Rebmar, Inc.

National Labor Relations Board - Board Decisions

Dec 31, 1968

173 N.L.R.B. 1434 (N.L.R.B. 1968)

1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rebmar , Inc. and Congreso De Uniones Industriales
De Puerto Rico , Petitioner . Case 24-RC-3555
December 31, 1968
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
Pursuant to a Stipulation for Certification upon
Consent Election, an election by secret ballot was
conducted on February 9, 1968, under the direction
and supervision of the Regional Director for Region
24, among the employees in the appropriate unit. At
the conclusion of the election, the parties were
furnished with a tally of ballots which showed that,
of approximately 400 eligible voters, 378 cast ballots,
of which 191 were for, and 141 against the Petitioner,
44 were challenged, and 2 were void. The challenged
ballots were insufficient in number to affect the
results of the election. Thereafter, the Employer filed
timely objections to the conduct of the election.
On July 1, 1968, the Employer submitted a request
for approval of its withdrawal of objections Nos 2, 3,
and 4. The request was granted and the withdrawal
approved on July 8, 1968. In accordance with the
National Labor Relations Board Rules and Regula-
tions, the Regional Director conducted an investiga-
tion and, on July 11, 1968, issued and duly served
upon the parties his Report on Objection, in which he
recommended that the sole remaining objection be
overruled in its entirety and that the Petitioner be
certified as the collective-bargaining representative of
the employees in the appropriate unit Thereafter, the
Employer filed timely exceptions to the Regional
Director's Report
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the National Labor Relations Act, as
amended, 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 concern-
ing the representation of the employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The following employees constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All of the Employer's production and maintenance
employees including truckdrivers and their helpers
at its factory located at Barrio Cibuco, Corozal,
Puerto Rico, excluding guards, office clerical em-
ployees and supervisors as defined in the Act.
5. As noted above, the Regional Director found
the Employer's objection to be without merit. We do
not agree
The sole issue before the Board concerns the
distribution during the election campaign by the
Petitioner of a handbill which in part consisted of a
portion of the Board's election notice. One side of the
handbill was a reproduction of that portion of the
election notice entitled "Rights of Employees" com-
plete with the Board's seal and name. The only
addition to this side of the handbill was a statement
superimposed at the top to the effect that "The
government protects your right to organize yourself
in a union." The reverse side of the handbill contains
an explanation, couched in broad generalized lan-
guage, of what a union is, how a union functions, and
what a collective-bargaining contract contains. No-
where does the handbill refer to or mention the
Petitioner by name.
We find merit in the Employer's objection and will
set aside this election, and direct a new election. Our
concern is not with the substance of the material
added to the Board's official notice of election, but
with the possible impact such a partisan message
added to an official Board document, or copy
thereof, might have on the freedom of choice of the
voter. We are of the opinion that the Board has a
responsibility to inform employees fully of their
rights and privileges under the Act, and to conduct
elections in an atmosphere conducive to a determina-
tion of the uninhibited preference of employees To
that end the Board's notice of election contains
information the Board believes should be made
available to employees to improve their capability of
casting a vote that fully reflects this freedom of
choice. To this end the Board also publishes a leaflet
including the same type of information, and it is
available to anyone who desires to use it. The Board
also has a responsibility to protect its processes
against abuse or undesirable use To duplicate a part
of the Board's official notice and then to add to it a
personal partisan message that may be interpreted by
the employee as an endorsement by the Board of one
of the parties to the election, and thus have an impact
on the employees' freedom of choice, is, we think, an
undesirable use of Board documents designed for
another purpose. That the Union's message in this
case may be arguably innocuous and that there may
have been at most a narrow or technical violation of
the Allied Electric Products, 109 NLRB 1270, rule, is
clearly irrelevant Whether deliberate or uninten-
tional, such action has a tendency to mislead, and we
are of the opinion that the Board should guard against
having its prestige put to such possible abuse.
Accordingly, as we have sustained objection 1, we
shall set the election aside and direct a second
election.
ORDER
It is hereby ordered that the election conducted
173 NLRB No. 215
REBMAR, INC.
herein on February 9, 1968, be, and it hereby is, set
aside
Direction of Second Election' omitted from publi-
cation
MEMBERS BROWN AND J ENKINS, dissenting-
The Allied Electric Products rule, cited by the
majority, prohibits reproduction of the Board's offi-
cial ballot in altered fashion The Board's stated
rationale for the rule is to prevent any participant in a
Board election from "suggest[ing] either directly or
indirectly to the voters that this Government Agency
endorses a particular choice" (109 NLRB at 1272).
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 24 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 filed . Excelsior Underwearlnc, 156 NLRB 1236
However, in Wyman-Gordon v N L R.B, 397 F 2d 394 (C.A 1), the
Court of Appeals for the First Circuit , while indicating approval of the
substance of the Board 's Exeistor decision , held that the requirement of
the furnishing of an eligibility list is void because it was not adopted in
1435
Apart from the fact that the present case involves
reproduction of an election notice, not an official
ballot, we are unable to interpret the questioned
handbill as conveying even the slightest suggestion
that the Board was endorsing either a "yes" or "no"
vote in the election. Petitioner merely published
material from the Board's own election notice which
the Board wishes disseminated, and it added non-
proscribed, vague, low key, and innocuous propa-
ganda.
We would affirm the Regional Director's recom-
mendation, and certify the election results.
conformity with the provisions of section 4 of the Administrative
Procedure Act (5 U S.C. Sec 553 ). While noting our disagreement with
Wyman - Gordon , we shall in deference to the First Circuit modify our
procedures in elections conducted within the territorial jurisdiction of
that Circuit where an employer refuses to furnish the eligibility list. In
such cases , until the propriety of the Board 's procedure in adopting the
Excelsior requirement has been finally determined, we shall not issue a
subpena for the production of the list , nor shall we seek Court
enforcement of the requirement , and upon the filing of timely
objections on the ground an election was conducted without the list,
the objections will held by the Regional Office until such time as the
propriety of the Board 's procedure in adopting the Excelsior rule has
been finally resolved.