General Electric Co.

National Labor Relations Board - Board Decisions

Feb 4, 1966

156 N.L.R.B. 1247 (N.L.R.B. 1966)

GENERAL ELECTRIC CO. 1247
rector's recommendation that the election be set aside on the basis of
two campaign letters sent by the Employer and that a new election be
directed. We have read the letters of the Employer in their entirety
and the Union's propaganda and conclude that, under all the circum-
stances, the Employer's letters could clearly be evaluated by the em-
ployees as partisan electioneering and do not warrant setting the
election aside 28 Accordingly, we shall also certify the results of that
election.
[The Board certified, in Excelsior Underwear Inc. and Saluda Knit-
ting Inc., Case No. 11-RC-1876, that a majority of the valid ballots was
not cast for Amalgamated Clothing Workers of America, AFL-CIO,
and that this labor organization is not the exclusive representative of
the employees in the unit heretofore found appropriate, and also, cer-
tified, in K. L. Kellogg & Sons, Case No. 21-RC-8055, that a majority
of the valid ballots was not cast for International Union of Operating
Engineers, Local No. 3, AFL-CIO, and International Union of Oper-
ating Engineers, Local Union No. 12, AFL-CIO, and that these labor
organizations are not the exclusive representative of the employees in
the unit heretofore found appropriate.]
23 Member Brown would accept the Regional Director's findings and recommendation.
General Electric Co. and International Union of Electrical, Radio
and Machine Workers, AFL-CIO
McCulloch Corporation and International Union , United Auto-
mobile, Aerospace and Agricultural Implement Workers of
America , UAW-AFL-CIO. Cases Nos. 9-RC-5965 and 21-RC-
8228. February 4,1966
DECISION AND CERTIFICATION OF RESULTS
OF ELECTION
GENERAL ELECTRIC. Pursuant i o a stipulation for certification
upon consent election, an election by secret ballot was conducted by the
Regional Director on August 26,1964, among the employees in the unit
described below. After the election, the parties were furnished with a
tally of ballots which showed that of 72 eligible voters, 70 cast valid
ballots, of which 31 were for the Petitioner and 39 against. Petitioner
filed timely ebjections to conduct affecting the results of the election.
After investigation, the Regional Director issued and served upon the
parties his report and recommendation on objections in which he rec-
ommended that the objections be overruled and that a certification of
results of election be issued. Petitioner filed exceptions only to the
Regional Director's recommendation with respect to objection No. 5.
156 NLRB No. 112.
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In objection No. 5, Petitioner asserted that the Employer held a
"captive audience" meeting of its employees at which it campaigned
against union representation and denied Petitioner an opportunity to
be represented at such meeting. The Regional Director's investigation
revealed that on August 17, 1964, the Employer posted a notice that a
meeting relating to the forthcoming representation election would be
held on August 19. On August 18, Petitioner sent a telegram to the
Employer challenging the Employer's plant manager to debate the
relevant issues at the meeting. The request was refused, and the meet-
ing was held as scheduled, with attendance voluntary and employees
paid for time spent in attendance. The Regional Director held that
the Employer's denial of Petitioner's request to participate in the
August 19 meeting was not grounds for setting aside the election "since
the evidence fails to establish that the Employer in any way diminished
the effectiveness of the Petitioner's normal channels of communication
and contact with employees."
DECISION DENYING REQUEST FOR REVIEW
McCULLOCH: Pursuant to the Regional Director's Decision and
Direction of Election, an election by secret ballot was conducted by the
Regional Director on June 6, 1963, in a unit appropriate for collective
bargaining. After the election, the parties were furnished with a tally
of ballots which showed that, of approximately 1,312 eligible voters,
1,227 cast valid ballots, of which 571 were for the Petitioner and 656
against. There were 24 challenged ballots and 2 void ballots. Peti-
tioner filed timely objections to conduct affecting the results of the
election. The Regional Director, after investigation, issued a Supple-
mental Decision and Certification of Results of Election, overruling
all the objections and certifying the results of the election. Petitioner
filed a timely request for review of that portion of the Regional Direc-
tor's Supplemental Decision wherein the Regional Director overruled
objection No. 2.
In this objection, Petitioner alleges (and the Employer does not
deny that the Employer made a campaign speech to its employees at a
meeting held on company premises during working time 2 days before
the election. The Employer urged the employees to vote against union
representation and denied Petitioner's request, made a day or two pre-
viously, for equal time to present its position at that meeting. Peti-
tioner failed to submit evidence that the Employer had a rule prohibit-
ing union solicitation during nonworking time or that other effective
channels of communication were not available to Petitioner. In the
absence of such evidence, the Regional Director held the objection did
GENERAL ELECTRIC CO. 1249
not raise grounds for setting aside the election.' As noted, Petitioner
filed a timely request for review of the Regional Director's disposition
of this objection.
On April 2, 1965, the Board, having determined that the Employers'
denial of the Petitioners' requests for an opportunity to reply to the
preelection campaign speeches in these two cases presented a question
of substantial importance in the administration of the National Labor
Relations Act, as amended, ordered that the two cases be consolidated,
and that oral argument be heard on May 20, 1965. The parties were
given permission to file further briefs and directed to focus their
attention, in briefs and argument, on the following questions :
I. Can a fair and free election be held where an employer makes an
antiunion speech on company time and premises, in the period immedi-
ately preceding an election, and the union involved is not afforded the
opportunity, which it seeks, to reply under similar circumstances?
II. If an opportunity to reply is appropriate, what should be the
crucial period? For how long a period prior to a scheduled election
may an employer make such a speech, without granting the union
involved an opportunity to reply?
III. What are the relevant factors in determining whether an oppor-
tunity to reply is necessary? For example, is the size of the unit
material?
The Board also invited certain interested parties to file briefs an-i-
cus curiae and participate in oral argument. This invitation was
accepted by the Chamber of Commerce of the United States and Amer-
ican Federation of Labor-Congress of Industrial Organizations. The
National Association of Manufacturers and Textile Workers Union of
America, AFL-CIO, filed briefs but did not participate in the argu-
ment. The International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America participated in the argument,
but did not file a brief.
Upon the entire record in General Electric, the National Labor Rela-
tions Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The Petitioner is a labor organization claiming to represent cer-
tain employees 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.
'In support of his conclusion , the Regional Director cited N.L R.B. v. United Steel-
workers of America ( Nutone, Inc.), 357 U.S. 357; Livingston Shirt Corporation, et al,
107 NLRB 400; The May Department Stores Compan-y , d/b/a The May Company, 136
NLRB 797.
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The parties stipulated, and we find, that all production and main-
tenance employees, including shipping and receiving employees
employed by the Employer at its glass plant in Somerset, Kentucky,
excluding all office clerical employees, guards, professional employees,
and supervisors as defined in the Act, constitute a unit appropriate for
collective bargaining within the meaning of Section 9 (b) of the Act.
In each of the cases before us, the Employer, shortly before a sched-
uled representation election, made a noncoercive speech to assembled
employees, urging them to vote against union representation. The
speeches were made on company premises and the employees were paid
for time spent in attendance. In each case, the Petitioner requested an
opportunity to reply under similar circumstances-on company prem-
ises with employees paid by the employer for time spent in attend-
ance-and its request was denied. In each case, the Petitioner argues
that the Employer's denial of its request prevented the holding of a
fair and free election. Hence, Petitioners argue, the elections sub-
sequently held, in which the employees voted against union representa-
tion, should be set aside and new elections conducted.
The Board has not, since its decision in LivingstonShirtCorporation,
supra, held an employer's denial of a union's request to reply to a
preelection speech to be grounds for setting aside an election or finding
an unfair labor practice to have been committed except where the
employer has maintained either an unlawful no-solicitation rule or a
broad no-solicitation rule of the sort allowed retail department stores
(prohibiting union solicitation on nonworking time in areas of the
store open to the public) .2 The Unions (as we shall hereafter refer to
Petitioners and an2ici curiae supporting them) recognizing this, and
conceding that neither Employer had an unlawful or a broad no-
solicitation rule, argue that existing Board law is inadequate, that
Livingston Shirt should be overruled, and that the Board should
return to the doctrine of Bonwit Teller, Inc.; 3 i.e., that regardless of
the breadth of the employer's no-solicitation rule, an antiunion speech
on company time and premises, combined with a denial of a union
request to reply, is grounds for both setting aside a subsequent rep-
resentation election 4 and finding an unfair labor practice to have been
committed.5 Indeed, the Unions urge us to go significantly beyond the
Bonwit Teller doctrine. Thus, it is argued that, whenever the Board
has directed an election, representatives of the union involved should
2 The May Department Stores Company , etc, 136 NLRB 797, enforcement denied 316
F. 2d 797 (C.A. 6) ; Montgomery Ward & Co, Inc , 145 NLRB 846, enfd as modified 339
F. 2d 889 (C.A. 6) ; S. & H Grossinger's, Inc., 156 NLRB 233.
396 NLRB 608 , remanded 197 F. 2d 640 ( C.A. 2),,cert. denied 345 US 905
*See, e .g., National Screw & Mfg . Go. of Calif., 101 NLRB 1360 , Metropolitan Auto
Parts, Incorporated, 99 NLRB 401 ; Onondaga Pottery Company , 100 NLRB 1143.
See, e g, The Gruen Watch Company, The Gruen National Watch Case Company, 103
NLRB 3; Onondaga Pottery Company , 103 NLRB 770 ; Metropolitan Auto Parts, In-
corporated, 102 NLRB 1634; Higgins , Inc., 100 NLRB 829.
GENERAL ELECTRIC Co. 1251
be allowed to campaign on the empower's premises, so long as they do
not interfere with production. At the very least, it is argued, the
union should have access to the employer's premises for campaign
purposes whenever the employer uses those premises to campaign
against the union-whether by mass speeches, individual solicitation,
or distribution of literature. Otherwise, the Unions assert, the
employer has such an advantage over the union in communicating his
side of the organizational question as to interfere substantially with
prospects for a fair and free election.
These arguments were, of course, made at a time when we had not
yet decided Excelsior Underwear, Inc., and Saluda Knitting Inc., 156
NLRB 1236. Thus the Union's allegations as to the effect of
employer campaigning on company premises were necessarily predi-
cated on the assumption that a union engaged in efforts to communicate
with employees prior to a Board election might not even know the
names or addresses of some of those employees. That assumption,
as a result of our decision in Excelsior, is no longer valid. Henceforth,
whenever an election is directed by the National Labor Relations
Board or a Regional Director (except for the Section 8(b) (7) (C)
expedited election, see Excelsior, supra, at footnote 14), and whenever
the parties consent to an election all parties to the election will have
available to them, within a very few days, the names and addresses
of all eligible voters.
In light of the increased opportunities for employees' access to
communications which should flow from Excelsior, but with which we
have, as yet, no experience, and because we are not persuaded on the
basis of our current experience that other fundamental changes in
Board policy are necessary to make possible that free and reasoned
choice for or against unionization which the National Labor Relations
Act contemplates and which it is our function to insure we prefer to
defer any reconsideration of current Board doctrine in the area of plant
access until after the effects of Excelsior become known. Accordingly,
we shall deny the request for review in McCulloch. In General Elec-
tric, we reject Petitioner's exception to the Regional Director's recom-
mendations with respect to objection No. 5 and shall certify the results
of the election.
[The Board denied the request for review of the Regional Director's
Supplemental Decision in McCulloch Corporation, Case No. 21-RC-
8228, and certified in General Electric Co., Case No. 9-RC-5965, that
in the election conducted on August 26, 1964, a majority of the valid
ballots was not cast for International Union of Electrical, Radio and
Machine Workers, AFL-CIO.]
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