Southern Fruit Distributors, Inc.

SOUTHERN FRUIT DISTRIBUTORS, INC. 261 warrant establishing them as a separate unit. The only apparent reason for the Petitioner's request for a unit of only the telephone operators, is the extent of its organization of the Employer's service employees. Section 9 (c) (5) of the Act precludes a unit finding on that basis alone.' We therefore find that the unit requested by the Petitioner is not appropriate. Accordingly, we shall dismiss the petition. ORDER IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed. 6 Hampton Roads Broadcasting Corporation (WGH), 98 NLRB 1090; Kress Dairy, Inc., 98 NLRB 369. SOUTHERN FRUIT DISTRIBUTORS, INC.and INTERNATIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK & DISTILLERY WORKERS OF AMERICA, CIO, Petitioner . Case No. 10 -RC-1893. April 21, 1953 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to a Decision and Direction of Election issued by the Board on August 16, 1952 (not reported in printed volumes of Board decisions), an -election was held among certain em- ployees of the Employer under the supervision of the Regional Director on January 16, 1953. Upon the conclusion of the elec- tion a tally of ballots was furnished to the parties showing that out of approximately 371 eligible voters, 163 cast their ballots for and 116 against the American Federation of Labor, the Intervenor.' Thereafter on January 21, 1953, the Employer filed objec- tions to conduct affecting the results of the election alleging in substance that: (1) The Intervenor by means of a sound truck or loudspeaker electioneered within the hearing of its employees eligible to vote, during the time that the balloting was taking place; (2) the Intervenor reimbursed certain employees for expenses asserted to have been incurred in union activities, without requiring an accounting; (3) the Intervenor gave finan- cial benefits to certain employees to induce them to work on behalf of the Union; (4) it persuaded former union members to seek reemployment in the Employer's plant for the purpose of persuading and coercing employees to vote for the Union; (5) it distributed benefits, consisting of meals and refreshments, to induce the employees to vote for the Union; and (6) it promised employees that, if selected as their representative, it would get them a wage increase. I About 10 days before the election the Petitioner requested and the Regional Director granted permission to have its name removed from the ballot. 104 NLRB No. 39. 283230 0 - 54 - 18 2 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Regional Director conducted an investigation concerning the allegations made in the Employer's objections, and on February 17, 1953, issued his report recommending that the Employer's objections should be overruled and that the Inter- venor should be certified. The Employer filed timely exceptions to all the findings and recommendations of the Regional Director. The Board has considered the Employer's objections, the Regional Director's report and recommendations, the Em- ployer's exceptions thereto, and upon the entire record finds: As to the first of the Employer's objections, the Regional Director found that the Intervenor had a loudspeaker installed on a trailer located on a vacant lot, next to an employee park- ing lot which was across the road from the Employer's plant. The Intervenor broadcast from this trailer for about 10 days before the election. On the day of the election, the Intervenor's organizer announced over the loudspeaker that he would be back on Monday to receive applications for union membership, and that employees who had already signed would be charter members of the Union. He further said that he expected to be able to continue to use the property where his loudspeaker and lunch wagon were located, but if he could not he would let the employees know where he would be. He also announced that there were refreshments on the lunch wagon and urged all who could do so to remain there to get the election results after the close of the polls. This talk occurred between about 5 and 5:20 p.m. The polls were open from 4 to 7 p.m. These facts as found by the Regional Director are substanti- ally uncontroverted. The Employer does not allege that any announcements or references to the balloting, other than those above set forth, were made by the Intervenor in its broadcast during the voting hours. The Regional Director, in substantial part, based his recommendation that this objection be overruled upon his finding that the content of the broadcast material did not constitute "electioneering." We agree with the Regional Director. As we donot consider the Intervenor's announcements above set forth to have been electioneering, reasonably calcu- lated to affect the results of the election, within the intent of the Board's prohibition of such conduct during voting hours and in proximity to the polls,: it is unnecessary for us to consider the Regional Director's other findings with respect to this objection.' It is hereby overruled. As to the Employer's objections Nos. 2 to 6, we find that its exceptions to the Regional Director's report raise no substantial issues of fact. We approve the Regional Director's 2 Cf. Alliance Ware, Inc., 92 NLRB 55. SThe Regional Director reported that the building in which the polls were located was about 200 yards from the Intervenor 's loudspeaker, and that the work building nearest the loudspeaker was about 75 yards from it. He found that the broadcasting was not audible in the polling place, but was unable to say definitely that none of the employees had heard the broadcasting , either while entering the plant and approaching the polls or while en route from their work buildings to the polling place. In view of our determination on other grounds , we find it unnecessary to con- sider the issues arising from the Employer 's exceptions to these findings. AMERICAN OPTICAL COMPANY 263 conclusions. and recommendations as to these objections, and shall adopt them. These objections are therefore hereby over- ruled. CERTIFICATION OF REPRESENTATIVES IT IS HEREBY CERTIFIED that the American Federation of Labor has been designated and selected by a majority of the employees of Southern Fruit Distributors, Inc., in the appropri- ate unit described in the Decision and Direction of Election, as their representative for the purposes of collective bargaining, and that pursuant to Section 9 (a) of the Act, the said labor organization is the exclusive representative of all the employees in such unit for the purposes of collective bargaining with res- pect to rates of pay, wages, hours of employment , and other conditions of employment. Chairman Herzog took no part in the consideration of the above Supplemental Decision and Certification of Representa- tive s. AMERICAN OPTICAL COMPANY and SOUTHERN CALIFOR- NIA OPTICAL TECHNICIANS UNION, INDEPENDENT, Peti- tioner. Case No. 21-RC-2736 . April 21, 1953 DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to a stipulation for certification upon consent elec- tion, an election by secret ballot was conducted on September 23, 1952, under the direction and supervision of the Regional Director for the Twenty -first Region . At the conclusion of the election, the parties were furnished a tally of ballots which showed that of approximately 14 eligible voters, 14 cast ballots, of which 7 were cast for the Southern California Opti- cal Technicians Union, Independent , herein called the Petitioner, 6 were cast against the Petitioner , and 1 ballot, that of Charles Schwinn, was challenged by the Petitioner on the ground that Schwinn was a supervisor . No objections to the conduct of the election were filed within the time provided therefor. As the challenged ballot was sufficient to affect the results of the election , the Regional Director , acting pursuant to the Board's Rules and Regulations , investigated the issues raised by the challenge , and on September 30, 1952, issued his report on challenged ballot in which he concluded that Schwinn was a supervisor within the meaning of the Act ; recommended that Schwinn be ruled an ineligible voter and that the Petitioner be certified as the exclusive bargaining representative of the Employer's employees in the stipulated unit. On October 9, 1952, the Employer filed exceptions to the Regional Director's report on challenged ballot. On October 13, 1952, the Employer filed supplemental exceptions. 104 NLRB No. 34.