West Texas Equipment Co.

National Labor Relations Board - Board Decisions

Jun 20, 1963

142 N.L.R.B. 1358 (N.L.R.B. 1963)

1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
different agreement, then the refusal was not a violation of Section 8(a)(5) of the
Act.3°
There is a complete absence in this record of evidence that Respondents were
motivated by hostility to Local 309 as the bargaining agent for the employees of
their members, in any unit, and no independent acts of interference, restraint, or
coercion are alleged. Nor is there any evidence, aside from Day's unsupported as-
sertions, that Respondents were motivated by pressures put upon them to assign
lateral pipework to members of the Plumbers Union, rather than members of
Local 309.
I believe and find that it was a good-faith doubt as to the appropriate unit which
caused Respondents to refuse to bargain with Local 309 on the dates set forth in
the complaint, and that in so refusing to bargain in May and June 1962, Respond-
ents did not violate Section 8(a) (5) of the Act.
CONCLUSIONS OF LAW
1. Respondents Rock River Plumbing and Piping Contractors Association and
Davenport Association of Plumbing Contractors are engaged in commerce within
the meaning of the Act.
2. Local Union No. 309, International Hod Carriers, Building and Common
Laborers Union of America, AFL-CIO, is a labor organization within the meaning
of the Act.
3. Respondents have not engaged in unfair labor practices within the meaning
of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, conclusions of law, and the
entire record in the case, it is recommended that the complaint herein be dis-
missed.
10It will be recalled that Wendland in his letter to Day of June 18, 1962, in reply to
Day's letter of June 8 , while refusing further to negotiate with Local 309, did offer to
discuss "this matter" and to withdraw the refusal to negotiate if Day could convince
him that he was "wrong" in his view that the Quad-City contract covered the plumbing
contractors.
West Texas Equipment Company and International Union of
Operating Engineers , Local No. 191, AFL-CIO, Petitioner.
Case No. 16-RC-3250. June 00, 1963
DECISION ON REVIEW AND CERTIFICATION
OF RESULTS
Pursuant to a Decision and Direction of Election issued by the Re-
gional Director for the Sixteenth Region on December 18, 1962, an
election by secret ballot was conducted on January 15, 1963, under his
direction and supervision in an appropriate unit. Upon the conclu-
sion of the balloting, the parties were furnished with a tally of ballots
which showed that of approximately 30 eligible voters, 9 votes were
cast for, and 16 votes were cast against, the Petitioner and 5 ballots
were challenged. Thereafter the Petitioner filed timely objections to
conduct affecting the results of the election.
After an investigation, the Regional Director issued a Supplemental
Decision and Order on February 28, 1963, in which he found merit in
the Petitioner's objections and sustained them. He therefore directed
that the election heretofore conducted on January 15, 1963, be set aside
142 NLRB No. 140.
WEST TEXAS EQUIPMENT COMPANY 1359
and a new election ordered . On March 8 , 1963, the Employer filed
with the Board a request for review of the Regional Director's find-
ings and direction that a second election be held. On March 25,
1963, the Board by telegraphic order issued and served upon the
parties an order granting request for review and stayed the election
pending its decision on review . The Employer filed a brief in sup-
port of its request for review.
The Board has considered the entire record in this case , and makes
the following findings :
Objections Nos. 1, 2, and 3 related to alleged acts of interrogation
and interference with the freedom of choice of the eligibles by the
Employer's supervisors prior to the election. The investigation
showed that the petition in the instant case was filed on 4:45 p.m. on
September 13, 1962. At approximately 8:30 a.m. on the same day,
employee Blesson , upon reporting for work, was met by Supervisor
Rickman and informed that employees could "possibly lose a lot of
benefits , possibly go to a 40-hour week from a 48-hour week and
possibly be denied the practice of working on company machines dur-
ing slack periods." Evidence was contradictory as to whether these
remarks were initiated by Supervisor Rickman or prompted by ques-
tions advanced by Blesson . Later in the afternoon of the same day
Blesson was asked by Supervisor Morgan, "What do you think about
the union ?" Blesson replied , "Well, it had some good points and some
bad points ." Morgan then stated, "Well , I guess we could lose some
of our benefits. We could lose our retirement . I've only got a few
more years to go before I retire. " In addition to the above incidents,
Supervisor Peeks, at approximately 4 p.m., asked employee Tifton
W. Holcomb , "What do you think of this union talk?" Holcomb
expresed himself as being in favor of the Union.
The above incidents are the only Employer conduct found by the
Regional Director to have occurred between the day of the filing of
the petition , September 13, 1962, and the day of the election approxi-
mately 4 months later , January 15, 1963.
The Regional Director found that since the above conduct occurred
on the day the petition was filed, although prior to the time of filing,
it took place within the critical period under our rule in Ideal Electric
and Manufacturing Company, 134 NLRB 1275, and should therefore
be considered . He further found that such conduct was sufficient to
create an atmosphere which rendered the exercise of a free choice
impossible . He sustained the objections and directed that a new
election be held. The Employer in its request contended that conduct
occurring on the same day but prior to the time of the filing of a
petition is not within the critical period and therefore cannot be con-
sidered as conduct affecting the results of the election . Furthermore,
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Employer took exception to the Regional Director's finding that
the conduct interfered with the exercise of the employees' free choice.
We agree with the Regional Director that the Ideal Electric case,
supra, was not intended to, nor did it, overrule the Board's interpreta-
tion of the cutoff principle, as set forth in Joanna Western Mills Com-
pany, 119 NLRB 1789. It was there held, in effect, that any objec-
tionable conduct occurring on or after the day of the beginning of the
critical period (in the instant case the day of the filing of the petition)
would be consiedred on its merits as a basis for setting aside an elec-
tion. However, under all the circumstances, we find, contrary to the
Regional Director, that three incidents here involved, all occurring
more than 4 months before the election, one consisting of simple in-
terrogation and the other two of suggestions to a single employee
that benefits might be lost, are isolated and unsubstantial and are not
sufficient to warrant setting aside the election. We, therefore, over-
rule the objections. As the Petitioner has failed to secure a majority
of the valid ballots cast, we shall certify the results of the election.
[The Board certified that a majority of the valid votes was not
cast for the International Union of Operating Engineers, Local No.
191, AFL-CIO, and that said labor organization is not the exclusive
representative of the employees in the unit found appropriate.]
MEMBER BROWN, dissenting in part :
In disagreement with my colleagues, I would affirm the Regional
Director's decision to set the election aside and order a second elec-
tion. Two of the three incidents relied upon by the Regional Direc-
tor concern threats to the employees' jobs and their means of earning
a livelihood. It is difficult to conceive of conduct more likely to in-
terfere with an election.
Blake Rivet Company and International Association of Machin-
ists, District Lodge $ 94, Local Lodge x$311, Petitioner. Case
No. 21-RC-1921. June 20, 1963
DECISION AND ORDER CLARIFYING CERTIFICATION
On May 25, 1951, the Petitioner was certified as the bargaining
representative for all production and maintenance employees of the
Blake Rivet Company, South Gate, California, excluding all office
and clerical employees, watchmen, guards, professional employees,
and supervisors. Since then, the Employer and the Petitioner have
been parties to collective-bargaining agreements. Their current con-
tract of 2 years' duration expires on August 10, 1964.
142 NLRB No. 143.