J. J. Newberry Co.

National Labor Relations Board - Board Decisions

Sep 16, 1952

100 N.L.R.B. 1140 (N.L.R.B. 1952)

1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mechanics should be excluded. The Intervenor contends, further,
that the warehouse employees and fork-lift operators should also be
excluded.
The filler machine operators are engaged in operating the machines
which fill the empty bottles with Pepsi Cola and crown them. They
work virtually all of the time operating these machines, which are
part of the production line. The fork-lift operators operate the fork-
lift machines used to transport merchandise in and about the plant,
including the warehouse, production line, and truck-loading areas,
and to load and unload the trucks. The general plant workers work
in the plant and warehouse as inspectors, stackers, and cleaners and
do other types of unskilled work. They constitute a labor pool and
may be moved from job to job either in the production area of the
plant or in the warehouse area. There are no employees who work
exclusively in the warehouse.
The regular route salesmen, of whom there are 82, spend nearly all
of their time away from the plant selling and delivering merchandise.
They drive trucks, make deliveries, and service coolers or vending
machines containing Pepsi Cola. They are supervised by 10 district
managers, whom all parties agree to exclude. The utility men, who
are also known as driver-trainees, take over one of the regular drivers'
routes in the event of his absence and eventually will themselves be
assigned to regular routes.
The proposed unit does not constitute a craft group, nor does any
other basis exist for finding that it may be appropriate in the face of
the bargaining history on a broader basis. Although the driver-sales-
men might constitute a craft]ike group whom the Board would sever
from a larger unit,3 there is here no request for such a unit or any
union seeking to represent such a unit. The Board will not sever the
noncraftsmen from a larger unit made up of noncraft and craft
employees'
Order
IT IS HEREBY ORDERED that the petition be, and it hereby is, dismissed.
a Norfolk Coca,Cola Company, 86 NLRB 462 ; Rockford Coca-Cola Bottling Company, 81
NLRB 579.
4 See Pittsburgh Railways Company , 79 NLRB 750; New Bedford Cotton Manufacturers'
Association, 78 NLRB 40.
J. J. NEWBERRY Co. and OFFICE EMPLOYEES INTERNATIONAL UNION,
LOCAL 87, AFL, PETITIONER. Case No. 15-RC-638. September
16, 1952
Decision and Order
On January 12, 1952, pursuant to a stipulation for certification upon
consent election, an election by secret ballot was conducted under the
100 NLRB No. 189.
J. J. NEWBERRY Co. 1141
direction and supervision of the Regional Director for the Fifteenth
Region. At the close of the election, the tally of ballots was issued
and duly served upon the parties concerned. The tally reveals that of
approximately 39 eligible voters, 34 cast valid ballots, of which 11
were cast for the Petitioner and 23 were cast against. The tally also
showed that there were no void ballots and 2 ballots were challenged.
On January 17, 1952, the Petitioner filed timely objections to the
election alleging that the Employer had interfered with organizational
activities and had denied the Petitioner "the privilege of discussing
the matter of union organization with the employees in the same
manner in which the company did-on Company premises-during
the normal work day." On May 14,1952, the Regional Director issued
a report on objections to the election finding that the objections raised
material issues with respect to the conduct affecting the results of the
election and recommending that the objections be sustained and the
election be set aside. Thereafter, on May 26, 1952, the Employer filed
exceptions to the report on objections and a supporting brief. On
permission granted by the Board, the Employer further filed a supple-
mental brief on June 6, 1952.
Upon the entire record, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of 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 constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section
9 (b) of the Act:
All employees of the Employer's Lake Charles, Louisiana, store
including office clerical employees and regular part-time employees
but excluding the store manager, assistant store manager, the floor
supervisor, the cashier, seasonal employees, watchmen, guards, pro-
fessional employees and supervisors as defined in the amended Act.
5. The essential facts involved in this case are undisputed. The
Employer owns and operates a small variety store at Lake Charles,
Louisiana, which the Petitioner commenced organizing in 1951. On
or about November 21, 1951, in the course of this organizational cam-
paign, the store manager invoked a rule concerning solicitation on
plant property. The Regional Director found that this rule pro-
hibited solicitation by employees "on duty." The Employer asserts
that the rule is somewhatmore qualified and only prohibits solicitation
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by employees on the sales floor and on duty.' On January 9, 1952, the
president of the Petitioner attempted to distribute handbills to em-
ployees leaving the store by way of the store parking lot. The store
manager ordered the union representative to cease such distribution on
plant property and leave the parking lot. On January 10, 1952, em-
ployees were given a handbill by the assistant store manager as they
were leaving work. On January 11 the assistant store manager dis-
tributed to employees leaving work an additional handbill containing
an unmarked sample ballot. The election was held on January 12.
The Board finds nothing coercive in the content of either handbill
distributed on the store premises by the Employer to the employees.
However, the undisputed facts show that the Employer utilized
the store premises to distribute literature bearing upon the election
of the employees' collective bargaining representative while, at the
same time , denying the use of store property for like distribution of
literature by the Petitioner. Under the Board's decisions, the
Employer could, without interference with the rights of its employees,
set forth and enforce certain prohibitions as to solicitation or distri-
bution of literature on store property. Here, however, the Employer'
prohibited the distribution of literature by the Petitioner immediately
outside the store while making use of such campaigning methods
within the store. Such conduct, therefore, amounted to a patently
discriminatory use of the Employer's time and property in applying
solicitation rules.2 By such conduct, the Board finds that the Em-
ployer interfered with its employees' freedom of choice in the selection
of a bargaining representative.3 We shall, accordingly, direct that
the election of January 12, 1952, be set aside and shall further direct
the Regional Director to conduct a new election at such time as ho
deems appropriate.
Order
IT IS HEREBY ORDERED that the election of January 12, 1952, be, and
it hereby is, set aside.
' The Employer asserts that the employees were told that they were expected to work,
not solicit , when they were supposed to be working and that they could not solicit on the
sales floor while they were working. .. .
2 The Employer asserts that the store property from which the union representative was
ejected is used as a parking lot by only a few employees and that the distribution of
literature could have been accomplished effectively at the mouth of a private alley leading
from the lot into the public street. These contentions , it is clear , are not dispositive of
the essential Issue herein . The Board has consistently held that whether or not the
union could or did use other media and opportunities for approaching the employees does
not permit the employer to use for campaigning the effective forum of the employees' place
of work while denying similar use to the union. See Metropolitan Auto Parts , Incorpo-
rated, 99 NLRB 403.
2 See Bonwit Teller, Inc. v. N. L. R. B., 197 F. 2d 640 ( C. A. 2), remanding Bonwit Teller,
Inc, 96 NLRB 608.- See also Onondaga Pottery Company , 100 NLRB 1143, and cases cited
therein.
ONONDAGA POTTERY COMPANY 1143
IT Is FURTHER ORDERED that this proceeding be remanded to the
Regional Director for the Fifteenth Region for the purpose of con-
ducting a new election at such time as he deems the circumstances
permit a free choice of a bargaining representative.
CHAIRMAN HERZOO took no part in the consideration of the above
Decision and Order.
ONONDAGA POTTERY COMPANY and FEDERATION OF GLASS, CERAMIC &
SILICA SAND WORKERS OF AMERICA, CIO, PETITIONER . Case No.
8 RC-559. September 16, 1952
Supplemental Decision and Order
On November 1, 1950, pursuant to a stipulation for certification
upon consent election, an election by secret ballot was conducted under
the direction and supervision of the Regional Director for the Third
Region. Subsequently, on April 27, 1951, the Board, upon objections
to the election filed by the Petitioner, set aside the election and directed
that a new election be held when the Regional Director advised that
circumstances permitted a free choice of bargaining representative.,,
On November 2, 1951, the Board, pursuant to that advisement, issued
a Direction of Second Election. , This election was conducted on No-
vember 27, 1951, and, upon its completion, a tally of ballots was issued
and duly served upon the parties concerned. The tally reveals that
of approximately 1,712 eligible voters, 1,542 cast valid ballots, of
which 532 were for the Petitioner and 1,010 were against. The tally
also showed that there were 6 void ballots and 36 ballots which were
challenged.
On November 4, 1951, the Petitioner filed timely objections to the
election alleging that the Employer had engaged in interference,
coercion, and discrimination against the employees. On May 21,
1952, the Regional Director issued a report on objections to the election
finding that the objections raised material issues with respect to the
conduct and results of the election and recommending that the elec-
tion be set aside.2 On May 26, 1952, the Employer filed exceptions to
194 NLRB 58.
' The Regional Director recommended that the election be set aside on the ground that
the Employer had interfered with the election when it made speeches on company time and
property on the day before the election and did not afford the Petitioner , upon request,
equal opportunity to address the employees. The Regional Director did not make findings
on allegations that the Employer had also interfered with the election by permitting prep-
aration and display of antiunion signs and posters in the plant while restricting the
display of the Petitioner 's literature ; by announcing a wage increase ; and by threats of
loss of economic benefits made in individual letters to the employees and in speeches.
100 NLRB No. 188.