Barrel & Drum Dealers Association of Minnesota

70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD while employees of the primary employer happened to be temporarily absent from the scene, Seafarers' violated the doctrine of Moore Dry Dock. On the entire record in this case the Trial Examiner concludes and finds that the Respondent's activities which are the subject of this complaint were primary in character, and that the Respondent has not violated Section 8(b) (4) (A) and (B) of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Seafarers' International Union of North America, Atlantic and Gulf District, Harbor and Inland Waterways Division, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. Superior Derrick Corporation is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. Seafarers' International Union of North America, Atlantic and Gulf District, Harbor and Inland Waterways Division, AFL-CIO, has not engaged in unfair labor practices within the meaning of Section 8(b) (4) (A) or (B) of the Act. [Recommendations omitted from publication.] Barrel & Drum Dealers Association of Minnesota and Local 970 and Local 975, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Joint Peti- tioners and Arthur L. Morgan . Case No. 18-RC-3605. Novem- ber 12, 1958 DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to a stipulation for certification upon consent election, dated May 13, 1958, an election was conducted on May 28, 1958, under the direction and supervision of the Regional Director for the Eighteenth Region, among the employees at the Employer's Minne- apolis, Minnesota, plant. At the conclusion of the election, the parties were furnished a tally of ballots which showed that of approximately 113 eligible voters, 101 cast valid ballots, of which 42 were cast for the Joint Petitioners, 51 were cast for the Intervenor, and 5 were cast against any labor organization. There were three challenged ballots, a number insufficient to affect the results of the election. Two ballots were void. On June 3, 1958, the Joint Petitioners filed timely objections to conduct affecting the results of the election. In accordance with the Rules and Regulations of the Board, the Regional Director conducted an investigation of the objections and, on July 24, 1958,1 issued and served on the parties his report on objections, in which he found that two objections raised substantial and material issues, and recom- 'A supplemental report was filed by the Regional Director on August 4, 1958. 122 NLRB No. 11. BARREL & DRUM DEALERS ASSOCIATION OF MINNESOTA 71, mended 'that the election be set aside and a new election held.2 Thereafter, the Intervenor timely filed exceptions to the Regional Director's report. 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 [Members Rodgers, Bean, and Fanning]. The Board has considered the Regional Director's report, the Intervenor's exceptions and the Employer's brief, and upon the entire record in this case, finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The Petitioners are labor organizations claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concering 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 stipulation of the parties, we find that 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 production and maintenance employees, yardmen, and ware- housemen at the Employer's Minneapolis, Minnesota, plant, including drivers, but excluding all office clerical employees, all drivers pres- ently represented in other bargaining units, professional employees, guards, and supervisors as defined in the Act. 5. The Joint Petitioners allege in their remaining objections that a supervisor, Philip Zuniga, promised the employees a wage increase if Arthur L. Morgan, the certified bargaining representative and the Intervenor herein, won the election. The Regional Director found that although Zuniga was a member of the bargaining unit and was serving as a shop steward for Morgan, he nevertheless responsibly directed the work of 15 employees and was a supervisor within the meaning of the Act. His investigation further revealed that Zuniga, in order to counteract organizational propaganda by the Joint Peti- tioners, obtained permission from Morgan to tell the employees that they would receive the pay raise which Morgan had been negotiating in their behalf for several months. Sometime after the execution of the stipulation for certification upon consent election and before the elec- tion, Zuniga told some employees that "Morgan said he was going to get them a 150 an hour wage increase." At least 6 days prior to the election the Joint Petitioners heard about Zuniga's remark and im- mediately requested permission from the Employer to enter the plant 2 As no exceptions were taken to the Regional Director's recommendations that the other four objections be overruled, we hereby adopt them. 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to tell the employees that they would not get the alleged pay increase. The Employer promptly acceded to the Joint Petitioners' request, with the condition that the plant superintendent accompany the Joint Peti- tioners' agents through the plant. In the course of the plant tour, the Joint Petitioners and the plant superintendent, together with Zuniga, advised about 12 out of approximately 70 employees that no pay in- crease would be forthcoming. No further contact was made with the employees because the Joint Petitioners did not desire to continue the tour through the plant. Nevertheless, the Regional Director con- cluded that Zuniga's remark constituted interference and because of his supervisory status, his conduct was attributable to the Employer. In its exceptions, the Employer concedes that Zuniga is a supervisor, but asserts that he made the statement concerning the wage increase without its authorization and that, in any event, the employees were not misled by his remark because the Employer, a few days before the election, had disavowed his promise of a raise. The Intervenor contends in its exceptions that Zuniga is not a supervisor within the meaning of the Act and that he spoke to the employees solely in his capacity as shop steward and not as an agent of the Employer. We agree with both the Employer and the Intervenor that in the circum- stances of this case Zuniga's promise of a wage increase did not inter- fere with the freedom of choice of the employees. Assuming, with- out deciding, that Zuniga is a supervisor, we believe that his promises of benefit to the employees conditioned upon the outcome of the elec- tion were made in his individual capacity as shop steward rather than as a representative of management.' Moreover, we have difficulty in perceiving how the voters could have been misled by Zuniga's remark into believing that the promise of the wage increase emanated from the Employer as Zuniga prefaced all his statements concerning the wage increase with "Morgan said, . . ." In view of the foregoing, we find that the Joint Petitioners' objections are lacking in merit, and that there is no necessity for remanding this case for a hearing on the issue as to Zuniga's supervisory status. As the Intervenor has obtained a majority of the valid ballots cast in the election, we shall certify him as the collective-bargaining rep- resentative of the employees in the appropriate unit. [The Board certified Arthur L. Morgan as the collective-bargaining representative of the employees of the Employer in the unit herein found appropriate.] 3 See Nassau and Suffolk Contractors' Association, Inc., et al., 118 NLRB 174, and cases cited therein.