Schick, Inc.

National Labor Relations Board - Board Decisions

Aug 23, 1957

118 N.L.R.B. 1160 (N.L.R.B. 1957)

1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the was an organizer for the Union. Mrs. Mitchell actively assisted her husband in
promoting interest in the Union among Respondent's employees and there is no
doubt from this record that Respondent was aware of her union activities. While
there is some evidence indicating Respondent was not pleased with the advent of
the Union, as noted above, the evidence adduced is not sufficient to establish hos-
tility on the part of Respondent. Furthermore, there is no evidence that Respondent
:made statements or engaged in conduct indicative of a resentful attitude toward
Mitchell or her husband because of their union activities.
On July 12, 1956, the "looper" on the machine which Mitchell was operating
broke and the machine stopped operating. This machine was removed to a repair
shop in the plant and Mitchell was assigned to another machine for the remainder
,of that day. At the beginning of the work shift on the following day (July 13)
Mitchell was taken to the repair shop, shown certain parts from the machine which
had been badly burned, and told that this damage resulted from her failure to oil
the machine. Mitchell asserted that she had oiled the machine. At the conclusion
-of this conversation Mitchell went to her working place. About 11:20 a. in. she
was sent to Karl Baehr's office (the office of the manager of the lingerie department).
Baehr told Mitchell that the machine had been badly damaged from lack of oil and
that he was holding her responsible for this condition and terminating her for
negligence in that she failed to oil the machine. Mitchell protested that she,had oiled
the machine. Baehr stated that if the machine had been properly oiled, it would not
have broken down and told Mitchell that he was terminating her because "you were
negligent." Baehr asked Mitchell if she wanted her pay then or wanted to come
back and get it. Mitchell said "I'll take the check now" and was told to pick it up
at the front office.
As indicated above there is a dispute herein as to whether Mitchell in fact oiled
the machine in question. However, it appears to be undisputed that the parts involved
herein were burned, that Respondent held Mitchell responsible for this burning and
discharged her, telling her that she was being discharged because she caused these
parts to burn. The General Counsel asserts that, nevertheless, Mitchell was not
responsible for this burning, that Respondent should have made a more thorough
investigation into. the matter of whether Mitchell properly oiled the machine and
that the asserted reason for the discharge was not the true reason but a pretext to
eliminate from the scene a union protagonist. The General Counsel asserts that
other employees responsible for damaging machines who were not members of
-the Union were not discharged and that Mitchell was discriminated against because
,she was an active union member. The record reveals, however, that damages in
other situations were not comparable to the damage involved herein, that the.degree
of damage involved herein was far greater, that the damage herein was more extensive
and that the cost of repair involved herein was considerably more than involved in
other situations. Assuming, however, that certain nonunion employees damaged
machines to a comparable extent and were not discharged therefor, the Trial Exam-
iner, noting the evidence adduced fails to establish a background of hostility toward
Mitchell because of her union activities or even to establish a background of hostility
to union activities in general, believes and finds that the evidence adduced herein does
not establish a pretext situation.
Furthermore, upon the basis of the record herein, it appears unlikely that the
machine in question would have burned as it did if it had been properly oiled.
[Recommendations omitted from publication.]
Schick, Incorporated and District No. 98, International Associa-
tion of Machinists, AFL-CIO, Petitioner. Canes Nos. I-RC-3251
and 4-RC-3252. August 23, 1957
DECISION AND CERTIFICATION OF RESULTS
OF ELECTION
Pursuant to a stipulation for certification upon consent election, an
election was conducted on March 6, 1957, under the direction and
supervision of the Regional Director for the Fourth Region, among
118 NLRB No. 152.
SCHICK, INCORPORATED 1161
certain employees of the Employer. At the close of the election, a
tally of ballots was furnished each of the parties in accordance with
the Board's Rules and Regulations. The tally shows that 204 valid
ballots were cast for the Petitioner, 436 valid ballots were cast against
the Petitioner, no ballots were challenged, and 1 ballot was declared
void.
On March 11, 1957, the Petitioner filed timely objections to the
election. On April 9, 1957, the Regional Director, after investigation,
issued his report on the objections, recommending that certain ob-
jections be sustained. On April 16,1957, the Employer filed exceptions
to the Regional Director's report.
The Board has considered the objections, the Regional Director's
report, the exceptions, and the entire record in the case, and finds:'
1. The Employer is engaged in commerce within the meaning of
Section 2 (6) of the Act.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain 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 constitute a unit ap-
propriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act: All production and maintenance
employees at its Lancaster, Pennsylvania, plant, including floor inspec-
tors, gauge control inspectors, instructors, group leaders, senior group
leader-toolroom, chief electrician, setup men, supply clerks-main-
tenance, supply clerks-storekeepers, shipping clerks, and receiving
clerks, but excluding check inspectors, work dispatchers, timekeepers,.
production schedulers, posting clerks, work center clerks, layout in-
spectors, temporary employees, office clerical employees, technical
employees, professional employees, guards, and supervisors as defined
in the Act.
5. It should be noted at the outset that the facts found by the Re-
gional Director with respect to the objections are not in dispute.
With respect to objection No. 1, undisputed evidence reveals the
following : Under instructions from top management, starting about
2 weeks before the election and continuing until the day before the
election, the Employer's foremen, who are concededly supervisors,.
talked to almost all of the approximately 700 employees in the unit
about the election. These talks took place during working hours at the
work stations of the employees. In substance, the foremen told the
employees that if the Petitioner won the election, the Blue Book,,
which contains the Employer's personnel policies and practices, em-
1 In the absence of any exception thereto, we adopt, pro forma, the Regional Director's
recommendation that Petitioner ' s objection No. 4 be dismissed.
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee benefits, and working conditions, would be out, or the Blue
Book would be taken away, or the employees would lose the Blue Book,
-or the employees would lose Blue Book benefits, or the Employer and
Petitioner would start bargaining "from scratch" and not from the
Blue Book. However, these statements were coupled in most instances
with the further statements that as a result of negotiations the em-
ployees could obtain more than, less than, or the same as, Blue Book
benefits, and that any future benefits would come only as a result of
bargaining. No proof was adduced that in any instance an employee
was told about possible loss of benefits without being told, instanter,
,of a possible contrary result. Moreover, no evidence was adduced that
the foremen told employees that the Blue Book benefits would be
eliminated immediately after the election in the event the Petitioner
won or prior to bargaining. Rather, it is to be noted that whenever
an employee asked a foreman during these talks whether a specific
benefit listed in the Blue Book would be abolished immediately follow-
ing a Petitioner victory, the foreman responded that if the Petitioner
won, Blue Book benefits would be continued until a labor agreement
was negotiated. Shortly after these talks started the Petitioner by
telegram protested these statements, and in response the Employer
telegraphed the Petitioner a reiteration that if the plant were union-
ized bargaining would not begin with the Blue Book but would start
"from scratch." This was followed by a Petitioner leaflet distributed
to the employees which asserted that the Employer was attempting to
make the employees believe that they would lose their Blue Book
benefits immediately after the election, and in substance, challenged
the Employer to deny this. The Employer made no answer to the
Petitioner's assertion, but did make a denial in those cases where em-
ployees directed specific inquiries to foremen in this connection.
The two issues raised by objection No. 1 are (1) whether the fore-
men's statements in their talks to the employees about losing Blue Book
benefits and starting "from scratch" constituted threats of reprisal
which prevented a free election; and (2) whether such individual talks
-to employees at their work stations constituted interference with a
free election.
With respect to the first issue, we find that there were no threats of
reprisal. When the statements by the foremen are considered together
in context, it is clear that the foremen did not tell the employees that
they would lose Blue Book benefits immediately after the election in
the event the Petitioner won, or prior to bargaining. Rather, the
foremen told the employees that the Employer would start bargaining
"from scratch." This was a statement which the Employer had a
• SCHICK, INCORPORATED 1163
right to make for it was merely an expression of the Employer's legal
position?
The foremen's statements were coupled invariably with the further
statement that as a result of negotiations the employees could obtain
more than, less than, or the same as, Blue Book benefits. Finally,
whenever an employee asked whether Blue Book benefits would be
abolished immediately following a Petitioner victory, he was told spe-
cifically that if the Petitioner won, Blue Book benefits would be con-
tinued until a labor agreement was negotiated. In such circumstances,
we find that the foremen's statements were not threats to discontinue
existing employee benefits prior to bargaining if the Petitioner were
certified as bargaining agent, and therefore did not interfere with a
free election.3 Because of our determination on this issue of objection
No. 1, we further find that the Petitioner's leaflet in which it stated
that the Employer was attempting to make the employees believe that
they would lose their benefits, was a misrepresentation of the facts
and of the Employer's position. Accordingly, we further find, as con-
tended by the Employer, that the Employer was under no obligation
to answer the Petitioner's misrepresentation in its leaflet or to accept
its challenge.
With respect to the second issue raised by objection No. 1, we find
that the Employer, by employing the technique of having its foremen
conduct individual talks with virtually all of the employees in the
unit at their work stations during working hours for the purpose of
urging them to reject the Petitioner in the election, did not engage in
conduct which interfered with a free election 4
With respect to objections Nos. 2 and 3, the undisputed evidence
shows: (1) Following the Petitioner's protest telegram and the Em-
ployer's reply telegram described above, the Employer posted approxi-
mately a dozen copies of its reply telegram on bulletin boards through-
out the plant; (2) these posted copies of the reply telegram reiterated
in effect the statements that the foremen had been making to the em-
ployees individually, as set forth above; (3) there then followed the
Petitioner's leaflet described above which, in substance, challenged the
Employer to deny what we have found to be a misrepresentation of the
Employer's position; and (4) the Employer's disregard of such chal-
lenge except in those cases of specific inquiry by employees, and its
reiteration in a letter to all employees of its previously stated position
that it would not start bargaining with the Blue Book but "from
2 See Intermountain Equipment Company v. N. L. R. B., 239 F. 2d 480 (C. A. 9), setting
aside 114 NLRB 1371; N. L. R. B. v. Nash-Finch Company, 211 F. 2d 622, setting aside 103
NLRB 1695 ; Esquire, Inc., 107 NLRB 1238 ; F. W. Woolworth Co., 111 NLRB 93; La Pointe
Machine Tool Company, 113 NLRB 171.
8 Cf. Rein Company, 111 NLRB 537.
4 See Mall Tool Company, 112 NLRB 1313. Of. Hook Drugs, Inc., 117 NLRB 846.
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scratch." For the reasons set forth above with respect to the first
issue under objection No. 1, we find that these similar supplementary
statements by the Employer did not constitute threats to discontinue-
existing employee benefits prior to bargaining if the Petitioner won
the election, and that such statements therefore did not constitute in-
terference with a free election.
In view of the foregoing, we overrule the Petitioner's objections,.
and we shall certify the results of the election.
[The Board certified that a majority of the valid ballots was not
cast for District No. 98, International Association of Machinists,.
AFL-CIO, and that said organization is not the exclusive representa-
tive of the Employer's employees in the unit found appropriate.]
MEMBERS MURDOCK and BEAN took no part in the consideration of
the above Decision and Certification of Results of Election.
Charleston Transit Company and Amalgamated Association of
Street, Electric Railway and Motor Coach Employees of
America, AFL-CIO.' Case No. 9-CA-623. August 26,1957
SUPPLEMENTAL DECISION AND ORDER
On November 30, 1953, Trial Examiner Sidney S. Asher, Jr., issued
his Intermediate Report in this proceeding finding that Respondent,.
Charleston Transit Company, was not engaged in commerce, or in
activities affecting commerce within the meaning of the Act, and
recommended that the complaint in this matter be dismissed. There-
after, the General Counsel, the Respondent, and the Union filed
exceptions to the Intermediate Report and supporting briefs.
On March 30, 1955, the Board majority issued its Decision and
Order herein finding that the Respondent's operations did not satisfy
the minimum jurisdictional requirements prescribed in the Greenwich
Gas case 2 for local public utilities and transit systems, and that it
would, therefore, not effectuate the policies of the Act to assert juris
-diction over the Respondent. The Board majority, accordingly, dis-
missed the complaint.' Thereafter, a motion for rehearing and
reconsideration filed on behalf of the Union was denied by the Board.4
Subsequently, the case was considered by the United States Court of
Appeals for the District of Columbia upon the Union's petition for
i Herein called Union.
2 The Greenwich Gas Company and Fuels, Incorporated , 110 NLRB 564 . The Board
there determined to assert jurisdiction over local public utility and transit systems affecting
commerce only when their gross volume of business was $3,000,000 or more per annum.
a 111 NLRB 1214 ( Member Murdock dissenting).
& Members Murdock and Peterson dissented.
118 NLRB No. 160.