General Electric Co.

National Labor Relations Board - Board Decisions

Dec 14, 1957

119 N.L.R.B. 944 (N.L.R.B. 1957)

°944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
over-the-road drivers work under overall supervision from Columbia
and that the three drivers at Sumter do over-the-road driving, in addi-
tion to local pickup and delivery. The pay scale for local drivers
is uniform throughout the system as are other benefits. The Peti-
tioner's request for a separate unit seems clearly to be based on
extent of organization rather than on a community of interest sep-
arate and apart from that of the other 153 employees who do the
identical type of work at the other terminals.
General Electric Company (Clock and Timer Department) and
International Union of Electrical , Radio and Machine Work-
ers, AFL-CIO, Petitioner. Case No. 1-RC-4741. December 14,
1957
SECOND SUPPLEMENTAL DECISION, ORDER, AND
CERTIFICATION OF REPRESENTATIVES
On March 8, 1957, under the direction and supervision of the
Regional Director for the First Region, an election by secret ballot
was conducted pursuant to a Decision and Direction of Election issued
in this proceeding on February 14, 1957.1 After the election the
Regional Director served upon the parties a tally of ballots which
showed that of approximately 1,300 eligible voters, 1,254 cast ballots,
of which 636 votes were for and 569 were against the Petitioner, 49
ballots were challenged and 3 ballots were void.
On March 15, 1957, the Employer timely filed objections to conduct
affecting the results of the election. The Regional Director investi-
gated the objections and, on April 22, 1957, issued and duly served
upon the parties his report on objections in which he recommended
that the objections be overruled. The Employer timely filed excep-
tions to the Regional Director's report and a supporting brief. The
Regional Director, on May 17, 1957, then issued and duly served upon
the parties a supplemental report on objections. The Employer filed
,exceptions to the Regional Director's supplemental report. The Peti-
tioner filed "Response to Employer's Exceptions and Brief," and the
Employer filed "Comments on Petitioner's Response to Employer's
Exceptions and Brief."
On June 26, 1957, the Board issued a Supplemental Decision, Order,
and Direction of Second Election 2 setting aside the March 8 election.
On August 6, 1957, the Petitioner filed a motion for reconsideration of
that Supplemental Decision and, on August 1, 1957, the Employer filed
opposition thereto. On August 14, 1957, the Board issued an order
1 Not reported in printed volumes of Board Decisions and Orders.
118 NLRB 805.
119 NLRB No.128.
GENERAL ELECTRIC COMPANY 945
postponing the second election and directing the Regional Director
to issue a second supplemental report. After further investigation
the Regional Director issued and duly served upon the parties his
second 'supplemental report on objections. The Employer and the
Petitioner thereupon filed exceptions to the second supplemental
report on objections and supporting briefs.
In its June 26, 1957, Supplemental Decision the Board set aside the
March 8 election because "at least on one occasion, a covered, but
unsealed, package of ballots was out of the control of the Board agents
conducting the election . . ." and, in reliance upon the Hook Drugs
case,' the Board found that such conduct constituted "a serious irregu-
larity in the conduct of an election, sufficient to raise doubts concerning
the integrity and secrecy of the election." However, with additional
facts supplied in the Regional Director's second supplemental report
on objections and upon reconsideration of this case, we are convinced
that the facts here are substantially distinguishable from those in
the Hook Drugs decision. In the cited case an unsealed package of
blank ballots was-for about 20 minutes-out of the control of the
Board agent conducting the election as well as the parties' election
observers. Therefore, there "existed the possibility of irregularity"
in the conduct of the Hook Drugs election. In this case, however; the
Regional Director's second supplemental report establishes that at no
time did anyone other than a Board agent touch any blank ballots,
which; along with the ballotbox, were in the polling area in full view
of all the Employer's and the Petitioner's observers. There cannot,
therefore, be the slightest doubt as to the integrity and secrecy of the
March 8, 1957, election. Accordingly, we hereby grant the Peti-
tioner's motion for reconsideration of the Supplemental Decision,
Order, and 'Direction of Second Election, dated June 26, 1957;?'arid we
find there is no merit in the Employer's objection to tle'eleetion
based upon the Board agents' absence from the polling area:
There remain for resolution the Employer's other grounds for
objecting to the election.
1., The Petitioner's alleged distribution of -false and ' misleading'
statements before and during the election: On the day of tle& elebtion.
the Petitioner distributed two circulars among the employee's. ' One
stated, among other things, "'SENIORITY DOESN'T MEANT A
THING, IN THESE PLANTS!' SAYS-BERNIE NNOLAN,'.' and.
that Nolan, an employer official, had made the statement "Ili the'
meetings with the NLRB yesterday afternoon. . ." It also"recited
".. that the company made a strong effort to prevent some people
f'rom'voting. However, the Union Committee put up an equally; strong
fight. for the right of everyone to vote, and the NLRB agreed that
Hook Drugs, Inc., 117 NLRB 846.
476321--58-vol. 119-61
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
everyone does have the right to vote:" The circular also claimed that
employees at the Employer's Lynn, Massachusetts, plant average
$3.50 to $4 an hour and stated that the other circular contained the
proof. The second circular showed facsimiles of 20 paychecks received
by Lynn employees. The checks ranged in amount from $177.95 to
$420.86.
The standards of permissible preelection propaganda were recently
restated in Wheelerweld Division, C. H. Wheeler Manufacturing Com-
pany, 118 NLRB 698:
"Absent threats or other elements of intimidation we will not.
undertake to censor or police union campaigns or consider the
truth or falsity of official union utterances, unless the ability of
employees to evaluate such utterances has been so impaired by
the use of forged campaign material or other campaign trickery
that the uncoerced desires of the employees cannot be determined
in an election."
Guided by this principle, the Board has found that mere falsity
does not alone constitute campaign trickery which warrants set-
ting aside an election. It is only when one of the parties delib-
erately misstates material facts which are within its special
knowledge, and where the employees do not have independent
knowledge which will enable them properly to evaluate the mis-
statements, that the Board will set aside the election.
Even assuming, therefore, that the Petitioner's statements in the
two circulars were false, the standards governing campaign propa-
ganda do not warrant setting aside the election in this case. The
Employer's seniority policies were certainly not within the Petition-
er's "special knowledge"; indeed, it is not unlikely that the empldees
had greater knowledge of the Employer's seniority provisions than
did the Petitioner. We are not convinced by the Employer's conten-
tion that the employees were misled or otherwise interfered with by
the voting eligibility references in the Petitioner's circular . We deem
the employees sufficiently knowledgable to realize that neither the
Employer nor the Petitioner could unilaterally control disputed vot-
ing eligibility; employees are aware that a Board election' is:controlled
by the Board, not by the contestants.
With respect to the statement on wages at the Employer's Lynn
plant, the Regional Director's investigation showed that, in the 6
months or so before the election, the Petitioner distributed about 50
campaign leaflets and the Employer 15 to 20. Many of the Petitioner's
circulars dealt with wages at other of the Employer's plants where
the employees were represented by the Petitioner, and some of the
Employer's pamphlets sought to explain any pay differentials between
those plants and the instant Worcester plant. Indeed , some. of the
GENERAL ELECTRIC COMPANY 947
earlier circulars referred to Lynn plant wages; about a month before
the election the Petitioner distributed a leaflet that stated, "... Aver-
age earnings for ALL piece-workers in Lynn are $3.21 an hour ! .. .
And there are many piece-workers in Lynn who are making
$4.00 an hour and better." The Employer had ample opportunity
to answer the Petitioner's propaganda on wages; and the wage infor-
mation was not within the Petitioner's "special knowledge," it was,
the Employer's information. Moreover, the employees were them-
selves fully qualified to evaluate wage information on other employees
of the same Employer working only about 60 miles away-the employ-
ees were certainly qualified to evaluate the accuracy of a paycheck
for $420.86, which, according to the Employer, was intended by the
Petitioner to be a representation of 1 week's work by a Lynn plant
rank-and-file employee.
Accordingly, we find that the alleged false and misleading state-
ments the Employer has attributed to the Petitioner have not been
shown to exceed the standards of legitimate campaign propaganda
so as to impair the employees' free choice in the election 4
2. The Petitioner's alleged improper electioneering: The alleged
improper electioneering the Employer has attributed to the Petitioner
consisted of the solicitation of employees on their way into the plant,
the urging of employees to vote upon their arrival at the plant in
disregard of a prepared voting release schedule, and the distribution
of campaign literature to, and conversations with, employees waiting
their voting turns.
The Employer has failed to establish that any of the alleged elec-
tioneering interfered with, intimidated, or coerced employees. Ac-
cordingly, such alleged conduct does not warrant setting aside the
election.'
3. The alleged misconduct of Board agents conducting the election:
We have found above that the conduct of the Board agents with
respect to the blank ballots and the ballotbox did not warrant setting
aside the election. The Employer has alleged other misconduct by
the Board agents : The agents' refusal to establish a no-electioneering
area in accordance with a request made by the Employer; their failure
to require the employees to vote in accordance with a voting release
.schedule furnished by the Employer; and the agents' refus J'' to 'pef`
mit the Employer's. election observers to list those employees who
entered the polling area in disregard of the voting release schedule
and were carrying the .Petitioner's campaign propaganda.
Inasmuch as the conduct alleged to have been improper electioneer-
ing did not interfere with the employees' voting, the failure of the
4 Allis-Chalmers Manufacturing Co., 117 NLRB 744; Otis Elevator Company, 114 NLRB,490;
Horder's, Incorporated , 114 NLRB 751.
5 Audubon Cabinet Company, Inc., et a l., 119 NLRB 349; Burson Plant of The
Kendall Company, 115 NLRB 1401, 1402.
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board agents to take action to stop that conduct could not have had
any effect on the election. As to the Board agents' failure to require
strict compliance with the voting release schedule, the failure to
conform to voting times established before an election does not con-
stitute a ground for setting it aside.' Finally, the Board agents
properly denied permission to the Employer's election observers who
sought to list employees allegedly voting out of turn and carrying
campaign literature into the polling area, because it is the Board's
policy to prohibit election observers from keeping such a list'
As we have overruled the objections to the election, and as the
tally of ballots shows that the Petitioner received a majority of the
valid ballots cast, we shall certify the Petitioner as the collective-
bargaining representative of the employees in the appropriate unit.
[The Board vacated the Supplemental Decision, Order, and Di-
rection of Second Election issued on June 26, 1957.]
[The Board certified International Union of Electrical, Radio and
Machine Workers, AFL-CIO, as the designated collective-bargaining
representative of the employees of the Employer in the appropriate
unit described in the Board's Decision and Direction of Election.]
MEMBERS RODGERS and JENKINS, dissenting :
In its objections, the Employer, inter alia, alleged that Board agents
left the ballotbox unguarded and were absent from the polling place
during times when voting was scheduled and while prospective voters
were lining up to vote. In his initial report on objections, the
Regional Director found that both Board agents conducting the elec-
tion may have been absent, simultaneously, from the polling place
but, nonetheless, found in effect that absent evidence of actual tamper-
ing there was no merit in this objection. In his supplemental report,
the Regional Director stated that, according to the Employer's elec-
tion observers, during the absence of Board agents from the polling
place during the election they did not notice any unused loose ballots
on the table but there were some left in a carton or packages there.
He. stated further that one of the Board agents averred that when he
left the polling place unattended, he took the ballots he was using with
him, leaving the package flaps closed. In its decision of July 23, 1957,
the Board found that on at least one occasion, a covered but unsealed
package of blank ballots was out of control of the Board agents con-
ducting the election and concluded that the failure of the Board agent
to seal the package of unattended ballots during a time when access to
the box was possible, constituted a serious irregularity in the conduct
6 Bordo Products Company, 119 NLRB 79.
7 Belk's Department Store of Savannah, Ga., Inc., 98 NLRB 280, 281.
GENERAL ELECTRIC COMPANY 949
of the election, sufficient to raise doubts as to the integrity and secrecy
of the election.
The Petitioner moved for reconsideration of this decision. The
Board directed the Regional Director to issue a second supplemental
report, which he issued thereafter, and to which the Employer filed
timely exceptions. The present decision reverses the earlier decision
an the issue of the unguarded ballots and ballotbox, and in addition
finds no merit in the Employer's other objections. It is with respect
to this reversal by our colleagues of the earlier finding, and on the
basis of which the election had been set aside, that we dissent.
In New York Telephone Co., 109 NLRB 788, at pages 790-791, the
Board stated :
The Board is responsible for assuring properly conducted elec-
tions and its role in the conduct of elections must not be open to
question. Where, as here, the irregularity concerns an essential
condition of an election, and such irregularity exposes to question
a sufficient number of ballots to affect the outcome of the election,
in the interest of maintaining our standards there appears to be
no alternative but to set this election aside and to direct a new
election.
The Board has always been zealous in safeguarding the integrity
of its election processes, so much so that even where an objecting party
changes its position, the Board will set aside an election "where the
integrity of its own processes is concerned." 8 [Emphasis supplied.]
The high standards which the Board has imposed throughout the
years on the conduct of elections have been characterized by an even
higher degree of circumspection and vigilance where the alleged con-
duct concerned its own agents in the performance of their official duties.
The Board has repeated time and again that "it is of vital importance
to the Board's effectuation of the policies of the Act that the regularity
of its elections be above reproach." 9 It was in this spirit and pre-
cisely within this frame of reference that the Board stressed in Hook
Drugs, Inc., 117 NLRB 846, that "notwithstanding the absence of any
evidence of impropriety," an election should be set aside "because there
existed the possibility of irregularity." [Emphasis supplied.] And in
New York Telephone Company, supra, the Board set aside an elec-
tion despite the fact that "no conjecture of tampering [was] con-
ceivable" under the circumstances there present.
We are not persuaded by our colleagues' attempt to distinguish
the factual situation here from that in Hook Drugs for in their effort
to do so they overlook the basic rationale on which that decision was
8 Tidelands Marine Services, Inc., 116 NLRB 1222, footnote 2.
e The Royal Lumber Company, 118 NLRB 1015.
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
predicated, i. e., the special emphasis that the Board places on keeping
its election processes "above reproach," particularly where official con-
duct of its own agents is concerned. Nor does the Second Supple-
mental Report add, in our opinion, any facts which should alter
the Board's initial finding. The Board agent, according to this and
the earlier reports of the Regional Director, concedes at least one ab-
sence from the polling area. It is, of course, a cardinal principle of
Board elections, and, indeed, of any elections, that the ballotbox must
not be left unattended at any time. Moreover, the Board agent's state-
ment that he left the package flaps closed is far from meaningful as
the package could still be an open one, whether the flaps are turned
down or up. The fact remains that the circumstances with which
we are concerned are such that, in our considered judgment, serious
doubts may arise as to the integrity and secrecy of our election proc-
esses, and fall squarely within our well-established rule that in the
interest of maintaining our normally high standards in the conduct
of elections, we will set an election aside where the possibility of
irregularity exists.
In view of the foregoing, and in view of maintaining the high
standards of conduct which have attended and we feel should continue
to attend the elections conducted by this Agency, we dissent from the
majority's action herein. We believe that as a basic minimum stand-
ard to the proper conduct of any NLRB election the Board must
insist that those Government agents who are being paid to conduct such
elections remain at their posts until the job is done.10 Like Caesar's
wife, our elections must be above suspicion and reproach.
The danger of the majority position is that it opens the door to
questionable practices which can cause our election processes to be
held in disrepute. For the first time, as far as we know, this Board
has had to rely, not on the statements of its own agents that there
was no irregularity in the conduct of an election, but ' on the state-
ments of others. We believe that any time when we cannot bottom
a Board decision as to the conduct of one of our elections, on the
statements of the Board agents conducting the election that no ir-
regularities occurred, that election is questionable in that it does not
meet the high standards of which we have been so justly proud and
the integrity of which has never been questioned.
In a word, we believe that the original decision setting aside the
election was sound and proper and, unlike the majority, we would not
disturb that original decision.
10 It is significant to note that the General Counsel has already reprimanded the in-
dividuals concerned for improper conduct in connection with the holding of this particular
election.