E. I. Dupont de Nemours & Co., Inc.

7 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Petitioner would exclude employees working in the leased optical department. The Employer takes no position as to these employees. As the record shows that the hiring, discharge, payment, and supervision of these employees is done by the lessee, we shall exclude them from the unit.3 The Petitioner would exclude watchmakers and jewelers from the unit. The Employer takes no position with respect to the unit placement of these employees. The Petitioner presents no cogent reason for their exclusion and we shall therefore include these employees. Accordingly, we find that 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 selling and nonselling employees of the Employer at its Baton Rouge, Louisiana, stores, including watchmakers and jewelers, but excluding employees of the leased optical department, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] $See The P. B. Magrane Store, Inc., 84 NLRB 345, 347. E. I. DUPONT DE NEMOURS & COMPANY, INC. CON- STRUCTION DIVISION, SAVANNAH RIVER PLANT and UNITED GAS, COKE AND CHEMICAL WORKERS OF AMER- ICA, CIO, Petitioner. Case No. 11-RC-477. June 22, 1953 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to a Decision and Direction of Election issued by the Board herein on February 25, 1953,1 an election by secret ballot was conducted on March 17 and 18, 1953, under the direction and supervision of the Regional Director for the Eleventh Region, among employees in the unit found appro- priate by the Board in its decision. Following the election, a tally of ballots was furnished the parties. The tally shows that, of approximately 223 eligible voters, 212 cast valid bal- lots, of which 157 were for the Petitioner, 4 were for the Intervenor,' and 51 were against participating labor organi- zations. There were no void or challenged ballots. On March 23, 1953, the Employer timely filed objections to conduct assertedly attributable to the Petitioner which it alleged interfered with the election. In accordance with the Rules and Regulations of the Board, the Regional Director conducted an investigation of these objections and on April 24, 1953, issued and duly served upon the parties his report on i Not reported in printed volumes of Board decisions 2 American Federation of Labor 105 NLRB No. 104. E. L DUPONT DE NEMOURS & COMPANY, INC. 711 objections , finding the objections to be without merit and rec- ommending that they be overruled and that the Petitioner be certified as the exclusive bargaining representative of the employees in the appropriate unit. The Employer timely filed exceptions to the Regional Director ' s report, and a supporting brief. 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 [Members Houston, Styles, and Peterson]. The Employer excepts generally to the Regional Director's report on the grounds , in effect , that it is materially incom- plete , is based on an improper investigation , and is biased. As the Employer has failed to adduce any persuasive evidence to substantiate such contentions , we find them to be without merit.' The Employer ' s principal , specific objections are discussed below: Objection 1. The Employer asserted that the Petitioner, through supervisors , threatened and warned employees to support the Petitioner . The Regional Director found that the only evidence of supervisors speaking in favor of the Union was the instance of a single foreman from another department who, 5 days before the election and in response to a question concerning the merits of having a union in the plant, gave his views which contained no evidence of threats or coercion.4 He therefore found the objection to be without merit. In its exceptions , the Employer asserts that it doubts whether the foreman was asked his opinion as a personal mat- ter and, in any event , the foreman ' s statement immediately before the election was intended to impress upon the employees that the Petitioner could offer more than the Intervenor and was an unwarranted interference with their right to make a free choice of representatives . No contention is made that the remarks of the foreman were other than those described by the Regional Director . Under such circumstances , we agree with the Regional Director that the remarks were a mere expression of views and opinion and are not such as would interfere with the free choice of representatives . 5 We therefore overrule this objection. Objection 2. The Employer contended that the Petitioner threatened and warned employees not to vote for the Intervenor or Employer . In this connection, the Employer submitted the affidavit of an employee that on or about March 10 , 1953, he was asked by a fellow employee to sign a CIO membership card and upon his refusal to do so, was told that "in another two weeks, you won't be working here after the CIO takes 3 William R Whittaker Co , Ltd., 94 NLRB 1151, Pacific Gas and Electric Company, 89 NLRB 938. 4 The remarks were "Well , if I were you boys, I would stick to the CIO They fought for it from the beginning up until now , and the AFL has not done anything about trying to organize Now they are trying to cut in and take you away from the CIO . " He further stated that during the previous year he had tried to organize the AFL and that it had cost him money 5Stewart-Warner Corporation , 102 NLRB 1153. 291555 0 - 54 - 46 7 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD over." The Regional Director ' s investigation revealed that the individual who allegedly made the remark was a rank -and-file employee who was an adherent but not an official of the Peti- tioner. As there was no showing that this individual was vested with authority by one of the parties, the Regional Director found the objection to be without merit.' The Employer excepts to this finding on the grounds that (a) the statement interfered with the election and the free choice of a representative , regardless of whether it was made by a rank-and-file employee or by one vested with authority; and (b) in any event, the employee who made the remark was not a rank-and-file employee but an authorized agent of the Petitioner whose actions were attributable to that organization. We do not agree. As to the first ground, the Board has frequently held that rank-and -file employees may make statements in the course of an organizational campaign which might have different implications were those employees vested with authority by one of the contending parties, 7 and that isolated threats by such rank-and- file employees do not constitute interference with an election." As to the second ground , namely the alleged status of the individual in question as an agent of the Petitioner whose remarks are attributable to the Union, the Employer asserts in its brief merely that he was "a member of the Negotiating Committee of the CIO which met to consider and arrange for the date and general procedure of the election," and that in a CIO letter summarizing the negotiations on election procedure, "he is publicly.identified therein as a member of the Election Conference Committee." Even assuming the individual served in the capacity claimed by the Employer, we are of the opinion that his alleged threat is not attributable tothe Petitioner. The remark does not appear to have been made in connection with the duties of the election conference committee, which ap- parently was a group elected to assist in handling the details of the election itself. Nor was any evidence submitted to show that the Petitioner ratified or approved his statement. We find, therefore , in agreement witn the Regional Director, that the employee 's alleged threat was not attributable to the Petitioner.9 Furthermore, we believe that, even assuming the remark was attributable to the Petitioner, such single alleged threat, made 7 or 8 days before the election , was so isolated and sufficiently remote from the time of the election as to have lacked any coercive effect thereon and does not warrant 6 With regard to a remark allegedly made by the same individual after the election, the Regional Director made no finding because it would have had no effec on the election. The Employer 's exception to this determination is clearly without merit. 7 Benton's Cloak & Suit Company, 97 NLRB 1327. 6 Marman Bag Company, Inc., 103 NLRB 456. 9 See Perry Norvell Company, 80 NLRB 225, 243; and Sunset Line and Twine Company, 79 NLRB 1487, 1508. E. I. DUPONT DE NEMOURS & COMPANY, INC. 713 setting the election aside. 10 We therefore overrule the objec- tion. Objection 3. The Employer contends that numerous letters signed by representatives of the Petitioner were sent to em- ployees before the election and that these letters, together with handbills distributed to employees, went beyond the free speech provisions of the Act. The Regional Director found that the letters and handbills were no more than preelection propaganda of the character which the Board has traditionally stated it will not censor or police. The Employer excepts to these findings on the grounds that they are improper con- clusions of fact, an incomplete statement of fact, and contrary to law. We have carefully examined copies of the letters and hand- bills in question and agree with the Regional Director that they are no more than preelection campaign propaganda and do not warrant setting the election aside." We therefore over- rule the objection. Objection 4. The Employer contends that the Petitioner deliberately invited arrest of its organizers for unlawful con- duct and then villified the Employer in false press releases and paid advertisements in newspapers to inflame the em- ployees against the Employer. The Regional Director found that on February 20, 1953, several union organizers were arrested while distributing campaign leaflets at the plant gates. They were arrested by employees of the. Employer, some of whom are commissioned constables, in effect for blocking traffic. The arrests resulted in publicity through newspaper accounts and paid advertise- ments. At the later trial of one of the defendants, the assistant State director for the CIO, the witness quoted him as stating "I will be arrested, but I won't leave," and that if he or the others were violating the law, "they would just have to go ahead" and make the arrests. The Regional Director found that the evidence submitted to show that these actions were intended to interfere with, restrain, or coerce employees in the free choice of representatives or would necessarily have such an effect, is not persuasive. He found further that the truth or falsity of propaganda resulting from these arrests is not determinative of the propriety of the election especially where as here the parties are in . a position to rebut the adverse propaganda. He concluded that the objection is with- out merit. In its exceptions, the Employer does not controvert the Regional Director's findings of fact except in minor respects. 12 10See Kroder-Reubel Company, Inc., 72 NLRB 240; S & S Corrugated Paper Machinery Co , Inc., 89 NLRB 1363. "Kearney & Trecker Corporation, 96 NLRB 1214; Gray Drug Stores, Inc., 95 NLRB 171, Red Wing Potteries, Inc., 88 NLRB 1234. ii The Regional Director found that, before the arrest, the Union had requested permission to distribute leaflets within the plant enclosure which had not been granted. The Employer asserts that the Unions had permission to distribute leaflets in area parking lots and at the time of the arrest of the CIO assistant State director for blocking traffic, the other organizers who did not interfere with traffic completed their distribution Even accepting these facts as alleged by the Employer, such facts are without controlling significance. 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It contends however , that the Regional Director erred as a matter of law in his determinations . We do not agree. In our opinion, the record fails to establish that the Petitioner deliberately sought the arrest of its organizers . Moreover, contrary to the Employer ' s contention , the latter had ample opportunity effectively to reply to the Petitioner ' s election campaign . We find , as did the Regional Director , that this objection of the Employer is without merit. We find therefore that the Employer ' s exceptions raise no substantial and material issues with respect to the election and we adopt the Regional Director ' s recommendations that the objections be overruled." As we have overruled the Employer ' s objections and as it appears from' the tally of ballots that the Petitioner has secured a majority of the valid votes cast in the election, we shall certify the Petitioner as the collective -bargaining repre- sentative of the employees in the appropriate unit. [The Board certified United Gas, 'Coke and Chemical Workers of America, CIO, as the designated collective-bar- gaining representative of the employees of the Employer in the unit found appropriate in the Decision and Direction of Election herein.] tlNo persuasive reason appears for granting the Employer 's request for a hearing. Ac- cordingly, this request is denied. WESTERN FOUNDRY COMPANY and CHESTER SWANSONand EDWARD KOENIG. Case No. 13 - CA-1238. June 24, 1953 DECISION AND ORDER On April 24 , 1953, Trial Examiner Horace A. Ruckel issued his Intermediate Report in this proceeding , finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety , as set forth in the copy of the Intermediate Report attached hereto. Thereafter , the General Counsel filed exceptions to the Intermediate Report and a supporting brief. The Respondent requested permission to file a reply brief, which request was granted. 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 Intermediate Report, the execptions and the briefs, and the entire record in the case , and hereby adopts 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. [Members Houston, Murdock, and Peterson]. 105 NLRB No. 111.