National Furniture Co., Inc.

National Furniture Company, Inc. and United Furniture Work- ers of America, AFL-CIO, Petitioner. Case No. 35-RC-1354. October 16,1967 SUPPLEMENTAL DECISION AND CERTIFICATION OF RESULTS OF ELECTION Pursuant to a Decision and Direction of Election,' an election by secret ballot was conducted on February 28, 1957, under the direction and supervision of the Regional Director for the Ninth Region, among the employees in the unit heretofore found appropriate. Upon the conclusion of the election, the parties were furnished with a tally of ballots which showed that of approximately 209 eligible voters, 75 cast ballots for the Petitioner, 127 against the Petitioner, 2 ballots were void, and 1 was challenged. The challenged ballot was not sufficient to affect the results of the election. On March 7, 1957, the Petitioner filed timely objections to conduct affecting the results of the election. After an investigation, the Re- gional Director on June 4, 1957, issued his report on objections to election in which he found no merit in the Petitioner's objections and recommended that they be overruled. Thereafter, the Petitioner and the Employer filed exceptions to the Regional Director's findings. The Board 2 has considered the Petitioner's objections, the Regional Director's report, and the exceptions, and upon the entire record in this case makes the following supplemental findings : The Employer excepted to the Regional Director's finding that a. copy of the objections was "immediately" served upon the Employer within the meaning of Section 102.61 of the Board's Rules and Regu=- lations.3 A copy of the objections was received on March 9, 1957; by the Employer in Evansville, Indiana, in an envelope postmarked, "New York 7, N. Y., March 6-3 P. M. 1957." On March 7, 1957, the objections were timely filed at the Board's subregional office in Indianapolis, Indiana. 1 Not reported in printed volumes of Board Decisions and Orders. 2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [ Members Murdock , Rodgers, and Bean]. s Section 102.61 reads . Within 5 days after the tally of ballots has been furnished , any party may file ,with the Regional Director four copies of objections to the conduct of the election or conduct affecting the results of the election. . . . Copies of such objections shall immediately be served upon each of the . other parties by the party filing them. . . '119 NLRB No.1. 476321-58-vol. 119-2 1 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Petitioner filed an affidavit of service by mail with the sub- regional office to the effect that a copy of the objections was deposited in the United States mail, addressed to the Employer, on March 5, 1957, at the same time as its objections were mailed to the subregional office.' The Employer contends, on the contrary, that the copy of the Petitioner's objections, which the Employer received. on March 9, 1957, must have been mailed on March 6, 1957, the date postmarked on the envelope. The Employer therefore asserts that the above copy of objections was mailed a day after the Petitioner's objections were mailed to the subregional office and that this service was not "im- mediate service" within the meaning of Section 102.61 of the Board's Rules and Regulations. The Board's Rules and Regulations concerning the date of service provide in Section 102.82 that "The date of service shall be the date when the matter served is deposited in the United States mail. . . ." 8 The evidence offered by the Employer is, in our opinion, insufficient to warrant the conclusion that the Petitioner's affidavit falsely alleges the date of depositing the objections in the mail. Accordingly, we find in agreement with the Regional Director that the Petitioner timely served a copy of the objections upon the Employer. Objection 1: The Petitioner contends that, a series of, 10 preelection letters sent by the Employer to its employees during the period No- vember 19, 1956, to February. 26, 1957, contained threatening, intimi- dating, and coercive statements as follows : The Petitioner asserts that the Employer's letter of November 19, 1956, included an impli- cation of the need to preserve individual bargaining along with threats of layoffs, shorter hours, job insecurity, and bankrupted business. The Petitioner further alleges that in a letter dated December 26, 1956, the Employer clearly implied that the closing of another em- ployer's plant in Evansville, Indiana, was caused by the Union. In a letter dated February 11, 1957, the Employer stated that unions were "un-Christian, un-American, and un-Democratic." In two letters dated February 16 and 19, 1957, the Employer referred to an incident reported in a local newspaper concerning the shooting of a baby in the course of a strike at another company's plant near Evansville, and warned that, "THIS IS WHAT HAPPENS WITH A UNION!" In a letter dated February 22, 1957, the Employer listed a. series of plants which were forced out of business as a result of frequently threatened or actual strikes. In letters dated February 23 and 25, 1957, the Employer, according to the Petitioner, continued its cam- paign of slander and intimidation against the trade union movement in general and the petitioning Union in particular. The Petitioner ' The Regional Director states that the envelope in which the objections were mailed to the subregional office was inadvertently destroyed and that it was therefore impossible to determine whether the two envelopes bore similar postmarks. 5 See Audubon Cabinet Company, Inc., and Period Tables, Inc., 117 NLRB 861. NATIONAL FURNITURE COMPANY, INC. 3 also filed with the Regional Director a supplemental statement of position regarding the letter of February 25, 1957, that the Employer through its production manager made a most drastic and coercive threat by its final assertion, "Let me tell you in closing that I per- sonally feel that any vote for this Union is a vote for a sure strike or lockout." The Regional Director properly finds that the letters of Novem- ber 19 and December 26, 1956, cannot be considered as a basis for objections to election as they were distributed prior to the Board's Decision and Direction of Election, dated February 1, 1957s Concern- ing the remaining letters to which the Petitioner objects, the Regional Director correctly holds that the content of these documents, when considered as a whole, was, permissible campaign propaganda of the kind the Board has declined to police or censor but rather leaves the approval thereof to the good sense of the voters? As for the final statement in the Employer's letter of February 25, 1957, which the Petitioner deems particularly objectionable, we are of the view that it was not intended to threaten and did not have the effect of threat- ening the Employer's employees with retaliatory action. In the context of the preceding portions of the letter, wherein the Employer points out that unions call costly strikes and that victories by this Union had resulted in some plants going out of business, it would appear that the Employer's statement that "any vote for this Union is a vote for a sure strike or lockout" indicated nothing more than that in the Employer's opinion the Union would cause a strike and the closing of the Employer's plant if it won the election. As the letters were at most an expression of the Employer's opinion and elec- tioneering propaganda privileged under Section 8 (c) of the Act, we agree with the Regional Director that the first objection is without merit. Objection 2: The Petitioner asserts that in the month of February 19t7, just prior to the election, various foremen made coercive and threatening statements to employees, particularly threatening them with, discharge if they should: join or assist the Union. The Petitioner did not submit and the Regional, Director's investigation did not reveal any evidence in support of the Petitioner's contention. We therefore agree with the Regional Director that this objection is without merit. Objection 3: The Petitioner asserts that prior to the election the Employer discriminatorily discharged or laid off a number of em- ployees as a result of which the Petitioner filed unfair labor practice Stratford Furniture Corporation, 116 NLRB 1721 ; Bridgeport Moulded Products. Inc.. 115 NLRB 1751; National Furniture Mfg. Co., Inc., 106 NLRB 1300. T The Zeller Corporation, 115 NLRB 762 ; L. G. Ever18t, Inc., 112 NLRB 810. 4. DECISIONS OF NATIONAL LABOR RELATIONS BOARD charges. As the Regional Director's investigation discloses that the discharges occurred prior to the date of issuance of. the Decision and Direction , of Election and that, moreover, the charges (Case No. 35-CA-726) were dismissed by the Regional Director, we find in agreement with the Regional Director that this objection is without merit. Objections 4, 5, and 6: The Petitioner contends that the Employer, by "divers and sundry other acts, statements, and conduct" during January and February 1957, engaged in a campaign of coercion and intimidation. The Petitioner further asserts that "the entire con- geries of acts and statements" of the Employer prior to the election made a free choice in the election impossible. In particular, the Peti- tioner takes the view that community feeling stimulated by the "emblazoned headlines in the newspapers" about the baby shooting incident "so blanketed the thought processes of the employees in the community with the screen. of emotional hysteria," as to warrant setting the election aside. The Regional Director finds that the Petitioner's reference to "divers and sundry" other acts lacks reasonable specificity and there- fore raises no issues to be considered on the merits. The Regional Director also states that none of the newspapers which carried stories and headlines during the middle of February 1957 concerning the shooting of a 4-month-old daughter of a nonstriking employee of an employer in Oakland City, Indiana, approximately 30 miles from the Employer's plant in Evansville, Indiana, linked the Petitioner or the Employer's plant with the shooting incident. Finally, the Re- gional Director notes as to the Petitioner's contention concerning the coercive impact of the totality of the Employer's conduct that the various components of that conduct were considered in connection with the preceding objections and were found by him not to constitute improper interference with the election. We agree with the Regional Director that these objections are without merit. Upon the foregoing and the entire record, we find that the Peti- tioner's objections concerning the Employer's conduct do not raise substantial or material issues affecting the results of the election. We therefore adopt the recommendations of the Regional Director and hereby overrule all the Petitioner's objections. Accordingly, as the Petitioner failed to secure a majority of all the valid votes cast, we shall certify the results of the election. [The Board certified that a majority of the valid votes was not cast for the United Furniture Workers of America, AFL-CIO, and that the said organization is not the exclusive representative of the Employer's employees in the .unit heretofore found appropriate.]