Fuller Ford, Inc.

FULLER FORD, INC. 169 Fuller Ford, Inc. and Retail Clerks International Association, AFL, Petitioner. Case No. 9-RC-2443. July 13, 1955 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted on March 4, 1955, under the direction and supervision of the Regional Director for the Ninth Re- gion, among employees in the stipulated unit. The tally of ballots furnished the parties after the election shows the following : Approximate number of eligible voters ------------------------------ 27 Void ballots-----------------------------------------------------0 Votes cast for Petitioner------------------------------------------ 6 Votes cast against Petitioner--------------------------------------- 16 Valid votes counted---------------------------------------------- 22 Challenged ballots------------------------------------------------ 3 Valid votes counted plus challenged ballots-------------------------- 25 On March 7, 1955, the Petitioner timely filed an objection to the election. Pursuant to Board Rules and Regulations, the Regional Director conducted an investigation of the objection, and on April 22, 1955, issued and served upon the parties his report on objections in which he recommended that the objection be sustained and the elec- tion be set aside. The Employer timely filed exceptions to the re- port on objections. The Board has considered the stipulation of the parties, the objec- tion, the Regional Director's report on objections, and the Employer's exceptions thereto. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the represen- tation 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 constitute a unit ap- propriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All new and used car and truck salesmen of the Employer at its place of business at 2035 Reading Road, Cincin- nati, Ohio, excluding mechanics, partsmen, servicemen, repairmen, lot boys, and janitors ; office clerical employees ; and all guards, profes- sional employees, and supervisors as defined in the National Labor Relations Act, as amended. 113 NLRB No. 14. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The Regional Director's report on objections reveals the follow- ing facts : At one of its regular twice-daily sales meetings the Em- ployer made election speeches to its salesmen within 20 hours of the election. Shortly before the election the following day, and after having informed the Board's Regional Office of this fact, the Em- ployer's attorney contacted the secretary of Petitioner. The latter re- fused to agree to a postponement of the election or to execute a waiver of its right to object to the forthcoming election on the basis of the Employer's speeches. The parties disagree as to whether, as the Em- ployer claims, Petitioner's secretary also said Petitioner was investi- gating other conduct of the Employer but that if nothing else ob- jectionable was discovered, Petitioner would not file an objection based solely on the Employer's election speeches. The Regional Director found that the Employer's speeches fell within the proscription of the Peerless Plywood rule 1 prohibiting election speeches on company time within 24 hours of an election. The Employer contends that because its salesmen are compensated on a straight commission basis-receiving no compensation for time spent at these regular sales meetings-these speeches were not made "on company time" within the meaning of Peerless Plywood. We concur in the Regional Director's conclusion . While the Board held in the Peerless case that election eve speeches at which attendance is "volun- tary and on the employees' own time" would not constitute interference in an election, this exception to the general rule set forth in Peerless does not apply to speeches where, as here, the employer has required or encouraged attendance by making such attendance a part of the employees' obligation or duties of employment. The record indicates that here the Employer's speeches were made to its salesmen at meet- ings held in the course of their employment; its salesmen are expected to, and do, attend these regular sales meetings unless excused by the Employer. Accordingly, we find that the Employer's speeches were made "on company time" within the meaning of the Peerless Plywood rule. Nor do we find merit in the Employer's contention that the Peti- tioner waived its right to object to the Employer's speeches. The Petitioner having expressly refused to execute such a waiver at the Employer's request, any other statements Petitioner may have made at the same time cannot, in our opinion, be interpreted to accomplish that result. We find that the Employer delivered preelection speeches to its salesmen on company time less than 24 hours in advance of the election and that the Petitioner is not estopped from urging this con- duct as constituting interference with the election? We shall, there- 1 Peerless Plywood Company, 107 NLRB 427. 2 The Employer's request for a hearing on this phase of the case is accordingly denied. LA POINTE MACHINE TOOL COMPANY 171 fore, order that the election be set aside and direct that a new election be held. [The Board set aside the election held on March 4, 1955.] [Text of Direction of Second Election omitted from publication.] LaPointe Machine Tool Company and American Federation of Technical Engineers, AFL, Petitioner. Case No. 1-RC-3442. July 14,1955 SUPPLEMENTAL DECISION AND CERTIFICATION OF RESULTS OF ELECTION Pursuant to a Decision and Direction of Election issued herein on July 28, 1954,1 an election by secret ballot was conducted on August 25, 1954, under the direction and supervision of the Regional Director of the First Region, among the employees in the unit found appropriate by the Board.2 Following the election, a tally of ballots was furnished the parties. The tally shows that of approximately 24 eligible voters, 21 cast valid ballots, of which 5 were for the Petitioner and 16 were for Local 3536, United Steelworkers of America, CIO; 1 ballot was void and no ballots were challenged. Thereafter, Petitioner filed timely objections to conduct affecting the results of the election. The Regional Director investigated the matter and, on October 5,1954, issued and duly served upon the parties his report on objections in which he recommended that the objections be dismissed. On October 15, 1954, Petitioner filed exceptions to the Regional Director's report. The Board found that Petitioner's ex- ceptions raised substantial and material issues of fact and ordered a hearing to resolve the issues. On January 6, 1955, the hearing was held before Thomas S. Wilson. On February 24, 1955, the hearing officer issued and served on the parties his report on objections in which he found that, by certain conduct more specifically referred to hereinafter, the Employer had interfered with the employees' free choice of a bargaining representative. He, therefore, recommended 2 109 NLRB 514 Local 3536, United Steelworkers of America, CIO, was permitted to intervene in the proceeding on the basis of its contract with the Employer. a Petitioner sought a unit of all draftsmen, drafting apprentices, tracers, detailers, de- signers, and checkers, excluding all other employees, guards, watchmen, and supervisors as defined in the Act. Since December 1944, the Intervenor has been the collective-bar- gaining representative for all the Employer's production and maintenance employees and draftsmen In July 1950 clerical employees were added to the unit. The Board, in its Decision and Direction of Election, found that the petition was timely filed, that the employees involved were technical employees and that they might constitute a separate unit. It made no final determination prior to ascertaining the desires of these employees as expressed in the election Selection of the CIO would indicate a desire to remain part of the existing unit currently represented by the Intervenor. 113 NLRB No. 19.