Breman Steel Co.

BREMAN STEEL COMPANY 247 ing of Section 9 (b) of the Act.7 However, we shall make no unit determination with respect to the toolroom employees but shall di- rect an election in the following voting group : All toolroom employees s (department 565) of the Employer at its Richmond, Indiana, plant, excluding all other employees and super- visors as defined in the Act. If a majority vote for the Petitioner, they will be taken to have indicated their desire to constitute a separate appropriate unit, and the Regional Director conducting the election directed herein is in- structed to issue a certification of representatives to the Petitioner for voting group described above, which the Board, under such cir- cumstances, finds to be appropriate for purposes of collective bargain- ing. In the event a majority vote for the Intervenor, the Board finds the existing unit to be appropriate and the Regional Director will issue a certification of results of election to such effect. [Text of Direction of Election omitted from publication.] I International Harvester Company, Farmali Works , supra. a Although the Petitioner desires to exclude the laborer-sweeper and the cutoff operator who are assigned to the toolroom , we find that they may not appropriately be excluded from a departmental unit. Accordingly, they are included in the voting group. M. W. Breman, d/b/a Breman Steel Company and Breman Iron & Metal Company and Shopmen's Local Union 616 of The Inter- national Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, Petitioner. Case No. 10-RC-3184. Jan- uary 27,1956 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION On August 19, 1955, pursuant to a stipulation for certification upon a consent election, an election by secret ballot was conducted under the direction and supervision of the Regional Director for the Tenth Region among certain employees of the Employer. Upon the comple- tion of the election, the parties were furnished with a tally of ballots which shows that, of 63 votes cast, 31 were for the Petitioner, 31 against, and 1 ballot was challenged. The challenged ballot is thus sufficient to affect the results of the election. On August 25, 1955, the Employer filed timely objections to the election. After investigation of the aforesaid objections, the Regional Director issued his report on objections on September 16,1955. In his report, the Regional Director found no merit in the Employer's ob- jections and recommended that they be overruled, that the challenged 115 NLRB No. 38. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ballot be opened and counted, and a revised tally of ballots be issued. Thereafter, the Employer filed timely exceptions to the report. The Board has carefully considered the Regional Director's report and the Employer's exceptions. Upon the entire record in this case, we make the following findings of fact : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations 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 production, maintenance, and warehouse employees at the Em- ployer's place of business located*at 329 Decatur Street, S. E., and all employees at the Employer's place of business located at 1651 Marietta Street, N. W., Atlanta, Georgia, including truckdrivers and helpers, but excluding all office and clerical employees, professional employees, salesmen, guards, and supervisors as defined in the Act. 5. In its exceptions, the Employer contends that it was improperly deprived by the Board agent conducting the election of the right to be represented at the polls by an observer i and hence the election should be set aside., We find merit in this contention. The pertinent facts are as follows : The unit stipulated in the consent-election agreement consisted of the employees at the Employer's Marietta Street establishment and its Decatur Street location, about 6 miles away, both in Atlanta, Georgia. The election was held on August 19, 1955. The election agreement provided that each party would be allowed to station at the election an equal number of authorized observers, selected from among the nonsupervisory employees of the Employer. In addition, a field examiner for the Board had notified the parties on August 9, 10 days before the election, that each would be permitted to have 1 observer, that the one representing the Employer had to be nonsupervisory, and that the Petitioner's observer had to be an eligible voter. On August 15, the Regional Director notified the parties that their observers should be at the polls one-half hour before they opened. The polls at the Marietta Street establishment were scheduled to open at 12: 30 p. m. and close at 12: 40 p. m? I The Employer also contends that the challenged ballot should not be counted . in view of our disposition of this case , we do not find it necessary to pass upon this contention. 9 The polls at Decatur Street were scheduled to be open between 3 : 45 and 4: 30 p. m. BREMAN STEEL COMPANY 249 The Employer, Breman, and his foreman, Collins, arrived at Mari-: etta Street about 3 to 5 minutes before the scheduled opening time. Also present were the Board agent and several of the Petitioner's representatives as well as its observer. A conversation then took place regarding the selection of an observer for the Employer. The Regional Director's report recites conflicting versions of this conversation given by the various witnesses. The Regional Director did not resolve this conflict, however, as he did not deem it necessary to the disposition of the issue at hand. It is clear, however, from the witnesses' statements, as summarized in the Regional Director's report, that the Board agent either (a) er- roneously told Breman that he could not use a member of the bargain- ing unit as an observer,' but would have to use some other nonsuper- visory employee, or (b) acquiesced in such a statement made to Breman by one of the Petitioner's representatives. This was the first notice the Employer had that he might not use a member of the bargaining unit as an observer. When Breman asked that the election be delayed so that he could bring over an office employee from Decatur Street 6 miles away to act as an observer, the Board agent rejected this request and proceeded with the election.4 The Regional Director found that, even if the Board agent had mis- informed Breman that he could not use a member of the unit as an observer, that fact did not warrant setting aside the election. Relying on Board precedents,5 the Regional Director concluded that the use of observers is not a right but a privilege, and that the Employer had failed to use due diligence in getting the question of the selection of an observer resolved before the polls opened. In its exceptions, the Employer contends, inter alia, that the Board precedents cited by the Regional Director involved Board-ordered elections and not, as here, a consent election based on an agreement by the parties providing for observers, and that in the instant case the use of an observer was therefore a matter of right based on contract and not merely a privilege. We find merit in this contention. The Board, with judicial ap- proval,6 has consistently treated a consent-election agreement as bind- ing upon the parties. The provision for the use of an observer by the Employer served to assure him of the proper conduct of the election and was therefore a material term of the consent-election agreement. On the record before us, we cannot say that the Employer waived Board rules permit a member of the bargaining unit to act as observer for an employer. s As the polls at Marietta Street were scheduled to be open for only 10 minutes, there was not sufficient time to obtain an observer from Decatur Street before the scheduled closing time. s E. g., Simplot Fertilizer Co., 107 NLRB 1211. 6E. g., Semi-Steel Casting Co. v. N. L. R. B., 160 F. 2d 388 ( C. A. 8), cert. denied 332 U. S. 758 ; Capitol Greyhound Lines, 49 NLRB 156, 159, enfd . 140 F. 2d 754, cert. denied 322 U. S. 763. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this right to an observer. Accordingly, we shall set the election aside and direct that a new election be held.' [The Board set aside the election.] [Text of Direction of Second Election omitted from publication.] MEMBER RODGERS took no part in the consideration of the above Decision, Order, and Direction of Second Election. 7 In joining to set the election aside, Member Bean also rests on the further ground that denial of the Employer's reasonable request for a momentary delay to obtain an observer from Decatur Street prejudiced that essential fairness which ought to prevail at all Board-conducted elections. Melrose Hosiery Mills, Inc. and United Textile Workers of Amer- ica, AFL-CIO, Petitioner. Case No. 11-RC-783. January °27, 1956 SUPPLEMENTAL DECISION, ORDER, AND DIRECTION OF ELECTION On November 17, 1955, the Board issued a Decision and Order in this proceeding," finding inappropriate a unit limited to employees of the English Street mill of the Employer. On November 25, 1955, the Petitioner filed a motion for reconsideration and, if necessary, a reopening of the record to secure additional evidence. The Employer filed no response to this motion. The Petitioner in its motion for reconsideration requested as an alternative to its request for a single-plant unit, that the Board order an election at all 3 plants of the Employer as 1 unit. Inasmuch as the Petitioner made an adequate showing of interest for such a unit at the time the petition was filed, we grant the motion for reconsideration in this respect and make the following supplemental findings : A question affecting commerce exists concerning the representation of certain employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. The Employer's operations are carried on at three separate mills located at High Point, North Carolina. The Board found in the pre- vious Decision and Order that control over the general conditions of employment was centralized, that the operations of the three plant3 were integrated, and that the employees exercised similar skills and functions. From these findings of fact, it is apparent that a three- plant unit as now requested by the Petitioner is appropriate. On the basis of undisputed testimony given at the hearing by the Employer's vice presidents, we find that the following persons have 1114 NLRB 1166. 115 NLRB No. 25.