Virco Mfg. Corp.Download PDFNational Labor Relations Board - Board DecisionsSep 8, 1958121 N.L.R.B. 790 (N.L.R.B. 1958) Copy Citation 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. Copy with citationCopy as parenthetical citation