Somismo, Inc.

National Labor Relations Board - Board Decisions

Oct 24, 1961

133 N.L.R.B. 1310 (N.L.R.B. 1961)

1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. United Cement , Lime & Gypsum Workers Local Union No. 396, AFL-CIO,
and United Cement, Lime . & Gypsum Workers International Union, AFL-CIO, are
labor organizations within ' the meaning 9f Section 2(5) of the Act.
2.. All production, and maintenance employees including firemen , graders, hoist
men, rock men , hydrator-separator men, baggers and loaders , mechanics , mechanic's
helpers, oilers, utility men, cleanup men , and truckdrivers , both full and part-time
employees of the Respondent, employed at its Sallisaw , Oklahoma , plant, exclusive
of office clerical employees, professional employees , guards, watchmen and all super-
visors as defined in the Act, constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act.
3. By virtue of Section -9(a) of the Act the said Union has been since March 24,
1960, and now is, the exclusive representative of all employees in the said appropriate
unit for the purposes of, collective bargaining with respect to rates of pay, wages,
hours of employment , and other terms and conditions of employment.
4. By refusing, since April 1960, to bargain collectively in good faith with the said
Union as - the exclusive representative of all employees in said appropriate unit, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (5) of the Act. _
5. By interfering with, restraining , and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Somismo, Inc. and Warehouse and Mail Order Employees, Local
Union No. 743,' International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America (Production
Division ), Petitioner. Case No. 13-RC-7604. October 24, 1961
.DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
Pursuant to a stipulation for certification upon consent election, an
election by secret. ballot was conducted by the Regional Director on
March 9,1961, among the employees in the unit described below. After
the election, the parties were furnished with a tally.of ballots which
showed that, of approximately 60 eligible voters, 54 cast valid ballots,
of which 28 were. against, and 26 were for, the Petitioner. The Peti-
tioner filed timely objections to conduct affecting the results and con-
duct of the election.
After investigation, the Regional Director, on April 26, 1961, issued
and served upon the parties his report on objections inwhich he recom-
mended that all the objections be overruled. Thereafter, the Petitioner
filed timely exceptions to the.Regional Director's report.
Upon the entire record in this case , the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
133 NLRB No. 131.
SOMISMO, INC. 1311
2. The Petitioner is a labor organization claiming to represent cer-
tain employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Sections
9(c) (1) and 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that all production and main-
tenance employees and warehouse employees employed- at the Em-
ployer's Chicago, Illinois, plant, excluding guards, professional em-
ployees, office clerical employees, and supervisors as defined in the Act
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
5. In its objection No. 1 the Petitioner contends that a speech made
by the Employer to an assembled meeting of the employees prior to
the election exceeded the bounds of permissible campaigning, and
thereby interfered with the freedom of choice of the employees. The
investigation showed that the Employer called a meeting of its em-
ployees on March 8, 1961, at 11 a.m., and that the meeting lasted until
about 11:30 a.m. The election was held on March 9, 1961, from 3 :30
p. M. to 5 p.m. At the assembled meeting in question the"Employer's
president spoke to the employees in English and an employee after
every few sentences translated the remarks into Spanish. A transcript
of the tape recording of the speech submitted by the Employer reads,
in part, as follows :
... Now what I mean to bring out to you is simply this : that
if by chance the Union were to' be voted into this shop, there is no
doubt in my mind, because of the terrific demands that they are
showing, there is no doubt in my mind that there will be a strike.
.Somismo will not be able to cope with that problem; there will be
a ,strike; whether we go out of business or not I am not saying
right now. Use your own judgment. Most of you, as I have said,
have been here a long time, and you know what we can withstand.
... This [sic] tremendous demands that the Union has shown
is going to fight to get for you if you sign a contract with Somismo
are so out of proportion, so ridiculous that I hope some of you
men that are entertaining such thoughts can realize how utterly
impossible it is. As'it is now, we've laid off a number of men
already and you all know it.....
... Once more, I want to,say that the demands of the Union
cannot and will not be met....
The Regional Director held that the speech in question was a mere pre-
diction of the dire consequences which would result from a union's
policies, or, demands, rather than from the ,Employer's actions, and
was therefore privileged. We do not agree. In our opinion the Em
ployer's remarks conveyed to employees the threat-'that it would go
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out of business if it had to deal with the Union. We conclude that
such conduct interfered with the employees' freedom of choice and
warrants setting aside the election. Accordingly, we shall set the
election aside and order a second one.'
[The Board set aside the election.]
[Text of Direction of Second Election omitted from publication.]
MEMBER RODGERS dissenting :
In accordance with the report of the Regional Director, who investi-
gated, and found without merit the various objections advanced by
the Union, I would overrule the objections and certify the results of
the election herein.
MEMBER FANNING took no part in the consideration of the above
Decision, Order, and Direction of Second Election.
i In the absence of exceptions thereto, we adopt pro forma the Regional Director's
recommendations that objections Nos. 2 and 7 be overruled . In view of our disposition
of objection No. 1, we find it unnecessary to, and therefore do not, rule on the issues
raised by the Petitioner in its exceptions to other recommendations made by the Regional
Director.
Local Union No. 450, International Union of Operating Engi-
neers, AFL-CIO [Proton] and Charles C. Hart, et al. Cases
Nos. 23-CB-208, 23-CB-209, 23-CB-232; 23-CB-234, 23-CB-237,
23-CB-239, 23-CB-242, 23-CB-248, 23-CB-249, and 23-CB-256.
October 24, 1961
SUPPLEMENTAL DECISION AND ORDER
On December 15, 1960, the Board issued its Decision and Order in
the above-entitled proceeding,' finding that the Respondent had en-
gaged in and was engaging in certain unfair labor practices violative
of Section 8(b) (1) (A) and (2) of the Act. Specifically, the Board
found that the Respondent had, entered into and maintained an ar-
rangement with the Employer, Procon, which arrangement was un-
lawful because (1) Procon could employ only members of the
Respondent on a certain project (Job 1405), and (2) that arrange-
ment required that Procon hire exclusively through the Respondent
and failed to contain certain safeguards deemed by the Board in its
Mountain Pacific decision 2 to be essential to the establishment of a
lawful exclusive hiring hall arrangement. The Board also found that
1 129 NLRB 937 ( Member Fanning not participating).
Mountain Pacific Chapter of the Associated General Contractors , Inc., et al., 119
NLRB 883.
133 NLRB No. 132.