Atlantic Mills Servicing Corp. of Cleveland, Inc., et al.

National Labor Relations Board - Board Decisions

Jun 4, 1958

120 N.L.R.B. 1284 (N.L.R.B. 1958)

1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It seems clear on this record that the shift engineers, who rotate
their schedules, are regularly in charge of a shift when working on
the second and third shifts. Because of that fact we find that they
responsibly direct the work of the powerhouse employees and are
supervisors within the meaning of the Act .4
The parties agree that the existing contract unit in which an elec-
tion is sought is appropriate. As this unit was established by collec-
tive bargaining, and is not repugnant to Board policy or so constituted
as to hamper employees in fully exercising rights guaranteed by the
Act, we shall not disturb it.5
Accordingly we find that all electricians, powerhouse and boiler
house employees, and instrument department employees of the Em-
ployer at its Charleston, South Carolina plant, excluding electrician
leadmen and shift engineers, all other production and maintenance
employees, office clerical employees, plant clerical employees, profes-
sional employees, technical employees, guards, watchmen, and super-
visors as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section.
9 (b) of the Act.
[The Board severed the petition from the current proceedings in_
Cases Nos. 11-R-1167 and 11-R-1357.]
[Text of Direction of Election omitted from publication.]
* See Ford Motor Company, 100 NLRB 813, 819 , footnote 15, where shift engineers
responsible to the chief engineer for the operation of the various shifts were excluded
as supervisors ; compare International Plainfield Motor Company, 67 NLRB 92 , 94, where
the three shift engineers in question were held not to be supervisors because one was not
in charge of a shift at the time of hearing , another was in charge only in the absence of
the chief engineer, and the third , although apparently in charge of the night shift, had
never made any recommendation with respect to hire, discharge , or discipline of employees,.
or been told that he had such authority.
6 See H. A. Satin & Company, Inc ., 97 NLRB 1001, 1002 ; see also The Murray Company
of Texas, Inc ., 107 NLRB 1571, 1573.
Atlantic Mills Servicing Corporation of Cleveland, Inc., et al. and"
Retail Store Employees Union Local 880, Retail Clerks Interna-
tional Association , AFL-CIO, Petitioner. Case No. 8-RC-2787.-
June 4, 1958
SECOND SUPPLEMENTAL DECISION AND ORDER
DIRECTING HEARING
Pursuant to a Supplemental Decision, Order and Direction of Sec -
ond Election 1 issued by the Board on July 2, 1957, which order wasp
1 The first election on this petition was conducted on February 8, 1957. Upon objec-
tions filed by the Petitioner, the Board sustained the objections and set the first election
aside because the Employer interfered with that election by calling employees in smalls
120 NLRB No. 164.
ATLANTIC MILLS SERVICING CORPORATION OF CLEVELAND, INC.1285j
amended in several minor particulars on July 29, August 26, and Sep-
tember 6, 1957, an election by secret ballot was conducted on Septem-
ber 11, 1957, under the direction and supervision of the Regional
Director for the Eighth Region among certain employees of the Em-
ployer. Upon the conclusion of the election, the parties were fur-
nished with a tally of ballots which showed that of 73 eligible voters,
65 cast ballots, of which 22 were for, and 37 were against, the Peti-
tioner. Six ballots were challenged, a number insufficient to affect
the results of the election. No void ballots were cast.
On September 18,1957, the Petitioner filed four objections to conduct
affecting the results of the election. Pursuant to the Board's Rules
and Regulations, Series 6, as amended, the Regional Director investi-
gated the objections, and, on January 28, 1958, issued and duly served
upon the parties his report on objections. In his report, the Regional
Director recommended that objections 1, 2, and 4 be overruled. With
respect to objection 3, the Regional Director declined to make a recom-
mendation as to its disposition because of his doubt as to whether the
objection, when filed, contained the degree of specificity required un-
der Section 102.61, Series 6, as amended, of the Board's Rules and the
interpretive decisions. Thereafter, the Employer filed exceptions to
the Regional Director-'s failure to recommend that objection 3 be over-
ruled. The Petitioner filed timely exceptions z to the Regional Direc-
tor's recommendation that objection 4 be overruled and to his failure
to recommend that a hearing be held on the issues raised by his investi-
gation of objection 3. As no exceptions have been taken to the Re-
gional Director's recommendations overruling objections 1 and 2,
they are hereby adopted.
Objection 4
The Petitioner contended that the Employer unfairly influenced
the outcome of the election by distributing a leaflet to the employees a
groups and individually for interviews and urging that they reject the Petitioner, and
by conducting a mock poll of its employees to ascertain their wishes with respect to
unionization.
2 The Employer moved to dismiss the Petitioner 's exceptions on the ground that they
were not filed within the period prescribed by Section 102.61, Series 6, as amended, of
the Board 's Rules and Regulations . That section provides in pertinent part that "Within
10 days from the date of issuance of the report on . . . objections , . . . any party may
file with the Board in Washington , D. C., seven copies of exceptions to such report." The
Employer contends that more than the prescribed 10 days had elapsed because the report
on objections was issued on January 28, 1958, and the Petitioner did not mail its excep-
tions to the Board until February 7, 1958. However , Section 102 .83, Series 6, as
amended, states that "Whenever a party has the right or is required to do some act or
take some proceedings within a prescribed period after service of a notice or other paper
upon him, and the notice or paper is served upon him by mail, 3 days shall be added to
the prescribed period.. . 21 This section also provides that "In computing any period
of time prescribed or allowed by these rules , the day of the act, event , or default after
which the designated period of time begins to run, is not to be included ." Excluding
January 28 , the date on which the report on objections was mailed to the parties, the
Petitioner had until February 10 in which to file its exceptions with the Board. As the
objections were received by the Board on February 10, we find that the exceptions were
timely filed . The Employer 's motion to dismiss is therefore denied.
1286 _ DECISIONS OF NATIONAL LABOR RELATIONS BOARD
week- before the election which purported to link the Petitioner's
international, and by indirection the Petitioner, with certain under-
world characters. The leaflet is largely a collation of newspaper
clippings dealing with accounts of union bribery, violence, and other
revelations arising from recent congressional investigations.
The Board has frequently announced that it will not pass judg-
ment upon campaign propaganda of this sort, absent elements of gross
fraud, coercion, or forgery.' As those elements are not present in this
case, we shall adopt the Regional Director's recommendation that
Objection 4 be overruled.
Objection 3
The Petitioner alleged that the Employer interfered with the elec-
tion by engaging in "widespread interference prior to the election,
including interrogation, implied threats, and sundry other activities
designed to influence the outcome of the election, all of which will be
more clearly revealed upon full investigation." [Emphasis supplied.]
In the course of the Regional Director's investigation of this Objection,
the Petitioner submitted an affidavit signed by an employee named
Evanoff who averred that she had been recruited by a company official
named Lennox to spy upon other employees and to interrogate them
concerning their union affiliation and sympathies. Evanoff further
averred that she engaged in these activities for approximately 2 months
immediately preceding the election, and that she reported her findings
to Lennox. The Regional Director then queried Lennox who denied
under oath that he had enlisted Evanoff to do the things alleged. How-
ever, the Petitioner did not become aware of Evanoff's activities until
a few days after it filed its objections.
In his report on objections, the Regional Director stated that the
matter set forth in Evanoff's affidavit "probably comes within the
purview of the allegation relative to interrogation," and might nor-
mally warrant a hearing on the issues raised thereby. However, be-
cause the Petitioner's knowledge of Evanoff's conduct post-dated the
filing of the objection, and because of the Board's recent decision in
Audubon Cabinet Company, Inc.,4 the Regional Director declined to
make a recommendation regarding the disposition of the objection
because of his doubt as to whether it contained the degree of specificity
required under Section 102.61, Series 6, as amended, of the Board's
Rules and Regulations.
Section 102.61, Series 6, as amended, provides in pertinent part that
"Within 5 days after the tally of ballots has been furnished, any party
may file with the regional director four copies of objections to conduct
of the election or conduct affecting the results of the election, which
8 See Tuttle & Sift, Inc., 118 NLRB 125; Calcor Corporation, 106 NLRB 539.
' 119 NLRB 349.
ATLANTIC MILLS SERVICING CORPORATION OF CLEVELAND , INC. 1287
shall contain a ,short statement of the reasons therefor ." [Emphasis
supplied .] The effect of the rule is to prevent a party to a representa-
tion proceeding from delaying the orderly resolution of a question
of representation by causing the Board to investigate alleged miscon-
duct which on its face would not warrant setting an election aside, or
which in fact never occurred . The rule therefore has a dual aspect :
(1) it requires the objecting party to pinpoint its allegations of mis-
conduct with reasonable clarity so that the Regional Director can
determine whether, that misconduct , if it occurred , would necessitate
another election ; and (2 ) it obligates the objecting party, on request
of the Regional Director , to furnish evidence to support the allegations
before an investigation can go forward.'
In objection 3, the Petitioner alleged that the Employer engaged
in acts of "interrogation" concerning its employees ' union affiliation
and sympathies . A few days after it filed its objection , the Petitioner
submitted Evanoff's affidavit containing averments which, if true,
would support the allegation of interrogation . In our opinion, the
Petitioner's objection to the Employer's acts of interrogation identi-
fied conduct which, prima facie, would warrant setting the election
aside , and therefore satisfied the degree of specificity demanded by
Section . 102.61, Series 6, as amended , of the Rules and Regulations.
When the Petitioner came forth , on request of the Regional Director,
with evidence to support this objection, the rule's safeguard against
spurious objections designed to delay final resolution of a representa-
tion proceeding was also satisfied , and the objection warranted the
investigation which the Regional Director conducted . These circum-
stances clearly distinguish this case from Audubon . In Audubon,
the employers involved filed objections to the election , alleging that
the union "interfered with, restrained ,. and coerced the employees in
their rights under the Act and in a series of house to house visits
to the employees prior to the election ." The Regional Office re-
quested the employers to submit evidence in support of their objec-
tions. The employers replied that they were unable to do so. The
Regional Director thereupon declined to conduct an investigation of
the objection . The Board upheld his refusal to do so , finding that
the objection was not sufficiently specific on its face in alleging conduct
which would warrant a new election , but particularly noting that the
employers failed to submit evidence to support their objection which
would justify the conduct of an investigation.
In its exceptions , the Employer contends that the Petitioner's
objection could not have satisfied the rule's requirement of specificity
because the Petitioner did not learn of Evanoff's interrogation until a
a few days after it filed its objection . To support this contention, the
5 See Wood & Smith Shoe Co., 117 NLRB 1760, 1761.
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer relies on language in Don Allen Midtown Chevrolet, Inc.,e
that parties invoking the Board's objections procedures must have
knowledge at the time they filed objections of conduct which would
invalidate an election. Upon reconsideration of Don Allen, we be-
lieve that such a requirement is unrealistic and thwarts the purpose
of Section 102.61, Series 6, as amended. Where, as here, objections
are reasonably specific, on their face, the Regional Director might still
be unable to determine from the objections alone whether the objecting
party possessed knowledge of the misconduct when the objections
were filed, and therefore could not determine whether the party
objecting was attempting to utilize the objections procedures for the
purposes of delay, winless that party submits appropriate evidence to
support the objections. Thus, it is the submission of this evidence of
misconduct, and not solely the objecting party's knowledge of such
misconduct, which affords the Regional Director a basis for deciding
whether an investigation is warranted. We therefore hold that,
where objections prima facie describe conduct which might warrant a
new election, and the objecting party furnishes supporting evidence
to the Regional Office, Section 102.61, Series 6, as amended, is satis-
fied and the Regional Director may go forward with an investigation.
Accordingly, insofar as the Don Allen decision imposes any contrary
requirement, it is overruled?
We have found that Petitioner's objection 3 contained the degree
of specificity required under Section 102.61, Series _6, as amended, and
warranted investigation by the Regional Director. As his investiga-
tion of this objection raised substantial and material issues of fact, we
shall direct that a hearing be held thereon.
While the investigation of the Petitioner's objections was being
conducted, the Petitioner filed a charge against the Employer in Case
No. 8-CA-1379. This charge has reference to matters on which the
Petitioner's objection 3 are bottomed. 'The Regional Director advises
that a complaint based upon this charge will issue. In view of these
circumstances, we shall direct that a hearing be held before a Trial
Examiner to be designated by the Chief Trial Examiner to resolve the
issues raised by the Employer's and the Petitioner's exceptions to the
6 113 NLRB 879.
It we have considered the fears of our dissenting colleagues that our interpretation of
Section 102 . 61, Series 6, as amended , would encourage "the filing of unfounded objections."
We are equally as anxious as our dissenting colleagues to discourage efforts to delay certi-
fication by filing of unfounded objections . We do not think that the decision in this case,
which requires the party filing objections to identify the nature of the misconduct on which
the objections are based and to submit evidence in support thereof at the time of filing or
forthwith upon request from the Regional Director, encourages the filing of sham or frivolous
objections . In any event we would deem it unwise to sacrifice the Board 's obligation to
safeguard its election processes from conduct which precludes the free choice of a bargain-
ing representative by employees in exchange for the comparatively minimal advantages of
haste in certification . With respect to the effect of our decision upon the administrative
disposition of objections , we contemplate that Regional Directors will continue to dispose
of objections unsupported by evidence supplied by the filing party by prompt and appro-
priate action.
ATLANTIC MILLS SERVICING CORPORATION OF CLEVELAND, INC. 1289
Regional Director's findings regarding the Petitioner's objection 3,
and that such hearing may be consolidated with a hearing in Case No.
8-CA-1379: In the event the hearing in Case No. 8-RC-2787 is con-
solidated with the hearing in Case No. 8-CA-1379, the duly designated
Trial Examiner is hereby directed to include in his Intermediate Re-
port and Recommended Order recommendations with respect to the
issues raised by the Employer's and Petitioner's exceptions to the
Regional Director's report concerning objection 3. In the event that
such consolidation of cases is not made, the Board then directs that the
Trial Examiner designated for the purpose of conducting the hearing
shall prepare and cause to be served upon the parties a report contain-
ing resolutions of the credibility of witnesses, findings of fact, and
recommendations to the Board as to the disposition of the issues raised
by the Employer's and the Petitioner's exceptions to the Regional
Director's report concerning objection 3.
ORDER
IT IS HERESY ORDERED that a hearing be held before a Trial Examiner
to be designated by the Chief Trial Examiner to resolve the issues
raised by the Employer's and the Petitioner's exceptions to the Re-
gional Director's findings respecting objection 3, and that such hearing
may be consolidated with the hearing in Case No. 8-CA-1379; and, in
the event the hearing in Case No. 8-RC-2787 is consolidated with the
hearing in Case No. 8-CA-1379, the duly designated Trial Examiner
is hereby directed to include in his Intermediate Report and Recom-
mended Order recommendations with respect to the issues raised by
the Employer's and the Petitioner's exceptions to the Regional Direc-
tor's findings concerning objection 3. However, in the event such
consolidation is not made, then
IT IS ORDERED that the Trial Examiner designated for the purpose
of conducting the hearing shall prepare and cause to be served upon
the parties a report containing resolutions of the credibility of wit-
nesses, findings of fact, and recommendations to the Board as to the
disposition of said issues raised by the Employer's and Petitioner's
exceptions to the Regional Director's findings on objection 3. Within
the period provided for in the Board's Rules and Regulations, any
party may file with the Board in Washington, D. C., an original and
six copies of exceptions thereto. Immediately upon filing of such
exceptions, the party filing 'the same shall serve a copy thereof upon
each of the other parties, and shall file a copy with the Regional
Director. If no exceptions are filed thereto, the Board will adopt the
recommendations of the Trial Examiner.
• IT IS FURTHER ORDERED that the above-entitled matter be, and it
hereby is, referred to the Regional Director for the Eighth Region
for the purpose of arranging such hearing, and that said Regional
Director be, and he hereby is, authorized to issue early notice thereof.
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CHAIRMAN LEEDOM and MEMBER RODGERS, dissenting :
Several days before the Union learned that employee Evanoff had
been engaged to spy upon its activities, and at least a week before the
Union advised the Board of her conduct, it filed objections to conduct
affecting the results of the election.
All the Regional Director had before him when the Union filed its
objection 3 (the only objection found to have merit) was the allegation
,of "wide spread interference prior to the election, including inter-
rogation, implied threats, and sundry other activities designed to in-
fluence the outcome of the election, all of which will be more clearly
revealed upon full investigation." When this allegation was made,
not only was the Regional Director without knowledge of objectionable
conduct, but indeed the Union itself, by its own admission, had no
information that could support the objection it had filed. For, as
noted above, it was not until several days after it had alleged the
existence of objectionable conduct that the Union first learned of
specific conduct that belatedly has been seiezd upon to justify the
objection.
It is under these peculiar circumstances that a majority of the
Board now finds that timely objection has been made to conduct affect-
ing the election, such objection including, as required by Section 102.61,
Series 6, as amended, of the Rules and Regulations, "a short state-
ment of reasons therefor." Thus the allegation of misconduct which
the Rules require the objecting party to "pinpoint" could only be
undisclosed, and yet unknown, acts of interrogation. Implicit in the
majority's holding with respect to the sufficiency of the objections and
to the interpretation of Section 102.61, Series 6, as amended, is the
conclusion that although the conduct must be "pinpointed," actual
present knowledge of the conduct is unnecessary. We find it impos-
sible to subscribe to this self-contradiction.
Apart from creating the inconsistency already noted, the majority's
decision to overrule the Don Allen 8 case presents a serious handicap
to the Board's constant effort to expedite its election procedures and
eliminate the waste created by dilatory tactics. Thus, if the holding
of Don Allen had any validity whatever it was most evident in its
interpretation of Section 102.61, Series 6, as amended, that it "provides
a minimum safeguard to discourage attempts to delay the effectuation
of conclusive election results by a party invoking the Board's objec-
tions procedures without having knowledge at the time of filing of
any basis for invalidating the election." [Emphasis supplied.] As
the majority has now specifically overruled Don Allen it is fair to
assume that knowledge of misconduct is no longer ncessary to justify
the filing of timely objections. This being so it must be equally fair
to assume that it is no longer the stated policy of this Board to dis-
8 Footnote 6, supra.
RYAN AERONAUTICAL CO. 1291
courage the attempts at delay which result from the filing of
unfounded objections.
As we cannot endorse that which we consider to be a serious impedi-
ment to our election processes, we would not remand this case for
further hearing. Instead, we would dismiss objection 3 and certify
the election results.
Ryan Aeronautical Co., Torrance Division and International
Union, United Automobile, Aircraft and Agricultural Imple-
ment Workers of America , UAW-AFL-CIO, Petitioner
Ryan Aeronautical Co., Torrance Division and Local Union 11,
International Brotherhood of Electrical Workers, AFL-CIO,
Petitioner. Cases N08.21-RC-5107 and 21-RC-5123. June 4,1968
DECISION AND DIRECTION OF ELECTIONS
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a consolidated hearing was held before Karl W. Filter,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman Leedom and Members Bean and Jenkins].
Upon the entire record in these cases, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. Questions affecting commerce exist 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. In Case No. 21-RC-5107, the Petitioner, hereinafter referred to
as UAW, seeks a production and maintenance unit at the Employer's
recently acquired plant at Torrance, California. The Employer's
principal objection is that because of an•expanding unit, the petition
is premature and should be dismissed.
In Case No. 21-RC-5123, the Petitioner, hereinafter referred to as
IBEW, seeks the usual craft unit of maintenance electricians at the
same plant. The Employer does not oppose this unit. The UAW
while not agreeing that it is an appropriate unit, nevertheless wishes
to be placed on the ballot if an election is directed.
Case No. 21-RC-5107
The Employer, which manufactures airplanes and aircraft parts
at San Diego, California, acquired the Torrance, California, plant in
120 NLRB No. 167.