Q-F Wholesalers, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1949

87 N.L.R.B. 1085 (N.L.R.B. 1949)

In the Matter of Q-F WHOLESALERS, INC., EMPLOYER AND PETITIONER
and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL No. 676, AFL,
UNION
Case No..4-RM-38
SUPPLEMENTAL DECISION
AND
ORDER
December 16,19419
On August 30, 1949, pursuant to a Decision and Direction of Elec-
tion issued by the Board on August 8, 1949,1 an election by secret ballot
was conducted under the direction and supervision of the Regional
Director for the Fourth Region, among the employees of the Em-
ployer in the unit found appropriate. At the close of the election
a Tally of Ballots was furnished the parties. The tally shows that
11 ballots were cast, of which 5 were for the Union, 5 were against
the Union and 1 was void.
Thereafter, the Union filed timely objections to conduct affecting
the results of the election. It asserted that certain activity of the
Employer prior to the election, and the manner in which the election
was conducted, prevented a free choice by the employees in the ballot-
ing, and requested that the election be set aside. On October 13, 1949,
after all investigation, the Regional Director issued, and duly served
upon the parties, his "Report and Recommendations on Objections,"
in which he found that the objections did not raise substantial and
material issues, and recommended that all the objections be dismissed.
On October 19, 1949, the Union filed exceptions to the Regional
Director's Report.
Upon the basis of the Union's Objections to Election, the Regional
Director's Report and Recommendations on Objections, the Union's
exceptions, and the entire record in the case, the Board finds : 2
1 Q-F Wholesalers , Inc., 85 NLRB 582.
2 As the Union did not submit any evidence supporting its second and fourth objections,
and as no exceptions have been taken to the Regional Director ' s findings concerning these
objections in which he found no merit , we affirm the Regional Director 's findings in this
respect.
87 NLRB No. 129.
. 1035
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Objections 1 and 3: The substance of these objections is that the
Employer engaged in a course of conduct which was coercive, and
thereby did not allow the employees to exercise the freedom of choice
contemplated by the Act. These objections rest primarily on a letter
circulated and read to the assembled employees in the unit on August
27, 1949, by the Employer's division personnel manager, Hoke Smith
Simpson. The Regional Director found that the statements con-
tained in this letter were within the area of free speech as defined
in Section 8 (c) of the Act. He further found that Simpson's state-
ment at this meeting did not exceed the bounds of permissible
expression.3
The Union excepts to the Regional Director's findings, contending
that he took an unrealistic view of the circumstances surrounding
the issuance of the letter and the speech made by Simpson, because
he did not rely upon the impression that was left with the employees.
Although the letter clearly indicated the Employer's preference
for dealing directly with its employees rather than through a labor
organization, it contained no threat of reprisal or force, or promise
of benefit, and made it clear that the employees were free to vote
as they choose. We agree with the Regional Director that an allega-
tion of coercion and interference with the freedom of the ballot cannot
be sustained on the basis of an impression that may have been left by
privileged actions or remarks. We find that the letter circulated by
the Employer, and the speech made by Simpson did not interfere with
the election, and that the employees were not precluded from express-
ing a free choice in the election. Accordingly, we shall overrule these
objections.' .
Objection 5: The Union contends that the results of the election
do not reflect the true wishes of the employees for the reason that
(a) the election was improperly and irregularly conducted, and (b)
the ballots were not properly counted and the results were improperly
recorded.
(a) In support of its contention that the election was improperly
and irregularly conducted, the Union alleges that (1) although the
Employer had an observer present at the election, the Union was not
accorded a similar privilege; (2) one of the employees was not per-
mitted sufficient time in which to vote; (3) a blank ballot which was
declared void, was not an unmarked ballot, but one on which an em-
ployee had attempted to vote for the Union; and (4) the polling place
was so situated that surveillance by the Employer's officials was
possible.
8 An employee alleged that Simpson's remarks left him and other employees with the
impression that the Employer was against unions.
4 Meyer i Welch, Inc., 85 NLRB 706 ; L. H. Butcher Company, 81 NLRB 1184.
Q-F WHOLESALERS, INC. 1087
1. The Regional Director, reporting on the circumstances of the
election, stated that an employee, Charles S. Bunn, claimed that he
presented himself to the Board agent as the designated observer for
the Union on the day of the election, but the Board agent refused
to allow him to act as an observer. This statement was corroborated
by that of one of the Union's representatives, who stated that Bunn
was about 15 minutes late in coming to the polling place. These
statements were contradicted by those of the Board agent and the
Employer's observer. The Regional Director found that the affidavit
submitted in support of this objection is lacking in substantial evidence,
and that the evidence presented showed that the Union had ample op-
portunity of having an observer at the election, but failed to take
advantage of this privilege.
The Union, in its exceptions, alleges that in a preelection conference,
a Board agent was told that Bunn would be an observer for the Union
at the election, but that a different Board agent, who was substituted
for the one originally scheduled to conduct the election, was un-
acquainted with the name of its observer. The Union contends that
the evidence clearly establishes that the Board agent refused to permit
Bunn to act as an observer, upon his request to do so.
Even if we assume that all the allegations made by the Union are
true, we find that no prejudice resulted to the Union from a failure
to permit Bunn to act as union observer. The facts show that all
eligible employees had an opportunity to and did exercise their
franchise. There is no contention that any ineligible employees voted
nor that the Board's agents conducting the elections improperly
carried out their functions. We do not believe that the employees'
exercise of their right freely to choose a bargaining representative
was interfered with in any way by the alleged failure of the Union
to have an observer present at the election 5 To set the election aside
under these circumstances as our dissenting colleagues urge, would be
to exalt form over substance.
2. The Regional Director's investigation disclosed that Edward
Marley, an employee, entered the polling place at 8 a. in., the time for
the closing of the polls. He was given a ballot and told to go into
the voting booth. When he came out of the booth, he dropped a
folded ballot into the ballot box. Just prior to Marley's arrival at
the polling place, a person outside the room asked in a loud voice
whether the election was over, and someone shouted back, "Oh, about
' The practice of having any observers at an election , other than the Board 's agents, is
one which is not required by the statute but is a matter exclusively within the discretion
of the Board . Marlin-Rockwell Corporation v. N. L. R. B., 116 F. 2d 586-588 (C. A. 2),
cert. den. 313 U. S. 514; Southern Steamship Company v . N. L. R. B., 316 U. S. 31, 37;
Semi-Steel Casting Company v. N. L. R. B., 160 F. 2d 388, 393 ( C. A. B), cert. den. 332
U. S. 758.
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
30 seconds more." Drarley asserted that lie was told by the Board
agent that he had only 30.seconds in which to vote, and therefore
voted hastily. The Regional Director found that Marley was given
ample time in which to vote, and that his contention of being hurried
is not sustained.
The Union, in its exceptions to this finding by the Regional Director,
argues that although this statement was not directed at Marley,
nothing was done to dissipate his impression that it was, and Marley
had a right to rely on this statement.
No contention is made that because of this statement Marley cast a
ballot which was contrary to the way he wished to vote. There is
no evidence that at the time Marley made any complaint about being
hurried, or requested more time in which to vote. We find that Marley
was given ample opportunity to express his true desires as to a
bargaining representative.
3. When the ballots were counted at the close of the election, it was
found that one ballot was unmarked, and it was declared void. The
ballot was shown to representatives of the Employer and the Union
who were present to witness the opening of the ballot box and the
counting and tallying of the votes. No protest was registered at the
time concerning this ballot.
The reported facts show that a pencil used in the voting booth,
which was originally sharpened at both ends, was broken at one
ends The Regional Director reported that the ballot declared void
was thoroughly inspected through a magnifying glass, and that it
did not appear that any of the fibers of the paper were broken to indi-
cate the possibility of having been marked with a broken pencil.
In its exceptions, the Union disputed the Regional Director's find-
ing that no fibers of paper on the blank ballot were broken. It
contends that a careful examination of this ballot showed a break-
ing of the fibers of the paper on the block marked "yes."
Our examination of this ballot discloses that there is no merit to
the Union's contention that it showed a breaking of the fibers of
paper. Inasmuch as it is definitely an unmarked ballot, it must
necessarily be declared void.
4. The Regional Director reported that during the course of the
election, the Employer's officials were out of sight in an office behind
closed doors on the other side of a blank wall at a distance of approxi-
mately 75 feet from the polling place, and that .a study of the polling
place showed that it would be impossible to survey the balloting
e No complaint about the pencil was made by any of the eligible voters on the day of
the election.
Q-F WHOLESALERS, INC. 1089
'procedure without entering the locker room where the election was
held.
The Union excepts to this finding on, the ground that" an official
of the Employer was in such close proximity to the locker room as
to be able to have a conversation with someone inside the room. This
contention is made with reference to the conversation in regard to
the closing of the polls, noted above in paragraph No. 2. There is
no contention made, nor any evidence to indicate, that any of the Em-
ployer's officials entered the polling place before the election was
over. We find that this statement from outside of the locker room
just before the closing of the polls, is insufficient evidence on which to
reach a conclusion that there was surveillance of the balloting on
the part of the Employer's officials.
We do not believe that there has been a showing of such irregular-
ity in the conduct of the election as to warrant setting aside the elec-
tion. We therefore overrule this objection.
(b) In support of its contention that the ballots were not properly
counted and the results properly recorded, the Union secured affi-
davits from six of the voters attesting to the fact that they had voted
for the Union. The Regional Director found that as both parties
were witnesses to the opening of the ballot box and the tallying of
the ballots, there is no substantiating evidence to support the Union's
allegation.
Aside from the Regional Director's findings concerning the blank
ballot, the Union makes no specific exceptions to this portion of the
Regional Director's Report. We find the objection to be without
merit, and we hereby overrule it.
As we find the Objections to the Election filed by the Union do
not raise substantial and material issues of fact, we deem it unneces-
sary to order a hearing in this case? Upon the basis of the foregoing
findings of fact, we hereby overrule the Union's exceptions to Report
and Recommendations on Objections, and adopt the Regional Direc-
tor's findings and recommendations. Accordingly, as the Talley of
Ballots shows that no collective bargaining representative has been
chosen we shall dismiss the petition herein.
ORDER
IT IS HEREBY ORDERED that the petition filed herein be, and it hereby
is, dismissed.
MEMBER REYNOLDS, concurring :
I agree with Members Murdock and Gray that the Union's objec-
tions and exceptions should be overruled. However, with respect to
' See Craddock -Terry Shoe Corporation, 80 NLRB 1239.
877359-50-vol. 87-70
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union's allegations that it was not accorded the privilege of having
an observer present at the election, I agree with my colleagues' con-
clusion, but not their rationale. It is true, as they indicate, that the
customary practice of having observers at an election is a privilege
granted to the parties rather than a right. Nevertheless, since the
Board in its discretion has established certain election procedures, in
my opinion, it is incumbent upon the Board to make certain that such
procedures are impartially applied. Thus, if, as a matter of fact, the
Board's agent improperly excluded the Union's observer from the
polls and at the same time permitted the Employer to have an observer,
this clearly would have been an arbitrary and capricious application
of the election rules, irrespective of any prejudice which might have
resulted. In these circumstances, I would agree with Chairman Herzog
and Member Houston rather than with Members Murdock and Gray
that such conduct by a Board agent should not be condoned and I
would favor setting aside the election.
. However, the Regional Director's Report appears to me to furnish
sufficient basis for not setting aside the election. An examination of
this report discloses that the Regional Director upon the basis of his
investigation found insubstantial evidence to support the Union's
contention that it was denied the privilege of having an observer at
the election. On the contrary, he found that the Union had ample
opportunity to provide an observer, but failed to exercise its privilege.
He therefore recommended that the objection be overruled. I am
satisfied that the Regional Director's investigation revealed no abuse
of discretion on the part of the Board's agent. Under the circum-
stances of this case, I would adopt his "Report and Recommendations"
on this subject and like Members Murdock and Gray would overrule
the Union's objection.
CHAIRMAN HERZOG and MEMBER HOUSTON, dissenting in part :
Insofar as the objections to this election concerned. the alleged ex-
clusion of the Union's observer from the polls, Ave cannot make the
assumption which appears to satisfy our colleagues. We believe that
orderly, regular, and uniform election procedures are vital to the
maintenance of successful use of democratic methods of resolving rep-
resentation disputes. One established part of these procedures is
the privilege of employer and labor organizations to have an observer
present during the election. We would hold a hearing to take sworn
testimony to discover the facts; if they disclosed improper exclusion
of the union observer, this election should be set aside.