The Cross Co.

National Labor Relations Board - Board Decisions

Feb 24, 1954

107 N.L.R.B. 1267 (N.L.R.B. 1954)

THE CROSS COMPANY 1267
San Diego, and the obvious relationship between the housing
of such personnel and the functioning of this important naval
operating base, I cannot see how this Board can do anything
but agree that such a project has a substantial effect on the
national defense. An industrial dispute resulting in a work
stoppage by the maintenance workers of the Employer who
are here petitioned for, could result in no heat for tenants, no
running water or toilets, etc., and the creation of conditions
inimical to the morale and efficiency of military and civilian
employees which Congress sought to foster by the establishment
of such housing.
I have recently discussed at some length in my Taichert's
Inc., 10 dissent the considerations which underlay the adoption
of the national defense concept of the Board's jurisdictional
plan and the liberal approach in the application of this concept
which the Board had theretofore taken and which I regard as
the proper one. I still fail to understand a narrow grudging
use of the Board's power in this field. I cannot but believe
that in the area of enterprises related to the national defense
Congress must have intended that the Board exercise its full
power. Accordingly, under all the circumstances, Iwould assert
jurisdiction over this Employer.
10 107 NLRB 779.
THE CROSS COMPANY and LOCAL 155, UNITED AUTOMO-
BILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, AND INTERNATIONAL UNION,
UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA, CIO, Petitioner.
Case No. 7-RC-2125. February 24, 1954
SUPPLEMENTAL DECISION, ORDER, AND SECOND
DIRECTION OF ELECTION
On June 4, 1953, pursuant to a Decision and Direction of
Election issued by the Board on May 18, 1953,1 an election by
secret ballot was conducted in this proceeding under the direc-
tion and supervision of the Regional Director for the Seventh
Region, among employees in the unit found to be appropriate.
The tally of ballots furnished the parties after the election
shows that, of approximately 197 eligible voters, 195 cast
valid ballots, of which 87 were cast for the Petitioner, 108
were cast against the Petitioner, and 1 ballot was challenged.
On June 9, 1953, the Petitioner filed timely objections to
conduct affecting the results of the election. Pursuant to
Board Rules and Regulations, the Regional Director conducted
an investigation of the objections, and on August 5, 1953,
INot reported in printed volumes of Board Decisions and Orders.
107 NLRB No. 276.
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issued and duly served upon the parties his report on objec-
tions. In his report, the Regional Director found that the Peti-
tioner's objections raised substantial and material issues
with respect to the election and recommended that the elec-
tion be set aside. On August 14, 1953, the Employer filed
timely exceptions to the report on objections, requesting, in
substance, that the Board overrule the Regional Director and
certify the results of the election, or alternatively, that the
Board direct the holding of a hearing on the objections and
the exceptions which raised substantial and material issues.
The central issue raised by the objections is whether the
Employer by making certain election speeches on company
time and property to the assembled employees shortly before
the scheduled elections interfered with the proper conduct of
the elections. It is undisputed that the last of the several
speeches he delivered was made to the employees of the third
plant involved only 21 hours before the scheduled balloting
of the employees located there.
In view of the rule respecting preelection speeches an-
nounced by the Board in its recent decision in the Peerless
Plywood case, ' we find it unnecessary to consider certain
other contentions raised by the parties.
The election rule established in Peerless Plywood is
that the Board will set aside an election where it is shown
that election speeches have been made to the assembled
employees on company time less than 24 hours before the
balloting begins. Because the Employer so addressed the
employees of the third plant in this case, we find that that
rule applies. We shall, therefore, set aside the results of the
election and order a new one.
Our dissenting colleague disagrees with our application of
the Peerless Plywood rule, asserting that the "facts are dis-
tinguishable" and that the requirements of Bonwit Teller
were in this case "wholly satisfied." For clarity, we wish
to point out that a violation of Peerless Plywood is estab-
lished in any case where, as here, a preelection speech is
made to a massed assemblage of employees on company
time less than 24 hours before an election. Since onwit
Teller has been overruled by a majority of the Board, a vi-
olation of Peerless Plywood does not presuppose as a further
requirement a violation of Bonwit Teller. The Peerless
Plywood rule exists wholly apart from and has replaced
Bonwit Teller in representation cases.
Pursuing his dissenting position in Peerless Plywood, our
colleague believes that this case demonstrates the unsoundness
of our majority view and the fair and "orderly operation"
of the Bonwit Teller rule.
We fail to see how by any standards the facts in this case
demonstrate the orderly operation of Bonwit Teller. To us,
2Peerless Plywood Company, 107 NLRB 427 (Member Murdock dissenting in part
and concurring in part).
THE CROSS COMPANY' 1269
this case demonstrated the uncertainty and confusion, as well
as the endless jockeying, which always characterized its
administration. There arises as always the uncertainty as
to whether Bonwit Teller would have been violated. Our
colleague, relying on Board precedent (the Woolworth case)
says that the requirements of Ponwit Teller were "fully
satisfied," but the Regional Director, who investigated the
objections, and relying on another Board precedent (Crown
Corlc), found that Bonwit Teller had been violated. Contrary
to our colleague, the Regional Director was convinced that
the Union had not been accorded "the equal opportunity"
which Bonwit Teller purported to require. Thus this case
illustrates nothing so much as administrative difficulty and
confusion which attended Bonwit Teller.
In contrast, our new election rule is not subject to varying
interpretations. There can be no disagreement as to where
it does or does not apply and any party who wishes to comply
need have no fear of unwittingly running afoul of it.
In this case, we recognize that the Employer's speech
antedated the decision in Peerless Plywood, and therefore we
do not, of course, attach to the Employer's conduct any
intent to violate our new rule. However, the Regional Di-
rector recommended that the election be set aside under
Bonwit Teller, and while we find it unnecessary to determine
whether the prior rule was violated, we believe that the
freedom of choice guaranteed to employees will be better
served by setting aside this election and holding a new election
under our new rule. The resulting inconvenience to the Em-
ployer is overbalanced by the interests of the employees in
expressing their choice in a poll entirely free of interference
from any source.
IThe Board set aside the election held on June 4, 1953.]
[Text of Second Direction of Election omitted from publica-
tion.]
Member Peterson , concurring:
I concur in the decision of Chairman Farmer and Member
Rodgers to set this election aside because the Employer
made a preelection speech to employees on company time less
than 24 hours before the election, contrary to the rule estab-
lished by the Board in Peerless Plywood. I see no reason why
the rule should not be applied here despite the fact that
the election preceded the adoption of the rule. Because the
Bonwit Teller doctrine has been overruled by the Board, I
deem it unnecessary to consider whether the same result
would or would not have been reached by the application
of that rule.
Member Murdock , dissenting:
127 0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although I have already in the peerless Plywood 3 case
definitively set forth my dissenting view respecting the
24-hour rule there promulgated by the Board majority, I
am now constrained to dissent from the application of that
rule to this case. The facts here are distinguishable from
those in Peerless Plywood, where I concurred in the conclusion
of the majority to set aside the election, solely because of
the Bonwit-Teller doctrine. Here I would find that the re-
quirements of the Bonwit-Teller doctrine, which was the ap-
plicable law when the events took place, were wholly sat-
isfied, and that the Employer's preelection speeches, being
concededly noncoercive, did not interfere with the election.
My colleagues, however, have set aside the election by
retroactively applying the Peerless Plywood doctrine because
one of the Employer' s speeches wag made to certain of the
employees 21 hours before the first period for voting was
scheduled, notwithstanding the fact that the Employer timely
stated its willingness for the Petitioner to make a reply
speech to the employees, and notwithstanding the fact that
the Employer's conduct was not violative of any Board rule
when the events occurred.
The instant case thus presents an early.and graphic illus-
tration of the point made in my separate opinions in the
Livingston Shirt 4 and Peerless Plywood cases that the Bonwit-
Teller doctrine , in design as in actual operation, does not
curb free speech or in any way conflict with the speech
guarantees in Section 8 (c) of the Act, 5 the very basis as-
serted by Chairman Farmer and Member Rodgers for over-
turning that doctrine.6 Rather, it is the new rule, i.e., that
no speeches shall be made on company time within 24 hours
of the election, instituted by the Board majority in place of
Bonwit-Teller, that patently operates as a gag upon free
speech. The new 24-hour rule prohibits a speech by the
employer even though he is willing to permit the union to have
the same opportunity to speak , and requires setting elections
aside even if both do speak to the employees.
As the facts show, the present case , typical of many others,
portrays in broad outline the orderly operation of the Bonwit-
Teller doctrine. Preceding the scheduled election by about 2
days, the Employer made on company time and property the
first of 3 speeches planned for delivery respectively to
,the employees of each of its 3 plants. The Petitioner, after
3 Peerless Plywood Company, supra.
4The Livingston Shirt Corporation. 107 NLRB 400.
5 As noted in my dissent in Livingston Shirt, the United States Court of Appeals for the
Second Circuit in Bonwit-Teller v. N. L. R. B., 197 F. 2d 240 (a case specifically relied
upon by the Board majority), expressly found that "neither Section 8(c) nor any issue of
'employer free speech' is involved" in the Board's Bonwit- Teller doctrine.
6 Member Peterson, concurring in the majority conclusion in that case, held, in effect,
that the employer is not required to afford the union an equal opportunity to reply to an
address by an employer to assembled employees on company time and property, where
the union has access to the plant premises for purposes of organizing.
NATIONAL TORCH TIP COMPANY 127 1
learning of the first speech, wired the Employer requesting an
opportunity to reply to this speech under the same conditions,
and to any further speeches made by the Employer before
the election. In the meantime the Employer delivered the 2
other speeches, the final one 21 hours before the election
scheduled at plant No. 3. The telegram sent by the Peti-
tioner was received by the Employer on June 2 at 3 p. m.,
and at 11 p. m., the Employer responded by night letter telegram,
stating that it will allow the employees "time off to attend
any meeting you arrange, providing it does not interfere with
any scheduled election." Whether the Petitioner received the
Employer's response on June 3 at 9 a. m., which the Em-
ployer, in its exceptions asserts is documented by the record
of the telegraph office, or at 10:30 a. m:, as contended by the
Petitioner--there remained, in my opinion, sufficient time--
several hours--for the Petitioner to have appeared and
delivered its reply speeches on company time. The election
was not scheduled until 2:30 p. m., at one plant, 3 p. m. at
a second, and 5:15 p. m. at a third. But the, Petitioner, after
receiving the Employer's acquiescence in its request, took no
further action in this regard. The election was held on June 4,
as scheduled; the Petitioner lost and filed objections. Clearly,
as I appraise the facts, the Employer here fairly fulfilled its
obligations under the law then in existence , and did not deny
the employees the right they had under Bonwit-Teller "to
hear both sides of the story under circumstances which
reasonably approximate equality."' Therefore, Iwouldfind.that
the Employer' s speeches were privileged, and sustain the
result of the election.
7See F. W. Woolworth, 105 NLRB 214. Cf. Crown Cork & Seal Co., 105 NLRB 819, relied
upon by the Regional Director, which I would find inapposite, because in that case, unlike here,
there was no request by the union for an opportunity to reply to the employer's speech and no
timely response by the employer granting the request.
DAVID S. PEARL AND EPHRAIM WERNER d/b/a NATIONAL
TORCH TIP COMPANY and AMERICAN FEDERATION OF
LABOR, Petitioner . Case No. 6-RC-1359. February 24, 1954
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, ahearing was held before Sidney Lawrence,
hearing
hearing
firmed.
Upon
officer. The hearing officer's rulings made at the
are free from prejudicial error and are hereby af-
the entire
1. The Employer
of the Act.
record in this case, the Board finds:
is engaged in commerce within the meaning
107 NLRB No. 269.