Federal Silk Mills

National Labor Relations Board - Board Decisions

Jan 15, 1954

107 N.L.R.B. 876 (N.L.R.B. 1954)

876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
action, has become in fact the collective -bargaining agent,
and as such continues to be bound by the terms of the existing
contract for the remainder of its term, we find that the con-
tract serves as a bar to the present petition . Accordingly,
we find that no question concerning representation exists
and we shall dismiss the petition.
[The Board dismissed the petition .]
DAVID GOETZ, d/b/a FEDERAL SILK MILLS andTEXTILE
WORKERS UNION' OF AMERICA, CIO, Petitioner. Case No.
5-RC-1277. January 15, 1954
SUPPLEMENTAL DECISION AND CERTIFICATION
OF REPRESENTATIVES
Pursuant to a Decision and Direction of Election, issued by
the Board on June 3, 1953 , a secret ballot election was con-
ducted among the employees in the appropriate unit on June
24, 1953 . The tally of ballots showed that of approximately
356 eligible voters, 312 cast valid ballots which were counted,
6 cast challenged ballots, and 1 cast a void ballot . Of the 312
valid votes counted, 213 were for the Petitioner, and 99
against.
On June 26 , 1953, the Employer filed objections to the
conduct of the election and moved that the election be set
aside . On July 7, 1953 , the Regional Director issued a report
on objections containing the results of his investigation, and
recommending that the objections be overruled and the Peti-
tioner be certified. The Employer filed exceptions to this
recommendation.' Thereafter , on August 10, 1953, the Board
issued an order directing hearing on matters raised by the
objections and exceptions and requiring that the hearing officer
"shall prepare and Cause to be served upon the parties a
report containing resolutions of the credibility of witnesses,
findings of fact and recommendations to the Board as to the
disposition" of said objections and exceptions . T he hearing
was held before Henry Jalette , hearing officer, who on
October 14, 1953, issued the hearing officer ' s report on
objections to election attached hereto and made a part hereof,
recommending that the objections of the Employer be sus-
tained and the election set aside . Thereafter , the Petitioner
filed its exceptions to the report.
The Board has reviewed the rulings made by the hearing
officer at the hearing and finds that no prejudicial error was
committed . The rulings are hereby affirmed . The Board has
considered the hearing officer's report on objections, Peti-
1 The Petitioner filed a statement in support of the Regional Director 's report.
107 NLRB No. 177.
FEDERAL SILK MILLS 877
tioner ' s exceptions and brief, and the entire record in this
case, and for the reasons indicated below hereby rejects
so much of the hearing officer' s recommendations and con-
clusions as are inconsistent with the instant decision.
As appears from the hearing officer's report, the Employer
seeks to set aside the election because the union representa-
tive paid to each of 15 employees representing themselves
as car -pool drivers, the sum of $ 3 within 1 to 6 days before
the election.
The Employer claimed that the Union paid the employees
this money with the intent of influencing the vote. The hearing
officer found, however, that the Union's payment represented
a good-faith attempt to eliminate possible difficulties the
car-pool passenger employees might face in voting on elec-
tion day, if transportation to or from the plant were not
provided for them. But, despite the good faith of the Union,
and the lack of evidentiary support for the Employer's given
reason of objection, the hearing officer nevertheless con-
cluded that the Union's money payments to the car-pool
drivers, who were in all instances eligible voters, warrant
setting aside the election because such payment would "tend
to influence the vote." His conclusion is predicated expressly
or impliedly upon the following rationalization of the impro-
priety of the Union's payments. It was the hearing officer's
belief that: (1) As the maximum excess distance that any
car-pool driver would have to travel in order to transport
his passengers to the polls was 1 1/5 miles, a payment of as
much as $ 3, even though expressly described to the payee as
being for "gas and oil" expense , might reasonablybe regarded
by the payees to be so disproportionately excessive , as to be
taken by the payees as an attempt to ''buy" their votes; and
(2) as the Union made the payment to any individual who
represented himself at the union headquarters as a car-pool
operator, without ascertaining either the truth of the repre-
sentation or whether the car-pool operator voluntarily had
made or would make the arrangements necessary to allow
himself or his passengers to go to the polls, the Union's pay-
ment plan provided all employees with a convenient means of
obtaining a financial benefit out of the occurrence of the
election as such.
We do not believe that the record, as a whole, supports the
hearing officer's view of the matters here in issue. As is
noted above, the hearing officer found--and the record plainly
establishes--that the Union's adoption of the payment plan
here complained of, represented a good-faith attempt to make
transportation facilities available to eligible voters who might
not otherwise be able, as a practical matter, to exercise their
right of franchise. According to the testimony of the union
representative-- a witness the hearing officer described as
truthful--his adoption of the payment plan challenged here
followed his receipt of complaints by several employees that
337593 0 - 55 - 57
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they would not be able to cast ballots on election day because
their car-pool drivers were unwilling to suffer the incon-
veniences necessary to allow the passengers tovote .2 Although
the union representative was unable to supply the specific
information as to the names and numbers of eligible voters
facing the kind of problem he described , the objective facts
establish that this type of difficulty may have in reality faced
not only the employees who apprised the union representative
of its existence but a large number of others . For it is
undisputed that as there was no public transportation system
servicing the locales in which a large majority of the em-
ployees resided, car -pool arrangements represented, for a
substantial proportion of the employee group eligible to vote,
the sole practical means of getting to and from work . Hence,
because the polls were located at some distance from the
plant, car -pool passengers desiring to vote could do so, as a
practical matter , only if they could be certain that their car-
pool ride would not thereby be prejudiced.
We are inclined to agree that the particular " transportation"
plan selected by the Union should best have been avoided,
because the plan involved eligible voters and was easily
subject to abuse . There is no evidence , however , as to what,
if any, other practical solution to the transportation problem
might have been available. But, in any event, we cannot regard
the means actually selected as warranting the setting aside of
the election in the circumstances here presented . For we are
convinced that the Union took adequate measures to make
plain to the employees why the money payments were being
made available-- and that the employees clearly understood
that such payments were made only as an incidental part of a
transportation plan . Thus, it is undisputed that, in making the
payments to the payees , the union representative : (1) Asked
each if he were a car -pool driver ; 3 (2) exacted from each a
promise to transport his passengers to the polls ; ( 3) expressly
stated that he was not interested in "how" anyone voted, but
only in the fact than everyone would vote ; and (4) specifically
described the 3-dollar payment as being for " gas and oil"
expense . These facts, together with the absence of any evi-
dence that the employees regarded the payments either as
attempts to "buy" a prounion vote, or as obligating them to
cast such a vote , persuade us that the plan, as executed, did
not constitute an act of interference with the election , and did
not tend to affect its outcome .4 Accordingly, we hereby dis-
miss the objections, and, as the tally shows that a majority
of the valid votes have been cast for the Petitioner , we shall
2As the polls were open between work shifts, car- pool drivers who could not, or might not
intend to, participate in the election , would have to either start early or leave late to accom-
modate such of their passengers as might desire to vote.
3 Each of those who obtained the $3 was in fact a car- pool driver.
4 We note that the Union won by more than 100 votes , whereas the total number of employees
involved in the objections was far less than 100.
FEDERAL SILK MILLS 879
certify the Petitioner as the collective - bargaining represen-
tative of the employees in the appropriate unit.
[The Board certified the Textile Workers Union of America,
CIO, as the designated collective - bargaining representative of
the employees of David Goetz, d/b/a Federal Silk Mills,
Williamsport , Maryland , in the appropriate unit.] 5
5 All production and maintenance employees at the Employer's Williamsport , Maryland,
plant, excluding office clerical employees , professional employees , guards, and supervisors
as defined in the Act.
HEARING OFFICER ' S REPORT ON OBJECTIONS TO
ELECTION
Pursuant to a Decision and Direction of Election issued by the Board on June 3, 1953, a
secret ballot election was held under the supervision of the Regional Director for the Fifth
Region on June 24, 1953 , with the following results-
Approximate number of eligible voters . .. ....... ....... 356
Void ballots 1
Votes cast for Petitioner .. . . .. . . ... 213
Votes cast against participating labor organization ... .... 99
Valid votes counted ... .. . .. .... ..... . ... 312
Challenged ballots 6
Valid votes counted plus challenged ballots ... 318
Timely objections to the conduct of the election were filed by the Employer on June 26,
1953 The Employer alleged as grounds for setting aside the election that:
. the Union gave money to an employee or employees who were not working for the
Union prior to the time of such employee ' s voting with the inescapable intent to influence
their vote, or at least to make their attitude toward the Union more friendly.
On July 7, 1953, the Regional Director following investigation issued a report on objections
finding that the payments by the Union were for car expenses , were not excessive reimburse-
ment under the circumstances , and did not constitute a basis for setting aside the election
The Regional Director recommended that the objections of the Employer be overruled and
that the Petitioner , Textile Workers Union of America , CIO, be certified as the exclusive
representative of all employees in the unit defined by the Board in its Decision and Direction
of Election . Thereafter , on July 15, 1953, the Employer filed exceptions to the Regional
Director ' s report on objections On July 21, 1953, the Petitioner filed its statement in sup-
port of report of Regional Director.
On August 10, 1953, it appearing to the Board that said exceptions raised substantial and
material issues of fact, the Board ordered that a hearing be held before a hearing officer to
adduce evidence pertinent to the following issues:
A. The extent to the transportation problems, if any, in transporting employees of
the Employer to the polling place.
B. The manner and time of payment by the Petitioner to the car pool drivers
C The number of car pool drivers in the voting unit, outside the voting unit, and
those drivers employed at other establishments.
It further ordered that the hearing officer , designated for the purpose of conducting the hear-
ing, prepare and cause to be served upon the parties a report containing resolutions of the
credibility of witnesses , findings of fact, and recommendations to the Board as to the dispo-
sition of the said objections and exceptions.
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, a hearing was held on September 1 and 2, 1953, at the county courthouse
in Hagerstown, Maryland, before Henry L. Jalette, hearing officer duly designated for that
purpose, at which the Employer and the Petitioner appeared, participated and were afforded
full opportunity to be heard, to examine and cross-examine witnesses, i and to introduce evi-
dence bearing upon the issues. At the close of the hearing, the parties chose to argue orally
and reserved their right to file briefs No briefs have been filed.
Upon the entire record in the case and from his observation of the witnesses, the under-
signed makes the following:
FINDINGS OF FACT
A. The extent of the transportation problems, if any, in
transporting employees of the Employer to the polling place
The distance between the polling place at Community Hall and the Employer's plant is
six-tenths of a mile by automobile. By the use of either of two short cuts, an employee
walking from the plant to the polling place would walk a distance of between four- or five-tenths
of a mile.
Marie Clipp testified credibly that of approximately 385 employees, 2 about 200 live in
Williamsport and Williamsport routes, and the remainder live in outlying communities.
The Williamsport routes include communities which are about 2, 3, and 4 miles from the
plant. The employees not living in Williamsport or Williamsport routes come from such
communities as Hagerstown, Sharpsburg, and Clear Spring, Maryland, and Martinsburg,
Hedgesville, and Falling Water, West Virginia None of these communities are within walking
distance of the plant or the polling place, and only from Hagerstown is there any public
transportation. Although there are no employer-financed or employer-sponsored car pools,
Marie Clipp testified that she knew of the existence of car pools
C P Ellington, international representative for the Petitioner, testified that about 55
percent of the employees traveled to work in organized car pools, and he estimated that
there were about 45 automobiles or car-pool drivers He further estimated that about 50
percent of those employees lived in such a direction with relation to the polling place (an
opposite direction) that they would have to make a detour of 1.2 miles from their ordinary
route of travel to and from work in order to vote Of the remaining 50 percent some would
have to make less than a complete 1 2-mile detour, but would nevertheless have to detour
Harry Carter testified that about 60 or 70 percent of the employees ride to work, and
that there were about 40 or 50 car-pool drivers, all of whom were in the voting unit. He
further testified that about 15 or 20 percent of the employees who traveled to work via car
pools lived in such a direction with relation to the polling place that they would have to make
a detour of 12 miles in order to vote He estimated that another 15 or 20 percent of the
employees would have to make a slight detour in order to vote.3 Those employees coming
from Hagerstown would not have to detour inasmuch as their ordinary route of travel took
them right by Community Park where Community Hall is located, and they would merely
have to turn off the road into the park
On the basis of the foregoing, the undersigned concludes that about 55 percent of the
employees traveled to and from work in organized car pools, that there were about 45 car-
pool drivers, all of whom were members of the voting unit,4 and that therefore about 200
employees depended on car pools for their transportation to and from work. The undersigned
concludes, therefore, that in so far as transportation to and from work was concerned,
i The record will indicate that as to Waneda Bowers , Petitioner's opportunity to cross-
examine was to some extent curtailed However, the record will indicate that Waneda Bowers
was emotionally upset and nervous and was under a doctor ' s care; because of that fact, full
opportunity to cross-examine as to this witness was not afforded.
2 The approximate number of eligible voters was 356.
3 Any discrepancy in the figures given by Ellington and Carter is explained by the fact that
their figures were admittedly estimates The undersigned is of the opinion that the discrepan-
cies are immaterial ; however, if they were material , the undersigned would credit Ellington
because of his many opportunities to observe existing conditions during his organizational
activities
4 The conclusion that all car - pool drivers were members of the voting unit is based on
Harry Carter ' s testimony , and on Marie Clipp ' s testimony that all other industries in the
area have different time shifts.
FEDERAL SILK MILLS 881
there existed a transportation problem whether or not there existed a transportation problem
in so far as transportation to the polling place was concerned will be discussed hereafter
B. The manner and time of payment by the Petitioner
to the car pool drivers
Ellington testified that after he and his associates had put on an extensive drive on home
visits, and around the 4th or 5th of June, employees complained to him that they were afraid
that their car-pool drivers might not make the necessary detour to vote, and that they would
be unable to vote, or if they did vote, they would lose their ride home 5 Ellington could not
give the names of any employees who so complained. He further testified that these employees
requested that the Union do something about this problem, they requested that Ellington
contact their car-pool drivers. According to Ellington, these employees wanted him to speak
to the car-pool drivers because of a fear that they would put themselves out on a limb by
allowing too many people to know how they were going to vote. Asked if any employee stated
the reason why he did not want to approach his car-pool driver, Ellington replied "yes,"
the reason being that he did not want the company to find out how he was going to vote;
didn't want to discuss the matter enroute to and from home
On or around the 15th of June, it was decided at a meeting between Ellington and his three
associates, that the Union would reimburse all car drivers that it was able to contact in the
amount of $3 per car. Not knowing how many people rode in the cars, how many miles they
had to drive, how much inconvenience was involved, they decided on a flat 3-dollar payment
to everybody. After this decision, Ellington and his associates began to contact as many
car-pool drivers as they possibly could Ellington personally saw some 5 or 6 drivers, and
he instructed his staff to havedrivers go to union headquarters and tell other car-pool drivers
as they walked to and from work that Ellington wanted to see them before the 24th of June.
According to receipts introduced into evidence by the Petitioner, and according to the
testimony of Ellington, 15 persons received a 3-dollar payment Of these 15, all but 1 had
gone to union headquarters6and received payment from Ellington for which they signed a
receipt which stated that the money received was "For Gas." The names of those paid and
the dates on which they were paid are as follows-
June 18 Betty Baker, Sarah Lucille Smith, and Grace Teach
June 22: M Isabell Holland, Kenneth Cline, Gladys Waters, Ralph Hutson, Edward Bitner,
Marguerite Everhart, Elizabeth Bauzhoff, and Iona Ceravalo
June 23: Vernon Higgs
June 24• Nellie Manor and Robert Shank
The only other person to receive payment was one George Strausbaugh, on June 23 Ellington
had missed Strausbaugh when Strausbaugh had visited union headquarters, and therefore
Ellington had visited him at his home in Hagerstown, where he made the payment.
The testimony of Ellington as to what was said to these people at the time that they received
payment is as follows
When they came into Union Headquarters garage I told them that, I asked them if they
had come there at my request, and they said they had, and I told them that the Union
had decided upon the policy that it was going to reimburse all car drivers in the amount
of three dollars to be used for car expenditures, gas and oil, if they desired, or for the
time and inconvenience, trouble that the drivers would have to go to, and in order
to get their passengers to the polling place to vote, and I requested from each of these
people a receipt, asked them to read the receipt before they signed it. I extracted
from each of those people the promise that they would deliver on June the 24th, people
that rode in their automobiles to the polling place, and that we wanted everybody to
vote in this election
Ellington testified further that:
I explained in detail to each person that came in there that we were not buying votes
from anyone; that we only wanted a genuine representative election, and we wanted
5 It should be noted that the voting was scheduled for the hours between shifts when the em-
ployees would be either leaving the plant to go home or arriving at the plant from home
6 Union headquarters was a garage located three-tenths of a mile from the plant.
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
everybody that worked on those nulls up there afforded the opportunity to vote In doing
that, I extracted from them the promise that they take their people to the polls, on
election day , that waif
Asked if he told these people receiving payment that he wished them to vote exactly as
they pleased , Ellington stated-
I went further than that , to say that I--that we didn ' t care how the drivers of the car
voted, or how the people voted, so long as they voted
Although Ellington did not know of his own knowledge that these people were in fact car-pool
drivers, he testified that he asked each and every one of them whether they were car-pool
drivers 7
Harry Carter testified that pursuant to Ellington ' s instructions , he contacted all the car
drivers he could and told them that Ellington wanted to see all the car drivers at union
headquarters He further testified that several people mentioned that they anticipated a
problem with regard to transportation These people expressed a fear that they might not
be able to get back home if they voted Carter identified the following persons as some of
those who expressed such a fear : Francis Knight , Mrs Harry Hebb , Grace Zimmerman,
Miss Wiesner , and Elta Mae Saurs Francis Knight, Mrs Harry Hebb , and Miss Wiesner
rode in Ralph Hutson's car . Grace Zimmerman rode in Kenneth Cline's car Elta Mae
Saurs rode in Edward Bitner ' s car Under cross examination , Carter further testified
that he had talked to these drivers about letting their riders vote. He admitted that at the
time these drivers just mentioned were paid the 3 -dollar payment , they had already told
him they would take their riders to the polls . He also stated that there were other riders
who told him they feared their drivers wouldn't wait for them, but he could not recall who
they were or who their drivers were.
On the basis of the foregoing ,, the undersigned concludes that car drivers were asked by
Ellington and his assistants to drop in at union headquarters , that 14 persons did go to
union headquarters and received payment of $3 for which each received a receipt " For Gas",
that one person was similarly paid $3 at his home, that each person was told that the payment
was for gas or expenses and that it was not to buy votes , and that Ellington asked each person
whether or not he or she was a car driver
C. The payment to Nellie Manor
Nellie Manor was the employee who received a 3-dollar payment on the night of June 24
The substance of Ellington ' s testimony with regard to the payment in her case was that
3 ladies entered union headquarters around 9:15 on the night of the election , and that 1 of
the ladies , Nellie Manor , stated, "We want to vote " Ellington invited the ladies in and
told them this was not the place to vote , but that the election was being conducted in Community
Park, the location of which he indicated by a gesture The ladies sat down at Ellington's
invitation and he went over the advantages and disadvantages of having an organization in
the mill and that he wanted everybody to vote Ellington then asked who of the three ladies
was driving the car When Nellie Manor said she was , he told her of the program the Union
had adopted to apply to all the car drivers, and that he wanted her to have the same reimburse-
ment that the other people had received . He wrote out a receipt and asked her to read it and
sign it She read it and signed it , and he gave her three 1-dollar bills Nellie Manor thanked
him and the ladies left Ellington testified that at no time did Nellie Manor indicate any
reluctance to accept the money . Ellington testified further that he gave no consideration to
the fact that Nellie Manor was on her way to vote , that the Union had adopted a policy of
paying $ 3 to car - pool drivers , and then was no time to change the policy or argue about the
distance Nellie Manor had traveled
Nellie Manor ' s testimony with regard to the incident is substantially the same as Ellington's
It was her testimony that she did not want to accept the payment offered by Ellington and
that she accepted it only because Ellington insisted she do so This is in direct conflict with
Ellington ' s testimony and the testimony of Mrs Stevens , who was also present and who
7Carter was present when Ellington paid Hutson , Baker, Cline, and Smith He knew these
four were car drivers, and corroborated Ellington ' s testimony that he asked each person if
he was a car driver.
FEDERAL SILK MILLS 883
stated that by no act , deed, or word did Nellie Manor indicate a reluctance to accept the
payment On the basis of Nellie Manor 's demeanor on the witness stand , her reluctance
in answering questions asked by counsel for the Petitioner , the undersigned does not credit
her testimony in so far as it conflicts with the testimony of Ellington.
The importance of Nellie Manor ' s testimony , as well as the testimony of her daughter,
Waneda Bowers , and that of Ruby Stevens , is debatable . The record reveals that counsel
for the Petitioner thought that it was highly important to the issues raised by the Board
to record the manner and reason for Nellie Manor ' s visit to union headquarters . Counsel
attempted first to indicate that Nellie Manor knew when she stopped at union headquarters
that it was not the polling place He attempted to show this by bringing out the fact that
union headquarters had signs posted which stated " Vote TWUA , Textile Workers Union
of America ," and by pointing out to the witness that neither at political elections nor at
Board elections are the parties allowed to campaign on the premises where the election
is to be held, he further attempted to show that Nellie Manor must have known that the
election was being held in Community Hall, because leaflets distributed by Ellington, at
least one of which Nellie Manor admitted receiving , stated that the election was to be held
at Community Hall . He further brought out the fact that Nellie Manor had every opportunity
to discover where the election was being held because of the various election notices posted
on bulletin boards in the plant In spite of Nellie Manor ' s testimony that she did not read
the bulletin boards, did not discuss with other employees the coming election, and that she
did not know where the election was being held, the undersigned concludes that Nellie Manor
did know that the election was being held at Community Hall however , the undersigned further
concludes that there is no evidence to indicate that Nellie Manor knew where Community
Hall was located, or that she knew when she entered union headquarters that that was not
the place to vote
Other testimony elicited from Nellie Manor and her passengers related to the report
that they made to the Company on the night of the election In eliciting testimony that Nellie
Manor reported the payment to one Pauline Meredith , and that later she and her passengers
were called to the Company ' s office where they signed the affidavit which formed part
of the Company ' s objections to the conduct of the election , counsel for the Petitioner apparently
sought to establish two things , first, that Nellie Manor ' s appearance at union headquarters
and her later report to the Company were parts of a plan by the Company to embarrass or
entrap the Petitioner ; second that the statements in the affidavit and in the Company's
objections that Nellie Manor and her passengers thought that the payment was being made
to influence their vote, and that the 3 ladies involved thought that the$3 was to be divided
among them equally, were untrue
With reference to the first point, the undersigned is of the opinion that the only purpose
counsel for the Petitioner could have had in mind in eliciting testimony as to how and why
Nellie Manor stopped at union headquarters , and as to how the payment was reported to
the Company , was to establish a theory of entrapment analagous to the entrapment familiar
in criminal law The undersigned has already concluded , supra, that there was no evidence to
indicate that Nellie Manor knew where the polling place was located nevertheless, assuming,
arguendo , that shedid know and that shedeliberately sought payment in order to report it to the
Company, such behavior on her part would be no defense to the Petitioner ' s conduct unless
the evidence indicated that Petitioner would have made no such payment but for the solicitation
or inducement by Nellie Manor Since the Petitioner admits making 14 other and prior
payments , there can be no issue with regard to any theory of entrapment.
As to the second point, counsel for the Petitioner did elicit testimony from Nellie Manor
that while at the the time she received payment she thought it was queer , nevertheless, she
did not at that time , nor at any time prior to the election , think that the payment was to
influence her vote Mrs Stevens also testified that she never had the feeling that the payment
was to influence her vote This testimony is in direct conflict with the Company ' s statement
in its objections that the women "all had the clear feeling that this money was to influence
their vote " The undersigned is of the opinion that the correctness of the Company 's state-
ments in its objections is immaterial since the merits of the Company ' s objections to the
election must be decided by the evidence adduced at the hearing and found in the record.
On the basis of the evidence and the undersigned ' s foregoing findings of fact, the undersigned
makes the following:
CONCLUSIONS OF LAW AND FACT
It is alleged by the Petitioner as justification for the payment of the sum of $3 to certain
persons that there existed a transportation problem in connection with the election which
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
necessitated that certain measures be taken by the Petitioner in order to assure that the
employees would get to the polling place The immediate question for decision is whether
or not there did exist such a transportation problem
It is the opinion of the undersigned , and he so concludes , that there did not exist any
transportation problem in transporting employees from the plant to the polling place The
undersigned concluded , supra , that about 55 percent of the employees traveled to and from
work in organized car pools and that about 200 employees depended on car pools for their
transportation to and from work. It does not necessarily follow from that conclusion that
there existed a transportation problem in so far as transportation from the plant to the
polling place was concerned In that regard , the evidence fails to sustain the Petitioner's
allegation . While it is alleged that certain employees told the union representative that
their drivers were unwilling to take them to the polls , the union representative , Ellington,
was unable to name a single employee who was faced with that prospect . Harry Carter, a
witness for the Petitioner , was able to give the names of six employees who were faced
with the problem of getting to and from the polls, because their drivers had said they would
not go to the polls However , he further testified that the 3 drivers of these 6 employees told
him, before they received payment, that they were going to the polls and that they would
transport their passengers . As a result , the record is bare of any support for the Peti-
tioner's allegation.
If there were no transportation problem, does it necessarily follow that the payments
of $3 by Petitioner ' s representative Ellington , were for the purpose of influencing votes
In the opinion of the undersigned , Ellington may honestly have beleived that there existed
a transportation problem In view of the evidence that the payments were expressly made
for car expenses , the undersigned concludes that they were not made with the intent of
influencing votes , but were made under an honest but mistaken belief that a transportation
problem existed and that this was a proper solution of the problem . However , in the opinion
of the undersigned , the issue is not whether or not the payments were made with the intent
of influencing votes , rather , the issue is whether or not , under the circumstances, the
payments would tend to influence votes. If the payments were made under such circumstances
that they would tend to influence votes, in the opinion of the undersigned , the election should
be set aside
The circumstances in this case leave no doubt in the mind of the undersigned that the
payments would tend to influence the vote By circumstances , the undersigned alludes not
only to the fact that no transportation problem existed , but also to the manner of payment,
and the amount of the payment It is not necessary to review the manner in which the payments
were made, suffice it to say that few safeguards were adopted by Ellington to assure himself
that the applicants for payment were actually car-pool drivers It is immediately apparent
from the evidence that any employee who was willing to represent himself as a car driver
could, upon application at union headquarters , have received the 3-dollar payment.
The argument in justification of the amount paid is that it was not feasible for the Union
to determine the distance that each car driver would have to travel in order to vote, and
that the simplest and fairest way to solve this unknown factor was to make a standard
payment of $ 3 This argument ignores the fact that the maximum distance a person or a
car had to travel from the plant to the polling place and return was 1.2 miles This argument
presumes that employees were traveling from several different communities , and it ignores
the fact that the critical points of travel were the plant and the polling place. The plant and
the polling place were the critical points of travel because the employees in any event
had to travel from their homes to the plant in order to go to and from work
The undersigned agrees with the Petitioner that the only feasible way to reimburse car
drivers who travel unequal distances is to adopt a standard payment. However , it is his
opinion that the standard payment should have a reasonable relation to the maximum distance
any driver would have to travel It is his further opinion that $ 3 was excessive reimbursement
where the maximum distance to be traveled was 12 miles
It is further argued in justification of the amount of the payment that cognizance was
being taken of the inconvenience to the car drivers in transporting employees to the polls.
This argument ignores the fact that the car drivers were themselves employees eligible
to vote The argument must therefore be predicated on the theory that employees eligible
to vote are to be recompensed for the inconvenience which voting entails. The undersigned
does not subscribe to any theory whereby employees are to be induced to exercise a statutory
right and privilege by the promise of financial reward. The end sought , a 100-percent repre-
sentative vote, is laudable: the means to achieve it, undesirable.
McARTHUR JERSEY FARM DAIRY, INC. 885
Still another argument in justification of Petitioner ' s conduct herein is that the practice
of transporting voters to the polling place is not per se conduct such as to constitute a
basis for setting aside an election . The simple answer to this argument is that the Petitioner's
conduct herein cannot be equated with the practice of transporting employees to the polls.
The Petitioner cannot be said to have provided the employees with transportation where the
evidence fails to establish that any cardriverwas unwilling to transport his regular passengers
unless he received payment , and where the evidence fails to establish that the car drivers
were transporting anyone but their regular passengers.
RECOMMENDATION
Accordingly , in the opinion of the undersigned , the payments made by the Petitioner
herein were made under such circumstances that they would tend to influence votes, and,
therefore , it is recommended that the objections of the Employer be sustained , that the
election be set aside , and that a new election be ordered.
As provided in the Board ' s order directing hearing on objections , any party may, within
ten (10) days from the date ofissuanceof this report , file with the Board in Washington, D. C.,
an original and six (6) copies of exceptions thereto . Immediately upon the filing of such
exceptions , the party filing the same shall serve a copy thereof upon each of the other
parties, and shall file a copy with the Regional Director , Fifth Region , National Labor Relations
Board, Baltimore , Maryland.
McARTHUR JERSEY FARM DAIRY, INC. and I N T E R N A-
T 10 N A L BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA, AFL,
LOCAL UNION NO. 390, Petitioner. Case No. 10-RC-2573.
January 18, 1954
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Lloyd R.
Fraker , hearing officer . The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case , the Board finds:
The Employer is a Florida corporation engaged in the pur-
chasing , processing , and sale of milk, butter, cheese , and other
dairy products . Its gross sales, all of which are local, are in
excess of $ 5.5 million a year . Its direct out -of-State purchases
are in the neighborhood of $272 , 000 annually and its indirect
out-of - State purchases exceed $274 , 000. ByFloridaMilkCom-
mission rulings all milk within the State is sold at a fixed price
and bids for sale s to the United States Navy and to the Veterans'
Administration are restricted to those dairies within the State
having less than 500 employees , some 6 , including the Employer.
During the past 2 years , the Employer , as chosen bidder, has
received approximately $ 100,000 from sales to the United States
Navy, for naval and coast guard boats , and to the Veterans'
Administration for its hospital . The purchases do not satisfy
the Board ' s minimal standards for the assertion of jurisdiction.
Nor do we think that the Employer ' s operation is among the
107 NLRB No. 171.