Bata Shoe Co., Inc.

National Labor Relations Board - Board Decisions

Oct 2, 1956

116 N.L.R.B. 1239 (N.L.R.B. 1956)

BATA SHOE COMPANY; INC. 1239
who would normally be included in a production and maintenance
unit, we adopt the Regional Director's recommendations that the
challenge to Sievers' ballot be overruled.'
[The Board directed that the Regional Director for the Thirteenth
Region shall, within ten (10) days from the date of this Direction,
open and count the ballots cast by Ernest Larson, Tessie Sievers, Erma
Anderson, and William Sullivan and serve upon the parties a sup-
plemental tally of ballots.]
5 See Massachusetts Mohair Plush Company, 115 NLRB 1516.
Bata Shoe Company, Inc. and United Shoe Workers of America,
AFL-CIO,' Petitioner . Case No. 5-KC-1638. October 0, 1956
SUPPLEMENTAL DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
Pursuant to a Decision and Direction of Election issued June 3,
1955,2 an election by secret ballot was conducted on June 24, 1955,
among the employees of the Employer in the unit found appropriate
by the Board. At the conclusion of the election, a tally of ballots was
'furnished the parties in accordance with the Board's Rules and Regu-
lations. The tally showed that of approximately 1,133 eligible voters,
1,063 cast ballots, of which 421 were for the Petitioner, 634 were
against the Petitioner, and 8 ballots were challenged. The challenged
ballots were insufficient in number to affect the results of the election.
Thereafter, the Petitioner filed timely objections to conduct affect-
ing the results of the election. In accordance with the Rules and
Regulations of the Board, the Regional Director conducted an in-
vestigation and on November 3, 1955, issued and duly served upon the
parties his report on objections, finding the objections to'be without
merit and recommending that they be overruled and that the Board
certify the results of the election. On November 15, 1955, the Peti-
tioner filed timely exceptions to the Regional Director's report.
Thereafter, on November 28, 1955, the Employer filed its reply to the
Petitioner's exceptions.
In its exceptions, the Petitioner alleges, in substance, that the Em-
ployer (1) interfered with the free choice of a bargaining representa-
tive.in the election by announcing 1 week before the election that it
had modified its vacation plan to grant an additional week's vacation
to all employees with 15 years' service; (2) immediately prior to the
1 As the AFL and3 CIO have merged since the filing of the petition herein, we are
, amending the Petitioner 's designation.
2 Not reported in printed volumes of Board Decisions and Orders.
116 NLRB No. 165.
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election promised other benefits calculated to influence the employees
in the choice of a bargaining representative; (3) violated the Allied
Electric Products 3 rule by reproducing and circulating among the
employees a marked sample ballot; (4) caused a sample ballot dis-
played in its plant to be defaced; (5) violated the Gummed Products
rule by misstating the amount of the payroll deductions that would
be made in the event the Petitioner won the election; and (6) dis-
tributed circulars and other material containing false, misleading,
and libelous matter.
Vacation Benefits
The Regional Director found that on June 17, 1955, 1 week before
the election, the Employer in its company newspaper made the follow-
ing announcement :
BATA'S 16TH ANNIVERSARY
3 WEEKS ' VACATION TO PIONEER EMPLOYEES
Sixteen years ago this week the cornerstone was laid for the
five-story building, which inaugurated the plant operations in
Belcamp. Many employees have been with Bata the entire fifteen
years, ever since it began production. To these employees we
wish to say thanks for their loyalty. And to further show our
appreciation for their confidence in Bata, we are modifying our
Vacation Policy so that beginning this year all Bata employees
with fifteen years' service will receive their regular two weeks'
vacation plus one additional week's pay.
To all our employees, the Company wishes to express its thanks
for their loyalty and confidence and hope that they, too, will be
with us for many years to come so as to enjoy these additional
benefits.
The Regional Director also found that under the vacation plan exist-
ing prior to the modification in question, the Employer had granted a
2-week vacation to all employees with from 3 to 14 years' service,' and
a shorter vacation to all other employees. He further found that the
Employer's contention that it had decided in 1954 to announce the
modified plan when, in fact, it had employees with 15 years' service
was uncontradicted.' In addition, he found that in 1954 the Employ-
er announced vacation plans (although not the one in issue here) in the
month of June. On the basis of these findings, and on the additional
ground that as the modified plan affected only 10 employees, the bene-
Allied Electric Products , Inc., 109 N1,1111270.
* Gummed Products Company, 112 NLRB 1092.
5 The Employer asserts that 14 years ' service was designated is the upper limit of
service required to qualify for a 2 -week vacation because it decided in June 1954, to
later grant a 3-week vacation to employees with 15 years' service.
0 The Employer's plant has been in operation only 15 years.
BATA SHOE COMPANY, INC. 1241
ficiaries were too insubstantial to afford a sufficient basis for setting'the
election aside, the' Regional Director recommended that the objection
be overruled as not constituting a promise of benefit calculated to influ-
ence the outcome of the election.
In its exceptions, the Petitioner contends, in substance, that as the
announcement herein could have been made at a time less proximate
to the date of the election, its timing demonstrates a clear intention to
interfere with the results of the election. Further, the Petitioner, in
effect, contradicts the Employer's contention that the modification had
been planned earlier by noting that the Employer made no mention
of it in its March 4, 1955, published summary of employee vacation
benefits. In addition the Petitioner contends that although the modi-
fication did not directly affect a large number of employees it had a
substantial indirect effect on all other employees as potential benefi-
ciaries of the plan and this influenced their vote in the election.
Assuming the Employer's uncontradicted assertion that it had for-
mulated its modified vacation plan a year earlier in June 1954, we be-
lieve in the circumstances of this case that the announcement coming,
as it did, just 1 week before the election was calculated to and did
interfere with the election, and that, as a consequence, the election must
be set aside.
The Board has held that the granting of employee benefits during
the period immediately preceding an election is not per se ground for
setting aside an election? However, in the absence of a showing that
the timing of the announcement was governed by factors other than
the pendency of the election, the Board has set aside elections on the
ground that the granting of benefits at that particular time was calcu-
lated to influence the employees in their choice of a bargaining repre-
sentative.' We do not believe that the mere fact that the Employer
had previously announced vacation plans in the month of June and
that the announcement herein was made to coincide with the anniver-
sary date of the commencement of plant construction, when weighed
against the consideration that the announcement was made during the
crucial period immediately preceding the election when presumably it
would have its maximum impact upon the minds of the employees, con-
stitutes a credible explanation for the timing of the announcement in
question. As the Employer was undoubtedly aware well in advance of
the election that it would have employees with 15 years' service before
the commencement of the 1955 vacation period, and in view of the Em-
ployer's contention that it had intended for nearly a year to make the
modification, we perceive no reason why, if the sole purpose of the
announcement was to communicate to the employees a change in vaca-
7 United Screw & Bolt Corporation , 91 NLRB 916 , 918-919.
8 The Great Atlantic & Pacific Tea Company, 101 NLRB 1118, 1121 ; Knickerbocker
Manufacturing Company, Inc., 107 NLRB 507; 510; Reeves Instrument Corporation,
104 NLRB 610 , 613-614.
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion policy, the announcement could not have been made earlier at a
less critical time in relation to the election. Nor can we give credence
to the argument that the announcement was made when it was merely
to conform with the practice of announcing vacation plans in the
month of June, for the Employer could have observed this alleged
practice merely by postponing the announcement for 1 week until after
the June 24, 1955, election.9 In these circumstances, as the Employer
has failed to show that the timing of the announcement was governed
by factors other than the pendency of the election, " we find that the
June 17, 1955, announcement was calculated to and did interfere with
the election.
We further find as an additional ground for vacating the election,
the Employer's conduct in misrepresenting in the paycheck stubs it
distributed to employees that $29.20 would be deduced from their earn-
ings for the Petitioner in the event the Petitioner won the election.
It is undisputed that on the morning of the election the Employer
distributed to employees just before voting a paycheck stub contain-
ing a statement of their earnings and the tax deductions made on their
behalf. This stub was similar to the one normally used by the Em-
ployer with the one significant, difference that it bore a printed state-
ment in red bold type "THIS WILL BE ON YOUR PAYCHECK
IF THE UNION GETS IN." A heavy arrow also in red type then
pointed to the deductions columns in which was noted in smaller red
print "Union Dues, Fines And Assessments (At Least $29.20 A
Year)." On three earlier occasions the Employer made similar as-
sertions in its campaign literature regarding the employees' financial
obligations to the Petitioner. These statements were inaccurate and
misleading and did not correctly reflect the fees the Petitioner required
members to pay. In its campaign literature, the Petitioner called the
employees' attention to these inaccuracies. Notwithstanding the
Petitioner's efforts to correct this misinformation, the Employer, as
indicated above, persisted in misleading the employees by utilizing
on the very morning of the election a most effective propaganda
weapon, a paycheck stub on which was shown the deduction that the
Employer allegedly would have to make from the particular em-
ployee's earnings for the Petitioner's benefit, if the Petitioner won
the election. It is obvious that the Employer's acts were designed to
influence the employees' ballots which they were about to cast.
Although it is the Board's policy generally not to censor or police
preelection propaganda, even if exaggerated, inaccurate or false, it
nevertheless will set aside an election when "the challenged propa-
ganda has lowered the standards of campaigning to the point where
9 Vacation plans in 1954 were announced on June 25.
10 The Great Atlantic & Pacific Tea Company, supra ; Hudson Hosiery Company, 72
NLRB 1434; and United Screw & Bolt Corporation, supra, at 919.
BATA SHOE COMPANY, INC. 1243
it may be said that the uninhibited desires of the employees cannot
be determined in an election." 11
In our opinion, the Employer's conduct in this case exceeded the
limit of legitimate propaganda with respect to a matter plainly of
vital concern to the employees. As in the Gummed Products case,12
where the Board found that a union's misrepresentation of wage
rates paid by the employer's competitor interfered with the election,
so do we find in the present case that the inaccurate and misleading
information given by the Employer in the manner it did, and in the
face of the Petitioner's efforts to correct it, also fell below the stand-
ards of campaigning to a level which impaired the free and untram-
meled expression of choice by the employees.
We shall therefore set the election aside on both grounds stated
above, and shall direct that a new one be conducted.l3
[The Board set aside the election held on June 24,1955.]
[Text of Direction of Second Election omitted from publication.]
MEMBER RODGERS, dissenting :
I am unable to agree with the majority that the conduct of the
Employer, relied on by them for vacating the election, provides a
sufficient basis for that result.
As appears from the investigation conducted by the Regional Di-
rector, the granting of a third week's paid vacation was part of a bene-
fit program inaugurated well before the Petitioner began its organ-
izational campaign. In the company newspaper a year earlier, the
Company's vacation plan was announced, providing in part that "em-
ployees with service record 3 to 14 years receive 2 weeks' vacation
pay." Before the 1954 announcement it was decided that when the
Company had been in existence 15 years and had employees with 15
years' service, they would receive a third week's vacation. Both the
1954 and 1955 vacation plan announcements occurred during the
month of June with vacations commencing on July 2, 1954, and July
1, 1955, respectively. The third week's paid vacation immediately
affected only 10 employees out of a total of 1,133 employees eligible
to vote in the election. No evidence was presented to dispute the Com-
pany's contention that the plan had been in existence long before the
advent of the Petitioner or that would in any way tend to indicate
bad faith on the part of the Company.
11 The Gummed Products Company, 112 NLRB 1092, 1094.
11 Supra
13 Chairman Leedom concurs in the above decision to the extent that it finds that the
timing of the Employer 's announcement of a modified vacation plan was calculated to,
and did, interfere with the employees ' free choice of a bargaining representative , and the
election should therefore be vacated on that ground . He does not , however, concur with
his colleagues with respect to their finding a basis for setting aside the election on the
second ground.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There seems to be no reasonable basis for inferring that the timing
of the June 17 announcement was calculated to interfere with the
election. That the employees were made aware in June 1954 of the
Company's general vacation plan long before the Petitioner's organ-
izational campaign which began in October 1955 is apparent from
the content of the June 1954 vacation plan announcement. That
the Company did not announce its vacation program for employees
with 15 years' service in June 1954 is cogently explained by the obvi-
ous fact that it did not have any employees with 15 years' service at
that time. The 1954 vacation policy statement specified that :
Employees with service record of 6 to 9 months receive one-half
week's vacation pay; employees with service record 9 to 12 months
receive 3/4 week's vacation pay; employees with service record
1 to 3 years receive one week's vacation pay; employees with serv-
ice record 3 to 14 years receive 2 weeks' vacation pay.
The above statement clearly indicated that 2 weeks' vacation pay was
limited to employees with 3 to 14 years' service. Nobody could rea-
sonably construe it as including employees with 15 years' service, and
the implication was plain that it was the Company's policy to provide
for the latter when the appropriate time arrived. As I have already
indicated, the June 17, 1955, announcement which extended additional
vacation benefits to 15-year employees was a natural and reasonably
foreseeable implementation and outgrowth of a well-established com-
pany vacation policy with which the employees were fully conversant.
I see nothing precipitate in its pronouncement. Nor is there any war-
rant for implying an intent to interfere with the election on the basis
of timing; it is uncontradicted that it has been the Company's policy
to announce vacation plans in June of each year.
In United Screw ct Bolt Corporation, 91 NLRB 916, at page 919,
the Board stated in clearly defined terms the criteira to be used in situ-
ations such as we have here :
It is true that we have carefully scrutinized an employer's grant-
ing of benefits during the period prior to a representation elec-
tion to determine its likely effect upon the employees' freedom
of choice. However, where we have set aside elections on such
grounds, we have found that the relationship between the grant-
ing of benefits and the election was more than mere temporal
coincidence. This has been found where, for example, (1) the
announcement of benefits follows no request by the employees and
at a time wholly unexpected by them, or (2) the benefits, while
decided somewhat earlier, are not announced to the employees until
just before the election, and no credible explanation is offered for
the delay, or (3) the announcement comes at a time substantially
BATA SHOE COMPANY, INC. - 1245
different from that which 'has been the • employer's customary
time to grant employee benefits.
Here.the announcement was made at the normal and usual time, a
credible explanation was made by the Company for announcing it at
the time it did, and it followed its well-established practice wholly
consistent with past experience and reasonably implied from the gen-
eral statement of policy announced a year earlier, eliminating any
possible suggestion of surprise or purposeful timing.
I am of the opinion that the Board rules under consideration should
not be given the mechanistic application which the majority is giving
it but should be applied in the light of the realities of the situation and
within the clearly defined criteria established by the Board. It is for
that reason that I agree with the Regional Director that the announce-
ment and implementation of the Company's vacation plan did not
constitute an economic benefit calculated to interfere with the em-
ployees' choice, and that in any event since the beneficiaries numbered
only 10 out of 1,100 employees, they were too insubstantial in number
to afford a sufficient basis for setting aside the election.,
As to the second ground relied on by the majority for vacating the
election, i. e., the check stubs, distributed prior to the election, I
am of the opinion, as was the Regional Director, that the employees
were competent to evaluate such material which constituted permissible
campaign propaganda privileged under Section 8 (c) of the Act.
On at least three prior occasions , the Employer stated in its propa-
ganda that union dues, fines, and assessments would amount to $29.20
a year, and the Petitioner answered this propaganda-as early as 5
months before the election and just before the election-that the only
payment the employees would have to make was a weekly dues pay-
ment of 35 cents. The Employer's propaganda explained that the
$29.20 figure per year was arrived at by adding $2 initiation fee, $2
reinstatement fee, $7 average assessment , and $18.20 yearly dues.
The Employer asserts that its estimate was conservative, submitting
a photostatic copy of letters from Joint Council Number 13 of the Peti-
tioner dated November 22, 1954, and July 20, 1955,, and the Joint
Council News dated July 1954, indicating assessments of $2 and a 10-
percent assessment on 1 week's gross pay. The International's consti-
tution provides for an initiation fee of not less than $2 and reinstate-
ment fees of not less than $2. One of the Petitioner's propaganda
leaflets referred to the $2 initiation fee.
It seems clear that the imprint contained on the check stub contained
no new propaganda. The evidence shows that since January 1955
-the Employer has' made the assertion as to what it estimated the
deductions would be and that the Petitioner has, at least on three
separate occasions, asserted what the deduction would be. The Em-
ployer was not in an authoritative position to know precisely the de-
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duction that would be made, and, as the Regional Director found, the
figure and statements contained on the check stub were certainly within
the realm of possibility.
In the Gummed Products case, supra, relied on by the majority, the
Board stated :
The ultimate consideration is whether the challenged propaganda
has lowered the standards of campaigning to the point when it
may be said that the uninhibited desires of the employees cannot
be determined in an election.
Applying this test, I find no warrant whatever for the majority's
conclusion in this case. For more than 5 months the employees had
ample opportunity to evaluate the conflicting propaganda claims of
both sides, and to reach a valued judgment. Certainly, here was no
situation of false statements with intent to deceive as was involved in
the Gummed Products case, but permissible campaign propaganda
privileged under Section 8 (c) of the Act. To find that the uninhibited
desires of the employees cannot be determined under those circum-
stances, is to stretch the rule far beyond its reasonable ambit and to
underestimate the ability of employees to appraise campaign propa-
ganda and form a mature judgment of their own.
For these reasons, I would, in agreement with the Regional Director,
find no merit in the objections, and sustain the election.
The Electric Auto-Lite Company and International Union, United
Automobile, Aircraft and Agricultural Implement Workers of
America, AFL-CIO, Petitioner. Case No. 9-RC-25593. October
2, 1956
ORDER DENYING SECOND MOTION
On August 22, 1956, the Board issued a Supplemental Decision,
Order, and Direction of Second Election' in the above-entitled pro-
ceeding. Thereafter, on August 27, 1956, Lampworkers Collective
Bargaining Association, Independent, Intervenor herein, filed a mo-
tion for reconsideration and stay of Supplemental Decision, Order, and
Direction of Second Election and requested an opportunity for oral
argument before the full Board. On September 7, 1956, the Em-
ployer filed a motion for reconsideration of supplemental decision
and order and for stay of election and requested oral argument there-
on. On September 10, 1956, by telegraphic order, the Board denied
the motions of the Intervenor and the Employer for reconsideration
and for oral argument. On September 12, 1956, the Intervenor filed
3116 NLRB 788.
116 NLRB No. 167.