Pennsylvania Power & Light Co.

470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1) If a majority of the professional employees vote for inclusion in a unit with nonprofessional employees, we find that the following employees will constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act: All full-time and part-time clerks, merchandiser-drug clerk, foun- tain girls, delivery boy, stock boy, pharmacists, and pharmacists- trainees in the Employer's Gresham, Midway, and Powellhurst stores, Portland, Oregon, excluding guards, store managers, and other super- visors as defined in the Act. (2) If a majority of the professional employees do not vote for inclusion in the unit with nonprofessional employees, we find that the following two groups of employees will constitute separate units appropriate for collective bargaining within the meaning of Section 9(b) of the Act: (a) All full-time and part-time clerks, merchandiser-drug clerk, fountain girls, delivery boy, and stock boy at the Employer's Gresham, Midway, and Powellhurst stores, Portland, Oregon, excluding phar- macists, pharmacists-trainees, guards, store managers, and other supervisors as defined in the Act. (b) All pharmacists and pharmacists-trainees in the Employer's Gresham, Midway, and Powellhurst stores, Portland, Oregon, exclud- ing all other employees and supervisors as defined in the Act. [Text of Direction of Elections omitted from publication.] Pennsylvania Power & Light Company and Utility Engineers Association, Engineers and Scientists of America , Petitioner. Case No. 4-RC-3594. August 10, 1959 SUPPLEMENTAL DECISION AND CERTIFICATION OF RESULTS OF ELECTION Pursuant to a Decision and Direction of Election issued by the Board on December 3, 1958,1 an election by secret ballot was conducted on December 19, 1958, under the direction and supervision of the Re- gional Director for the Fourth Region among the employees in the unit found appropriate by the Board. Following the election, the parties were furnished a tally of ballots which showed that, of ap- proximately 153 eligible voters, 152 cast valid ballots, of which 42 were for, and 110 against, the Petitioner. The Petitioner filed timely objections to conduct affecting the re- sults of the election. The Regional Director investigated the objec- 1122 NLRB 293 On December 5, 1958, the Board issued an order correcting Decision and Direction of Election. 124 NLRB No. 59. PENNSYLVANIA POWER & LIGHT COMPANY 471 tions and on February 17, 1959, issued and duly served upon the parties his report on objections, in which he found that the objections raised no material and substantial issues affecting the election, and recommended that the objections be overruled and that the Board issue a certification of the results of the election. The Petitioner filed timely exceptions to the Regional Director's report. On April 14, 1959, the Board issued an order directing the Regional Director to prepare a supplemental report as to the number and circumstances of the discussions between supervisory employees and eligible em- ployees, the subject of the Petitioner's objection No. 2. On May 19, 1959, the Regional Director issued his supplemental report on objec- tions in which he reaffirmed his original conclusions with respect to such objection. The Petitioner filed timely exceptions to the supple- mental report, and the Employer filed a statement in support thereof. 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 objections, the reports of the Regional Director, the Petitioner's exceptions thereto, the Employer's state- ment in support of the supplemental report, and upon the entire rec- ord in this case, makes the following findings : In its objections, the Petitioner alleged that (1) the Employer made threats, promises of benefit, and other coercive statements in a letter which it distributed to all eligible voters prior to the election and in certain portions of a question-and-answer document prepared by the Employer for the use of its supervisors as a guide in dis- cussions with employees in the unit, and (2) the Employer used the technique of calling employees away from their work places for the purpose of presenting to them its antiunion position with respect to the approaching election. As to (1), the Regional Director concluded that the documents in question did not exceed the bounds of protected free speech. The Petitioner, in its exceptions, disputed the Regional Director's conclu- sion, contending that the Employer, by means of subtlety and by implication, had made the alleged threats and promises of benefit. We have considered the documents in their entirely and agree with the Regional Director that the statements contained therein are privi- leged under the Act.' We therefore overrule the objections relating to the statements made in these documents. As to the remaining objection, the Regional Director's investigation revealed the following facts : For a period immediately preceding the election, three supervisors, West, Bachert, and Lehman, discussed the 2 See Standard Steel Corporation, 123 NLRB 136 ; National Furniture Company, Inc., 119 NLRB 1: Crown Food Products, Inc„ 118 NLRB 1123 ; Fall River Foundry Company, 112 NLRB 1307. 472 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD Employer's salary administration plan (SAP) and matters affecting the election with employees in the unit. It is not shown that the statements made by the supervisor in the course of these discussions were in any manner coercive. These discussions involved 18 employ- ees out of a total of 153 eligible voters. The three supervisors in- volved were the immediate supervisors of the employees with whom they had the discussions. West, station electrical engineer, supervises 29 professional employees, 25 of whom work on the 18th floor, and 4 on the 17th floor of an office building. He has a glass-enclosed office on the 18th floor. It is a normal and common practice for these em- ployees to visit his office to discuss work problems. Backert, regional engineer, has a desk on the 18th floor in an open area near his five subordinates. Lehman, regional engineer, likewise has a desk on the 18th floor in an open area located not far from his six subordinates. Top management representatives are located in areas which are remote from the 18th floor where the discussions occurred. Ten of the dis- cussions took place in West's office at a time when individual em- ployees were there in the normal course of their work. Upon each such occasion, West asked the employee if he had any questions con- cerning the SAP, and only if questions were asked or some interest shown did he discuss the plan. It appears that West initiated dis- cussions with two of his subordinates by calling them individually to his office. Backert had similar discussions with four of his subordi- nates, one at the employee's desk, one at Backert's desk upon his invi- tation, and the remaining two in an open area within view of the desks of the employees involved and Backert. Lehman initiated such dis- cussions with two of his supervisees, one of which took place in a conference enclosure on the 18th floor, and the other in part at his desk and in part at the employee's desk. The Regional Director concluded that the above-described discus- sions, in the context in which they occurred, rendered inapposite the Board's holdings in People's Drug Stores, Inc., 119 NLRB 634; Economic Machinery Company, 111 NLRB 947; and other cases ap- plying the General Shoe doctrine.' We likewise conclude, contrary to the Petitioner, that the circumstances herein do not warrant the application of that doctrine. Under the General Shoe doctrine, where the circumstances disclose that an employer has used the technique of calling employees, individually and in small groups, to the locus of final authority in the plant and there urges them to reject the union in the election, such conduct in itself warrants setting aside the elec- tion. The basis for the doctrine is that the use of such a technique places employees in a situation where the antiunion views of the Em- ployer have an intimidating effect upon them and inhibits their free 8 General Shoe Corporation (Marman Bag Plant), 97 NLRB 499. PENNSYLVANIA POWER & LIGHT COMPANY 473 choice in the election. Where the facts clearly show that the tech- nique has been used the coercive effect is readily inferable .4 How- ever, where conflicting inferences may be drawn from the facts as to the means adopted by the employer to present its antiunion position to its employees, the Board must scrutinize the entire record to de- termine whether the conduct warrants application of the doctrine or whether the employer has used legitimate campaign ta.ctics.5 In the instant case, although we agree with the Petitioner that the discussions with individual employees were used as part of the Em- ployer's campaign against the Petitioner in the election, there are a number of factors which militate against a finding that the tactics used by the Employer fall within the proscription of the General Shoe doctrine. Thus no more than 14 of the 153 eligible voters were in- volved in the discussions at offices of supervisors.6 The discussions, although almost all initiated by an immediate supervisor, occurred in the majority of instances only when an employee happened to be there in the course of his employment and took place only after the em- ployee expressed an interest in having the SAP explained. Under all the circumstances we do not believe that the conduct complained of was such as to have had a coercive effect upon the employees involved under the General Shoe doctrine. The objection to such conduct is therefore overruled. As we have overruled the objections to the election, and as the Peti- tioner has failed to secure a majority of the valid votes cast, we shall certify the results of election. [The Board certified that a majority of the valid ballots was not cast for Utility Engineers Association, Engineers and Scientists of America, and that said labor organization is not the exclusive bar- gaining representative of the employees of the Pennsylvania Power and Light Company, Allentown, Pennsylvania, operation in the unit found appropriate.] 4 See, e.g., the following cases where the doctrine was kpplied without detailed rationale : Oregon Frozen Foods Company, 113 NLRB 881 ; Richards Container Corporation, 114 NLRB 1435 ; General Cable Corporation, 117 NLRB 1573 ; Carter-Lee Lumber Company, 119 NI,RB 1374. 5'See, e.g., the following cases where the Board applied the doctrine in cases of this type : Supreme Trailer Company, 115 NLRB 962; Veeder-Root, Incorporated, 120 NLRB 967; Jasper Wood Products Co., Inc., 123 NLRB 28 ; ef. American Envelope Co., 97 NLRB 1541 ; Plead-Atlanta Paper Company, 120 NLRB 832; Arizona Television Com- pany, 121 NLRB 889 ; Crane Carrier Corporation, 122 NLRB 206; Tuttle & Kift, Division of Ferro Corp ., 122 NLRB 848. 6 As indicated above, two of the discussions occurred at the desks of the employees involved and two discussions occurred in areas near the employees ' desks. We find no merit in the Petitioner's exception that the investigation should have in- cluded field offices as well as the Allentown location . No evidence was presented nor was any evidence revealed in the Regional Director 's investigation that interviews oc- curred in other installations of the Employer. The Board has held that the party filing objections is obligated to support them with evidence and absent such evidence the Regional Director is not required to pursue an independent investigation. See Sears Roebuck and Company, 115 NLRB 266, 271.