A. Brandt Co., Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1972

199 N.L.R.B. 459 (N.L.R.B. 1972)

A. BRANDT COMPANY 459
A. Brandt Company , Inc. and Chauffeurs, Teamsters
and Helpers Local Union No. 47, affiliated with In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Cross-Peti-
tioner. Case 16-RC-5850
September 29, 1972
DECISION ON REVIEW AND
CERTIFICATION OF REPRESENTATIVE
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On April 21, 1972, the Regional Director for Re-
gion 16 issued a Second Supplemental Decision and
Order in the above-entitled proceeding, in which he
bypassed Objections 1 and 2, sustained Objection 3,
set aside the election hereinbefore conducted, and di-
rected that a second election be held.' Thereafter, in
accordance with the National Labor Relations Board
Rules and Regulations, the Cross-Petitioner filed a
timely request for review of the Regional Director's
Second Supplemental Decision and Order on the
ground that in sustaining Objection 3 he departed
from precedent; and the Employer filed a request for
review on the ground that he should have ruled on
Objections 1 and 2.
By telegraphic order dated May 19, 1972, the
National Labor Relations Board granted the Cross-
Petitioner's request for review and remanded the case
to the Regional Director, directing that he investigate
and rule on Objections I and 2.
On June 15, 1972, the Regional Director issued
a Third Supplemental Decision in which he overruled
Objections 1 and 2. Thereafter, the Employer filed a
timely request for review thereof on the grounds that
in overruling the objections the Regional Director de-
parted from precedent.
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 au-
thority in this proceeding to a three-member panel.
The Board concluded that the Employer's re-
quest for review of the Regional Director's Third Sup-
plemental Decision raises no substantial issues
warranting review. It is, accordingly, hereby denied.2
The Board has considered the entire record in this
case with respect to the issues relating to Objection 3,
i The tally of ballots for the election held on March 14 , 1972, showed that
of approximately 536 eligible voters, 522 cast valid ballots , of which 304 were
for and 193 against the Cross-Petitioner There were 2 void ballots and 25
challenged ballots, a number insufficient to affect the results
2 Chairman Miller dissented from denial of review of Objection 2, involv-
ing the injection of racial appeals during the election campaign , and accord-
mgly dissents from the certification of the Petitioner . However he joins his
colleagues in overruling Objection 3.
under review, and makes the following findings:
Objection 3 alleged that the Cross-Petitioner in-
terfered with the election by reproducing the Regional
Director's Supplemental Decision and Order and
publishing untruthful notations thereon creating the
impression that the Board favored and supported the
Cross-Petitioner.
The Regional Director found that Joe Allgood,
an organizer for the Cross-Petitioner, a week before
the election distributed to employees a reproduction
of the Regional Director's Supplemental Decision
and Order containing considerable underlining and
marginal comment .3 With respect to the comment on
page 3 of the attached reproduction, that "The Gov-
ernment would not have ordered this election if it had
not been for the Teamsters Union! Vote Yes," the
Regional Director stated that it was susceptible of
various interpretations, one of which was that the
"Government" is for "the Teamsters Union"; and he
concluded that the insertion of such partisan message
on a reproduction of his decision was analogous to the
use of a portion of the Board's official notice of elec-
tion for partisan messages, found objectionable in
Rebmar, Inc., 173 NLRB 1434.
The Cross-Petitioner contends that Rebmar is
distinguishable as here, unlike the situation in that
case, the underlinings of portions of the reproduced
decision and the marginal comments were obviously
not part of the decision itself. We agree.
In our opinion, the marginal comments and un-
derlinings on the copy of the Regional Director's Sup-
plemental Decision distributed by Allgood could not
reasonably be construed by the employees as part of
the Regional Director's decision but were readily
identifiable by them as partisan comment emanating
from the Cross-Petitioner as to the import of that
decision in relation to the election campaign. More-
over, to the extent that the Cross-Petitioner's com-
ments may have misrepresented the facts, inasmuch
as the document was circulated among employees a
week before the election, the Employer had ample
time to respond. In the circumstances, we conclude
that the disputed propaganda did not impair the vot-
ers' free choice in the election.4 Objection 3 is there-
fore hereby overruled.
Accordingly, as the Employer's objections have
3 Attached hereto as an Appendix is a copy of the Regional Director's
Supplemental , Decision indicating the parts which were underlined (herein
italicized) in the copies distributed by Allgood The text of the marginal
comments , although typewritten and bracketed in the attached copy for ease
of reproduction herein, was clearly discernible as hand printed in the copies
distributed Also, other aspects of the marginal comments , such as the vana-
tions in the size and position of the lettered comments , and the configuration
of the arrows leading from some of the comments to underlined portions of
the text of the decision , made it clear that they were added comment and not
a part of the decision itself.
° See Hollywood Ceramics Company, Inc, 140 NLRB 221; see also Heintz
Division, Kelsey-Hayes Company, 126 NLRB 151
199 NLRB No. 55
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been overruled, and as the tally of ballots shows that
the Cross-Petitioner has received a majority of the
valid ballots cast in the election, we shall certify it as
the exclusive bargaining representative of the employ-
ees in the appropriate unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Chauffeurs, Teamsters and
Helpers Local Union No. 47, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, and that,
pursuant to Section 9(a) of the National Labor Rela-
tions Act, as amended, the said labor organization is
the exclusive representative of all the employees in the
unit found appropriate herein for the purposes of col-
lective bargaining in respect to rates of pay, wages,
hours of employment, or other conditions of employ-
ment.
APPENDIX
[HERE IS THE TRUTH!]
[Decision and Order sent to the Union and the
Company. This proves the Company and George
Brandt and Bill Burke have been lying to the employ-
ees.]
SUPPLEMENTAL DECISION AND ORDER
On January 31, 1972 , a Decision and Direction of
Election was issued in the above matter. Thereafter the
Employer requested an investigation between the rela-
tionship of the Petitioner, International Skilled Workers
of America, herein called Skilled Workers, and Chauf-
feurs, Teamsters and Helpers Local Union No. 47, affil-
iated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called Cross Petitioner, [Company stops the
employees election .] alleging in its letters of February
12 and 15 , 1972, to the Regional Director that there
was collusion and fraud being practiced between the
Skilled Workers and the Cross Petitioner . An investi-
gation was made. The Skilled Workers requested per-
mission to withdraw from the ballot which request we
are granting in this Order along with a dismissal of
their name from future proceedings . The Skilled
Workers openly announced [Proves Union has been
truthful.] their support for the Cross Petitioner. The
parties were then advised by a letter from the Region-
al Director on February 25, 1972 , that the Intervenor
had sought to become a Cross Petitioner and was
being required to make a substantial showing of inter-
est of 30% in order to qualify as a cross petitioner. We
have made an investigation of the showing of interest
and find that the Cross Petitioner has made an
adequate showing of interest. By letter of February 29,
1972, the Employer objected to our granting any addi-
tional time to the Cross [Proves Company has been
lying.] Petitioner for the making of a showing of interest
and to any cards improperly dated and refers to certain
manual sections pertaining to showing of interest. We
have now conducted our investigation to a point that we
are satisfied that there is no collusion or fraud on [Proves
Company has been lying.] the part of the Cross Petition-
er from appearing on the Ballot. We are also satisfied
that the Cross Petitioner has made an adequate show-
ing of interest which matter is not a subject of litiga-
tion in this proceeding. O. D. Jennings & Company, 68
NLRB 516. The results of the Regional Director's
investigation into the allegations of fraud will be an-
swered administratively by letter. We are satisfied
that the Cross Petitioner's showing of interest is sub-
stantial and is timely.
Therefore, it is hereby ordered that International
Skilled Workers of America be, and the same hereby
is, dismissed from these proceedings with prejudice to
said International Skilled Workers of America filing
a new petition within six months unless good cause is
shown why a new petition filed prior to the expiration
of such period should be entertained; and it is further
ordered that the name of International Skilled Work-
ers of America be, and the same hereby is, removed
from the ballot.
It is hereby ordered that the Cross Petitioner,
Chauffeurs, Teamsters and Helpers Local Union No.
47, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America be, and the same hereby is, accepted as the
Cross Petitioner in these proceedings.
It is finally ordered that the Decision and Direc-
tion of Election issued on January 31, 1972, be, and
the same hereby is, implemented in all respects except
as to the dismissal, amendment and changes made
herein; that the election will be conducted by the
undersigned Regional Director among the employees
in the unit found appropriate in the time and place set
forth in the notice of election to be issued subsequent-
ly, subject to the Board's Rules and Regulations; and
that the Employer's motions to dismiss the petition
be, and the same hereby are, denied.
[The Government would not have ordered this
election if it had not been for the TEAMSTERS UN-
ION!]
[VOTE YES]