National Screw & Mfg. Co. of Cal.

National Labor Relations Board - Board Decisions

Dec 23, 1952

101 N.L.R.B. 1360 (N.L.R.B. 1952)

1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we find that all skilled and semiskilled employees en-
gaged in binding and handling of books at Employer's Camden, New
Jersey, operations, excluding clerical employees, guards, and super-
visors as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9
(b) of the Act.'
[Text of Direction of Election 9mitted from publication in this
volume.]
I In accord with the agreement of the parties , we find that the 35 temporary part-time
employees at the Jackson Street operation are ineligible to vote.
NATIONAL SCREW & MFG. CO. OF CAL. and INTERNATIONAL UNION,
UNITED AIITOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, CIO, PETITIONER. Case No. 21-RC-2452.
December 23,1952
Supplemental Decision and Order
On June 6, 1952, pursuant to the Board's Decision and Direction of
Election, an election by secret ballot was conducted under the direction
and supervision of the Regional Director for the Twenty-first Region
among certain of the employer's employees, to determine whether or
not they wished the Petitioner to represent them in collective bar-
gaining. A tally of ballots was furnished the parties after the
election. It shows that of approximately 108 eligible voters, 101 cast
valid ballots: 36 for the Petitioner, 63 against, and 2 challenged.
On June 11, 1952, the Petitioner filed timely objections to the elec-
tion, in which it alleged that the Employer had engaged in improper
conduct which affected the result of the election.
On August 21, 1952, the Regional Director issued his report on
objections, in which he made certain findings supporting one of the
objections, and recommended that the election be set aside.'
On September 2, 1952, the Employer filed timely exceptions to the
Regional Director's report.'
The Petitioner started an organizing campaign among the Em-
ployer's employees about September or October 1951. On October 31
the Petitioner, alleging that the Employer had been conducting anti-
union meetings on company time and property, requested by letter
permission to present its case to the employees under similar cir-
cumstances. The request was denied by letter on November 9, 1951.
'Because they were insufficient to affect the results of the election , the Regional Director
made .no findings concerning the challenges.
The Petitioner did not file exceptions to any adverse findings.
101 NLRB No. 218.
NATIONAL SCREW & MFG. CO. OF CAL . 1361
The Petitioner wrote requesting such permission again on Novem-
ber 14, pointing out to the Employer that it was legally obligated to
grant such permission under the Board's decision in the Bonwit-Teller
case, 96 NLRB 608 . This letter was not answered.
In the period shortly preceding the election, the Employer con-
ducted several other meetings on its premises among its employees
to rebut statements made by the Petitioner.
On June 4, 1952, 2 days before the election, the Petitioner again
requested of the Employer permission "to attend and address any
meeting you may hold with your employees prior to the election."
This request was also refused, the Employer attaching a copy of its
prior refusal of November 9, 1951.
During the plant lunch period on election day, June 6, 1952, the
Petitioner stationed a sound truck in the street adjacent to the outside
lunch area in which the employees were at lunch, and a representative
of Petitioner talked over the public address system. The exact pro-
portion of employees present in the lunch area is not known, the
Regional Director finding simply that "a substantial number" were
there. It is agreed that they could have heard the speech from the
sound truck; whether those employees in the plant buildings could
have heard is disputed.
During working hours on the same afternoon, the Employer called
a meeting of the day shift, and delivered a 10-minute address devoted
in the main to a rebuttal of statements which had been made to
employees by the Petitioner.
There was no claim that the Employer made promises of benefits or
threats of reprisals in any of these meetings.
The Employer, although not contesting the foregoing facts in its
exceptions to the Regional Director 's report, urges us to reject the
Regional Director 's recommendation to set aside the election, con-
tending that the employees did in fact have a "reasonable opportunity
to hear both sides of the issue on which they were about to vote."
To support this contention, the Employer points to meetings conducted
by the Petitioner at its union hall; its distribution of handbills, combs,
and matchbooks; asserts that employees were free to discuss the
Petitioner and to solicit fellow employees on company property on
their own time; and finally, relies on the sound-truck address delivered
by the Petitioner during the noon hour the day of the election.
We find, however, that by refusing the Petitioner's reasonable and
timely requests for permission to address the employees on company
time and property, while using such time and property to urge the
employees to vote against the Petitioner in the impending election,
the Employer made discriminatory use of its facilities, and thereby
upset the laboratory conditions under which Board elections should
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be conducted .3 As the Board has consistently held in setting aside
elections in similar circumstances, "an Employer cannot escape the
consequences of its discrimination by arguing that the [Petitioner]
might have utilized nonworking hours to attempt to counteract the
discrimination. . . ." 4
A simple standard exists by which to measure an employer's con-
duct in a representation campaign among his employees. Where he
chooses to enter the campaign and utilizes company time and property
to present his views, he uses a "privileged and effective forum" which
lie may not refuse to the opposition. It follows that in such circum-
stances a refusal constitutes interference with the employees' freedom
of choice.5 We reject the Employer's argument that by the distribu-
tion of matchbooks and handbills on the employees' own time, by
home visits and evening meetings, and by using a sound truck during
the lunch period, the Petitioner's forum achieved equality with that
preempted by the Employer.
This seems to us a rather late date for our dissenting colleague to
regard the result here reached as an "undiscriminating extension of
the Bonurit-Teller doctrine," in view of the succession of subsequent
cases in which he joined in setting aside elections under circumstances
which might be no less subject to such characterization.6 We note
particularly the Higgins case, quoted above, where our colleague
joined in rejecting an employer's contention that the fact that "unions
had access to the Employer's cafeteria to address the employees on
their own time," provided such a reasonable opportunity for em-
ployees to hear both sides that the employer's denial to the union of
the opportunity (of which it availed itself) to speak on company time
and property did not justify setting the election aside. The Higgins
decision would appear to make the instant case an a fortiori one.
We further note that the dissent apparently ignores the sequence of
events which preceded the Union's use of the sound truck. It dis-
cusses the case as though that incident were the initial move to propa-
gandize employees on company property, to which the Employer's
subsequent preelection meeting was an eminently reasonable counter-
offensive. But that is not the case we are called upon to decide. In
true perspective the Union's use of the sound truck to reach the em-
ployees was an attempt to counterbalance to some degree the Employ-
er's repeated use of meetings on company time and property to cam-
paign against the Union (beginning months earlier and continuing in
See, for example, (General Shoe Corp., 97 NLRB 499.
4 Hzggzns, Inc, 100 NLRB 829.
5 Onondaga Pottery Company, 100 NLRB 1143.
0 Biltmore Manufacturing Company, 97 NLRB 905; Bernardin Bottle Cap Company, 97
NLRB 1559 ; Belknap Hardware & Manufacturing Company, 98 NLRB 484 ; Metropolitan
Auto Parts, Inc., 99 NLRB 401 ; Higgins, Inc., 100 NLRB 829.
NATIONAL SCREW & MFG. CO. OF CAL. 1363
the period shortly before the election) in the face of repeated denials of
a similar opportunity to the Union.7 We cannot agree that the use of
the sound truck can be equated to an opportunity to address the em-
ployees on company time and property. Apart from the question of
how many of the employees actually heard the sound truck we do not
believe that an intrusion into the ears of persons otherwise engaged,
via the often strident and repellent din of the loudspeaker of a sound
truck, is reasonably comparable to an opportunity to get their undi-
vided attention face to face in a meeting called for the purpose on
company time with opportunities for questions and answers.
As the Employer discriminated against the Petitioner by denying
it parity of opportunity to address its employees, we find that it en-
gaged in conduct, prejudicial to the Petitioner, which interfered with
the election. We shall therefore direct that the election of June 6,
1952, be set aside and shall further direct the Regional Director to
conduct a new election at such time as he deems appropriate.
Order
IT IS HEREBY ORDERED that the election of June 6, 1952, be, and it
hereby is, set aside; and
IT IS FURTHER ORDERED that this proceeding be remanded to the Re-
gional Director for the Twenty-first Region for the purpose of con-
ducting a new election at such time as he deems that the circum-
stances permit a free choice of a bargaining representative.
CHAIRMAN HERZOG, dissenting :
Here, as in the recent Foreman & Clark case,8 I am compelled to
disagree with what seems to me an undiscriminating extension of the
Bowwit-Teller doctrine.' When I joined in the Bonwit decision, I
thought that the application of that doctrine was to depend, as we
said there, upon "the particular circumstances" of each individual
case. I thought the criterion was to be whether employees had had a
"reasonable opportunity to hear both sides of the story under cir-
cumstances which reasonably approximate equality," rather than that
our judgment would depend simply and automatically upon whether
an employer who used his premises to make a speech had refused iden-
tical facilities to a labor organization.
I In Foreman cf Clark , our dissenting colleague objected that the union had not made an
anticipatory request to speak prior to the Employer 's last-minute meeting. Here the union
made repeated requests including an anticipatory request 2 days before the election, yet
our dissenting colleague still would not require equality of treatment for the union.
' Foreman & Clark, 101 NLRB 40, decided October 21, 1952 (Chairman 's dissent).
9Bonn,it Teller, 96 NLRB 608, enforced as modified at 197 F. 2d 640 (C. A. 2). The
other precedents cited by my colleagues appear to me distinguishable . The Higgins deci-
sion (100 NLRB 829), which is less distinguishable than the others , issued before Foreman
and Clark, and I am no longer certain that it was correctly decided.
242305-53----87
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Setting this elec ion aside seems to me to demonstrate the error of
applying so mechanistic a test. Here the Union, during the hours
immediately preceding the election , addressed the employees by sound-
truck under circumstances which I believe permitted most of them to
hear its arguments while eating lunch outdoors on the Employer's
premises . The Employer thereupon called a, noncompulsory meeting
during the brief period of working time that remained between the
lunch hour and the opening of the polls. The Regional Director
found that the Employer 's last-minute address consisted " in the main"
of arguments which merely rebutted those just offered by the Union
during the sound-truck episode. Although the Employer had previ-
ously declined to invite the Union to share any possible future platform
on its premises , there is no showing that it actually planned to make
any last-minute address at all until after it learned that the Union
had just told its story to the employees by means of the sound -truck.
According to the Regional Director , the earlier meetings on company
premises , which are alluded to in the majority opinion, had either
been waived as a basis for possible objections to the election , or were
likewise conducted "to rebut statements which had been made to the
employees by the Petitioner ." I find it difficult to believe , taking all
these facts together , that this employer acted so wrongfully by taking
advantage of the control of its own property that the Board should
conclude that , under the existing statute, there was unlawful inter-
ference with these employees' free choice.
GRISwoLD TEXTILE PRINT, INc., and JOSEPH ROIREAU, PETITIONER, and
TEXTILE WORKERS UNION OF AMERICA, CIO. Case No. 1-RD-122.
December 24, 1952
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Robert E. Greene,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Chairman Herzog and Members Styles and Peterson].
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 Petitioner asserts that the Union is no longer the bargaining
representative of the employees of the Employer as defined in Section
9 (a) of the Act.
101 NLRB No. 205.