H. E. Fletcher Co.

National Labor Relations Board - Board Decisions

Sep 12, 1958

121 N.L.R.B. 826 (N.L.R.B. 1958)

826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dilday had no reasonable expectancy of recall in the near future 4,
Accordingly, we find, in agreement with the Regional Director, that
they were mehgible to vote. The challenges to their ballots axe there-
fore sustained
[The Board directed that the Regional Director for the First Region
shall, within ten (10) days from the date of this Direction, open and
count the ballots of Oilshver, McHugh, and Sonberg, and serve upon
the parties a revised tally of ballots ]
[The Board ordered that, in the event that the ballots of Oilshver,.
McHugh and Sonberg, do not determine the results of the election, a
hearing be held before a hearing officer, for the purpose of determining
the eligibility of Giusti to vote in the election, and in the event a,
hearing is held, the hearing officer shall serve upon the parties a report
containing resolutions of the credibility of witnesses, findings of fact,,
and recommendations to the Board as to the disposition of said
challenges Within ten (10) days from the date of issuance of the,
report, any party may file with the Board in Washington, D C, an
original and six copies of exceptions thereto Immediately upon the,
filing of such exceptions, the party filling shall serve a copy upon each
of the parties, and shall file a copy with the Regional Director. If no,
exceptions are filed the Board will adopt the hearing officer's recom-
mendations ]
[The Board further ordered that, in the event a hearing is held, the
above-entitled matter be referred to the Regional Director ]
*,B'ha,vRandall Company, Inc, 116 NLRB 444
H. E. Fletcher Co. and United Stone and Allied Product Workers
of America, AFL-CIO, -Petitioner. Cas4 No 1 RC-5258 Sep-
tember 12, 1958
DECISION AND CERTIFICATION OF REPRESENTATIVES
On June 27, 1958, pursuant to a stipulation for certification upon
consent election, an election was conducted under the direction and
supervision of the Regional Director for the First Region among the
employees in the agreed-upon unit Following the -election,, the Re-
gional Director served upon the parties a tally of ballots which showed
that of approximately 385 eligible voters, 385' cast ballots, of which
198 were for the Petitioner, 123 were against Petitioner, and. 64 ballots
were challenged The challenged ballots are not sufficient in number
to affect the results of the election.
On July 1, 1958, the Employer filed timely objections to the conduct
affecting the results of the election After an investigation, the
121 NLRB No.114.
H. E.- FLETCHER CO. 827
Regional Director, on July 24, 1958, issued and duly served upon the
parties his report on objection, -a copy of which is attached hereto 1
The Regional Director found that there was no merit to any of the
objections and recommended that the objections be dismissed in their
entirety. The Employer filed timely exceptions 'to the 'report on
objections.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Jenkins, and Fanning].
Upon the entire record in the case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claimed to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. All production and maintenance employees engaged in the
quarrying, manufacturing, and processing of granite, excluding office
clerical employees, over-the-road truckdrivers, guards, professional
employees, and all supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
The Board has considered the Employer's objections, the Regional
Director's report, and the Employer's exceptions thereto, and hereby
adopts the. findings and recommendations of the Regional Director.
Accordingly, we overrule the Employer's exceptions. As the Peti-
tioner has received a majority of the votes cast in the election, we
shall certify the Petitioner as the representative of the employees in
the appropriate unit.
[The Board certified United, Stone and Allied Products Workers
of America, AFL-CIO, as the collective-bargaining representative of
the employees in the unit heretofore found appropriate.]
1 The report on objections sets forth in full the alleged objections.
REPORT ON OBJECTIONS
Pursuant to stipulation for certification upon consent election, executed on June
18, 1958, and approved on June 19, 1958 , an election was conducted by the Regional
Director on June 27, 1958 , among certain employees of the Employer .' The tally
of ballots cast at the said election is as follows:
1 The appropriate collective bargaining unit is as follows : all production and mainte-
nance employees engaged in the quarrying, manufacturing, and processing of granite,
who were employed during the payroll period ending dune 14, 1958, excluding office
clerical employees , over-the-road truckdrivers , professional employees , guards, and all
supervisors as defined in the Act.
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Approximate number of eligible voters ------------------------------- 385
Void ballots---------------------------------------------------- 0
Votes cast for United Stone and Allied Products Workers of America,
AFL-CIO---------------------------------------------------- 198
,Votes cast against participating labor organization -------------------- 123
Valid votes counted---------------------------------------------- 321
Challenged ballots ----------------------------------------------- 64
Valid votes counted plus challenged ballots-------------------------- 385
On July 1 , 1958 , the Employer filed timely objections to conduct affecting the
results of the election , serving copy thereof on Petitioner . The objections are
quoted as follows:
3. The result of said election does not represent the free choice of the
employees , hereinafter referred to as voters , by reason of the unlawful inter-
ference of said union , its agents and servants . The conduct of said union
prior to and during the election was such , as to introduce unreasonable preju-
dice , to mislead the voters , to deprive them of the benefit of free discussion
of the issues, and to create an atmosphere of coercion and mistrust , as herein-
after more specifically set forth:
a. Throughout this proceeding , the union has styled itself as an AFL-CIO
affiliate, whereas , in fact , these two national organizations have not merged
in the Commonwealth of Massachusetts , and this union , as a local, can be
no more than a CIO affiliate. This fact was not noted by representatives of
the employer until , after the election , it was learned that some of the voters
may have been misled by the union 's propaganda flyers, including one dis-
tributed on or about June 23, 1958.
b. The union circulated spurious propaganda to -the effect that the em-
ployer was padding the list of eligible , voters in an effort to control the elec-
tion unfairly . While this charge was subject to reasonable interpretation up
until the day of election , the conduct of representatives of the National Labor
Relations Board during balloting was such as to give the charge unreasonable
credibility so as to prejudice the voters in their choice. Mr. Burns was energetic
in his protest of "supervisory" personnel on the voting list, and went so far,
in the presence of voters , as to characterize one voter as the "President of
the First National Bank ." Mr. Thompson , following certain union challenges,
announced that he would not permit three voters to vote, when they presented
themselves , on the ground that they were office personnel . All of the voters
herein referred to were permitted to vote subject to challenge , but the conduct
of N. L. R. B. officials was such as to give undue credence to the charge
hereinabove described.
c. On or about . June 23 , 1958, certain agents of the union subjected a voter
to abusive language and physical mistreatment , all the while making references
to the charge set forth in paragraph "b" hereof. •
d. Ralph A . Fletcher, as spokesman for the employer, made a series of
speeches designed to set forth the employer 's position and'discuss issues raised
by the voters. On two separate occasions, one in the quarry and another in
the forge shop , voters were , prevented from asking questions -by agents of the
union , thereby depriving all the voters of their right to hear both sides.
e. One Keenan , who functioned as an observer , for the union in the course
of balloting, was electioneering in close proximity to the polls from 2 : 00 p. m,
until 2 : 45 p. m . when the polls opened for'the afternoon voting.
In accordance with Section 102.69 , of the Rules and Regulations of the Board,
Series 7, the Regional Director has caused an investigation to be made and makes
this his report thereon . . 1 - 1 , - - - I • • ; ,
On July 2, 1958 , the Employer was requested to 'submit evidence in support of
the objections and specifically:, n,
(1')' Copies of the ' propaganda 'circulated by the Union as` referred to in
(ti) or 'affidavit incorporating the detail and circulation of such propaganda if
by mode other than printed circular -
(2) Affidavit incorporating time , place and circumstances surrounding con-
duct of Board representatives upon which conclusion' reached in ( b) '-is based
(3) Affidavit detailing incident ( s) including names as referred to in (c) •
(4) Affidavit detailing incident ( s)' including time and names of purported
Union agents and circumstances under which these agents acted as alleged
in (d). '
0
H. E. FLETCHER CO. 829
The only evidence in support of the objections submitted by the Employer consists
of the affidavits of Genest, Andrews, Ricciardi, and Nylund which are quoted herein-
after in their entirety.
Investigation reveals:
3(a) It is true, as Employer states, that "thruout this proceeding, the Union has
styled itself as an AFL-CIO affiliate." It is true also that merger of the so-called
State affiliated bodies has not been effectuated in the Commonwealth of Massachu-
setts . Nonetheless, the American Federation of Labor and Congress of Industrial
Organizations have merged as parent organizations and there are today no separate
entities of AFL or CIO as such. Examination of all of the literature, including cir-
culars, issued by Petitioner in this matter, fails to reveal any representation that
organizational merger has taken place at the State level. Petitioner uses the name
exactly as it is used in the Board's Decision and Direction of Election and the
Regional Director cannot perceive any element of misrepresentation herein. It is
his conclusion that this part of the objection is without merit.
3(b) The Employer, in support of this phase of the objections, has submitted
affidavits signed by Laurent Genest and by Kenneth Andrews which are quoted as
follows:
I, Laurent Genest, being under oath, depose and say that I am an employee of
H. E. Fletcher Co., in the Marker Room Department. I have been in the
Payroll Office for about two (2) years working on the Marker Room operations
done there. About June 17, 1958, 1 was sent to the, Marker Room at the
Mill for a few days because they had asked my supervisor for help. While I
was working there, the other men in the Marker Room called me a company
man, said I had been sent down there just to vote against the union, and
.generally gave me a hard time. They complained, that I was spoiling the job
by working steady and made frequent wisecracks about me voting and working.
When I went to vote on election day, I was challenged by the union checker
because he said I was attached to the office, and had just been sent down to
production. I objected, because I am on production and.turn in a daily pro-
duction slip. Then; when I left the polls, I walked by a gang-outside the place
and heard them saying that the company was padding the voting list.
JULY 15, 1958. (Signed) LAURENT E. GENEST.
I Kenneth Andrews, being under oath, depose and say that I am employed by
H. E. Fletcher Co. in charge of payroll. Some of the Marker Room operations
are conducted in my office and I am responsible for the Marker Room people
there.
About June 17, 1958, I sent Laurent Genest down to the Mill Marker Room
because they had asked for help to get the job out down there. I heard after-
wards that he was treated pretty rough because the men said he was working
too hard, that he was a company man, and had just been sent down there to
vote against the union.
I was the company checker during the voting at the Mill from 6:30 to 8:30
and at the Caboose from 9:00 to 10:00 on election day.
Vanner Lundgren was about the third voter to come into the polls at the
Mill. He was challenged by the union and Mr. Burns, the N. L. R. B. repre-
sentative, asked him what he did. Lundgren, said he was superintendent of the
curb yard. Mr. Burns asked him how many men he supervised, and he said
ninety (90). Mr. Burns then told him to go up and get the company lawyer
and bring him down to the polls as quick as he could. I learned later that he
complained to the lawyer that there was a lot of supervisors on the voting list.
When people were challenged, Mr. Burns would start to fill out the challenge
envelope, then ask what the ground of the challenge was. If the ground was
supervision, he would look at the specimen ballot, shake his head, and then
write down what the challenged voter said his, job was.
After the voting closed at the Mill, I was standing with Mr. Burns and
Mr. Thompson, both of the N. L. R. B., Joe Christman and Jim Keenan, both
company employees on the voting list and union checkers, together with others,
when I heard Mr. Burns complain about the number of challenges. I heard
him say that there were people on the voting list who were obviously super-
visors and "I even had the President of The First National Bank."
While I was checking the voters at the caboose, Gordon Bailey came in to
vote and was challenged by the union. Mr. Thompson asked him what he did,
and he said he supposed he was the janitor. Mr. Thompson said he could not
vote. Bailey then went on to say that he delivered materials around the job,
and helped in other kinds of work. He was then permitted to vote.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Later, two girls employed in the shipping room came in to vote, Lillian
O'Beirne and Barbara Miller. They were challenged by the union on the
ground that they were office workers. Mr. Thompson said they could not vote,
without asking them what they did. They started to walk out and I told them
to wait. I explained to Mr. Thompson that one was the shipper and the other
was her assistant. Then he permitted them to vote.
JULY 15, 1958 (Signed) KENNETH R. ANDREWS.
This portion of the objections recites that the Union prior to the election circu-
lated "spurious propaganda" was' to what is called "padding" of the eligibility list,
but no evidence of such propaganda has been supplied and investigation of the
objections has revealed no such evidence. No such allegation was ever made to
the Regional Director prior to the election by the Union. As a matter of fact, no
opportunity was afforded to the Union to review the eligibility list prior to the elec-
tion, the Employer steadfastly refusing to permit such a review, and not even the
Board agents were shown such list. until the morning of the election.
The objection assumes importance in the mind of the Regional Director only
because it is alleged that the Board agents misconducted themselves in that they, by
their actions, lent substance to the asserted "spurious propaganda." Though there
is no evidence before him of such propaganda, the Regional Director has investigated
the allegation as though there were such evidence since the conduct of the Board
agents conducting the election is aspersed.
From the objection itself it appears that no person who felt himself eligible to
vote was denied the privilege of casting at least a challenged ballot. As to Field
Examiner Burns, by the submission of the Andrews affidavit above, Respondent
seems to object to the questioning of Superintendent Lundgren as to his supervisory
capacities, by Burns questioning other challenged voters as to their capacities, by
attempting to reach agreement as to eligibility of certain alleged supervisors, and by
remarking, perhaps facetiously that one of the challenged voters looked like "the
President of the First National Bank," which remark, by the very objections them-
selves, was alleged to have been made after the polls were closed.
While his remark as to the appearance of one of the voters may not have been
entirely circumspect , the Regional Director sees no ground for considering the
incident as a basis for finding that it interfered with the free choice of the voters at
the election or that it lent credence to the purported "Padding" propaganda of the
Union, particularly since it occurred after the polls were closed. As to the balance
of the allegations as to Examiner Bums, the Regional Director likewise finds nothing
to support the objections. On the contrary, the Regional Director feels that Examiner
Burns felt proper concern over the large number of supervisory and other challenges
(almost 18 percent of those eligible ) and took appropriate steps to attempt to mini-
mize this situation. It must be remembered that no opportunity was given to any
of the participants in the election to examine the list beforehand and that R. A.
Fletcher, an official of the Employer, had stated prior to the election that it was
his intention to put the name of everyone on the list who was "by any chance at
all" eligible to vote.
As to the alleged conduct of Agent Thompson, it is admitted that employees
O'Beirne, Miller, and Bailey were questioned as to their occupations after they were
challenged by Petitioner. It is denied by Agent Thompson that these persons were
ever told by him that they could not vote, and, as a matter of fact, they did cast
challenged ballots at the instruction of Agent Thompson.
It is the conclusion of the Regional Director that no merit attaches to this portion
of the objections.
3(c) Beyond such references as appear in the Andrews and Genest affidavits,
supra , in relation to the latter 's assignment to the mill marker room ,2 no evidence
is submitted in support of this objections It is the conclusion of the Regional Di-
rector that no merit attaches to this part of the objections.
3(d) The Employer has submitted affidavits by Paul Ricciardi and Carl Nylund
(2) which are quoted as follows:
I, Paul Ricciardi, being under oath depose and say that I am employed by
H. E. Fletcher Co. as General Superintendent in charge of stone processing.
2 The incident is reported to have occurred on June 17, 1958 . Such being the case, it
may not be considered under rule in F. W. Woolworth Company, 109 NLRB 1446.
8 A party filing objections to election is obligated to furnish evidence in support of such
objections and, unless such evidence is produced, Regional Director is not required to
pursue his investigation further. Avon Products, Inc., 116 NLRB 1729.
-IVY HILL LITHOGRAPH COMPANY - 831
I was at the "Closed Shed" meeting on June 25 , 1958, when Ralph A. Fletcher
talked to the men who work in that area about the election coming up on Friday.
Mose Macrino , a blacksmith in the tool shop, was trying to ask Mr. Fletcher
some questions about the union . Al Davis, who works with the locomotive
crew, was sitting about ten ( 10) feet behind Mose . When Mose began asking
question, Davis said, more than once and fairly - loud, "shut up," until' Mose
finally did shut up.
(Signed ) PAUL RICCIARDI.
I, Carl R. Nylund, being under oath , depose and say that I am employed by
H. E. Fletcher Co. as Superintendent of the Quarry, and of Paving and Veneer.
I was there when Ralph Fletcher spoke to the men at the quarry office on June
25, 1958. He was talking about the union election coming up on the 27th.
After he finished talking, Ted Boucher started asking him questions about the
union and whether it would hurt the bonus and the pool and so forth. Bob
Bennett moved over next to Ted and told him to shut his mouth . I saw and
heard this . After that, Ted stopped asking questions . There were quite a few
crews and a lot of men at that meeting.
(Signed ) CARL R. NYI.uND.
I, Carl R . Nylund, being under oath , depose and say that I am employed by
the H . E. Fletcher Co. as Superintendent of the Quarry , and of Paving and
Veneer. At some of Ralph Fletcher's meetings with the men to talk about
the election , he found it awfully hard to get any questions asked. I looked
into this and one of my men made a statement to me that at one of the meetings
in Lowell held by the union the men present were told by the union officials
to listen to the talks given by Mr. Fletcher but not to ask any questions . Similar
statements have been heard around the job that union officials told the men not
to ask any questions of Mr . Fletcher when he came around to talk to the men.
(Signed ) CARL R. Nxiuim.
Alfred Davis and Robert Bennett are both employees of the Employer and both
names appear on the eligibility list. Nothing contained in the affidavits indicates an
agency relationship of these men with Petitioner nor are any facts adduced establish-
ing such relationship . It is the conclusion of the Regional Director that no merit
attaches to this part of the objections. -
3(e) The Employer failed to submit any evidence in support of this part of the
objections except that contained in the affidavits above mentioned . These affidavits
are silent as to any electioneering activity by Keenan. In any event, no prima facie
breach of election rules exists in electioneering in proximity to the polling places,
except when the polls are open .4 The polls here were closed from 8 : 45 a. in. to
2:45 p . m. during which period the proximity electioneering complained of is alleged
to have occurred.. No evidence was submitted , nor was any discovered, nor were
any allegations made of any such electioneering at any time when the polls were
open . It is the conclusion of the Regional Director that no merit attaches to this
part of the objections.
Having concluded that -no merit attaches to any part of the objections, it is the
recommendation of the Regional Director that the objections be dismissed in their
entirety.
a General Steel Tank Company , Inc., 111 NLRB 222.
Jack Gordon, Lewis Garlick , Murray Gordon , d/b/a Ivy Hill
Lithograph Company,' and Record Packaging Corporation and
Local 1 , Amalgamated Lithographers of America, AFL-CIO.
Case No. f-CA-506f. September 15,1958
DECISION AND ORDER
On February 6, 1958, Trial Examiner James A. Shaw issued his
Intermediate Report in the above-entitled proceeding, finding that the
The caption In this case Is hereby amended to reflect the correct name of this Company.
121 NLRB No. 108.