Bonita Ribbon Mills and Brewton Weaving Co.

National Labor Relations Board - Board Decisions

Dec 16, 1949

87 N.L.R.B. 1115 (N.L.R.B. 1949)

In the Matter of BONITA RIBBON MILLS AND BREwTON WEAVING COM-
PANY, EMPLOYERS and TINY MAE SHOEMAKER , PETITIONER and
TEXTILE WORKERS UNION OF AMERICA , C. I. 0., UNION
Case No. 15-RD-3
SUPPLEMENTAL DECISION
ORDER
AND
SECOND DIRECTION OF ELECTION
December 16,1949
On November 19, 1948, pursuant to a Decision and Direction of
Elections 1 issued by the Board on October 20, 1948, separate decerti-
fication elections by -secret ballot were conducted under the direction
and supervision of the Regional Director for the Fifteenth Region
among the employees of Bonita Ribbon Mills (herein called Bonita)
and the employees of Brewton Weaving Company (herein called
Brewton) in the units found appropriate in the Decision. Upon the
coliclusion of the elections, a separate Tally of Ballots with respect
to each election was furnished the parties.2 The Tally with
respect to the election among the employees of Bonita reflected that
56 votes were cast for the Union, 77 against the Union, and there
were 18 challenged ballots.
Thereafter, the Union filed timely objections to the conduct of
the election and to conduct affecting the results'of the election among
the employees of Bonita. Thereupon, in accordance with the Board's
Rules and Regulations, the Regional Director conducted an investi-
gation and, on March 31, 1949, issued and duly served upon the parties
his Report on Objections, in which he found that the objections did
not raise substantial or material issues with respect to the election,
and recommended that they be overruled. The Union filed timely
exceptions to the Regional Director's Report on Objections.
179 NLRB 1462.
2 Under date of April 21, 1949, the Union was certified , on the basis of the Tally, as the
collective bargaining representative of the employees of Brewton.
87 NLRB No . 147. 1115
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 21, 1949, the Board, having clul5' considered the matter,
issued an Order a remanding this proceeding to the Regional Director
for further hearing with respect to certain substantial and material
issues of fact raised by the Union's objections and exceptions. Such
further hearing was held on June 3, 1949, before Robert B. Stark,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error, and are hereby affirmed.4
On August 16, 1949, the Board, having further duly considered
the matter, issued an Order again remanding this proceeding to the
Regional Director for the purpose of conducting an investigation of
the 18 challenged ballots. Pursuant to said Order, the Regional
Director conducted such an investigation and issued and duly served
upon the parties his Report on Challenged Ballots. In his Report,
the Regional Director recommended that the challenges to the ballots
of 5 voters be sustained and the challenges to the ballots of 4 voters
be overruled; he made no recommendation regarding the disposition
of the remaining 9 challenged ballots. No timely exceptions have
been filed to the Regional Director's Report on Challenged Ballots.
Upon the entire record in this case, the Board makes the following:
SUPI'LEIIENTAL FINDINGS OF FACT
The Union objected, inter alia, to the conduct of the election, on
the ground that, by closing the polls 45 minutes before the time
specified in' the official notice of election, the temporary election
examiner deprived certain persons of the right to vote, that these
persons were allegedly employees of Bonita eligible to vote in the
election, and that they are sufficient in number to affect the results
of the election.
Prior to September 3, 1948, Bonita had been operating three shifts.
On September 3, 1948, Bonita discontinued the third shift, for eco-
nomic reasons, and laid off approximately 76 employees. At pre-
election conferences among the parties, and in correspondence to the
Regional Director, the Union contended that these employees were
temporarily laid off, and hence eligible to vote in the election. Bonita
contended, on the other hand, that these employees. were ineligible
to vote.
3 The Board ' s records establish , contrary to the contention of the Union , that the Union
was served with a copy of this Order , by registered mail, on April 22, 1949.
4 In view of our findings , we deem it unnecessary to pass upon the propriety of the hearing
officer 's rulings excluding certain evidence offered by the Union.
5 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
((Chairman Herzog and Members Houston and Gray].
BONITA RIBBON MILLS 1117
Prior to the opening of the polls, Bonita furnished the temporary
election examiner with a list of eligible voters; the names of the laid-
off employees were not included on this list. The Union's representa-
tive had previously requested that Bonita furnish the Union and/or
the Board with a list of the laid-off employees ; Bonita, however,
refused. The Union's, representative nevertheless advised the tem-
porary election examiner that the laid-off employees would vote in
the election.
The official election notice specified that the polls would remain
open until 4: 30 p. m., on November 19, 1948. It is undisputed that :
(1) the temporary election examiner closed the polls 45 minutes be-
fore the closing time specified in the notice of election, at a time when
all employees on the list furnished by Bonita had voted, for the as-
serted reason that "all eligible" employees had voted; (2) the Union's
representative immediately, but unsuccessfully, objected to the pre-
mature closing of the polls, on the ground that laid-off employees not
on the eligibility list, although allegedly eligible to vote, had not yet,
voted; (3) subsequent to the actual closing, but before the official clos-
ing time, 4 laid-off employees presented themselves at the polls, but
were unable to vote because the polls were closed; and (4) 9 laid-off
employees had voted under challenge before the polls were closed.
It does not appear from the record that any of the remaining laid-off
employees attempted to vote.
In his Report on Objections, tine Regional Director found that the
temporary election examiner erred in prematurely closing the polls.
He concluded, however, that the laid-off employees were ineligible
to vote and, accordingly, that the error was not prejudicial. On the
other hand, the Union contends that the error was prejudicial, not
only because the laid-off employees who attempted to vote, after
the polls were closed, were eligible, but also because other laid-off
employees were dissuaded from attempting to vote by the action of
Bonita in refusing to furnish a list of the laid-off employees, by the
temporary election examiner's acquiescence in such action, and by the
premature closing of the polls, over the protest of the Union. The
Union asserts that the laid-off employees who resided in the small
community of Brewton, Alabama, quickly learned of these actions
'and', in view of the participation of the temporary election examiner
therein, believed that the Board itself had decided they were ineligible
to vote.
'We are of the opinion that, under the circumstances of this case,
the temporary election examiner committed prejudicial error when
`lie„prematurely closed the polls over the repeated objections. of the
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union. We do not consider that it was incumbent upon the Union
to establish that any of the allegedly eligible laid-off employees were,
in fact, prevented from voting by the premature closing of the polls.'
It is sufficient that one of the parties had contended that the laid-
off employees were eligible to vote, that the number of laid-off em-
ployees who had not voted at the time the polls were closed .was suffi-
cient to affect the results of the election, and that one of the parties
had apprised the temporary election examiner that such allegedly
eligible employees had not voted and had, on that basis, objected
to the premature closing of the polls.
As the Board said in the General Shoe case :
In election proceedings, it is the Board's function to provide a
laboratory in which an experiment may be conducted, under con-
ditions as nearly ideal as possible, to determine the uninhibited
desires of the employees. It is our duty to establish these con-
ditions; it is also our duty to determine whether they have been
fulfilled. When, in the rare extreme case, the standard drops
too low, because of our fault or that of others, the requisite lab-
oratory conditions are not present and the experiment must be
conducted over again.
The requisite laboratory conditions are not present here and the
voting must be conducted again. Accordingly, we shall set the elec-
tion aside and shall 'direct an immediate second election 8
ORDER
IT IS HEREBY ORDERED that the election conducted on November 19,
1948, among the employees of Bonita Ribbon Mills, Brewton, Ala-
bama, be, and it hereby is, set aside.
SECOND DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with Bonita Ribbon Mills, Brewton,
Alabama, an election by secret ballot shall be conducted as early
as possible, but not later than 30 days from the date of this Direc-
tion, under the direction and supervision of the Regional Director for
8 See Stern Brothers , 87 NLRB No. 10 , in which the Board set aside an election , in part
on the basis of statements of one of the parties that the election was over, although in fact
the polls had not yet closed, "even in the absence of direct proof that it resulted in keeping
any employees from the polls."
4 General Shoe Corporation, 77 NLRB 124, 127.
8 In view of our-disposition of the case, we deem it unnecessary to pass upon either the
Union's other objections and exceptions, or the Regional Director 's Report on Challenged
Ballots.
BONITA RIBBON MILLS 1119
the Region in which this case was heard, and subject to Sections 203.61
and 203.62 of National Labor Relations Board Rules and Regula-
tions, among the employees of Bonita Ribbon Mills in the unit here-
tofore found appropriate, who were employed during the pay-roll
period immediately preceding the date of this Second Direction of
Election, including employees who did not work during said pay-roll
period because they were ill or on vacation or temporarily laid off,.
but excluding those employees who have since quit or been discharged
for cause and have not been rehired or reinstated prior to the date of
the election, and also excluding employees on strike who are not en-
titled to reinstatement, to determine whether or not they desire to be
represented, for purposes of collective bargaining, by Textile Workers
Union of America, C. I. 0.