Westinghouse Electric Corp.

National Labor Relations Board - Board Decisions

Feb 28, 1958

119 N.L.R.B. 1858 (N.L.R.B. 1958)

1858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We believe that the Petitioner's newsletter, when read as a whole,
makes it abundantly clear that the Petitioner was seeking to exhort
employees who might favor the Petitioner to register a vote for that
union, rather than to dissuade employees Who were not sympathetic
to the Petitioner to stay away from the polls. The letter urges all
employees to "BE SURE TO VOTE," painstakingly apprises all
employees of the places and times set for voting, and urges that the
employees cast their votes for the Petitioner. In our opinion, the
statement that "NOT VOTING IS THE SAME AS VOTING NO"
was a caution to employees affirmatively to register a choice and was
not calculated to and could not reasonably be interpreted as an at-
tempt to dissuade antiunion employees from voting. In any event,
Petitioner's subsequent letter addressed to the employees clearly spelled
out to the employees the true facts concerning the conduct of the
election and thereby corrected any alleged mistatements in the original
newsletter. Accordingly, we find no merit in the Employer's con-
tention that the statement interfered with the election and that the
election should be set aside. We therefore adopt the Regional
Director's recommendation that the Employer's exceptions be over-
ruled and that the Petitioner be certified.
[The Board certified Retail Clerks International Association,
Local No. 1441, AFL-CIO, as the designated collective-bargaining
representative of the employees of Marsh Foodliners, Incorporated
(Yorktown, Indiana) in the unit found appropriate.]
Westinghouse Electric Corporation and International Union of
Electrical , Radio and Machine Workers, IUE-AFL-CIO, Local
130, Petitioner. Cases Nos. 5-RC-1670 and 5-RC-2143. February
28, 1958
SUPPLEMENTAL DECISION AND CERTIFICATION OF
REPRESENTATIVES
Pursuant to a Decision and Direction of Election issued by the
Board on October 8, 1957,1 and amended on October 30, 1957, an elec-
tion by secret ballot was conducted on November 7, 1957, under the
direction and supervision of the Regional Director for the Fifth
Region of the National Labor Relations Board among the employees
in the unit found appropriate by the Board. Following the election,
the parties were furnished with a tally of ballots which shows that
of approximately 520 eligible voters, 236 cast ballots for International
Union of Electrical, Radio and Machine Workers, IUE-AFL-CIO,
1 Not reported in printed volumes of Board Decisions and Orders.
119 NLRB No. 235.
WESTINGHOUSE ELECTRIC CORPORATION 1855
sometimes referred to herein as the IUE, 113 cast ballots for the Inter-
venor, International Brotherhood of Electrical Workers, Local Union
No. 1805, 3 cast ballots against the participating labor organizations,
1 cast a void ballot, and 118 cast ballots which were challenged. The
challenged ballots were insufficient in number to affect the results of
the election.
On November 15, 1957, the Intervenor filed timely objections to
conduct affecting the results of the election. On November 21, 1957,
the Intervenor submitted an additional objection which the Regional
Director found was untimely filed. In accordance with the Board's
Rules and Regulations, the Regional Director caused an investigation
of the objections to be conducted and, on January 16, 1958, issued and
served on the parties his report on objections in which he found no
merit in either the Intervenor's timely objections or its untimely objec-
tion. He recommended that the objections be overruled and that
International Union of'Electrical, Radio and Machine Workers, IUE-
AFL-CIO, be certified as the exclusive bargaining representative in
the unit found appropriate by the Board.
The Intervenor filed timely exceptions to the Regional Director's
report as it relates to Intervenor's objection designated in the report
as number II, 2. The Employer likewise filed timely exceptions. The
Employer excepted to the Regional Director's report as it relates to
Intervenor's objection designated in the report as number I, 1, and
to the objection which the Regional Director found was untimely filed
and which was undesignated in the report. The Employer also made,
in effect, a motion for reconsideration of the Board's unit finding.
The IUE filed a motion to dismiss the Employer's exceptions contend-
ing that the Employer lacks standing to file such exceptions and also
that they are without merit. The IUE's motion to dismiss is hereby
denied because, although the Employer did not file objections, as the
Board's Rules and Regulations clearly state in Section 102.61, Series 6,
as amended, ". . . any party may file with the Board in Washington,
D. C., seven copies of exceptions to [the] report." [Emphasis sup-
plied.] However, to the extent that the IUE's motion is directed to
the merits of the Employer's exceptions, it will be treated herein as a
statement of position by one of the interested parties in this proceeding.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Bean, and Jenkins].
Objection II, 2, concerns the presence on a shelf in one of the voting
booths at about 7: 10 a. m. of a piece of IUE literature which had
been passed out at the gate. This propaganda material consisted of a
card containing three boxes with an "X" marked in the IUE's box. At
sometime after 7: 10 a. m., it apparently dropped to the floor. For,
at about 8: 15 a. m. a Board agent noticed the card lying on the floor
1860 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
near one of the voting booths and removed it. The Board agents
checked all the booths about every 15 minutes during the election.
The Intervenor excepts to the Regional Director's finding that such
employees who saw the propaganda were in a position to make a free
choice and to his recommendation that the objection therefore be
overruled.
The Intervenor does not contend-as, indeed, it could not, that
the material which merely contained voting boxes with an "X" in the
IUE's box, was a reproduction of an official ballot and therefore
violated the Board's Allied rule.2 The Board has held that distribu-
tion of the type of propaganda involved herein is permissible.3
No evidence was presented to show that any official or representa-
tive of the IUE or any employee acting on instructions of the IUE
placed the propaganda in the voting booth. Moreover, we agree with
the Regional Director that the situation complained of does not differ
substantially from the Board's practice of permitting voters to wear
propaganda shirts or buttons in the polling place. Accordingly, we
likewise agree with him that the presence of the card for at most
134 hours in or near one of the voting booths did not impair the
freedom of choice of such employees who voted and may have seen
the propaganda during that period.4
Objection I, 1, concerns the fact that the election in this case in-
volving the production and maintenance employees, including par-
ticularly shop clerical employees, was held on the same day and site
that an election in Case No. 5-RC-2173 was being conducted for all
salaried employees. The Intervenor contended that, as there were
some salaried shop clericals, these employees were confused as to
which unit they were eligible to vote in; that I expediter (Produc-
tion Clerk Hawes) did not vote in either election because of the con-
fusion; that 3 shop clerks did not vote in the production and main-
tenance unit, but voted in the salaried employees' election; and, that
1 shop clerk (May) voted in both elections.
The Intervenor did not at any time object to the election arrange-
ments which had been agreed to by all the parties. It did not produce
Hawes, May, or any of the three shop clerks alleged to have voted in
the salaried employees' election. The Intervenor presented two
production clerks. One stated in his affidavit that he heard a rumor
that production clerks were to vote in both units. He voted un-
challenged in the production and maintenance unit and voted a chal-
lenged ballot in the salaried employees' unit. He did not ask any
company official, union representative, or Board agent as to where
2 Allied Electrical Products, Inc , 109 NLRB 1270
3 Lincoln Plastics Corp., 112 NLRB 291.
4 The hours and places of election were as follows 6 30 a. in to 9 a in and 3 30 p. m.
to 5 .15 p m -test office area 5 30 p in. to 6 . 30 p m.-electronics building guardhouse.
J
WESTINGHOUSE ELECTRIC CORPORATION 1861
he was supposed to vote. The other clerk stated that he was con-
fused as to which unit he was to vote in and asked his supervisor
who suggested he vote in both units. He also voted unchallenged in
the production and maintenance unit and challenged in the salaried
employees' unit. He did not ask any Board agent where he was sup-
posed to vote. The Regional Director was of the opinion that the
franchise of both voters was fully protected and recommended that
the objection be overruled.
The Intervenor did not except to the Regional Director's recom-
mendation that this objection be overruled, but the Employer does.
The Employer's contention appears to be that since two employees
were produced who voted in both elections, they evidently were con-
fused and, therefore, the Regional Director should have attempted
to seek out, or should have assumed that there were, other employees
who were also confused. We find no merit in this contention. It is
incumbent upon the party objecting to the conduct of an election to
introduce or present evidence in support of its position. Here, no
proof has been adduced that any employee failed to vote in his proper
unit because of the alleged confusion or, indeed, that any other em-
ployees were confused. With respect to the two employees produced
by the Intervenor, while they may have been in doubt regarding
which election to vote in, as pointed out by the Regional Director,
their franchise was fully protected when they voted unchallenged
ballots in the production and maintenance employees' election, but
challenged ballots in the salaried employees' election. In our opinion,
the Regional Director did everything that was required of him when
he considered all the evidence submitted to him by the Intervenor in
support of its objection.
The undesignated objection concerns the fact that while the De-
cision and Direction of Election describes the Petitioner as Interna-
tional Union of Electrical, Radio and Machine Workers, IUE-AFL-
CIO, Local 130, the ballot made no mention of Local 130. The
Intervenor contended that this variance voided the election. The
president of Local 130 asserted that at a meeting of all parties in the
Board's Regional Office to set up the procedure for the election the
parties discussed how the Unions would appear on the ballot and he
stated that Petitioner desired to appear as "International Union of
Electrical, Radio and Machine Workers, IUE-AFL-CIO," omitting
the Local's number. None of the other parties raised an objection at
that time or later on when sample ballots were distributed by the
Board to the parties showing how the Unions would appear. Both
Local 130 and the International Union have indicated that they under-
stood and desired that any certification be issued in the name of the
International Union. The Intervenor's attorney did not dispute the
1862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement of Local 130's president, but contended that the failure to
follow the Decision and Direction of Election by not including Local
130's name affected the outcome of the election. He further contended
that the 5-day period for filing objections would not apply to this
type of objection.
The Regional Director found that the objection, having been sub-
mitted more than 5 days after the tally of ballots had been furnished,
was, in accordance with Section 102.61 of the Board's Rules and Regu-
lations, untimely filed. Furthermore, with respect to the merits of
the objection, he concluded that based upon the Board's decision in
the Sunbeam case 5 the designation of the International rather than
Local 130 on the ballot did not affect the validity of the election and
he recommended that the objection be overruled. In the Sunbeam
case, the Board held that the designation of an international union
on the ballot and omission of the local's name was within the scope
of the Direction of Election which referred to both unions; that when
an international union and its interested local agree that the inter-
national alone shall appear on the ballot, such a designation of the
international is proper; that the ballot designation of the international
did not confuse the voters as to the identity of the respective rival
unions participating in the election; that if the Board had been
requested by the international and the local to omit the local from
the ballot, it would have granted the request; and that the designation
of the international rather than the local did not affect the validity
of the election.
The Intervenor did not except to the Regional Director's recom-
mendation that this objection be overruled, but the Employer does.
The Employer contends that some employees who voted for the
Petitioner may be presumed to have done so because the International
Union was designated on the ballot rather than Local 130. We find
no merit in this contention for the reasons referred to by the Regional
Director. We also agree with his finding that the objection was, in
any event, untimely filed and it could have been rejected on that
basis alone,
Finally, the Employer's exceptions contain what can only be con-
strued as a motion for reconsideration of the Board's unit finding.
Inasmuch as this motion contains no new matter or evidence not
previously considered by the Board at the time when the Decision
and Direction of Election in this case was issued, the motion is hereby
denied.
We find that neither the Intervenor's objections and exceptions
nor the Employer's exceptions raise substantial and material issues
with respect to the conduct or results of the election, and they are
5 Sunbeam Corporation, 89 NLRB 469, at 472.
WESTINGHOUSE ELECTRIC CORPORATION 1863
Hereby overruled . As the tally of ballots shows that a majority of
the valid votes have been cast for International Union of Electrical,
Radio and Machine Workers, IUE-AFL-CIO, we shall certify it as
the collective-bargaining representative in the appropriate unit.
[The Board certified International Union of Electrical, Radio and
Machine Workers, IUE-AFL-CIO, as the designated collective-
bargaining representative of the employees of the Employer in the
unit found appropriate.]
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