Continental Baking Co.

National Labor Relations Board - Board Decisions

Jan 26, 1959

122 N.L.R.B. 1074 (N.L.R.B. 1959)

1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Continental Baking Company and American Bakery & Con-
fectionery Workers International Union , AFL-CIO, Petitioner.
Case No. 8-RC-3198. January 26, 1959
SUPPLEMENTAL DECISION AND CERTIFICATION
OF REPRESENTATIVES
Pursuant to a Board Decision and Direction of Election' an elec-
tion by secret ballot was conducted herein on August 15, 1958, under
the direction and supervision of the Regional Director for the Eighth
Region. After the election the Regional Director served upon the
parties a tally of ballots which showed that of approximately 126
eligible voters, 123 cast ballots, of which 60 were for the Petitioner,
American Bakery & Confectionery Workers International Union,
AFL-CIO ; 55 were for the Intervenor, Bakery and Confectionery
Workers International Union of America, Local 33, Independent;
and 1 vote was cast for no labor organization. Seven ballots were
challenged which were sufficient in number to affect the results of
the election.
On August 22, 1958, the Intervenor filed timely objections to the
conduct of the election. After an investigation the Regional Di-
rector, on November 28, 1958, issued his report on objections and
challenges, recommending that the objections be overruled and that
the challenges be sustained, and that the Board issue a certification
of representatives in behalf of the Petitioner. On December 16,
1958, the Intervenor filed exceptions to the Regional Director's
report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this proceeding to a
three-member panel [Chairman Leedom and Members Rodgers and
Jenkins] .
The Board has considered the objections and challenges, the Re-
gional Director's report, the Intervenor's exceptions, and the entire
record in the case and hereby adopts the findings, conclusions, and
recommendations of the Regional Director with the exceptions and
additions noted below.
The intervening labor organization alleges five grounds for setting
aside the election in its statement of objections. Objections 1, 2, and
3 are concerned with alleged irregularities in the election notices
and in the ballot and will be considered together. The investigation
revealed that on Friday, August 8, 1958, four copies of the notice
of election were sent to Continental for posting. The body of this
3 Unpublished.
122 NLRB No. 132.
CONTINENTAL BAKING COMPANY 1075
notice of election, mimeographed on the Board's regular form,
specifically described the unit as including the employees of Con-
tinental and American in conformity with the description in the
Decision and Direction of Election. However, the caption of the
notice read :
VOTING UNIT
EMPLOYEES OF CONTINENTAL BAKING CO
AKRON, OHIO2
On the sample ballot, which was part of the notice of election, there
appeared after the words "Official Secret Ballot for the Employees
of" the following words, "Continental Baking Co., Akron, Ohio."
The ballots used in the election were the same as the sample ballot.
Copies of the above-mentioned notice were sent to American on
August 11, 1958, and failed to indicate the voting time and place
for the election at the American plant. E. J. Hughes, manager of
American, interlined the notice so as to indicate the hours and
polling place for the election at American, and underlined with red
pencil that portion of the notice which named the American plant
as'part of the unit. He also attached a small typewritten slip to the
notices giving the location of the polling place.
The notices at Continental were posted for a period of 6 days and
at American for a period of 3 days prior to the election. No ob-
jections were made before or during the election by any party to the
proceeding as to the form, contents, or length of time of posting.
Both unions had access to the notices posted in both plants and
conducted active campaigns frequently mentioning in their literature
that voting would be at both the Continental and American plants.
At the election held at American, all of the employees voted with
the exception of one employee who, according to the observers, was
on vacation and was not expected to vote. The Intervenor pre-
sented no evidence to show that any employee was misled, but
maintained that the above irregularities were inherently prejudicial
and thereby deprived the employees at American of freedom of
choice as to their bargaining representative. In view of the fore-
going, and particularly since the intervening union at no time either
prior to or during election raised any issue concerning the notices
of election or the ballots used, the Regional Director found that the
employees were not in any way prejudiced or misled and recom-
mended that the objections be overruled. We agree. Although the
2 It will be noted that the caption of the case contains only the name of "Continental"
since the Petitioner sought a unit only at that plant. Because of a long history of
multiemployer bargaining the Board in its Decision and Direction of Election found only
a unit of employees at both the American and Continental plants appropriate and accord-,
Ingly directed an election to be held among appropriate employees at both plants.
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.Board does not condone the failure to adhere strictly to the regularly
established election procedures, we find that the deviations in the
instant case did not adversely affect the conduct of a fair election
or influence the result in any degree and that the requirements of
reasonable notice were met .3
Objections 4 and 5 are concerned with the wearing of badges
advocating the support of the AFL-CIO in and near the polls by
adherents of the Petitioner. At no time during the election at either
Continental or American did the observers or representatives of the
intervening union raise any objections to the wearing of the badges
nor is there any claim that there was any electioneering or loitering
near the voting area. Following established Board precedent the
Regional Director found that the mere wearing of badges did not
constitute interference with the employees' freedom of choice and
recommended that these objections be overruled.' We agree, and
accordingly overrule the objections.
The Regional Director, recommended that the challenges to the
ballots of the seven employees involved be sustained. As no ex-
ceptions were filed to his recommendation concerning Richard Conn,
we adopt his recommendations and sustain the challenge to his
ballot.
Prior to the date of the Direction, James Monroe was either
discharged for cause or voluntarily quit and Basil McClung was
discharged for cause; neither was working on the date of the elec-
tion. We agree, therefore, that the challenges to their ballots be
sustained.5- We also agree with the Regional Director's finding that
Edward Marshall, a schoolteacher who works sporadically for the
Employer 'on summer vacations, is a temporary casual employee and
that therefore the challenge to his ballot be sustained.6 As the votes
of Lawrence, Corall, Anthony Monago, and Ronald Sutterluety could
not affect the results of the election, we find it unnecessary to pass
on the challenges to their ballots.
As we have overruled the objections to the election and as we have
sustained sufficient challenges to establish that American Bakery &
Confectionery Workers. International Union, AFL-CIO, has received
a majority. of the valid votes cast in, the election, we shall certify
S Pegwill Packing Co., 115 NLRB 1151, 1153-1154; Bridgeport Moulded Products, Inc.,
115 NLRB 1751, 1752.
4 Autoyre Division of Ekco Products Company, 116 NLRB 134; Electric Wheel Company,
Division of The Firestone Tire d Bobber Company, 120 NLRB 1644.
s That these employees may subsequently -ho rehired voluntarily or as a result of a
grievance proceeding does not impair the presumptive validity of their terminations.
Dora Steel Products Company, 111 NLRB 590, 591-592.
6Massachusetts Institute of Technology, 110 NLRB 1611, 1613. That all parties may
have agreed at the preelection hearing to permit Marshal to vote, as alleged. by the
Intervenor, does not preclude any party thereafter to make challenges at variance with
the eligibility list. See Norris - Thermo dor Corporation , 119 NLRB 1301.
. ARCO STEEL CONSTRUCTION COMPANY 1.077
it as `the collective-bargaining representative of the -employees in the
appropriate unit.
[The Board certified American Bakery & Confectionery. Workers
International Union, AFL-CIO, as the designated collective-bar-
gaining representative of the employees in the unit heretofore
found appropriate by the Board in its Decision and Direction of
Election.]
Argo Steel Construction Company and Joseph S. Koretz , Attor-
ney for Herman Worley and Local 25, International Associa-
tion of Bridge, Structural and Ornamental Iron Workers,
AFL-CIO, and Steel & Metal Erectors Association of Michi-
gan, Parties to the Contract
Local 25, International Association of Bridge , Structural and
Ornamental Iron Workers , AFL-CIO and Joseph S. Koretz,
Attorney for Herman Worley and Argo Steel Construction
Company and Steel & Metal Erectors Association of Michigan,
Parties to the Contract. Cases Nos. 7-CA-1581 and 7-CB-350.
January 27, 1959
DECISION AND ORDER
On May 19, 1958, Trial Examiner Bruce Hunt issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in certain unfair labor practices and had
not engaged in others and recommending that they cease and desist
from the unfair labor practices found and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter the Respondents and the General Counsel filed
exceptions to the Intermediate Report together with supporting
briefs.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed except as indicated hereinafter.
The Board has considered the Intermediate Report, the exceptions,
the briefs, and the entire record in the case, and finds merit in the
General Counsel's exceptions. Accordingly, the Board adopts the
findings, conclusions, and recommendations of the Trial Examiner
only to the extent that they are consistent with the findings and
conclusions below.
1. The Trial Examiner found that the Respondent Company is
not a party to the collective-bargaining agreement signed by Steel
122 NLRB No. 129.