Michem, Inc.

National Labor Relations Board - Board Decisions

Mar 14, 1968

170 N.L.R.B. 362 (N.L.R.B. 1968)

362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Michem , Inc. and International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Help-
ers of America , Local 864 , Petitioner. Case
14-RC-5683
March 14, 1968
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
Pursuant to a Stipulation for Certification upon
Consent Election approved on April 24, 1967, an
election by secret ballot was conducted on May 24,
1967, under the direction and supervision of the
Regional Director for Region 14 among the em-
ployees in the stipulated unit. At the conclusion of
the election, the parties were furnished with a tally
of ballots which showed that of approximately 63
eligible voters, 62 cast ballots, of which 36 were
for, and 26 against, the Petitioner. Thereafter, the
Employer filed timely objections to conduct affect-
ing the results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations and Statements of
Procedure, Series 8, as amended, the Regional
Director conducted an investigation and, on June
28, 1967, issued and duly served on the parties his
Report on Objections and Recommendation in
which he recommended that the objections be
overruled and that the Petitioner be certified.
Thereafter, the Employer filed exceptions to the
Regional Director's report.
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
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
policies 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 con-
cerning the representation of employees of the Em-
ployer 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
following employees constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees
' Compare Detroit Creamery Company, 60 NLRB 178, Southwestern
Electric Service Company, 90 NLRB 457, Houston Shell and Concrete Divi-
sion , McDonough Co , 118 NLRB 1511
170 NLRB No. 46
including truckdrivers, leadmen, and laborato-
ry technicians, employed by Milchem, Inc., at
the following four operations located in
Washington County, Missouri: the Settle mine,
Potosi, Missouri, the grinding plant, Mineral
Point, Missouri, the Howell mine, Palmer, Mis-
souri, and the Palmer mine, Palmer, Missouri,
but excluding office clerical and professional
employees, janitors, guards, watchmen, and su-
pervisors, as defined in the Act.
5. The Board has considered the Regional
Director's report and the Employer's exceptions
thereto. We agree with the Employer that certain
conduct by a union representative, hereafter
described, requires that the election be set aside.
During the voting period at the Palmer mine,
Wayne H. Stevens, secretary-treasurer of the
Union, stood for several minutes near the line of
employees waiting to vote, engaging them in con-
versation. According to the Regional Director's re-
port, Stevens says that his remarks concerned the
weather and like topics. While the Employer cites
other behavior by Stevens as additional grounds for
voiding the election, we believe that the sustained
conversation with prospective voters waiting to cast
their ballots, regardless of the content of the re-
marks exchanged, constitutes conduct which, in it-
self, necessitates a second election.
In our prior decisions dealing with the effect of
conversations between parties to the election and
employees preparing to vote, we have not enun-
ciated a clear standard against which to measure
such conduct.' Careful consideration of the
problem now convinces us that the potential for
distraction, last minute electioneering or pressure,
and unfair advantage from prolonged conversations
between representatives of any party to the election
and voters waiting to cast ballots is of sufficient
concern to warrant a strict rule against such con-
duct, without inquiry into the nature of the conver-
sations. The final minutes before an employee casts
his vote should be his own, as free from inter-
ference as possible. Furthermore, the standard here
applied insures that no party gains a last minute ad-
vantage over the other, and at the same time
deprives neither party of any important access to
the ear of the voter. The difficulties of recapturing
with any precision the nature of the remarks made
in the charged atmosphere of a polling place are
self-evident, and to require an examination into the
substance and effect of the conversations seems un-
duly burdensome and, in this situation, unneces-
sary. Finally, a blanket prohibition against such con-
versations is easily understood and simply applied.
This rule is nothing more than a preventive
device to enforce the ban against electioneering in
MICHEM, INC.
polling places normally applied in political elections
and in our representation elections. It serves the
same purposes of maintaining order and permitting
voters to 'consult their own consciences without in-
terruption. Additionally, by attaching a sanction to
its breach, the rule assures that the parties will
painstakingly avoid casual conversations which
could otherwise develop into undesirable elec-
tioneering or coercion. In our view, the restriction
here established gives every promise of having a
salutary effect on the conduct of elections and of-
fers no likelihood of abridging the rights of the
parties concerned.
We`intend, of course, that our application of this
rule will be informed by a sense of realism. The rule
contemplates that conversations between a party
and voters while the latter are in a polling area
awaiting to vote will normally, upon the filing of
proper objections, be deemed prejudicial without
investigation into the content of the remarks. But
this does not mean that any chance, isolated, in-
nocuous comment or inquiry by an employer or
union official to a voter will necessarily void the
election. We will be guided by the maxim that "the
law does not concern itself with trifles." We trust,
however, that the parties to the elections, in order
to obviate the sometimes troublesome task of defin-
ing what is to be considered trifling, will take pains
to assure complete compliance with the rule by in-
structing their agents, officials, and representatives
simply to refrain from conversing with prospective
voters in the polling area.
In the instant case, the Regional Director was
' An election eligibility list, containing the names and addresses of all the
eligible voters must be filed by the Employer with the Regional Director for
Region 14'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 the parties to the election . No extension of time to file
363
guided by and properly applied our decision in
Houston Shell and Concrete Division, McDonough
Co., 118 NLRB 1511. Since Houston Shell held that
conversations alone, regardless of their extent,
would not void an election ( a ruling , of course,
reversed by the instant decision), the Regional
Director made no attempt finally to determine
specific details of the conversations alleged in this
case. However, an affidavit submitted by the Em-
ployer's legal counsel states that Union Secretary-
Treasurer Stevens stood within a few feet of em-
ployees awaiting to vote and engaged several of
them in conversations for several minutes. The Em-
ployer's production department manager has
deposed that he saw Stevens in approximately the
same position for perhaps five minutes and that he
appeared to be talking to the men waiting to vote,
of whom there were about 15 in line at the time.
The Union has not excepted to the Regional
Director's finding that Stevens admitted to con-
versing with voters in the shop during the election
period. On such a record, we believe that Stevens'
conduct could nQt, in any view of the evidence, be
dismissed as minimal . We shall therefore set the
election aside and direct that a second election be
held.
ORDER
It is hereby ordered that the election in this case
conducted on May 24, 1967, be, and it hereby is,
set aside.
[Direction of Second Election2 omitted from
publication.]
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 Excel-
sior Underwear Inc., 156 NLRB 1236.