Rokwell Industries, Inc.

644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ees, watchmen , guards, the checker,4 and all other supervisors as defined in the Act. Case No. 5-RC-2634 All driver-salesmen, drivers' helpers, checkers, the advertising pro- motion man, cup vending machine serviceman, merchandising and sales promotion man, and lead salesmen employed by Norfolk Coca- Cola Bottling Works, Incorporated, at its Norfolk, Virginia, plant,, excluding office clerical employees, professional employees, watch- men, guards, and supervisors as defined in the Act. Case No. 5-RC-2646 All production employees employed by the Norfolk Coca-Cola. Bottling Works, Incorporated, at its Norfolk, Virginia, plant, ex- cluding office clerical employees, professional employees, delivery repair mechanics, refrigeration department employees, advertising- department employees, watchmen, guards, the checker, and all other- supervisors as defined in the Act. [Text of Direction of Elections omitted from publication.] 4 While the parties agreed to include nonsupervisory employees classified as checkers in, the driver-salesmen units, they also agreed , and the record shows, that certain production, employees at Portsmouth and Norfolk classified as checkers should be excluded from the production units as supervisors. Rokwell Industries, Inc. and Warehouse and Distribution Work- ers Union, Local 688, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Petitioner. Case No. 14-RC-3479. April 6, 1959 DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to stipulations for certification upon consent election,' an election by secret ballot was conducted on October 31, 1958, under the direction and supervision of the Regional Director for the Four- teenth Region. At the conclusion of the election, a tally of ballots was furnished to the parties pursuant to the Board's Rules and Regulations. The tally showed that, of 41 votes cast in the election,, 24 were cast for the Petitioner and 17 were cast for the Intervenor. On November 6, 1958, the Employer filed timely objections to, conduct affecting the results of the election. The Regional Director- investigated the objections and issued a report on objections and i On October 1, 1958, the Employer and Petitioner signed the original stipulation herein.. Thereafter on October 21, 1958, a superseding stipulation was signed by the Employer;. Petitioner, and Intervenor , Rokwell Metal Workers Union. 123 NLRB No. 81. ROKWELL INDUSTRIES, INC. .645 thereafter a supplemental report on objections, in which lie recom- mended that all objections be overruled and that Petitioner be certi- fied as representative of employees of the Employer in the stipulated unit. The Employer timely filed exceptions to the Regional Direc- tor's report and filed a brief in support of its exceptions. 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 [Members Rodgers, Jenkins, and Fanning]. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claiin to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the repre- sentation of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. As stipulated by 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 production and maintenance employees at the Employer's Kahlmayer Drive, St. Louis, Missouri, plant, excluding office cleri- cal employees, guards, watchmen, professional employees, and super- visors as defined in the Act. 5. Objections to conduct affecting the results of the election: The objections allege that (a) on October 1, 1958, and October 7, 1958, the Petitioner threatened and coerced employee Brannam and his family; (b) between October 18 and 24, 1958, Petitioner threatened employee Tilton; (c) between October 18 and 28, 1958, Petitioners announced that it had guns available to handle persons who inter- fered with its organizational campaign; (d) Petitioner otherwise threatened and coerced employees prior to the election; (e) Peti- tioner distributed a handbill designed to show that it was affiliated with AFL-CIO ; and (f) Petitioner published untrue statements immediately prior to the election which the Employer was unable to counteract before the election and which interfered with the em- ployees' free choice of bargaining representative. The Regional Director investigated the objections and recom- mended that all objections, except objection (c) be overruled on the merits 2 and that objection (c) be overruled on the ground that, as the alleged conduct occurred before the cutoff date of October 21, 1958, the date of the second stipulation for certification upon consent 'As to objections ( a) and ( b), he recommended that they be overruled for the addi- tional reason that they occurred prior to the October 21 , 1938, cutoff date. 646. DECISIONS OF NATIONAL LABOR RELATIONS BOARD election ,3 the Board was precluded from considering it as a basis. for setting aside the election. The Employer filed exceptions to all of the Regional Director's findings and recommendations together with a supporting brief.. The Employer contends, inter alia, that the Regional Director im- properly found October 21, 1958, to be the cutoff date and that the appropriate cutoff date is October 1, 1958, the date of the first stipulation upon consent election. The Employer also contends that a hearing should be held as to the merits of its objections 4 We find no merit in objections (d), (e), and (f). As to the other objections, we agree with the Regional Director that they are barred from consideration by the rule of the Woolworth case.5 In the Woolworth case, the Board held that, in establishing a cutoff date for an election conducted pursuant to a decision and direction of election, objections based on conduct which occurred prior to the date of the direction, or prior to the date of an amended direction of election, will not be considered. Although the Board has not ruled on the precise question here involved, i.e., whether to take as a cutoff date the date of execution of the original stipulation for consent election or the date of a superseding stipulation, we believe that it is consistent with the rule of the Woolworth case and the later Bremen case,, to take the date of the later stipulation as the cutoff date. As the conduct alleged in objections (a), (b), and (c) was found by the Regional Director to have occurred prior to October 21, 1958,. and the Employer does not now contend otherwise,7 and as the date of the second stipulation for consent election, dated October 21, 1958,. is the proper cutoff date, we find, in accord with the Regional Di- rector that the Employer's exceptions raise no substantial or material issues of fact and they are, accordingly, overruled. s See 'footnote 1, above. 4 It contends additionally that the Regional Director's investigation of the merits of the objections was incomplete because the Petitioner circulated copies of the objections and thereby intimidated witnesses who otherwise might have supported the objections. We find no merit in this contention as the possible intimidatory effect of the circulation of the objections is too speculative to warrant a hearing on this issue , as requested by the Employer. '5 F. W. Woolworth Company, 109 NLRB 1446. 6 Bremen Steel Company, etc., 115 NLRB 1581 , 1583. In that case the Board held that where a first Board-directed election was set aside for interference , and a second election directed , the cutoff date for objections to the second election was the date of issuance of the second direction of election. 7 Although the Employer states in its exceptions that the conduct described in objec- tion ( c) occurred "about 21 days after October 1. and only 10 days before the election" (October 31 ), in its brief the Employer does not dispute the finding in the Supplemental Report on Objections that the objectionable conduct occurred before October 21, 1958. The Employer 's exceptions were filed before the receipt of the report , whereas its brief was filed thereafter. LLOYD A. FRY ROOFING COMPANY 647 As we find no merit in the exceptions, we shall certify the Peti- tioner as the representative of the Employer's employees. [The Board certified Warehouse and Distribution Workers Union, Local 688, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America as the collective-bargaining representative of all production and maintenance employees at the Employer's Kahlmayer Drive, St. Louis, Missouri, plant, excluding office clerical employees, guards, watchmen, professional employees and supervisors as defined in the Act.] Lloyd A. Fry Roofing Company and United Papermakers and Paperworkers, AFL-CIO. Cases Nos. 39-CA-622 and 39-CA-700. April 7, 1959 DECISION AND ORDER On April 8, 1958, Trial Examiner C. W. Whittemore 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 Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recommended that the complaint be ' dismissed with respect thereto. Thereafter, the General Counsel and the Re- spondent filed exceptions to the Intermediate Report and supporting- briefs.' The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed 2 The Board has considered the In- I In its exceptions the Respondent excepted to the denial by the Trial Examiner of its requests to have the General Counsel produce certain written statements in his possession, of witnesses , at the time said witnesses testified . By its order of September 10, 1958, the Board sustained the exception and ordered that the General Counsel forthwith make available to the Respondent such pretrial written statements, or copies thereof, directly related to itheir testimony of witnesses who had testified for the General Counsel, provided that the Respondent within 10 days of the order designate to the General Counsel the names of the witnesses whose pretrial testimony they desired.' This Board order also provided that within 5 days after these statements had been received the Respondent could move to reopen the record and have the case remanded to the Trial Examiner for the purpose of further examining any witnesses so designated. Upon request of the Respond- ent, such pretrial written statements were shown to counsel for the Respondent on September 18, 1958, with full opportunity for inspection. On September 29, 1958, the Respondent 'advised the Board that it had been shown the pertinent pretrial statements and did not desire to reopen the record. 2 The Respondent excepts to the rulings of the Trial Examiner denying its motions to sever Case No. 39-CA-700 from Case No. 39-CA-622, and its motions to dismiss and motions to strike dated December 9, 1957, and renewed on February 12, 1958. In view. of our disposition of Case No . 39-CA-700, we find it unnecessary to rule on these- exceptions. 123 NLRB No. 86.