J. J. Newberry Co.

84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD group, the employees will be taken to have indicated their preference for separate bargaining units, and the Regional Director is instructed to issue a certification of representatives to NABET, IATSE, or Local 644, as the case may be, for the separate unit or units in question which the Board finds in such circumstances to be appropriate' ,far purposes of collective bargaining. 5., NABET would base voting eligibility on a minimum of 6 days' employment during the 1-year period, or alternately, the 6-month period preceding the election. The Employer would require 1 day's employment in a period of not less than 3 months or more than 6 months before.the election, and the Intervenors would limit the period to the 3 months preceding the Direction of Elections. We believe that a single day's employment is too casual to establish the bargaining interest of a prospective voter. Therefore, we shall follow-the formula established for single'employer motion picture units in the Television Film Pro'drucers Association case.20 Accordingly, all employees who have had two or more days of employment with the Employer during the'9-month period immediately preceding the date of this Decision and Direction of Elections, shall be eligible to vote in the election.- [Text of Direction of Elections omitted from publication in this' volume.] CHAIRMAN HERZOG took no part in the consideration of the above Decision and Direction of Elections. 20 93 NLRB 929. See also American Broadcasting Company, Inc, et at, supra , and Audio Products, Inc., et al. , 2-RC-2795, not reported in the printed volumes of the Board's decisions. , " ' NABET requests the Board to reexamine the showing of the Intervenors in the light of whatever eligibility formula is adopted by the Board. We have repeatedly held that show- ing of interest is an administrative matter. Moreover, we are satisfied that the Inter- venors' showing is adequate. J. J. NEWBERRY COMPANY and LOOAL No. 328, INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMERICA, A. F. OF L., PETITIONER . Case No. 18 11C-14450. July 9, 192E Decision and Certification of Representatives Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted on April 4, 1952, under the direction and supervision of the Regional Director for the Eighteenth Region, among the employees in the stipulated unit. Thereafter, a tally of ballots was furnished the parties. The tally showed that of 100 NLRB No. 21. r J. J. NEWBERRY COMPANY 85 approximately 18 eligible voters, 18 cast valid ballots, 13 for and 5 against the Petitioner. There was 1 challenged ballot. On April 9, 1952, the Employer filed objections to the results of the election, alleging that Petitioner or its agents had engaged in conduct violative of Section 8 (b) (1) of the Act. In accordance with the Board's Rules and Regulations, the Regional Director conducted an investigation and on April 29, 1952, issued and duly served upon the parties his report on objections, in which he found that the objections did not raise substantial or material issues with respect to the results of the election, and recommended that the objections be overruled and that the Petitioner be certified on the basis of the tally of ballots. On May 9,1952, the Employer filed exceptions to the report on objections. Upon the entire record in the case, the Board makes the following findings : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The Petitioner is a labor organization claiming to represent cer- tain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The following employees of the Employer-as stipulated by the parties-constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All employees in the Iron River, Michigan, store, including regular part-time employees, stock employees, window trimmers, and all cler- ical employees, but excluding the cashier and all supervisors as defined in the National Labor Relations Act as amended. 5. The Employer's objections to the election rest upon facts which are substantially undisputed. The person of whose conduct the Em- ployer complains was an ordinary rank-and-file employee. During the organizational campaign she said, in the presence of other em- ployees, that "They" would know who voted for or against the Union. On the afternoon of the election she told one employee, "If you don't stick with us and vote `yes', we'll take you out in the alley and beat you up," and another, "If you don't vote `yes' in the election, I'll take you out in the alley." The Regional Director reported that this woman was not an officer of the Petitioner, and that the investigation revealed no evidence indicating any agency relationship between her and the Petitioner. In its exceptions, the Employer does not take issue with any of the foregoing facts. The objections directly allege that this one employee's statements constituted unfair labor practices chargeable to the Petitioner. As 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this is a representation proceeding, we may not consider the objections as made, because under the amended Act the Board may not make unfair labor practice findings except after complaint issued by the General Counsel, No charges under Section 8 (b) of the Act have been filed by the Employer. In any event, under well-established Board principles, the employee here involved was not an agent of the Union, or in any way shown to have been authorized to act on its be- half.2 The Petitioner, therefore, could under no circumstances be held responsible for' the manner in which she chose to further the Union's cause. In the brief supporting its exceptions, the Employer argues that because this particular employee assertedly was the most outspoken and enthusiastic of the union adherents, her conduct should be viewed in the same light as that of an ordinary union agent. We do not agree. No extensive rationale is required to rebut a contention that agency responsibility can be predicated upon the degree of fervor appearing in a rank-and-file employee's electioneering activities. The Board has repeatedly held that it will not attempt to police the unrestrained activities which sometimes regrettably appear in heated union elections .3 It is common knowledge that employees' language oftens exceeds polite, parlor-room, speech during the course of strongly contested union campaigns. Moreover, it does not appear that the statements of this employee were part of any concerted effort by the Petitioner to intimidate employees. While we do not condone the extreme language which she used in her attempt to win prounion vote-,, we agree with the Regional Director's conclusion that the facts revealed by the entire investigation do not raise substantial or material issues respecting the outcome of the election so as to war- rant setting aside the results.4 For the same reason, no useful purpose would be served by holding a hearing on the objections, as the Employer requests. The Employer also alleged in its objections that the Petitioner threatened to impose "penalties" upon those employees who voted against the Union. The only evidence supporting this objection is that at a preelection organizational meeting, a representative of the Petitioner explained that in the event the Petitioner obtained a union- shop contract, employees joining the Union at that time would be required to pay a $15 initiation fee instead of the $5 fee paid by i Section 3 (d) of the Act. See also Times Square Stores Corporation, 79 NLRB 361, 364-365. 2 Sunset Line and Twine Company, 79 NLRB 1487; Perry Norvell Company, 80 NLRB 225. 2 Maywood Hosiery Mills, Inc., 64 NLRB 146; Kroder-Reubel Company, Inc., 72 NLRB 240: Philadelphia Lager Beer Brewers' Association, 79 NLRB 351. 4 Minneapolis Knitting Works, 84 NLRB 826; Mallinokrodt Chemical Works, 86 NLRB 662. READE MANUFACTURING COMPANY, INC. 87 employees who joined earlier. This announcement was a correct statement of the then effective bylaws of the Petitioner. The Regional Director found nothing improper in this conduct. We agree with his conclusion.' We also note that the Employer did not specifically except to this portion of the Regional Director's report. For the foregoing reasons, and in accordance with the Regional Director's recommendations, we hereby overrule the objections to the results of the election. As the tally of ballots shows that the Petitioner received a majority of the valid votes cast in the election, we shall certify it as the exclusive bargaining representative of the employees in the appropriate unit. Certification of Representative IT Is HEREBY CERTIFIED that Local No. 328, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, A. F. of L., has been designated and selected by a majority of the employees of J. J. Newberry Company, Iron River, Michigan, in the appropriate unit, described in the stipulation for certification upon consent election herein, as their representative for the purposes of collective bargaining and that, pursuant to Section 9 (a) of the Act, the said organization is the exclusive representative of all the em- ployees in such unit for the purposes of collective bargaining, with respect to rates of pay, wages, hours of employment and other condi- tions of employment. CHAIRMAN HERZOG took no part in the consideration of the above Decision and Certification of Representatives. 6 Ferro Stamping and Manufacturing Co., 93 NLRB 1459. READE MANUFACTURING COMPANY, INC. and LOCAL 56, AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN OF N ORTH AMERICA, AFL, PETITIONER. Case No. 4-RC-1459. July 9, 1952 Decision and Direction Pursuant to a stipulation for certification upon consent election by the Employer and the Petitioner, an election by secret ballot was conducted on March 21, 1952, under the direction of the Regional Director for the Fourth Region. At the close of the election, the parties were furnished a tally of ballots which showed that of the 19 votes cast, 8 were for and 6 against the Petitioner, and 5 were challenged. - As the challenged ballots were sufficient in number 100 NLRB No. 4.