Reeves Instrument Corp.

National Labor Relations Board - Board Decisions

May 4, 1953

104 N.L.R.B. 610 (N.L.R.B. 1953)

610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
REEVES INSTRUMENT CORPORATION and INTERNATIONAL
UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS,
C.I.O., Petitioner. Case No. 2-RC-4683. May 4, 1953
SUPPLEMENTAL DECISION , ORDER AND SECOND
DIRECTION OF ELECT16N
On October 2, 1952, pursuant to the Board's Decision and
Direction of Election,' an election by secret ballot was con-
ducted under the direction and supervision of the Regional
Director for the Second Region, among employees in the unit
heretofore found appropriate. At the conclusion of the election
a tally of ballots was furnished the parties. The tally shows
that of about 1,470 eligible voters, 1,376 cast ballots, of which
595 were for the Petitioner, 737 were against the Petitioner,
40 were challenged, and 4 were void.
On October 7, 1952, the Petitioner filed eight objections to
conduct affecting the results of the election. In accordance
with the Rules and Regulations of the Board, the Regional
Director conducted an investigation of the objections and on
January 16, 1953, issued and served on the parties his report
on objections . The Regional Director found that objections 3
through 8 were without merit and recommended that these
objections be overruled. As to objections 1 and 2, he found
that they raised substantial and material issues with respect
to the election, and thus recommended that the Board set aside
the election.'
Thereafter the Employer filed timely exceptions to the Re-
gional Director's recommendation that objections 1 and 2 be
sustained. As no exceptions have been filed to the Regional
Director's recommendations that objections 3 through 8 be
overruled, the Board accordingly adopts such recommendations
without further comment. Objection 2 and the Employer's
exceptions pertaining thereto raise issues of credibility which
would properly require a hearing for their resolution. However,
in view of their disposition of the case, a majority of the
Board finds it unnecessary to pass on objection 2.
Objection 1 alleges that a speech repeated by the Employer
to different groups of its employees on election eve interfered
with the election. The Regional Director, against the contrary
contention of the Employer, found: (1) That the speeches
were made under circumstances so as to render the Bonwit
Tellers principle applicable; and (2) that the contents of the
speeches went beyond the protection of Section 8 (c) of the
Act.
With respect to the application of the Bonwit Teller principle,
the pertinent facts are as follows:
The Employer operates two plants, one in New York City and
the other at Roosevelt Air Field in Mineola, Long Island. The
1100 NLRB No. 194.
=Because the challenges could not affect the results of the election , the Regional Director
made no report concerning the challenges.
S Bonwit Teller, Inc., 96 NLRB 608, enfd . as mod. 197 F. 2d 640 (C. A. 2).
REEVES INSTRUMENT CORPORATION 611
New York City plant has both a day and a night shift. The
Mineola plant has only a day shift. The day shift at each plant
runs from 8:00 a.m. to 6:30 p.m., while the night shift at the
New York City plant runs from 6:30 p.m. to 5:30 a. m. During
working hours at approximately 5 p.m. on October 1, 1952, the
day preceding the election, the speech adverted to was trans-
mitted by means of a wire recorder over the public address
systems at both plants, simultaneously. This same speech was
similarly repeated about 7 p.m. for the benefit of the night
shift at the New York City plant. Prior to such speeches, the
record reveals that the Petitioner on various dates distributed
leaflets which contained the following statements:
Right before the last union election, Reeves' Mr. Bonner
addressed the employees over the public address system.
[March 25, 1952, leaflet]
There will be a speech, carefully written and reviewed
by the Company's lawyers, between now and election date.
[March 31, 1952, leaflet]
As it is, we never see him. We only hear from him at
election time and then it is over the PA System or through
the medium of a rubber stamp signature at the foot of a
letter carefully prepared by all the professional ghost
writers. Some new employees who didn't have the pleasure
of hearing Mr. Bonner speak against the Union in Novem-
ber 1950 think he is a mythical person. . . . No amount of
double talk or company hocum or last minute empty
promises will change our minds to secure the Union now.
[September 29, 1952, leaflet 3 days before the election]
In addition, the Regional Director's report, as supplemented
by the Employer's brief,4 reveals that a leaflet entitled
"Rumors Won't Work" was distributed about 12 hours after the
Employer's 5 p.m. speeches and that a second leaflet entitled
"Bonner5 at Bat--No Runs--No Hits" was distributed onelec-
tion day. As the contents of such leaflets are nowhere set forth,
it is impossible to determine whether these leaflets, as alleged
by the Employer in its exceptions, were in reply to the speeches,
although the caption of the second leaflet strongly suggests that
it, at least, is a reply leaflet. Concededly, no request to address
the employees similarly was made by the Petitioner before or
after the Employer's speeches.
Upon the basis of the foregoing facts, the Regional Director
specifically found that the Employer, in effect, denied an equal
opportunity to the Petitioner to present its views by so timing
its speeches as to preclude the possibility of an effective re-
quest by the Petitioner to address the employees similarly,
4 The Employer 's brief contains allegations of fact which are not contained in the Regional
Director 's report . As these allegations merely amplify facts revealed by the Regional
Director 's investigation , and are not contradicted thereby, or challenged in any exceptions
filed by the Petitioner , we shall, for the purpose of this Decision , accept such allegations
as proved.
SBonner is the Employer 's president.
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and thereby interfered with the election within the rule of The
Hills Brothers Company6 and Foreman and Clark, Inc.' cases.
In so finding, the Regional Director held that the Petitioner's
anticipation that such a speech might be made by the Employer
was not a material factor.
In its exceptions and brief, the Employer argues that the
timing of its speeches did not, in fact, foreclose the possibility
of a subsequent effective request by the Petitioner to reply. It
further contends that, in any event, the Petitioner's knowledge
of the likelihood of a speech should be given weight in deter-
mining whether the absence of a request by the Petitioner must
be attributed to the Petitioner's lack of opportunity, by virtue
of the Employer's conduct, to make such a request. Contrary
to the' conclusions of the Regional Director, we believe that the
Employer's second contention has merit.
The Petitioner, as shown by the leaflets, anticipated several
months beforehand that a speech might be made by the Employer
just before the election. Yet, concededly, no request to address
the employees was ever made by the Petitioner, although there
was ample time before the election to make an effective request
to answer a possible speech by the Employer. Nor is there any
evidence in the record indicating that such a request would have
been futile. This fact, together with the fact that the contents
of the leaflets presuppose that a speech would be made and
attempted to rebut any effect such a speech might have on the
employees, suggests that the Petitioner voluntarily elected
such method to answer in advance. Under all the circumstances,
we believe that the Petitioner had an ample opportunity to make
a request and, having failed to do so, cannot be heard to com-
plain if the Employer may have timed his speeches so as to
have the last word.' Accordingly, in the context of the facts
of this case, we unanimously hold that the Employer's speeches
did not constitute interference with the election so as to
warrant the application of the principle enunciated in the
Bonwit Teller case.
With respect to the contents of the Employer's speech
repeated to the different shifts on election eve, the following
portions are in issue:
1. These increases , together with the cost of living in-
crease, are now part of your basic pay and, unless we are
compelled to do so by the terms of a union contract, they
will not be reduced or taken away. . . .
2. . . . To staff this new plant,' we, of course, hope and
expect to draw upon our own personnel to fill the super-
visory and executive positions which will be created by
this move. We expect to fill these positions based on
ability and experience--unless we are prevented from
doing so by inflexible clauses in the union contract.
6100 NLRB 964
7101 NLRB 40 (Chairman Herzog dissenting).
'See Snively Groves, Inc., 102 NLRB 1617; Silver Knit Hosiery Mills, Inc.. 99 NLRB 422;
cf. Foreman & Clark, Inc., supra; Hills Brothers Co., supra.
2 In the near future, the Employer plans to erect a new plant on Long island.
REEVES INSTRUMENT CORPORATION , 613
3. At Reeves, we have always had a healthy; respect for
the individual and his rights without discrimination on any
score.
As an example of our respect for the rights of in-
dividuals, Reeves' employees not only, receive all es-
tablished national holidays off with pay, but we have
recently filed a request to add ,Election Pay, ,to the list
of paid holidays. In addition, our employees get their
own religious holidays off, also with pay--or,theyget time
off with pay to attend special observances. ,
R
The Regional Director found that the first two statements
constituted implied threats that the employees were going to
lose benefits previously obtained. Unlike the Regional Director,
the Board unanimously finds no threat of-reprisal either im-
plicit or explicit in these statements, but rather a recitation
of the possible consequences flowing from selection of the
Petitioner as bargaining representative. As such, it was
privileged electioneering.10
Turning to the third portion of the Employer's speech set
forth above, however, a majority of the Board agrees with the
Regional Director that the Employer interfered with the elec-
tion by announcing to the employees that it'had filed a request
with the Wage Stabilization Board to,add election day to the
list of paid holidays. The record shows that on- August 26, 1952,
about 1 month before the election but after 't'he'-filing of the
petition herein, the Employer made such application to Wage
Stabilization Board. This application was approved on October
3, 1952, the day after the Board-directed election herein. The
Employer had waited to announce the fact of this application
to its employees until its election-eve campaign speeches on
October 1. Clearly by this announcement the Employer was
promising an economic benefit to its employees subject only
to Wage Stabilization Board approval. We do not question the
Employer's good faith and laudable objective in petitioning the
Wage Stabilization Board for permission to make election day
an extra full holiday.11 The vice in the Employer's conduct
lies in the fact that the announcement' was made on the eve of
the election. We are satisfied that the relationship` between the
announcement and the election was not "mere temporal coin-
cidence," which is not per se objectionable,12 but rather
reflected an intent to interfere with the election. The Employer's
contention that its announcement was timed to insure that the
employees voted in the national elections does not explain away
the delay of the Employer in making that announcement after its
application to the Wage Stabilization Board, or the fact that,
having waited that long, there was ample time to wait 2 days
'OSilver Knit Hosiery Mills , Inc., supra ; Cleveland Plastics . Inc., 85 NLRB 513; L. H.
Butcher Company, 81 NLRB 1184.
it Under State law, the employees were entitled to 2 hours ' leave to vote.
12 United Screw & Bolt Corp., 91 NLRB 916:
283230 0 - 54 - 40
6 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
longer and inform the employees after the Board election.13 On
the contrary, the fact that the announcement was made as part
of a speech directed towards influencing the employees against
voting for the Petitioner is indicative of its ulterior purpose.14
Accordingly, we find that by such announcement to the em-
ployees of the extra holiday the Employer interfered with the
employees' freedom of choice in the selection of a bargaining
representative, and we shall order that the election be set aside
and a new election be conducted.15
ORDER
IT IS HEREBY ORDERED that the election held on October
2, 1952, among the employees of the Reeves Instrument Cor-
poration at its plants in New York City and Mineola, New York,
be, and it hereby is, set aside.
[Text of Second Direction of Election omitted from publica-
tion.]
Members Murdock and Peterson dissenting in part only:
We cannot agree with our colleagues that the conduct of the
Employer in announcing the fact that it had applied to the Wage
Stabilization Board to add election day to its list of paid
holidays warrants setting aside the election, in the absence of
any evidence showing that such application was made by the Em-
ployer in bad faith. In any event, we believe that this conduct
by the Employer was too insubstantial to afford a sufficient
basis for setting aside the election.
As we agree with our colleagues that the application of the
Bonwit Teller principle is unwarranted here, we would direct
a hearing on the Petitioner's second objection and the Em-
ployer's exceptions pertaining thereto.
15 The national elections were still a month away Contrary to the Employer 's contentions
in its exceptions and brief, it is immaterial that the granting of the additional holiday may
have been previously determined in good faith, if it was announced for the purpose of inter-
fering with the employees' self-organization or that the additional holiday was not conditioned
on the results of the election. Hudson Hosiery Company, 72 NLRB 1434; Joy Silk Mills,
Inc., 85 NLRB 1263, at 1287, enfd . 185 F. 2d 732 (C.A.D.C.); Schwarzenbach Huber Company,
85 NLRB 1490.
Moreover, as such announcement was the first inkling that employees had of the fact that
an application to the Wage Stabilization Board was filed, the Employer's related argument
that such announcement was, at most , a reminder of past benefits has no merit . United
Screw & Bolt Corp., supra.
14As to the applicability of Section 8 (c) of the Act, it is well established that the an-
nouncement of benefits is without the protection of this section . Spengler- Loomis Mfg. Co.,
95 NLRB 243.
15 The Lewis Engineering Company, 101 NLRB 484; Shelbyville Desk Company, 72 NLRB
925; LaSalle Steel Company, 72 NLRB 411; Shreve and Company, 57 NLRB 1483.