Axelson, Inc.

282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Axelson, Inc., subsidiary of U. S. Industries, Inc. and Employees of Axelson, Inc., Petitioner, and International Association of Machinists and Aerospace Workers, Local Lodge No. 1923. Case 16-RD-841 August 15, 1980 DECISION AND DIRECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE 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 determinative chal- lenges in an election held on September 13, 1979,' objections to that election, and the Hearing Offi- cer's report recommending disposition of same. The Board has reviewed the record in light of the exceptions and briefs, and hereby adopts the Hear- ing Officer's findings 2 and recommendations except to the extent inconsistent herewith. In adopting the Hearing Officer's recommenda- tion that the Petitioner's Objection 2 be overruled, we note that the Employer's unlawful restriction on the Petitioner's right to post its literature in cer- tain nonworking areas was at least impliedly direct- ed as much to the Union, the Petitioner's opponent in this decertification election, as it was to the Peti- tioner. 3 Although some of the employees who had supported the Union in the recent strike had been recalled to work, the Union apparently made almost no attempt to post or distribute its literature anywhere on company property. 4 The Petitioner, on the other hand, made full use of the permission it was given to distribute its materials in the cafete- ria areas. The Petitioner never asked the Employer for permission to distribute literature by handing it out to employees in other nonworking areas. Some of its supporters openly engaged in such distribu- tion, however, on the assumption that there was no restriction on such activity. In spite of their un- hampered activity, other supporters of the Petition- er, either assuming that they were restricted or for ' The election was conducted pursuant to a Stipulation for Certifica- tion Upon Consent Election. The tally was 173 for, and 215 against, the Union; there were 67 challenged ballots. 2 The Petitioner has excepted to certain credibility resolutions of the Hearing Officer It is the established policy of the Board not to overrule a hearing officer's credibility resolutions unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incor- rect. The Coca-Cola Bottling Company of Memphis, 132 NLRB 481, 483 (1961); Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no suffi- cient basis for disturbing the credibility resolutions in this case. 3 The Employer's representative was quoted as saying, in denying the- Petitioner's request to use bulletin boards. "If we let you all use the bulle- tin boards, we would have to let everybody use the bulletin boards." ' A supporter of the Petitioner testified that he saw one piece of union literature. It was taped to the bottom of a piece of the Petitioner's litera- ture, attached to a wall in a room used for breaks. 251 NLRB No. 44 other reasons, limited themselves to the cafeterias. Nevertheless, employees received several hundred pieces of the Petitioner's election material at the plant. Thus, although the Petitioner was not afford- ed the scope which the Act prescribes for posting literature, the net effect of this restriction can hardly be said to have disadvantaged it vis-a-vis the Union. Especially where, as here, the Employer conducted its own campaign in support of the Peti- tioner's position and against the Union, the election results are entitled to stand as against a claim that the campaign conditions were unfairly tilted in the Union's favor. Cf. Flat River Glass Co., 234 NLRB 1307 (1978); Willis Shaw Frozen Express, Inc., 209 NLRB 267, 268-269 (1974). There remains for consideration the Hearing Of- ficer's disposition of challenged ballots. We adopt his recommended disposition except with respect to the ballots of nine strikers whom the Employer in- structed its observers to challenge on the ground that their strike misconduct made them ineligible to be recalled to work. 5 The Employer's refusal to recall six of these nine is the subject of a pending unfair labor practice proceeding scheduled for hearing on July 17, 1980. In these circumstances, we think the better practice is to proceed first to a counting of the ballots, other than these nine, the challenges to which we hereby overrule. If these nine ballots are determinative we shall rule on the voters' eligibility guided by the determination in the unfair labor practice cases as to the right to re- instatement of six of them. We need not decide now whether as to those six the results of the unfair labor practice case will be conclusive on the issue of voting eligibility. DIRECTION It is hereby directed that the Regional Director for Region 16 shall, pursuant to the Board's Rules and Regulations, within 10 days of this Decision and Direction, open and count the ballots of the following employees: Otis D. Nichols D. R. Graham E. W. Mapps John Kemp Donny Sapp Bob Lee Schuman I We adopt the Hearing Officer's overruling of the Petitioner's chal- leniges to additional strikers because of alleged strike misconduct who were not designated by the Employer for challenge on that basis We do not rely, in affirming the Hearing Officer as to these challenges. on the fact that the strikers' names were included on the Lxcelsior list In the absence of exceptions we adopt, pro forma, the Hearing O()fficer's findings with respect to the challenged ballot of James Whitman. In adopting his findings with respect to the other voters who were chal- lenged for allegedly abandoning their interest in their prestrike jobs. we do not rely on whether their outside employment was substantially equiv- alent or whether their pay was comparable Finally, the Hearing Officer inadvertently stated that the election was held 4-1/2 months after the election petition was filed. The actual period was 3-1/2 months AXELSON, INC. 283 Donald Brightwell Randal K. Kirbow J. P. Kuykendall W. B. Thompson Claude Porter E. D. Noble R. G. Moore Thurman 0. Haywood Robert Washington Thomas L. Logan Jerry Avant C. W. Harman J. D. Burkett Travis Fried, Jr. Bennie Jackson D. R. Daniel Robert Hayden Raymond Corp Danny C. Reaves Vandy Tex Smith David Martin Steve Snider Bob Parham Kenneth Watson J. E. Ross Craig P. Gilker Michael Hernandez Robert L. Baker Robert Brenner Billy M. Northcut A. R. Aguirre Billy J. McElroy J. L. Hamilton David L. Davidson Eugene Ashley Alvin Chapman C. C. McKee Don McCrede Betty Phillips Billy Skinner A. D. Tuttle Leonard C. Daniel Jack McNeese James Husband Alberto Garcia Richard K. Waters Eddie Fletcher Bobby J. Ballard Danny Perkins Thereafter, he shall prepare and cause to be served on the parties a revised tally of ballots, including therein the count of said ballots. In the event that the revised tally of ballots renders the unresolved challenged ballots cast by William Pegues, William J. Bryant, Kevin Adair, Mack McGregor, C.J. Dorsey, S.L. Curtis, Q. Ray Williams, Carey Rhad- die Hoover, and Jimmy McGrede, nondetermina- tive, the Regional Director shall issue the appropri- ate certification. If the unresolved challenged bal- lots are determinative, the Regional Director shall transfer the proceeding back to the Board for dis- position. AXELSON, IN\C. 283......A.. .........