Marsh Foodliners, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1958

119 N.L.R.B. 1856 (N.L.R.B. 1958)

1856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentatives_ to the Steelworkers for a separate unit of production and
maintenance employees, which the Board under the circumstances
finds to be appropriate for purposes of collective bargaining.
However, if a majority of the employees in voting groups (b)
and/or (c) do not vote for the I, A. M. or Lithographers, as the case
may be, such group or groups will appropriately be included in the
same unit with the employees in voting group (a) and their votes will
be polled with those in voting group (a).3 The Regional Director
conducting the elections is instructed to issue a certification of repre-
sentatives to the Steelworkers if selected by a majority of the em-
ployees in the pooled group, which the Board in such circumstances
finds to be appropriate for purposes of collective bargaining.
[Text of Direction of Elections omitted from publication.]
a Westinghouse Etectrw Corporation, 108 NLRB 556 , 561, footnote 14 Pooled votes
shall be tallied as follows votes for the I A M and Lithographers , which seek separate
units only, shall be counted among the valid votes , but neither for nor against the
Steelworkers All other votes are to be accorded their face value, whether for representa-
tion by the Steelworkers or for no union
Marsh Foodliners , Incorporated (Yorktown, Indiana) and Retail
Clerks International Association , Local No. 1441, AFL-CIO,
Petitioner. Case No 35-RC-1468. February 28, 1958
DECISION AND CERTIFICATION OF REPRESENTATIVES
On August 2, 1957, pursuant to a stipulation for certification upon
consent-election, an election was conducted under the direction and
supervision of the Regional Director for the Ninth Region among the
employees in the agreed-upon unit. Following the election, the
Regional Director served upon the parties a tally of ballots which
showed that of approximately 135 eligible voters,' 115 cast ballots, of
which 63 were for, and 50 were against, the Petitioner. Two ballots
were challenged.
On August 8, 1957, the Employer timely filed objections to conduct
affecting the results of the election. In its objections, the Employer
alleged that the Petitioner circulated a newsletter to the employee's
prior to the election which the Employer urges misled the employees
as to the effect of not voting and caused employees who opposed the
Petitioner to abstain from casting a ballot. It therefore contends
that the election should be set aside and a new election conducted.
The Regional Director investigated the objections and, on December
1 The Regional Director corrected the number of eligible voters shown on the original
tally of ballots to iefiect that 135, rather than 134, employees were eligible to vote No
opposition was filed to his action in doing so We therefore adopt the correction
119 NLRB No. 231.
MARSH FOODLINERS , INCORPORATED 1857
11, 1957, issued and duly served upon the parties a report on election,
objections to election and recommendations to the Board, in which he
recommended that the objections be overruled and that a certification
of representatives should be issued to the Petitioner. Thereafter, the
Employer timely filed exceptions to the Regional Director's report and
a supporting brief.2
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Rodgers and
Jenkins].
Upon the entire record in the case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The Petitioner is a labor organization claiming to represent
certain employees of the Employer.
3. A 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 grocery employees, including regular part-time employees at
the Employer's stores located in Delaware County, Indiana, excluding
all meat department employees, professional employees, guards, watch-
men, store managers, assistant store managers, and all other super-
visors 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. The Employer contends that the statement in the Petitioner's
newsletter addressed to employees to the effect that "NOT VOTING
IS THE SAME AS VOTING NO" was false and misled employees
who would have voted against the Petitioner, and that they remained
away from the polls in the belief that their abstention from voting
would be registered as a negative vote. The Employer argues that
this statement constituted direct interference with the mechanics of
the election because it placed the employees in a position where they
could not properly evaluate the misinformation given them by the
Petitioner.
The newsletter in question began by informing the employees that
an election would be held at specified times and places on August 2,
1957, under the auspices of an arm of the Federal Government, and
that a secret ballot would be insured. The letter then stated "BE
SURE TO VOTE. NOT VOTING IS THE SAME AS VOTING
NO. VOTE RIGHT.... TO VOTE RIGHT IS TO VOTE YES"
for the Petitioner.
2 The Employer ' s request for oral argument is denied as, in our opinion , the Employer's
objections , exceptions , brief, and the Regional Director 's, report , adequately present the
issues and positions of the parties.
1858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We believe that the Petitioner's newsletter, when read as a whole,,
makes it abundantly clear that the Petitioner was seeking to exhort
employees who might favor the Petitioner to register a vote for that
union, rather than to dissuade employees Who were not sympathetic
to the Petitioner to stay away from the polls. The letter urges all
employees to "BE SURE TO VOTE," painstakingly apprises all
employees of the places and times set for voting, and urges that the
employees cast their votes for the Petitioner. In our opinion, the
statement that "NOT VOTING IS THE SAME AS VOTING NO"
was a caution to employees affirmatively to register a choice and was
not calculated to and could not reasonably be interpreted as an at-
tempt to dissuade antiunion employees from voting. In any event,
Petitioner's subsequent letter addressed to the employees clearly spelled
out to the employees the true facts concerning the conduct of the
election and thereby corrected any alleged mistatements in the original
newsletter. Accordingly, we find no merit in the Employer's con-
tention that the statement interfered with the election and that the
election should be set aside. We therefore adopt the Regional
Director's recommendation that the Employer's exceptions be over-
ruled and that the Petitioner be certified.
[The Board certified Retail Clerks International Association,.
Local No. 1441, AFL-CIO, as the designated collective-bargaining
representative of the employees of Marsh Foodliners, Incorporated
(Yorktown, Indiana) in the unit found appropriate.]
Westinghouse Electric Corporation and International Union of
Electrical , Radio and Machine Workers, IUE-AFL-CIO, Local
130, Petitioner. Cases Nos. 5-RC-1670 and 5-RC-2143. February
28, 1958
SUPPLEMENTAL DECISION AND CERTIFICATION OF
REPRESENTATIVES
Pursuant to a Decision and Direction of Election issued by the
Board on October 8, 1957,1 and amended on October 30, 1957, an elec-
tion by secret ballot was conducted on November 7, 1957, under the
direction and supervision of the Regional Director for the Fifth
Region of the National Labor Relations Board among the employees
in the unit found appropriate by the Board. Following the election,
the parties were furnished with a tally of ballots which shows that
of approximately 520 eligible voters, 236 cast ballots for International
Union of Electrical, Radio and Machine Workers, IUE-AFL-CIO,
1 Not reported in printed volumes of Board Decisions and Orders.
119 NLRB No. 235.