Kilgore Corp.

National Labor Relations Board - Board Decisions

Apr 24, 1973

203 N.L.R.B. 118 (N.L.R.B. 1973)

118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kilgore Corporation and International Union , United
Automobile, Aerospace and Agricultural Implement
Workers of America, Petitioner . Case 26-RC-4182
April 24, 1973
DECISION ON REVIEW
On June 16, 1972,' the Regional Director for Re-
gion 26 issued his Supplemental Decision, Order and
Directions in the above-entitled proceeding, which
was subsequently amended on June 19, wherein he
sustained Petitioner's Objection 1, set aside the elec-
tion conducted on May 11, and directed a second
election.
Thereafter, in accordance with Section 102.67 of
the National Labor Relations Board Rules and Reg-
ulations, Series 8 , as amended, the Employer filed a
timely request for review of the Regional Director's
Supplemental Decision, as amended, on the ground,
inter alia, that he erred in sustaining Objection 1.
By telegraphic order dated August 8, as corrected
on August 10, the National Labor Relations Board
granted the request for review.2
The Board has considered the entire record in this
case with respect to the issue under review and makes
the following findings:
The tally of ballots issued following the election
shows there were approximately 272 eligible voters,
132 ballots were cast for the Petitioner, 132 ballots
were cast against the Petitioner, 4 ballots were chal-
lenged, and I ballot was void. In his Supplemental
Decision, as amended, the Regional Director sus-
tained two challenges and overruled two challenges.
One overruled challenge, apparently made during the
ballot counting, involved only an issue as to whether
the ballot marking evidenced a clear intent to vote
"No." Having determined the ballot was valid, the
Regional Director concluded the other overruled
challenge was not determinative and that the Petition-
er had not received a majority. The Regional Director
thereafter sustained Petitioner's Objection 1, ordered
the election set aside, and directed a second election.
Objection 1 alleged that the Employer refused to
post the Notice of Election until May 10.3 The Em-
ployer contends that such posting was sufficient be-
cause approximately 75 percent of its employees have
participated in past Board elections at this plant and
nearly 100 percent of the eligible voters participated
i All dates hereinafter are 1972.
2 At the same time , the Board deferred review on three other objections
pending a hearing on remand . Prior to the hearing on remand , the Petitioner,
with the Regional Director 's approval , withdrew the three objections Ac-
cordingly , Petitioner 's Objection I is the sole issue now before us
7 The election commenced at 2 p.m on May 11
in this election .4 Moreover, the Employer argues the
Petitioner waived its right to object over the notice
posting because it declined to delay the election to
cure any posting defect. In our view, the Regional
Director was correct in sustaining the objection.
On April 27, 1972, the Regional Director mailed 10
official election notices to the Employer together with
instructions that they be posted immediately "at con-
spicuous and usual posting places easily accessible to
the eligible employees." Almost 70 percent of the unit
employees are located in 3 of approximately 60 build-
ings on the Employer's premises while the remaining
employees are scattered throughout the other build-
ings.
None of the official election notices were posted in
the areas housing the employees' work stations. In-
stead, on May 8 or 9, one of the notices was posted
in the Employer's personnel office, which is not rou-
tinely visited by employees, and, for this reason, it
cannot be considered a "conspicuous place" for post-
ing the election notices. On May 10, at approximately
6:30 a.m., another election notice was posted in the
employee cafeteria which, it is contended, is utilized
by all employees for their morning and afternoon
workbreaks as well as their lunchbreak. Even assum-
ing all employees do utilize the cafeteria on the afore-
mentioned occasions, the delay in posting the notice
there afforded the eligible employees with only five
limited opportunities (three workbreaks and two
lunchbreaks) to observe the notice prior to the open-
ing of the polls.
Because of the exigencies of each case, the Board
has never established a specified time prior to an elec-
tion for the posting of the election notice. Instead
those details have been left to the discretion of the
Regional Director, who is in a position to assess the
requirements of each individual situation. In view of
the widely scattered location of employees at this
plant, we believe the Regional Director here exercised
considerable prudence in forwarding the notices at
the time he did and in requesting that they be posted
immediately.
Apart from information on the election notice as to
the date, time and place of polling, eligibility require-
ments, and the type of ballot to be used, the official
election notices now in use contain important infor-
mation with respect to the rights of employees under
the Act. The purpose of this latter information is to
alert employees to their rights and to warn unions and
management alike against conduct impeding a free
4 Although a substantial number of employees cast valid ballots and as-
suming, as the Employer states, that three individuals on the eligibility list
left their employment before the election, the number of employees who
apparently did not vote, together with the void ballot , were sufficient in
number to affect the election results
203 NLRB No. 28
KILGORE CORPORATION
and fair election.' All these matters should have been
brought to the employees' attention sufficiently in ad-
vance of the election that, by the day of the election,
they could have asked any questions that bothered
them-e.g., about the unit description and their possi-
ble eligibility or ineligibility thereunder-and could
discuss the election issues with their fellow employees
and friends so they might come to a reasoned decision
by the date of the election.
The mere fact that a large percentage of voters
voted is not, in our opinion, dispositive; that might
occur, in any given case, by happenstance without any
notice having been posted at all. If the Board is to
have a notice-posting requirement, it should be ob-
served with some degree of seriousness. The Employer
here offered no excuse for its last-minute posting. For
us to ignore this Employer's action (or, more accu-
rately, inaction) would encourage other employers to
do the same.
Our dissenting colleagues state confidently that
prospective voters had "five opportunities" to see the
Notice of Election .6 As previously indicated, the Em-
ployer posted only one notice in a suitable place, the
day before the election. We do not know, nor do our
colleagues, whether Respondent's 272 employees
looked at this notice once, twice, or thrice. However
many times they looked at it, they could not have seen
it prior to the time it was posted, i.e., the day before
the election.
The standard enunciated by our colleagues, which
disregards completely the promptness with which the
notice was posted, would seem to be satisfied if an
employer were to fail to post the notices at all until the
hour before the election, and then post a number of
them-e.g., the 10 here mailed to the Employer-on
its walls in the corridor leading to the polling place.
We presume our colleagues would find the Employer
in that situation had satisfied its posting obligation, if
a sufficient number of employees voted, since the em-
ployees would have seen the notice 10 times-albeit
in quick succession as they went to vote. In our view,
the posting of one notice in the cafeteria the day be-
fore the election, in the circumstances here presented,
failed to give employees sufficient advance notice of
the election and constituted a substantial disregard of
the Regional Director's posting instructions. We find
it thereby destroyed the laboratory conditions for
5Overland Hauling, Inc, 168 NLRB 870
By no stretch of the imagination will campaign literature of the parties take
the place of an official Board notice In fact , the Employer's failure to post
the notice in good time tends to deprive the employees of an available,
official statement of their rights against which to check the conduct of the
parties , and to some extent the character of the campaign literature
6 The dissent asserts that we recognized the existence of five opportunities.
This is clearly an overstatement We saw "only five limited opportunities"
assuming that all employees used the cafeteria three times a day
119
holding a fair election.' Accordingly, we affirm the
Regional Director's disposition of Objection 1 and
hereby remand the case to him for the purpose of
conducting a rerun election in accordance with his
Supplemental Decision, as amended.
MEMBERS KENNEDY AND PENELLO, dissenting:
We are unable to agree with our colleagues that the
Employer's delay in posting the election notice in this
case destroyed the laboratory conditions for holding
a fair election. There is no question but that, as the
majority opinion states, the matter of the adequacy of
the time and method of posting is left to the discretion
of the Regional Director conducting the election. But
in the present situation the Regional Director did not
base his conclusion on the exercise of that discretion,
relying instead on the Board's decision in Overland
Hauling, supra, which is totally inapposite.' Further,
neither the Regional Director nor our colleagues state
any basis for concluding or even inferring that the
posting was insufficient to allow employees to read
and understand the notice and that therefore the
Employer's conduct might reasonably have had an
impact on the election. For, on the facts before us, this
is not a situation in which the very act (or failure to
act) standing alone might be said to have cast a cloud
on the conduct of the election.'
As set forth in the principal opinion, the Employer
was requested 10 to post the notices of election "at
conspicuous and usual posting places easily accessible
to the eligible employees." No fixed posting standards
or requirements have ever been promulgated as to
what would satisfy the need to publicize to the em-
ployees the time and place of the election, to alert
them to their rights, and to warn unions and manage-
ment against conduct which would impede a free and
fair election. A reading of the majority opinion in this
case reveals, however, that our colleagues now re-
quire, at the very least, that the posting be (1) in the
"areas housing the employees' work stations," (2) for
' The Employer's contention that the Petitioner waived its tight to object
to the posting procedure because it refused to postpone the election is without
merit See The Great Atlantic & Pacific Tea Company, 101 NLRB 118 ; Humble
Oil & Refining Co, 160 NLRB 1088.
8 In that case the employer concealed the portion of the election notice
entitled "Rights of Employees " Here, the Employer posted the notice in the
cafeteria , where it remained for almost 2 full days before the election
9 E g., Austill Waxed Paper Company, 169 NLRB 1109 (ballot box left
unsealed and unattended for from 2 to 5 minutes held to cast a doubt or cloud
over the integrity of the ballot box itself), Mi/chem, Inc, 170 NLRB 362
(extended conversations between representatives of any party to the election
and voters waiting to cast ballots held interference without regard to content
of the remarks
10 We agree with our colleagues that the matter of the posting of notices
must be viewed with great seriousness However , we are constrained to note
that the Board has not established a requirement that the Employer post the
election notice , and under some circumstances some other form of publica-
tion may be adequate . See for example , Kingsport Press, Inc, 146 NLRB 111,
In 4, Reflector Hardware Corp, 121 NLRB 1544, Lloyd A Fry Roofing
Company, 121 NLRB 1433, 1435, and The Falmouth Company, 115 NLRB
1533
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a period which allows more than five opportunities to
observe the notice before the election, and (3) allow
time to ask questions and discuss the election issues.
We deem these criteria to be too uncertain and
ambiguous to be workable. If an employer's notices to
employees are not customarily posted in those areas-
and there is no basis in this record for concluding that
in this plant such areas contain bulletin boards or
places where posting usually is made. And the five
opportunities which the majority states existed to see
the notice seem to us to be adequate," since one
chance would do if the employees can look at the
notice in a manner which permits them to examine it
and understand what they are reading. There is no
evidence which suggests that the employees could not
do so here. The majority describes the five opportuni-
ties here as "limited" but gives no reason warranting
this conclusion or supporting such an inference. Rath-
er, it would seem to us, absent evidence to the con-
trary, that workbreaks and lunch periods would
permit more leisurely reading than such customary
places for posting as near a timeclock where employ-
ees are more likely to be merely passing by. Fur-
thermore, to accept the view of the majority opinion,
it must be assumed that prior to the posting the em-
ployees were totally unaware of the Union's organiz-
ing campaign and of the approaching election, but we
would require evidence that this was so.'2
ii Neither our colleagues nor we know in this or any case involving the
posting of a Board election notice how many employees actually avail them-
selves of the opportunity to read the notice . However, the important thing
is that they be given an ample opportunity to do so, and there is no basis for
concluding in the instant case that the employees did not have such opportu-
nities prior to this election . Contrary to the reference in the majority opinion
to a "standard enunciated " by us, the only standard we apply is the one that
the Board has traditionally followed , the consideration of each case on its
particular facts.
i2 On the contrary , the fact that employees were well aware of the pending
election and the campaign issues is demonstrated by the 13 pieces of litera-
ture attached to the Regional Director 's Supplemental Decision which were
distributed or mailed by the Employer alone in the last 3 to 4 weeks before
the election . We assume , in the absence of evidence indicating otherwise, that
the Petitioner was equally diligent
In sum, each case must be considered on its own
facts. Here, the notice was posted in the place where
employees go in their leisure time and could see it at
least five times before the election. There is no evi-
dence suggesting that the employees could not under-
stand the notice or that other more desirable places
for posting existed. Furthermore, the Union has not
disputed the Employer's assertion that at least 75 per-
cent of the work force had participated in all three
prior Board-conducted elections in the plant during
the preceding 4 years. Finally, and very significantly,
269 of the approximate 272 eligible voters partici-
pated in the instant election. This large percentage
participation is a factor which the Board has consis-
tently considered in determining the adequacy of no-
tice to the employees concerning a scheduled Board
election. Thus, in Kingsport Press, Inc., supra, the
Board noted that "of the 1,149 nonstrikers on the
voting lists, 1,108 or 95.5 percent cast ballots. Of the
1,261 strikers on the voting lists, 1,020 or 80.8 percent
cast ballots." And in Reflector Hardware Corp., supra
at 1547, the Board stated: "That the employees had
adequate notice and an opportunity to vote is con-
firmed by the fact that more than 90 percent of the
eligible voters participated." Other cases too nu-
merous to mention are to the same effect. While we
acknowledge that the number of participants does not
establish their awareness of all the issues, we require
some evidence to justify an inference they were un-
aware; we cannot agree that the Employer has the
burden 13 of showing that they did know what was
involved.
Accordingly, given the almost 100-percent partic-
ipation in the election in the present case and the
absence of any ground for inferring that there might
have been any misunderstanding or lack of compre-
hension among the employees, we would find no in-
terference with the conduct of the election and would
certify the results.
17 The burden of establishing that the conduct objected to affected the
results of the election is on the party filing the objections to the election.
N L.R B v Mattison Machine Works, 365 U S 123