San Diego Glass & Paint Co.

National Labor Relations Board - Board Decisions

Jan 15, 1957

117 N.L.R.B. 59 (N.L.R.B. 1957)

SAN DIEGO GLASS & PAINT COMPANY 59
work consists of preparing cost and price estimates for customers. He
receives the basic data for making his estimates either from customers
or from a field salesman and exercises a certain degree of judgment
and discretion in his calculations. The estimates prepared by Kempf
are checked by the sales manager or general manager and transmitted
to the customer by either the salesman or the sales manager. In some
instances, Kempf also prepares drawings. The Regional Director
does not discuss the skill required to make these drawings. In its ex-
ceptions, the Employer states flatly that Kempf is not a draftsman and
that the drawings he occasionally makes are rough sketches intended
for his own use in making estimates.
We do not agree that, on the basis of the Regional Director's report,
Kempf should be classified as a technical employee. Kempf is part
of the sales and not the drafting department. There is no evidence
that he has the training or experience of a technical employee. It is
significant that at the formal hearing the Petitioner made no conten-
tion that Kempf should be in the unit. Accordingly, we find, contrary
to the Regional Director, that Kempf is not included in the unit and
sustain the challenge to his ballot. As the Petitioner has not secured
a majority of the valid votes cast in the election, we shall certify the
results thereof.
tThe Board certified that a majority of the valid votes was not cast
for Operating Engineers Local Union No. 3, International Union of
Operating Engineers, AFL-CIO, .and that the said labor organization
is not the exclusive representative of the employes in the unit hereto-
fore found appropriate.]
MEMBER MuRDocg took no part in the consideration of the above
Supplemental Decision and Certification of Results of Election.
San Diego Glass & Paint Company and Retail Clerks Interna-
tional Association , Local Union #1222A, AFL-CIO, Petitioner.
Case No. 21-RC-4464. January 15,1957
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
Pursuant to a stipulation for certification upon consent election
executed July 9, 1956, an election by secret ballot was conducted on
July 19, 1956, under the direction and supervision of the Regional
Director for the Twenty-first Region among certain employees of
the Employer. Upon the conclusion of the election, a tally of bal-
lots was furnished the parties in accordance with the Board's Rules-
and Regulations. The tally shows that of approximately 16 eligible
117 NLRB No. 14.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
voters, 6 cast ballots for the Petitioner and 8 cast ballots for no union.
One ballot was challenged and there were no void ballots. The chal-
lenged ballot is not determinative of the results of the election.
On July 25, 1956, the Petitioner filed timely objections to the
conduct of the election and to conduct affecting the results of the
election. , One objection was to the conduct of the election and four
were to conduct affecting the results of the election. A copy of the
objections was timely served on the Employer. In accordance with
the Board's Rules and Regulations, the Regional Director for the
Twenty-first Region caused an investigation to be made of the issues
raised by the objections and, on September 18, 1956, issued and duly
served on the parties a report on the objections. In this report the
Regional Director found that the Petitioner's objections Nos. 3 and
4 (as numbered in the report) to conduct affecting the results of the
election raised substantial and material issues with respect to the
election,and recommended that they be sustained and the election be
set aside. He found no merit in the other objections and recom-
mended that they be overruled.'
On October 1, 1956, the Employer filed exceptions to the Regional
Director's report.
The Board has considered the objections, the Regional Director's
report, the exceptions, and the entire record in the case, and hereby
makes the following findings :
1. The Employer is engaged in commerce within the meaning of
Section 2 (6) of the Act.
2. The labor organization involved claims to represent certain em-
ployees 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.
4. The following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act: All regular retail store sales
employees employed by San Diego Glass and Paint Company in its
retail stores, excluding janitors, warehousemen, truckdrivers, employ-
ees classified as "B" workers, glazers, watchmen, guards, and all
supervisors as defined in the Act.
In its. objection No. 2 the Petitioner alleged that on July 16, 1956,
the store managers of each of the four stores involved in the proceeding
asked the employees in the unit if they were going to vote for or against
the Union. Although the Regional Director's investigation failed to
reveal interrogation of employees by all store managers, he found
that at the Employer's National City store the manager, 2 days before
1 As the Petitioner filed no exceptions thereto, we adopt the Regional Director's recom-
mendation and hereby overrule those objections
SWIFT & COMPANY 61
the election, queried all of the 4 eligible employees as to their choices
in the coming election and stated that he was doing so on instructions
of the head manager in charge of all the stores.
In its exception to this objection the Employer does not deny the
factual findings of the Regional Director but contends that, as the
employees allegedly were not required to answer the question and,
in fact, did not answer the question, the questioning did not interfere
with the employees' free choice in the election. We find no merit in
this contention. We find, in agreement with the Regional Director,
that the questioning of the employees at the National City store as to
their choices in the Board election interfered with the employees'
freedom of choice in the selection of a bargain representative, despite
the Employer's allegation that the employees were not required to
answer. We shall, therefore, order that the election be set aside and
that a new election be held.' In view of the foregoing we find it
unnecessary to pass upon the validity of the Petitioner's objection
No. 3.
[The Board set aside the election held on July 19, 1956.]
[Text of Direction of Second Election omitted from publication.]
MEMBER RODGERS, dissenting :
I do not believe the interrogation here was such as to prevent a free
choice in the election. As I view the Employer's action, it was entirely
devoid of threat or promise of benefit and thus a legitimate expression
of his right of free speech. Therefore, I would sustain the election
and instruct the Regional Director to certify the results thereof.
2 See Southeastern Motor Truck Lanes, Inc, 112 NLRB 601; The Gallaher Drug Com-
pany, 115 NLRB 1379.
Swift & Company and United Packinghouse Workers of America,
AFL-CIO,' Petitioner
Swift & Company and International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America, Depart-
ment Store, Package, Grocery, Paper House, Liquor and Meat
Drivers, Helpers and Warehousemen , Local No. 955, AFL-
CIO,2 Petitioner . Cases Nos. 17-RC-2345 and 17-RC-2356. Janu-
ary 15,1957
DECISION AND DIRECTION OF ELECTIONS
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held in these consolidated cases before
' Herein called Packinghouse Workers.
Herein called Teamsters Local No. 955.
117 NLRB No. 18.