Thomas Electronics, Inc.

National Labor Relations Board - Board Decisions

Sep 2, 1954

109 N.L.R.B. 1141 (N.L.R.B. 1954)

THOMAS ELECTRONICS, INC. 1141
WE WILL make whole Tomas Blanco , Hiram Fuster, Julio Rodriguez,
Charles Carroll , Radames Perez, and Julio Robles for any loss of pay suffered
as a result of the discrimination against them.
GENERAL PAPER WORKERS LOCAL 679 , INTERNATIONAL
BROTHERHOOD OF PULP, SULPHITE AND PAPER MILL
WORKERS, AFL,
Labor Organization.
Dated---------------- By------------------------------------------- -°-
(Representatlve ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered , defaced, or covered by any other material.
THOMAS ELECTRONICS , INC. and INTERNATIONAL UNION OF ELECTRICAL,
RADIO AND MACHINE WORKERS, CIO, PETITIONER . Case No. 2-RC-
6124. September 2,1954
Supplemental Decision and Certification of Representatives,
Pursuant to a Decision and Direction of Election,' issued on De-
cember 29, 1953, in the above proceeding, an election by secret ballot
was conducted on January 21, 1954, under the direction and super-
vision of the Regional Director for the Second Region, among the
Employer's production and maintenance employees. At the conclu-
sion of the election, the parties were furnished with a tally of ballots
which shows that, of approximately 450 eligible voters, 356 cast bal-
lots , of which 140 were for the Petitioner, 99 were for the Intervenor,2
9 were cast against participating labor organizations, and 108 were
challenged. The challenges were sufficient in number to affect the re-
sults of the election.
On January 25, 1954, the Intervenor filed timely objections to con-
duct which it alleged interfered with the results of the election. Aftdr
an investigation, the Regional Director, on May 20, 1954, issued and
duly served upon the parties his report on objections and challenged
ballots. In his report, the Regional Director found the objections to be
without merit and recommended that they be overruled. As to the
challenged ballots, the Regional Director recommended that the chal-
lenges to 97 ballots be sustained, and that the Petitioner be certified,
since the remaining 11 challenges, which he recommended be over-
ruled, were insufficient in number to affect the results of the election.
On June 21 and June 25, 1954, the Employer and the Intervenor,
respectively, filed timely exceptions to the Regional Director's reports
1 Thomas Electronics , Inc., 107 NLRB 614.
8 Local 1846, International Brotherhood of Electrical Workers, AIL.
8 The Petitioner also filed timely exceptions in which it requested that the Regional
Director 's report be affirmed in its entirety. However, in the event that the Board directed
,hearings on the Employer 's and Intervenor 's exceptions, the Petitioner alternatively, ex-
cepted to the Regional Director 's determinations as to certain challenged ballots. In the
view we take of this case, we find it unnecessary to consider the Petitioner 's alternative
exceptions
109 NLRB No. 165.
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in this case, the Board finds : 4
The Objections
As no party excepted to the findings of the Regional Director with
respect to objection number 5 in the Regional Director's report, we
adopt his findings and overrule this objection. However, exceptions
were filed by the Intervenor and/or the Employer to the following
objections :
Objection no. 1: The Intervenor alleges that the Petitioner coerced
and intimidated voters at the time of the election. The Regional Di-
rector found no evidence of intimidation or coercion. The Intervenor
excepts, but submits no persuasive evidence to substantiate its allega-
tion. We, therefore, overrule this objection.
Objection no. 2: The Intervenor alleges that lack of facilities caused
employees to refrain from voting and that employees on the third
shift were not given an opportunity to vote.
As to the alleged lack of voting facilities, the Regional Director
reports that the election was conducted in a vacant store, used as a
cafeteria, on the Employer's premises; that 3 checking tables and 3
voting booths were used, with 4 Board agents and 2 observers for each
party present at all times; that only 25 of the 321 employees who were
at work on the day of the election failed to vote; that the observers
for each of the parties, upon the completion of the election, certified
that the election was fairly conducted; and that all eligible voters
were given an opportunity to cast their ballots. He concludes that
the polling facilities were adequate. The Intervenor contends, how-
ever, that it was very cold on the day of the election; that many em-
ployees refused to stand in line outside the building in order to vote;
and that the observers, who were inside the building, were not in a po-
sition to know the weather conditions outside and their certifications
should not be relied upon. The Employer also challenges the Re-
gional Director's finding on this objection, contending that the Peti-
tioner wrongfully caused ineligible voters to congregate at the polls,
and that the resulting confusion caused a great delay in the voting
apparatus so that 25 eligible employees refused to wait and vote on
their own time, rather than, as 3 other employees, on company time.
We find no merit in the Employer's and Intervenor's contentions.
The alleged ineligible employees clearly had a right to vote subject
to challenge. And the claims of inadequate voting conditions are
rebutted by the failure of only a small number of plant employees to
vote, and the lack of evidence of any objection either to the voting
^ The Intervenor 's request for oral argument before the Board is denied inasipuch as
the report and the exceptions and briefs adequately state the positions of the parties.
THOMAS ELECTRONICS, INC. 1143
place or voting hours at the time of the election itself. We shall
therefore, overrule this objection.'
With respect to the third-shift employees, the Regional Director
reports that the polls were open from 2 to 5 p. m., and that the notice
of election set forth releasing time for only the first and second shifts
because no party had mentioned the existence of a third shift at the
preelection conference. Although no specific provision was thus
made for the third shift, which begins work at 10: 30 p. in., 3 of the-7
employees on this shift actually voted in the election, and of the re-
maining 4, 2 were absent from work on the day of the election. The
Regional Director concludes that all employees had sufficient chance
to vote. The Employer and the Intervenor contend that, although no
party mentioned the third shift at the time of the preelection confer-
ence, failure to provide specifically for that shift is a fatal defect in-
the election since it resulted in the disenfranchisement of these em-
ployees. We cannot agree. Both the Employer and the Intervenor
knew of the existence of the third-shift employees before the election
time was set, but did not communicate this fact to the Regional Di-
rector until after the election in the form of objections thereto.
Moreover, some of these employees in fact voted and the remaining
two who were present on the day of the election, but did not vote, are
insufficient in number to affect the results. We find, under these cir-
cumstances, that this objection should be overruled.'
Objection no. 3: The Intervenor alleges that Rose Lapinsky was
ineligible to act as observer for the Petitioner. The Regional Direc-
tor found that Rose Lapinsky, challenged by the observers for the
Employer as a permanently laid-off employee, qualified as a proper
observer since her eligibility as a voter was undetermined at the time
of the election. The Employer and the Intervenor, however, contend
that the mere presence, as an observer, of this individual whom the
Regional Director elsewhere in his report finds ineligible because she
was permanently laid off, was an improper influence on the voters.
We find no merit in this contention. Apart from other considera-
tions, inasmuch as Lapinsky's eligibility to vote as a laid-off employee
had not been determined at the time of the election, she was entitled
to be considered an employee for the purpose of acting as an observer
at the time of the election.' We shall, therefore, overrule this objec-
tion.
Objection no. 4: The Intervenor alleges that the Petitioner issued
circulars that contained untrue statements. The Regional Director
found that the circulars distributed by the Petitioner were mere cam-
5 Cf. Valencoa Service Company , 99 NLRB 343; S. W. Evans & Sons, 75 NLRB 811, 813;
The Cambria Clay Products Company, 47 NLRB 284.
e Poinsett Lumber and Manufacturing Company, 107 NLRB 234.
a Cf. Soerens Motor Company, 106 NLRB 1388; California Almond Growers Exchange,_
73 NLRB 1367, 1373.
1144 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
paign propaganda, contained no threats or intimidatory statements,
and were not otherwise improper. The Intervenor contends that the
leaflets distributed by the Petitioner were "outrageously false, inflam-
matory and coercive," but specifically detailed no evidence to substan-
tiate its claim. We shall, therefore, overrule this objection.8
The Intervenor also contends in its exceptions that the election should
be set aside because: (1) Its contract with the Employer was a bar to
the election; (2) the Board should abandon the 10-day rule in contract-
bar cases; and (3) 157 employees have, since the election, repudiated
the Petitioner and reaffirmed the Intervenor as their bargaining rep-
resentative.
For reasons stated in the original decision herein, we find no merit
in objections (1) and (2). With respect to (3), the Board has held
that a repudiation by employees of an election, made, as here, only
about a month after the election, may not overturn and void the elec-
tion results, because conclusive effect must be given to the results of a
Board-conducted election for a reasonable period.9 We find, there-
fore, that the alleged repudiation here does not constitute a basis for
setting aside the election.
The Employer further contends in its exceptions that (1) the Board
erred in directing an election herein and a rehearing should be granted
particularly on the unit issue; (2) the failure of the field examiner
to grant an oral hearing on the objections and challenges was reversi-
ble error; and (3) all proceedings should be stayed pending a hearing
on the unfair labor practice charges filed by the Petitioner and on the
objections to the election. These contentions are without merit.
As to (1), these matters were previously considered in the original
decision herein. With respect to (2), the field examiner was not re-
quired to grant a hearing in the course of his investigation.10 As to
(3), there is no basis for withholding a decision herein until the dis-
position of Petitioner's unfair labor practice charges which Petitioner
did not raise as objections to the election. And we perceive no reason
to hold a hearing on the objections which raise no substantial and
material issues of fact and, as already mentioned, have been overruled.
The Challenged Ballots
The Employer filed exceptions to 25 challenges interposed by the
Petitioner and sustained by the Regional Director ."' Of these 25, we
find it necessary to discuss only the following :
e Cf. Wiley Mfg., Inc., 93 NLRB 1600.
Soerens Motor Company, 106 NLRB 1388; Luckenbach Steamship Company, Inc., 103
NLRB 1; Radiant Lamp Corporation, 74 NLRB 1338, 1343.
10 See Sec . 102.61 of the Board 's Rules and Regulations , Series 6, as amended.
u In its exceptions, the Intervenor stated that it would not discuss the Regional Direc-
tor's resolutions of the challenged ballots because "these matters are fully covered by the
Employer 's memorandum."
THOMAS ELECTRONICS, INC. 1145;
Alfred Johansen, John Bertschy, and Maynard Stanley. The, Re;
gional Director's investigation discloses that these three employees
comprise the methods department which checks on production flow in
the plant, determines the cause of any bottlenecks, and attempts to
rectify the cause by suggesting changes. All three employees are paid-
on a salaried basis, earn substantially more than production employees,
do not punch a time clock, and have their headquarters in the basement
of the building which houses the general offices. Johansen, the ap-
parent leader of the group, reports directly to the president of the.
Employer. Bertschy does drafting and layout work. He has a col-
lege degree in mechanical engineering and has a background of draft-
ing experience.12 Stanley works on time study, production methods,
and flow of materials and observes operation of equipment. The Re-
gional Director concluded that Johansen, Bertschy, and Stanley are
technical employees lacking a community of interest with production
and maintenance employees in the unit, and recommended that the,
challenges to their ballots be sustained.13 The Employer excepts on
the grounds, in substance, that these employees are only time-study
men who determine methods for improving plant efficiency, that they
work in the production areas and determine proper work sequence,
and that on certain jobs, they may do actual production work in order
to arrive at proper methods of production. However, on the basis of.
the Regional Director's essentially uncontroverted findings, we find
that these employees are at least technical employees with interests
diverse from the employees in the unit and, we shall, therefore, sus-
tain the challenges to their ballots 14
Herbert Schloss, Henry Hartman, and Donald Fisher, according
to the Regional Director's findings, work in the equipment develop-
ment engineering department which is concerned with the design and-
development of equipment to be used in the manufacture of new items,,
or to rectify design faults in existing plant equipment. This depart,
ment is headquartered in a separate room on the third floor of build-
ing-4. Schloss, who is salaried and has a desk in the equipment engi-
neering section, selects, develops, and erects manufacturing equipment,
throughout the plant. He has a college degree in administrative
engineering and is a member of The American Society of Mechanical,
Engineers. Hartman, also salaried, is employed as a draftsman in
the drafting section. He has a college degree in mechanical engineer-,
12 A challenge to Bertschy 's ballot was sustained in Thomas Electronics , Inc., 104 NLRB
No. 48 ( not reported in printed volumes of Board Decisions and Orders ), on the ground
that be was a technical employee. The Regional Director here found that Bertschy 's tech-
nical duties have increased since that decision.
33 The Regional Director also found that Johansen is a supervisor . We do not pass on
this determination.
u Heintz Manufacturing Co., 100 NLRB 1521 , 1527 ; Welding Ship Yards, 81 NLRB 93a.-
941 (draftsmen ) ; F. W: Sickles, 81 NLRB 390 (layout employees and methods engineers) ;.
Efoo Manufacturing, Inc., 97 NLRB 263 (time-study men).
.1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-iiig and is a member of the Professional Engineering Society of New
Jersey. Fisher is a design draftsman and is engaged in designing
equipment. He is paid on an hourly basis but does not punch a time
-dlock. The Regional Director concludes that Schloss, Hartman, and
Fisher are technical employees lacking a community of interest, with
the production and maintenance employees, and recommend that the
-dlial'lenges to their ballots be sustained. The Employer, in its excep-
tions, contends that Schloss is essentially a machinist and that, al-
- though he is admittedly a graduate engineer, his "responsibilities from
an engineering standpoint are at a bare minimum." Hartman, ac-
cording to the Employer, merely does routine detail, not requiring
" %pecial" training, and Fisher also does merely routine mechanical
-drawing, although admittedly this requires high school training plus
several years" experience. In view of the admitted educational back-
ground of these employees and the nature of their related work, we
- End that Schloss, Hartman, and Fisher are at least technical employees
-And we shall, therefore, sustain the challenges to their ballots. 15'
Edward J. Lisovicz and Edgar Smith, according to the Regional
Director, work in the tube engineering department. Lisovicz is an
engineer whose duties are to check the quality of material going into
-dlectron guns used in television tubes and to check the process and
n`laterials used in the manufacture of television tubes. He is employed
in a salaried basis and does not punch a time clock. He has a college
degree in electrical engineering and is a member of Tau Beta Pi, an
hbnorary engineering society. Smith is a tube engineer presently
concerned primarily with the development of color tubes. He also
is salaried and does not punch a time clock. He has a degree in chem-
ical engineering and is also a member of Tau Beta Pi. The Regional
]litector concludes that both Lisovicz and Smith are technical ern-
ployees, and recommends that the challenges to their ballots be sus-
tairied .is The Employer excepts as to Lisovicz on the ground that
he does some manual work and his duties are "routine." As to Smith,
the Employer claims that he is working on production work connected
with color tubes but that the Employer is not engaged in tube develop-
ment because such information is supplied by the tube producers.
However, the Employer does not controvert the educational back-
ground of these employees, nor the need for such training in their
work. We find, as did the Regional Director, that these employees
are at least technical employees. Accordingly, we shall sustain the
challenges to their ballots.
Is Welding Ship Yards , supra. Contrary to the EmploYet 's contention , Schloss is clearly
different from Garrigus , found not to be a technical employee in 'Thomas Electronic, Inc,
104 NLRB No . 48 (not reported in printed volumes of Board Decisions and Orders).
Aiiibng other fhing§, there is no evidence that Schloss whs•hired as a machinist, as was
darrigus, and Gartigus also lacked Schloss' professional background '
la The challenge to the ballot of Lisoviez was sustained in Thomas Electronic, Inc., 104
NLRB No. 48 ( see footnote 15, supra ), on the ground that he was a technical employee
NORTH EAST TEXAS MOTOR LINES, INC. 1147
As we have found that the challenges to 8 ballots excepted to by the
Employer should be sustained, we find it unnecessary to pass upon the
remaining 17 challenges also contested by the Employer. The latter
17 ballots plus the 11 challenges recommended to be overruled by. the
Regional Director (concerning which, in view of our decision, no
exceptions are before us) are insufficient to affect the results of tie
election. Accordingly, as the Petitioner secured a majority of. the
valid votes cast, we shall, as recommended by the Regional Director,
certify the Petitioner as the bargaining representative of the ,em-
ployees in the appropriate unit.
[The. Board certified International Union of Electrical, Radio and
Machine Workers, CIO, as the designated collective-bargaining repre-
sentative of the employees of the Employer, in the unit found appro-
priate in the Decision and Direction of Election herein.]
MEMBERS MURDOCK and RODGERS took no part in the consideration
of the above Supplemental Decision and Certification of Repre-
sentatives.
NORTH EAST TEXAS MOTOR LINES, INC. and RALPH G. DONLEY and
DALLAS GENERAL DRIVERS, WAREHOUSEMEN, AND HELPERS, LOCAL
UNION 745, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAU--
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, PARTY TO
THE CONTRACT
NORTH EAST TEXAS MOTOR LINES, INC. and M. D. O'NEAL and
DALLAS GENERAL DRIVERS, WAREHOUSEMEN, AND HELPERS, LOCAL
UNION 745, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, PARTY TO
THE CONTRACT
NORTH EAST TEXAS MOTOR LINES, INC. and V. J. EISELE and
DALLAS GENERAL DRIVERS, WAREHOUSEMEN, AND HELPERS, LOCAL.,.
UNION 745, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, PARTY TO
THE CONTRACT
NORTH EAST TEXAS MOTOR LINES, INC. and CHARLES M. GRIMES qnd
DALLAS GENERAL DRIVERS, WAREHOUSEMEN, AND HELPERS, LOCAL
UNION 745, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, PARTY TO
THE CONTRACT
DALLAS GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS , LOCAL
UNION 745, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAu-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL Lend RALPH
G. DONLEY and NORTH EAST TEXAS MOTOR LINES, INC., PARTT TO
THE CONTRACT
109 NLRB No. 171.