Riblet Welding and Mfg. Corp.

712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amounted to $1,300 for the year 1953, and averaged $17 a week for that portion of 1954 which preceded the hearing. We shall include Hawley as a regular part-time employee. Howard Martin, the assistant store manager, his the authority too discipline employees, to recommend their hire or discharge, to assign work, and to transfer employees from one job to another; he also has charge of the store in the manager's absences and during lunch and rest periods. We shall exclude him from the unit as a supervisor within the meaning of the Act. We find that all employees of the Employer at its Greenville, Illi- nois, retail store, including the cashier and regular part-time em- ployees, but excluding office clerical employees, guards, the assistant store manager, and all other supervisors, as defined in the Act, con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] MEMBER MURDOCK took no part in the consideration of the above Decision and Direction of Election. Riblet Welding and Mfg. Corp. and International Union, United Automobile, Aircraft & Agricultural Implement Workers of America (UAW-CIO), Petitioner. Case No. 13-RC-4211. May 11, 1955 DECISION, ORDER, AND DIRECTION OF ELECTION Pursuant to a stipulation for certification upon consent election ap- proved on January 27, 1955, a secret ballot election was held under the supervision of the Regional Director for the Thirteenth Region, on February 10, 1955, among employees in the stipulated unit. The tally of ballots furnished the parties after the election shows the following : Approximate number of eligible voters ----------------------------- 39 Void ballots----------------------------------------------------- 0 Votes cast for the Petitioner-------------------------------------- 17 Votes cast against the Petitioner----------------------------------- 20 Valid votes counted---------------------------------------------- 37 Challenged ballots------------------------------------------------ 0• On February 14, 1955, the Petitioner filed timely objections to the conduct of the election. Pursuant to Board Rules and Regulations, the Regional Director conducted an investigation of the objections, and on March 10, 1955, issued and served upon the parties his report 112 NLRB No. 94. RIBLET WELDING AND MFG. CORP. 713 on objections, in which he recommended that one of the objections be sustained and the election on that basis be set aside. The Employer filed timely exceptions to the report on objections. The Board has considered the report on objections, the Employer's exceptions, and the entire record in the case, and finds : 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 certain 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 constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act: All production and maintenance em- ployees at the Employer's Elkhart, Indiana, plant, including truck- drivers, but excluding office and clerical employees, watchmen, guards, professional employees, and supervisors as defined in the Act. 5. The Employer's exceptions relate only to the objection found by the Regional Director to warrant setting aside the election and do not dispute the factual findings made by him. Approximately 2 hours before the start of the balloting on the day of the election, Robert Riblet, an officer of the Employer, held 3 separate meetings in his office with 5 or 6 employees at a time, during their working hours. At the meetings, Riblet stated his purpose to correct any mis- information as to the Employer's ability to afford wage increases, presented supporting evidences of the Employer's actual financial condition, asked the employees to consider these facts, and recom- mended that they vote as they wished. The Regional Director con- cluded that the intent and effect of these talks was to influence the vote, and that the Peerless Plywood' rule was violated. The Employer, in its exceptions,2 contends that Peerless Plywood is inapplicable on the ground that the talks were not delivered to massed assemblies of employees.' We find no merit in the contention. We agree with the conclusion of the Regional Director that these talks, delivered to 3 small groups of plant employees about 2 hours before the election, came within the Peerless Plywood ban.' 1 Peerless Plp/u cad Company, 107 NLRB 427 The Employer's further exception on the ground that the Petitioner has waived and abandoned its objections, in view of the insubstantial evidence advanced to support it, is found to be without merit 3 The Employer's preliminary contention that the Peerless Plywood rule should not be applied to it on the ground that it was unaware of the existence of the rule at the time of the conduct complained of, is cleaily without merit 4 Ottenhemer Bros 3ffg Co , Inc, 109 NLRB 183 See also The American Thermos Bottle Company, 107 NLRB 1570; The Great Atlantic d Pacific Tea Company, 111 NLRB 623. 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We shall therefore set aside the election of February 10, 1955, and direct that a new election be held. [The Board set aside the election held on February 10, 1955.] [Text of Direction of Election omitted from publication.] MEMBER LEEDOM took no part in the consideration of the above De- cision , Order, and Direction of Election. United Brotherhood of Carpenters and Joiners of America , Local #517, AFL and Ambroise Desjardins and Gil Wyner Construc- tion Company, Party to the Contract . Case No. 1-C13-283. May 12, 1955 DECISION AND ORDER On December 10, 1954, Trial Examiner Lloyd Buchanan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Interme- diate Report attached hereto. Thereafter, the Respondent filed ex- ceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and brief, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the modifications and additions noted below. 1. We agree with the Trial Examiner that the Respondent violated Section 8 (b) (1) (A) and (2) of the Act by including in its contract with Gil Wyner Construction Company the clauses quoted in the Inter- mediate Report which plainly exceed the limited form of union secu- rity permitted by Section 8 (a) (3) of the Act. Although the Re- spondent does not dispute the Trial Examiner's finding that the clauses in question do not satisfy the statutory requirements, it contends that they were not presently operative but were to take effect in the future when permitted by Federal law and therefore may not be found to be violative of the Act. We find no merit in this contention. Despite the language of the purported deferral provision in the con- tract, the evidence establishes that the parties never intended to post- pone the application of the union-security provisions to some indeter- minate future time. Thus, during the course of his testimony, Vanier, 112 NLRB No. 95.