence of exceptions, we adopt pro forma the Regional Director's disposition of the challenged ballots The Employer's exceptions, in our opinion, raise no material or substan- tial issues of fact or law which would warrant reversal of the Regional Director's recommendations 205 NLRB No. 38 WABASH TRANSFORMER CORPORATION Employer's objection that the wording of the Board agent's preelection announcement to the prospective voters violated the Board's standards of complete and unquestionable neutrality in its election processes. The essential facts as found by the Regional Direc- tor are not in dispute. At the preelection conference the parties agreed that one of the Board agents con- ducting the election would notify the employees by means of an announcement over the plant intercom system that the polls were open and that the employ- ees could proceed to the voting area. After inspecting the polling areas, the Board agent announced the opening of the polls over the intercom in the following manner, according to her version: "Good morning. I am . . . of the National Labor Relations Board. You may now vote for your union representative. The polls are open, you may vote if you want to. You do not have to vote if you do not want to." 3 No other quali- fying statements were made and the employees imme- diately proceeded to the voting areas to cast their ballots. It is undisputed that the Board agent identified her- self as a representative of this Board and then pro- ceeded to announce the opening of the polls in a manner which substantially departed from our offi- cial instructions to voters. My colleagues are willing to excuse this particular deviation since in their opin- ion the Board's preelection notices and the Employer's campaign literature distributed to em- ployees adequately neutralized any prejudicial effect the Board agent's statement may have on the pros- pective voters. I am unwilling to so speculate, and am of the view that where a representative of this Board, even unwittingly, fails to preserve not only the fact of our neutrality, but also the appearance of neutrality, we must rerun the election.' In view of the foregoing, I would set aside the elec- tion and direct a second election. 3 Although the Employer's witness's statement is somewhat different, it is of the same tenor and effect "The polls are now open and you may now go vote and elect a union representative " To the extent the version offered by the Employer's witness is more questionable , we must of course, in the absence of a hearing to resolve credibility , accept that version 4Athbro Precision Engineering Corp, 166 NLRB 966, cited with approval in N L R B v Athbro Precision Engineering Corp, 423 F 2d 573 (C A I, 1970), Delta Drilling Company v N L R B , 406 F 2d 112 (C A 5, 1969) Cf Cummer-Graham Company, 73 NLRB 603, 609, 610. APPENDIX THE OBJECTIONS OBJECTION 3 In objection 3 the Employer alleges that a Board Agent assigned to conduct the election foreclosed any 149 presumption in the minds of the employee voters that the Board's position in the election was that of a neu- tral by: (a) announcing to employees that they were to vote in an election "to elect a union representative" The Petitioner's position is that it has no knowledge of any misconduct on the part of the Board Agents who conducted the election. The Employer's facility involved herein operates on three shifts: 11 p.m. to 7 a.m.; 7 a.m. to 3:30 p.m.; and 3:30 p.m. to 11 p.m. There are approximately three employees on the 1 I p.m. to 7 a.m. shift. On February 22, the parties agreed that the election would be con- ducted on March 16, from 6:30 a.m. to 7:00 a.m. and from 2:30 p.m. to 5:00 p.m. The early voting period was agreed to in order to accomodate employees on the 11 p.m. to 7 a.m. shift. The parties further agreed that prior to the opening of the polls at 6:30 a.m. a Board Agent and observer for each party would enter the plant area and announce to the employees that the polls would open at 6:30 a.m. and that they could vote at that time. The parties also agreed that during the second voting period, an observer for each party would enter the plant area and release voters in ac- cord with a schedule to be determined by the Employ- er. The parties further agreed to a preelection conference before each voting period, at 5:45 a.m. and at 2 p.m. Because of the releasing arrangement for the sec- ond voting period, it was determined that two Board Agents be assigned to conduct the election in order for one to accompany the parties' observers for releas- ing purposes. On March 16, the date of the election, the Board Agents assigned to conduct the election met with Employer's Attorney Moehlenhof and Director of Manufacturing Liston and Petitioner's Administra- tive Assistant Crawley in the plant manager's office at the Employer's facility. Since it was anticipated that only three employees would vote during the first peri- od, it was agreed that prior to 6:30 a.m. a Board Agent would notify employees by means of an announce- ment over the plant intercom that the polls were open or that employees could vote. After inspecting the polling place located at a cor- ner of the plant, a Board Agent accompanied by Employer's Manager of Manufacturing Liston shortly before 6:30 a.m., walked through the plant to the Employer's office. A door to the Employer' s office opens into the plant cafeteria or lunchroom area. In proceeding to the office, the Board Agent and Liston passed through the cafeteria where approximately 20 employees were seated at tables. The Board Agent entered the office where Liston turned on the inter- com and showed the Board Agent how to operate the 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD microphone. Liston then left the office and located himself in the cafeteria area. The desk at which the microphone was located was visible from the cafeteria and the office door into the cafeteria remained open. At approximately 6:30 a.m. the Board Agent made an announcement over the intercom which was heard by Liston and the Board Agent located in the voting area. According to Liston the Board Agent made the following announcement: The polls are now open and you may now go vote and elect a union representative. According to the Board Agents, the following an- nouncement was made: Good morning. I am Tanana van der Horst of the National Labor Relations Board. You may now vote for your union representative. The polls are open. You may vote if you wish to do so. You do not have to vote if you do not want to. The investigation disclosed that the Employer by letter received on February 14, notified the [Regional Director] that it had posted Form NLRB 666 (6-71) "Notice to Employees from the National Labor Rela- tions Board." The notice informs employees that a representation petition has been filed and sets forth their rights under the Act. The notice also sets out examples of conduct by both employers and labor organizations which may constitute grounds for set- ting aside an election. The last paragraph in the body of the notice states in pertinent part: ... The National Labor Relations Board as an agency of the United States Government does not endorse any choice in the election. The investigation further disclosed that a "View- point" dated and distributed February 23, notified employees of the date, time and place of the sched- uled election, and advised that the Employer was hopeful that the vote would be one of confidence in the Employer "through a loud and clear NO to the union." The leaflet then states that by the date of the elec- tion employees should have enough information in order to make a decision and the Employer hoped their decision would be a "NO" vote. The leaflet continues by informing employees of the procedure for marking their ballots. The leaflet then states: Now that an election has been established you can vote NO even though you have signed a union card. The decision you will make between the Company or the Union is decided by the votes cast. Not to vote at all is as good as a yes vote for the Union. The investigation further disclosed that prior to the election the Employer posted copies of the Board's official "Notice of Election" on two bulletin boards, one located in the employee cafeteria or lunchroom area and the other located immediately inside of and adjacent to the employee entrance to the plant. The notice sets forth the voting unit, date, time and place of the election, together with a sample ballot. The first paragraph in the upper left hand side of the notice informs employees of the purpose of the election and states in pertinent part: This election is to determine the representative, if any, desired by the eligible employees for pur- poses of collective bargaining with their Employ- er. . The lower portion of the sample ballot contained in the notice instructs voters as follows: "MARK AN `X' IN THE SQUARE OF YOUR CHOICE." The last paragraph in the lower left hand side of the notice states in pertinent part: . . . The National Labor Relations Board, as an agency of the United States Government does not endorse any choice in the election. Without attempting to resolve the conflict in testi- mony with respect to the Board Agent' s announce- ment, in either case the [Regional Director] concludes, in view of the statements with respect to the Board's neutrality contained in the notices posted in the plant and the Employer's "Viewpoint " assuring employees of their right to vote "NO," that while the announcement complained of did not express the pur- pose of the election in the precise form appearing on the "Notice of Election," the announcement cannot be interpreted as denoting partiality to the Petitioner or as calling for a vote on its behalf. Furthermore, the Employer did not submit the investigation did not disclose any evidence that the employees were misled as to the issues on which they were voting or that a result unintended by the employees was reached in the election. Cummer-Graham Company, 73 NLRB 603, 609-610. Accordingly, the [Regional Director] recommends that Item a of objection 3 be overruled.