Dallas City Packing Co.

8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tute a separate appropriate unit, and the Regional Director conducting the election directed herein is instructed to issue a certification of rep- resentatives to the Petitioner for the employees in the above voting group, which the Board, under such circumstances, finds to be an ap- propriate unit for the purposes of collective bargaining. On the other hand, if a majority of the employees in the voting group vote for the Intervenor, the employees in the voting group will remain in the overall bargaining unit and the Intervenor may bargain for the em- ployees in the above-named categories as a part of the group which it currently represents, and the Regional Director conducting the election is instructed to issue a certification of results of election to such effect. 5. The Employer's operations at plant 41-A are seasonal. At 'the time of the hearing, which was held on March 24, 1954, there was a high level of employment in the enameling and decorating depart- ment, but not throughout the plant. Normally, however, in all de- partments, the Employer's peak season extends from about October 1 to June 1, and its slack season extends during the remainder of the year. Although the positions of the parties are not entirely clear on this point, it appears that they agreed that the Regional Director, after consultation with the parties, should select an eligibility date which would insure participation in the election by the maximum number of the employees concerned. Under these circumstances, we shall direct that the election be held during the next peak season, on a date to be determined by the Regional Director, among employees in the voting group described above who will be employed during the payroll period immediately preceding the date of issuance of the notice of election. [Text of Direction of Election omitted from publication.] MEMBERS MURDOCK and RODGERS took no part in the consideration of the above Decision and Direction of Election. MILTON RUBIN, MRS. ROSE RUBIN, HERMAN WALDMAN, BERNICE WALDMAN, D/B/A DALLAS CITY PACKING COMPANY and AMAL- GAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, LOCAL 528, PETITIONER. Case No. 16-RC-1458. September 91, 1954 Supplemental Decision and Certification of Representatives Pursuant to a Decision and Direction of Election i dated June 22, 1954, an election by secret ballot among employees of the Employer in i Not reported in printed volumes of Board Decisions and Orders. 110 NLRB No. 4. DALLAS CITY PACKING COMPANY 9 the unit found appropriate was conducted under the direction and supervision of the Regional Director of the Sixteenth Region. The tally of ballots shows that 34 votes were cast for the Petitioner, 31 votes were cast against the Petitioner, and 1 ballot was challenged. Thereafter, the Employer filed timely objections to the election, alleg- ing in substance that the Petitioner interfered with the free choice of a, bargaining representative in that : (1) representatives of the Peti- tioner, standing outside the entrance of the Employer's gate and about 3 hours before voting time, handed to employees pamphlets containing preelection propaganda ;2 and (2) that Diamond Watson, the Peti- tioner's observer for the election, was also, in fact, an organizer for the Petitioner. After an investigation, the Regional Director, on August 3, 1954, issued his report on objections, in which he found that the objections of the Employer were without merit, and recommended that the ob- jections be overruled. Thereafter, the Employer filed timely excep- tions to the Regional Director's report, in which it urges that the Board set aside the election or direct a hearing on the objections. We find, in agreement with the Regional Director, that the distribu- tion of the pamphlets to employees on their own time by represent- atives of the Petitioner standing outside the plant gate 3 and com- pleted about 3 hours before voting time, did not constitute electioneer- ing during the course of the election at or near the polling place ;4 nor did it violate the rule enunciated in the Peerless Plywood case.5 Furthermore, as we are of the opinion that the pamphlets 6 did not impair the ability of the employees to evaluate the propaganda as to make impossible a free election, we find that the pamphlets did not exceed the bounds of permissible preelection propaganda.? Concerning the Employer's second objection, the Regional Director found, contrary to the Employer's contention, that Watson, an em- ployee of the Employer, held no official position in the Petitioner, either elective or appointive. Nevertheless, assuming that Watson was an official of the Petitioner, such status itself would not render 2 The Employer, apart from urging that the distribution of the pamphlets is an improper act of electioneering, apparently contends that the distribution amounts to a preelection speech under the Board 's rule prohibiting such speeches within 24 hours preceding the election. See Peerless Plywood Company, 107 NLRB 427. 3 Although the election was held inside the plant there is nothing to indicate the dis- tance from the gate to the polling place. The record does not disclose that there had been any specific "no electioneering area" designated here * See Allen-Morrison Sign Company, Incorporated, 104 NLRB 1063, Underwood Corpo- iation, 108 NLRB No 199. i See Underwood Coi poration, footnote 4, supra The pamphlets attacked the Employer 's election circular as intimidating and under- handed and contained an implied accusation that the Employer had committed "highway robbery" because of the inadequacy of its wage scale. 7,See International Smelting and Refining Company, Raritan Copper Works, 107 NLRB 27 ; Merck d Co , Inc., 104 NLRB 891 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him unqualified as an election observer." Accordingly, we agree with the Regional Director that Diamond Watson was a- qualified observer. In view of the foregoing and for reasons set forth in the Regional Director's report, we find that the Employer's objections raise no sub- stantial or material issues. We, therefore, adopt the Regional Di- rector's recommendations and overrule the Employer's objections. Accordingly, because the tally of ballots shows that the Petitioner received a majority of the valid votes cast,' we shall certify the Peti- tioner as the collective-bargaining representative of the employees in the appropriate unit. [The Board certified the Amalgamated Meat Cutters and Butcher Workmen of North America, Local 528, as the designated collective- bargaining representative of the employees in the unit hereinabove found appropriate.] MEMBER MURDOCK took no part in the consideration of the above Supplemental Decision and Certification of Representatives. 8 Soerens Motor Company, 106 NLRB 1388 ; N. L. It. B. v. Huntsville Mfg. Co., 203 F. 2d 430 (C. A. 5). 9 The challenged ballot is insufficient to affect the results of the election. SUNSHINE BISCUITS , INC.' and BAKERY AND CONFECTIONARY WORKERS' INTERNATIONAL UNION OF AMERICA, AFL, PETITIONER. Case No. 10-RC-2719. September 22,195.¢ 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 David L. Trezise, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed .2 Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act.' 1 The Employer 's name appears as amended at the hearing. 2 The hearing officer referred to the Board the Employer's motion to dismiss the petition on the basis that no evidence was adduced at the hearing to show that the Petitioner and the Intervenor were in compliance with Section 9 (f), (g), and ( h) of the Act. As the Board has repeatedly held, compliance is a matter for administrative determination and is not litigable by the parties at the hearing . Moreover , we are administratively advised that the Petitioner and the Intervenor have fully complied with the filing requirements of the Act. Accordingly, we hereby deny the Employer's motion. See Coca-Cola Bottling Company of Louisville, Inc., 108 NLRB 490. 3 The Employer neither admits nor denies that it is engaged in commerce . The Em- ployer's Columbus , Georgia , plant, at the time of the hearing, had been in operation for approximately 4 months and had made direct out -of-State sales of approximately $350,000 in value. We find that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction in this case. 110 NLRB No. 2.