The Singer Co.

National Labor Relations Board - Board Decisions

Jun 15, 1971

191 N.L.R.B. 179 (N.L.R.B. 1971)

THE SINGER COMPANY 179
The Singer Company and FLM Joint Board United
Mechanics 150 Division , Amalgamated Meat Cut-
ters & Butcher Workmen of North America, AFL-
CIO, Petitioner. Case 29-RC-1609
June 15, 1971
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election, an election by secret ballot was con-
ducted on December 4, 1970, under the direction and
supervision of the Regional Director for Region 29,
among the employees in the appropriate unit. At the
conclusion of the election, the parties were furnished a
tally of ballots which showed that, of approximately 51
eligible voters, 50 cast ballots, of which 32 were for, and
18 were against, the Petitioner. Thereafter, the Em-
ployer filed timely objections to conduct affecting the
results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations, the Regional Director
conducted an investigation and, on January 15, 1971,
issued and duly served upon the parties his Report on
Objections in which he recommended that Objections
2 and 3 be overruled, that Objection 1 be sustained, that
the election be set aside, and that the Board issue an
appropriate order. Thereafter, the Petitioner and the
Employer filed exceptions to the Regional Director's
report and supporting briefs. The Employer also filed
an answering brief to the Petitioner's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the
meaning of the Act and it will effectuate the purposes
of the Act,to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of the employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and (7)
of the Act.
4. The parties stipulated, and we find, that the fol-
lowing employees of the Employer constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
All servicemen, shipping and receiving employees,
parts department employees, plant clerical em-
ployees, drivers and porters employed by the Em-
ployer at 97-20 42nd Avenue, Corona, New York,
191 NLRB No. 42
excluding all office clerical employees, profes-
sional employees, guards and supervisors as
defined in the Act.
5. The Board has considered the Regional Director's
report, the exceptions and supporting briefs, the an-
swering brief, and the entire record in the case, and
hereby adopts the Regional Director's findings and
recommendations only insofar as they are consistent
with our findings herein.'
With regard to Objection 1, the investigation dis-
closed that during a preelection conference at the
Board's Regional Office, the Petitioner requested that
the Notices of Election be prepared in English and in
Spanish inasmuch as there were a number of Spanish-
speaking employees in the unit. Although there was no
request for the services of an interpreter, the Board
agent decided that, in view of the request for the bilin-
gual notices, the services of an interpreter might be
required. Accordingly, he made the necessary arrange-
ments with Albert Boyne, an independent contractor
who provides interpreters for the Regional Office.
Boyne undertook the assignment himself and agreed to
meet with the Board agent at the Employer's plant
about one-half hour prior to the scheduled 8:30 open-
ing of the polls.
To insure his timely arrival and to avoid any delay
due to the vagaries of metropolitan area public trans-
portation system, Boyne left early and arrived at the
Employer's plant about 7:30 a.m. As it was a cold and
rainy day, Boyne entered the depot on finding that a
door was open. On entering, he noticed a group of
employees sitting at some tables in the coffeeroom hav-
ing coffee. One of the employees asked Boyne if he was
from the Labor Board and Boyne replied that he was
the interpreter and was to meet with the Board agent.
Boyne then asked if any member of management was
present and one of the employees answered "no" in
Spanish and invited Boyne to, have coffee with them.
Boyne accepted the invitation and they engaged in a
conversation in Spanish on general topics. Finally, one
of the employees asked Boyne when 'they would know
the results of the election. Boyne replied that the votes
generally are counted immediately, after the polls close
and he simultaneously pointed to the Notice of Election
in Spanish, which was posted in the' area, and which,
inter alia, indicated the voting hours.
At that very precise moment, Edward W. Scully, the
Employer's attorney, arrived on the scene and observed
Boyne pointing to the Notice of Election while speak-
ing in Spanish. In a manner which witnesses described
either as angry or abrupt, Scully asked Boyne who he
' No exception having been taken thereto, we adopt pro forma the Re-
gional Director's recommendation overruling Employer's Objection 2. The
Employer's exception to the Regional Director's railing on its Objection 3
raises no material or substantial issue of fact or law that warrants reversal
of the Regional Director's recommendation.
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was, and the latter answered that he was the Board's
interpreter for the election and was awaiting the arrival
of the Board agent. Whereupon, Scully told Boyne that
he had no right being on the premises because there had
been no request for an interpreter and that none was
needed as all the employees understood and spoke Eng-
lish. According to Scully, Boyne made no reply and
remained seated at the table with the employees. When
Scully asked Boyne to come to the front office, the
latter stood up and accused Scully of being discourte-
ous, with Boyne then stating that he would wait in the
street for the Board agent inasmuch as the Employer
did not want him in the plant.
Boyne and other witnesses stated that, after Boyne
had identified himself and Scully had stated that he had
not requested an interpreter, the latter accused Boyne
of being from the Union and ordered him to leave the
premises. At this point, both Boyne and Scully left the
coffeeroom, with Boyne going outside to the sidewalk
to await the arrival of the Board agent.
About this time, the assistant plant manager entered
the coffeeroom and was told by two employee witnesses
to the aforementioned incident that the Employer's at-
torney had thrown out the interpreter because he was
speaking Spanish. According to the assistant plant
manager , one of the two employees remarked that it did
not matter because Scully had no understanding about
what Boyne had been saying.
One of these two employees then left the coffeeroom
and recounted the incident to various groups of em-
ployees, both inside and outside the depot, and also told
the Petitioner's representatives when they arrived out-
side the plant. This employee admitted that, after he
decribed the incident in the coffeeroom, he expressed
the opinion that Boyne must have been thrown out for
speaking Spanish as he could see no other reason.
In the meantime , Boyne remained outside, with
Scully standing' in the doorway watching him. Boyne
conversed with no one, and even waved away an em-
ployee asking him about what had happened. On the
arrival of the Board agent , Boyne explained the inci-
dent in the coffeeroom and they both went into the
depot and met with Scully. After a short conversation
among them, the Board agent decided in the interest of
expediency that Boyne was not needed and he then left
at the Board agent's request.
The Regional Director found that Boyne was acting
in an official capacity; that the circumstances of his
presence in the coffeeroom clearly demonstrated that
he was not conducting "a Spanish-language meeting"
concerning the election as alleged by the Employer, but
rather, that he was acting well within the limits of
propriety; that the events of which the Employer now
complains apparently resulted from its own agent's
misunderstanding of the situation and his spontaneous
reaction thereto; and that the conclusion reached by
the employees that the Employer was anti-Spanish
stemmed from the Employer-created situation.
Although noting that there was no systematic at-
tempt in the instant case to introduce the racial issue
into the campaign , particularly by the Petitioner, the
Regional Director nevertheless found that there was a
last-minute widespread dissemination of a racial rumor
among the Employer's numerous Spanish-speaking
employees. Therefore, despite the fact that the Peti-
tioner was in no way responsible for the rumor, the
Regional Director nevertheless felt constrained to
recommend that Objection 1 be sustained on the
grounds that the Board's own conception of what
should constitute laboratory conditions for holding an
election had not been met.'
The Petitioner contends that, in view of the Regional
Director's preliminary findings as to the right of the
interpreter to be present, his acting within the limits of
propriety, his not conducting a Spanish-language meet-
ing, and the employees' conclusion of Employer anti-
Spanish animus stemming from the Employer-created
situation, the Regional Director's ultimate sustaining
of Objection 1 and his recommending the setting aside
of the election is an inexplicable non sequitur. The
Petitioner further contends that such a recommenda-
tion casts the burden of rectifying Employer-induced
conduct on the concededly blameless Petitioner, disen-
franchises employees who had been misled by the Em-
ployer's actions, and penalizes the employees who re-
sponded defensively to grave employer provocation.
The Petitioner also contends that, since the Regional
Director's recommendation is mainly predicated on the
alleged imputations of anti-Spanish motivation to the
Employer, he failed to give due consideration to the
fact that the election campaign was totally devoid of
any sentiment, hint, or expression of racial feeling by
either party. In such circumstances, it was error for the
Regional Director to seize upon this incident and to
inflate it to such proportions as to justify the setting
aside of the election. In short, the Petitioner asserts that
the Regional Director has penalized the employees for
reacting impulsively to the Employer's actions and atti-
tudes; and that the Board should not be a party to
setting aside the election herein because the overall
circumstances amount to a setting of a precedent for
allowing a skillful and knowledgeable employer to pro-
voke unsophisticated employees into improper conduct
and then to utilize the results of such manipulations to
set aside a valid election.
We find merit in the Petitioner's contention that the
Regional Director should have considered, in his over-
all evaluation of the alleged imputations by the em-
ployees of anti-Spanish motivation to the Employer,
General Shoe Corporation, 77 NLRB 124, 127.
THE SINGER COMPANY
that the context and setting of the preelection campaign
was totally devoid of any sentiment, hint, or expression
of racial feeling by either party. The Board has found
that under somewhat similar circumstances the injec-
tion of a racial issue was insufficient to warrant setting
aside an election.' We believe that the circumstances in
the instant case also fail to warrant setting aside the
election, particularly since this case involves only a
limited remark provoked by the employer's arbitrary
reaction to a completely innocent situation in the con-
text of a campaign otherwise free of racial hostility. We
shall, therefore, overrule this objection.
Accordingly, as we have overruled the Employer's
objections to the election, and as the tally of ballots
shows that the Petitioner has received a majority of the
' Baltimore Luggage Company, 162 NLRB 1230, Aristocrat Linen Sup-
ply Co., Inc., 150 NLRB 1448.
181
valid ballots cast in the election, we shall certify it as
the collective-bargaining representative in the appro-
priate unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that FLM Joint Board United
Mechanics 150 Division, Amalgamated Meat Cutters
& Butcher Workmen of North America, AFL-CIO,
has been designated and selected by a majority of the
employees of the Employer in the unit found appropri-
ate herein as their representative for the purposes of
collective bargaining and that, pursuant to Section 9(a)
of the National Labor Relations Act, as amended, the
said labor organization is the exclusive representative
of all such employees for purposes of collective bargain-
ing with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of employ-
ment.