McDonough Co.

National Labor Relations Board - Board Decisions

Oct 2, 1957

118 N.L.R.B. 1511 (N.L.R.B. 1957)

HOUSTON SHELL AND CONCRETE DIVISION 1511
Houston Shell and Concrete Division , McDonough Co. and Gen-
eral Drivers, Warehousemen and Helpers Local Union No. 968,
AFL-CIO, Petitioner. Case No. 39-RC-1150. October 2,1957
DECISION AND CERTIFICATION OF REPRESENTATIVES
Pursuant to a stipulation for certification upon consent election, an
election by secret ballot was held on May 8, 1957, under the direction
and supervision of the Regional Director for the Sixteenth Region
among the employees of the Employer in the agreed appropriate unit.
Following the election, the Regional Director served upon the parties
a tally of ballots, which showed that 85 ballots were cast for the Peti-
tioner, 69 were cast for the Intervenor, Shell Workers Independent
Union, and 8 for no union. Three ballots were challenged. The chal-
lenged ballots were not sufficient in number to affect the result of the
election.
On May 15, 1957, the Intervenor filed timely objections to conduct
affecting the results of the election. Thereafter the Regional Director
issued and duly served upon the parties his report on objections, in
which he found that the foregoing objections did not raise any sub-
stantial or material issues and recommended that the Board overrule
the objections and certify the Petitioner as the representative of the
Employer's employees.
The Intervenor filed timely exceptions to the report on objections.
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 Murdock and Rodgers].
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 labor organizations involved claim to represent certain em-
ployees 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. The following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act :
All production, distribution, and maintenance employees at the
Employer's eight plants in Harris County, Texas, excluding office
clerical employees, professional employees, salesmen, guards, watch-
men, and supervisors as defined in the Act.
5. The Objections :
The First Objection
The Intervenor's first objection alleges that the Petitioner inter-
fered with the election by distributing a handbill to the employees on
118 NLRB No. 206.
1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the day before the election which (a) contained a facsimile of a ballot
to be used in the election, and (b) contained derogatory and untruthful
statements concerning the Intervenor, which the Intervenor did not
have an adequate opportunity to rebut.
As to (a), the Regional Director found, contrary to the Intervenor's
contention, that the facsimile ballot did not violate the rule of the
Allied Electric Products 1 case and related cases, in which the Board
held that it would set aside an election upon a proper showing that
the successful party to the election had distributed "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."
In the instant case, the Regional Director found that the fascimile
ballot was not, and did not purport to be, a copy of the Board's official
ballot within the meaning of the Allied Electric rule. He accordingly
recommended that this portion of the Intervenor's first objection be
overruled.
In its exceptions, the Intervenor contends, in effect, that the fac-
simile ballot is sufficiently similar to the Board's official ballot to
convey the impression that the Board has endorsed the Petitioner.
The facsimile ballot is set out at the bottom of the propaganda leaflet
distributed by the Petitioner. It is not designated as a Board ballot
but consists merely of an oblong box, captioned "This is the Way to
Mark Your Ballot," and contains the same three choices as appeared
on the Board ballot in the election herein, with an "X" below the name
of the Petitioner. We find that this did not purport to be a copy of
an official Board ballot and that it could not reasonably be construed as
reflecting an endorsement of Petitioner by the Board?
As to (b), above, the Intervenor alleged that the statements con-
tained in the Petitioner's handbill were false in that they asserted
(1) that "the lowest wage under Teamsters contract doing this type
of work in this area is $2.10 per hour," and (2) that the Intervenor
was a company-dominated union with respect to its representation of
employees of another company in the same county-Parker Brothers.
As to (1), the Regional Director found that this statement was not
false, and the Intervenor does not except to this finding. As to (2),
the Regional Director found that the reference to the Intervenor as
a "company-dominated" union was presumably based upon the Board's
decision in Parker Brothers and Company, Inc.,' wherein the Board
held, in 1952, that Parker Brothers had unlawfully assisted the Inter-
venor, in violation of Section 8 (a) (2) of the Act.4
1109 NLRB 1270.
2 Consolidated Cigar Corporation , 115 NLRB 378 ; Stratford Fwrnaiture Corporation,
116 NLRB 1721. -
3101 NLRB 872, enfd . as modified 209 F. 2d 278 (C. A. 5) (1954).
4 The Board , however, in the absence of exceptions by the General Counsel, affirmed the
Trial Examiner' s finding that the Intervenor was not company -dominated.
HOUSTON SHELL AND CONCRETE DIVISION 1513
Intervenor contends in its exceptions, however, that it is not now a
company-dominated union and that insofar as the Petitioner's propa-
ganda asserts the contrary it is false. The Intervenor urges, further,
that this alleged falsehood could not be evaluated by the employees
and therefore unduly impaired the employees' freedom of choice under
the rule of the Gummed Products case.' However, reading the charge
of company-domination in its context in the, Petitioner's handbill, it
is apparent that it is related to certain factual statements in the
handbill and is merely a conclusion derived from those statements.
The handbill reads in pertinent part as follows :
At our meeting we had a good discussion of why you need a
real union to represent you instead of a company union like the
one at Parker Brothers, called Shell Workers Independent Union.
Our union attorney showed us what a phony union the Parker
Brothers union is. It has just signed a 2-year contract with
Parker Brothers providing wage rates of $1.37 to $1.60 for truck-
drivers. What is worse, employees under that contract have
absolutely no job security.... Article 4 of the contract provides
that, "the company retains . . . the right to discipline or dis-
charge any employee . . . for a cause determined to be just by
the company."
From this. and other language in the handbill, it is clear that the
charge of company domination is merely a characterization of the
Intervenor based on its allegedly unfavorable contract with Parker
Brothers. The Intervenor does not, in its exceptions, dispute the
truth of the factual statements on which this characterization is based.
Whether it was justified, in the light of the facts alleged, was a matter
which we believe the employees were capable of evaluating. Accord-
ingly, we find that the rule of the Gummed Products case is not appli-
cable here, but that the challenged propaganda was such as the Board
has frequently held it will leave to the good sense of the voters to
evaluate.'
The Second Objection
The Intervenor 's second objection alleges that Petitioner interfered
with the election by sending a telegram to the employees during the
night preceding the election , reading :
We at Parker Brothers turned against the Shell Workers Inde-
pendent Union because it is company-dominated . We are trying
to get General Drivers to represent us. Vote tomorrow for
General Drivers AFL-CIO, a honest union that can get you good
wages and real working conditions.
5 112 NLILB 1092.
6 See Caicor Corporation, 106 NLRB 539 , and cases there cited.
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This telegram was signed : "Fred Thomas, former Vice President,
Shell Workers Independent Union."
Intervenor contended in its objections that this telegram (1) vio-
lated the rule of the United Aircraft case' insofar as it implied that
the sender was currently an employee of Parker Brothers or a member
of the Intervenor, and (2) violated the rule of the Gummed Products
case, supra, by falsely stigmatizing the Intervenor as a "company-
dominated" union, and because it was delivered so close to the time
of the election (which began at 6: 30 the next morning) as to deprive
the Intervenor of an opportunity for effective rebuttal.
As to (1), above, the Regional Director stated that Board records
showed that Fred Thomas, whose name appeared as the sender of the
foregoing telegram, had in fact been vice president of the Intervenor
in 1956, and that one Fred Thomas had submitted an affidavit to the
-Regional Director asserting that he was the author of the telegram
and had been an employee of Parker Brothers as well as vice president
of the Intervenor. Accordingly, the Regional Director found that,
unlike the situation in United Aircraft, there had been no deception
of the voters as to the source of the telegram.
In its exceptions, Intervenor contends that the phrase "we at Parker
Brothers" and "we are trying to get General Drivers to represent us"
could reasonably be construed only as representing that the sender
of the telegram was an employee either of Parker Brothers or the
Employer, whereas Thomas "is not an employee of either" but sent
the telegram as a "professional" organizer for the Petitioner.
Basically, Intervenor's contention at this point is that the failure
of Thomas to disclose that he was an organizer for the Petitioner,"
with a special interest in the outcome of the election different from
that of an ordinary employee of Parker Brothers or the Employer,9
was a fraud upon the employees rendering them incapable of properly
evaluating the contents of the telegram. However, here the situation
is clearly distinguishable from that which impelled us to set aside the
election in the United Aircraft case. The telegram was in fact sent
by Thomas, a former vice president of the Intervenor.10 Any mis-
representation of, or failure to disclose, his current employment
"United Aircraft Corporation, 103 NLRB 102. The Board there found that the distribu-
tion on the eve of an election by an intervenor of a telegram purporting to be sent by'the
president of the petitioner , but which was in fact an invention of the intervenor , impaired
the employees ' freedom of choice, and the election was therefore set aside.
9 For the purpose of this Decision , we assume that, as alleged by Intervenor , Thomas
was a Teamster organizer; although the Regional Director does not so state.
6 The Regional Director made no reference to Thomas ' employment , if any, by the
Employer . However, for purposes of this decision , we assume that he was not employed
by the Employer when he sent the telegram.
w Intervenor does not dispute that Thomas occupied this office , although it does assert
that his appointment thereto by the president of the Intervenor was "never passed upon
by the" Intervenor.
HOUSTON SHELL AND CONCRETE DIVISION 1515
status, is not, in our opinion, sufficient to bring this case within the
United Aircraft rule."
As to Intervenor's objection to the reference in the telegram to the
Intervenor as company dominated, the Regional Director found, for
reasons already indicated in discussing his findings with respect to a
similar charge in the Petitioner's handbill, that this statement did not
violate the Gummed Products rule. For reasons stated in that con-
nection, we find no merit in this portion of the second objection.12
Intervenor's final objection with regard to the telegram is that its
timing was such as to deprive the Intervenor of any opportunity for
effective rebuttal of the false statements contained therein. In reject-
ing this contention, the Regional Director relied on Gong Bell Manu-
facturing Co.," where the Board, in rejecting a similar contention,
reiterated its rule that the fact that campaign propaganda was dis-
tributed less than 24 hours before an election was not sufficient ground
to set aside the election. In Gong Bell, as here, the challenged litera-
ture had been distributed only a.few hours before the election. In
its exceptions, the Intervenor. contends that Gong Bell is distinguish-
able on the ground that the propaganda in that case, unlike that here
involved, was of such a nature-relating to the terms and conditions
of the employees involved-that the employees were capable of evalu-
ating it. However, as we have already found that the instant charge
of company domination was, when considered in its context, suscepti-
ble of evaluation by the employees herein, we find no merit in this
attempted distinction.
Third Objection
The Intervenor's final objection is that agents of the Petitioner
interfered with the election by electioneering at the polling places.
The Regional Director's report sets' forth the substance of various
affidavits submitted by the Intervenor in support of this objection.
The tenor of those affidavits is that about 15 minutes before the ballot-
ing began at the Employer's plant 7, 2 representatives of Petitioner
were at the gate of the plant (which was the only one used by em-
ployees in entering the voting area) and were observed talking to
voters there; and that 1 of these representatives stood at the gate dur-
ing the balloting. As to another plant, plant 6, the affidavits alleged
that when the election started two representatives of Petitioner were
inside the warehouse in which the polling took place; that they talked
"If, as Intervenor alleges , Thomas was "actively engaged as an organizer" for Peti-
tioner, we would be warranted in inferring , in any event , that his connection with the
Petitioner was known to the recipients of the telegram . Intervenor does not specifically
allege the contrary.
"That the charge of company domination in the telegram was, as in the handbill,
merely a characterization of Intervenor based on its failure to obtain a favorable contract
from Parker Brothers , is apparent from a reading of the entire telegram against the back-
ground of the handbill delivered to the employees only a few hours before the telegram.
Is 114 NLRB 342.
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to employees about the election "the morning that the voting started";
and that they remained on "Company premises" during the election.
The Regional Director states that, according to the Board agent
at plant 6, while two representatives of Petitioner were in the polling
place before the election started, they left before the balloting began;
and that, according to the Board agent at plant 7, although a repre-
sentative of the Petitioner entered the voting area and inspected it,
he left shortly before the balloting began.
Relying on the Rackle Company case,14 the Regional Director found
that the evidence submitted by Intervenor did not afford sufficient
basis for setting aside the election.
In its exceptions, the Intervenor points to the conflict between (1)
the statement in one of the affidavits submitted by it that at plant 6
Petitioner's representatives were inside the polling place when the
election started, and (2) the statement of the Board agent, as reported
by the Regional Director, that two such representatives left the polls
before the election began. The Intervenor contends that this conflict,
and other statements in the affidavits, raise substantial issues of fact
to be resolved by the Board. The Intervenor contends further that,
under Board precedents, the mere presence of Petitioner's agents in the
plant 6 warehouse at the time the election began constitutes sufficient
ground for setting aside the election.
The Boardhas frequently stated that the mere presence of union rep-
resentatives at or near the polling place is not sufficient ground for
setting aside an election,15 nor is the fact that such representatives con-
versed with voters at or near the polls sufficient ground for setting aside
an election, absent any evidence of coercive statements.16 -Here, there
is no evidence as to the content of alleged conversations between the
Petitioner's representatives and the voters other than that it was "about
the election." Accordingly, we find no merit in the 3d objection.
In view of the foregoing, we find that none of the Intervenor's ex-
ceptions raises any substantial or material issue with respect to con-
duct affecting the results of the election, and we, accordingly, overrule
them, and deny the Intervenor's request that we set aside the election
u The Raekle Company of Texas, 117 NLRB 462.
15 Gastonia Combed Yarn Corporation , 109 NLRB 585, 587; Craddock-Terry Shoe Cor-
poration, 80 NLRB 1239, 1240 ; The hackle Company of Texas, supra.
In Gary Enterprises , Inc., 86 NLRB 431, cited by the Intervenor , the presence of a
union representative at the polls was only one of several factors relied upon by the Board
in setting aside the election.
le The Rackle Company of Texas, supra ; Craddock -Terry Shoe Corp., supra, at 1240 ;
Southwestern Electric Service Company, 90 NLRB 457, 458 . In the Craddock-Terry
case the conversations between union representatives and voters occurred in the polling
place shortly after the polls opened. Here, there is no specific allegation in the affidavits
submitted by the Intervenor that the Petitioner's representatives remained in the polling
place, or conversed with voters there, after the polls opened. It is merely alleged that
they conversed with voters "on company premises" (but not necessarily in the polling
place) before the voting began or "the morning that the voting started," and that they
were in the plant 6 polling place when the election began.
PACIFIC FRUIT AND PRODUCE COMPANY 1517
or, in the alternative, hold a hearing on the issues raised by the excep-
tions. As the Petitioner has received a majority of the votes cast
in the election, we shall certify the Petitioner as the representative of
the employees in the appropriate unit.
[The Board certified General Drivers, Warehousemen and Helpers
Local Union No. 968, AFL-CIO, as the collective-bargaining repre-
sentative of the employees of the Employer in the appropriate unit
described in paragraph 4, above.]
Pacific Fruit and Produce Company and Chauffeurs, Teamsters
and Helpers Union, Local No. 448, International Brotherhood
of Teamsters, Chauffeurs , Warehousemen and Helpers of
America, AFL-CIO, Petitioner . Case No. 19-RC-1940. October
2,1957
SUPPLEMENTAL DECISION AND CERTIFICATION
OF REPRESENTATIVES
Following a consent election which resulted in 2 votes for and 2
votes against the Petitioner and 2 ballots challenged, the Board on
May 9, 1957, issued its Decision, Direction, and Order 1 overruling the
challenge to the ballot of employee Allen and directing that that ballot
be opened and counted. The Board made no final disposition with
respect to the other challenged ballot, that of Caryl Fausett, but or-
dered that a hearing be held on the issues raised by the Employer's
exceptions to the Regional Director's recommendation to sustain that
challenge, such hearing to be held, however, only if Allen's ballot
failed to determine conclusively the results of the election. There-
after, a supplemental tally of ballots was issued which showed 3 votes
for the Petitioner and 2 against. Thus, Fausett's challenged ballot
could, if valid, affect the results of the election. Accordingly, the
prescribed hearing was duly held before James R. Hemingway, hearing
officer, who, on July 23, 1957, issued his report on challenged ballot,
a copy of which is attached, recommending that the challenge to
Fausett's ballot be sustained upon the ground that Fausett is a man-
agement representative, not properly included in the unit. On August
2, 1957, the Employer filed exceptions to the hearing officer's report
on challenged ballot in which it requested the Board to reject the
conclusion and recommendation therein and overrule the challenge to
Fausett's ballot.
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 Murdock and Rodgers].
i 117 NLRB 1511. A detailed account of the prior history of this proceeding may be
found in that decision.
118 NLRI3 No. 208.