Peerless Plywood Co.

National Labor Relations Board - Board Decisions

Dec 17, 1953

107 N.L.R.B. 427 (N.L.R.B. 1953)

PEERLESS PLYWOOD COMPANY 427
I have set forth herein some of the long and complex
investigation and determination by the Board, the Courts, and
the Congress , which led to the development of the principle
at issue. That history is marked by frequent appraisals of
the subtle but powerful pressures inherent in employer
speeches on union organization given in a plant environment
and on working time. Until we are certain that the Bonwit
Teller doctrine has been rejected not only by the circuit
courts but by the Supreme Court, or that the doctrine , itself,
is unsuitable for the purpose for which it was designed, I
submit that we are mistaken in abandonment of a rule so
grounded in our particular and specialized knowledge and so
vital in preserving employee rights to the choice of bargaining
representatives free from employer interference. To do
otherwise is to ignore the function the statute prescribes and
to avoid the rights the statute protects.
For these reasons , accordingly , I cannot join in the action
of my colleagues and would find that the Respondent Livingston,
by its conduct prior to the election in this case, thereby
violated Section 8 ( a) (1) of the Act.
PEERLESS PLYWOOD COMPANY and UNITED FURNITURE
WORKERS OF AMERICA, C. I.O., Petitioner . Case No.
11-RC-517. December 17, 1953
SUPPLEMENTAL DECISION , ORDER, AND SECOND
DIRECTION OF ELECTION
Pursuant to a Decision and Direction of Election ' issued
herein on May 13, 1953, an election by secret ballot was
conducted on May 26, 1953, under the direction and super-
vision of the Regional Director for the Eleventh Region,
among employees in the unit found appropriate by the Board.
Following the election , a tally of ballots was furnished the
parties . The tally shows that of 50 votes cast in the election,
20 were for , and 29 were against, the Petitioner, with 1
ballot challenged.Z
On May 28, 1953, the Petitioner filed objections to conduct
affecting the results of the election . The Regional Director
investigated the objections and, on August 19, 1953, issued
and duly served upon the parties a "Report on Objections,"
in which he recommended that the election be set aside and
a new election ordered. Within the proper time therefor, the
Employer filed exceptions to the Regional Director ' s report.
Having duly considered the matter , the Board finds as
follows:
' Not reported in printed volumes of Board decisions.
2 Local Union No. 2566 , United Brotherhood of Carpenters and Joiners of America, AFL,
also appeared on the ballot but received no votes.
107 NLRB No. 106.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Petitioner objected to the election upon the ground,
inter alia,9 that employees were assembled on company time
and property to listen to an antiunion speech and, although
requested to do so, the Employer denied the Petitioner
similar facilities for addressing employees. The facts re-
lating to this objection are undisputed. They are as follows:
The Board issued its Decision and Direction of Election
on May 13, 1953. Two days later, the Regional Director com-
pleted arrangements for holding the election during the
morning of May 26, 1953. On May 20, 1953, the Petitioner
wrote a letter to the Employer requesting equal time and
facilities in the event that the Employer made a speech to
the employees on employer time and property. The Employer
denied the Petitioner's request on May 22, 1953, stating
that it did not have a "no-solicitation" rule and that there-
fore the Board's ruling in the Bonwit Teller case4 did not
apply.
The election was held between 9:30 a.m. and 10:15 a.m.
on May 26, 1953. On the afternoon of May 25, less than 24
hours before the election, the Employer assembled the em-
ployees on its property in order to have them listen to a
prepared speech about the election delivered by the secretary-
treasurer of the Employer. After the speech was read, mimeo-
graphed copies of it were distributed to the employees present.
The speech was noncoercive in character.
The Regional Director recommended that the objections be
sustained and the election set aside, because "it is now
established Board policy that if the employer utilizes company
time and property to campaign against the union he may not
deny the union an opportunity to reply under the same cir-
cumstances." The Employer challenges the conclusion and
recommendation of the Regional Director. It argues that
the Petitioner held a meeting at its own hall on the evening
of May 25, at which it had ample opportunity to present its
side of the case to employees at the last available moment,
and to answer the arguments put forth by the Employer at a
meeting on the Employer' s premises that afternoon. It also
asserts that it has never had a "no-solicitation" rule and
the opportunity afforded the Petitioner to present its side of
the case to employees has been unrestricted.,%
Under the Board's broad Bonwit Teller doctrine, this
election would have been set aside because the Employer
made a speech to his employees prior to an election and
denied the Union an opportunity to use his premises to make
3The Petitioner also listed four other reasons for setting aside the election. The Regional
Director found that these objections were without merit and recommended that they be over-
ruled. As no exceptions have been filed to this recommendation, it is hereby adopted without
comment.
4Bonwit Teller, Inc., 96 NLRB 608, remanded 197 F. 2d 640 (C. A. 2), employer's petition
for certiorari denied 345 U. S. 905.
5See Bonwit Teller Inc. v. N. L R. B., 197 F. 2d 640 (C A. 2), cert. denied 345 U. S. 905;
N L. R. B. v. American Tube Bending Company, 205 F. 2d 45 (C A. 2).
PEERLESS PLYWOOD COMPANY 429
a speech in reply. This would have been done regardless of
the timing of the Employer ' s speech, so long as it was pre-
election , and regardless of whether or not the Employer had
a broad no - solicitation rule.
In our decision in the Livingston Shirt case , 107 NLRB
No. 109, the majority of the Board reverses the broad Bonwit
Teller decision. In that case we hold that , in the absence of
either a privileged or an unlawful broad no-solicitation rule,
an employer does not commit an unfair labor practice if he
makes a noncoercive speech to his employees and denies the
union an opportunity to reply on company premises.
We are now called upon to decide what our rule shall be
in an election case in the light of our Livingston Shirt de-
cision. We have abandoned the Bonwit Teller doctrine in
complaint cases. But this does not, however , dispose of the
problem as it affects the conduct of an election. It is our
considered view, based on experience with conducting repre-
sentation elections , that last-minute speeches by either em-
ployers or unions delivered to massed assemblies of em-
ployees on company time have an unwholesome and unsettling
effect and tend to interfere with that sober and thoughtful
choice which a free election is designed to reflect . We believe
that the real vice is in the last-minute character of the
speech coupled with the fact that it is made on company time
whether delivered by the employer or the union or both. Such
a speech, because of its timing , tends to create a mass
psychology which overrides arguments made through other
campaign media and gives an unfair advantage to the party,
whether employer or union, who in this manner obtains the
last most telling word.
When viewed in this light, it is plain that the situation is
aggravated rather than equalized by an attempted application
of the $onwit Teller doctrine to elections . In an attempt to
achieve equality, the effect of Bonwit Teller was to create
a further imbalance by giving an advantage to the party who,
by virtue of making a speech on company time only a few
hours before the election, thereby was accorded the last
most effective word.
Accordingly, we now establish an election rule which will
be applied in all election cases. This rule shall be that
employers and unions alike will be prohibited from making
election speeches on company time to massed assemblies
of employees within 24 hours before the scheduled time for
conducting an election. Violation of this rule will cause the
election to be set aside whenever valid objections are
filed.
We institute this rule pursuant to our statutory authority
and obligation to conduct elections in circumstances and
under conditions which will insure employees a free and
untrammeled choice. Implicit in this rule is our view that
the combined circumstances of (1) the use of company time
for preelection speeches and (2 ) the delivery of such speeches
337593 0 - 55 - 29
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the eve of the election tend to destroy freedom of choice
and establish an atmosphere in which a free election cannot
be held. Also implicit in the rule is our judgment that non-
coercive speeches made prior to the proscribed period will
not interfere with a free election, inasmuch as our rule
will allow time for their effect to be neutralized by the im-
pact of other media of employee persuasion.
This rule is closely akin to, and no more than an extension
of, our long-standing rule prohibiting electioneering by either
party at or near the polling place. We have previously pre-
scribed space limitations, now we prescribe time limitations
as well. This rule arises from the same concept and has the
same purpose of keeping our elections free. It is this same
purpose which has led us recently to prohibit the use of sound
trucks for the purpose of projecting voice propaganda into the
polling place although the trucks are physically located out-
side the proscribed polling area .6 Likewise, it is this same
purpose which caused us in another recent decision to set
aside an election because an atmosphere of terror was
created by individual employees, although their conduct could
not be attributed either to the union or the employer. 7
We believe that the application of this same concept of fair
and free elections to speeches on company time on the very
eve of an election will have a salutary effect, will not give
undue advantage to any party, and will afford employees an
opportunity to exercise their franchise in an atmosphere more
truly conducive to freedom of choice.
This rule will not interfere with the rights of unions or
employers to circulate campaign literature on or off the
premises at any time prior to an election, nor will it prohibit
the use of any other legitimate campaign propaganda or media.
It does not, of course, sanction coercive speeches or other
conduct prior to the 24-hour period, nor does it prohibit an
employer from making (without granting the union an oppor-
tunity to reply) campaign speeches on company time prior to
the 24-hour period, provided, of course, such speeches are
not otherwise violative of Section 8 (a) (1). Moreover, the
rule does not prohibit employers or unions from making cam-
paign speeches on or off company premises during the 24-hour
period if employee attendance is voluntary and on the em-
ployees' own time.
In this case, as the Employer delivered its speech to em-
ployees on company time less than 24 hours in advance of the
election, we find that a free and untrammeled expression of
employees desires was thereby prevented. We see no un-
fairness in applying our rule here, since the Employer's
conduct would have been a violation of the Bonwit Teller rule
which was in effect when this election was held. We shall
accordingly set aside the results of the May 26 election and
6Higgins . Inc., 106 NLRB 845.
7 Diamond State Poultry Company, Inc , 107 NLRB No. 19.
PEERLESS PLYWOOD COMPANY 431
direct a new one to be conducted in accordance with our
new rule.
[The Board set aside the election held on May 26, 1953.]
[Text of Second Direction of Election omitted from pub-
lication.]
Member Murdock , dissenting in part and concurring in
part:
While I agree that the election held in this proceeding on
May 26, 1953 , should be set aside and a new election held,
I strongly dissent from the basis on which the majority
reaches this result . The majority opinion, in my considered
judgment, errs in substituting the new 24 -hour rule announced
herein for the Board ' s established doctrines concerning em-
ployer preelection speeches . In accord with my dissenting
opinion in the Livingston Shirt case,8 I would herein reaffirm
those principles set forth in Bonwit Teller 9 and succeeding
decisions which have, this day, been overruled by my col-
leagues, but which in my view are the only proper basis for
setting this election aside.
In my dissenting opinion in the Livingston Shirt case, I
have set forth in some detail the history and reasoning be-
hind the Bonwit Teller doctrine which shows why it should be
retained. That doctrine, of course, holds that if an employer
chooses to use company time and property for antiunion
speeches, the Act is violated by the employer's subsequent
denial to the union of an equal opportunity for expression of
contrary views. The same conduct by an employer , as an in-
terference with the employees ' freedom of choice, constitutes
grounds for setting aside a representation election as in this
case.
The majority opinion in Livingston Shirt specifically over-
rules the Bonwit Teller decisions, and the doctrine expressed
therein, in complaint cases. In my dissent in 4ivingston I
pointed out the contradictory position of the majority--in one
breath scuttling the Bonwit Teller doctrine on the ground
that the right of free speech cannot be "qualified by grafting
on it conditions which are tantamount to negation," yet in
the next breath gxtinguishin the employer' s freedom of
speech for a stated period prior to the election as a substi-
tute method of dealing with the interfering effect of employer
speeches on company time and property.
On the assumption that it is only "last -minute" speeches
made on company time that have "an unwholesome and un-
settling effect" requiring remedial action , my colleagues
announce that they will hereafter invalidate any election
where an employer ( or union ) speaks on company time during
8 Livingston Shirt Corporation, et al., 107 NLRB No. 109.
9Bonwit Teller, Inc., 96 NLRB 608, 197 F. 2d 640 (C. A. 2), cert. den. 345 U. S. 905.
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the final 24 hours preceding the election . I submit that this
rule is both untenable in theory and inadequate in operation.
As noted, the majority opinion finds that it is the timing
of an employer antiunion speech delivered on companyme
which basically determines whether or not that speech has
the essential elements of interference . While I do not deny
that the timing of such speeches just before an election may
aggravate the degree of interference , it is clear that timing
is but one facet of the general problem and not the whole
evil. It is this preoccupation with the "last word" which, I
believe, has led my colleagues into a misunderstanding and
misconstruction of the onwit Teller doctrine as applied to
representation elections. Contrary --To the unsupported ma-
jority assertion that it created a "further imbalance by giving
an advantage to the party who . . . thereby was accorded the
last most effective word," that doctrine merely assured that
employees heard both sides under circumstances of approxi-
mate equality. Need el ss to say, neither party, under Bonwit
Teller, was awarded or guaranteed the last word nor was
either party assisted thereby in jockeying for any advantage
of that type. 10
Such concentration on who speaks last in an organizational
campaign, however , misses the problem completely.
The mass psychology which my colleagues agree is created
by employer speeches of this type, is not solely dependent
upon the last-minute character of the employer ' s speech but
comes , in fact, as a result of the employer' s exclusive use
of a forum as highly charged with significance and pressure
for employees as is the place where they work. This, the
crux of the interference with a free election caused by such
employer speeches, is not alleviated in any manner by the
last-minute moratorium proposed by the majority. As a re-
sult, the rule now announced will inevitably handicap rather
than assist this Agency in handling the critical problem we
all agree exists.
Even a cursory examination of the new 24-hour rule re-
veals its inherent defects and the fallacious reasoning behind
its establishment. On what logical basis, I ask, does the ma-
jority now determine that an employer speech on company
time and property has no harmful effect upon employees'
freedom of choice when delivered 241 hours before an election
while the identical speech made one-half hour later - 24 hours
before the election - would have such an effect and warrant
setting aside the election . Thus, under the new rule , where an
election is scheduled for 10 a.m. Tuesday, the employer need
only schedule a 30-minute speech for 9:30 a.m. on Monday,
and stop talking by 10 a.m. In such a case the election will
stand. If, however , he is so misguided as to begin his speech
10 See Foreman & Clark, Inc., 101 NLRB 40 ; and Snively Groves , Inc., 102 NLRB 1617,
where the Board specifically rejected any approach of that nature . For an extended dis-
cussion of this contention, see also my dissenting opinion in Livingston Shirt
PEERLESS PLYWOOD COMPANY 433
30 minutes later, the Board will set aside the election be-
cause it was made during the 24-hour period prior to the
election. Yet can anyone reasonably believe that there could
be any real and substantial difference in the effect of the
two speeches upon the employees? In line with this theory,
if an employer commences his speech 241 hours before an
election and, either by design or through an excess of oratory,
continues past the fatal 24-hour mark, we must assume that
his words, with the striking ofthe clock, are immediately
laden with a portent which they lacked 60 seconds before. I
submit that such a rule as this, based upon the stopwatch and
the minute hand rather than on any basic comprehension of
industrial reality, is without perceptible merit.
If other examples of the lack of logic and practicality in
the new 24-hour moratorium are necessary, they are readily
available. The majority flatly assumes that, in all cases, a
union will require precisely 1,440 minutes prior to an elec-
tion--but no more to counteract the effects of the mass psy-
chology admittedly created by this type of employer speech.
This somewhat startling and certainly unsubstantiated con-
clusion is based on the finding that other campaign media
available to a union are adequate to the task given that precise
length of time. But are these media so phenomenally efficient
under any and all circumstances? Such a conclusion demands
belief in the obvious fantasy that 10,000 employees in one
plant may be contacted in the same time as 25 workers in
another; that communication problems in a rural community
are precisely the same as those existing in a city or a large
metropolis. This is demonstrably untrue and, as I have
pointed out at more length in my dissenting opinion in Liv-
ingston Shirt, the experience of this Board over the past 18
years and t e conclusion of independent observers is that
communication media available to a union are woefully in-
adequate to correct the imbalance existing after an employer
antiunion speech delivered on company time and property. That
experience and those conclusions point unmistakably to the
fact that a mass psychology created through exclusive use of
company time and property by an employer against a union
can be dissipated only by assuring a minimum of equality to
both sides in the use of that forum.
As I have noted previously, the majority opinion further
makes the apparent but unexplained conclusion that it is
only employer antiunion speeches on company time which
require the Board's remedial authority. The rule does not
prohibit employer speeches on company property within the
24-hour period if not made on paid time. The majority's im-
plicit conclusion that antiunion speeches delivered on the
plant remises are harmless so long as they are not given
during that portion of the day for which the employees are
paid is not explicated. The experience of the Board certainly
affords no basis for such a distinction and the known realities
of industrial life point unmistakably in the opposite direction.
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When, as pointed out by a recent analysis, "Field studies
indicate how deeprooted is the feeling among workers that
their future welfare depends upon 'not crossing the boss,"
there can be no demonstrable difference in the impact of an
employer antiunion speech upon employees made on company
time and the same speech made during the lunch hour or
when employees are invited to remain after work to hear the
employer's views when both are delivered in the very situs
of the employer's economic authority over his employees. ii
Beaming a speech at employees on their lunch hour or uti-
lizing the sizeable readily captured "voluntary" audience
which can be expected to respond to a command invitation
to hear their employer's views on their own time immediately
after the 5 o'clock whistle has blown, are techniques which
can be expected to avoid even the limited effectiveness of
a 24-hour rule.
I would also point out that the rigid unqualified 24-hour
restriction on speech promulgated by the majority is hardly
compatible with what should be our determination to see that
employees have the broadest possible basis of discussion and
information upon which to make their decision. The new rule
is pointed toward less speech and hence less information,
whereas Bonwit Teller was pointed toward more speech and
hence more information. It was Justice Holmes who wisely
observed that the underlying America tradition is that ". . .
the ultimate good desired is better reached by free trade in
ideas--that the best test of truth is the power of the thought
to get itself accepted in the competition of the m a r k e t
place." 12 The Bonwit Teller approach insured such free com-
petition of employer and union argument; the new approach
will generally operate to stifle such competition of ideas in
favor of employer arguments , so long as the employer is
smart enough to time his speech just prior to the 24-hour
period preceding the election. Yet there will be some in-
stances where the new rule will operate to stifle competition
of ideas to the employer's disadvantage as well as to the
opportunity of employees to hear both sides. A union may
distribute pamphlets to employees the night before the election
containing false statements about the employer or his em-
ployment plans and practices--campaign propaganda which the
Board does not condone but has never undertaken to police.
Obviously the employer will not have time to prepare, have
printed, and distribute a reply to the union's statement before
the next morning's election. His only opportunity to answer
the false charges of the union would be by a speech to the
employees the morning of election day. Under the Bonwit
Teller doctrine, so long as he was prepared to accord the
union the opportunity to present its side in the same forum,
1114 University of Chicago Law Review 104 at 106 citing Gardner, Human Relations in
Industry, (1935).
12 Abrams v. United States, 250 U. S 616, 624.
PEERLESS PLYWOOD COMPANY 435
the employer would be free to make his speech and it would
be left to the good sense of the voters ( as it is in our political
elections ) to sift the true from the false. This precise situation
was so determined by the Board under Bonwit Teller.13 But
under the new gag rule announced by the majority the employer
would be effectively barred from answering such false propa-
ganda and the employees would be denied the opportunity to
know the truth because of the 24 -hour iron curtain which the
majority has pulled down on speeches on company time and
premises.
In closing I would note that even if the Bonwit Teller doc-
trine is abandoned as a basis for finding unfair labor
practices as the majority has done in the Livingston Shirt
decision , it does not necessarily follow that the doctrine
must or should be abandoned as a basis for setting elections
aside . If this Board has the power , as the majority believes,
to tell the employer that he cannot make a speech at all on
company time and premises within 24 hours of an election,
under pain of having the election set aside , then certainly
it could not be argued that the Board does not have the
power to tell the employer that if he elects to make such a
speech at any time during the period preceding the elec-
tion and does not grant the union ' s request for an oppor-
tunity to speak under similar circumstances , the Board
will set aside the election . As I read the majority
opinion they do not contend that the Bonwit Teller doctrine
must be abandoned in representation cases , but to the con-
trary recognize that this is not so. They say: "We have
abandoned the $onwit -Teller doctrine in complaint cases.
But this does not, however , dispose of the prob em as it
affects the conduct of an election" ( emphasis supplied). Our
only difference of opinion then is on the question whether the
new 24 -hour rule or the Bonwit Teller doctrine is better
adapted to remedy the element of interference with free
elections which is present in employer speeches on company
time and property . As I have earlier pointed out, the 24-hour
rule not only does not reach the basic problem, but gives rise
to other objectionable features.
Accordingly , adhering to the Bonwit Teller doctrine in
representation cases, as the Employer herein delivered an
antiunion speech to its employees on company time and prop-
erty and thereafter denied an equal opportunity to the Peti-
tioner to express its views, I would find that the Employer
interfered with the free choice of its employees. On that
basis alone I agree with the result reached in the majority
opinion in setting aside the election and directing a new
election.
13Snively Groves, Inc , supra