E. J. Kelley Co.

486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sory to attend it. Although the Union's request was not specifically denied in so many words, Allen's response was tantamount to a denial by his statement that such request could not be granted on such short notice. As to the Employer's contention that the union representative should have repeated his request, we find under all the circumstances herein that a second request would apparently have been futile. Although we find nothing in the speech read at the meeting which indicates coercion, we find that this case is controlled by the rule enun- ciated in the Bonwit Teller,5 Biltmore'6 and Bernardin 7 cases. We find here, as we did there, that the Employer interfered with the elec- tion after utilizing company time and property to campaign against the union on the morning of the election, by denying the union an op- portunity to reply under the same circumstances. We find no merit in the Employer's contentions that the present case is distinguishable from the Bonwit Teller and Biltmore cases. Moreover, we find that the facts in the present case are more closely akin to those in the Ber- nardin case. Accordingly, for the reasons more fully set forth in the above-mentioned decisions, we find that the Employer interfered with the employees' freedom of choice in the selection of a bargaining repre- sentative, and we shall order that the election of September 13, 1951, be set aside. We shall direct that the Regional Director conduct an election at such time as he deems appropriate. Order IT IS HEREBY ORDERED that the election of September 13, 1951, among the employees of the Employer, be, and it hereby is, set aside; and IT IS FURTHER ORDERED that this proceeding be remanded to the Regional Director for the Region in which this case was heard for the purpose of conducting a-new election at such time as he deems the circumstances permit a free choice of a bargaining representative. MEMBER STYLES took no part in the consideration of the above Supplemental Decision and Order. Bonwat Teller, Inc, 96 NLRB 608. e Biltmore Manufacturing Company, 97 NLRB 905 Bernardin Bottle Cap Company, Inc., 97 NLRB 1559. E. J. KELLEY COMPANY and JOSEPH ZACHAR, JR., PETITIONER and LOCAL 677, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF- FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL. Case No. 1-RD-97. March 10, 1952 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Joseph Lepie, hearing officer. 98 NLRB No. 79. E. J. KELLEY COMPANY 487 The hearing officer's rulings made at the hearing are free from preju- dicial error and are hereby affirmed.' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated ifs powers in connection with this case to a three-member panel [Members Houston, Murdock, and Styles]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The Petitioner, all employee of the Employer, asserts that the Union, the certified bargaining representative of certain of the Em- ployer's employees, is no longer their representative as defined in Sec- tion 9 (a) of the Act. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All employees employed at the Employer's Torrington, Connecticut, place of business including Helen Douglas, Martin McGrath, and Harold Croft,' but excluding all office and clerical employees, guards, executives, close relatives of management,3 Maynard Croft, and all supervisors as defined in the Act .4 5. The Union contends that a number of employees are ineligible'to vote because they are either minors, who, it alleges, are improperly employed under the regulations of the Interstate Commerce Commis- sion, or are employed for less than 20 hours per week. We find no merit in these contentions. As to the minors, regardless of the legal status of their employment, they are, while employed, substantially concerned with the hours, wages, and working conditions of employees I In its briefs to the Board the Union moves to dismiss the petition, alleging, in substance, that the Petitioner is a labor organization not in compliance with the amended Act and, moreover, that the petition was filed and processed before the end of the Union 's certifica- tion year As to the first contention , the record reveals that the Petitioner does not purport to act as a representative of employees for the purposes of collective bargaining and is not a labor organization within the meaning of the amended Act. As to the second contention, the certification year expired on November 1, 1951. The petition was filed on October 19 , 1951 , and the hearing was held beginning on November 15, 1951 . The Union contends, however, that a joint conference was held on October 30, 1951. We do not believe that this circumstance warrants a dismissal of the petition where, as here, the petition was filed during the last month of the certification year and the hearing and all formal processing of the petition occurred after the expiration of the certification period In accordance with the Board's policy expressed in National Heat Treating Company, 95 NLRB No. 144. The Union's motions to dismiss the petition on these grounds are denied. 2 The Union would exclude this employee as a supervisor . The record reveals, however, that Croft is engaged in driving busses and taxis, collecting bills, warehouse work, and securing orders for moving furniture . We find no substantial evidence that he is a supervisor within the meaning of the amended Act. 8 Edward and John Kelley, son and nephew, respectively, of the Employer's president. 4 This unit conforms to that previously found appropriate by the Board, 90 NLRB No. 239. 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the unit and are entitled to express their desires with regard to representation. As to the part-time employees, we find, with the exception noted below, that they work regularly a sufficient number of hours each week to be eligible to vote in the election .5 The Employer would find ineligible and the Petitioner eligible to vote a number of employees presently on strike. The strike occurred on February 8,1951. Unfair labor practices filed by the Union against the Employer on November 13, 1951, were dismissed by the Regional Director on January 30, 1952.6 The record reveals that a number of strikers have been permanently replaced, some have returned to their jobs, some jobs have been eliminated for efficiency reasons, and a num- ber of jobs have been consolidated. As a consequence the Employer does not contemplate additions to its present working complement whether or not the strike terminates. The employees on strike either have been permanently replaced or their jobs abolished. Accordingly, we find that the employees on strike, who have not been reemployed, are not entitled to reinstatement and are ineligible to vote in the election.7 [Text of Direction of Election omitted from publication in this volume.] Ocala Star Banner, 97 NLRB 384. We find, however, that Tames Lynch, a part-time employee, is not eligible to vote because he is a pensioner who continues to receive his pension whether or not he works. 6 1-CA-1059. ' Big Run Coal & Clay Company . 93 NLRB 1351. THE RELIANCE ELECTRIC & ENGINEERING COMPANY 1 and INTERNA- TIONAL UNION OF ELECTRICAL, RADIO & MACHINE WORKERS, LOCAL 737, CIO, PETITIONER THE RELIANCE ELECTRIC & ENGINEERING COMPANY and DISTRICT 54, INTERNATIONAL ASSOCIATION OF, MACHINISTS, AFL, PETITIONER. Cases Nos. 8-RC-1476 and 8-RC-1492. March 10, 1952 Decision and Direction of Elections Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before Bernard Ness, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with these cases to a three- member panel [Members Houston, Murdock, and Styles]. I The Employer's name appears as amended at the hearing. 98 NLRB No. 92.