Reeves Instrument Corp.

610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD REEVES INSTRUMENT CORPORATION and INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, C.I.O., Petitioner. Case No. 2-RC-4683. May 4, 1953 SUPPLEMENTAL DECISION, ORDER AND SECOND DIRECTION OF ELECT16N On October 2, 1952, pursuant to the Board's Decision and Direction of Election,' an election by secret ballot was con- ducted under the direction and supervision of the Regional Director for the Second Region, among employees in the unit heretofore found appropriate. At the conclusion of the election a tally of ballots was furnished the parties. The tally shows that of about 1,470 eligible voters, 1,376 cast ballots, of which 595 were for the Petitioner, 737 were against the Petitioner, 40 were challenged, and 4 were void. On October 7, 1952, the Petitioner filed eight objections to conduct affecting the results of the election. In accordance with the Rules and Regulations of the Board, the Regional Director conducted an investigation of the objections and on January 16, 1953, issued and served on the parties his report on objections . The Regional Director found that objections 3 through 8 were without merit and recommended that these objections be overruled. As to objections 1 and 2, he found that they raised substantial and material issues with respect to the election, and thus recommended that the Board set aside the election.' Thereafter the Employer filed timely exceptions to the Re- gional Director's recommendation that objections 1 and 2 be sustained. As no exceptions have been filed to the Regional Director's recommendations that objections 3 through 8 be overruled, the Board accordingly adopts such recommendations without further comment. Objection 2 and the Employer's exceptions pertaining thereto raise issues of credibility which would properly require a hearing for their resolution. However, in view of their disposition of the case, a majority of the Board finds it unnecessary to pass on objection 2. Objection 1 alleges that a speech repeated by the Employer to different groups of its employees on election eve interfered with the election. The Regional Director, against the contrary contention of the Employer, found: (1) That the speeches were made under circumstances so as to render the Bonwit Tellers principle applicable; and (2) that the contents of the speeches went beyond the protection of Section 8 (c) of the Act. With respect to the application of the Bonwit Teller principle, the pertinent facts are as follows: The Employer operates two plants, one in New York City and the other at Roosevelt Air Field in Mineola, Long Island. The 1100 NLRB No. 194. =Because the challenges could not affect the results of the election, the Regional Director made no report concerning the challenges. SBonwit Teller, Inc., 96 NLRB 608, enfd . as mod. 197 F. 2d 640 (C. A. 2). REEVES INSTRUMENT CORPORATION 611 New York City plant has both a day and a night shift. The Mineola plant has only a day shift. The day shift at each plant runs from 8:00 a.m. to 6:30 p.m., while the night shift at the New York City plant runs from 6:30 p.m. to 5:30 a. m. During working hours at approximately 5 p.m. on October 1, 1952, the day preceding the election, the speech adverted to was trans- mitted by means of a wire recorder over the public address systems at both plants, simultaneously. This same speech was similarly repeated about 7 p.m. for the benefit of the night shift at the New York City plant. Prior to such speeches, the record reveals that the Petitioner on various dates distributed leaflets which contained the following statements: Right before the last union election, Reeves' Mr. Bonner addressed the employees over the public address system. [March 25, 1952, leaflet] There will be a speech, carefully written and reviewed by the Company's lawyers, between now and election date. [March 31, 1952, leaflet] As it is, we never see him. We only hear from him at election time and then it is over the PA System or through the medium of a rubber stamp signature at the foot of a letter carefully prepared by all the professional ghost writers. Some new employees who didn't have the pleasure of hearing Mr. Bonner speak against the Union in Novem- ber 1950 think he is a mythical person. . . . No amount of double talk or company hocum or last minute empty promises will change our minds to secure the Union now. [September 29, 1952, leaflet 3 days before the election] In addition, the Regional Director's report, as supplemented by the Employer's brief,4 reveals that a leaflet entitled "Rumors Won't Work" was distributed about 12 hours after the Employer's 5 p.m. speeches and that a second leaflet entitled "Bonner5 at Bat--No Runs--No Hits" was distributed onelec- tion day. As the contents of such leaflets are nowhere set forth, it is impossible to determine whether these leaflets, as alleged by the Employer in its exceptions, were in reply to the speeches, although the caption of the second leaflet strongly suggests that it, at least, is a reply leaflet. Concededly, no request to address the employees similarly was made by the Petitioner before or after the Employer's speeches. Upon the basis of the foregoing facts, the Regional Director specifically found that the Employer, in effect, denied an equal opportunity to the Petitioner to present its views by so timing its speeches as to preclude the possibility of an effective re- quest by the Petitioner to address the employees similarly, 4 The Employer's brief contains allegations of fact which are not contained in the Regional Director's report. As these allegations merely amplify facts revealed by the Regional Director 's investigation, and are not contradicted thereby, or challenged in any exceptions filed by the Petitioner, we shall, for the purpose of this Decision, accept such allegations as proved. SBonner is the Employer's president. 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and thereby interfered with the election within the rule of The Hills Brothers Company6 and Foreman and Clark, Inc.' cases. In so finding, the Regional Director held that the Petitioner's anticipation that such a speech might be made by the Employer was not a material factor. In its exceptions and brief, the Employer argues that the timing of its speeches did not, in fact, foreclose the possibility of a subsequent effective request by the Petitioner to reply. It further contends that, in any event, the Petitioner's knowledge of the likelihood of a speech should be given weight in deter- mining whether the absence of a request by the Petitioner must be attributed to the Petitioner's lack of opportunity, by virtue of the Employer's conduct, to make such a request. Contrary to the' conclusions of the Regional Director, we believe that the Employer's second contention has merit. The Petitioner, as shown by the leaflets, anticipated several months beforehand that a speech might be made by the Employer just before the election. Yet, concededly, no request to address the employees was ever made by the Petitioner, although there was ample time before the election to make an effective request to answer a possible speech by the Employer. Nor is there any evidence in the record indicating that such a request would have been futile. This fact, together with the fact that the contents of the leaflets presuppose that a speech would be made and attempted to rebut any effect such a speech might have on the employees, suggests that the Petitioner voluntarily elected such method to answer in advance. Under all the circumstances, we believe that the Petitioner had an ample opportunity to make a request and, having failed to do so, cannot be heard to com- plain if the Employer may have timed his speeches so as to have the last word.' Accordingly, in the context of the facts of this case, we unanimously hold that the Employer's speeches did not constitute interference with the election so as to warrant the application of the principle enunciated in the Bonwit Teller case. With respect to the contents of the Employer's speech repeated to the different shifts on election eve, the following portions are in issue: 1. These increases , together with the cost of living in- crease, are now part of your basic pay and, unless we are compelled to do so by the terms of a union contract, they will not be reduced or taken away. . . . 2. . . . To staff this new plant,' we, of course, hope and expect to draw upon our own personnel to fill the super- visory and executive positions which will be created by this move. We expect to fill these positions based on ability and experience--unless we are prevented from doing so by inflexible clauses in the union contract. 6100 NLRB 964 7101 NLRB 40 (Chairman Herzog dissenting). 'See Snively Groves, Inc., 102 NLRB 1617; Silver Knit Hosiery Mills, Inc.. 99 NLRB 422; cf. Foreman & Clark, Inc., supra; Hills Brothers Co., supra. 2 In the near future, the Employer plans to erect a new plant on Long island. REEVES INSTRUMENT CORPORATION , 613 3. At Reeves, we have always had a healthy; respect for the individual and his rights without discrimination on any score. As an example of our respect for the rights of in- dividuals, Reeves' employees not only, receive all es- tablished national holidays off with pay, but we have recently filed a request to add ,Election Pay, ,to the list of paid holidays. In addition, our employees get their own religious holidays off, also with pay--or,theyget time off with pay to attend special observances. , R The Regional Director found that the first two statements constituted implied threats that the employees were going to lose benefits previously obtained. Unlike the Regional Director, the Board unanimously finds no threat of-reprisal either im- plicit or explicit in these statements, but rather a recitation of the possible consequences flowing from selection of the Petitioner as bargaining representative. As such, it was privileged electioneering.10 Turning to the third portion of the Employer's speech set forth above, however, a majority of the Board agrees with the Regional Director that the Employer interfered with the elec- tion by announcing to the employees that it'had filed a request with the Wage Stabilization Board to,add election day to the list of paid holidays. The record shows that on- August 26, 1952, about 1 month before the election but after 't'he'-filing of the petition herein, the Employer made such application to Wage Stabilization Board. This application was approved on October 3, 1952, the day after the Board-directed election herein. The Employer had waited to announce the fact of this application to its employees until its election-eve campaign speeches on October 1. Clearly by this announcement the Employer was promising an economic benefit to its employees subject only to Wage Stabilization Board approval. We do not question the Employer's good faith and laudable objective in petitioning the Wage Stabilization Board for permission to make election day an extra full holiday.11 The vice in the Employer's conduct lies in the fact that the announcement' was made on the eve of the election. We are satisfied that the relationship` between the announcement and the election was not "mere temporal coin- cidence," which is not per se objectionable,12 but rather reflected an intent to interfere with the election. The Employer's contention that its announcement was timed to insure that the employees voted in the national elections does not explain away the delay of the Employer in making that announcement after its application to the Wage Stabilization Board, or the fact that, having waited that long, there was ample time to wait 2 days 'OSilver Knit Hosiery Mills , Inc., supra; Cleveland Plastics . Inc., 85 NLRB 513; L. H. Butcher Company, 81 NLRB 1184. it Under State law, the employees were entitled to 2 hours ' leave to vote. 12 United Screw & Bolt Corp., 91 NLRB 916: 283230 0 - 54 - 40 6 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD longer and inform the employees after the Board election.13 On the contrary, the fact that the announcement was made as part of a speech directed towards influencing the employees against voting for the Petitioner is indicative of its ulterior purpose.14 Accordingly, we find that by such announcement to the em- ployees of the extra holiday the Employer interfered with the employees' freedom of choice in the selection of a bargaining representative, and we shall order that the election be set aside and a new election be conducted.15 ORDER IT IS HEREBY ORDERED that the election held on October 2, 1952, among the employees of the Reeves Instrument Cor- poration at its plants in New York City and Mineola, New York, be, and it hereby is, set aside. [Text of Second Direction of Election omitted from publica- tion.] Members Murdock and Peterson dissenting in part only: We cannot agree with our colleagues that the conduct of the Employer in announcing the fact that it had applied to the Wage Stabilization Board to add election day to its list of paid holidays warrants setting aside the election, in the absence of any evidence showing that such application was made by the Em- ployer in bad faith. In any event, we believe that this conduct by the Employer was too insubstantial to afford a sufficient basis for setting aside the election. As we agree with our colleagues that the application of the Bonwit Teller principle is unwarranted here, we would direct a hearing on the Petitioner's second objection and the Em- ployer's exceptions pertaining thereto. 15 The national elections were still a month away Contrary to the Employer 's contentions in its exceptions and brief, it is immaterial that the granting of the additional holiday may have been previously determined in good faith, if it was announced for the purpose of inter- fering with the employees' self-organization or that the additional holiday was not conditioned on the results of the election. Hudson Hosiery Company, 72 NLRB 1434; Joy Silk Mills, Inc., 85 NLRB 1263, at 1287, enfd. 185 F. 2d 732 (C.A.D.C.); Schwarzenbach Huber Company, 85 NLRB 1490. Moreover, as such announcement was the first inkling that employees had of the fact that an application to the Wage Stabilization Board was filed, the Employer's related argument that such announcement was, at most, a reminder of past benefits has no merit. United Screw & Bolt Corp., supra. 14As to the applicability of Section 8 (c) of the Act, it is well established that the an- nouncement of benefits is without the protection of this section. Spengler- Loomis Mfg. Co., 95 NLRB 243. 15 The Lewis Engineering Company, 101 NLRB 484; Shelbyville Desk Company, 72 NLRB 925; LaSalle Steel Company, 72 NLRB 411; Shreve and Company, 57 NLRB 1483.