Monumental Life Insurance Co.

In the Matter of MONUMENTAL LIFE INSURANCE COMPANY and UNITED OFFICE AND PROFESSIONAL WORKERS OF AMERICA, C. I. O. Case No. 8-I?-1825 SUPPLEMENTAL DECISION AND ORDER July 2, 1946 Pursuant to a Decision and Direction of Election issued by the Board on July 9, 1945 (62 N. L. R. B. 1200), an election by secret ballot was conducted under the direction and supervision of the Regional Director for the Eighth Region (Cleveland, Ohio), among the employees in the unit found appropriate in said Decision.' Upon the conclusion of the election, a Tally of Ballots was furnished the parties in accordance with the Rules and Regulations of the Board. The Tally indicates that of 149 eligible voters, 133 cast valid votes, of which 55 were for United Office and Professional Workers, C. I. 0., herein called the Union, and 78 against the Union. In addition 1 ballot was challenged. On August 9, 1945, the Union filed Objections to the Election alleging "interference and other unfair labor practices by company officials prior to the election." On September 13, 1945, following an investigation, the Regional Director issued a Report on Objections which was duly served on the parties the same date. In his Report on Objections the Regional Director stated that there was then pending before the Board a complaint case in which the Union had filed charges alleging violation of Section 8 (1), (3), and (4) of the Act; 2 that, in the course of the instant representation pro- ceeding, the Union had filed the usual waiver with respect to the charges in the complaint case; 3 and that the Union based its objections i The unit is comprised of the Ohio insurance agents of Monumental Life Insurance Company, herein called the Company. On August 2, 1945 , there was manual voting in the Company's Cleveland offices. Agents in various other Ohio cities voted by mail, the ballots having been sent to them on approximately July 20, 1945 , and the deadline for return having been August 6, 1945 ' Case No 8-C-1783, hereinafter referred to as the complaint case " The Union filed both its charges in the complaint case and its petition in the instant proceeding on April 19, 1945 On this same date it filed a waiver of its right to protest any election in the instant case on any ground set forth in the complaint case. 69 N L R. B, No. 27. 247 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the election on certain statements of officials of the Company made subsequent to the waiver and shortly before the election. He then made the following findings with respect to the statements : 4 that luncheon meetings were held on July 24 and 26, 1945 , at Columbus and Cleveland , Ohio ; that these meetings were arranged so that all agents in these areas could attend and that cocktails and lunch were paid for by the Company ; that at these meetings L. P. Rock, the president of the Company, made certain statements in which he stressed the benefits agents had received from the Company in the past without the Union ; that Rock then questioned whether the "Union might be as good to the men and referred to Merrill's (president of the Union) putting the picket line around the White House before Russia's entry into the war with Germany and after Russia's entry, advocating the United States ' entry into the war," which remark, the Regional Direc- tor concluded , was "apparently an inference or a direct statement that Merrill was a Communist"; that "Rock said" that the Union was not interested in Walther's case" 5 and "that the Union has dropped Walther's case was clearly not true and Rock must have known it..." ; and that "Rock referred to Jack & Heintz , Inc. and incorrectly said there was a C. I. O . union at the plant," that "Rock then stated that there was a big lay-off at Jack & Heintz, Inc., and a Union had not done those employees any good," and "in contrast he referred to the fact that Monumental wished to expand and add more agents." The Regional Director also found that at a similar luncheon held in Akron on July 26, 1945 , William Keidel , agency manager, addressed agents in that area and stated that the Union 's main interest was in the agents' dues. In addition , the Regional Director found that, at a meeting held in the Cleveland office of Joseph A. Niehaus, agency manager, on July 31, 1945, Niehaus told a group of agents that the Company had been in business 87 years and then remarked : "The Union is in business 13 years and trying to tell the Company how to run the busi- ness." ' The Regional Director recommended that the election be set aside on the grounds that, despite the waiver, the statements of the officials of the Company should be viewed against the background of unfair labor practices shown in the record in the complaint case to have occurred prior to the waiver, and that, when considered in this 4 The hearing in the complaint case had been concluded at the time the Regional Director made his report. He states in his report that he made use of the record in the complaint case in setting forth the statements of the Company 's officials. ' The Company's alleged discriminatory discharge of Julius Walther in violation of Section 8 (3) of the Act was in issue in the complaint case. 6 The Regional Director further found that an editorial signed by Rock which appeared in the July issue of "The Old Black Hen," a company publication , was "an effort to lead the men to believe that it was not necessary for the men to belong to a union to get any benefits in working conditions ." In view of our disposition of the Union's objections con- cerning other statements of Rock and also those of other company officials, we find it unnecessary to pass upon the Union 's objection based on this editorial. MONUMENTAL LIFE INSURANCE COMPANY 249 setting, the statements had "clearly influenced the election in violation of the Act."' Thereafter, the Company duly filed Exceptions to the Report on Objections in which it stated that the use by the Regional Director of testimony in the complaint case record "would seem . . . proper." However, it contended that the Regional Director in his report had used "all of the testimony [in the complaint case] which might be considered as favorable to the Union's objections to the election" but had omitted "qualifying testimony, which places these statements in their proper setting." It also denied that Rock ever said that "the Union had dropped Walther's case." After the Company filed its exceptions, we issued our decision in the complaint case." In a unanimous decision we found that the Company had violated Section 8 (3) and (4) of the Act and also that the statements of Rock, Keidel, and Niehaus made on July 24, 26, and 31 and on which the Union's objections are based were co- ercive and violative of the Act when considered in connection with other unfair labor practices which had occurred prior to the waiver.0 Consequently, we agree with the Regional Director's findings 10 and with his recommendation that the election should be set aside. With respect to the waiver, we note that the Regional Director mentioned it in his report and recommended that, despite it, the prior unfair labor practices should be viewed only as background for appraising the possible effect of the Company's utterances before the election. The Company in its exceptions did not mention the waiver, nor in any manner indicate that it excepted to this recom- mendation. In the absence of exceptions to our agents' recommenda- 7 As already indicated above, at the hearing in the complaint case evidence concerning these statements was introduced. 11 Matter of Monumental Life Insurance Company, 67 N L. R. B. 244, issued April 11, 1946 Our decision in the complaint case reads, in part, as follows. All of the remarks and activities of the officials of the respondent , as found above, reveal a pattern and course of action designed to frustrate the organizational desires of its employees . Considered in such a light , it is clear that the remarks of Rock and Keidel at the luncheon meetings went beyond the permissible limits of free ex- pression Walther' s discharge constituted a cogent warning against disregarding the wishes of the respondent and supporting the Union In this context, the respondent's remarks to the compulsory audience of its agents were intended to be, and necessarily were in fact, coercive and therefore unprivileged It is clear . . that the complex of these happenings , many per se violative of the Act, interfered with, restrained, and coerced the respondent 's employees in the exercise of the rights guaranteed in Section 7 of the Act i0 However, we are of the opinion that our decision in the complaint case gives a more considered and precise reflection of Rock's statements concerning the Walther discharge than that given by the Regional Director in his report. In the complaint case we said with regard to these statements. [Rock] adverted to the visit of Berney [Leon Berney, vice president of the Union] to his office and stated that Berney had expressed interest only in obtaining a contract and none in the Walther case 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions our general practice has been to adopt them without further ado." But assuming that the Company has properly raised the issue of the waiver, we are nevertheless persuaded that the election should be set aside. Our conclusion is premised upon the majority opinion in the May case,12 which is the most recent expression of the Board on this question. In that case the Board was also concerned with the effect of a waiver on preelection conduct. There, the two unions involved objected to the conduct of elections, basing their objections, among other grounds, on statements made by officials of that company shortly before the elections. One of these unions had filed the usual waivers with respect to two prior unfair labor practice cases. Although the statements were made after the filing of the waivers, the Company took the position that because of these waivers the Board should ignore the records in the complaint cases in judging the effect of these state- ments. In reaching its conclusion that the elections should be set aside the majority of the Board reasoned as follows : We propose to set this election aside, not because of the Company's unfair labor practices which were the subject of the waivers, but because of its conduct during the 2 weeks prior to the elections. The effect upon the employees of certain aspects of that conduct, notably addresses made by the Company's officials which are not even rendered intelligible except by allusion to past events, can be realistically determined only by reference to events lying in the past. The filing of the waivers did not obliterate the past unfair labor practices or create the fallacy of their non-occur- rence; nor did we require the waivers to be filed for the purpose of indulging in such fiction. As in the May case we prefer to take the realistic view that pre- waiver conduct may be considered to the limited extent that it illumines subsequent events forming the basis for objections to an election. An opposite approach precludes a fair evaluation of post-waiver activities and amounts to a refusal to face the facts. And in circumstances like those in the instant proceeding, it might wrongfully require a complete about-face. All Members of the Board have already determined in the complaint case that, in the light of previous happenings, the Com- pany's utterances after the waiver was filed were coercive and violative 11 See Matter of Ford Motor Company , 57 N L. R B 1814, 1820, 1821 ; Matter of Nor- folk Shipbuilding & Drydock Corporation, 58 N L it. B 415 , Matter of Merrill-Stevens Dry Dock Co , Case No. 10-R-1274, Decision and Direction of Election, issued November 7, 1944 ( unpub'd) ; Matter of Motor Fuel Carriers, Inc., Case No. 10-R-1449 , Sapp Decision and Certification , issued September 21, 1945 ( unpub'd) ; Matter of the New Jersey Zinc Company ( Mineral Point Division), Case No 13-R-3043, Decision and Order , issued September 11, 1945 ( unpub'd). 12 Matter of The May Department Stores Company , d/b/a Famous-Bair Company, 61 N. L ^ R B 258 MONUMENTAL LIFE INSURANCE COMPANY 251 of the Act . Were we now to regard these remarks in isolation on the theory that pre-waiver activity has been eliminated from considera- tion as background , we might here be forced to decide illogically that they are innocuous and insufficient to warrant the invalidation of the election. Such a line of decision cannot be defended by postulating that the Union is responsible because it submitted a waiver. For this erroneously assumes that the Union agreed when it filed the waiver that the election should not be set aside despite future prejudicial occurrences . We shall void the election in this case , not because of actions which preceded the filing of the waiver , but because of later statements by the Company which this Board unanimously found to constitute unfair labor practices. We find, on the basis of the facts and conclusions above set forth, that by reason of the Company 's interference, the election was not truly representative of the employees' free choice and did not reflect their free and untrammeled wishes as to collective bargaining repre- sentation . We shall, therefore , sustain the Union's Objections to the. Election and shall set aside the election . When the Regional Director ,hall advise its that the time is appropriate , we shall direct that a new election be held among the Company's employees. ORDER Upon the basis of the foregoing findings of fact, the National Labor Relations Board hereby vacates and sets aside the election held in this proceeding pursuant to the Board's Decision and Direction of Election of July 9, 1945, and the result thereof. MR. GERARD D. REILLY, dissenting : I am constrained to dissent from the decision of my colleagues in this case. As there is no disagreement on the facts, they will not be repeated here. It is clear, from the statement of the case set forth by my colleagues, that the speeches of the respondent, standing alone, would fall within the privilege of the First Amendment to the Constitution. The ma- jority, however, has considered the speeches in the context of various unfair labor practices which we found in a case involving this same respondent.13 It is my opinion that such considerations are improper in the circumstances. Prior to the election, the Union had agreed to waive certain alleged unfair labor practices as a basis for setting aside the election. These charges were later sustained by the Board in a complaint case. The speeches were found to constitute part of a pattern of unfair labor " Matter of Monumental Life Insurance Co, 67 N. L. R. B. 244, issued April 11, 1946. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practices when viewed in the context of various other violations of Section 8 (1) and (3) of the Act. I do not recede from my position in that case. Here, however, we are confronted by the speeches re- moved from their context by the Union's waiver. It is well settled that where a union has been aggrieved by unfair labor practices, it need not go into an election until these are remedied, but when, under our administrative practice, it chooses to waive the effect of such illegal actions, it may enter an election if it files a stipu- lation agreeing to waive the previously committed unfair labor practice as a ground for objecting to a possible adverse result of the election. In other words, the parties to the representation proceeding, after a waiver, stand in the same relationship to each other as though no unfair labor practice had been committed. As a result of this novel decision, however, my colleagues are in effect saying that a waiver does not mean what it says. It also has the effect of denying to an employer, against whom charges are pending, even though they have been waived, the right to express himself upon the question of the representation of his employees during the time that the election campaign is going on. Since this right of expression is a Constitutional one, it is difficult to understand how this Board can attach any strings to its exercise. "The right to free speech in the future is not to be forfeited because of misconduct in the past." 14 "Edward G. Budd Manufacturing Co. v. N. L. R. B, March 27, 1944, petition filed in contempt prpoceedings, Apr. 3 , 1944 (C. C. A. 3) rule to show cause issued , 142 F. (2d) 922 (C. C. A 3), rule discharged.