Plant City Welding and Tank Co.

PLANT CITY WELDING AND TANK COMPANY 131 All laboratory technicians, storeroom employees and plant clerical employees at the Employer's Calvert City, Kentucky, plant, including laboratory technicians, junior laboratory technicians, the material control clerk, material handling clerks, shop clerks, process clerks, the toolroom clerk, and the shipping room clerk, but excluding the storekeeper, the engineering- clerk, professional employees, all other employees, guards, and supervisors as defined in the Act. If a majority of the employees in the voting group vote for - Teamsters, they will have indicated their desire to constitute a separate appropriate unit, and the Regional Director is instructed to issue a certification of representatives for Teamsters for such unit, which the Board under the circumstances finds appropriate for the purposes of collective bargaining. If a majority of the employees in the voting group vote for IAM, they will be taken to have expressed their desire to become part of the IAM's present unit, and IAM may bargain for them as part of such unit. _ If a majority of the employees in the group, vote for neither, they will be deemed to have expressed their desire to remain unrepresented. [Text of Direction of Election omitted from publication.] Plant City Welding and Tank Company and International Broth- erhood of Boilermakers, Iron Ship ' Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Petitioner. Case No. 12-RC- 30. October 24,1957 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to a Decision and Direction of Election,' dated June 21, 1957, an election by secret ballot was conducted on July 19, 1957, under the direction and supervision of the Regional Director for the Twelfth Region, among the employees in the unit found appropriate in the above-mentioned Decision. Thereafter, a tally of ballots was fur- nished the parties, showing that out of 81 voters casting valid ballots, 46 voted for the Petitioner, 34 voted against the Petitioner, and 1 cast a challenged ballot.' On July 24, the Employer filed objections to the conduct of the election and to conduct affecting the election. In accordance with the Board's Rules and Regulations, the Regional Director conducted an investigation of the Employer's objections and on August 22, 1957, issued and duly served upon the parties his report on objections, in which he recommended that-the objections be over- 1118 NLRB 280 z The challenged ballot was insufficient to affect the results of the election. 119 NLRB No. 2. 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ruled as having no merit and that the Petitioner be certified as the collective-bargaining representative of the employees in the appro- priate unit. Thereafter the Employer filed timely exceptions to the report on objections. Upon the entire record in this case, the Board finds: Objection 1: The Employer's first objection pertains to the alleged supervisory status of Smallwood, one of the Petitioner 's observers at the election. The Regional Director found that Smallwood was not a supervisor within the meaning of the Act and that in any event the Employer was estopped by its own conduct from objecting to the use of Smallwood as an observer. In its exceptions, the Employer takes issue with both findings. We find it unnecessary to decide either issue, for assuming without deciding that Smallwood was a supervisor and that the Employer is not estopped from raising this objection, we find no grounds for setting aside the election in Smallwood's use as an observer by the Petitioner. While it is true that the Board has often stated that it will not permit supervisors to act as election observers for employers,' this prohibition is based on the likelihood that their presence at the polls may unduly influence employees to cast -a no- union vote.5 In this case there is only one union involved, a majority of the ballots were cast for that union, and Smallwood' s presence as an observer could not have been construed as endorsement of the union by the Employer in view of the Employer's clear statements of posi- tion prior to the election. Under these circumstances, there is no reason for setting aside the election.' Accordingly, the Employer's first objection is overruled. Objections 2 and 3: These objections pertain to the presence of two union representatives outside the polls during the voting and their conversations with employees who were leaving the polls. The Re- , ional Director found that there were no specific ground rules pro- mulgated as to where the parties were to stay during the election, that during the latter part of the voting period the Petitioner's Interna- tional representative and International vice president stood on a public highway outside the plant gate, approximately 88 feet from the en- trance of the polling place where they could have observed and could have been observed by employees going to vote, and that they engaged in a noncoercive conversation with 1 employee leaving the plant after he voted. In its exceptions, the Employer contends that immediately before the election at a conference which the union representatives 'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this proceeding to a three -member panel [Members Rodgers, Bean , and Jenkins]. 4 See. e . g., Worth Food Market Stores, Inc., 103 NLRB 259; The Ann Arbor Press, 88 NLRB 391 ; Burrows & Sanborn, Inc., 84 NLRB 304. 5 Owens-Park Lumber Co., 107 NLRB 131. 6 See Owens-Park Lumber Co., supra. PLANT CITY WELDING AND TANK COMPANY 133 failed to attend , the Employer's representatives were instructed to stay away from the polling area in a position where they could not observe-or be observed by employees who were voting, that these ground rules were not observed by the Petitioner , and that employees waiting to vote could see that as they left the plant they would have to pass -within a few feet of the Petitioner's representatives who were talking to other employees leaving the plant. For these reasons the Employer contends that this conduct had a natural tendency to interfere with the election. We find no merit in the Employer's contentions. As the Board has recently held, in the absence of any evidence of coercive statements by union representatives and in the absence of any evi- dence of willful violation of instructions of the Board agent, neither the mere presence of union representatives outside the polls where they could see and be seen by employees waiting to vote nor conver- sations between such union representatives and employees before vot- ing warrant the setting aside of an election.' It follows a fortiori that the mere presence of union representatives outside the polls and their conversation with employees after voting do not affect the valid- ity of an election. Objection 4: The Employer alleges that the Petitioner interfered with the election by visiting at their homes and interviewing a large number of employees and by distributing literature immediately be- fore the election. The Regional Director found that a union repre- sentative called at the home of at least one employee but that it did not appear that any systematic interviewing took place at employee homes or that any statements constituting threats or interference were made during the interviews. He therefore concluded that the inter- views did not affect the free choice of the employees. As for the Petitioner's campaign literature, he concluded that it did not contain any threats, forgeries, or other elements of intimidation, and did not exceed permissible bounds. In its exceptions the Employer contends that under the Board de- cisions in Peoria Plastic Company, 117 NLRB 545, and Mrs. Baird's Bakery, 114 NLRB 444, the technique of visiting and interviewing employees at their homes employed by the Petitioner in this case is grounds for setting aside the election . We do not agree. Apart from the fact that there is no evidence of systematic interviewing in this case, there is a substantial difference between the employment of the technique of individual interviews by employers on the one hand and by unions on the other. Unlike employers, unions often do not have the opportunity to address employees in assembled or informal groups, and never have the position of control over tenure of employ- ment and working conditions which imparts the coercive effect to The Rackle Company of Texas, 117 NLRB 462. 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD systematic individual interviews conducted by employers.8 Thus, not only do unions have more need to seek out individual employees to, present their views, but, more important, lack the relationship with the employees to interfere with their choice of representatives thereby.e' As for the Petitioner's campaign literature of which the Employer complains, it does not contain threats or any elements of intimida- tion, and the Petitioner does not appear to have engaged in any tactics such as would impair the ability of the employees to evaluate- its campaign material. Under these circumstances we find nothing objectionable in the materials attached to the Employer's objections,"' and overrule the fourth objection." Objection 5: The Employer alleges that the issuance of the Board's: order of July 5, 1957, in effect reprimanding the Employer and its: counsel, and the Petitioner's use of the Board order for campaign purposes interfered with the employees' free choice of representatives.. Like the Regional Director, we find that the issuance of a Board order in the normal course of events and its use by one of the parties for campaign purposes does not prevent a fair and impartial election.ix Objections 6 and 7: The Employer urges as grounds for setting aside the election the fact that the Petitioner refused to enter into a consent-election agreement and that the Regional Director delayed the election until the last possible day on which the election could be held pursuant to the terms of the Board's Direction. The Petitioner was under no duty to consent to an election in view of the fact that the Employer only offered to enter into the consent-election agreement more than 6 months after the petition was filed and after a hearing had been held at which it vigorously contested the petition. As for the date chosen by Regional Director for the election, it is equally well settled that the Regional Director may set the date of an election at his discretion, and the facts in the Regional Director's report, not controverted in the Employer's exceptions, amply indicate that the Regional Director properly exercised his discretion. Accordingly, these objections are overruled. 8 See General Shoe Corporation , 97 NLRB 499, 502. 0 Member Rodgers concurs in the finding that the individual interviews conducted by the union representatives at the homes of the employees were not coercive and that therefore they cannot serve as a basis for setting the election aside. Member Rodgers Is of the opinion that both unions and employers have an equal right to carry their campaigns to the homes of the individual employees . He would, therefore, reverse the Peoria Plastic decision which holds such action on the part of an employer to be coercive per se and therefore sufficient, without more, to nullify the results of an election. 10 See Wheelerweld Division, C. H. Wheeler Manufacturing Company, 118 NLRB 698, and cases cited therein. 11 The Employer excepts to the Regional Director 's apparent characterization of certain of the Employer 's conduct as misconduct in connection with the discussion of this objection in his report . We agree that the report does not establish that the Employer engaged in any misconduct and have disregarded this aspect of the report. ' See Milham Products Co., Inc., 114 NLRB 1544. LOCAL 450 135 Objection 8: As the Employer does not except to the Regional Director's recommendation that this objection be overruled, we adopt his recommendation. Inasmuch as we agree with the Regional Director that the Employer's objections should be overruled, we will certify the Petitioner as representative of the Employer's employees. [The Board certified International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers, AFL-CIO, as the designated collective-bargaining representative of the Em- ployer's production and maintenance employees in the unit found appropriate.] Local 450, International Union of Operating Engineers, AFL- CIO and The Austin Company. Case No. 39-CD-24. October 25,. 1957 DECISION AND ORDER QUASHING NOTICE OF HEARING . On April 1, 1957, The Austin Company filed a charge with the Regional Director for the Sixteenth Region, alleging that Local 450,. International Union of Operating Engineers, AFL-CIO, had engaged' in and was engaging in certain unfair labor practices within the meaning of Section 8 (b) (4) (D) of the Act. Thereafter, pursuant to Section 10 (k) of the Act and Sections 102.71 and 102.72 of the Board's Rules and Regulations, the Regional Director investigated the charge and provided for an appropriate hearing upon due notice. The hearing was held at Houston, Texas, from May 28 to 31, 1957, before Edwin Youngblood, hearing officer. All parties appeared at the hearing and were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, and upon consideration of the briefs filed by the parties, the Board makes the following : FINDINGS OF FACT 1. The Austin Company is engaged in commerce within the meaning- of the Act. 2. Local 450, International Union of Operating Engineers,. AFI,CIO, is a labor organization within the meaning of the Act. 3. Austin was a member of Construction Employers Association of Texas on August 31, 1955, when the latter association entered into a contract with the Union, effective initially until April 30, 1958. The 119 NLRB No. 18.