The Glidden Co.

National Labor Relations Board - Board Decisions

Aug 29, 1958

121 N.L.R.B. 752 (N.L.R.B. 1958)

752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to reinstate him, less his net earnings 22 during said period , computing the amount to
be paid by the Respondent in the manner heretofore established by the Board 23
Since the unfair labor practices herein found to have been committed by the
Respondent disclose a willful opposition to the fundamental purposes of the Act and
evidence an intent to interfere generally with the rights of employees which are
guaranteed by the Act, the preventive purposes of the Act will be thwarted unless
the remedial order is coextensive with the threat Therefore, in order to make more
effective the interdependent guarantees of Section 7 of the Act and, to prevent -a re-
currence of unfair labor practices which burden and obstruct commerce, 1 shall
recommend that the Respondent shall cease and desist from infringing in any manner
upon the rights guaranteed in Section 7 of the Act
On the basis of the above findings of fact, - and upon the entire record in the
case, I make the following
CONCLUSIONS OF LAW
1 The Respondent is engaged in commerce within the meaning of Section 2 (6)
and (7) of the Act
2 The Union is a labor organization within the meaning of Section 2 (5) of
the Act
3 By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act
4 By discriminating in regard to the hire and tenure of employment of Carl Bar-
rentine, Wayne Barrenhne, Donald H Pugh, and Donald M Pugh , thereby dis-
couraging membership in a labor organization, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section . 8 (a) (3) and (1)
of the Act
5 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act
[Recommendations omitted from publication ]
re Crossett Lumber Company, 8 NLRB 440, 497, Reptibhc Steel Corporatwon v N L R B,
311 U S 7
23 F W Woorwortlw Company, 90 NLRB 289
The Glidden Company and C. 0 Waters, Petitionerand Industrial
Union of Marine & Shipbuilding Workers of America, AFL-
CIO. and its Local Union 32. Case No 12-RD-13 August 29,
1958
SUPPLEMENTAL DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
Pursuant to a Board Decision and Direction of Election," an
election by secret ballot was conducted on April 17, 1958, under the
direction and supervision of the Regional Director for the Twelfth
Region of the National Labor Relations Board among the employees
in the unit therein, found appropriate Following the election, the
parties were furnished a tally of ballots which showed that of
approximately 94 eligible voters, 41 cast ballots `for the} Union, 48
cast ballots against, and 8 ballots were challenged
On April 24, 1958, the Union filed objections to conduct affecting
the result of the election After investigation, the Regional Director
1 Unpubhsbed
121 NLRB No 87
THE GLIDDEN COMPANY 753
on May 26, 1958, issued his report on objections and challenges in
which he recommended that objections Nos. 1 and 3 be sustained and
that the petition be dismissed on the basis of objection No. 1, or, alter-
natively, that the election be set aside and a new election be directed
on the basis of objection No. 3. He further recommended that objec-
tions Nos. 2 and 4 be overruled and that the challenges to 4 ballots be
sustained. In view of the latter recommendation, he made no recom-
mendation with respect to the other challenges as the remaining four
ballots could not affect the election results. -
No exceptions were filed with respect to the Regional Director's
recommendations that objections Nos. 2 and 4 be overruled and that
4 challenges be sustained. Accordingly, the Board overrules these
objections and sustains the challenges to the ballots of Joseph T.
Battison, Rossey H. Collins, Louis Platt, and John S. Powell. The
Petitioner, however, filed exceptions to report on objections and chal-
lenges, requesting that the Union's objections be overruled in their
entirety?
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers herein to a three-member panel [Chairman
Leedom and Members Rodgers and Fanning].
1. In its first objection, the Union contended that the election should
be set aside in view of the active participation in the election cam-
paign of District 50, United Mine Workers of America, a union not
in compliance with the filing requirements of the Act. The Regional
Director in considering this objection construed it as properly raising
for his investigation and consideration the issue of fronting by the
Petitioner on behalf of District 50. We agree that though the Union
did not specifically raise this issue, objection No. 1 was sufficiently
broad to warrant the Regional Director's investigation of the matter
of "fronting" by the Petitioner. In any event, the jurisdiction of the
Regional Director in making post-election investigations is not lim-
ited to the specific issues raised by the parties.' We do not agree,
-however, that the facts warrant the finding made by the Regional
Director that the Petitioner was acting on behalf of District 50 in
connection with the filing of the petition herein.
In the period preceding the filing of the petition, District 50 at-
tempted to organized the Employer's employees and secured a number
of signed cards. It also apparently answered a number of inquiries
2 We find no merit in the Petitioner 's contention that, as the objections were filed 7,
rather than the proscribed 5, days after the tally of ballots was furnished the parties, they
were untimely under Section 102 69 of the Board's Rules and Regulations . The 7-day
period included a Saturday and Sunday which are not to be counted in determining the
cutoff date for filing objections . Board Rules and Regulations , Series 7, Section 102 91.
Clearly then , the objections were timely filed, and Petitioner 's exception on this point
is overruled.
3 Carter-Lee Lumber Company, 119 NLRB 1374.
487926-59-vol. 121-49
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from employees as to how they might get out of the Union. On Janu-
ary 10, 1958, a group of employees including the Petitioner, directed
a query to the Board concerning decertification of the Union. There-
after, on January 20, the instant petition was filed and a hearing
subsequently held on February 6, 1958. The Board's Decision and
Direction of Election issued on March 27, 1958, and the election held
on April 17.
In his report, the Regional Director states that following the filing
of the petition, representatives of District 50 attended meetings of
Glidden employees which were sponsored by the Petitioner. The only
meeting specifically referred to is that of April 9. At that meeting, a
majority of the employees in attendance voted to join District 50.
Thereafter, District 50 took an active part in the election campaign.
On April 14 it mailed two leaflets to, Glidden employees encouraging
them to vote "No." It also stated in one leaflet that a "No" vote was
in effect a vote for District 50, adding that it would approach the
Employer for recognition after the employees had voted overwhelm-
ingly "No." The leaflets were mailed to the employees and also given
to the Petitioner for distribution. District 50 further prepared a leaf-
let advertising a meeting of employees the night before the election.
These leaflets were given to the Petitioner for distribution. Following
the election, District 50 requested that the Employer recognize it as
the representative of its employees: The Employer refused to do so,
at least;' until the Union's status was finally determined in this pro-
ceeding.
On the basis of the above facts the Regional Director concluded,
as stated above, that the Petitioner was fronting for District 50. How-
ever, the only evidence that even suggests that District 50 played a
part in instituting the present proceeding is the fact that it apparently
told certain employees, upon their request for information, how they
might dispose of the Union 4 There is, however, no evidence showing
that the decertification proceeding was in fact undertaken at the be-
hest of District 50 or that that union participated in any manner
in the employees' request to the Board for decertification information
or in the preparation and filing of the petition. Nor does it appear
that District 50 assisted the Petitioner in the presentation of his case
at the February hearing. Under such circumstances, the vote of some
employees to join District 50 and that union's consequent actions can-
not be held to supply the necessary missing element of District 50's
actual involvement in instituting this proceeding. Therefore, we find
that the Petitioner was not at the time of filing the petition or even
* See, Moore Drop Forgsng Company, 108 NLRB 32 , 33, and Dairy Cooperative Associa-
tion, 118 NLRB 1564 , footnote 2, in which the Board held that supplying decertification
information on employee request was insufficient to show employer participation in the
subsequent filing of a decertification petition by the employees.
THE GLIDDEN COMPANY 755
at the time of the hearing acting on behalf of District 50. Accord-
ingly, there is no basis for concluding that the petition should be dis-
missed on grounds of fronting.
We further find no merit in the Union's contention that the election
should be set aside in view of District 50's participation in the election
campaign. We have before us a valid petition, properly filed. It is
not urged,5 nor do we find, that District 50's campaign activities were
of a kind which the Board has heretofore considered improper.
Under such circumstances, the fact alone that a union which itself
could not have filed the petition allied itself at a date subsequent to
such filing with the Petitioner and actively supported his cause is not
sufficient basis for setting the election aside.6 Neither do we find that
District 50's electioneering created such confusion as to interfere with
the employees free choice in the election? As the Board's notice of
election and the ballot itself clearly showed the employees, the issue
to be resolved by the election was the representative status of the
Union only, not that of District 50. In view of the foregoing, we
find no merit in objection No. 1, and it is overruled.
3. In objection No. 3, which the Regional Director found to have
merit, the Union urges that the election be set aside on the ground
that District 50 had distributed a few days before the election a
marked reproduction of an official sample ballot. The leaflet of which
the Union complains was similar to the right half of a Board notice
of election. At the top, it set forth the voting unit and the time and
place of the election. On the bottom half was the sample ballot which
in outline was similar to an official ballot and which contained an "X"
in the vote "No" square. The upper portion of the ballot which in its
-Official form carries, in part, the words "United States of America,
National Labor Relations Board, Official Secret Ballot" was blank
save for the word "Sample" being printed diagonally across the area.
The middle section of the official Board ballot containing, inter alia,
the purpose of the ballot was deleted. The remaining portion of the
ballot, commencing with the words "Mark an X in the Square of Your
Choice" and containing the voting squares was reproduced in full
except for the final instructions not to sign the ballot and to place it in
the ballot box, which were deleted. These instructions were replaced
by the slogan, "Vote Right-Be Right." In its revised form, the sam-
ple ballot excluded all references to its being "official" and to the
United States, the Board, and Board agents. Such a marked ballot
8 Except for the matter considered below with respect to objection No. 3.
6 Cf. The De Vslbiss Company , 115 NLRB 1164, a decertification proceeding involving
employer preelection campaign propaganda which was critical of the incumbent union and
favorable to the petitioner. The Board held that such employer participation was not
improper even though it is well established that an employer may neither file, nor sponsor
the filing of,, a decertification petition.
Western Electric Company, Incorporated, 87 NLRB 183, 185.
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not, we find, convey the impression of governmental endorsement
of the Petitioner, District 50, or of the petition for decertification of
the Union, and, thus did not fall within the proscription of Allied
Electric Products, Inc." Accordingly, we find, contrary to the Re-
gional Director, that objection No. 3 is without merit, and it is hereby
overruled.
In view of the foregoing, we grant the Petitioner's request and over-
rule the Union's objections in their entirety.
As the remaining unresolved four challenged ballots cannot affect
the results of the election, we need not consider the merits of those
challenges. Consequently, as we have overruled the objections and as
the Union failed to receive a majority of the valid ballots cast, we
shall certify the results of the election.
[The Board certified that Industrial Union of Marine & Shipbuild-
ing Workers of America, AFL-CIO, and its Local Union 32 was not
selected by a majority of employees in the appropriate unit.]
8 109 NLRB 1270 ; ef. Strafford Furniture Corporation , et al., 116 NLRB 1721, adopt-
ing the finding and recommendation of the Regional Director set forth at page 1723.
Crane Carrier Corporation and Local 790, International Associa-
tion of Machinists , AFL-CIO, Petitioner. Case No. 16-RC-
2266. August 29, 1958
SUPPLEMENTAL DECISION AND DIRECTION
Pursuant to a Decision and Direction of Election dated March 24,
1958,' an election by secret ballot was conducted on April 17, 1958, by
the Regional Director for the Sixteenth Region among the employees
in the unit found appropriate by the Board. Following the,election,
a tally of ballots was furnished the parties which shows that of 86
ballots cast, 42 were for the Petitioner, 42 were against the Petitioner,
and 2 were challenged. On April 24,1958, the Petitioner filed timely
objections to conduct affecting the results of the election.
In accordance with the Board's Rules and Regulations, the Regional
Director conducted an investigation of the challenges and objections,
and on May 26, 1958, issued his report on challenged ballots and ob-
jections, recommending that one of the objections be sustained and
that the challenges to the ballots of Raymond Campbell and Birt Gray
be overruled. The Employer thereafter filed timely exceptions to the
Regional Director's recommendations concerning the one objection
and the challenge to Gray's ballot.
1 Unpublished.
121 NLRB No. 89.