Essex International, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1975

216 N.L.R.B. 831 (N.L.R.B. 1975)

ESSEX INTERNATIONAL, INC.
Essex International, Inc. and International Union,
United Automobile , Aerospace and Agricultural
Implement Workers of America (UAW). Case 7-
RC-12455
February 28, 1975
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties and
approved by the Acting Regional Director for
Region 7 on August 5, 1974, an election by secret
ballot was conducted in the above-entitled proceed-
ing on September 5, 1974, under the direction and
supervision of the Regional Director. Upon the
conclusion of the election, a tally of ballots was
furnished the parties in accordance with the Board's
Rules and Regulations.
The tally of ballots shows that there were approxi-
mately 325 eligible voters and that 294 ballots were
cast of which 145 were for and 149 against Petitioner,
and no ballots were challenged.
On September 10, 1974, Petitioner filed three
timely objections to conduct affecting the results of
the election. The Regional Director completed an
investigation of the objections and, on November 15,
1974, issued and served on the parties his Report and
Recommendations on Objections to Election. In his
report, the Regional Director recommended that
Objections 1 and 3 be overruled in their entirety, and
that a hearing be held to resolve Objection 2 and
another incident of alleged employer preelection
misconduct discovered during his investigation of
objections. Thereafter, Employer filed timely excep-
tions to that portion of the Regional Director's report
which recommended a hearing on Objection 2 and
the additional allegations raised during the investiga-
tion of the objections . Petitioner filed a reply brief
answering Employer's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this case the Board finds:
1. 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. Petitioner is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of Employer
216 NLRB No. 156
831
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.
4. We find that the following employees, as
stipulated by the parties, 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 em-
ployed by the Employer at its facility located in
Atlanta, Michigan; but excluding office clerical
employees, plant clerical employees, technical
employees, engineering employees, professional
employees, confidential employees, foremen, as-
sistant foremen, timekeepers, watchmen, watch-
men-custodians, truckdrivers, senior inspectors,
leaders, dispatchers, guards, and supervisors as
defined in the Act.
5. The Board has considered the entire record in
this proceeding, including the Regional Director's
report, Employer's exceptions, and the briefs. While
we agree with the Regional Director's report insofar
as it recommends the overruling of Objections 1 and
3, we do not adopt his recommendation that a
hearing be held on Objection 2 and the additional
matters uncovered in his investigation. Instead, for
the reasons set forth below, we shall overrule
Objection 2 in its entirety.
Objection 2 concerns the interrogation of an
employee by Employer Supervisor Brooks as to his
union views and activities and a questioning of the
employee as to what improvements in working
conditions Employer might make to dissipate Peti-
tioner's appeal within the unit. The other instance of
alleged Employer misconduct involves a statement
by Supervisor Sherwood to an employee to the effect
that her recent transfer from a job involving close
and frequent contact with fellow employees to a job
with less personal contact was due to her union views
and activities. Both Brooks and Sherwood deny
making the statements attributed to them.
Assuming that these allegations of misconduct
would prove accurate, we do not feel that their total
impact would be so substantial as to warrant setting
aside the election . At most, what we have here before
us are two isolated instances of casual statements
made by supervisors to two individual employees.
The impact of these statements, if indeed made, is de
minimis, both in terms of the casual nature of the
statements themselves, and the small number of
employees who were the targets of the statements,
only 2 employees out of a unit of 325. Under these
circumstances we find it difficult to conceive how
these random remarks could have a substantial effect
on the results of the election.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We therefore overrule Petitioner's objections and
issue the appropriate certification.'
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), and that
said labor organization is not the exclusive represent-
ative of all the employees, in the unit herein involved,
within the meaning of Section 9(a) of the National
Labor Relations Act, as amended.
MEMBER FANNING , dissenting:
How my colleagues can say with certainty that a
solicitation of grievances and a statement to an
employee that she was isolated because of her union
activity in no way could affect the results of an
election, regardless of what surrounding circum-
stances might be adduced at a hearing, escapes me
completely. To be sure, there are situations in which
a postelection hearing should not be held, even in the
face of existing unresolved questions of fact; but
these are invariably situations where the election
would or would not be set aside as a matter of law,
regardless of the outcome of the factual resolutions.
A hearing would not ordinarily be warranted, for
example, where there is a question of fact as to
employer conduct which took place during the
period preceding the filing of a petition, as the Board,
as a matter of law,2 would not consider the impact of
such prepetition statements, even if indeed made.
However, at issue in the instant case is not a question
of law, but purely a question of fact as to the extent
to which certain preelection statements by Supervi-
sors Brooks and Sherwood to employees may have
affected the results of the election, a question which
by its very nature begs for a hearing to resolve it.
i Employer , in its exceptions , also takes issue with the Regional
Director's consideration of the alleged statement by Sherwood as part of
Objection 2, a matter of which was not alleged by Petitioner in its
objections , but was only discovered by the Regional Director in the course
of his investigation . In view of our decision to overrule Objection 2 and
certify the results of the election , we do not reach this issue.
2 The Ideal Electric and Manufacturing Company, 134 NLRB 1275 (1961).
3 My colleagues' reliance on the fact that the statements of Brooks and
Sherwood were made to only two employees is irrelevant . As we noted in
There are an infinite number of questions surround-
ing the circumstances of these two remarks by agents
of Employer which might have a bearing on the
impact on employees, and, consequently, the election
results themselves; questions which cannot possibly
be answered by a mere reading of the Regional
Director's report: Where did these conversations
take place? At the employees' work stations? In the
president's office? Were they face-to-face or over the
phone? How high up on a supervisory ladder are
Brooks and Sherwood? Are they firstline supervisors,
production superintendents, or plant managers?
What is their supervisory relationship to the two
affected employees, direct or indirect? When, in
relation to the election, were these statements made?
Two weeks before? The night before? And, most
important, how many other employees were within
earshot of these remarks or later learned of them by
talking to the two employees to whom the remarks
were originally directed?3
Unfortunately, given the course of action mandat-
ed by my colleagues, we will never know the answers
to these and other related questions, and hence will
never be able to assess the true impact of the
allegedly coercive statements of Supervisors Brooks
and Sherwood on the election. This is especially
unfortunate in light of the closeness of the ballot tally
in which a change of the votes of only three
employees might alter the entire outcome of the
election.
For these reasons my colleagues' refusal to order a
hearing in this case in my opinion works a detriment
to the Board's policy of attempting to ensure, as far
as practicable, laboratory conditions for the holding
of representation elections. I would order a hearing
to resolve all factual questions surrounding the
allegedly coercive preelection statements of Supervi-
sors Brooks and Sherwood.
Standard Knitting Mills, Inc., 172 NLRB 1122 (1968), the impact of coercive
statements is not necessarily limited to the employees to whom they are
directed (in that case 4 employees out of a unit of 3,000 ). "Experience has
shown that statements made during election campaigns are the subject of
discussion and repetition among the electorate ." The inquiry into how-
widespread the circulation of these statements might have been is especially
important when the margin is close , as is the case here . See Hardy-
Herpolsheimer Division of Allied Stores of Michigan, Inc., et al., 173 NLRB
1109 (1968).