East Texas Pulp & Paper Co.

National Labor Relations Board - Board Decisions

Nov 2, 1955

114 N.L.R.B. 885 (N.L.R.B. 1955)

- EAST TEXAS PULP & PAPER' COMPANY 885
Accordingly, we find that neither the departmental unit nor the
craft unit herein sought'is appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act, and we
shall, therefore, dismiss the instant petition.
[The Board dismissed the petition.]
MEMEER Mu-RnocK took no part in the consideration of the above
Decision and Order.
East Texas Pulp & Paper Company and International Brother-
hood of Paper Makers, AFL, Petitioner
East Texas Pulp & Paper Company and Beaumont Metal Trades
Council, AFL, Petitioner. Cases Nos. 39-RC-874 and 39-RC-875.
November 2,1955
SUPPLEMENTAL DECISION AND ORDER
On August 10, 1955, the Board issued its Decision and Direction of
Elections 1 in the above-entitled proceeding in which it found that
separate groups of powerhouse employees, electricians, and mainte-
nance employees could be separately represented, and accordingly
directed self-determination elections for the employees in these groups,
as well as an election in a residual group of production employees,
with provision for appropriate pooling of the groups in the event the
employees in any of the groups being granted self-determination elec-
tions voted against the labor organization seeking to represent them
separately. Pursuant to such Decision and Direction of Elections,
elections by secret ballot were conducted on August 30, 1955, under
the direction and supervision of the Regional Director for the Six-
teenth Region among the employees in the separate voting groups.
At the conclusion of the elections, the parties were furnished with a
separate tally of ballots for each of the four voting groups.
In group (a), the powerhouse group, the tally showed that the
IBEW, the labor organization seeking this group's separate repre-
sentation, had not obtained a majority of the valid ballots cast.3
Accordingly, these employees were included in group (c), the broad
maintenance group, and their votes were pooled with those voting in
group (c). In group (b), the electricians group, the tally showed that
the IBEW, the labor organization seeking this group's separate rep-
resentation , had obtained a majority of the valid ballots cast and that
this majority was unaffected by the challenged ballots cast in this
group. As the IBEW had secured a majority of the votes cast, it was.
1113 NLRB 539.
There were no challenged ballots in voting group (a).
114 NLRB No. 135.
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entitled to a certification of representatives and the employees in group.
(b) therefore, were not included in group (c), the broad maintenance
group.
The tally of ballots furnished for group (c), the maintenance group,
showed that of 105 valid and challenged ballots cast, 33 were for the
Beaumont Metal Trades Council, AFL, the labor organization seek-
ing the separate representation of the maintenance employees, and an
aggregate of 57 votes for the 4 other participating labor organiza-
tions. Fifteen ballots were challenged. As the challenges were in-
sufficient in number to affect the results of the election, and as the
Council had failed to secure a majority of the valid votes counted,
the employees in this group were, in accordance with the Board's
instructions, included in group (d), the residual group of production
employees, and the votes of the employees were pooled with those in
group (d). The tally of ballots furnished in group (d) showed that
the election was inconclusive and that a runoff election was required.
However, in view of the objections to the election filed herein, such
runoff election is being held in abeyance pending the disposition of
such objections.
On September 6, 1955, the Council filed timely objections to the
elections and objections to conduct affecting results of election. After
investigation, the Regional Director, on September 23, 1955, issued his
report on such objections. In this report, the Regional Director found
the objections to be without merit, and recommended that they be
overruled and that the Board direct the Regional Director to proceed
with the holding of the runoff election. On October 3, 1955, the
Council filed a motion for complete review of Regional Director's
decision, which we assume was intended as exceptions to the Regional
Director's report, and thereafter submitted a supplement to the excep-
tions which merely elaborates on the contentions set forth in its
original exceptions . The objections covered by the report on objec-
tions and exceptions thereto are as follows :
Objection No. 1: The Council alleges in substance that the Board
agent conducting the election was arbitrary and capricious in allocat-
ing to the Council, over the Council's objections and without an op-
portunity to draw for a more favorable position, the fourth among
the 6 positions on the ballot for voting groups (a), (b), and (c), while
at the same time permitting the Pulp and Sulphite Workers, the AFL
Paper Makers, and the CIO Paper Workers to draw for the first 3
positions on these ballots. The Council also alleges that the Board
agent 's actions were accompanied by hostile remarks, and that he also
rejected the Council's request to be permitted to draw for the last place
on the ballot.
The Regional Director reported that at a preelection meeting on
August 18, 1955, the Board agent met with all parties for the purpose
I
EAST TEXAS PULP & PAPER COMPANY 887
of arranging the details and mechanics of the election. The Board
agent was of the opinion that, to avoid confusion among the voters and
facilitate the preparation of election papers and the counting, pooling,
and tallying of ballots, it was desirable for the parties to maintain
their relative position on all four ballots. This could not be achieved,
the Board agent explained, if all parties were to draw for positions
on each of the ballots on which they appeared. The Board agent
explained this plan carefully and in great detail. The parties were
given every opportunity to ask questions, and after some discussion,
the plan was voted on and approved by a majority of the parties
concert led.
Although the Council argues that the position designated for it on
the ballot was the most unfavorable one, it offers nothing to support
its conclusion, or show wherein it was prejudiced by such designation
on the ballot. Nor are we persuaded that the Board agent engaged
in any conduct that prejudiced the Council'3 It is well established
that the Regional Director, or as in this case the Board agent, had
broad discretion in deciding on the details of an election, and unless
he acts arbitrarily or capriciously, the Board will abide by his judg-
ment on these matters .4 In the present instance, we are of the opinion
that it was not unreasonable for the Board agent to believe that the
customary procedures used in determining the positions of parties on
ballots were not best suited for the character of the election to be con-
ducted herein, and that the plan evolved, apparently with the support
of all parties but the Council, was best calculated to insure a fair elec-
tion. In any event, on the evidence before us, we are far from per-
suaded that the Board agent acted arbitrarily or capriciously, or that
such action was prejudicial to the Council. Accordingly, we find
no merit in the Council's objection No. 1.
Objection No. 0: The Council complains that a representative of the
Pulp and Sulphite Workers violated an interparty agreement to re-
frain, among other things, from going on company property after
midnight of the night prior to the election. Specifically it alleges
that Sims, a representative of the Pulp and Sulphite Workers, was
observed shortly before 4 p. m. on the day of the election driving from
the direction of the Company's parking lot toward the public highway.
The Regional Director's report discloses that the election took place
on company property in a temporary structure just outside the plant
enclosure, but apparently adjacent to it and near a company parking
lot which extended from the plant some 500 to 600 feet toward the
public highway. According to the statement of the Paper Workers'
s Consequently , we find no merit in the Council 's further claim of prejudice because of
the Board agent's participation in the investigation of objections and the preparation
of the Regional Director 's report.
Postern Cotton Mti218, Inc., 73 NLRB 673, 677.
888, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative, Sims was observed in his car driving along the road,
leading from the plant and at a point about 300 or 350 feet from the,
plant. On the other hand, Sims denied being on company property
after 6 a. m., when all the representatives inspected the polling place.
His denials are supported by the statements of the other persons-in a
position to observe those traveling on the road leading to and from
the plant. Assuming, however, that the Council's allegation is true
and that Sims was present on company property under the circum-
stances as described, this at best amounts to no more than an incon-
sequential violation of the parties' agreement with no evidence what-
soever to show that any actual prejudice resulted therefrom to the
Council.' As the Regional Director pointed out, Sims was not charged
with engaging in electioneering or even with being at or near the
polling place. In such circumstances, we find no merit to the Coun-
cil's objection No. 2.
Objection No. 3: The substance of this objection is that a Board
agent, after requesting all observers to the election not to enter the
plant during the election, nevertheless, permitted a company observer
to return to the plant, where he remained the rest of the day..
It is not disputed that one of the Company's observers, at the Com-
pany's request, was permitted to leave the polling area and enter the
plant after the initial voting period, which ended at 8 a. m. The
Council, however, does not contend that the observer engaged in any
improper conduct, but merely voices a suspicion that such might have
been the case. In that regard, the Regional Director's investigation
discloses that this employee, a colored chemist and one not eligible to
vote in the election, upon his return to the plant conversed with other
employees, but confined his conversation about the election to em-
ployees ineligible to vote, and indeed related to them no more than
that 90 to 100 persons had voted that morning. There is nothing in
the exceptions to controvert this finding.
While there may possibly have been a technical violation of a prior
agreement, the Council admits that it was an error committed by the
Board agent in good faith. In such circumstances, and on the record
before us there is no basis for a finding that the Board agent was biased
or that any prejudice resulted to the Council by reason of his actions .6
We find, therefore, no merit in objection No. 3.
Objections Nos.. sand 5: In objection No. 4, the Council alleges that
on the day before the election and prior to a meeting which it had
arranged for maintenance employees for that evening, five colored
maintenance employees, including the Council's designated observer,
were arrested for allegedly stealing company property, and that they
were, confined to jail until after the election.. In objection No. 5, the
e See A . D. Jullilard and Co., 110 NLRB 2197, 2199.
A. D. JuilUard and Co., supra.
EAST TEXAS PULP & - PAPER COMPANY 889
Council -further alleges that on the, day of the election two additional
arrests were made by deputy sheriffs, who "were in and out of the
plant among the colored workers in the maintenance department."
These incidents, the Council contends, caused such fear of reprisal
among the colored workers that many who would have voted for the
Council either did not vote or voted for the Company's choice, the
Pulp and Sulphite Workers.
The extensive investigation by the Regional Director of these al-
legations discloses that there had been a series of thefts of company
property, consummating in the theft on August 27, 1955, of 2 lengths
of electrical cable worth approximately $600. Earlier investigation of
these thefts had led the Company's plant protection chief to believe
that certain laborers employed by the Company might be responsi-
ble. Accordingly, with the theft of the electrical cables, which came
to light on August 29, the plant protection chief, with the permission
of the personnel director, reported the matter to the sheriff of Jasper
County on the morning of August 29. The 5 arrests which were
made on the evening of August 29, and the 2 arrests on the afternoon
of August 30, followed upon the sheriff's independent investigation
of the thefts.
Of the 7 employees arrested, 2 were released on September 1 for
lack of evidence and restored to their jobs. A third employee ap-
parently was released on technical grounds. This employee thereafter
signed an affidavit, at the request of the Company's personnel director,
in which he admitted taking copper wire and other material from the
plant without company permission and, apparently, implicated other
employees. The remaining employees who had been arrested were
charged with felony theft and released on bond pending grand jury
action.
In connection with these incidents, the Regional Director further
reported that the Company's personnel director had stated that he had
no information from any source as to the union affiliation of any of
the employees other than as to one of the Council's observers; that
another union representative had claimed these employees as adherents
of his union ; and that the Company had nothing to do with the ar-
rests or knew of them before 10 a. m. of the day of the election.
The Regional Director found that the arrests were made in connec-
tion with,the theft of property, that they were made by peace of-
ficers; that the peace officers did not mingle with or question employees
in the plant; and that, contrary to the Council's allegation, all colored
employees, except those detained by the sheriff, voted in the election.
The, Regional Director therefore concluded that the Company had
nothing to do with the time of the arrests, that the arrests were not
made for the purpose of influencing, the election, and there was no
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substance to the Council's allegation that the colored workers did not
vote because of the activities of these officers.
The Council in its exceptions offers no factual material to controvert
the Regional Director's findings, but seeks to infer the Company's
responsibility based on its belief that the Company at one time ° had
favored the Pulp and Sulphite Workers. Even if we were to assume
that the Company did favor a particular union, this in and of itself
furnishes no basis whatsoever for an inference of wrongdoing. Inso-
far as the arrests for the theft of company property are concerned (we
note that the Council does not deny that reasonable ground existed for
belief that theft had been committed by company employees), the
Council appears to be indulging in mere speculation when it seeks
to infer that, by initiating the investigation of the theft at the time
it did, the Company sought to intimidate certain employees by threats
of reprisal, and thus keep them from voting for the Council. We draw
no different conclusion from the Company's failure to restore to his
job the employee designated by the Council as observer, but who ad-
mitted taking company property. Furthermore, the Council's in-
ference that the mere presence of the peace officers in the plant in
pursuit of their lawful duties tended to interfere with the employees'
free choice of a bargaining representative, is equally without justifica-
tion.
We have considered all the Council's objections and exceptions, in-
cluding its supplement thereto, and we find that they do not raise
any substantial or material issue warranting a hearing. In such cir-
cumstances, and in view of our findings herein, we adopt the Regional
Director's recommendation and hereby overrule all of the Council's
objections. We shall therefore remand the case to the Regional Di-
rector for the purpose of proceeding with the election in group (d),
in accordance with Board procedure, and for all other purposes con-
sistent with and following the Board's Decision and Direction of Elec-
tions herein, and the Board's Rules and Regulations.
ORDER
IT IS HEREBY ORDERED that this proceeding be, and it hereby is, re-
manded to the Regional Director for the Sixteenth Region who shall
proceed in accordance with the provisions of the Board's Decision and
Direction of Elections issued herein on August 10, 1955, and with Sec-
tions 102.61 and 102.62 of National Labor Relations Board Rules and
Regulations.
MEMBER MURDOCK took no part in the consideration of the above
Supplemental Decision and Order.
7 This related to the period when the plant was first being put into operation.