Custom Molders of P.R.

National Labor Relations Board - Board Decisions

Sep 23, 1958

121 N.L.R.B. 1007 (N.L.R.B. 1958)

CUSTOM MOLDERS OF P R 1007
-which the issue arises and to all pending cases in whatever stage is
traditional and, we believe, the wiser course to follow Accordingly,
we deny the Petitioner's request that any revised policy not be applied
to the instant case
In view of the foregoing, and particularly our finding that the peti-
tion was filed after the contract was amended, we find that the con-
tract for the period January 10, 1958, to March 31, 1959, constitutes_a
bar to this proceeding Therefore, we find that no question affecting
commerce exists concerning the representation of employees of the
Employer within the meaning of Section 9 (c) (1) and Section 2 (6)
and (7) of the Act Accordingly, we shall dismiss the petition filed
herein
[The Board dismissed the petition.]
Custom Molders of P. R . and Shaw-Harrison Corporation, Peti-
tioner and United Rubber, Cork, Linoleum and Plastic Workers
of America, AFL-CIO. Case No 24--RM-50 September 23,1958
DECISION AND DIRECTION OF SECOND ELECTION
Pursuant to a stipulation for certification upon consent election
entered into by the parties on March 20, 1958, an election by secret
ballot was conducted on April 3, 1958, under the direction and super-
vision of the Regional Director for the Twenty-fourth Region, among
employees in the appropriate unit as set forth in said stipulation
Upon the conclusion of the election, each of the parties was served
with a tally of ballots which showed that of approximately 322 eligible
voters, 291 cast ballots, of which 42 were for and 227 were against the
Union Nineteen ballots were challenged, a number insufficient to
affect the results of the election Three void ballots were cast
On, April 10, 1958, the Union filed timely objections-to the conduct
of the election On July 2, 1958, the Regional Director, after investi-
gation, issued his report and recommendations on objections to elec-
tion, recommending that the objections be overruled, but that the
election be set aside because of the Employer's violation of the Board's
Allied Electric Products rule 1 On July 21,1958, the Employer filed
timely exceptions to the Regional Director's report
The Board has considered the objections of the Union, the Regional
Director's report,' the Employer's exceptions, and the entire record
in the case, and finds
'Allied Electric Products, Inc, 109 NLRB 1270
2 As no exceptions have been, taken to the Regional Director's recommendations over
ruling the Union's objections to the' conduct of the election , those recommendations are
hereby adopted
121NLRRNo 130
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The Employer is engaged in commerce within the meaning of
Section 2 (6) of the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The following employees of the Employer constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act: All production and maintenance
employees excluding office, clerical, professional, executive, and ad-
ministrative employees, watchmen, and supervisors as defined in the
Act.
5. Pursuant to his investigation of the Union's objections to the
conduct of the election, the Regional Director discovered that the
Employer, prior to the election, had distributed handbills which con-
tained an appeal to its employees to vote against the Union on the top
half of the handbill and on the lower half, the reproduction of a
sample ballot marked "X" in the "No" box. The ballot in question is
not an exact replica of the Board's official ballot. It is found on the
lower half of the handbill and is somewhat smaller. The word "sam-
ple" is not splashed across the face of the ballot, rather the very top of
the ballot contains the words "SAMPLE OF THE BALLOT."
The usual headnote "UNITED STATES OF AMERICA, NA-
TIONAL LABOR RELATIONS BOARD, OFFICIAL SECRET
BALLOT," is missing. Board instructions, however, addressed to
the employees of the Employer, are retained word for word including
the directive to return the ballot to the Board agent if the ballot is
spoiled. On the basis of this reproduction, the Regional Director
recommended that the election be set aside.
The Employer has entered five exceptions to this recommendation.
The first involves the Regional Director's authority to set aside an
election, and the remaining four concerned the application of the
Allied Electric Products rule.
As to the authority of the Regional Director, the Board has con-
sistently held that the scope of his investigation is not limited by the
objections which initiated that investigation.' Accordingly, this
exception is overruled.
In Allied Electric Products, supra, the Board announced a clear
and concise rule on the alteration of sample ballots as campaign
propaganda. It stated that:
3Lockwood -Dutchess , Inc., 100 NLRB 1089 ( and cases cited therein ). The Employer's
reliance on Don Allen Midtown Chevrolet , Inc, 113 NLRB 879, and Atlantic Mills
Servicing Corporation, etc., 120 NLRB 1284, is without merit. Both cases deal with
specificity of objections to the conduct of elections . They impose no restrictions upon the
Regional Director 's authority but rather look to the obligation of the objecting party to
furnish such evidence as requires the Regional Director to pursue an investigation.
CUSTOM MOLDERS OF P. R. 1009
upon consideration, the Board has decided that in the future it
will not permit the reproduction of any document purporting to
be a copy of the Board's official ballot, other than one completely
unaltered in form and content and clearly marked sample on its
face....
It was also made clear that violation of this rule would cause an elec-
tion to be set aside. The Employer has excepted to the Regional
Director's application of the rule here on the grounds that its ballot,
without the official headnote, does not purport to be a copy of the
Board's ballot. The Allied Electric Products rule, however, is not
limited to exact reproductions, but is aimed at the reproduction of
documents* "purporting" to be a copy of the Board's ballot 4 The
abuse which the rule is designed to eliminate is the possible implica-
tion of U. S. Government endorsement of any party to an election.
The instant ballot, in literally stating the Board's instructions ad-
dressed to employees and, particularly, in making reference to the
Board agent, contains the very danger the Board has proscribed,5
i. e., conveying an impression among employees that this Agency
was not completely neutral in conducting the election. Thus, we find
no merit to the Employer's contention that its ballot warrants an
exception merely because of the deletion of the official headnote.
Accordingly, as we find that the ballot in the instant case is sub- .
stantially a reproduction of a document purporting to be a Board
ballot, and that it has been altered by marking "X" in the "No" box,
we hold that, in accordance with the Regional Director' s recommenda-
tion, the election should be set aside.'
[The Board set aside the election held on April 3, 1958.]
[Text of Direction of Second Election omitted from publication.]
CHAIRMAN LEEDOM took no part in the consideration of the above
Decision and Direction of Second Election.
4 Boro Wood Products Company, Inc., 113 NLRB 474 (where the defense that the
sample ballot was not an exact copy was rejected) ; Wallace & Tiernan, Incorporated,
112 NLRB 1352 (where the election was set aside despite the sample ballot being printed
on different colored paper) ; Superior Knitting Corporation, at at, 112 NLRB 984 (where
the sample ballot was an integral part of a larger campaign handbill).
5 The Employer urges that Phelps-Dodge Copper Products Corporation, 111 NLRB 950,
and The Kalborn-Sauer Company, 120 NLRB 804, are controlling. Since both of these
cases are concerned only with the reproduction of simple boxes which contain no possible
implication of Board approval, they are inapplicable in the instant case. Also dis-
tinguishable are those cases in which the elections have been upheld because the sample
ballots contain no reference to the United States Government, the Board, or Board
agents. Paula Shoe Co., Inc, 121 NLRB 673; The Gladden Company, 121 NLRB 752
The ballots in these cases, lacking reference to the Board, lack the implication of
Board approval.
O The Petitioner's request in the alternative for a hearing to determine to what extent
voting employees were confused is denied. The Allied Electrio Products rule is not
dependent on whether the employees were in fact misled . - Superior Knitting Corporation,
et al ., 112 NLRB 984.
487926-59-vol. 121-65