Horder's Inc.

National Labor Relations Board - Board Decisions

Oct 28, 1955

114 N.L.R.B. 751 (N.L.R.B. 1955)

HORDER'S, INCORPORATED 751
basis. Accordingly, we find that employees, such as William Ryan,
who spend a regular and substantial part of their time performing
supervisory duties on a seasonal basis are supervisors within the
meaning of the Act, and are therefore to be excluded from the unit.?
[Text of Direction of Election omitted from publication.]
° Stokely-Van Camp , Inc, 102 NLRB 1259; Libby, McNeill & Libby , 90 NLRB 279; and
other past , Board cases holding that employees who divide their time between super-
visory and nonsupervisory duties , on a seasonal basis, will be included during those
periods in which they are engaged in nonsupervisory work , and permitted to vote in the
election if they were rank -and-file employees in at least half the number of weeks in
which they worked in the preceding year, are overruled to the extent that they are
inconsistent with this decision.
Horder's, Incorporated and Warehouse and Mail Order Em-
ployees Union Local 743, AFL, Petitioner. Case No. 13-RM-242.
October 28,1955
DECISION AND CERTIFICATION OF
REPRESENTATIVES
Pursuant to a stipulation for certification upon consent election
approved on June 22, 1955, an election by secret ballot was conducted
on July 13, 1955, under the direction and supervision of the Regional
Director for the Thirteenth Region among the employees in the stipu-
lated unit. Upon conclusion of the election, a tally of ballots was fur-
nished the parties in accordance with the Rules and Regulations of
the Board. The tally shows that of about 109 eligible voters, 104
cast ballots, of which 60 were for and 39 against the Petitioner and 5
voted challenged ballots. The challenged ballots were not sufficient in
number to affect the results of the election.
On July 20, 1955, the Employer filed timely objections to conduct
affecting the election. The Regional Director investigated the objec-
tions and on August 25, 1955, issued his report on objections, in which
he found that the objections were without merit and recommended
that the objections be overruled and that the Petitioner be certified.
On September 2, 1955, the Employer filed timely exceptions together
with a supporting brief to the Regional Director's report.'
Upon the basis of the entire record in this case, the Board makes
the following findings of fact :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
' The Employer's request for oral argument is denied for the reason that the exceptions
and briefs fully set forth the respective positions of the parties.
114 NLRB No. 125.
752 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. A question affecting commerce has arisen concerning the repre-
sentation of employees of the Employer within the meaning of Sec-
tion 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The parties stipulated and we find that the following employees
of the Employer constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9 (b) of the Act:
All employees engaged in warehousing and related operations at the.
Employer's warehouse located at 231 South Jefferson, Chicago, Illi-
nois, including maintenance employees, but excluding all general
office and clerical employees, professional employees, guards, and all
supervisors within the meaning of the Act.
5. In conformity with the Regional Director's recommendation, we,
find no merit in the Employer's objections.
The main objections 2 of the Employer refer to certain statements-
in a leaflet which was distributed by the Union the day before the
election. These statements related to certain provisions which this.
Union had just negotiated with Butler Brothers, a firm located in the
same general labor market area.' These statements consisted princi-
pally of the following claims by the Union :
(a) All employees at Butler's, with the exception of open stock
order fillers, receive $1.871/20 per hour.
(b) Open stock order fillers receive $1.60 per hour with addi-
tional increases on all jobs of 70 per hour for next year and 61/2¢
for the following year. These are minimum rates only-over 30%
of the people are receiving rates above these.
(c) Members at Butler's receive up to 60 days a year sick leave
with full pay.
(d) Members at Butler's receive severance pay, upon leaving
the company, of 1 week per each year of service.
The Regional Director found as to (a), the statement would have,
been true if it had been qualified by the phrase "after they have reached
30 months' service"; as to (b), the statement should have been qualified
by "after they have reached 24 months' service"; as to (c), the state-
ment should have been clarified by the phrase "only after 10 years"
service"; as to (d) the statement should have been that severance pay
is granted of 1/2 week for each year of service.'
2 The other minor objections and exceptions to- the Regional Direetoi's report are not
of'sufficient significance to warrant furthei consideration.
9 A few hours before the election , the Employer contacted Butler Bros and issued a
statement to the employees, calling attention to the tact that the contract had not yet
'been' signed , , that the rates quoted in the Union 's leaflet were "phony ," and urging the
employees to vote against the Union We find in agreement with the Regional Director
that, although the contract had not yet been executed , it had been negotiated and that
there is no evidence that the Union had clauued otherwise
.•-+Tlie Union explained that as the piovision foi severance pay was not part of the.
contract they relied on what they believed to be the sei erance pokey- of i:utlec Bros
HORDER'S, INCORPORATED 753
The Regional Director concluded that, although the above state-
ments in the leaflet were exaggerations and half-truths and should not
be condoned, nevertheless, in conformity with Board policy that it will
not police the qualitative claims of the parties in an election campaign,
the objections should be overruled. Moreover, in this instance, both
parties had issued many communications to the employees, the Union
having issued 12 leaflets and the Employer 11 communications, includ-
ing the last word before the election.
The Employer urges that under the rule in the Gummed Products
case,' the misstatements noted above were so misleading that the con-
duct exceeded the limits of legitimate propaganda and lowered the
standards of campaigning to a level which impaired the free and un-
trammeled expression of choice by the employees herein. We do not
agree.
Although there are certain similarities, we believe that a number of
f actors clearly distinguish the Gummed Products case and make it in-
applicable to the present proceeding. Thus in the Gummed Products
case a union leaflet claimed that the contract with another firm had
been signed, and after the Employer had issued a communication call-
ing attention to discrepancies in the union leaflet, the Union reaffirmed
the claim that certain rates were in effect, although no such contract
had been signed and no-such rates were in effect. In the instant case,
there is no contention that the Union claimed the contract had been
signed whereas in fact it had not. Furthermore, as the statements re-
ferred to in the leaflet could well have covered a substantial number of
employees, who had served the period required for receiving these rates,
such statements would not have been untrue as applied to the employees
in this group. Finally, we note that; unlike the Gummed Products
case, supra, the statements here were not repeated by the Union after
their contradiction by the Employer, a factor which the Board ob-
served 111 the Gummed Products case made such statements "entitled
to greater than ordinary weight."
The Board has frequently held that it will not police ordinary cam-
paign representations for their truth or falsehood but will allow the
good sense of the employees to determine which are true and which are
;false insofar as they may affect the'validity of the election.6 In view
-of the foregoing, we find that, although exaggerations and half-truths
-are not condoned by the Board, the representations herein are not so
-misleading and false as to justify us in setting the election aside.7
In accordance with the Regional Director's recommendations we
hereby overrule the Employer's objections. As the Warehouse and
Mail Order Employees Union Local 743, AFL, has secured a majority
'112 NLRB 1092.
6 Stewart -Warner Corporation, 102 NLRB 1158, 1158
7 See Gong Bell Manufacturing Co., 11 4 NLRB 342
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the valid votes cast, we shall certify it as the bargaining representa-
tive of the employees in the appropriate unit.
[The Board certified Warehouse and Mail Order Employees Union,
Local 743, AFL, as the designated collective-bargaining representa-
tive of the employees engaged in warehousing and related operations
at the Employer's warehouse.]
MEMBER MURDOCK took no part in the consideration of the above
Decision and Certification of Representatives.
Seaboard Terminal and Refrigeration Company and Interna-
tional Brotherhood of Longshoremen, AFL
Seaboard Terminal and Refrigeration Company and Interna-
tional Longshoremen's Association , AFL (now known as Inter-
national Brotherhood of Longshoremen , AFL), Petitioner.
Cases Nos. 2-CA-4071 and 2-RC-6496. October 08, 1955
DECISION, ORDER, AND CERTIFICATION OF
REPRESENTATIVES
On April 26, 1955, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. The Trial Examiner also recommended that the ob-
jections to conduct affecting the results of the election held on Sep-
tember 23, 1954, in Case No. 2-RC-6496 be found without merit.
Thereafter, the General Counsel, the International Brotherhood of
Longshoremen, AFL (hereinafter called IBL-AFL), and Local 976,
International Longshoremen's Association, Independent (hereinafter
called ILA) filed exceptions to the Intermediate Report and support-
mg ,briefs. The Respondent filed a brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.'
The Board has considered the Intermediate Report, the exceptions and
briefs,.and the entire record in this case , and hereby adopt the findings,
conclusions, and recommendations of the Trial Examiner with the fol-
lowing additions and modifications.
' we find that Baffa 's affidavit, as contended by the General Counsel , was erroneously
iejected by the Trial Examiner Such affidavit , to the extent it contained prior incon-
sistent statements , was admissible as tending to discredit Baffa ' s testimony at the hearing.
V L R B v priest- Shon Mark Brassiere Co , Inc., 185 F 2d 285 , 289 (C. A . 2). In the
circumstances present here , however, we do not deem the Trial Examiner 's error as
prejudicial , nor does it affect the result reached herein.
114 NLRB No. 127.