Tidelands Marine Services, Inc.

National Labor Relations Board - Board Decisions

Oct 1, 1956

116 N.L.R.B. 1222 (N.L.R.B. 1956)

1222 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD
designer and engineer, and that he should not then be spending his
time making speeches and writing letters to combat a union; that if
the Union got in, he could not operate under their demands and that
if the Union were voted in, the shop would be there, but that he
would not. He also stated that in recent years, no bonus was possible
because the Company could show no profits, but that he had designed
a new product (a toy horse) which had great possibilities, and that
if this product is successful, it might be possible to pay each employee
a' bonus of $500, a sum of money which it would take 3 years for a
workingman to save.
In these circumstances, we find that Rempel made it clear to the
employees that the future success of his Company was dependent solely
on his active and personal promotion of the new product and that con-
sequently his threat to leave the Company reasonably was calculated, to
engender a fear among the employees that if the employees voted
for the Union, the Company would either discontinue its business or
operate at a loss with a resultant loss of anticipated bonus payments
to its employees.
Accordingly, we find, contrary to the Regional Director, that the
extemporaneous remarks made by the Employer's president interfered
with the employees' freedom of choice in the-election a We shall there-
fore order that the election be set aside and direct that a new election
be held.
[The Board set aside the election held on May 15,1956.]
[Text of Direction of Second Election omitted from publication.]
MEMBER RODGERS took no part in the consideration of the above
Decision, Order, and Direction of Second Election.
9 See Gardner Machine Company , 106 NLRB 197, 199; Precision Sheet Metal, Inc,
115 NLRB 949.
Tidelands Marine Services , Inc. and National Maritime Union of
America, AFL-CIO, Petitioner and Seafarers' International
Union, Atlantic & Gulf District , affiliated with Seafarers' Inter-
national Union, AFL-CIO. Case No. 15-RC-1323. October 1,
1956
SUPPLEMENTAL DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
Pursuant to the Board's Decision and Direction of Election in the
above-entitled proceeding,' an election by secret ballot was conducted
i Issued March 14, 1956, amended on April 6, 1956 , and further amended April 10,
1956, not reported in printed volumes of Board Decisions and Orders.
116 NLRB No. 162.
TIDELANDS MARINE SERVICES, INC. 1223
under the direction and supervision of the Regional Director for the
Fifteenth Region on April 17, 18, 20, and 21, 1956, among certain em-
ployees of the Employer in the unit heretofore found appropriate.
Upon the conclusion of the election, a tally of ballots was furnished
the parties. The tally shows that of the approximately 132 eligible
voters, 126 cast ballots, of which 7 were for the Petitioner, 53 were
for the Intervenor, 50 were cast for no union, and 16 ballots were
challenged.
• On April 27, the Employer and the Intervenor filed timely objec-
tions to conduct of the election and to conduct affecting the results of
the election. In accordance with the Rules and Regulations of the
Board, the Regional Director conducted an investigation and, on June
29, 1956, issued and duly served upon the parties his report on objec-
tions, in which he found that the mutual objections of the Employer
and the Intervenor numbered 2 and 14, respectively, insofar as said
objections are based on the failure of the election examiner to seal
the ballot box on April 17 raised an issue materially affecting the con-
duct of the election and recommended that the objection be sustained
and the election set aside. The Regional Director has not conducted
an investigation concerning the challenged ballots and the remaining
objections pertaining to alleged instances of interference with the em-
ployees' free choice of the exclusive bargaining representative since
in his opinion the above-described conduct of the election examiner
constituted sufficient basis for setting the election aside. The Em-
ployer has filed timely exceptions to the Regional Director's report.
The Intervenor filed no exceptions.
Objections Nos. 2 and 14
The Regional Director found with respect to the Employer's objec-
tion No. 2 and Intervenor's objection No. 14 that on April 17 after the
polls were closed, the election examiner through oversight, did not seal
or place a tape across the slot of the ballot box, which was a canvas bag
customarily used as a ballot box. He folded the ballot box, placed it
in his brief case and thereafter kept it in his custody until April 18,
when he removed it from his brief case for use when voting resumed.
On April 17 the election examiner was transported from Grand Isle
to New Orleans, Louisiana, by the election observer of the Petitioner
and one of the Petitioner's representatives. On April 18 he was trans-
ported from New Orleans to Venice, Louisiana, by the election ob-
server of the Employer and one of the Employer's representatives.
On each occasion, the election examiner had his brief case, in which
the unsealed ballot box was contained, in his possession.
The Regional Director found that although there is no evidence to
indicate that the ballot box was tampered with while in the custody
of the election examiner, nevertheless, the ballot box should have been
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sealed on April 17 "to avoid even an appearance that anyone might
have access to- the ' ballots during the time the ballot box -was away
from the-polling place." The Regional Director accordingly recom-
mended that the election be set aside. The Employer ,excepts to 'the
Regional Director's report on two grounds (a) that the facts set forth
therein^relating• the failure of the election 'examiner to seal the ballot
box are insufficient to serve as a basis for setting the election aside,
and (2) that the Regional Director "failed to investigate and report
on the challenged ballots and the objections to the election filed by
the parties hereto other than the objection relating to the failure to
seal the ballot box." The Intervenor did not except to the Regional
Director's report on any ground.
Exception No. 1: In agreement with the,Regional Director, we
find that the failure of the election examiner to seal the ballot box
on April 17 and retaining the same in his possession while away from
the voting place and while being transported either by the Employer
or the, Intervenor tinder the conditions permitting access to the ballot
box by their representatives constitutes such a serious irregularity in
the conduct of the election as to raise doubts as to its integrity and
secrecy. It is true that neither the Employer nor the Intervenor ques-
tions the personal integrity of the election examiner, yet both of them
objected to the election on the ground that the ballot box had not been
sealed .2
The Employer also stressed the point that while the election exam-
iner was being transported in the Intervenor 's car "The [Intervenor's]
organizers and representatives could have had access to the said Ballot
Box without the knowledge and consent of the Board Agent." As the
Intervenor failed to except to the Regional Director's recommenda-
tion to set aside the election on this ground, it may be presumed that
it still regards the irregularity serious enough to warrant setting aside
the election. Under these circumstances , in order to preserve the in-
tegrity and secrecy of the election, we shall set the election aside.'
Exception No: 2: Nor do we find any merit in the Employer's ex-
ception that because the Regional Director failed to investigate and
report on the other objections to the election, the matter should be
remanded to the Regional Director for further investigation. In its
other objection to the election the Employer contends that the Inter-'
venor interfered with the election by promising employees to issue
them free membership in the Intervenor if they voted for the Inter-
venor. The Intervenor's other objections to the election are based
on the alleged interference with the election by the Employer. Since
2 The fact that the Employer since the filing of the exceptions has changed its position
and does not now consider this irregularity to be a ground for setting aside the election
is of no importance . The Board will set an election aside, regardless of the change in
the position by the objecting party whenever the integrity of its own processes. is involved.
s International Freighting Corp., 6 NLRB 271 and other cases cited in the Employer's
brief are not in point as involving different factual situations.
PLANKINTON PACKING COMPANY 1225
both the Employer and the Intervenor urge that the election be set
aside for the reason relied on by the Regional Director and as the
Board has adopted the Regional Director's recommendation in this
respect we can conceive of no useful purpose to be served by ruling
on the other objections.
[The Board set aside the election held on April 17, 18, 20, and 21.]
[Text of Direction of Second Election omitted from publication.]
MEMBER MURDOCK took no part in the consideration of the above
Supplemental Decision, Order, and Direction of Second Election.
Plankinton Packing Company (Division of Swift & Co.) and
Office Employees International Union , Local No . 9, AFL-CIO,
Petitioner. Case No. 13-RC-4897. October 2, 1956
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Frances P. Dom, hearing
officer.' The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. Questions affecting commerce exist concerning the representation
of employees of the Employer within the meaning of Section 9 (c) (1)
and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks a single unit of office clerical, plant clerical,
and technical employees or, in the alternative, three separate units of
such employees at the Employer's meat-processing plant at Milwaukee,
Wisconsin. The Employer moves for dismissal of the petition on the
grounds, in substance, (1) that the primary unit sought by the Peti-
tioner is inappropriate in that it would combine office clerical, plant
clerical, and technical employees in a single unit, and (2) that all
the requested units are inappropriate in that they would include con-
fidential and managerial employees and supervisors. As to (1), for
reasons set forth below, we do not find appropriate a single unit of
office clerical, plant clerical, and technical employees. As to (2), the
fact that a petitioner seeks to represent categories which may not
1 At the close of the hearing , the Petitioner moved, without objection , to amend its
unit request . The motion is hereby granted.
116 NLRB No. 160.