Calcor Corp.

National Labor Relations Board - Board Decisions

Jul 31, 1953

106 N.L.R.B. 539 (N.L.R.B. 1953)

CALCOR CORPORATION 539
such circumstances , finds to be a separate unit appropriate
for collective-bargaining purposes. If a majority of the em-
ployees in voting group 2 also select a labor organization, the
Regional Director conducting the election is instructed to
issue a certification of representatives to the labor organiza-
tion selected by the employees in that group, which the Board
in such circumstances also finds to be a separate unit appro-
priate for collective bargaining purposes. However, if a
majority of the employees in both voting groups select the same
labor organization, they will be deemed to have indicated their
desire to constitute a single unit and the Regional Director
conducting the election is instructed to issue a certification
of representatives to the labor organization selected by the
employees in the two groups, which the Board in such circum-
stances finds to be a single unit : propriate for the purposes
of collective bargaining . If the employees in either or both
voting groups do not select a labor organization , the Regional
Director conducting the election is instructed to issue a cer-
tificate of results of election with respect to each such group
or groups.
[Text of Direction of Elections omitted from publication.]
CALCOR CORPORATION ' and INTERNATIONAL UNION,
UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA (UAW-CIO), Peti-
tioner. Case No. 21-RC-2930. July 31, 1953
SUPPLEMENTAL DECISION AND
CERTIFICATION OF REPRESENTATIVES
On May 27, 1953, pursuant to a Decision and Direction of
Election issued herein by the Board,' an election by secret
ballot was conducted under the direction and supervision of
the Regional Director for the Twenty-first Region. Upon con-
clusion of the balloting a tally of ballots was issued and
served upon the parties hereto in accordance with the Rules
and Regulations of the Board.
The tally shows that of approximately 231 eligible voters,
211 voted. One hundred ten votes were cast for the Petitioner,
93 for the Intervenor, Local 548, Sheet Metal Workers Inter-
national Association, AFL, 7 for no union, and 1 was chal-
lenged. On May 28, 1953, the Intervenor filed detailed objections
to the conduct of the election, and moved that the election be set
aside. After an investigation the Regional Director issued a
'Pursuant to advice of the Employer, the Board on May 19, 1953, ordered that the Em-
ployer's name be changed from "California Cornice Steel and Supply Corporation" to
"Calcor Corporation."
2 104 NLRB 787.
106 NLRB No. 92.
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
report on objections ( attached hereto ), in which he recommended
that the objections be overruled . The Employer and the Inter-
venor filed exceptions thereto.'
Pursuant to the provisions of Section 3 (b) of the National
Labor Relations Act, the Board has delegated its powers in
connection with this case to a three -member panel [Members
Houston , Murdock , and Peterson].
1. The Intervenor and the Employer contend that the list of
eligible voters submitted by the Employer inadvertently in-
cluded the names of a substantial number of employees hired
after May 2, 1953, the eligibility date established pursuant to
the Board ' s Direction of Election . The Intervenor further
contends that the list omitted the names of two employees who
were eligible to vote . It is urged that these errors invalidated
the election . However , on May 14, 1953 , a copy of the list was
given to the Intervenor , which had ample opportunity to check
its accuracy before the election . The Intervenor nevertheless
challenged no voters as being ineligible , nor arranged to have
any unlisted employees vote subject to challenge . Its belated
objections on this score are in the nature of post - election
challenges , and will not be entertained 4
The Intervenor and the Employer argue that this result is
inconsistent with Active Sportswear Company, 5 where the Board
set aside an election because the eligibility list used was based
upon a payroll period other than that directed by the Board. In
that case , however, the wrong payroll period was used be-
cause of an error by the Board agent in establishing the refer-
ence date . Thus the parties ' use of an incorrect list and their
failure to challenge any of the names on that list were the result
of their compliance with the procedure prescribed for them by
an agent of the Board . Accordingly, the Board accepted re-
sponsibility for the error and set the election aside. In the
present case , the list submitted by the Employer failed to
conform to the Board agent ' s correctly established requirement.
Because this fact was ascertainable by the Intervenor , through
its members in the plant , we will apply here the Board ' s usual
rule that the burden rests with the participating unions, not
with the Board, to check the accuracy of eligibility lists. The
exception is therefore overruled.
2. The Intervenor and the Employer allege that the Petitioner
continued its electioneering in the plant past the noon hour on
the day of the election , while the Intervenor, pursuant to an
assurance it had given the Employer at the Employer's request,'
refrained from doing so. It is argued that this alleged disparity
in campaigning opportunity invalidated the election . However,
we do not believe that the Intervenor' s forbearance to elec-
3 The Petitioner has requested permission to file a brief , replying to the allegations and
arguments in these exceptions As we do not sustain the exceptions , however , such a brief
would serve no purpose. The request is therefore denied.
4Association of Motion Picture Producers, Inc., 88 NLRB 1097; A J. Tower Co., 329 U S.
324, 332-3, enfg 60 NLRB 1414.
5104 NLRB 1057
CALCOR CORPORATION 541
tioneer during the last few hours before the polls opened
rendered improper the alleged electioneering at that time by
the Petitioner , which would otherwise have been clearly proper.
It is not contended that the Employer forbade the Intervenor
to campaign in the plant during those hours . Nor is it contended
that the Intervenor ' s forbearance was the result of any agree-
ment between it and the Petitioner . The contention is merely
that the Employer requested the Intervenor to forbear and that
the Intervenor did so in the belief that a similar request was
to be made to the Petitioner . In some circumstances , perhaps,
a request by an Employer to a union that it refrain from
certain election activity might be interpreted as a prohibition,
and the Employer ' s failure to address a similar "request"
to a rival union might be found tobe improper assistance to the
election effort of that rival. In this case , however, any such
possibility of assistance to the Petitioner is foreclosed by the
fact that the Employer actually entered into a contract with the
Intervenor during the pendency of this proceeding. Under these
circumstances , the Intervenor ' s failure to electioneer during
the afternoon before the election , as the Petitioner allegedly
did, would not indicate a sufficient disparity in electioneering
opportunity to impel us to set aside the election . It is there-
fore unnecessary to resolve the issues of fact as to the Peti-
tioner's alleged last -minute campaigning.
In addition , the Employer urges that it is always prejudicial
for a union to electioneer inside a plant on election day. With
this latter contention we do not agree ; there is no such general
Board rule. True , electioneering is not permitted in the im-
mediate vicinity of the polls while they are open. 6 However,
neither the Intervenor nor the Employer makes any contention
that this rule was violated by the Petitioner.
3. The Employer contends that it was prejudicial for the
Board ' s agent to walk through the plant to the polling place
in the company of the Petitioner ' s agent on election day. We
do not agree. No inference of Board support of the Petitioner
would be likely to be drawn by employees merely because the
Board agent courteously accompanied a union representative
to inspect the polling place before the election began.'
4. The Intervenor , finally, complains that the Petitioner
made use of handbills which were "inflammatory ," "untruth-
ful," and "virtually libelous ." In the handbills, the Petitioner
accused the Intervenor ' s representative of being untruthful
and of making a back - door agreement with the Employer to the
effect that the Intervenor would help the Employer "get away
with paying as little as possible in wages and other benefits."
The Board does not ordinarily pass judgment upon campaign
propaganda of, this sort.' It invalidates elections only in those
6 Detroit Creamery Co., 60 NLRB 178.
7 See West Texas Utilities Co., 100 NLRB 1012.
8 Blue Banner Laundry & Cleaners, 100 NLRB 2; Philadelphia Lager Beer Brewers' Assn ,
79 NLRB 351.
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exceptional cases in which there has been coercion, gross
fraud, or forgery .' We do not regard the present case as falling
within that exceptional class of cases.
Accordingly, we find that none of the circumstances alleged
were sufficient to impair a free choice in the election, and we
overrule the objections and exceptions . As the tally shows
that a majority of the valid votes have been cast for the Peti-
tioner, we shall certify the Petitioner as the col-
lective-bargaining representative of the employees in the
appropriate unit.
[The Board certified International Union, United Automobile,
Aircraft , and Agricultural Implement Workers of America
(UAW-CIO) as the designated collective - bargaining representa-
tive of the employees of Calcor Corporation in the unit found
to be appropriate.
9E.g , United Aircraft Corporation, Pratt & Whitney Div , 103 NLRB 102; Timken-Detroit
Axle Co., 98 NLRB 790
REPORT ON OBJECTIONS
Pursuant to a Decision and Direction of Election of the National Labor Relations Board
dated May 5, 1953, a representation election was held on May 27, 1953, among all production
employees in the manufacturing division , and all maintenance and plant clerical employees,
at Calcor Corporation , Los Angeles , California , plant , hereinafter referred to as the Em-
ployer , including employees who manufacture magnesium beams for aircraft , shipping and
receiving clerks at all three warehouses, storeroom clerks in both storerooms , and material
control employees , to determine if those employees wished to be represented for the purposes
of collective bargaining , by Sheet Metal Workers International Association , Local 548, AFL,
hereinafter referred to as the Intervenor , or by International Union, United Automobile,
Aircraft and Agricultural Implement Workers of America (UAW-CIO), hereinafter referred
to as the Petitioner , or by neither of these labor organizations The results of the election,
as set forth in a tally of ballots served on all parties on that date , were as follows:
Approximate number of eligible voters .... . .......... 231
Void ballots . ..... .. .... ..... .... . . 0
Votes cast for Sheet Metal Workers Int 'l Ass'n Local 548, AFL. ... ... 93
Votes cast for international Union, United Automobile , Aircraft &
Agricultural Implement Workers of America , (UAW-CIO) . .. ... .............. 110
Votes cast against participating labor organizations . ... ...... .......... 7
Valid votes counted ............... . . 210
Challenged ballots 1
Valid votes counted plus challenged ballots 211
A majority of the valid votes has been cast for CIO
On May 29, 1953, the Intervenor filed timely objections to conduct affecting the results of
the election Copies of said objections were timely served on all parties.
Pursuant to Section 102.61 of the National Labor Relations Board Rules and Regulations,
Series 6, as amended , the undersigned , after reasonable notice to all parties to present
relevant evidence , has completed the investigation of the objections , has reviewed all state-
ments made by witnesses , and carefully considered all other evidence submitted by the parties
and hereby issues his report thereon
Although not specifically as stated in the objections , the Intervenor bases the objections on
two points as follows:
Objection No. 1: In this objection it is alleged that due to the Employer submitting an in-
accurate list of eligible voters, employees not eligible to vote , voted in the election.
ANDERSON AIR ACTIVITIES 543
Objection No. 2: In this objection it is alleged that a paid representative of the Petitioner
campaigned and passed out handbills in the plant just prior to the election , while at the same
time, at the request of the Employer , the representative of the Intervenor refrained from
such activity.
Investigation of objection No. 1 discloses that the Employer erroneously included in the
list of eligible voters the names of 23 employees who were hired after May 2, 1953 , the date
of eligibility . Of the 23 employees , 10 did not vote . Thirteen ineligible voters voted in the
election.
At an informal preelection conference on May 14, 1953, both the Petitioner and the Inter-
venor (the incumbent union ) were given copies of the list of eligible voters and had, there-
fore, ample opportunity to check the list of eligible voters and to challenge the vote of any
voter whom they believed to be eligible.
It is a well-established Board policy that post -election challenges will not be considered.
The undersigned is of the opinion that this case is distinguishable from Active Sportswear
Co., Inc . 104 NLRB 1057 . In that case the Board agent erroneously established as the date of
eligibility a date subsequent to the date of eligibility directed in the Direction of Election.
Therefore , the parties were'led into a failure to challenge the vote of an employee who was
hired after the date of eligibility established in the Direction of Election but prior to the date
of eligibility established by the Board agent . Therefore , the undersigned is of the opinion that
this objection is without merit.
Investigation of objection No. 2 fails to reveal any evidence that a representative of the
Petitioner campaigned or passed out handbills in the plant just prior to or during the time
that the election was being conducted . In support of this objection, the Intervenor contends
that a representative of the Petitioner entered the plant shortly before the start of the elec-
tion, campaigned , and passed out handbills to the employees . The Intervenor failed to submit
the names of any witnesses who could support the contentions.
The Employer records the time of arrival and departure of all visitors to the plant. This
record shows that D. L. Garriga , i. representative of the Petitioner , and Floyd Brewer, the
Board agent who conducted the election , both entered the plant at 3.05 p . m. This record fur-
ther shows that D. L. Garriga left the plant at 3:15 p. m., 15 minutes prior to the start of
the election . The Board agent says that he and Garriga entered the plant together; that
Garriga inspected the polling place; talked to the observers , then, at the request of the Board
agent, left the polling place . The Board agent is of the opinion that Garriga was in the polling
place for at least 10 minutes . Therefore, it appears that when Garriga left the polling area
he immediately left the plant . Since the Employers records show that Gar riga left the plant
15 minutes prior to the start of the election , and was not readmitted prior to the election,
he could not have been electioneering at or near the polling place during the election. In an
affidavit Garriga denies that he either campaigned or distributed handbills while in the plant.
It appears that this objection is without merit.
The undersigned is of the opinion that the objections do not raise material or substantial
issues with respect to conduct affecting the results of the election and, therefore , recom-
mends that the objections be overruled.
ANDERSON AIR ACTIVITIES and INTERNATIONAL UNION,
UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA, C.I.O., Petitioner.
Case No. 14-RC-2113. July 31, 1953
SUPPLEMENTAL DECISION , ORDER , AND SECOND
DIRECTION OF ELECTION
Pursuant to a Decision and Direction of Election issued
herein on April 22, 1953 ,1 an election by secret ballot was
conducted on May 14, 1953, under the direction and supervision
of the Regional Director for the Fourteenth Region, among
1104 NLRB 306.
106 NLRB No. 93.