La Pointe Machine Tool Co.

LA POINTE MACHINE TOOL COMPANY 171 fore, order that the election be set aside and direct that a new election be held. [The Board set aside the election held on March 4, 1955.] [Text of Direction of Second Election omitted from publication.] La Pointe Machine Tool Company and American Federation of Technical Engineers, AFL, Petitioner. Case No. 1-RC-341. July 14,1955 SUPPLEMENTAL DECISION AND CERTIFICATION OF RESULTS OF ELECTION Pursuant to a Decision and Direction of Election issued herein on July 28, 1954,1 an election by secret ballot was conducted on August 25, 1954, under the direction and supervision of the Regional Director of the First Region, among the employees in the unit found appropriate by the Board." Following the election, a tally of ballots was furnished the parties. The tally shows that of approximately 24 eligible voters, 21 cast valid ballots, of which 5 were for the Petitioner and 16 were for Local 3536, United Steelworkers of America, CIO; 1 ballot was void and no ballots were challenged. Thereafter, Petitioner filed timely objections to conduct affecting the results of the election. The Regional Director investigated the matter and, on October 5,1954, issued and duly served upon the parties his report on objections in which he recommended that the objections be dismissed. On October 15, 1954, Petitioner filed exceptions to the Regional Director's report. The Board found that Petitioner's ex- ceptions raised substantial and material issues of fact and ordered a hearing to resolve the issues. On January 6, 1955, the hearing was held before Thomas S. Wilson. On February 24, 1955, the hearing officer issued and served on the parties his report on objections in which he found that, by certain conduct more specifically referred to hereinafter, the Employer had interfered with the employees' free choice of a bargaining representative. He, therefore, recommended 1 109 NLRB 514. Local 3536, United Steelworkers of America, CIO, was permitted to intervene in the proceeding on the basis of its contract with the Employer. 2 Petitioner sought a unit of all draftsmen, drafting apprentices , tracers, detailers, de'- signers, and checkers , excluding all other employees , guards, watchmen, and supervisors as defined in the Act. Since December 1944, the Intervenor has been the collective-bar- gaining representative for all the Employer's production and maintenance employees and draftsmen. In July 1950 clerical employees were added to the unit. The Board, in its Decision and Direction of Election, found that the petition was timely filed, that the employees involved were technical employees and that they might constitute a separate unit. It made no final determination prior to ascertaining the desires of these employees as expressed in the election. Selection of the CIO would indicate a desire to remain part of the existing unit currently represented by the Intervenor. 113 NLRB No. 19. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the election be set aside. The Employer and Intervenor excepted to the report. The Board has reviewed the hearing officer's rulings made at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. On the basis of the entire record, we make the following findings : 1. The Employer's speeches : The hearing officer determined that in preelection speeches delivered by Employer's Vice-President Dowd and President Printerville there were threats of reprisal should the employees in the appropriate unit vote for the Petitioner and implied promises of benefit should they vote for the Intervenor.' Dowd in his speech stated: Ask yourselves whether you think the Company would do more for the AFL or the CIO. And if the AFL cannot deliver, where do you stand? Let's assume that the Company finally is negotiat- ing with the AFL and in the course of negotiations offers a con- tract with wage reductions, lesser vacations and no group insur- ance. The AFL will tell you that you are a separate unit and you have the right to strike. If they are honest with you-and I think they will be-they will tell you that the other employees of the Company probably will work while you strike and, more than that, if the Company gets permanent replacements to take your jobs while you are on strike, that you have lost your jobs. Printerville expressed himself as follows : Do any of you stand to gain if they [AFL] come in or do you stand to lose? What can they do for you that you have not got the machinery to do now? How do you think the Company will get along with them? If the Company does not see eye to eye with them, how can they make good on any promise they make to you? And if they cannot make good, what happens to you? What can happen to the Scanlon Plan, group insurance, seniority, vacation and other fringe benefits, wage rates? These are but a few of the questions which you should ask yourselves; the answers are bound to enlighten every one of you. We do not believe that such language, alone, or considered in con- text, conveys a threat of economic reprisal in the event of an AFL victory and that it interfered with the employees' freedom of choice. The Employer merely expressed its preference for one union over the other and its preelection opinion as to the possible consequences 8 The Employer's statement that it intended to contest the Board's unit determination if the AFL won the election was privileged as a statement of its legal position Westing- house Electric Corporation, 110 NLRB 332 LA POINTE MACHINE TOOL COMPANY 173 of a strike which might result from a vote for the Petitioner. It was privileged to do both.4 Nor do we regard as a threat of reprisal the statement that, during negotiations for a separate contract with the Petitioner, the Employer might not offer benefits as great as those presently enjoyed under the existing contract with the Intervenor. Good-faith bargaining does not require as a matter of law that, in bargaining with a new repre- sentative for a new contract, the benefits negotiated for and incor- porated in a prior contract be necessarily treated as the starting point of negotiations. Indeed, it seems to us that, in response to questions posed after his speech as to the status of existing benefits should the AFL win the election, Dowd dispelled any idea of unlawful retribution by his statements that such matters would have to be renegotiated with the Petitioner. Thus, this case does not come within the purview of our decision in Rein Company,' relied upon by the hearing officer, where the Board found the Employer had threatened discontinuance of such benefits prior to bargaining. 2. The campaign of the CIO president: During the week preceding the election, Intervenor's president, O'Brien, spent approximately 2 hours per day in the drafting room talking to the employees and urging them to give his new administra- tion a chance to work out the representation problems which had arisen. The AFL made no request for an equal opportunity to solicit. The hearing officer found that Petitioner's objection should be sus- tained "solely" because of the interrelationship between the speeches and this activity. We have already determined that the Employer's speeches did not interfere with its employees' choice of a bargaining agent. With regard to the solicitation, itself, we find no merit in Peti- tioner's objection, even if we assume the Employer had knowledge of O'Brien's campaign. The Board has consistently held that it is not interference with an election to permit 1 of 2 labor organizations to solicit support on company property and time where there is no show- ing that the other labor organization involved had requested and been denied similar privileges.' In view of our foregoing findings, we hereby overrule the Peti- tioner's objections and reject the hearing officer's recommendations. The Board in its Decision and Direction of Election, dated July 28, 1954, made no final determination of appropriate unit but ruled that such determination would depend in part on the results of the election. 6 P. W. Woolworth Co., 111 NLRB 766; National Furniture Manufacturing Company, Inc., 106 NLRB 1300; Stewart-Warner Corporation, 102 NLRB 1153. 6111 NLRB 537. 6 Stokely Foods, Inc, 101 NLRB 99; e4 Morganton Full Fashioned Hosiery Company, 107 NLRB 1534. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the entire record in the case, the Board makes the following : SUPPLEMENTAL FINDINGS OF FACT We find the draftsmen, drafting apprentices, tracers, detailers, de- signers, and checkers at the Employer's Hudson, Massachusetts, plant have selected Local 3536, United Steelworkers of America, CIO, as their bargaining representative ; and it appearing that this organiza- tion is now the exclusive bargaining representative of a plantwide unit of production and maintenance employees and office clericals; IT IS HEREBY CERTIFIED that the said organization may continue to bargain for the employees in the above-named category as part of the existing unit which it currently represents. MEMBER MURDOCK, dissenting : Unlike my colleagues I am convinced that the Employer, in its pre- election speeches, intended to and did convey to its employees threats of reprisals if the AFL should win the election, and that in so doing the Employer interfered with the employees' freedom to choose a col- lective-bargaining representative. I am further of the opinion that by threatening to refuse to bargain with the AFL unless ordered to do so by a Federal court, the Employer also interfered with the em- ployees' free and untrammeled choice of a representative. It is conceded that the Employer favored the CIO and that, through its preelection speeches, it attempted to influence its employees to vote CIO. This fact, of which the employees were well aware, gives added meaning to certain of the statements made in the preelection speeches. Thus, viewed against this background, the statement : Ask yourselves whether you think the Company would do more for the AFL or the CIO. made by Vice-President Dowd, in a speech 1 week prior to the elec- tion, could only be interpreted by the employees to mean that the Em- ployer would do more for the CIO than for the AFL; that necessarily the employees would receive fewer economic benefits from the Em- ployer if they chose to be represented by the AFL. Dowd, apparently not satisfied that he had thus conveyed to the em- ployees the Employer's threat to cause them to lose economic benefits if they voted AFL, went on to enumerate the specific areas in which the Employer might effect such losses. Picturing an AFL victory, he said : Let's assume that the Company finally is negotiating with the AFL and in the course of negotiations offers a contract with wage reductions, lesser vacations and no group insurance. [Em- phasis supplied.] LA POINTE MACHINE TOOL COMPANY 175 At this point, what other impression had the Employer created but that it might bring about reduced wages and vacation time and the elimination of its group-insurance program if the AFL won the elec- tion? To strengthen the impression already created, the Employer's president, Printerville, who spoke at an employee meeting held 2 days before the date of the election, said: Do any of you stand to gain if they [AFL] come in or do you stand to lose? . . . How do you think the Company will get along with them? If the Company does not see eye to eye with them, hoNv can they make good on any promise they make to you? If they cannot make good, what happens to you? What can hap- pen to the Scanlon Plan, group insurance, seniority, vacation and other fringe benefits, wage rates? [Emphasis supplied.] A threat or promise can be no less effective when implied in a ques- tion or supposition as when made directly. All that is necessary is that the idea be gotten across. This was the case here. From the Em- ployer's questions and hypothetical statement, and with the knowl- edge that the Employer strongly favored the CIO and had the power to effect serious economic loss if its will was not obeyed, the employees could draw no other conclusion but that the Employer could and would punish them by reducing benefits if they voted AFL. The majority attempts to justify the Employer's statements on the ground that "Good faith bargaining does not require . . . that, in bargaining with a new representative for a new contract, the benefits negotiated for and incorporated in a prior contract be necessarily treated as the starting point of negotiations." To my mind, whether or not the Employer, as a matter of law, would be required to continue for its employees any of the CIO contract benefits should the AFL be elected is irrelevant to the determination to be made in this case. The question here is whether the Employer, through the words of its two top-ranking officials, threatened the employees with reprisals if the AFL won the election so as to interfere with the employees' free choice of a collective-bargaining representative. As I have concluded above, the Employer has done exactly this. It made clear to its em- ployees, albeit through implications and innuendoes, that, through its actions, they would lose if they chose the AFL and would gain if they chose the CIO. Apart from the above threats of economic reprisals the Employer, through speeches of both Dowd and Printerville, threatened that it would refuse to bargain with the AFL even if the AFL won the election and was certified by the Board; that the employees would remain without collective-bargaining representation for many months 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD if they chose the AFL, until the employer would be ordered to bargain by a Federal court. In concluding that this anticipatory refusal to bargain did not constitute grounds for setting aside the election, the majority apparently relies upon the decision in National Furniture Manufacturing Company, Inc., 106 NLRB 1300, which overruled Metropolitan Life Insurance Co., 90 NLRB 935. (The majority's decision in the instant case does not make specific mention of the Employer's threat to refuse to bargain.) As I stated in my dissenting opinion in Esquire, Inc., 107 NLRB 1238, I do not agree with the National Furniture decision and would continue to adhere to the Board's previous doctrine that an employer's announcement prior to a Board-directed election that it will not bargain with the winning union, creates such an impression of futility in the minds of the voters as to constitute interference with the voters' sober and thoughtful choice which a free election is designed to reflect. The facts of the instant case constitute an excellent medium for conveying the wisdom of that doctrine. Here, pursuant to a Decision and Direction of Elec- tion of the Board, a group of draftsmen were given the opportunity to choose between two unions, the CIO, if they desired to continue to be represented as part of an overall production and maintenance unit, or the AFL, if they desired to be represented separately. The Employer, within 5 days of the election, informed these employees of its preference for the CIO and stated that it would not bargain with the AFL even if the AFL won the election; it made clear to the employees that the legal processes for compelling it to bargain are long and drawn out, possibly extending over many months, imply- ing that the employees would be without collective representation during this period if they chose the AFL. From this conduct, what other feelings could the employees have had but that a vote for the AFL was futile and would result in the loss of collective representa- tion until the Employer had exhausted all of its legal remedies and that a vote for the CIO would at least assure the continuance of the existing collective representation by that union. Moreover, when we consider the cumulative effect of telling employees that if they choose the AFL they will be getting months of litigation without collective bargaining, and even if it eventually gets its bargaining rights they will get less benefits than they would with the CIO as their repre- sentative, I cannot believe that a free and uncoerced choice was accorded the employees. Upon the foregoing, I would find that the results of the election do not represent the employees' free and uncoerced choice of a collec- tive-bargaining representative and that, therefore, the election should be set aside.