Brazos River Transmission Electric Cooperative, Inc.

704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a contract of another local union-may constitute an appropriate bargaining unit. However, because the Waterloo gas plant and gas distribution employees have been represented for a substantial period of time in their own Board-sanctioned bargaining unit, we shall first ascertain their desires as expressed in a separate election before deter- mining their unit placement 5 Accordingly, we shall direct that sep- arate elections be conducted among the employees in the following voting groups, excluding from each group all office and clerical em- ployees and supervisors e as defined in the Act : (1) All employees of the Waterloo gas plant department and Waterloo gas distribution department, except service and meter de- partment employees. (2) All other employees of the Employer who regularly perform their work within the east division, including those of the high-line crew, but excluding those of the Eagle Grove and Clarion districts. If a majority of the employees in group (1) vote for the Inter- venor, they will be taken to have indicated their desire to remain in a separate bargaining unit, and in that event the Regional Director conducting the election is herewith instructed to issue a certification of representatives to such labor organization for such unit, which the Board under such circumstances finds to be appropriate for pur- poses of collective bargaining. Similarly, in the event the Petitioner receives a majority of the votes cast in either or both of voting groups (1) and (2), the Regional Director is instructed to issue a certification of representatives to the Petitioner for a single unit comprising the employees of such group or groups, which unit the Board under these circumstances finds to be appropriate for purposes of collective bargaining. [Text of Direction of Elections omitted from publication in this volume.] ° Illinois Cities Water Co., 87 NLRB 109; Reeves and Teichert, 89 NLRB 54. ° The Petitioner would include, and the Intervenor would exclude, certain "working foremen." The Employer asserts no position . Although these foremen do not have the authority to hire, fire, discipline , or suspend employees under their charge, they do, never- theless, regularly assign jobs, responsibly direct the manner in which the jobs are to be performed , and discuss minor grievances . They spend less than 50 percent of their working time performing manual labor. We find that they are supervisors within the meaning of the Act, and accordingly exclude them from the voting groups. BRAzos RIVER TRANSMISSION ELECTRIC COOPERATIVE, INC. and INTER- NATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION No. 72, AFL, PETITIONER. Case No. 16-RC-1026. January 27,1953 Supplemental Decision and Certification of Representatives On September 19, 1952, the Board issued an order directing a hear- ing in this proceeding on certain issues raised by objections filed by 102 NLRB 66. BRAZOS RIVER TRANSMISSION ELECTRIC COOPERATIVE, INC. 705 the Employer to the election conducted herein on August 12, 1952. On October 16, 1952, the hearing was held. On October 29, 1952, the hearing officer issued and duly served upon the parties his report on objections, a copy of which is attached hereto, recommending that the objections be overruled. The Employer filed exceptions to the hear- ing officer's report. Upon consideration of the entire record in this case, the Board adopts the findings of the hearing officer; they are hereby approved and made a part of the record in this proceeding. As the tally of ballots shows that a majority of all valid votes cast were for the Petitioner, we shall certify that organization as the collective-bargain- ing representative of all the Employer's employees in the appropriate unit. Certification of Representatives IT IS HEREBY CERTIFIED that International Brotherhood of Electrical Workers, Local Union No. 72, AFL, has been designated and selected by a majority of the employees in the appropriate unit as their rep- resentative for the purposes of collective bargaining, and that, pur- suant to Section 9 (a) of the Act, said organization is the exclusive representative of all such employees for the purpose of collective bar- gaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. [MEMBERS STYLES and PETERSON took no part in the consideration of the above Supplemental Decision and Certification of Representa- tives.] Hearing Officer's Report on Objections Upon a petition duly filed by the International Brotherhood of Electrical Workers, Local Union No. 72, AFL, hereinafter referred to as the Petitioner, the National Labor Relations Board issued its Decision and Direction of Election in which it directed that an election be conducted among certain employees of the Brazos River Transmission Electric Cooperative , Inc., hereinafter called the Company, at its Bob Poage plant near Waco , Texas. On August 12, 1952, pursuant to the direction of the Board, an election was conducted under the direction of the Regional Director for the Sixteenth Region. On. the same day a tally of ballots was furnished the parties which showed there were approxi- mately 18 eligible voters ; the Petitioner received 14; 2 were cast against the Petitioner ; and 2 were challenged. Thereafter, the Company filed timely objec- tions to the election on August 18, 1952 . The Regional Director for the Board's Sixteenth Region issued his report on objections under date of August 27, 1952, finding that the objections did not raise material and substantial issues and rec- ommended that the Board overrule the objections. On September 8, 1952, the Company filed its exceptions to the Regional Di- rector's report, and on September 19, 1952 , the Board entered its order directing a hearing on the objections . Thereafter, pursuant to notice, a hearing was held in Waco, Texas, before Elmer Davis, hearing officer, duly designated for that 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purpose, at which the Company and the Petitioner through counsel or their representatives appeared and participated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues' From the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS of FACT' Preliminary Statement 'The Company's objections are based on the alleged activities of J. J. Lamb, a shift engineer, found to be a supervisor by the Board in its Decision and Direction of Election herein, in that he contacted and talked to voters immedi- ately preceding the casting of their ballots, and that he presented himself at and remained in the polling place until he was ejected by the Board agent, assigned to conduct the election, shortly before the closing of the polls, and on the further grounds that the Board agent permitted voters to loiter around the polling place following the casting of their votes. The election was held on August 12, 1952, between the hours of 7: 45 a. m. and 8: 45 a. m., in a room located in the northwest corner of the second floor of the Company's office building. The election officials, including the Board agent and official observers for the parties, were stationed in this room at which point ballots were handed to eligible voters after which they crossed a hall approximately 3 feet wide Into another room, marked their ballots, and returned to a point near the room in which the election officials were located, dropping their ballots into a box provided for that purpose. It was possible to look directly into the room across the hall, but was not possible to observe the voters actually marking their ballots. From the room in which the election officials, including the Board agent, were stationed it was difficult to observe anything outside the building. It was possible to observe a portion of what is referred to as the west parking area from the north window, but other than this no area could be observed except the 2 rooms just mentioned and a hall running in an east-west direction some 35 feet long. To observe the hall it was necessary to leave the room in which the election officials were located. Activities of J. J. Lamb Mr. Lamb worked a night shift, getting off duty shortly before the polls opened at 7:45 a. in. On the same shift, an eligible employee named Odom had also worked. Lamb habitually rode to and from work with Odom, and had ridden to work with him the night before the election. Shortly after leaving his shift, he went to the parking area some 60 feet west of the office building and there encountered a number of employees, some of whom had reported for the sole purpose of casting their votes in the election. He greeted a number of the employees and admits having stated to one of them, Faster, "I i The Order of the Board directed the hearing officer to prepare and cause to be served upon the parties a report containing resolutions of the credibility of the witnesses, findings of fact, and recommendations to the Board as to the disposition of said objections. ' The Company called 2 witnesses at the hearing in support of its position ; the Peti- tioner called 1. All 3 witnesses gave, in the opinion of the undersigned , a straightforward and honest statement of the facts herein considered, and any conflict between their testi- money is of a very minor and immaterial nature The findings here made, therefore, are based on the composite testimony of all witnesses presented. BRAZOS RIVER TRANSMISSION ELECTRIC COOPERATIVE, INC. 707 wonder if everyone would vote." M. A. True, chief engineer, was in the parking area at the time and observed Mr. Lamb. Other than exchanging greetings, however, no conversation was had between the two, Lamb was not asked to leave by True, nor was he warned that his presence there was objectionable to the Board agent or to the Company. A short time later Lamb left the parking area, entered the plant, called his wife informing her he would be late getting home, and then returned to the automobile of Mr. Odom where he remained until shortly before the polls closed. As heretofore stated, the polls opened at 7:45 a. in. By approximately 8:10 a. in., only 3 employees had voted. All other employees, except 1, voted in a group completing their balloting at approximately 8:25 a. in. They were asked to line up in the room in which the election officials were located, were given ballots one at a time, proceeded directly across the hall to the room hereinabove mentioned, marked their ballots, returned, and placed them in the ballot box, and proceeded in an easterly direction down the 35-foot hall to a room referred to and known as the laboratory. At approximately 8.30 a. in., and after the group just referred to had voted and retired to the laboratory, Mr. Lamb appeared at the door of the room in which the election officials were located, and the Board agent, Mrs. McKee, inquired if he had come to vote.' The Petitioner's observer informed Mrs. McKee that Lamb was a supervisor, at which point Mrs. McKee informed him that he would have to "go away." While there, Lamb inquired if he might be present at the counting of the ballots and was informed that he could be. Lamb immediately left and went to the room at the east end of the hall hereinabove referred to. The last eligible voter, and the only one to appear after Lamb appeared at the polling place, cast his ballot some 5 to 7 minutes before 8: 45 a. in. The Company's observer, in the early period of the election, saw Mr. Lamb in the west parking area. However, she admits she did not call this to the attention of the Board agent, nor did she endeavor to call it to the attention of any of the supervisory personnel or officials of the Company until after the election. Voices of the employees who had retired to the laboratory could be heard from the polling place and some discussion was had between the Board agent and the observers for the Company and Petitioner as to whether they should be asked to leave. It was, however, the "consensus of opinion" that this would not be done since it was so near time to close the polling place. With some reluctance, the hearing officer received evidence through the cross- examination of Lamb from which the conclusion must be reached that he was, to say the least, friendly toward the cause of the Petitioner for a period of some time prior to the election ; but it was undenied that he, with other shift engineers, ceased any discussion of union activities on their own volition shortly after the Board's decision herein where it was found that shift engineers were super- visors. No instructions were issued by the Company through its officials to Lamb at any time prior to or during the election as to his participation or refraining from participation in activities leading up to or during the election. At a preelection conference attended by the observer for the Company, ac- cording to her testimony, it was understood that the Board agent could be responsible only for policing in the immediate vicinity of the polling place. The Company's observer understood this to be the area easily visible from the polling place. I, therefore, find that Lamb was present in the parking E Lamb testified, without contradiction , that he remained after his shift ended so that be would be able to ride home with employee Odom ; that he later went to the polling place thinking the polls would be closed, and that he went there for the purpose of securing permission to be present at the counting of the ballots. 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD area some 60 feet distant from the polling place ; that he did not solicit at that time either for or against the Company or the Petitioner ; that he appeared in the polling place a few minutes prior to the time the polls closed for the purpose of determining whether he could be present at the count of the ballots ; that on being ordered to do so he immediately left and that he retired to the east room known as the laboratory, the same room to which eligible voters had retired; that the Board agent and the observers took cognizance of the fact that the voters after having voted remained in the vicinity of the polling place, but not within view of the polling place, and that the Board agent, together with the observers, decided that they would not be asked to leave and that no request was made by the Board agent that they leave the laboratory room. Conclusions Assuming arguendo' that Lamb had endeavored to interfere with the election in the parking lot area, the undersigned entertains grave doubt that under the circumstances here involved the Company should be afforded an opportunity to use this to its own advantage, since it was peculiarly within the power of the Company to enjoin such interference by instructing its supervisory per- sonnel either before or during the election that they should remain neutral in the present case.4 The chief engineer was present in the parking area at the same time and observed Lamb, yet took no steps to correct any claimed inappropriate action on the part of Lamb. His brief visit to the polling place and his leaving immediately on being ordered to do so does not, in the opinion of the undersigned, constitute interference justifying setting aside the election. Dumont Electric Corporation, 97 NLRB 94. Nor is there anything objectionable in his remark to Kaster wondering "if everyone would vote," Silver Knit Hosiery Mills, Inc., 99 NLRB 422. Likewise, I conclude that the presence of the persons who had voted, together with Lamb, for the last few minutes of the election in the laboratory as hereinabove described was not objectionable to the extent that the election should be set aside. Recommendation Upon the basis of all the foregoing findings of fact and conclusions, it is the recommendation of the undersigned that the objections be overruled. As provided in the order of the Board directing hearing on objections, any party may, within 10 days from the date of the issuance of the report file with the Board in Washington, D. C., an original and 6 copies of exceptions thereto. Upon filing such exceptions, the party filing same shall serve a copy thereof upon each of the other parties and shall file 1 copy with the Regional Director. If no objections are filed thereto, the Board will adopt the recommendation of the hearing officer. * N. L. R. B. v. Underwood Machinery Company, 179, F. 2d 118. HASTINGS & SONS PUBLISHING COMPANY and LYNN NEWSPAPER GUILD, LOCAL 55 AMERICAN NEWSPAPER GUILD, C. I. O. Case No. 1-CA- 1124. January 27,1953 Decision and Order On September 29, 1952, Trial Examiner W. Gerard Ryan issued his Intermediate Report in the above-entitled proceeding, finding that 102 NLRB No. 75.