Esquire, Inc.

National Labor Relations Board - Board Decisions

Feb 23, 1954

107 N.L.R.B. 1238 (N.L.R.B. 1954)

1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ESQUIRE, INC. (CORONET INSTRUCTIONAL FILMS DIVI-
SION) and LOCAL 780, MOTION PICTURE LABORATORY
TECHNICIANS OF THE INTERNATIONAL ALLIANCE OF
THEATRICAL STAGE EMPLOYES & MOVING PICTURE
MACHINE OPERATORS OF THE UNITED STATES AND
CANADA, AFL, I.A.T.S.E., Petitioner. Case No. 13-RC-
3089. February 23, 1954
SUPPLEMENTAL DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
On June 25, 1953, pursuant to a Decision and Direction of
Elections issued herein by the Board,' an election by secret
ballot was conducted under the direction and supervision of
the Regional Director for the Thirteenth Region in the unit
of film editors and assistant film editors found appropriate in
that decision. Upon conclusion of the balloting, a tally of ballots
was furnished the parties, showing that of approximately 4
eligible voters, all cast valid ballots, of which 2 were for the
Petitioner and 2 were against the Petitioner. On July 2, 1953,
the Petitioner filed objections to conduct affecting the results
of the election.
In accordance with the Board's Rules and Regulations, the
Regional Director conducted an investigation of the matter
raised by the Petitioner's objections and, onSeptember 15, 1953,
issued and duly served upon the parties his report on
objections, in which he found, inter alia, that certain of the
allegations contained within objection No. 1 raised substantial
and material issues with respect to conduct affecting the results
of the election, and recommended that the Board set the election
aside. Thereafter, on October 2, 1953, the Employer filed
exceptions to the Regional Director ' s report and, on November
12, 1953, filed a motion requesting leave to file additional
authority, together with additional authority in support of its
exceptions.2
The Board has considered the Petitioner's objections, the
Regional Director's report, and the Employer's exceptions and
supplemental brief, and, upon the entire record in the case,
makes the following findings:
In his report the Regional Director found no evidence to
support objections 2, 3, 4, and 5; he also found that the
allegations of objection No. 1 concerning the disparagement
of officials of the Petitioner was lacking in merit because the
alleged statements constituted protected free speech. As no
exceptions were filed to this portion of this report , we adopt
the findings and recommendations of the Regional Director,
and overrule these objections. There remains for our con-
sideration only the other allegations of objection No. 1.
1105 NLRB 205
2 In the absence of any objection , the motion is hereby granted.
107 NLRB No. 260.
ESQUIRE, INC. (CORONET INSTRUCTIONAL FILMS DIVISION) 1239
Concerning the latter , the Regional Director found that the
context of the Employer ' s letters of June 5, 8, and 17 to its
employees was such as could be reasonably calculated to
impress upon the voters the Employer ' s intent to refuse to
bargain with the Petitioner , in the event the latter won the
election , until after a protracted course of litigation and then
only to accord such employee benefits as it would be willing
to grant without the intercession of abargaining representative.
The Employer's June 5 letter stated that the Employer believed
that the unit determination of the Board in the original decision
was contrary to the statute and that the only means through
which the Employer could obtain redress, in the event the
Petitioner won, would be by its refusal to bargain. The
letter also stated further that a year or two would be required
before the courts could review a Board order to bargain. We
find no basis in this letter for setting aside the election. The
statement objected to was merely an expression of the
Employer's legal position , which we recently have held not
to be improper.3 The Employer had the clear right to litigate
this legal issue , and if he had the right to do it, he had the
right to say that he would.
In the June 8 letter the Employer said:
WE MUST PREPARE FOR A STRIKE
The strike record of the IATSE & MPMO is shockingly
bad. It is a record loaded with strikes called to enforce
its demands for blackmail payments to its highest union
officers . It is a record of strikes called in an effort
to take over the jobs of workmen who belong to legitimate
unions.
There is nothing in the record of the IATSE & MPMO
in Chicago to lead us to think that we shall be treated
differently than other employers whose businesses have
been closed by work stoppages , ordered to enforce the
blackmail demands of bosses of the IATSE & MPMO.
But C.I.F . intends to continue to live. And , it intends
to continue to live in spite of what the IATSE & MPMO
may intend to do to it . For that reason it is necessary
for us to take the precautions which any prudent business
man must take in the face of possible disaster.
Within the next few days you may see visitors being
escorted through the studio and studying our production
methods . Do not be misled by any rumors that we are
planning to close up the Glenview studio as a retaliation
against those who may have worked for the Union. We
have no plans to change our method of operation under
normal circumstances.
However, we also do not intend to lose production for
a single day because of any strikes which the IATSE &
3National Furniture Manufacturing Company, Inc., 106 NLRB 1300.
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MPMO may be planning for us --and for you. It is therefore
necessary for us to have stand -by production facilities
available -- just in case.
On June 17 the Employer wrote stating:
One thing is certain, we will always be willing to pay as
high wages voluntarily as we will be willing to pay
through a Union contract. We do not intend to endanger
the solvency of this business to make good the wild
promises of anybody.
What other complaints do you have ? Have you ever
taken them up with us ?
The Employer, in its exceptions, contends that the June 8
and 17 letters were privileged communications, asserting
that neither was coercive nor contained any threat of reprisal
or force, or promise of benefit. We agree. The letters, standing
alone,were privileged under Section 8 (c) of the Act.4 The
Employer emphasized in the June 8 letter that it intended to
continue its operations notwithstanding any strikes that the
Petitioner might call, and that the Employer would maintain
standby production facilities for that purpose. It is clear
that the Employer's statement in the June 17 letter of its
willingness always to pay as high wages voluntarily as it
would be willing to pay through a collective-bargaining a-
greement is, at most, a reiteration by the Employer of its
preference for dealing directly with its employees. The
Board has held that such statements do not constitute in-
terference.' Moreover, we do not find that the three letters,
even if considered in their context, interfered with the em-
ployees' freedom of choice.6 Accordingly, we overrule the
remaining allegations of objection No. 1.
As we find no merit in any of the Petitioner's objections,
and as the Petitioner failed to secure a majority of the valid
ballots cast, we shall vertify the results of the election.
[The Board certified that a majority of the valid ballots
was not cast for Local 780, Motion Picture Laboratory
Technicians of the International Alliance of Theatrical Stage
Employes & Moving Picture Machine Operators of the United
States and Canada , AFL, I.A.T.S.E., and that this labor
organization is not the exclusive representative of the em-
ployees in the unit heretofore found appropriate.]
Member Murdock, dissenting:
I cannot agree with the majority' s conclusion that a fair
4See Silver Knit Hosiery Mills, Inc., 99 NLRB 422; see also, N.L.R.B. v. Gutman &
Co., 121 F. 2d 756 (C. A. 7), setting aside 18 NLRB 64; and cases cited in footnotes 3 and 5.
5General Electric Company, 92 NLRB 1132. and cases cited therein.
6National Furniture Manufacturing Company, Inc., supra.
ESQUIRE , INC. (CORONET INSTRUCTIONAL FILMS DIVISION) 1241
election was held in this case . As the Board recently stated
in Diamond State Poultry Co., Inc., (107 NLRB 3):
The issue before the Board is whether the election was
conducted under such circumstances and under such
conditions as were conducive to the sort of free and
untrammeled choice of representatives contemplated by
the Act.
In my opinion , because of the Employer ' s preelection conduct,
those standards were not met in this case . I base my conclusion
upon the statement made by the Employer in its preelection
letters of June 5, 8, 17, referred to in the majority opinion.
Thus, in its letter of June 5 the Employer stated that it
would refuse to bargain with the Petitioner if the Petitioner
won the election and would continue to refuse to bargain
until ordered to do so by the courts . It also pointed out that
a review by the courts of a Board bargaining order would
take several years . Moreover , in its later communications
to the employees the Employer warned them that even if
compelled to bargain, "One thing is certain , we will always
be willing to pay as high wages voluntarily as we will be will-
ing to pay through a Union contract ." It further implied that
it would be futile for the employees to go on strike to enforce
their demands for the Employer intended to maintain standby
production facilities for that purpose and to have trained
replacements available to fill the jobs of strikers.
The majority finds that these statements constituted merely
an expression of the Employer ' s legal position and a reiteration
of its preference for dealing directly with its employees. In
reaching this conclusion the majority relies, in part, upon
the recent decision in National Furniture Manufacturing
Company, Inc ., 106 NLRB 1300, which overruled Metropolitan
Life Insurance Company, 90 NLRB 935, wherein the Board
had held that an anticipatory refusal to bargain constituted
grounds for setting aside an election. I did not participate
in, nor do I agree with, the National Furniture decision. Prior
to the National Furniture case the Board consistently held
that an employer ' s announcement before a Board - directed
election that it would not bargain with the winning union
interfered with a free choice of representatives and was grounds
for setting aside the results of the election .' This doctrine,
in my opinion , was a salutary one and is necessary to insure
that the standards requisite to a free election, referred to
above, are maintained . In this case the Employer went even
further to impress upon its employees the futility of voting
for the Petitioner by warning them that they would get nothing
7See, for example , Capital Transit Company, 100 NLRB 1173; Legion Utensils Company,
103 NLRB 875; see also , Augusta Bedding Company , 93 NLRB 211, wherein the Board
found that a threat to employees involving an anticipatory refusal to bargain was tantamount
to a threat to refrain from assisting or becoming members of any union.
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through collective bargaining that the Employer would not
otherwise give them voluntarily and that if they struck to
enforce their demands the Employer was prepared and intended
to fill their jobs with replacements.
Whether or not the Employer would have committed an unfair
labor practice by engaging in such conduct is not, I submit,
the issue in this case.8 The issue as I see it is whether the
Employer's preelection conduct so impressed upon the em-
ployees the futility of voting for the Petitioner that they
were unable freely to express their desires in the election.
I find that it did. Here the employees went to the polls with
the Employer's warning that it would not honor the Board's
certification even if the Petitioner won the election, but
instead would engage in several years of litigation; aware
that they would gain nothing through collective bargaining
that the Employer would not otherwise give them voluntarily;
and with the knowledge that the Employer was prepared to
replace them if they struck for economic benefits. I find that
the Employer's conduct was clearly calculated to create
such an impression of futility in the minds of the voters and
therefore constituted interference with that sober and thoughtful
choice which a free election is designed to reflect. Accordingly,
I would set aside the election.
SCf. the majority opinion in Peerless Plywood Company, 107 NLRB 427.
THE DAYTON RUBBER MANUFACTURING COMPANY and
UNITED RUBBER WORKERS OF AMERICA, Petitioner. Case
No. 11-R-1563 (formerly 5-R-1563). February 23, 1954
SUPPLEMENTAL DECISION
On July 17, 1944, the Board issued its Decision and Di-
rection of Election in the above-entitled case' involving the
branch factory of the Employer2 at Waynesville, North Carolina.
In it, the Board found that the following unit was appropriate
and directed an election therein:
All production and maintenance employees including cal-
endar operators, inspectors, testing and packing em-
ployees, receiving and shipping employees, and firemen,
but excluding cafeteria workers, laboratory employees,
watchmen, office and clerical employees, foremen,and
all or any other supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise
effect changes in the status of employees, or effectively
recommend such action.
157 NLRB 388.
2 Since the original proceeding herein, the name of the Employer has been changed to
The Dayton Rubber Company.
107 NLRB No. 263.