Star Expansion Industries Corp.

National Labor Relations Board - Board Decisions

Mar 14, 1968

170 N.L.R.B. 364 (N.L.R.B. 1968)

364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Star Expansion Industries Corporation , Petitioner
and Local 1968, International Brotherhood of
Electrical Workers, AFL-CIO-CLC. Case
2-RM-15211
March 14, 1968
DECISION ON REVIEW, ORDER, AND
DIRECTION OF SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING, JENKINS , AND ZAGORIA
On October 31, 1967, the Regional Director for
Region 2 issued a Supplemental Decision, Report
on Objections, and Certification of Representative
in the above-entitled proceeding,' in which he over-
ruled the IBT's objections and certified the IBEW.
Thereafter, the IBT filed "exceptions" which the
Board treated as a request for review of the Re-
gional Director's Supplemental Decision on the
ground that he erred in overruling objections 3, 4,
5, and 6. Both the Employer and the IBEW filed
opposition to the request for review.
On December 27, 1967, the National Labor
Relations Board by telegraphic order granted the
IBT's request for review as it related to objections 4
and 5 and denied the request in all other respects.
Thereafter, all parties filed briefs on review.
The Board has considered the entire record in
this case with respect to the issues under review, in-
cluding the briefs on review, and makes the follow-
ing findings:'
Objections 4 and 5, which were treated together,
allege as follows:
4. The Employer knowingly permitted
James Singleton a business agent of [the
IBEW] to solicit votes for [the IBEW] on the
day of the election during his regularly
scheduled working time, for which Singleton
was paid full wages.
5. During the period which the polls were
open, Singleton, during his regularly scheduled
work time, was permitted to remain in the
polling area and to unlawfully solicit votes for
[the IBEW], despite the fact that his presence
was called to the attention of a company super-
Referred to herein as the IBEW.
s The tally of ballots showed that of approximately 355 eligible voters,
337 cast ballots, of which 170 were for the IBEW, 156 were for Local 445,
International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America (referred to herein as the IBT), 8 were against the par-
ticipating labor organizations , and 3 were challenged.
M1 We find no merit in the IBT's contention in its brief on review that the
Board erroneously treated its "exceptions" as a request for review It is
clear that the Regional Director , pursuant to Section 102 69(c) of the
Board Rules and Regulations, issued a decision with respect to the IBT's
objections and that the parties' rights to contest such decision were
governed by Section 102.67 to the extent consistent with Section 102 69.
visor and the Board Agent conducting the elec-
tion.
As found by the Regional Director, the Designa-
tion of Observer form submitted by the IBEW set
forth James Singleton4 as chief observer and three
other employees as additional observers. However,
the parties agreed that they would be limited to two
observers each in attendance at the polls during the
voting period. Pursuant to such agreement,
Singleton designated two employees other than
himself from the IBEW observer list to act as such.
Singleton was advised by the Board agent in charge
that he could not remain in the voting area while he
was not functioning as one of the two alloted IBEW
observers.
The polls were located in the plant cafeteria and
were open from 1:30 to 4 p.m. The cafeteria en-
trance used by the voters was midway along its
width. Parallel to the cafeteria, to either side of the
entrance, was one corridor, and running perpen-
dicular to the entrance was another corridor, to
either side of which were work areas. The checking
table, before which eligible voters formed a line,
was within the cafeteria about 30 feet across from
the entrance, and the three observers seated at the
checking table had an unobstructed view down the
corridor perpendicular to the entrance. Two voting
booths, the closest about 25 feet from the entrance,
were along the left side wall of the cafeteria. The
ballot box was placed on an oblong table 5 feet to
the left of the entrance. Three other observers were
seated at this table. At no time were there more
than 20 employees waiting in line to vote, and at no
time did the waiting line extend outside the
cafeteria into the corridors.
Singleton did not enter the cafeteria at any time
during the polling period, except when he cast his
ballot. However, the he Board agent on two occa-
sions saw him standing near the entrance and in-
structed him to leave, which he did. Thereafter,
upon being informed by an IBT observer that
Singleton was standing outside the entrance speak-
ing to employees, the Board agent approached
Singleton, who was then about 15 feet from the en-
trance, and admonished him that he could not elec-
tioneer within 50 feet of the polls. Numerous em-
The Board, therefore, properly treated the IBT's exceptions as a request for
review
i The Regional Director had earlier found, in conjunction with objection
3, that Singleton was employed by the Employer as a turret lathe machine
operator and served as a member of the IBEW's organizing committee at
the plant involved He also made reference to the fact that the July 1967
issue of "The Electrical Workers Journal," an official publication of the
IBEW, described Singleton as a business agent, but that Singleton stated he
was not an IBEW business agent and his designation as such was erroneous
He also found that Singleton distributed literature on behalf of the IBEW at
the plant entrance during nonworking hours and wore an "IBEW " button
on many occasions
170 NLRB No. 47
STAR EXPANSION INDUSTRIES CORPORATION
ployees voting at varying times averred that they
observed Singleton within several feet of the en-
trance. Many noticed him apparently -conversing
with employees on their way to vote. Several heard
him say, "Make sure you vote right," and "Do the
right thing." One employee, whose work station
was about 20 feet from the entrance and whose
shift ended at 3:30 p.m., stated he saw Singleton in
the immediate vicinity of the entrance "nearly the
entire time" until at least 3:30 p.m. "walking
around in the area but most of time [standing] right
at the entrance to the cafeteria." He observed
Singleton speak to voters, pat some on the back,
and by gestures describe the ballot and point to the
left hand corner where the IBEW choice was posi-
tioned, as well as return to the entrance after mov-
ing 10 or 15 feet therefrom on occasions when the
Board agent spoke to him.
On one occasion , the Employer 's general
foreman , Delesky , saw Singleton about 10 feet from
the entrance, asked what he was doing there, and
left without further comment when Singleton
replied that he was an observer.5
Singleton denied that the Board agent ever asked
him to leave the entrance area or that he spoke to
any employees as they approached the entrance or
electioneered near the polls in any way, conceding
only that he remained about 15 or 20 feet from the
entrance at intermittent intervals-the longest of
which was about 15 minutes-for a total of about 1
hour during the voting period. The Regional
Director, in view of the overwhelming evidence to
the contrary, discredited Singleton's denials.
The Regional Director found no evidence that
the Employer knew of the above-described elec-
tioneering activities of Singleton. Although finding
5 Delesky had just previously ordered back to his work station an em-
ployee who appeared to be loitering about 25 feet from the entrance.
See Milchem , Inc, 170 NLRB 661, issued this day.
' The Board 's election notices specifically enjoin such conduct.
" Without resolving the conflicting evidence as to whether or not
Singleton was in fact a business agent of the IBEW , we find, on the basis of
the undisputed facts as set forth above , that he was an agent of the IBEW
for the limited purposes of distributing campaign literature and elec-
tioneering on its behalf.
' Although the Regional Director sought to minimize the persuasiveness
of Singleton 's activities , above described , it is clear that they were elec-
tioneering in character . The IBEW in its brief on review does not dispute
the Regional Director 's findings as to the content of such electioneering ac-
tivities.
11 Cf. Milchem, Inc, supra. The case of Sewanee Coal Operators ' Associa-
tion , Inc., 146 NLRB 1145, and Intertype Company, 164 NLRB 770, relied
on by the Regional Director , are factually distinguishable . In Sewanee,
365
that Singleton electioneered near the polls for a
substantial part of the voting period, the Regional
Direfctor concluded that his electioneering activi-
ties had no persuasive or coercive effect upon the
voters and did not form a basis for setting aside the
election. We disagree.
As was stated in Claussen Baking Company, 134
NLRB 111, it is the province of the Board to
safeguard its elections from conduct which inhibits
the free choice of the voters, and the Board is espe-
cially zealous in preventing intrusions upon the ac-
tual conduct of its election.' In furtherance of this
responsibility, the Board prohibits electioneering at
or near the polls.'
In the instant case, Singleton, acting on behalf of
the IBEW,' was engaged in electioneering activities
in close proximity to the polls during a substantial
part of the voting period,' notwithstanding the
Board agent's instructions, on three separate occa-
sions, that he leave the area and the admonition
that he could not electioneer within 50 feet of the
polls. We view such conduct by one acting as an
agent for a party as a serious breach of our rule
against electioneering at or near the polls, and, in
the circumstances, sufficient to warrant the in-
ference that it interfered with the free choice of the
voters.10 Accordingly, we shall set aside the election
and direct that a new election be conducted.
ORDER
It is hereby ordered that the election conducted
on August 31, 1967, be, and it hereby is, set aside.
[Direction of Second Election" omitted from
publication. ]
among other things, there was no specification by the Board agent of a "no
electioneering" area; in Intertype, the electioneering consisted of but one
isolated remark to an employee at the end of the voting line.
In the circumstances of this case , we reject the Employer 's request that
we give weight to the fact that, subsequent to the election , the Employer
and the IBEW executed a collective -bargaining agreement which had been
ratified by a majority of the employees in the unit.
" An election eligibility list, containing the names and addresses of all
the eligible voters, must be filed by the Employer with the Regional
Director for Region 2 within 7 days after the date of issuance of the Notice
of Second Election by the Regional Director . The Regional Director shall
make the list available to all parties to the election No extension of time to
file this list shall be granted by the Regional Director except in extraordina-
ry circumstances Failure to comply with this requirement shall be grounds
for setting aside the election whenever proper objections are filed Excel-
sior Underwear Inc., 156 NLRB 1236.