Charles T. Brandt, Inc.

National Labor Relations Board - Board Decisions

Aug 5, 1957

118 N.L.R.B. 956 (N.L.R.B. 1957)

956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees, is not applicable where, as here, the Petitioner is not seeking
to sever a group from, an existing unit .4
Accordingly, we find that the following employees of the Employer
may constitute a unit appropriate for the purposes of - collective
bargaining within the meaning of Section 9 (b) of the Act:
All maintenance employees at the Employer's Torrance, California,
plant, including the laborer and general helpers,' but excluding all
other employees including office clerical employees, professional em-
ployees, watchmen, guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
',Bast Tewas Pulp ct Paper Company, 113 NLRB 539, 543.
C Contrary to the Employer 's contention , we do not consider it necessary for all main-
tenance employees to be skilled employees of craft status . Phoreland Freezers , Inc., 108
NLRB 723. As the laborer and general helpers are assigned to the maintenance group and
as no other labor organization is seeking to represent them , we shall include them in the
unit.
Charles T. Brandt, Inc. and Independent Sheet Metal Fabricators
and Allied Trades of America , Local No. 1, Petitioner. Case
No. 5-RC-2120. August 5,1957
DECISION AND CERTIFICATION OF REPRESENTATIVES
Pursuant to a stipulation for certification upon consent election
dated February 1, 1957, entered into by the Employer, the Petitioner,
the United Electrical Radio and Machine Workers of America, Local
146, hereinafter referred to as the UE, and District 12, International
Association of Machinists, AFL-CIO, an election by secret ballot
was conducted on April 2, 1957, under the direction and supervision
of the Regional Director for the Fifth Region among the employees
in the stipulated unit. No objections to the election were filed. The
results of this election were indeterminative, and a runoff election
between the two highest choices on the ballot was therefore necessary.
Accordingly, a runoff election was conducted-on April 12, 1957, with
the Petitioner and the UE on the ballot. Following the election, the
parties were furnished with a tally of ballots, which showed that out
of approximately 205 eligible voters, 159 cast ballots, of which 85 were
cast for the Petitioner, 73 for the UE, and 1 ballot was void. There
were no challenges.
On April 19, 1957, the UE timely filed objections to the conduct
affecting the results of the election, copies of which were duly served
on the parties. In accordance with the Rules and Regulations of the
Board, the Regional Director conducted an investigation of the ob-
jections, and on June 20, 1957, issued and served on the parties his
report on objections, recommending that the objections be overruled
and that the Petitioner be certified as the bargaining agent for the
118 NLRB No. 123.
CHARLES T. BRANDT, INC. 957
employees in the stipulated unit. Thereafter, the UE timely filed
exceptions to the Regional Director's report.
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
Murdock and Jenkins].
Upon the basis of the entire record in this case, the Board finds
the following :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act :
All production and maintenance employees employed at the Em-
° ployer's Baltimore, Maryland, plant, excluding all office clerical
employees, all office salaried employees, department heads, foremen,
draftsmen, inspectors, plant protection employees, direct represent-
atives of management, professional employees, and all supervisors as
defined in the Act.
5. Objections :
Objections Nos. 1 and 2 alleged that the Employer rendered illegal
assistance in the formation and administration of the Petitioner by
permitting its officers and members to engage in organizational and
election activities on company time and property and that this conduct
continued through the election of April 12.
In support of these objections, the UE witnesses stated that during
November and December 1956 and at times prior to February 1, 1957,
the date of the stipulated agreement, adherents of Petitioner were
permitted to solicit members and conduct union business on company
time and property ; that the Employer contributed $200 to the Peti-
tioner's Christmas party and furnished desks and filing cabinets to
Petitioner; that the Employer continued to recognize and deal with
representatives of Petitioner who were formerly UE officers, despite
notice to the Employer that these men no longer represented the
UE; that various officers of the Petitioner, who met with represent-
atives of UE were paid for time while attending these conferences
and that one of these men was given superseniority to keep him from
being laid off; that Petitioner with the knowledge and consent of the
Employer was permitted to use the bulletin board provided for the
UE. The UE.also declared that at the conclusion of the first election
on April 2, the personnel manager of the Employer stated to an
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
officer of the Petitioner that "we just missed by 4 votes," and that
after the runoff election he said that "we won this time."
In the investigation, the Employer and the Petitioner denied the
conduct as alleged.
With reference to any of the above objections which occurred prior
to April 2, the first election, to which no objections had been taken,
the Regional Director found it unnecessary to consider them on their
merits on the ground that these objections were untimely.' No dates
were indicated as to when the alleged meetings of the Employer with
Petitioner's officers took place. As to the shop steward who was
given superseniority status to prevent his layoff, the investigation re-
vealed that no layoff actually took place. As to these objections, there-
fore, the Regional Director found insufficient evidence to sustain
them. Finally, with reference to the remarks of the personnel mana-
ger, the Regional Director found these were privileged, as the Board
has held an Employer may express a preference of one labor organiza-
tion over another, if the statement is not coercive.' The Regional
Director therefore recommended that objections 1 and 2 be overruled.
In support of its exception to this recommendation, the UE, while
admitting that the conduct in question occurred prior to the first elec `
tion, nevertheless urges, that the objections should have been con-
sidered on their merits because the conduct had a continuing effect
through the second election. In any case, it urges that as the evidence
was conflicting, a hearing should be ordered. However, the UE cites
no facts in support of this exception. As the exception raises no issues
of fact which are substantial and material upon which a hearing
should be ordered, we adopt the Regional Director's recommendation
that these objections be overruled.'
Objection No. 3 a alleges that agents of the Petitioner engaged in
electioneering near the polling place. In support of this claim, the
UE field organizer stated that Thrift, president of Petitioner, was
within 15 feet of the polling place where he did some campaigning,
and that Gwaltney, Petitioner's vice president, parked his car near
the polling place, in violation of Board rules. He also declared that
both men went in and out of the plant many times although they were
supposed to have left the plant for the day. Another witness stated
that he saw Thrift speak to an employee near the voting place, but
that he did not hear the conversation.
1 National Petro-Chemicals Corporation , 107 NLRB 1610, 1613.
2 Rheem Manufacturing Company, 114 NLRB 404, 405.
3 The Humko Co., Inc., 117 NLRB 825.
1 Objection No. 3 also contends that certain lists of employees, who had not yet voted, were
prepared by the observer for the Petitioner, and that such lists were passed out to officers
or adherents of the Petitioner. The investigation revealed a list was prepared at the first
election, but that this was destroyed by the Board agent when he discovered it, and that
no such list was passed out. As there was no evidence that such list was prepared during
the second election , the Regional Director found that this objection was untimely and recom-
mended that it be overruled . As no exception was noted to this finding , we adopt the
recommendation.
CHARLES T. BRANDT, INC. 959
Thrift and Gwaltney denied that they had engaged in any election-
eering. Gwaltney admitted that during the first election, a UE re-
presentative asked Gwaltney to get Thrift away and cease talking to
an employee near his parked car, which Gwaltney did. Gwaltney also
admitted that on both elections he drove a number of employees to
the polling place for the purpose of voting, and that thereafter he
waited for them.
On the basis of the investigation, the Regional Director found that
the UE had submitted no evidence that either Thrift or Gwaltney had
engaged in electioneering in violation of Board rules. Employees were
brought near the polling place in order to vote or use the Employer's
sanitary facilities. He therefore concluded that as the mere presence
of a union representative near the polling place, without more, is
no ground for setting the election aside, this objection should be
overruled.
In its exception to this finding, the UE contends, without citing
further evidence, that transporting employees to within 25 feet of the
polling place is of itself conduct constituting electioneering. We
find no merit in this contention. The evidence fails to show that actual
electioneering occurred or that any coercive comments were made. Fur-
thermore, transporting employees to the voting area is not improper
conduct. Accordingly, we adopt the recommendation to overrule this
objection.'
Objection No. 4 claims that prospective workers were intimidated by
threats of loss of their jobs by an officer of the Petitioner acting under
the encouragement and with the approval of the employer.
In support of this objection, one witness stated that a week before
the first election, while he and Kaplan, a UE field representative, were
distributing leaflets, Gwaltney told the witness that he was on the
wrong side and that when all this was over, he might as well go back
to South Carolina. This witness also stated, that he told another em-
ployee, X, who came up later, about this alleged statement of Gwalt-
ney, and that they both laughed it off. He also said that he believed
the statement was idle talk because he and Gwaltney had always been
good friends. Later in the statement, the witness said that he thought
the incident may have occurred a week after the election. Keller, a
UE field organizer, testified that the above witness was passing out
leaflets with him, about 2 or 3 days before the second election, when
Gwaltney said: "as far as working at Brandt's was concerned, you
may as well go to South Carolina." Keller said that the tone of voice
indicated that the laid-off employee would not get a job at Brandt's
because of his UE support, but that Gwaltney did not actually say
that. The employee referred to above as X declared that on the day
5 Garner Aviation Service Corporation, et al. , 114 NLRB 293, 295 ; The Rackle Company
of Texas, 117 NLRB 462.
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the second election Gwaltney said in the presence of himself and.
two others that they had all better go back where they came from and
that if Petitioner won the election the employees would not have a
chance to come back to work. This statement was made, the witness
stated, after the men had voted. He also stated that Gwaltney did
not say that the men would not go back to work because they favored
the UE.
Gwaltney's version of the incident was that he did have a conversa-
tion before the first election with respect to a UE adherent telling
employees that they would not have call-back privileges if the Peti-
tioner won the election and that Gwaltney said the employees would
have such privileges regardless who won; that the UE adherent then
stated that he did not have to make a living here and that he was going
back to South Carolina, at which Gwaltney said that he can go back if
he wants to and that Gwaltney saw.his sign in the plant advertising his
home and furniture for sale. Gwaltney stated that the witness in
question told Kaplan who was standing near, that Gwaltney was in-
tim.idating him, but Gwaltney denied this.
On the basis of the above, the Regional Director found considerable
conflict in the testimony even among the UE's own witnesses as to what
Gwaltney said, to whom he said it and whether it was before the first
or the second election. He therefore found no substantial evidence in
support of the objection. However he concluded that if it be assumed
the statement was made after the first election, it constituted an iso-
lated incident which would not warrant setting the election aside.
The UE urges in its exceptions that it is apparent from the testi-
mony that the witnesses were in a state of fear of reprisal when they
were interviewed by the Board agent, and that only a full hearing will
elicit the truth. However, as the UE cites no facts in support of this
exception, we agree, as the Regional Director found, that even if
Gwaltney made the remark attributed to him, this was an isolated in-
cident and constitutes no basis for setting the election aside. We
therefore adopt the recommendation to overrule this objection.'
6 Two other witnesses appeared in support of this objection . One witness declared that
Gwaltney came to his house about March 25 , when Gwaltney tried to persuade the witness
and another employee to vote for Petitioner . After the employees told Gwaltney that they
would vote for the UE, Gwaltney said that if Petitioner won, the employees need not come
to him for any help. Another witness said that about March 25 Gwaltney came to his home
and asked the witness if he had made up his mind , and that after the latter said he would
vote for the UE, Gwaltney stated the Petitioner would win anyway and that the witness
need never come to him for help. At first , this witness stated that he considered Gwaltney's
remark a threat , then he said that it really did not consider it as too much of a threat.
Gwaltney denied having made the statements . Subsequently these witnesses told a Board
agent that they did not consider Gwaltney's remark a threat, that they were withdrawing
the alleged statements and that they made the withdrawal freely . The Regional Director
found that as the remarks in question were made prior to the first election , they were
untimely . As the exceptions fail to assert facts to support any contention that the alleged
remarks were not made before the first election , we adopt the recommendation that this
objection is untimely , and overrule it.
PITTSBURGH PLATE GLASS COMPANY 961
As the Petitioner has received a majority of the valid votes cast, we.
shall certify the Petitioner as representative of the employees in the
appropriate unit.
[The Board certified Independent Sheet Metal Fabricators and
Allied Trades of America, Local No. 1, -as the collective-bargaining
representative of the employees of the Employer in the appropriate,
unit described in paragraph 4.]
Pittsburgh Plate Glass Company and Teamsters, Chauffeurs,.
Warehousemen & Helpers Local #453 (I. B. of T. C. W. & H..
of A.), AFL-CIO, Petitioner. Case No. 5-RC-4192. August 6,.
1957
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 Sidney Smith, hearing of-
ficer. 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 National Labor-
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members _
Murdock and Rodgers].
Upon the entire record in this case, 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 em-.
ployees of the Employer.
3. The Employer and the Intervenor raised contract-bar conten-
tions, but each maintained that a different document represented the
prevailing agreement. The Petitioner also contended that it had a
contract with the Employer which constituted a bar with respect to..
the truckdriver.
(A) A printed document was placed in evidence by the Intervenor, ,
which, with certain oral amendments, it claims constitutes the contract
currently in effect. The document purports to be an agreement be-
tween the Employer and the Intervenor effective from September 1,
1956, until August 31, 1958, and, by its terms, to cover work done by
the Employer within the ,territorial jurisdiction of the Intervenor.
1 The hearing officer permitted Glaziers' Local Union 751, affiliate of the Brotherhood
of Painters, Decorators, Paperhangers and Glaziers of America, AFL-CIO, to intervene
on the basis of a claim to represent employees in the unit which the Employer claimed
to be appropriate. The Petitioner objected to this ruling on the ground that Local 751
was not in compliance with the filing requirements of the Act at the time the proceeding
began. As it was in compliance at the time of the hearing, however, the hearing officer's -
ruling granting intervention is hereby affirmed.
118 NLRB No. 121.
450553-58-vol. 118-62