Brown- Dunkin Co.

National Labor Relations Board - Board Decisions

Oct 11, 1957

118 N.L.R.B. 1603 (N.L.R.B. 1957)

BROWN-DUNKIN COMPANY 1603
The contracting union in this case was certified by the Board in
1944 at a time precedent to the Taft-Hartley Act. As stated above
it is congressional policy to deny certifications to unions which are
not in compliance with the filing provisions of the Act. If we sus-
tain the contract-bar issue in this case, we will have the incongruous
effect of invoking our contract-bar rule in favor of a noncomplying
union in an inappropriate unit.24 It would seem that we would by
doing so doubly vitiate the intent of Congress.
- On the basis both of statutory construction and for reasons of
broad public policy, I would refuse to find the contract of District 50,
UMW, a bar. I would protect instead "the exercise by workers of
full • freedom of association, self-organization , and designation of
representatives of their own choosing . . ." by directing an immedi-
ate election in the appropriate unit sought by the Petitioner.
24 The Petitioner and the Employer would exclude , although the contract does not,
"guards and supervisors as defined in the Act, as amended ." Pecause I believe that the
Board should effectuate any policy expressed in the statute in applying its discretionary
rules, I do not believe that the Board should "apply its contract -bar rules where such
application will result in sustaining the contract of a union in a unit which the statute
prohibits the Board from certifying as an appropriate unit for purposes of collective
bargaining ." Columbia-Southern Chemical Corporation , 110 NLRB 1189 , 1190. I deem
recognition of the basic intent of Congress to exclude guards and supervisors from units
of employees relevant to the determination of any case arising under Section 9 (c) (1).
I note the majority's failure to specify the unit issues involved in this case and their
.sub 8ilentio adherence to the rule in American Dyewood Company, 99 NLRB 78, which
the Petitioner specifically asked the Board to reconsider.
Brown-Dunkin Company and Building Service Employees' Inter.
national Union, Local No. 245, Petitioner. Case No. 16-RC--$107.
October 11, 1957
SUPPLEMENTAL DECISION AND CERTIFICATION
OF REPRESENTATIVES
Pursuant to a Decision, Order, and Direction of Election' dated
July 10, 1957, an election by secret ballot was conducted on July 31,
1957, under the direction and supervision of the Regional Director
for the Sixteenth Region, among the employees in the unit found
,-appropriate in the above-mentioned Decision. Thereafter a tally
of ballots was furnished the parties, showing that out of 38 voters
casting valid ballots, 21 voted for the Petitioner, 10 voted against
the Petitioner, and 7 cast challenged ballots 2 On August 7, 1957,
the Employer filed objections to the election.
In accordance with the Board's Rules and Regulations, the Re-
gional Director conducted an investigation of the Employer's ob-,
'Not reported in printed volumes of Board Decisions and Orders.
2 The challenged ballots are insufficient to affect the results of the election.
118 NLRB No. 218.
1604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jections and on September 4, 1957, issued and duly served upon the
parties his report on objections, in which he recommended that the
objections be overruled and that the Petitioner be certified as col-
lective-bargaining representative of the employees in the appropriate
unit . Thereafter the Employer filed timely exceptions to the report
on objections.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this proceeding to a three -member panel [Members Rodgers, Bean,
and Jenkins].
Upon the entire record in this case, the Board finds :
1. The Employer's objections and exceptions all pertain to alleged
activities on behalf of the Petitioner prior to the election by Mabel
Webber, a supervisor of some of the employees in the unit. In its
exceptions to the Regional Director's disposition of the first objec-
tion, the Employer alleges that Webber's attendance at 2 of the 5
union meetings prior to the election, her statement at the second meet-
ing, and her urging of 1 of the porters to support the union all inter-
fered with the employees' free choice of a. representative. The
Regional Director found, and the Employer does not dispute, that
Webber's participation at the 2 meetings was limited to 1 statement
as the second meeting was breaking up to the effect that employees
were voting for their security and not a raise. As for her statements
to the porter, the Employer alleges only that the porter stated in an
affidavit that she told him that she and the other elevator operators
were for the Petitioner and wanted the porters to support them and
that she asked him how the porters were going. The Employer does
not place the time of these alleged conversations in relation to the
time of the election. In our opinion the activities of Webber in this
case are no different in character from those of Supervisor, Griffin
in Underwood Machinery Company .3 Accordingly, we find no merit
in the Employer's first objection.
2. In its second objection the Employer alleges that Webber's
appearance at the polls to vote interfered with the election. However,.
the mere appearance of a supervisor at the polls to vote without
further incident is no basis for setting aside an election,' and this
objection is also without merit.
3. In its third objection, the Employer alleged that Webber and
others acting in behalf of the Petitioner threatened and coerced em-
ployees voting in the election. The Regional Director found no evi-
' 80 NLRB 1264. The Board's decisions in Parkchester Machine Corporation, 72
NLRB 1410, and Robbins Tired Rubber Company, Inc., 72 NLRB 157, relied on by the.
Employer, are clearly distinguished as in those cases, unlike the instant case and the
Underwood case, there was evidence that the supervisors were active in soliciting member-
ships in the participating unions.
* Riteem Manufacturing Company, 114 NLRB 404, 400.
SHELL CHEMICAL CORPORATION 1605
dente that Webber or any other individual whose activities might
be attributed to the Petitioner engaged in threatening or coercive
conduct. In its exceptions the Employer points only to 1 statement
from a speech 5 read by Webber to the employees in the unit 2 days
before the election, apparently'at the request of the Employer. Under
the circumstances, this. statement does not constitute evidence of im-
proper conduct by Webber. Accordingly, we overrule the Employer's
objections and shall certify the Petitioner as the representative of
the employees in the appropriate unit.
[The Board certified Building Service Employees International
Union, Local No. 245, as the designated collective-bargaining repre-
sentative of the employees of Brown-Dunkin Company in the unit
found appropriate.]
'That statement was "If I (lid not [love you], you would not be here today." The
Employer set forth only a small portion of the speech in its exceptions and did not indi-
cate whetlier this statement was coupled with an appeal to vote for or against the
Petitioner or neither.
Shell Chemical Corporation and International Union of Operat-
ing Engineers , Local No. 501, AFL-CIO, Petitioner
Shell Chemical Corporation and Oil , Chemical and Atomic
Workers International Union , AFL-CIO, Petitioner. Cases Nos.
21-RC-4764 and 21-RC-4821. October 11, 1957
DECISION AND DIRECTION OF ELECTIONS
Upon petitions duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held on the consolidated cases
before Karl W. Filter, hearing officer. The hearing officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman Leedom and Members Murdock and
Rodgers].
Upon the entire record in these cases,' the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.
3. Questions affecting commerce exist concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1.) and Section2 (6) and (7) of the Act.
I The Employer's request for oral argument is denied as the record and briefs ade-
quately present the issues and the positions of the parties.
118 NLRB No. 219.