Tokheim Corp.

National Labor Relations Board - Board Decisions

Feb 28, 1968

169 N.L.R.B. 1111 (N.L.R.B. 1968)

RETT ELECTRONICS, INC. 1111
Rett Electronics , Inc., a Wholly -Owned Subsidiary of
Tokheim Corporation and United Steelworkers of
America, AFL-CIO, Petitioner. Case 7-RC-8093
February 28, 1968
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING, JENKINS, AND ZAGORIA
Pursuant to a Stipulation for Certification Upon
Consent Election, an election by secret ballot was
conducted on July 19, 1967, under the direction
and supervision of the Regional Director for Region
7, among the employees in the stipulated unit. At
the conclusion of the election, the parites were
furnished a tally of ballots which showed that 61
ballots were cast for, and 30 against, the Petitioner,
with 1 void and 10 challenged ballots. The chal-
lenged ballots were insufficient in number to affect
the results of the election. Thereafter, the Employer
filed timely objections to conduct affecting the
results of the election.
In accordance with National Labor Relations
Board Rules and Regulations, the Regional
Director conducted an investigation, and on August
17, 1967, issued, and duly served on the parties, his
Report and Recommendation on Objections
[attached hereto], in which he recommended that
the Employer's objections be overruled and that the
Petitioner be certified. Thereafter, the Employer
filed timely exceptions limited to the Regional
Director's recommendations with respect to Objec-
tion 1.
Upon the entire record in this case, the National
Labor Relations Board finds:
1. The Employer is engaged in commerce within
the meaning of the National Labor Relations Act,
as amended, 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 certain employees of
the Employer within the meaning of Section 9(c)(1)
and Section 2(6) and (7) of the Act.
4. The parties agreed, and we find, that the fol-
lowing employees of the Employer constitute a unit
appropriate for the purposes of collective bargain-
ing within the meaning'of Section 9(b) of the Act:
All production and maintenance employees at
the Employer's Warren, Michigan, plant, in-
cluding plant clerical employees, but excluding
office clerical employees, professional em-
ployees, plant guards, and supervisors as
defined in the Act.
5. The Board has considered the objections, the
Regional Director's Report, and the Employer's ex-
ceptions thereto, and hereby adopts the Regional
Director's findings, conclusions, and recommenda-
tions.'
As the Petitioner has received a majority of the
ballots cast in the election, we shall certify the Peti-
tioner as the collective-bargaining representative in
the unit hereinabove found appropriate.
CERTIFICATION OF REPRESENTATIVE
IT IS HEREBY CERTIFIED that United Steelwork-
ers of America, AFL-CIO, has been designated
and selected by a majority of the employees of the
Employer in the appropriate unit as their represen-
tative for the purposes of collective bargaining, and
that , pursuant to Section 9(a) of the Act, the said
labor organization is the exclusive representative of
all the employees in such unit for the purposes of
collective bargaining with respect to rates of pay,
wages, hours of employment , and other conditions
of employment.
REPORT AND RECOMMENDATION ON
OBJECTIONS
Pursuant to a Stipulation for Certification Upon
Consent Election ' executed by the parties and ap-
proved by the Regional Director for Region 7 of the
National Labor Relations Board on June 20, 1967,
an election by secret ballot was conducted in this
case on July 19, 1967, among the Employer's em-
ployees in the following appropriate unit:
All production and maintenance employees
including plant clericals but excluding office
clerical employees , professional employees,
plant guards and supervisors as defined in the
Act.
The payroll period for eligibility purposes was the
week ending June 18,1967.
At the close of the election , a tally of ballots,
showing the following results, was issued and cop-
ies were duly served upon the parties in ac-
cordance with the current Rules and Regulations of
the Board:
i While we do not agree with the Regional Director's subsidiary finding
that it is not clear from the Petitioner's leaflet, attached as Exhibit "A" to
the Regional Director's Report, what is meant by the "X" in the "YES"
square , we agree with his conclusions , on all the evidence , that the leaflet
did not contain a reproduction of an official Board ballot and did not con-
vey to the employees the impression that this Agency recommended any
particular choice Cf Allied Electric Products, Inc, 109 NLRB 1270 We
therefore find no merit in the Employer 's exceptions to the Regional
Director's recommendations with respect to the Employer's Objection I
In the absence of any exception thereto , we adopt pro forma the Re-
gional Director's recommendation that the Employer's Objection 2 be
overruled
i Petition was filed June 9, 1967
169 NLRB No. 168
1112 DECISIONS OF NATIONALLABOR RELATIONS BOARD
Approximate number of eligible voters ....114
Void ballots .. ..... 1
Votes cast for Union and Petitioner .. .... 61
Votes cast against participating labor
organization . . . . . .. . . . ... 30
Valid votes counted .............. 91
Challenged ballots .. 9
Valid votes counted plus challenged ballots. .100
I. THE OBJECTIONS
2
On July 26, 1967, the Employer timely filed ob-
jections to conduct affecting the results of the elec-
tion and to conduct of the election. A copy thereof
was simultaneously served upon the Petitioner. The
Employer's objections are as follows:
1. Shortly prior to the election conducted by
the Board on July 19, 1967, the United Steel
Workers of America, AFL-CIO, by and
through its employees, representatives and
agents , distrubuted at Warren, Michigan to the
employees of said Rett Electronics, Inc. in the
unit appropriate for purposes of collective bar-
gaining , reproductions of the National Labor
Relations Board official secret ballot.which had
been altered by said labor organization and its
representatives by placing an "X" in the
"YES" square upon such ballot, all in such a
manner calculated to give the impression to
said employees that the National Labor Rela-
tions Board was endorsing a "YES" vote for
said labor organization as collective bargaining
representative in the election to be held on July
19, 1967. Such reproduction of the official bal-
lot of the National Labor Relations Board, as
so marked and defaced, was incorporated into
and as a part of, a handbill prepared and dis-
tributed to such employees prior to said elec-
tion by said labor organization along with a pic-
torial representation made a part of such hand-
bill by which said labor organization
represented to employees of said employer that
the United States Government supported the
United Steel Workers of America as the choice
of collective bargaining representative for said
employees of Rett Electronics, Inc. Said con-
duct of said labor organization and its em-
ployees, agents and representatives prevented
a fair election and interfered with the freedom
of choice of employees intended by the Na-
tional Labor Relations Act, as amended, and as
revealed in the Board's decisions, rules and
regulations , and election processes. Allied
Electric Products, Inc., 109 NLRB 1270;
Memphis Furniture Manufacturing Company,
111 NLRB 204; Hughes Tool Company, 119
NLRB 739; United States Gypsum Co.
(1959), 124 NLRB 1026. The ruling of Allied
Electric Products, Inc. applicable in this
matter, and followed by the Board to date, was
recently affirmed in Mallory Capacitor Co.,
161 NLRB 1510.
2. On Wednesday, July 19, 1967, the
representative of the National Labor Relations
Board conducting the election among the em-
ployees in the stipulated appropriate unit for
purposes of collective bargaining denied to cer-
tain employees within said appropriate bargain-
ing unit the right to vote in such election, and
denied such employees the right to cast even a
challenged ballot, when such employees ar-
rived at the polling place shortly after 4:50 p.m.
on such date, even though said employees were
not scheduled to work during such shift and ac-
cordingly had to come from their home to
polling place at the company plant in the worst
storm that has hit the northern Detroit area in
many months and which rendered automobile
travel impossible in many areas and ap-
proaches to the company plant and caused
great delay of all transportation facilities. Yet,
the said agent of the National Labor Relations
Board, after denying the right to vote to said
employees, allowed another employee who
later presented herself to vote to cast her ballot
as a challenged ballot at the later hour of 5:25
p.m. on July 19, 1967, knowing that such em-
ployee desiring to vote at such later hour was
the chosen representative of the petitioning
labor organization, the United Steel Workers
of America. Said conduct of said agent and
representative of the National Labor Relations
Board prevented a fair election, was in viola-
tion of the Board's rules and regulations and
constituted a denial of the Board's duty under
the National Labor Relations Act, as amended,
to conduct its election in a fair and impartial
manner.
II. THE FINDINGS
A. Objection 1
The investigation revealed that on or about June
30, 1967, Petitioner mailed to the approximately
116 unit employees the pamphlet in issue ; a leaflet
entitled "Uncle Sam Guarantees Your Right to a
Secret Ballot ," a copy of which is attached hereto
as Exhibit A. This pamphlet was itself attached to
a letter addressed to the employees from Petitioner.
A copy thereof is attached hereto as Exhibit B.
2 In fact, 10 challenged ballots were cast. Accordingly, the tally of bal-
lots is corrected to show that 10 rather than 9 challenged votes were cast,
and that valid votes plus challenged ballots were 101 rather then 100.
RETT ELECTRONICS, INC. 1113
The leaflet describes pictorially in 10 phases, the
mechanics of a Board-conducted election. Included
in this pictorialization is a representation of a Board
ballot which is marked "X" in the "YES" box. The
representation of the ballot is about 2-1/8 by 1-1/2
inches in size. A sample copy of the ballot used in
the election in the instant case is attached hereto as
Exhibit C.
The Board has long held that it would "not permit
the reproduction of any document purporting to be
a copy of the Board's official ballot, other than one
completely unaltered in form and content and
clearly marked sample on its face. ..."Allied Elec-
tric Products, Inc., 109 NLRB 1270, 1272. Exact
reproductions are not necessary in order to collide
with this rule; a reproduction that is part of a
pamphlet or flyer has been held to constitute
reproduction. Superior Knitting Corporation, 112
NLRB 984; Phelps-Dodge Copper Products Corp.,
11 I NLRB 950; Memphis Furniture Manufactur-
ing Company, 111 NLRB 204; Tube Reducing
Corp., 110 NLRB 1080. The purpose of the rule is
to prevent participants in a Board election from sug-
gesting "either directly or indirectly to the voters
that this Government Agency endorses a particular
choice." Allied Electric Products, Inc., supra at
1272.
Applying the standards of Allied Electric
Products, Inc., and related cases, I conclude that
the ballot represented on Exhibit A is not a
"reproduction" of an official Board ballot, and that
it does not convey the impression that this Agency
recommends any particular choice. The reasons for
my conclusion are as follows: The ballot repre-
sented on Exhibit A is in fact much smaller
than the actual ballot, as represented by Exhibit C.
The represented ballot, while setting forth the
legends "United States Government," "National
Labor Relations Board," and "Official Secret Bal-
lot," does not set forth the question that the actual
ballot puts to the voters. Thus, while the "YES"
square is marked, there is nothing on the
represented ballot to suggest what the "X" in the
"YES" square stands for. More importantly, the
"X" in the "YES" square does not convey any im-
pression that the United States Government or this
Agency recommends any particular choice. To
analogize a reproduced election ballot with an "X"
in a square but with the names of the candidates
blank does not in itself convey a message as to cho-
ice. In addition, the entire thrust of the pamphlet is
an educational one. The ballot is but part of a series
of pictures demonstrating the free election process
afforded by the NLRB and cannot be separated
from this overall intent. It stresses the message that
there is to be a secret ballot which is guaranteed by
the Government. Overall no partisanship by the
Board is exhibited. It encourages a free choice.
Nowhere does it identify the name of the Employer.
The identity of Petitioner is limited to one reference
on the reverse side.
In the context of the pamphlet considered as a
whole, I do not believe that a responsibly prudent
industrial employee would get the impression that
the representation of the ballot on Exhibit A sug-
gests that the United States Government or this
Agency urges a vote on behalf of the Petitioner as
collective-bargaining agent. Nor do I believe that
the Board intends that the Allied Electric rule be ap-
plied mechanistically, without consideration of the
effect the allegedly offensive document had on the
exercise by the employees of their free choice when
casting their ballots.
Accordingly, I conclude that Objection 1 is
without merit. I recommend that it be overruled.
B. Objection 2
Investigation reveals that because of a heavy
rainfall, the roads in the vicinity of the Employer's
plant-the locus of the election-were at least par-
tially blocked at the time of the election. The elec-
tion was, however, conducted on schedule. The
polling hours were set to coincide with the breaking
of the two shifts so that employees could vote
shortly before or after they reported to or left work.
The polls closed at the scheduled time.
The objection alleges that shortly thereafter, em-
ployees presented themselves to vote but were de-
nied ballots by the Board agent. The investigation
disclosed a conflict of testimony on whether any
such employees actually presented themselves to
vote after the scheduled close of the polls. If one
were to construe the conflicting evidence in favor
of the objecting party, it would be that only one em-
ployee presented himself to vote after the polls
closed and was denied a ballot. The investigation
further discloses, without credibility conflict, that
the Petitioner's observer failed to cast her ballot
during the schedule voting hours and asked to vote
immediately before the counting of the ballots was
scheduled to take place, well after the closing of the
polls. The Board agent permitted her to cast a chal-
lenged ballot.
The objection can be construed to have two
points. In the first place, it suggests that in view of
the weather and road conditions, employees who
tardily presented themselves to vote should have
been allowed to cast a ballot. Further, it suggests
that permitting the union observer--probably a
union adherent-to vote under challenge after other
employees not closely identified with Petitioner
were denied ballots, showed bias and prevented a
fair election.
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The first argument is without merit because, even
if all eligible voters who had not cast ballots had in
fact voted "NO," their votes would not have been
determinative of the election. Thus, the closing of
the polls on schedule did not result in the disen-
franchisement of a determinative group of eligible
voters only one of whom at best appeared after the
closing of the polls.3
The other aspect of the second objection is also
without merit. Assuming, arguendo, as contended
by the Employer, that the Petitioner's observer was
indeed allowed to cast a challenged nondetermina-
tive ballot after this privilege had been denied to
another employee who sought to vote before the ob-
server did, but after the timely closing of the polls,
these alleged events admittedly must have taken
place after the closing of the polls. Accordingly,
they could not conceivably have affected the free
atmosphere and the results of the election.
Accordingly, I conclude that Objection 2 is
without merit and recommend that it be overruled.
III. RECOMMENDATION
On the basis of the foregoing, I am of the opinion
that the objections, viewed singly or collectively, do
not raise any material or substantial issues of fact or
law concerning the conduct of the election or the
results thereof. Accordingly, it is recommended to
the Board that these objections be overruled in their
entirety. It is further recommended, inasmuch as a
majority of the valid ballots have been cast for the
Petitioner, that the Board issue a Certification of
Representative to that effect.
' Glauber Waterworks, 112 NLRB 1462.
You fold your ballot - no one can see how it is marked.
The Government man does his counting as union and
company representatives observe. The Government
man in three out of four cases- announces "Yes"
vote has won and seals ballots which he keeps in his
possession.
Into a locked ballot box, which no one but the Government
agentcan open , you drop your folded ballot
Vol[ VES
After the polls are closed , the Government man emp'r',as
the ballot box on the table and counting commences.
Vote for...
UNITED STEELWORKERS 01 AMERICA
Wade Sam
OF uaza,cteed
YOUR RYGHT TO A
Secret 'allot
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Exhibit A - Continued
I
I
j
re
RETT ELECTRONICS, INC. 1117
Exhibit B
UNITED STEELWORKERS OF AMERICA
DISTRICT 29 BULLETIN
Mailed this date to 116 employees
June 30,1967
TO ALL RETT ELECTRONICS EM-
PLOYEES:
Over 1 ,200,000 Members of the United Steel-
workers of America , AFL-CIO stand ready to
Welcome YOU in their Union.
YOURS IN VICTORY....
Edward J. McNamara
Organizing Director
John Locklear
Mickey Yow
Eugene Modrycki
Organizers
On WEDNESDAY , JULY 19, 1967 from
3:45 P.M . to 4:50 P . M. YOU will be Voting
for YOURSELF when you Vote for the
United Steelworkers of America , AFL-CIO.
You are an eligible Voter in this Election. Your
Vote may well decide Your Future-no one
will ever know whether you voted for or
against a Union. Your fellow workers support-
ing the United Steelworkers of America,
AFL-CIO are hopeful you will JOIN WITH
THEM AND VOTE UNION.
You will have a chance on July 19, 1967 to
cover your Working Conditions, Wages, In-
surance, Pensions, Vacations, Fringe Benefits
etc.--in a Contract negotiated by YOU with
the assistance from the International
Representative.
The National Labor Relations Board will con-
duct YOUR ELECTION and any questions
regarding such Election should be directed to
the NLRB Agent assigned.
WE BUILD WITH SERVICE
Exhibit C
UNITED STATES OF AMERICA
Nati on al Labo r Relations Board
C-L"`F AL SEC' 7T B A I LOOT
FOR CERTAIN EMPLOYEES OF
RE3T Et .ECTh CS , TIC., A wec LT-cJAyO SUBSIDIARY 07 Q DI ^SSQ,
WARM . HISSXG b
_
Dc you wish to be represented to, purposes of collective biuiiiunmg by
ma= SS;na^ OF ANEUCF , An-CIO'
r5 -, rr '°`"
MARK AN "X' IN THE SQUARE OF YOUR CHOICE _
c NO
OC N^' sICN THIS RALOT Fold and drop m baltok box
S r ESo' th s bo1rp -Mum it to the Board Agers to- a ne.- pie