Fruehauf Trailer Co.

182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On December 16, 1952, new officers were elected and Oppen- heimer was replaced as vice president . However, he was elected to the executive board of which he is still a member. He was also appointed to several committees of the Petitioner since its formation including the strategy committee, principles com- mittee, liaison committee, finance committee, and membership committee. The evidence also shows that Oppenheimer has regularly paid quarterly dues of $ 56 to the Petitioner and, in addition , advanced $ 100 to be applied to dues at his option in the future , and that he has contributed to the Petitioner $ 15 for an advertisement and $10 for a book of raffle tickets. Petitioner contends that, notwithstanding the above facts which it admits to be substantially true, Oppenheimer ' s activi- ties were not such as to disqualify it from representing em- ployees of Desilu. Petitioner cites the fact that Oppenheimer's attendance at various membership , executive board, and com- mittee meetings was irregular , and, particularly , that there is no evidence that Oppenheimer directly approached any em- ployees of Desilu and solicited their memberships . However, it is not disputed that both Pugh and Carroll were present at the Radio Writers Guild meeting and at the August 28 meeting, where Oppenheimer spoke in favor of a new organization. On these facts , we find that Carroll and Pugh were, in effect, solicited by Oppenheimer to join TWA . Considering Oppen- heimer ' s position as head writer and producer of "I Love Lucy," we find that the showing of interest , on which this petition was based , is necessarily impaired by his activities in the organization of the Petitioner , and will dismiss the petition- 0 [ The Board dismissed the petition.] 6 Toledo Stamping and Manufacturing Company, 55 NLRB 865. See Wells, Inc , 68 NLRB 545. Excluding Oppenheimer, TWA's showing in this case consists of 3 cards in a unit of 8 Without the cards of Carroll and Pugh, the showing would consist of only 1 card, which is insufficient to support the petition. Although the Intervenor has made a sufficient showing of its own, the Intervenor took the position that the petition should be dismissed FRUEHAUF TRAILER COMPANY and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRI- CULTURAL IMPLEMENT WORKERS OF AMERICA, CIO, Petitioner . Case No. 10-RC-2151. July 15, 1953 SUPPLEMENTAL DECISION AND CERTIFICATION OF RESULTS OF ELECTION On March 3, 1953, pursuant to a Decision and Direction of Election issued by the Board on January 5, 1953,' an election by secret ballot was conducted in the above-entitled matter under the direction and supervision of the Regional Director i Not reported in the printed volumes of Board decisions. 106 NLRB No. 33. FRUEHAUF TRAILER COMPANY 183 for the Tenth Region (Atlanta, Georgia), among the employees of the Employer in the voting group described in the Decision. Upon the conclusion of the election, a tally of ballots was fur- nished the parties in accordance with the Rules and Regula- tions of the Board. The tally of ballots shows that of approximately 3 eligible voters, 1 cast a ballot in favor of the Petitioner, and 2 cast ballots which were challenged by the Employer. After the election, the Employer filed timely objections to conduct af- fecting the results of the election. As the challenged ballots were sufficient in number to affect the results of the election, the Regional Director, in accordance with the Board's Rules and Regulations, investigated the challenges. He also investigated the Employer's objections. On May 12, 1953, the Regional Director issued and served upon the parties his report on challenged ballots, objections to election, and recommendations to the Board. In his report he recommended that the challenges to the ballots cast by Gazaway and Dunn be sustained and that the objections be overruled. On May 20, 1953, the Employer filed exceptions to the Regional Director's recommendations with respect to all but 1 of the objections. No exceptions were filed to the Regional Director's recommendations as to the 2 challenges. 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, Murdock, and Peter- son]. As no exceptions were filed to the Regional Director's recommendations respecting the two challenged ballots, we hereby adopt his recommendations and hereby sustain the challenges to the ballots cast by Gazaway and Dunn. The Objections 1. One of the objections alleged that the employees had not been given adequate notice of the election. As no exception was received to the Regional Director's recommendation that this objection be overruled, we hereby adopt his recommendation and overrule the objection. 2. Three other objections in substance are further attempts by the Employer to relitigate an appropriate unit issue in the case which the Board fully considered and decided in the Decision and Direction of Election. The Board found no merit in the Employer's contention that the employees involved in this proceeding could not constitute a separate voting group or be added to the existing production and maintenance unit. As part of its objections the Employer now alleges that: (1) The election notice, in which the employees were advised of the nature of the Board's Decision, was prejudicial to the Employer; (2) the Direction of Election was illegal; and (3) the election was in- valid. Like the Regional Director, we find no merit in the Employer's contention that the employees could not lawfully be advised of the terms of the Board's Decision . Because these 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD three objections in reality raise no matters not previously considered and decided by the Board, we hereby adopt the Regional Director ' s recommendations as to them and hereby overrule all three. 3. A fifth objection was raised on the assertion that because the employees were polled in a private automobile on a public street, the secrecy of the ballot was necessarily violated and the election must therefore be set aside . In its exceptions the Employer does not dispute the fact, as reported by the Regional Director, that on the day of the election the Employer refused the customary cooperation of permitting the election to be conducted on its premises, and that there was no other more desirable location available near the Employer ' s premises. In its exceptions on this point the Employer asserts only that it was unable to agree to hold the election on that particular day. We note that , because of the Employer ' s several motions for reconsideration , which were denied , and its attempt to enjoin the Board in the courts , the election in this case was not held until almost 2 months after issuance of the Direction of Election . In these circumstances , we find nothing improper in the Regional Director ' s decision not to delay the election further. Absent any evidence affirmatively showing that the secrecy of the ballot was in fact lost because the employees voted in an automobile, we do not believe that this objection raises any substantial issue with respect to the conduct of the election.' Accordingly, we hereby overrule this objection. 4. In another objection the Employer alleges that the secrecy of the ballot was destroyed because Walker, a union official, approached the voting place (the field examiner's automobile) during the voting period . The facts on this issue are not dis- puted. After employee Gazaway, whose ballot was successfully challenged by the Employer, cast his ballot, he met Walker near the automobile as the latter was approaching. When the Employer ' s observer advised the Board agent in charge of the election that Walker was a union official , the field examiner requested Walker to leave the vicinity of the poll. Walker then went across the street and either entered a truck parked there or stepped into a store . It is not claimed that Walker engaged in any electioneering near the poll or that he spoke to any of the voters before they cast ballots. Like the Regional Director , we agree that Walker's mere brief presence in the vicinity of the poll, without any proof of elec- tioneering or other improper conduct , is insufficient to raise any substantial issue with respect to the conduct of the election. Accordingly, we hereby overrule this objection also. 5. The Employer's final objection arises from the fact that the Board agent rejected the Employer's challenge to the ballot of Biddie, the only employee whose ballot was opened and counted. The grounds on which the Employer attempted to challenge Biddie's vote were set forth in a written document 2 Cities Service Oil Company of Pennsylvania, 87 NLRB 324. SSouthwestern Electric Service Co.. 90 NLRB 457 FRUEHAUF TRAILER COMPANY 185 which the Employer's observer handed to the Board agent. The Employer did not claim that the employee was ineligible as an individual properly included in the voting group. Rather, the challenge rested on an assertion of the Employer's pre- viously rejected contention that the Board's original Decision was illegal . The other grounds set forth were the 'same as three of the objections which we have already found to be without merit (the election notice was improper, the election ought not be held in an automobile, and inadequate notice was given to the employees). It is clear that the Employer's attempt to challenge Biddie's ballot did not reflect any bona fide doubt as to that employee's eligibility. Although it would have been better practice for the field examiner to have accepted the challenge as offered, we find that his failure to do so was not prejudicial to the Employer. Certainly, as Biddie's was the only vote which was opened and counted , the rejection of the challenge does not raise any substantial issue as to the out- come of the election. We therefore overrule this final objection also. As we have found that none of the objections raises sub- stantial or material issues affecting the election , we hereby deny the Employer's motion to order a hearing on the ob- jections and we hereby overrule all of them. In the Decision and Direction of Election previously referred to, the Board made no final determination of the appropriate unit, but stated that such determination would depend in part upon the results of the election among the employees in the voting group. Upon the basis of the entire record in the case, the Board makes the following: SUPPLEMENTAL FINDINGS OF FACT We find that all employees in the parts department employed at the Employer's Atlanta, Georgia, factory service branch, including the inventory clerk, but excluding all office clerical employees, guards, professional employees, and all super- visors as defined in the Act, have selected International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO, as their bargaining representative. It appearing that this organization is now the recognized exclusive bargaining representative of the production and maintenance employees of the Employer, IT IS HEREBY CERTIFIED that the said organization may bargain for the employees in the above-named category as part of the group of employees which it currently represents.