The Falmouth Co.

National Labor Relations Board - Board Decisions

Jun 12, 1956

115 N.L.R.B. 1533 (N.L.R.B. 1956)

THE FALMOUTH COMPANY 1533
MEmBERS MURnocs and PETERSON, dissenting:
We take no issue with the majority's finding that Gates Engineering
Company and Delaware Steel Company constitute a single employer
within the meaning of the Act. Nor do we contend that the 2-plant.
2-company unit is inappropriate. We do, however, disagree with
the majority's finding that the two-plant unit is the only appropriate
unit in the circumstances of this case.
As the majority points out, a number of factors support a two-plant
unit. On the other hand, certain other factors militate in favor of a
single-plant unit. For example, each plant performs a separate and
functionally distinct operation which, although complementary are
not necessarily interdependent. In fact, Gates existed as an independ-
ent operation before Delaware was formed. The employees of each
company have distinct skills and functions, work under separate super-.
vision, and are carried on separate payrolls. There is virtually no in-
terchange between the employees of the two plants. There has been no
bargaining history on a two-plant basis. The Board has said that a
plant unit, being one of the unit types listed in the statute as appro-
priate for bargaining purposes, is presumptively appropriate.28 In
our opinion, where, as here, the only labor organization involved seeks
a single-plant as opposed to a multiplant unit, the plant unit should
be found appropriate unless it flies in the face of such overriding unit
determinants as bargaining history on a broader basis or substantial
integration and interdependence of operations and frequent inter-
change of employees. As none of these factors is present in this case,
we would direct an election in the unit requested by the Petitioner
limited to the employees of Gates Engineering Company which we
find constitute an appropriate unit.17
15 Beaumont Forging Company, 110 NLRB 2200.
Transformer Engineers, 114 NLRB 1825 . The majority 's studied attempt to dis-
tinguish between this case and the cited case serves only to emphasize the obvious
similarity between the two cases.
The Falmouth Company and United Garment Workers of
America, AFL-CIO, Petitioner and Needleworkers Association
of America. Case No. 9-RC-9&278. June 12, 1956
SUPPLEMENTAL DECISION AND CERTIFICATION OF
REPRESENTATIVES
Pursuant to a stipulation for certification upon consent election, an
election by secret ballot was conducted on July 27, 1954, under the
supervision of the Regional Director for the Ninth Region of the Na-
tional Labor Relations Board, among the employees in the agreed ap-
propriate unit. Thereafter, objections to conduct affecting the results
1111: NLRB No. 250.
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the election were filed by the Petitioner. On November 3,1955, the
Board issued a Decision, Order, and Direction of Second Election,' in
which it set aside the election and directed that a second election be
conducted. The second election by secret ballot was conducted on De-
cember 1, 1955, among the employees in the unit found by the Board to
be appropriate. Following the second election, the parties were fur-
nished a tally of ballots. The tally shows that, of the approximately
136 eligible voters, 126 cast ballots, of which 30 were for the Petitioner,
88 were for the Intervenor, 3 were cast for no union, and 5 ballots were
challenged.
On December 7, 1955, the Petitioner filed timely objections to con-
duct affecting the results of the second election, alleging that the
election should be set aside because (1) of a speech made by an offi-
cer of the Employer which violated the Board's 24-hour rule; (2)
of the Company's refusal to post notices and the tardy notice to the
Regional Office regarding the posting of notices and the change of
voting time and place ; (3) of the assembling of the employees in the
courtroom at the polling place before the election; (4) the dramatic
and eloquent scene enacted before the employees minutes before the
election to proclaim the Company's choice as to how the employees
should vote. In accordance with the Rules and Regulations of the
Board, the Regional Director conducted an investigation and, on
March 30, 1956, issued and served upon the parties his report on ob-
jections to election. He found that the Petitioner's objections did
not raise substantial or material issues with respect to conduct affect-
ing the results of the election, and he recommended that the objec-
tions be overruled. On April 9, 1956, the Petitioner filed exceptions
to the Regional Director's report.
As to objection (1), set forth above, the Regional Director found
that both the Employer and Intervenor acknowledged that a cam'
paign speech was made to the employees within a 24-hour period
prior to the election, but contend that the speech was made on em-
ployee's own time and attendance was entirely voluntary. It ap-
pears that the employees lunch period, for which the employees are
not paid, is from 11: 30 a. m. to 12:15 p. m., and during this period
the employees are free to leave the plant and they customarily do so.
On the day of the election, and during the lunch period, Hoyt Best,
an officer of the Employer and its counsel, spoke to the employees.
At the outset of his speech, in advising the employees that they were
free to leave, Best stated, "I want to make it plain, however, that you
are not required to give me any of your time or to listen to anything
I have to say, and, that you are free to leave at any time." There-
after, Best directed his remarks to certain purported misrepresenta-
1 The Falmouth Company, 114 NLRB 896.
THE FALMOUTH COMPANY 1535
tions in the campaign literature distributed by the Petitioner, and
also advised the employees that, if they chose to believe the union
propaganda and vote the Petitioner in, he personally would not deal
with such people, but "would resign as Secretary of the Company
and let other officers deal with those people." The speech is estimated
as lasting from 3 to 5 minutes.
In its exceptions, the Petitioner does not challenge the Regional
Director's findings of fact, but contends that Best's speech violated
the Board's 24-hour rule established in Peerless Plywood, 107 NLRB
427, and also contained a threat of reprisal or promise of benefit in
that "it constituted a direct announcement that no negotiations would
ever be carried on with the United Garment Workers."
In Peerless Plywood the Board found that employers and unions
alike will be prohibited from making election speeches on company
time to massed assemblies of employees within 24 hours before the
scheduled time for conducting an election. However, the Board also
stated that this rule would not "prohibit employers or unions from
making campaign speeches on or off company premises during the
24-hour period if employee attendance is voluntary and on the em-
ployees' own time." [Emphasis supplied.] In the present proceed-
ing Best gave the speech, not on -company time, but on the employees
own time, with employee attendance voluntary. Under these circum-
stances, we are convinced, as was the Regional Director, that the
speech was not prohibited by the Peerless Plywood rule .2 Moreover,
we are unable to find, as the Petitioner would have us find, that Best's
speech contained a threat of reprisal or promise of benefit to the
employees. Although Best indicated that he personally would re-
sign if the Petitioner won, this did not imply that the Employer
would refuse to bargain with the Petitioner, or treat it differently
from the Intervenor, or that the plant would close down. On the
contrary, Best's statement that other officers of the Employer would
deal with the Petitioner clearly indicates that the Employer would
bargain with the Petitioner and that the plant would not shut down.
As we have found that Best's speech did not violate the Peerless
Plywood rule, and as it did not contain threats of reprisals or promise
of benefit to employees, we shall overrule objection (1).
As to objection (2), the Regional Director found that the election
was originally scheduled to be conducted on December 1, 1955, be-
tween the hours of 9: 30'a. m. to 10: 30 a. in. in the Employer's plant.
On November 29, 1955, the Employer advised that it would not permit
the election to be conducted on company property, and would not
2 Underwood Corporation, 108 NLRB 1368. Cf. The Great Atlantic and Pacific Tea
Company , 115 NLRB 84; Rock Hill Printing & Finishing Co.. 114 NLRB 836; H & P
Mining Company, 114 NLRB 1436; Comus Manufacturing Co., Inc., 113 NLRB 274;
Fuller Ford, Inc., 113 NLRB 169.
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
post the notice of election in the plant. It was noncommital as to
whether it would furnish a payroll list of eligible employees. The
Board agents immediately thereafter obtained space to hold the elec-
tion in the county courthouse which is located directly across the
street from the Employer's plant. In order to permit the employees
to vote as they left work, the hours of the election were rescheduled
to the afternoon of December 1, 1955, between the hours of 4 p. m. to
6: 15 p. m. New notices with the scheduled changes for the time and
place of the election were prepared. All parties were advised by
wire of the new election arrangements and were requested to return
all copies of the first election notices.
At 4: 15 p. m. on November 29, 1955, as the employees left work from
the Employer's only shift, copies of the new notices of election were
distributed to the employees by Board agents. Copies of these notices
were also posted on the telephone poles in front of the Employer's
plant and remained posted as of the time of the election. Thereafter,
two representatives of the Petitioner who witnessed the aforesaid dis-
tribution of the notices were asked if the Union might need additional
notices to further insure adequacy of notice of the election to all em-
ployees. The representatives indicated that they considered the dis-
tribution that had just been completed as adequate and that they
would not need any notices beyond the nominal number previously
furnished. Nevertheless, on the afternoon of November 29, 1955,
40 copies of the new notice of election were delivered to the Inter-
venor's attorney and 40 other copies were delivered to representa-
tives of the Petitioner on the morning of November 30, 1955. The
Petitioner did not submit or offer any evidence showing that any
employee failed to vote because of lack of notice as to the time and
place of the election, and it appears that 126 ballots were cast in a
unit of approximately 136 eligible employees.
In view of the foregoing, we agree with the Regional Director that
the employees and the parties received sufficient and timely notice of
the election,' and, under the circumstances, the Employer's failure
to post the notice of election is immaterial .4 Nor, from the facts
presented here, are we able to find any merit to the Petitioner's con-
tention that the employees were "confused" and denied a free choice
of bargaining representatives because the Employer did not permit
the use of its property for the election. The election was held across
the street from the Employer's plant at a time when the employees
were leaving work and after they were properly advised of the elec-
tion time and place. As indicated above, some 126 ballots were cast
out of a unit of approximately 136 employees. Such evidence can
3 See Pegwill Packing Co, 115 NLRB 1151; Glauber Water Works, 112 NLRB
1462; Cities Service Oil Co. of Pennsylvania (Marine Division), '87 NLRB 324 , 327-329,
* See Tice Root Store, 188 NLRB 289, 290.
THE FALMOUTH COMPANY 1537
not lead us to conclude that the voters were "confused" or denied a free
choice of bargaining representatives, and the Petitioner introduced
no other evidence to support its contention. Accordingly, we find
no merit in objection (2) and we shall overrule it.
As to objections (3) and (4), the Regional Director found that the
election was conducted in the circuit courtroom located on the upper
floor of the county courthouse. Approximately 15 minutes before the
polls were scheduled to be opened, the Employer released its em-
ployees from work so they could go to the polls. The employees as-
sembled in the corridor and along the stairway outside of the court-
room. As the weather was unusually cold, a fire had been built in the
courtroom in preparation for the election but the corridors were
chilled. To avoid congestion in the corridor and on the stairway,
the Board agents permitted the employees to come into the warmer
courtroom and take seats in the spectators' section. The courtroom
contained the usual benches for spectators, a separating rail, and a
part used as the working area for the conduct of the court's business.
In the latter area, the Board agents had set up voting booths and
tables for the observers to check the eligible voters. Representatives
of all parties were present at this time going over the details of the
election and none of the parties raised any objections to admitting the
voters into the courtroom.
Near the conclusion of the preelection arrangements, described
above, Mr. Goldberg, president of the Employer, appeared in the
polling place and conferred with Employer Counsel Best, the Board
agents, and Intervenor's counsel. He did not speak to any of the em-
ployees or to the Petitioner's representatives. During this period,
the Petitioner's representatives also conferred with the Board agents
and, at times, were in the presence of other parties conferring with
the Board agents. At the request of Board agents, Goldberg left the
polling area with other representatives of the parties prior to the
opening of the polls. After they all had departed, the Board agents
in charge of the election informed the employees of the voting pro-
cedure and requested that they continue to remain quiet during the
voting period. Thereafter, the polls were opened and the voting com-
menced. The employees voted in the order of their seating in the
courtroom. Those awaiting their turn remained quietly sitting in
their places.
It thus appears that neither the voters nor representatives of the
parties engaged at any time immediately before or during the election
in any misbehaviour, unruly conduct, electioneering, or were otherwise
guilty of conduct which would prevent a free selection of bargaining
representatives. Indeed, the Petitioner's representatives raised no
objection at the time the voters were permitted to be seated in the
390609-56-vol. 115-98
1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
courtroom, and it does not now indicate how this action in any man-
ner interfered with the free selection of bargaining representatives
and constitutes ground for setting aside the election. Nor are we able
to find, as the Petitioner would have us find, that the presence of
Goldberg at the polling place and his conferring with counsel and
Board agents and not with Petitioner's representatives was for the
purpose of "play-acting" and so influenced the voters that they could
not make a free selection of bargaining representatives. Signifi-
cantly all the representatives of the parties, including Goldberg, left
the polling area immediately upon request of the Board agents before
the polling began. Further, there is no evidence that Goldberg or
any of the other party representatives engaged in electioneering or
other improper conduct in or around the polling place. Under such
circumstances, the Board has found that conduct of this nature is not
prejudicial and is insufficient grounds for setting aside an election.5
Accordingly, in view of our findings herein, we find no merit in and
shall overrule Petitioner's objections (3) and (4).
As we have overruled the Petitioner's objections, and, as the tally
of ballots shows that a majority of the valid ballots were cast for the
Intervenor, we shall, as recommended by the Regional Director, certify
that labor organization as the collective-bargaining representative of
the employees in the unit heretofore found to be appropriate.
[The Board certified Needleworkers Association of America as the
designated, collective-bargaining representative of the employees of
The Falmouth Company, Falmouth, Kentucky, plant, in the unit here-
tofore found appropriate.]
6 See Pacific Maretvme Association and its Member Companies , 112 NLRB 1280, 1282;
Gastonia Combed Yarn Corporation, 109 NLRB 585, 587, and cases cited therein ; Nichol-
son Transit Company, 89 NLRB 1278 , 1280; Potlatch Forests, Inc., 80 NLRB 613,
615-616.
Aroostook Federation of Farmers , Inc. and Truck Drivers, Ware-
housemen and Helpers Union , Local #340, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America , AFL-CIO , Petitioner . Case No. 1-RC-4039.
June 13, 1956
SUPPLEMENTAL DECISION AND ORDER
Pursuant to a Board Decision and Direction of Election,' an elec-
tion by secret ballot was conducted on February 14, 1956, under the
direction and supervision of the Regional Director for the First
1114 NLRB 538.
115 NLRB No. 254.