Virco Mfg. Corp.

National Labor Relations Board - Board Decisions

Sep 8, 1958

121 N.L.R.B. 790 (N.L.R.B. 1958)

790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the plant On each placard appeared an exact replica of the "Official Sample Ballot,"
measuring however 12 by 18 inches, and containing a large "X," in red ink, in the
"Neither" box Above the words "Official Sample Ballot" appeared in large letters
the words "Vote down the middle " Below the words "Official Sample Ballot"
appeared in large letters the words "Vote Neither "
One such placard was hung in the rolling department, one in the bending and
press departments time stand, one in the shipping and buffing departments time
stand, and one above the coffee stand All were hung high enough to be clearly
visible to anyone in the area All four placards stayed up until after the election
In Allied Electric Products, Inc, 109 NLRB 1270, the Board forbade the reproduc-
tion and distribution of any document purporting to be a copy of the Board's official
secret ballot, which has been altered for campaign purposes, stating that this neces-
sarily tends to suggest that the material appearing thereon was set aside on that basis
In the instant case the reproduction of the "Official Sample Ballot," with the
"X" in the "Neither" box, was on four large placards which were posted in clear
view of all voters `Although there was no physical distribution of these reproduc-
tions, but simply an exhibition thereof, it would nevertheless appear that the basic
objection mentioned in Allied Electric remains, namely that this reproduction neces-
sarily tends to suggest that the material appearing thereon bears the Board's approval
Accordingly the Acting Regional Director recommends that objection No 1 be
sustained
2 Investigation of objection No 2 shows that the plant superintendent, during
the 2 weeks prior to the election, spoke individually to about 30 employees out of
159 in the unit, at their work stations in the plant There is no evidence that his
remarks were coercive He told them that he did not see why the Company needed
a union, and he pointed out to them the benefits they were already receiving, without
any third party being involved One affiant states that the plant superintendent
asked him how he felt about the union, and another affiant states the assistant night
superintendent also asked him this Both superintendents deny asking this and
state they stressed only the benefits already being received by the employees without
a union
Under the principles set forth by the Board in Mall Tool Company, 112 NLRB
1313, and Schick, Incorporated, 118 NLRB 1160, the conduct of the plant superin-
tendent and assistant night superintendent herein would not appear to justify setting
the election aside
In Mall Tool Company, supra, the Employer interviewed about half of his em-
ployees individually, and made noncoercive remarks to them The Board stated
therein that the Employer's technique of talking to the employees individually did
not per se justify setting the election aside, and asserted that, absent unusual cir-
cumstances, both employer and unions are entitled to talk to employees, individually
or in groups
In Schick, Incorporated, supra, the Employer's foreman conducted individual talks
with almost all of the 700 employees in the unit, at their work stations, during work-
ing hours, for the purpose of urging them to reject the union The Board held this
did not warrant setting the election aside
Accordingly the Acting Regional Director recommends that objection No 2 be
overruled
, On the basis of the foregoing, the Acting Regional Director recommends that
objection No 1 be sustained, that the election herein be set aside, and that a new
election be conducted
ZTirco Mfg. Corporation and Local 976, Allied Industrial Workers
of America, AFL-CIO, Petitioner. Case No 21-RC-5093 -Sep-
tember 8, 1958
SUPPLEMENTAL DECISION AND ORDER
Pursuant to a Decision and Direction of Election 1 issued by the
Board on March 21, 1958, an election by secret ballot was conducted
on April 11, 1958, under the direction and supervision of the Regional
2 Unpublished
121 NLRB No 103
VIRCO MFG. CORPORATION 791
Director for the Twenty-first Region of the National Labor Relations
Board among the employees in the unit found appropriate by the
Board. Following the election, the parties were furnished a tally of
ballots which showed that of approximately 200 eligible voters, 186
cast valid ballots : 46 were cast for the Petitioner, 68 were cast for
Local 1010, United Furniture Workers of America, AFL-CIO, the
Intervenor herein, and 72 were cast against the participating unions.
There were no challenged or void ballots.
On April 18, 1958, the Employer filed timely objections to conduct
affecting the results of the election alleging, in substance, that im-
mediately prior to the election, the Intervenor circulated among the
eligible voters bulletins which misrepresented facts concerning the
Intervenor's history of strike activities. In accordance with the Rules
and Regulations'of the Board, the Regional Director conducted an
investigation of the objections and on May 9, 1958, issued and served
upon the parties his report on objections in which he found that the
objections did not raise substantial or material issues with respect to
the election and recommended that the objections be overruled. On
May 26, 1958, the Employer filed timely exceptions to the Regional
Director's report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Bean, and Jenkins].
The Employer does not dispute the facts as set forth in the Regional
Director's report, but contends that the Regional Director's findings
and conclusions are not supported by such facts. The report shows
that on April 2, 1958, the Intervenor circulated among the employees
a bulletin which said, in part :
The Company will probably talk about STRIKES. They al-
ways do. But they won't tell you that in our Union there are no
Strikes unless the workers concerned vote for it by SECRET
ballot. And they won't tell you that during the past five years
when Local 1010 pushed its wages and conditions to the top of
the L. A. Furniture Industry we had Fifty-eight (58) successful
PEACEFUL negotiations AND ONLY TWO STRIKES.
Both these Strikes were won. One in 4 days. One in 8 days.
THIS IS THE RECORD OF OUR UNION DURING THE
FIVE-YEAR PERIOD OF ITS GREATEST GAINS IN
WAGES AND WORKING CONDITIONS.
On April 8, 1958, the Employer mailed to the employees a letter
which stated, in part:
On April 2, 1958, the United Furniture Workers Union passed
out a handbill in which they stated they had only had 2 strikes in
the last 5 years, and that they had won both of them.
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I have checked the record and found their claim to be absolutely
untrue.
Between the two Unions that are trying to get your vote there
have been 13 strikes in the past 5 years with many days of
work lost.
On the afternoon of April 9, 1958, the Intervenor distributed a
bulletin which stated, in part :
The Company further failed to mention that IN THE FIVE
YEARS SINCE THE VIRTUE STRIKE-Local 1010 in 60
separate negotiations in the L. A. area has settled 58 of these
negotiations PEACEFULLY-and with Strike Action taken IN
ONLY TWO CASES.
Both these actions were WON. One in four days. One in
Eight Days.
Don't fall for the phony strike scare line. VOTE 1010..
The Regional Director's investigation of the objections revealed that
in a 5-year period immediately preceding the bulletin of April 2, the
Intervenor engaged in the following strikes :
Date Company Basis of dispute '
Mar. 10, 1953 through Apr 23, 1953 ________ Coast Coil --------------- Organization of allied Company.
August 1953 (31,11 days)____________________
1953 through Aug 1953 -Aug 10 20
Jonas 2---------------------
Superior Sleeprste_________
Grievance.
Negotiations.. ----. ,, --
Aug. 20, 1953 through Dec 4, 1953__________ Virtue-------------------- Do.
Oct. 7, 1953 through Feb. 11, 1954__-_______ Kauffman---- --- - - -- -- -- - Do
Apr. 21, 1955 through Aug. 20, 1955_________ Filbar--------------------- Organizational
August and October 1956 (7 weeks)________ Capital Cabinet--------- -- Do
Oct 1, 1956 through Oct 4, 1956____________ Crest Pacific______________ Negotiations.
Mar. 18, 1957 through Mar 27, 1957_______ Metaleraft________________ Do.
a Although not found by the Regional Director, the Employer alleges another strike
occurred during January 1955.
' In its exceptions, the Employer contends that the Intervenor's
bulletins contained deliberate misstatements of fact regarding the
number of the Intervenor's strikes, a material election issue, and that
the employees did not have sufficient means and time available to
evaluate the facts.
As a general rule in a case such as this, the Board will not undertake
to police or censor the campaign propaganda used by the participants
in a Board election 3 In applying this principle the Board has held
that exaggerations, inaccuracies, and partial truths, while not con-
doned, may be excused as legitimate campaign propaganda provided
they are not so misleading as to prevent the exercise of a free choice
by the employees in the selection of a bargaining representative 4
3 Merck J Co , 104 NLRB 891
' See The Gummed Products Company, 112 NLRB 1092, 1093-94.
INTERNATIONAL TYPOGRAPHICAL UNION 793
As indicated above, the Intervenor in its bulletin of April 2 claimed
that, during the 5-year period of its greatest wage gains and working
conditions, it had 58 successful negotiations and only 2 strikes. The
Employer in its letter of April 8, challenged the accuracy of the
Intervenor's claim, stating that between the 2 unions involved (Peti-
tioner as well as Intervenor) there had been 13 strikes in the last
5 years. The Intervenor's bulletin of April 9 clearly limits its claims
to strikes resulting from negotiations since the Virtue strike, which
was in 1953, thereby eradicating any possible misinterpretation that
the bulletin of April 2 was referring to strikes other than those result-
ing from negotiations. Thus, the Intervenor's statement that it was
involved in only 2 strikes resulting from negotiations is substantially
true. Actually, it appears that it was involved in 3 strikes resulting
from negotiations since the Virtue strike. One of these strikes, how-
ever, the Kauffman strike, was contemporaneous with the Virtue strike.
This leaves a possible discrepancy of but one strike resulting from
negotiations.' In view of the foregoing, we find that the strike in-
formation in the Intervenor's bulletin was substantially true, and
neither so misleading or inaccurate as to have impaired the employees'
free choice in the election.' Accordingly, we hereby adopt the Re-
gional Director's recommendations and overrule the Employer's
objections. We also deny the Employer's request to set the election
aside, or in the alternative, to order a hearing.
As the tally shows the results of the election are inconclusive, we
direct a runoff election with the Intervenor and "no labor organiza-
tion" as the choices on the ballot.
[The Board remanded the case to the Regional Director.]
5 The Filbar and Capital Cabinet strikes were for organizational purposes.
6 See Border's Incorporated, 114 NLRB 751.
International Typographical Union , AFL-CIO and Members of
its Executive Council : International Typographical Union,
AFL-CIO, Local 165, and its Scale Committee and Worcester
Telegram Publishing Company, Inc. Case No. 1-CD-49. Sep-
tember 9, 1958
DECISION AND DETERMINATION OF DISPUTE
This proceeding arises under Section 10 (k) of the Act which pro-
vides that "Whenever it is charged that any person has engaged in an
unfair labor practice within the meaning of paragraph 4 (D) of
Section 8 (b), the Board is empowered and directed to hear and
determine the dispute out of which such unfair labor practice shall
have arisen...."
121 NLRB No. 101.