Allied Plywood Corp.

National Labor Relations Board - Board Decisions

Jan 15, 1959

122 N.L.R.B. 959 (N.L.R.B. 1959)

ALLIED PLYWOOD CORP. 959
and will exist whether or not he is permitted to vote in this election,
as his interests continue to remain with his permanent job.
Contrary to our dissenting colleagues, the issue here is not the
usual one of whether a guard may be included in a unit of nonguard
employees. It is, rather, whether the temporary employment as a
guard of any employee who will shortly return to his nonguard job
in the unit renders him ineligible to vote in that unit. In giving
limited recognition to the guard status of such an employee while he
is temporarily out of the unit, we are satisfied we have not indulged
in an inconsistency. We have, instead, recognized the obvious fact
that the interests of such an employee continue to remain with his
permanent job, and that he is therefore to be regarded, for purposes
of voting eligibility, no differently from any other employee in tem-
porarily laid-off status.
Under all the circumstances, we find that Akin, as an employee
temporarily laid off from his job within the unit, is eligible to vote
in the election. We therefore overrule the Regional Director's
recommendation that the challenge to his ballot be sustained, and
shall direct that his ballot be opened and counted.
[The Board directed that the Regional Director for the Seventh
Region, shall, within ten (10) days from the date of this Direction,
open and count the ballot of Gaylord Akin, and serve upon the
parties a revised tally of ballots, including therein the count of
this ballot.]
MEMBERS RODGERS and BEAN, dissenting:
The majority, as required by statute and by established precedent,
has excluded Gaylord Akin from the bargaining unit because he is
a guard. But having done so, it concludes that he is nonetheless
eligible to vote in this same bargaining unit from which he has been
excluded. Because we cannot subscribe to this inconsistency, we
would sustain the Regional Director's challenge to Akin's ballot and
would certify the Petitioner as the bargaining representative of the
employees in the unit herein.
Allied Plywood Corp . and Local 25 , International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of
America, Petitioner. Case No. 1-RC-5363. January 15, 1959
DECISION AND CERTIFICATION OF REPRESENTATIVES
Pursuant to a stipulation for certification upon consent election
executed on September 17, 1958, an election by secret ballot was
conducted on September 25, 1958, under the direction and super-
122 NLRB No. 116.
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vision of the Regional Director for the First Region of the National
Labor Relations Board, among the employees in the stipulated unit.
Following the election, the Regional Director issued and served on
the parties a tally of ballots, which shows that all 6 eligible voters
cast valid ballots, of which 4 were cast for, and 2 against, the
Petitioner. There were no void or challenged ballots.
On October 1, 1958, the Employer filed timely objections to con-
duct which it alleged affected the results of the election. After an
investigation, the Regional Director issued a report on objections
in which he recommended that the objections be overruled. The
Employer filed timely exceptions to the Regional Director's report,
and a supporting memorandum, in which it requests that the election
be set aside.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Rodgers and Jenkins].
The Board has considered the exceptions, and the entire record in
this case, and finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The Petitioner is a labor organization claiming to represent
certain employees of the Employer.
3. A question affecting commerce exists concerning the represen-
tation of certain employees of the Employer within the meaning
of Section 2(6) and (7) of the Act.
4. In agreement with the stipulation of the parties, the following
employees of the Employer constitute a unit appropriate for pur-
poses of collective bargaining within the meaning of Section 9(b)
of the Act : All drivers, warehousemen, and helpers employed by
the Employer at its Charleston, Massachusetts, place of business,
excluding all office and plant clerical employees, salesmen, guards,
professional employees, all other employees, and supervisors as de-
fined in the Act.
5. In its objections to the election, the Employer relies upon the
fact that Kenneth Feyler, an employee of another employer, re-
peated to several employees of the Employer on the day of the
election statements that he had overheard to the effect that em-
ployees of the Employer would be discharged if the Petitioner lost
the election. Feyler's account of the conversation to the employees
included the facts that it was overheard in the men's room and
that the voices he heard were not familiar to him. The Employer
contends that Feyler's remarks created a general atmosphere of
E. W. COSLE r & SONS 961
confusion and fear of reprisal which rendered a free election im-
possible.'
The Regional Director recommended that the objections be over-
ruled. He concluded that Feyler's conduct was not of such an
aggravated nature that it created a general atmosphere of fear of
reprisal rendering a free expression of choice of a representative
impossible.
The Employer, in its exceptions, contends that the findings of the
Regional Director are not supported by the evidence. In support
of its position, it refers to one of several affidavits which it sub-
mitted to the Regional Director purporting to show that four of
the voting employees were intimidated by Feyler's remarks.
We find no merit in the contention of the Employer. In evaluat-
ing preelection conduct, the Board concerns itself with whether the
specific act reasonably tends to interfere with a free choice of rep-
resentatives, and not with the subjective reaction of employees to
the alleged interference, and it accords less weight in this connec-
tion to conduct by a nonparty to the case than to conduct of the
parties? In the circumstances of this case, we find, contrary to the
Employer, that Feyler's remarks did not engender an atmosphere
of confusion or fear of reprisal which interfered with the election.'
Accordingly, we overrule the Employer's objections as recommended
by the Regional Director.
As we have found that the Employer's objections do not raise
material or substantial issues affecting the conduct of the election,
we hereby overrule them. Because the Petitioner has obtained a
majority of the valid votes cast, we shall certify it as the exclusive
representative of the employees in the stipulated unit.
.[The Board certified Local 25, International Brotherhood of
.Teamsters, Chauffeurs, Warehousemen and Helpers of America as
the designated collective-bargaining representative of the employees
ixl: the appropriate unit described in paragraph 4.]
I It is not contended that Feyler was an agent of either party. to this proceeding.
2 Orleans Manufacturing Co., 120 NLRB 630; Shovel Supply Company, 118 NLRB 815.
'The Employer requests a hearing if the Board finds that its exceptions raise substan-
tial and material factual issues. We find that no such issues are raised by the exceptions.
Harry Coslett, E. W. Coslett and Edward W. Coslett, Jr.,: d/b/a
E. W. Coslett & Sons and Local 1332 , International Long-
shoremen's Association (Independent ). Cage. No. 4 RC-685.
January 15, 1959
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before Seymour X. Alsher,
122 NLRB No. 115.
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