Foreman & Clark, Inc.

40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Miller, who is not a machinist, rather than as a helper to the ma- chinists or their apprentices. It was testified without contradic- tion that Fleming is not assigned to the machine shop as such, although it is clear that he spends about 60 percent of his time within the shop, where he devotes himself largely to threading and cutting pipe, a task not related to machinist work. In the production area of the plants, Fleming cleans up machines, detaches pipe, disassem- bles machinery to bring into the machine shop, and performs minor mechanical work. As it appears on this record that Fleming is not in fact a machinists' helper and is not a proper part of the machine shop, we shall exclude him. Accordingly, we shall direct a separate election among the follow- ing employees at the Employer's plants at Jackson, Mississippi, ex- cluding employee Fleming, the welders,10 all other employees, and supervisors as defined in the Act : All machinists and apprentices or learners. If a majority of the employees indicate, by voting for the Peti- tioner, their desire to be represented in a separate unit, the Board finds such unit to be appropriate and the Regional Director conducting the election directed herein is instructed, in that event, to issue a certification of representatives to the Petitioner for such unit. If a majority of the employees vote for the Intervenor, the Board finds, in such event, that these employees are appropriately represented in the presently existing production and maintenance unit, and in- structs the Regional Director to issue a certification of results of election to that effect. [Text of Direction of Election omitted from publication in this volume.] 30 The Petitioner stated an alternative position at the hearing that it would accept the welders in the unit only if the Board found the unit inappropriate without them . No other party seeks their inclusion . They are not in the machine shop and do not share the same immediate supervision of the machinists. FOREMAN & CLARK, INC. and LOCAL 297, AMALGAMATED CLOTHING WORKERS OF AMERICA, CIO, PETITIONER . Case No. P1-RC-1836. October 21, 1952 Supplemental Decision, Order, and Second Direction of Election On April 4, 1952, pursuant to the Board's Supplemental Decision and Direction of Election,' an election by secret ballot was conducted, under the direction and supervision of the Regional Director for the Twenty-first Region, among employees in the unit heretofore found 197 NLRB 1080. 101 NLRB No. 12. FOREMAN & CLARK, INC. 41 appropriate. Upon the conclusion of the election, a tally of ballots was furnished the parties. The tally shows that of approximately 36 eligible voters, 35 cast ballots of which 17 were for and 18 were against the Petitioner. One ballot was void and none was challenged. On April 8, 1952, the Petitioner filed objections to the election. In accordance with the Rules and Regulations of the Board, the Regional Director conducted an investigation of the objections and on May 13, 1952, issued and served upon the parties his report on objections, in which he found that the objections raised substantial and material issues with respect to the election, and recommended that the Board set aside the election. On May 22, 1952, the Employer filed exceptions to the Regional Director's report, requesting that the Board overrule the recommendations of the Regional Director on the objections and certify the results of the election. There is no dispute as to the facts in this matter. The election was scheduled to be held on April 4, 1952, with polling places at each of the nine stores involved. The Employer's president visited each of the nine affected stores and made an informal speech to the eligible employees, who were called together in the alteration shop during working hours for that purpose. The Employer's president called at the various stores in the following order and addressed the number of eligible employees indicated : On April 2, 1952, at Pomona, one employee; at San Bernardino, four employees; and at San Diego, six employees; and on April 3, at Long Beach, four employees; at Hunt- ington Park, three employees; at Burbank, three employees; at Hol- lywood, two employees ; at Wilshire Boulevard, Los Angeles, four em- ployees; and at Seventh & Hill Streets, Los Angeles, nine employees. The Union learned of these talks the evening of April 3, and there- after filed objections to the election because of the Employer's conduct in holding these speeches just before the election without giving the Union the opportunity or the use of equal facilities to reply. There is no allegation that the contents of the Employer's speeches went be- yond the protection of 8 (c) of the Act. The Employer defends its conduct on the ground that the Union failed to request an opportunity to reply. We agree with the Regional Director's conclusion that by timing the speech in this manner the Employer made impossible the holding of any further meetings before the election and thereby, in effect, denied the Union an opportunity to speak under comparable circum- stances. Taking into account the locations of the nine stores involved and the amount of time necessary to cover these distances, as evidenced by the time consumed by the Employer's own schedule in making his speeches, it is clear that the Employer by so timing his remarks pre- cluded the possibility of the Union being able to request and be given 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a similar opportunity to speak. By thus using the company time and property for electioneering speeches to employee assemblies while, in effect, denying the Union similar use, the Employer prevented the employees from hearing "both sides of the story under circumstances which reasonably approximate equality." 2 This discriminatory use of company facilities interfered with the employees' freedom of choice in the selection of a bargaining representative. Accordingly, we shall direct that a new election be conducted. We are astonished that our dissenting colleague should read into this decision any requirement of intent to require that a union "must always have the last word" to assure free choice in elections. The Board's decisions in this area rest only on the proposition that an em- ployer cannot utilize company time and property for campaign pur- poses while discriminatorily denying the union the equal opportunity to so campaign; and that an employer who resorts to the stratagem of a last-minute speech to his employees, thereby precluding the possi- bility of an effective request or opportunity for the union similarly to address the employees, has in effect denied the equal opportunity to the union. Had this Employer apprised the Union of its intention to make eleventh hour speeches in time for the Union to request a similar opportunity and had the Employer honored the request by allowing a union representative to speak first, reserving last place for itself, we would have rejected any union claim that the election should be set aside because the Union had not had "the last word." The vice in the instant case is the denial to the Union of the similar opportunity to speak at all. In view of our decision herein, we find it unnecessary to determine whether the Employer also interfered with the election by addressing the employees in small groups, as found by the Regional Director. Order IT IS HEREBY ORDERED that the election held on April 4, 1952, among employees of Foreman & Clark, Inc., at Pomona, San Bernardino, San Diego, Long Beach, Huntington Park, Burbank, Hollywood, and Los Angeles, California, be and it hereby is, set aside. [Text of Second Direction of Election omitted from publication in this volume.] CHAIRMAN HERZOG, dissenting : With great respect for my colleagues' contrary views here and in a similar case in which I did not participate,3 I think that this decision 'Bonwit Teller, Inc., 96 NLRB 608; Onondaga Pottery Company, 100 NLRB 1143; Hills Bros, 100 NLRB 964. 3 The Hills Brothers Company, 100 NLRB 964. GOODE MOTOR COMPANY 43 carries the Bonwit Teller doctrine too far. The Board is here decid- ing, it seems to me, that an employer interferes unlawfully with an election whenever he seizes the strategic advantage of speaking on his premises just before a Board election, even in the situation where the union has never asked for an equal chance to address his em- ployees in the event that he should do so.' It is true, as the majority opinion says, that by timing his speech as he did, the Employer "made impossible the holding of any further meetings before the election," thereby denying the union "an opportunity to reply under comparable circumstances." But I had not supposed until today that this Board believed that its obligation to assure free choice in elections included a requirement that labor organizations, like others sometimes thought weaker, must always have the last word. 4 Cf Onondaga Pottery Company, 100 NLRB 1143, where the union made an antici- patory request to address the employees in the event that the employer did so. H. I. GooDE D/B/A GOODE MOTOR COMPANY and INTERNATIONAL AS- SOCIATION OP MACHINISTS, DISTRICT LODGE No. 176. Case No. 10-CA-1260. October 22, 1952 Decision and Order On March 11, 1952, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report, and a supporting brief. The Board 1 has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. Order Upon the entire record in the case, the National Labor Relations Board hereby orders that H. I. Goode, doing business as Goode Motor Company, Bristol, Tennessee, his agents, successors, and assigns shall : ;'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act as amended , the Board has delegated its powers in connection with this case to a three- member panel [ Members Houston, Murdock , and Styles]. 101 NLRB No. 17.