Dumont Electric Corp.

94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Petitioner desires to be certified as the bargaining representa- tive of employees in the operations of the Employer. The Employer moved to dismiss the petition on the ground that the road operation was scheduled to be shut down shortly after the date of the hearing, and that any future operation is indefinite in character. We find merit in the Employer's position. There is uncontroverted evidence that 6 weeks after the hearing the Employer would complete his construction operation, and that he was at the time of the hearing without commitments or arrangements for future logging activity. As a result, there is no certainty that the Employer will be engaged in any activity in the future or that any of the employees sought to be represented by the Petitioner will be employed by the Employer. Because it now appears the Employer's operation has been com- pleted and, because it is well settled that the unit placement of em- ployees at new, but indefinite, logging operations of an employer should be decided in future proceedings, we are of the opinion that no useful purpose will be served by proceeding with a determination of representatives at this time. Accordingly, we shall dismiss the petition without prejudice.3 Order IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed without prejudice. 3 See G. H. Swalley Logging Company, 91 NLRB 921 ; Donovan, James, Wismer, & Becker, 93 NLRB 1562 ; Farm Tools, Inc. (Vulcan Plow Division ), 91 NLRB 926. DUMONT ELECTRIC CORPORATION and INTERNATIONAL UNION OF ELEC- TRICAL, RADIO & MACHINE WORKERS, CIO , PETITIONER . Case No. 2-RC-3572. November 23, 1951 Supplemental Decision and Certification of Representatives Pursuant to a Decision and Direction of Election dated June 14, 1951, an election by secret ballot was held on June 28, 1951, under the direction and supervision of the Regional Director for the Second Region, among the employees of the Employer in the unit found appropriate. At the close of the election the parties were furnished a tally of ballots which showed that of approximately 308 eligible voters, 291 cast valid ballots, of which 166 were cast for the Petitioner and 120 for Local 430, United Electrical, Radio and Machine Workers of America, herein called the Intervenor, and 5 for no union. One ballot was void and there were no challenges. 97 NLRB No. 25. Y ,:rF; DUMONT ELECTRIC CORPORATION 95 On July 2, 1951, the Intervenor filed objections to the election. In accordance with the Board's Rules and Regulations, the Regional Director conducted an investigation and on September 24, 1951, issued his report on objections, in which he recommended that the objections be overruled. On October 3, 1951, the Intervenor filed timely excep- tions to the report on objections. 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-mem- ber panel [Chairman Herzog and Members Houston and Murdock]. In substance, the objections allege the following : (1) That the election ought not to have been held while unfair labor practice charges were pending; (2) that by means of shouting, picketing, and other boisterous conduct, the Petitioner's representatives intimidated and coerced the employees to vote in favor of that labor organization; (3) that supervisors improperly spoke to voters in the polling area; (4) that the location of the polling booths, as well as other mechani- cal arrangements for the election, and the failure of Board agents to consult with the Intervenor on such matters, prejudiced the Inter- venor; and (5) that the Petitioner and the Employer engaged in improper conduct after the close of the balloting. (1) One week before the Board-ordered election, and a few hours before a conference scheduled for making election arrangements, the Intervenor filed charges of unfair labor practice against the Employer and the Petitioner. The charges alleged continuing unfair labor prac- tices starting as far back as January 1951. After the usual investiga- tion by the Regional Office agents, the Regional Director dismissed the charges because of insufficient evidence. On appeal by the Inter- venor, the Regional Director's dismissal was sustained by the General Counsel. We do not agreed with the Intervenor's contention that the pendency of unfair labor practice charges per se precludes an untrammeled expression of choice in the selection of a bargaining representative by the employees in an election conducted under Board auspices.' In order to avoid the danger of setting aside election results when the investigation of charges shows proof of illegal conduct, under ordi- nary circumstances, it is the better practice to defer elections during the investigation. However, we agree with the Regional Director's conclusion that in this case the Intervenor was not prejudiced by the fact that the election took place before the charges were dismissed. It is clear now that the allegations of improper conduct made in the charge were unwarranted. We therefore overrule this objection. I See Columbia Pictures Corporation, 81 NLRB 1818. 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) The election was conducted on the second floor of the Em- ployer's plant between 8:30 and 11 a. m. Beginning at about 7:30 a. m. and ending shortly after 8: 15 and before the opening of the polls, a considerable amount of boisterous electioneering by adherents and representatives of both competing labor organizations took place in front of the building. The Petitioner established a picket line of approximately nine individuals who carried signs, shouted on behalf of their union and against their opponent, marched about in front of the plant, and generally urged the employees to vote in their favor. Other adherents of the Petitioner distributed leaflets and held sta- tionary signs. At the same time an organizer and adherents of the Intervenor also distributed leaflets in the same area and shouted slogans. Although the Regional Director reported that this demon- stration was loud and could be heard by employees on other floors, he also reported that no employees were prevented from entering the plant and that the entire activity ceased before the opening of the polls. In excepting to the Regional Director's conclusion, the Intervenor does not take issue with the fact as reported, but merely argues that such activity was improper. Apart from the fact that the Intervenor was equally guilty of the boisterous disturbance, if disturbance it can be called, we view the entire activity as an example of heated cam- paign enthusiasm normally incident to warmly contested union elec- tions. As the investigation revealed no evidence of restraint upon the employees from entering the plant or casting their votes, and as, in any event, the tumult and the shouting died before the voting started, we agree with the Regional Director's conclusion that this objection raised no substantial issue as to the election results. We therefore overrule this objection also. (3) In support of this objection the Intervenor contends that be- cause the employees walked close to the production areas, where super- visors were also at' wprk, on their way to the polls, they were necessarily coerced in some manner. It also asserts that one of the supervisors, Rita, improperly entered the immediate election area. The mere fact that the election took place on the company's premises, and that some employees on their way to the polls passed production areas, does not of itself make the results of the election questionable. The Board has often held that physical arrangements such as these may be proper 2 As to Supervisor Rita, the Regional Director reported only that on one occasion she entered the polling area, but left immediately upon request of the Board agent, and that on another, when there were no employees waiting to vote, she' was called by an observer of the ' Radio Corporation of America ( Victor Division ), 90 NLRB 1989, 1995. DUMONT ELECTRIC CORPORATION 97 Intervenor, who spoke a few words to her. In its exceptions, the Intervenor takes no issue with these facts. In these circumstances, we agree with the recommendation of the Regional Director that this objection also raises no material issue. It is hereby overruled .8 (4) Under this objection, the Intervenor charges impropriety in connection with certain details of the running of the election, such as the location of the voting booths, the scheduling of the balloting on a departmental basis, and the designation of the Intervenor and the arrangement of the names of the competing unions on the ballot. We have already considered and found nothing improper in the fact that the booths were placed in the plant itself. Voting the employees by department, and designation of the Petitioner as "IUE-CIO" and the Intervenor as "United Electrical, Radio and Machine Workers of America, Local 430, U. E." conformed with the practice followed in a number of earlier elections in which the Petitioner and other locals of the Intervenor's international have competed. Like the Regional Director, we find nothing improper in any of these arrangements for the election. Under this objection, the Intervenor also charges that it was pre- judiced because the Board's agents arranged the mechanics of the election without first conferring with representatives of the Inter- venor. The Regional Director reported, and the Intervenor does not deny, that on the morning of a conference scheduled on notice to all parties for making election preparations, the Intervenor filed charges of unfair labor practice against both the Petitioner and the Employer; that only 21/2 hours before the appointed hour the Intervenor asked for the first time that the conference be postponed ; and that 4 days later, the field agent in charge of the election again requested the Intervenor's attorney, while the latter was in the Board's Regional Office on other business, to discuss the election arrangements, but that the attorney refused to do so. In its exceptions, the Intervenor's attorney attempts to explain his rejection of the invitation to discuss the election arrangements on the ground that he was otherwise occupied. Inconsistently, how- ever, the Intervenor also admits that on each occasion-June 21 and June 25-its attorney told the Board agent that the election could not be held while the unfair labor practice charges were pending, that the election could not take place in the plant, and that, therefore, "no purpose could have been served by discussion of the other election details." In view of these admissions, we are satisfied that the Inter- venor's failure to participate in the preelection conference was a s Equally without merit is the argument that because Rita assisted in the release of employees in the interest of running the election in an orderly fashion , the election should be set aside. See Radio Corporation of America ( Victor Division ), supra, at 1999. 98 DECISIONS OF NA"IONAL LABOR RELATIONS BOARD deliberate refusal on its part to participate in the arrangements be- cause it wished primarily to postpone any election. In these circumstances, it may not now complain that it was thereby prejudiced. (5) The final objection rests on alleged improper conduct by the Employer and by the Petitioner, after the close of the balloting. We reject this objection because later conduct could not have affected the results of the election. As the tally of ballots shows that the Petitioner has secured a ma- jority of the valid votes cast, we shall certify it as the bargaining representative in the unit heretofore found appropriate. Certification of Representatives It is hereby certified that International Union of Electrical, Radio & Machine Workers, CIO, has been designated and selected by a majority of the Employer's production and maintenance employees at its New York City plant, including laboratory assistants, but ex- cluding office employees, foremen, and all other supervisors as defined in the Act, as their representative for purposes of collective bargaining, and that pursuant to Section 9 (a) of the Act, the aforesaid organiza- tion 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. GILBERT MOTOR SALES , INC. and INTERNATIONAL UNION , UNITED AUTO- MOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMER- ICA (UAW-CIO) AND ITS LOCAL No. 408 . Case No. 7-CA--581. November 66,1951 Decision and Order On August 14, 1951, Trial Examiner Eugene F. Frey 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 Interme- diate Report attached hereto. Thereafter, the Respondent filed ex- ceptions to the Intermediate Report and a supporting brief. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- 1 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 Reynolds and Styles]. 97 NLRB No. 21.