Biltmore Manufacturing Co.

National Labor Relations Board - Board Decisions

Dec 29, 1951

97 N.L.R.B. 905 (N.L.R.B. 1951)

BILTMORE MANUFACTURING COMPANY 905
operation would not have a sufficiently substantial impact on inter-
state commerce to justify assertion of jurisdiction by the Board. We
shall dismiss the petition.
Order
IT IS HEREBY ORDERED that the petition filed herein be, and it hereby
is, dismissed.
MEMBER HOUSTON took no part in the consideration of the above
Decision and Order.
BIIIrMORE MANUFACTURING COMPANY and JACQUELINE WRIGHT, ROMER
CONNER, AND NELLIE HUDSON, PETETIONERS and THE UNITED TEXTILE
WORKERS OF AMERICA, AFL. Case No. 34-RD-25. December 29,
1951
Supplemental Decision and Order
Pursuant to a Decision and Direction of Election, an election by
secret ballot was conducted on November 14, 1950, under the direction
and supervision of the Regional Director for the Region in which this
case was heard, among the employees of the Employer in the unit
found to be appropriate. At the close of the election, the parties were
furnished a tally of ballots. The tally showed the following results :
Approximate number of eligible voters ----------------------------- 143
Void ballots----------------------------------------------------- 1
Votes cast for the Union------------------------------------------ 62
Votes cast against the Union-------------------------------------- 68
Valid votes counted---------------------------------------------- 130
Challenged ballots----------------------------------------------- 0
The Union duly filed objections to the conduct of the election and
to conduct affecting the results of the election. On April 13, 1951, the
Regional Director issued his report on objections in which he found
the objections without merit and recommended that they be overruled.
Thereafter the Union duly filed exceptions to the Regional Director's
report.
The Union contends that the Employer interfered with the election
by making a speech to the employees on company property and time
just before the election, without affording the Union an equal oppor-
tunity to address the employees. An investigation by the Regional
Director disclosed the following facts : Shortly after 10 a. m. on the
morning of November 14, 1950, about 2 hours before the polls opened,
J. M. Lane, the plant manager, requested on the plant public address
system that all employees report to the lunchroom. The employees
were not instructed to punch out on the time clock and did not do so.
97 NLRB No. 128.
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hence they were paid for the time spent in the lunchroom. While
there, they were addressed by Lane. In his speech Lane denied cer-
tain accusations of the Union and made accusations of his own against
the Union. He asked for unity, requested that all employees vote,
and stated that they could vote freely without fear of reprisals. We
find that in calling the employees together and addressing them in
the manner described, the Employer exercised a privilege protected
by Section 8 (c) of the Act, and did not thereby unlawfully interfere
with the election.'
However, the Employer went further than this. At the beginning
of his speech to the assembled employees, Lane made an announcement
to the effect that no one would be permitted to answer anything he
said about the Union, and that if anybody had anything to say he
could come to his office and say it to him personally. At the con-
clusion of his speech, an employee, apparently the president of the
local union, rose to speak, but Lane did not accord her recognition
and the employees left without hearing her. By the actions of its
plant manager, therefore, the Employer effectively denied to the
Union the opportunity to engage in solicitation on company property
and time at the very time when the Employer itself was occupied in
such activity. The Union alleges that this act of denial -interfered
with a free choice in the subsequent election.
The Board has recently dealt with this question in Bonwit Teller,
Inc.' The Board there found that when the employer chose to deliver
a speech to its employees, it could not lawfully deny the union's rea-
sonable request for an opportunity to reply under similar circum-
stances. We affirm that holding here. The factual setting of this
case is essentially the same in its operative facts as the situation exist-
ing in Bonwit Teller. Indeed, in several respects the instant case is
an even stronger one for applying the rule of Bonwit Teller. Here,
the Employer's speech to the assembled employees was made on the
very day of the election, just 2 hours before it opened. Thus there
was no opportunity for the union adherents to reply other than in the
manner it requested. Also, in this case the union representative who
sought to answer the Employer was actually an employee, rather than
an outside union representative. It is true, as pointed out by our
dissenting colleague, that the record in this case does not disclose the
existence of a general no-solicitation rule and its discriminatory ap-
plication as was found in the Bonwit Teller case. It does reveal,
however, that at the very time the Employer addressed the employees
on company time and property, it denied union spokesmen a similar
opportunity. Certainly, the same legal consequences should flow from
1 Babcock & Wilcom, 77 NLRB 577.
2 96 NLRB 608.
BILTMORE MANUFACTURING COMPANY 907
this conduct as would flow from the discriminatory application of an
established rule against solicitation. For, in either case, the Em-
ployer is discriminating in favor of antiunion adherents to the serious
detriment of union adherents.
But entirely aside from the existence or effect of a no-solicitation
rule, this matter is clearly controlled by the Bonwit Teller case. In
that decision the Board explicitly stated the rule applicable here when
it said, "There is, in addition, an even more fundamental considera-
tion-wholly apart from the Respondent's disparate use of the no-
solicitation rule-which justifies the result we reach. We believe that
the right of employees, guaranteed by Section 7 of the Act, freely
to select or reject representation by a labor organization, necessarily
encompasses the right to hear both sides of the story under circum-
stances which reasonably approximate equality." In the light of
this guiding principle, we do not agree with our dissenting colleague
that this case is an "unwarranted extension" of the Bonwit Teller
doctrine. In both cases the employer dedicated company property
and time to a campaign against the union, while refusing to accord
to the union an opportunity to reply under equal circumstances.3
Discrimination being present, it is immaterial that it occurred in a
factory rather than in a retail sales establishment. The election
having been interfered with, we will not refuse to set it aside, as
urged by our dissenting colleague, because the interference may not
have been committed against a background of unfair labor practices.
Accordingly, for the reasons stated above and more fully set out
in the Bonwit Teller decision, we find that the Employer interfered
with the employees' freedom of choice in the selection of a bargaining-
representative, and we shall order that the election of November 14,
1.950, be set aside .4 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 November 14, 1950, among-
the employees of the Employer be, and it hereby is, set aside; and
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.
We note again that this was the conduct held unlawful by the Court of Appeals for the
Second Circuit in affirming the Board 's decision in the Clark Brothers case ( 163 F. 2d 373)-
after enactment of the amended Act.
4 In view of this disposition, we find it unnecessary to consider other objections to the-
election raised by the Union.
'908 `i)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER REYNOLDS, dissenting :
In determining that the Employer interfered with the free choice
of a bargaining representative by denying the Union an opportunity
to address the employees on company property and time, the Board
relies on the Bonwit Teller case. Although I disagreed with the
decision in that case, I would not note a further dissent were I of
the opinion that that case was dispositive of the issue presented in the
instant case. In my opinion, however, this case is bereft of the factors
upon which the Bonwit Teller decision rests. I therefore regard the
decision herein as an unwarranted extension of the unfortunate doc-
1rine of the Bonwit Teller case.
In the Bonwit Teller case, the Board laid down the rule that "an
employer who chooses to use his premises to assemble his employees
and speak against a union may not deny that union's reasonable
request for the same opportunity to present its case, where the cir-
cumstances are such that only by granting such request will the em-
ployees have a reasonable opportunity to hear both sides." (Emphasis
supplied.) The principal circumstance which the Board held gave
rise to Bonwit Teller's obligation to grant such request is not present
here because the Union's right to solicit was not circumscribed by a
no-solicitation rule. Moreover, even if such a rule were in effect at
the Employer's plant, it could not curtail the Union's right to solicit
on nonworking time, as the Employer is a manufacturing enterprise
rather than a retail sales establishment.' Accordingly, the Union in
this case, unlike its counterpart in the Bo'rvwit Teller case, was not
deprived "of the most effective means of contact with employees-
namely, solicitation of employees while they were" on company
premises.
In the Bonwit Teller case, the Board also relied on the fact that
the Employer's speech was made against a background of unfair labor
practices. There is no evidence of such unlawful conduct in this
-case. For this reason and because of the afore-mentioned absence of a
no-solicitation rule, it is erroneous to characterize the factual settings
of the two cases as "essentially the same."
By applying the rule of the Bomvit Teller case to this factually
different case, the inroads already made upon an employer's statutory
right to address its employees in the course of an election campaign
are so broadened that the right is now all but meaningless. It appears
quite clearly from this decision that that right, unencumbered by
statute, has by decisional process of the Board acquired as a necessary
concomitant in all instances the obligation of the employer to provide
a forum of debate for unions. Among other things, therefore, unions,
The permissible variation in the scope of no -solicitation rules depending upon the enter-
prise involved is fully set forth in the Bonwit Teller decision.
LUNTZ IRON & STEEL COMPANY 909
if they so desire, must now be accorded the privilege of having the last
word in,an election campaign.
Accordingly, for reasons stated in my dissenting opinion in the
Bonwit Teller case, which reasons apply even more forcefully here,
I would find that the Employer did not unlawfully deny the Union's
request to address the employees on company time and premises, and
consequently would not set aside the election of November 14, 1950.
LUNTZ IRON & STEEL COMPANY and UNITED STEELWORKERS OF AMERICA,
CIO, PETITIONER. Case No. 8-RC-1308. December 29,1951
Supplemental Decision and Order
On November 20, 1951, the Board issued a Decision and Certification
of Representatives,' in which it overruled the Employer's objections
to the election, and adopted the Regional Director's recommendation
that, in accord with the Petitioner's third objection, a ballot marked
with a red pencil in the "NO" box be held invalid and not counted.
It thus appeared that the Petitioner had received a majority of the
valid ballots cast, and the Board accordingly certified the Petitioner as
the bargaining representative of the employees in the stipulated unit. 2
On December 3, 1951, the Employer filed a motion for reconsideration
in which it urged that the Board reexamine its previous decision
sustaining the Petitioner's, objection No. 3 and find that the red-pen-
cilled ballot is valid. On December 10, 1951, the Petitioner filed a
memorandum in opposition to the Employer's motion.
Upon the entire record in this case," the Board makes the following
supplemental findings :
The Employer's motion for reconsideration is grounded upon the
premise that the use, by its observer, of a red pencil in marking his own
ballot, rather than a conventional black pencil, could not, per se, serve
to identify the voter and thereby violate the secrecy of the ballot.
Upon careful reexamination of our decision, we are now persuaded
that the Employer's contention is meritorious and that the red-pen-
cilled ballot is valid. We have personally examined a facsimile of
the ballot in question and we we perceive no evidence that the red
"X" marking is of such a character as to inherently disclose the identity
of the voter. Moreover, we do not believe that the use of the red pencil
197 NLRB 72.
2 The Board overruled the Petitioner 's second objection . But, in view of its finding as to
the Petitioner 's objection No. 3, the Board deemed it unnecessary to pass upon the Regionals
Director's recommendation that a hearing be directed on the Petitioner 's first objection.
' The request of the Employer for oral argument is denied because the record , the Em-
ployer's motion , and the Petitioner 's memorandum in opposition thereto, in our opinion,.
adequately present the issues and the positions of the parties.
97 NLRB No. 142.