Robbins Tire & Rubber Co., Inc.

In the Matter of ROBBINS THE & RUBBER Co., INC., EMPLOYER and INTERNATIONAL ASSOCIATION OF MACHINISTS, PETITIONER Case No. 10-R-1912.Decided January 16, 1947 Messrs. Mitchell and Poellnitz , by Mr. Charles A. Poellnitz, of Flor- ence, Ala., for the Employer. Mr. Jack H. Crunk , of Atlanta , Ga., and Mr. W. H. Johnson, of Sheffield, Ala., for the Petitioner. Mr. Benj. E. Cook, of counsel to the Board. DECISION AND ORDER Upon an amended petition duly filed, the National Labor Relations Board on July 10, 1946, conducted at prehearing election among the employees of the Employer in the unit hereinafter found appropriate, to determine whether or not they desired to be represented by the Petitioner for the purpose of collective bargaining. At the close of the election a Tally of Ballots was furnished the parties. The Tally shows that there were approximately 48 eligible voters of whom 29 cast ballots for the Petitioner and 19 cast ballots against the Petitioner. Thereafter, a hearing was held at Tuscumbia, Alabama, on July 26 and- 29, 1946, before Mortimer H. Freeman, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Robbins Tire & Rubber Company, Inc., an Alabama corporation, has its principal office and place of business in Tuscumbia, Alabama, where it is engaged in the manufacture, sale, and distribution of rub- ber inner tubes and related products. During the calendar year 1945, the Employer purchased raw materials and supplies valued in excess of $1,000,000, of which more than 90 percent was shipped to it from points outside the State of Alabama. During the same period, the 72N.L R B, No 2:. 157 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer manufactured and sold finished products valued in excess of $1,000,000, of which more than 50 percent was shipped from its plant to points outside the State of Alabama. The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. II. TILE ORGANIZATION INVOLVED The Petitioner is a labor organization claiming to represent em- ployees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive representative of employees of the Employer until the Petitioner has been certified by the Board in an 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. TILE APPROPRIATE UNIT We find, in substantial accord with the agreement of the parties, that, all maintenance employees of the Employer at its Number One plant, Tuscumbia, Alabama, including helpers, firemen, oilers, toolroom attendants (storekeepers), plumbers and steam fitters, but excluding all teamsters, chauffeurs, production, office and clerical 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, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. TILE DETERMiNATION OF REPRESENTATIVES The Employer objects to the conduct of the election and seeks to have it set aside on the grounds (1) that the Board's representative kept the ballot box in his possession while the polls were closed; and (2) that before the election certain of its supervisory employees influ- enced and coerced employees in regard to union membership and thus prevented them from exercising full freedom of choice in the election. As to the second object the Petitioner contends that a letter which the Employer circulated among its employees on the eve of the elec- tion nullified any coercive influence which the supervisors may have exerted upon their subordinates. 1. Removal of the ballot box: The election was conducted in the morning and afternoon of July 10, 1946. During the interval when ROBBINS TIRE & RUBBER CO., INC. 159 the polls were closed the ballot box was removed from the polling place and retained in the possession of a representative of the Board. The Employer does not contend that the ballot box was opened other than at the polls and in the presence of the observers. We therefore can see no basis for the Employer's contention that the election results were affected by the removal of the ballot box from the polling place; accordingly, we overrule this objection. 2. The conduct of supervisory employees: Robert Ricks, an em- ployee in the electrical maintenance department, testified that shortly after he was employed on December 6, 1945, Louis S. Colburn, chief electrician in charge of the electrical department, urged him to join the International Brotherhood of Electrical Workers, assisted hmn with the completion of his membership application form, and filed the application for him at I. B. E. W. headquarters. Ricks further testified that Colburn told him that if he did not joint the I. B. E. W., it would "go hard" with him. Fred Betts, another subordinate of Colburn, testified that he had often heard Colburn recommend I. B. E. W. membership to fellow employees, and that Colburn had repeatedly urged him to join, commenting on one occasion that if he did so things would "go easy with him." Although Colburn, who, testified that he had been a member of the I. B. E. W. for 9 or 10 years, denied generally that he had ever solicited union membership or otherwise urged employees to join a union,' he admitted that he had expressed his opinion concerning union membership to his em- ployees, adding that if lie thereby coerced them "it was unintentional." We credit the testimony of Ricks and Betts, and find that Colburn actively engaged in the solicitation of membership for I. B. E. W. among the employees under his supervision. About the middle of May 1946,2 Colburn and Paul Kizziah, another maintenance supervisor, sponsored a picnic for the employees of the mechanics and electrical maintenance departments. Clyde McGee, a maintenance employee in the mechanical department, testified that he attended the picnic at the invitation of Kizziah, and that Colburn addressed the employees and then requested W. H. Johnson, business agent for the Petitioner, to explain the benefits to be derived should the Petitioner succeed in its c•rganizing effort. McGee stated that John- son thereupon complied, urging employees to join the Petitioner, and that while Johnson was talking, Colburn passed out "cards" for the ' The following is a quotation from Colburn 's testimony Q (Bv 'trial Examiner FREFU 1N ) Did you talk to any of them, Mr Colburn Did you eves approach any new employees and ask them if they belonged to the Union' A No, sir, because I knew how they stood anyway [ Italics supplied 1 The petition in this case bids filed on May 20, 1946 731 242-47-vol 72-12 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees to sign. McGee further testified that about a week before the election, Colburn said to him, "don't let us down; don't let us down," which remark he interpreted as a request by Colburn to vote for the Petitioner. Employee Robert Ricks also testified that he was invited by Colburn to attend the picnic and that Johnson made a speech in which lie urged the employees to join the Petitioner. Employee Fred Betts testified that he was invited by Colburn to attend the picnic, but did not do so. Colburn did not specifically deny McGee's testimony and admitted that he had sponsored the picnic with Kizziah and that Johnson was present. He denied generally, however, that he had ever urged employees to join the Petitioner or advised them as to how they should vote in the election. Colburn stated that when employees sought his advice he at all times replied, "let your conscience be your guide." In view of Colburn's interest in union affairs, as revealed by his prior activities in connection with the I. B. E. W., his admitted spon- sorship of the picnic, and his failure specifically to deny McGee's corroborated testimony, we credit McGee's account of the picnic and his version of his conversation with Colburn shortly before the elec- tion, and find that Colburn actively solicited membership for, and en- couraged employees to join, the Petitioner, and thereby interfered with the exercise by the employees of a free and untrammeled choice of a bargaining representative.' On July 9, 1946, the day before the election, the Employer's vice president distributed a letter to all maintenance employees, stating that an election was to be held the following day and that there "will be no coercion of any kind from any person or any group.," After an explanation of the voting procedure, the notice concluded with the statement that "I firmly believe the method we have always followed is to the advantage of both myself and all of you. The decision, however, rests with you." Although the foregoing letter reveals an indication by the Employer of its intention to maintain neutrality during and after the forthcoming election, it cannot be said to constitute such a disavowal of the past unneutral conduct by Supervisor Colburn as would normally have dissipated the effect of his activities in behalf of the Petitioner. In view of the foregoing, we find that the election on July 10, 1946, did not permit the employees to exercise the full freedom of choice envisaged by the Act, and we shall therefore set the election aside. We shall direct that a new election be conducted when the ' Because of their remoteness and the fact that they involved a union other than the Petitioner, we do not find that Colbnrn's activities with regard to the I B E R' consti- tuted interference with the election They do, however, provide significant background against which to affirm his later conduct in behalf of the Petitioner heiem ROBBINS TIRE & RUBBER CO., INC. 161 Regional Director advises us that such election may appropriately be lie] d.' In setting the election aside, however, we desire to make it clear that the Employer hereafter may not expect to avoid an election of a bargaining representative for its employees by raising new objections based upon future misconduct by its own supervisory em- ployees. The Employer is now fully aware of the tendency of at least one member of its supervisory staff to interfere in the union activities of employees under their supervision and consequently must be held accountable if it fails effectively to disavow or otherwise prevent such misconduct with respect to future elections. ORDER Jr is liEI Ei Y ORDEIZEI) that the election held among the employees of Robbins Tire & Rubber Co., Inc., on July 10, 1946, be, and it hereby is, set aside. Mn. JouN M. HOluSTON, dissenting: The Employer introduced evidence of certain conduct by one Col- burn, its chief electrician and a supervisory employee, which it con- tends interfered with the freedom of its employees to select a collective bargaining representative. Colburn's activities are now urged upon us as a basis for nullifying the results of this election at which a ma- jority of these employees selected the Union. Taking the Employer's position at its face value, it amounts, in effect, to a plea that this Board should refrain from certifying the majority choice of the voters be- cause the Employer has violated the Act. Such a position conflicts squarely with the now well-established doctrine that this Board will not recognize unfair labor practices as creating equities. I consider the evidence of Colburn's activities as incompetent and would not have received it, and consequently I would certify the Union. Inasmuch as we have not found that the Employer condoned the activities of Super- visor Colhurn in assisting Petitioner, the Regional Director shall incorporate in the Notice of Election for any new election we shall direct herein , the following statement In setting aside the election held on July 10, 1945, the Board did not find that the Employer approved or ratified the improper conduct engaged in by its supervisory employee before such election At the post-election hearing before the Board, the Emn- ployer specifically denied all knowledge of and disavowed such misconduct on the part of its supervisor