Fruehauf Trailer Co.

National Labor Relations Board - Board Decisions

Jul 15, 1953

106 N.L.R.B. 182 (N.L.R.B. 1953)

182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 16, 1952, new officers were elected and Oppen-
heimer was replaced as vice president . However, he was elected
to the executive board of which he is still a member. He was
also appointed to several committees of the Petitioner since
its formation including the strategy committee, principles com-
mittee, liaison committee, finance committee, and membership
committee. The evidence also shows that Oppenheimer has
regularly paid quarterly dues of $ 56 to the Petitioner and,
in addition , advanced $ 100 to be applied to dues at his option
in the future , and that he has contributed to the Petitioner
$ 15 for an advertisement and $10 for a book of raffle tickets.
Petitioner contends that, notwithstanding the above facts
which it admits to be substantially true, Oppenheimer ' s activi-
ties were not such as to disqualify it from representing em-
ployees of Desilu. Petitioner cites the fact that Oppenheimer's
attendance at various membership , executive board, and com-
mittee meetings was irregular , and, particularly , that there
is no evidence that Oppenheimer directly approached any em-
ployees of Desilu and solicited their memberships . However,
it is not disputed that both Pugh and Carroll were present at
the Radio Writers Guild meeting and at the August 28 meeting,
where Oppenheimer spoke in favor of a new organization. On
these facts , we find that Carroll and Pugh were, in effect,
solicited by Oppenheimer to join TWA . Considering Oppen-
heimer ' s position as head writer and producer of "I Love
Lucy," we find that the showing of interest , on which this
petition was based , is necessarily impaired by his activities
in the organization of the Petitioner , and will dismiss the
petition- 0
[ The Board dismissed the petition.]
6 Toledo Stamping and Manufacturing Company, 55 NLRB 865. See Wells, Inc , 68 NLRB
545. Excluding Oppenheimer, TWA's showing in this case consists of 3 cards in a unit of 8
Without the cards of Carroll and Pugh, the showing would consist of only 1 card, which is
insufficient to support the petition. Although the Intervenor has made a sufficient showing
of its own, the Intervenor took the position that the petition should be dismissed
FRUEHAUF TRAILER COMPANY and INTERNATIONAL
UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRI-
CULTURAL IMPLEMENT WORKERS OF AMERICA, CIO,
Petitioner . Case No. 10-RC-2151. July 15, 1953
SUPPLEMENTAL DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
On March 3, 1953, pursuant to a Decision and Direction of
Election issued by the Board on January 5, 1953,' an election
by secret ballot was conducted in the above-entitled matter
under the direction and supervision of the Regional Director
i Not reported in the printed volumes of Board decisions.
106 NLRB No. 33.
FRUEHAUF TRAILER COMPANY 183
for the Tenth Region (Atlanta, Georgia), among the employees
of the Employer in the voting group described in the Decision.
Upon the conclusion of the election, a tally of ballots was fur-
nished the parties in accordance with the Rules and Regula-
tions of the Board.
The tally of ballots shows that of approximately 3 eligible
voters, 1 cast a ballot in favor of the Petitioner, and 2 cast
ballots which were challenged by the Employer. After the
election, the Employer filed timely objections to conduct af-
fecting the results of the election.
As the challenged ballots were sufficient in number to affect
the results of the election, the Regional Director, in accordance
with the Board's Rules and Regulations, investigated the
challenges. He also investigated the Employer's objections. On
May 12, 1953, the Regional Director issued and served upon
the parties his report on challenged ballots, objections to
election, and recommendations to the Board. In his report he
recommended that the challenges to the ballots cast by Gazaway
and Dunn be sustained and that the objections be overruled. On
May 20, 1953, the Employer filed exceptions to the Regional
Director's recommendations with respect to all but 1 of the
objections. No exceptions were filed to the Regional Director's
recommendations as to the 2 challenges.
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 [Members Houston, Murdock, and Peter-
son].
As no exceptions were filed to the Regional Director's
recommendations respecting the two challenged ballots, we
hereby adopt his recommendations and hereby sustain the
challenges to the ballots cast by Gazaway and Dunn.
The Objections
1. One of the objections alleged that the employees had not
been given adequate notice of the election. As no exception was
received to the Regional Director's recommendation that this
objection be overruled, we hereby adopt his recommendation
and overrule the objection.
2. Three other objections in substance are further attempts
by the Employer to relitigate an appropriate unit issue in the
case which the Board fully considered and decided in the
Decision and Direction of Election. The Board found no merit
in the Employer's contention that the employees involved in this
proceeding could not constitute a separate voting group or be
added to the existing production and maintenance unit. As part
of its objections the Employer now alleges that: (1) The election
notice, in which the employees were advised of the nature of
the Board's Decision, was prejudicial to the Employer; (2) the
Direction of Election was illegal; and (3) the election was in-
valid. Like the Regional Director, we find no merit in the
Employer's contention that the employees could not lawfully
be advised of the terms of the Board's Decision . Because these
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
three objections in reality raise no matters not previously
considered and decided by the Board, we hereby adopt the
Regional Director ' s recommendations as to them and hereby
overrule all three.
3. A fifth objection was raised on the assertion that because
the employees were polled in a private automobile on a public
street, the secrecy of the ballot was necessarily violated and
the election must therefore be set aside . In its exceptions the
Employer does not dispute the fact, as reported by the Regional
Director, that on the day of the election the Employer refused
the customary cooperation of permitting the election to be
conducted on its premises, and that there was no other more
desirable location available near the Employer ' s premises. In
its exceptions on this point the Employer asserts only that it
was unable to agree to hold the election on that particular day.
We note that , because of the Employer ' s several motions
for reconsideration , which were denied , and its attempt to
enjoin the Board in the courts , the election in this case was
not held until almost 2 months after issuance of the Direction
of Election . In these circumstances , we find nothing improper
in the Regional Director ' s decision not to delay the election
further. Absent any evidence affirmatively showing that the
secrecy of the ballot was in fact lost because the employees
voted in an automobile, we do not believe that this objection
raises any substantial issue with respect to the conduct of the
election.' Accordingly, we hereby overrule this objection.
4. In another objection the Employer alleges that the secrecy
of the ballot was destroyed because Walker, a union official,
approached the voting place (the field examiner's automobile)
during the voting period . The facts on this issue are not dis-
puted. After employee Gazaway, whose ballot was successfully
challenged by the Employer, cast his ballot, he met Walker
near the automobile as the latter was approaching. When
the Employer ' s observer advised the Board agent in charge
of the election that Walker was a union official , the field
examiner requested Walker to leave the vicinity of the poll.
Walker then went across the street and either entered a truck
parked there or stepped into a store . It is not claimed that
Walker engaged in any electioneering near the poll or that
he spoke to any of the voters before they cast ballots. Like
the Regional Director , we agree that Walker's mere brief
presence in the vicinity of the poll, without any proof of elec-
tioneering or other improper conduct , is insufficient to raise
any substantial issue with respect to the conduct of the election.
Accordingly, we hereby overrule this objection also.
5. The Employer's final objection arises from the fact that
the Board agent rejected the Employer's challenge to the ballot
of Biddie, the only employee whose ballot was opened and
counted. The grounds on which the Employer attempted to
challenge Biddie's vote were set forth in a written document
2 Cities Service Oil Company of Pennsylvania, 87 NLRB 324.
SSouthwestern Electric Service Co.. 90 NLRB 457
FRUEHAUF TRAILER COMPANY 185
which the Employer's observer handed to the Board agent. The
Employer did not claim that the employee was ineligible as
an individual properly included in the voting group. Rather,
the challenge rested on an assertion of the Employer's pre-
viously rejected contention that the Board's original Decision
was illegal . The other grounds set forth were the 'same as
three of the objections which we have already found to be
without merit ( the election notice was improper, the election
ought not be held in an automobile, and inadequate notice was
given to the employees). It is clear that the Employer's attempt
to challenge Biddie's ballot did not reflect any bona fide doubt
as to that employee's eligibility. Although it would have been
better practice for the field examiner to have accepted the
challenge as offered, we find that his failure to do so was not
prejudicial to the Employer. Certainly, as Biddie's was the
only vote which was opened and counted , the rejection of the
challenge does not raise any substantial issue as to the out-
come of the election. We therefore overrule this final objection
also.
As we have found that none of the objections raises sub-
stantial or material issues affecting the election , we hereby
deny the Employer's motion to order a hearing on the ob-
jections and we hereby overrule all of them.
In the Decision and Direction of Election previously referred
to, the Board made no final determination of the appropriate
unit, but stated that such determination would depend in part
upon the results of the election among the employees in the
voting group.
Upon the basis of the entire record in the case, the Board
makes the following:
SUPPLEMENTAL FINDINGS OF FACT
We find that all employees in the parts department employed
at the Employer's Atlanta, Georgia, factory service branch,
including the inventory clerk, but excluding all office clerical
employees, guards, professional employees, and all super-
visors as defined in the Act, have selected International Union,
United Automobile, Aircraft and Agricultural Implement
Workers of America, CIO, as their bargaining representative.
It appearing that this organization is now the recognized
exclusive bargaining representative of the production and
maintenance employees of the Employer,
IT IS HEREBY CERTIFIED that the said organization may
bargain for the employees in the above-named category as
part of the group of employees which it currently represents.