Wallace Murray Corp.

National Labor Relations Board - Board Decisions

Mar 20, 1968

170 N.L.R.B. 536 (N.L.R.B. 1968)

536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wallace, Murray , Corporation and International
Brotherhood of Operative Potters, AFL-CIO,
Petitioner. Case 26-RC-2902
March 20, 1968
DECISION ON REVIEW AND CERTIFICATION
OF RESULTS OF ELECTION
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
Pursuant to a Decision and Direction of Election
issued by the Regional Director for Region 26 on
May 26, 1967, an election by secret ballot was con-
ducted on June 23, 1967, under the direction and
supervision of the Regional Director. At the con-
clusion of the election, the parties were furnished
with a tally of ballots which showed that, of approx-
imately 36 eligible voters, 35 cast ballots, of which
16 were for, and 18 against, the Petitioner, and 1
ballot was challenged. There were no void ballots.
Thereafter, the Petitioner filed timely objections to
conduct affecting the results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations, the Acting Regional
Director conducted an investigation and, on August
1, 1967, issued and duly served upon the parties his
Supplemental Decision and Direction of Second
Election in which he overruled Petitioner's objec-
tions 2 through 7, sustained objection 1, set aside
the election, and directed a second election.
On August 23, 1967, the Employer filed a timely
request for review of the acting Regional Director's
Supplemental Decision and Direction of Second
Election; the Petitioner filed a brief in opposition to
request for review.
On September 13, 1967, the -Board issued an
order granting request for review and directing
hearing with respect to issues raised by Petitioner's
objection 1, and the Employer's request for review
of the Regional Director's Supplemental Decision
and Direction of Second Election. The Hearing Of-
ficer was directed to prepare and cause to be
served on the parties a report containing resolu-
tions of the credibility of the witnesses, findings of
fact, and recommendations to, the Board as to
disposition of said issues.
Pursuant to the Board's Order, a hearing was
held at Tupelo, Mississippi, on October 12 and 13,
1967, before Thomas D. Johnston, Hearing Officer.
All parties were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues.
On November 8, 1967, the Hearing Officer is-
sued and duly served on the parties his report and
' Excelsior Underwear Inc., 156 NLRB 1236
recommendations on objections to election, recom-
mending that objection 1 be sustained, the election
be set aside, and a second election directed.
Thereafter, the Employer filed timely exceptions to
the Hearing Officer's report and a supporting brief,
and the Petitioner filed exceptions to the Hearing
Officer's report.
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.
The Board has reviewed the rulings of the Hear-
ing, Officer made 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 on objection 1, the excep-
tions and brief, and the entire record in this case,
and hereby adopts the Hearing Officer's findings
only to the extent consistent herewith. For the
reasons set forth below, the-Board rejects the Hear-
ing Officer's recommendation that the election be
set aside.
The record reveals that an antiunion petition, or
letter (herein called petition) was circulated at the
Employer's plant by employees David Bruce and
Jimmy Smith;,the petition was Bruce's idea. On the
Tuesday night preceding the Friday election,-Bruce
went to the home of Westmoreland, the Employer's
personnel manager, to get some advice on whether
the petition would be proper; he showed West-
moreland a rough draft of the petition. Westmore-
land told Bruce that he (Westmoreland) could have
nothing to do with it but that what the employees
did on their off time was their privilege; he also said
he appreciated the way Bruce felt about it. Bruce
told Westmoreland that he might mail copies of the
petition to the employees and requested a list of
employee names and addresses; Westmoreland
replied that he could get such a list from his desk.
Westmoreland testified that he felt Bruce had as
much right to such a list as the Union, which had an
Excelsior list.'
The next morning, Bruce told Westmoreland that
he had the petition typed up and would probably
show it to the other employees and ask them to
sign. He also-told Westmoreland- that Dan Ballard,
a local printer, was coming to see him at 10 a.m.
and asked Westmoreland to get him (Bruce) when
Ballard arrived.
The record reveals that the petition was circu-
lated by Bruce, and then Smith, on company time.
Some of the employees were told by Bruce and
Smith that the petition would let the Company
170 NLRB No. 63
WALLACE MURRAY CORPORATION
know where they stood; some were also told that
Personnel Manager Westmoreland and Plant
Manager Rowlands would receive copies of the
petition.
Later that morning (in the course of circulating
the petition), Smith, in the presence of five em-
ployees, handed the petition to Foreman George
Matthews and asked him if there was anything
wrong with signing it. Matthews read the petition so
that Smith and the other employees could hear him,
and asked Smith who wrote it, because he knew
Smith was illiterate. Upon Smith's replying that it
was written by another employee, Matthews said he
didn't see anything wrong with signing it as long as
it wasn 't done on company working hours. Smith
then said to the other employees, "you see its all
right to sign this" to which one of the employees
replied, "not on company time."_ Matthews then
left the area.
Smith then returned the petition, which had 18
signatures on it, to ' Bruce .2 During Bruce 's 10 a.m.
break, Ballard, the printer, arrived and Bruce gave
Ballard the petition and the list of the employees'
names and addresses from Westmoreland's desk.
On that same day (Wednesday) copies of the peti-
tion were sent to most of the employees and -to
Rowlands and Westmoreland. The following day
Westmoreland removed a copy of the petition
Bruce had posted next to the timeclock; Westmore-
land told an inquiring employee that he was remov-
ing the petition because the bulletin board was only
for posting company material.
The week before the petition was circulated, em-
ployee Smith asked Foreman Matthews if he
(Smith) could put "Vote No" signs on automobiles.
After conferring with Plant Manager Rowlands,
Matthews told Smith that Rowlands didn't see
anything wrong with it as long as it wasn't done on
company time.
The Hearing Officer found that the Employer en-
couraged, assisted, ratified, and condoned the cir-
culation of the antiunion petition on company time
and property, although it had a no-solicitation rule,
and that this warranted setting aside the election.
He found that the encouragement consisted of
Westmoreland's statement to Bruce that he ap-
preciated the way Bruce felt about it, and that he
could do whatever he wanted with the petition. The
Employer's assistance consisted of making available
the list of employees' names and addresses. The cir-
culation of the petition was ratified by allowing it to
be circulated on company time and property in
z Employee Albert Buckanan, whose name appears on the petition, de-
nied that he ever signed the petition or authorized anyone to place his
name on it . He further denied that either Bruce or Smith ever talked to him
about the petition , and denied that he received a copy of the petition in the
537
violation of a no-solicitation rule. The Hearing Of-
ficer found that the Employer had a no-solicitation
rule in effect on the basis of Foreman Matthews'
statements to Smith that he could not circulate the
antiunion petition on company time and could not
put "Vote No" signs on his car on company time.
The Employer excepts, contending that neither
Westmoreland's nor Matthews' remarks constituted
encouragement or employer participation, that the
Hearing Officer's finding that the Employer had a
no-solicitation rule is clearly erroneous, and that
the fact that Westmoreland made the list of names
and addresses available does not show assistance
because, under Excelsior, the Employer had made
such a list available to the Union. We find merit in
the Employer's exceptions.
The Hearing Officer found that the Employer
ratified and condoned the circulation of the peti-
tion by permitting it to be openly circulated on
company time in violation of a no-solicitation rule.
In our opinion, the record does not support a find-
ing that the Employer had a no-solicitation rule in
effect. The Hearing Officer's finding with respect to
the no-solicitation rule is based solely on the two
instances in which Foreman Matthews told an em-
ployee engaged in antiunion activity that he could
not do so on company time. On the other hand, the
record reveals that employees were allowed to talk
about anything, including -the Union, while at work.
There is no evidence whatsoever to show that the
purported no-solicitation rule was enforced against
union adherents. Indeed, if there is any evidence of
disparate treatment with respect to the application
of a no-solicitation rule, it is as the Employer sug-
gests disparate treatment of antiunion solicitation.
Accordingly, we are unable to conclude, as did the
Hearing Officer, that the Employer ratified and
condoned the circulation of the petition in violation
of a no-solicitation rule.
Nor do we agree with the Hearing Officer's find-
ing that Westmoreland's statements to Bruce that
he could do what he wanted with the petition and
that what he did on his time off was his privilege,
although he (Westmoreland) appreciated the way
Bruce felt, constituted encouragement or assistance.
In fact, Westmoreland made this clear to Bruce by
telling Bruce that he could have nothing to do with
it. Put differently, we are not prepared to say West-
moreland encouraged Bruce because he did not tell
Bruce he could not circulate the petition. Likewise,
we do not find, as did the Hearing Officer, that
Matthews encouraged or assisted in the circulation-
mail or saw it posted in the plant The parties stipulated that Willie Mc-
Gaughy, whose name appears on the petition , was not at work on the day
the petition was circulated
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the petition when he told Smith, in the presence
of certain other employees (and in response to the
illiterate Smith's inquiry), only that there was
nothing wrong with signing the petition. In fact,
Matthews made it clear that it should not be done
on company time even though as we have found
supra the Employer did not have a no-solicitation
rule. In our opinion, the foregoing incidents do not
provide a sufficient basis for finding that the Em-
ployer encouraged or assisted in the circulation of
the antiunion petition.
The only evidence which tends to demonstrate
the Employer's willingness to assist employee Bruce
in the circulation of the petition is the fact that
Westmoreland made the list of employee names
and addresses available to Bruce. In this connec-
tion, however, Westmoreland testified that he saw
no reason why Bruce should not have the list, since
such a list had been made available to the Union, in
accordance with the Board's Excelsior3 rule. In the
light of the Excelsior rule, with its emphasis upon an
informed electorate, Westmoreland might
reasonably have assumed that Bruce was entitled to
the list. For this reason we conclude that making
the list of employees' names and addresses availa-
ble to Bruce did not constitute encouragement or
assistance , particularly in the circumstances of this
case, where the record does not otherwise support
a finding that the Employer encouraged, par-
ticipated in, assisted , or was in anyway responsible
for the circulation of the antiunion petition.' Since
we do not find a sufficient basis for concluding that
the Employer interfered with the conduct of the
election, we shall accordingly overrule objection I
and certify the results of the election.-
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
votes cast in the election held on June 23, 1967,
has not been cast for International Brotherhood of
Operative Potters, AFL-CIO, and that said labor
organization is not the exclusive bargaining
representative in the unit found appropriate within
the meaning of Section 9(a) of the Act, as
amended.
Excelsior Underwear Inc, 156 NLRB 1236
The Petitioner contends that since the employees solicited by Bruce
and Smith were told that the petition would show management where the
employees stood and that Westmoreland and Rowlands would receive co-
pies of the petition , the circulation of the petition was analagous to a poll,
in which the polling standards set forth in Struksnes Construction Co , Inc,
165 NLRB 1062, were not met,, and that this is an independent basis for
setting aside the election . In view of our finding that the Employer was not
in any way responsible for the petition, we find it unnecessary to pass upon
the Petitioner 's contention
The Petitioner excepts to the Hearing Officer's credibility findings and
conclusions with respect to the signatures of Buckanan and Willie Me-
Gaughy which appear on the printed copies of the petition sent to all the
employees , contending that their signatures were unauthorized and that
this constitutes a material misrepresentation which is an independent basis
for setting aside the election. Although we find merit in the Petitioner's ex-
ceptions to the Hearing Officer's credibility findings with respect to
Buckanan 's and McGaughy's signatures , even if we were to assume that
Buchkanan's and McGaughy 's signatures were misrepresented on the peti-
tion, we would not set aside the election since, in our opinion, this is not the
type of misrepresentation that would have a substantial impact on the con-
duct of the election -