Lach-Simkins Dental Laboratories, Inc.

National Labor Relations Board - Board Decisions

Nov 19, 1970

186 N.L.R.B. 671 (N.L.R.B. 1970)

LACH-SIMKINS DENTAL LABORATORIES 671
Lach-Simkins Dental Laboratories, Inc., Employer-
Petitioner and Local 286, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America
Lach-Simkins Dental Laboratories , Inc. Employer and
Local 286, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of Ameri-
ca Petitioner . Cases 22-RM-339 and 22-RC-4634
November 19, 1970
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election, an election by secret ballot was
conducted on April 30, 1970, under the direction and
supervision of the Regional Director for Region 22,
among the employees in the unit described below. At
the conclusion of the election the parties were
furnished with a tally of ballots which showed that of
approximately 44 eligible voters, 43 cast ballots, of
which 23 were for, and 18 against, the Petitioner, with
2 challenged ballots. The challenges were insufficient
in number to affect the results of the election.
Thereafter, the Employer-Petitioner 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 June 16, 1970, issued and duly served upon
the parties his Report of Objections in which he
recommended the objections be overruled. Thereaft-
er, the Employer filed timely exceptions to the
Regional Director's Report on Objections and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National 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
policies of the Act to assert jurisdiction herein.
2. The Petitioner-Union is a labor organization
claiming to represent certain employees of the
Employer.
3. A question affecting commerce exists concern-
ing the representation 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 parties stipulated, and we find, that the
following employees 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 in-
cluding laboratory technicians, laboratory techni-
cian apprentices, shipping and receiving employ-
ees and drivers, employed by the Employer at its
Paterson, New Jersey, location excluding all office
clerical employees, salesmen, professional employ-
ees, confidential employees, guards and supervi-
sors as defined in the Act.
5. The Board has considered the Regional Direc-
tor's Report, the Employer's exceptions and briefs,
and the entire record in this case, and hereby makes
the following findings.
In its Objections 2 and 4(c) Employer alleges that a
luncheon conducted by the Union before and during
the time the polls were open interfered with the
election. The election was conducted in the Paterson,
New Jersey, YMCA building between 12:30 and 2
p.m. It was held in a room known as the George
Williams Room which is located approximately 15
feet from the main entrance to the building. Approxi-
mately 5 feet beyond the voting room is a stairway
which leads to the basement of the building and the
cafeteria. According to the Employer, the distance
from the top of the stairs to the basement is 26 feet.
Both prior to and during the time the polls were open
the Union conducted a luncheon, consisting of
sandwiches and soft drinks, for the employees. The
luncheon was attended by at least 15 or 20 employees.
Only one employee, Izak Lajnwand gave a state-
ment as to what happened at the luncheon. He states
that he entered the YMCA building with two other
employees and was told by an unidentified person to
go downstairs. He stated Lou Duva, president of the
Petitioner-Union, was present. Duva requested him to
vote for the Union. A few moments later he left the
room and went outside where he remained until the
polls opened. He states that he was not forced to
attend the luncheon, nor threatened in any manner
during the few minutes he spent at the luncheon.
In our opinion the holding of this luncheon did not
interfere with the election. The luncheon was held
outside of the polling area. Employees were not
compelled to attend.i Those who chose to attend had
to go out of their way, past the entrance to the polling
area to the floor below, in order to do so. Under these
circumstances we conclude that the luncheon was not
Although Employer contends in his objection that employees were
deceived into attending or physically compelled to attend, there is no
evidence to support these allegations
186 NLRB No. 116
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
held so close to the polling area that it interfered with
the election.2 Nor, in our opinion, was the value of the
sandwiches and soft drinks sufficient to interfere with
the election. Although apparently conceding this to be
the case, our dissenting colleague suggests that we
should extend our holding in Milchem3 and find that
any luncheon of this type, held while the polls are
open, interferes with the election. He states that by
doing so we will thereby avoid any future difficulties
in drawing the line as to what is permissible and what
is not. We do not believe that such a holding is
necessary or desirable. We are constantly faced with
the problem of drawing fine lines4 and believe that it
is better to treat each situation as it arises on its own
merits. We do not believe that luncheons of this type
have such a potential for distraction or last minute
pressure that they must be absolutely prohibited.
The Employer's remaining exceptions, in our
opinion, raise no material or substantial issue of fact
or law which would warrant reversal of the Regional
Director's remaining findings, conclusions, and rec-
ommendations. Accordingly, we hereby adopt the
Regional Director's findings, conclusions, and recom-
mendations.
As the tally of ballots shows that the Petitioner has
received a majority of the valid votes cast, we shall
certify it as the representative of the employees in the
appropriate unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that Local 286, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, has been selected by a
majority of the employees of the Employer in the unit
found appropriate herein as their representative for
the purpose of collective bargaining and that, pur-
suant to Section 9(a) of the National Labor Relations
Act, as amended, the said labor organization is the
exclusive representative of all employees in such unit
for purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment.
CHAIRMAN MILLER, dissenting:
I would set aside the election. As described more
fully in the majority opinion, immediately prior to
and at all times that the polls were open, the Union
held a luncheon for members of the voting unit in the
basement of the YMCA, the building in which the
election was being held. Sandwiches and soft drinks
were offered to prospective voters who chose to
attend. At least some campaigning took place during
the luncheon.
In Milchem, Inc., 170 NLRB No. 46 (1968), the
board dealt with the question of whether sustained
conversations with prospective voters waiting to cast
their ballots constituted conduct necessitating a rerun
election. While I agree that is not the same issue
presented here, the rationale of that decision has
bearing on the instant issue . As the Board stated in
Milchem, "Careful consideration of the problem now
convinces us that the potential of distraction, last-
minute electioneering or pressure, and unfair advan-
tage . . . is of sufficient concern to warrant a strict
rule against such conduct. . . . The final minutes
before an employee casts his vote should be his own,
as free from interference as possible." The same
principle underlies the Board's longstanding Peerless
Plywood rule.'
The providing of a free lunch by either party at the
very time the voting is occurring constitutes, in my
view, that kind of potential for distraction, last minute
pressure, and unfair advantage which we condemned
in Milchem. While, admittedly, the type of fare
provided can hardly be said to have been munificent,
I would not care to invite future litigation of such
issues as to whether it would be permissible for one
party or the other to provide a thick steak or an egg
salad sandwich during polling hours, or at what point
in between or on either side of those possible menus
we would draw the line. Rather, in the interest of
insuring both the integrity of the election process and
the wholly unimpaired freedom of employees from
last minute pressures, I would find that the providing
of free refreshments by any party during and
immediately surrounding the polling times and in this
close proximity to the polling place is a sufficient
invasion of laboratory conditions to require setting
aside the election.
It can hardly be said to be a serious limitation on the
parties' permissible campaign activities to so hold.
As we said in Milchem, "In our view, the restriction
here established gives every promise of having a
salutary effect on the conduct of elections and offers
no likelihood of abridging the rights of the parties
concerned."
Accordingly, I would sustain Employer's Objection
2.
2 Harold W. Moore & Son, 173 NLRB No. 191.
a 170 NLRB No. 46.
4 See e .g. Buzza-Cordoza, 177 NLRB No. 38; Hollywood Plastics, 177
NLRB No. 4% Elgin Butler Brick Company, 147 NLRB 1624; Austin
Concrete Works, 132 NLRB 184 ; General Cable Corporation, 170 NLRB
No. 172: Wagner Electric Corporation. 167 NLRB 532.
5 Peerless Plywood Company, 107 NLRB 427.