Capital Transit Co.

National Labor Relations Board - Board Decisions

Sep 18, 1952

100 N.L.R.B. 1173 (N.L.R.B. 1952)

CAPITAL TRANSIT COMPANY 1173
require that the election be conducted again.' Under the circum-
stances, we shall set the election aside and direct that a new election
be held.
Order
IT is HEREBY ORDERED that the election held on May 9, 1952, among
employees of the Employer at its Covington, Kentucky, plant, be, and
it hereby is, vacated and set aside.
[Text of Second Direction of Election omitted from publication
in this volume.]
9 See North American Aviation , Inc, 81 NLRB 1046 , and cases cited therein
CAPITAL TRANSIT COMPANY and DIVISION 689, AMALGAMATED ASSOCIA-
TION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES
OF AMERICA, PETITIONER. Case No. 5-RC-856 . September 18,1952
Supplemental Decision, Order, and Second Direction of Election
Pursuant to a Decision and Direction of Election issued herein on
February 18,1952,1 an election by secret ballot was conducted on March
13, 1952, under the direction and supervision of the Regional Director
for the Fifth Region, among the employees in the voting group estab-
lished by the Board. Following the election, a tally of ballots was
furnished the parties. The tally shows that of approximately 190
eligible voters, 185 cast valid ballots, of which 81 were for, and 102
were against the Petitioner. There were 2 challenged ballots.
Thereafter, on March 20, 1952, the Union filed timely objections to
conduct affecting the results of the election. The Regional Director
investigated the objections and, on May 16, 1952, issued and duly
served upon the parties a report on objections, in which he recom-
mended that the objections be overruled and that the Board issue a
certification of results of election. On May 28, 1952, the Union filed
exceptions to the Regional Director's report.
The Employer, asserting that the Union's exceptions should not be
considered because (1) they were not filed within the 10 days' time
provided in Section 102.61 of the Board's Rules and Regulations, and
(2) they were not filed with the Regional Director as required by that
rule, urges the adoption of the Regional Director's recommendations.
As service of the Regional Director's report was made by mail, 3 days
x Capital Transit Company , 98 NLRB 141.
100 NLRB No. 183.
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
additional time is allowed under Section 102.83 of the Rules.2 Thus,
under all applicable rules,3 we find that the exceptions were timely
filed. That the Union immediately served a copy of these exceptions
upon the other party in this matter as required by the Rules 4 is not
disputed. On June 6, 1952, the Union filed a copy of these exceptions
with the Regional Director. The requirement of immediacy refers
to service of a copy upon each of the other parties. At this stage of
the proceeding, the Regional Director's interest, as a party, is neces-
sarily suspended until the Board acts upon his report. However,
administratively, his interest is a continuing one. In recognition of
and by way of emphasizing this shift in interest, the rule provides that
a copy shall be "filed" with the Regional Director rather than requir-
ing that he be "served" as a party. In the absence of any specific time
limitation on the filing of the copy with the Regional Director, such
filing is sufficient if performed within a reasonable time under -the
circumstances of the particular case. In the present instance, where
the period in question was less than 7 days after the exclusion there-
from of nonworking days,5 we regard the filing of a copy of the excep-
tions with the Regional Director on June 6, 1952, as sufficient com-
pliance with the intent of the rule. The Employer's motion to dismiss
the exceptions is accordingly denied.
The Objections
The Union raised a number of objections to conduit which it alleged
to have affected the results of the election. Among these, the -Union
objected to, as coercive and as containing threats of reprisal, a letter
directed to all eligible voters by the Employer's president 3 days be-
fore the election. The Regional Director found that although some
See Kettleman North Dome Association, 96 NLRB No. 18.
Applicable portions of the Rules and Regulations provide in part as follows :
Section 102.61- . . . Within 10 days from the date of issuance of the report on
challenged ballots, objections , or both, any party may file with the Board in Wash-
ington , D. C , seven copies of exceptions to such report. . . .
Section - 102.83- . . . Whenever a party has the right or is required to do some act
or take some proceedings within a prescribed period after service of a notice or other
paper upon him, and the notice or paper is served upon him by mail , 3 days shall be
added to the prescribed period, provided however , that 3 days shall not be added if
any extension of such time may have been granted.
"Section 102 61- . . . Immediately upon the filing of such exceptions , the party filing
the same shall serve a copy thereof upon each of the other parties, and shall file a copy
11with the regional director. . . .
5 See Section 102 83 of the Rules and Regulations which in part provide that when, in
analogous circumstances , the period of time prescribed or allowed is less than 7 days,
intermediate Sundays and holidays ( including Saturdays on which the Board's offices are
not open ) shall be excluded in the computation.
CAPITAL TRANSIT COMPANY 1175
of the statements in the letter were "deplorable," they were protected
under Section 8 (c) of the Act. The Union excepted to this finding
as a matter of law. Particularly significant portions of the letter
read as follows :
. .. the Board issued an order holding that your duties were not
supervisory . . . In my opinion, the Board order was clearly
wrong and contrary to the weight of the testimony offered at
the hearing . . . You know you cannot possibly properly perform
your duties without exercising supervisory authority . . . The
Company feels so strongly that you are a supervisor that, despite
the order of the Board, you will be treated as such unless we are
told by the courts that we cannot continue to do so . . . Has it
occurred to you that the Union may want to represent you so that
you will not be able to exercise supervisory authority and re-
sponsibility? . . . you must be sure to vote, for a failure to vote
is almost the same as a vote for the choice you do not want .. .
(Emphasis supplied.)
The Board has held that the protection accorded by Section 8 (c) in
unfair labor practice proceedings does not preclude the Board from
finding in a representation proceeding that such statements, in fact,
interfered with the employees' freedom of choice in an election e
By this letter the Employer announced a policy to treat these em-
ployees as supervisors, rather than as employees as determined by the
Board, unless and until told by the courts to do otherwise. As a test
by the courts could occur only by the Employer engaging in conduct
which this Board would find to be an unfair labor practice, and as
the question of supervisory status was the primary issue in the repre-
sentation proceeding involving most of the eligible employees, this
letter not only carried a threat to disregard the eligible voters' pro-
tected rights, but also was reasonably calculated to impart to them
the futility of selecting a bargaining representative, and the possible
danger of reprisal if they chose to do so. Under these circumstances,
we find' that by the letter, the Employer created an atmosphere in-
compatible with freedom of choice by his employees.8 Accordingly,
we shall set the election aside and direct that a new election be
conducted.9
6 General Shoe Corporation , 77 NLRB 124.
'' See Metropolitan Life Insurance Company, 90 NLRB 935, Howell Chevrolet Company,
95 NLRB 410.
$ Chairman Herzog joins in the result , deeming himself bound by the decision in the
Metropolitan Life Insurance Company, supra , to which he dissented
C As we are setting the election aside on this ground , we find it unnecessary to pass upon
the merits of the remaining objections.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order
IT IS HEREBY ORDERED that the election held on March 13, 1952, among
employees of the Employer be, and it hereby is, vacated and set aside.
[Text of Second Direction of Election omitted from publication in
this volume.]
MEMBER PETERSON took no part in the consideration of the above.
Supplemental Decision, Order, and Second Direction of Election.
SEAFARERS ' INTERNATIONAL UNION OF NORTH AMERICA, AFL, AND
INTERNATIONAL BROTHERHOOD OF FIREMEN AND OILERS, LOCAL 249,
AFL and HAMMERMILL PAPER COMPANY. Case No. 6-CC-61.
September 19, 1952
Decision and Order
On February 26, 1952, Trial Examiner David London issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent International Brotherhood of Firemen and Oilers,
Local 249, AFL, herein called Local 249, had engaged 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
Intermediate Report attached hereto. Thereafter, the General Coun-
sel and Local 249 filed exceptions to the Intermediate, Report and
briefs.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings , conclusions , and recom-
mendations of the Trial Examiner, with the following additions :
1. We agree with the Trial Examiner 's conclusion that Local 249 vio-
lated Section 8 (b) (4) (A) of the Act by inducing and encouraging
the employees of Hammermill to engage in a concerted work stoppage
for the purpose of forcing or requiring Hammermill to cease doing
business with Hall. As more fully detailed in the Intermediate
Report, this finding of the Trial Examiner is based upon the,advice
of Dunlavey, business agent of Local 249, to employee-members of
that labor organization not to cross the picket line. We affirm the
Trial Examiner's ruling that such advice constituted inducement and
encouragement within the meaning of this section of the amended
Act. In addition, the record reveals that Wallace Jones, who in-
100 NLRB No. 192.