Thermalloy Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thermalloy Corp. and Local 143, Office, Service and Allied Workers Union, Office and Professional Employees International Union, Petitioner. Case 29-RC-3749 November 14, 1977 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Pursuant to a Stipulation for Certification Upon Consent Election executed by the parties and approved by the Regional Director for Region 29 of the National Labor Relations Board on March 14, 1977, an election by secret ballot was conducted on March 25, 1977, under the direction and supervision of the Regional Director. After the election, the parties were furnished a tally of ballots which showed that, of approximately 33 eligible voters, all cast ballots, of which 17 were for, and 16 against, the Petitioner. Thereafter, the Employer filed timely objections to conduct affecting the result of the election. In accordance with National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director conducted an investigation and, on July 8, 1977, issued and duly served on the parties his report on the objections and a notice of hearing. He recommended that several objections be overruled and he ordered a hearing on two other objections. Thereafter, the Employer filed timely exceptions to the Regional Director's report. 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 this proceeding to a three-member panel. Upon the entire record in this case, the Board finds: I. 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 labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of the employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: 'In view of our disposition of this case we do not find it necessary to address the Employer's remaining objections. 233 NLRB No. 73 All production and maintenance employees in- cluding shipping, receiving, and warehouse em- ployees employed by the Employer at 131 Albany Avenue and at 39 Hanse Avenue, Freeport, New York, excluding office clerical employees, guards and supervisors as defined in the Act. 5. The Board has considered the Regional Direc- tor's report and the Employer's exceptions thereto, and hereby adopts the Regional Director's findings and recommendations only to the extent consistent herewith. In overruling the Employer's first two objections, the Regional Director concluded that under the circumstances of this case the failure of the Board's Regional Office to supply more than one Spanish and two English election notices was not cause to set aside the election. We disagree for the reasons given below.1 Five of the employees in this unit worked in the Hanse Avenue building and 28 worked in the main Albany Avenue building. The buildings are not within walking distance of each other. There were Spanish-speaking employees at both locations. The Regional Office mailed eight English and eight Spanish notices 1 week prior to the election but they never arrived. The Region, at the request of the Employer, hand-delivered two English notices and one Spanish notice 3 days before the election. All three notices were appropriately posted for 2-1/2 days prior to the election in the Albany Avenue building where the majority of the employees worked. There were no notices, in any language or at any time, posted in the Hanse Avenue location. The Regional Director concluded that this deficiency was cured because the Hanse Avenue foreman advised his entire work force, in both English and Spanish, of the election date and the voting procedures. The Employer does not agree that such a meeting ever took place. Even if it did, it seems clear that this is an inadequate substitute for an official Board notice of employee rights. The Regional Director also overruled this objection because all eligible employees voted. This finding is contrary to the Board's decision in Kilgore Corpora- tion, 203 NLRB 118 (1973), where it held that even a large percentage turnout is not dispositive of the issue, since the official election notices contain important information with respect to the rights of employees under the Act. There is no question of fault on the part of the Employer. In this situation there was no way to post both Spanish and English notices in both locations. 428 THERMALLOY CORP. The Regional Director found evidence that perhaps some, but not all, of the Hanse employees might have seen the notices while attending a meeting at the Albany Avenue building the day before the election. Other than that opportunity, the only time all of the Hanse employees could have seen any notice was the morning of the election just before they voted. This case falls squarely within the holding of Kilgore in that the posting failed to give all the employees sufficient advance official notice of the election and thus the laboratory conditions for holding a fair election were not met. One of the reasons for advance notice is to assure employees of time for reflection, and an understand- ing of the public and protected character of their voting, or of not voting if they so choose. The inadequacy of the notice posting here prevented this. Accordingly, we shall reverse the Regional Director's order for a hearing. We conclude that in these circumstances it will effectuate the policies of the Act to direct another election. ORDER It is hereby ordered that the election conducted herein on March 25, 1977, be, and it hereby is, set aside. [Direction of Second Election and Excelsior foot- note omitted from publication.] MEMBER PENELLO, dissenting: In agreement with the Regional Director, I would overrule each of the Employer's objections, except that I would hold a hearing on Objections 2 and 5. Unlike the majority, I would not rerun this election on the ground that the posting of election notices was inadequate. The election was held among production and maintenance employees of the Employer who worked at its Albany Avenue and Hanse Avenue locations in Freeport, New York. A week before the election, the Regional Office mailed eight English and eight Spanish notices to the Employer for posting. However, the notices never arrived. There- fore, at the Employer's request, the Regional Office hand-delivered two English notices and one Spanish notice to the Employer 3 days before the election. These notices were posted in the Employer's Albany Avenue building for 2-1/2 days prior to the election. Of the 33 eligible voters, 28 worked at the Albany Avenue location and were thus fully informed of the pertinent details regarding the election by means of this posting. No notices were posted at the Hanse Avenue building, where only 5 of the 33 employees qualified to vote in the election worked. However these 5 employees, along with the 28 persons employed at the Albany Avenue building, actually voted in the election. Thus, insofar as the purpose of posting an election notice is to inform employees of the time and place of the election, this goal was achieved. See my dissenting opinion in Kilgore Corporation, 203 NLRB 118 (1973). 429