Black Dot, Inc.

National Labor Relations Board - Board Decisions

Dec 19, 1978

239 N.L.R.B. 929 (N.L.R.B. 1978)

Black Dot, Inc. and Chicago Typographical Union,
No. 16, AFL-CIO, Petitioner. Case 13-RC-14714
December 19, 1978
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
Pursuant to authority granted it under Section 3(b)
of the National Labor Relations Act, as amended, a
three-member panel has considered the Petitioner's
objections to an election held May 11 and 12, 1978,'
the Acting Regional Director's report recommending
disposition of same, and the Regional Director's Sup-
plemental Report on Objections and Order Denying
Motion To Reconsider. The Board has reviewed the
record in light of the exceptions and brief and hereby
adopts the Regional Director's findings and recom-
mendations, only to the extent herewith.
The Regional Director recommended that the elec-
tion be set aside on the ground that the Employer's
conduct in making proemployer and antiunion but-
tons available to employees constituted a subtle form
of interrogation. The Employer contends that the
mere availability of buttons, in the absence of any
independent coercive conduct, is not objectionable.
For the reasons set forth below, we find merit in the
Employer's contention.
On three occasions during the month preceding
the election, the Employer placed proemployer and
antiunion buttons in a flowerpot that was hung on a
wall in the employees' cafeteria. Also on the wall was
a large red paper arrow pointing down toward the
bucket of buttons. Before the buttons were made
available, the Employer instructed its supervisors not
to discuss the buttons with employees. A substantial
number of employees wore the buttons during the
campaign, as did some of the supervisors. No evi-
dence was adduced showing any participation by
supervisors in the distribution of the buttons, nor was
there any evidence of interrogation or other coercive
activity by supervisors. The Petitioner did not dis-
tribute buttons to employees.
The Regional Director, relying on The Chas. V.
Weise Co., 133 NLRB 765 (1961), concluded that the
Employer's conduct in making the buttons readily
available placed employees in a position of declaring
their preference. We disagree and find that on the
basis of the entire context of the organizational cam-
IThe election was conducted pursuant to a Stipulation for Cerlification
Upon Consent . lection. The tally was 25 for and 57 against the Petitioner:
there were 4 challenged ballots. an insufficient number to affect the results
BLACK DOT, INC.
paign, the mere availability of buttons does not war-
rant setting aside an election.
Contrary to the situation in Weise, the evidence
fails to reveal any involvement by supervisors in the
distribution of buttons. The employer in Weise an-
nounced to assembled groups of employees that
badges were available, and supervisors, following in-
structions, gave buttons to employees who requested
them. Here, the supervisors were completely absent
from the distribution process, which was unaccompa-
nied by any coercive conduct. Supervisors did not
pressure employees to make an open choice between
the Company and the Union. The Employer merely
provided a supply of buttons at a central location.
See Farah Manufacturing Company, Inc., 204 NLRB
173 (1973); Acute Systems, Ltd. d/b/a McDonald's,
214 NLRB 879 (1974). Furthermore, 3 weeks before
the election the Petitioner mailed to employees a
document concerning the availability of buttons
which stated that the Employer was trying to intimi-
date union supporters and get them to "tip their
hand." The Employer responded to this document
with literature stating that "wearing (or not wearing)
a button is a strictly personal and voluntary act
which in no way will favorabley or adversely affect
any Black Dot employee." We find that the Employ-
er's assurances further support the conclusion that
the mere availability of buttons in these circumstanc-
es would not reasonably tend to interfere with the
employees' free choice.
In addition to Weise, the Regional Director based
his results on three other representation cases-
Macklanburg-Duncan Company, 179 NLRB 848
(1969); York Division, Borg-Warner Corporation, 229
NLRB 1149 (1977); Pillowtex Corporation, 234
NLRB 604 (1978). These cases are distinguishable, in
our judgment, on the same basis as Weise; each in-
volved supervisory participation in the distribution
of buttons to employees. Although a more stringent
standard applies to conduct alleged to be objectiona-
ble, we believe that Farah and McDonald's, unfair
labor practice cases concerning alleged violations of
Section 8(a)(1) of the Act, provide an adequate crite-
rion to ensure that laboratory conditions are pre-
served. We therefore conclude that the Employer's
conduct in merely making buttons available to em-
ployees on a voluntary basis, in the absence of super-
visory involvement in the distribution process and
unaccompanied by independent coercive conduct,
does not require that the election be set aside. Ac-
cordingly. we overrule the Petitioner's objection.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
929
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ballots have not been cast for Chicago Typographical
Union, No. 16, AFL CIO, and that said labor orga-
nization is not the exclusive representative of all the
employees in the unit herein involved within the
meaning of Section 9(a) of the National Labor Rela-
tions Act, as amended.
930