Electro-Wire Products, Inc.

National Labor Relations Board - Board Decisions

Jun 11, 1979

242 N.L.R.B. 960 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Electro-Wire Products, Inc., and International Union,
United Automobile, Aerospace and Agricultural Im-
plement Workers of America (UAW) Petitioner.
Case 7-RC-14820
June 11, 1979
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
The Board has considered the objections' to an
election held on June 2, 1978,2 and the Hearing Offi-
cer's report recommending disposition of same. The
Board has reviewed the record in light of the excep-
tions and briefs3 and hereby adopts the Hearing Offi-
cer's findings and recommendations, 4 but only to the
extent consistent herewith.5
Petitioner's Objection I alleges, in substance, that
the Employer was in violation of the Peerless Plywood
rule6 when, on the morning of the election, its pres-
ident, Roland Catenacci, spoke to each eligible voter
on the first shift, encouraging them to vote and sug-
gesting that they vote no. The Hearing Officer recom-
mended that this objection be sustained. We disagree.
The facts are as follows: The election was sched-
uled from 2:45 to 4:45 p.m. On the day of the election
President Roland Catenacci spoke individually to
each and every employee on the first shift (comprising
at least half of the eligible voters), stating that he
wanted them to vote at the election and that he would
appreciate their voting no. The individual talks lasted
only a few minutes at the work stations of the em-
ployees on company time and continued until just
prior to the scheduled voting time. Two employees
testified that immediately before and after being ap-
proached, they observed and overheard Catenacci de-
livering similar remarks to several other employees.
The Hearing Officer found that Catenacci's con-
i The Petitioner had requested that its Objection 4 be withdrawn, and after
due consideration the Regional Director approved the request.
2 The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tally was: 36 for, and 58 against, the Petitioner:
there was I challenged ballot, an insufficient number to affect the results.
3The Employer and Petitioner have requested oral argument. T'his request
is hereby denied, as the record, the exceptions, and the briefs adequately
present the issues and the positions of the parties.
4 In its exceptions. the Employer argued that the Hearing Officer erred in
not granting its motion to dismiss. The motion was based on the Petitioner's
alleged failure to comply with Sec. 102.11(b) of the Board's Rules and
Regulations regarding service on the Employer's attorne) of record. The
record olows that the Employer was served and that its attorney of record
had actual notice of the objections. Based on these facts and the fact that
there was no evidence that the Employer was prejudiced by the Petitioner's
alleged noncompliance, we are of the opinion that he Petitioner was in
substantial compliance with the Board's Rules and Regulations. and, accord-
ingly, the Hearing Officer was correct in denying the motion. Alfred Sickles
Bakery, Inc., 209 NLRB 1058, 1059 (1974); Brurten Poniiac Corp, 163
NLRB 680, 683 (1967).
In the absence of exceptions, we adopt, pro firma, the Hearing O'ficer's
recommendation that Petitioner's Objections 2 and 3 be overruled.
6 Peerless Plywood Corparn,, 107 NLRB 427 (1953).
duct violated the Board's Peerless Plywood doctrine
prohibiting election speeches, by either employers or
unions, to massed assemblies of employees on com-
pany time within the 24-hour period immediately pre-
ceding an election. She was of the opinion that Cate-
nacci's remarks were "planned and systematic as well
as timed and calculated to influence votes in favor of
the Employer." Although it was found that the state-
ments were noncoercive, the Hearing Officer con-
cluded that it was not unlikely that a mass psychol-
ogy was generated. The Employer contends that the
Hearing Officer unrealistically extended the Peerless
Plywood rule. We agree with the Employer.
In Associated Milk Producers, Inc.,7 the Board
found no violation of the Peerless Plyvwood rule where
the plant manager, on the morning of the election,
spoke to every eligible voter individually at his work
station, stating that he did not feel the employees
needed a union and that he hoped they would vote
no. The Board found that the brief comments, made
to the employees individually, could not be construed
as a speech to a massed employee assembly and were,
therefore, unlikely to create the mass psychology re-
ferred to in Peerless Plywood Similarly, in the instant
case, Catenacci did not call employees away from
their work stations to speak to them singly or to ad-
dress them as a group. The remarks were informal,
individual, and of the same content as those in Asso-
ciated Milk Producers. Therefore, it is concluded that
the repetitious nature, reach, location, and timing of
these individual conversations did not amount to a
speech made to all the employees collectively. We
therefore find that Catenacci's remarks to the first-
shift employees on the day of the election were not
objectionable within the meaning of the Peerless Ply-
wood rule.
Based on the foregoing, we ind that Petitioner's
Objection I is without merit and that it should be,
and it hereby is, overruled. Accordingly, we will cer-
tify the results of the election.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for International Union.
United Automobile, Aerospace and Agricultural Im-
plement Workers of America (UAW). and that said
labor organization 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
Relations Act, as amended.
CIIAIRMAN FANNIN(G, dissenting:
The employ.es addressed at the I Ith hour of this
campaign were at their work stations when addressed.
'237 NI.RB 879 11978).
242 NLRB No. 144
960
ELECTRO-WIRE PRODUCTS, INC
They were, therefore, "captive," as Peerless Plywood
uses the word. All the employees who could have
been addressed were, in fact, addressed and, more-
over, were aware of the fact that all employees on the
shift were being addressed. The mass psychology to
which Peerless alludes seems to me, in such circum-
stances, to be fully operative. Finally, these employ-
ees were addressed, personally, by their employer.
There can be no more apt "locus of employer author-
ity." An appreciation for the substance of Peerless,
not merely its form, requires, in my judgment, that we
not permit employers to accomplish indirectly pre-
cisely that which Peerless directly proscribes, and, for
that reason, I would adopt the Hearing Officer's rec-
ommendation and set this election aside.8
MEMBER TRUESDALE, dissenting:
Unlike my colleagues, I would find, in agreement
with the Hearing Officer, that the Employer's conduct
immediately before the election violated the rule
adopted in Peerless Plywood Company, 107 NLRB
427 (1953), and that the election must therefore be set
aside.
The facts are essentially undisputed, but bear re-
peating here. A Board-conducted election was sched-
uled to take place on June 2, 1978, from 2:45 to 4:45
p.m. On the day of the election-indeed in the last
hour before the start of the voting-the Employer's
president, Catenacci, walked through the plant and
engaged each and every employee on the first shift in
conversation at the employee's work station. The first
shift represented about one-half of all eligible voters.
Catenacci approached each employee individually
and expressed to them, first, that he wanted them to
vote in the election and, second, that he would appre-
ciate their voting no to union representation. The rec-
ord also shows, as the Hearing Officer found, that,
immediately before and after Catenacci addressed
them individually, the employees observed and over-
heard him delivering similar remarks to several other
employees in their respective departments. Thus, each
of the employee-witnesses who testified at the hearing
stated that she saw and heard Catenacci deliver simi-
lar remarks to anywhere from one to seven other
workers at their work stations during working time.
In concluding that Catenacci's remarks violated the
Peerless Plywood rule, the Hearing Officer relied on
the fact that Catenacci's remarks, though in them-
I find this case distinguishable from Hnevwell Incorporated, Precision
Merer ivison, 162 NLRB 323 (1966). in which Member Jenkins and I
dissented. In Honeywell. a supervisor engaged in conversation concerning the
union ith only 6 employees out of 266 eligible voters before the polls
opened. Member Jenkins and I found that such action could not have engen-
dered the "mass psychology" condemned by Peerless. In this case, the
planned and systematic speech to more than half of the eligible voters creates
quite a different situation. See fn. 5 of the dissent in Hone well, supra
I did not participate in A rsoiared Milk Producers, 237 NLRB 879, and do
not subscribe to the holding in that case
selves noncoercive, were delivered on company time
and premises to a captive audience within 24 hours of
the election. She also relied on her finding that these
campaign statements were not casual off-chance re-
marks to a few isolated employees, but rather were
planned and systematic, as well as timed and calcu-
lated to influence votes in favor of the Employer. Fi-
nally, the Hearing Officer concluded that, even
though the Employer did not literally deliver its th-
hour campaign pitch in a formal speech to the em-
ployees assembled en masse, the impact of its conduct
was the same as it would have been had Catenacci
addressed his remarks only once to the employees as-
sembled in a meeting. I fully agree with the Hearing
Officer's rationale.
The rule in Peerless Plywood is a simple one. It
states that "employers and unions alike will be pro-
hibited from making election speeches on company
time to massed assemblies of employees within 24
hours before the scheduled time for conducting an
election. Violation of this rule will cause the election
to be set aside whenever valid objections are filed."
The Employer concedes that Catenacci's remarks
were made on company time and within 24 hours
before the election. It also cannot be seriously dis-
puted, as the Hearing Officer found, that Catenacci's
remarks were in the nature of traditional campaign
speeches-albeit milder than some-in that they per-
tained directly and exclusively to the upcoming elec-
tion and solicited the employees to vote against the
Petitioner. Were these remarks addressed to the em-
ployees assembled at a meeting, there is no doubt that
my colleagues would find such conduct violative of
the Peerless Plywood proscription. My colleagues find
no violation apparently only because they find that
Catenacci's remarks were not addressed to a massed
assembly of the employees. Here the Employer has
sought-successfully, with the help of my col-
leagues-to avoid the consequences of the Peerless
Plywood proscription by making the campaign re-
marks to all of the employees-on company time-
individually at their work stations. To find no viola-
tion in this conduct seems to me to put undue empha-
sis on form rather than substance. The same improper
end-specifically eschewed by Peerless Plywood-was
achieved by Catenacci's planned and systematic re-
marks to individual employees as would have been
obtained had the employer called a meeting on com-
pany time to address these remarks to them en masse.
For, as the Board said in Peerless Plywood, "the real
vice is in the last-minute character of the speech cou-
pled with the fact that it is made on company time.
. . . Such a speech, because of its timing, tends to
create a mass psychology which overrides arguments
made through other campaign media and gives an
unfair advantage to the party, whether employer or
961
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union, who in this manner obtains the last most tell-
ing word."'
The Board has repeatedly held that the Peerless
Plvwood ban is not limited to "a formal speech in the
usual sense," but rather is designed to bar "abso-
lutely" during the 24-hour preelection period the use
of company time for "campaign speeches of any
form." Montgomery Ward & Co., Incorporated, 124
NLRB 343, 344 (1959); Honeywell, Incorporated Pre-
cision Meter Division, 162 NLRB 323, 325-326 (1966)
(then-Member Fanning and Member Jenkins dissent-
ing). The Board has also held that the term "massed
assemblies." as used in Peerless Plywood, is not to be
construed as "limited to all or most of the unit em-
ployees, or to any certain proportion of them, or to an
assemblage of such employees whose votes would (be
sufficient in number to] affect the outcome of the elec-
tion." The Great Atlantic & Pacific Tea Company, I l
NLRB 626, 626 (1955); Honeywell, Incorporated, su-
pra.
Catenacci is the highest ranking official of the Em-
ployer. He is not generally at the plant all of the time,
and, indeed, his office is located at another of the
Employer's facilities. His conduct in coming to the
plant shortly before the election was to begin and
then engaging in the massive and systematic last-min-
ute campaign described above was highly unusual
and, in my judgment, certainly tended "to create a
mass psychology" among the employees who ob-
served and listened to him. Clearly Catenacci's con-
duct resulted in an "unfair advantage" to the Em-
ployer, "who obtained the last most telling word."
Peerless Plywood, supra. Although the employees
were not a "massed assembly" in the traditional sense
of that phrase, they were gathered at their work sta-
tions on company time for the purpose of hearing
Catenacci's remarks. The Board has held that a
planned assembly of employees is not an indispens-
able ingredient for a proscribed captive-audience
speech. Thus, in United States Gypsum Company, 1 15
NLRB 734, 735 (1956), the Board set aside an elec-
tion where, less than 24 hours before the election, the
union stationed a sound truck outside the plant and
blasted campaign speeches at the employees who
were working within. The Board there stated:
However, the critical factor in this regard is not
the location of the speaker but whether the em-
ployees are exposed to hi,; remarks. Thus, here
the speeches could be clearly heard during work-
ing hours at locations in the plant where a num-
ber of employees were stationed. Furthermore,
although the employees were not a massed as-
sembly in the sense that they were gathered for
9107 NLRB at 429.
the purpose of hearing the speeches, the employ-
ees who heard or could have heard the speeches
were not isolated, but were working with or near
each other, and the Petitioner in a planned and
systematic fashion directed its campaign
speeches at the employees during the entire day
before the election. Accordingly, as the consider-
ations operative in establishing the Peerless Ply-
wood rule are here present in substance, albeit
not in form, we are persuaded to reach the same
result here.
As in Gypsum, supra, all of the relevant factors es-
tablishing the Peerless Plywood violation are here pre-
sent in substance, albeit not in form. The Employer
addressed campaign speeches to each and every one
of its employees on company time during the last
hours before the election. The employees were not
free to come and go as they pleased. Rather, they
were compelled to remain at their work stations and
to listen to these speeches by Catenacci. The
speeches, although each was of relatively short dura-
tion, were made over a period of more than 1-1/2
hours in the presence of other employees who had an
opportunity to hear and witness them. In all of these
circumstances, I am persuaded that the speeches con-
stitute improper conduct within the meaning of the
Peerless Plywood rule, and I would, therefore, set this
election aside.
I am, of course, fully aware that the majority relies
upon the Board's recent decision in Associated Milk
Producers, Inc., 237 NLRB 879 (1978), in which I
participated. The facts in that case are virtually indis-
tinguishable from those here. In Associated Milk the
Board found, contrary to the Regional Director, that
the employer's systematic planned individual re-
marks, made 24 hours before the election, to each and
every one of its employees on company time and at
the employee's work station, did not run afoul of the
Peerless Plywood doctrine. I have reconsidered that
case, in light of this case, and have concluded that the
Regional Director correctly decided Associated Milk
and that he was improvidently reversed by the Board.
Accordingly, I disassociate myself from the case and
no longer adhere to its holding. Thus, when agents of
either the employer or the union systematically im-
portune all or a substantial number of the employees
at their work stations within 24 hours of the election,
the mass psychology which Peerless Phywood sought
to avoid is set in motion, and one party thereby
achieves an unfair advantage through "the last most
telling word." Inasmuch as here the Employer's con-
duct immediately before the election was, in my view,
a violation of the Peerless Plywood rule, I would set
aside the election. Accordingly, I dissent from my col-
leagues' refusal to do so.
962