Lakefield Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 30, 1953

105 N.L.R.B. 952 (N.L.R.B. 1953)

952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
modified the description of the stipulated unit to exclude
"office clerical employees" rather than "office and clerical
employees" in keeping with our decision in D. M. Steward
Mfg. Co., 102 NLRB 461.
We find that all production and maintenance employees at the
Decatur, Alabama, plant of Calumet & Hecla, Inc. (Wolverine
Tube' Division), excluding office clerical employees, time-
keepers, time-study employees, sales employees, watchmen,
guards, nurses, engineers, draftsmen and all other professional
employees, confidential employees, management representa-
tives, and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
5. The Union contends that employees who went out on
strike in 1951 and have not yet been reinstated should be per-
mitted to vote in the election hereinafter directedbecause they
are on a tempofary laid-off status. The record indicates, how-
ever, that these employees are economic strikers who have
been permanently replaced, that they are not entitled to rein-
statement, and that they have no reasonable expectation of
reemployment in the near future. We find, therefore, that they
are not eligible to vote in the election directed below.
[Text of Direction of Election omitted from publication.]
LAKEFIELD MANUFAC TURING CO . and INTERNATIONAL
UNION, UNITED AUTOMOBILE , AIRCRAFT AND AGRI-
CULTI7RAL IMPLEMENT WORKERS OF AMERICA (UAW-
CIO), Petitioner . Case No. 13-RC - 2969 . June 30, 1953
DECISION AND ORDER
Pursuant to a stipulation for certification upon consent
election dated September 29, 1952, an election was held
under the direction of the Regional Director for the Thirteenth
Region on October 15, 1952, among employees at the Em-
ployer's plant at Milwaukee, Wisconsin, in which election
the Petitioner did not receive a majority of the valid votes
cast.
Thereafter, on October 20, 1952, the Petitioner filed timely
objections to the election, and requested that the election be
set aside. The Regional Director caused an investigation to
be made of the Petitioner's objections, and on January 29, 1953,
issued his report in which he found merit in the Petitioner's
objections and recommended that the election be set aside.
Thereafter, the Employer duly filed exceptions to the Regional
Director ' s report on objections.
The Board having duly considered the matter, and it appear-
ing that the objections raised substantial and material issues
of fact, on March 2, 1953, the Board ordered that a hearing
be held on the issues raised by the objections. The Board
105 NLRB No. 139.
LAKEFIELD MANUFACTURING CO. 953
further ordered that the hearing officer conducting the hearing
prepare and cause to be served upon the parties a report
containing resolutions of the credibility of the witnesses,
finding of fact, and recommendations to the Board as to the
disposition of the objections.
Upon notice duly served, a hearing on the objections was
held before Lloyd R. Fraker, hearing officer of the National
Labor Relations Board, on March 18 and 19, 1953. The
Employer and the Petitioner appeared by counsel, participated
in the hearing, and were afforded full opportunity to be heard,
to examine and cross -examine witnesses , and to introduce
evidence on the issues involved.
On April 13, 1953, the hearing officer in accordance with
the Board's order issued his report on objections to election,
in which he found that the Employer had interfered with the
employees' free choice in the election and recommended that
the election be set aside and the proceeding remanded to the
Regional Director for the purpose of conducting a new election
at such time as he may determine circumstances permit a
free choice of representatives. Thereafter the Employer filed
exceptions to the hearing officer's report and a brief in support
of its exceptions, and the Petitioner filed a motion to adopt
the hearing officer'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 Houston, Murdock, and
Styles].
The Board has reviewed the rulings made by the hearing
officer and finds no demonstration of bias. The rulings made
are free from prejudicial error and are hereby affirmed.
From the outset of the hearing the Employer has objected
to the hearing officer and to the conduct of the hearing,
alleging in substance that while the proceeding purported
to be under Section 9 of the amended Act, it was actually
an adversary proceeding which the Administrative Procedures
Act requires be conducted by an examiner qualified under
that statute; and that Section 9 (c) (1) of the Act forbids a
hearing officer from making recommendations in a representa-
tion proceeding as the hearing officer did in this case pursuant
to the Board's direction. The Board has previously considered
the above contentions and found them to be without merit.'
Section 5 of the Administrative Procedures Act specifically
excludes from the provisions of that act proceedings involving
the certification of employee representatives; and Congress,
we conclude, by the enactment of the provisions of Section 9
(c) (1) of the Act did not intend to deprive the Board of the
assistance of a hearing officer in proceedings subsequent
to an election. We deny the Employer's request that the
Board reject the hearing officer's report on the basis of
these contentions.
iSee Whiting Corporation, Spencer and Morris Division, 99 NLRB 117; U. S. Rubber Co
(Scottsville Plant), 86 NLRB 3.
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has considered the hearing officer's report on
objections , the Employer' s exceptions and supporting brief,
and the entire record in this case , and adopts the hearing
officer ' s findings and recommendations except as hereinafter
noted , and makes the following findings:
1. The Employer is engaged in commerce within the
meaning of the National Labor Relations Act.
2. The Petitioner is a labor organization claiming to
represent employees of the Employer.
3. A question affecting commerce exists concerning repre-
sentation of said employees of the Employer, within the
meaning ' of Section 9 (c) (1) and Section 2 (6) and (7) of the
Act.
4. The following employees of the Employer--as stipulated
by the parties --constitute a unit appropriate for purposes of
collective bargaining within the meaning of Section 9 (b) of
the Act:
All production and maintenance employees of the Lakefield
Manufacturing Co., Milwaukee , Wisconsin , excluding office
and clerical employees , part -time employees , and all
guards , professional employees , and supervisors as de-
fined in the Act.
5. The hearing officer found that the Employer had inte rfe re d
with the election by various acts after September 23, 1952.
The Employer contends that the hearing officer should not
have considered any conduct which occurred before September
29, 1952 , the date when the parties signed 'the stipulation for
certification upon consent election . We find merit in the
Employer ' s contention . The Board has recently announced
its policy concerning the crucial period before an election
and has stated that it will consider any alleged interference
which occurs after either ( 1) the execution by the parties
of a consent -election agreement or a stipulation for certifica-
tion upon consent election ; or (2) the date of issuance by the
Regional Director of a notice of hearing , as the case may
be.2 The parties here , by entering into the stipulation, placed
this case in category ( 1). The alternative stated in category
(2) is applicable to cases in which an election is not held
pursuant to such an agreement . The Board , therefore, does
not base its findings herein on any conduct which occurred
before September 29, 1952.
We find that the Employer through its supervisors engaged
in the following conduct which was reasonably calculated to
interfere with the employees ' exercise of a free choice in the
election of October 15, 1952:
1. On October 11, 1952 , Phil Geske , general foreman, told
employee Elmer Ward to spread arumoratthe plant that there
would be a raise before the Wage Stabilization Board, that he
2 The Great Atlantic and Pacific Tea Company , 101 NLRB 1118.
ROCKWOOD MILLS 955
got his information as to the raise from the smaller companies
with which the Employer does business , and that "we didn't
need a union."
2. On or about October 5, 1952 , Lawrence Bahling, night
foreman , asked employee William Sheetz and other employees
what they thought about the Union.
3. On September 30, 1952 , Phil Geske asked employee
Howard Rodd if he knew that passing out union literature
or cards was a violation ; told him that "you're most likely
to loose everything you have got and you would have to start
from scratch" if the Union came in ; and cautioned him not
to "bite the hand that ' s feeding you."
4. On either September 30 or October 1, 1952 , Geske and
employee Albert Kessler engaged in a conversation in the
boilerroom in which Geske told Kessler "if you guys figure
on having a union in here, it's going to be the same as they're
doing at Allis Chalmers--that ' s all you ' ll be doing is strik-
ing, . . ." and , "as far as your overtime , you can kiss that
goodbye , you'll be cut down to 40 hours a week."
5. About a week before the election , conducted on October
15, 1952 , Raymond Lasowski , the assistant foreman, told
employee Richard Olson "if you get a union in here you'll
be standing up on the viaduct looking down here ," and asked
Olson if they thought they could make it.
Upon the basis of the conduct specified above , we shall set
the election aside and shall direct the Regional Director to
conduct a new election at such time as he deems appropriate.
ORDER
IT IS HEREBY ORDERED that the election held in this
proceeding on October 15, 1952 , be, and it hereby is, set
aside.
IT IS HEREBY FURTHER ORDERED that this proceeding
be remanded to the Regional Director for the Thirteenth
Region for the purpose of conducting a new election at such
time as he deems the circumstances permit the free choice
of a bargaining representative.
ROCKWOOD MILLS and INTERNATIONAL UNION OF MINE,
MILL AND SMELTER WORKERS , LOCAL UNION NO. 579,
Petitioner . Case No. 10 -RC-2115. June 30, 1953
SUPPLEMENTAL DECISION AND CERTIFICATION OF
REPRESENTATIVES
On December 1, 1952, pursuant to a Decision and Direction
of Election issued by the Board , an election by secret ballot
among the employees of the Employer, in the unit found appro-
priate, was conducted under the direction and supervision of
105 NLRB No. 127.