Southwest Latex Corp.

National Labor Relations Board - Board Decisions

Mar 21, 1969

175 N.L.R.B. 1 (N.L.R.B. 1969)

SOUTHWEST LATEX CORP.
Southwest Latex Corporation and United Industrial
Workers of the Seafarer 's International Union of
North America , Atlantic , Gulf, Lakes and Inland
Waters District , AFL-CIO, Petitioner. Case
23-RC-3129
March 21, 1969
SUPPLEMENTAL DECISION, ORDER,
AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
Pursuant to a Stipulation for Certification upon
Consent Election executed by the parties on May I,
1968, an election by secret ballot was conducted in
the above-entitled proceeding on May 15, 1968,
under the direction and supervision of the Regional
Director for Region 23 (Houston, Texas). Upon the
conclusion of the election, the parties were furnished
a tally of ballots, in accordance with National
Labor Relations Board Rules and Regulations.
The tally of ballots shows that there were
approximately 12 eligible voters and that 11 ballots
were cast, of which 6 were for the Petitioner, 2 were
against the Petitioner, and 3 were challenged.
On May 20, 1968, the Employer filed timely
objections to the conduct of the election and conduct
affecting the results of the election. The Regional
Director caused an investigation of the objections to
be made and, thereafter, on July 18, 1968, issued
and served on the parties his Report and
Recommendations on Objections to Election. In his
Report, the Regional Director found the Employer's
objections to be without merit. He therefore,
recommended to the Board that the objections be
overruled in their entirety, and that a certification of
representative based upon the tally of ballots be
issued.
Thereafter, on July 29, 1968, the Employer filed
timely exceptions to the Regional Director's Report
and argument in support of the exceptions.
The Board issued an Order Directing a Hearing
on October 29, 1968, in which it adopted, pro
forma, the Regional Director's recommendation that
the Petitioner's objection Nos. 1, and 4 through 6 be
overruled, and ordered that a hearing be held for the
purpose of receiving evidence to resolve the issues
raised by the Employer's objection Nos. 2 and 3.
It was further ordered that the Hearing Officer
designated to conduct such a hearing should prepare
and cause to be served on the parties a report
containing resolutions of credibility of witnesses,
findings of fact, and recommendations to the Board
as to the disposition of said objections.
Pursuant to the Board's Order, a hearing was held
on December 16, 1968, before Hearing Officer
Jerome L. Avedon. All parties participated and were
given full opportunity to examine and cross-examine
witnesses and to introduce evidence bearing on the
issues. On January 17, 1969, the Hearing Officer
issued and duly served upon the parties his Report,
in which he recommended that the objections be
sustained.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
Board has delegated its powers in connection with
this case to a three-member panel.
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
Hearing Officer's Report and Recommendation, the
Petitioner's exceptions, and the Employer's brief in
support of the Hearing Officer's Report, and the
entire record in the case,' and hereby adopts the
Hearing Officer's conclusions and recommendation
that the Employer's objection Nos. 2 and 3 be
sustained.
As found by the Hearing Officer under the
particular facts of this case, we find that the
statement of Petitioner's representative that, "the
Board requires a $50,000 profit for the assertion of
jurisdiction in an election case", was erroneous.
Moreover, as the question of the Employer's
financial status was a campaign issue of importance
and as such statement was made to employees on
the eve of the election, the Employer had no
opportunity to answer. The statement was a
misrepresentation of the Board's jurisdictional basis
for conducting the election and came from one
whom the employees would quite naturally accept as
knowledgeable in such matters. It had the obvious
purpose and calculated effect of holding out the
Board's action in holding the election as a refutation
of the Employer's claim of lack of profit and as a
substantiation of the Union's claim to the contrary.
As the record reveals that the Employer had not
made a profit, and as the Employer had no
opportunity effectively to reply to the Union's
misrepresentation of the Board's jurisdictional
standards, we shall set aside the election and direct
that a new election be held.
ORDER
It is hereby ordered that the election conducted
herein on May 15, 1968 , among the employees of
Southwest Latex Corporation, at its Houston,
Texas, plant, be, and it hereby is, set aside.
[Text of Direction of Second Election' omitted
from publication.]
On February 24, 1969, a document entitled Motion for and Petition of
Intervention And Motion to Dismiss and signed by a number of employees
of the Employer was filed with the Board On March 4, 1969, the
Employer filed a statement in support of the employee's motion The
motion is hereby denied In view of our Supplemental Decision and Order
herein, we find that the employees interests in this matter are adequately
served by their right to participate in the election directed herein Cf
Standard Brass Manufacturing Company, 101 NLRB 1032, fn 3
'An election eligibility list, containing the names and addresses of all the
175 NLRB No. 1 1
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eligible voters , must be filed by the Employer with the Regional Director to file this list shall be granted by the Regional Director except in
for Region 23 within 7 days after the date of issuance of the Notice of extraordinary circumstances Failure to comply with this requirement shall
Second Election by the Regional Director The Regional Director shall be grounds for setting aside the election whenever proper objections are
make the list available to all parties to the election No extension of time filed Excelsior Underwear Inc, 156 NLRB 1236