Peabody Engineering Co.

952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that a question affecting commerce exists concerning the representation of the Employer's employees within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. In accordance with an agreement of the parties, we find that the following employees of the Employer constitute a unit appro- priate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act: All production and maintenance employees at the Employer's Fitzgerald, Georgia, textile mill, includ- ing watchmen-firemen, chief electrician, and section-men,7 but ex- ,eluding all office clerical employees, guards and gatemen, profes- sional employees, overseers, and other supervisors. [Text of Direction of Election omitted from publication in this volume.] 7 After the issuance of the Board' s decision in the earlier case, noted in footnote 1, supra, the Employer removed all supervisory powers from section-men. PEABODY ENGINEERING COMPANY and LODGE 1887, INTERNATIONAL ASSOCIATION OF MACFIINISTS, PETITIONER. Case No. 2-RC-3049. August 3, 1951 Decision, Order, and Direction of Election Pursuant to a "Stipulation for Certification upon Consent Elec- tion" entered into by the parties hereto, an election by secret ballot was conducted in the above-entitled proceeding on January 24, 1951, among the Employer's production and maintenance employees, under the direction and supervision of the Regional Director for the Sec- ond Region. Upon the conclusion of the election, a tally of ballots ,was furnished the parties in accordance with the Rules and Regula- tions of the Board. The tally shows that of approximately 78 eligible voters, 74 ballots were cast, of which 36 were for, and 38 against, the Petitioner. Thereafter, on January 26, the Petitioner filed timely objections to the conduct of the election on the ground that the attorney for the Employer was permitted to act as observer for the Employer over the protest of the Petitioner, thus interfering with the freedom of choice of the employees. The Regional Director investigated the objections and issued his report on objections, recommending that the objections be sus- tained and the election set aside. Thereafter, the Employer filed timely exceptions to the report on objections. 95 NLRB No. 95. EABOI)Y ENGINEERING COMPANI' 953 "Pursuant to the provisions of Section 3 (b). of the At, the Board biasdelegated its powers in `connection with this case to a three-member panel [Chairman"Herzog and Members Houston and Reynolds]. ' The recommendation of the Regional Director is based upon the, following circumstances setforth in the repo rt on objections : I Before the ;election the Employer; acting through its-attorney, A. V. Cher-, bonnier, filled out a'"Designation of Observer" form, supplied by the Regional Director. This form provided spaces for the Employer to designate two "nonsupervisory employees" as its observers, and con- eluded with the following statement: "The undersigned certifies that all of the above-named observers are nonsupervisory,employees of the employer." The form was, signed for the Employer by Cherbonnier, who listed himself, and one Gloria Kelly, as observers for the Em- ployer. Cherbonnier was not an employee of the Employer. Just before the polls opened, the Board agent ' inquired of Cher- bonnier whether he was an "official" of the Employer, and the attorney replied that he-was not. The agent apparently assumed from this reply that Cherbonnier was a nonsupervisory employee of the Em- ployer and therefore eligible to act as an observer, and opened the election. During the course of the election a representative of the . Petitioner appeared at the polling place, and the Board agent re- quested that he leave; but before leaving, the representative informed the Board agent of Cherbonnier's.status as the Employer's attorney.? However, the agent did not request Cherbonnier to leave, and he remained at the polling place. We agree with the Regional Director that the election should be set aside. It is well established Board policy that, in the interest of free elections, persons closely. identified with the employer may not act as observers.3 And this rule has been applied so as to preclude an employer's attorney from acting as an observer.4 In the instant case 'the$oard agent was aware of the fact that Cherbonnier was the Employer's attorney but apparently believed that Cherbonnier acted in that capacity, as an employee of the Employer. That conclusion 1 We find no merit in the Employer 's contention that it has had no opportunity to present any evidence bearing on the issue involved herein. The Petitioner 's objections were served on the Employer , and thereafter the Employer in a letter to' the Regional Director took exception to certain statements made in the objections . Moreover, the Employer's exceptions to the report on objections takes issue , with only one factual finding of the Regional Director (the finding that Cherbonnier was present throughout the election). In the view we take of this case, that finding is not determinative of the result we reach. 2 Because of this fact we find without merit the Employer's contention that the Petitioner waived the conduct asserted as the basis of its objections. 8 The Ann Arbor Press, 88 NLRB 391; Burrows & Sanborn, Inc., 84 NLRB 304; Hoague-Sprague Corporation, 80 NLRB- 1699; Harry Monaster & Bros., et al., 61 NLRB 1373; Wiley Mfg., Inc., 93 NLRB 1600 ; Paragon Rubber Co., 7 NLRB 965. Parkway Lincoln-Mercury Sales, Inc., 84 NLRB 475. 4 The Union Switch & Signal Company, 76 NLRB 205. 954 DECISIONS OF NATIONAL, LABOR - RELATIONS BOARD was clearly warranted in view of Cherbonnier's certification on the "Designation of Observer" form-contrary to the fact-that he was a nonsupervisory employee of the Employer. Nor. did Cherbonnier make any effort to dispel this misapprehension when he was later asked by the Board agent whether he'was an "official" of the Employer. . It is thus clear that the instant election was conducted in a manner which deviated from the Board's usual standards, and that such devia- tion was the direct result of a misstatement by the Employer's attor- ney. Confidence in, and respect for, .established Board election procedures cannot be promoted by permitting the kind of conduct involved here to stand. In these circumstances, the Employer's con- tention-which our dissenting colleague finds persuasive-that Cher- bonnier's presence could not have had a coercive effect on the voters is besides the point. We conclude that the purposes of the Act will best be served by setting aside the instant election. Accordingly, we shall set aside the election and shall direct. a new election among the employees in the unit described in Section 11 of the "Stipulation for Certification upon Consent Election." Order IT.IS ]HEREBY ORDERED that the election of January 24, 1951, conducted among the production and maintenance employees of Peabody En- gineering Company, be, and it hereby is, set aside. Direction of. Election As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with the Employer, an election by secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under the direction and supervision of the-Regional Director for the Region in which this case was heard, and subject to Sections 102.61 and 102.62 of National Labor Relations Board Rules and Regulations, among the employees in the unit found appropriate in Section 11 of the "Stipulation for Certification upon Consent Election," who were employed during the payroll period im- mediately preceding the date of this Direction of Election, including employees who did not work during said payroll period because they were ill or on vacation or temporarily laid off, and employees in the military services of the United States who appear in person at the polls, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the.date of the election, and also excluding employees on strike who 'are not en- titled to .reinstatement, to determine whether or not they desire to be represented, for purposes of collective bargaining, by Lodge 1887, In- ternational Association of,Machinists. PEABODY ENGINEERING COMPANY 955 MEMBER REYNODDS, dissenting : I would not set aside the election in this case. In the first place, I perceive no misrepresentation by Cherbonnier, the Employer's attorney, in acting as an observer at the, election. More than 2 weeks before the election, at the request of a Board agent and on an appropriate "Designation of Observer," the Employer, in writ- ing, designated Cherbonnier as its representative to receive the tally of ballots and to act as an observer ; on the same form, Cherbonnier was listed as the Employer's attorney. On the date of the election, an identical form was submitted by Cherbonnier to the Board agent con- ducting the election. It is admitted that the Board agent. knew that Cherbonnier was the Employer's attorney, and nevertheless raised no objection to Cherbonnier as an observer. That Cherbonnier was employed as the Employer's attorney was therefore well publicized to the Board and the Petitioner; and that Cherbonnier, as attorney for the Employer, was to act as observer was equally as well known. Under these circumstances, whether or not Cherbonnier was one of the Employer's "nonsupervisory employees" as the "Designation of Observer" form indicated, is largely a question of :semantics. What is important, and what in my opinion is clear,- is that Cherbonnier's representations misled no one nor were they calcu- lated to mislead anyone. It cannot be said therefore that the Employer displayed such a lack of confidence in, or respect for, established Board election procedures as warrants setting this election aside. There remains only the question of whether the presence of Cher- bonnier at the voting place, acting as an observer for the Employer, tended to interfere with the employees' free choice of a bargaining representative. Although Cherbonnier was closely identified with the Employer, there is no evidence that his presence at the polls had a co- ercive effect upon the voters-indeed, one may speculate as to how many voters were aware of Cherbonnier's identity as he was, so far as the record shows, neither an official nor a supervisor of the Employer. The Board has held that, although a union official should not ordinarily' be designated to. act as an observer, the mere presence of such an in- dividual if his conduct throughout an election was exemplary would not prevent a free choice by the employees.' So here, while joining my colleagues in disapproving the practice of permitting company at- torneys to act as observers, I believe the circumstances of this case com- pel the view that no impairment of the free choice of employees was occasioned ,by the previously approved presence of Cherbonnier as a company observer. - 6 United States 'Gypsum Company . 80' NLRB 1205. See Federal-Mogul Corporation, 73 NLRB 359. .