P. R. Mallory & Co., Inc.

National Labor Relations Board - Board Decisions

May 18, 1966

158 N.L.R.B. 954 (N.L.R.B. 1966)

954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
character of the jobs and the functions of the employees in the con-
tract unit does not remove a contract as a bar, a precondition is that
the relocation must be accompanied'by the transfer of a considerable
proportion' -of, the employees from the old to the new plant.4 In the
present case, the number of former employees at the Newburgh unit
who have transferred permanently to Montville is insignificant.
Under these circumstances, we find that the Newburgh contract is
not a bar to these proceedings.5
Accordingly, we find that a question affecting commerce exists
concerning the representation of certain employees of the Employer
within Sections 9 (c) (1) and 2(6) and (7) of the Act.
4. The following employees of the Employer 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 employed at the
Employer's warehouse in Montville , New Jersey, excluding office
clerical employees , guards, warehousemen , professionals, and
supervisors as defined , in the Act.6,
[Text of Direction of Election omitted from publication.] 7
• General Extricsion Company , Inc., 121 NLRB 1165 , 1167-1168.
s In determining whether a relocation has been , accompanied by the transfer of a con-
siderable portion of employees from the old to the new plant, the Board has considered
the number of these transferees at the time of the hearing as the relevant factor. See
Arrow Company, 147 NLRB 829 ; Edward Aaron Corp., 125 NLRB 840; Bowman Dairies,
123 NLRB 707.
6 The unit found appropriate herein is stipulated as such by all the parties to the case.
I 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 22 within 7 days after
the date of this Decision and Direction of Election . The Regional Director shall make the
list available to all parties to the election . No extension of time to file 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 objec-
tions are filed . Excelsior Underwear Inc., 156 NLRB 1236.
Mallory Plastics Company , a division of P. R. Mallory & Co.,
Inc. and Textile Workers Union of America . Cases Nos. 13-
CA-6032 and 13-RC-9739. May 18,1966
ORDER GRANTING MOTION AND CERTIFICATION OF
RESULTS OF ELECTION
On December 11, 1964, the Board issued its Decision, Order, and
Direction of Second Election in these cases,' finding that the Re-
spondent had violated Section 8(a) (1) of the Act. The Board fur-
ther found that the Respondent had not engaged in certain other
1149 NLRB 1649.
158 NLRB No. 92.
MALLORY PLASTICS COMPANY 955
unfair labor practices , and dismissed those allegations of the com-
pl'aint'. The Board ordered the Respondent to cease and desist from
the unfair labor practices found , and to take certain affirmative action
necessary to effectuate the purposes of the Act. As the same conduct
found violative of the Act had- been the basis of an objection to con-
duct alleged to have affected the results of an election held 'on Decem-
ber 12 , 1963 , the Board further ordered that the election be set aside,
and directed that a second election be held on a date to be determined
by the Regional Director for Region 13. No second election has yet
been held.
On January 11, 1966, the United States Court of Appeals for the
Seventh Circuit issued its decision 2 rejecting the Board 's finding
that the Respondent had violated Section 8 ( a) (1) of the Act, and
therefore denying the Board's petition for enforcement of its Order.'
Thereafter, on March 3 , 1966, the ' Respondent filed with the Board a
"Motion to Vacate Order Directing Second Election and to Certify
Results of First Election," and the Textile Workers , on March 18,
1966, filed its "Opposition to Motion to Vacate Order Directing Sec-
ond Election."
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases-to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Textile Workers urges the - Board to deny the Respondent's
motion and proceed with the second election , relying on the Board's
long-established rule that conduct may be deemed to invalidate an
election even though it may not constitute an unfair labor practice
(General Shoe Corporation , 77 NLRB 124).,
The conduct in question involved remarks made by three of the
Respondent 's supervisors to seven of its employees . Employees were
quizzed regarding their union sympathies and were asked to remove
union insignia; two of the supervisors also expressed the opinion
that the Union could not do anything for the employees , and might
harm them financially . There was no question that the remarks in
question were made . The Board adopted the Trial Examiner's find-
ing that the remarks were cd6rcive, and hence , "a fortiori, conduct
which interferes with the exercise of a free and untrammeled choice
in an election." However , the court found these remarks to be
noncoercive , devoid of threats of reprisal , and no more than expres-
sions of views or opinion.
We have decided to grant the 'Respondent 's motion to vacate our
direction of second election and certify the results of the first elec-
I N.L.R.B. v. Mallory Plastics Company, a division of P. R. Mallory & Co., Inc., 355
F. 2d 509.
8 The court did not have the representation proceeding before it.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion. Our decision to set aside the first election was based entirely on
our adoption of the Trial Examiner's finding that the remarks in
question were coercive. The court having found, in effect, that those
remarks were innocuous , we are now constrained to hold that there
is no warrant, on the record before us, to proceed to a second elec-
tion.4 Accordingly, the Respondent's motion is hereby granted, and,
IT IS HEREBY ORDERED that the Board's Order to set aside the Decem-
ber 12, 1963, election, and its Direction of Second Election, issued on
December 11, 1964, and they hereby are vacated.
As the tally of ballots shows that Textile Workers Union of Amer-
ica did not receive a majority of the valid votes cast in the election
held on December 12, 1963, we shall certify the results of that
election.
[The Board certified that a majority of the valid votes was not cast
for Textile Workers Union of America, and that the said labor
organization is not the exclusive representative of the employees in
the appropriate unit.]
Members Brown and Zagoria took no part in the above motion and
certification.
4 In the circumstances of this case , we do not view our action here as a rejection of the
principle established in General Shoe Corporation, supra.
Electric Boat Division , General Dynamics Corporation and
A. L. Schroeder, Petitioner and Professional , Technical and
Office Employes Union , Local No. 11 , affiliated with Office and
Professional Employes International Union , AFL-CIO. Case
No. 19-RD-33?. May 18, 1966
DECISION ON REVIEW AND ORDER
On November 23, 1965, the Regional Director for Region 19 issued
a Decision and Direction of Election in the above-entitled proceeding
in a unit of office clerical employees then represented by,the Union.,
Thereafter, in accordance with Section 102.67 of the National
Labor Relations Board Rules and Regulations, Series 8, as amended,
1 Local 288 of the same International Union was certified as the bargaining representa-
tive of the Employer 's employees involved herein following an election conducted on
June 9, 1964 . Local 288 and the Employer thereafter entered into a collective-bargaining
contract effective from November 5, 1964, to November 5, 1965. On about August 8,
1965, Local 298 amalgamated into Local No. 11 and the Employer was so notified. The
Regional Director found that Local No. 11 lawfully succeeded to the contract rights of
Local 288 and is the successor of Local 288 . No exception was taken to -those findings
and they are hereby adopted pro forma.
158 NLRB No. 95.