Onondaga Pottery Co.

58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and conditions contained in a contract for a fixed period, if such modification is to become effective before such terms and condi- tions can be reopened under the provisions of the contract [emphasis added]. We conclude, therefore, that the Employer and the Intervenor, by modifying, their contract in the manner described above, did not `'open up" the contract in such a way as to render it vulnerable to a pending claim or petition-whether or not, as contended, they acted in advance of the contract reopening date or within the scope of the wage modification provision. Moreover, the petition herein was untimely filed on December 4, 1950, after the execution of the last supplemental agreement 12 Accordingly, we shall grant the Inter- venor's motion to dismiss the petition, on the ground that the contract constitutes a bar to a present determination of representatives. Order IT Is HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed. MEMBER REYNOLDS took no part in the consideration of the above Decision and Order. ^ The Petitioner 's representation claim of September 8, 1950, antedating the supple- mental agreements in question-cannot be considered validly related to the present petition because, water adaa, it was merged in the petition of September 15, 1950 , dismissed by the Regional Director , and no appeal was taken Cf. General Electric X-Ray Corporation, 67 NLRB 997. ONONDAGA POTTERY COMPANY and FEDERATION OF GLASS, CERAMIC & SILICA SAND WORKERS OF AMERICA, CIO, PETITIONER. Case No. 3-RC-559. April 27, 1951 Decision and Order Setting Aside Election On November 1, 1950, pursuant to a stipulation for certification upon consent election, an election by'secret ballot was conducted under the direction and supervision of the Regional Director for the Third Region among the employees in the appropriate unit. Upon com- pletion of the election a tally of ballots was issued and duly served by the Regional Director upon the parties concerned. The tally re- veals that of approximately 1,731 eligible voters, 1,575 cast valid bal- lots, of which 474 were for the Petitioner and 1,101 were against. The tally also showed that there were 8 void, ballots and 9 ballots which were challenged. On November 2, 1950, the Petitioner filed objections to the election. On February 16, 1951, the Regional Director issued a report on ob- 94 NLRB No. 25. ONONDAGA POTTERY COMPANY 59 .sections to the election. In his report on objections, the Regional Director recommended that the Board overrule the Petitioner's ob- jections. On March 7, 1951, the Petitioner filed exceptions to the report on objections, alleging that the Regional Director had disre- garded the weight of the evidence, applied erroneous principles of law, and had not made a full investigation? Upon the entire record in this case, the Board finds : 2 In its objections, the Petitioner alleged that (1) the Employer intimidated and coerced employees into voting against the Petitioner and discouraged employees from voting in.favor of the Petitioner; (2) the Employer threatened to shut down the plant if the Petitioner won the election; (3) the Employer threatened loss of jobs for older em- ployees if the Petitioner won the election; and (4) the employees were promised a wage increase if they voted against the Petitioner. The Regional Director found no evidence to support objections 3 and 4 and found that statements admittedly made by the Employer and cited by the Petitioner in support of objections 1 and 2, were ex- pressions of opinion without threats of promise of benefit and pro- tected by Section 8 (c) of the Act. On October 31, 1950, the day preceding the election, the Employer's president, addressing the employees at the Fayette plant, stated : You know my opinion that under the principles and practices of your leaders here a union is not needed and would impose a serious barrier tending to injure, if not destroy, the human values which have existed here and which I consider of major importance to the continued success of this organization and all of us who work here. I have spoken to you of the problem of keeping in operation this old Fayette plant which, from an engineering standpoint, is now obsolete. You know of our efforts to keep it running and my reasoned hope that we can do so successfully if we can retain the human values of interest and diligence, the care and skillful workmanship, which have resulted from the spirit of friendly cooperation and good teamwork we have had here. You know my opinion, as expressed at the last meeting, that if anything should happen to prevent our continuing to work together in this ' On March 12, 1951, the Employer moved to dismiss the Petitioner's exceptions on the ground that they were not timely filed. While exceptions were not filed within the 5-day period following date of service of the report on objections as required by Section 203.61 ( b) of the Board Rules and Regulations , Series 5, then applicable , the Board, on Pebruary 26, 1951, extended the time for filing exceptions until March 8, 1951, because Petitioner's attorney of record had not himself been served with the report within the meaning of the Rules. Accordingly , we herewith deny the motion to dismiss made by the Employer. 2 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 Murdock and Styles]. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant in that spirit which we have had in the past, then in my opinion this old Fayette Street plant is doomed. Now that is not a threat, as I am told some have wished to misconstrue it. It is not a threat. It is my considered judgment, and- you have a right to know it. [Emphasis supplied.] The same statements, in essence, were repeated at the Employer's ,Court Street plant, which, with the Fayette plant, comprises the appropriate bargaining unit. The Regional Director found, in agree- ment with the Employer, that these statements were merely reitera- tions of warnings previously given to the employees as to the necessity for increased production, efficiency, and good workmanship at the Fayette Street plant in order that the plant might remain open. We do not agree. It is true that, on previous, occasions, the Employer had made the marginal economic status of the Fayette plant clear to its em- ployees and stressed the need for efficient production. In this speech, however, the continued keeping in operation of the plant was linked to "human values" which the Employer expressly stated would be injured or destroyed if the Petitioner were successful in the election. We believe the implications of the speech to be plain, that the plant was "doomed" if a union were to be chosen. Prior warnings as to the uncertain status of the plant accentuated, rather than removed, the pressure exerted in this instance. Moreover, we do not consider that the denial of any threatening intent in the speech by the Employer acted to remove the actual threat of reprisal implicit in the preceding language. We find, therefore, that the language set forth above in the speech of October 31, 1950, by the Employer to the employees at the Fayette Street plant, by its very nature, coercive in character and so related to the election in time as to have had a probable effect upon the action of the employees at the polls.3 Accordingly, we find that the Em- ployer interfered with and restrained its employees in their choice of a bargaining representative. Because the election of November 1, 1950, therefore did not reflect the employees' free choice of a bargain- ing representative, we shall sustain the Petitioner's objections 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 election be held 'among the employees concerned. Order IT IS HEREBY ORDERED that the election held on November 1, 1950, among the employees of the Onondaga Pottery Company, Syracuse, New York, be, and it hereby is, set aside. 8 See Schwarzenbach Huber Company, 85 NLRB 1490, and cases cited therein.