S&S Corrugated Paper Machinery Co., Inc.

National Labor Relations Board - Board Decisions

May 16, 1950

89 N.L.R.B. 1363 (N.L.R.B. 1950)

In the Matter of S & S CORRUGATED PAPER MACHINERY CQ. INC, and
DISTRICT #15, INTERNATIONAL ASSOCIATION OF MACHINISTS
Case No. l-RC-1483.Decided May 16,1950
DECISION
AND
DIRECTION
On September 13, 1949, pursuant to a stipulation for certification
upon consent election executed August 25, 1949, by the Petitioner
and the Employer, an election by secret ballot was conducted under
the direction of the Regional Director for the Second Region among
the employees in the unit agreed upon by the parties. Upon the con-
clusion of the election, a tally of ballots was furnished the parties
in accordance with the Rules and Regulations of the Board.
The tally shows that of the approximately 26,3 eligible voters,
229 cast valid ballots, of which 115 were for the Petitioner, 114 against
the Petitioner, and that 29 votes were challenged.
On September 16, 1949, the Petitioner filed objections to the conduct
of the election.
On December 5, 1949, after having duly investigated the issues raised
by such objections and challenges, the Regional Director issued and
duly served upon the parties his report on challenged ballots and
objections, in which he found that the conduct of the Employer inter-
fered with, restrained, and coerced the employees in the free choice
of a bargaining agent and recommended that the election of Septem-
ber 13, 1949, be set aside and that a new election be directed. With
regard to the challenged ballots, the Petitioner has withdrawn its
challenges to 21 of the ballots. The Regional Director recommended
that the challenges to 7 of the remaining ballots be overruled.
On December 12, 1949, the Employer filed exceptions to the Regional
Director's report on challenged ballots and objections and a brief
in support thereof. No exceptions were filed by the Petitioner.
The Employer agrees with the Regional Director's recommenda-
tion that the challenge to 1 of the ballots be overruled, and does not
take issue with his finding that challenges to 2 of the ballots be sus-
89 NLRB No. 178.
1363
889227-51-vol. 89-87
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tained 1 We 2 therefore adopt the Regional Director's recommenda-
tions as to these 3 challenged ballots. We find it unnecessary at this.
time to order a hearing to resolve the issues of fact raised by the Em-
ployer's specific exceptions to the Regional Director's finding that
Edward Boch, Anthony Peropat, Hugh Campbell, James Peterson,
and Barney Bascetta are supervisors and that the challenges to their
ballots be sustained, because a conclusive election may result from.
the opening and counting of the 22 challenged ballots found valid
herein.'
The Regional Director found that two preelection speeches made
by the president of the Employer to its -employees during working
hours, although constituting "captive audience" speeches, were within
the bounds of free speech. However, he further found that the Em-
ployer, by ignoring the Petitioner's request for a like opportunity to,
address the employees after they had been subjected to a "captive
meeting," interfered with the employees' free choice of a bargaining
agent, and that such interference affected the results of the election.
The Employer has excepted to this finding, arguing, (1) that the
speeches were not made to "captive audiences," and (2) that, assum-
ing attendance at the meetings. was compulsory, the theory advanced
by the Regional Director can no longer be relied upon since the Board's
decision in the Babcock & Wilcox case 4 In that case the Board held
that Section 8 (c) of the amended Act and its legislative history make
it clear that the "compulsory audience" doctrine of the Clark Bros.
case 5 no longer exists as a basis for finding unfair labor practices,
under circumstances substantially similar to those presented in this
case. The decision in the Babcock e Wilcox case is controlling here.
On the facts revealed by the Regional Director's report in this case,
the "captive audience" aspect of the Employer's speeches, otherwise
protected by Section 8 (c) of the amended Act, cannot form the basis
for a finding that the Employer, by denying the Petitioner an equal op-
portunity to use its facilities and time, has interfered with the em-
ployees' free choice bf a bargaining representative. The Petitioner's
objections to the conduct of the election on this ground are therefore
overruled.
In addition to the above objections advanced by the Petitioner, the
Regional Director also found that the Employer has interfered with
1 On the evidence before us , we find no merit in the Employer 's contention that the
Petitioner did not make any of its challenges in good faith.
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel [Mem-
bers Houston, Reynolds , and Murdock].
3lncluding the 21 ballots, challenges to which have been withdrawn by the Petitioner,
Leedon Webbing Company, 81 NLRB 216.
4 77 NLRB 577.
5 70 NLRB 802, enfd. in N . L. R. B. v. Clark Bros . Co., Inc., 163 F. 2d 373 (C. A. 2).
S & S. CORRUGATED PAPER MACHINERY CO., INC. 1365
the conduct of the election on the basis of two separate incidents,
occurring some time before the September 13 election. With regard
to the first incident, the Regional Director's report reveals that em-
ployee Gennaro Demalderis attended two conferences held at the
Board's office in connection with this proceeding on August 16 and 18,
1949, as representative of his shop committee. After returning to the
plant from one of the conferences, Demalderis was instructed by Fore-
man Walicki "to stick close to his machine and keep his nose to the
grindstone." With regard to the second incident, the Regional Di-
rector found that Max Scheinerman, personnel director for the em-
ployer, took employee George Overland into a closed supply room
about 10 days before the election and spoke to Overland concerning
union activities. During the course of the conversation, Scheinerman
told Overland that on one occasion he had saved Overland from being
discharged. The Employer excepts to the Regional Director's find-
ings and raises issues of fact both with regard to the reprimand given
to Demalderis by Foreman Walicki and the conversation between
Scheinerman and Overland. We find it unnecessary, however, to
order a hearing for the purposes of resolving these issues. Assuming,
without deciding, that the above isolated incidents occurred as found
by the Regional Director, we do not believe that they afford a sufficient
basis to set the election aside.
We find, on the basis of the entire record in this case, that the Peti-
tioner's objections and the Regional Director's report do not raise
substantial and material issues regarding the conduct of the election.
The objections are hereby overruled.
DIRECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with S & S Corrugated Paper Ma-
chinery Co., Inc., New York City, the Regional Director for the Second
Region, shall, pursuant to National Labor Relations Board Rules and
Regulations within ten (10) days from the date of this Direction, open
and count the 22 ballots found valid herein,(' and thereafter prepare
and cause to be served upon the parties a supplemental talley of
ballots, including therein the counting of the challenged ballots.
° Walter Disken William Maszewski Frank Nemeth
Adam Karowski John Schattauer Emil Schwelmus.
Walter Gill John Behrens Bernard J. Long
Vincent Esposite Milton Green Paul Hasil,
Sam Kapit Adam Hess Charles Schmidt.
Adam Bushoskie Michael Kenny, Sr. Paul Barths
Robert Cleven Albert L'Esperance
Joseph Lore Dominick Proctto