Elgin Butler Brick Co.

National Labor Relations Board - Board Decisions

Jul 15, 1964

147 N.L.R.B. 1624 (N.L.R.B. 1964)

1624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the proofreading department who are not the subject of
any opposing claim. It is thus apparent that while the dispute has
been submitted in the form of a jurisdictional dispute, there is present
here no more than opposing claims to represent as part of respective
contract units, employees who up to the present have had no collective-
bargaining representative.
We are, therefore, of the opinion that the record in its entirety does
not evidence a jurisdictional dispute between competing groups of
employees claiming the right to perform the work in dispute and that
therefore there is no dispute cognizable under Section 10(k) of the
Act. The facts do not lend themselves to decision under Section
8 (b) (4) (D) but, rather, tend to present a problem of unit representa-
tion. Indeed, but for the advent of the picketing, it appears that the
parties themselves by filing the representation petitions have indicated
their satisfaction with allowing the case to proceed along these lines.
Although the record contains some evidence of the nature of the work
in issue, considerations of good practice dictate that the parties herein
present this matter to the Board in the form of a representation pro-
ceeding so that the unrepresented employees whose rights are most
intimately involved may be given the opportunity to express their
wishes on the question of their representation.
Accordingly, we find on the entire record that the facts in this case
do not present a jurisdictional dispute within the purview of Sections
8('b) (4) (D) and 10(k) of the Act. We shall therefore quash the
notice of hearing.
[The Board quashed,the notice of hearing.]
Elgin Butler Brick Company and International Brotherhood of
Operative Potters, AFL-CIO, Petitioner. Case No. 23-RC-92183.
July 15, 1964
DECISION AND CERTIFICATION OF RESULTS
OF ELECTION
Pursuant to a stipulation for certification upon consent election,
executed on December 9, 1963, an election by secret ballot was con-
ducted on February 7, 1964, under the direction and supervision of the
Regional Director for Region 23 among the employees in the stipulated
unit. At the conclusion of the balloting, the Regional Director fur-
nished the parties with a tally of ballots which showed that, of ap-
proximately 179 eligible voters, 161 cast valid ballots, of which 72 were
cast for and 89 cast against the Petitioner, and 12 were challenged.
Thereafter, the Petitioner filed timely objections to the election.
147 NLRB No. 170.
ELGIN BUTLER BRICK COMPANY 1625
The Regional Director investigated the objections and on March 20,
1964, issued his report on objections, in which he found that the
objections raised substantial and material issues affecting the elec-
tion results and recommended that the election be set aside and that
a new election be held. The Employer filed timely exceptions to this
report.'
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 [Members Leedom, Fanning, and
Brown].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
4. We find, in accordance with the stipulation of the parties, that
the following unit is appropriate for purposes of collective bargain-
ing within the meaning of Section 9 (b) of the Act : All production and
maintenance employees, including truckdrivers, employed at the Em-
ployer's plant located in Elgin, Texas, but excluding office clerical eln-
ployees, guards, professional employees, and supervisors as defined
in the Act.
5. The Board has considered the Petitioner's objections, the Regional
Director's report and recommendations, and the Employer's exceptions
thereto, and makes the following findings
During the ,preelection period,the Employer 'sought to influence its
employees to vote against union representation. Its campaign appears
to have been initiated with a letter dated November 13, 1963, and to
have concluded,with•a speech on February 6, 1964, the day before the
election. In his report on objections, which found merit in the Union's
objections, the Regional Director stated :
The Petitioner rests its objections solely on an extensive pre-
election propaganda campaign engaged in by the, Employer
wherein certain literature was distributed, or otherwise made
available, by the Employer to its employees, copies of which are
attached.
IIn answer to the Employer's objection that the Regional Director had failed to in-
vestigate fully, and to take into consideration, the material circulated among the em-
ployees by the Petitioner, the Regional Director Issued a Supplemental Report. In this
report he took notice of the material circulated by the Petitioner and concluded that it
did not warrant the preelection literature of the Employer
1626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I can only conclude from a thorough examination of the Em-
ployer's campaign literature that the Employer unduly influenced
its employees by stressing the futility of their voting in behalf
of representation by the Petitioner, that in fact, its employees
were already enjoying the maximum possible benefits the Em-
ployer would extend.
Throughout its entire campaign, the Employer dwelled upon
the inevitability of a strike resulting in extreme economic hardship
for its employees and their probable permanent replacement.
From the foregoing, coupled with the Employer's thinly veiled
threat to its dissatisfied employees that they seek employment else-
where, I must and do conclude that the Employer created an un-
reasoning fear in the minds of its employees (which interfered
with and made impossible the exercise of the employees' free choice
in the election).
Coupled with stressing the inevitability of a strike if the Peti-
tioner won the election, the Employer pointed to the likelihood
of an aftermath of violence and property damage. The Board has
on previous occasions specifically pointed out that the unremitting
effort on the part of an Employer to impress upon its employees
the dangers inherent in their selection of the Union as their bar-
gaining agent, particularly the danger of job loss and the prospect
of violence, without at the same time even,hinting to its employees,
that the selection of a collective bargaining representative need
not result in a strike or violence, but could result in a collective
bargaining agreement, warrants setting aside an election.
Additionally, by making available chances on a television set
only to employees who voted, the Employer unduly rewarded em-
ployees who voted and in view of the expressed antipathy to the
Union this interfered with the exercise of a free choice by the
voters.
On the basis of the foregoing, I conclude,and find that the
Petitioner's objections have merit.
As appears from the Regional Director's report, supra, and also
from the Union's objections, the Union and the Regional Director, to
support their respective assertion and conclusion as to improper pre-
election conduct, rely not on any specific statements by the Employer,
but rather on the asserted overall impact of the Employer's campaign.
We have carefully examined all the campaign material attached to the
Regional Director's report. We are unable to agree with either the
Regional Director or our dissenting colleague that the Petitioner's
objections have merit.
It is undoubtedly true that the Employer waged an aggressive cam-
paign against selection by its employees of the Petitioner as their
bargaining representative, in the course of which it made reference to
ELGIN BUTLER BRICK COMPANY 1627
a strike in which the Petitioner was involved; but a. close examination
of the Employer's literature does not disclose either an express or
implied threat of retaliatory action by the Employer. The Employer's
statements concerning this strike were factual and relevant to the elec-
tion issues before the employees.2 To the extent that they may have
contained half-truths or created a distorted picture of union rep-
resentation in action, it is undenied that the Petitioner had full op-
portunity to, and did, present its side of the case.
Essentially the Employer's material is a reminder that there can be
disadvantages to union representation and that it would be wise for the
employee to give heed to the disadvantages as well as the advantages in
making his choice. But we cannot say on the evidence before us that
the Employer's statements contain such expressions of the inevit-
ability of strikes if Petitioner is selected that it would be reasonable to
infer therefrom that the Employer would not honor its statutory
obligation to meet and bargain with the Union in good faith, thereby
creating in the minds of the employees the futility of selecting a bar-
gaining representative. Nor can we say in the circumstances of this
case that the facts point to the existence of a situation in which the
election atmosphere was such that the employees were precluded from
exercising a rational choice on the question or the desirability of col-
lective representation.
Finally, we cannot agree with the Regional Director that by urging
all employees to exercise their statutory right to vote in the election by
making available chances on a television set to all employees who voted,
the Employer, without more, interfered with the 'exercise of a free
choice by the voters.
Accordingly, as we have overruled the objections and the tally of
ballots shows that Petitioner has not received a majority of the valid
ballots cast, we shall certify the results of the election.
[The Board certified that a majority of the valid votes was not
cast for the International Brotherhood of Operative Potters, AFL-
CIO, and that the said labor organization is not the exclusive rep-
resentative of the employees in the unit found appropriate.]
MEMBER BROWN, dissenting :
Once more I find myself in disagreement with my colleagues as to
the legal consequences that should attach to the kind of propaganda
indulged herein by the Employer. Here as in so many of these cases
there appears a pattern all too clear.' The Employer emphasizes and
reiterates the dire consequences of unionization and with calculated
design and deliberate intent creates an unreasoning fear in the minds
'American Greetings Corporation, 146 NLRB No. 157.
3 American Greetings Corporation , supra; Shure Brothers Incorporated , 147 NLRB 43.
1628 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the employees that their jobs are in serious jeopardy should the
Union win the election. Evident is an increasingly frequent use of
expressions, opinion in form only-i.e., if the Union does so-and-so,
then surely a strike will follow-but to the average employee the subtle
distinction between opinion and fact is lost in the maze of rhetoric and
there emerges only the spectre of strikes, violence, and loss of jobs
should the Union win the election. Even a casual reading and inspec-
tion of the Employer's material could lead to no other reasonable con-
clusion. Although the Employer speaks in terms of opinion, the
message that is received by the employees is that of a strike if the
Union refuses to agree to the Employer's demands. Thus, on Novem-
ber 13, 1963, it began its campaign by a reference in a letter to the
employees, "The union can call a strike if those demands are turned
down. That is all it can do." The emphasis on a strike thus begun
continued. On December 12, 1963, the Employer distributed a letter
stating, ."The union bosses can only make promises [emphasis in orig-
inal] about what they can do. What can those union bosses do if the
Company does not agree to make good on all the union promises?
Well, the only thing the union can do is to call a strike! And you
could be permanently replaced !" Again, the Employer followed up
this strike theme in a letter of December 13, 1963, referring to a strike
by Petitioner at Kerr-Ban in Taylor, Texas, and that the strikers have
been replaced. The Employer concludes, "I hope we don't have any
strike here, but if there is one, remember that Elgin-Butler Brick
Company has the right to hire workers to take the place of strikers
and the right to keep these workers on the payroll."
The Employer also circulated newspaper articles concerning the
strike-by Petitioner at Kerr-Ban 'in Taylor, Texas. The Employer
inserted notations on the November 28, 1963, article, "Same bunch,
Company not shut down; strikers may lose jobs, strike called to collect
money from workers, strike not for workers' benefit." Notations were
inserted in the December 18, 1963, newspaper article concerning
violence and property damage in Taylor, Texas, "DO NOT LET
THIS HAPPEN -HERE VOTE AGAINST THE UNION ON
ELECTION DAY." - `
The Employer also used posters depicting some strikers throwing
down their picket signs and abandoning their strike. They are con-
fronted with a "No Vacancies" sign on the plant wall and they ex-
claim, "ZING-it's too late!" Finally the poster exclaims, "Stop this
VOTE NO !" Another poster asserting, "Union promises won't fill
your grocery basket, but union strikes, picket lines, dues, fees, assess-
ments will sure keep it EMPTY." The poster also warned, "Protect
your security VOTE NO UNION." Poster depicting strikers walking
the picket line in front of Elgin-Butler. The poster reads, "Remember
NO UNION. NO STRIKES VOTE NO."
ELGIN BUTLER BRICK COMPANY 1629
On February 6, 1964, a day prior to the election, the Employer con-
cluded his campaign by delivering a speech to the employees. The
speech compares the Union to a flea. "AYES vote means we will be
scratching like a dog for some time to come. What happens if the flea
gets on and causes some members to lay down their tools and leave?
The answer should be obvious to everyone-those of us remaining must
recruit new members to use the tools and get the team going again."
The Employer further stated, "To those of you who have set higher
goals than this company offers-we say go after them, wherever they
may be. Get all the education you can-and if you think it's too late
for you or that you are too old, then help your children and the
younger generation."
It matters not that its threat is expressed in terms of alleged factual
reporting of strikes , violence , and loss of jobs. What is significant to
the employees is the clear warning that filters through to the effect that
if the Union is selected, the Union will undertake to obtain better
conditions of employment for the employees and that, if it does, such
action will surely and ultimately lead to a loss of jobs 4 This threat
is not lost on the employees . This theme repeated over and over again
also instills in the minds of the employees a feeling of futility and
finally tends to deprive them of the ability to make a reasoned choice.
Under these circumstances, it is immaterial that the Union may have
had an opportunity to present its arguments to the employees. The
type of campaign material with which we are concerned in the instant
case has its impact by generating fear, and such emotional reaction is
not responsive to denials or explanations and cannot be dissipated or
counterbalanced by factual replies 5 made by the Union. I would
adopt the Regional Director's finding, set aside the election, and direct
a new election.
' Realist, Inc, 142 NLRB 573, enfd. 328 F. 2d 840 , cert denied 377 U S. 994.
5 Oak Manufacturing Company, 141 NLRB 1323 , 1324, footnote 6.
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