Armstrong Cork Co.

National Labor Relations Board - Board Decisions

Sep 14, 1954

109 N.L.R.B. 1341 (N.L.R.B. 1954)

ARMSTRONG CORK COMPANY 1341
ceived the stipulation and no substantial testimony was taken as to Cinquini's
authority.
On the basis of the stipulation I find that Cinquini has authority, in the interest
of the Employer, responsibility to direct employees, and that his exercise of such
authority is not of a merely routine or clerical nature but requires the use of inde-
pendent judgment. I further find that Cinquini is a supervisor within the meaning
of Section 2 (11) of the Act.
III. THE TALLY OF BALLOTS
With the exclusion of even 1 of the challenged ballots from the revised tally, the
Union's 48 votes constitute a clear majority of the valid votes cast in the election.
I find that the Union has received a majority of the valid ballots cast in the
election and that it has been designated and selected as representative for the pur-
poses of collective bargaining by the majority of the employees in the unit found
appropriate in paragraph numbered 4 of the original Decision and Direction of
Election, within the meaning of Section 9 (a) of the Act.
CONCLUSIONS OF LAW
Mario Cinquini, Arthur Flecker, Dominick Franco, Michael Gross, Serverino
Louis Panelli, and Rocco Spadaro are supervisors within the meaning of Section 2
(3) and (11) of the Labor Management Relations Act.
Frank Bilotti is not a supervisor within the meaning of Section 2 (3) and (11)
of the Labor Management Relations Act.
Local 463, International Union of Electrical, Radio and Machine Workers, CIO,
is the exclusive representative for the purposes of collective bargaining of all the
employees in the unit described in the original Decision and Direction of Election
within the meaning of Section 9 (a) of the Labor Management Relations Act.
[Recommendations omitted from publication.]
ARMSTRONG CORK COMPANY and UNITED RUBBER , CORK , LINOLEUM &
PLASTIC WORKERS OF AMERICA, CIO, PETITIONER . Case No. 16-RC-
1491. September 14,1954
Decision and Order Setting Aside Election
On June 30, 1954, pursuant to a stipulation for certification upon
consent election, an election by secret ballot was conducted under the
direction and supervision of the Regional Director of the Sixteenth
Region among the employees in the appropriate unit? Upon comple-
tion of the election, a tally of ballots was issued. The tally shows that,
of approximately 84 eligible voters, 80 cast valid ballots, of which 35
were for and 45 were against the Petitioner. The tally also shows that
there was one void ballot.
The Petitioner timely filed objections to conduct affecting the re-
sults of the election. On July 19, 1954, the Regional Director issued
his report on objections to election, finding, among other things, that
the Employer interfered with the election by its disparate application
of a no-solicitation rule and by its interrogation of certain employees
1 The stipulated unit was composed of all production and maintenance employees at the
Employer's Dallas, Texas, plant, excluding office clerical employees, guards, property main-
tenance man , watchman-floorman , professional employees , and supervisors as defined in
the Act, as amended
109 NLRB No. 190.
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as to their union affiliation, and recommending that the election be
set aside. The Employer thereafter timely filed exceptions to these
findings and recommendations 2
The Regional Director found, and the Employer does not deny,
that about June 8, 1954, the Employer learned that certain of its
employees were soliciting union membership in the plant, and that on
and after,June 9, the Employer forcefully reminded those employees
of its rule prohibiting solicitation during working hours. The Em-
ployer warned the rule violators that individuals who engaged in "any
Union Activity, card signing, or any soliciting on . . . Company
property during paid working hours . . . will be liable to immediate
discharge from the Company." TheRegional Director also found
that a rank-and-file employee, the son of the plant manager, there-
after openly engaged in a campaign against the Union for several days
before the election. Although the Employer knew about this anti-
union campaign, there is nothing in the Regional Director's report,
or in the Employer's exceptions thereto, to show that the Employer
took any action to stop the antiunion conduct. Upon these facts, the
Regional Director, concluded that the no-solicitation rule had been dis-
criminatorily applied, and he recommended setting the election aside.
The Employer excepts to the Regional Director's conclusions and,
in substance, contends : (1) The failure to act against the plant man-
ager's son was not a sufficiently prejudicial nonapplication of the no-
solicitation rule to require setting the election aside; 3 (2) no employee
was, in fact, disciplined for violating the no-solicitation rule; and (3)
the Union condoned any conduct that might constitute antiunion solic-
itation by waiting until after the election before complaining and,
therefore, is now precluded from protesting the conduct of the plant
manager's son . We find no merit in these contentions.
As to contentions 1 and 2, it is clear that the Employer took affirma-
tive and immediate action to prohibit employees campaigning in be-
half of the Union through the discharge threat, and yet permitted the
plant manager's son to campaign actively against the Union. It has
been established that the disparate application of a no-solicitation rule
prevents a free choice of representatives,' and we find this principle
applicable to the circumstances of this case. Furthermore, the fact
that no employee was disciplined because of union activity is of no
significance, as the Employer threatened to discharge employees who
2 No exceptions were filed to the Regional Director's recommendation that the Board
overrule an objection based on an alleged violation of an oral agreement as to voting time.
In the absence of exceptions , we adopt the Regional Director's recommendation concern-
ing this objection.
3 The Employer argues that a distinction should be drawn between "soliciting union
membership" and the "electioneering" engaged in by the plant manager 's son. However,
the Employer has failed to advance any convincing ground for such a distinction ; accord-
ingly, we reject this argument as lacking merit.
4 The Great Atlantic and Pacific Tea Company, 97 NLRB 295.
BUFFALO TOOL & DIE MFG. CO. 1343
had solicited for the Union, yet did nothing with respect to the em-
ployee who actively electioneered against the Union.
As to the Employer's third contention, it is well settled that failure
to lodge a preelection protest is not a waiver of a union's right to have
the Board consider, on the merits, any alleged election interference
which occurs after stipulation for certification on a consent elections e
Accordingly, we find that the Employer's conduct interfered with
the employees' freedom of choice in the selection of a bargaining repre-
sentative, and we shall therefore order that the election be set aside.'
We shall also direct the Regional Director to conduct a new election
at such time as he deems appropriate.
[The Board set aside the election and remanded this proceeding to
the Regional Director for the purpose of conducting a new election.]
CHAIRMAN FARMER and MEMBER MURDOCK took no part in the con-
sideration of the above Decision and Order setting aside election.
5 The Liberal Market, Inc., 108 NLRB 1481 ; The Great Atlantic and Pacific Tea Com-
pany, 101 NLRB 1118.
6In the light of this determination, we find it unnecessary to pass upon any additional
reasons which the Regional Director found for setting the election aside.
PETER HOSTA , JR. & ELEANOR HOSTA D/B/A. BUFFALO TOOL & DIE MFG.
Co. and INTERNATIONAL UNION, UNITED AUTOMOBILE , AIRCRAFT, AND
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL 55, CIO,
PETITIONER . Case No. 3-RC-1394. September 14, 1954
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Robert Corlett, hear-
ing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The parties are in agreement that the production and mainte-
nance unit proposed by the Petitioner is appropriate. However, the
parties are in disagreement as to the inclusion and eligibility to vote
of the following individuals.
109 NLRB No. 179.