Plochman and Harrison--Cherry Lane Foods, Inc.

National Labor Relations Board - Board Decisions

Dec 13, 1962

140 N.L.R.B. 130 (N.L.R.B. 1962)

130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without prejudice to his seniority or other rights or privileges , and make him whole
for any loss of pay suffered by reason of the discrimination against him by payment
to him of a sum of money equal to that which he would have earned , his health
permitting , by payment to him of a sum of money equal to that which he would
have earned from the date of the discrimination to the date of reinstatement, less
his net earnings during such period. The amounts due to both Deborah and Louis
Lapp shall be computed in accordance with the formula prescribed in F. W. Wool-
worth Company , 90 NLRB 289 , 291, 294.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case , I make the following:
CONCLUSIONS OF LAW
1. Respondents are engaged in commerce within the meaning of the Act.
2. By terminating the employment of Deborah Lapp, a supervisor , on or about
March 14, 1962, Respondents have interfered with, restrained , and coerced their
nonsupervisory employees in the exercise of rights guaranteed in Section 7 of the
Act and thereby have engaged in and are engaging in unfair labor practices within
the meaning of Section 8(a) (1) of the Act.
3. By causing to terminate, and by terminating , the employment of Louis Lapp,
Respondents have engaged in unfair labor practices within the meaning of Section
8(a) (1) and ( 3) of the Act.
4. Respondents have not discriminated against Sanford Lapp as alleged in the
complaint.
[Recommendations omitted from publication.]
Plochman and Harrison-Cherry Lane Foods, Inc. and Grocery
and Food Products , Food Processors , Food Canners, Ware-
house Employees and Related Office Employees Local No. 738,
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America (Local 738, IBT), Petitioner.
Case No. 13-RC-7989. December 13, 19692
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
Pursuant to a stipulation for certification upon consent election, an
election by secret ballot was conducted by the Regional Director on
September 6, 1961, under the direction and the supervision of the
Regional Director for the Thirteenth Region among the employees in
the unit described below. After the election the parties were furnished
with a tally of ballots which showed that, of approximately 47 eligible
voters, 44 votes were cast, of which 20 were for, and 23 were against, the
Petitioner, 1 ballot was challenged, and 1 ballot was void. Thereafter,
the Petitioner filed timely objections to conduct affecting the results
and the conduct of the election.
In accordance with the Board's Rules and Regulations, the Regional
Director conducted an investigation, and thereafter issued a report
and supplemental report on objections, in which lie recommended that
the objections be overruled and that the Board issue a certification of
results of the election. Thereafter, the Petitioner filed timely excep-
tions to the recommendations of the Regional Director.
140 NLRB No. 11.
PLOCHMAN & HARRISON-CHERRY LANE FOODS , INC. 131
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 is a labor organization claiming to represent em-
ployees 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.
4. The parties stipulated , and we find , that all production and
maintenance employees employed at the Employer's Chicago, Illinois,
location , excluding office clerical employees , professional employees,
guards, and supervisors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
5. The Board has considered the objections , the Regional Director's
reports, and the exceptions thereto, and finds merit in the Petitioner's
objections . The Regional Director 's report reveals that 4 days prior to
the election the Employer mailed to its employees a pamphlet contain-
ing copies of letters purportedly written by a minister's wife to her
mother during the course of a labor dispute 5 years earlier at the plant
of Potter-Brumfield Company in Princeton, Indiana. The letters tell
the purported story of an extraordinary strike, allegedly caused by
nothing more than the refusal of the president of the local union at
the plant to sign a sick -leave form . According to the writer of the
letters, union adherents were responsible for extreme acts of violence
and sabotage, including the shooting of an infant child. On the day
before the election in the present case the Employer assembled its em-
ployees in the Company 's executive offices. There the employees were
shown a 22-minute film entitled "And Women Must Weep." This
movie, based upon the above letters, was ostensibly a true account of
the Potter-Brumfield strike . It was, however, a dramatized produc-
tion rather than a documentary film. The staging , acting, and direc-
tion were performed by persons skilled in this medium. The com-
petence of the cast and the excellence of the production resulted in a
moving story of callous union leaders, a helpless employer , unfortu-
nate victims , including , as a climax, the above -mentioned incident in-
volving the infant, violence , fear, and hatred in an unnecessary strike
for no justifiable reason . According to the employer , this incident
presented " in capsule form a nationwide condition that is eating out
the heart of American liberty."
Board records indicate that a strike did, in fact , occur at the Potter-
Brumfield plant in 1956. In connection with this strike, the Inter-
national Association of Machinists, which represented the employees,
filed unfair labor practice charges against the Company in Case No.
35-CA-728. These charges were dismissed in part and settled in part.
681-492-63-vol. 140--10
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Apparently, no charges were filed by the Company against the Union.
We also take official notice of a court injunction against picket-line
violence by the Union and interference with legitimate picketing by the
Company. Both Union and Company were subsequently adjudged
in contempt of court for violation of this injunction. Except for the
material circulated and shown by the Employer herein as part of its
antiunion campaign, there is no evidence that the excessive acts of rep-
rehensible and unlawful conduct attributed to the union in Prince-
ton, Indiana-and by association to all unions, including the Petitioner
at the Employer's Chicago, Illinois, plant-occurred as portrayed by
the actors in the picture "And Women Must Weep."
The issue before the Board is whether this type of campaign
propaganda is a legitimate exercise of the Employer's right to free
speech or an interference with the employees' right to select a union
for the purposes of collective bargaining. Historically, the Board has
been reluctant to police or censor propaganda material used by the par-
ties to persuade employees to vote for or against a union.' Exaggera-
tions, name calling and, to some extent, falsehoods, have been permitted
as normal campaign tactics.' However, the Board has set elections
aside because of misrepresentations, or other similar campaign
trickery, which involve a substantial departure from truth at a time
which prevents the other party or parties from making an effective
reply.'
The Employer's conduct in the instant case is a new and somewhat
different type of electioneering against union representation. Here
the Employer resorted not only to speeches and pamphlets, but used
the creative efforts of a motion picture company to paint a fearful
picture of what could happen to its employees if they voted the next
day for union representation. It is well established that the motion
picture is a much more powerful instrument than the printed or
spoken word in arousing emotions and influencing attitudes.4 It may
be noted that the strike so vividly dramatized had occurred 5 years
earlier in a different State, involving a different employer and a differ-
ent union. As indicated above, it is not clear to what extent the events
portrayed were the result of poetic license rather than fact. By his
showing of the film to employees so shortly before the election, the Em-
ployer foreclosed any opportunity for the Petitioner to explore these
matters or utilize the normal processes of communication and public
discussion to inform the employees of its findings concerning, and to
'General Shoe Corporation, 77 NLRB 124, 127.
2 The Gummed Products Company, 112 NLRB 1092
8 United States Gypsum Company, 130 NLRB 901, and cases cited therein
4 The profound impact of this visual medium has been documented too often by acknowl-
edged authorities to warrant repetition here See Note, "Motion Pictures and the First
Amendment," 60 Yale L.J. 696, 704-708 (1951) ; Doob, "Public Opinion and Propaganda,"
498-526 (1949) , Charters, "Motion Pictures and Youth in Public Opinion and Communi-
cations ," 497 (Berelson & Janowitz ed. 1950 ) ; Perentesis , "Effectiveness of a -lotion
Picture Trailer as Election Propaganda ," 12 Public Opinion Q. 465 ( 1948).
THE GREAT ATLANTIC & PACIFIC TEA CO., INC. 133
refute the conclusions of, this dramatic film .5 Thus, the Board is con-
fronted with a campaign device where the art of the playwright and
the acting profession are employed to give substance to the Employer's
position that all unions are irresponsible organizations and that a vote
for union representation is a vote for strikes, violence, and perhaps
even murder. Although an employer is free to state his opinion and
make his predictions, there is a thin line between a prediction and a
threat, between truth and fiction. Having viewed the film "And
Women Must Weep," we are satisfied that the Employer effectively
tarred the Petitioner with the alleged reprehensible conduct of the
Princeton union. In our opinion, the impact of this film upon the
average viewer, who could reasonably accept the characters and events
as true, was in the nature of misrepresentation which exceeded the
bounds of permissible campaign propaganda and an interference with
the election of the following day.
We shall therefore set the election aside, and we shall direct that a
new election be conducted.
[The Board set aside the election.]
[Text of Direction of Second Election omitted from publication.]
MEMBERS RODGERS and LEEDOM, dissenting :
We can see nothing in the motion picture involved herein, "And Wo-
men Must Weep," 6 which supports the conclusion of the majority that
the showing of this movie constitutes "misrepresentation" within the
meaning of existing Board precedent. Nor do we find that the movie
itself, or the timing thereof, interfered with the freedom of choice of
the employees who participated in this election. Accordingly, we
would sustain the Regional Director and certify the results of the elec-
tion herein.
5In voting to set aside the election here, Chairman McCulloch does not find the fact
that the film was shown on the eve of the election controlling.
ewe reach this conclusion after viewing the film. Unlike our colleagues, however, we
do not here undertake to write a review of the picture. We do not presume to say
whether, as a motion picture production, "And Women Must weep," Is worthy of three
stars, four bells, or any other designation of relative excellence.
The Great Atlantic & Pacific Tea Co., Inc. and Retail Clerks
International Association , Local 1435, AFL-CIO, Petitioner.
Case No. 1-RC-6627. December 13, 1962
DECISION ON REVIEW AND DIRECTION
OF THIRD ELECTION
On March 1, 19629 the Regional Director for the First Region issued
a Supplemental Decision and Certification of Results of Election i
i Not published in NLRB volumes.
140 NLRB No. 10.