U.S. Rubber Co.

In the Matter of U. S. RUBBER CO. (SCOTTSVILLE PLANT), EMPLOYER and TEXTILE WORKERS UNION OF AMERICA, CIO, PETITIONER and UNITED TEXTILE WORKERS UNION, AFL, INTERVENOR Case No. 5-RC-38 SECOND SUPPLEMENTAL DECISION AND ORDER September 20, 19419 On October 20, 1948, pursuant to a Board Supplemental Decision and Order issued on September 28, 1948,1 a run-off election was held at the Employer's Scottsville, Virginia, plant among the employees in Voting Group 12 established in the initial Board Decision and Direction of Elections herein,3 which election the Petitioner lost.4 Thereafter, the Petitioner filed timely objections to conduct affect- ing the results of the run-off election. Thereupon, in accordance with the Board's Rules and Regulations, the Regional Director con- ducted an investigation and issued and duly served upon the parties his Report on Objections, in which he recommended that five of the Petitioner's six objections be overruled for lack of merit, and that a hearing be held on the sixth objection 5 which, in his opinion, raised substantial and material issues with respect to conduct affecting the results of the election. No exceptions having been filed to the Regional Director's report, the Board, having duly considered the matter, issued, on February 16, 1949, its Order Directing Hearing on Objections and 1 Unpublished. 2 All production and maintenance employees at the Employer 's Scottsville , Virginia , plant, excluding office clerical , plant clerical , watchmen , guards, laboratory employees , cafeteria employees, overseers , shift supervisors, foremen, and all other professional and super- visory employees as defined in the Act. 3 78 N. L. it. B. 532. * Of the approximately 235 eligible voters , 100 voted for the Petitioner , 122 voted against the Petitioner, and 10 ballots were challenged . The Intervenor was not on the ballot in the run-off election. 5 That the Employer influenced the election results by making promises of special benefits for those who opposed the Petitioner and threatening to move the plant if the Petitioner won the election. 86 N. L. R. B., No. 2. 3 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Remanding Case to Regional Director,6 for the purpose of conducting a hearing on the issues raised by the aforesaid objection. The hearing was held on May 17, 1949, before Charles B. Slaughter, hearing officer. The petitioner and the Employer appeared and par- ticipated.7 On July 26, 1949, the hearing officer issued his Report on Objections to Election, a copy of Which is attached hereto, in which he recommended that the run-off election not be set aside. The Peti- tioner has filed timely exceptions to the hearing officer's Report on Objections to Election. The Board 8 has reviewed the rulings made by the hearing officer at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Re- port on Objections to Election, the exceptions filed by the Petitioner, and the entire record in the case and, finding merit in the Petitioner's exceptions, hereby adopts such of the hearing officer's findings and conclusions as are not inconsistent with this Second Supplemental Decision and Order. The hearing officer found that, sometime within the 2-month period between the original election and the run-off election, one of the Em- ployer's supervisors asked an employee if he intended to help bring the Union into the plant and what effect the advent of the Union would have on his standing in the community; that the employee replied he thought he would benefit ; and that the supervisor replied he thought the employee was wrong .9 The hearing officer further found that approximately 10 days before the run-off election, the Employer's plant manager told another employee that the plant would have to be closed if the Petitioner won the election.10 He concluded that the afore- mentioned interrogation and threat interfered with the rights of em- ployees guaranteed by Section 7 of the Act11 He further concluded, 6 The order was corrected on April 22, 1949. On May 13, 1949, the Board amended its Order to direct the hearing officer to prepare and serve upon the parties a report contain- ing findings of fact and recommendations to the Board. We find without merit the Employer's objections to participation of Board counsel at the hearing, to the procedure adopted at the hearing, and to that portion of the Board's Order directing the hearing officer to prepare and serve upon the parties a report containing findings of fact and recommendations to the Board. Matter of Minnesota Mining and Manufacturing Company, S1 N. L. R. B. 557. 7 Although served with a Notice of Hearing, the Intervenor did not appear at or par- ticipate in the hearing. 8 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel (Chairman Herzog and Members Houston and Gray]. Although no specific union was named during the conversation, both the supervisor and the employee knew at that time that the Petitioner would be the only union on the ballot in the forthcoming run-off election. Moreover, this employee had been active on behalf of the Petitioner prior to the original election. We infer and find, therefore, that the Petitioner was the subject of the foregoing conversation. No exceptions were taken to the foregoing findings of fact. No exceptions were taken to this conclusion. U. S. RUBBER CO. a however, that inasmuch as the interrogation and threat were no more than isolated incidents, and as the Petitioner received only four less votes in the run-off election than it received in the original election,12 the Employer's conduct did not materially affect the results of the run-off election. We do not agree with this rationale. The Board has consistently held that interrogation of employees and threats of economic reprisal' should a union win an election, if, as is here the case, reasonably related in time to the election, constitute such interference with the employees' free choice of representatives as to warrant the setting aside of the election. In a recent case 13 the. Board held that an election fails of its purpose unless it affords to all employees an opportunity to register their free and uncoerced choice of a bargaining representative. In that case, the Board set aside an election on the basis of interference with a single employee. Accord- ingly, the number of instances of interference, or the number of em- ployees directly involved, are not material to the issue. When, as here, two employees have been interfered with in their choice of rep- resentative, the requirements for a wholly free and uncoerced election have not been fulfilled. Moreover, it is impossible to measure the effect of such interference upon the exercise of their right of franchise either by the employees directly concerned or by other employees who might have learned of the interference. Accordingly, we consider also irrelevant the re- lationship between the results of the first election and the results of the run-off election, and any inferences which might be drawn from such relationship. Although we do not rely on any such speculation, we consider it equally possible that, but for the Employer's interfer- ence, the Petitioner might have gained strength between the original election and the run-off election, rather than merely maintain its previous position. Accordingly, because the Employer's conduct interfered with the exercise of a free choice of a bargaining representative by the em- ployees in Voting Group I, we shall sustain the Petitioner's objec- tions to the election and shall set the election aside.- When the Regional Director advises the Board that the circumstances permit the free choice of a bargaining representative, we shall direct that a new run-off election be held among these employees. 12 In the original election among the employees in Voting Group I, held on August 13, 1948, 104 votes were cast for the Petitioner, 29 for the Intervenor, 100 against the participating labor organizations, and 3 ballots were challenged. 13 Matter of G. H. Hess, incorporated, 82 N. L. R. B. 463. 14 Matter of Craddock-Terry Shoe Corporation, 82 N. L. R. B. 161. 867351-50-vol. 86-2 ,6 DECISIO NS OF NATIONAL LABOR RELATIONS BOARD ORDER IT IS HEREBY ORDERED that the election held on October 20, 1948, .among the employees of U. S. Rubber Co. (Scottsville Plant), Scotts- ville, Virginia, be, and it hereby is, set aside. HEARING OFFICER'S REPORT ON OBJECTIONS TO ELECTION Harold G. Biermann, Esq., for the Board. Frank A. Constanzy, Esq., and Legare Davis, Esq., of Atlanta, Ga., for the Company. William DuChessi, of Lynchburg, Va., for the Union. Upon a petition duly filed, the Board on July 20, 1948, issued its Decision and Direction of Elections' in which it directed separate elections to be conducted among the Company's production and maintenance employees in Group I and its cafeteria employees in Group II. Appearing on the ballots of each of the respective voting groups were Textile Workers Union of America, CIO (here- inafter referred to as the Petitioner) and United Textile Workers Union, AFL (hereinafter referred to as the Intervenor).' On August 13, 1948, an election was conducted under the direction and supervision of the Regional Director for the Fifth Region (Baltimore, Maryland). The results of the election in Group I were inclusive' .and "no union" was the unanimous choice of Group II. There- after, on August 19, 1948, the Intervenor duly filed Objections to Conduct Af- fecting the Results of Election and on August 18, 1948, the Company filed a mo- tion requesting the Regional Director, in the event of a run-off election, to permit cafeteria employees, Group II, to vote on a parity with the production and maintenance employees, Group I. -On September 1, 1948, the Regional Director served on the parties his Report and Recommendations on Objections .and Motion as to Conduct of Run-Off, and on September 28, 1948, the Board issued its Sup- plemental Decision and Order denying the Company's motion and remanding the case to the Regional Director for the purpose of conducting a run-off election to resolve the question concerning representation in Group I. Pursuant to the Board's Supplemental Decision and Order and Sections 203.61 and 203.62 of the Board's Rules and Regulations, the Regional Director on October 20, 1948, conducted a run-off among the employees in Group I, the Petitioner and "No Union" appearing on the ballot. On the same day a Tally of Ballots was served on the parties by the Regional Director. The Tally reveals that of ^ approximately 235 eligible voters, 232 cast ballots, of which 100 voted for the Petitioner, 122 voted against the Petitioner and 10 ballots were challenged. On October 22, 1948, the Petitioner filed Objections to the Conduct of the Run-Off Election, requesting that the election be set aside on the grounds: 1. That the Company unfairly influenced the election by (a) stopping the mill on each shift and ordering all employees to a central point and forcing them to listen to antiunion speeches in which outright 178 N. L. R. B. 532. 2 The Intervenor and the Company had had contractual relations from December 1945 until December 1947. 8 Of the approximately 233 eligible voters, 104 voted for the Petitioner, 29 voted for the Intervenor, 100 voted against the participating labor organizations, and 3 ballots were challenged. U. S. RUBBER CO. 7 falsehoods and inflammatory statements were made, with the entire office force and supervisory staff being held in the plant during their off hours to provide applause for the speaker; (b) sending all employees a letter, through the Lions Club of Scottsville, of which the Plant Manager is Vice-President , which denounced the C. I. 0., intimated that the plant would close if the C. I. 0. were voted in, and accused T. W. U. A. of being a Communistic organization and advocating racial equality ; ( c) making promises of special benefits for those who opposed the C. I. 0. and telling others that the plant would be moved away if the C. I. 0. were voted in. 2. The Office Manager's wife sat in a glass half -enclosed office within 20 feet of the voting booths throughout the voting period. 3. Esther J. King, the Company's election observer, is a supervisor, with power to hire and fire. 4. At least one of the cafeteria workers, who was excluded from the unit, secured a ballot, marked it and placed it in the ballot box. On January 27, 1949, the Regional Director, following investigation, duly served on the parties his Report on Objections in which he recommended that Objections 1 (a) and (b), and 2, 3, and 4 be overruled for lack of merit. The Regional Di- rector further was of the opinion that Objection 1 (c) raised substantial and material issues with respect to conduct affecting the results of the election and recommended that the Board direct a hearing thereon. No exceptions having been filed to the Regional Director's Report, the Board on February 16, 1949, issued an Order Directing Hearing on Objections and Remanding Case to Regional Director4 for the purpose of conducting a hearing on the issues raised with respect to the preelection conduct on the part of the Company as set forth in Objection 1 (c). Pursuant to notice a hearing was held on May 17, 1949, at Charlottesville, Virginia, before the undersigned Hearing Officer,' at which the Board, the Company, and the Petitioner appeared and participated. At the out- set of the hearing the Company moved to dismiss the proceedings on the grounds ; (1) that the appearance and participation of counsel for the Board constituted a violation of the Amended Act and the Administrative Procedures Act; e (2) that while the proceeding purported to be under Section 9 of the Amended Act, it had all the aspects of a proceeding under Section 10 thereof without, however, a charge having been filed, and, therefore, the procedure was improper; (3) that the Board's Order directing the Hearing Officer to make findings of fact and recommendations was contrary to Section 9 (c) (1) of the Amended Act and was tantamount to an amendment of its Rules and Regulations without public notice and hearing as required by the Administrative Procedures Act. At the close of the hearing, the Company renewed the above motion and, further, moved to dismiss for the reason that the objector had failed to carry forth the burden of establishing conduct which affected the results of the run-off election. These motions were referred to the Board for appropriate disposition inasmuch as the Hearing Officer has no power to rule thereon. None of the parties filed briefs after the close of the hearing. Upon the entire record in the case and from his obser- ation of witnesses, the undersigned makes the following : 4 As amended by Order Correcting Order Directing Hearing on Objections and Remanding Case to Regional Director , dated April 22, 1949. b BY its Order Amending Order Directing Hearing on Objections , dated May 13, 1949, the Board ordered the Hearing Officer to prepare and serve upon the parties a report .containing findings of fact and recommendations to the Board. 6 Public Law 404, 79th Congress , Chapter 324 , 2nd session. 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT The pre-elect ion conduct of the Company ° . As noted above, the initial election was conducted on August 13, 1948, pur- suant to a Decision and Direction of Election of the Board. Thereafter, the Board remanded the case to the Regional Director for the conduct of a run-off election in Group I, the results of the first election in that unit having been in- conclusive. Accordingly, the run-off was duly scheduled for and conducted on. October 20, 1948, with the Petitioner and "No Union" on the ballot. Of the 232. votes cast, the Petitioner received 100 and "No Union" received 122. Subsequently, the Board directed the instant proceeding for the purpose of establishing the facto relative to paragraph 1 (c) of the Petitioner's duly filed objections. Louis E. Penland, an employee of the Company engaged principally in the overhauling of weaving machines, testified that one day between the first and. second elections he met Production Foreman H. C. Craft near the entrance to the company cafeteria where they engaged in a conversation,' during which Craft allegedly stated that Penland enjoyed a good reputation in the com- munity and the mill ; asked Penland if he would "help get the Union ° in there, and if they wanted to strike, what my friends would think of it." Penland. states he replied, ". . . at the time I thought it would benefit me." Craft thereupon told him he (Craft) thought Penland was wrong and the conversa- tion switched off to another subject. After a few minutes, some reference was made to the Company's Dan River Mill or Winnsboro Mill, Penland was not sure which, and according to Penland, Craft stated, "Down there they took. their lunch hour on their own time, and the operators ate when they were operat- ing the shift . . . you know, we could take your lunch hour away from you here." Craft readily admitted that he questioned Penland concerning his standing in the community should "the union" get in the plant, but did not recall any question of strikes being raised. Craft, moreover, declared that the only ref- erence to the lunch hour related to the Company's Winnsboro, South Carolina, plant, and that to the best of his recollection he stated to Penland, "I told him that when I was a machine operator.in the Winnsboro plant I ate my lunch while watching my machine. We didn't have a cafeteria." Craft denied, how- ever, that there was any connection between the subject of lunch periods and the election and thus that he threatened that if the Petitioner should win the election, the employees' lunch period could be taken away from them 1° Both Penland and Craft testified that their conversation lasted for approx- imately 15 minutes, and they apparently agree that between the question relat- ing to Penland's status in the community and the subject of the lunch periods 4 No mention is hereinafter made concerning the testimony of Louis America, a witness called by the Board, inasmuch as the undersigned does not consider that his testimony can be construed as supporting Objection 1 (c). 8 While neither Penland nor Craft was able to establish a date for this meeting, which was not apparently an uncommon occurrence, they both agreed it took place at approxi- mately 11 : 30 a. m. as Penland was on his way to lunch. Craft obviously could not recall whether the event occurred before or after the first election , but was willing to accept Penland's statement that it occurred between August 13 and October 20, 1948. The undersigned, accordingly, so finds. ° Penland and Craft agreed that only the vague designation "the union " was used in the conversation. 10 Craft testified that at the time of the October 20 election the machine operators at the Winnsboro plant continued to eat their lunch while on the job and that the plant had been under union contract for several years. U. S. RUBBER CO. 9 other topics were discussed . Also, according to Craft, he had on another occa- sion, whether before or after the election he could not recollect, admonished Penland for exceeding the period allotted him for lunch. The undersigned credits Craft's denial that in his conversation with Penland he connected the lack of lunch periods for machine operators at the Company's Winnsboro plant with the possibility of a similar result at the Scottsville plant, should the Petitioner win the October 20 election. Indeed, Craft was impressively candid in the manner in which he conducted himself under examination . Accord- ingly, the undersigned finds that Craft did ask Penland how the advent of "the Union" would affect his standing in the community and, according to the unde- nied testimony of Penland , that Craft asked him if he "would help get the Union in there." The undersigned also finds, however , that Craft did not state that the Company could take away the lunch period at the Scottsville plant, should the Petitioner, or "the Union," win the October 20, 1948, election. Simon F. Breedon, a trail machine operator at the Company's Scottsville plant, testified that about a week or 10 days prior to the run-off election, Donald Carroll, Plant Manager, went to his house to buy eggs" While he was waiting in the house for Breedon's wife to pack them, Carroll, according of Breedon, asked the latter, "Mr. Breedon, don't you think you would be better without a union than with one?" Breedon assertedly replied that he did not "care a damn how it goes. I'm ready to quit." Thereupon Carroll stated , "Well, if the CIO wins, we'll have to shut her down." James S. Breedon , son of Simon Breedon, was called by the Board to corroborate the elder Breedon 32 He testi- fied that Carroll asked his father what he thought about the Union, to which the elder Breedon replied, "Well, I think it would be a pretty good idea, don't you?" Carroll stated, "No, if they come in there, we are going to have to shut down. We haven't got the money to pay for the wages." Young Breedon testi- fied that the above conversation took place in the living room of his father's house. Thereafter, lie asserted, Carroll, his father and mother and he himself went out on the porch, where in the presence of his father and mother, Carroll said that should the CIO win the election, the employees would make less money because of strikes. Young Breedon further testified that just before Carroll left the house he reiterated his previous statement to the elder Breedon that "if it comes in there, we are going to have to shut it down , because we ain't got the money to pay it." 11 Carroll admitted that he had gone to the Breedon home a week or 10 days prior to the run-off election to purchase eggs and that he had had a conversation on the porch with the elder Breedon and his son. However, Carroll's version as to what transpired differs from the Breedons'. According to Carroll, the conversation he had was primarily with the younger Breedon. The latter, according to Carroll's direct examination, told him he had a carpentering job in Charlottesville and was at the time out on strike. Upon being informed of this, Carroll allegedly said, "We are having an election down at the plant soon, and if the C. I. 0. should be voted in, I hope that that doesn't happen to our plant, meaning that they go out on strike." Carroll denied that he made any threat to close the plant down, 11 Carroll corroborated Breedon's testimony that the former had regularly purchased eggs from Mrs. Breedon for approximately 2 years. 12 Young Breedon had been an employee of the Scottsville plant for a short period in 1945 , but at the time of the elections and during the hearing was employed elsewhere. 13 According to young Breedon the porch of his father's house is about 6 feet wide in construction , but flower boxes on either end narrow the dimensions so that his father who was standing near by must have been within hearing distance of Carroll. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD should the Petitioner win the election, or that he addressed any inquiries as to the elder Breedon's views relative to the success of the C. I. O. in the pending run-off election. There is some reason to doubt that the incident happened before the run-off election and not before the elections of August 16. The elder Breedon's testimony is conspicuous in its absence of any reference to the presence of his son during his version of the conversation with Carroll. Moreover, the Younger Breedon on direct examination quite definitely testified that he moved from his father's house in July 1948. Yet subsequently in his direct testimony in answer to a question as to whether he was visiting his father at the time of Carroll's mission to purchase eggs, young Breedon declared that he was still living with his father. While such doubts exist, they would appear to be dissipated by Carroll himself who very definitely recalled that his visit with the Breedons was a week or 10 days prior to the run-off election and that the discussion did relate to the status of young Breedon's job at that time, although their versions differ as to content. In this state of the record it is reasonable to infer, and the undersigned so finds, that young Breedon was mistaken when he testified that he was living with his parents. The undersigned further finds that the elder Breedon, who was not inclined to volunteer information, simply did not note the presence of his son for the simple reason that he was only asked to testify concerning what took place between him and Carroll.19 The undersigned is persuaded from the record as a whole and from his obser- vation of the Breedons on the one hand and Carroll on the other that the Breed- ons' versions of the events which transpired at the elder Breedon's house con- stitute substantially accurate representations of what occurred. The account given by the Breedons is mutually corroborative. The Breedons, obviously lack- ing in education, and attendant advantages, impressed the undersigned with the forthright manner in which they conducted themselves under oath. On the other hand Carroll particularly by his propensity to quibble when under cross examina- tion by counsel for the Board, unfavorably impressed the undersigned. Under all the circumstances, therefore, the undersigned finds that approximately 10 days before the run-off election Carroll told the elder Breedon in the living room of the Breedon home that the plant would have to be shut down, should the Petitioner win the pending election, and that he stated substantially the same conclusion to the younger Breedon, on the porch in the presence of his father, stating that the Company would not be able to pay the wages it considered the C. I. O. would demand. Conclusions Having found that Craft questioned Penland concerning his intended activities on behalf of the Petitioner and that Carroll stated to the Breedons that the plant would be closed down, should the Petitioner win the run-off election, the under- signed finds that the Company thereby interfered with certain of its employees' rights as guaranteed under Section 7 of the Act. There remains for considera- tion, therefore, the question as to whether, on the basis of the facts found, the run-off election in Group I should be set aside and a new election ordered. The undersigned is of the opinion that a new election should not be ordered, and recommends that the Board so find . The coercive statements were nothing more than isolated instances made to, and in the presence of, two employees who 14 This would be consistent with the testimony of the younger Breedon that Carroll and his father did their conversing in the living room and he had no conversation with Carroll until they went out onto the porch. U. S. RUBBER CO. 11 admittedly were not active on the Petitioner's behalf between the elections of August 16 and the run-off election " and only the statements attributed to Carroll were made in the presence of third parties, who, however, were not employees of the Scottsville plant. Moreover, the results of the run-off election, as contrasted to the August 16 election in Group I, reveal that the Petitioner received only four less votes, while "No Union" received 122, although in the first election "No Union" received 100 and the Intervenor 29. Also, in the first election there were approximately 233 valid votes counted as against 222 in the run-off. Thus, these facts would seem clearly to indicate that the Petitioner virtually maintained its status quo at the October 20 election, whereas "No Union" appears to have fallen heir to the great majority of votes originally cast for the Intervenor. Recommendations I am, therefore, of the opinion that the coercive instances found did not mate- rially, if at all, affect the results of the run-off election of October 20, 1949, so as to warrant its being set aside, and it is recommended that the Board so find. Dated at Baltimore, Maryland, this 26th day of July 1949. CHABLEs B. SLAUaaTfm, Hearing Dicer. 15 In addition to the elder Breedon's declaration that he was not active in favor of the Petitioner, Penland testified that prior to the first elections he talked to fellow employees ins town and going to and from work, but that he did not campaign on behalf of the, Petitioner prior to the second election.