Earle Industries, Inc.

National Labor Relations Board - Board Decisions

Mar 3, 1980

248 N.L.R.B. 67 (N.L.R.B. 1980)

EARLE INDUSTRIES, INC. 67
Earle Industries, Inc. and International Ladies Gar-
ment Workers Union, AFL-CIO, Petitioner.
Case 26-RC-5628
March 3, 1980
SECOND SUPPLEMENTAL DECISION
AND ORDER
By Chairman Fanning and Members Penello
and Truesdale
Pursuant to a Supplemental Decision and Direc-
tion of Second Election issued by the National
Labor Relations Board on May 11, 1979,1 a second
election by secret ballot was conducted on June 22,
1979, among the employees in the stipulated unit.
At the conclusion of the election, the parties were
furnished a tally of ballots which showed that, of
approximately 100 eligible voters, 48 cast ballots
for, and 47 against, Petitioner. There were 10 chal-
lenged ballots, a number sufficient to affect the re-
sults of the election. Thereafter, both Petitioner
and the Employer filed timely objections to con-
duct affecting the results of the election.
Pursuant to Section 102.69 of the National Labor
Relations Board Rules and Regulations, Series 8, as
amended, the Regional Director conducted an in-
vestigation of the challenges and objections, and,
on August 3, 1979, the Regional Director issued
and duly served on the parties his report on the ob-
jections and challenged ballots. In his report, Re-
gional Director recommended that the challenges
to the ballots of Milton Atkins, Mary Dorsey, Irby
McCain, Carolyn McClain, Early Morton, Carolyn
Williams, and Virgil Wright be overruled, and that
a hearing be directed to resolve the eligibility
status of Hildia Brown, Evelyn Curry, and Cynthia
Smith in the event that the challenges to their bal-
lots remain determinative of the election results.
The Regional Director, while overruling Petition-
er's Objections 1 and 3, as well as the Employer's
Objections 1, 2, 3, 4, and 6,2 further recommended
that Petitoner's Objection 2 be sustained, and that
the election held herein be set aside in the event
that a revised tally of ballots shows that Petitioner
has not received a majority of the ballots cast.
Thereafter, the Employer filed timely exceptions
and a supporting 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:
i Not reported in volumes of Board Decisions.
2 The Regional Director also approved the Employer's request to
withdraw its Objection 5.
248 NLRB No. 11
1. The Employer is engaged in commerce within
the meaning of the National Labor Relations Act,
as amended, and it will effectuate the purposes of
the Act to assert jurisdiction herein.
2. Petitioner is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation 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 parties have stipulated, and we find, that
the following employees constitute a unit appropri-
ate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All production and maintenance employees, in-
cluding shipping and receiving employees, em-
ployed at the Employer's Earle, Arkansas,
plant, excluding all office clerical employees,
guards and supervisors as defined in the Act.
5. The Board has considered the Regional Direc-
tor's report, the Employer's exceptions and brief,
and the entire record in this case, and hereby
adopts the Regional Director's findings and recom-
mendations 3 only to the extent consistent here-
with.
In its Objection 2, Petitoner alleges, in substance,
that the Employer interfered with the employees'
right to select a bargaining representative by failing
to post the Board's official notice of election until 2
days before the election. The evidence with respect
to his objection is as follows. On June 13, 1979,4
the Regional Office mailed the Employer eight of-
ficial election notices for immediate posting in
usual and conspicuous places. Thereafter, Petition-
er's representative, Ward, called the Regional
Office on the morning of June 20, and informed a
Board agent that the Employer had not posted any
election notices. The Board agent then advised the
Employer's counsel, Katherine Carlyle, of the post-
ing deficiency. After learning from Employer's rep-
resentative, Jim Felsenthal, that the election no-
tices, in fact, had not been posted, Carlyle instruct-
ed him to do so immediately. Felsenthal posted one
election notice 5 or 10 minutes later.
Petitoner's two witnesses testified that, between
10:30 a.m. and noon on June 20, they first observed
the election notice posted above a bulletin board
3 In the absence of exceptions thereto, we adopt, pro forma, the Re-
gional Director's recommendations to overrule Petitioner's Objections I
and 3; the Employer's Objections 1, 2, 3, 4, and 6; and the challenges to
the ballots of Milton Atkins and Irby McCain. We also adopt the Region-
al Director's recommendations that the challenges to the ballots of Mary
Dorsey, Carolyn McClain, Early Morton, Carolyn Williams, and Virgil
Wright be overruled, and that the challenges to the ballots of Hildia
Brown, Evelyn Curry, and Cynthia Smith raise issues which can best be
resolved after a hearing
I All dates herein are in 1979. unless otherwise indicated.
EARLE INDUSTRIES. INC. 7
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
near the unit employees' timeclock. The Employer
notes in its brief that all the unit employees clock
in and out at the beginning and the end of their
shifts. According to the Employer, these employ-
ees are also required to clock in and out for lunch.
At the election held on June 22, 105 employees
voted, including 5 challenged voters found eligible
herein who had been laid off due to lack of work
and 3 other employees on layoff status who also
voted under challenge.5 The unit stipulated to by
the parties consists of approximately 100 produc-
tion and maintenance employees employed at the
Employer's Earle, Arkansas, facility. 6
The Employer has excepted to the Regional Di-
rector's recommendation that Petitioner's Objection
2 be sustained. The Employer contends that an of-
ficial election notice was posted 2 days before the
election in a conspicuous place, and that the timing
of the posting of the election notice did not under-
mine the laboratory conditions essential for the
holding of a fair election. We note that there is no
evidence here that any employees were unaware
of, or misunderstood, their rights or were prevent-
ed from voting by the fact that they did not actual-
ly see the notice until 2 days before the election.
Indeed, the fact that 97 percent of those employees
whose names appeared on the eligibility list voted
establishes that the employees were well aware of
the time, place, and date of the election. In these
circumstances, we cannot agree with the Regional
Director that the Employer, by posting the elec-
tion notices as it did, engaged in conduct which in-
terfered with the employees' free choice in the
election. Accordingly, we hereby overrule Peti-
tioner's Objection 2.7
The names of these individuals did not appear on the eligibilty list.
8 Three employees whose names appeared on the eligibility list did not
vote in the election.
I Member Penello notes that this conclusion is consistent with the
view expressed in his dissenting opinion in Kilgore Corporation, 203
NLRB 118 (1973).
Member Truesdale, as he stated in Printhouse Company, Inc. and Denni-
son Ticket,. Printhouse Division, 246 NLRB No. 112 (1979), and in his dis-
senting opinion in Kane Industries, a Division of Chromalloy American Cor-
poration, 246 NLRB No. 111 (1979), continues to adhere to the principles
established in Kilgore Corporation and would look to the facts of each
case to determine whether the employees had sufficient opportunity to be
informed of the details of the election and their rights under the Act, and
to discuss the issues of the election. In concluding that the posting here
was sufficient to achieve these ends, Member Truesdale notes particularly
the conspicuous nature of the posting near the unit employees' timeclock
for at least 2 days prior to the election, and the fact that 97 percent of
the employees whose names appeared on the Excelsior list voted in the
election.
ORDER
It is hereby ordered that the Regional Director
for Region 26 shall, pursuant to the National Labor
Relations Board Rules and Regulations, Series 8, as
amended, and within 10 days from the date of this
Decision, open and count the ballots of Milton
Atkins, Mary Dorsey, Irby McCain, Carolyn
McClain, Early Morton, Carolyn Williams, and
Virgil Wright, the challenges to which have been
overruled herein, and shall thereafter prepare and
cause to be served on the parties a revised tally of
ballots, including therein the count of said chal-
lenged ballots. If the tally discloses that the results
of the election are determinative, and the remaining
unresolved challenges will not affect the results of
the election, the Regional Director shall issue the
appropriate certification. However, if the results
are not determinative after the aforementioned
seven ballots have been opened and counted, and
the unresolved challenges still would be determina-
tive, a hearing shall be held concerning the eligibil-
ity of Hildia Brown, Evelyn Curry, and Cynthia
Smith.
IT IS FURTHER ORDERED that the hearing officer
designated for the purpose of conducting such
hearing shall prepare and cause to be served on the
parties a report containing resolutions as to the
credibility of witnesses, findings of fact, and recom-
mendations to the Board as to the disposition of the
said issues. Within the time prescribed by the
Board's Rules and Regulations, any party may file
with the Board in Washington, D.C., eight copies
of exceptions thereto. Immediately upon filing of
such exceptions, the party filing the same shall file
a copy with the Regional Director. If no excep-
tions are filed thereto, the Board will adopt the
recommendations of the hearing officer.
IT IS FURTHER ORDERED that the above-entitled
matter be, and it hereby is, referred to the Regional
Director for Region 26 for further proceedings
pursuant hereto.
CHAIRMAN FANNING, concurring and dissenting:
I would affirm the Regional Director's sustaining
of Petitioner's Objection 2 for the reasons set forth
in my dissents in Printhouse Company, Inc. and
Dennison Ticket, Printhouse Division, 246 NLRB
No. 112 (1979), and Kane Industries, a Division of
Chromalloy American Corporation, 246 NLRB No.
111 (1979). In all other respects, I concur in the
majority decision.