R. H. Osbrink Manufacturing Co.

National Labor Relations Board - Board Decisions

Nov 8, 1955

114 N.L.R.B. 940 (N.L.R.B. 1955)

940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With regard to our administrative experience we find from a review
of many representation cases coming before us that the Petitioner
has not traditionally and historically represented on a separate craft
or departmental basis electricians, carpenters, pipefitters, millwrights,
automobile garage mechanics '12 or locomotive engineers, brakemen,
and/or conductors.12
Under the circumstances, we deny the request to sever these separate
groups from the existing production and maintenance unit. Accord-,
ingly, we shall dismiss the petitions for separate units of electricians,
carpenters, pipefitters, millwrights, automobile garage mechanics, and
locomotive engineers , brakemen, and/or conductors.
[The Board dismissed the petitions.]
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
union does not establish that the Petitioner is a union which traditionally represents the
type of railroad employee sought herein . Nor does the fact that an affiliate of the Inter-
national-namely the Railway Employees ' Department-may be principally concerned
with representing certain types of railway employees establish that the Petitioner tradi-
tionally represents locomotive engineers , conductors , and brakemen.
12 See American Cyanamid Co., and Cincinnati Division, Davison Chemical Company,
Division of W R. Grace & Company, footnote 6, supra . Also see Southbridge Finishing
Company, 108 NLRB 54. Cf. Crowell Carton Company, 111 NLRB 528. In addition, we
note that the Board does not customarily grant craft or departmental severance to auto-
mobile garage mechanics
13 See Goodyear Engineering Corporation , 100 NLRB 971 , 973, wherein , although the
International Brotherhood of Firemen and Oilers asserted their representation of heating
plant and powerhouse employees , they did not seek to represent the engineers and brake-
men who were placed in the production and maintenance unit rather than in the machin-
ists and diesel mechanic unit requested by another union; and St. Johns River Ship-
building, 59 NLRB 415 , 418, wherein the Board noted that "railroadmen differ materially
in skill, function , and interests , from the bulk of operating engineers . . . Also see
Ravenna Arsenal, Inc., 100 NLRB 1129 ; Western Equipment Company, 96 NLRB 1376;
Gifford-Hill & Company, Inc., et at., 90 NLRB 428 , Southland Paper Mills , Inc., 81 NLRB
330; General Motors Corporation, 64 NLRB 688 ; Day & Zimmermann, Inc., 39 NLRB
1313; Utah Copper Company, et al., 23 NLRB 1160, as examples of the types of units of
railway employees and the unions which have sought to represent the various groups.
R. H. Osbrink, M. E. Osbrink and Berton W. Beals as Trustees,
Co-partners, doing business under the firm name and style of
R. H. Osbrink Manufacturing Company and International
Union, United Automobile , Aircraft and Agricultural Imple.
ment Workers of America, C. I. O. (UAW-CIO), Petitioner.
Cage No. 21-RC-2262. November 8,1955
SUPPLEMENTAL DECISION AND CERTIFICATION OF
REPRESENTATIVES
On August 19, 1955, pursuant to an Order and Direction of Second
Election issued in the above-entitled proceeding on August 3, 1955,'
3 Not reported in printed volumes of Board Decisions and Orders.
114 NLRB No. 147.
R. H. OSBRINK MANUFACTURING COMPANY 941
an election by secret ballot was conducted under the direction and
supervision of the Regional Director for the Twenty-first Region,
among the employees in the unit heretofore found appropriate. Upon
the conclusion of the election, a tally of ballots was furnished the
parties. The tally shows that of approximately 293 eligible voters,
'288 cast ballots, of which 190 were for the Petitioner, 68 were against
the Petitioner, 26 were challenged, and 4 were void.
On August 23, 1955, the Employer timely filed objections to the
election and served a copy thereof upon the Petitioner.' The Regional
Director investigated the objections and on September 30, 1955, issued
and duly served upon the parties a report on objections in which he
recommended that the objections be overruled. Thereafter, the Em-
ployer timely filed exceptions to the Regional Director's report.
The Employer objected to the election on the following grounds :
(1) During the election, observers for the Petitioner wore shirts
which bore the name and emblem of the Petitioner in such manner as
to be visible to all voters. .
(2) During the election, persons wearing shirts with the same type
of emblem congregated about the area in which the polls were located.
(3) During the election, persons wearing the aforementioned type
of shirts engaged in electioneering in behalf of the Petitioner in the
area where the polls were located.
(4) In a leaflet distributed to employees on August 19, 1955, the
Petitioner offered the employees substantial consideration if they
voted for the Petitioner in that a "victory party" was promised the
employees if the Petitioner won the election.
(5) In another leaflet distributed to employees, the Petitioner
stated falsely that all unfair labor practice charges filed by the Pe-
titioner against the Employer had been upheld by the Federal courts.
(6) Since April 1, 1955, the Petitioner has falsely reported to em-
ployees the events and circumstances surrounding court action on the
unfair,labor practice charges filed by the Petitioner against the Em-
ployer as well as the events and circumstances having to do with the
direction of election in this proceeding.
As to objections (1) and (2) above, the Regional Director reported
that during the election one of the Petitioner's observers wore a T-shirt
bearing the Petitioner's emblem, approximately 55/8 inches in diameter,
imprinted on the' front thereof. In addition, an undetermined but
.substantial number of voters wore the same emblematic T-shirt. How-
2 The Petitioner contended that a copy of the objections was not timely served upon it.
The Regional Director found that this objection was without merit and recommended that
it be overruled. As no exceptions have been filed thereto, we hereby adopt the Regional
-Director's crecommendation and overrule this objection.
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ever, there was no unusual congregation of persons in the voting area.
The Regional Director rejected the Employer's contention that the
open wearing of the emblem by the Petitioner's observer and other
adherents constitutes electioneering at the polling places and is an
abuse of the Board's election processes. The Regional Director relied
for his conclusion upon other cases in which the Board has held that
the wearing of stickers, buttons, or similar insignia at an election by
participants therein, including election observers, is not prejudicial
to the fair conduct of an election.'
As to objection (3) above, the Regional Director stated that the
Employer furnished no evidence in support thereof.
As to objection (4) above, the Regional Director found that on the
day of the election the Petitioner distributed a leaflet in which it
urged employees to vote for it and then attend a victory party that
evening. The Employer contended that there could be no victory
party unless the Petitioner won the election, and that the invitation
to attend the party was therefore conditioned upon their voting for
the Petitioner-a form of bribe. The Regional Director disagreed
with the Employer's interpretation of the invitation and considered
it to be a' legitimate form of campaign propaganda.
As to objections (5) and (6) above, the Regional Director stated
that, under the holding in the Woolworth, case,' he was precluded from
considering as objections to the election leaflets distributed before
August 3, 1955, the date of the Board's Order and Direction of Second
Election. However, he did discuss two leaflets distributed to em-
ployees on August 4 and 10, 1955, respectively. The first leaflet was
a true copy of a notice to all employees which was attached to and made
a part of the Board's unfair labor practice order against the Employer
as well as of the court decree which enforced the Board's Order.' On
the leaflet, above the copy of the notice to employees, the Petitioner
had placed the following : "Flash. U. S. Supreme Court acts. Here
is the final decision as ordered by the United States Supreme Court on
August 1, 1955, upholding the UAW-CIO charges of unfair labor
practices against the R. H. Osbrink Manufacturing Company." Be-
low the notice to employees, the leaflet declared : "This Supreme Court
Order is now in the hands of the National Labor Relations Board in
Washington, D. C. Your election should be ordered most any day
now." The Employer contends that the leaflet was false because it
represented the notice as being a decision of the Supreme Court rather
3 Western Electric Company, 87 NLRB 183, 184; Craddock-Terry Shoe Corporation,
80 NLRB 1239, 1243.
* F W Woolworth Co., 109 NLRB 1446.
61? If Osbrink Manufacturing Company, 104 NLRB 42, 106 NLRB 16, enfd 218 F. 2d
341 (C A 9), cent denied 349 U. S 928
R. H. OSBRINK MANUFACTURING COMPANY 943
than of the court of appeals, which was the fact. The Supreme Court
had merely denied the petition for certiorari filed by the Employer.
On August 10, the Petitioner distributed to employees a true copy
of the United States Court of Appeals decree enforcing the Board's
Order. The copy of the decree was attached to a leaflet which correctly
described the decree as having been made by the court of appeals. But
it also added that "This decision made by the highest court in the land,
is an indication that the UAW-CIO's charges of unfair labor practices
and objections to the 1952 N. L. R. B. Osbrink election had merit and
justice prevailed in the end." The Employer asserted that the leaflet
falsely called the court of appeals decree a decision "by the highest
court in the land" and that by the misrepresentation in these two
leaflets, a free election was made impossible.
The Regional Director expressed the opinion that the contents of the
August 4, 1955, leaflet were not so misleading as to have affected the
results of the election.' In any event, the thought that the leaflet of
August 10, to which was attached a copy of the decree of the United
States Circuit Court of Appeals cured the alleged "falsely reported"
matter in the leaflet of August 4. He concluded that the distribution
of the two leaflets did not interfere with the employees' free choice
in the election and therefore recommended that objections (5) and (6)
be overruled.
In its exceptions to the Regional Director's report and in its brief
in support of the exceptions, the Employer has not challenged the fac-
tual findings of the Regional Director but only his conclusion that
these objections did not justify -setting aside the election. For the
reasons stated by the Regional Director, we find that the Employer's
objections do not raise substantial and material issues with respect to
the conductor results of the election. Accordingly, we hereby overrule
,the objections. As the Petitioner has secured a majority of the valid
votes cast in the election, we shall certify it as exclusive bargaining
representative of employees in the appropriate unit.
[The Board certified International Union, United Automobile, Air-
craft and Agricultural Implement Workers of America, C. I. O.
(UAW-CIO), as the designated collective-bargaining representative
of the employees of R. H. Osbrink, M. E. Osbrink and Berton W. Beals
as trustee, co-partners, doing business under the firm name and style of
R. H. ^Osbrink Manufacturing Company, Los Angeles, California, in
the unit found appropriate.]
MFcBF& M`oxvocx took no part in the consideration of the above
Supplemental Decision and Certification of Representatives.
11 See Phelps Dodge Corporation, 62 NLICB 1257.'