Radiant Lamp Corp.

National Labor Relations Board - Board Decisions

Aug 21, 1947

74 N.L.R.B. 1338 (N.L.R.B. 1947)

In the Matter of RADIANT LAMP CORPORATION and UNITED ELECTRICAL,
RADIO & MACHINE WORKERS OF AMERICA, CIO
Case No. 2-R-7'i66.Decided August 21, 1947
Mr. E. S. Silber f eld, of New York City, for the Employer.
Mr. Morton Stavis , of Newark , N. J., for the Petitioner.
Mr. Mitchell G. Trott, of Brooklyn, N . Y., for the Intervenor.
Mr. Benjamin B. Lipton , of counsel to the Board.
DECISION
AND
CERTIFICATION OF REPRESENTATIVES
Upon a petition duly filed, the National Labor Relations Board
on July 11, 1947, conducted a prehearing election among the em-
ployees of the Employer in the alleged appropriate unit, to determine
whether they desired to be represented by the Petitioner, or by the
Intervenor, or by neither.
At the close of the election, a Tally of Ballots was furnished the
parties. The Tally shows that there were approximately 140 eligible
voters, and that 137 voters cast ballots, of which 67 were for the Peti-
tioner, 50 were for the Intervenor, and 20 were challenged. No votes
were cast against either of the participating labor orgamzations.
Thereafter, a hearing was held at New York City on July 30, 1947,
before Sidney Reitman, hearing officer. The hearing officer's rulings
made at the hearing are free from prejudicial error aild are hereby
affirmed .1
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Radiant Lamp Corporation, a New Jersey corporation, is engaged
in the manufacture, sale, and distribution of motion picture projection
' Over the Petitioner 's objection , the hearing officer admitted evidence of certain state-
ments by a deceased employee to witnesses of the Intervenoi . In view of out finding in
Section V , 2n fi a, with respect to Objection 5, we deem it unnecessary to pass upon the
admissibility of such evidence
74 N L. R. B, No. 224.
1338
RADIANT LAMP CORPORATION 1339
lamps, bulbs for Naval search lights, and other incandescent lamps at
its Newark, New Jersey, plant. During the year preceding the hear-
ing, the Employer purchased raw materials valued m excess of $200,-
000, of which at least 50 percent was shipped to its Newark plant from
points outside the State of New Jersey. During the same period, the
Employer sold in excess of $250,000 worth of finished products, of
which approximately 75 percent was shipped to points outside the
State.
The Employer admits, and we find, that it is engaged In commerce
within the meaning of the National Labor Relations Act.
II. TIRE ORGANIZATION INVOLVED
The Petitioner is a labor' organization affiliated with the Congress
of Industrial Organizations, claiming to represent employees of the
Employer.
International Brotherhood of Electrical Workers, Local 730, herein
called the Intervenor, is a labor organization affiliated with the Amer-
ican Federation of Labor, claiming to represent employees of the
Employer.
III. TIS17 QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the Pe=
titioner has been certified by the Board in an appropriate unit.
On June 11, 1946, the Employer and the Intervenor entered into a
collective bargaining contract to expire on May 15, 1947, with a 30-day
automatic renewal provision. On January 17, 1947, the Employer and
the Intervenor executed a supplemental agreement extending the-con-
tract term to August 15, 1947. The petition herein was filed on April
11, 1947. The Intervenor asserts that the extended agreement is a bar
to the present proceedings.
The supplemental agreement, having been executed prior to April 15,
1947, the automatic renewal date of the June 11 agreement, cannot
operate as a bar to the petition filed before April 15, 1947, inasmuch as
the supplemental agreement represents a premature extension of the
original contract." Accordingly, we find that the June 11, 1946, con-
tract and the January 17, 1947, supplement thereof, do not constitute
a bar to a present determination of representatives.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
'Matter of Continental Can Company, Ine, 73 N L R B 1375, Matter of Houston
Paei zng Company , 71 N L R. B 1232
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1V. THE APPROPRIATE UNIT
The Petitioner and the Intervenor are in general agreement that
the appropriate unit should consist of all production and maintenance
employees of the Employer, excluding office, clerical, and supervisory
employees.3 The sole dispute between them concerns the classification
of home worker,4 whom the Intervenor would include and the Peti-
tioner exclude. The Employer takes no position with respect to the
appropriate unit.
Home workers perform the same type of work at home that Bending
and Inserting Department employees. perform at the plant. Home
workers were not included in the contract unit, although there is
evidence that for several months prior to the hearing the Employer
and the Intervenor discussed the propriety of including them in the
bargaining unit. Home workers do not receive paid vacations or holi-
days, as do the plant employees; they are paid on a piece-rate basis
as distinguished from the hourly rate paid at the plant; and they do
not have the same direct supervision maintained over employees at the
plant. In view of the past bargaining history and the diverse in-
terests and conditions of employment of home workers, we shall exclude
them from the appropriate unit.'
Accordingly, we find that all production and maintenance employees
of the Employer at its Newark, New Jersey, plant, excluding home
workers, office, clerical, and supervisory employees, constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
V. THE OBJECTIONS
At the hearing, the Intervenor objected to the conduct of the pre-
hearing election on the grounds that :
1. The facts in this case warranted the holding of a hearing prior
to the election; therefore, the issues involved were not clear to the
voters. The holding of the prehearing election over the objection of
the Intervenor was detrimental to its ultimate chances of victory at
the polls.
The Board has frequently rejected such contentions with respect to
its prehearing election procedure, holding that no prejudice can result
in view of the fact that full opportunity is afforded at a subsequent
hearing, as it was in this case, to explore any disputed issue.6
3 This unit description is substantially the same as that contained in the Notice of Elec-
tion and in prior contracts between the Employer and the Intervenor
4 There is evidence that some home workers appeared at the polls and cast ballots but
were challenged
5 Matter of Howell Electric Motors Company, 59 N. L. R. B. 1171.
6 Matter of Estee Bedding Company , 73 N. L. R B. 825.
RADIANT LAMP CORPORATION 1341
2. The Petitioner was given advance information that a' prehearing
election was to be held in this case, thus enabling the Petitioner to
publish and disseminate information to the employees in advance of
the Intervenor, to the latter's prejudice.
As noted above, the petition in this case was filed on April 11, 1947.
Thereafter, conferences were conducted at the Board's regional office
and a prehearing election was scheduled for May 28, 1947. At a
conference in which the Board agent sought to make the necessary
arrangements for the election, the usual question was raised with re-
spect to an appropriate polling place, whereupon, the Petitioner sug-
gested the use of a certain public school. There being no objection,
effort was made to obtain the use of this school and with the assistance
of the Petitioner these premises were secured. However, the May 28
election was postponed by the Board following the filing of unfair
labor practice charges by the Intervenor. These charges were subse-
quently dismissed. Upon being advised that the Intervenor's appeal
in the unfair labor practice case was dismissed, the Board's agent, on
July 2, 1947, proceeded to secure the use of the aforesaid public school
in the same manner as before. Each of the parties was informed by
telephone of the final dismissal of the charge case and was notified at
the same time that the election previously scheduled would be held on
July 11, 1947.7 This was confirmed by letter dated July 2, 1947, and,
on the same day, notices of election with instructions for posting in
the plant were sent to the Employer. There appears, therefore, no
support in the record that the Board agent favored one union with
advance information to the prejudice of the other.
3. The Petitioner's representatives were delegated by the Board
agent to obtain a voting place and the Intervenor was given no oppor-
tunity to approve or disapprove of the site selected.
On July 9, 1947, 2 days prior to the election, the Board agent was
inforled that the permit for the use of the public school as a polling
place had been revoked. Thereupon, he summoned the Petitioner's
representative to accompany him in search of another voting place for
the election. The record shows that several possible election sites were
visited on July 9 and that the Board agent refused to accept the recom-
mendations of the Petitioner's representative as to one such site. On
July 10, 1947, at 11: 00 a. in. the Board's agent finally obtained a
satisfactory polling site."
The results of the election, as indicated above, show that all but a
few of the eligible voters cast ballots, and there is no showing that the
7 A prehearing election was approved by the Board in this case notwithstanding its
policy statement issued prior to July 2, 1947 , terminating such procedure , inasmuch as such
a piehearing election had previously been scheduled
g The polling place was located on the premises of the Newark Homing Pigeon Club.
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
polling site-was inadequate or not conducive to a free choice of a bar-
gaining representatives Although the procedure adopted by the
Board agent is not above criticism, the record is clear that there was
no such resultant prejudice to any of the parties as would warrant
setting aside the election.
4. The scheduled voting place was changed and notice of the change
was not posted until the close of the working day preceding the
election.
At about 3: 00 p. m. on the day before the election, notices of the
change in polling place were delivered to the Employer for posting.
Both unions and the Employer had been previously notified of the
change by telephone. The relatively short notice of change in polling
place was caused by the revocation of the permit to use the public
school therefor. That it had no discernible effect upon the turnout
of voters is indicated by the number of votes cast, as shown above.10
5. The Petitioner's representative interfered with the right of an
employee to vote by advising such employee not to go to the polls.
The Intervenor's chief shop steward at the plant and another official
of'the Intervenor testified to a conversation each of them had with
Rosa Lawrence, now deceased, during which Lawrence allegedly stated
that on her way to vote she met certain representatives of the Peti-
tioner about a block from the polling place; that these representa-
tives advised her that her vote would be challenged and not counted
and that she should go home; and that as a result thereof she returned
home without voting. The record shows that Lawrence was employed
as a matron on a part-time basis and that her name did not appear on
the eligibility list used at the election. One of the Petitioner's organ-
izer, who was the only representative allegedly clearly identified by
Lawrence, denied having taken part in the alleged conversation. With-
out passing on the admissibility of this evidence- or resolving the
conflict therein, we do not believe that such a conversation occurring
outside the limits of the prohibited electioneering area 12 was intimi
datory 13 even if it did take place as alleged. We find, therefore,
that this alleged conversation constitutes no basis for setting aside the
election.14
Accordingly, we find no merit in the foregoing objections of the
Intervenor, and hereby overrule them.
9 Matter of Bird Machine Company, 67 N L R B 1246.
See Matter of G R Garett Company, Inc, 72 N L R B 1260, and Matter of United
States Gypsum Company, 70 N L It B 1322
" See footnote 1, supra
31 See Matte of General Armatnme Manufacturing Company, 71 N L R B 413
13 See Matter of Central California Packing Company, 67 N. L R B 1071.
11 Cf Matter of Wilson Athletic Goods Mfg. Co , Inc , 73 N L R B 744
RADIANT LAMP CORPORATION
VI. THE DETERMINATION OF REPRESENTATIVES
1343
On August 15,1947, the Employer forwarded to the Board a petition
winch had been presented to it. This petition was ostensibly signed
by 82 employees of the Employer as of August 12, 1947, and pur-
ported to authorize the Intervenor to bargain with the Employer for
these employees. The secret election in this matter having been con-
ducted in July 1947, we do not believe that this post-election petition,
even if authenticated, may overturn and void the election results.
Absent evidence of at least equal weight with respect to the employees'
choice of bargaining representative, we must continue to give con-
clusive effect to the results of a Board-conducted election for a reason-
able period .15
At the hearing, the Petitioner agreed that the 5 votes challenged by
the Intervenor were invalid and that these ballots should not be
counted. No objection was raised by the Employer. Accordingly, we
shall sustain the challenges to these ballots 16 The results of the elec-
tion are now 67 votes for the Petitioner, 59 votes for the Intervenor,
and 15 votes challenged. It therefore becomes unnecessary to deter-
mine the validity of the remaining challenged ballots inasmuch as
they are insufficient to affect the outcome of the election.
The Petitioner has secured a majority of the valid votes cast plus
challenged ballots; we shall therefore certify it as the collective
hargammg representative of the employees in the appropriate unit.l7n
CERTIFICATION OF REPRESENTATIVES
IT IS HEREBY CERTIFIED that United Electrical, Radio & Machine
Workers of America, CIO, has been designated and selected by a
majority of the Employees in the unit described in Section IV, above,
as their representative for the purposes of collective bargaining and
that, pursuant to Section 9 (a) of the Act, the said organization is the
exclusive representatiuve of all such employees for the purposes of
collective bargaining with respect to rates of pay, wages, hours of
employment , and other conditions of employment.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Certification of Representatives.
15 Matter of Jolntson City Foundry and Machreno Works, Inc, 71 N L R . B 825, and
cases cited therein
10 Cf Hatter of Seneca Falls Machine Company , 72 N L R B 904
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