Kroder-Reubel Co., Inc.

In the Matter of KRODER-REUBEL COMPANY, INC., EMPLOYER and UNITED CONSTRUCTION WORKERS, UNITED MINE WORKERS OF AMERICA, A. F. OF L., PETITIONER Case No. 2-R-6993.-Decided January 22, 1947 Mr. Jacob Fogelson, of New York City, for the Employer. Mr. Harry Friedson, of New York City, for the Petitioner. Mr. Philip Licari, of counsel to the Board. 0 DECISION AND CERTIFICATION OF REPRESENTATIVES Upon a petition duly filed, the National Labor Relations Board, on September 13, 1946, conducted a prehearing election among the employees in the alleged appropriate unit, 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 reveals that there were approximately 50 eligible voters, of whom 22 voted for the Petitioner and 21 against, with 1 ballot challenged.' Upon the entire record in the case,.the National Labor Relations Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Kroder-Reubel Company, Inc., a New York corporation, is engaged at Brooklyn, New York, in the manufacture of draperies, carpets, linoleum, hardware, and other accessories. Annually, the Employer purchases raw materials valued in excess of $50,000, of which 75 per- cent is obtained from sources outside the State of New York. During the same period, the Employer sells finished products valued in excess of $100,000, of which 50 percent is shipped to points outside the State. 1 The ballot was challenged by the Board' s agent because the employee 's name did not appear on the eligible list of voters. At the hearing, the parties agreed that the challenge should be upheld. In accordance with the agreement of the parties , the challenge to the ballot in question is hereby sustained. 72 N L. R B., No. 46. 240 KRODER-REUBEL COMPANY, INC. 241 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 American Federation of Labor, claiming to represent employees of the Employer. o III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of the 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. THE APPROPRIATE UNIT We find, in accordance with the agreement of the parties, that all production and maintenance employees of the Employer at its Brook- lyn, New York, plant, including shipping employees, watchmen, and the production clerk, but excluding office and selling department em- ployees, executives, 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, con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE OBJECTIONS TO THE ELECTION In its objections, the Employer seeks to set aside the election on the following grounds : (1) William J. Pohmer, a national representa- tive of the Petitioner, acted as an observer for the Petitioner during the election; (2) G. Lyons acted as an observer on behalf of the Peti- tioner and also voted in the elections; (3) William J. Pohmer, a na- tional representative of the Petitioner, electioneered during the elec- tion within one or more locations unreasonably close to the polling place, and thereby influenced, intimidated, and coerced the employees into voting for the Petitioner in the election; and (4) the Petitioner made false and untrue statements to the employees in order to in- fluence, intimidate, and coerce them into voting for the Petitioner and otherwise interfered with the right of the employees freely to vote in the election. At the hearing, the Employer raised two additional objections to the conduct of the election, namely, that one of the employees, G. 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Zerilli, was permitted to vote, notwithstanding that he did not under- stand the English language, or the meaning of the ballot, and that another, G. Lyons, Jr., was permitted to vote even though he was under the age of 18 years.2 With respect to the first objection, the record reveals that Pohmer's sole function was to check the count and receive the Tally of Ballots at the end of the election and that he was, in fact, absent from the polling place during the entire voting period. As to the second objection, we find no impropriety in the fact that Lyons, an eligible voter, acted as observer for the Petitioner and also voted. The third objection is based on the fact that during the election Pohmer stood at points from 100 to 250 feet away from the polling place and there approached a few of the employees for the purpose of exhorting them to vote for the Petitioner. It is clear that Pohmer did not engage in acts of coercion and that he electioneered outside the plant, and at reasonable distances from the polling place.3 Accord- ingly, we find nothing in Pohmer's actions to lead us to conclude that he interfered with the proper conduct of the election. The fourth objection is predicated on the following: (1) that the Petitioner's literature distributed before the election among the em- ployees contained false and untrue statements concerning the Em ployer; and (2) that a week or more before the election Pohmer during the course of a strike of the plant employees, approached watchman Gosshell, a non-striking employee, in an attempt to per- suade the latter not to allow a coal truck to enter the Employer's premises, and when this employee refused to turn the truck away, Pohmer remarked that, "when the Union got in they would take care of him." The literature in question was clearly in the nature of cam- paigii propaganda and, as the Board stated in Hatter of Maywood Hosiery Mills, Inc.,' "Absent violence, we have never undertaken to police union organization or union campaigns, to weigh the truth or falsehood of official union utterances, or to curb the enthusiastic ef- forts of employee adherents to the union cause in winning others to their conviction." Further, Pohmer's remark to Gosshell was made at a date reasonably remote from the time of the election. As to the two additional objections raised at the hearing, we find them without substance. With respect to Zerilli's voting, the record shows that the Board's Field Examiner conducting the election ex- plained the meaning of the ballot to Zerilli and the latter indicated that he understood it before he voted. As to G. Lyons, Jr., we find 2 Neither Zerilli's nor Lyons' ballot was challenged. 8 It appears that the Field Examiner conducting the election did not set any territorial limits within which electioneering was prohibited. 164 N. L.R.B 146 at 150 ItRODER-REUBEL COMPANY, INC. 243 that his age has no effect on his eligibility to vote in an election con- ducted under the auspices of the Board. We find that the Employer's objections to the election are without merit. Accordingly, they are hereby overruled. VI. THE DETERMINATION OF REPRESENTATIVES The results of the election held previous to the hearing disclose that the Petitioner has secured a majority of the valid votes cast. Under these circumstances, we shall certify the Petitioner as the exclusive bargaining representative of the employees in the unit hereinbefore found appropriate. CERTIFICATION OF REPRESENTATIVES IT IS HEREBY CERTIFIED that United Construction Workers, United Mine Workers of America, A. F. of L., has been designated and selected by a majority of the Employees in the unit discussed in Sec- tion IV, above, as their representative for the purposes of collective bargaining and that, p}irsuant 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. CHAIRMAN HERZOG took no part in the consideration of the above Decision and Certification of Representatives.