General Time Corp.

National Labor Relations Board - Board DecisionsFeb 9, 1972

195 N.L.R.B. 343 (N.L.R.B. 1972)

GENERAL TIME CORPORATION 343 General Time Corporation , Westclox Division and In- ternational Union of Electrical , Radio & Machine Workers , AFL-CIO, Petitioner . Case 10-RC-8894 February 9, 1972 DECISION AND CERTIFICATION OF RESULTS OF ELECTION 5. The Board has considered the objections , the Re- gional Director 's report , and the Petitioner 's excep- tions and hereby adopts the Regional Director's findings , conclusions , and recommendations.' As the Petitioner has failed to receive a majority of the valid votes cast, we shall certify the results of the election. BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Pursuant to a Stipulation for Certification Upon Consent Election, a secret ballot election was con- ducted among the employees in the stipulated unit de- scribed below. The tally of ballots furnished the parties showed that of approximately 952 eligible voters, 894 cast valid ballots,' of which 363 were for, and 524 against , the Petitioner. There were seven challenged ballots, which were insufficient to affect the results. Thereafter, the Petitioner filed timely objections to con- duct affecting the results of the election. In accordance with the National Labor Relations Board Rules and Regulations, the Regional Director conducted an investigation and, on December 6, 1971, issued and served on the parties his attached Report on Objections, recommending that the Petitioner's objec- tions be overruled and the results of the election cer- tified. Thereafter, the Petitioner filed timely exceptions to the Regional Director's report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of certain employees of the Em- ployer within the meaning of Section 9(c)(1) and Sec- tion 2(6) and (7) of the Act. 4. The parties stipulated and we find that the follow- ing employees constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees em- ployed by the Employer's General Time Corpora- tion, Westclox Division, Athens, Georgia, facility, but excluding all office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. ' Five ballots were void CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid votes have not been cast for International Union of Electri- cal, Radio & Machine Workers, AFL-CIO, and that said labor organization is not the exclusive representa- tive of the employees in the unit found appropriate within the meaning of Section 9 (a) of the Act, as amended. REPORT ON OBJECTIONS The petition in the above-entitled proceeding was filed on September 14, 1971. Pursuant to a Stipulation for Certification Upon Consent Election approved Oc- tober 12, 1971, an election by secret ballot was con- ducted on November 3, 1971, among the employees in the appropriate unit to determine the question concern- ing representation. Upon conclusion of the balloting, the parties were furnished a tally of ballots which showed that of approximately 952 eligible voters, 363 cast valid votes for, 524 cast valid votes against the Petitioner; 7 cast challenged ballots and 5 cast void ballots. The challenged ballots are not sufficient in number to affect the results of the election. On Novem- ber 10, 1971, the Petitioner filed timely objections to the election and a copy thereof was served timely on the Employer. Pursuant to Section 102.69 of the Board's Rules and Regulations, an investigation of the issues raised by the objections has been conducted and the Regional Direc- tor, having considered the results thereof, makes the following findings and recommendations to the Board: OBJECTION 1 The Company passed out a handbill just minutes prior to the election, raising a material new issue in which the Union had no time to reply. The Petitioner presented one witness who alleged that on the day of the election, between the hours of 8 a.m.and 10 a.m., a newspaper article entitled "Labor Letter," copy attached hereto as Appendix A, was passed down her working line. This witness alleged that she did not know who started the leaflet down the line, l As no exception was filed thereto , the Regional Director 's recommen- dation that Objection 3 be overruled is adopted pro forma The Petitioner's exceptions with respect to the Regional Director 's overruling of Objection 2 raise no material issues of fact warranting a hearing 195 NLRB No. 53 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but heard that an employee who works in the tool room was passing out this literature. This witness specifically denied that any foreman or supervisor was handing out literature on the day of the election. In the opinion of the Regional Director, the above- related conduct, even if it were sponsored by the Em- ployer, is permissible campaigning which does not afford grounds warranting setting aside the election. Peerless Plywood Company, 107 NLRB 427. Accord- ingly, Objection I is without merit. OBJECTION 2 Board Agent in charge of Petition, gave informa- tion to the Company Attorneys regarding the number of cards submitted for the petition which is in violation of normal Board procedures. Petitioner's representative Browning alleged that on September 22, 1971, he called the Board agent assigned to investigate the petition regarding its status and was informed by the Board agent that he was in the process of making a determination as to the adequacy of the showing of interest by checking the union authoriza- tion cards submitted with the petition against a payroll list submitted by the Employer. The Board agent told Browning that it appeared he needed to submit more cards to have a sufficient showing of interest and he would call him after he finished checking the list. Ap- proximately 3 hours later , Browning received a call from the Board agent advising that 82 of the cards submitted were not valid as the employees signing those cards no longer worked for the Employer. Browning was informed that he had 24 hours to submit additional cards and would be sent a telegram to that effect, which he admits receiving. In the meantime, Employer's counsel contacted the Board agent regarding a hearing or possible election date and was informed that no date could be discussed pending completion of the investiga- tion of the Petitioner's showing of interest.' The following morning, the Employer called a meet- ing of its employees and, among other things, told the employees that their attorneys contacted the Board and found out that the Union did not have a 30 percent showing of interest and were lying about having a majority status. Petitioner presented two witnesses who alleged that sometime in September 1971 employees were called in the plant cafeteria by departments and Plant Manager Graham spoke to them about the Un- ion. Among other things, the plant manager told the employees that the Union was telling the employees that it had 50 percent of the eligible employees signed up on cards, but in fact the Employer had received information through their lawyers that the Union had It may be surmised that the Employer' s counsel, a former Board attor- ney, recognized that the procedure under Section 101 17 and 101 18 was being followed regarding the Petitioner 's showing of interest not submitted the 30 percent required to file for an election and the National Labor Relations Board had given the Union an additional 48 hours to submit the required number of signed cards. Therefore, union rep- resentatives would be running around trying to get cards signed before the deadline. No evidence was pre- sented or adduced that the Board agent gave informa- tion to the Employer's attorneys regarding the number of cards submitted. The Regional Director concludes that the Board agent followed standard administrative procedure in checking the showing of interest and properly advised Petitioner of its insufficient showing of interest and required time to submit additional cards. The fact that the Employer's attorney surmised such and the Em- ployer so advised its employees is not objectionable conduct. Accordingly, Objection 2 is without merit. OBJECTION 3 Excelsior list contained an excessive amount of incorrect addresses. In support of this objection, the Petitioner submitted 44 envelopes addressed to 44 different individuals, which were returned to the Petitioner by the post office marked "Return to Sender" for various reasons.2 The Excelsior list prepared by the Employer and received by the Petitioner on October 20, 1971, showed last name, one initial, and the addresses of 980 employees. Petitioner contends that prior to receiving the Excel- sior list, the Employer mailed out literature which was addressed to the employees by their full first name, zip code, and full address. To support the contention that the Employer maintains accurate addresses of its em- ployees, Petitioner submitted three W-2 forms of an employee showing a change of name and address in 3 different years. The address of this employee on the Excelsior list is the same as that shown on the latest W-2 form. Petitioner did not submit any evidence to support its contention that the Employer had mailed out literature to its employees addressed by their full first name, zip code, and full address. The Employer contends that it used the same mailing list as was furnished the Petitioner and that the list contained as many up-to-date addresses as it had. Ap- proximately 44 letters were returned to the Employer because of insufficient addresses. It is now well settled that the Excelsior rule will not be applied mechanically. Program Aids Co., 163 NLRB 145. Generally, the Board will not set an election aside because of an insubstantial failure to comply with the Excelsior rule if the Employer has not been grossly negligent and has acted in good faith. Telonic Instru- ' The reasons stamped and checked on the envelope by the post office for inability to deliver were, "Moved-Left No Address," "Addressee Un- known," and "Insufficient Address " GENERAL TIME CORPORATION 345 ments, 173 NLRB 588. In Valley Die Cast, 160 NLRB 1881, the Board found that the Employer had substan- tially complied with the rule even though 48 of 314 addresses were never correctly furnished to the Union. Also, in Fontainebleu Hotel Corp., 181 NLRB 1134, the Board held that approximately 56 incorrect ad- dresses in a list of some 300 did not vitiate the Em- ployer's attempt to comply with the Excelsior require- ment . In the instant case , only 44 out of 980 were undelivered , and the investigation in no way indicates that the supplying of full first names would have been of material benefit in assisting delivery of Petitioner's communications and in the opinion of this Regional Director, this omission by the Employer did not violate the requirements of Excelsior. The Singer Company, 175 NLRB 211. In the instant case , the Employer provided the Union with a list of its employees from that data which it used for its payroll purposes in the normal course of busi- ness . Further, the Employer itself used the same infor- mation in mailing its campaign literature to the em- ployees. As it does not appear that the Employer was grossly negligent or acted in bad faith, it is the opinion of the Regional Director that Objection 3 is without merit. The Lobster House, 186 NLRB No. 27. FINDINGS AND RECOMMENDATIONS For the reasons set forth above , this Regional Direc- tor finds Objections 1, 2, and 3 to be without merit and recommends to the Board that they be overruled. IT IS FURTHER RECOMMENDED that since the tally of ballots shows that the Petitioner failed to receive a majority of the valid ballots cast , a Certification of Results of Election issue. APPENDIX A Labor Letter A Special News Report on People and Their Jobs in Offices, Fields and Factories UNIONS PLAN hefty dues hikes after the freeze despite uncertainty over Phase 2 A San Francisco local of the Transport Workers Union reports it will raise dues 43% to $10 a month once the freeze ends; still it worries about exceeding Phase 2 guidelines . "I'm almost sure we'd cooperate" if the boost is disallowed, says an official. The United Transportation Union pro- ceeds with plans to raise assessments on locals 50% to $4.50 a member a month; the move may force locals to raise their own dues. Yet a New York Teamsters local sits tight on earlier plans to boost dues; "it's up to the Price Commission what will happen ," grouses an offi- cial. With Phase 2 looming , the Philadelphia Fed- eration of Teachers decides against seeking a dues increase at this time . One result : The union may have to drop some activities . Union men say dues boosts are needed to pay for recent jumps in staff salaries and office rents. An Akron, Ohio, labor leader frets "it's a bad time to be talking about dues increases" when members aren't sure they'll get already-negotiated pay boosts.