Chapman Dehydrator Co., Inc.

In the Matter Of CHAPMAN DEHYDRATOR COMPANY, INC. and PACKING HOUSE EMPLOYEES UNION, LOCAL 22911, A. F. L. In the Matter of E. A. COUTURE AND PAUL COUTURE, A PARTNERSHIP DOING BUSINESS AS E. A. COUTURE DEHYDRATOR and PACKING HOUSE EMPLOYEES UNION, LOCAL 22911 , A. F. L. Cases Nos. R-5618 (20-R-855 ) and R-5619 (90-R-856) SUPPLEMENTAL DECISION AND ORDER November 2, 1949 On July 23, 1943, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Elections in the above-entitled procedings.1 Pursuant to the Direction of Elections, elections by secret ballot were conducted on August 19, 1943, under the direction and supervision of the Regional Director for the Twentieth Region (San Francisco, California). At the close of the balloting, the ballots were impounded at the request of the union representative who indicated his intention of filing objections to the elections upon the ground that the corporation and the partnership, herein referred to as the Companies, had interfered with the conduct of the ballot. On August 27, 1943, objections by the Union were filed with the -Regional Director. On August 30, 1940, the Regional Director issued a Report with respect to the objections, in which he recommended that the elections be set aside. He also recommended that new elec- tions be held and that because of the high turnover of employees, new eligibility periods be selected. On September 9, 1943, it appearing that the objections filed by the Union raised substantial and material issues with respect to the con- duct of the ballot, the Board ordered a hearing on the objections. Pursuant to notice duly served upon the parties, a hearing on said objections vas' held on September 30, 1943, at Modesto, California, before William B. Barton, Trial Examiner. The Board, the Com- panies, and the Union appeared, participated, and were afforded full 1 51 N. L R. B. 664. 53 N. L. R. B, No. 63. 344 C'HAPMAN DEHYDRATOR COMPANY, INC. 345 opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the Board makes the following : SUPPLEMENTAL FINDINGS OF FACTS The evidence adduced by the Union at the hearing in support of its objections may be discussed under the following headings : 1. Watchers at the polls. 2. The conduct of the corporation's plant superintendent on the day of the election. 3. The meetings held by the partnership just prior to the election. 4. The conduct of the partnership's plant superintendent on the day of the election. 1. Watchers at the polls: Prior to the elections union representa- tives tried unsuccessfully to obtain watchers for the election to be held at the plant of the corporation. They were unsuccessful in this attempt and communicated such fact to the Board's Field Examiner, Suzanne Schroeder. Field Examiners Schroeder and Virginia Mc- Elroy, together with representatives of the partnership, met in the partnership plant on the morning the election was to be held. The union representatives on this occasion stated that they had been unable to obtain an employee to act as watcher at the polls at the corporation's plant and suggested that George Nelson, business representative of the Union, act as a watcher. Representatives of the corporation and the partnership objected. At a further meeting held that morning at the partnership plant the partnership and corporation representatives expressed an intention of having a chemist, employed by the partner- ship, act as a watcher at the polls at the partnership plant. The union representatives protested this procedure, contending that the chemist had certain supervisory duties. It was finally agreed that Nelson and the chemist might act as watchers that morning at the plants of the corporation and the partnership, respectively, but that the Union would undertake to obtain an employee watcher in the afternoon and the corporation a watcher other than the chemist. The Board agents allowed the balloting to be conducted on this basis in the morning. The Union failed in its attempt to obtain an employee watcher and Nelson started to act as a watcher at the polls at the corporation's plant again in the afternoon. Early in the afternoon a corporation repre- sentative 2 appeared and protested Nelson's continuing to act as a watcher. He threatened that the corporation would "cancel" the 8 This corporation representative was an agent of Calitornia Association of Employers, such agent acting for the employers in this proceeding. 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election if Nelson continued to act. Nelson thereupon indicated that he did not wish to interfere with the progress of the election and he withdrew from the polling place. The Union had no watcher at the polls in the corporation's plant during the remainder of the afternoon. The corporation had its office manager as a watcher throughout the day. 2. The conduct of the corporation's plant superintendent on the day of the election: On the morning of the election soon after the polling place was opened at the corporation's- plant, the union representative protested to an agent of the Board that a man was standing a few feet from the polls and was watching the balloting. The Board agent spoke to the man, who proved to be the corporation's plant superin- tendent. lie was requested by the Board agent to leave the vicinity of the polling place. He thereupon went into some offices adjoining the room which contained the polling place. During the morning while in these ' offices he walked a number of times past the glass window in a connecting door between the offices and the room which contained the polling place. The plant superintendent who testified at the hearing did not deny that these incidents took place. While he attempted to explain his passing through the polling place as part of his normal procedure in going from the plant to the office, he admitted that he knew of the plan to conduct the election in this room on that particular morning and further admitted that he could have reached the office from the plant by going outdoors and coming in at another door. Moreover, it appears that the spot at which the plant superintendent stood to observe the election was approximately 12 feet from the observers' tables and from 20 to 25 feet from the polls themselves. From this position, a full view could be had not only of the observers', tables, but also of the employees as they came in from the employees' entrance to cast their ballots. The length of time during which the corpora- tion's plant superintendent stood watching the election is variously estimated in the evidence as ranging from 2 to 15 minutes.3 During this period the majority of the employees who voted in the morning session ,4 cast their ballots while the plant superintendent was stand- ing within the area allotted to the election. Subsequent to his with- drawal therefrom, the plant superintendent admittedly looked out through the office door window on a number of occasions as the re- sult, according to his testimony, of "just ordinary curiosity to see if there was anybody voting." S The plant superintendent testified that he stood in this position for 1 or 2 minutes. The union business representative testified that the plant superintendent stood watching 1the election for about 15 minutes before being asked by the Board agent to leave the premises 4 The number ,Nho voted at the session is estimated to be between' and 15 employees. CHAPMAN DEHYDRATOR COMPANY, INC. 347 3. The meetings held by the partnership Just prior to the election: Within a week prior to the elections , the partnership held separate meetings of employees on the three shifts employed at the plant. The record reveals that these meetings were held on August 13, 17, and 18, respectively. All of these meetings were held subsequent to the mak- ing of arrangements between the Companies and the Union for the holding of the elections which occurred on August 19, 1943. E. A. Couture, the senior partner , was present and spoke at these meetings. Paul Couture , the junior partner, was present at two meetings and on at least one of these occasions introduced his father to the group. The evidence is uncontradicted that the partnership 's plant superin- tendent attended at least one of these meetings . E. A. Couture told the employees among other things on these occasions that he had in mind inaugurating a plan whereby employees who achieve more than a certain amount of production would receive a bonus for the in- creased efforts. He referred to an article in the Readers Digest as outlining such a plan. Couture stated that in drder to put the plan in operation, approval of the National War Labor Board would be necessary. The plan afforded the employees the possibility of in- creasing their wages by stimulating their production efforts, and they so understood the plan. During the meeting, Couture asked for a show of hands .as to whether the employees favored the ^ plan. A majority of the employees raised their hands in favor thereof. While the partnership did not deny that these meetings and discus- sions took place shortly before the elections , it contended that these meetings were the result of some prior consideration of the subject and of 'a trip by Paul Couture in June to southern California, where he made a study of production plans used in plants similar to that oper- ated by the partnership . On the other hand, there is nothing in the evi- dence to explain why the plan as offered could not have been announced either prior to the direction of elections or subsequent to the holding of the elections. 4. The conduct of the partnership 's plant superintendent on the day of the election : On election day, one employee told the partnership's plant superintendent that she wished to vote against the Union and was of the opinion that by not voting at all she would in effect be casting a "no" vote. The plant superintendent told her in the pres- ence of two other employees that if she wished to make her will felt she would have to vote. The inquiring employees, and the two others who were near enough to have heard the plant superintendent's re- mark, then voted. During the balloting , the plant superintendent went to a Field Examiner for the Board and suggested that some of the employees could not read the ballot and that they should be given instructions. He also raised the question whether it would be advis- 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD able to stop part of the machinery in order to give all employees an opportunity to vote. 5. C'onelusions: The Companies contend that the various acts de- scribed above are insufficient to prove material interference with the conduct of the elections. We find no merit in this contention. As we recently stated, to require a "nice measurement of the actual coercive or intimidating effect of misconduct on the results of the election would place an undue burden on the objecting party and the Board." It is sufficient if during a pre-election campaign or the holding of the election, the employer or agents whose conduct can fairly be imputed to him, have in substantial measure departed from the strict and scru- pulous neutrality they are required to observe. On the basis of the whole record, particularly the evidence relating to the conduct of the corporation's plant superintendent on the day of the election e and the meetings held by the partnership just prior to the election,' we find that the elections did not fairly reflect the un- trammeled wishes of the Companies' employees and did not constitute a fair test of the employees' desires as to representation. For these reasons we sustain the Union's objections to the conduct of the elec- tions and shall set aside the elections held on August 19, 1943. When the Regional Director advises us that the time is appropriate, we shall direct that new elections be held among the Companies' employees. ORDER The National Labor Relations,Board hereby vacates and ,sets aside the elections held in this proceeding on August 19, 1943, and the re- sults thereof. S Matter o f the Kilgore Manufacturing Company, 45 N L R. B. 468 ; Matter of Cenci at Motors Corporation, Allison Division, 46 N L. R B. 574. o The Board has held that the presence of supervisors in the vicinity of the polls for a period of 10 or 15 minutes has the effect of restraining employees from voting in the elec- tion See Matter of New York Handkerchief Company, 16 N L. it. B. 532; New York Handkerchief Company v. N L. if. B, 114 F. (2d) 144, cert, denied, 311 U S. 704. ' The similar announcement just prior to an election, of a voluntary wage increase has been held to constitute an interference with the right of employees to a free choice of bargaining representatives within the meaning of Section 8 (1) of the Act. See Matter of Joseph L Fradkin and Ben Singer, Co-partners, trading as American Linen Service Com- pany and American Laundries, Inc., 45 N L. R. B. 903; see also Matter of Bear Brand Hosiery Co , 40 N. L. R. B. 323; N. L if. B. v. Bear Brand Hosiery Co., 131 F. (2d) 731 (C. C A 7).