Diversified Products Corp.

National Labor Relations Board - Board Decisions

Oct 24, 1972

199 N.L.R.B. 1024 (N.L.R.B. 1972)

1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Diversified Products Corporation and United Rubber,
Cork, Linoleum and Plastic Workers of America,
AFL-CIO, CLC, Petitioner. Case 10-RC-9179
October 24, 1972
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election executed on May 18, 1972, an elec-
tion by secret ballot was conducted on June 16, 1972,
under the direction and supervision of the Regional
Director for Region 10 among the employees in the
appropriate unit. At the conclusion of the election, the
parties were furnished with a tally of ballots which
showed that of approximately 205 eligible voters, 186
cast ballots, of which 116 were for, and 70 against, the
Petitioner, 1 was void, and 3 were challenged. The
challenged ballots were insufficient in number to af-
fect the results of the election. Thereafter, the Em-
ployer filed timely objections to conduct affecting the
results of the election.
In accordance with the Board's Rules and Reg-
ulations and Statements of Procedure, Series 8, as
amended, the Regional Director conducted an inves-
tigation and, on August 11, 1972, issued and duly
served on the parties his Report on Objections in
which he recommended that the Employer's objec-
tions be overruled in their entirety. Thereafter, the
Employer filed timely exceptions to the Regional
Director's report.
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 pur-
poses 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 concern-
ing the representation of the employees of the Em-
ployer within the meaning of Sections 9(c)(1) and 2(6)
and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate for
the purpose of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees em-
ployed at the Employer's Opelika, Alabama,
plant, but excluding all office clerical employees,
quality control inspectors, professional employ-
ees, guards and supervisors as defined in the Act.
5. The Board has considered the Regional
Director's report, and the Employer's exceptions
thereto, and hereby adopts the Regional Director's
findings, conclusions, and recommendations, as am-
plified below.
The Regional Director found that Employer's
Objection 3, which deals with assistance allegedly giv-
en to the Petitioner during its organizational cam-
paign by supervisors, was based on conduct occurring
prior to the filing of the representation petition. The
Regional Director, relying on Board policy not to
consider such prepetition conduct, overruled the ob-
jection. We agree.
The Employer alleged in a brief in support of its
exceptions to the Regional Director's report that in
addition to the execution of union authorization cards
by at least three supervisors at a union meeting prior
to the critical period, supervisory assistance was given
to the Petitioner after the filing of the petition. More
specifically, the Employer claims that one employee
told the Employer's general manager on June 15, the
day before the election, that she had talked with one
of the supervisors, and as a result decided how she
would vote in the election.' The Employer further
asserts that some supervisors spoke in favor of the
Petitioner to employees during the period prior to the
election. In addition, the Employer claims that one of
its employees stated that he observed that at least one
supervisor was present at a union meeting after the
filing of the petition. With the exception of the
Employer's knowledge that two of its supervisors had
attended a union organizational meeting on April 18,
1972, the Employer contends that it was unaware that
other supervisors had attended meetings and given
the Petitioner assistance.
In our opinion, even if we assume that the facts
are as presented in the Employer's brief, we would
find such activity to be insufficient to set the election
aside. The Employer had knowledge prior to the filing
of the representation petition that two of its supervi-
sors had attended a union organizational meeting.2
After gaining such knowledge, the Employer made no
further investigation and did not discipline either su-
pervisor known to be present. In addition, while the
Employer did call a meeting of its supervisors prior to
the filing of the petition and warned them not to
attend Petitioner's meetings or to assist the Petitioner
i On June 16, this employee appeared as one of Petitioner's appointed
observers at the election The Employer claims that this conversation
prompted its investigation of supervisory conduct.
2 "[T]he Board has held where the employer is aware of such conduct and
takes no steps to dissipate its effects , he may not rely on it as a basis for
setting aside the election ." N.LR B. v. Air Control Products of St Petersburg,
Inc, 335 F2d 245 (C.A. 5, 1964).
199 NLRB No. 161
DIVERSIFIED PRODUCTS CORP. 1025
in any way, it neither imparted this to its employees
nor otherwise sought to dissipate any possible coer-
cive effects on employees of the assistance allegedly
given to the Petitioner by the Employer's supervisors.
Furthermore, in a handbill dated June 7, 1972, the
Employer expressed hostility toward the Petitioner,
and asked employees to vote "NO" in the election
held on June 16, 1972? Under these circumstances, we
will not allow the Employer to take advantage of its
own inability to control its supervisory staff 4 There-
fore, we find no merit in this objection.
Accordingly, as the tally shows that the Petition-
3 This handbill, considered by the Regional Director in connection with
another objection, dissipated any impression left by the supervisors that the
Employer favored the Union . Stevenson Equipment Company, 174 NLRB 865.
Underwood Machinery Company, 80 NLRB 1264, 1265
er has obtained a majority of the valid ballots cast, we
shall certify it as the exclusive bargaining representa-
tive of the employees in the appropriate unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots has been cast for United Rubber , Cork, Lino-
leum and Plastic Workers of America, AFL-CIO,
CLC, and that, pursuant to Section 9(a) of the Na-
tional Labor Relations Act, as amended , the said la-
bor organization is the exclusive 'representative of all
the employees in the unit found appropriate herein for
the purposes of collective bargaining with respect to
rates of pay , wages , hours of employment , or other
conditions of employment.