Seamprufe, Inc.

SEAMPRUFE, INC. 645 gerial employees. The estimators analyze orders submitted by field engineers and customers and fix the price to be charged. The calcula- tions made by the estimators are substantially final. In making their calculations, they have to exercise discretion and judgment. As it appears that the estimators may establish prices and thus commit the Employer financially to third persons, we find that they are managerial employees and shall, therefore, exclude them from the unit.' We find that all technical employees at the Employer's plant in Detroit, Michigan, including draftsmen detailers, draftsmen I and II, model makers,1° laboratory technicians, blueprint and photostat oper- ators," special engineering order bill of material writers and cost clerks, bill of material and routing engineers, engineering detail checkers, methods engineers, tool and die draftsmen, and tool inspector trouble-shooters, but excluding material writer and cost clerks, art layout men, copywriters, estimators, follow-up men (sales service), perpetual inventory working supervisors, production plan- ners, students receiving training under arrangement with the Uni- versity of Detroit, and supervisors, as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] 9The Electric Controller it Manufacturing Company, 69 NLRB 1242. 10 Delta Manufacturing Division, Rockwell Manufacturing Company, 89 NLRB 1434. n Delta Manufacturing Division, Rockwell Manufacturing Company, supra. SEAMPRUFE, INC. and LOCAL 234, INTERNATIONAL LADIES' GARMENT WORB.ERs' UNION, AFL, PETITIONER. Case No. 4-RC-1130. Octo- ber 4,1951 Decision and Certification of Representatives On April 27, 1951, pursuant to a stipulation for certification upon consent election, executed by the Employer, Local 234, International Ladies' Garment Workers' Union, AFL, herein called the ILGWU, and the Seamprufe Employees' Association (of Easton), herein called the Association, an election by secret ballot was conducted among the employees of the stipulated unit under the direction and supervision of the Regional Director for the Fourth Region. Upon the comple- tion of the election, a tally of ballots was issued and duly served by the Regional Director upon the parties. 96 NLRB No. 92. 974176-52-vol. 96-42 '646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The tally showed that of approximately 217 eligible voters, 208 cast ballots, of which 56 were for the ILGWU, 145 were for the Associa= tion, 3 were against both, and 4 were challenged. The ILGWU filed timely objections to conduct affecting the election. It asserted that certain activity of the Employer and the Association, more fully set forth infra, prevented a free choice by the employees in the balloting, and requested that the election be set aside. Follow- ing investigation, the Regional Director on May 31, 1951, issued a report on objections, in which he found that none of the objections raised substantial and material issues, and accordingly recommended that the objections be dismissed. Thereafter, the ILGWU filed excep- tions to the report on objections. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Murdock]. Upon the entire record in this case the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organizations involved herein claim to represent em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The ILGWU's objections do not raise material or substantial is- sues with respect to the election for the following reasons : Objection 1. The ILGWU asserts that during the week preceding the election the supervisors of the Employer advised certain night shift employees that if the ILGWU won the election, the night shift would be abolished. The Regional Director found that the supervisors stat- ed-apparently because of their belief as to common - practice in ILGWU shops-that the more numerous day shift employees would, if there were insufficient jobs, vote to restrict the available work to their own shift. The Regional Director further found that on the eve of the election Harold Caplin, top official of the Employer, made a speech to the night shift employees in the course of which he referred to "rumors" about shutting down the night shift and assured them that "as long as you can make money and make money for us by having the night shift, it will be here whether union or no union." The Regional Director concluded, without deciding whether the supervisors' state- ments, standing alone, warranted setting aside the election, that the dis- avowal by Harold Caplin was sufficient to offset any effect the super- SEAMPRUFE, INC. 647 -visors' remarks might have had by way of interfering with a free ,expression of the employees' desires in the election. We agree." The ILGWU argues in its exceptions that the Regional Director erred in isolating the supervisors' statements from other facts relating to the Employer's conduct. It also denies that the supervisors referred to the ILGWU practice of favoring day shift employees and contends that, in any event, it was false and misleading to say that the ILGWU has any such rule. As we agree with the Regional Director's con- clusion concerning the disavowal of the supervisors' statements, -whatever their original effect, we do not find it necessary to pass upon these contentions. Moreover, we find no merit in the ILGWU's con- tention that Caplin's speech was made so long after the -supervisors' remark that it was not a sufficient disavowal of such remarks. Com- ing as it did on the eve of the election, and from the top official of the Employer, the assurance that the night shift would continue was sufficiently definite, authoritative, and timely to dissipate any force these statements may have had. Finally, as the ILGWU fails to cite any specific evidence in support of its insistence that the disavowal be considered against the background of the whole speech, we find this additional argument to be of no weight 2 Accordingly, we find the first objection to be without merit. Objections 2, 3, and 4. The ILGWU alleges in substance that the Employer on or about April 25,1951, caused or permitted officers of the Association to solicit get-well cards for William Caplin, an owner of the Employer, who was allegedly ill; that employee Nellie Nausbaum was abused by Association President Walsh and threatened by Harold Caplin for refusing to sign a card; and that Plant Manager Rosenfelt and Nausbaum's brother sought to compel Nausbaum to change her position. The Regional Director found that the get-well cards were circulated by the Association during working hours in accordance with long- established custom. His investigation also disclosed the following : Nausbaum refused to sign a card at Walsh's request asserting that William Caplin, father of Harold Caplin, was not seriously ill and the solicitation was a trick to evoke the employees' sympathy before the election. Upon being apprised by Walsh of Nausbaum's intransigence, Rosenfelt summoned Nausbaum and stated that her comment about William Caplin's health was "malicious" and "untrue." When'Naus- baum refused to repudiate her stand, Rosenfelt told her that if she continued to circulate her story about William Caplin's feigned heart ' Fulton Bag cE Cotton Mills, 89 NLRB 943; Beatrice Foods Company, 84 NLRB 493; The Fairbanks Company, 81 NLRB 864. Cf. Hobart Manufacturing Company, 92 NLRB 203. 1 Southern Wood Preserving Company, 89 NLRB 1243. 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attack, there would be serious -repercussions.3 Similar efforts to secure a retraction were made in vain by Nausbaum's brother, head cutter Clarence Jones. In preelection speeches appealing to the employees to give him the news his seriously ill "Dad" would like to hear, Harold Caplin criticized Nausbaum and stated that but for the possibility of upsetting the election he would discharge Nausbaum. The Regional Director also reported that although the employees in her section refused to talk to Nausbaum, the supervisors did not dis- criminate against her in any manner.4 On April 26,1951, the ILGWU distributed circulars which referred to the Nausbaum incidents. The Regional Director concluded, and we agree, that in view of long-standing practice, the Employer, by permitting the Association to circulate get-well cards, was neither offering improper assistance to - the Association nor interfering with the employees' freedom of choice in the election. As the Regional Director found with respect to the controversy regarding William Caplin's health, the truth or falsity of preelection campaigning is not determinative of the propriety of the election, so long as the parties are in a position to rebut adverse prop- aganda.-' We agree also with the Regional Director's findings that Nausbaum's conduct was not related to any ILGWU or concerted activity and that the various criticisms of her 6 did not constitute co- ercive action by the Employer. The ILGWU in its exceptions contends that certain factors demon- strate that the solicitation was part of the Employer's campaign to enlist support for the Association : The timing of the solicitation and the absence of any previous solicitation on behalf of William Caplin despite hen earlier illness; the practice, if any, of directing get-well cards to fellow employees rather than company officials; the Em- ployer's interest in the solicitation as a preelection straw vote; and the solicitation and Nausbaum's dissension therefrom as concerted ac- tivity. The employees' expression of sympathy can hardly be con-" strued as a straw vote. Assuming that get-well cards had previously been restricted to employees only, the sending of such cards to- a com- pany official did not grant an improper advantage to the Association. The fact that officials of the Employer during the height of the election campaign challenged and criticized an employee for minimizing the seriousness of William Caplin's illness did not transform the em- ployee's conduct into concerted activity, despite the Employer's in- 3 Nausbaum testified and Rosenfelt denied that the latter also said , "We are going to win this election by a large majority and if we win , what then 9" 4 Nausbaum so testified. 5 West-Gate Sun Harbor Company, 93 NLRB 830; Western Electric Company, 87 NLRB 183. 6 Like the Regional Director , we are assuming but not finding that Walsh did rebuke Nausbaum. SEAMPRUFE, INC. 649 terest and the ILGWU's reference to the Nausbaum incidents in its circulars. Accordingly, we find that objections 2, 3, and 4 are without merit. Objection 5. The ILGWU states that on the day of the election the Employer caused or permitted representatives of the Association during working hours to parade through the plant with signs solicit- ing votes for the Association, to post association signs in the plant, and to circulate association literature among the employees. The Regional Director found that signs posted throughout the day by association supporters were removed by order of Plant Manager Rosenfelt only to be replaced by others each time they were taken down. Rosenfelt also had the parade stopped but some parading nevertheless continued. ILGWU literature as well as association leaflets were distributed during working hours without protest from the Employer. The Regional Director properly concluded that the Employer took reasonable steps to stop the posting and parading' and did not aid the Association's electioneering in view of the absence of any ILGWU request or employer refusal of similar privileges. However, the ILGWU in its exceptions disagrees about the ade- quacy of the Employer's efforts to stop the electioneering activity of the Association and explains its failure to seek similar privileges on the ground that it would have been futile to do so, especially in view of the disparate treatment accorded Nausbaum. Even if we accept the ILGWU's contention that the Employer was not sufficiently vigor- ous in proceeding against the Association, we do not find persuasive the ILGWU's contention that the Employer, which did permit adher- ents of the ILGWU to circulate their literature, would have undoubt- edly blocked ILGWU efforts to expand its campaign to the same scale as, that of the Association. Accordingly, we find no merit in the fifth objection .8 5. All production employees at the Employer's Easton, Pennsyl- vania, plant, excluding office and clerical employees, plant clericals, mechanics, watchmen, truck drivers, janitors, and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act .9 As the tally of the ballots shows that the Association has secured a majority of the ballots cast in the election, we shall certify the Asso- ciation as the bargaining representative of the employees in the ap- propriate unit. 4I. E. duPont do Nemours and Company , 81 NLRB 238. 8 In the event of a Board decision that the evidence is insufficient to warrant setting aside the election, the ILGWU requests that a hearing be held to resolve factual and credibility issues and to consider evidence of the Employer 's motive and hostility toward - the ILGWU. As the issues herein have been adequately presented and there is no serious dispute c)ncerning the facts , we see no reason for granting a hearing 9 The unit is thus described in the stipulation for certification upon consent election. 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Certification of Representatives IT IS HEREBY CERTIFIED that the Seamprufe Employees' Association (of Easton), has been designated and selected by a majority of em- ployees of Seamprufe, Inc., in the unit hereinabove found appropriate as the representative for the purposes of collective bargaining, and that pursuant to Section 9 (a) of the Act, the said organization is the exclusive bargaining agent of all such employees for the purposes of collective bargaining with respect to rates of pay, wages, hours of em- ployment, and other conditions of employment. HERBERT L. WADE, JERRY PAXTON AND G. F. MCGEE, CO-PARTNERS, D/B/A WADE & PAXTON and CITRUS, CANNERY WORKERS AND FOOD PROCESSORS, LOCAL UNION 24473, AFL. Case No. 39-CA-166. October 5, 1951 Decision and Order On June 5, 1951, Trial Examiner J. J. Fitzpatrick issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the In- termediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report. The Board 2 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are affirmed. The Board has considered the Interme- diate Report,3 the Respondent's exceptions, and the entire record in the case and adopts the findings, conclusions, and the recommenda- tions of the Trial Examiner with the following additions and mod- ification. We agree with the Trial Examiner's finding that the Respondent refused to bargain in good faith with the Union on and after Novem- ber 9, 1950, in violation of Section 8 (a) (5) and 8 (a) (1) of the Act. 3 The Respondent has requested oral argument before the Board. In our opinion the record, the briefs submitted to the Trial Examiner , and the Respondent 's exceptions fully present the issues and the positions of the parties . Accordingly, this request is denied. 2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [ Chairman Herzog and Mem- bers Houston and Reynolds]. 3 The Intermediate Report erroneously states that during the Respondent' s operating season , from November 1949 until July 1950, Respondent's sales were $58,000. This figure is corrected to read $52,000 to conform, to the record evidence. This minor and apparent typographical error does not affect the Trial Examiner 's ultimate conuluslons or our concurrence therein. 96 NLRB No. 93.