General Dynamics Corp.

National Labor Relations Board - Board Decisions

Mar 31, 1970

181 N.L.R.B. 874 (N.L.R.B. 1970)

874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Dynamics Corporation and International
Union of Electrical , Radio & Machine Workers,
AFL-CIO-CLC, Petitioner.
General Dynamics Corporation and International
Association of Machinists and Aerospace Workers,
AFL-CIO, Petitioner . Cases 23-RC-3309 and
23-RC-3314
March 31, 1970
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS FANNING, BROWN, AND JENKINS
Pursuant to a Stipulation for Certification upon
Consent Election approved June 23, 1969, an
election by secret ballot was conducted on July 11,
1969, under the direction and supervision of the
Regional Director for Region 23, among the
employees in the stipulated unit. At the conclusion
of the election, the parties were furnished with a
tally of ballots which showed that of approximately
137 eligible voters, 115 cast valid ballots, of which
60 were cast for the International Union of
Electrical, Radio & Machine Workers,
AFL-CIO-CLC, 33 were cast for the International
Association of Machinists and Aerospace Workers,
AFL-CIO, and 22 were cast against the Petitioners
There was 1 challenged ballot and there were 2 void
ballots. The challenged ballot was not sufficient to
affect the results of the election. Thereafter, the
Petitioner, International Association of Machinists
and Aerospace Workers, AFL-CIO, filed timely
Objections to Conduct Affecting the Results of the
Election, and the Employer filed timely Objections
to the Conduct of the Election and to Conduct
Affecting the Results of the Election.
Thereafter, the Regional Director issued an Order
Directing Hearing and Notice, in which a hearing
was directed to be held before a duly designated
Hearing Officer. The Hearing Officer was directed
to prepare and cause to be served upon the parties a
report containing resolutions of credibility of
witnesses, findings of fact and a recommendation to
the Board as to the disposition of issues raised by
the Objections
Pursuant to the Notice of Hearing a hearing was
held on September 9, 10, and 11, 1969, before
Donald H. Hicks, Hearing Officer, at which all
,parties to the proceeding appeared and were
afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce
evidence bearing on the issues October 15, 1969, the
Hearing Officer issued and served upon the parties
his Report and Recommendations on Objections to
Conduct of Election, in which he concluded the
objections were without merit and recommended
that they be overruled in their entirety. Thereafter,
the Employer, and the Petitioner, International
Association of Machinists and Aerospace Workers,
AFL-CIO-CLC, filed exceptions to the Hearing
Officer's Report and Recommendations and the
Petitioner, International Union of Electrical, Radio
and Machine Workers, AFL-CIO filed an answering
brief in support of the Hearing Officer's Report and
Recommendations.
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.
The Board has reviewed the rulings made by the
Hearing Officer at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Hearing Officer's Report, the exceptions, the briefs,
and the entire record in the case, and hereby 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, International Union of
Electrical, Radio & Machine Workers,
AFL-CIO-CLC (hereinafter called IUE) and the
Petitioner, International Association of Machinists
and Aerospace Workers, AFL-CIO, (hereinafter
called IAM & AW) are labor organizations
claiming to represent certain employees of the
Employer.
3. A question affecting commerce exists
concerning the representation of 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,
including wood working employees, shipping and
receiving, plant clerical employees, and
quality-control inspectors, employed at the
Employer's San Antonio, Texas, facility, but
excluding all office clerical, professional
employees, guards, watchmen, and supervisors as
defined in the Act, and all other employees.
5. The Hearing Officer recommended, and we
agree, that all of the Objections should be overruled.
However, in so doing, we note that in addition to
the alleged threats of bodily harm and economic
reprisals made in behalf of the IUE, and which are
discussed in the Hearing Officer's Report in
connection with the Employer's Objection 3, one
employee testified that at one IUE organizational
meeting Mendez, International Representative of the
IUE, made a threat with respect to the future job
opportunities of employees who did not join the
Union, in the event there was strike or in the event
they were fired. However, only this employee of the
number who testified extensively before the Hearing
Officer concerning the numerous organizational
meetings, said that Mendez made such a threat, and
we further note that the record does not clearly
181 NLRB No. 142
GENERAL DYNAMICS CORP. 875
establish that the alleged threat was made after the
IUE petition had been filed and thus was made
within the crucial period i In the circumstances, we
shall adopt the Hearing Officer's recommendation
that Objection 3 be overruled in its entirety.
While we also agree with the Hearing Officer that
IAM & AW Observer Chapa's conversations with
employees he escorted to the polling place and his
conversations at the polling place, discussed by the
Hearing Officer in connection with Employer's
Objection 4,1 do not constitute a basis for setting
aside the election, we reach this conclusion for
different reasons than the Hearing Officer. In
Milchem, Inc , 170 NLRB No. 46, we indicated that
conversations between a party and voters in the
polling area would normally be deemed prejudicial
without investigation into the contents of the
remarks. In so deciding we did not intend to exclude
as a basis for setting aside an election, conversations
engaged in by union or management observers. In
the instant case it is obvious that the conversations
which Chapa engaged in went clearly beyond those
which might normally be engaged in by an observer
in fulfilling his observer function, and were of a
magnitude which, in other circumstances, would
require us to set aside the election However, in this
case Chapa was the Observer for the losing
petitioner, the IAM & AW, and under a well
established legal principle we will not permit a
wrongdoer to profit by the illegal act of its agent.
Nor did Chapa's activities in behalf of the IAM &
AW result in such substantial detriment to the other
party to the election, the Employer, that we would
be obligated to set aside the election, for even if all
the IAM & AW votes are considered tainted, the
total of those combined with the votes against both
Unions is less than that received by the Petitioner
IUE. Therefore, Chapa's activities did not affect the
outcome of the election and do not warrant setting
the election aside.3
Accordingly, as we find the objections to be
without merit, and as the Petitioner IUE has
secured a majority of the valid votes cast in the
election, we shall certify it as the
collective-bargaining representative of the employees
in the appropriate unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that International Union of
Electrical , Radio & Machine Workers,
AFL-CIO-CLC, has been designated and selected by
a majority of the employees in the unit found
appropriate as their representative for the purposes
of collective bargaining , and that pursuant to
Section 9(a) of the Act, the said labor organization
is the exclusive bargaining agent for all such
employees for the purposes of collective bargaining
with respect to rates of pay, wages, hours of
employment, and other terms and conditions of
employment
APPENDIX A
(Excerpt from Hearing Officer's Report)
Chapa, an observer for the IAM, testified that he
was one of three observers who went to various
departments during the course of the election to
release employees to vote. Chapa testified that,
while escorting the voters to the polls, he separated
himself from the two other observers -- Ronnie
Wooton and Joel Mathis -- and campaigned on
behalf of the IAM & AW. Chapa testified that he
told several employees to vote for the IAM & AW.
Wooton and Mathis both testified that Chapa did
not always remain with them while escorting voters
to the polls and that they observed him talking to
the employees Neither Wooton nor Mathis heard
the contents of Chapa's statements to the
employees. No other witness testified as to the
content of Chapa's statements to these employees
Chapa also testified on direct that he stationed
himself between the observers' table and the voting
booth and on several occasions, in response to
questions from voters, explained to the voters where
to place their mark on the ballot. Chapa stated that
he engaged in this conduct for quite a while until the
Board agent conducting the election, Jere Kemper,
instructed him to refer all future voter questions to
him. Upon further questioning by the Employer
representative, Chapa testified that the voters were
confused as to the position of the parties on the
ballot and were asking him the location of the IAM
& AW or the IUE.1e Chapa testified that he would
indicate the first position (left side) on the ballot for
the IAM & AW and when asked to indicate the
position of the IUE would incorrectly point to the
first position 19 The evidence clearly establishes that
on one occasion, Board Agent Kemper, upon the
request of Ronnie Wooton, observer for the
Employer, instructed Chapa to refrain from
engaging in any conversation with the voters and to
refer all questions to him. However, Chapa's
testimony regarding the nature of his conversations
with the voters is uncorroborated
Board Exhibit 2 is an affidavit dated August 4,
1969, by Artemio M. Chapa given to Board Agent
Kemper in connection with an investigation of the
objections conducted under the direction of the
Regional Director, National Labor Relations Board,
Region 23 The material portion of the affidavit is
as follows:
/deal Electric and Manufacturing Company, 134 NLRB 1275
The relevant portion of the Hearing Officer' s Report is attached hereto,
as Appendix A
Member Brown relies upon the reasons given by the Hearing Officer for
finding that Chapa' s conduct does not warrant setting the election aside
"Chapa testified that no employee inquired about the location of
"neither "
"The positions on the ballot were as follows First - IAM & AW,
Second - Neither, Third - IUE
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the election held for the employees of General
Dynamics on July 11, 1969, I acted as one of the
observers for the International Association of
Machinists and Aerospace Workers. Part of the
voting time I was at the voting area with the
other five observers and the NLRB Board Agent
and part of the time I accompanied one observer
of the Employer and one of the IUE in releasing
the departments to vote. At no time during the
election did I hear any observer tell any voter how
to vote, nor did I tell any voter how to vote. I did
hear and observe Mr. Kemper, the NLRB agent
explain all positions on the ballot to the voters
who could not read.
Chapa testified that he read the above-mentioned
affidavit and swore, under oath, that it was true and
correct.
Chapa's disavowal of that portion of his affidavit
set out above creates a serious question as to his
credibility. Chapa, in his affidavit, unequivocally
denies that he told any voter how to vote20 during
the election. Yet his uncorroborated record
testimony reflects that he engaged in campaigning
for the IAM & AW while en route to the polls with
the voters released from the various departments
and incorrectly identified the position of the IUE on
the ballot.
Based upon my observations of Chapa as he
testified and his diametrically opposed statements, I
am unable to credit his uncorroborated testimony
regarding the content of his conversations with
voters while escorting them to the polls and while in
the polling area. I am unable to accept his
explanation for such alleged conduct not appearing
in his affidavit which was furnished 24 days after the
election and note that, although he asserted in
general terms having related his election conduct to
the Board agent taking the affidavit, when pressed
for a specific response to a question by the
undersigned Hearing Officer regarding whether he
told the Board agent he had engaged in such
conduct, he could state no more than, "I believe I
did" tell him.
The Employer cites Milchem, Inc, 170 NLRB
No. 46, and Star Expansion Industries Corporation,
170 NLRB No. 47, in support of its position that
the election should be set aside because the
observers for both petitioners engaged in
electioneering in the polling area. In Milchem, the
Board re-evaluated its standards of dealing with the
effect of conversations between parties to the
election and employees preparing to vote and
established the rule "that conversations between a
party and voters while the latter are in the polling
area waiting to vote will normally, upon the finding
of proper objections, be deemed prejudicial without
investigation into the content of the remarks." The
Board went on to state that "This does not mean
that any chance isolated, innocuous comment or
inquiry by an Employer or Union official to a voter
will necessarily void the election." Star Expansion,
unlike Milchem, involved a situation where there
was actual electioneering by one of the parties in the
polling area The credible evidence in the instant
case does not support a finding of electioneering by
any of the parties The evidence does establish that
Chapa and other observers had conversation with
various voters. Although the observers are, in effect,
dual agents as agents for their respective parties and
for the Board, it would not be reasonable to assume
that Milchem was designed to apply to election
observers in view of the fact that it is recognized
that they are required, in the course of their duties
as observers, to engage in conversations with the
voters. Having found that there was no
electioneering en route to or in the polling area and
having concluded that Milchem does not forbid
election observers from engaging in conversations
with the voters in connection with their official
duties, I find this objection to be without merit
'"In response to a question by the Hearing Officer, Chapa clearly
established that how to vote to him was synonymous with telling an
employee who to vote for rather than the mechanics of voting
Accordingly, it would follow that the reference to how to vote in his
affidavit would also have a like meaning