Orleans Manufacturing Co.

National Labor Relations Board - Board Decisions

Apr 25, 1958

120 N.L.R.B. 630 (N.L.R.B. 1958)

630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Orleans Manufacturing Company and Retail , Wholesale & De-
partment Store Union , AFL-CIO, Petitioner. Case No. 15-RC-
1578. April 25, 1958
SUPPLEMENTAL DECISION AND CERTIFICATION OF
REPRESENTATIVES
Pursuant to a Decision and Direction of Election issued on August
26, 1957,1 an election by secret ballot was conducted on September
131 1957, under the direction and supervision of the Regional Director
for the Fifteenth Region, among the employees in the unit heretofore
found appropriate. Upon the conclusion of the election, the parties
were furnished with, and their observers signed, a tally of ballots
which showed that of approximately 125 eligible voters, 80 cast
ballots for the Petitioner, and 42 against the Petitioner, and 3 ballots
were challenged. The challenged ballots were not sufficient in
number to affect the results of the election.
On September 20, 1957, the Employer filed timely objections to
conduct affecting the results of the election. After an investigation,
on December 3, 1957, the Regional Director issued his report on
objections to conduct affecting results of election, in which he found
that the Employer's objections did not raise substantial or material
issues with respect to conduct affecting the results of the election,
and recommended that the objections be overruled and that an appro-
priate certificate of representatives be issued. Thereafter, the
Employer filed exceptions to the Regional Director's report, a request
for a hearing, and a supporting memorandum.
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 Leedom and Members
Rodgers and Jenkins].
In objections 1-a and 1-b,2 the Employer alleged that between
the date that the election was directed and the date it was held the
Petitioner, through its officers, agents, and representatives, threatened
employees that they would be "beat up" if they did not join the
Petitioner, and that they would "get whipped" if they did not join
the Petitioner and it got in. With respect to these objections, the
Regional Director found that on the day before the election, 1 of 3
rank-and-file employees who were waiting for an elevator to take
them out of the building at lunchtime asked another in the group,
"Which one are you for?" When the latter replied that he was
for the Employer and against the Petitioner, the former said, "We'll
fix you up if you don't join the Union. We'll beat you up." The
1 Unpublished.
2 The objection numbers are those used by the Regional Director.
120 NLRB No. 83.
ORLEANS MANUFACTURING COMPANY 631
employee so addressed reported the incident to the Employer's presi-
dent the Monday following the election, which was held on a Friday,
and declared that he intended to quit, but was prevailed upon not
to do so. Neither the employee making the threat nor his companion
held any office in the Petitioner or had attended union meetings more
often than many other employees; one of them had secured the sig-
nature of one employee to one application for membership in the
Petitioner, but most of such applications were secured by other
employees.
The Regional Director found further that on August 27 or 28, a
day or so after the date of the Direction of Election, an employee
asked another employee, during the latter's lunch hour and outside
the plant, why he did not join the Petitioner. When the latter replied
that he just didn't want to, the former stated that if he didn't join
he might get whipped.3 The employee making the alleged threat
was not an officer or agent of the Petitioner or so closely associated
with the Petitioner at the time of the alleged threat as to warrant
other employees in believing that he had authority to act for the
Petitioner; nor was there evidence that the Petitioner authorized,
condoned, or ratified his statements.
The Regional Director recommended that these objections be over-
ruled, on the ground, inter alia, that the statements complained of
were made by rank-and-file employees whom the Petitioner had not
vested with any authority. The Employer excepts to this finding,
asserting that the Petitioner had authorized, condoned, and ratified
their conduct 4 The Employer makes no claim that it has any evi-
dence in its possession to support this assertion, but seeks a hearing in
an effort to develop such evidence by the process of examination and
cross-examination. In order to prevent delay in the effectuation of
conclusive election results by a party who invokes the Board's objec-
tions procedure without having any real basis for invalidating the
election, the Board has uniformly refused to direct a hearing on such
objections unless the objecting party supplies specific evidence of con-
duct which prima facie would warrant setting the election aside a
8 The Regional Director found that the employee to whom this statement was made
reported that he took it as a joke and laughed, and that there was a considerable amount
of banter between the two. The Employer excepts to these findings , and we do not as-
sume them to be true.
4 The Employer also excepts to the Regional Director 's failure to find that the conduct
involved in objection 1-a in fact intimidated the employee addressed . This exception is
hereby overruled. The Board will not attempt to enter the speculative realm of evalu-
ating the subjective reaction of employees to conduct allegedly invalidating an election.
Shovel Supply Company, 118 NLRB 315, American Wholesalers, 116 NLRB 1492, 1495,
footnote 6, The Great Atlantic & Pacific Tea Company, 111 NLRB 623, 626 ; of Radio
Officers Union etc. v. N. L. R. B ., 347 U. S. 17, 51.
s Benton's Cloak & Suit Company, 97 NLRB 1327; Remington Rand Division of Sperry
Rand Corp., 118 NLRB 1367 ; Felix Bonura Company , 119 NLRB 1620. This practice was
judicially approved in N L. R. B v Vulcan Furniture Mfg. Corp., 214 F. 2d 369, 372
(C A 5), certiorari denied , 348 U. S. 873.
.632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The speculative possibility advanced by the Employer that evidence
to support its allegations might transpire at a hearing is insufficient to
warrant the delay in these proceedings which would arise from di-
recting such a hearing.'
In objection 1-c, the Employer alleged that between the date that
the election was directed and the date it was held, the Petitioner,
through its officers, agents, and representatives, threatened employees
that if they did not join the Petitioner "teen-agers would whip
them." With respect to this objection, the Regional Director found
that prior to an employee's termination, 12 days before the Board's
Decision and Direction, he allegedly asked another employee why he
did not attend union meetings and informed him that there were 16
employees who did not. When the latter replied that he just didn't
go to meetings, the former declared that he had better look out or
those "teen-agers" might get him on the way home?
In objection 1-d, the Employer alleged that between the date that
the election was directed and the date it was held, the Petitioner,
through its officers, agents, and representatives, warned an employee
previously threatened with being run out of town for not joining the
Petitioner, and who had made statements in opposition to the Peti-
tioner, to "watch his step" and "not get in the way." With respect to
this objection, the Regional Director found in part that about a week
before the issuance of the Decision and Direction of Election, in the
course of a discussion about the Petitioner among a group of em-
ployees washing up at the end of the workday, an employee alleged
to be a member of the Petitioner's organizing committee' told an-
other employee that some of the employees, including apparently the
speaker, were liable to get together and send the employee back to
Carolinas As these incidents took place before the issuance of the
Decision and Direction of Election, we overrule these objections.'°
With respect to objection 1-d, the Regional Director also found that
a week or two before the election, the employee who had been threat-
ened with removal to Carolina initiated a conversation with another
8 The cases relied upon by the Employer do not warrant a different result, since none
of them involved objections based on allegations which the objecting party failed to sup-
port by evidence tendered to the Regional Director of the Board.
7 The Regional Director found that there was no feeling of animosity between these two.
Since the Employer asserts that this finding is contrary to fact, we shall disregard it.
8 The Employer excepts to the Regional Director 's failure to find that this employee
was a member of the Petitioner 's organizing committee . For purposes of this decision,
we shall assume that he occupied that position.
9 The Employer apparently asserts that some of the employees present or referred to
during this conversation were members of the Petitioner' s organizing committee. We
shall so assume for purposes of this decision.
"P. W. Woolworth Co., 109 NLRB 1446, 1448-1449 ; National Furniture Company,
Inc., 119 NLRB 1; Joanna Western Mills Co., 119 NLRB 1789. We note that the Employer
makes no claim that it was unaware of these incidents before the election was held, or
that it drew them to the attention of the Regional Director as a basis for delaying the
election until the passage of time had erased any effect they may have had.
ORLEANS MANUFACTURING COMPANY 633
employee, who had been selected by other employees to direct their
organizational activities. During this conversation, which was
heated, the former attempted to persuade the latter that he was in
error in supporting the Petitioner and, as on previous occasions,
threatened to sue him. Although asked, the antiunion employee did
not explain on what grounds he would sue the other, who was 15 to
20 years younger than he." The younger man replied that the anti-
union employee should watch his step and not get in the way. The
witnesses present during this exchange did not regard this last state-
ment as a threat of physical violence. We agree with the Regional
Director that this conduct, if it occurred, would not warrant setting
aside the election, since the remark was an equivocal one, and was
made in the heat of a personal dispute arising from an effort to prose-
lytize the prounion employee rather than in connection with the
latter's organizational activities."
The Employer contends, however, that the election should be set
aside notwithstanding the circumstances above set forth, i. e., the fact
that most of the statements of which it complains were made before,
the issuance of the Decision and Direction of Election, that most
were made by rank-and-file employees, and that the only statement
made by a union agent after the issuance of the Direction of Election
was equivocal in character. With respect to the conduct of rank-
and-file employees, the Employer contends that the basic issue is not
whether the remarks in question were made by agents of the Peti-
tioner, but whether they were calculated to interfere with the free
choice of the voters. While the Board will consider conduct not
attributable to any of the parties in determining whether an election
should be set aside, the Board accords less weight to such conduct
than to conduct of the parties.13 The Board believes that the conduct
of third persons tends to have less effect upon the voters than similar
conduct attributable to the employer who has, or the union which
seeks, control over the employees' working conditions. Furthermore,
were the Board to give the same weight to conduct by third persons
as to conduct attributable to the parties, the possibility of obtaining
quick and conclusive election results would be substantially di-
minished. The employer and the union are deterred from election
misconduct by the unfair labor practice provisions of the Act and
by the trouble and expense which repeated elections impose upon
n According to the Regional Director , the employee in question had in mind an alleged
injury which might occur to him if the Petitioner was successful in its campaign and
he subsequently was required to join the Petitioner.
32 See Westinghouse Electric Corporation , 91 NLRB 955 , 960; E. I. DuPont de Nemour8
Company, Inc, etc, 105 NLRB 710, 712
is Benton's Cloak & Suit Company , 97 NLRB 1327 , 1329, 1330; E. I. Dupont de Nemours
eE Company, Inc., 105 NLRB 710 , 712; Tampa Crown Distributors , Inc., 118 NLRB 1420.
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them.14 The absence of similar deterrents against third persons who
wish to forestall a conclusive election may make them more prone to
engage in conduct calculated to prevent such a result. In view of
these considerations, we do not believe that the employee conduct
described above which occurred after the Board's Decision and Di-
rection of Election created an atmosphere rendering a free election
impossible.i5
The Employer further excepts to the Regional Director's failure
to find that the incidents alleged in objections 1-b and 1-c (the "Whip-
ping" incident and the "teen-age" incident) were part of a concerted
design of the Petitioner and its adherents to coerce the votes of
antiunion employees. Assuming, without deciding, that the existence
of such a plan may be shown in part by incidents occurring prior to
the Decision and Direction of Election, 16 we do not believe that the
above incidents, considered as a whole, warrant the inference drawn
by the Employer, and the Employer offers no further evidence to
support its allegations. We therefore overrule this exception.
In objection 1-e, the Employer alleged that the Petitioner inter-
viewed employees in the voting unit at their homes immediately
before the election. With respect to this objection, the Regional
Director found as follows : Within the 2 weeks preceding the election
the Petitioner's agents visited no more than 10 employees, of the
approximately 125 eligible voters, at their homes." Those so visited
were known to be opposed or indifferent to the Petitioner.18 No
witnesses attributed threats or impolite conduct to the Petitioner's
agents.19 The Regional Director recommended that this objection be
overruled. In Plant City Welding and Tank Company, 119 NLRB
131, the Board held that a union does not interfere with the employees'
free choice of representatives by interviewing them in their homes.
We therefore affirm the Regional Director.
In objection 1-f, the Employer alleged that during the period be-
tween the date that the election was directed and the date it was held,
14 In extreme cases, a union's misconduct may deprive it of a place on the ballot New
York Shipping Association and Its hlencbers, 108 NLRB 135, 144; 108 NLRB 554, 556
15 See J. Spevak d Co , Inc, et al , 110 NLRB 954, White's Uvalde Mines, 110 NLRB
278; Westinghouse Electric Corporation, 91 NLRB 955, 960, Minneapolis Knitting Wooks,
84 NLRB 826, 827.
18 But see The Liberal Market, Inc. 108 NLRB 1481, 1483, and the cases cited in foot-
note 10, supra
17 The Employer alleges that a full hearing with the right of confrontation and cross-
examination would reveal that the home visits were more widespread. We reject this
assertion as a basis for oidering a hearing for the reasons stated in connection with
objections 1-a and 1-b.
78 The Employer asserts that this is immateiial but does not except to it as a factual
finding
1H Some were offered a reduced initiation fee if they joined the Petitioner before the
election. This aspect of the case is discussed infra.
ORLEANS MANUFACTURING COMPANY 635
the Petitioner promised employees financial benefits and rewards if
they joined the Petitioner before the election. The Regional Direc-
tor found that the Petitioner urged several employees to join the
Petitioner before the election on the ground that the employees were
paying nothing then to join but that the membership might establish
an initiation fee if the Petitioner obtained a contract with the Em-
ployer, and that the Petitioner urged employees to support it in order
to obtain higher wages. The Regional Director found no evidence
that the employees were promised a financial reward for voting for
the Petitioner. The Regional Director recommended that the objec-
tion be overruled, on the ground that a union's promises of reduced
membership fees, and of increased wages through organization, do
not interfere with a free election. When read in connection with its
memorandum , the Employer's exceptions do not clearly disclose
whether it challenges the propriety of the Regional Director's con-
clusion assuming the accuracy of his factual findings. In any event,
the Regional Director's conclusion accords with Board policy, and
we hereby adopt it 21
In objection 2, the Employer alleged that the Petitioner's activities
both before and after the issuance of the Direction of Election formed
a pattern of coercive conduct which was calculated to and did affect
the result of the election. The Regional Director recommended that
this objection be overruled. Because the Employer fails to set forth
any grounds for its exception, and because we do not believe that the
evidence tendered by the Employer supports this objection, we hereby
overrule it a1
Since we agree with the Regional Director that the Employer's
objections should be overruled, we will certify the Petitioner as rep-
resentative of the Employer's employees.
[The Board certified Retail, Wholesale and Department Store
Union, AFL-CIO, as the collective-bargaining representative of the
production and maintenance employees at the Employer's New
Orleans, Louisiana, plant, in the unit found appropriate.]
20A. R. F. Products, Inc, 118 NLRB 14'56; Maehinesy Overhaul Company, Inc, 115
NLRB 1787 , 1789 ; Shirlington Supermarket, Inc., et al, 106 NLRB 666 , 667. The Re-
gional Director further found that one or more employees predicted to another employee
that if she joined the Petitioner then, she might do so for $3 or $4, but that if she waited
it might cost her $30 or $40 . We agree with the Regional Director that this prediction
does not warrant setting the election aside, both for the reasons stated in A. R. F. Prod-
ucts, supra, and because it was made by a rank-and-file employee or employees. For
the reasons set forth in connection with objections 1-a and 1-b, we reject the Employer's
request for a hearing on the ground that the evidence developed therein might disclose that
the piomuses were conditioned upon the employees' vote
21 See The Coolidge Corporation, 108 NLRB 3 , 5; National Furniture Company, Inc.,
119 NLR1, 1 , Charles T Brandt, Inc, 118 NLRB 956.