P. R. Mallory & Co., Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1967

167 N.L.R.B. 647 (N.L.R.B. 1967)

MALLORY CAPACITOR CO. 647
Mallory Capacitor Company, A Division of P. R.
Mallory & Co., Inc., and International Union of
Electrical, Radio and Machine Workers,
AFL-CIO, Petitioner. Case 9-RC-6736
September 29, 1967
DECISION, ORDER , AND DIRECTION OF
THIRD ELECTION
By MEMBERS FANNING, JENKINS , AND ZAGORIA
Pursuant to a Decision, Order, and Direction of
Second Election issued by the National Labor
Relations Board on December 5, 1966,1 a second
election by secret ballot was conducted on
December 29, 1966, under the direction and super-
vision of the Regional Director for Region 9, among
the employees in the appropriate unit. At the con-
clusion of the election, the parties were furnished a
tally of ballots which showed that of approximately
723 eligible voters, 655 cast ballots, of which 317
were for, and 332 against, the Petitioner. There
were two void ballots and four challenged ballots.
Challenges were not sufficient in number to affect
the results of the election. Thereafter, the Petitioner
filed timely objections to conduct affecting the
results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
the Regional Director conducted an investigation
and, on May 12, 1967, issued and duly served upon
the parties his report on objections in which he
recommended that certain of the objections be
sustained, that the election held on December 29,
1966, be set aside, and that a new election be
directed. The Employer filed timely exceptions to
the Regional Director's report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, the Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has considered the Petitioner's objec-
tions, the Regional Director's report, the Em-
ployer's exceptions, and the entire record in this
case, and shall, for the reasons set forth below, set
aside the election herein and direct that a new elec-
tion be held.
Among other things, the Petitioner contends that
the Employer, by holding various captive-audience
meetings within a 24-hour period immediately
preceding the election, during which employees
were urged to vote against the Union, and by
promulgating and continuing to maintain during the
election period an unlawful no-distribution rule, has
engaged in conduct which prevented employees
from exercising their right to a free and uncoerced
election, and therefore that the election herein
should be set aside and a new election be directed.
We find merit in these contentions.
The pertinent facts are as follows:
On December 22, 1966, the Employer mailed a
letter to its employees in which it stated that, ".. .
we are sure that there will not be an election in this
plant on Thursday, December 29." On December
28, 1966, the day preceding the election, the Em-
ployer `held meetings on all three shifts in the
production area of its plant during working time. At
these meetings, employees were adressed by
Wayne Etter, a vice president of the Employer, and
by Jack Brenner, the plant manager. These
meetings were purportedly held for the purpose of
advising employees that the election would take
place the next day as scheduled and would not be
postponed as the Employer had told the employees
in its letter. The Employer's representatives, how-
ever, did more than merely communicate this infor-
mation to the employees. According to the informa-
tion secured during the Regional Director's in-
vestigation, they engaged in campaign speeches in
which they, among other things, expressed the Em-
ployer's opposition to unions and its desire that the
employees vote negatively and 'stated that the
Union had been in the plant for 1 year and had done
nothing, that the Employer should be given a
chance to do something for the employees, that a
union could do nothing, etc. Such conduct is incon-
sistent with the Board's rule prohibiting employers
from making campaign speeches to employees on
company time within 24 hours of a scheduled elec-
tion.2 As the Board stated and explicated in Peer-
less Plywood, such speeches tend to interfere with
the free choice of a bargaining representative. The
Employer avers that such conduct was compelled,
however, by circumstances which denied it an op-
portunity to prepare and mount an election cam-
paign. These circumstances, according to the Em-
ployer, are attributable to the Regional Director's
failure to grant the Employer's motion for a post-
ponement of the scheduled election.
In our view, however, any limitation on the Em-
ployer's opportunity was self-imposed and
stemmed from the Employer's effort to capitalize
upon an error contained in the Regional Director's
original Notice of Second Election.3 It was on
December 5, 1966, that the Board set aside the first
election and directed the second election. The
period from December 5 to December 28, in our
161 NLRB 1510
Peerless Plywood Company, 107 NLRB 427
' This error, a statement that the Employer rather than the Petitioner
had engaged in objectionable conduct requiring a second election, was
corrected by the Regional Director more than a week before the
scheduled election The Employer urges that this mistake, inasmuch as it
would benefit the Petitioner, requires that the election not be set aside but
that the results be certified Unfortunate and regrettable as it was, we do
not view this mistake as an issue in this case Assuming that the Regional
Director's conduct would have warranted setting the election aside had
the Petitioner won, that fact does not warrant letting the election stand In
this context, two minuses do not equal a plus-one does not cancel out the
other The issue is whether or not the Employer's conduct tended to inter-
fere with the election We have found that it did
167 NLRB No. 89
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opinion, was ample time within which the Employer
could legitimately express its point of view. In these
circumstances we are not convinced that the appli-
cation of the salutary rule of Peerless Plywood
should be withheld. Accordingly, as the Employer's
campaign speeches in the plant on working time
within 24 hours of the election tended to interfere
with the second election, we shall set aside that
election and shall direct another election.
The Employer's rule prohibiting employees from
distributing literature on nonworking time in non-
working areas, which had already been found (by
the Board's affirmance on February 1, 1967, of the
Trial Examiner's Decision issued on September 29,
1966) to have violated Section 8(a)(1) of the Act,4
continued in effect at least through December 22,
1966, 1 week before the scheduled election. In
justification, the Employer avers that reasonable al-
ternatives were open to the Petitioner to carry on its
election campaign. As the Board stated in
Stoddard-Quirk, such an argument suggests that the
Respondent's employees are entitled to no greater
rights in this respect than nonemployee organizers.
This concept, in that case, was rejected by the
Board on the ground of the Supreme Court's hold-
ing in Babcock & Wilcox Company, 351 U.S. 105,
that the rules applicable to employees are different
from those applicable to nonemployees. Moreover,
as the Board stated in Edmont, Inc.,5 it is not neces-
sary to prove that the Union had difficulty in
reaching the employees to find that an unlawful no-
distribution rule affected the results of an election,
because its very existence hampered legitimate or-
ganizational activity and interfered with a free elec-
tion. Significantly here, the rule was not only in ex-
istence, but the Employer, in fact, enforced it a few
days before the election. Under these circum-
stances, by the continued enforcement and main-
tenance of the rule, the Employer has denied its em-
ployees an opportunity to vote in a free and
uncoerced election.6
In view of our findings above, we shall set the
election aside and direct that a new election be held.
ORDER
IT IS HEREBY ORDERED that the election con-
ducted on December 29, 1966, be, and it hereby is,
set aside.
[Direction of Election I omitted from publi-
cation.]
4 Mallory Capacitor Company, 162 N LRB 1404
'See Stoddard-Quirk Manufacturing Co, 138 NLRB 615, and
Edmont, Inc , 139 N LRB 1528
6 In view of our determination herein, we find it unnecessary to pass
upon the Regional Director 's findings and recommendations with respect
to the other objections of the Petitioner or upon the issues raised by the
Employer's exceptions thereto
7 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 9 within 7 days after the date of issuance of the
Notice of Third Election by the Regional Director 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 ex-
traordinary circumstances Failure to comply with this requirement shall
be grounds for setting aside the election whenever proper objections are
filed Ex. elscor Underwear Inc- , 156 N LRB 1236