Goodyear Tire and Rubber Co.

National Labor Relations Board - Board Decisions

Sep 5, 1962

138 N.L.R.B. 453 (N.L.R.B. 1962)

GOODYEAR TIRE AND RUBBER COMPANY 453
Goodyear Tire and Rubber Company and Oil, Chemical and
Atomic Workers , AFL-CIO, and Local 8-277, Petitioner. Case
No. 3-IBC-2776. September 5, 1962
DECISION AND CERTIFICATION OF RESULTS
OF ELECTION
Pursuant to a stipulation for certification upon consent election,
an election by secret ballot was conducted in the above-entitled pro-
ceeding on March 1, 1962, under the direction and supervision of the
Regional Director for the Third Region, among the employees in
the stipulated unit. At the conclusion of the balloting, the parties
were furnished with a tally of ballots which showed that of approxi-
mately 13 eligible voters, 13 ballots were cast, of which 5 were for,
and 8 were against, the Petitioner. On March 3, 1962, the Petitioner
filed timely objections to conduct affecting the results of the election.
After an investigation, the Regional Director issued and served
upon the parties his report on objections in which he recommended
that the objections be overruled and the results certified. The Peti-
tioner filed timely exceptions to the report.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of the employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
4. The following employees of the Employer, as stipulated by the
parties, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act :
All laboratory technicians employed by the Employer at its plant
in Niagara Falls, New York, excluding all production and mainte-
nance employees, office clerical employees, professional employees,
guards, and supervisors as defined in the Act.
5. The Regional Director recommended overruling three of the
Petitioner's four objections' on the grounds that they involved con-
duct which occurred prior to the execution of the stipulation. He
noted, correctly, that although the Board had changed the cutoff date
and the limits of the critical period for conduct affecting the election
1 The Regional Director also recommended overruling the Petitioner 's fourth objection
on the ground that the conduct involved did not constitute interference . As no excep-
tions were filed with respect to-this objection , we adopt the Regional Director 's recom-
mendation pro forma.
13,8 NLRB No. 59:
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in contested election cases,' it had not changed the rule in consent and
stipulated elections.'
In its exceptions, the Petitioner argues, in effect, that the Board
has penalized parties who enter into consent or stipulated elections
by maintaining in these cases a shorter critical period during which
objectionable conduct by either party may result in the election being
set aside than in contested cases. Petitioner urges the Board to apply
the same cutoff date to both contested and uncontested cases, thereby
more closely equating the length of the critical period in all types of
cases. We find merit in the Petitioner's exceptions.
It has always been the policy of the Board to encourage parties to
a representation case to settle the issues in the case by mutual agree-
ment wherever possible, thereby simplfying and expediting the repre-
sentation proceeding. The substantial number of elections conducted
pursuant to consent election agreements or stipulations for certifica-
tion upon consent election bears witness to the fruits of this policy.
In fiscal year 1960, they amounted to 4,665 out of 6.683 elections con-
ducted by the agency; in 1961 they were 4,790 out of 6,610; and in 1962
(estimated) they were 5,188 out of 7,329.
At the same time, the Board seeks to discourage improper conduct
by employers or by unions which occurs sufficiently close to the time
of the voting and which therefore may interfere with the free choice
of the employees in a Board-conducted election.
We believe that these salutary policies can best be effectuated by
establishing a common cutoff date both for formally directed elections
in contested cases and for elections held pursuant to voluntary agree-
ments. Clearly, objectionable conduct has the same impact on the
employees' freedom of choice in an election regardless of whether the
election is pursuant to a consent arrangement or formal direction.
Where such conduct occurs after the filing of a representation petition,
therefore, there is no sound reason for ignoring it or immunizing it
simply because it occurs before a consent agreement or stipulation is
signed by the parties. The filing of the petition should be clear notice
in all cases that objectionable conduct is thereafter taboo.
Obviously, as our dissenting colleagues point out at some length,
entering into consent elections has always been voluntary. But em-
phasis on that truism as a reason for not having a uniform cutoff
date for all elections-contested and consent-adds up to an unattrac-
tive concept that volunteers should be estopped but not so those who
litigate. In Ideal we did not return to the A & P standard for con-
tested cases, but set the cutoff date earlier. We now do the same for
2 The Ideal Electric and Mdnufacturvng Company, 134 NLRB 1275 , in which the Board
held that the critical period would thereafter be held to commence with the filing of the
representation petition As Ideal Electric was a contested case, and as the issue with
respect to consent and stipulated election cases was not raised therein, the Board did not
find it necessary , in that case, to consider the problem.
IF, W. Woolworth Company, 109 NLRB 1446.
GOODYEAR TIRE AND RUBBER COMPANY 455
consent cases and thereby achieve precisely the same standard for
both types. We believe this standard-the date of the petition-
to be a simpler and more workable standard than we have ever had
before.
It may be contended that as a practical matter the employer or the
union which commits the improper conduct is more likely to agree
to a consent election if it can thereby avoid the consequences of its
impropriety. Nevertheless, we do not consider this a valid reason to
permit improper conduct. Indeed it may well be, especially in view
of the expeditious handling of elections under the Board's delegation
of decisional authority in representation cases to its Regional Direc-
tors, that continuance of the present disparity between the two types
of elections with respect to the length of the critical period would
discourage voluntary elections; for parties which are the butt of the
misconduct would choose to go to hearing in order not to lose the
protection of the extended critical period.
Accordingly, we have decided to consider in future consent and
stipulated elections any objectionable conduct which occurs after the
date of the filing of the petition .4 However, consistent with the policy
in Ideal Electric, and for the reasons set forth in that case, we shall
apply this rule only to those cases in which the petition is filed on
or after September 17,1962.
Turning then to the instant case, the Board has considered the
Regional Director's report and the exceptions thereto, and upon the
entire record in this case, hereby adopts the Regional Director's rec-
ommendations inasmuch as the exceptions, under the Woolworth rule
hitherto in effect, raise no material and substantial issues warranting
reversal of the Regional Director's recommendations.
Accordingly, as the Petitioner did not receive a majority of the
votes cast, we shall certify the results of the election.
[The Board certified that a majority of the valid votes was not
cast for Oil, Chemical and Atomic Workers, AFL-CIO, Local 8-277,
and that said labor organization is not the exclusive representative of
the employees in the unit found appropriate.]
MEMBERS RODGERS and LEEDOM, dissenting :
Contrary to the decision of our colleagues, we would not change the
cutoff date for objectionable conduct in consent and stipulated election
cases from the date of execution of the consent agreement or stipula-
tion to the date of filing of the petition. In our opinion, the majority
has not merely altered the length of the critical period in such cases,
but has substantially modified the nature and purpose of consent-
' Cf. F. W. Woolworth Compa Iny, supre, where the Board changed the cutoff date in
order to "equate the time factor," i.e., the length of the critical period in the different
types of elections.
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election agreements and stipulations for certification upon consent
election.
In 1952, in The Great Atlantic and Pacific Tea Company, 101
NLRB 1118, the Board established the cutoff date for elections held
pursuant to voluntary agreements as the date of execution of such
agreement. Ever since that decision,5 the execution of a consent agree-
ment or stipulation has meant that the parties accept existing con-
ditions for purposes of the election, and all concerned have had full
knowledge that conduct which occurred prior to the execution of the
agreement could not later be raised as an objection. The fact that
this was a fundamental incident of a consent agreement or stipulation
did not, so far as we know, in any way prejudice or frustrate the
policy of encouraging parties to agree voluntarily to the holding of
representation elections. Indeed, judging from the high percentage
of elections conducted pursuant to voluntary agreements, as our
colleagues have pointed out in their opinion, it would appear that this
policy thrived under the A & P-Woolrworth rule.
Our colleagues apparently fail to appreciate the fact that petition-
ing unions have always entered into these election agreements volun-
tarily, and we perceive nothing in the Board's Ideal Electric decision, 6
or the effect thereof, to warrant the conclusion drawn by our colleagues
that the Board is "immunizing" unlawful conduct of, or offering "in-
ducements" to, employers, at the expense of petitioning unions. Thus,
and, significantly, our colleagues cite nothing specific to support their
conclusionary statements to the contrary-petitioning unions are not
under any compulsion from the Board, either directly or indirectly, to
execute such agreements, where to do so would preclude them from
raising objectionable conduct which they might otherwise have raised
had the election been directed by the Board. On the contrary, any
petitioning union is free to refuse to execute a voluntary election
agreement where, by so doing, it would be deprived of the right to
object to the election on the basis of conduct occurring after the filing
of the petition. Accordingly, the A & P rule does not jeopardize the
rights of any person.'
Further we believe the majority has overlooked the fact that con-
sent-election agreements and stipulations for certification upon con-
sent election are procedures developed by the Board, administratively,
to provide a means, which the parties may employ, if they so desire
s Although the Board changed the cutoff date for contested cases in P W. Woolworth
Company, 109 NLRB 1446 , it did not disturb the cutoff date established in A & P for
consent and stipulated election cases
6 The Ideal Electric and Manufacturing Company, 134 NLRB 1276 , In which the Board
changed the cutoff date in contested cases from the date of the Decision and Direction of
Election to the date of filing of the petition.
+ For the same reason , we are not impressed with the Petitioner 's argument , which our
colleagues have apparently found persuasive , that the disparity in the length of the critical
period for contested and uncontested cases will discourage voluntary elections . Moreover,
this disparity has always existed.
KENT PRINTING COMPANY 457
and agree, to resolve questions concerning representation more expedi-
tiously. This was achieved by the parties agreeing to the election and
settling, by agreement, all the issues commonly involved in a repre-
sentation case, thereby eliminating a number of steps in the representa-
tion case proceeding, including the hearing on the petition and the
Board's Decision and Direction of Election The cutoff date estab-
lished in A & P also contributed to the expediting process by reducing
the amount of postelection delay involved in objections. However,
under the A & P cutoff date, the Board still protected the election
processes and the rights of the parties by considering objections based
on any conduct occurring after the execution of the agreement, which
might have unlawfully altered or affected the conditions existing at
the time of the execution of the agreement, under which the parties
had agreed the election would be held. This, we believe, properly
balanced the competing considerations of speed, administrative con-
venience, and the parties' rights. Thus, in our opinion, there is no
reason for making the further accommodation which our colleagues
have made herein.
Accordingly, we would leave the cutoff date in such cases as the
date of execution of the consent agreement or stipulation.
Kent Printing Company and Printing Pressmen and Assistants
Union No. 13, International Printing Pressmen and Assistants
Union of North America, AFL-CIO, Petitioner. Case No.
7-RC-5278. September 6, 1962
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Marie B. Poston, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
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 [Chairman McCulloch and Members Leedom and
Brown].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.'
I Grand Rapids Typographical Union , Local No. 39 , AFL-CIO, intervened , without
objection , on the basis of its claim to represent the cameraman -platemaker who, the
Petitioner contends , should - be included in the unit it seeks.
138 NLRB No. '62.