J. I. Case Co.

National Labor Relations Board - Board Decisions

Aug 5, 1949

85 N.L.R.B. 576 (N.L.R.B. 1949)

In the Matter of J. I. CASE COMPANY, EMPLOYER and INTERNATIONAL
ASSOCIATION OF MACHINISTS, PETITIONER
Case No. 18-RC-139
THIRD SUPPLEMENTAL DECISION
AND
CERTIFICATION OF REPRESENTATIVES
August 5,1949
On April 15, 1949, the Board, in its Supplemental Decision and
Order issued in this proceeding, considered certain of the objections
filed by the Employer to the conduct of the run-off election held on
December 7 and 8, 1948, among employees in a residual group of pro-
duction and maintenance employees sought to be represented by Inter-
national Union United Automobile, Aircraft and Agricultural Imple-
ment Workers of America, UAW-CIO, hereinafter referred to as the
UAW. The objections considered covered the failure of the Regional
Director to comply with a Board order directing him to challenge,
segregate, and ianpound the ballots of certain patternmakers and pat-
ternmaker apprentices who had voted in the election.
We held that although the failure of the Regional Director to segre-
gate 12 ballots cast by the patternmakers and their apprentices had
impressed an uncertainty upon the results of the election, such fact had
not rendered the election void, as the uncertainty might be resolved by
deducting 12 votes from the UAW's affirmative vote in order to deter-
mine whether the UAW still retained a clear majority of valid votes
cast.' Because the result showed 835 valid votes for the UAW'and 833
against the UAW, we held that the UAW would nevertheless not be
certified unless, after a consideration of the issues raised by the 10
challenged ballots, the resulting tally gave the UAW a clear majority
of all valid votes cast. We therefore directed in our Supplemental
Decision and Order, hereinabove referred to, that the Regional Direc-
tor investigate the issues raised by the challenged ballots and submit
i The original tally showed that there were 2,484 eligible voters, that 1 , 680 votes were
cast of which 847 were for the UAW and 833 , igainfit . Ten'-ballots ,were challenged and
15 ballots were declared void.
85 N. L. R. B., No. 104.
576
J. I. CASE COMPANY 577
his report and recommendation with respect thereto. No determina-
tion was made as to the validity of the remaining objections filed by
the Employer, as it appeared that 'after the issues raised by the chal-
lenged ballots had been considered, such objections might become moot.
Pursuant to the foregoing order, the Regional Director investi-
gated the issues with respect to the challenged ballots and on May 13,'
1949, issued his Report on Challenges. In the Report on Challenges,
the Regional Director recommended that the challenges to the ballots
of nine employees, including one Alcadio Ramirez, be sustained and
that the remaining challenge to the ballot of one John Hoy be over-
ruled, but that such ballot be not opened and counted because, in the
opinion of the Regional Director, such ballot could not affect the
results of the election.
In its Exceptions to the Regional Director's Report on Challenges,
the Employer opposed both the recommendation of the Regional Di-
rector that the challenge to the ballot of Alcadio Ramirez be sustained
and also the recommendation that the ballot of John Hoy be not opened
and counted. The Employer did not oppose the other recommenda-
tions of the Regional Director with respect to the challenged ballots.
On June 16, 1949, the Board, in effect, sustained the Employer's ex-
ception with respect to the ballot of John Hoy, by directing the Re-
gional Director, without prejudice to a consideration of the other
exceptions, to open and count the ballot of John Hoy and to submit
a revised tally in connection therewith. Pursuant to such direction,
the Regional Director submitted a Revised Tally of Ballots which
showed that an additional vote had been cast for the UAW, giving the
latter a total of 836 valid votes out of a total of 1,669 ballots validly
cast.2 In view of the, fact that the UAW has now a majority of 3
votes, we find that it is unnecessary to consider the Employer's excep-
tion to the Regional Director's recommendation with respect to the
ballot of Alcadio Ramirez, as this ballot, even if found to be cast
against the UAW, could not affect the results of the election.3
There remains for disposition certain objections of the Employer to
the conduct of the run-off election. Although the contrary was indi-
cated in our earlier Supplemental Decision and Order, it is now clear
that a consideration of the issues raised by the challenged ballots has
2 The Revised Tally of Ballots showed that there were 2 , 484 eligible voters ; that there
were cast 1 , 681 votes of which 848 were for the UAW and 833 against ; that there were 9
unopened challenged ballots and 15 void ballots.
3 In it Exceptions to the Regoinal Director 's Report on Challenges , the Employer raised
new objections to the conduct of the election and reiterated the objections previously
raised . We cannot consider such objections as having a proper place in exceptions to a
report on challenged ballots. Treated as a supplement to its original objections to the
conduct of the election , we find that such objections are untimely.
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not rendered moot those of the Employer's objections that were not
previously considered by the Board. We shall therefore proceed to a
consideration of such objections." The objections to be considered are
designated by the Employer as D1, D2, and D4 in paragraph II of its
objections.
In objection Dl the Employer alleges that "In the presence of nu-
merous other employees, after at least one employee had marked his
ballot in the voting booth, he was asked for his ballot by a Board agent
who, after examining it, destroyed it." The Regional Director re-
ported that the Board agent had reason to believe that the particular
employee had marked his ballot with .a red pencil and that his pur-
pose might have been to identify the ballot. This ballot was examined
and destroyed when found to be improperly marked. The employee
was permitted to cast a new ballot in the usual fashion which was
deposited in the ballot box. Although we do not approve of the con-
duct of the Board agent in examining the ballot, nevertheless in our
opinion the one isolated instance of such an impropriety was insuffi-
cient to prejudice the results of the election, as such conduct did not,
so far as the participants in the election were concerned, affect the
secrecy of the ballot nor did it deprive the particular employee of his
right to select a bargaining representative. .
In objection D2, the Employer alleges that "At least one employee
was instructed and permitted to cast two ballots." The Regional
Director's Report explained the circumstances under which this em-
ployee was first allowed to cast a challenged ballot and then a regular
ballot. It was presumed that the challenged ballot, which was placed
in a sealed envelope, was destroyed, as it could not be found after
the balloting had been completed. In our opinion, the circumstances
surrounding this occurrence do not support the conclusion that the
employee in question had been permitted to cast two ballots. However,
without undertaking to dispose of this objection on its merits, we may
assume, for the purpose of ruling on the objection, that the particular
employee had in fact voted twice, and that his second ballot had been
cast in favor of the UAW. If, upon this assumption, we are to deduct
one vote from the UAW's affirmative vote in order to correct the error,
we find that the UAW would still retain a majority of valid votes
cast.
In objection D4 the Employer alleges "Other.acts, occurrences, and
omissions affecting the results of the run-off election," more par-
ticularly that the agents of the UAW were engaged in electioneering
4 Not included in our present consideration are objections designated by the Employer
as A, B, C, D3, and E. Of these objections, A, B, C, and D3 were covered by' our supple-
mental Decision and Order of April 15, 1949. Objection E requires no specific treatment
as it is merely a conclusion based upon the preceding objections.
J. I. CASE COMPANY 579
in violation of the rules and regulations of the Board. The run-off
election was held between the hours of 10 p. in. and midnight on
December 7, continuing until 12: 30 a. in. on December 8, and between
the hours of 5: 30 a. in. and 7: 30 p. in. on December 8. According to
the Employer's specifications submitted in connection with its objec-
tions, the voting booths were located in a house situated on an open
lawn, approximately 50 feet from the public sidewalk on State Street
in Bettendorf, Iowa. The Employer also indicated that the principal
employee entrance to its plant was located directly across the street
at a distance of 60 feet from the curb in front of the polling place.
The Employer charges, in substance, that throughout the period of
voting, agents of the UAW stationed themselves at the plant gate and
along the sidewalk in front of the polling place at distances which,
except in a few instances,' extended at least 40 feet or more from the
entrance to the polling place.
It is not denied by the Regional Director that the matter of elec-
tioneering was 'called to the attention of the Board agent. In fact
the Regional Director reports that during the conduct of the elec-
tion, and for a period estimated not to exceed 4 minutes, UAW rep-
resentatives remained immediately in front of the entrance to the
polling place and distributed electioneering material to employees on
their way to the polls. However, the Regional Director reports that
as soon as the Board agents discovered their presence, the-UAW rep-
resentatives were asked to, and did, leave immediately.
Moreover, although the Regional Director admits that UAW agents
stationed themselves at the entrance to the Employer's plant and dis-
tributed electioneering material to employees who arrived at or left
the plant entrance, the Regional Director finds that such distribu-
tion occurred at a distance of approximately 110 feet from the polling
place. The Regional Director adds that all employees who appeared
at the polling place with leaflets or other material in their hands were
not permitted to enter the polling place until they had discarded all
electioneering material. Upon the basis of the foregoing, the Re-
gional Director finds that the Board agents had committed no error
which could in any way be considered prejudicial to the rights of
any party, or which could, in any manner, affect the results of the
election. Accordingly, the Regional Director recommended that the
Employer's objections be overruled.
5 The Employer contends that in some instances electioneering was conducted at a dis-
tance less than 40 feet from the polling area . The Employer alleges that one such in-
stance occurred 30 feet from the "doorway" of the polling place and another on the steps
thereof , in each of which instances , UAW agents had accosted employees approaching the
premises for the purpose of voting, and had distributed certain electioneering material
urging employees to vote for the UAW.
857829-50-vol . 8 5--3 8
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In support of the recommendations of the Regional Director, it does
not appear, nor is it alleged, that prior to the actual time of balloting
any area had been designated or marked-off by the Regional Director
as a "no electioneering" area ; neither is there any allegation that
the UAW representatives wilfully violated. the Board agent's request
to such representatives, when their presence was reported, to leave
the area immediately in front of the polling place. In this respect;
the situation with which we are here confronted differs substantially
from that in Matter of Detroit Creamery Company- and Matter of
Kilgore Manufacturing Company,7 cases relied on by the Employer.
In the Detroit'Creamery case the Board set aside an election where a
union official had without authority invaded the actual premises
where balloting was then being conducted. Similarly, in the Kilgore
case, the Board set aside an election because a wilful and persistent
violation, after an initial warning from Board agents, of the rule
against electioneering within an area which had been designated as
a "no electioneering" area. We also note. that the same element of
tivilfullness, after an initial warning, was found by the Board to be
material in Matter of Continental Can Company.8
Upon the record in the present instance, we believe that, whatever
deviations from usual election practices may have occurred with re-
spect to electioneering during the course of election, they not only
lacked the element of wilful violation of Board rules, but were too
sporadic in nature to have had any effect upon the election results.9
We find, in accordance with the recommendations of the Regional
Director, that the Employer's objections do not raise substantial and
material issues regarding the conduct of the election. Accordingly,
as a Tally of Ballots shows that a ma-jority of all valid votes counted
have been cast for the UAW, we shall certify that organization as the
collective bargaining representative of the Employer's employees in
the unit.
CERTIFICATION OF REPRESENTATIVES
IT IS HEREBY CERTIFIED that International Union, United Automo-
bile, Aircraft and Agricultural Implement Workers of America,
UAW-CIO, has been designated and selected by the majority of all
production and maintenance employees of the J. I. Case Co., at its
Bettendorf, Iowa, plant, excluding all tool and die makers, toolroom
machine operators, tool and die heat treaters, tool and die makers'
6 60 N. L. R. B. 178,
7 45 N. L. R. B. 469,
8,80 N. L. R. B. 785;
9 Matter of Arteraft Hosieru;C0Jca8iy, 73 N. L. R. B. 808.
J. I. CASE COMPANY 581
apprentices, toolroom crib attendants and their leader men, toolroom
helpers, die sinkers, die finishers, inspectors on dies, tools, and jigs
and tool welders, all of whom work in Department 84 of the Em-
ployer's plant, all pattern makers and pattern makers' apprentices,10
employed in Department 281 of the Employer's plant, and all plant
protection -employees, professional employees, technical and clerical
employees, and all supervisors as defined by the Act, as their rep-
resentative for the purposes of collective bargaining and that, pursuant
to Section 9 (a) of the Act, the said organization is the exclusive
representative of all- such employees for the purpose of collective
bargaining with respect to rates of pay, wages, hours of employment,
and other conditions of employment.
MEMBERS MURDOCK and GRAY took no part in the consideration of
the above Third Supplemental Decision and Certification of Rep-
resentatives.
]U In our Decision and Direction of Election, issued February 15, 1949 , In Case No.
18-RC-300 (81 N . L. R. B. 651 ), we held that the pattern makers and pattern makers'
apprentices employed at the Employer ' s Bettendorf , Iowa , plant might constitute a sepa-
rate unit and directed an election among them to determine their desires . As a result of
the election the Pattern Makers League of N. A., A. F. L., was certified as the exclusive
bargaining representative of the pattern makers.