Emerson Electric Co.

EMERSON ELECTRIC COMPANY 149 Member Peterson , dissenting: The employees sought herein by the Petitioner have been represented by the Intervenor in a production and maintenance unit for 8 years . In view of this substantial collective-bar- gaining history on a plantwide basis, and in the absence of other factors which would warrant their severance from the established unit ,T I would not accord these employees separate representation. 7See my dissenting opinion in W C. Hamilton and Sons, 104 NLRB 627. EMERSON ELECTRIC COMPANY and DISTRICT NO. 9 INTER- NATIONAL ASSOCIATION OF MACHINISTS, A.F.L., Peti- tioner and INTERNATIONAL UNION OF ELECTRICAL RADIO AND MACHINE WORKERS, LOCAL 1102, CIO. Case No. 14-RC- 2030 . July 14, 1953 SUPPLEMENTAL DECISION AND CERTIFICATION OF RESULTS OF ELECTION Pursuant to a Decision and Direction of Election , t an election by secret ballot was conducted on February 6, 1953, under the direction and supervision of the Regional Director for the Fourteenth Region , in a voting group of machinists and tool and diemakers employed by the Employer. At the close of the election , the parties were furnished a tally of ballots. The tally showed that of the approximately 207 eligible voters, 199 ballots were cast . Of the ballots cast, 82 were cast for the Petitioner , 102 were cast for the Intervenor , and 14 were challenged. Thereafter, on February 11, 1953, the Petitioner filed timely objections, and a corrected objection on February 16, 1953, to the ' conduct of the election . In accordance with the Rules and Regulations of the Board , the Regional Director conducted an investigation and, on March 17, 1953, issued and duly served upon the parties his report on objections to election . In his report , the Regional Director found that the Petitioner ' s objections raised no substantial or material issues which would justify setting aside the election, and recommended that the objections be overruled , and that an appropriate certification of representatives be issued. On March 25 , 1953, the Petitioner filed exceptions to the Regional Director ' s findings and recommendations as to these objections along with a motion for reconsideration of report on objections to election . On March 31, 1953, the Regional Director issued a supplemental report denying the motion for reconsideration and recommending that the Board overrule the objection raised in the motion . The Petitioner filed ex- ceptions to this supplemental report. 1102 NLRB 303. 106 NLRB No 28. 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On May 20, 1953, the Board issued a Supplemental Decision and Certification of Results of Election in which it adopted the Regional' Director's recommendation that the Petitioner's objections to election be overruled for the stated reason that the Petitioner had failed to file timely exceptions to the Re- gional Director ' s report on objections to election . On July 1, 1953, the Board, being apprised of the fact that the Petitioner did file timely exceptions to the Regional Director's report on objections to election , issued an order vacating and setting aside the Supplemental Decision and Certification of Results of Election for the purpose of reconsidering the matter with the exceptions. The Board has considered the Petitioner's objections to the election , the Regional Director ' s report on objections and the exceptions filed thereto , the Petitioner ' s motion for recon- sideration , the Regional Director ' s supplemental report on the motion for reconsideration and the exceptions thereto, and hereby adopts the Regional Director's recommendation that the Petitioner ' s objections be overruled. The Petitioner objects to the election of February 6, 1953, on the ground that during the preelection and election period the Employer permitted officials of the Intervenor to elec- tioneer in the plant during working hours. In its exceptions to the report on objections , its motion for reconsideration, and its exceptions to the supplemental report , the Petitioner asserts that the Employer assisted and supported the Inter- venor by entering into a contract with the Intervenor on October 31 , 1952, while this representation proceeding was pending, and by permitting the Intervenor , pursuant to the contract , to solicit employees on company time and property, a privilege denied to the Petitioner . In its exceptions the Petitioner makes no mention of the number of observers at the election or electioneering in the polling area , matters raised in its objections and found to be without merit by the Regional Director. Concerning the issues raised by the Petitioner ' s exceptions and motion for reconsideration , the Regional Director ' s reports disclose the following: The contract between the Employer and the Intervenor entered into on October 31, 1952, excluded from its coverage the employees in the voting group in question , and notices to that effect were posted on the Employer ' s bulletin boards. This contract permits Intervenor officers access to the plant to investigate and adjust grievances. Two Petitioner ' s witnesses , employees in the voting group involved, gave affidavits stating that on January 30, 1953, three officials of the Intervenor came into their department, distributed IUE-CIO badges, and talked with individual em- ployees during working hours about plans the Intervenor had for them. Although one of these witnesses stated that foremen in the department "must have observed" the, incident, he could not identify any specific foreman as having been present. The other witness stated that his foreman was not present and EMERSON ELECTRIC COMPANY 151 could not recall any other foreman being present . Investigation did not reveal that the Employer was aware of the activity complained of or that it was called to the Employer ' s attention. A witness of Petitioner stated that on February 2, 1953, two Intervenor officials came into the plant and discussed the apprentice plan with employees involved in the pending election, and that on that occasion Foreman Brown spoke with the offi- cials and they left the department. By affidavit another Petitioner witness, an employee in the voting group, declared that on February 2, 1953, a notice of the Intervenor was posted on a bulletin board in a department of eligible employees , concerning a new agreement pertaining to seniority rights of occupational groups eligible to vote. The witness complained to the director of personnel that Inter- venor officials were electioneering in the department and brought to his attention the notice posted on the bulletin board. The director called the foreman of the department where the witness asserted the electioneering was going on and told him to keep the Intervenor ' s officials out of the department. He also called the Employer ' s other plant involved in the election and gave instructions that there was to be no electioneering on either side . Concerning the notice on the bulletin board, the director stated that it was unauthorized and contained misin- formation . He called the general foreman and instructed him to remove all union -propaganda from the bulletin boards. On February 4, 1953, the director met with the witness and Peti- tioner's organizer and in a letter clarified the exclusion of employees in the voting group from the seniority provisions of the Intervenor ' s contract of October 31, 1953, as amended. The Employer posted copies of this letter on its bulletin boards on February 5, 1953. The Petitioner ' s observer at the election stated that on February 5, 1953, the Intervenor ' s plant chairman was passing out handbills in the plant . He further stated that Foreman Hess was in his office at the time and therefore could not see the plant chairman . The observer then called the director of per- sonnel , who in turn called Foreman Hess bringing the incident to his attention . Hess thereupon spoke with the Intervenor's official , and the official left the department. On February 6, 1953, the day of the election , the polling was conducted between the hours of 6:30 and 8 a. m., and from 3 to 5 p. m. A witness of the Petitioner stated that he saw an official of the Intervenor in the plant , while the polling was in progress , talking to an employee . When spoken to by the fore- man, the Intervenor ' s official left . Another of Petitioner's witnesses saw the same official talking to an employee on that day. The exact time and place of this conversation is not revealed . A third Petitioner ' s witness , an eligible employee, stated that during the morning of February 6, 2 of the Inter- venor's officials talked to some 15 or 20 of approximately 80 or 90 employees in his department . A complaint was lodged by someone with the Employer, and when a personnel officer talked with the officials they left. 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In addition , Petitioner ' s observer stated that while the election was being conducted , he, the Board agent , and the observers for the other 2 parties went to 1 of the eligible departments to release voters . The observer stated that he then saw an Intervenor ' s official talking with an employee, and that Foreman Whitey came over and told the official to leave. The Intervenor ' s official went another 50 feet and started talking with another employee . Whitey went back to his office. The Petitioner ' s observer did not call this occurrence to the attention of the Board ' s agent or any representative of the Employer. The Petitioner does not specifically dispute the facts of the electioneering incidents reported by the Regional Director, but it does dispute his conclusion that the incidents do not warrant setting aside the election because the Employer did not know of the incidents or took prompt action when they were brought to its attention . The Petitioner would attribute responsibility to the Employer for the presence of Intervenor ' s officials inasmuch as the contract with the Intervenor required its representatives to report to foremen when leaving their de- partment or entering another department in the conduct of the Intervenor ' s business , and inasmuch as Government security regulations required outsiders to register and state their purpose upon entering the plant . We do not agree with the Petitioner ' s argument . The Regional Director ' s investigation does not show any independent knowledge on the part of the Employer of unauthorized entry and activity or acquiescence by the Employer in any departure by the Intervenor from the requirements of the contract which gave its officials the right of visitation . On the contrary, it is clear that when the Em- ployer had knowledge of any deviations from the contract by which the Intervenor ' s representatives did engage in elec- tioneering , it took forthright and affirmative steps to halt them. An employer in recognizing and dealing with a labor organ- ization during the pendency of a petition which raises a real question concerning representation, seriously interferes with its employees ' free choice of their bargaining representatives. 2 In the instant case, however , the contract entered into with the Intervenor covered only employees not involved in the proceeding instituted by petition . The Board has recently reaffirmed its policy that employers must maintain neutrality, but without infringing upon the rights of an incumbent union to administer its contract . 3 The investigation of the Regional Director does not disclose that the Employer was unneutral or that it displayed any favoritism toward the Intervenor, despite the fact that the Intervenor may have abused its greater opportunity to contact the employees in the voting group without the Employer ' s knowledge or consent.4 The Petitioner's exceptions and motion for reconsideration 2lnternational Shoe Company, 97 NLRB 772. 3Lewittes & Sons, Inc., 101 NLRB 1107 4See Westinghouse Electric Corporation, 91 NLRB 955. EMERSON ELECTRIC COMPANY 153 are based upon the Employer's alleged interference with the election by contracting with the Intervenor and permitting the Intervenor to electioneer on company time and property during the preelection period . There remains for consideration, however , the question of whether the Intervenor 's activity on the day of the election made the circumstances surrounding the conduct of the balloting unfit for obtaining free results. We think it did not. Only two of the incidents of electioneering are specifically fixed at the time the polling was in progress . There is no rule which prohibits electioneering before the time set for the elections Moreover , assuming arguendo that all of the inci- dents of electioneering which did occur on the day of the election occurred while the election was in progress , no claim is made by the Petitioner that the Intervenor ' s officials made any coercive statements or wilfully violated any instructions of the Board agent.6 With respect to the incident which the Petitioner ' s observer stated occurred when he went to release the-eligible employees, we note that although the Board agent was present in the same department the incident was not brought to his attention. Moreover , at the close of the election the Petitioner's ob- server certified that "the balloting was fairly conducted, that all eligible voters were given an opportunity to vote their ballots in secret , and that the ballot was protected in the interest of a fair and secret vote."' While we do not condone the conduct of the Intervenor's officials in this case, we are not persuaded that the Intervenor's electioneering on company time and property before and on the day of the election, complained of by the Petitioner, warrants setting aside the election. The Intervenor has gained a majority of the valid ballots cast in the election , the employees involved indicating thereby their desire to continue to be represented as part of the pro- duction and maintenance unit . In accordance with our original decision , we find, therefore, that these employees are appro- priately a part of the production and maintenance unit and the Intervenor may bargain for them as such. [The Board certified that a majority of the valid ballots was not cast for District No. 9, International Association of Ma- chinists , AFL, which sought to represent all machinists and tool and die makers in a separate unit. Accordingly, there was no severance and this group therefore remains in the produc- tion and maintenance unit represented by International Union of Electrical , Radio & Machine Workers, Local 1102, CIO.] Chairman Farmer and Member Peterson took no part in the consideration of the above Supplemental Decision and Certifi- cation of Results of Election. 5 Mutual Distributing Company, 83 NLRB 463. 6Moyer & Pratt, Inc., 100 NLRB 1147. 7Supra , footnote 5.