K. Barthelmes Manufacturing Co, Inc.

In the Matter of K. BART]IELMES MANUFACTURING COMPANY, INC., AND NUNN BRASS WORKS, EMPLOYER and UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA, C. I. 0., PETITIONER Case No. 3--R-1347.-Decided October 31, 1946 Mr. 147inslow E. Thomson, of Rochester, N. Y., for the Employer. Messrs. Hugh Harley, Jr., and Ted Buizek, both of Rochester, N. Y., for the Petitioner. Mr. Lewis H. Ulman, of counsel to the Board. DECISION AND CERTIFICATION OF REPRESENTATIVES Upon a petition duly filed, the National Labor Relations Board on August 28, 1946, conducted a prehearing election pursuant to Section 203.49, of the Board's Rules and Regulations, among the employees in the alleged appropriate unit, to determine whether or not they de- sired to be represented by the Petitioner for the purposes of collective bargaining. At the close of the election, a Tally of Ballots was furnished the parties. The Tally shows that of approximately 42 eligible voters, 40 cast valid ballots, of which 24 were for the Petitioner and 16 against. Two ballots were challenged. Thereafter, pursuant to Section 203.55, of the Board's Rules and Regulations, a hearing was held at Rochester, New York, on September 5, 1946, before Francis X. Helgesen, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER K. Barthelmes Manufacturing Company, Inc., and Nunn Brass Works, Inc.,1 are both New York Corporations with the principal office I The two companies are jointly referred to, herein, as the Employer. 71 N. L. R. B., No. 79. 513 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and plant of each located in the same building at 15 Cairn Street, Rochester, New York. K. Barthelmes Manufacturing Company, Inc., is engaged in the stamping and deep drawing of all types of metals. Nunn Brass Works, Inc., manufactures machine parts and subassem- blies. The principal officers and majority stockholders of both com- panics are all members of the family of Albert C. Wischmeyer, and the managing officers of each company have full management powers with respect to the other company. For the calendar year 1945, the two companies purchased raw materials valued in excess of $100,000, more than 50 percent of which was purchased from sources outside the State of New York. During the same period, the companies sold fabricated or manufactured prod- itets valued in excess of $100,000, approximately 20 percent of which was shipped to customers located outside the State. The Employer admits, and we find, that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED The Petitioner is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of employees of the Employer in the alleged appropriate unit. We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT We find, in accord with the agreement of the parties, that all pro- duction and maintenance employees of the Employer, excluding cleri- cal and technical employees and all supervisory employees with au- thority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES The Employer seeks to set aside the election, alleging in substance that (1) in ordering an election during a strike "the Board acts directly contrary to its statutory function, namely : `To diminish the K. BARTHELMES MANUFACTURING COMPANY, INC. 515 causes of labor disputes"'; (2) the Petitioner maintained the equiva- lent of a picket line near the polling place and that on several occa- sions strikers and union organizers violated the order of the Board agent in charge of the election by going within 100 feet of the polling place for purposes other than voting; (3) the Board agent in charge of the election told the Employer's observer during the election that she must state, in advance, how many voters she intended to challenge and give the names of such voters; and (4) that the ballot box was left unattended for a short period during the election? With regard to the first objection, the time for holding an election in a representation proceeding was entrusted by Congress to the sole discretion of this Board.3 Experience has proved that a prompt election has prevented threatened strikes or rapidly terminated exist- ing strikes in many instances. In this case the wisdom of conducting any early election is attested to by the fact that the strike, which was in effect when the election was held, was terminated shortly thereafter.4 As to the second objection, the Employer introduced in evidence six photographs allegedly taken during the course of the voting, three of which show a number of men standing around automobiles parked at a point estimated to be 70 or 80 feet from the polling place. The Petitioner alleges that these pictures were taken before the polls were opened. We find it unnecessary to resolve this conflict in the testimony for, assuming that the pictures were taken during the course of the election, there is no evidence in the record of any electioneering or coercion of the voters. Except for a conference between representatives of the Petitioner, representatives of the Employers, and the Board agent in charge of the election held in front of the voting place, discussed below, the record discloses that no group of strikers or union officials was less than 70 or 80 feet from the polling place at any time during the election. The striking employees approached the polling place singly or in small groups from one direction and the non-striking employees ap- proached in the same manner from a different direction. One of the Employer's officials who observed the election from a window of the plant testified that he did not see anyone from either group ap- proach or communicate in any way with the other group. While we do not condone the presence of anyone but voters within the neutral area surrounding the polls, the alleged picketing and violations of the restricted area fail to impress us as having created 2 The Employer also alleged that various acts of terrorism and coercion were practiced by the Union prior to the election, but since the record does not disclose any evidence in sup- port thereof, we find no merit in this objection. 3 N. L. R B. v. Waterman Steamship Corporation, 309 U S 206 4It is significant to note that , in spite of the fact that the election was conducted while some of the employees were on strike , all of the approximately 42 eligible voters cast ballots. 516 DECISIONS Or NATIONAL LABOR RELATIONS BOARD any impediment to the fair conduct of the election, which was held by secret ballot and subject to the scrutiny of interested parties. On the contrary, we are impressed by the orderly manner in which the election was conducted in view of the fact that some of the employees were on strike and others were not. With regard to the third objection, the record discloses that the Employer's observer challenged the third voter who appeared at the polls. A representative of the Petitioner testified that he feared that the Employer might challenge enough voters so that the results of the election would not be conclusive until after a hearing on the chal- lenges was concluded. Accordingly, he approached the polling place where he conferred with the Board agent in the presence of the Peti- tioner's observer and the Employer's observer. He said, in effect, that if the Employer's observer contemplated challenging many voters who were on the eligibility list that the strikers would not participate further in the election. The Employer alleges that, following this threat, the Board agent in charge of the election instructed the Em- ployer's observer that she must then name all of the voters whom she intended to challenge, and further gave her the impression that he would call off the election unless she agreed to make no more challenges. The Employer points out that, thereafter, its observer, pursuant to a promise allegedly exacted by the Board agent, made no more chal- lenges. Assuming the Employer's allegations to be correct, there would be merit in its third objection if there were no means of cletermming the consequences of the alleged promise to make no more challenges. The Employer's cbserver testified, however, that no further challenges were contemplated at any time, with the possible exception of two employees referred to as students, and it is conceded that if these two challenges had been made they would not affect the outcome of the election. Since the Employer does not contend that any ineligible voters voted in the election, we find no merit in its third objection. The Employer's final objection requires little discussion for while the ballot box was left unattended during the conference relating to the Challenges to be made by the Employer, mentioned above, the record discloses that no one was in the voting trailer at the time and the conference took place in front of its only door. Following the elec- tion the observers, including the Employer's observer, and the Board agent certified that the secrecy of the ballot box was maintained. The Employer's observer also testified at the hearing that she had no mis- givings on this score. We find that none of the Employer's objections, set forth above, raise substantial or material issues with respect to the conduct of the election, and they are hereby overruled. K. BARTHELMES MANUFACTURING COMPANY, INC. 517 The results of the election held previous to the hearing show that the Petitioner has secured a majority of the valid votes cast and that the challenged ballots are insufficient in number to affect the results of the election. Under these circumstances, we shall not direct that the challenged ballots be opened and counted but instead we shall certify the Petitioner as the collective bargaining representative of the employees in the appropriate unit. CERTIFICATION OF REPRESENTATIVES IT IS HEREBY CERTIFIED that United Electrical, Radio and Machine Workers of America, C. I. 0., has been designated and selected by a majority of all production and maintenance employees of K. Barthel- mes Manufacturing Company, Inc., and Nunn Brass Works, Roch- ester, New York, excluding clerical and technical employees and all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action, as their representatives for the purposes'of collective bargaining and that pursuant to Section 9 (a) of the Act, the said organization is the exclusive representative of all such employees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. Cr-JAn MAN HERZOG took no part in the consideration of the above Decision and Certification of Representatives. 4