Rainfair, Inc.

National Labor Relations Board - Board Decisions

Jun 5, 1959

123 N.L.R.B. 1519 (N.L.R.B. 1959)

RAINFAIR, INC. 1519
It is, therefore, concluded and found that on and after May 23, 1958, Respond-
ents refused to bargain with Purex by insisting, as a prerequisite to reaching agree-
ment on a contract, that Purex bargain concerning the reinstatement of seven
employees discharged by the Company for violation of the no-strike clause and
concerning the reinstatement of employees Abney and Weaver without following
the grievance and arbitration procedures of the contract.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondents are labor organizations within the meaning of Section 2(5) of
the Act.
2 All production and maintenance employees at the Company's St. Louis,
Missouri, establishment, including laboratory technicians (otherwise called labora-
tory control or quality control technicians), excluding office clerical and professional
employees, over-the-road and local truckdrivers, guards, and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act
3. At all times since August 8, 1955, Respondent Local has been and now is the
exclusive bargaining representative of all employees in the aforesaid unit within
the meaning of Section 9(a) of the Act.
4. Respondents have refused to bargain with the Company since May 23, 1958,
by insisting, as a prerequisite to reaching agreement on a contract, that the Com-
pany bargain concerning the reinstatement of seven employees discharged by the
Company for violation of the no-strike clause and concerning the reinstatement of
employees Abney and Weaver without following the grievance and arbitration
procedures of the contract; and Respondents thereby engaged in unfair labor prac-
tices in violation of Section 8(b)(3) of the Act
5. The aforesaid unfair labor practices having occurred in connection with the
operation of the Company's business as set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and substantially affect commerce within the meaning of Section 2(6) and (7)
of the Act
THE REMEDY
Having found that Respondents engaged in certain unfair labor practices, I shall
recommend that they cease and desist therefrom and that they take certain affirma-
tive action of the type conventionally ordered in such cases, which I find necessary
to remedy and to remove the effects of the unfair labor practices and to effectuate
the policies of the Act. I find, in accordance with Board policy, that it would
effectuate the policies of the Act to order both the Respondent Local and the Re-
spondent International, as agent, to cease and desist from the unfair labor practices
herein found and to take the affirmative action as recommended below. Du Quoin
Packing Company, 117 NLRB 670, 673-674.
[Recommendations omitted from publication.]
Rainfair , Inc. and Amalgamated Clothing Workers of America,
AFL-CIO , Petitioner . Case No. 32-RC-1209. June 5, 1959
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
Pursuant to a stipulation for certification upon consent election
dated December 10, 1958, an election by secret ballot was conducted
on December 23, 1958, under the direction and supervision of the
Regional Director for the Fifteenth Region, among the employees in
the unit described below. At the conclusion of the election the parties
were furnished it tally of ballots which showed that of approximately
123 NLRB No. 187.
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
115 eligible voters, 39 cast valid ballots for the Petitioner , 63 cast
valid ballots against the Petitioner , 6 cast challenged ballots, and
1 cast a void ballot. The challenged ballots were insufficient in num-
ber to affect the results of the election.
On December 31, 1958, the Petitioner filed timely objections to con-
duct affecting the results of the election . On April 6, 1959 , following
an investigation , the Regional Director issued and duly served upon
the parties his report on objections , a copy of which is attached hereto,
in which he found that the Petitioner 's objections raised a material
issue with respect to the result of the election and recommended that
the election be set aside and a new election be directed . On April 9,
1959, the Employer filed timely exceptions to the Regional Director's
report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three -member
panel [Chairman Leedom and Members Rodgers and Jenkins].
On the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain 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 following employees of the Employer, as stipulated by the
parties, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act:
All production and maintenance employees employed at the Em-
ployer's Wynne, Arkansas , plant, excluding office clerical, professional
and technical employees , watchmen , guards, and supervisors as de-
fined in the Act.
5. The Board has considered the Petitioner 's objections, the Re-
gional Director 's report, and the Employer 's exceptions thereto, and
hereby adopts the findings and recommendations of the Regional
Director , with the following modifications :
The Petitioner's objections alleged a violation of the Peerless Ply-
wood 1 rule. As indicated in the report, the balloting was scheduled
for 7 :40 to 9 a.m. on December 23 , 1958. The evening prior thereto,
shortly before quitting time, the Employer 's plant manager delivered
an election speech over the plant's public address system. On the
basis of statements obtained from certain employees, the Regional
Director concluded that the speech was partisan in nature and, as it
was made within 24 hours of the election , he found it violative of the
Peerless Plywood rule . The Employer excepted to reliance on the
' Peerless Plywood Company, 107 NLRB 427.
RAINFAIR, INC. 1521
statements of employees, contending for its version of the speech, as
set forth in the attached report. However, we need not resolve this
question of fact, for we are satisfied that even under the Employer's
version the speech constituted partisan remarks against the Union.
Thus, on its face the speech suggested employer opposition to the
holding of the election, by stating that "two out of every three girls
indicated some time ago that they did not want an election." More-
over, the Employer urged the massed employee assemblage to read
a.nd study carefully a "very important message" to be handed em-
ployees "as they clocked out." This message consisted of a letter,
apparently distributed minutes after the conclusion of the speech,
urging the employees to vote against the Union. Contrary to the
Employer, we do not believe that., in the circumstances here present,
the letter may be divorced from the speech in determining whether or
not the letter was campaign propaganda designed to influence the
employees. To hold otherwise would subvert the purpose of the
"24-hour rule."
We accordingly find that the Employer's speech, on its face, and
certainly when viewed in the light of the letter referred to therein,
was calculated to engender opposition to the Union and was there-
fore a partisan speech within the meaning of the Peerless Plywood
rule.' As the speech was delivered on company time and property
within 24 hours of the election, we sustain the objection, in accord
with the Regional Director's recommendation, and shall set aside the
election conducted on December 23, 1958, and direct that a new elec-
tion be held.
[The Board set aside the election conducted on December 23, 1958.]
[Text of Direction of Second Election omitted from publication.]
3 See Ottenheinter Bros. Mfg. Co., Inc., 109 NLRB 183, 185.
REPORT ON OBJECTIONS
Pursuant to a stipulation for certification upon consent election , which was ap-
proved by the Regional Director on December 11, 1958 , an election by secret
ballot was conducted among certain employees of the Employer on December 23,
1958, to determine whether they desired to be represented by the Petitioner for the
purpose of collective bargaining.
As indicated by the tally of ballots, copies of which were served on the parties
at the conclusion of the election , there were approximately 115 eligible voters, of
whom 39 cast valid ballots for the Petitioner , 63 cast valid ballots against the
Petitioner , 6 cast challenged ballots, and 1 cast a void ballot. The challenges were
insufficient in number to affect the results of the election.
On December 31, 1958, the Petitioner filed with the Regional Director timely
objections to the election and, simultaneously , served a copy thereof upon the
Employer. In its objections , the Petitioner alleges that:
On the afternoon of December 22, 1958, during regular working hours,
Peter Bonady , Plant Supt., violated the Peerless Plywood 24 hour rule. By
this and other activities the Employer materially interfered with the conduct
of the election and prevented a free and uncoerced choice.
508889-00-vol. 123-97
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The investigation disclosed that shortly before quitting time, quitting time being.
4:15 p.m., on the afternoon of December 22, 1958, the Employer's plant manager,.
Bonady, delivered a short speech or announcement to all employees over the plant's
public address system. ' According to eight employees who heard this speech or
announcement , Bonady stated that the election was to be conducted on the follow-
ing morning and that all employees should report to work early and go to their
work stations . The same affiants also attest , respectively, that:
(a) Bonady told us in his talk that he wanted us to vote like we did in our
last election where the biggest majority voted no . [and ] that he was con-
fident that we would have the outside group whipped by 10:00 o'clock and
they would be on their way back to Chicago.
(b) . He [Bonady ] said something to the effect that if we voted no in
the election the outsiders would be on the train back to Chicago . . . [and]
that the majority of us had already voted against having an election . .
(c) . He [Bonady ] also stated that in the Company's election a majority
of the girls had voted against the union and for us to vote with our friends
and to vote no .. . [and] that we would have the outsiders on the train by
ten o'clock for Chicago.
(d) . . . Mr. Bonady said something about the election being tomorrow
and that we should vote no . . .
(e) . . . He [Bonady ] then stated that if we voted right the union ladies
would be on their way back to Chicago by ten o'clock.
(f) . Mr. Bonady then said that we would go vote in the morning and
to remember to vote no as the majority of girls had indicated in the previous
election that they did not want a union .
(g) . He [Bonady ] also said that if we voted like we did the other day,
when . the majority of us voted against the union, the union representatives
would be on their way to Chicago by ten o 'clock tomorrow.
(h) . . . He [Bonady ] said that a majority of us voted a no vote in the
election and for us to be sure to vote no in the morning.2
Contrary to the contentions of the Petitioner , the Employer, through its attorney,s
asserts that the only remarks made by Plant Manager Bonady on the occasion in
question were as follows:
As you know the National Labor Board election will be held early tomorrow
morning, in spite of the fact that two out of three girls indicated some time
ago that they did not want an election . So come to work a little early if you
can and go right to your regular places and start work as usual . The National
Labor Board representative will come and call you when it is your turn to
vote . Mr. Hanson and I have a very important message for you. It will be
handed out to you as you clock out tonight . Please read it carefully and study
it over tonight-it's very important . Thank you.
Although afforded ample opportunity to do so , the Employer declined to submit
sworn statements to substantiate its version of the speech or announcement in
question .' While the statements given by the Petitioner 's witnesses concerning
Bonady's address may vary slightly , they appear to establish such address to be
i The election was held from 7 :40 a .m. to 9 a.m., December 23, 1958.
With respect to the "previous election" mentioned by these witnesses, the investiga-
tion discloses that, on or about November 11, 1958, the Employer passed out question-
naires to each employee and requested them to indicate whether or not they wanted an
election . However , since this conduct occurred prior to the "Woolworth cut-off day," it
cannot he utilized as a basis for setting aside the instant election . F. W. Woolworth Co..
109 NLRB 1446.
The Employer 's version of the speech in question was submitted by letter through the
Employer 's attorney, who concedes that the speech occurred on December 22. 1958.
4 In the Employer ' s version , reference is made to an "important message" to be handed
employees as they "clocked out." The investigation discloses that this "important
message" was a patently partisan letter admonishing employees to vote against the
Union, which letter is attached hereto as exhibit A. If the Employer's version of the
speech is accepted , then there appears to be some basis for considering such letter to
have been incorporated into the speech by reference . Under these circumstances, even the
Employer ' s version may establish a violation of the "24 hour rule." See Ottez, heimer
Bros . rlfg . Co., Inc ., 109 NLRB 183 . However, inasmuch as the Employer 's version is
hereinafter rejected by the Regional Director , no finding or recommendation is made in
this connection.
RAINFAIR, INC. 1523
partisan and, hence, an election speech.5 Since it is undisputed that this speech
took place within 24 hours of the election, it is apparent that the Employer violated
the Peerless Plywood rule prohibiting preelection speeches to massed assemblies of
employees on company time within 24 hours of an election.6 Accordingly, the
Regional Director recommends that the Petitioner's objection to the election be.
sustained.
CONCLUSION AND RECOMMENDATIONS
As set forth hereinabove, the Regional Director is of the opinion that the Peti-
tioner's objection raises material and substantial issues with respect to the result of
the election. The Regional Director, therefore, recommends that the election be
set aside and that a new election be directed.
5 This speech lasted approximately 3 or 4 minutes.
6 Peerless Plywood Company, 107 NLRB 427.
EXHIBIT A
RAINFAIR INC.
WYNNE, ARKANSAS,
To ALL WYNNE RAINFAIR EMPLOYEES
December 22, 1958.
DEAR FRIENDS:
At this time of the year when most people are singing the praises of Peace on
Earth, Good Will Toward Men, the union outsiders are bombarding you with letters
full of lies, deceit, insults and slurs and doing their best to stir up trouble.
It is quite evident that they have no sense of decency and the spirit of Christmas:
means nothing to them. It was the same story 3 years ago when the large majority
of our girls voted them down-they breed trouble and trouble follows them. It
would be a very grave mistake to put your future happiness and security into the
hands of trouble breeders like this.
Actually what they are trying to do is to mix you up and confuse you because
when you use your common sense it will tell you that they cannot give you any
of these things-
They cannot give you work!
They cannot give you security!
They cannot give you wages!
They cannot give you free insurance and medical care!
They cannot give you vacations and holidays with pay!
They cannot give you free Turkeys for Thanksgiving!
They cannot give you Christmas Checks!
They cannot give you a happy, friendly place to work!
ONLY THE COMPANY CAN GIVE YOU THESE BENEFITS PLUS A
GUARANTEED PROGRAM OF INCREASING EARNINGS AND BENE-
FITS AS CONDITIONS PERMIT!
In one of their letters last week these outsiders attacked and insulted the highest
official of our company through cheap slurs and downright lies. They showed-again
what they truly are-outside trouble makers who through deceitful lies and mis-
statements deliberately strive to drive a wedge between you and the company in
order to gain their own ends. They don't care one bit if they make' trouble because
they don't live here or work here. If there is trouble at Rainfair, the union has
nothing to lose because they are safe and sound far away in St. Louis or Chicago
or Little Rock or New York so it is only the people in Wynne and Cross County
who suffer because they need the jobs.
We have never made it a practice to burden you with our problems because we
know that you have enough of your own. But the union in one of their poison
letters last week lied to you when they said that huge profits were being made in
the Wynne factory. THE TRUTH IS THIS AND WE CAN FURNISH SWORN
PROOF-IN THE FIVE YEARS THAT RAINFAIR HAS HAD THIS FAC-
TORY IN WYNNE NOT ONE CENT OF PROFIT HAS BEEN MADE FROM
IT. Yet during this same time we have paid over $1,000,0 0^0 in wages alone to
the Wynne Rainfair employees.
Because of the depression the pants business has been way off and we are up
against the toughest competition in the south and these plants do not have unions.
For example, The Haggar Company with many plants throughout Texas and
Oklahoma is one of our strongest competitors. They had a union but threw it out
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
last year. If the union is so good, why was it thrown out by this leading pants
factory which is one of the largest in the south.
We have a tough job of pulling our factory out of the red; it could become im-
possible if the union was on our back continually and we were faced with long
costly strikes and union trouble like we had for more than '6 months in 1955.
Obviously we cannot go on `losing ground` and stay in business here.
Before we knew that the union trouble was starting again, here is what we were
doing not only to help the company but to help you. We have been investigating
means of modernizing and making our production more efficient so we could com-
pete against the other southern pants factories who have been beating us on price.
It means a very big investment in new equipment and methods, but we signed an
agreement to go ahead with this program right after the first of the year, especially
- when we were convinced that this program would not only help us to be more
competitive but would also increase the earnings of the people in the shop.
This union issue has forced us to postpone the Modernization Program because
we are at the crossroads here, and we must know where we stand.
It is up to you to decide whether you want to go along with Rainfair, who is will-
ing to invest thousands and thousands of dollars in your future to create jobs for
you-to improve your security-to help increase your earnings. Or whether you
want to go along with the union troublemakers who make misstatements, no re-
sponsible person would make, lies, slurs, insults and ridiculous promises that they
cannot keep and will not spend a penny to help you or your community here in
Wynne and Cross County.
We beg of you to please think over this very serious matter tonight and pray to
God, and we know that as you ask for Divine guidance on this question the answer
will be NO in your vote tomorrow.
(S) E. A. Hanson,
E. A. HANSON,
(S) P. A. Bonady,
P. A. BONADY,
RAINFAIR INC.,
Wynne, Ark.-
D.L. & S. Manufacturing Co., Inc.; J. & F. Jewelry Co ., Inc.;
Joseph Miles , Ralph Canton, and Frank Taylor, d/b/a Princely
Jewelry Co ., and Inter-Ocean Commerce Corp . and Metal,
Plastics , Miscellaneous Sales, Novelty and Production Work-
ers Union, Local 222, Independent .' Case No. 2-CA-5919.
June 8, 1959
DECISION AND ORDER
On March 18, 1959, Trial Examiner Eugene E. Dixon issued his
Intermediate Report in the above-entitled proceeding, finding that all
the Respondents except Inter-Ocean Commerce Corp. had engaged in
and were engaging in certain unfair labor practices in violation of
Section 8(a) (5) and (1) of the Act and recommending that they
cease and desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto. The
Trial Examiner also found that these Respondents had not engaged
in other unfair labor practices, and that the Respondent Inter-Ocean
Commerce Corp. had not engaged in any unfair labor practices al-
leged in the complaint and recommended that the complaint be dis-
missed with respect to such allegations. Thereafter, the General
The name of the Union appears as amended at the hearing.
123 NLRB No. 179.