Emerson Electric Co.

National Labor Relations Board - Board Decisions

Jul 14, 1953

106 N.L.R.B. 149 (N.L.R.B. 1953)

EMERSON ELECTRIC COMPANY 149
Member Peterson , dissenting:
The employees sought herein by the Petitioner have been
represented by the Intervenor in a production and maintenance
unit for 8 years . In view of this substantial collective-bar-
gaining history on a plantwide basis, and in the absence of
other factors which would warrant their severance from the
established unit ,T I would not accord these employees separate
representation.
7See my dissenting opinion in W C. Hamilton and Sons, 104 NLRB 627.
EMERSON ELECTRIC COMPANY and DISTRICT NO. 9 INTER-
NATIONAL ASSOCIATION OF MACHINISTS, A.F.L., Peti-
tioner and INTERNATIONAL UNION OF ELECTRICAL RADIO
AND MACHINE WORKERS, LOCAL 1102, CIO. Case No.
14-RC- 2030 . July 14, 1953
SUPPLEMENTAL DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
Pursuant to a Decision and Direction of Election , t an election
by secret ballot was conducted on February 6, 1953, under the
direction and supervision of the Regional Director for the
Fourteenth Region , in a voting group of machinists and tool
and diemakers employed by the Employer. At the close of the
election , the parties were furnished a tally of ballots. The tally
showed that of the approximately 207 eligible voters, 199
ballots were cast . Of the ballots cast, 82 were cast for the
Petitioner , 102 were cast for the Intervenor , and 14 were
challenged.
Thereafter, on February 11, 1953, the Petitioner filed
timely objections, and a corrected objection on February 16,
1953, to the ' conduct of the election . In accordance with the
Rules and Regulations of the Board , the Regional Director
conducted an investigation and, on March 17, 1953, issued and
duly served upon the parties his report on objections to
election . In his report , the Regional Director found that the
Petitioner ' s objections raised no substantial or material
issues which would justify setting aside the election, and
recommended that the objections be overruled , and that an
appropriate certification of representatives be issued.
On March 25 , 1953, the Petitioner filed exceptions to the
Regional Director ' s findings and recommendations as to these
objections along with a motion for reconsideration of report
on objections to election . On March 31, 1953, the Regional
Director issued a supplemental report denying the motion for
reconsideration and recommending that the Board overrule
the objection raised in the motion . The Petitioner filed ex-
ceptions to this supplemental report.
1102 NLRB 303.
106 NLRB No 28.
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 20, 1953, the Board issued a Supplemental Decision
and Certification of Results of Election in which it adopted the
Regional' Director's recommendation that the Petitioner's
objections to election be overruled for the stated reason that
the Petitioner had failed to file timely exceptions to the Re-
gional Director ' s report on objections to election . On July 1,
1953, the Board, being apprised of the fact that the Petitioner
did file timely exceptions to the Regional Director's report
on objections to election , issued an order vacating and setting
aside the Supplemental Decision and Certification of Results
of Election for the purpose of reconsidering the matter with
the exceptions.
The Board has considered the Petitioner's objections to the
election , the Regional Director ' s report on objections and the
exceptions filed thereto , the Petitioner ' s motion for recon-
sideration , the Regional Director ' s supplemental report on the
motion for reconsideration and the exceptions thereto, and
hereby adopts the Regional Director's recommendation that
the Petitioner ' s objections be overruled.
The Petitioner objects to the election of February 6, 1953,
on the ground that during the preelection and election period
the Employer permitted officials of the Intervenor to elec-
tioneer in the plant during working hours. In its exceptions to
the report on objections , its motion for reconsideration, and
its exceptions to the supplemental report , the Petitioner
asserts that the Employer assisted and supported the Inter-
venor by entering into a contract with the Intervenor on
October 31 , 1952, while this representation proceeding was
pending, and by permitting the Intervenor , pursuant to the
contract , to solicit employees on company time and property,
a privilege denied to the Petitioner . In its exceptions the
Petitioner makes no mention of the number of observers at
the election or electioneering in the polling area , matters
raised in its objections and found to be without merit by the
Regional Director.
Concerning the issues raised by the Petitioner ' s exceptions
and motion for reconsideration , the Regional Director ' s reports
disclose the following:
The contract between the Employer and the Intervenor
entered into on October 31, 1952, excluded from its coverage
the employees in the voting group in question , and notices to
that effect were posted on the Employer ' s bulletin boards.
This contract permits Intervenor officers access to the plant
to investigate and adjust grievances.
Two Petitioner ' s witnesses , employees in the voting group
involved, gave affidavits stating that on January 30, 1953,
three officials of the Intervenor came into their department,
distributed IUE-CIO badges, and talked with individual em-
ployees during working hours about plans the Intervenor had
for them. Although one of these witnesses stated that foremen
in the department "must have observed" the, incident, he could
not identify any specific foreman as having been present. The
other witness stated that his foreman was not present and
EMERSON ELECTRIC COMPANY 151
could not recall any other foreman being present . Investigation
did not reveal that the Employer was aware of the activity
complained of or that it was called to the Employer ' s attention.
A witness of Petitioner stated that on February 2, 1953, two
Intervenor officials came into the plant and discussed the
apprentice plan with employees involved in the pending election,
and that on that occasion Foreman Brown spoke with the offi-
cials and they left the department.
By affidavit another Petitioner witness, an employee in the
voting group, declared that on February 2, 1953, a notice of
the Intervenor was posted on a bulletin board in a department
of eligible employees , concerning a new agreement pertaining
to seniority rights of occupational groups eligible to vote. The
witness complained to the director of personnel that Inter-
venor officials were electioneering in the department and
brought to his attention the notice posted on the bulletin board.
The director called the foreman of the department where the
witness asserted the electioneering was going on and told him
to keep the Intervenor ' s officials out of the department. He
also called the Employer ' s other plant involved in the election
and gave instructions that there was to be no electioneering on
either side . Concerning the notice on the bulletin board, the
director stated that it was unauthorized and contained misin-
formation . He called the general foreman and instructed him
to remove all union -propaganda from the bulletin boards. On
February 4, 1953, the director met with the witness and Peti-
tioner's organizer and in a letter clarified the exclusion of
employees in the voting group from the seniority provisions
of the Intervenor ' s contract of October 31, 1953, as amended.
The Employer posted copies of this letter on its bulletin
boards on February 5, 1953.
The Petitioner ' s observer at the election stated that on
February 5, 1953, the Intervenor ' s plant chairman was passing
out handbills in the plant . He further stated that Foreman Hess
was in his office at the time and therefore could not see the
plant chairman . The observer then called the director of per-
sonnel , who in turn called Foreman Hess bringing the incident
to his attention . Hess thereupon spoke with the Intervenor's
official , and the official left the department.
On February 6, 1953, the day of the election , the polling was
conducted between the hours of 6:30 and 8 a. m., and from
3 to 5 p. m. A witness of the Petitioner stated that he saw an
official of the Intervenor in the plant , while the polling was in
progress , talking to an employee . When spoken to by the fore-
man, the Intervenor ' s official left . Another of Petitioner's
witnesses saw the same official talking to an employee on that
day. The exact time and place of this conversation is not
revealed . A third Petitioner ' s witness , an eligible employee,
stated that during the morning of February 6, 2 of the Inter-
venor's officials talked to some 15 or 20 of approximately 80
or 90 employees in his department . A complaint was lodged
by someone with the Employer, and when a personnel officer
talked with the officials they left.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition , Petitioner ' s observer stated that while the
election was being conducted , he, the Board agent , and the
observers for the other 2 parties went to 1 of the eligible
departments to release voters . The observer stated that he
then saw an Intervenor ' s official talking with an employee, and
that Foreman Whitey came over and told the official to leave.
The Intervenor ' s official went another 50 feet and started
talking with another employee . Whitey went back to his office.
The Petitioner ' s observer did not call this occurrence to the
attention of the Board ' s agent or any representative of the
Employer.
The Petitioner does not specifically dispute the facts of the
electioneering incidents reported by the Regional Director, but
it does dispute his conclusion that the incidents do not warrant
setting aside the election because the Employer did not know
of the incidents or took prompt action when they were brought
to its attention . The Petitioner would attribute responsibility
to the Employer for the presence of Intervenor ' s officials
inasmuch as the contract with the Intervenor required its
representatives to report to foremen when leaving their de-
partment or entering another department in the conduct of the
Intervenor ' s business , and inasmuch as Government security
regulations required outsiders to register and state their
purpose upon entering the plant . We do not agree with the
Petitioner ' s argument . The Regional Director ' s investigation
does not show any independent knowledge on the part of the
Employer of unauthorized entry and activity or acquiescence
by the Employer in any departure by the Intervenor from the
requirements of the contract which gave its officials the right
of visitation . On the contrary, it is clear that when the Em-
ployer had knowledge of any deviations from the contract by
which the Intervenor ' s representatives did engage in elec-
tioneering , it took forthright and affirmative steps to halt them.
An employer in recognizing and dealing with a labor organ-
ization during the pendency of a petition which raises a real
question concerning representation, seriously interferes with
its employees ' free choice of their bargaining representatives. 2
In the instant case, however , the contract entered into with
the Intervenor covered only employees not involved in the
proceeding instituted by petition . The Board has recently
reaffirmed its policy that employers must maintain neutrality,
but without infringing upon the rights of an incumbent union to
administer its contract . 3 The investigation of the Regional
Director does not disclose that the Employer was unneutral or
that it displayed any favoritism toward the Intervenor, despite
the fact that the Intervenor may have abused its greater
opportunity to contact the employees in the voting group without
the Employer ' s knowledge or consent.4
The Petitioner's exceptions and motion for reconsideration
2lnternational Shoe Company, 97 NLRB 772.
3Lewittes & Sons, Inc., 101 NLRB 1107
4See Westinghouse Electric Corporation , 91 NLRB 955.
EMERSON ELECTRIC COMPANY 153
are based upon the Employer's alleged interference with the
election by contracting with the Intervenor and permitting the
Intervenor to electioneer on company time and property during
the preelection period . There remains for consideration,
however , the question of whether the Intervenor 's activity on
the day of the election made the circumstances surrounding
the conduct of the balloting unfit for obtaining free results.
We think it did not.
Only two of the incidents of electioneering are specifically
fixed at the time the polling was in progress . There is no rule
which prohibits electioneering before the time set for the
elections Moreover , assuming arguendo that all of the inci-
dents of electioneering which did occur on the day of the election
occurred while the election was in progress , no claim is made
by the Petitioner that the Intervenor ' s officials made any
coercive statements or wilfully violated any instructions of the
Board agent.6
With respect to the incident which the Petitioner ' s observer
stated occurred when he went to release the-eligible employees,
we note that although the Board agent was present in the same
department the incident was not brought to his attention.
Moreover , at the close of the election the Petitioner's ob-
server certified that "the balloting was fairly conducted, that
all eligible voters were given an opportunity to vote their
ballots in secret , and that the ballot was protected in the
interest of a fair and secret vote."'
While we do not condone the conduct of the Intervenor's
officials in this case, we are not persuaded that the Intervenor's
electioneering on company time and property before and on the
day of the election , complained of by the Petitioner, warrants
setting aside the election.
The Intervenor has gained a majority of the valid ballots
cast in the election , the employees involved indicating thereby
their desire to continue to be represented as part of the pro-
duction and maintenance unit . In accordance with our original
decision , we find, therefore, that these employees are appro-
priately a part of the production and maintenance unit and the
Intervenor may bargain for them as such.
[The Board certified that a majority of the valid ballots was
not cast for District No. 9, International Association of Ma-
chinists , AFL, which sought to represent all machinists and
tool and die makers in a separate unit. Accordingly, there was
no severance and this group therefore remains in the produc-
tion and maintenance unit represented by International Union
of Electrical , Radio & Machine Workers, Local 1102, CIO.]
Chairman Farmer and Member Peterson took no part in the
consideration of the above Supplemental Decision and Certifi-
cation of Results of Election.
5 Mutual Distributing Company, 83 NLRB 463.
6Moyer & Pratt, Inc., 100 NLRB 1147.
7Supra , footnote 5.