Herbert Men's Shop Corp.

670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to those of the other engineers and draftsmen in the unit. Therefore, we find, as did the hearing officer, that they are included in the unit and eligible to vote in the election 4 We therefore overrule the challenges to their ballots and shall direct that they be opened and counted. Marshall H. Bishop: As no specific exception was taken to the hear- ing officer's finding that this employee was a technical employee eligible to vote in the election, we adopt his finding as to this employee. Therefore, we overrule the challenge and shall direct that Bishop's ballot be opened and counted. Direction As part of the investigation to ascertain representatives for purposes of collective bargaining with Lamson Corporation, Syracuse, New York, the Regional Director for the Third Region shall, pursuant to National Labor Relations Board Rules and Regulations, within ten (10) days from the date of this Direction, open and count the ballots of Louis Doelling, Lou McMahan, Marshall H. Bishop, Austin D. Van- derbilt, Howard S. Maguire, and Elmer Syrene, and thereafter serve upon the parties a second revised tally of ballots, including therein the count of these ballots. 4 The Petitioner also asserted that Vanderbilt, one of the industrial engineers, was in any event not eligible to vote because at the time of the election he performed the duties of a salesman . This employee was temporarily detailed to solicit defense work for the Employer and was expected to return to his position as industrial engineer , although he did not do so. The hearing officer found that at the date of the election Vanderbilt's interests still lay with those of the other industrial engineers . Therefore, he found that Vanderbilt was eligible to vote We find, as did the hearing officer, that Vanderbilt had a substantial interest in common with the other employees in the unit at the time of the election and is entitled to vote. Epp Furniture Company, et al., 86 NLRB 120. HERBERT MEN'S SHOP CORPORATION and RETAIL CLERKS INTERNA- TIONAL ASSOCIATION, A. F. OF L., PETITIONER . Case No. 13-RC-1779. August 19, 1952 Supplemental Decision and Order and Direction of Second Election On June 13,1951, pursuant to a Decision and Direction of Election 1 issued by the Board on May 25, 1951, an election by secret ballot was conducted under the direction and supervision of the Regional Direc- tor for the Thirteenth Region. The tally of ballots issued after the election showed that of the 16 eligible voters in the unit, 14 cast valid ballots, of which 3 were for, and 11 were against, the Petitioner. 1 94 NLRB 842. 100 NLRB No. 110. HERBERT MEN'S SHOP CORPORATION 671 On June 20, 1951, the Petitioner filed objections to conduct affecting the results of the election. Thereupon, in accordance with the Board's Rules and Regulations, the Regional Director conducted an investiga- tion and on December 28, 1951, issued and duly served upon the par- ties a report on objections. The Regional Director upon the facts recited in his report found merit in certain of the Petioner's objections, concluded that the Employer had interfered with the conduct of the election, and recommended that the election be set aside. On Janu- ary 7, 1952, the Employer filed exceptions to the Regional Director's Report. Thereafter, on February 4, 1952, the Board issued an order directing hearing on the objections and exceptions and remanded the case to the Regional Director for the purpose of conducting a hearing on the issues raised by the Employer's exceptions. The hearing was held on March 13, 14, and 25, 1952, before Irving M. Friedman, hearing officer. The Employer and the Petitioner ap- peared and participated. On June 3, 1952, the hearing officer issued and served upon the parties his report on exceptions to Regional Di- rector's report on objections, a copy of which is attached hereto, in which he recommended that the election be set aside. The Employer filed exceptions to the hearing officer's report. The Board has reviewed the rulings made by the hearing officer at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the hearing officer's report, the exceptions filed by the Employer, and the entire record in the case, and hereby adopts the hearing officer's findings, con- clusions, and recommendations, to the extent that they are consistent with this Supplemental Decision and Order. 1. We agree with the hearing officer's finding that Leonard Boltz. Jr., was a managerial or executive employee and was therefore not qualified to serve as the Employer's observer at the election. The record is clear that Boltz attended all of the Employer's negotiations dealing with labor relations and took part in the final steps of em- ployee grievances. It is well established Board policy that, in the interest of free elections, persons closely identified with the employer may not act as observers 2 Like the hearing officer, we reject the Employer's contention that the Petitioner, at a joint conference held before the election, agreed to the use of Boltz as an observer and should be estopped from raising this issue. As set forth in the report, the Employer did not disclose fully Boltz' duties and authority at the conference 3 Accordingly, we shall set aside the election and shall direct a new 2 International Stamping Co., Inc., 97 NLRB 921; Peabody Engineering Company, 95 NLRB 952; Wiley Mfg, Inc, 93 NLRB ] 600 s See Peabody Engineering Company, supra: of Maria County ifmploiteis Council at at., Case No 20-RAI-43 (not reported in printed volumes of Board decisions) 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election among the employees in the unit described in paragraph numbered 4 of the Decision and Direction of Election. 2. We do not agree with the hearing officer that the election should be set aside because of the dinner given by the Employer on the night before the election. The Employer had held somewhat similar em- ployee dinners on prior occasions. The record fails to establish whether the date of the dinner in question was scheduled before or after the date of the election had been set. So far as the record shows, the subject of unions was not discussed at the dinner. Under all the circumstances, we do not believe that the dinner was of such a char- acter as to interfere with the employees' free choice of a bargaining representative. Order IT IS HEREBY ORDERED that the election of June 13, 1951, conducted among the employees of Herbert Men's Shop Corporation, Chicago, Illinois, be, and it hereby is, set aside. [Text of Direction of Second Election omitted from publication in this volume.] MEMBER PETERSON, dissenting : Contrary to my colleagues, I would not set aside the election be- cause Boltz served as an observer. No claim is made that he engaged in any improper conduct and I am not convinced that he held such a posi- tion as would per se disqualify him from serving as observer. He was temporarily detailed from the Employer's parent organization to •perform certain administrative work in connection with the insti- tution of new personnel procedures. In these circumstances, I do not believe that his presence at the election as an observer created an atmosphere contrary to that required of a free election. Therefore, as I agree with the majority's position as to the dinner, I would dismiss the petition. CHAIRMAN HERZOG took no part in the consideration of the above Supplemental Decision and Order and Direction of Second Election. Hearing Officer's Report on Exceptions to Regional Director 's Report on Objections Pursuant to the Board's Decision and Direction of Election issued on May 27, 1951, an election was held in the above-entitled matter on June 13, 1951, under the supervision of the Regional Director, with the following results : Approximate number of eligible voters------------------------------- 16 Void ballots------------------------------------------------------- 0 Votes cast for Retail Clerks International Association, AFL------------ 3 Votes cast against participating labor organization-------------------- 11 Valid votes counted------------------------------------------------ 14 Challenged ballots-------------------------------------------------- 0 Valid votes counted plus challenged ballots----- ---------------------- 14 HERBERT MEN S SHOP CORPORATION 673 On June 20, 1951, the Union filed objections to election, a copy of which was duly served by the Union on the Company. Following an investigation of the various objections, the Regional Director, on December 28, 1951, issued his report on objections, recommending that the objections based on the Employer's elec- tion-eve dinner for the employees, and on the Employer's designation of an al- legedly unqualified observer, be sustained, and that the election be set aside. On January 7, 1952, the Employer filed exceptions thereto. Pursuant to the Board's order directing hearing, issued on February 4, 1952,' the Regional Director on February 12, 1952, issued a notice of hearing on ex- ceptions on February 26, 1952. Upon the Employer's request, the hearing was postponed to March 5, 1952, and it was again postponed to March 13, 1952, at the Union's request. The hearing was conducted before the undersigned on March 13, 14, and 25, 1952. The Employer and the Union appeared and participated, were afforded full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence bearing upon the issues. In addition, counsel for the Board appeared and participated in the hearing. At the close of the hearing, each of the parties argued orally on the record, and an extension of time to file briefs was granted until April 15, 1952. Subsequently the time for filing briefs was extended until April 22, 1952, at the request of the Union. Counsel for the Union submitted a brief which has been considered by the hearing officer. No brief was filed by the Employer or by counsel for the Board. The order directing hearing required that the hearing officer prepare and cause to be served upon the parties a report containing resolutions of the credi- bility of witnesses, findings of fact, and recommendations as to the disposition of the Employer's exceptions. The issues raised by the said exceptions are, in sub- stance; the following : 1. Was Leonard Boltz, Jr., qualified to serve as an observer at the election? 2. Did the Employer's conduct in sponsoring a dinner for the employees on the eve of the election constitute interference with the election? Based upon a consideration of the entire record herein, the undersigned hearing officer makes the following : A. Findings of fact and conclusions of law 1. The question regarding Boltz The Employer (herein ocasionally referred to as Herbert's) operates a chain of about 15 retail stores in and around the city of Chicago, employing in each of the stores 1 or 2 salespersons known as "second men," as well as a store manager in each store. It is an incorporated, wholly owned subsidiary of Goldblatt Bros., Inc. (herein referred to as Goldblatt's), the latter operat- ing a chain of large department stores in the Chicago area, employing' several thousand employees and doing an annual gross volume of business of approxi- mately $100,000,000. While Herbert's has its own officers and supervisory staff, it appears that since about September 1950, and for a period extending beyond the date of the election in question, its over-all operations were under the direct supervision and direction of Walter Heymann, a managerial employee or execu- tive of Goldblatt's. Heymann spent substantially all of his time during this period in the Employer's operations, but remained throughout on Goldblatt's payroll. Heymann testified that he was assigned to supervise the Employer's business. He held no title in Herbert's and did not answer to any person in Herbert's management , but reported directly to executives of the parent corpora- tion. 'During the period in question, the Employer's supervisory staff included 194 NLRB 842. 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the various store managers (who were found by the Board to be supervisors within the meaning of the Act, in the original Decision and Direction of Elec- tion herein, 94 NLRB 842) ; Mr. Mann, in charge of personnel; and Mr. Lukoff, in charge of store supervision and merchandise control. Both Mann and Lukofe reported to Heymann. Leonard Boltz, Jr., has been a Goldblatt's employee 2 for about 5 years. His immediate supervisor is Goldblatt's director of operations, Mr. Buckley. Boltz. has an office in the main offices of Goldblatt's, and shares a secretary with Gold- blatt's traffic manager. On behalf of Goldblatt's, his duties include participa- tion in collective bargaining with numerous unions which represent various employee groups ; handling employee grievances in the final steps ; participation in arbitration proceedings; and administrative duties connected with the fore- going. In contract negotiations, Boltz normally participates in conjunction with other representatives of management, and while he does not ordinarily have authority to close contracts, he has on at least one occasion signed a labor contract on behalf of Goldblatt's, and it appears from his testimony that he is authorized to discuss with union representatives bargaining proposals and to bargain thereon on behalf of Goldblatt's 3 After new contracts are entered into, Boltz notifies the comptroller and the affected department heads of the new wage rates, and sees to it that they are put into effect. In grievance pro- ceedings, Boltz sits in with the employee representatives or with the employees, gathers necessary data, and then forwards the data, with or without his recom- mendation, to the director of operations, who makes the final decision for Gold- hlatt's. Boltz' father and uncle are executives of Goldblatt's who participate in labor relations, the uncle also being the head of Goldblatt's store detective staff. Both the father and the uncle of Boltz have signed labor contracts in the past on behalf of Goldblatt's. In May 1951, Boltz was assigned to duty in the Herbert's chain by his superior, Buckley. His duties were to examine employee benefits and working conditions, to compare them against those prevailing in competing establishments and in the parent company, and to report on his findings to Buckley, which he did regularly during his stay at Herbert's. More particularly, he was to oversee the introduction into Herbert's personnel practices of a recently prepared manual of personnel procedure, which was a modification of the manual in effect at Goldblatt's. The manual was not distributed to employees, but was limited to executives of Herbert's.` In the course of his duties, Boltz visited most of the stores to observe the manner in which the manual was being followed. He dis- cussed the manual with the store managers, and with Heymann, Mann, Lukoff, and Pine, the laft named being at the time president of Herbert's. He had casual conversations with some of the second men, but did not discuss personnel practices with them. With Heymann and the other executives, Boltz discussed problems and complaints that had arisen in connection with the manual, com- pared Herbert's practices with those prescribed in the manual, notifying the Herbert's executives of points wherein they fell short, and reported thereon to Buckley. He interpreted various sections of the manual for Heymann and 2 In the fall of 1951, Boltz was given the title of "Contract Employee Manager," but this involved no change in his duties. I In collective bargaining matters, Boltz frequently acts as an assistant to Clinton, who is counsel for both Goldblatt's and Herbert's, and who exercises considerable authority in such matters 4A copy of the manual is in evidence. It covers in considerable detail management policy affecting employment, maintenance of employee records, transfers, wage increases, wages and commissions, hours of work and holidays, promotions, merit ratings, vacations, discounts, and other employee benefits HERBERT MEN S SHOP CORPORATION 675 Pine, at their request, and obtained for them a model set of Goldblatt records for their use in Herbert's operations. Boltz visited Buckley at least once a week to report on his work at Herbert's, and maintained his office at Goldblatt's, although he spent virtually all of his time during this assignment at Herbert's Boltz' assignment to Herbert's extended from May 20, 1951, to June 16, 1951. In the week ending June 9, 1951, Herbert's comptroller was instructed to place Boltz on the Herbert's payroll, and Boltz that week received pay for the 3 pre- ceding weeks. He thereafter received another week's pay from Herbert's, before returning to Goldblatt's. Boltz was not paid by Goldblatt's during this approxi- mately 4-week period Boltz testified that his own understanding of the matter is that he was paid by Herbert's as a matter of bookkeeping expedience, to avoid confusion and bookkeeping transfers. It is clear that whatever the arrange- ments may have been about his pay, and whatever his relationship with Herbert's, he remained an employee of Goldblatt's during this assignment, actiirng in Gold- blatt's interest under the continuing supervision of the parent's director of operations, and under no supervision within the Herbert's organization, and I so find. I further find that Boltz was a managerial or executive' employee of Goldblatt's, in view of his participation in broad matters of labor relations and policy, and in view of his functions in connection with labor negotiations and grievance proceedings' as well as his close family relationship to high-ranking executives of Golhlatt's' I further find that even if Boltz' brief appearance on Herbert's payroll were deemed sufficient under the circumstances to constitute him technically a Herbert's employee, his duties' were so closely involved with broad policy-snaking in connection with personnel as to constitute him a man- agerial or executive employee of Herbert's. On June 1, 1951, following the Board's Decision and Direction of Election, a joint conference to set up the details of the forthcoming election was held in the Regional Office. Mrs. Frances Dom, a field examiner employed in that office, met with Mr. Stanford Clinton, counsel for Goldblatt's and Herbert's, and Walter Heymann, on behalf of the Employer, and with Mr. Robert K armel, counsel for the Union, and Union Representatives Buckner and Rodriguez. The date of the election was agreed upon, and various other details of the election were discussed and arranged, not material herein. In connection with the selection of observers, the Union indicated that it would notify the field examiner subsequently concerning its nominee, not then being prepared to do so. Clinton then nominated Boltz as the Employer's observer. Concerning what was said in the ensuing discussion about selection of the Company's observer, there is conflicting testimony. It is undisputed that upon the nomination of Boltz, the Union raised the question as to his qualifications The Employer's evidence is to the effect that Clinton thereupon stated that Boltz was ordinarily an administrative employee in Goldblatt's personnel de- partment, and that he was now temporarily an administrative employee of Her- 5 Clinton refers to Boltz In his letter dated December 10, 1951, to Maher, as being from "the executive staff " A copy of the letter is In evidence. At the June 12, 1951 dinner, Boltz sat with the others from that staff at the head of it "T" shaped table, apart from the other guests. See Ford Motor Company, 66 NLRB 1317; Westinghouse Electric Corp., 89 NLRB 8; Charles Livingston & Sons, Inc., 86 NLRB 30. 4 See General Finance Corp., 88 NLRB 1031; Wiley Mfg. Co., 92 NLRB 40. 8 I find .no merit in the Employer's contention that Boltz' authority was nonexistent, the record clearly demonstrating that Boltz' participation in management Is considerably beyond that of a merely administrative employee. Counsel for the Employer conceded that Boltz at the very least is in tiaining for responsible managerial duty, through actual participation in the described duties. 227260--53-voL 100-44 676 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD bert's ; and that the Union , through Karmel, gave its unconditional and un- qualified approval of Boltz. ( This is Clinton 's testimony, generally supported by that of Heymann , except that Heymann's testimony at first indicated positively that the Union was not informed that Boltz was a temporary employee of Her- bert's; he subsequently modified his testimony , after having his memory re- freshed, to indicate that the Union was so informed .) The Union's evidence on this point is to the effect that upon its questioning Boltz' qualifications, Clinton said that Boltz was merely an administrative employee of Herbert's, without mention of his temporary status ; and that Karmel stated that if such was the case , the Union would have no objection to him. The testimony of Dom, the Board's field examiner , supports the Union's version . For the reasons in- dicated below , I find it unnecessary to resolve the conflicting testimony on this point. Between the date of the joint conference and the day set for the election, the Union unsuccessfully attempted to get an employee within the appropriate unit to, act as its observer . Several of the employees contacted by the Union de- clined because they were scheduled to work on the day of the election and could not get replacements , and one allegedly because he had heard that Boltz was connected with a detective agency. Buckner, the union representative , spoke to Mrs. Jewel Maher, the field examiner in charge, about using a union agent as its observer in the event an employee of Herbert 's was unavailable , and was advised to make further efforts to obtain an employee in the unit. Buckner also told Maher that he questioned the propriety of the Employer's use of Boltz as ob- server. Buckner also testified that sometime prior to the election , he spoke to Clinton by telephone, requesting the Employer 's agreement to the Union's use of one of its representatives as observer, and that Clinton withheld approval. Clinton denied that such conversation was held, or in any event , that he could re- call any such conversation. Although Buckner as a witness showed difficulty in identifying persons with whom he had transactions at the time in question, and in recalling dates , it is clear that the Union did, either from Clinton or some other representative of the Employer, seek agreement on the use of an organizer as observer, and that such agreement was not reached. I so find. After further conversations between Maher and Buckner, it became evident to Maher that the Union would object to the election if conducted with Boltz as observer, and on the day prior to the election , Maher, in a telephone talk with Clinton, suggested he replace Boltz, which Clinton refused to do. Thereupon , Maher sent Clinton a telegram in which she in substance warned the Employer that if it insisted on using Boltz as an observer , absent agreement by the Union, the election might -he:set aside on the basis -of possible union objections . The next morning, as the election was about to commence , Maher again telephoned Clinton in an attempt to persuade the Employer to replace Boltz, but was unsuccessful . The election was then conducted , by a Board agent who traveled from store to store-to vote the eligible employees , accompanied by Boltz as the sole observer . A union repre- sentative accompanied them in their automobile , but he did not enter the stores to observe the actual conduct of the election. The Employer's contentions are that Boltz was properly qualified to act as an observer , and that in any event the Union committed itself by accepting him at the joint conference . In addition , the Employer argues that the Union objected to Boltz only because it was unable to secure an employee as its own observer, and then, being unable to secure permission to use one of its organizers, the Union objected to Boltz for the first time ; and that the Union would have had no objection to Boltz had it been able , one way or another, to obtain an observer . I consider these arguments to be without merit. HERBERT MEN'S SHOP CORPORATION 677 Boltz was a managerial or executive employee of Goldblatt's and if anything, remained such in Goldblatt's as well as in the Herbert's organization during the period here in question, regardless of the arrangements made for his pay- ment on the Herbert's payroll. Boltz was, accordingly, not qualified to serve as the Employer's observer at the election, absent waiver of any objections to him .9 The questions remain whether the Union waived its right to object to Boltz, and whether the Union's allegedly improper motivation is controlling. I find no basis for the alleged waiver. Even aVuming the Employer's version of the June 1 conference to be the correct one, to wit, that the Employer there stated that Boltz was ordinarily an administrative employee of Goldbatt's tem- porarily assigned as an administrative employee of Herbert's, it is evident that this was not an accurate or full disclosure of the material facts concerning Boltz' status. Had there been full disclosure, an agreement by the Union might have constituted a waiver ; absent the disclosure, the Union was free to raise the objection.` As to the Union's allegedly being motivated in its objections by the desire to obtain a concession concerning its own proposed observer, or by pique at being unsuccessful therein, I consider the question immaterial. The argument ignores the real question in the conduct of Board elections, which is whether the election has afforded the employees "the full freedom of choice en- visaged by the Act.11 It cannot be said here, where the election was conducted with only one observer, and that one a managerial employee of the Employer, without any observer for the petitioning Union, that there existed an atmosphere in which the desired freedom of choice could be exercised. The Employer was apprised, prior to the election, that a serious question had been raised concern- ing Boltz, in sufficient time so that Boltz could have been replaced by some one, for example, of the Employer's office employees. There is no contention that the Employer had no such employees available for the purpose. I accordingly conclude that the election of June 13, 1951, was improperly con- ducted because of the presence of Boltz thereat as the Employer's observer. 2. The June 12 dinner On the evening of June 12, 1951, Herbert's sponsored and paid for a dinner at the Sherman Hotel in Chicago, attended by various executives of Herbert's, including Heymann, Mann, Lukoff, and the various store managers, as well as the second-men. The dinner was held in a private room of the hotel. A bar was set up at which alcoholic drinks were served to the guests, followed by a steak dinner "with all the trimmings." 'The parties are in agreement that, the dinner was a good one. After -the, dinner, Heymann briefly addressed the gath- ering. He told the guests that he was glad to have them present ; that he wanted them to have a good time ; that he, hoped to have similar, gatherings in the future ; and he expressed appreciation for the work being done by the,personnel. ° See Peabody Engineering Company, 95 NLRB 952, and cases cited therein. In connec- tion with Boltz' family relationship to executives of Goldblatt's see International Stamping Co., Inc.., 96 NLRB No. 167. 10 The record does not indicate any reliable independent knowledge on the Union's part of the actual facts concerning Boltz at the time of the joint conference. The searching cross-examination of Buckner indicates that at the most, vague and at the time unsub- stantiated rumors had come to his attention, insufficient to have warranted the Union's rejecting the Employer's description of Boltz' status. 11 Cf , in regard to the issue of an objector's motivation, Parkchester Machine Corpora- tion, 72 NLRB 1410, 1412, and Robbins Tire and Rubber Co , Inc., 72 NLRB 157, in both of which Employers' objections to elections, involving misconduct of their own supervisors, were sustained 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter, card tables were set up, and a number of those present played cards, while others circulated and engaged in conversation. The party ended around midnight. There was no formal discussion of business, although the record indicates that during the course of the evening, some of the guests individually discussed business affairs. Nelson, comptroller and business manager of Herbert's, testified that there had been five dinner gatherings for Herbert's personnel prior to the June 12 affair, of which he had records, and was able to recall several that he had attended, each of which had involved some formal problem or discussion thereof affecting the business, together with social aspects-similar to the June 12 dinner. Lukoff, an executive of Herbert's, testified that the other dinners had had both social and business purposes, and that while the June 12 dinner had no formal business purpose, he himself had discussed business problems, particularly with store. managers, in individual conversations. Sklar, an employee who had been employed by Herbert's since October 1950, and had not attended any other party sponsored by the Employer, testified that he knew of no discussion of business at the party. Heymann testified that he had planned the June 12 dinner sometime In May 1951, at which time he was aware of the pending representation pro- ceeding before the Board, and planned this dinner to be the first of a series of purely social gatherings for the staff. Heymann was in charge of all of the arrangements for the dinner, and testified that it did not and was not intended to involve any discussion of business problems. It is not clear from the testi- mony whether the actual date was set before or after the date of the election had been agreed upon (at the June 1 conference described above), Heymann indicating that he might have selected the dinner date either in May or June I find, on careful consideration of the record, that the dinner of June 12, 1951, was the only purely social dinner party ever held by Herbert's unrelated to specific business problems of the Employer, to which employees within the unit had been invited. In so finding, I reject as immaterial the fact that individual employees may, in the course of their conversations, have asked one another how their business was, since such conversation is normal among groups of related employees. The significant fact is that the dinner was in its planning and execution a social gathering, whereas the others centered upon some business problem, such as inventory, or the introduction to the staff of a new executive in the organization, the purely social aspects being incidental to business." The Employer contends that the dinner was a normal incident of its opera- tions. As I found above, this dinner differed from others conducted by the Employer, both prior to and after this particular occasion, in the sense that it did not directly relate to any specific business problem. The other significant difference resulted from the fact that it was held on the eve of the election herein. (There is no evidence of any mention or discussion about the election by the Employer's representatives at the dinner. No promises or threats were made either at the dinner or at any other time as far as the record reveals.) The testimony of both the union and employer witnesses is inconclusive as to the question whether the dinner date was decided upon by the Employer before or after the June 1 conference (at which the election date was agreed on by the parties). If the June 12 date was set before the conference, it was not mentioned at the conference, although Heymann attended the conference 12 See Clinton's letter to Maher dated December 10, 1951, in evidence, which itself emphasizes the essential difference between the June 12 dinner and all of the others The June 12 dinner is incorrectly listed in the letter as having taken place on June 29, the latter being apparently the date on which Herbert's was billed by the hotel, or on which Herbert's paid the bill. STAR BRUSH MANUFACTURING CO., INC . 679 and was also responsible for the dinner arrangements . If, on the other hand, the dinner date was set after the conference, it must necessarily have been done with knowledge that the election was scheduled for the following day. I cannot agree with the Employer's contention that the timing of the dinner was mere coincidence . A dinner of the -kind here involved , ' so timed, and representing a substantial deviation from the Employer 's prior practices in such affairs, cannot but have -been calculated to affect the choice to be made by the employees in the election the following. day, and I so find. In the sense that this dinner was unrelated to any business need of the Employer , it was an unusual benefit to the employees ; and as such, is no less interference with the free choice of the employees because the Employer refrained from overt promises of benefit than would be a wage increase or other change in working conditions under similar circumstances." I accordingly conclude that the dinner of June 12, 1951, constituted improper interference with the election of June 13, 1951. B. Conclusions and recommendations It has been found that the Employer improperly interfered with the conduct of the election in the above matter by the use of Boltz as its observer, and further through the dinner for its employees on the eve of the election. It is accordingly concluded that the Employer's exceptions to the Regional Director's report on objections are without merit, and it is recommended that the said excep- tions be overruled. It is further recommended that the election be set aside and a new election directed. Any party may within 10 days from the date hereof file with the Board in Washington , D. C., seven copies of exceptions hereto . Immediately upon the filing of such exceptions the party filing the same shall serve a copy thereof upon each of the other parties, and shall file a copy with the Regional Director for the Thirteenth, Region. Proof of service shall be made to the Board. If no exceptions hereto are filed , upon the expiration of the said 10-day period the Board may decide the matter forthwith upon the record , or may make other disposition of the case, pursuant to Section 102.60 of the Board's Rules and Regulations, Series'S, as amended. I$ See, e. g., Spengler-Loomis MMfg. 00., 95 NLRB 243. STAR BRUSH MANUFACTURING Co., INC. and MARY MAHER, PETITIONER and OFFICE EMPLOYEES' INTERNATIONAL UNION, LOCAL 6, AFL. Case No. 1-RD108. August 20, 1952 Decision and Order Upon a petition for decertification duly filed, a hearing was held before David E. Davis, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 100 NLRB No. 111.