Poinsett Lumber and Manufacturing Co.

National Labor Relations Board - Board Decisions

Nov 27, 1953

107 N.L.R.B. 234 (N.L.R.B. 1953)

2 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I WILL NOT discourage membership in Union de Empleados de Hoteles , Cafes y
Restaurantes de Puerto Rico, or in any other labor organization of my employees, by
discriminating in any manner in regard to hire, tenure , or any other term or condition
of employment , except to the extent permitted by Section 8 (a) (3) of the Act.
I WILL offer to Benito Cotto Torres immediate and full reinstatement to his former
or substantially equivalent position , without prejudice to any seniority or other rights
and privileges , and make him whole for any loss of pay suffered as a result of the
discrimination against him
I WILL NOT in any other manner interfere with, restrain, or coerce my employees
in the exercise of the right to self-organization , to form labor organizations , to join or
assist the above-named or any other labor organization , to bargain collectively through
representatives of their own choosing , and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection , or to refrain
from any or all such activities , except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a condition of employ-
ment in conformity with Section 8 (a) (3) of the Act
All my employees are free to become or remain , or refrain from becoming or remaining,
members of any labor organization , except to the extent above stated.
Dated . GABINO MARTINEZ,
Proprietor , Restaurant El Alcazar.
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.
POINSETT LUMBER AND MANUFACTURING COMPANY,
and INTERNATIONAL UNION OF ELECTRICAL, RADIO,
AND MACHINE WORKERS, CIO, Petitioner . Case No.
11-RC-534. November 27, 1953
SUPPLEMENTAL DECISION AND CERTIFICATION OF
REPRESENTATIVES
Pursuant to a Decision and Direction of Election issued by
the Board herein on July 17, 1953,' an election by secret
ballot was conducted on August 7, 1953, under the direction
and supervision of the Regional Director for the Eleventh Region
among the production and maintenance employees at the Em-
ployer's Anderson, South Carolina, plant. Following the elec-
tion a tally of ballots was furnished the parties. The tally
shows that, of approximately 301 eligible voters, 275 cast
ballots, of which 139 were for the Petitioner, and 135 were
against the Petitioner. There was 1 challenged ballot and 2
void ballots.
On August 13, 1953, the Employer timely filed objections to
conduct of the election and conduct allegedly affecting the
results of the election.2 In accordance with the Rules and
iNot reported in printed volumes of Board Decisions.
2Other objections of the Employer concerned the challenged ballot and one of the void
ballots The Regional Director resolved both objections against the Employer and the Em-
ployer duly excepted to his findings. We agree with the Employer to the extent that it argues
that the Regional Director committed an apparent oversight in not resolving the alleged
supervisory status of voter Dunn in the instance of the challenged ballot. We find it unneces-
sary to decide that issue nor the issue of the propriety of the Regional Director's ruling with
107 NLRB No. 64.
POINSETT LUMBER AND MANUFACTURING COMPANY 235
Regulations of the Board, the Regional Director conducted an
investigation of these objections and on September 9, 1953,
issued and duly served upon the parties his report on objections,
finding the objections to be without merit and recommending
that they be overruled and that the Petitioner be certified
as the exclusive bargaining representative of the employees
in the appropriate unit. The Employer timely filed exceptions
to the Regional Director ' s report and a supporting brief.3
The Employer asserts that on three different occasions
employees in the unit were either threatened with physical
violence or economic loss if they voted against the Petitioner
or in the event the Petitioner lost the election . Thus it is
alleged that 2 days before the election , as a group of employees
were sitting in the plant canteen, employee Hembree threatened
employee Brown with either loss of employment or physical
violence , depending upon how the Petitioner fared in the elec-
tion; that , on the day before the election , employee Temples
spoke in profane terms to two female employees , Stone and
Evatt, and threatened that they would be without employment
if the Petitioner won the election ; and that, on the day of the
election , employee Hawkins met employee LeCroy in the
plant, pointed a finger at him, and threatened to have "stooges"
after him if he, LeCroy , voted in the election . In each instance
the threats were either denied or it was contendedthat they
were made in an exchange of banter . The Regional Director
in his report concluded it was unnecessary to resolve the
conflicting versions as to the alleged threats because these
statements could not be attributed to the Petitioner as they
were made by rank-and-file employees who were not agents
of the Petitioner .' The Regional Director concluded further
that, taken together , these incidents do not reveal a pattern of
concerted effort by an organized group to intimidate the em-
ployees in the election.
The Employer , in substance , disputes the finding of lack of
agency, and argues further that the statements themselves
were sufficient to interfere with the election . As to the issue
of agency , it is well established that mere advocacy of the
Petitioner by rank - and-file employees does not constitute
them agents of the Petitioners Nor are the activities of
Temples as a paid election - day representative of the Peti-
tioner sufficient to hold the Petitioner accountable for the
alleged preelection threats made by him to Stone and Evatt,
respect to the void ballot in view of our disposition of the other objections and since it is clear
that the number of ballots involved are insufficient to affect the mathematical results of the
election
3The Employer 's request for oral argument before the Board is hereby denied, as the record,
including the exceptions and brief of the Employer , adequately presents the issues and the
positions of the parties.
4Temples and others received 5 dollars each from the Petitioner for services rendered
in assisting it on the day of the election The Regional Director found that the alleged state-
ments were not made in connection with the employees ' election- day duties.
sSee A Werman & Sons , Inc., 106 N LRB 1215, and cases therein cited.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where, as here, there has been no showing that the threats
were made in connection with these duties.' Accordingly, in
view of the foregoing and in absence of evidence that the Peti-
tioner either authorized or subsequently ratified the actions of
Hembree, Temples, and Hawkins, we find, in agreement with
the Regional Director, that these three employees were not
agents of the Petitioner.
Nor do we believe that these statements were, in and of
themselves, sufficient to prevent or to impair a free and un-
fettered choice of representatives as contemplated by the Act.
As to the conversations in which employees Temples and
Hawkins were involved, we are satisfied that they were mere
interchange of banter. T As the Regional Director found,
Temples, Stone, and Evatt each knew of the others' attitude
concerning the Petitioner and the conversation was accom-
panied by laughter on the part of Temples and Evatt. The re-
port also shows that Hawkins and LeCroy were old and good
friends, that Hawkins stated that both laughed during the
conversation, and that, at one point, LeCroy, in characterizing
Hawkins' attitude, said he "just didn't know how to take
(Hawkins)." As to the canteen incident, we think that, even
assuming a version most favorable to the Employer, this
isolated incident would not be enough to warrant setting the
election aside. 8
In its objections and more fully in its brief in support of
exceptions, the Employer contends that the election was held
at a time when four eligible voters were on duty with the
National Guard and were thereby deprived of the right to
participate in the election. The Regional Director found that
the Employer knew that these employees would be absent at
least 2 weeks before the election date was set but did not
communicate this fact to the Regional Director until after the
election in the form of objections thereto. We find, as did the
Regional Director, that this objection is untimely. The tally
of ballots shows that a substantial and representative number
of employees voted in the election. Indeed over 90 percent of
those eligible to cast ballots did so. Under these circumstances,
we agree that there is no merit in this objection.
As we have overruled the Employer's objections because
they do not raise substantial or material issues w-th respect
to the election and as it appears from the tally of ballots that
the Petitioner has secured a majority of the valid votes cast
in the election, we shall certify the Petitioner as the collective-
bar-gaining representative of the employees in the appropriate
unit.
6See E. I. DuPont de Nemours & Company, Inc. Construction Division, Savannah River
Plant, 105 NLRB 710.
T Like the Regional Director, we do not thereby condone the language used in the Temples
incident.
8See J. J. Newberry Company, 100 NLRB 84; E I. DuPont de Nemours & Company, Inc.,
supr ; A. Werman & Sons, Inc., supra
BROOKS WOOD PRODUCTS 237
[The Board certified International Union of Electrical , Radio,
and Machine Workers, CIO , as the designated collective-bar-
ganing representative of the employees of the Employer in the
unit found appropriate in the Decision and Direction of Elec-
tion herein.]
THOMAS W. BROOKS AND COLLIN BROOKS d/b/a BROOKS
WOOD PRODUCTS and INTERNATIONAL UNION, UNITED
AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLE-
MENT WORKERS OF AMERICA (UAW-CIO). Case No.
7-CA-719. November 30, 1953
DECISION AND ORDER
Upon a charge and amended charge filed by the International
Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, UAW-CIO, herein called the Union, the
General Counsel of the National Labor Relations Board, herein
called the General Counsel, by the Regional Director for the
Seventh Region ( Detroit, Michigan ), issued a complaint dated
December 12 , 1952, against Thomas W. Brooks and Collin
Brooks, d /b/a Brooks Wood Products , herein called the Re-
spondents , alleging that the Respondents had engaged in and
were engaging in certain unfair labor practices affecting com-
merce within the meaning of Section 8 (a) (1) and ( 3) and Sec-
tion 2 ( 6) and ( 7) of the National Labor Relations Act, as
amended (61 Stat. 136), herein called the Act. Copies of the
charges, the complaint , and notice of hearing were duly served
upon the' Respondents and the Union . The Respondents duly
filed their answer, in which they denied the commission of
any unfair labor practices.
Pursuant to notice , a hearing was held at West Branch,
Michigan , on January 26, 1953, and at Mio, Michigan , on various
dates between January 27 and February 19, 1953, before
Sydney S. Asher, Jr., the Trial Examiner duly designated by
the Chief Trial Examiner . The General Counsel and the Re-
spondents were represented by counsel ; the Union by its inter-
national representative . All parties participated in the hearing
and were afforded a full opportunity to be heard , to examine
and cross - examine witnesses , and to introduce evidence bear-
ing on the issues.
On July 6, 1953, the Trial Examiner issued his Intermediate
Report, finding that the Respondents had engaged in and were
engaging in certain unfair labor practices alleged in the
complaint , and recommending that they cease anddesistthere-
from and take certain affirmative remedial action . Thereafter,
the Respondents and the Union filed exceptions to the Inter-
mediate Report ; the Respondents also filed a supporting brief.
The Board has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
107 NLRB No. 71.
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