Machinery Overhaul Co., Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1957

119 N.L.R.B. 1071 (N.L.R.B. 1957)

MACHINERY OVERHAUL COMPANY, INC. 1071
Machinery Overhaul Company, Inc. and Robert English, Peti-
tioner and International Association of Machinists, District
Lodge No. 94, AFL-CIO. Case No. 21-RD-334. December 16,
1957
SUPPLEMENTAL DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
Pursuant to a Decision and Direction of Election dated September
12, 1957,1 an election by secret ballot was conducted on September 25,
under the direction and supervision of the Regional Director for the
Twenty-first Region. Upon the conclusion of the election, the parties
were furnished with a tally of ballots. The tally showed that of
106 votes cast, 1 vote was for the Union and 90 votes against, 14
ballots were challenged, and 1 ballot was void. The challenges were
insufficient to affect the election results.
On September 30, the Union filed timely objections to conduct af-
fecting the results of the election. On October 23, following an in-
vestigation, the Regional Director issued and duly served upon the
parties his report on objections, a copy of which is attached hereto, in
which he found that the Union's objections were without merit and
recommended that they be overruled, and that a certificate of results
be issued. The Union filed timely exceptions to the Regional Di-
rector's report.
The Board has considered the Regional Director's report, the
Union's exceptions, and the entire record in this case, and hereby
adopts the findings and recommendations of the Regional Director.
Accordingly, as we are overruling the Union's exceptions to the Re-
gional Director's report and, as the Union 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 International Association of Machinists, District Lodge No.
94, AFL-CIO, and that said Union is not the exclusive representative
of the employees at the Employer's Palmdale, California, plant in
the unit found to be appropriate.]
MEMBERS RODGERS and BEAN took no part in the consideration of
the above Supplemental Decision and Certification of Results of
Election.
1 Not reported in printed volumes of Board Decisions and Orders.
REPORT ON OBJECTIONS
Pursuant to a Decision and Direction of Election dated September 12, 1957, an
election by secret ballot was conducted on September 25, 1957, under the direction
119 NLRB No. 118.
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and supervision of the undersigned, among the employees in the unit found ap-
propriate by the Board. The results, as shown by the tally of ballots which was
served on the parties at the close of the election, were as follows:
Approximate number of eligible voters--------------------------------- 106
Void ballots--------------------------------------------------------- 1
Votes cast for the IAM, District Lodge 94, AFL-CIO-------------------- 1
Votes cast against participating labor organization------------------------ 90
Valid votes counted-------------------------------------------------- 91
Challenged ballots---------------------------------------------------- 14
Valid votes counted plus challenged ballots------------------------------ 105
On September 30, 1957, the Union filed timely objections to the election. Pur-
suant to Section 102.61 of the Board's Rules and Regulations, Series 6, as amended,
the Regional Director, after reasonable notice to all parties to present relevant
evidence, has completed the investigation of the objections, has reviewed all state-
ments made by witnesses, and carefully considered all other evidence submitted
by the parties, and hereby issues his report thereon.
Objection No. 1
1. By allegedly posting a notice and/or notices on the Company bulletin
board and/or boards which is purported to have read as follows:
Moco will always keep an open shop policy. You do not, and will not
have to join a union to work at this plant, to get ahead, to have an equal
opportunity with anyone else.
Remember:
Under most union contracts, dues, and initiation fees, are under a check
off system, whereby the company is obligated to take all of these from
an employees pay check before he gets it.
Important:
The election that you requested will be held Sep. 25th. You know how
you are going to vote, but remember, you cant afford to sit back and
figure that your vote won't make any difference, because it will. If only
20 of you vote, those 20 will decide the whole thing for every single one
of you, and don't forget that if you don't want the International Associa-
tion of Machinists, you have got to get in there and put in on the ballot.
The investigation discloses that the above material is a consolidation of two black-
board signs that were posted by the Employer, the signs in question being hung one
above the other but with approximately a foot of space separating them. Pictures
of the two blackboards showing the breakdown of the material contained in each
are attached to this report as attachments 1 and 2.1 Between January 23 and Sep-
tember 20, 1957, the blackboard of attachment 1 had been utilized for a freehand
printed notice that at least in part was of similar tenor. A photograph of the notice
at that time is attached to this report as attachment 3. On September 20, 1957,
this notice was erased and the letter printed notice of attachment 1 substituted. Later,
but on the same day, the second blackboard (attachment 2) was hung below it.
Investigation reveals that the Union primarily objects to the language of attach-
ments 2 and 3, referring ,to the Employer's open-shop policy and states; in effect,
that the Employer thereby demonstrated that it would follow a predetermined course
of refusing to bargain with respect to union security and that the Employer thereby
interfered with the election.
It appears in considering this objection that inasmuch as statements of similar
tenor appeared in the original notice (attachment 3), there could be a question as to
whether the substituted notices (attachments 1 and 2) might not be viewed as a con-
tinuation in the application of the A & P and Woolworth rules 2 as to the cutoff date
for objections and whether the critical date is the original posting. The Regional
Director believes it is not necessary to pass on this question. The Employer's
statements regarding its open-shop policy are not construed as the equivalent of a
declaration by the Employer that, in the event of certification of the Union, it would
refuse to perform its legal obligations under the Act to bargain in good faith on the
matter of union security. Instead, it would appear to be a permissible declaration
1 These attachments are not printed.
The Great Atlantic and Pacific Tea Company, 101 NLRB 1118; F. W. Woolworth Co.,
109 NLRB 1446.
MACHINERY OVERHAUL COMPANY, INC. 1073
of labor policy involving no threats or promise of reward or a declared intent to
pursue an unlawful course of conduct , if necessary to effectuate such policy 3 In the
Regional Director 's opinion , the text of attachments 1, 2, and 3, considered individ-
ually or collectively , do not exceed the limits of permissible free speech and campaign
propaganda . It is recommended that objection No. 1 be overruled.
Objection No. 2
2. By an alleged letter addressed "TO THE EMPLOYEES OF MACHINERY
OVERHAUL COMPANY, INC." under date of September 17, 1957, signed
by Earle Fleming , read as follows : The objection then recites the contents of
the letter in question which will not herein be repeated , but in lieu thereof
a copy of the letter is attached to this report as attachment 4.1
In objection No. 3, hereinafter discussed , the Union raises an objection to a
specific part of the letter that deals with the eligibility of striking employees . Objec-
tion No. 2 is therefore treated as raising objection to the other parts of the letter.
The Regional Director finds nothing therein that would not appear to be permissible
campaign propaganda . It is recommended that objection No. 2 be overruled.
Objection No. 3
3. By an alleged misleading and misstatement of fact in the above letter and
we quote: "The Labor Board order for an election provides that those employees
on strike who are not entitled to reinstatement since their jobs are now per-
manently filled will not be eligible to vote in this election."
In this objection , the Union points out that the Board in its Decision did not make
any finding of fact or ruling that the strikers had been permanently replaced and
were, therefore , ineligible to vote. The Decision makes no reference to the
strikers involved in this case. The Direction of Election , set forth on Form
NLRB-1145 (6-50 ), states in pertinent part, "excluding employees on strike who are
not entitled to reinstatement."
It is urged by the Union that the Employer 's statement is a misrepresentation
that deceived the employees as to what the Board had decided and constitutes inter-
ference with the election . The Employer contends that the statement correctly set
out the Board 's rule of exclusion of strikers not entitled to reinstatement, with
information designed to show how the rule is applied and basis thereof.
The strike , in which the strikers referred to are involved , commenced on Septem-
ber 18, 1956 , after the parties were unable to negotiate a contract following the
union certification on June 29 , 1956, in Case 21 -RC-4155. After the commence-
ment of the strike, unfair labor practice charges were filed by both the Union and
the Employer . These charges were dismissed and there were no pending charges
on file as of the time of the election . After the commencement of the strike, the
Employer began hiring new employees . Evidence submitted by the Employer indi-
cates that several months ago these new hires plus the nonstriking employees and
returned strikers filled all vacancies and a full complement of employees was
reached. The only hiring that has been done since that time is that necessary to
maintain the complement by reasons of vacancies created through normal turn-
over. No evidence to the contrary was offered by the Union.
The investigation discloses that the letter in question was not sent to any of
the striking employees . Although only a few of the strikers cast ballots in the elec-
tion, all of whom were challenged by the Employer, there is no evidence that their
failure to vote was related to the letter , although the Union was requested to
submit any evidence of this nature.
Although the statement in question may not have correctly quoted the Board
with respect to the voting eligibility of striking employees , since there is no evi-
dence that any eligible voter failed to cast a ballot because of such statement, the
Regional Director recommends that this objection be overruled.
Objection No. 4
By any and all of the above set forth alleged acts, and by other alleged acts,
the Employer did allegedly create an atmosphere among the employees before
and during the election that was not conducive to their exercising their rights
under the act of having an opportunity to register a free and untrammeled
$ The Lux Clock Manufacturing Company, Inc., 113 NLRB 1194. Cf., F. W. Woolworth
Co., 101 NLRB 1457.
476321-58-vol. 119=69
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
choice in selecting a collective-bargaining representative, therefore the Em-
ployer did allegedly engage in the conduct which affected the results of the:
election; . . .
In the opinion of the Regional Director, this objection lacks reasonable specificity
of the grounds upon which the objection is based, other than those previously con-
sidered, and therefore raises no issues to be considered on their merits.4 Further,
no evidence was submitted by the Union as to the other acts to which reference is.
made in this objection. It is recommended that this objection be overruled.
CONCLUSIONS AND RECOMMENDATION
As previously stated, the Regional Director concludes that the Union's objections.
do not raise substantial or material issues with respect to conduct affecting the-
results of the election and it is, therefore, recommended that the objections be:
overruled and that a certification of results be issued.
A Don Allen Midtown Chevrolet, Inc., 113 NLRB 879.
Automotive Supply Co., Inc. and General Drivers and Dairy Em-
ployees Union , Local 563, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America.t
Case No. 13-CA-29203. December 17, 1957
DECISION AND ORDER
On April 29,1957, Trial Examiner Alba B. Martin issued his Inter-
mediate Report in the above-entitled proceeding, a copy of which
report is attached hereto, finding that Respondent had engaged and
was engaging in certain unfair labor practices, and recommending
that it be required to cease and desist therefrom and to take certain
affirmative action. He also found that the Respondent had not en-
gaged in certain other unfair labor practices, and recommended that
the complaint be dismissed insofar as it alleged such unfair labor
practices. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report.
Pursuant to Section 3 (b) of the National Labor Relations 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 rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. These
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner except insofar as they are inconsistent with this decision.'
1 The Board having been notified by the AFL -CIO that it deems the Teamsters ' certifi-
cate of affiliation revoked by convention action, the identification of this Union is hereby
amended.
2 No exceptions having been filed to the Trial Examiner 's finding that the discharge of
Roy Glass violated Section 8 (a) (3) and ( 1) of the Act , we shall adopt it pro forma.
119 NLRB No. 113.