Darling Retail Shops Corp.

464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nicians,s but excluding all employees in the machine shop, including tool and die makers, machinists, and their apprentices and regular helpers, the shipping clerk,' all office clerical employees, and all guards, professional employees, and supervisors as defined in the Act, con- stitute 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.] There are two employees in this classification . One performs chemical, and the other, electrical tests on the Employer's products. These tests are essentially routine, and we find that the laboratory technicians are neither professional nor technical employees, and, accordingly, we shall include them in the unit. 'The parties agree, and we find, that the shipping clerk is a supervisor within the meaning of the Act. DARLING RETAIL SHOPS CORP. and LOCAL 692, RETAIL CLERKS' INTER- NATIONAL ASSOCIATION, AFL, PETITIONER. Case No. 5-RC-1172. January 21,1953 Decision and Certification of Representative Pursuant to a stipulation for certification upon consent election entered into on October 14, 1952, by the Darling Retail Shops Corp., herein referred to as the Company, and Local 692, Retail Clerks' International Association, AFL, herein referred to as the Union, a secret ballot election was conducted under the supervision of the Regional Director on November 1, 1952. Thereafter a tally of ballots was furnished the parties, revealing that of approximately 7 eligible voters, 6 valid ballots were cast. Of the valid ballots cast, 4 were for and 2 against the Union, and none was challenged. Timely objections to the conduct of the election were subsequently filed by the Company on November 6, 1952. In accordance with the Rules and Regulations of the Board, the Regional Director conducted an investigation and, on December 4, 1952, issued and duly served upon the parties his report on objections to the election. In his report, the Regional Director found that the Company's objections raised no substantial or material'issues which would justify setting aside the election, and recommended that the objections be overruled, and that the Union be certified as the exclusive representative for all employees in the unit defined in the stipulation for certification upon consent election within the meaning of Section 9 (a) of the National Labor Relations Act. On December 12, 1952, the Company filed exceptions to the Regional Director's determinations as to the objections. 102 NLRB No. 42. DARLING RETAIL SHOPS CORP. 465 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 Murdock and Peter- son]. The Company's objections allege the following : 1. The Union's representatives walked into the voting area im- mediately preceding the election and talked to employees in such a manner and under such circumstances as to prejudice the holding of a fair election. 2. The representatives and officials of the Union interfered with the election during the voting time, placing themselves in such proxi- mate position in the voting area as to constitute electioneering. 3. The Union deliberately confused the employees as to its collec- tive bargaining status by using the name of another company, trad- ing under a similar name at Cumberland, Maryland, in making certain representations to the employees.' As to the first objection, although the Union denies the alleged preelection inquiry on the part of the two union representatives di- rected to an employee as to the whereabouts of a Board agent, the Regional Director found that the truth of the allegation was im- material because such conduct did not prejudice holding a fair elec- tion. We concur in this finding. The Regional Director found that the Company's second objection also is without merit. It is uncontroverted that the voting area was located in a stockroom at the far end of the store where the employees were allowed complete privacy in filling out and casting their bal- lots. There was no evidence presented of any overt acts of election- eering on the part of the union representative. The presence of a union representative on a public thoroughfare, a considerable dis- tance from the polling place, and in the presence of a company official, did not constitute interference with the election. The Com- pany, in excepting to the Regional Director's report on objections, contended that the mere presence of a union representative at or near the voting area, in itself constituted electioneering. In accord with Board precedent,2 we must dismiss this contention as being without merit. Inasmuch as no evidence has been submitted on the part of the Company to support its third objection, and the Union denies the allegation, we find that such objection must be overruled. Accordingly, we shall, in agreement with the Regional Director, overrule the objections. ' This is our understanding of the Employer's objection which was worded as follows : "The Union misrepresented the collective bargaining status of the Company with that of another company trading under a similar name at Cumberland, Maryland.. . . 2 Craddock-Terry Shoe Corporation, 80 NLRB 1239. 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Certification of Representatives It is hereby certified that Local 692, Retail Clerks' International Association, AFL, has been designated and selected by a majority of all full-time and regular part-time selling and nonselling employees employed by the Company at its Hagerstown, Maryland, store, ex- cluding warehouse employees, truck drivers, guards, professionals, and supervisors as defined in the Act, as their representative for the purposes of collective bargaining, and that, pursuant to Section 9 (a) of the Act, that organization is the exclusive representative of all such employees for the purposes of collective bargaining with regard to rates of pay, wages, hours of employment, and other conditions of employment. NAMM'S INC. and REGINA FREIBERG and DEPARTMENT STORE EM- PLOYEES UNION, LOCAL 1250, INDEPENDENT, NOW KNOWN AS UNITED DEPARTMENT STORE WORKERS OF NEW YORK, LOCALS 1250 AND 1250-B, PARTY TO THE CONTRACT NAMM'S INC. and SARA GOLDES DEPARTMENT STORE EMPLOYEES UNION LOCAL 1250, INDEPENDENT, NOW KNOWN AS UNITED DEPARTMENT STORE WORKERS OF NEW YORK, LOCALS 1250 and 1250-B and REGINA FREIBERG DEPARTMENT STORE EMPLOYEES UNION LOCAL 1250, INDEPENDENT, NOW KNOWN AS UNITED DEPARTMENT STORE WORKERS OF NEW YORK, LOCALS 1250 AND 1250-B, and SARA GOLDES. Cases Nos. 2-CA-1130, 2-CA-1379, 2-CB-372, and 2-CB-427. January 22, 1953 Decision and Order On February 12, 1952, Trial Examiner Charles W. Schneider issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in the unfair labor practices alleged in the complaint, as amended, and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. The Respondent Company filed a brief in support of the Intermediate Report. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- 102 NLRB No. 45.