Malone & Hyde, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1973

203 N.L.R.B. 302 (N.L.R.B. 1973)

302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stedman Wholesale Distributors , Inc., A Division of
Malone & Hyde , Inc. and Teamsters, Chauffeurs,
Warehousemen, Industrial & Allied Workers &
Helpers, Local Union No. 920 , affiliated with Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America , Petitioner.
Case 23-RC-3805
April 30, 1973
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY MEMBERS FANNING, KENNEDY, AND PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election, a secret ballot was conducted
among the employees in the stipulated unit described
below. The tally of ballots furnished the parties
showed that of approximately 95 eligible voters, 87
cast valid ballots, of which 40 were for, and 47 against,
the Petitioner. The Petitioner filed objections to con-
duct affecting the results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations, the Regional Director
conducted an investigation and, on September 15,
1972, issued and served on the parties a Report and
Recommendation on Objections, recommending that
the Petitioner's objections he overruled and that the
election be set aside based upon a violation of Board's
Allied Electric Products rule 1 disclosed in the course
of his investigation. Thereafter, the Employer filed
timely exceptions to the Regional Director's report
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, 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 concern-
ing the representation of certain employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The parties stipulated and we find that the fol-
lowing employees constitute an appropriate unit for
the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act:
Allied Electric Products, Inc, 109 NLRB 1270
All order selectors, warehousemen, loader-un-
loaders, forklift operators, maintenance employ-
ees, mechanics, garage utility employees and
truck drivers employed by the Employer at its
grocery, drug and houseware warehouse located
at 6600 Oakcrest Drive, Beaumont , Texas, and
excluding all supervisors, outbound and inbound
checkers, temporary employees, casual employ-
ees, general office clericals, produce clerical,
drug and houseware clerical, guards and watch-
men as defined in the Act.
5. The Board has considered the Regional
Director's report and the Employer's exceptions and
brief and finds as follows: 2
On the day prior to the election, the Employer dis-
tributed the leaflet which is attached as Appendix to
this Decision. We find merit to the Employer's excep-
tion, in which it contends that the ballot shown there-
in does not constitute a reproduction of the Board's
official ballot within the meaning of the Allied Electric
Products rule. The represented ballot omits any refer-
ence to the "United States Government," "National
Labor Relations Board," "Official Secret Ballot," and
"Board Agent." I It is smaller than the Board's official
ballot. It corresponds closely to the ballot considered
by the Board in Stratford Furniture Corporation and
Futorian Manufacturing Company, 116 NLRB 1721,
and found not to constitute a reproduction of the
Board's official ballot within the meaning of the Allied
Electric Products decision. We conclude that the bal-
lot did not give the appearance of an official ballot
nor would it have misled employees into believing
that this Agency or the Government endorsed a par-
ticular choice.4
Accordingly, we conclude that the Employer's con-
duct in circulating the leaflet incorporating the ballot
discussed above does not warrant setting aside the
election.
As the Petitioner has failed to receive a majority of
the valid votes cast, we shall certify the results of the
election.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Teamsters, Chauffeurs,
Warehousemen, Industrial & Allied Workers & Help-
ers, Local Union No. 920, affiliated with Internation-
al Brotherhood of Teamsters, Chauffeurs, Ware-
2 In the absence of exception thereto, we adopt, pro forma, the Regional
Director 's recommendation to dismiss all the objections which were filed by
the Petitioner
3 Paula Shoe Co, Inc, 121 NLRB 673, The Glidden Company, 121 NLRB
752. Cf Custom Molders of P R & Shaw- Harrison Corporation, 121 NLRB
1007
4 AMF Beard, Inc., 177 NLRB 599, 605
203 NLRB No. 31
STEDMAN WHOLESALE DISTRIBUTORS
housemen & Helpers of America, and that said labor
organization is not the exclusive representative of all
the employees, in the unit herein involved, within the
meaning of Section 9 (a) of the National Labor Rela-
tions Act, as amended.
MEMBER FANNING, dissenting:
Contrary to my colleagues, I would adopt the Re-
gional Director's recommendation that the election be
set aside. He found, in essence , that the Employer had
circulated a leaflet urging employees to vote against
the Union and which included the reproduction of a
portion of the election ballot used in Board elections
which was altered by the marking of a cross in the
"NO" square.
My colleagues reject this recommendation on the
ground that the portion of the ballot reproduced did
not include any reference to the Board of markings
indicating it was an official ballot, citing two cases in
which I participated in overruling objections on such
grounds.' Those cases are, I believe, clearly distin-
guishable in that here the Employer itself clearly ad-
vised its employees that the portion of the ballot
reproduced was a portion of the ballot to be used in
the Board election by stating in the leaflet immedi-
ately above the portion of the ballot, "Below is a
sample of the way the bottom of the election- ballot
will look."6 Moreover, this characterization of the bal-
lot and the reproduction itself were an integral por-
tion of a propaganda leaflet which stated that the
election would "be supervised by the Federal Govern-
ment" and "your right to vote A GA INST the union is
guaranteed by the U. S. Government." (Emphasis in
original.) In these circumstances, I regard the control-
ling precedent as being Custom Molders of P. R. &
Shaw-Harrison Corporation, 121 NLRB 1007, where
the Board said:
In Allied Electric Products, supra, the Board an-
nounced a clear and concise rule on the altera-
303
tion of sample ballots as compaign propaganda.
It stated that:
[u]pon consideration, the Board has decided
that in the future it will not permit the repro-
duction of any document purporting to be a
copy of the Board's official ballot, other than
one completely unaltered in form and content
and clearly marked sample on its face. . .
It was also made clear that the violation of this
rule would cause an election to be set aside. The
Employer has excepted to the Regional
Director's application of the rule here on the
grounds that its ballot, without the official head-
note, does not purport to be a copy of the Board's
ballot. The Allied Electric Products rule, however,
is not limited to exact reproductions, but is aimed
at the reproduction of documents purporting to
be a copy of the Board's ballot. [Citations omit-
ted.]
Accordingly, as the Employer circulated a leaflet
purporting to contain a reproduction of a portion of
the Board's election ballot which had been altered by
marking "X" in the "NO" box, the election should be
set aside.'
5 Paula Shoe Co, Inc, supra, The Glidden Company, supra
6 Thus, this is not a case in which the determination that the ballot is a
reproduction of a portion of the official ballot depends solely on inferences
drawn from the presence or absence of certain language referring to the
official character of the ballot
7 Allied Electric Products, Inc, supra, Custom Molders of P R & Shaw-
Harrison Corporation, supra, Paula Shoe Co, Inc, supra, and The Glidden
Company, supra
The decisions in Stratford Furniture Corporation and Futorian Manufactur-
ing Company 116 NLRB 1721, and AMF Beaird, Inc, 177 NLRB 599, also
cited by my colleagues in support of their decision, are inapposite to the facts
of this case Neither decision dealt with the distribution of a reproduction of
a portion of the official Board ballot altered by the mark of an "X" in one
of the boxes and accompanied by literature calling employees ' attention to
the official character and appearance of the ballot . In short , in those cases
the distributor of the marked ballots did not present it as the official ballot;
here it did
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
August 9, 1972
TO OUR EMPLOYEES
BE SURE TO VOTE IN THE ELECTION TOMORROW-VOTE
TO PROTECT YOUR FUTURE . THIS ELECTION IS YOUR
LAST CHANCE TO SAY NO TO UNION DUES AND FEES
AND NO TO POSSIBLE TROUBLE AND HARDSHIP FOR YOU
AND YOUR FAMILY DUE TO UNION STRIKES AND PICKET
LINES
The election is supervised by the Federal Gov-
ernment and there is no way for the union to
know how you vote . No outside union officials
will be allowed in the lunchroom area while you
are voting . NO MATTER WHAT YOU HAVE
DONE IN THE PAST-EVEN IF YOU
SIGNED A UNION CARD AND ATTEND-
ED UNION MEETINGS-YOU CAN STILL
VOTE NO IN THIS ELECTION. You are not
obligated to this union in any way , and your right
to vote AGAINST the union is guaranteed by the
U. S. Government.
Below is a sample of the way the bottom of the
election ballot will look:
Do you wish to be represented for purposes of collective bargaining
by:
TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN , INDUSTRIAL & ALLIED WORKERS &
HELPERS , LOCAL UNION NO. 920?
MARK AN "X" IN THE SQUARE OF YOUR CHOICE
To vote AGAINST the union , mark an X [sic]
In the NO square on the RIGHT hand side.
Do not sign your name or put any other mark on
the ballot.
A great majority of our employees have volun-
tarily stated that they are going to vote "NO".
Get on the right side-the winning side-and
let's make it a 100% "NO" union vote.
Sincerely,
/s/A. C. Battaile
A. C. Battaile