Burson Plant of the Kendall Co.

National Labor Relations Board - Board Decisions

May 23, 1956

115 N.L.R.B. 1401 (N.L.R.B. 1956)

BURSON PLANT OF THE KENDALL COMPANY 1401
Burson Plant of the Kendall Company and Textile Workers Union
of America, AFL-CIO, Petitioner . Case No. 13-RC-4711. May
23,1956
SUPPLEMENTAL DECISION AND CERTIFICATION
OF REPRESENTATIVES
On December 29, 1955, pursuant to a Decision and Direction of
Election issued in the above-entitled proceeding on December 12,
1955,1 an election by secret ballot was conducted under the direction
and supervision of the Regional Director for the Thirteenth Region,
among the employees in the unit heretofore found appropriate. Upon
the conclusion of the election, a tally of ballots was furnished the
parties. The tally shows that of approximately 268 eligible voters,
248 cast ballots of which 122 were for the Petitioner, 113 were against
the Petitioner, 13 were challenged, and none were void. The chal-
lenged ballots were sufficient in number to affect the results of the
election.
Thereafter, the Employer and the Petitioner filed timely objections
to the election. The Regional Director investigated the objections 2
and on February 29, 1956, issued and duly served upon the parties
a report on challenges and objections to election in which he recom-
mended that the challenges to five ballots be sustained and that the
Employer's objections be overruled. As the parties have agreed that
the five ballots were not cast by eligible voters, and as no exceptions
have been filed to the Regional Director's recommendation in this
respect, we hereby adopt his recommendation concerning these chal-
lenges. The remaining challenged ballots are insufficient to affect
the results of the election.
On March 9, 1956, the Employer filed timely exceptions to the
Regional Director's report on objections. In its objections and ex-
ceptions the Employer asserts in substance that : (1) union agents
electioneered, handed out literature and talked to employees at plant
entrances, at the parking lot, and at other places on the Company's
property near the polling place while the polls were open; (2) union
agents on election day stationed themselves on company property so
that employees coming to work were "captives" and were required to
listen to their electioneering remarks; (3) the Union coerced the em-
ployees by promising a wage increase in a handbill distributed on
company property while the polls were open; and (4) a union observer
at the election ( a) electioneered, (b) argued concerning the election,
I Not reported in printed volumes of Board Decisions and Orders.
2 During the Investigation the Petitioner Informed the Regional Office that it desired
to withdraw its objections.
115 NLRB No. 222.
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) kept a list of those who had and had not voted, and (d) gave
help to a voter.
The Board having considered the objections, the Regional Direc-
tor's report, the exceptions, and the entire record in the case, hereby
adopts the Regional Director's findings, conclusions, and recom-
mendations.
As to the Employer's objections Nos. 1 and 2, it does not appear
to be disputed that the polling place was located on the second floor
of the plant, a distance of 80 to 150 feet from various plant entrances.
We agree with the Regional Director's conclusion that the electioneer-
ing and distribution of literature, which took place at the plant en-
trances, even though it may have been on premises belonging to.the
Company, was not near the polling place 3 The Regional Director
further reports that one witness stated that some of the employees had
to walk around the union representatives in order to enter the plant.
Other than this, which we do not believe is in and of itself sufficient
to justify setting aside the election, evidence is lacking to establish
that the Union engaged in conduct constituting interference, intimida-
tion, or coercion.
The Employer's objection No. 3 is based upon a statement in a hand-
bill distributed by the Petitioner saying, "I state again : we will get
Bike-Web and Bauer and Black wages and conditions for you at
Burson's without a strike. . . ." The Employer asserts that this is
a promise which coerced the employees and thus interfered with the
election. The Board has frequently held, however, that a union's
promises of wage increases and other benefits to employees if they
designate the union as representative in an election fall within the
category of customary and legally unobjectionable preelection propa-
ganda usually used by unions in an organizational campaign 4 For
this reason we find no merit in this objection s
8 See Higgins, Inc., 106 NLRB 845 at -846; Allen-Morrison Sign Company, 104 NLRB
1063; Linde Air Products Division, Union Carbide and Carbon Corporation, 94 NLRB 640.
' Higgins, Inc., supra , footnote 2; Shirlington Supermarket, Inc., et al., 106 NLRB 666
at 667 ; Blue Banner Laundry A Cleaners, 100 NLRB 2 at 8; Trinity Steel Company, Inc.,
97 NLRB 1486 at 1487.
S The Regional Director reported that after the time for filing exceptions had passed,
the Employer directed a letter to the Regional Office setting forth evidence in support of
its objections already filed, and adding a list of alleged "false statements deliberately and
maliciously made" which it advanced as a "backdrop " to its allegation that the Union had
interfered with the election by making a "promise of reward ." The Regional Director
treated this list of statements as in effect additional objections untimely filed and made
no recommendations concerning them. In its exceptions the Employer does not contest
the finding that this material was not timely filed as objections , but reasserts its position
that the matters involved are background evidence which support its contention that the
Union's promise , above described , to get the employees a wage increase interfered with
the election . We agree with the Regional Director that these matters , regarded as new
and additional objections , were not timely filed . Even assuming, however , that such addi-
tional matters are properly before us as background material , we find that they do not
render improper the Union 's promise to obtain a wage increase , nor justify setting aside
the election on that ground.
BURSON PLANT OF THE KENDALL COMPANY 1403
As to the Employer's objection No. 4, the Regional Director's factual
findings, which are not essentially disputed by the Employer, dis-
close that a union observer, after having been replaced by an alternate
at 3 p. m., returned to her plant department where she persuaded a
clerical employee to cast a vote and, after the close of the shift at
3: 30 p. m., accompanied this voter to the polls where the voter cast
a challenged ballot.6 The Regional Director also reported that during
her tour of duty at the polls, this union observer engaged in a discus-
sion or dispute with the Employer's observer as to the eligibility of
a clerical employee,? which was ended by the Board agent's advice
that in case of doubt a ballot would be cast subject to challenge; and
that during her tour of duty she had in her possession a piece of paper
containing not more than 12 names of employees whom she intended
to challenge.
We agree with the Regional Director that none of the union ob-
server's actions set forth above are grounds for setting aside the elec-
tion. Her solicitation of a clerical employee to go to the polls and
vote did not take place during the period of her actual service as an
election observer. There is no indication that her discussion of an
employee's eligibility with the Employer's observer at the polls in-
volved any element of coercion or interference. As to the keeping of a
list of voters, Board-election practice is not to permit the keeping of a
list of those who have and have not voted, other than the official
eligibility list secured by the Board agent for use in the election.8
However, there is no such prohibition against retention, by the ob-
server for one of the parties to the election, of a list of prospective
voters whose ballots he desires to challenge," such as the list retained
by the union observer here.
We hereby overrule the objections. As the Petitioner has secured
a majority of the valid votes cast in the election, we shall certify it
as the exclusive bargaining representative of the employees in the
appropriate unit.
[The Board certified Textile Workers Union of America, AFL-
CIO, as the designated collective-bargaining representative of the em-
ployees, in the unit heretofore found appropriate.]
8 We further note that, as set forth above, the parties' agreement that certain chal-
lenged ballots were cast by ineligible voters has rendered it unnecessary to open and
count any of the ballots which were challenged.
4 The Employer's exceptions indicate that this was the clerical employee above dis-
cussed who subsequently cast a challenged ballot.
8 Milwaukee Cheese Company, 112 NLRB 1383.
9 Bear Creek Orchards, 90 NLRB 286.