A. Werman & Sons, Inc.

National Labor Relations Board - Board DecisionsSep 29, 1953

106 N.L.R.B. 1215 (N.L.R.B. 1953)

A. WERMAN & SONS, INC 1215 ballot.5 Accordingly , as the Petitioner has received amajority of the valid votes cast , we shall certify it as the bargaining representative of the employees in the unit heretofore found appropriate. [The Board certified General Drivers Warehousemen and Helpers, Local 968, as the designated collective -bargaining representative of the production and maintenance employees at the Employer ' s South Houston, Texas , plant, excluding salesmen , office clerical employees , guards , professional employees , and supervisors as defined in the Act.] Member Rodgers took no part in the consideration of the above Supplemental Decision and Certification of Representa- tive s. 5 The Employer in its exceptions requested , in the alternative, that the Board direct a hearing on this challenged ballot. As there are no factual issues remaining that would warrant a hearing, the Employer ' s request is denied. A. WERMAN & SONS , INC. and UNITED SHOE WORKERS OF AMERICA , CIO, Petitioner . Case No. 4-RC - 1972. September 29, 1953 SUPPLEMENTAL DECISION AND DIRECTION Pursuant to a Decision and Direction of Election issued by the Board on June 1, 1953,1 an election by secret ballot was conducted on June 19, 1953, under the supervision of the Regional Director for the Fourth Region, among the employees at the Employer's plant in Marietta, Pennsylvania . Upon com- pletion of the election, the parties were furnished with a tally of ballots which showed that of approximately 112 eligible voters , 96 cast valid ballots , of which 46 were for and 50 against the Petitioner . There were 11 challenged ballots, a number sufficient to affect the results of the election, and no void ballots. On June 24 , 1953 , the Petitioner filed timely objections to conduct allegedly affecting the results of the election. In accordance with the Board ' s Rules and Regulations, the Re- gional Director conducted an investigation and, on July 31, 1953, issued and duly served upon the parties his report on objections . In this report , the Regional Director found that Petitioner ' s objections 1 to 5 raised substantial and material issues and recommended that the election be set aside . In view of this conclusion , the Regional Director found it unnecessary to conduct an investigation concerning the challenged ballots or to pass upon the contention that Detz , the Employer ' s observer, 'Not reported in printed volumes of Board decisions. 106 NLRB No. 198. 1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was disqualified to act in such capacity because he was a supervisor. However, the Regional Director overruled the Petitioner's objection which alleged that the Employer inter- fered with its employees' free choice of representatives by granting certain unilateral wage increases prior to the election, on the ground that no evidence had been submitted to support this allegation. On August 24, 1953, the Employer filed timely exceptions to the Regional Director's report and to his recommendation that the election be set aside.' In determining whether conduct creates an atmosphere which renders improbable the employees' free choice of bargaining representatives and necessitates setting aside an election, the Board has uniformly considered whether the conduct was reasonably calculated to have a coercive effect upon the em- ployees in the voting unit.3 In the instant case , the Regional Director made findings, controverted by the Employer, that certain employees in the voting unit had drunk intoxicants prior to the election at a time when certain supervisors were present in the fitting room, that 2 employees were outspoken against the Petitioner, and that 1 female employee had voiced threats that she would assault employees voting for the Pe- titioner. However, the Regional Director did not find that the Employer furnished its employees with intoxicating beverages, or encouraged or condoned their use prior to the election. While wholesale insobriety on the part of rank-and-file em- ployees may affect the reasoned exercise of their franchise, we are unable to conclude that such conduct on the part of a few employees, if it occurred, was of such pronounced character or was sufficiently widespread as to have had any substantial effect upon the election. Nor are we convinced that because Fornoff and Raber were outspoken against union representation, or because Fornoff allegedly voiced threats of violence against employees who voted for the Petitioner, such conduct justifies setting aside the election. The Board has frequently recognized that vehement advocacy on the part of rank-and-file employees does not warrant setting an election aside where the advocates do not resort to violence in attempting to obtain converts to their convictions, and the partisan activity is not part of any concerted effort to coerce or intimidate employees.4 In the instant case , the Regional Director did not find that Fornoff and Raber were acting as agents of or at the behest of the Employer in displaying their antiunion sentiments. Nor did he find that the threats which these employees allegedly made relative to assaulting prounion adherents, uttered in the Em- ployer's fitting room where some 45 employees were employed, were directed at any particular individual. Under the circum- stances, we believe that the implications of the remarks allegedly made by Fornoff and Raber were of such general 2 The Petitioner filed no exceptions to the report on objections. 3See, e.g., G. H. Hess, Inc., 82 NLRB 463. 4See J. J. Newberry Company, 100 NLRB 84; Kroder-Reubel Company, Inc., 72 NLRB 240. A. WERMAN & SONS, INC. 1217 nature as not to constitute a threat that would justify setting the election aside.5 With respect to Fornoff ' s activity on the ballot line and subsequent thereto, we do not believe that the isolated conduct of one rank - and-file employee , obviously excitable in nature and no doubt overcome by the heat of the election campaign, whose ballot had been challenged by the Petitioner ' s observer, and who apparently was unaware of the identity or authority of the Board ' s agent until she was so informed , constitutes such interference with the Board ' s election processes as to warrant our setting the election aside . While we view Fornoff's actions and intemperate remarks as regrettable , if they occurred, we are not convinced that these alleged facts raise substantial and material issues which justify setting aside the election. In its objections , the Petitioner also urged that the election should be set aside on the ground that Detz , the Employer's observer , was a supervisor and thus was disqualified from acting in such capacity . The Regional Director did not consider this objection in his report because of his finding that other conduct affected the results of the election which was sufficient to warrant setting it aside. The Petitioner filed no exceptions to the Regional Director ' s failure to make a finding with respect to this objection. An affidavit submitted by Detz which accompanied the Em- ployer ' s exceptions to the report on objections discloses that Detz is 1 of 6 office employees at the Employer ' s plant, whose duties consist mainly of doing payroll work. Occasionally, Detz assists other office employees . During the 7 years in which he has been employed by the Employer , Detz has never possessed any authority to hire, discharge , or discipline any other em- ployees , or effectively recommend such action , nor has he possessed authority to direct the work of other employees. The affidavit also reveals that Detz acted as an observer for the Employer without challenge in an election conducted in its plant in 19476 when his duties coincided with those to which he is now assigned. In view of the foregoing , we are satisfied that Detz is not a supervisor within the meaning of the Act, and was therefore qualified to act as an election observer on behalf of the Em- ployer. Accordingly , we find that the Petitioner ' s objection directed at Detz ' s qualifications as an observer raises no substantial or material issues. Under all the circumstances , we find that the facts revealed by the Regional Director ' s entire investigation do not raise substantial or material issues respecting the outcome of the election as to warrant setting it aside. For the same reason, no useful purpose would be served by holding a hearing on the objections , as the Petitioner requested and the Regional Di- 5 Mallinckrodt Chemical Works , 86 NLRB 662; Minneapolis Knitting Works , 84 NLRB 826. 6 Case No. 4-R-2549 ( not reported in printed volumes of Board decisions). 1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rector recommended . Accordingly , the Petitioner ' s objections to conduct allegedly affecting the results of the . election are hereby overruled. However, as the challenged ballots in this case are sufficient in number to affect the results of the election , we shall direct that the Regional Director investigate such challenges and prepare and cause to be served upon the parties a report on challenged ballots , setting forth the facts revealed by the investigation and his recommendation thereon. [The Board directed that, as part of the investigation to ascertain representatives for the purpose of collective bar- gaining with the Employer , the Regional Director for the Fourth Region shall investigate these challenged ballots and serve upon the parties a report on challenged ballots.] Member Murdock took no part in the consideration of the above Supplemental Decision and Direction. WESTINGHOUSE ELECTRIC CORPORATION and INTERNA- TIONAL ASSOCIATION OF MACHINISTS, AFL, Petitioner. Case No. 6-RC - 1330. September 29, 1953 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Sidney Lawrence , hearing officer . The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the mean- ing of the Act. 2. The labor organizations involved claim to represent certain employees of the Employer.' 3. A question affecting commerce exists concerning the representation of employees of the Employer within the mean- ing of Section 9 (c) (1) and Section 2 ( 6) and ( 7) of the Act. 4. The parties are in general agreement that the production and maintenance unit which is presently represented by the UE is appropriate for the purposes of collective bargaining. The Petitioner and the UE oppose any change in that unit . The IUE 1 The hearing officer properly granted motions to intervene which were made by Local 601, United Electrical , Radio & Machine Workers of America (UE), herein called the UE, the presently certified bargaining representative, and by Federation of Westinghouse Independent Salaried Unions, herein called the Federation , and International Union of Electrical, Radio & Machine Workers , CIO, herein called the IUE. Although the UE and the Federation are parties to current collective -bargaining agreements covering the employees involved in this proceeding , none of the parties has asserted that either of these contracts constitutes a bar to a present determination of representatives. 106 NLRB No. 200.