Piper Industries, Inc.

474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Piper Industries, Inc., Plastic Products Division and purposes of collective bargaining in respect to rates of Local Union 3031 , United Brotherhood of Carpen- pay, wages, hours of employment, or other conditions ters & Joiners of America and International Wood - of employment. workers of America, AFL-CIO-CLC,' Petitioners. Cases 15-RC-5187 and 15-RC-5189 July 17, 1974 DECISION ON REVIEW AND CERTIFICATION OF REPRESENTATIVE By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On January 23, 1974, the Regional Director for Region 15 issued a Second Supplemental Decision and Certification of Representative in which he over- ruled the Employer and Woodworkers objections to the runoff election. Thereafter, the Employer, in ac- cordance with Section 102.67 of the National Labor Relations Board's Rules and Regulations, Series 8, as amended, filed a timely request for review of the Re- gional Director's Second Supplemental Decision, on the ground, inter alia, that he erred in failing to find a substantial number of employees, sufficient in num- ber to affect the election results, were deprived of the opportunity to vote. By telegraphic order dated March 4, 1974, the Na- tional Labor Relations Board granted the Employer's request for review with respect to the objection con- cerning alleged voter disenfranchisement. 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 has considered the entire record in this case with respect to the issue under review, and here- by adopts the findings and conclusions of the Region- al Director as set forth in his Decision, attached hereto as an appendix. Accordingly, as the tally of ballots in the runoff election shows that the Rubber Workers has received a majority of the valid ballots cast. we shall certify it as the collective-bargaining representative in the ap- propriate unit.' CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for United Rubber, Cork, Lino- leum & Plastic Workers of America, AFL-CIO, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organiza- tion is the exclusive representative of all the employ- ees in the unit found appropriate herein for the Herein referred to as Woodworkers , United Rubber , Cork, Linoleum & Plastic Workers of America , AFL-CIO, Intervenor , herein referred to as Rubber Workers 2 All production and maintenance employees employed by Employer at its plastic molding and cabinet plants, located in Jackson , Mississippi , excluding office clerical employees, professional employees , guards, and supervisors as defined in the Act APPENDIX SECOND SUPPLEMENTAL DECISION ' AND CERTIFICATION OF REPRESENTATIVE Pursuant to a Decision and Direction of Election issued in this matter by the undersigned Regional Director of Re- gion 15 of the National Labor Relations Board August 7, 1973, a secret ballot election was conducted September 6, 1973, under the direction and supervision of the Regional Director, among certain employees 2 of Piper Industries, Inc., Plastic Products Division (herein called Employer), to determine whether they wished to be represented for the purpose of collective bargaining by Local Union 3031, United Brotherhood of Carpenters & Joiners of America (herein called Carpenters), International Woodworkers of America, AFL-CIO (herein called Woodworkers), or Unit- ed Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO (herein called Rubber Workers), or by none of the aforementioned labor organizations The tally of ballots served upon the parties immediately following the election, disclosed the following results. Approximate number of eligible voters 241 Void ballots 2 Votes cast for Carpenters 12 Votes cast for Woodworkers 53 Votes cast for Rubber Workers 91 Votes cast against participating labor organizations 49 Valid votes counted 205 Challenged ballots 6 Valid votes counted plus challenged ballots 211 The challenged ballots were sufficient in number to affect the results of the election. No objections to the election were filed by any party. 1 Under the provisions of Sec 102 69 and 102 67 of the Board's Rules and Regulations. a request for review of this Second Supplemental Decision and Certification of Representative may be filed with the Board in Washington, D C This request must he received by the Board in Washington by February 5. 1974 2 All production and maintenance employees employed by Employer at its plastic molding and cabinet plants, located in Jackson, Mississippi, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act 212 NLRB No. 66 PIPER INDUSTRIES, INC. 475 Pursuant to Section 102.69(c) of the Board's Rules and Regulations, Series 8, as amended, an investigation of the challenged ballots was conducted under the direction and supervision of the undersigned. October 11, 1973, a Supple- mental Decision and Order Directing Counting of Chal- lenged Ballots issued and concluded, inter alga, that the challenge to one of the ballots be sustained and that the other five challenged ballots be opened and counted. November 1, 1973, the revised tally of ballots was served upon the parties, which reflected the counting of the over- ruled challenges and which disclosed the following results: Approximate number of eligible voters Void ballots Votes cast for Carpenters Votes cast for Woodworkers Votes cast for Rubber Workers Votes cast against participa- ting labor organizations Valid votes counted Undetermined challenged ballots Valid votes counted plus challenged ballots Sustained challenges (voters ineligible) Original Challenged Final Tally Counted Tally 241 2 12 12 53 53 91 2 93 49 3 52 205 210 6 0 211 210 1 Thus, although none of the three labor organizations re- ceived a majority of the valid votes cast, the tally showed that a majority of the voters desired representation by a labor organization and that of those three unions on the ballot, the Rubber Workers and the Woodworkers had re- ceived the most votes. Therefore, pursuant to Section 102.70 of the Board's Rules and Regulations, Series 8, as amended, a runoff election was conducted. This election took place as scheduled November 28, 1973. The parties agreed that the runoff election be conducted at the same place (the shipping area of Employer's plastic molding plant) and at the same times (7 a.m. to 7:30 a.m and 2 p.m. to 4 p.m.) as had been agreed to and used in the earlier election. Additionally, the parties agreed to the same payroll period ending date of August 3, 1973, with regard to eligibility. Upon completion of the election, the parties were furnished with a tally of-ballots which disclosed the following results: Approximate number of eligible voters 198 Void ballots 26 Votes cast for Woodworkers 40 Votes cast for Rubber Workers 50 Valid votes counted 90 Challenged ballots 4 Valid votes counted plus challenged ballots 94 The challenges were not sufficient in number to affect the results of the election. December 4 and 5, 1973, respectively, Employer and Woodworkers timely filed objections to conduct affecting the results of the election, copies of which were duly served on the proper parties. Copies of both Employer's objections and Woodworkers' objections are attached hereto as At- tachments A and B, respectively [omitted from publication]. Pursuant to Section 102.69(c) of the Board's Rules and Regulations, Series 8, as amended, an investigation of the objections has been conducted under the direction and su- pervision of the undersigned, who, having carefully consid- ered the facts, reports thereon and rules as follows. Basically, both Employer and Woodworkers are in agree- ment regarding the facts.; The morning session of the runoff election was held as scheduled on the appointed date, from 7 a.m. to 7:30 a.m. The parties had agreed on this time period in order to allow the third shift employees from the Employer's plastic plant to vote after the completion of their shift which ran from 11 p.m. to 7 a.m. Thus, while the morning session was scheduled for the purpose of allowing this specific group an opportunity to vote, other eligible employees may have also cast their ballots at this time. The Woodworkers has alleged in their objections that several employees in the Employer's cabinet plant sought to vote during the morning session but that the Employer would not let them do so. However, the Woodworkers was unable to substantiate this allegation by making any wit- nesses available or by providing the names of witnesses who could testify in this regard and it must, therefore, be con- cluded that this particular allegation is without substance. The 2 p.m. to 4 p.m. afternoon session of the election was scheduled in order to accomodate the employees scheduled to work the first shift (7 a.m. to 3 p.m.) and the second shift (3 p.m. to I I p.m.) at the Employer's plastic plant, as well as the Employer's cabinet plant employees who were sched- uled to work from 7 a.m. to 3.30 p.m. About I I to 11: 15 a.m. on the date of the election, the Employer was caused, by unexpected scheduling problems resulting from a fire in the plant 2 days earlier, to tell the employees in the cabinet plant that there was no more work for them that day and that they should leave early. The employees in the plastic plant continued to work that day and were unaffected by the shutdown in the cabinet plant. While the cabinet plant employees left.the plant early, there is no evidence which would indicate that any of them were told they would not be allowed to return later that day and vote, nor is there any evidence that any of them were hindered-or prevented from voting by any of the parties involved herein. Indeed, election records show that 82 of the 154 eligible voters in the cabinet plant cast ballots, as well as 36 of the 44 eligible voters in the plastic plant. Thus, over 50 percent of those employees whose names appeared on the voter eligibility list and who were still working on the date of the runoff election, did, in fact, vote in the election, even though many of the cabinet plant employees found it necessary to either wait at the plant or return to the plant for the afternoon session of the election. The Act makes no provision for a quorum or for the participation of any definite proportion of the eligible em- ployee complement in an election. Ordinarily, the political rule applies and those who do not take the time to vote acquiesce in the choice registered by a majority of those 3 The objections are combined for reporting 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD voting. Absent unusual circumstances, the Board has held that even a 31-percent voter turnout for an election consti- tutes a representative vote. Stiefel Construction Corporation, 65 NLRB 925 (1946). The Board has held that an election should be set aside where the working hours were unilateral- ly altered by the employer on the day of the election with the result that the employees either had to wait after work or come in early in order to vote, Haskett Tool & Manufac- turing Co, 77 NLRB 572 (1948). The same result is reached in cases where the voting polls were closed prior to the agreed time, Repcal Brass Manufacturing Company, 109 NLRB 4 (1954). However, the Board has been careful to point out that disenfranchisement of some eligible voters as a result of the change must affirmatively be shown in such cases in order to warrant a decision to set aside the election. A D Juilliard and Co, 110 NLRB 2197, 2199 (1954) I find the cases relied on by the Employer in its legal statement of position to be inapposite For instance , Yerges Van Liners, Inc., 162 NLRB 1259 (1967); Kit Manufacturing Company, 198 NLRB No. 131 (1971); Bernard Gold and Jack Wasserman, 54 NLRB 869 and 55 NLRB 591 (1944); and S A Kendall, Jr., et al, 41 NLRB 395 (1942), involve two- or three-man units wherein only one employee cast a ballot. The Board has consistently held that the rules with respect to whether a voter turnout is representative are dif- ferent in such small units from those in larger ones Addi- tionally, Alterman-Big Apple, Inc., 116 NLRB 1078 (1956), and Alaskan Glacier Seafood Co, 25 LRRM 1346 (1950), involve situations wherein eligible voters were disenfran- chised as a result of being called away or working away from the polling area during the voting period because of the necessities of performing their normal work duties. The Employer also contends that the use of the August 3, 1973, eligibility date in the runoff election had the resul- tant effect of making the election results even less represen- tative thereby warranting a decision that the election be set aside and another runoff election be conducted . In support of its position, the Employer submits that only 198 of those 305 employees appearing on the original eligibility list were still employed on the date of the runoff election . The Em- ployer states that this difference was caused by the plant's normal turnover rate. The Employer also submits, in fur- therance of its position, that on the runoff election date there was a total of 343 employees in the appropriate unit The Employer's only presently comtemplated expansion will probably occur sometime on or between March and May 1974, and will involve the installation of a fourth cabi- net assembly line and the addition of about 30 employees. Section 102 70(b) of the Board's Rules and Regulations provides as follows "Employees who were elibible to vote in the election and who are in an eligible category on the date of the runoff election shall be eligible to vote in the runoff election " It is true that under the proper circum- stances involving, for instance, a substantial increase in the employee complement or a long period of time following the payroll eligible date used in a prior runoff election, one or more of the parties may request that the payroll eligibility date be changed to a later date. Teletype Corporation, 122 NLRB 1594 (1959); The Interlake Steamship Co, 174 NLRB 308 (1969). Such a request may or may not be granted depending on whether or not, considering all of the factors, such a change in the eligibility date would be unfair to the labor organization which was eliminated in the earlier vote However, even though the Employer in the instant case was aware of the employee turnover in the plant, it did not choose to raise the issue until after the election had been held. While not deciding whether a more recent eligibility date might have been established prior to the runoff elec- tion, the undersigned concludes that a material deviation from the rule set forth in Section 102.70 (b), supra, suggested by the Employer's objections, is not warranted at this time and would not be consistent with good administration of the Act. Cone Brothers Contracting Co, 109 NLRB 483 (1954), Standard Coil Products Co., Inc, 101 NLRB 261 (1952). Therefore, I find that there is no merit to the Employer's contention that the original eligibility date was improper for the runoff election Conclusions In conclusion , I find that a representative number of eligible employees voted in the election and it does not appear that any eligible employee's right to vote was fore- closed by the Employer's decision to excuse the cabinet plant employees early on the day of the election. From the evidence set forth above, the undersigned con- cludes that neither the Employer's nor the Woodworker's objections raise substantial or material issues with respect to the election. Accordingly, the objections are hereby over- ruled. [Certification of Representative omitted from publica- tion.]