Kane Industries

National Labor Relations Board - Board DecisionsDec 5, 1979

246 N.L.R.B. 738 (N.L.R.B. 1979)

DIE(tISIONS OF NATIONA. I.ABOR RELATIONS BOARD Kane Industries, A Division of Chromalloy American Corporation and International Ladies' Garment Workers' Union, AFIL-CIO, Petitioner. Case 9 RC 12670 December 5, 1979 DECISION ANI) CERTIFICATION OF RESULTS OF ELECTION Pursuant to a Stipulation for Certification Upon Consent Election approved by the Regional Director for Region 9 of the National Labor Relations Board on October 26, 1978. an election by secret ballot was conducted on November 28, 1978, in an appropriate unit' of certain employees of the Employer.2 There- after, Petitioner tiled timely objections to the election, and on January 3. 1979, the Regional Director issued and served on the parties his Report on Challenged Ballots, Objections to Election and Recommenda- tions to the Board. The Employer and Petitioner filed exceptions and supporting briefs, and Petitioner filed a brief in answer to the Employer's exceptions. The Board has considered the Regional Director's report and the exceptions and briefs, and hereby adopts the Regional Director's findings and recom- mendations3 only to the extent consistent herewith. Petitioner's Objection I alleges that the Employer failed to post the official Board notices of election in sufficient time for the employees to consider and dis- cuss them adequately. On November 17, 1978, due to a loss of business, the Employer closed its plant and laid off' all of its employees. On that same date, the Regional Office mailed the Employer several notices of election which the Employer immediately posted in three conspicuous places. Since the plant was closed when the notices were received, however, the employees' first and only opportunity to read the no- tices was on the day of the election. Nevertheless, by handbills and campaign literature distributed by Peti- tioner and the Employer, the employees had been ap- prised of the date, time, and place of the election and that the election was to be conducted by secret ballot. Approximately 95 percent of the eligible voters voted in the election. The Regional Director found that, under the prin- ciple set forth in Kilgore Corporation, 203 NLRB 118 i The unit, as set forth in the stipulation, is: "All production and mainte- nance employees employed at the Employer's establishment located in Horse Cave, Kentucky, but excluding all office clencal employees, technical and sales employees, professional employees, watchmen, guards and supervisors as defined in the National Labor Relations Act, as amended." I The tally of ballots showed: 47 votes for, and 53 against. Petitioner: there were 10 challenged ballots, a sufficient number to affect the results. 3In the absence of exceptions thereto, we adopt, proforma. the Regional Director's recommendations that the challenges to six ballots be sustained and that the Employer's sole objection be overruled. We also adopt the Regional Director's recommendation that Petitioner's Objection 2 be over- ruled. (1973), enforcement denied 510 F.2d 1165 (6th Cir. 1975), and subsequent cases,4 the employees were not provided with sufficient opportunity to read the elec- tion notices. He thereftre recommended that the elec- tion be set aside. We find merit to the Employer's exceptions to this recommendation. It is undisputed that the Employer complied with the Region's instructions concerning the posting of the election notices, and there is no evidence that any employees were unaware of or misunderstood their rights or were prevented from voting by the fact that they did not actually see the notices until the day of the election. Indeed, the fact that approximately 95 percent of the eligible employees voted established that the employees were well aware of the time, place. and date of the election. Moreover, there is no evi- dence that the Employer acted in bad faith in the manner in which it posted the notices. In these cir- cumstances, we cannot agree with the Regional Di- rector that the Employer, by posting the election no- tices as it did, engaged in conduct which interfered with the employees' free choice in the election.5 Ac- cordingly, we shall overrule Petitioner's Objection I,. and certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for International Ladies' Garment Workers' Union, AFL-CIO, and that said labor organization is not the exclusive representative of all the employees, in the unit herein involved, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. MEMBER JENKINS, concurring: I agree that Petitioner's Objection I must be over- ruled. On the date the Board's Regional Director mailed the notices of election to the Employer for posting at the plant, the plant was lawfully shut down because of lack of business, and the employees were laid off. On receipt of the notices, the Employer 'Citing Congoleum Industries Carpel Division. 227 NLRB 108 (1976); Thermalloqv Corp.. 233 NLRB 428 (1977): Cerlo Manufacturing Corporalion, 234 NLRB 397 (1978), enforcement denied 585 F.2d 847 (7th Cir, 1978): The Singer Companv. US. Sewing Products Divisions, District One. 238 NLRB 264 (1978). ' Member Penello notes that this conclusion is consistent with the view expressed in his dissenting opinion in Kilgore Corporation. supra 6 Member Murphy, as she stated in Printhouse Company. Inc. and Denni- son Tickel, Printhouse Division, 246 NLRB 741. also issued today, would overrule Kilgore Corporation, supra. In reaching the conclusion that the facts of this case do not warrant setting aside the election. she particularly relies on the fact that approximately 95 percent of the eligible employees voted. However. as she set forth in Printhouse, supra. Member Murphy believes that the Board should adopt an explicit requirement that election notices be posted in appropriate places at least 2 full working days prior to the election. In fact. she points out that this entire area could be made clear b the Board's exercise of its rulemaking authonty which. for some unexplained reason, the Board hesitates to do. 246 NLRB No. 111 738 KAN1 INI)I'SIRI:S posted them prompt1 as directed. Because oft' the shutdown, the employees were unable to read the no- tices until the day ofl the election. They did, however. receive from the Linion and from the Employer infor- mation as to the date, time, and place of the election. and approximately 95 percent of the eligible voters voted. In such circumstances, there is nothing in the 1nim- ployer's actions uwhich interfered x ith the conduct ot' the election. he IFmplo erl did ha t the Board ' agent told it to do andt did it pronptly and properl . In Kilgore, in contrast the EmploNer did not post the notices promptl\ as our Regiolnal Office Ihad in- structed but withhheld them until the da hbefore the election. No such eplo\er interference itlh the cin- plo(lees' right to the informiatiorl occurred here: in- stead. the rnplol! er here made additional eflor-ls to see that the emppl,\ ees got the informnation. The for- tunes of' business caused a terniporar plant closure which in turn niax have prevented the existence oft ideal circumstances flor the election. I so. this is un- like Khilgore in being no Ifault of' the Ermnplo er. While a better course migh t have been for tile Regional Of() fice to have rescheduled the election, anx impact ot the late posting was plainl not attributable to an impropriet\ hb the Employer. nor to an\ departure from our rules a nld sta ldards governing elections. and thus does not warrant reru nning the election nowl that it has been held. Chairman Fanning, dissentinlg: I am unable to agree with my colleagues that the posting of the election notices in this case was suffi- cient. As the Board has repeatedly emphasized, elec- tion notices not only notify employees of the date. time, and place of the election but, more importantly. inform them of their rights under the Act; set forth the election procedures, unit description, and eligibil- ity rules; and describe the type of preelection conduct the Board believes will impede a free and fair elec- tion.7 Precisely because notices contain such informa- tion, it is important for employees to have sufficient time in advance of the election to read and discuss the matters contained in them.8 Only by providing for an adequate period during which employees have the opportunity to consider the notices and resolve any questions rising from them can the Board be assured that employees are informed of their rights and are able to make a reasoned decision by the date of the election. Here, the Employer posted the notices approxi- mately 10 days before the election, yet such posting. as the Employer must have known, amounted to no ? Kilgore C(rporatlon. 203 N.RB 118 ( 1973): (ongoleum InditreLs. (arper Division 227 NI.RB 108 (19761: Thermallo Corp, 223 NIRB 428 11977) Y Kilgore, supra at 118 119. posting at all. The plant was closed fr the entire posting period. Even assuming that the Employer had no obligation to notif\ the Region of this drastic change in circumstances so that the Regional l)irec- tor could ad(opt other ways of communicating with the employees. the fact is the emplo\ ees had abso- hltel i no opportunity to consider the notices until the da of the election hen tIhe \enit to the plant to \'votle. Ihlie majority eiipha;sies that 9'5 percent of the eli- gible oters voted. that the emploees knex of' the date. time aind pla;ce of the election rorm the parties' c;.ilipaigl literature. lind that there is no evidence of had faith on the piart of' the lmploser. But. as the Bo;ardl has continualil held. these factors are irrele- vant. Athlughi nitarli 1(X) percent of' the eligible ot- ers cait ballots in ilvr,'cr ( r/)Oroiltl, s\qr/t a case the Board todtax oerrules sui it/eiluni the election \'as set aside because the notice was not properlN posted until I da hbefore the election. The Board stated in Kigiorc that "Elthe mere f1act that a large percentage of voters oted is niot, in our opinion. dis- positive."'' and that "[hb] no stretch of the imagination will campaign literature of the parties take the place of an official Board notice." fir the notice gives em- ployees an official statement of their rights, against which tihey can assess the conduct of the parties and the character of' the carmpaign literature itself-.' The Board has also held thl t good faith, or lack thereof, otn the emplo\ er's part is not an issue in cases of' this kind and has set aside elections without regard to this consideration."' As the precedents indicate, the purpose of the no- tices is to advise emploN ees of' their rights so they may make an informed election choice. and, for that rea- son, advance notice is essential. Here the employees had absolutely no advance opportunit! to consider the notices. Petitioner's Objection I should. therefore. be sustained and a second election directed at such time as the plant reopens.'' MFlMBIR TRUlESD)AI, dissenting: I agree with Chairman Fanning that Petitioner's Objection I should be sustained and a second election directed herein. As I noted in Printhou.se Company, Inc. and Denni.son Ticket, Printhouse Divisior, 246 NLRB 741. issued this day, in the absence of an ap- propriate rule specifying the time and place fbr post- ing of the Board's official election notice. I continue to adhere to Kilgore Corporation, 203 NRB 118 (1973), and will look to the facts of each case to deter- mine whether the employees had sufficient opportuni- A h/lgre, mupra a 119. n 5 io ( ',ngoih'unl Induw tles, supral, Therntudll (C'orp.. uprl If the plant has not yet reopened. I .ould direct a second elecwtln hen and if the plant reopens DECISIONS Of NATIONAL LABOR RELATIONS BOARD ty to be informed of the details of the election and their rights under the Act, and to discuss the issues of the election. Here, although the Employer posted the notice ap- proximately 10 days before the election, the plant was closed during virtually the entire period of posting. In view of the size of the unit involved (approximately 117 employees) and the fact that the employees had no opportunity other than the very day of the election to view the notice. I conclude that the voters were not afforded sufficient opportunity to read and discuss the material contained in the election notices. Therefore, I would set aside the election and direct a second election. 740