Shirks Motor Express Corp.

National Labor Relations Board - Board Decisions

Aug 16, 1955

113 N.L.R.B. 753 (N.L.R.B. 1955)

SHIRKS MOTOR EXPRESS CORP. 1 753
Shirks , Motor Express Corp . and Boyce Motor Lines, Inc. and
Local 14, Office Employees International Union , AFL, Peti-
tioner. Case No. .4-RC-2632. , August 16, 1955
DECISION, ORDER, AND DIRECTION OF SECOND
ELECTION
Pursuant to a stipulation` for certification upon consent election,
executed March 15"1955 1 , an election by, secret ballot was conducted on
March 30, 1955, under the direction and supervision'of the Regional
Director of 'the Fourth Region, among the employees in the stipulated
unit. Following the election, a tally of ballots was furnished the
parties. The tally shows that of approximately 26 eligible voters, 26
cast valid ballots, of which 8 were for the Petitioner and 18 were
against it; no ballots were void or challenged. '
Thereafter, Petitioner filed timely objections to conduct affecting
the results of the election. The Regional Director investigated the
,,natter, and, on May 17, 1955, issued and duly served upon the parties
his report on'objections in which he recommended 'that the objections
be sustained and another election be ordered. The Employer filed
timely exceptions to the report.
The Board has considered the objections; the report on objections,
the Employer's exceptions, and the entire record in this case, and
hereby makes the following findings :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The Petitioner is a labor organization claiming to represent cer-
tain employees 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 constitute a unit ap-
propriate'for,purposes of collective bargaining within the' meaning of
Section 9 (b) of the Act:
All office clerical employees employed by the Employer at its ter-
ininal at Luzerne and Whitaker Streets, Philadelphia, Pennsylvania,
excluding the confidential secretary to the terminal manager, the
switchboard operator, office manager, dispatchers, and all supervisors
as defined in the Act. `
5. There is no substantial disagreement as to the facts bearing on
the Petitioner's objections. Following the stipulation for certification
upon consent election entered into by the Employer and Petitioner,
Local 107, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, AFL, which represents the
Employer's truckdrivers, helpers, and platform. men,, sought to inter-
113 NLRB No. 76.
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vene. Permission was denied because the application cards submitted
postdated the signing of the stipulation. Thereupon, the Teamsters
proceeded to campaign for a "no union" vote in the election, sched-
uled for March 30, 1955, from 4: 45 to 5: 15 p. in.
Within the 24-hour period prior to the election, business agents of
Local 107 requested and received permission from the Employer to
speak to the only three employees on the night shift. The agents urged
these employees to vote "no union" and promised that, should Peti-
tioner lose the election, the Teamsters would be recognized as their
bargaining agent by the following week. Thereafter, on the day of
the election, Petitioner, with the Employer's permission, addressed an
assembled group of substantially all the approximately 26 eligible
voters.
The Petitioner failed to receive a majority of the votes cast in the
election and. proceeded to file objections alleging, inter alia,l, that the
Employer violated the Peerless Plywood 2 rule by permitting Local
107 to speak to employees assembled on company time during the 24
hours preceding the election. The Employer contends that the Peti-
tioner cannot invoke the Peerless Plywood rule in view of its own
conduct within the proscribed period.
In support of its position, the Employer relies primarily on Camp
Milling Company, Inc s However, we, like the Regional Director, do
not find that case apposite on the facts.. There, the Employer ad-
dressed its employees within 24 hours of the election and later ex-
pressly permitted the Union to do the same. As the Employer was
.at fault in both instances, the Board refused to permit it to take ad-
vantage of its own misconduct in urging a violation of Peerless Ply-
wood as grounds for setting aside the election won by the Union.
In the instant case, the Petitioner was in no way responsible for
the Employer's misconduct on which the objection is based. We are
mindful of the fact that the Petitioner subsequently induced the
Employer to engage in further similar misconduct by granting it an
equal opportunity to talk to the employees during the proscribed
period. and then availed itself of that opportunity. Although we do
not condone this conduct, it does not, in our opinion, constitute suffi-
cient basis for estopping the Petitioner from properly objecting to
the Employer's original misconduct. Nor does it warrant a relaxation
of the Peerless Plywood rule, designed to assure employees the opti-
mum freedom of choice in representation proceedings. In setting
aside an election. in Wilmington Casting Company,4 the Board stated :
IIn view of our determination herein, we need not rule on other objections alleged by
the Petitioner. ,
2 Peerless Plywood Company, 107 NLRB 427.
8109 NLRB 471.
* 110 NLRB 2114. See also, Scharco Manufacturing Corp., 110 NLRB 2112; Carolina
Poultry Parms, Inc., 104 NLRB 255.
MULTI-HYDROMATIC WELDING AND MANUFACTURING -co. 755•
• interference with an election, by one -party does' not license,
interference-by the, other., - It is impossible to•gauge w,ith,mathe-,
matical precision the extent to which improper pressures on the'
employees by one party have been offset' by improper pressures
by the other party. It would be unrealistic to assume that wlhefe;
as- here; the opposing pressures, consist of -the- same, -kind of mis-
conduct, they have canceled each other 'out and the employees'
freedom of choice has,been left unimpaired.
As the Employer permitted Local 107 to talk to the assembled night
shift employees on company time aiid' property within 24 hours of
the instant election, in violation of the Peerless Plywood rule, we, in
agreement with the Regional Director's recommendations, sustain the:
Petitioner's objections to the' election on that ground.'
Accordingly, we shall 'set aside the election of March 30, 1955, and'
direct that .a new election be held.
[The Board set aside the election held March 30,1955.]
[Text of Direction of Second Election omitted from publication.];,
CHAIRMAN FARMER and MEMBER RODGERS took no part in the con=
sideration of the above Decision, Order, and Direction of Second
Election.
S, We find,no merit in the Employer 's contention that Peerless Plywood is inapplicable'
because the Teamsters is not a pasty to this proceeding or because the Teamsters' speech
to the night shift workers was not delivered to a massed assembly of employees within
the meaning of that case . Rxblet Welding and Mfg. Corp, 112 NLRB 712; The Great
Atlantic & Pacific Tea Company, 111 NLRB 623
Multi-Hydromatic Welding and Manufacturing Company and'
Frederick E. Cronk
Local 155, International Union , United Automobile, Aircraft and
Agricultural Implement Workers of America (UAW-CIO) and'
Frederick E. Cronk. Cases Nos. 7-CA-909 and 7-CB-154. August
17,1955
DECISION AND ORDER
On April 30, 1954, Trial Examiner James A. Shaw issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the General Counsel filed
exceptions to the Intermediate Report.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
113 NLRB No. 78.