Rohr Aircraft Corp.

National Labor Relations Board - Board Decisions

Apr 10, 1962

136 N.L.R.B. 958 (N.L.R.B. 1962)

958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth above, occurring in connection with the
operations of Respondent described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
VII. THE REMEDY
Having found that Respondent has engaged in unfair labor practices , I shall
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent refused to bargain collectively with the Union, I
shall recommend that Respondent , upon request, bargain with the Union as the
exclusive representative of the employees in the appropriate unit with respect to
bonuses.
Having found that Respondent discriminated against the employees in the ap-
propriate unit represented by the Union as sole collective -bargaining agent, I shall
recommend that Respondent make whole said employees for any loss of "wages," in
the form of a Christmas bonus in 1960, which they suffered as a result of Respond-
ent's discrimination against them.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. The Union is the sole collective-bargaining agent for the employees of
Respondent in the unit described in section III, above.
4. The payment of Christmas bonuses, within the facts of this case, is a manda-
tory subject of collective bargaining by requirement of Section 8(a)(5) and 8(d)
of the Act.
5. Respondent violated Section 8(a)(5) and (1) of the Act in refusing to discuss
the subject of Christmas bonuses with the Union during the July-August 1960 pre-
contract negotiations.
6. Respondent was and is obligated to bargain with the Union on the subject of
Christmas bonuses during the term of the August 1960 contract; and its unilateral
action relative to the subject after execution of the contract was in violation of
Section 8(a)(5) and (1) of the Act.
7. Respondent , in the payment of Christmas bonuses in 1960 , discriminated against
its employees within the unit in violation of Section 8(a)(3) and (1) of the Act
[Recommendations omitted from publication.]
Rohr Aircraft Corporation and International Union, United
Weldors (Independent ), Petitioner . Case No. 21-RC-634.
April 10, 1962
SUPPLEMENTAL DECISION AND CERTIFICATION
OF REPRESENTATIVES
Pursuant to a Decision and Direction of Election issued by the
Board on October 3, 1961 (not published in NLRB volumes), an elec-
tion by secret ballot was conducted on October 18, 1961, under the
direction and supervision of the Regional Director for the Twenty-
first Region among the employees in the appropriate unit. Upon the
conclusion of the election, the parties were furnished a tally of ballots
which showed that of approximately 95 eligible voters, 89 valid ballots
were cast, of which 45 were for the Petitioner, 44 were for the Inter-
136 NLRB No. 102.
ROHR AIRCRAFT CORPORATION 959
venor, international Association of Machinists, Silvergate District
Lodge No. 50, Aeronautical Mechanics Lodge No. 755, AFL-CIO, and
1 ballot was void. There were no challenged ballots. Thereafter, on
October 24, 1961, the Intervenor filed timely objections to conduct
affecting results of the election.
Pursuant to the Board's Rules and Regulations, Series 8, the Re-
gional Director investigated the objections and on November 20, 1961,
issued and duly served upon the parties his report on objections,
attached hereto, in which he found that all the objections were lacking
in merit and recommended that they be overruled and the Petitioner
be certified as the exclusive bargaining representative of the employees
in the appropriate unit. On November 27, 1961, the Intervenor filed
timely exceptions to the Regional Director's report.
The Board has considered the Intervenor's objections, the Regional
Director's report, and the Intervenor's exceptions thereto, and upon
the entire record in this case hereby adopts the findings and recom-
mendations of the Regional Director that the objections do not raise
substantial and material issues with respect to conduct affecting the
results of the election.
We find no merit in the Intervenor's contention that the election
should be set aside because, as it now appears, certain temporary laid-
off employees who may have been eligible to vote were not individually
notified of the time, date, and place of the election. As observed in
other cases, it is not the customary practice of Board agents to send
individual notification to employees in layoff status, or persons who for
other reasons may not be working or employed at the time of the elec-
tion.' Such notification, under Board procedures, is discretionary
with the Board's Regional Office and agents, and depends on the cir-
cumstances of the case. The reason for this rule is obvious : In some
situations it is feasible to send individual notification to employees
in disputed or nonworking categories, particularly where their status
is made known to the Board agent at an appropriate time; in other
situations, however, such as that here presented, the Board agent may
not know of the existence or whereabouts of such employees, or may
be convinced that the likelihood of their voting or being eligible is
so slight that it does not justify the additional effort and expense in-
volved. These categories may include not only laid-off employees,
but employees who are ill, on vacation, in military training, on out-of-
town assignment, on detail to another employer, etc. The parties may,
of course, if they desire, notify these potential voters themselves, and,
if such persons appear at the polls, they may vote subject to being chal-
lenged. To make individual notification by the Board agent manda-
tory, however, would place an almost impossible burden on the agent
I See, e.g, Cwtwes Service Owl Co. of Pennsylvania ( Marine Division), 87 NLRB 324,
footnote 9
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to'investigate and uncover on his own initiative all conceivably eligible
voters, and, under penalty of having the election set aside, send in-
dividual notification to each.
We are unwilling to abandon the present discretionary rule. Nor
do we find any abuse of discretion in the present case. As found by the
Regional Director, the Board agent was not apprised by the Inter-
venor or any other party of the existence of any temporarily laid-off
employees. At the initial Board conference, arranged to settle the
details of the election, no party made any mention of such employees,
or suggested that the usual posting of notices at the Empolyer's
premises would be insufTicient. The Board's standard election notices
were mailed to the parties and posted in the usual locations through-
out the plant. The Intervenor, the objecting party, was the incumbent
and as such possessed a list of all employees, including the disputed
temporarily laid-off welders, and did itself notify virtually all of these
employees, including those here in dispute, of the Board's Direction
of Election. At no time prior to the election did the Intervenor
request the Board agent to send individual notices to the disputed
voters, and at the conclusion of the election, fhe observers for all
parties, including the Intervenor, certified that the election had been
fairly conducted. Only after the votes had been counted did the Inter-
venor raise a question as to the laid-off employees, an object that the
agent had not individually notified them of the election. Significantly,
the Intervenor does not here contend that the individuals in question
did not have actual knowledge of the time of the election. To set
aside the election in these circumstances would, in our view, effectively
change the Board's discretionary rule to a mandatory one, and un-
reasonably grant a windfall to the Intervenor, who apparently felt
no need to raise a question as to the laid-off employees prior to the
election?
As the Petitioner has obtained a majority of the valid ballots cast,
we shall certify it as the collective-bargaining representative of the
employees in the appropriate unit .'
2 We do not think it reasonable to assume , as does our dissenting colleague, that the
laid-off employees failed to vote simply because they were not individually notified by the
Board of the election. In view of the fact that the Intervenor, the incumbent, notified
11 of such employees itself, other inferences appear at least equally plausible The
Regional Director in his report found that at least one such employee did communicate
with a welder who was working in the plant and did ascertain the date of the scheduled
election but made no attempt to drive over to the plant and vote because he was "more
of a United weldor than for the I.A.M."
3 The Intervenor would have the Board set aside the election on the additional grounds
that the names of the laid-off employees were not included on the eligibility list we do
not agree On at least two occasions prior to the election , all parties, including the
Intervenor, checked the eligibility list, and certified it as accurate . Moreover, if the
disputed employees were not aware of the absence of their names from the eligibility list,
they could not have been prejudiced thereby. If they were so aware, it was incumbent
on them to attempt to vote by challenged ballot , or in some other manner protest to the
Board agent , prior to the election , the failure to include their names . Houston Chronicle
Publishing Company, 131 NLRB 703
ROHR AIRCRAFT CORPORATION 961
[The Board certified International Union, United Weldors (Inde-
pendent), as the designated collective-bargaining representative of
the employees in the unit heretofore found appropriate.]
CHAIRMAN MCCULLOCH, dissenting :
I would withhold certification and direct a new election.
Certain critical facts in this case are undisputed. The certification
here issued rests on a single vote, 45 valid ballots having been cast for
the Petitioner and 44 for the Intervenor. Eligible to vote in the elec-
tion, but not voting, were certain temporarily laid-off employees who
had a reasonable expectancy of further employment.' Had any, or
all, of these employees cast ballots, the election might, of course, have
had a different outcome.
The issue upon which this case turns is whether these individuals,
who concededly have a stake in the selection of a bargaining repre-
sentative, were afforded an opportunity to participate in that selec-
tion. If that opportunity was unfairly foreclosed, I am sure my
colleagues would agree that a fair and free election has not been held
and that the election must be set aside.
In its objections to the election, the Intervenor argued, inter alia,
that Board agents had the obligation to insure that all eligible voters,
including temporarily laid-off employees, had sufficient notice of the
time, date, and place of the election so that none would be unfairly
deprived of his right to vote for a bargaining representative. The
Intervenor argued further that with respect to certain temporarily
laid-off employees this obligation had not been fulfilled.
The Regional Director in his Report on Objections rejected this
argument. He found on the basis of his investigation that of some
26 employees laid off during the preceding year, some 14 still had
seniority recall status.' Assuming, arguendo, that the remaining 12
would not also have had voting rights under Board rules-a matter
on which the Report on Objections is not clear-it is clear that none
of the laid-off employees, neither the 14 nor the remaining 12, was on
the eligibility list submitted by the Employer for use in the election.
The Regional Director found, however, that none of the parties to the
proceeding, Employer, Intervenor, or Petitioner, raised any question
as to the exclusion of the laid-off employees from the eligibility list,
d The Regional Director found it unnecessary to pass upon the question whether em-
ployees with recall status were eligible to vote as temporarily laid-off employees The
Board, however, has uniformly held that temporarily laid-off employees having a reason-
able expectancy of further employment are eligible to vote in an election for a bargaining
representative Owens-Illinois Glass Company, 114 NLRB 387, Tube Dsstrsbul a s Co,
Inc, 112 NLRB 296; Buckeye Oil Company, Chemical Pulp Division, 102 NLRB 1151.
Neither the Regional Director nor my colleagues of the majority question the applicability
of this rule to the instant case. In any event, the right of these employees to cast
challenged ballots could hardly be, and is not, questioned
5 The Regional Director's report discloses that three of the above employees were in
fact recalled subsequent to the election. -
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or requested that the Board notify these individuals of the time, date,
and place of the election. Notices of the election were mailed to the
parties and the customary notices were posted on the plant bulletin
boards for the information of those individuals currently employed.
No notices were sent to laid-off employees.
The Regional Director also rejected the Intervenor's claim that it
was not familiar with the status of the laid-off employees. Indeed, it
appears that on October 12, 6 days before the election, the Intervenor
mailed letters to a group of welders including 11 of the 14 laid-off
welders having recall status. As the majority correctly notes, these
letters gave notice of the Board's direction of election and of a meet-
ing to be held on October 14. The letters did not, however, contain
any information as to the time, date, and place of the forthcoming
election. At the conclusion of the balloting in the election itself, the
observers for the parties signed a certification that the election was
fairly conducted.
The Regional Director disposed of the objection here in issue as
follows :
While there is no evidence that this group [laid-off employees
with recall status] were even aware of their exclusion from the
Employer's eligibility list, even if they did have knowledge of
this fact, it was at least incumbent on them to attempt to vote by
challenged ballot, or in some other manner protest to the Board,
or its agent, their exclusion. Further, the Intervenor, unlike the
Petitioner, had full information in respect to this group and was
in a position to object to their exclusion and to make a request
that these employees be sent individual copies of the notices of
election if it deemed the usual posting at the plant insufficient.
The Regional Director recommended that the objection be over-
ruled. The majority of the Board today adopts that recommendation
and certifies the Petitioner. The majority rejects the Intervenor's
contention that the Board agent was derelict in his duty to furnish
adequate notice to the temporarily laid-off employees. Rather, the
majority notes that official election notices were mailed to the parties
and posted in the plant; that the Intervenor knew of the existence of
laid-off welders who were subject to recall and in fact notified them of
the Board's direction of election and of a forthcoming meeting. Ac-
cordingly, the majority concludes that it was incumbent upon the
laid-off employees "to attempt to vote by challenged ballot, or in some
other manner protest to the Board agent, prior to the election, the
failure to include their names on the eligibility list." B
d My colleagues , like the Regional Director, cite as authority Houston Chronicle Publish-
ing Company, 131 NLRB 703. That case did not involve laid-off employees but rather
employees who, the parties agreed and the Board subsequently found, were not part of
the appropriate unit. Moreover, so far as appears, the employees there involved had
ROHR AIRCRAFT CORPORATION 963
I believe that my colleagues, like the Regional Director, miscon-
ceive the issue here presented. The question is not, as I see it, whether
the Board agent was remiss in failing to afford adequate notice to
eligible voters of the impending election; or whether the Board
agent under all the circumstances properly exercised, or failed to
exercise, whatever discretion he may have had in that regard.7 Nor
is the question whether the Intervenor was remiss, or even consciously
partisan, in carrying out whatever relevant obligations it may have
had. The function of a representation proceeding is not to reward
or punish participating employers or labor organizations, but rather
to insure that employees comprising an appropriate unit shall have
a full and free opportunity to participate in•the selection, or rejection,
of a bargaining representative. The sole question to be resolved here
is whether such an opportunity was in fact afforded. In this context
it appears that, wherever the fault lies, a substantial segment of eli-
gible voters, so far as appears, received no notice of the time, place,
and date of the election-indeed, three voters appear to have received
no notice whatever. To conclude under these circumstances that
these same employees should have presented themselves at the polls,
or should in some other manner, have protested their exclusion from
the eligibility list, seems scarecly realistic.
Even more troublesome, however, is the thought that my colleagues
are today fastening upon all the employees, including the temporarily
laid-off employees, a certified bargaining representative which has
been designated by a one-vote margin in an election in which a sub-
stantial segment of the electorate has been denied participation.
MEMBER BROWN took no part in the consideration of the above
Supplemental Decision and Certification of Representatives.
notice of the time, date , and place of the election , were unaware of their exclusion from
the unit, and nevertheless elected not to exercise their voting rights
7 The majority opinion herein is devoted almost entirely to this issue. While I believe,
as herein stated, that the majority misconceives the issue . I do not wish to be taken as
necessarily agreeing with either the reasoning or the conclusion of my colleagues in that
respect. I am not satisfied, on the basis of the data here available , that the Board agent
did not have , or could not with reasonable effort have obtained, information as to "the
existence or whereabouts" of the "temporary laid-off employees who may ha'e been eligible
to vote" or that "the likelihood of their voting or being eligible is so slight that it does
not justify the additional effort or expense involved ." The Board ' s Decision and Direc-
tion of Election specifically included temporarily laid-off employees among those eligible
to vote. A simple inquiry by the Board agent would in all probability have disclosed
both their existence and their whereabouts . To justify the failure to make such a simple
inquiry on the ground that the parties did not press for it would be to emasculate what-
ever independent administrative obligation does exist
REPORT ON OBJECTIONS
Pursuant to a Decision and Direction of Election of the National Labor Relations
Board dated October 3, 1961, an election by secret ballot was conducted on October
18, 1961, under the direction and supervision of the Regional Director among the
641795-63-vol. 136-62
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees of the Employer in the unit found appropriate by the Board.' The tally
of ballots which was served upon the parties showed the following results:
Approximate number of eligible voters------------------------------ 95
Void ballots----------------------------------------------------- 1
Votes cast for International Union, United Weldors (Independent)------ 45
Votes cast for Intl. Assn. of Mach., Silvergate Dist. Lodge No. 50, Aero.
Mechanics Lodge No. 755, AFL-CIO---------------------------- 44
Valid votes counted----------------------------------------------- 89
Challenged ballots------------------------------------------------ 0
Valid votes counted plus challenged ballots-------------------------- 89
On October 24, 1961, the Intervenor, International Association of Machinists,
Silvergate District Lodge No. 50, Aeronautical Mechanics Lodge No. 755, AFL-
CIO, filed timely objections to the election, copies of which were timely served upon
the other parties. Pursuant to Section 102.69 of the Board's Rules and Regula-
tions, Series 8, as amended, the Regional Director, after due notice to all parties
to present relevant evidence, has completed the investigation of the objections and
hereby issues this report thereon.
The Intervenor's objections are stated as follows:
The "Intervenor I.A.M." alleges that the National Labor Relations Board
Agent allowed an incomplete and improper eligibility list to be used by not
inquiring of the company representatives if they had included temporarily
laid-off employees as specified in the Board's Decision and Direction of Election.
Further, he was negligent in his duties by not putting all parties of interest on
notice that temporarily laid-off employees were eligible to vote, that their names
should appear on the eligibility list so that such employees would not be dis-
franchised of their legal right to vote in the instant election.
"Intervenor I.A.M." was informed this date that company employees H. D.
Gilby, Peter Pacheco and C. R. Spurgeon, had been temporarily laid-off on
or about September 26, 1961, and further, about twenty other employees of
the company are temporarily laid-off-all being eligible voters in the instant
election. None of their names appeared on the eligibility list used by the
Board Agent.
Temporarily laid-off employees having reasonable expectancy of further
employment are eligible to vote in accordance with long-established National
Labor Relations Board policy. Owens-Illinois Glass Company (1955) 114
NLRB 387. Tube Distributors Company (1955) 112 NLRB 296. Buckeye
Oil Company (Chemical Pulp Div.) (1953) 102 NLRB 1151.
By the above actions and/or lack of actions of the Board Agent no sufficiency
of Notice of Election was allowed the temporarily laid-off eligible voters among
other guaranteed rights.
By the Board Agent, the Petitioner and the Company allowing H. H.
LaVallie the designated election observer of the Petitioner to return to the
areas wherein eligible voters were working, to circulate among them, converse
with them and to remain with them during the day of election between sched-
uled voting times. This did create an atmosphere not conducive to a free choice
of a collective bargaining representative.
By the Board Agent's voiding of a ballot that could affect the results of the
election.
By any or all of the above set forth acts and by other acts, an atmosphere was
created among the employees before and during the election that was not con-
ducive to their exercising their rights under the act of having any opportunity
to register a free and untrammeled choice in selecting a collective bargaining
representative. The "Intervenor I.A.M." hereby moves that this instant election
be set aside.
In respect to the objection that goes to the eligibility list used in the election and
the sufficiency of the notices of election, the investigation discloses the following:
In the period between October 17, 1960, and September 26, 1961, the Employer had
1All employees at the Employer's Chula Vista, California, plant, engaged in fusion
welding processes involving the use of gas, metal are, and inert gas tungsten are, includ-
ing welder-arc A and B, welder combination, welder-gas A and B, welder-maintenance
A and B, and welder-tooling A and B, but excluding cutting torch machine operators and
all other employees, guards, watchmen, professional and technical employees, and super-
visors as defined in the Act.
ROHR AIRCRAFT CORPORATION 965
laid off a total of 26 welders in the bargaining unit . Under the Employer's and
Intervenor 's collective-bargaining agreement , laid-off employees retain their recall
right to vacancies in their former classifications for a period of 12 months, provided
they register with the industrial relations department each 60 days following layoff,
indicating their availability for employment . As of the payroll period for eligibility,
14 of these laid-off employees still had seniority recall status under the terms of
the contract . The Employer , to enable the Intervenor to maintain its seniority roster,
furnishes to it a daily list of all employees , including welders who are laid off or
otherwise dropped . Similar information is likewise furnished as to employees recalled
or hired.
On October 10, 1961, a conference was held by a Board agent with the representa-
tives of the parties for the purpose of arranging the time, place, and other details of
the election . The Employer had at the conference the eligibility list that it had
prepared for use in the election . This was submitted to the other parties for
their examination . None of the parties raised any question in respect to the list.
Neither the Employer nor the Intervenor made any mention of laid -off employees
with seniority recall status under their contract . No party suggested that the posting
of election notices at the plant would not be sufficient notice to all interested em-
ployees. The Intervenor 's representative at this conference acknowledges:
Neither I nor any other party raised any issue in regards to temporarily
laid off employees . I knew of no such issue. There was no request made of
Steinfeld , the Bd . Agent , that the Board notify any eligible employees who
were temporarily laid off of the date and time and place of the election.
The official notices of election were mailed out to the parties on the same day of
the conference , October 10 , 1961 . The Employer's affidavit of posting shows that
the notices were posted by it the following day, October 11, 1961, on seven bulletin
boards in various locations around the plant.
It appears to be the Intervenor 's position that its representative at the conference,
an International or Grand Lodge representative, was not in a position to call the
Board agent's attention to the matter of laid-off employees with recall status, inas-
much as he was not familiar with the status of individual employees . It is pointed
out that he did not have a representative of the local lodge with him at the con-
ference. This representative states that his examination of the eligibility list was
for the purpose of determining if the classifications were in accord with the unit
found appropriate , leaving the check as to any particular individual to be handled
by the local lodge representative at the preelection conference on the day of the
election . The evidence shows, however, that the Intervenor was fully aware prior
to the election that the laid -off employees were not on the Employer's list. The
Employer's industrial relations manager states:
. At this conference [ October 10 ] no mention was made by any of the
parties of interest , i.e., the Company , United Weldors, or IAM, of any specific
problem concerning temporary laid off employees . No party present requested
the Board Agent to notify any employees in particular with respect to the elec-
tion date , time or place. On or about the next day S . A. Williams, Business
Representative of Local 755, District 50, who serves Rohr, during a visit to the
Plant asked me whether or not the eligibility list submitted by the Company
contained the names of laid off employees . I told him that it did not. Wil-
liams did not at this time or thereafter request from me the names and addresses
of the laid off employees for the specific purpose that they be notified of the
scheduled election. He did ask me some questions about what would happen
if a laid off employee appeared to vote and I advised him that I presumed
that anyone who showed would be given an opportunity to vote by challenged
ballot if his name was not on the list.
On October 12, 1961 , the Intervenor mailed out to all the welders on their mailing
list the letter attached to this report marked "Attachment # l." Examination of this
mailing list shows that it included 11 of 14 laid-off welders retaining recall status.
The three to whom the letter was not sent were employees who had not joined the
Intervenor during their employment and, presumably by reason thereof, their names
had never been included in the mailing list. While the letter did not advise the
recipients of the date of the election , it seemingly would have put them on notice
that the election was pending and to make further inquiry, if interested , from the
parties, fellow employees at the plant , or the Board. As stated in the affidavit of
one of them,
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On or about Monday, October 16, 1961, I called [name of employee], a
welder who is working in the plant. He told me that the election for welders was
scheduled for Wednesday, October 18, 1961. He said that if I came out and
they thought I was going to vote TAM they probably give an escort to the poll.
Personally I'm more a United Weldor man than for the TAM. I made no at-
tempt to drive over to the plant and vote on Wednesday, October 18, 1961.
Nobody told me that I could or couldn't vote if I tried.
A second check of the eligibility list was made by the parties and their ob-
servers on the day of the election. The Intervenor at this conference was rep-
resented by a representative from the local lodge. No issue was raised by any
of the parties in respect to the eligibility list, and, following its check, it was
signed by the representatives to show it had been reviewed and checked by them.
At the conclusion of the voting, all observers signed a certification on conduct of
the election that recited that all eligible voters were given an opportunity to vote
their ballots in secret. No contention is made that any individual who presented
himself at the polls was denied a ballot and the evidence shows that no such
incident occurred.
In spite of its omission of the laid-off employees with recall status from its
eligibility list, the Employer, in agreement with the Intervenor, states that it regards
them as temporarily laid-off employees. Factually, the industrial relations manager
states:
It has not been uncommon for us to recall employees in recall status any-
where from between a few days, three or four weeks, and several months
after their layoff. This depends on our production schedules. To a great
extent the fluctuation in our orders and engineering changes which are of a
defense nature, are unpredictable.
The investigation discloses that the three employees mentioned in the objections
who were laid off on September 25, 1961, were recalled subsequent to the election.
All three of them were on the Intervenor's mailing list above mentioned in con-
nection with "Attachment # 1."
The Regional Director does not believe that it is necessary to pass upon the
question as to whether the employees with recall status were eligible as employees
temporarily laid off. It is undisputed that none of them was prevented from voting
under challenge. While there is no evidence that this group were even aware
of their exclusion from the Employer's eligibility list, even if they did have
knowledge of this fact, it was at least incumbent on them to attempt to vote
by challenged ballot, or in some other manner protest to the Board, or its agent,
their exclusion.2 Further, the Intervenor, unlike the Petitioner, had full informa-
tion in respect to this group and was in a position to object to their exclusion and
to make a request that these employees be sent individual copies of the notices of
election if it deemed the usual posting at the plant insufficient. The Regional
Director recommends that this objection be overruled.
The election was conducted in two voting sessions, the first in the morning,
6:50 to 9:45 a.m., and the second in the afternoon, 4 to 5:15 p.m. At the preelec-
tion conference, prior to the opening of the polls, the Petitioner's observer, LaVallie,
advised that, after the morning session, he would go back to his job and work
during the period that the polls would be closed. None of the parties offered
any objections. On the observers being excused by the Board agent on the closing
of the polls after the morning session, LaVallie went to his work area in the plant
where he worked until time to report back for the afternoon voting session. There
is no evidence that LaVallie engaged in any electioneering on his return to his job.
The Intervenor's representative, Williams, states:
I have no knowledge or information that LaVallie, observer for the Peti-
tioner, in fact, electioneered in his work area on Company premises between
voting sessions on Oct. 18, 1961 or that he engaged in any improper or objec-
tionable conduct. Local 755's position is that LaVallie should not have
worked or been permitted to work that day. We paid our observer, Griffin,
for the day so that he would not have to work in order to avoid any criticism
and to preclude his electioneering in the plant on election day. No employee
reported to me that LaVallie electioneered or did anything improper. . . .
LaVallie, himself, denies that he engaged in any electioneering on returning to
his job, and two employees who work immediately next to him on his job likewise
state that LaVallie did not engage in any electioneering.
2 Houston Chronicle Publishing Company, 131 NLRB 703
ROHR AIRCRAFT CORPORATION 967
In the opinion of the Regional Director, this objection relating to the conduct
of the Petitioner's observer raises no material issue and it is recommended that this
objection be overruled.3
In the counting of the ballots, the Board agent ruled a ballot in which both
choices had been marked with an X was a void ballot. None of the parties ques-
tioned or objected to the ruling at the time. The Intervenor's representative that
attended the count states, "I did not protest or object to the Board Agent's ruling
on the void ballot. I don't know how he could have ruled any other way." Further,
it is clear that the ballot in question, a photostatic copy of which is attached to
this report, did not clearly show the intent of the voter, and, in the opinion of the
Regional Director, the Board agent's ruling that it was a void ballot was correct .4
The Regional Director recommends that this objection be overruled.
No evidence was offered by the Intervenor or disclosed in the investigation which
supports the assertion of "other acts" contained in the last paragraph of the objec-
tions. Accordingly, the Regional Director finds that this objection raises no issue
not previously considered and recommends that it be overruled.
Conclusion
The Regional Director, for reasons stated above, concludes that the Intervenor's
objections are lacking in merit and recommends that they be overruled. A majority
of valid ballots having been cast for the Petitioner, it is recommended that a
certification of representatives be issued to International Union, United Weldors
(Independent).
As provided in Section 102.69 of the Board's Rules and Regulations, Series 8,
as amended, any party desiring to take exception to this report and recommendations
herein may, within 10 days from the date of issuance of this report, file with the
Board in Washington, D.C., seven copies of such exceptions. Immediately upon
the filing of such exceptions, the party filing the same shall file a copy with the
Regional Director of the Twenty-first Region, National Labor Relations Board,
849 South Broadway, Los Angeles 14, California.
DISTRICT LODGE 50
INTERNATIONAL ASSOCIATION OF MACHINISTS
MACHINISTS HALL 3911 PACIFIC HIGHWAY SAN DIEGO 1, CALIFORNIA
CYPRESS 8-9301
OCTOBER 12, 1961.
ATTENTION: Rohr Welders
At long last the N.L.R.B. has rendered a decision to hold an election between
the International Association of Machinists, AFL-CIO, and the United Welders
(Independent).
The I.A.M. is pressing for an early election to end the confusion and injustice in
your wages caused by those few who petitioned for an election.
You will now have the opportunity to get in step with all other Rohr employees
in wages and benefits.
The basic choice between the I.A.M. and the Welders is between a strong In-
dustrial Union representing all employees and a weak Craft Union representing a
handful of workers in a single occupation.
What would be the result if the Welders Union won?
1. They would place you in a weak bargaining position. Instead of 3500 Union
members willing to enforce the Union's demands in all skills, only welders would
be up against Rohr Corporation. The tremendous economic power of Rohr would
be used ruthlessly against you. Rohr would dominate the negotiations to your
detriment.
2. You would lose all regression rights to other jobs you may have held at Rohr.
3. You would be represented by only two full time representatives whose job is
to handle all negotiations and grievance hearings throughout the United States-of
course, even these two guys are much too busy conducting raids on organized plants
to do much representation work.
4. The Welders are not recognized by the AFL-CIO and, therefore, no legitimate
Union will recognize their picket line. If you went on strike, everybody else would
be working and many would be working on your jobs.
General Electric Company, 115 NLRB 306, 307
4 E-Z Way Towers, Inc, 121 NLRB 1175.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Under these conditions, only a poor contract could result. For example, your
seniority now guaranteed by the I.A.M. contract would have to be negotiated. Your
Health Insurance could not be as good because no plan could be offered to cover
44 employees that could equal in value a plan to cover 3500 employees.
6. You are more apt to be laid off. If there is a slack in welding, we simply
could not let you do any of our work.
THINK-VOTE IN YOUR OWN BEST INTERESTS
VOTE FOR THE I. A. M.
SOL A. WILLIAMS, Business Representative
District No. 50, I. A. of M.
Special Called Meeting of All Welders-Saturday, October 14, 1961-
at 10:00 a.m.-At The Union Hall-590 Parkway-Chula Vista, California
Attachment 1
CIO-California Conference of Machinists
UNITED STATES OF AMERICA
Nat on & Labor Relations Board
I'll h^"" T113
EC T BALDFR JIAL
FOR CERTAIN DiPLOVEES OF
RQP AIROPAPT OWC ATION
Do you wish to be represented for purposes of collective bargaining by .
INTERIIATIONAL
tJStON,
UtJiILD kI"sI,D "
(I 'ENOWT)
I'AT .tUa^.OR L HMOMiID0
OF MAD MISTS,
SU VL ROtTS DLST.9LTCT LODr 00. 50,
AR iADTICAL I O NICS L/DIA u0.?55,
AYLrCIU
~MARK AU 'X '7IN THE SQUARE OF YOUR CHOICE
i
DO NOT SIGN THIS BALLOT. Fold 2nd drop in ballot box
It you spoil this ballot return it to the Board Agent for a new one.
Warehouse Employees Union , Local 730, International Brother-
hood of Teamsters, Chauffeurs , Warehousemen and Helpers
of America and Raymond Sheaffer and Robert Sheaffer, Co-
Partners, trading as C. R. Sheaffer and Sons . Case No. 5-CC-
168. April 10, 1962
DECISION AND ORDER
Upon charges duly filed by C. R. Scheaffer and Sons, a partnership,
herein called Sheaffer or the Charging Party, the General Counsel of
136 NLRB No. 88.