J. J. Newberry Co.

National Labor Relations Board - Board Decisions

Jul 9, 1952

100 N.L.R.B. 84 (N.L.R.B. 1952)

84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
group, the employees will be taken to have indicated their preference
for separate bargaining units, and the Regional Director is instructed
to issue a certification of representatives to NABET, IATSE, or
Local 644, as the case may be, for the separate unit or units in question
which the Board finds in such circumstances to be appropriate' ,far
purposes of collective bargaining.
5., NABET would base voting eligibility on a minimum of 6 days'
employment during the 1-year period, or alternately, the 6-month
period preceding the election. The Employer would require 1 day's
employment in a period of not less than 3 months or more than 6
months before.the election, and the Intervenors would limit the period
to the 3 months preceding the Direction of Elections. We believe that
a single day's employment is too casual to establish the bargaining
interest of a prospective voter. Therefore, we shall follow-the formula
established for single'employer motion picture units in the Television
Film Pro'drucers Association case .20 Accordingly, all employees who
have had two or more days of employment with the Employer during
the'9-month period immediately preceding the date of this Decision
and Direction of Elections, shall be eligible to vote in the election.-
[Text of Direction of Elections omitted from publication in this'
volume.]
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Elections.
20 93 NLRB 929. See also American Broadcasting Company, Inc, et at, supra , and Audio
Products, Inc., et al. , 2-RC-2795, not reported in the printed volumes of the Board's
decisions. ,
" '
NABET requests the Board to reexamine the showing of the Intervenors in the light of
whatever eligibility formula is adopted by the Board. We have repeatedly held that show-
ing of interest is an administrative matter. Moreover , we are satisfied that the Inter-
venors' showing is adequate.
J. J. NEWBERRY COMPANY and LOOAL No. 328, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF
AMERICA, A. F. OF L., PETITIONER . Case No. 18 11C-14450. July
9, 192E
Decision and Certification of Representatives
Pursuant to a stipulation for certification upon consent election, an
election by secret ballot was conducted on April 4, 1952, under the
direction and supervision of the Regional Director for the Eighteenth
Region, among the employees in the stipulated unit. Thereafter, a
tally of ballots was furnished the parties. The tally showed that of
100 NLRB No. 21.
r
J. J. NEWBERRY COMPANY 85
approximately 18 eligible voters, 18 cast valid ballots, 13 for and 5
against the Petitioner. There was 1 challenged ballot.
On April 9, 1952, the Employer filed objections to the results of the
election, alleging that Petitioner or its agents had engaged in conduct
violative of Section 8 (b) (1) of the Act.
In accordance with the Board's Rules and Regulations, the Regional
Director conducted an investigation and on April 29, 1952, issued and
duly served upon the parties his report on objections, in which he
found that the objections did not raise substantial or material issues
with respect to the results of the election, and recommended that the
objections be overruled and that the Petitioner be certified on the basis
of the tally of ballots. On May 9,1952, the Employer filed exceptions
to the report on objections.
Upon the entire record in the case, the Board makes the following
findings :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
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 Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The following employees of the Employer-as stipulated by the
parties-constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act:
All employees in the Iron River, Michigan, store, including regular
part-time employees, stock employees, window trimmers, and all cler-
ical employees, but excluding the cashier and all supervisors as defined
in the National Labor Relations Act as amended.
5. The Employer's objections to the election rest upon facts which
are substantially undisputed. The person of whose conduct the Em-
ployer complains was an ordinary rank-and-file employee. During
the organizational campaign she said, in the presence of other em-
ployees, that "They" would know who voted for or against the Union.
On the afternoon of the election she told one employee, "If you don't
stick with us and vote `yes', we'll take you out in the alley and beat you
up," and another, "If you don't vote `yes' in the election, I'll take you
out in the alley." The Regional Director reported that this woman
was not an officer of the Petitioner, and that the investigation revealed
no evidence indicating any agency relationship between her and the
Petitioner. In its exceptions, the Employer does not take issue with
any of the foregoing facts.
The objections directly allege that this one employee's statements
constituted unfair labor practices chargeable to the Petitioner. As
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this is a representation proceeding, we may not consider the objections
as made, because under the amended Act the Board may not make
unfair labor practice findings except after complaint issued by the
General Counsel, No charges under Section 8 (b) of the Act have
been filed by the Employer. In any event, under well-established
Board principles, the employee here involved was not an agent of the
Union, or in any way shown to have been authorized to act on its be-
half.2 The Petitioner, therefore, could under no circumstances be
held responsible for' the manner in which she chose to further the
Union's cause.
In the brief supporting its exceptions, the Employer argues that
because this particular employee assertedly was the most outspoken and
enthusiastic of the union adherents, her conduct should be viewed in
the same light as that of an ordinary union agent. We do not agree.
No extensive rationale is required to rebut a contention that agency
responsibility can be predicated upon the degree of fervor appearing
in a rank-and-file employee's electioneering activities.
The Board has repeatedly held that it will not attempt to police
the unrestrained activities which sometimes regrettably appear in
heated union elections .3 It is common knowledge that employees'
language oftens exceeds polite, parlor-room, speech during the course
of strongly contested union campaigns. Moreover, it does not appear
that the statements of this employee were part of any concerted
effort by the Petitioner to intimidate employees. While we do not
condone the extreme language which she used in her attempt to win
prounion vote-,, we agree with the Regional Director's conclusion that
the facts revealed by the entire investigation do not raise substantial
or material issues respecting the outcome of the election so as to war-
rant setting aside the results.4 For the same reason, no useful purpose
would be served by holding a hearing on the objections, as the Employer
requests.
The Employer also alleged in its objections that the Petitioner
threatened to impose "penalties" upon those employees who voted
against the Union. The only evidence supporting this objection is
that at a preelection organizational meeting, a representative of the
Petitioner explained that in the event the Petitioner obtained a union-
shop contract, employees joining the Union at that time would be
required to pay a $15 initiation fee instead of the $5 fee paid by
i Section 3 (d) of the Act. See also Times Square Stores Corporation, 79 NLRB 361,
364-365.
2 Sunset Line and Twine Company, 79 NLRB 1487; Perry Norvell Company, 80 NLRB
225.
2 Maywood Hosiery Mills, Inc., 64 NLRB 146; Kroder-Reubel Company, Inc., 72 NLRB
240: Philadelphia Lager Beer Brewers' Association, 79 NLRB 351.
4 Minneapolis Knitting Works, 84 NLRB 826; Mallinokrodt Chemical Works, 86
NLRB 662.
READE MANUFACTURING COMPANY, INC. 87
employees who joined earlier. This announcement was a correct
statement of the then effective bylaws of the Petitioner. The Regional
Director found nothing improper in this conduct. We agree with
his conclusion.' We also note that the Employer did not specifically
except to this portion of the Regional Director's report.
For the foregoing reasons, and in accordance with the Regional
Director's recommendations, we hereby overrule the objections to the
results of the election. As the tally of ballots shows that the Petitioner
received a majority of the valid votes cast in the election, we shall
certify it as the exclusive bargaining representative of the employees
in the appropriate unit.
Certification of Representative
IT Is HEREBY CERTIFIED that Local No. 328, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, A. F. of L., has been designated and selected by a majority of the
employees of J. J. Newberry Company, Iron River, Michigan, in the
appropriate unit, described in the stipulation for certification upon
consent election herein, as their representative for the purposes of
collective bargaining and that, pursuant to Section 9 (a) of the Act,
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 condi-
tions of employment.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Certification of Representatives.
6 Ferro Stamping and Manufacturing Co., 93 NLRB 1459.
READE MANUFACTURING COMPANY, INC. and LOCAL 56, AMALGAMATED
MEAT CUTTERS & BUTCHER WORKMEN OF N ORTH AMERICA, AFL,
PETITIONER. Case No. 4-RC-1459. July 9, 1952
Decision and Direction
Pursuant to a stipulation for certification upon consent election
by the Employer and the Petitioner, an election by secret ballot was
conducted on March 21, 1952, under the direction of the Regional
Director for the Fourth Region. At the close of the election, the
parties were furnished a tally of ballots which showed that of the
19 votes cast, 8 were for and 6 against the Petitioner, and 5 were
challenged. - As the challenged ballots were sufficient in number
100 NLRB No. 4.