McGraw-Edison Co.

National Labor Relations Board - Board Decisions

Jul 28, 1970

184 N.L.R.B. 691 (N.L.R.B. 1970)

NATIONAL ELECTRIC COIL DIV.
National Electric Coil Div. McGraw-Edison Com-
pany and International Union of Electrical, Radio
and Machine Workers, AFL-CIO-CLC and its
Local 745, Petitioner. Case 9-RC-8361
July 28, 1970
DECISION AND ORDER REMANDING
PROCEEDING TO REGIONAL DIRECTOR
By MEMBERS FANNING, MCCULLOCH, AND BROWN
Pursuant to a Stipulation for Certification Upon
Consent Election approved by the Regional
Director on January 16, 1970, an election was con-
ducted in the above-entitled proceeding on January
28, 1970, under the direction and supervision of
the Regional Director for Region 9.
Upon the conclusion of the election, a tally of
ballots was furnished the parties which shows that
of approximately 25 eligible voters, 25 cast ballots,
of which 7 ballots were cast for the Petitioner, 16
ballots were cast against the Petitioner, and 2 bal-
lots were challenged. The challenged ballots are not
sufficient in number to affect the results of the elec-
tion.
On February 3, 1970, the Petitioner filed timely
objections to conduct affecting the results of the
election. The Regional Director caused an in-
vestigation of the objections to be made and
thereafter, on March 19, 1970, issued and served
on the parties his Report on Objections, in which
he recommended that the objections be overruled
in their entirety and an appropriate certification be
issued. Thereafter, on March 30, 1970, the Peti-
tioner filed timely exceptions to the Regional
Director's report and a brief in support thereof,
submitting that the Regional Director erred in
recommending that its Objections 4 and 5 be over-
ruled and asking that the Board set aside the first
election and direct a second election.
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
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
purposes of the Act to assert jurisdiction herein.
' The Petitioner withdrew its Objections 2 and 3 poor to the issuance of
the Regional Director 's report
2 In Objection 4 the Petitioner alleged that "By the aforementioned con-
duct (Objections I through 31 and by other acts and conduct , the Em-
184 NLRB No. 95
427-835 0 - 74 - 45
691
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 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 fol-
lowing employees constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All plant clerical employees excluding all
production and maintenance employees,
truckdrivers, office clerical employees, en-
gineering employees, watchmen, foremen,
assistant foremen and professional employees,
guards and supervisors as defined in the Act
and all other employees.
5. The Board has considered the Regional
Director's report, the exceptions and brief, and the
entire record in this case, and finds as follows:
In the absence of exceptions, we adopt the Re-
gional Director's recommendation that the Peti-
tioner's Objection 1 be overruled.' Similarly, as to
Objection 5, we find, in agreement with the Re-
gional Director, that the news article appearing in
the Columbus Dispatch on January 27, 1970, was
not attributable to the Employer or its agents, did
not threaten the employees that the Employer
would cause them to lose their jobs if they voted for
the Petitioner, and did not otherwise create such a
general atmosphere of fear, confusion, or reprisal
as to render the conduct of a free election impossi-
ble.
With respect to its Objection 4,2 the Petitioner
contends that the Regional Director erred in failing
to find that an alleged no-solicitation or no-distribu-
tion rule maintained by the Employer during the
preelection period was encompassed within the
scope of the objection, and that it should have been
considered by him as grounds for setting aside the
election. Without deciding whether the Petitioner's
specific objections were sufficiently broad in scope
to include the allegation relied on, we find merit in
the exception to the Regional Director's failure to
consider this allegation as grounds for setting aside
the election.
The record reveals that on January 27, 1970, the
day preceding the election, the Petitioner filed un-
fair labor practice charges with the Regional
Director. During the course of investigation of the
charges evidence was received by the Regional
Director that the Employer had in effect what he
ployer interfered with the election and restrained and coerced employees
in their right to choose a bargaining agent , so as to make a valid election
impossible "
692 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD
described in his report as "an invalid no-solicitation
rule." On March 6, 1970, after the Petitioner had
filed its objections in the instant case, the Employer
entered into a settlement agreement , which was ap-
proved by the Regional Director, in which it agreed
that it would not maintain , give effect to, or enforce
the rule . On March 13, 1970, in submitting
evidence in support of its objections, the Petitioner
contended to the Regional Director that the allega-
tion concerning the invalid no-solicitation rule was
included in its Objection 4. Notwithstanding the
foregoing , the Regional Director found that the
Petitioner failed to offer any evidence in support of
its March 13 contention . He found further that the
investigation failed to disclose evidence that the ex-
istence of the invalid no-solicitation rule in any
manner interfered with or impaired the free choice
of a bargaining representative by the Employer's
employees . We disagree with the Regional
Director's conclusions regarding these matters.
It is the Board's established and longstanding rule
that after an investigation of conduct affecting the
results of an election has commenced "[T)he Re-
gional Director is not required to, nor can he
properly, ignore evidence relevant to the conduct
of the election simply because such conduct was
not specifically alleged in the objections. "3 In the
instant case, whether or not the conduct in question
was specifically alleged , the Regional Director
discovered evidence of the existence of the al-
legedly invalid no-solicitation rule during the
course of investigating a concurrent unfair labor
practice charge, which subsequently became the
subject of a settlement agreement . The Regional
Director having discovered evidence of an unfair
labor practice sufficient to support a settlement
agreement , it was incumbent upon him to consider
whether this evidence was relevant to the conduct
of the election.4
Accordingly, we adopt the Regional Director's
recommendations that Objections 1 and 5 be over-
ruled . As to the allegation concerning the invalid
"no-solicitation" rule, we shall remand the
proceeding to the Regional Director for further
appropriate action consistent herewith.
ORDFR
It is hereby ordered that this case be, and it
hereby is, remanded to the Regional Director for
Region 9 for such further and other proceedings as
he deems warranted in accordance with this Deci-
sion and the Board's Rules and Regulations.
' Thomas Products Co., Division of Thomas Industries , Inc., 169 NLRB
706, and cases cited therein
'See, e g ., Mallory Capacitor Company, 167 NLRB 647, Edmont, Inc,
139 NLRB 1528 , 1529, Marion Mills (Division of Munsingwear , Inc ), 124
NLRB 56,60