Poinsett Lumber and Manufacturing Co.

2 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I WILL NOT discourage membership in Union de Empleados de Hoteles , Cafes y Restaurantes de Puerto Rico, or in any other labor organization of my employees, by discriminating in any manner in regard to hire, tenure , or any other term or condition of employment , except to the extent permitted by Section 8 (a) (3) of the Act. I WILL offer to Benito Cotto Torres immediate and full reinstatement to his former or substantially equivalent position , without prejudice to any seniority or other rights and privileges , and make him whole for any loss of pay suffered as a result of the discrimination against him I WILL NOT in any other manner interfere with, restrain, or coerce my employees in the exercise of the right to self-organization , to form labor organizations , to join or assist the above-named or any other labor organization , to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment in conformity with Section 8 (a) (3) of the Act All my employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization, except to the extent above stated. Dated . GABINO MARTINEZ, Proprietor , Restaurant El Alcazar. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. POINSETT LUMBER AND MANUFACTURING COMPANY, and INTERNATIONAL UNION OF ELECTRICAL, RADIO, AND MACHINE WORKERS, CIO, Petitioner . Case No. 11-RC-534. November 27, 1953 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to a Decision and Direction of Election issued by the Board herein on July 17, 1953,' an election by secret ballot was conducted on August 7, 1953, under the direction and supervision of the Regional Director for the Eleventh Region among the production and maintenance employees at the Em- ployer's Anderson, South Carolina, plant. Following the elec- tion a tally of ballots was furnished the parties. The tally shows that, of approximately 301 eligible voters, 275 cast ballots, of which 139 were for the Petitioner, and 135 were against the Petitioner. There was 1 challenged ballot and 2 void ballots. On August 13, 1953, the Employer timely filed objections to conduct of the election and conduct allegedly affecting the results of the election.2 In accordance with the Rules and iNot reported in printed volumes of Board Decisions. 2Other objections of the Employer concerned the challenged ballot and one of the void ballots The Regional Director resolved both objections against the Employer and the Em- ployer duly excepted to his findings. We agree with the Employer to the extent that it argues that the Regional Director committed an apparent oversight in not resolving the alleged supervisory status of voter Dunn in the instance of the challenged ballot. We find it unneces- sary to decide that issue nor the issue of the propriety of the Regional Director's ruling with 107 NLRB No. 64. POINSETT LUMBER AND MANUFACTURING COMPANY 235 Regulations of the Board, the Regional Director conducted an investigation of these objections and on September 9, 1953, issued and duly served upon the parties his report on objections, finding the objections to be without merit and recommending 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.3 The Employer asserts that on three different occasions employees in the unit were either threatened with physical violence or economic loss if they voted against the Petitioner or in the event the Petitioner lost the election . Thus it is alleged that 2 days before the election , as a group of employees were sitting in the plant canteen, employee Hembree threatened employee Brown with either loss of employment or physical violence , depending upon how the Petitioner fared in the elec- tion; that , on the day before the election , employee Temples spoke in profane terms to two female employees , Stone and Evatt, and threatened that they would be without employment if the Petitioner won the election ; and that, on the day of the election , employee Hawkins met employee LeCroy in the plant, pointed a finger at him, and threatened to have "stooges" after him if he, LeCroy , voted in the election . In each instance the threats were either denied or it was contendedthat they were made in an exchange of banter . The Regional Director in his report concluded it was unnecessary to resolve the conflicting versions as to the alleged threats because these statements could not be attributed to the Petitioner as they were made by rank-and-file employees who were not agents of the Petitioner .' The Regional Director concluded further that, taken together , these incidents do not reveal a pattern of concerted effort by an organized group to intimidate the em- ployees in the election. The Employer , in substance , disputes the finding of lack of agency, and argues further that the statements themselves were sufficient to interfere with the election . As to the issue of agency, it is well established that mere advocacy of the Petitioner by rank -and-file employees does not constitute them agents of the Petitioners Nor are the activities of Temples as a paid election -day representative of the Peti- tioner sufficient to hold the Petitioner accountable for the alleged preelection threats made by him to Stone and Evatt, respect to the void ballot in view of our disposition of the other objections and since it is clear that the number of ballots involved are insufficient to affect the mathematical results of the election 3The Employer 's request for oral argument before the Board is hereby denied, as the record, including the exceptions and brief of the Employer , adequately presents the issues and the positions of the parties. 4Temples and others received 5 dollars each from the Petitioner for services rendered in assisting it on the day of the election The Regional Director found that the alleged state- ments were not made in connection with the employees ' election- day duties. sSee A Werman & Sons, Inc., 106 N LRB 1215, and cases therein cited. 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD where, as here, there has been no showing that the threats were made in connection with these duties.' Accordingly, in view of the foregoing and in absence of evidence that the Peti- tioner either authorized or subsequently ratified the actions of Hembree, Temples, and Hawkins, we find, in agreement with the Regional Director, that these three employees were not agents of the Petitioner. Nor do we believe that these statements were, in and of themselves, sufficient to prevent or to impair a free and un- fettered choice of representatives as contemplated by the Act. As to the conversations in which employees Temples and Hawkins were involved, we are satisfied that they were mere interchange of banter. T As the Regional Director found, Temples, Stone, and Evatt each knew of the others' attitude concerning the Petitioner and the conversation was accom- panied by laughter on the part of Temples and Evatt. The re- port also shows that Hawkins and LeCroy were old and good friends, that Hawkins stated that both laughed during the conversation, and that, at one point, LeCroy, in characterizing Hawkins' attitude, said he "just didn't know how to take (Hawkins)." As to the canteen incident, we think that, even assuming a version most favorable to the Employer, this isolated incident would not be enough to warrant setting the election aside. 8 In its objections and more fully in its brief in support of exceptions, the Employer contends that the election was held at a time when four eligible voters were on duty with the National Guard and were thereby deprived of the right to participate in the election. The Regional Director found that the Employer knew that these employees would be absent at least 2 weeks before the election date was set but did not communicate this fact to the Regional Director until after the election in the form of objections thereto. We find, as did the Regional Director, that this objection is untimely. The tally of ballots shows that a substantial and representative number of employees voted in the election. Indeed over 90 percent of those eligible to cast ballots did so. Under these circumstances, we agree that there is no merit in this objection. As we have overruled the Employer's objections because they do not raise substantial or material issues w-th respect to the election 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- bar-gaining representative of the employees in the appropriate unit. 6See E. I. DuPont de Nemours & Company, Inc. Construction Division, Savannah River Plant, 105 NLRB 710. T Like the Regional Director, we do not thereby condone the language used in the Temples incident. 8See J. J. Newberry Company, 100 NLRB 84; E I. DuPont de Nemours & Company, Inc., supr ; A. Werman & Sons, Inc., supra BROOKS WOOD PRODUCTS 237 [The Board certified International Union of Electrical , Radio, and Machine Workers, CIO , as the designated collective-bar- ganing representative of the employees of the Employer in the unit found appropriate in the Decision and Direction of Elec- tion herein.] THOMAS W. BROOKS AND COLLIN BROOKS d/b/a BROOKS WOOD PRODUCTS and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLE- MENT WORKERS OF AMERICA (UAW-CIO). Case No. 7-CA-719. November 30, 1953 DECISION AND ORDER Upon a charge and amended charge filed by the International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, herein called the General Counsel, by the Regional Director for the Seventh Region (Detroit, Michigan), issued a complaint dated December 12 , 1952, against Thomas W. Brooks and Collin Brooks, d /b/a Brooks Wood Products , herein called the Re- spondents , alleging that the Respondents had engaged in and were engaging in certain unfair labor practices affecting com- merce within the meaning of Section 8 (a) (1) and ( 3) and Sec- tion 2 ( 6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act. Copies of the charges, the complaint , and notice of hearing were duly served upon the' Respondents and the Union . The Respondents duly filed their answer, in which they denied the commission of any unfair labor practices. Pursuant to notice , a hearing was held at West Branch, Michigan, on January 26, 1953, and at Mio, Michigan , on various dates between January 27 and February 19, 1953, before Sydney S. Asher, Jr., the Trial Examiner duly designated by the Chief Trial Examiner . The General Counsel and the Re- spondents were represented by counsel ; the Union by its inter- national representative . All parties participated in the hearing and were afforded a full opportunity to be heard , to examine and cross -examine witnesses , and to introduce evidence bear- ing on the issues. On July 6, 1953, the Trial Examiner issued his Intermediate Report, finding that the Respondents had engaged in and were engaging in certain unfair labor practices alleged in the complaint , and recommending that they cease anddesistthere- from and take certain affirmative remedial action . Thereafter, the Respondents and the Union filed exceptions to the Inter- mediate Report ; the Respondents also filed a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error 107 NLRB No. 71. 337593 0 - 55 - 17