American Wholesalers

National Labor Relations Board - Board Decisions

Nov 2, 1956

116 N.L.R.B. 1492 (N.L.R.B. 1956)

1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the Act, constitute 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.]
MElvirnn RODGERS took no part in the consideration of the above
Decision and Direction of Election.
American Wholesalers and Warehouse Employees Union, Local
730, L B. T. C. W. & H. of A., AFL-CIO, Petitioner. Case No.
5-RC-1970. November 2,1956
DECISION AND CERTIFICATION OF REPRESENTATIVES
On May 4,1956, pursuant to a stipulation for certification upon con-
sent election, an election by secret ballot was conducted under the
direction of the Regional Director for the Fifth Region among the em-
ployees in the agreed appropriate unit. Upon the conclusion of the
election, the Regional Director served upon the parties a tally of ballots
which showed that of the 53 valid ballots cast, 27 were cast for the
Petitioner and 26 were cast against the Petitioner. There were no void
or challenged ballots. On May 10, 1956, the Employer filed timely
objections to the election, alleging that the Employer was prevented
by an emergency, on May 2, 1956, from fully informing the employees
of its position with respect to the then forthcoming election, and that
the employees were thereby denied the right to exercise their freedom
of choice as guaranteed in Section 7 of the Act. Thereafter, the Re-
gional Director conducted an investigation, and on June 13, 1956,
issued and served upon the parties his report on objections in which
he recommended that the objections be overruled and that the Peti-
tioner be certified as the exclusive bargaining representative of the
employees in the appropriate unit. On July 2, 1956, the Employer
filed timely exceptions to the Regional Director's report on objections.
The Board has reviewed the stipulation of the parties, the objections,
the Regional Director's report on objections, and the Employer's
exceptions thereto.
Upon the entire record in this case,' the Board makes the following
findings of fact :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
i The Employer's request for oral argument is hereby denied, as the record, including
the stipulation of the parties , the objections , the Regional Director's report on objections,
.and the exceptions thereto, adequately presents the issues and the positions of the parties.
116 NLRB No. 209.
AMERICAN WHOLESALERS 1493
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 constitute a unit ap-
propriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act: All employees of the Employer at its
establishment in Washington, D. C., excluding office clerical employ-
ees, salesmen, guards, and supervisors as defined in the Act.
5. The substance of the Employer's objections to the election is
contained in the affidavit of its managing partner, D. L. Krupsaw,
dated May 9, 1956, in which it is alleged that on May 2 all employees
were called to a meeting for the purpose of hearing the Employer
present its views concerning the impending election scheduled to take
place on May 4, 1956. It is further alleged that the Meeting com-
menced shortly after 4: 45 p. in.; that at about 5: 30 p. m., while the
employees were still present, but before the Employer had completely
stated its position and before the beginning of a period which the
Employer had planned to devote to the answering of employee ques-
tions, the meeting was abruptly interrupted by the arrival of fire-
trucks; that in light of the fact that the Employer is partially en-
gaged in the manufacture of mattresses, all persons immediately fled
from the building; and that although it was later discovered that
someone had called in a false alarm, it was impossible to hold another
meeting because of the Peerless Plywood rule prohibiting such a meet-
ing within 24 hours of the scheduled election.2 The Employer asserts
that because of the foregoing facts, it was not afforded an oppor-
tunity to fully present its views to the employees nor was it given
an opportunity to answer any questions which the employees would
otherwise have asked, thereby depriving the employees of their free-
dom of choice at the election.
In his report, the Regional Director found that prior to May 2,
1956, the day on which the Employer called his employees to the
meeting , the Employer's supervisory personnel had talked with the
employees in small groups, and in some cases individually, concern-
ing the coming election. With respect to the May 2 meeting, he re-
ported that he had found 'conflicting evidence as to the exact status
of this meeting at the time when the firetrucks arrived, there being
2 Peerless Plywood Company, 107 NLRB 427 . The Employer asserts that it was
unaware that, as found by the Regional Director , other means of communication with its
employees , not proscribed by Peerless Plywood, were open to the Employer even within
the 24-hour period before the election , and that Krupsaw had closed his speech by informing
the employees that the Employer would not discuss the matter further, except to answer
any questions that anyone might then want to ask . The Employer also asserts that the
nature of the employees ' tasks was such as in any event to prevent them from posing
unanswered questions to the Employer during their working hours on the day before the
election . In view of our decision as hereinafter set forth , we find it unnecessary to
resolve the factual issues , if any, arising from these assertions.
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considerable evidence that Krupsaw had completed his speech, that
he had passed out copies of a magazine article and newspaper clip-
pings critical of the Union, and that, no one having responded to an
inquiry as to whether there were any questions, many of the em-
ployees had begun to leave. He also reported that he had secured
sworn statements from three employees who were alleged by the Em-
ployer to have said to Krupsaw that they would have voted against
rather than for the Union if they had been able to get the answers to
questions which they were prevented from asking by the arrival of
the firetrucks. In only one case, however, did such affidavit affirm
the allegation that the employee had been prevented from asking
questions by the arrival of the firetrucks. This affiant stated he had
informed Krupsaw that, having learned the answer to his questions,
he would now vote against the Union?
The Employer's exceptions and brief do not in general dispute the
Regional Director's findings as to the sequence of events at the Em-
ployer's meeting with its employees, but do contest his conclusions
as to the times when Krupsaw began and ended his speech, and allege
that the employees had not left the meeting when the firetrucks ar-
rived. The Employer asserts that, following the completion of Krup-
saw's speech, which required 27 to 30 minutes to read, the employees
were gathered in groups looking at the magazine article, and that
Krupsaw had commenced a second reading of his speech to several
late arrivals when the meeting was interrupted by the arrival of the
firetrucks. The Employer points out that the results of the election
could have been, affected by the vote of the one employee who, as
found by the Regional Director, indicated that having learned the
answer to certain questions he would now vote against the Union;
the Employer further contends that it should be allowed to cross-
examine , at a hearing, the employees who furnished affidavits.
We find it unnecessary to resolve the factual issues raised by the
Employer's exceptions because, assuming that the Employer's con-
tentions are correct as to the status of the meeting when it was inter-
rupted by the firetrucks, we nevertheless find the Employer's objections
to be without merit. Thus if, as the Employer asserts, the interrup-
tion occurred while the Employer was in the process of rereading its
speech to late arrivals, and it was thereby prevented from completing
its program planned for the remainder of the employee meeting, we
find that such facts do not provide a sufficient basis for setting aside
the election. Neither the Act nor Board policy requires that either a
union or an employer be guaranteed sufficient time for a full last-
8 According to the affidavits of the other two employees , as reported by the Regional
Director , both had looked at the magazine and news articles , had been informed that they
might leave, and had left the building before the firetrucks arrived; one of the affiants
further stated that he had no questions to ask at the meeting, and the other that he had
voted against the Union.
AMERICAN WHOLESALERS 1495
minute expression of its views concerning an impending election 4 and
if, during the course of a meeting called for that purpose, an inter-
ruption occurs which is not attributable to any party to the proceeding,'
the risk of such eventuality should rightly fall on the parts whose
choice as to time and place has set the circumstances under which the
scheduled meeting is held.
We agree that, as the Employer argues, the opportunity for dis-
cussion and the expression of views and opinion by all parties during
the period before an election is conducive to an informed exercise
by the voters of their voting privilege. But we do not believe that,
especially as in this case where the Employer has both had and utilized
substantial opportunity to publicize his views to his employees, the
mere chance failure of such a party to complete a last-minute expres-
sion of his views necessarily in and of itself so deprives the employees
of their freedom of choice as to require that we set aside an otherwise
valid election.'
Accordingly, and under all the circumstances in this case, we find
that the Employer's objections are without merit and hereby overrule
them and certify the Petitioner as the bargaining representative of the
employees concerned.
[The Board certified Warehouse Employees Union Local 730, I. B.
T. C. W. & H. of A., AFL-CIO, as the designated collective-bargaining
representative of the employees of American Wholesalers in the
appropriate unit.]
4 Massachusetts Mohair Plush Company, 112 NLRB 41, 43.
6 Although the Employer in this case concedes that the identity of the individual who
sent in the false fire alarm is unknown, and in an affidavit filed with the Regional Director
specifically disavows any inference that the Union or its agents were responsible for
calling the false alarm , the Employer nevertheless asserts in its brief , and urges as a
reason for setting aside the election , that "Here we are not dealing with . . . Acts of
God, but rather an intentional act of man ." In the absence , however, of information
concerning the circumstances which resulted in the giving of the false alarm, and as
there is no implication that the Union or its agents were in any way responsible, we find
it immaterial whether the interruption of the Employer's meeting had its origin in some
human action or was occasioned solely by force of circumstances . In either case, we
cannot regard the occurrence of the alarm at the time of the Employer 's meeting as other
than a mere fortuity.
fi We are not unmindful of the Employer's contention that in this case the election was
sufficiently close that the results might have been affected by the ballot of the one em-
ployee who indicated that, having learned the answer to his questions , he would now vote
against the Union. We regard the evidence in this regard as immaterial , however, for
the Board has long held that it will not attempt to enter the speculative realm of evalu-
ation of individual employee reactions and attitudes . The Rein Company , 114 NLRB
694, 698; B. M. C. Manufacturing Corporation, 113 NLRB 823 , footnote 8. In the present
case, there is no assurance that the Employer 's answers to employee inquiries , even as-
suming that the attitude of one employee may have since been influenced by communica-
tion from some unknown source, would have been of such a nature as to effectively
influence the manner in which those employees would vote . Considerations of this sort,
which would involve an attempt to ascertain both substance and effect of purely hypo-
thetical conversations , are of too highly speculative a character to justify placing any
reliance thereon.