Bernardin Bottle Cap Co., Inc.

National Labor Relations Board - Board Decisions

Feb 5, 1952

97 N.L.R.B. 1559 (N.L.R.B. 1952)

BERNARDIN BOTTLE CAP COMPANY , INC. 1559
BERNARDIN BOTTLE CAP COMPANY , INC. and INTERNATIONAL UNION OF
ELECTRICAL , RADIO AND MACHINE WORKERS, CIO, PETITIONER. Case
No. 35-RC-470. February ,5,1952
Supplemental Decision and Order
On June 15, 1951, pursuant to a Decision and Direction of Election
issued by the Board,' an election by secret ballot was conducted under
the direction and supervision of the Regional Director for the Ninth
Region among the employees in the unit found to be appropriate.
Upon completion of the election, a tally of ballots was issued and
duly served upon the parties. The tally shows that, of approximately
438 eligible voters, 412 cast ballots, of which 169 were for the Peti-
tioner, 240 were against the Petitioner, and 3 were challenged.
Thereafter, the Petitioner filed timely objections to the election.
On July 25, 1951, the Regional Director issued his report on objections
to the election, in which he recommended that a hearing be ordered to
resolve the issues of fact raised by the objections. Thereafter, in con-
formity with a Board order, a hearing was held before Emil C. Farkas,
hearing officer, oil September 26; 27, and 28, 1951. On November 23,
1951, the hearing officer issued his report in which he recommended
that the election be set aside. The Employer filed timely exceptions
to the report.
The Board 2 has reviewed the rulings of the hearing officer made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the hearing
officer's report, the exceptions, and the entire record in this case, and
hereby adopts the findings and recommendations to the following
extent:$
As one of its objections, the Petitioner contends that the Employer
interfered with the election by making two speeches on company time
and property on the day before the election, while denying the Peti-
tioner an equal opportunity to address the employees. The record
shows, and it is undisputed, that on June 12, 1951, the Petitioner, ap-
parently aware of the fact that the Employer contemplated addressing
its employees concerning the election on company property, addressed
a letter to the Employer requesting that the meeting not be held. In
this same letter the Petitioner further requested that in the event the
1 94 NLRB No. 108.
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[Chairman Herzog and Members Murdock and Styles]
' The Employer 's motion to dismiss the Petitioner 's objections to the election , made at
the hearing and referred to the Board for ruling, is denied for reasons set forth in this
decision.
97 NLRB No. 243.
1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting was held, the Petitioner be granted permission to address the
employees under the same circumstances . The Employer received
this letter on June 13, 1951, but did not answer it. On June 14, 1951,
the day before the election, the Employer held an afternoon meeting
of the day shift employees, and an evening meeting of the night shift
employees. Both meetings were held on company time and property,
and at both company officials pointed out the benefits which the em-
ployees had received in the past without a union, advised that in such
circumstances the employees needed no union, and urged the employees
to vote against the Petitioner at the election on the next day.
We find nothing coercive in the content of the speeches themselves,
but we do find, as did the hearing officer, that this case is controlled
by the rule enunciated in the Bonwit Teller case.4 We find that the
Employer interfered with the election after utilizing company time
and property to campaign against the Union on the eve of the election,
by denying the Union an opportunity to reply under the same circum-
stances. The Employer seeks to distinguish Bonwit Teller on the
ground that in that case, unlike this one, the employer operated a
department store, had a no-solicitation rule, and had committed other
unfair labor practices. However, all of these points of factual dis-
tinction were present in the later Biltvnzore case,' and were there held
not to prevent application of the principle of Bonwit Teller. The Em-
ployer dedicated company time and property to the campaign against
the Union. The critical, question here, as it was in the two afore-
mentioned cases, is whether the circumstances were such that only by
granting the Union's request for use of the same forum could the em-
ployees have a reasonable opportunity to hear both sides of the issue
on which they were about to vote. On the record as a whole, including
particularly the timing of the Employer's speeches, we are satisfied
that the question must be answered in the affirmative in this case.
Accordingly, for the reasons more fully set forth in the Bonwwit
Teller and Biltmore cases, we find that the Employer interfered with
the employees' freedom of choice in the selection of a bargaining
representative, and shall order that the election of June 15, 1951, be set
aside.' We shall direct the Regional Director to conduct a new election
at such time as he deems appropriate.
Order
IT Is HEREBY ORDERED that the election of June 15, 1951, among the
employees of the Employer be, and it hereby is, set aside; and
4 Bonwit Teller, Inc, 96 NLRB 608.
Biltmore Manufacturing Comnpang, 97 NLRB 905
s In view of this finding , it becomes unnecessary to consider the other grounds on which
the hearing officer recommended that the election be set aside
I3ENDER PLAYGROUND EQUIPMENT, INC. 1561
IT IS FURTHER ORDERED that this proceeding be remanded to the Re-
gional Director for the Region in which this case was heard for the
purpose of conducting a new election at such time as he deems the
circumstances permit a free choice of a bargaining representative.
BENDER PLAYGROUND EQUIPMENT, INC. and LODGE #79, INTERNA-
TIONAL BROTHERHOOD OF BOILERMAKERS , IRON SHIPBUILDERS AND
HELPERS OF AMERICA, A. F. L., PETITIONER. Case No. 15-RC-543.
February 5, 1952
Decision and Certification of Representatives
Upon a petition duly filed and pursuant to a stipulation for certifi-
cation upon consent election, an election by secret ballot was held on
July 20, 1951, under the direction and supervision of the Regional
Director for the Fifteenth Region. Upon the conclusion of the elec-
tion, a tally of ballots was furnished the parties in accordance with
the Rules and Regulations of the Board. The tally reflected that,
of approximately 83 eligible voters, 83 cast ballots, of which 57 were for
the Petitioner, 21 were against the Petitioner, and 5 were challenged.
On July 23, 1951, the Employer filed timely objections to the con-
duct of the election, alleging (1) that the Petitioner, or its members,
or persons acting in its behalf, perpetrated acts of physical violence
for the purpose of forcing votes for the Petitioner; and (2) that, in
order to coerce and intimidate the employees in the exercise of their
voting rights, threats were made by the Petitioner that it would cause
the plant of the Employer to be closed in the event the Petitioner
lost the election. In accordance with the Board's Rules and Regu-
lations, the Regional Director investigated the matters raised by the
objections and, on August 16, 1951, issued and duly served on the par-
ties his report on objections.
The Regional Director found that there was no evidence which
indicated in any way that the alleged acts set forth above actually
took place or were in any way attempted or fostered by the Petitioner,
and concluded that the objections did not raise substantial and ma-
terial issues with respect to the conduct or the results of the election.
He therefore recommended that the objections be overruled and that
the Petitioner be certified as the collective bargaining representative
of employees in the agreed appropriate unit. On August 23, 1951,
the Employer filed timely exceptions to the Regional Director's re-
port on objections.
97 NLRB No. 241.