The Wilmington Casting Co.

National Labor Relations Board - Board Decisions

Dec 23, 1954

110 N.L.R.B. 2114 (N.L.R.B. 1954)

2114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intended to apply in a situation wherein the objecting party has "un-
clean hands." Assuming that the Petitioner and Independent also
distributed altered copies of the Board's official ballot, although the
Regional Director found to the contrary, we find, for the reasons set
forth in The Wilmington Casting Company case.' that interference
by one party does not neutralize the interference by another party.
Accordingly, we find, in agreement with the Regional Director, that
by circulating the marked ballots on the day of and before the elec-
tion, the AFL interfered with the employees' free choice in the elec-
tion, and we shall, therefore, direct that the election be set aside and
a new election ordered.
[The Board set aside the election held on November 4, 1954.]
[Text of Second Direction of Election omitted from publication.]
5110 NLRB 2114
THE WILMINGTON CASTING COMPANY and INTERNATIONAL UNION,
UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORK-
ERS OF AMERICA (UAW-CIO), PETITIONER. Case No. 9-RC-2101.
December 23, 1954
Supplemental Decision , Order, and Second Direction of Election
Pursuant to a Decision and Direction of Election issued herein on
January 18, 1954,1 an election by secret ballot was conducted on Febru-
ary 5, 1954, under the direction and supervision of the Regional
Director for the Ninth Region, among the employees in the unit found
appropriate by the Board. Following the election, a tally of bal-
lots was furnished to the parties. The tally showed that 47 ballots
were cast for, and 52 against, the Petitioner.
On February 10, 1954, the Petitioner filed timely objections to
conduct affecting the results of the election. The Regional Director
investigated the objections and on May 5, 1954, duly served upon the
parties a report on objections in which he found merit in certain of
the objections and recommended that the election be set aside. The
Employer filed timely exceptions to this report.
After having duly considered the matter, the Board, on June 8, 1954,
issued an order directing a hearing on all factual issues raised by the
objections and exceptions. Pursuant to that order, a hearing was held
on July 20, 21, and 22, before Caroll L. Martin, hearing officer. The
hearing officer's rulings made at the hearing are free from prejudicial
error and are hereby affirmed.
On October 1, 1954, the hearing officer issued his report on objec-
tions to election and exceptions, recommending that the election be set
i Not reported in printed volumes of Board Decisions and Orders.
110 NLRB No 266.
THE WILMINGTON CASTING COMPANY 2115
aside on the ground, inter alia, that, as found by the hearing officer, the
Employer, a few days before the election, mailed to the employees
documents purporting to be copies of the Board's official ballot but
containing an "X" in the "NO" box.
In Allied Electric Products, Inc.,' the Board, modifying its previous
practice,' announced that it would, upon objection validly filed, set
aside an election where the winning party had circulated a document
purporting to be a copy of the Board's official ballot which was altered
in form or content. Subsequently, in Tube Reducing Corporation,'
applying this rule to an election antedating the decision in the Allied
Electric case, the Board set aside the election because, as in the instant
case, one of the parties had circulated purported copies of the Board's
official ballot containing an "X" in one of the boxes.
In its exceptions to the hearing officer's report, the Employer con-
tends that the rule of the Allied Electric case should not be applied
to the instant election, as it was held before that rule was announced.
We find no merit in this contention.' The rule is remedial, not
punitive. The only effect of the retroactive application of the rule
will be to permit the holding of a new election in an atmosphere
more conducive to freedom of choice.
The Employer contends further that since, as the hearing officer
found, the Petitioner circulated copies of official ballots before the
election, containing an "X" in the "YES" box, any improper effect of
the Employer's conduct was thereby neutralized. However, as we
have frequently held, interference with an election by one party does
not license interference by the other." It is impossible for the Board
to gauge with mathematical precision the extent to which improper
pressures on the employees by one party have been offset by improper
pressures by the other party. It would be unrealistic to assume that
where, as here, the opposing pressures consist of the same kind of mis-
conduct, they have canceled each other out and the employees' freedom
of choice has been left unimpaired.
Accordingly, we find, in agreement with the hearing officer, that, by
circulating the marked ballots on February 1 and 2, 1954, the Em-
ployer interfered with the employees' free choice in the election, and
we shall direct that the election be set aside and a new election held.7
[The Board set aside the election held on February 5, 1954.]
[Text of Second Direction of Election omitted from publication.]
2109 NLRB 1270.
8 See Bridgeport Castings Company, 109 NLRB 749.
'110 NLRB 1080
15 Tube Reducing Corporation, supra.
U United Aircraft Corporation, 103 NLRB 102, 106 ; Caroline Poultry Farms, Inc., 104
NLRB 255, 256.
T In view of our agreement with the hearing officer on the issue of the marked ballots,
we do not deem it necessary to consider the other reasons advanced by the hearing officer
for recommending that the election be set aside.