Shirks Motor Express Corp.

SHIRKS MOTOR EXPRESS CORP. 1 753 Shirks ,Motor Express Corp. and Boyce Motor Lines, Inc. and Local 14, Office Employees International Union, AFL, Peti- tioner. Case No. .4-RC-2632. , August 16, 1955 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a stipulation` for certification upon consent election, executed March 15"1955 1 , an election by, secret ballot was conducted on March 30, 1955, under the direction and supervision'of the Regional Director of 'the Fourth Region, among the employees in the stipulated unit. Following the election, a tally of ballots was furnished the parties. The tally shows that of approximately 26 eligible voters, 26 cast valid ballots, of which 8 were for the Petitioner and 18 were against it; no ballots were void or challenged. ' Thereafter, Petitioner filed timely objections to conduct affecting the results of the election. The Regional Director investigated the ,,natter, and, on May 17, 1955, issued and duly served upon the parties his report on'objections in which he recommended 'that the objections be sustained and another election be ordered. The Employer filed timely exceptions to the report. The Board has considered the objections; the report on objections, the Employer's exceptions, and the entire record in this 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 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 following employees of the Employer constitute a unit ap- propriate'for,purposes of collective bargaining within the' meaning of Section 9 (b) of the Act: All office clerical employees employed by the Employer at its ter- ininal at Luzerne and Whitaker Streets, Philadelphia, Pennsylvania, excluding the confidential secretary to the terminal manager, the switchboard operator, office manager, dispatchers, and all supervisors as defined in the Act. ` 5. There is no substantial disagreement as to the facts bearing on the Petitioner's objections. Following the stipulation for certification upon consent election entered into by the Employer and Petitioner, Local 107, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL, which represents the Employer's truckdrivers, helpers, and platform. men,, sought to inter- 113 NLRB No. 76. 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vene. Permission was denied because the application cards submitted postdated the signing of the stipulation. Thereupon, the Teamsters proceeded to campaign for a "no union" vote in the election, sched- uled for March 30, 1955, from 4: 45 to 5: 15 p. in. Within the 24-hour period prior to the election, business agents of Local 107 requested and received permission from the Employer to speak to the only three employees on the night shift. The agents urged these employees to vote "no union" and promised that, should Peti- tioner lose the election, the Teamsters would be recognized as their bargaining agent by the following week. Thereafter, on the day of the election, Petitioner, with the Employer's permission, addressed an assembled group of substantially all the approximately 26 eligible voters. The Petitioner failed to receive a majority of the votes cast in the election and. proceeded to file objections alleging, inter alia,l, that the Employer violated the Peerless Plywood 2 rule by permitting Local 107 to speak to employees assembled on company time during the 24 hours preceding the election. The Employer contends that the Peti- tioner cannot invoke the Peerless Plywood rule in view of its own conduct within the proscribed period. In support of its position, the Employer relies primarily on Camp Milling Company, Inc s However, we, like the Regional Director, do not find that case apposite on the facts.. There, the Employer ad- dressed its employees within 24 hours of the election and later ex- pressly permitted the Union to do the same. As the Employer was .at fault in both instances, the Board refused to permit it to take ad- vantage of its own misconduct in urging a violation of Peerless Ply- wood as grounds for setting aside the election won by the Union. In the instant case, the Petitioner was in no way responsible for the Employer's misconduct on which the objection is based. We are mindful of the fact that the Petitioner subsequently induced the Employer to engage in further similar misconduct by granting it an equal opportunity to talk to the employees during the proscribed period. and then availed itself of that opportunity. Although we do not condone this conduct, it does not, in our opinion, constitute suffi- cient basis for estopping the Petitioner from properly objecting to the Employer's original misconduct. Nor does it warrant a relaxation of the Peerless Plywood rule, designed to assure employees the opti- mum freedom of choice in representation proceedings. In setting aside an election. in Wilmington Casting Company,4 the Board stated : IIn view of our determination herein, we need not rule on other objections alleged by the Petitioner. , 2 Peerless Plywood Company, 107 NLRB 427. 8109 NLRB 471. * 110 NLRB 2114. See also, Scharco Manufacturing Corp., 110 NLRB 2112; Carolina Poultry Parms, Inc., 104 NLRB 255. MULTI-HYDROMATIC WELDING AND MANUFACTURING -co. 755• • interference with an election, by one -party does' not license, interference-by the, other., - It is impossible to•gauge w,ith,mathe-, matical precision the extent to which improper pressures on the' employees by one party have been offset' by improper pressures by the other party. It would be unrealistic to assume that wlhefe; as- here; the opposing pressures, consist of -the- same, -kind of mis- conduct, they have canceled each other 'out and the employees' freedom of choice has,been left unimpaired. As the Employer permitted Local 107 to talk to the assembled night shift employees on company time aiid' property within 24 hours of the instant election, in violation of the Peerless Plywood rule, we, in agreement with the Regional Director's recommendations, sustain the: Petitioner's objections to the' election on that ground.' Accordingly, we shall 'set aside the election of March 30, 1955, and' direct that .a new election be held. [The Board set aside the election held March 30,1955.] [Text of Direction of Second Election omitted from publication.];, CHAIRMAN FARMER and MEMBER RODGERS took no part in the con= sideration of the above Decision, Order, and Direction of Second Election. S, We find,no merit in the Employer's contention that Peerless Plywood is inapplicable' because the Teamsters is not a pasty to this proceeding or because the Teamsters' speech to the night shift workers was not delivered to a massed assembly of employees within the meaning of that case . Rxblet Welding and Mfg. Corp, 112 NLRB 712; The Great Atlantic & Pacific Tea Company, 111 NLRB 623 Multi-Hydromatic Welding and Manufacturing Company and' Frederick E. Cronk Local 155, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO) and' Frederick E. Cronk. Cases Nos. 7-CA-909 and 7-CB-154. August 17,1955 DECISION AND ORDER On April 30, 1954, Trial Examiner James A. Shaw issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The 113 NLRB No. 78.