Wallace & Tiernan, Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1955

112 N.L.R.B. 1352 (N.L.R.B. 1955)

1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We shall also exclude, in accordance with the stipulation of the parties,
the office maid and the office porter.3
(b) All packaging department employees and all receiving, ship-
ping , and warehousing department employees at the Employer's'
Cullen Boulevard packaging plant in Houston, Texas, including the
truckdriver, but excluding office clerical employees, guards, packaging
department supervisors, receiving, shipping, and warehousing super-
visors, and all other supervisors as defined in the Act.
[Text of Direction of Elections omitted from publication:]
S Members Murdock and Rodgers would include the office maid and the office janitor in
the unit for , in their opinion , the duties of these employees align them with the produc-
tion and maintenance employees and their exclusion from the unit will operate to deny
them the right to bargain collectively . Moreover , their exclusion is contrary to Board
precedent . See, for example, Grand River Chemical Division of Deere & Company, 111
NLRB 770.
Wallace & Tiernan, Incorporated and United Steelworkers of
America, CIO , Petitioner . Case No. 2-RC-7378. June 24, 1955
DECISION, ORDER, AND DIRECTION OF SECOND
ELECTION
Pursuant to a stipulation for certification upon consent election, an
election by secret ballot was conducted under the direction and super-
vision of the Regional Director for the Second Region on April 12,
1955, among certain employees of the Employer. At the conclusion
of the election, a tally of ballots was furnished to the parties, pursuant
to the Board's Rules and Regulations. The tally showed that, of 833
votes cast in the election , 315 were cast for the Petitioner, 341 were
cast for the Intervenor, Independent Employees' Union of Northern
New Jersey, 13 were cast against the participating labor organizations,
4 ballots were void, and 3 ballots were challenged.
On April 14, 1955, the Petitioner filed timely objections to conduct
affecting the results of the election. The Regional Director investi-
gated the objections and on April 29, 1955, served upon the parties
a report on objections, in which he recommended that objection 1 of
the Petitioner be sustained, that objection 2 be overruled, that the
results of the election held on April 12, 1955, be set aside and that
another election be conducted. The Intervenor has timely filed its
exceptions to the Regional Director's report.
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 organizations involved claim to represent certain em-
ployees of the Employer.
112 NLRB No. 163.
WALLACE & TIERNAN, INCORPORATED 1353
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. As stipulated by the parties, the following employees of the Em-
ployer constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 2 (6) and (7) of the Act.
All production and maintenance employees of Wallace & Tiernan,
Incorporated, including electricians, repairmen, garage employees,
truckdrivers, leadmen, inspectors, factory clerks, porters, and ma-
trons, located at the main plant, Belleville, New Jersey, and at plants
at 313 Cortlandt St., Belleville, New Jersey, 240 High St., Newark,
New Jersey, and Hanover Road and Cedar Ave., Cedar Knolls (Mor-
ristown), New Jersey, excluding foremen, assistant foremen, office
employees, office clerical employees, salesmen, draftsmen, technical
employees, tune- and motion-study employees, restaurant employees,
calibrating department employees, guards, messengers, runners, part-
time employees, students, temporary employees, professional em-
ployees, and supervisors as defined in the Act.
Objections to the Conduct Affecting the Results of the Election
In substance, the Petitioner's objections allege that (1) during the
period preceding the election the Intervenor circulated a document
among the employees which purported to be a sample copy of the
Board's official ballot, but which had been altered by placing an "X"
thereon in favor of the Intervenor, and (2) the Employer and Inter-
venor engaged in conduct designed to, and which actually did, intimi-
date and coerce the employees in their selection of a bargaining
representative.
The Regional Director overruled the second objection of the Peti-
tioner as no evidence was submitted in support thereof. With respect
to the first objection, the Regional Director found that on or about
March 8, 1955, about a month before the election, the Intervenor
mailed to all employees in the appropriate unit a letter urging the
employees to vote for the Intervenor, to which was attached a ballot
identical in form with the official Board sample ballot, except that it
was somewhat larger than the Board ballot, was printed on yellow
instead of white paper, and there was some difference in the place-
ment and lettering of the word "sample" on the ballot distributed by
the Intervenor as compared with the Board's sample ballot. The
Intervenor had placed an "X" in the space beneath its name. Relying
on the rule of the Allied Electric case,' the Regional Director sus
I A!Oed Electric Products. Inc, 109 NLRB 1270
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tained the Petitioner's first objection to the election and recommended
that the election be set aside.
The Intervenor excepts to this recommendation, contending that, in
distributing the sample ballot, it did not intend to misuse the Board's
processes or obtain any partisan advantage, that its ballot differed
from the official ballot in color, type, size, and placement of the word
"sample," that its ballot was accompanied by propaganda material,
unlike the situation in Allied Electric case, where the ballot was un-
accompanied by any other explanatory matter, and that the instant
case is further distinguishable from Allied Electric on the ground
that here there were two unions involved.
In the Allied Electric case, the Board held, in effect, that, upon
objection validly filed, it would set aside an election where the success-
ful party had before the election circulated among those eligible to
vote a document purporting to be a copy of the Board's official ballot,
but which had been altered by placing a cross in one of the boxes.
The Board there said:
The reproduction of a document that purports to be a copy of the
Board's official secret ballot, but which in fact is altered for cam-
paign purposes, necessarily, at the very least, must tend to suggest
that the material appearing thereon bears this Agency's stamp of
approval.
Under this rule it is immaterial that the Intervenor, as it contends,
had no improper purpose in distributing the altered ballot, as it is
the probable effect of its conduct which is controlling. Nor, in our
opinion, do any of the other circumstances relied upon by the Inter-
venor suffice to neutralize the misleading effect of the altered ballot
or justify its use in this case.2
Accordingly, we find, like the Regional Director that by circulating
the marked ballot the Intervenor interfered with the employees' free-
dom of choice in the election, and we shall direct that the election be
set aside and a new election held.
[The Board set aside the election held on April 12, 1955.]
[Text of Direction of Second Election omitted from publication.]
MEMBER LEEDO31 took no part in the consideration of the above
Decision, Order, and Direction of Second Election.
2 See Bachmann Uxbridge Worsted Corporation ( Uxbridge Mill), 110 NLRB 1195, where
the Board set aside the election because of the employer's distribution of marked ballots,
even though the ballots , as here, were accompanied by campaign material see also
Superior Knitting Corporation and Alto Manufacturing Corporation , 112 NLRB 984.