Princeton Refinery, Inc.

National Labor Relations Board - Board Decisions

Aug 9, 1979

244 N.L.R.B. 1 (N.L.R.B. 1979)

PRINCETON REFINERY. INC.
Princeton Refinery, Inc. and Oil, Chemical And
Atomic Workers International Union, AFL-CIO
Petitioner. Case 25-RC-7012
August 9. 1979
DECISION AND DIRECTION
By CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELILO
Pursuant to a Stipulation for Certification Upon
Consent Election approved on November 24. 1978.
an election by secret ballot was conducted on Decem-
ber 15, 1978, under the direction and supervision of
the Regional Director for Region 25. among the em-
ployees in the stipulated unit. At the conclusion of the
election, the parties were furnished with a tally of
ballots which showed that, of approximately 16 eligi-
ble voters, 16 cast ballots, of which 8 were for, and 5
were against, the Petitioner; there were 3 challenged
ballots, a number sufficient to affect the results.
Thereafter, the Employer and the Petitioner, respec-
tively, timely filed objections to the election.
In accordance with the National Labor Relations
Board Rules and Regulations and Statements of Pro-
cedure, Series 8, as amended, the Acting Regional
Director conducted an investigation and on January
11, 1979, issued and duly served on the parties his
Report on Objections to Conduct Affecting Results of
Election, Challenged Ballots, Recommendations to
the Board, Order Directing Hearing, and Notice of
Hearing. In his report the Acting Regional Director
recommended that the challenge to the ballot of Jack
E. Erwin and Employer's Objection 3 be overruled,
and that Erwin's ballot be opened and counted in the
event that the other two challenged voters are found
eligible. Further, the Acting Regional Director or-
dered that a hearing be conducted to resolve the chal-
lenges to the ballots of Eldon Lomas and Jim
McCorkle and to resolve the issues raised by the Em-
ployer's Objections I and 2 and the Petitioner's objec-
tion. On January 29, 1979, the Employer filed excep-
tions to the Acting Regional Director's report on
objections and challenges. On February 5, 1979, the
Board denied the Employer's exceptions as lacking in
merit' and ordered that the issues raised by the re-
maining two challenges and objections be processed
pursuant to the Acting Regional Director's order and
notice of hearing.
Accordingly, a hearing was conducted on February
8, 1979, before Hearing Officer Otto P. Witt. All par-
ties participated and were given full opportunity to
I In the absence of exceptions thereto, the Board adopted. proforma. the
Acting Regional Director's recommendations with respect to the challenge
to the ballot of Jack E. Erwin and the Employer's Objection 3.
examine and cross-examine witnesses and to intro-
duce evidence bearing on the issues. On February 22
and 23. 1979, the Hearing Officer issued and duly
served on the parties his report and errata to the re-
port, respectively. In his report he recommended that
the Petitioner's objection be overruled; that chal-
lenges to the ballots of Eldon Lomas and Jim
McCorkle be overruled; and that in the event that the
Petitioner receives a majority of the votes cast after
opening and counting the ballots of McCorkle, Lo-
mas, and Erwin the Employer's Objections I and 2 be
sustained, the election be set aside, and a new election
conducted: if: however, the Petitioner does not re-
ceive a majority of the votes cast, that the Board cer-
tify the results of the election. The Petitioner timely
filed exceptions to the Hearing Officer's report.
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 case 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. The 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 all pro-
duction and maintenance employees employed by the
Employer at its Princeton, Indiana, facility including
all truckdrivers: but excluding all office clerical em-
ployees, all professional employees, and all guards
and supervisors as defined in the Act, constitute an
appropriate unit for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
5. The Board has reviewed the rulings made by the
Hearing Officer at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Hear-
ing Officer's report, the Petitioner's exceptions, and
the entire record in the case and hereby adopts the
Hearing Officer's recommendations but only to the
extent that the Petitioner's objection be overruled and
that the challenges to the ballots of Eldon Lomas and
Jim McCorkle be overruled and that their ballots be
opened and counted. We do not, however, agree with
the Hearing Officer's recommendations that the Em-
ployer's Objections I and 2 be sustained, the election
be set aside, and a new election ordered if the Peti-
tioner receives a majority of the votes cast after
counting the ballots of McCorkle, Lomas, and Erwin.
Rather, we find that the Employer's Objections I and
244 NLRB No. I
I)(ISIONS OF NATIONAL. L.ABOR RELATIONS BOARI)
2 have no merit and shall overrule them and direct
that the Regional Director issue an appropriate certi-
fication after opening and counting the ballots ot
McCorkle. Lomas, and Erwin and serving on the par-
ties a revised tally of ballots.
The Employer's Objections I and 2 involve two
separate conversations between the Petitioner's ob-
server, Carl Vogel. and Jack Erwin, a challenged
voter. In the first conversation Vogel allegedly said to
Erwin, in response to the latter's query as to why his
ballot was being challenged, that "its the same thing
as always going on . . . same problem: Musgrave [re-
ferring to the Employer's president]." In the second
conversation Erwin, in the words of the Hearing Offi-
cer, asked Vogel "if he had wasted his time going to
the union meetings." In response to this question Vo-
gel told Erwin that he had not wasted his time.
With respect to the first conversation the Hearing
Officer found that there was "a serious question as to
whether this conversation occurred before or after Er-
win voted" but, nevertheless, concluded that: (I) the
response by Vogel to Erwin's query as to why his
ballot was being challenged was uttered merely to in-
form Erwin that his ballot had been challenged by the
Employer; (2) Vogel's response to Erwin's question
did not amount to electioneering, and the conversa-
tion was not a "prolonged" one within the meaning of
the Board's Milchem rule:2 and (3) it was therefore
irrelevant whether the conversation had occurred be-
fore or after Erwin voted.
With regard to the second conversation the Hear-
ing Officer found that it took place before Erwin had
voted, that it was not a "prolonged" conversation, but
that Vogel's negative response to Erwin's question as
2 See Milchem. Inc., 170 NLRB 362 (1968).
to whether he had wasted his time by attending the
union meetings amounted to electioneering within the
meaning of the Board's Milchem rule.
We find that neither conversation alone nor both
conversations when considered together constitutes a
"prolonged" or "sustained" conversation within the
meaning of the Board's Milchein rule.' As stated by
the Board in Milchem, supra at 363:
[T]his does not mean that any chance, isolated,
innocuous comment or inquiry by an employer
or union official to a voter will necessarily void
the election. We will be guided by the maxim
that "the law does not concern itself with trifles."
Milchern was designed to prevent last-minute elec-
tioneering in the immediate vicinity of the polls. The
brief exchanges here, both resulting from questions
initiated by the voter, in no way constitute election
campaigning and are trifling in substance. Accord-
ingly, we overrule the Employer's Objections I and 2.
DIRECTION
It is hereby directed that the Regional Director for
Region 25 shall, pursuant to'the Board's Rules and
Regulations, Series 8, as amended, within 10 days
from the date of this Decision and Direction, open
and count the ballots of Jack E. Erwin, Eldon Lomas,
and Jim McCorkle and thereafter prepare and cause
to be served on the parties a revised tally of ballots
and thereafter issue the appropriate certification.
IT IS, HEREBY FURTHER DIRECTED that the instant
proceeding be, and it hereby is, remanded the Re-
gional Director for Region 25 for the purpose of tak-
ing the actions set fo]rth above.
1 See Resins. Solvenis & Varnishes Corp.. 227 NLRB 959 (1977).
2