Crown Machinery Co., Inc.

CROWN MACHINERY CO. 237 Crown Machinery Company, Inc. and District No. 9, International Association of Machinists and Aero- space Workers, AFL-CIO, Petitioner. Case 14- RC-7282 August 3, 1973 DECISION AND CERTIFICATION OF REPRESENTATIVE By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Pursuant to a Stipulation for Certification Upon Consent Election, an election by secret ballot was conducted under the direction and supervision of the Regional Director for Region 14 on March 22, 1973, among the employees in stipulated unit described be- low. After the election, the parties were furnished with a tally of ballots which showed that of approximately eight eligible voters, six cast ballots, of which three were cast for, and one was cast against, the Petitioner, and two ballots were challenged. The challenged bal- lots were sufficient to affect the results of the election. Thereafter the Employer filed timely objections to conduct affecting the results of the election. In accordance with the National Labor Relations Board Rules and Regulations, the Regional Director conducted an investigation, and thereafter, on April 27, 1973, issued and duly served on the parties his Report on Challenged Ballots and Objections, in which he recommended that the challenges to the two ballots be sustained, and that the objections be over- ruled. He further recommended that the Petitioner be certified as the collective-bargaining representative of the employees in the appropriate unit. Thereafter, the Employer filed exceptions to the Regional Director's report. 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. We are unable to agree with our dissenting col- league that the Employer's exceptions are sufficient to raise material or substantial issues of fact or law which would warrant reversal of the Regional Director's findings or recommendations or which would require a hearing. While there is some evidence that employees Mills and Nash had had some beer to drink prior to arriving at the polls, the evidence indi- cates they were not thereby rendered unfit to cast their ballots. Thus, they were not challenged by the observers, were permitted to vote by the Board agent, and did vote in a proper manner. Deeco Inc., 116 NLRB 990, 991. While Mills' remarks are some indi- cation that he did not take the election as seriously as he perhaps should have, they are not a sufficient basis for setting aside an election. There is nothing here to indicate his remarks interfered with any other voter or that they created an atmosphere in which a free elec- tion could not be held. Nor do we find it material that two employees quit, or intended to quit, after the elec- tion since it is well established that the test for de- termining eligibility is an individual's actual status on the eligibility and election dates.' Moreover, the Employer's contention that the two employees in- volved are "non-employees," and our dissenting colleague's concern that such individuals were im- properly permitted to vote, would appear to be in the nature of postelection challenges. This, of course, the Supreme Court has ruled, a party to an election is not permitted to do.' Thus, to overturn the Regional Director's recom- mendation in the factual situation here would in our opinion not be an exercise of the Board's discretion, but an abuse of such discretion. Accordingly, as the tally of ballots shows that the Petitioner has received a majority of the valid ballots cast in the election, we shall certify it as the exclusive bargaining representa- tive of the employees in the appropriate unit. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 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 certain employees of the Employer within the meaning of Section 9(c)(1) and 2(6) and (7) of the Act. 4. In agreement with the stipulation of the parties, we find that the following employees of the Employer constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees em- ployed by the Employer at its facility located at 8029 Frederick Street, St. Louis, Missouri, ex- cluding office clerical and professional employ- ees, guards, and supervisors as defined in the Act. CERTIFICATION OF REPRESENTATIVE It is hereby certified that District No. 9, Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, has been designated and select- ed by a majority of the employees of the Employer in the unit found appropriate above, and that pursuant ' General Tube Co, 141 NLRB 441, enfd 331 F 2d 751 (CA 6). 2 A J Tower Co, 329 U S 324 (1946) 205 NLRB No. 49 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to Section 9(a) of the Act, the said labor organization is the exclusive representative of all the employees in such unit for purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. CHAIRMAN MILLER , dissenting: We are here certifying a unit on the basis of a 3-1 vote. There was evidence submitted which, in my view, casts considerable doubt as to the sobriety, on elec- tion day, of two out of the four voters whose ballots are being counted. The evidence also tends to indicate that the balloting was conducted in an atmosphere of crude joking, threats, and, in general, fell considera- short of the orderly and serious minded atmosphere which we earnestly try to maintain as a standard for NLRB elections. The two employees whose sobriety is in issue also quite obviously had no genuine or serious purpose in voting, since after they cast their ballots they never again reported for work with the Employer. I do not think the issuance of a certification as a result of an election conducted under these highly unsatisfactory conditions is appropriate . While a hearing as to the full facts should, at the very least, be held, my own view is that even the admitted facts cast a sufficient cloud over the balloting conditions that I would exercise administrative discretion and hold an- other election under, hopefully, more orderly and pur- poseful circumstances.