Macklanburg-Duncan Co.

National Labor Relations Board - Board Decisions

Dec 3, 1969

179 N.L.R.B. 848 (N.L.R.B. 1969)

848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Macklanburg-Duncan Company and Lodge 850,
International Association of Machinists and
Aerospace Workers, AFL-CIO, Petitioner. Case
16-RC-5195
December 3, 1969
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
Pursuant to a Stipulation for Certification upon
Consent Election , an election by secret ballot was
conducted by the Regional Director for Region 16
on June 19 , 1969. At the conclusion of the balloting,
the parties were furnished a tally of ballots, which
showed that of approximately 572 eligible voters,
550 cast ballots of which 158 were for , and 381
against , the Petitioner, with 5 void and 6 challenged
ballots. The challenges were insufficient in number
to affect the results of the election . Thereafter, the
Petitioner filed timely objections to conduct
affecting the results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations , the Regional Director
for Region 16 investigated the issues raised by the
objections , and'on August 25, 1969, issued and duly
served upon the parties his Report on Objections, in
which he recommended that Petitioner's objections I
through 5 be overruled and that additional evidence
found by the investigation be deemed as a
meritorious basis for setting the election aside.
Accordingly , the Regional Director recommended
that the election be set aside and that a second
election be directed . Thereafter , the Employer filed
timely exceptions to the Report and a brief in
support of its exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
Upon the entire record in this case , the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of the employees of
the Employer within the meaning of Sections 9(c)(1)
and 2 (6) and (7) of the Act.
4. We find , in accord with the stipulation of the
parties, that the following unit is appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All production and maintenance employees at the
Employer ' s plant in Oklahoma City, Oklahoma,
including part-time cafeteria workers, the chemist,
the station wagon driver, the plant truckdriver,
the incinerator operator, the recreation area
caretaker, leadmen, set-up men, and plant clerical
employees; excluding office clerical employees,
full-time cafeteria employees, print shop
employees, professional employees, guards,
watchmen and supervisors as defined in the Act.
5. The Board has considered the Regional
Director's Report, the Employer's exceptions thereto
and supporting brief, and the entire record in this
case, and hereby adopts the findings, conclusions,
and recommendations of the Regional Director.'
In finding that the Employer's exceptions raise no
material issue of fact or law, we note that the
Regional Director set the election aside on the basis
of undisputed evidence that the Employer, during
the critical period, distributed buttons and tee shirts
which contained proemployer and antiunion
propaganda. Two types of buttons were given to
supervisors, each of whom wore one. The
supervisors also placed the buttons on their desks
where employees could readily obtain them. Each
supervisor also wore a tee shirt. When asked by
employees how to get a tee shirt, the supervisors
said one could be ordered for 5 cents. The Regional
Director found that by making the items readily
available to employees the Employer forced
employees to express their union preferences.
In its exceptions, the Employer contends that,
with respect to this phase of its campaign, it relied
upon Aero Commander Division of Rockwell
Standard Corp., Case 16-RC-4407, March 31, 1967
(not published in NLRB volumes), wherein the
Regional Director did not set an election aside
where the Employer gave "Vote No" cards to its
supervisors and several employees took cards from
supervisor's pockets. In our opinion, the Employer's
reliance upon Aero Commander is misplaced.
Firstly, the distribution issue was not presented to
the Board in that case, as no exception was taken to
the Regional Director's recommendations in that
regard. But, in any event, the Employer's
distribution of "Vote No" cards to supervisors there
occurred under conditions consistent with a lawful
exercise of an Employer's right to utilize supervisory
personnel as media for publication of antiunion
propaganda. There was no evidence that the
Employer in that case intended to exceed this area
of legitimate activity, as the cards were not
distributed in quantities or under conditions
suggesting that the Employer intended or had
reasonable basis for belief that possession of the
cards by supervisors would place employees in a
position of declaring themselves as to union
preference. Here, on the other hand, the undisputed
facts show that the Employer was not merely
utilizing its supervisory personnel in furtherance of
'In the absence of any exception thereto, we adopt, pro forma. the
Regional Director's recommendation that Petitioner's objections I through
5 be overruled
179 NLRB No. 143
MACKLANBURG-DUNCAN COMPANY
its campaign , but intended to make the antiunion
materials available to employees , who by electing
whether or not to wear them, would disclose their
choice . In these circumstances , we agree with the
Regional Director that the Employer ' s conduct
unlawfully interfered with the election. See
Thompson Products , Inc., 60 NLRB 1381, in
addition to the following cases relied upon by the
Regional Director : Chas . V. Weise Co ., 133 NLRB
765; Beiser Aviation Corp ., 135 NLRB 400; and
Garland Knitting Mills of Beaufort , South Carolina,
170 NLRB No. 39 , enfd . in material part 414 F.2d
1214 (C.A.D.C.).
Accordingly , we shall set the election aside and
direct a second election.
ORDER
It is hereby ordered that the election conducted
849
herein on June 19, 1969, be, and it hereby is, set
aside.
[Direction of Second Election= omitted from
publication.]
'In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236, N L R B v Wyman -Gordon Company,
394 U S 759 Accordingly , it is hereby directed that an election eligibility
list, containing the names and addresses of all eligible voters, must be filed
by the Employer with the Regional Director for Region 16 within 7 days
after the date of issuance of the Notice of Second Election by the Regional
Director The Regional Director shall make the list available to all parties
to the election No extension of time to file this list shall be granted by the
Regional Director except in extraordinary circumstances Failure to
comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed