Plastic Fabricating Co., Inc.

National Labor Relations Board - Board Decisions

Nov 7, 1969

179 N.L.R.B. 533 (N.L.R.B. 1969)

PLASTIC FABRICATING CO., INC.
Plastic Fabricating Co., Inc . and District Lodge 70,
International Association of Machinists and
Aerospace Workers , AFL-CIO, Petitioner. Case
17-RC-5984
November 7, 1969
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
Pursuant to a stipulation for certification upon
consent election approved April 1, 1969, an election
by secret ballot was conducted on April 17, 1969,
under the direction and supervision of the Regional
Director for Region 17, among the employees in the
stipulated unit described below. At the conclusion of
the election, the Regional Director served upon the
parties a tally of ballots which showed that, of
approximately 106 eligible voters, 103 ballots had
been cast, of which 51 were for, and 50 against, the
Petitioner. Two ballots were challenged. The
challenged ballots are sufficient in number to affect
the results of the election. Thereafter, the Petitioner
filed timely objections to the election.
In accordance with National Labor Relations
Board Rules and Regulations, Series 8, as amended,
the Acting Regional Director conducted an
investigation of the challenged ballots and the
objections and, on August 7, 1969, issued and duly
served upon the parties his report on challenges and
objections. In his Report he recommended that the
two challenges be overruled, that the ballot cast by
James M. Yeager be opened and counted, and the
allegedly void ballot be counted; and that, if the
revised tally reveals that a majority of votes has
been cast for the Petitioner, the Petitioner be
certified and the objections then be considered as
moot and no further action be taken. If the revised
tally shows that the Petitioner did not receive a
majority of votes cast in the election, he
recommended that Objections 1, 3, 5, 6, and 8 be
overruled; and that Objections 9 and 10 not be ruled
upon. He also recommended, in this event, that
Objections 2, 4, and 7 be sustained, that further
Employer conduct revealed during the course of his
investigation be found to be objectionable conduct,
and that the election, therefore, be set aside and a
new election directed. On August 22, 1969, the
Employer filed timely exceptions to the Acting
Regional Director's Report as it related to the
Employer's conduct found to be objectionable, and a
supporting brief in which it requests that a hearing
now be held. The Petitioner filed no exception.
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 this case to a
three-member panel.
533
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
purposes 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
concerning the representation of employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. In accordance with the stipulation of the
parties, we find that 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
including truckdrivers employed at the Wichita,
Kansas, plant of Plastic Fabricating Co., Inc.,
EXCLUDING office-clerical employees and all
other employees, and guards and supervisors as
defined in the Act as amended.
5. The Board has considered the Acting Regional
Director's Report and the Employer's exceptions. In
the absence of exception thereto, the Board adopts,
pro forma, the Acting Regional Director's
recommendation that the two challenges be
overruled; that Objections 1, 3, 5, 6, and 8 be
overruled; and that no ruling be made on Objections
9 and 10.
The Acting Regional Director treated the
Employer's demand for a hearing, made during the
course of the investigation of the objections, as a
motion, and denied it in his report. In its exceptions,
the Employer alleges, inter alia , that it was not
given an adequate opportunity to present evidence,
and requests accordingly that a hearing now be held.
We find no merit in the Employer's contention it
was not afforded an adequate opportunity to present
evidence and that therefore a hearing was or is
required in this case. We note, inter alia , that at no
time has the Employer specifically denied, or offered
any evidence disputing, any of the factual findings of
the Acting Regional Director. We, therefore, deny
the Employer's request for a hearing.'
We find that the Employer's exceptions to the
Acting Regional Director's recommendation that
Objections 2, 4, and 7' be sustained, raise no
material issues of fact or law which warrant reversal
of the Acting Regional Director However, in
adopting the recommendation that Objection 2 be
'Lazzara Products , Inc. 178 NLRB No 31, Louisville Chair Company.
161 NLRB 358, 375 , enfd 385 F 2d 922 (C A 6), N L R B v Difco
Laboratories , 389 F 2d 663, 667 (C A 6), cert denied 393 US 828
Accord, N L R B v Tennessee Packers, 379 F 2d 172, 177 (C A 6) See
N L R B v Huntsville Manufacturing Company . 203 F 2d 430, 431-433
(C A 5), enfg 99 NLRB 73
We adopt the Acting Regional Director 's findings that, as to Objection
4, the acceleration of a wage increase , and as to Objection 7, the plant
manager ' s threats to discharge union supporters , made to employees,
interfered with the election
179 NLRB No. 86
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sustained, we rely solely on his findings that the
Employer (1) threatened an employee that if the
Petitioner won the election, the Employer would
have to "get rid of" part-time employees; (2) asked
an employee how he felt about the Petitioner,
warned him that employees would be sorry if the
Petitioner won the election, and said employees did
not know how stubborn the Company could be; (3)
questioned an employee as to why he was for the
Petitioner and whether he had attended the
Petitioner's meetings, warned him that it was
"foolish to be for the union ," and promised him
that there would be "lots of opportunity" in the new
plant; (4) called an employee into the plant
manager 's office and interrogated him as to his past
union affiliation and as to what the Union had done
for him, told him that there was too much talk and
the plant manager ran the plant, that the plant
manager had a stack of employment applications
and would replace employees in the event of a
strike, and that there had been a layoff at another
plant of the Employer when a union came in; asked
him how he felt about the Petitioner, and promised
that his pay would increase if he stayed with the
Employer; (5) impliedly requested an employee to
talk to other employees against the Petitioner; and
(6) interrogated employees concerning union
activity.
We find it unnecessary to rule on the Acting
Regional Director's findings, conclusions, and
recommendations as to Employer conduct revealed
during the course of his investigation and which he
treated as an additional objection and found
objectionable. His finding that such conduct was
objectionable is only cumulative and does not affect
the result herein.
ORDER
It is hereby ordered that the challenges be, and
they hereby are, overruled.
DIRECTION
It is hereby directed that as part of the
investigation to ascertain the representative for the
purposes of collective bargaining among the
employees of Plastic Fabricating Co., Inc., at its
Wichita , Kansas , plant in the stipulated appropriate
unit , the Regional Director for Region 17 shall,
pursuant to National Labor Relations Board Rules
and Regulations Series 8, as amended, within 10
days from the date of this Decision, open and count
the ballot cast by James M. Yeager, and count the
allegedly void ballot and , thereafter , prepare and
cause to be served upon the parties a revised tally of
ballots, including therein the count of said
challenged ballots.
IT IS FURTHER DIRECTED that in the event the
revised tally of ballots shows the Petitioner received
a majority of the valid votes cast , the Regional
Director shall issue a Certification of Representative
to the Petitioner.
IT IS FURTHER DIRECTED that should the revised
tally of ballots show that the Petitioner has not
received a majority of the valid ballots cast, the
election conducted on April 17, 1969, shall be set
aside , and a second election be conducted among the
employees in the unit found appropriate , at such
time as the Regional Director deems appropriate.
The Regional Director for Region 17 shall direct
and supervise the election , subject to National
Labor Relations Board Rules and Regulations.
Eligible to vote are those in the unit who were
employed during the payroll period immediately
preceding the date of issuance of the Notice of
Second Election , including employees who did not
work during that period because they were ill, on
vacation , or temporarily laid off . Also eligible are
employees engaged in an economic strike which
commenced less than 12 months before the election
date and who retained their status as such during
the eligibility period and their replacements. Those
in the military services of the United States may
vote if they appear in person at the polls . Ineligible
to vote are employees who have quit or been
discharged for cause since the designated payroll
period and employees engaged in a strike who have
been discharged for cause since the commencement
thereof, and who have not been rehired or reinstated
before the election date , and employees engaged in
an economic strike which commenced more than 12
months before the election date, and who have been
permanently replaced .' Those eligible shall vote
whether or not they desire to be represented for
collective -bargaining purposes by District Lodge 70,
International Association of Machinists and
Aerospace Workers, AFL-CIO.
'in order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Company,
394 U S 759 Accordingly, it is hereby directed that 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 17 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 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 objections are riled