United States Gypsum Co.

734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United States Gypsum Company and Local 522, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO,' Petitioner. Case No. 2-RC- 7287. March 7, 1956 SUPPLEMENTAL DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a Decision and Direction of Election,' an election by secret ballot was conducted on November 10, 1955, under the direc- tion and supervision of the Regional Director for the Second Region, among the employees in the unit found appropriate in the above- mentioned Decision. Thereafter, a tally of ballots was furnished the parties, showing that out of approximately 424 eligible voters, 399 cast valid ballots, of which 194 were for the Petitioner, 79 for United Union Workers of United States Gypsum Company, In- dependent, 117 for United Paperworkers of America, AFL-CIO, and 9 against the participating labor organizations. Four ballots were challenged. On November 17, 1955, the Employer filed objec- tions to the election. In accordance with the Board's Rules and Regulations, the Re- gional Director conducted an investigation of the Employer's objec- tions and, on December 20, 1955, issued and duly served upon the parties his report on objections, in which he found that the objections were without merit and recommended that they be dismissed and that a runoff election be directed. Thereafter, the Employer filed timely exceptions to the report on objections. In its first 5 objections, the Employer alleged that within 24 hours of the election, the Petitioner broadcast campaign speeches from a sound truck parked on the street opposite the center of the plant, which were heard by employees at work in the plant, thus violat- ing the rule set forth in the Board's Peerless Plywood decision.3 That rule provides that the Board will set aside an election whenever employers or unions make election speeches on company time to massed assemblies of employees within 24 hours before the sched- uled time for conducting an election. The Regional Director found that the sound truck had been used by the Petitioner in the manner alleged by the Employer, but concluded that the Peerless Plywood rule did not apply because there was no massed assembly of em- ployees, the employees were not summoned to hear the speeches but continued to work, the employees were not under the control of the speaker and were not compelled to listen except to the extent that they I The AFL and CIO having merged subsequent to the Decision and Direction of Election herein , the affiliations of the participating labor organizations have been appropriately amended. 9114 NLRB 185. 9 Peerless Plywood Company, 107 NLRB 427 115 NLRB No. 104: UNITED STATES GYPSUM COMPANY 735 could not avoid hearing the sound truck, and the attention given to the speaker by the employees was incidental while performing their duties. The Employer excepts to this recommendation, urging that the Peerless Plywood rule applies. The facts as set forth in the Regional Director's report, which are undisputed in any material way, reveal that on the day before the election, from approximately 9:30 a.m. until 5 p.m., the Petitioner stationed, a° sound truck on the street opposite the center of the Em- ployer's plant and broadcast campaign speeches and other material. There were approximately 325 of the 424 eligible voters working in the plant during the period of the broadcasts. Approximately 50, and possibly more, employees heard or were in a position to hear the sound trucks while working at their usual stations. Approximately 215 em- ployees stationed in other areas could not have heard the sound truck.. In the usual Peerless Plywood situation a speech is made to a group or massed assembly of employees gathered together for the purpose of hearing the speech by a speaker who addresses them face to face. It is true that in this case the speaker did not address the employees face to face. However, the critical factor in this regard is not the location of the speaker but whether the employees are exposed to his remarks 4 Thus, here the speeches could be clearly heard during work- ing hours at locations in the plant where a number of employees were stationed. Furthermore, although the employees were not a massed assembly in the sense that they were gathered for the purpose of hear- ing the speeches, the employees who heard or could have heard the speeches were not isolated, but were working with or near each other, and the Petitioner in a planned and systematic fashion directed its campaign speeches at the employees during the entire day before the election. Accordingly, as the considerations operative in establishing the Peerless Plywood rule are here present in substance, albeit not in form, we are persuaded to reach the same result here.5 Accordingly, we find that under all the circumstances, the Petitioner's conduct occur- ring on the eve of the election tended to destroy the freedom of choice of the employees and to establish an atmosphere in which a free elec- tion could not be held. We shall, therefore, set aside the election and direct that a new election be held [The Board set aside the election held on November 10, 1955.] [Text of Direction of Second Election omitted from publication.] Of. Alliance Ware Inc , 92 NLRB 55 ; Higgins, Inc, 106 NLRB 845. The fact that all employees may not have been reached by the sound truck is not mate- rial. see The Gi eat Atlantic cC Pacafic Tea f,'mnpangi. 111 NLRB 623. The Employer also objected to the appearance of I'aperworkets on the ballot as an Intervenor. As this objection raises essentially the same matter iaised.by the Employer in its motion to reconsider, which was denied by the Board in its Order dated October 25, 1955 ._(not reported in printed volumes of Board Decisions and Orders), and as nothing newohas been alleged in the Employer's objections and exceptions , this objection is hereby overruled, in accordance with the Regional Director's recommendation.