Mach Lumber Co.

158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ural phenomenon must be upheld as a true expression of the employees' desires " Gwaltney, Jr & Co , supra See also Diamond State Poultry Co , supra The Independent in its brief makes the following somewhat startling statement: There is no arguing the point that the presence of thugs and tough characters might well intimidate a potential voter, but it could only intimidate him to the extent of scaring him away from the polls. This type of imtimidation has not been asserted, and in fact is ruled out when we cohsider that 21,128 men out of a possible 24,153 voted Even accepting the premise stated that a potential voter might be intimidated only "to the extent of scaring him away from the polls," that alone is reason enough to set aside the elec- tion. The violent atmosphere showed itself in Brooklyn during the relatively early hours of the election, and one can only speculate as to the number of those who, by reason of it, might have been deterred from coming to the polls because they may have considered discretion the better part of valor The Board never requires proof, either in unfair labor practice cases or election cases, that given individuals have been in fact coerced by improper conduct, it is sufficient that the conduct found improper be such as to have a tendency to coerce See G. H. Hess, Inc., 82 NLRB 463, U S. Rubber Co , 86 NLRB 3, 5, N.L.R.B. v. James Thompson & Co., 208 F. 2d 743, 747 Nor is it necessary to show that election impro- priety affected enough employees to change the result. Once it is shown that an election was conducted under such circumstances as to deter any voters from expressing their free choice, the results of the entire election must be canceled out. The Board's function and duty in cases of this kind was expressed by it in General Shoe Corp., 77 NLRB 124, as follows: In election proceedings, it is the Board's function to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the employees. It is our duty to establish those conditions, it is our duty to determine whether they have been fulfilled When, in the rare extreme case, the standard drops too low, because of our fault or that of others, the requisite laboratory conditions are not present and the experiment must be conducted over again That is the situation here. And that, too, is the situation in the instant case For the reasons stated, I recommend that the objection, classified in the Regional Di- rector's report as A, (1), besustained, and that the election be set aside I further recommend that the Board order a new election at the earliest possible date convenient with administrative convenience ARTHUR S. MACH, YETTA MACH, SAM GELLER, RHODA SOLOMON and BEVERLY GELLER, COPARTNERS trading as MACH LUMBER COMPANY, PHILYET CORPORATION AND CAPITOL WHOLESALE SUPPLY COMPANY i and MIS- CELLANEOUS INDUSTRIAL WORKERS UNION, LOCAL NO. 134, affiliated with DISTILLERY RECTIFYING & WINE WORKERS INTERNATIONAL UNION OF AMERICA, AFL, Petitioner . Case No . 4-RC-2295. April 5, 1954 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before William Naimark, hearing officer. The hearing officer's rulings made iThe name of the Employer appears as corrected at the hearing. 108 NLRB No. 34. CONSOLIDATED VULTEE AIRCRAFT CORPORATION 159 at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds: The Employer is a New Jersey enterprise comprised of a partnership doing business as Mach Lumber Company, Capitol Wholesale Supply Company, a corporation, and Philyet Cor- poration. Capitol is engaged in the purchase and sale of roofing and other materials and is located on the same premises as Mach. Most of Capitol's sales are to Mach and all of its business is transacted within the State . Mach is itself engaged in the sale of lumber and other building materials. Philyet was organized a number of years ago to construct houses but has transacted no business in the past 3 or 4 years. The employees in issue are on Mach's payroll. The gross annual sales of Mach for the year ending July 31, 1953, were approximately $1,127,000. Of this amount, $5,000 represented out-of-State sales, and between $5 , 000 and $10 ,000 represented sales to a military installation within the State. The remainder consisted of sales made locally to farmers, builders, and homeowners. During the same period, Mach made direct out-of-State purchases valued at approximately $51,000 and indirect out-of-State purchases valued at $500,000. We believe that the Employer' s sales to the military installa- tion within the State did not have a sufficient effect upon the national defense to warrant our asserting jurisdiction for that reason.2 As the remaining sales and purchases do not satisfy any other of the Board's jurisdictional standards, we find that it will not effectuate the policies of the Act to assert jurisdiction in this case. [The Board dismissed the petition.] Members Murdock and Beeson took no part in the consider- ation of the above Decision and Order. 2 Alpine Mill & Lumber Co., 107 NLRB 915. CONSOLIDATED VULTEE AIRCRAFT CORPORATION, POMONA DIVISION and INTERNATIONAL UNION OF OPER- ATING ENGINEERS, LOCAL NO. 501, A.F.L., Petitioner. Case No. 21-RC-3388. April 5, 1954 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Herbert C. Bumgarner , hearing officer . The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 108 NLRB No. 33.