Richard A. Glass Co.

914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD processor is required to qualify as a quality control man. A college education, although desirable, is not required of quality control men. In view of the foregoing, we find that the laboratory assistant and, quality control men are not technical employees 7 and that their in- terests are closely allied to those of the bulk of production workers. Accordingly, we shall include them in the unit hereinafter found to be appropriate within the meaning of Section 9 (b) of the Act : All production and maintenance employees at the Employer's Chemical Division (also known as S & F Chemical Company and General Ad- hesive Company) located in Nashville, Tennessee, including labora- tory assistants and quality control men, but excluding office clerical employees, plant protection employees, technicians, professional em- ployees, and all supervisors as defined in the Act.' [Text of Direction of Election omitted from publication.] 7 See Bata Shoe Company, Inc., 112 NLRB 1018, 1019; Wells Dairies Cooperative, 107 NLRB 1445. :The parties agree to exclude servicemen as salaried technicians , and the chemist and the quality control engineer as professional. Gail W. Glass d/b/a Richard A. Glass Company and United Packinghouse Workers of America, AFL-CIO, Petitioner. Case No. 91-R0,449. May 13, 1958 SUPPLEMENTAL DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a Decision and Direction of Election 1 of the Boards dated June 5, 1957, an election by secret ballot was conducted on December 3,1957, under the direction and supervision of the Regional Director for the Twenty-first Region among the employees in the appropriate unit. Following the election the Regional Director furnished the parties a tally of ballots which showed that of approxi- mately 43 eligible voters, 16 cast valid ballots for the Petitioner, 26 cast ballots against any labor organization, and 1 cast a void ballot. On December 9, 1957, the Petitioner filed timely objections to elec- tion and conduct affecting election. In accordance with the Rules and Regulations of the Board the Regional Director conducted an in- vestigation of the objections and on February 28, 1958, issued and served on the parties his report on objections in which he found that the Petitioner's objections raised a material issue with respect to the conduct of the election and recommended that the election be set aside. On March 28, 1958, the Employer filed timely exceptions to the Regional Director's report. 1 Not published. 120 NLRB No. 124. RICHARD A . GLASS COMPANY 915 Pursuant to the provisions -of Section- 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members, Rodgers-and Jenkins]. Upon the entire record in this case, the Board finds : 1-,- In its first objection, the Petitioner contends that the holding of the election on December 3, 1957, was premature and not pursuant to the Board's Decision and Order of June 19, 1957, resulting in dis- enfranchisement of a substantial number of eligible voters. The employees in the unit are employed at the Employer's seasonal packing-shed operations at Indio , California . By Order Amending Direction of Election dated June 19, 1957, the Regional Director was directed to conduct the election at or about the time of the employment peak of the Employer's next season . The election was conducted during the Employer's carrot season. As the commencement of the season approached, the Board agent assigned to the case requested that the parties advise him as to the peak of the ; season . The request to the Petitioner was directed to Chamberlain, its area representative and drew the response, dated November 13, 1957, that the Employer "will hit the peak of their operations about the second week in December . We will let you know as soon as possible." Thereafter, the Board agent contacted the Em- ployer's attorney who advised him orally that the peak would be reached around - December 1, 1957, barring unforeseen weather con- ditions. The election date, December 3, was then selected without further' consultation with the Petitioner . On November 25, notices of election were mailed. Those destined for the Petitioner were mailed to its Los Angeles office rather than to Chamberlain. Chamberlain's first knowledge of the election date came on Saturday, November 30, 1957, when an employee advised him that notices of election had been posted at the plant. Chamberlain attempted then unsuccessfully to contact the Regional Office to protest that the Employer was not then in the peak of its season but had been operating during the previous week only half time. On Monday, December 2, he contacted the Board agent on his arrival at Indio and protested against proceeding with the election. The following day the election was held. At the time of the election there were approximately 43 employees in the unit. Following the election employment rose to approximately 80 during the last week of December and remained at that level throughout the month of January 1958. The Employer contends that the rise in employment was abnormal and due to unusual weather conditions resulting in an unpredictable ripening of carrots accom- panied by unusual demand due to the destruction of the Texas crop by floods. However, the Employer's experience in the 2 previous carrot seasons indicates that its employment peaks in those years were also not reached until the end of December and continued through 916 DECISIONS OF NATIONAL LAB-OR RELATIONS:BOARD January and- February, averaging in excess of 90 and approximately 68 employees respectively in those seasons. The Regional Director found that the election was not conducted at or near the peak of the season. He concluded, that the Board's standards for election procedures were not adequately met under all the circumstances, including the fact that the timing of the election and the failure to contact Chamberlain prejudiced the Petitioner's opportunity.-to prepare for the election. Accordingly, he recom- mended setting aside the election. ' In its exceptions, the Employer contends that the failure to con- sult the Petitioner's representative in setting the date of the.eleetion and its lack of opportunity to prepare for the election were not in- eluded in the Petitioner's objections and cannot be considered as surrounding circumstances to the objections., The Employer contends that they therefore cannot be considered as a basis for setting aside the election. The Employer does not, however, take issue with any of the Regional Director's factual findings although, it requests a hearing with respect thereto if its basic exception is rejected,' We find, contrary,to- the Employer, that the. Petitioner's first ob- jection to the action of. the Regional Director in setting the election on December 3, 1957, was broad enough to encompass the circum- stances surrounding the manner in which that date was selected. In any event, where the Regional Director's investigation pursuant to timely filed objections uncovers matter relating to the conduct of a Board, agent or the functioning of Board processes sufficient to cause the election to.be set aside, the Board will consider such matter even if not within the scope of the objections timely filed.2 Accordingly, we find that all the facts found by the Regional Director may be considered in connection with the objection. Like the Regional Di- rector, we further find that under all the circumstances, the Board's standards for election procedures to insure full and free expression of employee wishes were not met in this case. We shall therefore set aside the election.' 2. The Regional Director found no merit in all but one of the Pe- titioner's, other objections. As for the one, he recommended that a hearing be held to resolve issues of credibility. Although the Em- ployer requests such a hearing, in view of our finding above no useful purpose would be served thereby. Accordingly, we find it unneces- sary to consider further that objection. As for the remaining objec- tions, in the absence of exceptions, we adopt the Regional Director's findings and overrule them. 3. In directing that a second election be held, we note that the Employer has a corn season in the late spring in addition to its carrot Dorriback Furnace &'Foundry Company, 115 NLRB 350. In the 'absence of specific exceptions to the Regional Director's findings, no hearing with respect thereto is warranted. MURPHY DIESEL COMPANY 917 season just past. Accordingly, we shall direct that the election • be held at or about the time of the employment peak of the approaching corn season, on a date to be determined by the Regional Director for the Twenty-first Region, among the employees in the appropriate unit who are employed during the payroll period immediately pre- ceding the date of issuance of the notice of election by the Regional Director. tThe Board set aside the election, held herein on December` 3,1957.1 [Text of Direction of Second Election omitted from publication.] Murphy Diesel Company and District No. 10, International Asso- ciation of Machinists, AFL-CIO. Case No. 13-CA-2450. May 14, 1958 DECISION AND ORDER On September 10, 1957j 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 Inter- mediate Report attached hereto. Thereafter the Respondent and the General Counsel filed exceptions to the Intermediate Report and briefs in support of their exceptions. At the close of 'the General Counsel's case, the Trial Examiner granted the Respondent's motion to dismiss the complaint allegation that the Respondent had violated Section 8 (a) (3) of the Act. For the reasons stated hereinafter, this ruling of the Trial Examiner is hereby reversed. The Board has reviewed other rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has con- sidered the Intermediate Report, the exceptions, the briefs, and the entire record in the case, and finds merit in certain of the General Counsel's exceptions. Accordingly, the Board adopts the findings, conclusions; and recommendations of the Trial Examiner only to the extent that, they are consistent with this Decision and Order. 1. We agree with the Trial, Examiner that the Respondent violated Section 8 (a) (1) of the Act by laying off employees because they refused to remove certain signs from their personal property. The Respondent's employees had voted to strike because of dissatis- faction with current wage negotiations. At a union meeting held on November 3, 1956, the employees decided that the strike would start at 7 a. m. on November 20, 1956. At this meeting, a proposal was made that the strike date be advertised by signs to be posted on the personal 120 NLRB No. 120.