The Timken-Detroit Axle Co.

790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was executed. It chose, however, to accept for its constituents the wage -benefits granted them under the extension agreement. Now it requests the Board to find that agreement not a bar to its petition. I. would deny that request. In _my opinion the Petitioner, having elected to accept the contract benefits, is estopped from seeking to invoke the premature extension rule as to that contract. Moreover, I am convinced that in this case the equities lie with the Employer,, who agreed to certain wage demands made by the negotiating com- mittee comprised of representatives of the Intervenor and the Peti- tioner upon their assurance that at least temporary stability of labor management relationship at its plant be maintained. These circum- stances, in my opinion, create a valid exception to the premature extension rule le 10I agree that the contracting parties' knowledge or lack of knowledge of rival union activity at the time they entered into the extension agreement is immaterial with respect to the applicability of the premature extension doctrine . My position in this case does not turn upon such knowledge but upon the Petitioner's participation in the negotiation of and acceptance of benefits under the extension agreement-facts which , in my opinion, clearly distinguish this case from the National Gypsum case cited in the majority opinion. THE TIMKEN -DETROIT AxLE COMPANY and INTERNATIONAL UNION, UNITED, AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WOR$ERS OF AMERICA, LOCAL No. 174, CIO, PETITIONER. Case No. 7-RC-1223. March 21,1952 Supplemental Decision and Order On August 22, 1951, pursuant to a Decision and Direction of Elec-. tion issued by the Board herein on July 27, 19511' an election by secret ballot was conducted under the direction and supervision of the Acting Regional Director for the Seventh Region. At the conclusion of the election, the parties were furnished with a tally of ballots which shows that there were approximately 416 eligible voters and that 363 ballots were cast of which 154 were for the Petitioner, 205 were against the Petitioner, and 4 were challenged. Thereafter, the Petitioner filed timely objections to conduct affecting, the results of the election. On October 1, 1951, the Acting Regional Director issued and served upon the parties his report on the objections to the election, in which he found that certain of the Petitioner's ob- jections raised substantial and material issues with respect to conduct affecting the results of the election and recommended that the-election 195 NLRB 736. 98 NLRB No. 120. THE TIMKEN-DETROIT AXLE COMPANY 791 be' set aside. On October 8, 1951, the Employer filed, exceptions to, the Acting Regional Director's report. The report contains the following undisputed findings of fact. During the campaign preceding the election the Employer sent several letters to its employees in the unit of office and clerical employees found appropriate in this proceeding, stating its opposition to the Petitioner. No objection was raised to these letters. On August 18, 1951, Jack Raymus, one of the clerical employees eligible to vote in the election, submitted to his supervisor a letter which he had drafted, in which he addressed himself to his fellow employees urging them to reject the Petitioner in the forthcoming election. Raymus authorized the Em- ployer to use the letter as it saw fit. Thereupon, the Employer edited and revised the letter, and, with Raymus' approval, duplicated and mailed copies to all the employees eligible to vote in the election. Ray- mus' name appeared on the letter as its author. The letter was duplicated on plain paper and mailed in plain envelopes bearing no return address. In its objections the Petitioner contended that the Employer, by the above-described conduct, had interfered with the election by giving material assistance to a segment of employees eligible to vote in the election. The Acting Regional Director did not pass on the merits of this contention, but concluded instead that (a) the Raymus letter contained a threat that the Employer would withdraw from the em- ployees certain benefits and privileges enumerated therein if the Peti- tioner were selected as their representative; 2 (b) the employees could reasonably have assumed that the Employer had authorized and approved the letter, and had a part in its preparation and distribu- tion; s and (c) the Employer thereby coerced the employees and de- prived them of their right freely to select a collective bargaining 2 The Raymus letter, among other things, contained the following statements : The Company pays our insurance. No Union got that for us. It was a mighty fine gift to us from our Company. The Company gives us a vacation with pay. We work under pleasant conditions-no one breathing down our necks at any time. We are paid a fair salary and always have been. How much have you lost in wages due to illness or l!eing absent from work with the consent of the boss? Do you expect the Company to continue their many acts of kindness if we turn them over to the power of a Union? We are satisfied that the foregoing excerpt from the letter necessarily conveyed the meaning that if the Petitioner were to win the election the Employer would discontinue the enu- merated benefits and privileges. ' The envelopes in which the Raymus letters were mailed were addressed by the same addressograph machine used by the Employer to address its other campaign letters to them. In fact, on August 20, 1951, the day when the Raymus letter was posted , the Employer sent one of its own campaign letters to its employees, thus addressed . The Acting Regional Director presumed that the employees noted the identical appearance of the addresses on both envelopes received by them on the same day, and that they inferred that both were sent by the Employer. 792 DECISIONS OF-NATIONAL'LABOR RELATIONS BOARD representative. Accordingly, he recommended that the election be set aside. The Employer contends that the Acting Regional Director's recom- mendation should not be adopted, and that the Petitioner's objections should be dismissed because: (a) the findings in the report were out- side the scope of the objections; (b) the Raymus letter contained no threat to employees; and (c) the facts established by the investigation furnish no basis for concluding that the employees could reasonably have assumed that the Employer had reproduced and distributed the letter, or, if they possessed such knowledge, that the views expressed "therein were espoused by the Employer. The Employer also contends, contrary to the Petitioner's objection, that it was privileged to assist an employee in making his antiunion views known to his fellow em- ployees, and that no impropriety was involved in such conduct suffi- cient to warrant setting aside the election. We find it unnecessary to pass on the validity of the reasons relied upon by the Acting Regional Director in his recommendation that the election be set aside. We find merit, rather, in the reasons originally advanced by the Petitioner in support of its objections. Contrary to the Acting Regional Director's finding, but indeed as the Employer itself asserts, we are convinced that the employees were blinded to the fact that it was the Employer who revised and prefaced the Raymus letter, and stamped and mailed it to them. We regard such conduct as improper assistance to one of the groups competing in the election, beyond the permissible area of influence resulting from protected ex- pressions of opinion. The use of plain envelopes misrepresented to the employees the source of this antiunion propaganda, thereby in- fringing their right to a fair opportunity to evaluate it. By concealing its part in preparing and distributing the Raymus letter, the Employer created the misleading impression that what was actually company antiunion campaign activity was merely unaided and spontaneous employee sentiment. This impaired the'free and informed atmosphere requisite to an untrammeled expression of choice by its employees.4 Member Styles agrees with the foregoing basis for setting aside the election, but-unlike Chairman Herzog-would also reach the same result without relying upon the above-stated reasons. He would set the election aside because in his view the Employer's assistance to an employee opposing the Petitioner had improperly interfered with the rights of its employees freely to choose their own collective bargaining . representative, apart from the deception involved in this conduct. *, See General Shoe Corporation, 77 NLRB 124. Compare also U. S. C., Title 18, Sec. 612, requiring a statement of the source of any publication or statement relating to a candidate competing for election to Federal office. - THE TIMKEN-DETROIT AXLE, COMPANY 7.93 Clearly had the Employer at its own effort and expense edited, revised, reproduced, and mailed campaign literature to its employees in behalf of the Petitioner, it would thereby have interfered with the rights of its'employees to self-organization guaranteed by Section 7 of the Act. Such aid was no less an interference with these rights when given to an employee opposed to the Petitioner and other employees supporting the Petitioner during the preelection campaign, whether the employees knew or did not know of the Employer's conduct. Accordingly, we shall order that the election of August 22, 1951, be set aside, and shall direct that a new election be held at such time as the Acting Regional Director advises the Board that an election may appropriately be held. Order IT IS REREuY ORDERED that the election held on August 22, 1951, among the employees of the Timken-Detroit Axle Company, at its Detroit, Michigan, offices, be, and it hereby is, set aside. MEMBER MURDOCK, dissenting: I disagree with my colleagues. I do not regard either the "assist- ance" or the "deception" theories advanced by them as sufficient basis for invalidating the election herein. The reproduction and distribu- tion of the Raymus letter, in my opinion, is not the sort of assistance which constitutes an unwarranted interference with a self-determina- tion election. Essentially this conduct by the Employer consisted of a valid exercise of its free speech rights contained in Section 8 (c) of the Act. Had the Employer openly sent a campaign letter to its em- ployees attacking the Petitioner, and enclosing a copy of the Raymus letter with comment that this was an expression of employee sentiment which the Employer desired all employees to know, no fault could have been found with this electioneering technique.' Raymus would, under these circumstances, inevitably have been assisted, just as any compet- ing group is coincidentally assisted by protected campaign statements of an employer by whom it is preferred s The mere fact that the Em- ployer did not use this technique to disseminate Raymus' views, but chose the more direct method of letting the letter speak for itself without comment, does not transform such conduct into a basis for setting aside an election. As to the alleged "deception," my colleagues appear to view the Em- ployer's conduct as so venal as to corrupt the atmosphere and prevent the holding of a free and uncoerced election. I subscribe, along with "My colleagues do not in any degree support their conclusions by relying upon any coercive language in the Raymus letter. I assume, therefore, for purposes of the above illustration , that the Raymus letter contains no coercive statements. e Cf. Standard Oil Company of California , 90 NLRB 1465. 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD my colleagues, to the virtues of clean elections under proper laboratory conditions, but I do not regard the Employer's conduct, looked at in the worst possible light, as more than a trivial dereliction. I am not .convinced on the facts before us that the Employer even intended to deceive its employees in order to gain an advantage in the election. In any event, I find it impossible to believe that the flimsy transgression attributed to the Employer so altered the atmosphere as to spoil the ideal laboratory conditions and warrant setting aside the election. I would overrule the Petitioner's objections and dismiss the petition herein. CHAIRMAN HERZOG took no part in the consideration of the above Supplemental Decision and Order. BROOKINGS PLYWOOD CORPORATION and UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL 1 AND INTERNATIONAL WOODWORKERS OF AMERICA, CIO,2 PETITIONERS. Cases Nos. 36-RC-?93 and, 36-RC-727. March 921,19 Decision and Direction of Elections Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing 3 was held before E. G. Strumpf, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed 4 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Styles]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. , 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Employer is engaged in logging and the manufacture of plywood and lumber in the State of Oregon. It conducts logging ' Herein called the AFL. 2 Herein called the CIO. 8 The petitions In these cases were consolidated for purposes of hearing by an order of the Regional Director , dated January 14, 1952. 4 In view of our discussion and findings, paragraph numbered 4, we find It unnecessary to pass on the Employer's motion for a direction of election In a unit of all employees. 98 NLRB No. 131.