Plymouth Shoe Co.

National Labor Relations Board - Board Decisions

Apr 15, 1970

182 N.L.R.B. 1 (N.L.R.B. 1970)

PLYMOUTH SHOE COMPANY
Plymouth Shoe Company and United Shoe Workers of
America, AFL-CIO-CLC, Petitioner. Case
1-RC-10668
April 15, 1970
DECISION, ORDER, AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
Pursuant to a Stipulation for Certification Upon Con-
sent Election, an election by secret ballot was conducted
under the direction and supervision of the Regional
Director for Region 1 on September 4, 1969, among
the employees in the stipulated unit described below.
After the election, the parties were furnished with a
tally of ballots which showed that of approximately
451 eligible voters, 370 cast ballots, of which 138 were
for the United Shoe Workers of America,
AFL-CIO-CLC, the Petitioner, 225 votes were for the
Plymouth Shoe Company Employees' Benefit Associa-
tion , the Intervenor , 5 votes were cast against the partici-
pating labor organizations, and 2 ballots were challenged.
Thereafter, the Petitioner filed timely objections to con-
duct affecting the results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations , Series 8 , as amended,
the Regional Director conducted an investigation, and
thereafter on October 31, 1969, issued and duly served
upon the parties his report on objections, in which
he recommended that the objections be overruled, and
that the Intervenor be certified as the collective- bargain-
ing representative of the employees in the unit found
appropriate below. Thereafter, the Petitioner filed excep-
tions to the Regional Director's report and the Employer
filed a brief in support of the Regional Director's report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Board
has delegated its powers in connection with this case
to a three-member panel.
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 and Intervenor are labor organiza-
tions claiming to represent certain employees of the
Employer.
3. A question affecting commerce exists concerning
the representation of certain employees of the Employer
within the meaning of Sections 9(c) (1) and 2(6) and
(7) of the Act.
4. In agreement with the stipulation of the parties,
we find that the following employees of the Employer
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of
the Act.
All employees engaged in the manufacture of shoes
directly, including maintenance crew and mechanics,
watchmen, porters, shipping room employees, and stock
clerks, but excluding all supervisors, office and adminis-
1
trative employees, salesmen, and professional employ-
ees.
5. The Petitioner's basic objections relate to a series
of five letters which the Employer distributed to its
employees during the critical period prior to the election.'
The letters on August 1, 2, and 4, 1969, were concerned
with a pending merger between the incumbent Intervenor
and the Petitioner, affiliated with the AFL-CIO. In all
three letters the Employer indicated strong opposition
to the merger of the Intervenor with the Petitioner
and urged its employees to actively reject such merger.
The letter of August 1 read in pertinent part:
I am writing to you because of my deep concern
for our future together at Plymouth Shoe Company.
The fact is that you already have the full strength
which comes from joining together in your Benefit
Association. You can get nothing from the CIO
except the obligation of paying their high dues,
fines , and assessments. Unfortunately, 1,850 shoe
workers in New England have lost their jobs this
year, where this CIO Union was their representa-
tive. You certainly do not need this kind of leader-
ship.
My worry is not that you can't tell good advice
from bad advice but that when you belong to this
CIO Union you no longer will have the right to
choose. You must obey these outside CIO Dictators
or you will be fined, expelled from the union,
and will lose your job.
If you feel, as I do, that your freedom and
your job is worth fighting for, you must stop the
CIO takeover ....
The letter of August 2 set forth numerous reasons
why the employees should vote "No" at the union
meeting scheduled for this purpose and, in addition,
tied the merger vote with the Board-conducted election
which was scheduled for September 4 at which it also
urged the employees express their opposition by voting
against the Petitioner. The letter of August 4 was in
a similar vein and stated inter alia:
You are entitled to make the C. I. O. union
explain to you why it is that CONNOLLY SHOE
COMPANY - which they organized - has been
out of business for over two years. Your company
took over the Connolly production and today with-
out the C. I. O. union it represents a substantial
part of your plant production. What happens next?
You should ask the C. I. O. union what it is
now doing for those ex-Connolly employees whose
jobs you now have.
You should also ask the C. I. O. how many
paychecks it is giving to the employees who lost
their jobs when the following plants went out of
' The Petitioner's exceptions to the Regional Director's overruling
Objection 1, relating to alleged inadequacies in the Excelsior list, in
our opinion , raise no material or substantial issues of fact or law
which would warrant reversal of the Regional Director's ultimate findings
and recommendations In the absence of exceptions thereto, we adopt,
pro forma, the Regional Director's recommendation that Objections
4, 5, and 6 be overruled
182 NLRB No. 1
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business after the C. I. O. union got in :...[approxi-
mately 11 plants are listed]
The letter also urged its employees to vote "NO" in
"a Government-supervised secret ballot election on Sep-
tember 4." The above letters were signed by officials
of the Employer.
In the letter of August 8 the Employer, referring
to a merger vote, thanked the employees for voting
"against invasion by the C.I.O." and for "a vote of
confidence in your company's management." The letter
then indicated:
So that we in management can have the opportu-
nity to show you our appreciation for your good
judgment, we ask that you vote against the
C.I.O. in the upcoming National Labor Relations
Board election on September 4th. We can then
sit down together and negotiate a new contract
of which we can all be proud.
Four of the Employer's officials signed the above letter.
Finally, on August 28, less than a week before the
election, the Employer accused the Petitioner of issuing
misleading statements about the requirements of becom-
ing a member of the Petitioner and the obligations which
it imposes upon its members. The letter concluded:
"Since the C. I. O. union has lied to you about these
matters, you should ask yourself, `What else has the
union lied about?' "
The Regional Director found that the above letters
consisted merely of expressions of views, arguments,
and opinions and were not, therefore, objectionable.
Moreover, the Regional Director found that the letters
were not distributed at a time which prevented an effec-
tive reply. Accordingly, he found that the letters did
not have a significant impact upon the election and
that the employees were not precluded from exercising
a free choice in the September 4 election and recommend-
ed that the objections resulting thereto be overruled.
We do not agree.
We recognize that in an election campaign an employer
may express a preference between two competing
unions. However, we have long held that such preference
is not permissible when it is accompanied with implied
promises of benefit if the favored union wins the election,
and by the conveyance of the employer's belief, even
though sincere, that the selection of the other union
will or may result in the closing of the plant or have
an adverse effect upon the jobs of its employees.2 As
the Supreme Court pointed out in the recent N.L.R.B.
v. Gissel Packing Co. case, 395 U.S. 575, 618, an employ-
er is not only free to communicate to its employees
any of its views any of its views about a particular
union so long as the communications do not contain
a threat of reprisal or force or promise of benefit,
but is also free to make predictions as to the precise
effects it believes the employees choice of a particular
union will have on the operations of the company.
In the latter situation, however, the Court stressed the
prediction must be "carefully phrased on the basis of
objective fact to convey an employer's belief as to
demonstrably probable consequences beyond his control
or to convey a management decision already arrived
at to close the plant in the case of unionization." In
our opinion the series of letters, hereinabove described,
taken together, do not meet these tests. Considered
as a whole, we are of the opinion they reasonably
tended to convey to the employees the belief or impres-
sion that employees would gain nothing in the way
of improved benefits by selection of the Petitioner and
that such choice would have an adverse effect upon
the employees' jobs in that it could lead the Employer
to close its plant. That these suggested adverse conse-
quences were not predicated on matters entirely beyond
the Employer's control was made reasonably clear in
the assurances given in the letters that selection of
the Intervenor in the forthcoming election would result
in a favorable contract and would in other ways be
beneficial to the employees.
Thus, we conclude that the probable effect of the
Employer's preelection letters was to raise unjustified
fears that if the Petitioner was selected the employees'
jobs would be adversely affected, but that if the employ-
ees choose the Intervenor they would receive special
benefits.3 Accordingly, we find that the impact of the
series of the Employer's letters beginning around August
1 and continuing up until less than a week before the
election interfered with the free choice of the employees
and made a fair election impossible. We shall, therefore,
set the election aside and direct that a new election
be held.
ORDER
IT IS HEREBY ordered that the election previously
conducted herein on September 4, '1969, be, and it
hereby is, set aside.
[Direction of Second Election4 omitted from publication.]
2 Cf , e g , Rold Gold of California, 123 NLRB 285, 286, Westinghouse
Electric Co , 110 NLRB 332, Heinty Mfg. Co , 103 NLRB 768, 769.
See N L.R B v Pearson Co , 420 F.2d 695 (C A 1) (1969), enfg
173 NLRB No 228
" In order to assure that all eligible voters may have the opportunity
to be informed of the issues in the exercise of their statutory right
to vote, all parties to the election should have access to a list of
voters and their addresses which may be used to communicate with
them Excelsior Underwear Inc , 156 NLRB 1236; N.L R B v Wyman-
Gordon Company, 394 U S 759. Accordingly, it is hereby directed
that an election eligibility list, containing the names and addresses
of all the eligible voters, must be filed by the Employer with the
Regional Director for Region I within 7 days after the date of issuance
of the Notice of Second Election by the Regional Director The Regional
Director shall make the list available to all parties to the election
No extension of time to file this list shall be granted by the Regional
Director except in extraordinary circumstances Failure to comply with
this requirement shall be grounds for setting aside the election whenever
proper objections are filed