Peter Paul, Inc.

386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Decision,-while reciting the various job classifications of. the employees who were working on dies or parts of dies, the Board made its ultimate unit finding, not in terms of job classifications, but in functional terms-i. e., all employees working on dies or parts of dies. Accordingly, we 8 do not deem Simpson's job classification decisive of the question of his eligibility to vote, nor do we deem controlling the circumstance cited by the Regional Director that.Simpson failed to spend half of his worktime on dies or parts of dies. As the Board stated in the Ocala Star Banner case,4 employees who regularly per- form more than one function for the same employer, will be deemed eligible to vote in a particular unit if they regularly devote sufficient time to the work of that unit to demonstrate that they have a sub- stantial interest in the terms and conditions of employment in that unit. As Simpson regularly spends more than 20 percent of his time on dies or parts of dies, we find, under the rule of the Ocala case, that he is eligible to vote, and we will overrule the challenge to his ballot, .and direct that it be opened and 'counted. Direction As part of the investigation to ascertain representatives for the purposes of collective bargaining with the Employer, the Regional Director for the Ninth Region shall, pursuant to National Labor Re- lations Board Rules and Regulations, within ten (10) days from the date of this Direction, open and count the ballots of Robert L. Smith, Horace H. McKissack, Gareth Pierson, George T. Wilson, and Wil- liam O. Simpson, and thereafter prepare, and cause to be served upon the parties, a revised tally of ballots, including therein the count of said ballots. 8 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 Members Styles and Peterson], 4 97 NLRB 384. PETER PAUL, INC. and PETER PAUL EMPLOYEES ASSOCIATION, PETITIONER. Case No. 20-RC-1687. May R8,19520 Supplemental Decision and Certification of Representatives On March 17, 1952, pursuant to a Decision and Direction of Elec- tion 1 issued herein, an election by secret ballot was conducted under the direction and supervision of the Regional Director for the Twen- tieth Region (San Francisco, California), among employees in the unit found appropriate by the Board. Following.the election, a tally of ballots was furnished the parties. The tally shows that 80 ballots 1 Unpublished. 99 NLRB No. 64. PETER PAUL, INC. 387 were cast, of which 42 were for Peter Paul Employees Association, herein called the Petitioner, 33 were for Candy Workers Local 119-C, affiliated with the Bakery and Confectionery Workers International Union of America, AFL, herein called the Intervenor, and 5 were challenged. On March 24, 1952, the Intervenor filed objections to the election. The Regional Director investigated the objections and on April 9, 1952, issued and duly served upon the parties a report on objections, attached hereto, in which he recommended that the objections be over- ruled. Thereafter, the Intervenor filed exceptions to the Regional Director's report. The Board 2 has considered the report on objections, the Inter- venor's exceptions, and the entire record in the case. For the reasons set forth in the Regional Director's report, the Board finds that the Intervenor's exceptions do not raise substantial and material issues with respect to the election. In accordance with the recommendations of the Regional Director, the Intervenor's objections are hereby over- ruled. As the tally of ballots shows that the Petitioner has won the elec- tion, we shall certify it as the bargaining representative of the em- ployees in the unit heretofore found appropriate. Certification of Representatives IT IS HEREBY CERTIFIED that Peter Paul Employees Association has been designated and selected by a majority of the employees of 'Peter Paul, Inc., in the unit found to be appropriate, as their representative for the purposes of collective bargaining, and that, pursuant to Sec- tion 9 (c) of the Act, the said organization is the exclusive representa- tive of all the employees in such unit for the, purposes of collective bargaining with respect to rates of pay, wages, hours of employment, or other conditions of employment. Report on Objections Pursuant to a Decision and Direction of Election issued by the National Labor Relations Board on February 26, 1952, in the above matter, an election by secret ballot was conducted by the undersigned on March 17, 1952, in the unit set forth in the Decision. As shown on the tally of ballots issued on March 20, the vote was as follows : Approximate number of eligible voters--------------------------- 81 Void ballots----------------------------------------------------- 0 Votes cast for Peter Paul Employees Association------------------ 42 Votes cast for Candy Workers Local 119-C, affiliated with Bakery and Confectionery Workers' International Union of America, AFL-___ 33 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 Members Houston and Murdock]. 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Valid votes counted---------------------------------------------- 75 Challenged ballots----------------------------------------------- 5 Valid votes counted plus challenged ballots----------------------- 80 The challenged ballots were not sufficient in number to affect the results of the election. On March 24, 1952, objections to the election were filed by the Candy Workers' Local 119-0, and copies were concurrently served- on the Company and the As- sociation. Pursuant to Section 102.61 of the Rules and Regulations-of the Board, Series 6, the undersigned has investigated these objections and hereby reports as fol- lows : The objections allege the following : 1. The notices of election were mailed to the eligible employees in company envelopes, bearing the Company's name, Peter, Paul, Inc. This, it is contended, confused the voters in view of the title of the Association-Peter Paul Employees Association. 2. Reprepsentatives of Candy Workers' Local 119-C were barred from the plant at the time the ballots were tallied and hence could not observe the count. 3. On the night of March 5, at a local bowling alley, a conversation occurred among employee Carl Saleen, a member of Local 119-C, employee Bruce Blain, a member of the Association, and Harry White, a company supervisor. During the course of this conversation White asked Saleen, who formerly had been an association member, but who at the time had shifted to Local 119- C and had been picketing the plant on behalf of the latter Union, "What did you do-go off of our side on to the other side? Did the picket money influence you to make you swing?" 4. Sometime prior to the election the same supervisor, White, "threw a rock" at the Local 119-C picket shack near the railroad entrance of the Company, and when picket MacKenzie, a company employee, came out of the shack, said to him, "I thought, you S. 0. B., I could catch you sleeping." When MacKenzie re- plied that he had not been sleeping, White allegedly stated, "What the hell do you guys think you can do in a minority group? Did you ever hear tell of a minority group of five people keeping eighty people out of work and making it rough for them. . . . You fellows are just like a bunch of . . . Communists and you won't get away with it." 5. The names of the employees who joined Local 119-C and who attended its meetings were in the possession of Company Vice-President Houghland, and this was known to the employees. The investigation reveals the following: Objection 1. Between November 14, 1951, and sometime after March 17, 1952, the date of the election, the Company's plant was shut down by an AFL picket line. Since, therefore, the employees could receive notice of the election only by delivering notices to their homes, the Company was requested by the Regional Office to mail a notice of election to each eligible voter. The Com- pany did so, enclosing the notices in its own envelopes. Although the notice thus came to the voters in envelopes bearing the Company's name, it is not believed that this could have affected the results of the voting. The notices themselves were the official Board notices, setting forth the purpose of the elec- tion, that it would be conducted by an agent of the Board, the time and place of voting, a description of those eligible to vote, and a sample ballot. No evi- dence was proffered to show that employees were misled and 80 out of 81 eligibles cast ballots at the election. The undersigned therefore finds no merit in this objection. PETER PAUL, INC. 389 Objection 2. The representatives of Local 119-C were, in fact, barred from the plant where the votes were counted, and hence could not observe the tally. The Local 119-C election observer, however, was present, participated in the count, and signed the official tally of ballots. No question has been raised by Local 119-C that the tally is in any way incorrect. Normal and proper procedure would have been to permit Local 119-C officials to enter the plant for the purpose of observing the tally. However, their exclusion, occurring as it did, after the pxolls ,were closed, clearly could in no way have improperly, influenced the out- come,of -the -vote, and the undersigned therefore finds no merit in this second objection. Objection 3. The investigation reveals that Harry White is a supervisor within the meaning of the Act and, as such, was excluded from the unit involved herein. White denies making the remark attributed him in objection 3. He denies being present during any conversation at the bowling alley in question, on March 5. However, he does state that on March 11 at the same bowling alley he was present during a conversation among a group of employees, includ- ing Carl Saleen and Bruce Blain, and that during this conversation, he asked Saleen who had been on the picket line, "Did you really join the AFL, or did you just want the money?" (meaning, he says, the money paid for picket duty). It appears to the undersigned that the question attributed to White on March 5-namely, asking Saleen, "What did you do-go off of our side to the other side-did the picket money influence you? . . ."-even if made, constitutes at most an expression of company preference for the Association, which would be protected under Section 8 (c) of the Act. White's own admission that in fact he asked Saleen whether he had really joined the AFL, on the other hand, is more nearly equivalent to the type of interrogation generally held by the Board to violate Section 8 (a) (1) of the Act. However, it appears to be an isolated incident of this nature and, in the absence of other improper acts or conduct, the undersigned concludes that it is insufficient to warrant setting aside the election. Objection 4. On or about March 5 Harry White threw a rock or stone onto the roof of the picket shack. White denies that when MacKenzie came out he used any epithets. He does admit, however, that in the ensuing conversation he said that "it looks to me like Communistic tactics, where five or six people can keep eighty people out of work." He denies stating, "You won't get away with it." Local 119-C argues that White's remarks contained an implied threat of re- prisal 4ghinSt those employees, including MacKenzie, who were then picketing the plant. The undersigned does not agree. Use of the epithet is not unknown in strike situations. In its context the phrase, "You won't get away with it," Is at best equivocal. It could mean anyone of a number of things, including a prediction that the picketing would fail as a means of keeping the plant shut indefinitely. It appears purely speculative to conclude that the words must have carried a threat of reprisal against the pickets. The remainder of White's remarks, both those attributed to him, and those he admits, appears to fall within the protection of 8 (c). The undersigned therefore finds no merit in this objection. Objection 5 alleges that the Company had the names of all.Local 119-C ad- berents, and the employees knew this. No evidence has been offered to estab- 11sh that any such knowledge was improperly obtained or used. The under- signed therefore finds no merit in this objection. Under all the circumstances, the undersigned concludes that the objections do not raise substantial and material issues with respect to the election and recommends that the Board overrule the objections. 215233-53-26