United States Gypsum Co.

National Labor Relations Board - Board Decisions

Jan 26, 1951

92 N.L.R.B. 1661 (N.L.R.B. 1951)

In the Matter of UNITED STATES GYPSUM COMPANY, EMPLOYER and
INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICUL-
TURAL IMPLEMENT WORKERS OF AMERICA, CIO, PETITIONER
Case No. 2-RC-f2096
:SUPPLEMENTAL DECISION AND CERTIFICATION OF
REPRESENTATIVES
January 26, 1951
On October 17 and 18, 1950, pursuant to a Decision and Direction
,of Election issued herein by the Board,' an election by secret ballot
:among the employees of the Employer at its Clark Township, New
.Jersey, plant, in the unit found appropriate, was conducted under the
direction and supervision of the Regional Director of the Second
Region. Upon conclusion of the balloting a tally of ballots was issued
and served upon the parties herein in accordance with the Rules and
Regulations of the Board. The tally shows that of approximately
123 eligible voters, 75 cast valid ballots in favor of the Petitioner, and
46 against. Two ballots were challenged.
On October 25, 1950, the Employer filed objections to the, conduct
of the election and to conduct affecting the results of the election,
moving that the election be set aside. After an investigation the
Regional Director issued a report on objections finding all the objec-
tions without merit and recommending that they be overruled. There-
after, the Employer filed exceptions to the Regional Director's report.
We have considered the Employer's objections, the Regional Di-
rector's report thereon, and the Employer's exceptions to the report.
In support of its objections and exceptions, the Employer alleges,
in substance, the following :
1. Den Bleyker, one of the union observers, came into the polling
place to vote while he was not-on duty as an observer. He announced
in a loud voice, "I'm here," cast his vote, and as he was walking out of
the polling place shouted, "Let's go," so that all employees in the
.general area could hear. Immediately after he had shouted, "Let's
go," several employees came into the polling place to vote. The com••
' 91 NLRB 404.
92 NLRB No. 253.
1661
1662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany observer protested his behavior at the time. We agree with the
Regional Director's conclusion that this conduct, even if it should be
construed as electioneering, which we doubt, was not of sufficient
import to have affected the result of the election. The Employer's
exception is overruled.
2. A. Rosenski, an elegible employee, cast his 'ballot and left the
polling place. A few minutes later he again entered together with
five eligible employees who had not yet voted. The Board agent at
once asked Rosenski whether he had voted. Upon Rosenski's answer-
ing, "Yes," the Board agent told him that he could not remain in the
polling place. The Employer asserts that Rosenski then left the
polling place, but entered an adjacent lavatory from which the Em-
ployer's observer heard him saying in a loud voice : "All you boys
know how to vote." The Employer's observer reported this incident to
the Board agent, who "went to the door and looked out but said
nothing." 2
The Employer also asserted as part of this objection, but did not
reiterate in its exceptions, that 5 minutes after this incident the Em-
ployer's observer complained to. the Board agent that several employees:
were loitering and talking just outside the polling place. The Re-
gional Director's report recites that the Board agent immediately went
to the door, explained to the men that they should not remain there
but should move on immediately. A few minutes later some of them
returned and. were immediately dispersed by the Board agent.
The Regional Director concluded that the Board agent was alert to,
prevent •electioneering and that, assuming that the "all, you boys,
know how to vote" incident occurred exactly as the Employer
alleged,3 it did not constitute electioneering. While we believe that
Rosenski's remark could reasonably be interpreted as electioneering
or at least an attempt to electioneer, we find that his action did not
constitute improper conduct of such character as to have affected a.
free choice in the election.
3. During the tally of ballots some discussion arose between the
Employer's representatives and the Board agent. The Employer
urges as to an objection that the Board agent during this discussion
2 The Regional Director in his report stated that the Board agent explained in an affidavit
that although he had not himself heard the remark complained of, he went to the door in
response to the Employer 's observer ' s complaint , and seeing nobody in the area reentered
the room where voting was in progress.
a The Employer as part of its exceptions points out that , although the Regional Direc-
tor's report recites that during his investigation of the objections all parties were afforded
an opportunity to submit evidence bearing on the issues , the Employer was not in fact
notified of the investigation or advised of any opportunity to submit evidence. This
objection is immaterial , as all the Regional Director 's conclusions and recommendations
on objections are based on the assumption that all factual matters alleged as objections
did indeed take place as alleged by the Employer.
UNITED STATES GYPSUM COMPANY 1663
said, "You have a good objection on one, I grant you." The Board
agent's expression of opinion is immaterial and in no way establishes
the existence of a valid objection.
In further support of this objection the Employer alleges that the
list of eligible voters used at the election contained 126 names, of
which 4 were stricken as those of persons whose employment had been
terminated before the date of the election, leaving 122 listed as eligible
to vote, instead of 123 as stated in the tally. The vote of 1 of the
employees on the eligible list was challenged 4 Thus, it alleges, the
number of ballots counted as for or against the Petitioner, plus the "1
challenged ballot, or a total of 122, indicated that every eligible
employee voted. The Employer further submits affidavits indicating
that 2 of the eligible voters nevertheless did not in fact participate in
the election. Assuming, however, that 2 invalid ballots might have
been counted in the tally, this could not have affected the results of
this election. There is no other evidence of irregularity or of failure
to exercise due care in the conduct of the election and counting of the
ballots.5 We do not deem the slight discrepancy alleged by the
Employer a sufficient reason for setting aside the election.
As the tally shows that a majority of the valid votes have been
cast for the Petitioner, we shall certify the Petitioner as the collective
bargaining representative of the employees in the appropriate unit.
CERTIFICATION OF REPRESENTATIVES
IT IS HEREBY CERTIFIED that International Union, United Automo
bile, Aircraft & Agricultural Implement Workers of America, CIO,
has been designated and selected by a majority of the employees . of
United States Gypsum Company, Clark Township, New Jersey, plant,.
in the unit found to be appropriate, as their representative for the
purpose of collective bargaining and that, pursuant to Section 9 (a)
of the Act, as amended, the said organization is the exclusive repre-
sentative of all the employees in such unit for the purpose of collective
bargaining with respect to rates of pay, wages, hours of employment,,
and other conditions of employment.
MEMBERS MURDOCK and STYLES took no part in the consideration of
the above Supplemental Decision and Certification of Representatives.-
4 The Employer states that the other one of the two challenged ballots shown on the-
tally is that of an employee who did not appear on the eligibility list.
e Cf. Clark Shoe Company, 83 NLRB 782, wherein the Board deemed evidence com-
paring the number of ballots with the number of persons shown to have voted pertinent..
in the light of other evidence offered to show irregularity in the conduct of the election..