Modern Hard Chrome Service Co.

National Labor Relations Board - Board Decisions

Dec 8, 1970

187 N.L.R.B. 82 (N.L.R.B. 1970)

82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Modern Hard Chrome Service Co. and International
Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America, UAW,
Petitioner and Modern Hard Chrome Service Co.
Employees Union (Ind.), Petitioner.' Case
7-RC-9905
December 8, 1970
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
By CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Pursuant to a stipulation for certification upon
consent election approved on May 5, 1970, an election
by secret ballot was held on May 11, 1970, under the
direction and supervision of the Regional Director for
Region 7, among the employees in the appropriate
unit. At the conclusion of the balloting, the parties
were furnished with a tally of ballots which showed
that, of approximately 59 eligible voters, 29 cast
ballots for the Petitioner, 16 for the Intervenor, 11
against the participating labor organizations, and
none was challenged or void. Thereafter, the Employ-
er 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 28, 1970, issued and duly served upon the
parties a notice of hearing on objections, in which he
ordered a hearing be held with respect to the
Employer's objections.
Pursuant thereto, a hearing was held before Hearing
Officer Joseph E. Moore, and, on July 7, 1970, the
Hearing Officer issued and served on the parties his
report on objections. Upon a consideration of the
evidence presented, the Hearing Officer found the
Employer's objections lacking in merit and recom-
mended that they be overruled and that the Petitioner
be certified as the bargaining representative of the
employees in the stipulated unit.
Thereafter, the Employer filed timely exceptions to
the Hearing Officer'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
i Hereinafter referred to as the Intervenor
2 The Employer's exceptions to the Hearing Officer's recommendation
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner and the Intervenor are labor
organizations 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 all
production and maintenance employees, including
truckdrivers and shipping and receiving employees,
and machine shop employees employed by the
Employer at 12880 and 12888 E. Nine Mile Road,
Warren, Michigan, but excluding all office clerical
employees, professional employees, guards, and
supervisors as defined in the National Labor Rela-
tions Act, as amended, constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
5. The Board has considered the entire record in
the case, including the Hearing Officer's report and
the exceptions and brief, and, contrary to the Hearing
Officer, sustains the Employer's Objection 2.2
Contrary to the implication contained in the
Hearing Officer's report, the Board's Milchem deci-
sion (170 NLRB No. 46) was not meant to be limited
to situations where a party's conversations with voters
in the polling place were shown to have constituted
electioneering. On the contrary, the Board stated in
Milchem that, thenceforth, there would be a "strict
rule against such conduct, without inquiry into the
nature of the conversations." As the Board pointed
out, the final minutes before an employee casts his
vote should be his own, as free from interference as
possible. Moreover, the Board observed that:
the difficulties of recapturing with any precision
the nature of the remarks made in the charged
atmosphere of a polling place are self-evident, and
to require an examination into the substance and
effect of the conversations seems unduly burden-
some and, in this situation, unnecessary . . . a
blanket prohibition against such conversations is
easily understood and simply applied.
The Board concluded that "the rule contemplates that
conversations between a party and voters while the
latter are in a polling area waiting to vote will
normally, upon the filing of proper objections, be
deemed prejudicial without investigation into the
content of the remarks," observing that parties
should, to assure complete compliance with the rule,
instruct their agents "simply to refrain from convers-
ing with prospective voters in the polling area."
In the present case, according to testimony credited
that Objections I and 3 be overruled raise no substantial issues of law or
fact which would warrant reversal of the Hearing Officer
187 NLRB No. 11
MODERN HARD CHROME SERVICE CO.
by the Hearing Officer, Petitioner's observer, Gal-
braith, continued to converse with employees who
approached the voting table-"beyond a mere
hello"--despite the fact he and the other observers
had been specifically admonished by the Board agent
for having engaged in such conversations. Thereafter,
when employee Kilby came to vote, and before he
cast his ballot, Galbraith remarked to Kilby that the
weather was "warm," whereupon Kilby agreed and
commented that he would enjoy a beer, if only he had
some money. Observer Galbraith stood up, took
several bills from his pocket, and offered Kilby a loan.
The loan was rejected by Kilby on grounds he hadjust
been kidding.
To be sure, as the Board stated in Milchem, a chance
"hello" will not suffice to set aside an election. But the
conduct of Petitioner's observer was repeated, despite
admonition, and culminated in his gratuitous offer of
a loan to a prospective voter. Though perhaps not a
crucial fact, a single vote was determinative in this
3 In older to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Company,
394 U S 759 Accordingly, it is hereby directed that an election eligibility
list, containing the names and addresses of all the eligible voters, must be
83
election; had Petitioner received one fewer vote, a
runoff would have been required.
The Board jealously guards its election process as
the keystone of the Act. Observers are supposed to
watch the ballot box, identify and check off voters on
the eligibility list, and perform other services as
requested by the Board agent. Their functions do not
include offering small loans to prospective voters as
they stand in line.
Accordingly, as we sustain Objection 2. we shall set
the election aside and direct that a second election be
conducted.
ORDER
It is hereby ordered that the election conducted on
May 11, 1970, be, and it hereby is, set aside.
[Direction of second election3 omitted from
publication.]
filed by the Employer with the Regional Director for Region 7 within 7
days after the date of issuance of the Notice of Second Election by the
Regional Director The Regional Director shall make the list available to
all parties to the election No extension of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances
Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed