Kenyon-Peck, Inc.

National Labor Relations Board - Board Decisions

Sep 4, 1958

121 N.L.R.B. 780 (N.L.R.B. 1958)

780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1957 " As the Regional Director pointed out in his report, the Peti-
tioner's witnesses differed substantially in their versions of what
Lawler said about recognizing the Committee 9 Under all the circum-
stances , we find, as the Regional Director did, that the evidence sub-
mitted by the Petitioner does not support this objection
We also agree with the Regional Director that the other alleged
instances of misconduct do not constitute grounds for setting aside
the election or for holding a hearing as they were not supported by
evidence or were not sufficient in law to constitute interference with
the election Accordingly , we find that the Petitioner's objections do
not raise substantial or material issues with respect to the conduct of
the election , and we hereby overrule them
As the Petitioner failed to secure a majority of the valid ballots
cast, we shall certify only the results of the election
[The Board certified that a majority of the valid ballots was not
cast for International Union, United Automobile , Aircraft and Agri-
cultural Implement Workers of America (UAW-AFL-CIO), and
that the Union is not the exclusive representative of the employees in
the unit heretofore found by the Board to be appropriate.]
CHAIRMAN LEEDOM and MEMBER JENKINS took no part in the con-
sideration of the above Second Supplemental Decision and Certifica-
tion of Results of Election.
9 When the Petitioner filed its brief, it also submitted to the Board copies of affidavits
which, the Petitioner stated, it understood had been submitted to the Regional Director
One of these affidavits states in relevant part as follows
Mr Lawler also said they could organize another union within a week and loft the
impression this new organization could bargain with Aeronca Carp In this sense
Mr Lawler referred to Alton Combs letter to hun (Mr Lawler) requesting bargaining
rights in the name of The Aeronca Employees Committee Inc [Sic ]
A second affidavit states that
In a speech by Mr Lawler called during working time he said "even though the
UAW says you can't have an N L R B certified union I am going to recognize the
Aeronca Employees Committee to represent you I (Mr Lawler) pledge this to you
if the UAW is defeated "
The other affidavits submitted by the Petitioner do not touch on this matter
Kenyon-Peck , Inc. and Automotive, Petroleum, Cylinder and
Bottled Gas, Chemical Drivers, Helpers and Allied Workers,
Local No. 922, L B. T., Petitioner. Case No 5 RC--459. Sep-
tember 4, 1958
DECISION AND CERTIFICATION OF RESULTS OF
ELECTION
On April 17, 1958, pursuant to a stipulation for certification upon
consent election, an election by secret ballot was conducted under the
121 NLRB No 98
KENYON-PECK, INC. 781
direction and supervision of the Acting Regional Director for the
Fifth Region among the employees of the Employer in the unit de-
scribed in the stipulation. At the conclusion.of the election, a tally
of ballots was furnished the- parties. The tally shows that of the
14 eligible voters, 13 cast valid ballots, of which 6 voted for the
Petitioner, and 7 voted against the participating labor organizations.'
On April 24, 1958, the Petitioner filed timely objections to the elec-
tion,.alleging in substance that (1) a defaced sample ballot was posted
in the office where employees voted, and (2) that the Employer's
president improperly electioneered before the election. In accordance
with the Rules and Regulations of the Board, the Acting Regional
Director conducted an investigation of the objections and, on July 10,
1958, issued and served on the parties his report on objections in which
he found that the Petitioner's objections, were without merit, and in
which he recommended that the objections be overruled. Thereafter,
the Petitioner filed timely exceptions to-the report, and a supporting
affidavit and memorandum.
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, Bean, and Jenkins].
The Board has reviewed the stipulation,of the parties, the objec-
tions, the acting Regional Director's report, and the Petitioner's ex-
ceptions'thereto.
Upon the entire record in this case, the Board makes the following
findings of fact :
1. The Employer is engaged in commerce within the meaning of
the Act. r
2. The Petitioner claims 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. The following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within the mean-
ing of the Act : All new- and used- car salesmen employed at the
Employer's Arlington, Virginia, automobile agency, excluding office
clerical employees, all other employees, watchmen, guards, and super-
visory employees as defined in the Act.
5. Objection No. 1: In this objection, it is alleged that the Board's
sample ballot was defaced and an "X" inserted in the middle block
under "neither" and that this posted ballot was on the wall in the sales
manager's office where the employees voted. The Acting Regional
Director's report shows that:,There had been posted for several days
' The Retail Clerks International Association, Retail Automotive Salesmen 's Union,
Local 1391 , AFL-CIO , which was also on the ballot, received no votes.
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a notice of election containing a sample ballot with the "neither" box
marked; when the Employer's sales manager first became aware of
the defacement 2 or 3 days prior to the election, he erased the mark;
8 of the 13 employees who voted in the election and who made frequent
visits to the sales manager's office were unaware of any marking on the
posted notice; and the Board agent conducting the election removed
the defaced notice before the balloting started in the sales manager's
office.
Under all these circumstances, and particularly as there is no evi-
dence that the Employer was responsible for the defacement, and
as the defaced notice was removed from the election room before the
balloting commenced, we find that the defacement of the notice of
election does not afford a sufficient basis for setting aside the election.a
Accordingly, in agreement with the Acting Regional Director, we
overrule this objection.
Objection No. 2: In its second objection, the Petitioner alleges in
substance that on the morning of the election the Employer's presi-
dent, Mr. Peck, discussed the McClellan hearings with a number of
salesmen,' making reference to an article in the morning newspaper,
and that he placed the newspaper article in the voting room 4 Mr.
Peck admits having said, when he arrived in the showroom on the
morning of the election, that the unions were in the newspapers again,
and that some official had refused to testify about union funds.
The Acting Regional Director recommends that this objection be
overruled as the Employer's comments were privileged, and nonviola-
tive of the Peerless Plywood rule.' The Petitioner, in its exceptions,
urges that a "distinction or refinement" of the rule should be made
because of the "violation of the spirit and intent of existing Board
rules." We do not agree. In the instant case it is clear. that the Em-
ployer's president did make certain privileged comments on company
time and property within the 24-hour period before the election.
However, the Petitioner does not allege, and there is no evidence which
shows, that any of the president's comments consisted of "election
speeches" to "massed assemblies ' of employees." In these circum-
stances, and in accord with present Board policy,' we find that the
Employer's conduct was not proscribed. Accordingly, in agreement.
with the Acting Regional Director, this objection is overruled.
In view of the foregoing, and upon the record as a whole, we find
2 See Murray Chair Company, Inc., 117 NLRB 1385 , 1387 , and F. H. Snow Canning,
Company, Inc., 119 NLRB 714
There is conflict as to whether be spoke with 2 -3, 4-5, or 7 employees.
"We do not deem it necessary to decide whether Mr. Peck or someone else took the,
newspaper into the sales office, as it was removed by the Board agent prior to the balloting.
51n Peerless Plywood Company, 107 NLRB 427 , the Board proscribed the making of
election speeches on company time to "massed assemblies of employees " within 24 hours
of the time scheduled for an election.
6 The Gallaher Drug Company, 116 NLRB 1263, 1264.
ATLANTIC-PACIFIC MANUFACTURING CORPORATION 783
that the Petitioner's objections do not raise substantial or material
issues affecting the results of the election and they are hereby over-
ruled. Accordingly, as the Petitioner failed to secure a majority of
the valid ballots cast, we shall certify the results of the election.
[The Board certified that a majority of the valid ballots was not
cast for either Automotive, Petroleum, Cylinder and Bottled Gas,
Chemical Drivers, Helpers and Allied Workers, Local No. 922,
I. B. T., or Retail Clerks International Association, Retail Automo-
tive Salesmen's Union, Local 1391, AFL-CIO, and that neither of
the said organizations is the exclusive representative of the Em-
ployer's employees in the unit found appropriate.]
Atlantic-Pacific Manufacturing Corporation , Petitioner and
Marine Allied Workers Division , Seafarers International Union
of North America , Atlantic & Gulf District, AFL-CIO and
Local 1205, International Brotherhood of Teamsters
Atlantic -Pacific Manufacturing Corporation and Local 1205,
International Brotherhood of Teamsters, Petitioner
Atlantic-Pacific Manufacturing Corporation and Life Saving
Equipment Employees Union , Inc., Petitioner. Cases Nos.
2-RM-856, 2-RC-9094, and 2-RC-9144. September 5,1958.'
DECISION, ORDER, AND DIRECTION OF ELECTION
Upon petitions duly filed, a consolidated hearing was held before
a hearing officer of the National Labor Relations Board. His rulings
made at the hearing are free from prejudicial error and are affirmed.
Pursuant to Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers herein to a three-member panel
[Members Rodgers, Bean, and Jenkins].
Upon the entire record, the Board finds :
1. The Employer is engaged in commerce within the meaning of.
the Act.
2. The labor organizations named below claim to represent certain
employees of the Employer.'
' On June 11, 1957 , the Employer filed its petition in Case No . 2-RM-856, alleging
that the Marine Allied Workers Division , Seafarers International Union of North America,
Atlantic & Gulf District , herein called the MAWD , and Local 1205, International Brother-
hood of Teamsters , herein called the IBT, claimed to'represent its employees . The two
unions had been engaged in a joint campaign at the Employer 's plant, which culminated
in a June 10 IBT oral demand for recognition on behalf of the Employer 's five truck-
drivers On June 11, the drivers struck and commenced picketing . While so engaged,
they received strike benefits from the MAWD and passed out its circulars . The Employer
then requested a conference with the two unions which was held on June 11, at MAWD
headquarters . When the Employer asked if the truckdrivers would go back to work if It
121 NLRB No. 115.