X-Ray Manufacturing Corp. of America

National Labor Relations Board - Board Decisions

Jun 27, 1963

143 N.L.R.B. 247 (N.L.R.B. 1963)

X-RAY MANUFACTURING CORPORATION OF AMERICA 247
agent receives no reimbursement for these expenses. He is paid on a.
commission basis, and whether he makes a profit is dependent upon they
amount of business he produces. It is clear from the record that when
the commissions are paid to the agent there is no withholding of taxes
or social security. In the sale of insurance, the agent is not required
to follow suggestions of Farmers but is free to devise his own tech-
niques. Similarly, the agent is free to attend or not attend sales meet-
ings Farmers might have. Finally, the agent is not required to submit
any report of any kind to Farmers either accounting for his time spent
in selling insurance or explaining any lack of sales.
I think what the Court of Appeals for the Seventh Circuit stated in
United Insurance Company of America v. N.L.R.B., 304 F. 2d 86,
90-91, in finding agents of United Insurance to be independent con-
tractors, apropos here. The court said:
There are many businesses, and the sale of insurance is one of
them, where management may make a choice as to the manner in
which the business will be conducted. Very often, perhaps tradi-
tionally, insurance has been sold through insurance salesmen
whose "tools" are their own initiative and personality and who
work on their own time and at their own expense. However,
some insurance companies have established an employer-employee
relationship such as the company in N.L.R.B. v. Phoenix Mutual
Life Insurance Company, supra. In the instant case, United has
chosen to operate its business on the basis that its agents are
independent contractors and, of course, it had the complete legal
right so to do.
I think it clear both from the agent contract and from the manner in
which the parties conducted themselves that Farmers "has chosen to
operate its business on the basis that its agents are independent con-
tractors" and I would so find.
Because I would find the agents to be independent contractors,
I would dismiss the instant petition seeking an election among the
agents.
X-Ray Manufacturing Corporation of America and Amalga-
mated Union Local 55, Mechanics , Novelty, Retail and Mainte-
nance Employees, affiliated with District 5, Petitioner. Case
No. 2-RC-12125. June 27, 1963
DECISION ON REVIEW
Pursuant to a Decision and Direction of Election issued by the
Regional Director for the Second Region dated July 24, 1962, an
election by secret ballot was held on August 8, 1962, among the em-
143 NLRB No. 35.
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees in the appropriate unit. At the conclusion of the balloting,
the parties were furnished with a tally of ballots which showed that
of approximately 60 eligible voters, 53 cast valid ballots, of which 23
were for the Petitioner, 29 were for the Intervenor, Local 475, Inter-
national Union of Electrical, Radio & Machine Workers, AFL-CIO,
and 1 was against the participating labor organizations. One cast
.a challenged ballot, which could not affect the election results. There-
after, the Petitioner filed timely objections to conduct affecting the
results of the election.
In accordance with the Board's Rules and Regulations, the Regional
Director conducted an investigation, and on September 27, 1962,
he issued a Supplemental Decision on Objections and Certification of
Representatives, in which he overruled all of the Petitioner's objec-
tions and certified the Intervenor as the bargaining representative of
the employees in the appropriate unit. Thereafter, the Petitioner, in
accordance with Section 102.67 of the Board's Rules and Regula-
tions, as amended, filed with the Board a timely request for review
of the Regional Director's Supplemental Decision.
The Board by telegraphic order dated November 26, 1962, granted
the request for review solely as to the Regional Director's disposition
of objections Nos. 2, 3, 5, and 6. Thereafter, the Intervenor filed a
brief in support of its position as to the issues under review.
The Board has considered the entire record with respect to the issues
under review, including the Intervenor's brief, and hereby affirms the
Regional Director's Supplemental Decision with the following
modification.'
In its objection No. 6, Petitioner alleged that on August 2, 1962,
the Employer permitted the Intervenor to conduct a meeting on com-
pany time and premises while denying the Petitioner equal op-
portunity to engage in like activity. The Regional Director found
that such u meeting was held during the employees' lunch period and
extended about 10 minutes into their working time. There was
conflicting evidence as to whether this occurred on August 2 or on Au-
gust 7, the day before the election. The Regional Director, without
resolving this conflict, concluded that inasmuch as the meeting ended
more than 24 hours before the balloting, it did not violate the rule in
Peerless Plywood Company, 107 NLRB 427. The Petitioner, in its
request for review, contends that the Employer's denial of its request
for the same privilege of holding a meeting on company time and
property was prejudicial to the conduct of a free election.
It is not clear whether the Regional Director considered the dis-
parate treatment aspect of objection 6 in his Supplemental Decision.
We have reviewed the facts and conclude in the circumstances of this
'For the reasons expressed by him, we affirm the Regional Director's findings that ob-
jections Nos. 2, 3, and 5 raised no material and substantial issues affecting the election
results.
X-RAY MANUFACTURING CORPORATION OF AMERICA 249
case that the Employer's denial to the Petitioner of the privilege of
holding a campaign meeting during the employees' lunch period
within the plant, whether viewed alone or in conjunction with other
conduct found unobjectionable by the Regional Director, forms no
basis for setting aside the election. The record is not clear as to
whether the Intervenor sought and the Employer granted permission
to hold a meeting. However, assuming arguendo that such was the
case, we deem it significant that the purpose of the subject meeting was
not expressed to the Employer; that the Employer's consent, if given,
was subject to the condition that the meeting not extend beyond the
employees' lunch period; that the Intervenor had previously held
meetings of employees in the plant without obtaining prior permis-
sion; that a few days subsequent to this meeting the Employer noti-
fied the Intervenor that it should not have allowed this meeting to
extend beyond the employees' lunch period and admonished Inter-
venor that it was not to permit this to happen again; that the number
of employees at the plant was relatively small, about 60; and that the
Employer did permit the Petitioner to electioneer at the loading plat-
form on company premises at times when employees were present
at that location. Further, we note the facts that the Intervenor, the
incumbent union, had a natural advantage over a rival union in reach-
ing employees within the plant by virtue of its undisputed right of
access to the plant; and that on election day the Intervenor requested
the Employer to eject the Petitioner's representatives from the com-
pany premises at a time when they were electioneering among em-
ployees, and the Employer refused to do so. These factors indicate
that the Employer maintained a neutral status as to the pending elec-
tion and did not accord Intervenor a prestige which enhanced Inter-
venor's stature and position in this organizational campaign.
Our dissenting colleagues found that "a glaring imbalance in oppor-
tunities for electioneering" was created when the Employer refused
the Petitioner's request to address a meeting of employees in the plant
subsequent to allowing the Intervenor to do exactly that. We inter-
pret the phrase "a glaring imbalance in opportunities for electioneer-
ing" as meaning, in essence, "an imbalance in the opportunities for
organizational communication." We disagree. On the record before
us, it is apparent that both the Petitioner and the Intervenor were
free to communicate with employees on the plant premises, and it is
not suggested that the employees themselves were not free to discuss
the relative merits of the competing unions. Specifically, Petitioner
was able to and did communicate its cause to the employees at a load-
ing platform on company property either through oral solicitation or
the distribution of campaign leaflets, and, in fact, the Employer re-
fused the Intervenor's request that Petitioner be prohibited from en-
gaging in this organizational activity. As found by the Regional
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director, the Intervenor at its lunchtime meeting discussed the forth-
coming election with the employees who were present and urged them
to vote against Petitioner. Realistically, Petitioner was doing just
the converse when it engaged in organizational activity at the loading
platform, and was able generally to bring its cause to the employees
without Employer obstruction. Thus, it cannot be said that the mere
denial of equality in one of the available means of communication
created such an imbalance as would warrant our setting aside the elec-
tion. For these reasons, in accord with the Regional Director, we
overrule objection No. 6, and we affirm his certification of the Inter-
venor as the exclusive bargaining representative of the employees in
the unit.
MEMBERS RODGERS and BROWN, dissenting in part :
We disagree with our colleagues' conclusion that the Employer did
not interfere with the election in this case by permitting the incumbent
union to conduct a campaign meeting on its premises during the em-
ployees' lunch hour and denying the same privileges to the Petitioner.
We believe that the Employer was under a duty during the pre-
election period to forbid the use of its premises for such a meeting,
unless it was willing to extend the same privilege to both unions.'
The Employer's denial of the Petitioner's request was a breach of this
duty and constituted such disparate treatment as to warrant the
Board's intercession .3
The very factors upon which our colleagues rely in concluding that
no unfair treatment occurred convince us to the contrary. Because of
the natural advantage which the Intervenor, as the incumbent union,
had over a rival in reaching employees within the plant, it was in-
cumbent on the Employer to avoid any deliberate action which would
unduly enhance this position. Here, the Intervenor took full advan-
tage of its contractual right to enter the plant, engaging employees
in conversations and distributing campaign literature shortly before
and on the election day. The granting of permission to the incum-
bent Intervenor to hold a meeting, while withholding it from the
Petitioner, could only increase the Intervenor's stature in the eyes of
the employees. This ability of the Intervenor to hold its meeting in
the plant was in sharp contrast to the necessity for the Petitioner to
reach the employees outside the plant, albeit on company property,
and could only emphasize the difference in standing. Even if the
Intervenor did not expressly tell the Employer the purpose of the
meeting, the Employer should have been aware, in view of the im-
minence of the election, that the Intervenor would wish to utilize the
2,See Superior Sleeprite Corporation, 117 NLRB 430, 432.
$ Mtilco'Undergarment Co, Inc., 106 NLRB 767, 769, enfd 212 F. 2d 801 (C.A. 3), cert.
denied 348 U. S. 888; American Thread Company, 84 NLRB 593, enfd . 188 F. 2d 161
(C.A. 5).
LOCAL 1905, CARPET, LINOLEUM & SOFT TILE LAYERS 251
opportunity to campaign. And, in any event, the Employer did know
of the nature of the meeting when Petitioner requested a similar op-
portunity. Finally, the very fact that the Employer had relatively
few employees indicates to us that all the employees would be fully
aware of the favored treatment, and we are also satisfied that the
granting of permission to the Petitioner to hold a meeting in the plant
during nonworking time would not have disrupted plant operations.
The Employer's refusal to grant the Petitioner's request, after per-
mitting the Intervenor the privilege of holding its meeting, created
a glaring imbalance in opportunities for electioneering. Having
made its facilities available to the Intervenor, the Employer, in our
opinion, was under an obligation to grant the Petitioner the right to
address the employees under similar circumstances. We would, there-
fore, set aside the election and direct that a new election be conducted.
Local 1905 , Carpet , Linoleum & Soft Tile Layers [James D. Gib-
son and Earl P . Bigham , d/b/a Southwestern Floor Co., a part-
nership] and Butcher & Sweeney Construction Co., Inc.
Local 1905 , Carpet , Linoleum & Soft Tile Layers [Builders Serv-
ice Co., Inc.] and Cain & Cain , Inc. and Fort Worth Chapter,
Associated General Contractors . Cases Nos. 16-CD-17, 16-CD-
18, and 16-CD-19. June 27, 1963
DECISION AND ORDER QUASHING NOTICE OF HEARING
This is a proceeding under Section 10(k) of the National Labor
Relations Act following the filing of charges under Section
8 (b) (4) (D) of the Act. A hearing was held before T. Lowry Whit-
taker, hearing officer, on January 31, February 1, 11, 20, 21, and 25,
1963. All parties appeared at the hearing and were afforded full op-
portunity to be heard, to examine and cross-examine witnesses, and to
adduce evidence bearing on the issues. The rulings of the hearing of-
ficer made at the hearing are free from prejudicial error and are here-
by affirmed. Briefs filed by the Employers, the Carpenters, and
the Painters have been duly considered.'
Upon the entire record in these cases, the Board 2 makes the follow-
ing findings :
1. As stipulated by the parties, Butcher & Sweeney Construction
Co., Inc. (hereinafter referred to as Butcher & Sweeney), Cain &
I The request for oral argument made by Respondent, Local 1905, Carpet, Linoleum &
Soft Tile Layers, is hereby denied , as the record and briefs adequately present the issues
and the positions of the parties.
2Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with these cases to a three-member panel
[Chairman McCulloch and Members Fanning and Brown].
143 NLRB No. 39.