The Bryant Electric Co.

232. DECISIONS OF NATIONAL LABOR RELATIONS BOARD All regular 2 selling and non'selling employees of the Employer, 4 in- cluding office clerical and store clerical employees, the tailor shop, menders and the milliner, timekeeping employees, personnel depart- ment employees, telephone operators, payroll employees, head cashier office employees, and secretaries to executives; but excluding electri- cians, air conditioning employees, carpenters, plumbers, painters, handymen, and elevator mechanics, employees employed as demonstra- tors or in leased departments whose salaries are paid either in whole or in part by persons, firms, or corporations other than the Employer, employees who perform less than 24 hours of work per week, executives, supervisors, and confidential employees, including, without limitation, buyers, assistant buyers, department managers, section managers, floor supervisors and junior executives, students, training squad, medical department employees, special officers, protection (detective) depart- ment employees, watchmen, and all supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] Inc., 112 NLRB 299; Bond Stores, Incorporated, 84 NLRB 667. Although the parties agreed to exclude certain office clerical employees such as timekeeping employees , person- nel department employees, telephone operators , payroll employees , head cashier office employees , and secretaries to executives, we shall, because of our inclusion in the unit of all clerical employees and despite the agreement of the parties , include them in the unit. See Jones-Dabney Company, Division of Devoe & Raynotds Co., 116 NLRB 1556. However, the record does not reveal whether any of the foregoing employees occupy confidential or supervisory status, and therefore nothing in this decision shall be deemed to affect the parties' right to challenge any of the above-described categories for such reasons. 2 According to the parties ' agreement, "regular" is defined as having had 90 days' con- tinuous service in the case of a full -time employee , and being on the payroll for 90 days in the case of a part-time employee. The Bryant Electric Company and International Brotherhood of Electrical Workers, AFL-CIO, Petitioner and United Electri- cal, Radio and Machine Workers of America (UE). Case No. 1-RC-4784. June 19, 1957 DECISION AND CERTIFICATION OF RESULTS OF ELECTION Pursuant to a stipulation for certification upon consent election entered into between International Brotherhood of Electrical Workers, AFL-CIO, the Petitioner herein, United Electrical, Radio and Machine Workers of America (UE), the Intervenor, and the Em- ployer, an election by secret ballot was conducted on February 5, 1957, under the direction and supervision of the Regional Director for the First Region, among the employees in the unit herein found appropriate. Following the election, the parties were furnished with a tally of ballots which showed that of 31 votes cast, 6 were cast for the Petitioner, 11 for the Intervenor, and 14 against the participating 118 NLRB No. 27. TAE BRYANT ELECTRIC COMPANY 233 labor organizations. The results of this election being inconclusive, and no objections having been filed thereto, the Regional Director con- ducted a run-off election on February 15. The tally of ballots furnished the parties following that election showed that of 31 ballots cast, 7 ballots were cast for, and 24 against, the Intervenor, the par- ticipating labor organization. Thereafter, the Intervenor filed timely objections to conduct affecting the results of the election. On April 9, following an investigation, the Regional Director issued his report on objections. In his report, the Regional Director recommended that Intervenor's objections 1, 3, 4, and 5 be overruled as without merit. As no exceptions have been fled to these recommendations, they are hereby adopted. However, on the basis of the matter raised by ob- jection 2, the Regional Director recommended that the election be set aside and anew election directed. The Employer has taken exception to this recommendation. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Jenkins]. The Board has reviewed the stipulation of the parties, the objections, the Regional Director's report on objections, and the Employer's ex- ceptions thereto. Upon the basis of the entire record in this case, the Board makes the following findings of fact : 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 representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. In agreement with the parties, the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All pro- duction and maintenance employees at the Employer's plant in Daniel- son, Connecticut, excluding plant and office clerical employees, guards, professional employees, and supervisors as defined in the Act. The Intervenor's Objection With respect to objection 2, the Regional Director's investigation disclosed that on February 11 and 12, 1957, the Employer's Superin- tendent Schwing and Foreman Vince talked to all employees singly or in groups of 2 or 3. Each talk lasted approximately 5 minutes and took place in the plant production area at or near the employees' place of work, with the power shut off where necessary. In general, the talks were designed to induce the employees to vote against the In- 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tervenor in the election on February 15. However, no evidence was uncovered by the Regional Director to show that the Employer's statements on these occasions exceeded the permissible limits of free speech. Relying upon Mrs. Baird's Bakeries, Inc.,' the Regional Director found that the Employer's talks to the employees as described above interfered with the employees' freedom of choice in the election, and he recommended that this objection be sustained. The Employer excepts to this recommendation, contending that the Board should apply the rule of Mall Tool Company 'to this case. We find merit in the Employer's exception. The Board has hereto- fore made it abundantly clear that an employer's technique of talking individually to his employees does not per se justify setting aside an election.' It has been made equally clear that, in the absence of un- usual circumstances, both employers and unions are free to use any legitimate methods of electioneering, including the making of speeches to assembled employees and the talking to individual employees.' Unusual circumstances warranting the setting aside of an election were found to exist in the Mrs. Baird's Bakeries case, upon which Regional Director relies, wherein the employer contacted the employees indi- vidually in their homes, on their work routes, and in company offices in an effort to induce them to vote against the union. On the other hand, inadequate basis for setting aside an election was found in the Mall Tool case, where the employer campaigned against the union in talks with individual employees at their workbenches which lasted about 3 minutes. Like the Employer, we believe that this case, rather than Mrs. Baird's Bakeries, Inc., is controlling herein. That the Em- ployer's talks with the employees lasted some 2 additional minutes and took place while the power was shut off, does not, in our opinion, prevent a free election and so distinguish the cases as to require a different result herein. Accordingly, we do not adopt the Regional Director's recommendation that Intervenor's objection 2 be sustained, and hereby overrule it. And, inasmuch as the Intervenor failed to secure a majority of the valid ballots cast, we shall certify the results of the election. [The Board certified that a majority of the valid ballots was not cast for United Electrical, Radio and Machine Workers of America (UE), and that said organization is not the exclusive representative of the Employer's employees in the unit found appropriate.] 1 114 NLRB 444. x 112 NLRB 1313. 3 Mall Tool Company, supra. 4 Peoria Plastic Company, 117 NLRB 545, and Mall Tool Company, supra. Cf. Living- ston Shirt Corporation, et al., 107 NLRB 400, and Peerless Plywood Company, 107 NLRB 427.