N.L. Atlas Bradford

National Labor Relations Board - Board Decisions

Feb 2, 1979

240 N.L.R.B. 517 (N.L.R.B. 1979)

N. L. ATLAS BRADFORD 517
N. L. Atlas Bradford, Division of N. L. Petroleum
Services, Division of N. L. Industries, Inc. and Dis-
trict 37, International Association of Machinists and
Aerospace Workers, AFL-CIO, Petitioner. Case
23-RC 4517
February 2. 1979
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN FANNING AN) MEMBkRS J NKINS
ANtD PNtI LO
Pursuant to a Stipulation for Certification Upon
Consent Election approved by the Regional Director
for Region 23 on May 19, 1977. an election was con-
ducted on July 1, 1977, among the employees in the
stipulated unit described below. A corrected tall of
ballots furnished the parties showed that, of approxi-
mately 235 eligible voters, 219 cast valid ballots, 119
of which were for, and 93 against, Petitioner, and 7
of which were challenged. Thereafter, the Employer
timely filed objections to conduct affecting the re-
sults of the election, Petitioner filed a motion to dis-
miss and opposition to Employer's objections, and
the Employer filed a response thereto.
In accordance with the National Labor Relations
Board's Rules and Regulations, Series 8, as amended.
the Regional Director conducted an investigation
and, on August 23, 1977, issued and served on the
parties his Report and Recommendation on Objec-
tions wherein he found Petitioner's motion to dismiss
to be without merit, recommended that Employer's
Objections 1, 2, 3, 4, 5, 9, 14. 15. 16. 19. and 20 be
overruled, and further recommended that a hearing
be held to resolve the substantial and material issues
of fact and credibility raised in Employer's Objec-
tions 6, 7, 8, 10, 11. 12, 13, 17, and 18. On September
1, 1977, the Employei timely filed limited exceptions
to the Regional Director's report together with a
brief.
On February 24, 1978, the Board issued a Decision
and Order Directing Hearing (not reported in vol-
umes of Board decisions) in the above-captioned
proceeding wherein it ordered that a hearing be held
for the purposes of receiving evidence to resolve all
issues raised by Objections 6. 7. 8. 10. 11, 12. 13. 17.
and 18,' and that the Hearing Officer designated to
conduct said hearing shall prepare and serve on the
parties a report containing resolutions of the credibil-
ity of witnesses, findings of fact. and recommenda-
tions.
t The Board adopted the Regional [)irector' recommendallion rlteril-
ing the other objectons
240 NLRB No. 77
Pursuant to the Board's Order, a hearing was con-
ducted by Hearing Officer Theodore Arter who, on
July 13. 1978, issued his report and recommendation
to the Board wherein he recommended that all of the
objections in issue be overruled. Thereafter, the Em-
ployer filed exceptions to the Hearing Officer's re-
port and a 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:
I. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the pur-
poses of the Act to assert jurisdiction herein.
2. 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)(I) 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
meaning of Section 9(b) of the Act:
All production and maintenance employees, in-
cluding leadmen and quality control inspectors,
employed by the Employer at its Houston, Tex-
as, location, 7707 Wallisville Road: but exclud-
ing all office clerical employees, field service in-
spectors (sales service representatives), profes-
sional employees, guards and supervisors as de-
fined in the Act.
5. We agree with the Hearing Officer's disposition
of Objections 8, 10, 11, 12, 13, 17, and 18 and, ac-
cordingly, we hereby overrule said objections in their
entirety.2 We do not agree with his findings with re-
gard to Objections 6 and 7, however, or with his rec-
ommendations that these objections be overruled.
Objections 6 and 7 concern a reproduced copy of
an official Board document which, the Emploer
charges. Petitioner, by its agents, representatives, and
supporters. utilized to create a false impression of
Ih e mploN er has ex ceptIed to certain credibhiih resoll lu nsn miade h
the le.arilg Officer. It is the established poich of the Board not I oerrule
a learilg Officer's credilhl, resolution unless the clear prepondera;nce of
ill , tile relesint eidence consinces us that the resolutions are incorrect
1. (- ( itt B/,ie (rpan of Vcntiph. 132 NLRB 481 1957
Strllch- /i. (',. 18 N.RB 1359 1961 We find no hbsis for disturbing the
credihihlt resolutl.n In his proceeding Further. e find totall r ithoui
nierit Ihe mniphl er's illegation of hias nd prejudice on the part of he
Hearing Officer pon o.r full considera.iin of the record. vIe percelxe no
esidence that he [fearing Officer prejudged the cae. nte made preludicial rul-
Ings. is Ill.lttiItlse during the hearing. or demno.nlltraled hias .aalinst the
Ernmpl-oer in hl .llilI.I sls or dcl-iOlrl f he eidence
N. L. ATLAS BRADFORD
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
both National Labor Relations Board support for
Petitioner (Objection 6) and Board condemnation of
the Employer (Objection 7). The document is a
slightly off-centered reproduced copy of a "Notice
To Employees" issued by an Administrative l.aw
Judge in an unrelated proceeding. It clearly shows
the Board's emblem and most of its seal and name,
and sets forth the unfair labor practices found in that
proceeding which the employer therein agreed not to
commit thereafter. The offending employer's name.
however, is scratched out except for the words "&
Equipment Co." and the Employer's name substitut-
ed therefor. The notice further was altered b hand-
penned words at the top averring that "if the NLRB
will stand behind Big 3 they will us too." and by
other hand-penned words at the bottom which, while
somewhat blurred, appear to say "Vote Union." ' It
is undisputed that employee Wilson, an organizing
committeeman for Petitioner, inserted the name
"N. L. Atlas Bradford" for the employer named
therein, and that organizing committeeman White
authored the alteration at the top of the notice.
The Hearing Officer credited White's testimony to
the effect that he posted the notice prior to April 18.
1977, when the petition was filed, that the notice
posted by him remained posted for he minimal pe-
riod only a day, that he never aw further publication
of the notice, and that the purpose of the notice was
to encourage employees to execute authorization
cards on behalf of Petitioner. The record shows.
however, th.a[ White also distributed approximately
15 copies of the altered notice to employees and that,
according to the undisputed testimony of employee
Neil which was not discredited by the Hearing Offi-
cer, a copy of said notice was posted on a plant bath-
room door for a period of several weeks shortly be-
fore the election.
The Hearing Officer found that the off-centered
reproduction of. and the alterations in. the notice
caused it to lose "all character of being an official
'Board document.' " that the alteration involving the
Employer's name was "more impish than sinister."
and that the defaced notice merely was "an altered
copy of something, and not an attempt at forgery."
thereby precluding the conclusion that the publica-
tion of the notice implied that the Board lent its im-
HctllI.e of the difficulties experiene d r nl attin nirtenrl I, eploduti I
dIlar op\ o lhe nellI.e ith e I handidri t l , linlllnetll. c hl.e clo..C. to
gl'e .111 .Iora desLriplloll o*f Ihe dogullrenl
primatur and support to Petitioner. He concluded
that there is insufficient evidence to sustain Objec-
tions 6 and 7. We do not agree.
Contrary to the Hearing Officer, we find that an
official Board document, albeit physically altered,
nevertheless remains an official Board document.
The sole question remaining is whether the message
added thereto created an impression among the em-
ployees of Board endorsement of one of the parties
to the election. Here, the notice, which nowhere men-
tions Petitioner and from which Petitioner made no
effort to disassociate itself, admittedly was appropri-
ated for partisan election purposes by Petitioner's
representatives who used it for the dual prupose of
improperly casting the Employer in an unfavorable
light as a violator of the Act while simultaneously
advancing Petitioner's cause by means of mischarac-
terizing the document, thereby tending to create the
impression that the Board has abandoned its neutral-
ity during the critical election period in favor of Peti-
tioner.4 We find nothing "impish" in this situation.
We find. instead, that such blatant misuse of an offi-
cial Board document will not be countenanced any
more than any statement which even implies Board
bias in favor of a party to an election.' and that such
activities are, and will be. sufficient grounds for set-
ting aside an election. Accordingly. we hereby sus-
tain Objections 6 and 7 and we shall set aside the
election and direct a second election.
ORDER
It is hereby ordered that the election conducted in
this proceeding on July . 1977. be, and it hereby is.
set aside.
I IS I I RI tR ORnDERED that the proceeding herein
be, and it hereby is, remanded to the Regional Direc-
tor for Region 23 for the purpose of conducting a
second election at such time as the Regional Director
deems appropriate.
[Direction of Second Election and Ecelsior foot-
note omitted from publication.]
1.1 Rzll %1 I)c;l,/ i ( h. In, l 215 NLRB 571 (1974): lhtA.g ( vrim/
(I ,,'i ,:oi I,I-H tl 'h,t . 2l)2 Nl.RB 434 (I973) M emlher Penecilh otles
thlill. il his iev the granl.ell of Ille Petitioner's obiecll;lhle cnduet
Ic 11o 111 I [ls i ii ihsllIIIIt 'if Ihe Inlstnt II: plo er's nIlliC for thi of the
le it-iItf t o.1i1inl dei llo 1iltitd i1 ti otlitce. iie this crelled the 111-
pre ol i ii he lllplo er hd heen found in iolationll oI the \tl h\ the1
Board Sase itis. Mettllher P'elllho ould 11ol. II these flacls. haIlc f.ulnd the
Ic'!illl'. ' e u1) II 1 al j .lCllct1iL le tIiit ice ohblellle ollhlc
I .,?, .I , 231 N1 Ri i 1 1977) Meniher l'nello does i1o, 1 rels lit l
/ , tttl e dclSrol