Wiley Mfg., Inc.

National Labor Relations Board - Board Decisions

Apr 19, 1951

93 N.L.R.B. 1600 (N.L.R.B. 1951)

1600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The foregoing does not establish such diverse interests on the part
of the retail department employees to warrant, as the Employer urges,
their exclusion from the unit. Nor do we find any other basis for
excluding the retail employees from the historical bargaining unit,
especially in view of the fact that no union before us seeks to repre-
sent these employees separately.
Accordingly, we find that all production and maintenance em-
ployees and all employees in the retail sales department of the Em-
ployer at its Spokane, Washington, plant, excluding office and cleri-
cal employees, guards,4 professional employees, and supervisors, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
4 We find that the armed and deputized watchman who devotes 331/3 percent of his time
to production work is a guard, and we therefore exclude him,. Scott & Williams, Inc.,
92 NLRB No. 153.
WILEY MFG., INC. and LOCAL 154, UNITED FURNITURE WORKERS OF
AMERICA, CIO, PETITIONER. Case No. 1-RC-1674. April 19, 1951
Supplemental Decision and Certification of Representatives
Pursuant to a Decision and Direction of Election,' issued on Novem-
ber 10, 1950, in the above proceeding, an election by secret ballot was
conducted on December 1, 1950, under the direction and supervision
of the Regional Director for the First Region. At the conclusion of
the election, the parties were furnished with a. tally of ballots which
shows that, of 56 eligible voters, 51 cast ballots, of which 26 were for
the Petitioner, 23 were against the Petitioner, and 2 were challenged.
No other labor organization was on the ballot.
On December 7, 1950, the Employer filed objections to conduct
affecting the results of the election, alleging, inter alia, (a) that it was
aggrieved by the refusal of the Board agent conducting the election
to permit Mrs. Wiley to act as an observer, and (b) that the Petitioner
engaged in conduct which was violative of the Act.
After an investigation, the Regional. Director, on January 12, 1951,
issued his report on objections in which he found that all the objections
raised by the Employer were without merit. The Regional Director
accordingly recommended that the objections be overruled. There-
after the Employer filed exceptions to so much of the Regional Direc-
tor's report as dealt with the two objections set forth above. The
1 92 NLRB 40.
93 NLRB No. 267.
WILEY MFG:, INC. 1601
exceptions contained no reference to the Regional Director's findings
concerning various other objections which the Employer had voiced.
Objection (a) : It appears that the Employer appointed Mrs. Wiley
to act as its observer at the election. In the Board's Decision herein,
the Board noted that Mrs. Wiley was the wife of the Employer's
president and on the basis of this circumstance, it excluded her from
the bargaining unit. When Mrs. Wiley appeared at the polls, the
Board agent advised her that she could not act as an observer and sug-
gested that an office employee serve in her stead. Mrs. Wiley agreed
and a selection was made. The office employee remained at her post
as an observer for about 15 minutes,2 when Mr. Wiley, the Employer's
president, came to the polls and directed the office employee to leave.
He then advised the Board agent that he was "withdrawing from the
election" and left the premises.
In its exceptions, the Employer contends that the Board agent's
objection to Mrs. Wiley as an observer was improper and resulted in
prejudice to the Employer. We find no merit to this contention.
The Board has frequently stated that an Employer does not have
an absolute right to appoint observers in a Board-conducted election.3
Board Rules permit parties to be represented at an election by ob-
servers of their own selection, but subject to such limitations as the
Regional Director may prescribe.4 In the instant case, Mrs. Wiley
was the wife of the Employer's president, a fact noted by the Board
in its Decision. Because of her close relationship to management,
albeit by marriage, we are unable to find that the Board agent's action
in disqualifying Mrs. Wiley as an observer was arbitrary and
capricious.'
. Objection (b) The Employer failed to furnish any substantiating
evidence for this objection when it was initially made. The Em-
ployer merely alleged that "the Union's pre-election campaign vio-
lated the NLRB rules and regulations and the N. L. R. A." On De-
cennber 7, 1950, a Board representative wrote the Employer that he
was investigating the Employer's objections, and referring expressly
to the afore-mentioned objection, requested the Employer to "outline
briefly the facts and circumstances underlying these allegations so
that I may be able to investigate them." He further stated that the
"information should include names and addresses of witnesses, copies
of documents . . . or any other evidence by means of which you pro-
2 The election was conducted from 3, 15 p in to 4 • 00 p. m.
3 Burrows and Sanborn , 84 NLRB 304 and cases cited therein.
' Rules and Regulations-Series 6, Section 102 61.
5 Burrows and Sanborn , cited supra ; Harry Manaster & Bros , 61 NLRB 1373 We
regard as frivolous the Employer ' s contention that the Regional Director should have
conducted an investigation to determine for what reason the Board agent disqualified
Mrs Wiley.
943732-51-102
1602 DECISIONS OF NATIONAI LABOR RELATIONS BOARD
pose to prove the facts underlying the . .. above mentioned con-
tenti ons."
On December 14, the Employer replied to this letter stating, in part,
that "it is our position that during the course of the campaign the
Union made threats to employees that if the Union won the election,
employees who were not members of the Union would not be taken into
the Union and/or would lose their jobs with the company."
In its letter, the Employer also declared that it was relying on cer-
tain leaflets distributed by the Petitioner on named dates during the
preelection period for support of its case against the Petitioner'
that it regarded them improper because (1) they promised se-
curity against wage cuts and layoffs, paid vacations, and holidays, and
(2) attributed to the Employer a desire to cut wages and lay off em-
ployees without regard to seniority.
In his report on objections, the Regional Director noted the allega-
tion of the Employer in its letter with respect to the Petitioner's
conduct but rejected it as lacking in merit because no specific evidence
was offered to substantiate it. As to the leaflets referred to in the let-
ter, the Regional Director found that they were privileged.
In its exceptions, the Employer contends that the Regional Direc-
tor (1) should have made a more thorough investigation of the Em-
ployer's claims regarding the Petitioner's activities, and (2) erred in
his findings concerning the leaflets.
As to the Employer's first contention, the Board has indicated
in earlier cases that it can attach no validity to objections based on
alleged interference with elections where, absent manifest interfer-
ence, the objecting party takes no steps to substantiate its allegations
or otherwise assist the Board in its investigation of the objections.'
Here the Board representative, investigating the Employer's objec-
tions, specifically requested the Employer to furnish proof of its claims
and to list the names and addresses of witnesses on whom it was rely-
ing. The Employer ignored this request. Under the circumstances,
we do not believe that it was incumbent on the Regional Director to
pursue the matter further.
As to the Employer's contentions regarding the leaflets, we have
examined them and particularly the sections to which the Employer
has called attention, and like the Regional Director find that they are
campaign propaganda privileged under Section 8 (c) of the Act.
Upon the basis of the foregoing, we find that the exceptions of the
Employer raise no material or substantial issues. Ave therefore adopt
the Regional Director's report and in accordance therewith, we
hereby overrule the objections. As the tally shows that the Petitioner
has secured a majority of the valid votes cast in the election, we shall
6 Eagle Overall Supply Co ., Inc., 81 NLRB 348; Stonewall Cotton Malls , 78 NLRB 28.
SOMERVILLE BUICK, INC. 1603
certify it as the bargaining representative of the employees in the
appropriate unit.
- Certification of Representatives
IT IS HEREBY CERTIFIED that Local 154, United Furniture Workers
of America, CIO has been designated and selected by a majority of the
employees of the above-named Employer, in the unit heretofore found
appropriate, as their representative for the purposes of collective bar-
gaining and that pursuant to Section 9 (a) of the Act, as amended,
the said organization is the exclusive representative of all the em-
ployees in such unit for the purposes of collective bargaining with
respect to rates of pay, wages, hours of employment, and other
conditions of employment.
MEMBERS HOUSTON and REYNOLDS took no part in the consideration
of the above Supplemental Decision and Certification of Repre-
sentatives.
SOMERVILLE, BUICK, INC.' and LOCAL 841, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, A. F. L., AND LODGE 1898 OF DISTRICT 38 OF THE INTERNA-
TIONAL ASSOCIATION OF MACHINISTS. Case No. 1-CA-693. April 20,
1951
Decision and Order
On January 25, 1951, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding finding that the
Respondent had engaged in and was engaging in certain unfair ,labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a brief in support of its
exceptions.
The Board 2 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed 3 The Board has considered the
1 The complaint and other formal papers were amended at the hearing to show the
correct name of the Respondent
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[Chairman Herzog and Members Reynolds and Murdock].
8 We find no merit in the Respondent's contention that the Trial Examiner erred by
denying the Respondent ' s motion for a continuance of the hearing for 1 week. The
Respondent does not show that it was prejudiced in any manner by the Trial Examiner's
denial of its motion and it does not appear that there has been any abuse of discretion
on the part of the Trial Examiner. A J. Saris Products Corporation of Virginia, 90
NLRB 132, enforced, N. L. R B. v. A. J. Sires Products Corporation of Virginia, 186 F.
2d 502 (C. A. 4, 1951). We also find no merit in the Respondent 's contention that the
Trial Examiner failed to consider the Respondent's brief.
93 NLRB No. 268.