Onondaga Pottery Co.

National Labor Relations Board - Board Decisions

Apr 27, 1951

94 N.L.R.B. 58 (N.L.R.B. 1951)

58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and conditions contained in a contract for a fixed period, if such
modification is to become effective before such terms and condi-
tions can be reopened under the provisions of the contract
[emphasis added].
We conclude, therefore, that the Employer and the Intervenor, by
modifying, their contract in the manner described above, did not
`'open up" the contract in such a way as to render it vulnerable to a
pending claim or petition-whether or not, as contended, they acted
in advance of the contract reopening date or within the scope of the
wage modification provision. Moreover, the petition herein was
untimely filed on December 4, 1950, after the execution of the last
supplemental agreement 12 Accordingly, we shall grant the Inter-
venor's motion to dismiss the petition, on the ground that the contract
constitutes a bar to a present determination of representatives.
Order
IT Is HEREBY ORDERED that the petition filed herein be, and it hereby
is, dismissed.
MEMBER REYNOLDS took no part in the consideration of the above
Decision and Order.
^ The Petitioner ' s representation claim of September 8, 1950, antedating the supple-
mental agreements in question-cannot be considered validly related to the present
petition because, water adaa, it was merged in the petition of September 15, 1950 , dismissed
by the Regional Director , and no appeal was taken Cf. General Electric X-Ray
Corporation, 67 NLRB 997.
ONONDAGA POTTERY COMPANY and FEDERATION OF GLASS, CERAMIC &
SILICA SAND WORKERS OF AMERICA, CIO, PETITIONER. Case No.
3-RC-559. April 27, 1951
Decision and Order Setting Aside Election
On November 1, 1950, pursuant to a stipulation for certification
upon consent election, an election by'secret ballot was conducted under
the direction and supervision of the Regional Director for the Third
Region among the employees in the appropriate unit. Upon com-
pletion of the election a tally of ballots was issued and duly served
by the Regional Director upon the parties concerned. The tally re-
veals that of approximately 1,731 eligible voters, 1,575 cast valid bal-
lots, of which 474 were for the Petitioner and 1,101 were against.
The tally also showed that there were 8 void, ballots and 9 ballots which
were challenged.
On November 2, 1950, the Petitioner filed objections to the election.
On February 16, 1951, the Regional Director issued a report on ob-
94 NLRB No. 25.
ONONDAGA POTTERY COMPANY 59
.sections to the election. In his report on objections, the Regional
Director recommended that the Board overrule the Petitioner's ob-
jections. On March 7, 1951, the Petitioner filed exceptions to the
report on objections, alleging that the Regional Director had disre-
garded the weight of the evidence, applied erroneous principles of
law, and had not made a full investigation?
Upon the entire record in this case, the Board finds : 2
In its objections, the Petitioner alleged that (1) the Employer
intimidated and coerced employees into voting against the Petitioner
and discouraged employees from voting in.favor of the Petitioner; (2)
the Employer threatened to shut down the plant if the Petitioner won
the election; (3) the Employer threatened loss of jobs for older em-
ployees if the Petitioner won the election; and (4) the employees were
promised a wage increase if they voted against the Petitioner. The
Regional Director found no evidence to support objections 3 and 4
and found that statements admittedly made by the Employer and
cited by the Petitioner in support of objections 1 and 2, were ex-
pressions of opinion without threats of promise of benefit and pro-
tected by Section 8 (c) of the Act.
On October 31, 1950, the day preceding the election, the Employer's
president, addressing the employees at the Fayette plant, stated :
You know my opinion that under the principles and practices
of your leaders here a union is not needed and would impose a
serious barrier tending to injure, if not destroy, the human values
which have existed here and which I consider of major importance
to the continued success of this organization and all of us who
work here.
I have spoken to you of the problem of keeping in operation
this old Fayette plant which, from an engineering standpoint, is
now obsolete. You know of our efforts to keep it running and
my reasoned hope that we can do so successfully if we can retain
the human values of interest and diligence, the care and skillful
workmanship, which have resulted from the spirit of friendly
cooperation and good teamwork we have had here. You know
my opinion, as expressed at the last meeting, that if anything
should happen to prevent our continuing to work together in this
' On March 12 , 1951, the Employer moved to dismiss the Petitioner 's exceptions on
the ground that they were not timely filed. While exceptions were not filed within
the 5-day period following date of service of the report on objections as required by Section
203.61 ( b) of the Board Rules and Regulations , Series 5 , then applicable , the Board, on
Pebruary 26, 1951, extended the time for filing exceptions until March 8, 1951, because
Petitioner 's attorney of record had not himself been served with the report within the
meaning of the Rules . Accordingly , we herewith deny the motion to dismiss made
by the Employer.
2 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
( Chairman Herzog and Members Murdock and Styles].
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant in that spirit which we have had in the past, then in my
opinion this old Fayette Street plant is doomed. Now that is
not a threat, as I am told some have wished to misconstrue it. It
is not a threat. It is my considered judgment, and- you have a
right to know it. [Emphasis supplied.]
The same statements, in essence, were repeated at the Employer's
,Court Street plant, which, with the Fayette plant, comprises the
appropriate bargaining unit. The Regional Director found, in agree-
ment with the Employer, that these statements were merely reitera-
tions of warnings previously given to the employees as to the necessity
for increased production, efficiency, and good workmanship at the
Fayette Street plant in order that the plant might remain open. We
do not agree. It is true that, on previous, occasions, the Employer had
made the marginal economic status of the Fayette plant clear to its em-
ployees and stressed the need for efficient production. In this speech,
however, the continued keeping in operation of the plant was linked
to "human values" which the Employer expressly stated would be
injured or destroyed if the Petitioner were successful in the election.
We believe the implications of the speech to be plain, that the plant
was "doomed" if a union were to be chosen. Prior warnings as to the
uncertain status of the plant accentuated, rather than removed, the
pressure exerted in this instance. Moreover, we do not consider that
the denial of any threatening intent in the speech by the Employer
acted to remove the actual threat of reprisal implicit in the preceding
language.
We find, therefore, that the language set forth above in the speech
of October 31, 1950, by the Employer to the employees at the Fayette
Street plant, by its very nature, coercive in character and so related
to the election in time as to have had a probable effect upon the action
of the employees at the polls.3 Accordingly, we find that the Em-
ployer interfered with and restrained its employees in their choice
of a bargaining representative. Because the election of November 1,
1950, therefore did not reflect the employees' free choice of a bargain-
ing representative, we shall sustain the Petitioner's objections to the
'election, and shall set the election aside. When the Regional Director
advises the Board that the circumstances permit the free choice of a
bargaining representative, we shall direct that a new election be held
'among the employees concerned.
Order
IT IS HEREBY ORDERED that the election held on November 1, 1950,
among the employees of the Onondaga Pottery Company, Syracuse,
New York, be, and it hereby is, set aside.
8 See Schwarzenbach Huber Company, 85 NLRB 1490, and cases cited therein.