Kimco Auto Products of Mississippi, Inc.

National Labor Relations Board - Board Decisions

Jul 21, 1970

184 N.L.R.B. 599 (N.L.R.B. 1970)

KIMCO AUTO PRODUCTS OF MISSISSIPPI, INC. 599
Kimco Auto Products of Mississippi , Inc. and United
Steelworkers of America , AFL-CIO, Petitioner.
Case 26-RC-3714
July 21, 1970
DECISION AND CERTIFICATION OF
REPRESENTATIVE
By CHAIRMAN MILLER AND MEMBERS MCCULLOCH
AND JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election approved on March 17, 1970, an
election by secret ballot was conducted on April
24, 1970, under the direction and supervision of
the Regional Director for Region 26, among the
employees in the stipulated unit described below.
At the conclusion of the election, the Regional
Director served on the parties a tally of ballots,
which showed that, of approximately 69 eligible
voters, 65 ballots were cast, of which 40 were for,
and 24 against, the Petitioner, and I was chal-
lenged. The challenged ballot was insufficient to af-
fect the results of the election. Thereafter, the Em-
ployer filed timely objections to conduct affecting
the results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
the Regional Director conducted an investigation
and, on May 8, 1970, issued and duly served on the
parties his Report of Objections, a copy of which is
attached, in which he recommended that the Em-
ployer's objections be overruled in their entirety,
and that the Petitioner be certified as the collec-
tive-bargaining representative of the employees in
the stipulated unit. The Employer filed timely ex-
ceptions to the Regional Director's report and a
brief in support thereof.
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
powers in connection with this case to a three-
member panel.
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 jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists con-
cerning the representation of employees of the Em-
ployer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. In accordance with the stipulation of the
parties, we find that the following employees of the
Employer constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act:
All production and maintenance employees
employed by the Employer at its place of busi-
ness at 300 South Union, Winona, Mississippi,
excluding all office clerical employees, guards
and supervisors as defined in the Act.
5. The Board has considered the Employer's ob-
jections, the Regional Director's Report on Objec-
tions, and the Employer's exceptions and brief, and
hereby adopts the Regional Director's findings and
recommendations. I
Accordingly, as we have overruled the Em-
ployer's objections, and as the Petitioner has
secured a majority of the valid ballots cast, we shall
certify the Petitioner as the exclusive bargaining
representative of the employees in the appropriate
unit.
' In our opinion, the Employer's exceptions raise no material or substan-
tial issues of fact or law which would warrant reversal of the Regional
Director's findings and recommendations As in the Amax Aluminum I r-
trusion Products, inc., 172 NLRB 1401, we observe that , wherever prac-
ticable, the Board's Regional Offices should, and normally do, keep the
conduct of elections completely separate from the investigation or trial of
contemporaneous unfair labor practice charges involving the same parties
Thus, in the present case, if feasible, it would have been better practice for
the Regional Director to have designated as election agent someone other
than one of the trial attorneys representing the Board in the recently
completed unfair labor practice case Nonetheless, for the reasons stated
by the Regional Director in his report, we find insufficient grounds to war-
rant setting aside the election
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that United Steelworkers of
America, AFL-CIO, has been designated and
selected by a majority of the employees of the Em-
ployer in the unit found appropriate , as their
representative for the purpose of collective bargain-
ing, and that, pursuant to Section 9(a) of the Act,
the said labor organization is the exclusive
representative of all such employees for the pur-
poses of collective bargaining with respect to rates
of pay, wages, hours of employment , and other
terms and conditions of employment.
REPORT ON OBJECTIONS
Based on a petition filed on February 25, 1970,
and pursuant to a Stipulation for Certification
Upon Consent Election approved by the Regional
Director for Region 26 on March 17, 1970, an elec-
tion by secret ballot was held on April 24, 1970,
among certain employees' of the Employer. The
' Included All production and maintenance employees employed by the
Employer at its place of business at 300 South Union, Winona, Mississippi
Excluded All office clerical employees, guards and supervisors as defined
in the Act
184 NLRB No. 60
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
results of the election as disclosed by the tally of
ballots served on the parties at the conclusion of
the balloting were as follows:
Approximate number of voters -------------------- 69
Void ballots ------------------------------------ 0
Votes cast for Petitioner ----------------------- 40
Votes cast against participating labor
organization --------------------------------- 24
Valid votes counted --------------------- -------- 64
Challenged ballots ------------------------------ 1
Valid votes counted plus challenged ballots ----- 65
Challenges are not sufficient in number to affect
the results of the election. A majority of the valid
votes counted plus challenged ballots has been cast
for Petitioner.
On May 1, 1970, the Employer filed timely ob-
jections to conduct affecting the election, copies of
which were duly served on all parties. The Em-
ployer's objections are as follows:
The 26th Regional Office of the National
Labor Relations Board prevented the existence
of the laboratory conditions necessary to con-
duct a valid election by the presence, as the
Region's election officer, of the same Board
agent who earlier that month had tried an un-
fair labor practice case against the Employer
and who came into contact with employees in
the preparation and presentation of the said
unfair labor practice trial.
As a result the Board agent took a partisan
active role in these proceedings against the
Company. He served as a prosecutor charging
the Company with the violation of National
Labor Laws and, therefore, could not properly
be neutral in conducting the election.
The attorney for the Employer present at the
Company on April 24, 1970, the day of the
election informed the Board agent before the
pre-election conference that an Objection
would be filed to the election based upon his
presence as the election officer.
In summary, the obvious effect on the em-
ployees who voted was to destroy the laborato-
ry conditions necessary for a valid election.
Based upon the foregoing acts and conduct
and by other acts and conduct the laboratory
conditions necessary to hold a free and un-
trammeled vote by the unit employees were
destroyed. Accordingly, the Employer requests
that the Regional Director set aside the subject
election and direct that a second election be
conducted in this proceeding.
Pursuant to section 6 of the Stipulation for Cer-
tification Upon Consent Election and Section
102.69 of the Board's Rules and Regulations, Series
8, as amended, the Regional Director has caused an
investigation of the objections to be made during
which all parties were afforded an opportunity to
' Although offered the opportunity, the Employer's counsel declined to
present evidence other than the facts contained on the face of the objec-
submit evidence bearing on the issues2 and the Re-
gional Director, having duly considered the results
thereof, reports as follows:
THE OBJECTIONS
It is uncontradicted that the Board agent who
conducted the election was co-counsel for General
Counsel at a hearing before a Trial Examiner on
April 9, 1970, in Case 26-CA-3577, involving this
same Employer.
The investigation disclosed that the subject hear-
ing before a Trial Examiner of the National Labor
Relations Board was conducted on April 9, 1970, in
Greenwood, Mississippi, a distance of approximate-
ly 30 miles from Winona, Mississippi, the location
of the Employer's plant, and involved allegations of
violations of Section 8(a)(1) and (3) of the Act re-
garding the discharge of one employee. Counsel for
the General Counsel called as its witnesses the al-
leged discriminatee, two rank-and-file employees,
and one individual who had previously been em-
ployed by the Employer as a rank-and-file em-
ployee. The Employer did not present any em-
ployee witnesses to testify in its behalf. Thus only
two employees who were eligible voters in the elec-
tion were present as witnesses for those parties
represented at the hearing. No evidence was
presented that other employees attended the hear-
ing or were even aware of it or the identity of the
counsel for the General Counsel.
On the basis of the foregoing, it is concluded that
the facts related above fail to support the allegation
that the presence of the Board agent at the elec-
tion, who had appeared as one of two counsels for
the General Counsel at the hearing 2 weeks earlier,
destroyed the essential laboratory conditions for
the holding of a fair election. As indicated, the
hearing had been held over 2 weeks before the date
of the election, at a community located a substan-
tial distance from the home of the Employer's plant
and was attended by only two rank-and-file em-
ployees of the Employer.
Assuming arguendo that the votes of the two em-
ployee witnesses were in some way affected by the
presence of the Board agent, the tally of ballots
reveals that the Petitioner won the election by a
margin of 16 votes and, therefore, the final results
could not be affected by the two employees' votes,
In any event, elections have not been set aside
even in cases where the Board agent who con-
ducted the election also investigated unfair labor
practice charges against the Employer between vot-
ing sessions.3
In view of the above, it is found that the objec-
tions are without merit.
Accordingly, it is recommended that the objec-
tions be overruled.
tions
Amax Aluminum Extrusion Products, Inc, 172 NLRB 1401
KIMCO AUTO PRODUCTS OF MISSISSIPPI , INC. 601
CONCLUSION AND RECOMMENDATION recommended that the Board certify United Steel-
Having recommended that the Employer 's objec- workers of America, AFL-CIO , as the exclusive
tions be overruled in their entirety and as the tally bargaining representative of the employees in the
of ballots reveals that the Petitioner received a unit involved herein within the meaning of Section
majority of the valid votes counted , it is further 9(a) of the Act.