292 N.L.R.B. 747 (N.L.R.B. 1989)

Kleen Brite Laboratories, Inc

National Labor Relations Board - Board DecisionsJan 31, 1989

292 N.L.R.B. 747 (N.L.R.B. 1989)

KLEEN BRITE LABORATORIES 747 Kleen Brite Laboratories , Inc and Rochester Joint Board, Amalgamated Clothing and Textile Workers Union , AFL-CIO-CLC Case 3-RC- 9240 January 31, 1989 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT The National Labor Relations Board, by a three member panel, has considered objections to an election held July 8, 1988,1 and the Regional Di- rector's report recommending disposition of them The tally of ballots shows 143 for and 83 against the Union, with 3 challenged ballots and 1 void ballot, an insufficient number to affect the results The Board has reviewed the record in light of the exceptions and brief, has adopted the Regional Director's findings and recommendations,' as modified below, and finds that a certification of representative should be issued The Employer's primary exception concerns the premature disclosure to the Union of the Acting Regional Director's unit decision The Employer contends that the disclosure impugned the Board's neutrality and affected the election results The relevant facts are essentially undisputed This communication occurred on Thursday, June 9, the same day the Decision and Direction of Election (the decision) was mailed to both parties After the decision was mailed, a member of the Re gional Office staff, in response to a telephone in quiry by the Union, disclosed that the decision found that the bargaining unit sought by the Union was an appropriate unit There is no evidence that any unit employee was told that this communica tion had occurred The Union received its copy of the decision on Friday, June 10, after it had already printed and distributed a handbill notifying employees of the fa vorable ruling on the unit issue 3 That same day, i All dates are 1988 unless otherwise specified z In adopting the Regional Directors recommendation that the Em ployer s objection regarding alleged harassment of employees be over ruled we have taken into consideration that one particular female em ployee was with two exceptions the butt of the alleged harassment We affirm the Regional Directors finding that none of the alleged incidents of harassment of this employee uses to the level of objectionable con duct We also concur with the Regional Directors conclusion that the alleged incidents of harassment of all 3 employees concerned considered in totality were minimal in the context of an election involving 242 em ployees Cafe La Salle 280 NLRB 379 fn 1 ( 1986) (incident too mammal to have interfered with the conduct of a free and fair election) 8 In its brief at 7 the Employer describes the handbill as accusing the Employer of lying at the hearing In Midland National Life Insurance Co 263 NLRB 127 (1982) the Board established that elections will only be set aside on the grounds of campaign misrepresentation if documents have been forged There is no allegation here that the Union forged the the Employer, who did not receive its copy of the decision until Monday, June 13, contacted the Acting Regional Director about the handbill that discussed the unit determination The Acting Re- gional Director, without indicating whether he had found the multiplant unit to be appropriate, ac knowledged that it was against Board practice to reveal the contents of a decision, other than by serving all parties at the same time and in the same manner with a copy of the document The governing principles were enunciated by the Board in Athbro Precision Engineering Corp, 166 NLRB 966 (1967) 4 In Athbro5 the Board stated at 966 The Board in conducting representation elections must maintain and protect the integri- ty and neutrality of its procedures The com- mission of an act by a Board Agent conduct ing an election which tends to destroy confi dence in the Board's election process, or which could reasonably be interpreted as im pugning the election standards we seek to maintain , is a sufficient basis for setting aside that election In the instant case, we do not find that the Board's neutrality has been impugned by the pre- mature disclosure because the unit determination was already a fait accompli and the decision had already been mailed at the time when the objected- to disclosure occurred Nor could employees have been unduly influenced by the premature disclosure because there is no evidence that they knew it oc curred In overruling this objection by the Employer, we also note that the conduct at issue is fundamentally different from that in the cases relied on by the Employer including Athbro and its progeny In those cases, as the Regional Director pointed out, the improper conduct occurred during, or in close proximity to, the balloting, or involved improper custody of the ballot box itself By contrast, the conduct complained of in the instant case occurred more than a month before the balloting and was limited to the premature disclosure to one party of information which both were to receive within days Although we do not condone the premature disclosure, we find that it neither impugned the Board's neutrality nor affected the outcome of the election result of the decision or even misrepresented it only that the Union had access to the decisions result prematurely 4 Vacated sub nom Electrical Workers IUE v NLRB 67 LRRM 2361 (D D C 1968) acquiesced in 171 NLRB 21 (1968) enfd 423 F 2d 573 (1st Cir 1970) 5 The Board recently affirmed the Athbro principles Hudson Aviation Services 288 NLRB 870 871 fn 6 (1988) 292 NLRB No 75 748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CERTIFICATION OF REPRESENTATIVE All production, maintenance, shipping alnd re- ceiving employees employed by the Employer at its facilities located in Rochester and Brock- port, New York ; excluding all managerial em- ployees, office clerical employees, and profes- sional employees , guards and supervisors as defined in the Act. IT IS CERTIFIED that a majority of the valid bal- lots have been cast for Rochester Joint Board, Amalgamated Clothing and Textile Workers Union, AFL-CIO-CLC and that it is the exclusive collective-bargaining representative of the employ- ees in the following appropriate unit: