Gould-National Batteries, Inc.

National Labor Relations Board - Board Decisions

Apr 28, 1964

146 N.L.R.B. 1142 (N.L.R.B. 1964)

1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
These remarks were no more than an effort by the Employer to demon-
strate to its employees that they had fared better without the benefit
of a union than did the employees of Wagner Electric Company.
Again, this could be readily recognized by employees for what it was,
namely, employer propaganda.
My colleagues also rely upon the Employer's remarks that "a union
has to negotiate with management from scratch to establish ALL
working conditions for the employees it represents . . . the only way
that the union can try to force the company to agree is to make you go
on strike . . . after the strike is over you may no longer have a job."
The reference to bargaining from scratch is, in my opinion, an expres-
sion of the Employer's legal position which the Employer had a right
to Make .4 In indicating further that during negotiations an employer
could not be forced to agree to union demands, the Employer was mak-
ing a correct reference to his rights under the law, and by referring
to the possibility of the strike and its impact on the jobs of employees,
the Employer was making a permissible prediction.'
Accordingly, as the conduct discussed above does not separately or
in combination constitute prohibited preelection conduct and as the
employees did, in my view, exercise their free choice in the election, I
would not set the election aside, but would certify the election results.
MEMBER JENKINS took no part in the consideration of the above
Decision and Direction of Second Election.
' Schick, Incorporated, 118 NLRB 1160, 1162, 1163.
' See footnote 5 of Tcxa8 Industries , Inc., et at., 139 NLRB 365, 368, in which I dis-
sented on this point.
Gould -National Batteries, Inc. and District 50, United Mine
Workers of America, Petitioner and International Brother-
hood of Electrical Workers, AFL-CIO. Case No. 23-PC-2071.
April 28, 19611,
DECISION AND CERTIFICATION OF REPRESENTATIVE
Pursuant to a stipulation for certification upon consent election,
an election by secret ballot was conducted by the Regional Director
on August 23, 1963, among the employees in the stipulated unit de-
scribed below. After the election, the Regional Director served upon
the parties a tally of ballots, which showed that of approximately
86 eligible voters, 45 cast valid ballots of which 25 were for the
Petitioner, 19 were for the Intervenor, and 1 for neither union.
Thirty-six ballots were challenged and 1 ballot was declared void.
146 NLRB No. 132.
GOULD-NATIONAL BATTERIES, INC. 1143
Thereafter, the Intervenor and its Local Union No. 2122 1 filed timely
objections to conduct affecting the results of the election.
In accordance with the Board's Rules and Regulations, the Regional
Director conducted an investigation, and thereafter, on October 25,
1963, issued and duly served upon the parties his report on objections
and challenged ballots in which he recommended that all objections
except objection 5(b) be overruled; that the ballot involved in ob-
jection 5(b)'not be counted void but as a vote for the Intervenor;
that the challenges to 11 ballots be sustained; that the challenges to
25 ballots, including the ballots of 3 leadmen, be overruled. There-
after, the Intervenor filed exceptions to the Regional Director's recom-
mendations on all objections except objection 5(b), and to the
recommendation on the challenged ballots of the three leadmen. As
no exceptions were filed to the Regional Director's recommendations
that the challenges to 22 ballots be overruled, the Regional Director
counted said ballots and issued and served upon the parties a revised
tally of ballots. This tally shows that of approximately 86 eligible
voters, 67 cast valid ballots, of which 44 were for the Petitioner, 22
were for the Intervenor, and 1 against participating labor organiza-
tions. There remained 14 unresolved challenged ballots, which could
not affect the results of the election.
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 [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 and it will effectuate the purposes of the Act to assert juris-
diction herein.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
4. The parties stipulated that the following employees of the Em-
ployer constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
All production and maintenance employees employed by the Em-
ployer at its plant at 6603 Kirbyville Road, Houston, Texas, exclud-
ing the quality control inspector, office clerical employees, guards,
watchmen, and supervisors as defined in the Act.
i The stipulation for certification upon consent election was signed by only International
Brotherhood of, Electrical Workers, AFL-CIO.
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The intervenor and its Local No. 2122 on December 3, 1963, re-
quested that the Board reject the unit stipulation, set aside the elec-
tion, and dismiss the petition on the ground that the single-plant unit
sought is inappropriate. In support of this position, they rely on
the Regional Director's Decision and Order in Gould-National
Batteries, Inc., Case No. 17-RC-4316, dismissing a petition for a unit
at the Employer's Leavenworth, Kansas, plant. They also stated, by
letter dated December 11, 1963, that the IBEW representative entered
into the stipulation through a misunderstanding.
We have duly considered this case in the light of the Board's
Decision on Review in Case No. 17-RC-4316,2 issued this date, wherein
the Board affirmed the Regional Director's conclusion that the master
contracts and the conduct of the parties established a history of bar-
gaining on a multiplant basis, and that such history, applicable to
the Leavenworth, Kansas, plant, at least since May 15, 1961, was con-
trolling and thus barred " a petition for that plant. Although the
Houston plant involved in the instant case, after the August 1962
certification,' was covered by the same contract as the one considered
in Case No. 17-RC-4316 and thus was added to the multiplant unit,
we do not believe that our decision in that case is here controlling.
For, in the instant case, the Houston plant apparently had a single-
plant bargaining history from 1955 to 1962, when such employees
were represented by the Petitioner. Moreover, in the instant case the
parties stipulated that a single-plant unit was appropriate .4 In these
circumstances, we find that a single-plant unit at the Houston, Texas,
plant, as described above, is appropriate.
5. The Board has considered the Regional Director's report 6 and
the Intervenor's exceptions thereto, and, for the reasons stated by the
Regional Director, hereby adopts his recommendations with respect
to the objections and challenges, except as noted in footnote 5.
Therefore, as the tally of ballots shows that the ' Petitioner has
received a majority of the valid votes cast in the election, we shall
certify it as the collective-bargaining representative of the employees
in the appropriate unit.
[The Board certified District 50, United Mine Workers of America,
as the designated collective-bargaining representative of the employees
of the Employer.]
2146 NLRB 1138. -
80n August 28, 1962, the Intervenor was certified as the collective -bargaining repre-
sentative in a unit of the Houston plant employees: (Case No. 23-RC-1928. ) The instant
petition was filed May 2, 1963.
' We deny the request that the Board reject the stipulation on the unit.
As no exceptions were filed to the Regional Director's recommendation that the chat-
lenges to 22 ballots be overruled and the challenges to 11 ballots be sustained , we adopt
the recommendations pro forma . As the challenged ballots of the three leadmen are not
determinative of the election , we do not pass upon these ballots.