Congoleum Industries

108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Congoleum Industries, Carpet Division and United Paperworkers International Union, AFL-CIO, Petitioner. Case 16-RC-7160 December 7, 1976 DECISION AND DIRECTION OF SECOND ELECTION _ BY MEMBERS FANNING, JENKINS, AND PENELLO Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the National Labor Relations Act, as amended, a three- member panel has considered the objections to an election held on May 6, 1976,1 and the Regional Director's report recommending disposition of same. The Board has reviewed the record in light of the exceptions and brief, and hereby adopts the Regional Director's findings and recommendations. For the reason set forth in Kilgore Corporation, 203 NLRB 118 (1973), in which our colleague also dissented, we again reject his position and find that late posting of the Board's election notice warrants setting aside the election herein. In fact our colleague adds nothing to the arguments he relied on in Kilgore. Here our colleague points out that 97 percent of the employees voted; yet in Kilgore close to 100 percent of the employees voted. Likewise here the dissent points out that over 50 percent of the employees had participated in past Board elections; but that was also true in Kilgore where over 75 percent had participat- ed. The Regional Director sent the notices of election to the Employer on April 27, 1976, and directed that they be posted. The Employer chose not to post the notices until May 4, 1976, although the election was scheduled for 7:15 a.m. on May 6, 1976. Our colleague contends that there is no showing that the Employer was not acting in good faith in the manner in which the notices were posted or that it committed unfair labor practices. The simple answer is that there is also no evidence that the Employer was acting in good faith; good faith or lack thereof is really not in issue. As we stated in Kilgore: If the Board is to have a notice-posting require- ment, it should be observed with some degree of seriousness. The Employer here offered no excuse for its last-minute posting. For us to ignore the Employer's action (or, more accurately, inaction) would encourage other employers to do the same. In Kilgore, we additionally pointed out the impor- tance of the notices since they also contain important information with respect to the rights of employees under the Act. Likewise the notice contains the unit description about which employees may have ques- tions concerning their own eligibility. Such questions can be cleared up before the election provided the employees have time to do so. Finally, we, unlike our colleague, are not prepared to dismiss as speculative the Regional Director's statement that there might have been cause for confusion by the withdrawal of the Intervenor, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO-CLC, from the election just prior to the Regional Director's forwarding of the notices and that the notices might have dispelled any confusion by prompt posting since they showed only the Petitioner was to be on the ballot. [Direction of Second Election omitted from publi- cation.12 MEMBER PENELLO, dissenting: For the reasons set forth in the dissent in which I participated in Kilgore Corporation, 203 NLRB 118 (1973), enforcement denied 510 F.2d 1165 (C.A. 6, 1975), and below, I am unable to agree with my colleagues that the Employer's posting of the Board election notice in this case, almost 2 full days before the election, was inadequate and destroyed the laboratory conditions for holding a fair election. The Board has never established a rule specifying the time before an election when notices must be posted, or the exact place where the notices must be posted.3 Moreover, the burden is on the party filing objections to an election to establish that the election was not fairly conducted. The Employer does not have the burden before the Board of proving that the election was fairly conducted.4 In my view the burden of showing that the conduct objected to affected the results of the election has not been met by the Union herein. The facts are as follows. On May 3, 1976, the Employer's supervisors circulated among the employ- ees with copies of the sample ballot taken from the notice of election telling them how to mark the ballot to vote for or against the Petitioner. On May 4, some 40 hours before the scheduled election on May 6, the Employer posted the four election notices in the plant. The tally of ballots showed that 241 of the approximately 249 eligible voters voted in the elec- tion. In other words, 97 percent of the eligible employees voted. The election resulted in 153 votes I The election was conducted pursuant to a Stipulation for Certification 3 See 129 CFR sec. # 101 . 19 (a)(1); Pegwill Packing Co., 115 NLRB 1151 Upon Consent Election The tally was 87 for, and 153 against, the Petitioner, (1956); United States Gypsum Company, 70 NLRB 1322 (1946); Proximity there was I challenged ballot, an insufficient number to affect the results Print Works, et al, 11 NLRB 379 (1939). 2 [Excelsior footnote omitted from publication.] 4 N L.R B. v. Mattison Machine Works, 365 U.S. 123 ( 1961). 227 NLRB No. 22 CONGOLEUM INDUSTRIES, CARPET DIVISION 109 against the Union and 87 votes for the Union, with I challenged ballot. The Union has not disputed the Employer's asser- tion that the four notices were posted in four conspicuous locations, i.e., at timeclocks and in the employee lunchroom, throughout the building where all the unit employees were located, or that the day- shift employees had at a minimum at least 8 opportu- nities to view the notice and the afternoon and night- shift employees, had 10 opportunities to see the notice. Furthermore, there is no evidence that the Employer was not acting in good faith in the manner in which it posted the notices, that it deliberately obstructed the posted notices, or that it committed any unfair labor practices. In addition, there is no evidence that the employees were not familiar with the long-established rights of labor which are con- tained in the Board's election notice. In this regard, the Union does not question the Employer's state- ment that more than half of the employees who voted in the election on May 6 had voted in at least I of the 3 previous elections held in the plant since it began operations in 1969, and, in fact, 112 of the employees had voted in 2 or more elections. 5 Kilgore, supra at 120. 6 The Regional Director's conclusion that the fact that an intervening union had withdrawn from the election created a "cause for confusion" is completely speculative, as there is no evidence that there existed any confusion on the part of the employees. Moreover, the Union does not dispute the Employer's assertion that the sample ballot as posted in the election notice or,as brought around to each employee by the Employer's supervisors showed that the employees only had a choice of the Petitioner or no union. Finally, and very significantly, there is no evidence suggesting that the employees could not understand the notice or that other more desirable places for posting existed. Indeed, it would seem the employees were well aware of the election as evidenced by the 97-percent turnout in a unit of 249 eligible voters. As was stated in the dissent in Kilgore, supra: While we acknowledge that the number of partici- pants does not establish their awareness of all issues, we require some, evidence to justify an inference they were unaware; we cannot agree that the Employer has the burden of showing that they did know what was involved.5 Accordingly, given the. 97-percent participation in the election in the present case, the absence of any basis for concluding that the employees did not have ample opportunity to read the notice, the lack of any evidence for inferring that there might have been any misunderstanding6 or lack of comprehension among the employees, and the fact that there is no showing that any employee was foreclosed from voting because of the failure to post the official notices earlier, I would find no interference with the conduct of the election and would certify the results.7 7 Although I dissented in Kilgore, supra, I note that this case is much stronger as there only one notice was posted I day before the election in a voting unit where employees worked in many buildings throughout the employer's premises. In the present case it is not disputed that all employees work in one building, four notices were posted in various conspicuous places throughout the plant, and the notices were posted almost 2 full days before the election