Carter-Lee Lumber Co.

National Labor Relations Board - Board Decisions

Jan 21, 1958

119 N.L.R.B. 1374 (N.L.R.B. 1958)

1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have found that employees in the production voting group may
also constitute an appropriate unit if the employees in the mainte-
nance voting group vote for separate representation. If employees
in the maintenance voting group do not vote for separate representa-
tion, they must be included in the production and maintenance unit.
Accordingly, if a majority of the employees in group (1) select the
Operating Engineers as their representative, they will be taken to
have indicated their desire to constitute a separate bargaining unit
and the Regional Director conducting the election is instructed to
issue a certification of representatives to the Operating Engineers for
such, unit, which the Board, under these cirmumstances, finds to be
appropriate for the purposes of collective bargaining. In the event
a majority of the employees in voting group (2) select the OCAW as
their representative, the Regional Director is instructed to issue a
certification of representatives to the OCAW for a unit of production
employees, which the Board, in these circumstances, finds to be ap-
propriate for purposes of collective bargaining. On the other hand,
if a majority in voting group (1) do not select the Operating En-
gineers, the ballots of the employees in voting group (1) will be
pooled with those of the employees' voting group (2).1 If the OCAW
achieves a majority of the votes in the pooled group, the Regional
Director is instructed to issue a certification of representatives to that
labor organization for a unit of production and maintenance em-
ployees, which the Board, in such circumstances, finds to be appro-
priate for the purposes of collective bargaining
[Text of Direction of Elections omitted from publication 1
9 If the votes are pooled they are to be tallied in the following manner votes for the
,Operating Engineers shall be counted as valid votes, but neither for nor against the
OCAw, all other votes are to be accorded their face value whether for the OCAW or for
no union
Carter-Lee Lumber Company and Local 135, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America.' Case No. 35-RC-1386. January 21, 1958
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
Pursuant to a stipulation for certification upon consent election
executed on December 5, 1956, an election by secret ballot was con-
ducted on December 19, 1956, by the Regional Director for the Ninth
Region, among the employees in the stipulated appropriate unit. At
i The Board has been notified by the AFL-CIO that the latter deems the Teamsters'
certificate of affiliation has been revoked by convention action. The identification of this
Union is amended accordingly
119 NLRB No 167.
CARTER-LEE LUMBER COMPANY 1375
the close of the election a tally of ballots was furnished the parties.
The tally shows that there were approximately 33 eligible voters, of
whom 14 voted for the Petitioner, 14 voted against the Petitioner, and
5 voted under challenge?
On December 27, 1956, the Petitioner timely filed objections to con-
duct affecting the results of the election. The Regional Director inves-
tigated the objections and on May 8, 1957, issued and duly served upon
the parties a report on objections, in which he recommended that cer-
tain objections be sustained and the election set aside. The Employer
timely filed exceptions to the report together with a supporting brief.
On August 22, 1957, the Board issued an order directing a hearing
on certain of the objections. The Board's order stated "that the hear-
ing officer designated for the purpose of conducting the hearing shall
prepare and cause to be served upon the parties a report containing
resolutions of the credibility of witnesses, findings of fact, and recom-
mendations to the Board as to the disposition of said objections. Pur-
suant to the Board's order, a hearing on the objections was held on
September 11-14, 1957, before Gerald S. Patterson, hearing officer.
All parties appeared and participated in the hearing. The hearing
officer's rulings at the hearing are free from prejudicial error and are
hereby affirmed. On November 26, 1957, the hearing officer issued and
duly served upon the parties a report on objections to elections, a copy
of which is attached hereto, in which he found that certain of the
Employer's conduct interfered with the election. He therefore recom-
mended that the election of December 19, 1956, be set aside and a new
election directed. Within the time provided therefor, the Employer
filed exceptions to the hearing officer's report and a brief in support
of the exceptions.
The Board has considered the hearing officer's report, the exceptions,
the briefs, and the entire record in the case, and hereby makes the
following findings : 3
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
2 One of the challenges was made by the Petitioner on the ground that the challenged
voter was a guard ; the other challenges were by the Employer allegedly because these
voters had been permanently laid off before the election . The Petitioner filed charges
alleging that the four individuals challenged by the Employer were discriminatorily
discharged . These charges were subsequently dismissed by the Regional Director.
s Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Chairman Leedom and
Members Bean and Jenkins].
1376 DECISIONS OF, NATIONAL LABOR. RELATIONS BOARD
4. The following employees of the . Employer constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act:
All truckdrivers , yardmen, yard maintenance man, laborers, and
forklift operators employed by the Employer at its Indianapolis, Indi-
ana, lumberyard , excluding office clerical employees , mill employees,
professional employees , guards, and supervisors as defined . in the Act.
5. The hearing officer found that Supervisor Baxter threatened
employees with retaliatory action if the Petitioner won the election,,
and that 2 officers of the Employer individually interviewed about
50 percent of the eligible voters, either in the private offices of these
officials or in an "upstairs room" which insured privacy , in order
to urge the employees to vote against the Petitioner . The hearing
officer further found that by such conduct the Employer prevented a
free election.
The Petitioner made five objections to the election . The Regional
Director in his report recommended no disposition of objection 1,
overruling of objection 5, and setting aside the election because of
objection 4 4 The Employer filed exceptions ' to the report . There-
upon , the Board directed a hearing on four . matters which are set out,
verbatim in the hearing officer's report attached hereto. The hearing
officer recommended that the objection embodied in issue 1 be over-
ruled as without merit, but that the objections defined . in the other
issues be sustained and the election set aside . As set forth above, the
Employer has excepted.
The Employer contends , that issue 41 as outlined in the Board's
notice of hearing was outside the scope of the Petitioner 's objections
and therefore was improperly made the subject of a hearing. The
Board directed a hearing as to this issue on the basis of the Regional
Director 's investigation report and the exceptions filed thereto by
the Employer . In its original exceptions , the Employer did not
challenge the right of the Regional Director to investigate the subject
matter of this issue . In any event , we find no merit in this exception.
It is well established that the jurisdiction of the Regional Director
in making post-election investigations is not limited to the specific
issues raised by the parties e Accordingly , in directing a hearing
on a subject matter uncovered by the Regional Director's
* The Regional Director also found that objections 2 and 3 raised issues of fact which
could be resolved only by a hearing . However , because he found that objection 4 justified
setting aside the election, he found it unnecessary to recommend a hearing on objections
2 and 3.
c Issue 4 states : "The places where , and the circumstances under which Messrs. W. M.
and F. L . Carter interviewed individual employees between December 5 and 19, 1956, to
persuade them to vote against the Petitioner , and the statements made to the employees
in these interviews."
6 City Tire Company, 117 NLRB 753 , 755 ; Radiant Lamp Corporation, 116 NLRB 40, 41,;
Hobart Manufacturing Company, 92 NLRB 203 , 205; J . I. Case Company, 86 NLRB 12.
CARTER-LEE LUMBER COMPANY 1377
investigation, the Board did not violate its Rules and Regulations.
Petitioner's third objection and the second issue set forth in the
notice of hearing was whether "agents of the Employer: threatened
to make things so tough on the Petitioner's sympathizers that they
would be forced to quit." The hearing officer found that Super-
visor Baxter had made such a statement to two employees,' and that
in conversations with other employees he had also threatened retalia-
tory action against adherents of the Petitioner. The hearing officer
recommended that Petitioner's objection 2 should be sustained in
view of these threats. The Employer contends that the Board should
only consider threats "to make things . . . tough" in considering this
objection. We do not agree. The threat to make things tough was
merely a threat of punitive action against the Petitioner's supporters ;
the other. statements found to have been made by Supervisor Baxter
were of like nature but expressed differently. We find that they
were properly admissible as within the issues framed by the notice of
hearing.
The hearing officer credited the Petitioner's witnesses, rather than
Baxter, as to what the latter said to employees. We find no reason
to upset his credibility determinations.8
We have considered the Employer's other exceptions to the hearing
officer's report and the arguments in support thereof. We find them
to be without merit. For the reasons set forth by the hearing officer
in his report, which we hereby adopt, we find that the totality of the
Employer's conduct preceding the election interfered with the
employees' free choice of a bargaining representative. Accordingly,
we shall set aside the election of December 19, 1956, and shall direct
that a new election be held.
[The Board set aside the election held on December 19, 1956.]
[Text of Direction of Second Election omitted from publication.]
7 The hearing officer found that Baxter had told Lawson and several other employees
"This thing has gone too far now . . . somebody is going to get hurt." The record does
not show that this statement was made to employees other than Lawson. The hearing
officer's report is corrected accordingly . The error is minor and does not require modifica-
tion of the hearing officer 's substantive findings.
8 Standard Dry Wall Products , Inc., 91 NLRB 544 , enfd. 188 F. 2d 362 (C. A. 3).
The hearing officer found erroneously that Baxter had not specifically denied the state-
ments attributed to him by employee Lawson. However, in view of the fact that the hear-
ing officer discredited other denials by Baxter, we also discredit his denial in this instance.
HEARING OFFICER'S REPORT ON OBJECTIONS TO ELECTION
Pursuant to a stipulation for certification upon consent election , duly executed by
the Employer and the Petitioner on December 5, 1956, an election by secret ballot
was conducted by the Regional Director among certain employees of the Employer
described in paragraph 11 of the. stipulation.
. On December .19, 1956, pursuant to the stipulation, an election was conducted
under the direction and supervision of the Regional . Director. At the conclusion
of the election, the parties were furnished with a tally of ballots showing that of
476321-58-vol.: 119-88
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
approximately 33 eligible voters, 33 cast ballots, of which 14 were for the Petitioner,
14 were against the Petitioner, and 5 were challenged.
On December 27, 1956, the Petitioner filed certain objections to conduct affecting
the results of the election. Following an investigation, the Regional Director issued
a report on the following objections:
1. At NLRB conference on December 5, 1956, when Stipulation was signed,
Employer submitted a list of eligible voters. Employer advised the Board agent
and the Union no changes would be made in employment of employees listed.
Both Parties signed the eligibility list. On December 7, 1956, Employer laid off
employees Clyde Jones, Clay Cox, Flavus Patterson, and Ronald Smith in vio-
lation of the December 5th agreement of the Parties. Just prior to the opening
of the polls on December 19, 1956, and over the protest of the Union repre-
sentative, Employer struck the names of these employees from the voting list,
and challenged their votes.
2. Since December 5, 1956, various agents of the Employer made threats
to employees to the effect that a vote for the Union would result in loss of some
jobs, shorter hours, and loss of various benefits now enjoyed by the employees.
3. Since December 5, 1956, agents of the Employer threatened to make things
so tough on the Union sympathizers that they would be forced to quit.
4. Since December 5, 1956, agents of the Employer interrogated various
employees for the purpose of inducing them to reveal the names of other em-
ployees sympathetic to the Union.
5. On the day before the election the Employees received a letter from the
Employer which contained promise of a wage increase to be put into effect
after the election.
This report included the following recommendations:
As to objection 1, the Regional Director refrained from making a recommenda-
tion , and he recommended that objection 5 be overruled. In the absence of excep-
tions having been taken to these two recommendations, objections 1 and 5 are
no longer in issue. As to objections 2 and 3, the Regional Director concluded that
the evidence obtained through his investigation raised substantial and material is-
sues with respect to material facts, and recommended that a notice of hearing issue
in the event that the Board found it necessary to act upon these particular objections.
In regard to objection 4 the Regional Director concluded that there were substantial
material issues with respect to material facts as to whether or not the Employer
had interrogated its employees concerning their voting intentions , union membership
and sympathies. In addition the Regional Director's investigation had disclosed
that the Employer had engaged in interviewing the employee individually in offices
of the Employer. In view of these facts, the Regional Director concluded that such
conduct by the Employer was improper. It was therefore recommended that Peti-
tioner's objection 4 be sustained.
Subsequent to the issuance of the report, the Employer took exceptions to the
recommendations of that report. On August 27, 1957, the Board issued its Order
Directing Hearing. The August 22, 1957, Order Directing Hearing specified that
evidence should be taken with respect to the following matters:
(1) Whether between December 5 and 19, 1956, agents of the Employer
threatened employees that a vote for the Petitioner would result in loss of jobs,
shorter hours, and loss of various benefits.
(2) Whether between December 5 and 19, 1956 , agents of the Employer
threatened to make things so tough on the Petitioner's sympathizers that they
would be forced to quit.
(3) Whether the Employer or its agents interrogated employees concerning
voting intentions, membership or sympathies.
(4) The places where, and the circumstances under which Messrs. W. M.
and F. L. Carter interviewed individual employees between December 5 and
19, 1956, to persuade them to vote against the Petitioner, and the statements
made to the employees in these interviews.
The Board further ordered that the hearing officer designated for the purpose of
conducting the hearing prepare, and cause to be served upon the parties, a report
containing resolutions of credibility of witnesses, findings of fact, and recommenda-
tions to the Board as to the disposition of said objections. Pursuant to notice, a
hearing was held on September 11, 12, 13, and 14, 1957, at Indianapolis , Indiana,
before Gerald S. Patterson, hearing officer, duly designated for that purpose, at
which the Petitioner, the Employer, and the Board appeared and participated
therein. All parties were afforded full opportunity to be heard, to examine and
cross-examine witnesses , and to introduce evidence bearing upon the issues.
CARTER-LEE LUMBER COMPANY 1379
Upon the entire record in the case, the briefs submitted to the hearing officer,
from his observation of the demeanor and manner of the witnesses, and all of the
testimony adduced at the hearing, the hearing officer makes the following:
FINDINGS OF FACT
Objection (1) Whether between December 5 and 19, 1956, agent of the Employer
threatened employees that a vote for the Petitioner would result in loss of jobs,
shorter hours, and loss of various benefits: The above objection concerns itself in
part with numerous conversations and meetings which admittedly transpired be-
tween representative of the Employer and its employees under varying circumstances.
It is undisputed on the record that the Employer called two general meetings of its
employees in the unit concerned during the period in question-December 5 to
December 19, 1957. In these two general meetings, Frederick L. (Ted) Carter, the
Employer's secretary-treasurer, and Wilbur Carter, its president, urged the employees
to vote against the Union in the prospective election as well as extolling various
benefits which the employees were receiving without union representation. In light
of the testimony of Petitioner's witnesses which is not inconsistent to the testimony
of the Carters' remarks made at these meetings do not appear to be coercive, and
are well within the permissible scope of Section 8 (c) of the Act, and the hearing
officer so finds.
In regard to the claimed threats made by the Employer through Wilbur Carter,
Frederick Carter, and Lawrence Baxter,' the evidence is partly contradictory. Sev-
eral of Petitioner's witnesses' (Robert Jaynes, Belt, Lawson, Hancel Gaines, and
Couch) testimony was to the effect that the two Carters told them in a series of
individual interviews 2 that the Employer would cut out bonuses, vacations, and
uniform allowances in the event that the Union was victorious in the election. On
the other hand, additional witnesses of Petitioner (McCauley, Denver Gaines, and
Billy Gaines) testified that the Carters did discuss the possible economic effects re-
sulting from the unionization of its. employees, and that a curtailment of certain
kinds of retail lumber sales might result in either shorter workweeks, fewer employees,
or less benefits in the form of paid holidays. An illustrative example of such evidence
is the following testimony of Denver Gaines concerning a conversation with that
employee and Wilbur Carter:
. "you know," he said, "if a union got in here," he said, "it might kind of
hurt our business." He says, "You know we run a lot of credit on a lot of these
guys. Naturally everybody can't walk in and pay in a lot of money." And
he said, "if a union got in here, naturally, we might have to tighten down on
them, and they couldn't afford to buy as freely, as they do now, for the simple
reason we run a charge on them, see?" . ..You get your uniforms, and
you get a Christmas bonus and a turkey, and you get paid holidays." And we
was getting about ready to leave the room then, and he said, "It would be
a shame to lose them. . . .
Moreover, Frederick. Carter testified that the quoted portion of a statement 3 which
he had given a representative of the National Labor Relations Board was in sub-
stance true. With respect to all of the evidence presented in regard to the instant
objection, it would appear that the Employer agents' statements were more in the
form of a business prediction as to possible eventualities in the event that Petitioner
won the pending election. In considering the most favorable testimony of Peti-
tioner's witnesses in this regard, the evidence does not establish that the Employer
actually threatened to "use its economic power to make its prophecy come true." 4
Therefore, the hearing officer finds that objection 1 does not possess merit and hereby
recommends that objection 1 should be overruled.
Objection (2) Whether between December 5 and 19, 1956, agents of the Employer
threatened to make things so tough on the Petitioner's sympathizers that they would
be forced to quit: With respect to the instant objection, the evidence received con-
cerns itself with the alleged statements made by Lawrence Baxter, the Employer's
1 In view of the findings made herein concerning the activities of the Employer, the
hearing officer deems it unnecessary to decide whether Dispatcher Ben Wright was a
supervisor within the meaning of the Act during the time period in question.
2 By direction of the Board in its order dated August 22, 1957, the evidence concerning
a series of individual conferences between the Employer and its employees was to be
taken at the hearing , which evidence and findings will be set out herein under point 4.
3 The quoted portion is found in Board ' s Exhibit No. 1-C.
4 Chicopee Manufacturing Corporation, 107 NLRB 106, 107 ( 1953).
1380 DECISIONS 'OF NATIONAL 'LABOR RELATIONS BOARD
general yard foreman or superintendent, to the nonsupeivisory 'employees. It is
conceded by the Employer:that Baxter was a supervisor within the meaning of the
Act. Furthermore, Baxter exercises general supervisory authority over the em'
ployees herein concerned.
Sometime during the period in question, Baxter engaged truckdriver Belt 5 (Bell)
in a conversation in the Employer's boilerroom in the presence of the dispatcher,.
Ben Wright. According' to Belt, Baxter commenced the conversation by inquiring
into Belt's voting intentions. In the latter part of the conversation, Baxter is claimed
to have stated, ". . . If it gets in and we find out who participated in it, there are
going to be a whole lot less faces around here," or words to that effect. Although
Baxter does not specifically deny Belt's version of the conversation, Baxter testified
that he told Belt that a reduction in personnel may result because of less business.
In any event, the writer credits Belt's version of the conversation.
Employee Robert Jaynes testified to the terms of a conversation with Baxter in the
presence of several employees in the yard office of the Company. According to
Jaynes, Baxter told them, ". . . If the Union gets in they will make it so damned
rough on you guys you will wish you had quit." Employee Lawson's testimony
tends to corroborate Jaynes' testimony concerning the same conversation. It is
Lawson's testimony that Baxter said to several employees ". . . this thing has gone
too far now." "Somebody,"' he said, "somebody is going to get hurt. " In a
subsequent conversation between Baxter and Lawson in the presence of other un-
identified employees, Baxter said, "he would make it so hard on the men that they
would quit." The record fails to disclose a specific denial by Baxter concerning
the statements claimed to have been made by him wherein employees Lawson;
Jaynes, or others were present. The hearing officer therefore credits the testimony
of Jaynes and Lawson.
In a conversation between Marcus Couch and Baxter at the time clock, Baxter
asked Couch about the union and further stated, "Well, it looks like I am going to
get rid of some men over there. I have already got rid of a few." In a subsequent
conversation held between these men in the boilerroom, Baxter stated, "Well, if the
Union comes in, we can always get rid of the men. Now the truckdrivers, none
of them can figure their tallies, and that would be just for that." It is Baxter's
testimony that he had only one conversation with Couch concerning the Union,
which conversation involved a discussion of eventualities should the Union win the
election. In view of the whole record and my observation of the demeanor of the
witnesses , the hearing officer credits Marcus Couch's testimony concerning the details
of Baxter 's remarks about the election.
With respect to objection 2, the hearing officer concludes that the creditable evi-
dence establishes that Baxter's statements constituted a continuing threat 6 that
the Employer would treat its employees who were sympathetic to Petitioner in such
a manner that either they would quit the Company's employment or that a discharge
of union adherents would appear to be lawful under the Act in the event that
Petitioner won the election . In the opinion of the hearing officer , the circumstances
under which these threats were made compel the further conclusion that the Em -
ployer's conduct created an atmosphere which rendered impossible a free choice
for or against a collective-bargaining representative . Inasmuch as Baxter made
the foregoing coercive statements to at least 4 employees of a total possible eligible
unit of 33 employees , the threats cannot be considered isolated in their character?
Therefore , the hearing officer finds that the above -recounted statements were made
by an agent of the Employer , and concludes that in light of such conduct , Petitioner's
objection 2 should be sustained , and he so recommends.
Objection (3) Whether the Employer or its agents interrogated employees con-
cerning voting intentions , memberships, or sympathies: In the writer's opinion, the
evidence elicited in connection with the instant objections is by its nature so closely
5 It should be noted that the reporter made an error in regard to the spelling of this
witness ' name . It should appear as Albert It. Belt on the record.
e The statements herein discussed go beyond the permissible limits in Chicopee Manu-
facturing Company , supra, as the statements contain the threat that the Employer will
actually use its economic power in the event that the Petitioner would be selected as the
bargaining agent.
7 The instant. case should be distinguished from Morganton Full Fashioned Hosierg
Company, etc., 107 NLRB 1534 ( 1954 ), wherein 2 supervisors had made coercive remarks
to 2 employees in a unit comprising 639 employees . Moreover, it would be grossly in-
accurate to regard Baxter as a "minor supervisory " official in light of the undisputed
facts as to his duties with the Employer.,
. CARTER-LEE LUMBER COMPANY .1381
related to the facts. developed at the hearing concerning objection 4 that a. con-
temporaneous consideration of both objections is deemed more appropriate.
Objection (4) The places where, and the circumstances under which Messrs. W.
M. and. F..L. Carter interviewed individual employees between December 5 and 19,
1956, to persuade them. to vote against the Petitioner, and the statements made to
the employees in these interviews: The evidence presented by the Employer itself
appears to establish the fact that it engaged in election campaign conduct whereby
many of its employees were interviewed on an individual basis by the Carter brothers.
- The employees herein involved are included within three categories-truckdrivers,
laborers or lumber handlers, and yardmen. -The evidence further shows that prac-
tically all of the individual interviews conducted by the Carter brothers occurred
.within the office building. In this connection, some interviews took.place in Wilbur
Carter's office, Frederick Carter's office, and an upstairs office or storage room some-
times referred to by the Petitioner's witnesses as a "conference" room. As described
by the witnesses, Wilbur Carter's office consisted of a large, open, unenclosed area
which room included Wilbur's desk plus a secretary's desk at another end of the
room. Frederick Carter's office, however, was a completely enclosed private office
.area. The so-called "up-stairs room" was variously referred to as a "conference
room," the "upstairs office" or a "storage room." In any event, the evidence demon-
strates that complete privacy was attained by the Employer during the times when
the conversations occurred in Frederick Carter's office and the "upstairs room" even
though it is undisputed that the "upstairs room" in question also served as a storage
room for nail aprons, stationery, and old company records.
According to the testimony of Frederick Carter, he engaged 7 out of 9 truck-
-drivers in these private interviews in the office building; he interviewed 2 groups of
.lumber handlers at or near their regular place of work in and about the Company's
yard; he also spoke to the 6 or 7 yardmen individually in the office building except in
.one instance when he talked to 2 yardmen at one time. As to the private interviews
in the office building conducted by Frederick Carter, it appears that 2 or 3 of these
conversations occurred in his private office; and the remainder took place in the
"upstairs room." Further, it is his testimony that the length of these interviews
was anywhere from 1 to 15 minutes.
Several employees testified that Frederick Carter started the discussions by asking
.them what they "thought" or "felt" about the Union.8 In general, the testimony
indicates that except for Carter's questioning about some employee's union sympa-
thies, these conversations primarily concerned themselves with the benefits that the
.employees were presently receiving without the aid of a union. In addition, Fred-
erick Carter demonstrated the Employer's concern for its employees by its having
-provided them with excellent equipment.
It is Wilbur Carter's testimony that he spoke to 21 to 25 employees either indi-
vidually or in small groups . Of this number, it appears that Wilbur Carter spoke
to 16 employees on an individual basis. According to this testimony, the interviews
lasted about 10 minutes, plus or minus 2 to 3 minutes. As to the location of these
-discussions , the evidence shows that Wilbur Carter spoke to 2 employees in the
yard, and that 13 interviews took place in the "upstairs room" on the second floor
of the office building . It is Carter's further testimony that the door at the bottom
of the stairs was closed during the course of those discussions in the "upstairs room"
in order to ensure privacy and freedom from interruption. Moreover, he testified
that he chose to interview employees in Frederick Carter's office rather than his
own for the same reason.
As in the case of Frederick Carter, the evidence is in substantial agreement as
to what Wilbur Carter said to the employees at the individual interviews. Appar-
ently, Wilbur Carter told the employees about the wage, vacation, and hour benefits
which they were receiving from the Employer without the aid of a "third" party;
in addition, the employees were told that the Employer would appreciate a "no"
vote in the election . However, several employees 9 did testify that Wilbur Carter
asked them what or bow they thought about the Petitioner. Although Wilbur
8 Employees Belt, Denver Gaines, Faulk, Floyd Couch, and Smith all testified to this
effect. Belt further testified that Lawrence Baxter also asked him how he was to vote on
more than one occasion. Baxter also asked Denver Gaines how he was to vote, and asked
Faulk what he thought of Petitioner. Furthermore, it is Ronald Smith's testimony that
Baxter inquired of him as to his union sympathies , and also asked him to reveal the
names of other union adherents. The hearing officer fully credits 'the testimony of
Ronald Smith.
' R Employees Belt, Denver Gaines, Rancel Gaines, Faulk , Floyd Couch, Johnson, and
Hollis Smith so testified.
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carter does not specifically deny the Employer 's testimony in this regard, he did
state that he at no time asked the employees whether they were for or against the
Petitioner, or as to how they were going to vote. In the opinion of the hearing
officer , the weight of the evidence concerning the contradiction in evidence , if any,
compels him to conclude that Wilbur Carter on several occasions asked the em-
ployees about what they thought about the Petitioner.
It was admitted by Frederick Carter that he was aware that his brother, Wilbur
Carter, was also engaged in conducting personal interviews of employees through-
out this period . In addition , it appears that most of the employees who were indi-
vidually interviewed were interviewed by both Carters.
The undisputed facts show that about 50 percent of the eligible employees were
individually interviewed by the Carters. It appears that most of these conversations
occurred in the "upstairs room" which ensured privacy to the Employer . Moreover,
the evidence establishes that the Carters commenced several of the conversations
by asking each employee what he thought or felt about the Petitioner in regard
to the pending election.
In light of these foregoing facts concerning the circumstances surrounding the
interviews , and in consideration of the activities of Lawrence Baxter,'° the hearing
officer concludes that such conduct interfered with a free election."
[Recommendations omitted from publication.]
10 See footnote 8.
11 See Economic Machinery Company , 111 NLRB 947; Gallaher Drug Company, 115
NLRB 1379; Hook Drugs, Inc., 117 NLRB 846; San Diego Glass and Paint Company,
1.17 NLRB 59; Qaaliton , 115 NLRB 65, 66. Nor does the Board ' s holding in Mall Tool
Company, 112 NLRB 1313, affect the result herein as in that case the employees were
interviewed at their place of work. In the instant case, most of the interviews occurred
in an enclosed area chosen by the Employer because of its privacy.
Newth-Morris Box Company and International Printing Press-
men and Assistants ' Union of North America, Printing Spe-
cialties and Paper Products Local No. 600 , AFL-CIO, Peti-
tioner
Morris Foster , Inc. and International Printing Pressmen and
Assistants' Union of North America, Printing Specialties and
Paper Products Local No. 600 , AFL-CIO , Petitioner. Cases
Nos. 1,0-RC-150 and 12-RC-162. January 01, 1958
DECISION AND CERTIFICATION OF REPRESENTATIVES
Pursuant to a stipulation for certification upon consent election, an
election was conducted on July 26, 1957, under the direction and super-
vision of the Regional Director for the Twelfth Region, among certain
employees of the Employer. The tally of ballots shows that there were
approximately 66 voters; and that 33 valid votes were cast for the
Petitioner, 29 valid votes were cast against the Petitioner, 4 ballots;
were challenged, and no ballots were declared void.
The challenges were sufficient in number to affect the results of the
election. On August 2, 1957, the Employer timely filed objection to
conduct affecting results of election. On September 11, 1957, the
Regional Director, after investigation, issued his report on objections
and challenges, recommending that the objections be overruled in
their entirety, that 1 challenge be sustained and the other 3 challenged
ballots remain unopened since no longer determinative as to the
119 NLRB No. 168.