Southeastern Mills, Inc.

SOUTHEASTERN MILLS 57 Southeastern Mills, Inc. and Bakery & Confectionery Workers' Union Local 25, AFL-CIO, Petitioner. Case 10-RC-10658 December 7, 1976 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO Pursuant to a Stipulation for Certification Upon Consent Election approved April 27, 1976, an elec- tion by secret ballot was conducted in this proceeding on May 21 under the direction and supervision of the Regional Director for Region 10. Upon nclusion of the balloting, the parties were furnished a tally of ballots which showed that of approximately 58 eligible voters 29 cast valid votes for, and 25 cast valid votes against, the Petitioner. There were three chal- lenged ballots and no void ballots. The challenged ballots were insufficient in number to affect the results of the election. The Employer filed timely objections, and a copy thereof was duly served on the Petitioner. In accordance with the Rules and Regulations of the National Labor Relations Board, Section 102.69, the Regional Director conducted an investigation of the objections. The Report on Objections, issued and served on the parties on August 5, 1976, found Objections 1, 2, 3, and 7 to be without merit, but found Objections 4, 5, and 6 to raise substantial and material issues affecting the election and recommend- ed that they be sustained and a second election directed. Thereafter, the Petitioner 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 National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board fords: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assertjurisdiction 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 employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. i The Employer's answering bnef and motion, which was postmarked in Atlanta on September 1 and was not received until after the September 1 deadline, was rejected by the Board as untimely filed In its motion for reconsideration of the Board's rejection, and the Employer argued that it was reasonable to assume that placing the bnef and motion in the mail on the afternoon of August 31 would assure its delivery to the National Labor 227 NLRB No. 13 4. The parties stipulated, and we find, that all production and maintenance employees employed by the Employer at its Rome, Georgia, facility, including all shipping and receiving employees and truckdri- vers, but excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. The Board has considered the entire record in this proceeding, including the Regional Director's report and the exceptions, and, contrary to the Regional Director, overrules Employer's Objections 4, 5, and 6, which allege that union agents engaged in electioneering in the polling area.2 The election was conducted inside the Employer's plant in a laboratory with two doors, one opening directly into the laboratory from the plant and the other opening out from the laboratory to a bag storage room. The parties had planned that employ- ees would enter the laboratory directly from the plant, vote, and then exit into the bag storage room. The bag storage room thus was not designated as a "no-electioneering" zone before the election. Con- trary to the plan, however, the bulk of the voters chose both to enter and to exit the poll through the bag storage area. Since only a few employees could be admitted to the poll at a time, a number of them congregated in the bag storage room. The Employer contends that union agents engaged in electioneering while employees were in line waiting to vote. The Regional Director's investigation reveal- ed that the alleged electioneering was by an employ- ee, Johnny Powell, but did not uncover any evidence that Powell was an agent whose conduct could be attributed to the Union. Nonetheless, the Regional Director found that Powell had engaged in election- eering and that, although the bag room had not been established as a no-electioneering area, Powell's conduct had interfered with the election. In support he relied on Claussen Baking Company, 134 NLRB 111 (1961), in which the Board noted its zeal in protecting the conduct of elections. In Claussen the Board found that a prolonged antiunion discussion between a leadman and several new employees within 15 feet of the poll which was stopped only by intervention of the Board agent required that the election be set aside. The conduct which the Regional Director found objectionable in the instant case consisted of employ- ee Powell sitting in the bag storage room and, as Relations Board office in Washington, D.C., the next day, and that the Employer has therefore substantially complied with the National Labor Relations Board Rules and Regulations. We find this position to be without merit and deny the Employer's motion for reconsideration. 2 In the absence of exceptions, we adopt the Regional Director's report overruling Employer's Objections 1, 2, 3, and 7 pro forma. 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees exited the polls, loudly attempting to predict which way they had voted or stating that he hoped they had voted right - that is, for the Union. Powell remained in the bag storage area for about 20 minutes, during which time a substantial number of employees were waiting in line to vote. At the end of that time, the Board agent asked that the bag storage room be cleared of all except those who had not yet voted, and Powell promptly complied with that request. The Regional Director's investigation reveal- ed conflicting evidence as to whether Powell told any employees to vote for the Union. However, taking the evidence in the light most favorable to the Employer, we find that Powell's conduct did not interfere with the result of the election. In cases involving electioneering by nonparties at or near the polls, the Board considers the circum- stances peculiar to the situation and determines whether the conduct at issue so substantially im- paired the employees' exercise of free choice as to require that the election be set aside. Glacier Packing Co., Inc., 210 NLRB 571 (1974). For example, the Board sustained an objection to an election where an employee engaged in electioneering in an established "no-electioneering" zone in defiance of repeated requests by the Board agent to leave the area. Star Expansion Industries Corporation, 170 NLRB 364 (1968). On the other hand, peaceful, orderly, pro- union picketing near the polls in an area that was not designated as a "no-electioneering" area has been found not to preclude a free and fair election. Sewanee Coal Operators' Association Inc., 146 NLRB 1145 (1964). The factors which made the conduct of the leadman objectionable in Claussen are not present in the instant case. Employee Powell did not engage in sustained electioneering with any employee; at most, he made brief prounion remarks. The employees to whom he directed his comments were not newly hired, and there were no union agents or representa- tives present in the room. Moreover, the bag storage area had not previously been designated as a "no- electioneering" zone, and Powell did not resist the Board agent's attempt to clear the room. In the circumstances, we find that Powell's electioneering did not substantially impair the voters' right to a free choice in the election. As the tally of ballots shows that the Petitioner has received a majority of the valid ballots -cast, we shall certify it as the collective-bargaining representative 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 Bakery & Confectionery Workers' Union Local 25, 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 purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or, other conditions of employment.