Kiekhaefer Corp.

National Labor Relations Board - Board Decisions

Mar 14, 1958

120 N.L.R.B. 95 (N.L.R.B. 1958)

KIEKHAEFER CORPORATION 95
to an election is obliged to furnish evidence in support of such objec-
tions and that, unless such evidence is produced, the Regional Director
is not required to pursue his investigation further.6 No such support-
ing evidence has been produced here. Accordingly, we find no merit
in this contention of the Employer.
Having considered the Regional Director's report on objections and
the Employer's exceptions thereto and supporting memorandum, and
having found the Employer's objections to be without merit, we
hereby overrule them. As the objections and exceptions do not raise
substantial issues of fact, we deny the Employer's request for a hear-
ing.' As the Petitioner has received a majority of the valid ballots
cast in the election, we shall certify the Petitioner as the collective-
bargaining representative of the employees in the appropriate unit.
[The Board certified Local No. 16, International Hod Carriers,
Building and Common Laborers Union of America, AFL-CIO, as
the designated collective-bargaining representative of the employees
in the unit hereinabove found appropriate.]
Audubon Cabinet Company, Inc., 119 NLRB 349.
° The Humko Co., Inc, 117 NLRB 825, 828.
Kiekhaefer Corporation and District No. 10, International Asso-
ciation of Machinists , AFL-CIO , Petitioner. Cade No. 13-RC-
5595. March 14, 1958
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
On August 7, 1957, pursuant to a stipulation for certification upon
consent election, an election by secret ballot was conducted under
the direction and supervision of the Regional Director for the
Thirteenth Region among the employees in the agreed appropriate
unit. Following the election the Regional Director served upon the
parties a tally of ballots which showed that of approximately 667
eligible voters, 516 cast ballots, of which 371 were for Kiekhaefer
Independent Workers Association, herein called the Independent, 127
for the Petitioner, and 8 against the participating labor organiza-
tions. There were 10 challenged ballots, a number insufficient to affect
the results of the election. Two ballots were void.
On August 12, 19 -57, the Petitioner filed timely objections to con-
duct affecting the results of the election. On November 15, 1957,
following an investigation, the Regional Director issued and duly
served upon the parties his report on objections, in which he found
merit in objections Nos. 1, 2, and 12, and rejected the remaining ob-
120 NLRB No. 17.
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jections, except for the sixth which he found unnecessary to resolve.
He therefore recommended that the election be set aside and a new
election be ordered by the Board. Thereafter, the Employer and
the Independent filed exceptions to the Regional Director's report
and supporting briefs.
Upon the, entire record in the case, the Board finds :
1. The mployer is engaged in commerce within the meaning of
the Act.
, 2. The Petitioner and the Independent are labor organizations
claiming to represent certain employees of the Employer.
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 at the Employer's
Cedarburg, Wisconsin, plants, #1 and #2, including leadmen, but
excluding office and plant clerical employees, quality control em-
ployees, laboratory employees, professional employees, guards, and
supervisors as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
5. We agree with the Regional Director's rulings sustaining ob-
je:;tions Nos. 1, 2, and 12, to which exceptions have been taken.
In the first objection, the Petitioner alleged that the Employer
made promises of benefits to its employees and to the incumbent In-
dependent in order to defeat the Petitioner in the election. The
Regional Director found that after the signing of the stipulation for
certification upon consent election on July 24, 1957, the Employer
and the Independent continued to negotiate for a new contract to
replace their old one which expired June 30, 1957. They held a
bargaining session on July 29, at which the Employer advanced a
counterproposal which satisfied most of the demands of the Inde-
pendent. The next day, the Independent held a membership meet-
ing at which the terms of the counterproposal were presented, but
no vote was taken thereon. Thereafter, the Independent printed bul-
letins setting forth the Employer's counterproposal. On August 2,
the Independent mailed copies of the bulletins to 150 employees who
were temporarily laid off, and 2 days before the election it distributed
550 copies at the plant gates. The Regional Director also found that
on the morning of the day of the election, the Employer acceded
to a grievance of 4 or 5 laid-off employees, presented anew by Presi-
dent Heuttel of the Independent, concerning the claim to pay for
Memorial Day which immediately preceded the layoff of some 200
employees. Heuttel, given permission by the Employer to inform
KIEKHAEFER CORPORATION 97
the grievants of the concessions, related the information to 10 to 12
employees prior to the election.
The Regional Director concluded, and we agree, that the making of
the concessions above described and their publication to employees by
the Independent prior to the election, constituted interference with
the employees' free choice in the election, under the Board's ruling in
Electric Auto-Lite.'
In the 2d and 12th objections, the Petitioner alleges that the Em-
ployer permitted Heuttel to roam the plant and allowed the Independ-
ent to use plant bulletin boards for electioneering purposes prior
to the election but denied similar privileges to the Petitioner. The
Regional Director found that upon signing the stipulation for certi-
fication, the Employer put into effect a plant no-solicitation rule.
However, Heuttel was permitted to enter the plant daily, and at such
times he discussed campaign issues with various employees during
working hours. Although warned by the Employer to discontinue
such activity, Heuttel ignored such warnings and no further steps
were taken by the Employer to stop his campaigning in the plant.
On the other hand, the efforts of adherents for the Petitioner to discuss
campaign issues in the plant were dealt with firmly by the Employer.
In addition, the Employer allowed the Independent to use the plant
bulletin board space reserved to it under the contract for the publica-
tion of campaign material? On the other hand, the efforts of the
Petitioner to use bulletin board space in the plant for the same pur-
pose were at first denied and later, when the Independent consented
to share its allotted space, were interfered with by the Employer
and the Independent.
The Regional Director concluded, and we agree, that the Employer,
by the foregoing conduct, favored the Independent in the enforce-
ment of the plant no-solicitation rule, and thereby interfered with
the election?
We therefore adopt the Regional Director's conclusion that objec-
tions Nos. 1, 2, and 12 raise material and substantial issues concerning
conduct affecting the results of the election and his recommenda-
1 Electric Auto-Ltite Company , 116 NLRB 788 , 790, where the Board stated : "It is the
Board's considered view, based on experience in conducting representation Plections, that
the promises of benefits to employees and acts according prestige to unions , made after
a question of representation has been found to exist by the Boaid and prior to the resolu-
tion of this question by an election , tend to interfere with employee freedom of choice so
zealously guarded by the Board "
We recognize that this ruling is not entirely consistent with the Board's holding in
William D Gibson Co ., 110 NLRB 660. However, we question the validity of that deci-
sion and, therefore , decline to apply the piinctple adopted therein in this case.
2 Article V of the Independent 's recently expired contract reads • "Bulletin Boards, as
established in the several departments may be utilized by the Union for the purposes of
posting notices relating to union business but in no case shall bulletin boards be used for
campaign propaganda purposes "
3N L R B v National Container Corp , 211 F. 2d 525 (C A. 2), enfg . 103 NLRB 1544.
483142-59-vol. 120-8
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions that the election be-set aside on these bases. Accordingly, we
shall set aside the election in this case and order that a new election
be held.
[The Board set aside the election held on August 7,1957.]
[Text of Direction of Second Election omitted from publication.]
MEMBER BEAN took no part in the consideration of the above De-
cision, Order, and Direction of Second Election.
Grand Forks Grocery Company and General Drivers & Ware-
house Employees , Local 581, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers of America,
Petitioner . Case No. 18-IBC-3384. March 17, 1958
SUPPLEMENTAL DECISION, DIRECTION, AND ORDER
Pursuant to a Decision and Direction of Election in the above-
entitled proceeding ,' an election by secret ballot was conducted on
November 19 , 1957, under the direction and supervision of the
Regional Director for the Eighteenth Region, among the employees
in the unit found appropriate by the Board . At the conclusion of the
election the parties were furnished with a tally of ballots which
showed that there were 12 eligible voters and that 11 cast ballots, of
which 5 were cast for, and 3 against , the Petitioner . There were three
ballots challenged by the Petitioner , a number sufficient to affect the
results of the election . Thereafter , the Petitioner filed timely objec-
tions to conduct affecting the results of the election.
After investigation, the Regional Director , on December 27, 1957,
issued his report and recommendations on objections and challenges,
in which he found the objections to be without merit and recommended
that they be overruled . The Regional Director also recommended that
the challenges to all three ballots in question be sustained and, further,
that the Petitioner be certified as the bargaining agent of the
employees in the unit found appropriate . The Employer has filed
timely exceptions to the Regional Director 's report.
The Objections
No exceptions were filed to the Regional Director's recommendation
that the Petitioner's objections be overruled. In view thereof, this
recommendation is hereby adopted.
1 Not published.
120 NLRB No. 20.