North American Aviation, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1949

81 N.L.R.B. 1046 (N.L.R.B. 1949)

In the Matter of NORTH AMERICAN AVIATION, INC., EMPLOYER and
INTERNATIONAL UNION, UNITED AUTOMOBILE , AIRCRAFT AND AGRI-
CULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL 887, PETITIONER
Case No. 21-UA-1797.Decided February 28,1949
DECISION
AND
ORDER SETTING ASIDE ELECTION
On August 20, 1948, the Regional Director for the Twenty-first Re-
gion (Los Angeles, California), pursuant to the Rules and Regulations
of the National Labor Relations Board, conducted a union-shop au-
thorization election among certain employees of the Employer. Such
election was conducted by mail ballot.
Upon the conclusion of the election, a Tally of Ballots was furnished
the parties in accordance with the Rules and Regulations of the Board.
The Tally shows that of the 15,532 eligible voters, 8,771 cast valid
ballots, of which 6,314 were for, and 2,457 against, authorizing an
agreement requiring membership in the Petitioner as a condition of
continued employment. Five ballots were void, and 92 were chal-
lenged. Thus, the Petitioner did not obtain a majority of the eligible
voters, as is required by Section 8 (a) (3) of the Act.
Thereafter, on August 27, 1948, the Petitioner filed Objections to
the Conduct of the Election. On October 19, 1948, the Regional Di-
rector issued and duly served upon the parties his Report on Objections,
in which he recommended that the Petitioner's Objections be dismissed.
On November 8, 1948, the Employer filed timely Exceptions to the Re-
port on Objections. On November 12, 1948, the Petitioner filed Ex-
,ceptions to the Report on Objections, which Exceptions were not
received within the time provided for filing Exceptions.' Although
the Board will not ordinarily consider Exceptions which are not
timely filed, we shall, in view of the character of the Petitioner's
'The time for filing Exceptions as extended by the Board to November 8, 1948.
The Petitioner 's Exceptions were received by the Board on November 12, 1948, 4 days
beyond the extension date granted.
81 N. L. R. B., No. 162.
1046
NORTH AMERICAN AVIATION, INC. 1047
Objections, consider its Exceptions on the merits, together with the
Employer's Exception^.2
The Substance of the Employer's Exceptions
The validity of the filing of the Petitioner's Objections is raised
by the Employer in its Exceptions to the Regional Director's Report
on Objections. The Employer alleges, in effect, that such Objections
were not properly filed pursuant to Section 203.61 of the Rules and
Regulations of the Board because the Employer was not served with a
copy thereof. The Board has generally held, however, that technical
defects in the filing of objections will not affect their validity where
no prejudice has resulted therefrom.3 In the present case, it does not
appear that the Employer has been prejudiced by not having received
a copy of the Petitioner's Objections, since such Objections were em-
bodied in the Regional Director's Report on Objections, a copy of
which the Employer admittedly received. We find, therefore, that
the Employer's Exceptions are lacking in merit, and they are hereby
overruled.
The Substance of the Petitioner's Objections and Exceptions
The Petitioner's Objections and Exceptions, read together, can be
construed as raising.two major contentions: (1) that the conduct of
the election by mail ballot was improper; and (2) that there were cer-
tain irregularities in the conduct of the election which prevented
proper and adequate distribution and return of the ballots.
With regard to the first contention, the Board has stated that a
Regional Director has broad discretion in arranging the details of an
election, including, in appropriate instances, the determination as to
whether to conduct the election in whole or in part by mail.' In the
present instance, inasmuch as there were 15,532 eligible voters at
separately located plants, and since the Employer refused to permit
the election to be held on its premises, we do not believe that the
conducting of the election by mail ballot was "per se" objectionable
or improper.
With regard to the second contention, it appears that the irregu-
larities complained of arose by virtue of the insistence of the parties
S Cf Matter of Woodmark Industries, Inc., 80 N L R B 1105, wherein the Board
of its own motion considered objections to the conduct of an election , filed by a labor
organization not a party to or entitled to participate in the election , where such objec-
tions concerned matters of Board policy.
' See Matter of P. D. Gwaltney, Jr ., and Company , Inc, 74 N L R B. 371.
4 Matter of E I. Du Pont de Nemours and Company , 79 N L R B 345, and cases cited
therein . See, also, Section 203.67 of the Rules and Regulations of the Board.
1048 DECIbIONS OF NATIONAL LABOR RELATIONS BOARD
that the election be completed before August 21, 1948, the date upon
which the union-security provisions of the Petitioner's contract with
the Employer would expire. In an effort to cooperate with the par-
ties, the Regional Director departed in certain respects from the cus-
tomary practice of the Board. Thus, the Regional Director allotted
less time, under the circumstances, than he ordinarily would have
allotted for the receipt and return of the mailed ballots.5 In addition
thereto, the Regional Director permitted the Employer to address
the ballot envelopes for mailing to employees. In the course of the
latter process, it developed, through an oversight, that the return en-
velopes enclosed with the ballots did not bear the customary postage
or Government frank 6 permitting employees to return the completed
ballots by mail without the added inconvenience and expense of
purchasing and affixing stamps thereto. As the result of these cir-
cumstances, the Petitioner now alleges, among other things: (1) that
a substantial number of eligible voters did not receive ballots; (2)
that such voters were unable to so inform the Regional Office by
telephone, as instructed, because of continuous busy signals; 7 (3) that
insufficient time was allotted for the mailing and return of the ballots ; 8
(4) that a substantial number of ballots were sent to wrong addresses;
(5) that the Regional Director made no check as to the thoroughness
of the addressing of the envelopes by the Employer; and (6) that there
was no Board supervision of the mechanics of distributing the mail
ballots.
Were it not for the fact that the Board has the responsibility for
maintaining adequate election standards,9 we should be inclined to
overrule the Petitioner's Objections, for the reason that the circum-
" Ballots were mailed at the close of business on August 12, 1948, and the advertised
return date therefor was midnight , August 19, 1948
6 As sufficient time was not available within which to correct this error, the Regional
Director obtained clearance from the Post Office Department for delivery of the return
envelopes without postage . Also, the voters were notified in the instructions sent to them
that the return envelopes need carry no postage.
4 Four switchboard trunk lines were available at the Regional Office between 4: 30
(quitting time of the Employer 's first shift ) and 8: 00 p. in . on the days of August 16
through 19 , 1948, for the purpose of receiving anticipated telephone requests for ballots.
8 It appears that all arrangements for the conduct of the election were acquiesced in
by the parties , and at no time prior to the completion of the election did the Petitioner object
to the shortness of time allowed for the receipt and return of the ballots In fact, the
Petitioner urged that the election be completed prior to August 21, 1948
Y See Zfdtter of General Shoe Corporation , 77 N L. R. B 124, wherein the Board made
the following observation with respect to its duty to maintain proper election standards :
"In election proceedings , it is the Board 's function to provide a laboratory in which an
experiment may be conducted , under conditions as nearly ideal as possible , to determine
the uninhibited desires of the employees . It is our duty to establish those conditions;
it is also our duty to determine whether they have been fulfilled . When, in the rare
extreme case, the standard drops too low, because of our fault or that of others, the
requisite laboratory conditions are not present and the experiment must be conducted over
again."
NORTH AMERICAN AVIATION, INC. 1049
stances complained of have resulted at least in part from the Petition-
er's own insistence that the election be completed by a certain date.
Moreover, some of the matters complained of may be attributed to the
normal hazards of conducting an election by mail ballot. However,
the record discloses a chain of events which leads us to the conclusion
that the desires of the eligible employees involved herein may not have
been given adequate opportunity for expression. While no one of the
factors raised by the Petitioner, standing alone, would necessarily pre-
judice the rights of such employees, we believe that these factors, taken
together, create a reasonable doubt as to whether all eligible employees
were given a fair opportunity to vote in an election the results of which,
under Section 9 (e) of the Act, are to be tested by the votes of a major-
ity of those eligible to participate. Under the circumstances, we shall
sustain the Petitioner's Objections to the conduct of the election, and
shall set aside the election held in this proceeding on August 20, 1948.
ORDER
IT IS HEREBY ORDERED that the election held on August 20, 1948,
among the employees of the four plants of North American Aviation,
Inc., located at Inglewood, Downey, Long Beach, and Los Angeles,
California, respectively, be, and it hereby is, set aside.
MEMBER GRAY took no part in the consideration of the above Deci-
sion and Order Setting Aside Election.