Camp Milling Co., Inc.

CAMP MILLING COMPANY, INC. 471 We find that the following unit is appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All truckdrivers and warehousemen at the Employer's Oklahoma City, Oklahoma, operation, excluding office employees and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] MEMBERS PETERSON and RODGERS, dissenting in part: We disagree with our colleagues as to the inclusion of owner-drivers in the unit qn the ground that their finding that these drivers are em- ployees of the Employer is based upon a factual situation which ap- pears to closely parallel that involved in Eldon Miller, Inc.,9 wherein the Board recently found certain truckdrivers to be independent con- tractors. Several additional factors in the instant case tending to support an independent contractor relationship appear to be even stronger than those upon which the Board relied in making its independent con- tractor finding in the Eldon Miller case. As noted by the majority, the departure and arrival time, as well as the routes to be followed on the haul, are left to the discretion of the owner -driver. In addition, the fact that, during slack business periods the Employer and truckowner may agree on a mutual release from their agreement , thereby leaving the owner free to haul for other concerns , would indicate that the status of the owner-driver is that of independent contractor rather than that of employee. We regard as not determinative of the issue the fact, heavily relied on by the majority, that the lease agreement provides for compensa- tion for the use of the equipment only. In practice , each owner drives his own truck and receives a total compensation based upon mileage. In view of the above considerations, we are of the opinion that the owner-drivers are independent contractors. Accordingly, we would exclude them from the unit. 9 103 NLRB 1627; 107 NLRB 557. CAMP MILLING COMPANY, INC. and AMERICAN FEDERATION OF GRAIN MILLERS, LOCAL 209, AFL, PETITIONER. Case No. 3-RC-1352. July 26, 1954 Decision and Certification of Representatives Pursuant to a "Stipulation for Certification Upon Consent Elec- tion," executed on February 17, 1954, and approved by the Regional Director on February 25, 1954, an election by secret ballot was held 109 NLRB No. 73. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on March 4, 1954, under the direction and supervision of the Regional Director for the Third Region among the employees in the stipu- lated unit. Upon the conclusion of the election, a tally of ballots was furnished the parties. The tally shows that of approximately 44 eligi- ble voters, 42 cast valid ballots, of which 26 were for, and 16 were against, the Petitioner. There were no challenged ballots. Thereafter, the Employer filed objections to conduct affecting the results of the election. The Regional Director investigated the ob- jections and issued and duly served upon the parties a report on objections in which he recommended that the objections be overruled and the Petitioner be certified. The Employer filed timely exceptions to the report on objections. The Petitioner filed a reply to the ex- ceptions, and the Employer a brief in answer to the reply. The Board has considered the objections, the report on objections, the Employer's exceptions and brief, the Petitioner's reply, and the entire record in the case, and hereby makes the following findings : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The Petitioner is a labor organization claiming to represent cer- tain employees of the. Employer. 3. A question affecting commerce exists concerning the represen- tation of employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The following employees of the Employer constitute a unit ap- propriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act : All production and maintenance employees and retail store men employed at the Employer's Walton, New York, plant, excluding of- fice clerical employees, outside salesmen, guards, and supervisors as defined by the Act. 5. There is no substantial disagreement as to the facts bearing on the Employer's objections. The election was scheduled for March 4, 1954, from noon to 1 p. in. On March 3, between 12: 30 and 12: 50 p. in., an official of the Employer read a statement about the election to the assembled employees on company property. Although anti- union in tone, it was not coercive. It was, however, read to the em- ployees within the 24-hour period preceding the election, and thereby fell squarely within the Peerless Plywood rule 1 which provides that speeches to employees assembled on company time and property dur- ing that period may be cause for setting aside the election. Upon being apprised of the Employer's speech, the Petitioner demanded that it be given an opportunity to reply thereto under the salve fa- vorable circumstances. The Employer thereupon allowed a repre- 1107 NLRB 427. CAMP MILLING COMPANY, INC. 473 sentative of the Petitioner to address the employees on the plant prem- ises during working time, about an hour and a half before the elec- tion was scheduled to begin. Following the Petitioner's victory in the election, the Employer filed its objections to the results of the election upon the ground that the Peerless Plywood rule had been violated. The Employer asserts that it did not know of the rule until the Petitioner threatened to in- voke it if it lost the election, unless it was also given time for a speech on company property and time. The Employer argues, in effect, that the Peerless Plywood rule permits of no exceptions , and that it may be made the basis of objections even by a party which has itself made a speech during the buffer period. The Petitioner's position is that the Employer has waived its right to object to the Union' s speech in return for immunity from the Union's objections to its violation of the rule, and that the Employer is now estopped from objecting to the election on the basis of any breach of the 24-hour rule. The Peerless Plywood case must be read in the broader context of Board law and practice. The Board does not permit a party to an elec- tion to urge its own misconduct as a ground for setting aside an elec- tion.2 The reason is plain . Unless such a rule is operative one or the other party can always prevent a definitive selection of a bargaining representative by engaging in conduct which would ordinarily justify setting aside an election . For example, by delivering a speech on com- pany time and property within 24 hours of an election , an employer could always be sure of stymying the Board's electoral process. If the employees voted for the union, the employer could point to the speech as preventing a free choice by the employees; if the union lost the elec- tion, the union could make the same objection . The Board's election proceedings would thus be turned into a meaningless merry -go-round. As a practical matter, in order to protect the integrity of its own proc- esses and to prevent a party from profiting by its own wrongdoing, the Board cannot entertain an objection to an election based upon the ob- jector's own misconduct . This rule governs the present case. The Employer is estopped from objecting to the election upon the basis either of its own speech or that of the Petitioner. In both cases it was at fault. In the case of its own speech, it was entirely in the wrong. In the case of the Petitioner's speech it was as much at fault as the Petitioner, for the latter could not have made the speech with- out the express permission of the Employer. Accordingly, in agree- ment with the Regional Director, we find that the Employer' s objec- tions do not raise substantial or material issues with respect to the election and they art therefore overruled. As the Petitioner has won the election, we shall certify it as bargain- ing representative of employees in the appropriate unit. 2 Talladega Cotton Factory, Inc., 91 NLRB 470, 472. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [The Board certified American Federation of Grain Millers, Local 209, AFL, as the designated collective-bargaining representative of the employees of Camp Milling Company, Inc., at its Walton, New York, plant, in the appropriate unit described in paragraph numbered 4 herein.] MEMBER MURDOCK, concurring : I concur in the determination of my colleagues that the objections of the Employer should be overruled. I believe that it is appropriate, however, to note that although the result reached herein is precisely that which would have obtained under the now overruled "equal op- portunity" doctrine of Bonwit Teller,3 the main opinion points up the dangers and inadequacies of the replacement for that concept. Here both the Employer and the Petitioner spoke to the employees shortly before the election and under approximately equal conditions. Each had an opportunity to speak and present its arguments; neither was granted the advantage of an exclusive and superior forum for presentation of its views. The contest, in short, was waged under con- ditions fair to both as well as to the employees. Neither party, it fol- lows, should be allowed to overturn the results of that referendum be- cause it alleges that its opponent was granted the same chance of in- fluencing the employees as it had. As noted, that is the ruling which this Board would have made under the "equal opportunity" doctrine of Bonwit Teller. My colleagues, by previously overruling that doctrine and substituting the flat 24-hour ban on free speech imposed by the Peerless Plywood decision,4 have, however, denied themselves this simple, equitable, and realistic solu- tion. Instead, the majority is forced to reach the desired result by a circuitous route of reliance upon the vague principles of "waiver" and "estoppel," for, as indeed the Employer argues in its exceptions, the Peerless Plywood decision dwells long and relies heavily upon a "vice" implicit in all such "last-minute" appeals to voters. Both parties here are therefore held to be in the "wrong" because they exercised their right to free speech and the Employer doubly so because this equal presentation of views could not have been made without its express permission. Without further examination of this startling conclusion it is clear, as I stated in my dissenting opinion in Peerless Plywood, that the rule announced therein inevitably results in less freedom of speech and not, as was the case with Bonwit Teller, more such freedom. This decision, despite its result, amply reaffirms the strength of that observation. MEMBER RoDGERS took no part in the consideration of the above Decision and Certification of Representatives. 3 96 NLRB 608. 4107 NLRB 427.