The Kilgore Manufacturing Co.

National Labor Relations Board - Board Decisions

Nov 9, 1942

45 N.L.R.B. 468 (N.L.R.B. 1942)

In the Matter of THE KILGORE MANUFACTURING ColhPANY and
UNITED MINE WORKERS, DISTRICT 50, LOCAL NO. 12461
Case No. R-41248.-Decided November 9, 1914
Investigation and Certification of Representatives : election conducted pursuant
to stipulation for certification upon consent election, set aside in view of
violation of election rule
Stanley and Smoyer, by Mr. Harry E: Smoyer, of Cleveland, Ohio,
for the Company.
Mr. Stanley Denlinger, of Akron, Ohio, for the Union.
Mr. Seymoi&r Spelman, of counsel to the Board.
DECISION
ORDER
AND
DIRECTION OF ELECTION
STATEDIENT OF THE CA SE
Upon petition duly filed by United Mine Workers, District 50, Local
No. 12461, herein called the Union, alleging that a question affecting
commerce had arisen concerning the representation of employees of
The Kilgore Manufacturing Company, Westerville, Ohio, engaged
in the manufacture of war materials at a plant in Westerville, Ohio,
the National Labor Relations Board provided for an appropriate
hearing upon due notice. On July 10, 1942, before a hearing was
held, the Company, the Union, and the Regional Director for the
Ninth Region (Cincinnati, Ohio), entered into a "STIPULATION FOR
CERTIFICATION OF REPRESENTATIVES UPON CONSENT ELECTION."
Pursuant to the stipulation an election by secret ballot was con-
ducted on July 22, 1942, under the direction and supervision of the
Regional Director among all production and maintenance employees
of the Company, except foreman, assistant foreman, plant guards,
salesmen, office and clerical employees, and all others having the right
to hire or discharge, to determine whether or not they desired to be
represented by the Union for the purposes of collective bargaining.
45 N. L. R B, No. 69.
468
THE KILGO'RE MANUFACTURING COMPANY 469
On July 24, 1942, 'the Regional Director issued and duly served.upon-
the parties an Election Report on the ballot.
As to the balloting and its results, the Regional Director reported
as follows:
Total on eligibilty list-------------------------------------- 560
Total ballots cast------------------------------------------ 527
Total ballots challenged---------------------------- --------------- -14
Total blank ballotis----------------------------- _---------- 4
Total void ballots------------------------------------------ 2
Total valid votes counted----------------------------------- 507
Votes cast for United Mine Workers, District 50, Local No.
12461----------------------------------------------------- 286
Votes cast 'against United Mine Workers, District 50, Local
No. 12461-------------------------------------------------- 221
Objections to the conduct of the election were thereafter filed season-
ably by the Company, which claimed that there had been improper
electioneering on the part of the Union and that the results of the
election should be voided. Pursuant to notice, a hearing on the objec-
tions was held before Philip G. Phillips, Regional Director. The
Company and the Union appeared and participated.
On September 1, 1942, the Regional, Director issued a Report on
Objections, copies of which were served on the parties, in which he
recommended that the election be voided and a new election ordered.
On September 8, the • Union filed with the Board a Memorandum of
Objections to the Regional Director's Report.
Pursuant to a stipulation of the parties,, the Board has reviewed
the entire record, including the evidence adduced at the hearing before
the Regional Director, the objections, the Regional Director's Report
on Objections, and the Union's Memorandum of Objections.
Upon the basis of the stipulations and the entire record in the case,
the Board makes the following:,
FINDINGS OF FACT
On the day of the election one Blackburn, business agent of the
Union, stationed himself along the line of march of the voters imme-
diately outside of the polling place. An agent of the Board requested
Blackburn to leave, telling him that the usual rule in force in Ohio,
namely, that there should be no electioneering within 200 feet of the
polls, was to be observed. Blackburn left the scene but subsequently
'On September 25, 1942, piior to this stipulation, the Board issued an order, copies
of which were served on the parties, diecting that a hearing on the objections to the
election be held before a Trial Examiner Thee eafter, the parties agreed that a hearing
before a Tiial Examiner was unnecessary and that the Board, on the basis of the record
of the hearing before the Regional Director , could rendei a decision On October 9,
the Company filed a motion to vacate the order The motion is granted and the order
of September 25, directing a heaiing on objections , is hereby vacated.
470 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
returned and seated himself in his automobile within 200 feet of the
polls and directly adjacent to the line formed by the voters going to
the polls. • While he remained there about half of the voters passed
him. Blackburn admitted that lie sat in his car and, as the voters :
passed, waved to those he knew. He was asked to move again by the
Board agent and after some argument, did so.
That Blackburn's conduct constituted a violation of the election rules
is not disputed by the Union. The stipulation under which the elec-
tion was conducted provided that the election should be subject to
reasonable rules and regulations prescribed by the Regional Director.
One of such rules, plainly stated in the Notice of Election, copies of
which were posted in conspicuous places in and about the polls at least
3 days prior to the election, provided -that "Voters will be allowed
to vote without interference, restraint, or coercion. Electioneering
will not be permitted at or near the polling place." Moreover, on the
first occasion when Blackburn made his appearance within the pro-
scribed area, an agent of the Board informed him that his presence
there was in violation of -the, election, rules and ordered him to leave.
Blackburn left, but returned and; remained within the proscribed area'
for a substantial length of time.
The Union, while admitting that its agent's conduct violated the
express provisions of the election rules, contends that the election
should not be vitiated in the absence of a showing of fraud or such
actual restraint or interference as would influence the results of the
election. , We find no merit in this contention. We believe that the
purposes of the Act will best be effectuated by a strict enforcement of
elections rules and an equally strict observance of them by the repre-
sentatives of the interested parties. To require, in each case, a nice,
measurement of the actual coercive or intimidatory effort of mis-
conduct on the results of the election,. would place an undue burden
on the objecting party and the Board. It is sufficient that, as in the
instant case, the evidence reveals- a wilful violation of a material and
salutary election rule.
We therefore shall set the election aside and shall direct that a
new election be held. In the event that the Union does not desire
a new election, we will entertain its motion to withdraw the petition.
ORDER AND DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National-
Labor Relations Board by Section 9 (c) of the National Labor Re-
lations Act and pursuant to Article III, Sections 9 and 10, of
National Labor Relations Board Rules and Regulations-Series 2, as
amended, it ' is hereby
THE KILGORE MANUFACTURING COMPANY 471
ORDERED that the election of July 22, 1942, conducted among the
employees of The Kilgore Manufacturing Company, Westerville,
Ohio, be and it hereby is set aside; and it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with, The Kilgore
Manufacturing Company, Westerville, Ohio, an election by secret
ballot shall be conducted as early as possible, but not -later than
thirty (30) days from the date of this Direction of Election, under
the direction and supervision of the Regional Director, for the Ninth
Region,' acting in this matter as agent for the National Labor Re-
lations Board, and:subject to Article III, Section 10, of said Rules
and Regulations,' among all production and maintenance employees
of the Company, excluding foremen, assistant foremen, plant guards,
salesmen, office and clerical employees, and all others having the
right to hire and discharge, who were employed during'the ,pay-roll
period immediately preceding the date of this Direction, including
employees who did not work during said pay-roll period because
they were ill or on vacation or in the active military. service or train-
ing of the. United States, or temporarily laid off, but excluding any
who have since quit or been discharged for cause to determine whether
or not they desire to be represented by United Mine Workers, District
50, Local No. 12461, for the purposes of collective bargaining. _