Central Photocolor Co.

National Labor Relations Board - Board Decisions

Mar 13, 1972

195 N.L.R.B. 839 (N.L.R.B. 1972)

CENTRAL PHOTOCOLOR CO., INC. 839
Central Photocolor Company, Incorporated and Inter-
national Moulders and Allied Workers ' Union,
AFL-CIO-CLC, Petitioner. Case 10-RC-8728
March 13, 1972
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS FANNING, JENKINS, AND KENNEDY
Pursuant to a Stipulation for Certification Upon
Consent Election, an election by secret ballot was con-
ducted on July 2, 1971, under the direction and super-
vision of the Regional Director for Region 10, among
the employees in the unit agreed upon by the parties.
At the conclusion of the election the parties were fur-
nished with a tally of ballots which showed that of
approximately 46 eligible voters, 45 ballots were cast,
of which 23 were for, and 21 were against, the Peti-
tioner, and 1 ballot was challenged. The challenged
ballot was insufficient in number to affect the results of
the election. Thereafter, the Employer filed timely ob-
jections to conduct affecting the results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations, the Regional Director
conducted an investigation and, on September 10,
1971, issued and duly served on the parties his Report
on Objections, in which he found the objections with-
out merit and recommended that they be overruled.
Thereafter, the Employer filed timely exceptions to the
Regional Director's report, and a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the
meaning of the Act and it will effectuate the purposes
of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of certain employees of the Em-
ployer within the meaning of Section 9(c)(1) and Sec-
tion 2(6) and (7) of the Act,
4. The parties agreed, and we find, that the following
employees constitute a unit appropriate for collective
bargaining within the meaning of the Act:
All production and maintenance employees em-
ployed by the Employer at its Anniston, Alabama,
facility, including all plant clerical employees and
regular part-time employees, but excluding all
office clerical employees, professional employees,
salesmen, route employees, casual employees,
guards and supervisors as defined in the Act.
195 NLRB No. 153
5.' The Board has considered the Regional Director's
report and the Employer's exceptions and brief,' and
hereby adopts the Regional Director's findings and
recommendations.
The Employer excepted to the Regional Director's
finding that no evidence was presented in support of
Objections 7, 9, 14, and 18. We agree with the Em-
ployer that evidence in support of these objections was,
in fact, submitted. We find, however, that this evidence
is the same as the Employer submitted in support of
other objections. The Regional Director considered
such evidence and found it did not support those other
objections. We find that such evidence likewise does not
support Objections 7, 9, 14, and 18.
Contrary to our dissenting colleague, we do not be-
lieve the closeness of the election in this case is a
material factor in determining whether the alleged ob-
jectionable conduct warrants setting the election aside.
That conduct consists, except for Objection 16, of some
alleged threats to two female employees and the spread-
ing of rumors of misconduct and statements that if the
Union won the election it would pressure employees
who had voted against it to join the Union or lose their
jobs. The statements of the Employer's witnesses reveal
that none of the threats or other statements were made
by union agents or were otherwise attributable to the
Union. Under well established precedent, the test to be
applied in determining whether an election will be set
aside on the basis of conduct not attributable to one of
the parties is whether the character of the conduct was
so aggravated as to create a general atmosphere of fear
and reprisal rendering a free expression of choice of
representatives impossible.' The question of whether or
not such an atmosphere existed does not turn on the
election results, but rather upon an analysis of the char-
acter and circumstances of the alleged objectionable
conduct.
We have carefully reviewed the Regional Director's
report and it is apparent that he applied the appropriate
test. We perceive no error in his conclusion that the
alleged threats and communication of rumors of mis-
conduct and predictions of Union pressure did not cre-
ate a general atmosphere of fear and reprisal as to
render a free expression of choice in the election impos-
sible.
With respect to Objection 16 (an alleged threat by a
union official to prevent, by means of mass picketing,
nonunion employees from working if a strike were
called after the Union won the election), the Regional
Director found in effect that the threat, if made, did not
' The Employer's exceptions raise no material issues of fact which war-
rant a hearing
' Happ Manufacturing Company, 124 NLRB 202, Tampa Crown Distri-
bution, Inc., 118 NLRB 1420, Poinsett Lumber and Manufacturing Com-
pany, 116 NLRB 1732; The Falmouth Company, 114 NLRB 896; Diamond
State Poultry Co., Inc., 107 NLRB 3
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coerce employees into voting for the Union. We agree,
for we believe it highly unlikely that employees op-
posed to the Union would be coerced by the statement
into assisting the Union gain representative status, the
stated precondition to its exercise of coercive power.
As the Petitioner has received a majority of the bal-
lots cast in the election, we. shall certify the Petitioner
as the collective -bargaining representative in the unit
found appropriate , above.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for International Moulders and
Allied, Workers' Union, AFL-CIO-CLC, and that,
pursuant to Section 9(a) of the National Labor Rela-
tions Act, as amended , the said labor organization is
the exclusive representative of all the employees in the
unit found appropriate herein , for the purposes of col-
lective bargaining in respect to rates of pay, wages,
hours of employment , or other conditions of employ-
ment.
MEMBER KENNEDY, dissenting:
I disagree with my colleagues ' conclusion that the
Employer's objections , raise no material or substantial
issues affecting the results of the election.
The Regional Director disposed of Objection 16 on
the basis that the Petitioner 's alleged threat to prevent
nonunion employees from working in the event of a
strike "did not relate to events surrounding the election
but rather to some nebulous time in the future after the
election." The threatened action, however, would
clearly be violative of Section 8(b)(1)(A) if it took,place.
Sunset Line and Twine Company, 79 NLRB 1487.
Threats to take such unlawful action would, in my
view, also warrant the setting aside of the election, since
the Petitioner thereby tainted the election atmosphere
and tended to prevent the employees from registering
their free and untrammeled choice in the election.
I likewise cannot agree that various other objections
do not afford a sufficient ground for setting aside the
election. These objections, involve alleged threats to em-
ployees to "take care" of them or make it "very hard"
on them or "whip their ass" or pressure them to.quit
or "get" them or damage their cars or inflict personal
harm on them, unless they voted for the Petitioner. The
threats appear sufficiently widespread to create an at-
mosphere of fear ; a free election thus would be ren-
dered impossible, and it is not material that the threats
cannot be attributed to a party. Poinsett Lumber and
Manufacturing Company, 116 NLRB 1732. I note that
in this case the Petitioner may have won the election by
only one vote (assuming, the pending challenged ballot
was a valid vote against the Petitioner). Thus, the
slightest impact of any coercion would be critical.
I would direct a hearing on the factual issues raised
by the objections, so that the Board could have a com-
plete record on which to ascertain whether or not an
atmosphere of fear was ',created which would warrant
setting aside the Petitioner 's extremely slim election
victory.