Orleans Manufacturing Co.

630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Orleans Manufacturing Company and Retail, Wholesale & De- partment Store Union, AFL-CIO, Petitioner. Case No. 15-RC- 1578. April 25, 1958 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to a Decision and Direction of Election issued on August 26, 1957,1 an election by secret ballot was conducted on September 131 1957, under the direction and supervision of the Regional Director for the Fifteenth Region, among the employees in the unit heretofore found appropriate. Upon the conclusion of the election, the parties were furnished with, and their observers signed, a tally of ballots which showed that of approximately 125 eligible voters, 80 cast ballots for the Petitioner, and 42 against the Petitioner, and 3 ballots were challenged. The challenged ballots were not sufficient in number to affect the results of the election. On September 20, 1957, the Employer filed timely objections to conduct affecting the results of the election. After an investigation, on December 3, 1957, the Regional Director issued his report on objections to conduct affecting results of election, in which he found that the Employer's objections did not raise substantial or material issues with respect to conduct affecting the results of the election, and recommended that the objections be overruled and that an appro- priate certificate of representatives be issued. Thereafter, the Employer filed exceptions to the Regional Director's report, a request for a hearing, and a supporting memorandum. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Jenkins]. In objections 1-a and 1-b,2 the Employer alleged that between the date that the election was directed and the date it was held the Petitioner, through its officers, agents, and representatives, threatened employees that they would be "beat up" if they did not join the Petitioner, and that they would "get whipped" if they did not join the Petitioner and it got in. With respect to these objections, the Regional Director found that on the day before the election, 1 of 3 rank-and-file employees who were waiting for an elevator to take them out of the building at lunchtime asked another in the group, "Which one are you for?" When the latter replied that he was for the Employer and against the Petitioner, the former said, "We'll fix you up if you don't join the Union. We'll beat you up." The 1 Unpublished. 2 The objection numbers are those used by the Regional Director. 120 NLRB No. 83. ORLEANS MANUFACTURING COMPANY 631 employee so addressed reported the incident to the Employer's presi- dent the Monday following the election, which was held on a Friday, and declared that he intended to quit, but was prevailed upon not to do so. Neither the employee making the threat nor his companion held any office in the Petitioner or had attended union meetings more often than many other employees; one of them had secured the sig- nature of one employee to one application for membership in the Petitioner, but most of such applications were secured by other employees. The Regional Director found further that on August 27 or 28, a day or so after the date of the Direction of Election, an employee asked another employee, during the latter's lunch hour and outside the plant, why he did not join the Petitioner. When the latter replied that he just didn't want to, the former stated that if he didn't join he might get whipped.3 The employee making the alleged threat was not an officer or agent of the Petitioner or so closely associated with the Petitioner at the time of the alleged threat as to warrant other employees in believing that he had authority to act for the Petitioner; nor was there evidence that the Petitioner authorized, condoned, or ratified his statements. The Regional Director recommended that these objections be over- ruled, on the ground, inter alia, that the statements complained of were made by rank-and-file employees whom the Petitioner had not vested with any authority. The Employer excepts to this finding, asserting that the Petitioner had authorized, condoned, and ratified their conduct 4 The Employer makes no claim that it has any evi- dence in its possession to support this assertion, but seeks a hearing in an effort to develop such evidence by the process of examination and cross-examination. In order to prevent delay in the effectuation of conclusive election results by a party who invokes the Board's objec- tions procedure without having any real basis for invalidating the election, the Board has uniformly refused to direct a hearing on such objections unless the objecting party supplies specific evidence of con- duct which prima facie would warrant setting the election aside a 8 The Regional Director found that the employee to whom this statement was made reported that he took it as a joke and laughed, and that there was a considerable amount of banter between the two. The Employer excepts to these findings, and we do not as- sume them to be true. 4 The Employer also excepts to the Regional Director's failure to find that the conduct involved in objection 1-a in fact intimidated the employee addressed . This exception is hereby overruled. The Board will not attempt to enter the speculative realm of evalu- ating the subjective reaction of employees to conduct allegedly invalidating an election. Shovel Supply Company, 118 NLRB 315, American Wholesalers, 116 NLRB 1492, 1495, footnote 6, The Great Atlantic & Pacific Tea Company, 111 NLRB 623, 626 ; of Radio Officers Union etc. v. N. L. R. B ., 347 U. S. 17, 51. s Benton's Cloak & Suit Company, 97 NLRB 1327; Remington Rand Division of Sperry Rand Corp., 118 NLRB 1367 ; Felix Bonura Company, 119 NLRB 1620. This practice was judicially approved in N L. R. B v Vulcan Furniture Mfg. Corp., 214 F. 2d 369, 372 (C A 5), certiorari denied, 348 U. S. 873. .632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The speculative possibility advanced by the Employer that evidence to support its allegations might transpire at a hearing is insufficient to warrant the delay in these proceedings which would arise from di- recting such a hearing.' In objection 1-c, the Employer alleged that between the date that the election was directed and the date it was held, the Petitioner, through its officers, agents, and representatives, threatened employees that if they did not join the Petitioner "teen-agers would whip them." With respect to this objection, the Regional Director found that prior to an employee's termination, 12 days before the Board's Decision and Direction, he allegedly asked another employee why he did not attend union meetings and informed him that there were 16 employees who did not. When the latter replied that he just didn't go to meetings, the former declared that he had better look out or those "teen-agers" might get him on the way home? In objection 1-d, the Employer alleged that between the date that the election was directed and the date it was held, the Petitioner, through its officers, agents, and representatives, warned an employee previously threatened with being run out of town for not joining the Petitioner, and who had made statements in opposition to the Peti- tioner, to "watch his step" and "not get in the way." With respect to this objection, the Regional Director found in part that about a week before the issuance of the Decision and Direction of Election, in the course of a discussion about the Petitioner among a group of em- ployees washing up at the end of the workday, an employee alleged to be a member of the Petitioner's organizing committee' told an- other employee that some of the employees, including apparently the speaker, were liable to get together and send the employee back to Carolinas As these incidents took place before the issuance of the Decision and Direction of Election, we overrule these objections.'° With respect to objection 1-d, the Regional Director also found that a week or two before the election, the employee who had been threat- ened with removal to Carolina initiated a conversation with another 8 The cases relied upon by the Employer do not warrant a different result, since none of them involved objections based on allegations which the objecting party failed to sup- port by evidence tendered to the Regional Director of the Board. 7 The Regional Director found that there was no feeling of animosity between these two. Since the Employer asserts that this finding is contrary to fact, we shall disregard it. 8 The Employer excepts to the Regional Director 's failure to find that this employee was a member of the Petitioner's organizing committee. For purposes of this decision, we shall assume that he occupied that position. 9 The Employer apparently asserts that some of the employees present or referred to during this conversation were members of the Petitioner' s organizing committee. We shall so assume for purposes of this decision. "P. W. Woolworth Co., 109 NLRB 1446, 1448-1449 ; National Furniture Company, Inc., 119 NLRB 1; Joanna Western Mills Co., 119 NLRB 1789. We note that the Employer makes no claim that it was unaware of these incidents before the election was held, or that it drew them to the attention of the Regional Director as a basis for delaying the election until the passage of time had erased any effect they may have had. ORLEANS MANUFACTURING COMPANY 633 employee, who had been selected by other employees to direct their organizational activities. During this conversation, which was heated, the former attempted to persuade the latter that he was in error in supporting the Petitioner and, as on previous occasions, threatened to sue him. Although asked, the antiunion employee did not explain on what grounds he would sue the other, who was 15 to 20 years younger than he." The younger man replied that the anti- union employee should watch his step and not get in the way. The witnesses present during this exchange did not regard this last state- ment as a threat of physical violence. We agree with the Regional Director that this conduct, if it occurred, would not warrant setting aside the election, since the remark was an equivocal one, and was made in the heat of a personal dispute arising from an effort to prose- lytize the prounion employee rather than in connection with the latter's organizational activities." The Employer contends, however, that the election should be set aside notwithstanding the circumstances above set forth, i. e., the fact that most of the statements of which it complains were made before, the issuance of the Decision and Direction of Election, that most were made by rank-and-file employees, and that the only statement made by a union agent after the issuance of the Direction of Election was equivocal in character. With respect to the conduct of rank- and-file employees, the Employer contends that the basic issue is not whether the remarks in question were made by agents of the Peti- tioner, but whether they were calculated to interfere with the free choice of the voters. While the Board will consider conduct not attributable to any of the parties in determining whether an election should be set aside, the Board accords less weight to such conduct than to conduct of the parties.13 The Board believes that the conduct of third persons tends to have less effect upon the voters than similar conduct attributable to the employer who has, or the union which seeks, control over the employees' working conditions. Furthermore, were the Board to give the same weight to conduct by third persons as to conduct attributable to the parties, the possibility of obtaining quick and conclusive election results would be substantially di- minished. The employer and the union are deterred from election misconduct by the unfair labor practice provisions of the Act and by the trouble and expense which repeated elections impose upon n According to the Regional Director , the employee in question had in mind an alleged injury which might occur to him if the Petitioner was successful in its campaign and he subsequently was required to join the Petitioner. 32 See Westinghouse Electric Corporation, 91 NLRB 955 , 960; E. I. DuPont de Nemour8 Company, Inc, etc, 105 NLRB 710, 712 is Benton's Cloak & Suit Company , 97 NLRB 1327, 1329, 1330; E. I. Dupont de Nemours eE Company, Inc., 105 NLRB 710 , 712; Tampa Crown Distributors, Inc., 118 NLRB 1420. 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them.14 The absence of similar deterrents against third persons who wish to forestall a conclusive election may make them more prone to engage in conduct calculated to prevent such a result. In view of these considerations, we do not believe that the employee conduct described above which occurred after the Board's Decision and Di- rection of Election created an atmosphere rendering a free election impossible.i5 The Employer further excepts to the Regional Director's failure to find that the incidents alleged in objections 1-b and 1-c (the "Whip- ping" incident and the "teen-age" incident) were part of a concerted design of the Petitioner and its adherents to coerce the votes of antiunion employees. Assuming, without deciding, that the existence of such a plan may be shown in part by incidents occurring prior to the Decision and Direction of Election, 16 we do not believe that the above incidents, considered as a whole, warrant the inference drawn by the Employer, and the Employer offers no further evidence to support its allegations. We therefore overrule this exception. In objection 1-e, the Employer alleged that the Petitioner inter- viewed employees in the voting unit at their homes immediately before the election. With respect to this objection, the Regional Director found as follows : Within the 2 weeks preceding the election the Petitioner's agents visited no more than 10 employees, of the approximately 125 eligible voters, at their homes." Those so visited were known to be opposed or indifferent to the Petitioner.18 No witnesses attributed threats or impolite conduct to the Petitioner's agents.19 The Regional Director recommended that this objection be overruled. In Plant City Welding and Tank Company, 119 NLRB 131, the Board held that a union does not interfere with the employees' free choice of representatives by interviewing them in their homes. We therefore affirm the Regional Director. In objection 1-f, the Employer alleged that during the period be- tween the date that the election was directed and the date it was held, 14 In extreme cases, a union's misconduct may deprive it of a place on the ballot New York Shipping Association and Its hlencbers, 108 NLRB 135, 144; 108 NLRB 554, 556 15 See J. Spevak d Co , Inc, et al , 110 NLRB 954, White's Uvalde Mines, 110 NLRB 278; Westinghouse Electric Corporation, 91 NLRB 955, 960, Minneapolis Knitting Wooks, 84 NLRB 826, 827. 18 But see The Liberal Market, Inc. 108 NLRB 1481, 1483, and the cases cited in foot- note 10, supra 17 The Employer alleges that a full hearing with the right of confrontation and cross- examination would reveal that the home visits were more widespread. We reject this assertion as a basis for oidering a hearing for the reasons stated in connection with objections 1-a and 1-b. 78 The Employer asserts that this is immateiial but does not except to it as a factual finding 1H Some were offered a reduced initiation fee if they joined the Petitioner before the election. This aspect of the case is discussed infra. ORLEANS MANUFACTURING COMPANY 635 the Petitioner promised employees financial benefits and rewards if they joined the Petitioner before the election. The Regional Direc- tor found that the Petitioner urged several employees to join the Petitioner before the election on the ground that the employees were paying nothing then to join but that the membership might establish an initiation fee if the Petitioner obtained a contract with the Em- ployer, and that the Petitioner urged employees to support it in order to obtain higher wages. The Regional Director found no evidence that the employees were promised a financial reward for voting for the Petitioner. The Regional Director recommended that the objec- tion be overruled, on the ground that a union's promises of reduced membership fees, and of increased wages through organization, do not interfere with a free election. When read in connection with its memorandum, the Employer's exceptions do not clearly disclose whether it challenges the propriety of the Regional Director's con- clusion assuming the accuracy of his factual findings. In any event, the Regional Director's conclusion accords with Board policy, and we hereby adopt it 21 In objection 2, the Employer alleged that the Petitioner's activities both before and after the issuance of the Direction of Election formed a pattern of coercive conduct which was calculated to and did affect the result of the election. The Regional Director recommended that this objection be overruled. Because the Employer fails to set forth any grounds for its exception, and because we do not believe that the evidence tendered by the Employer supports this objection, we hereby overrule it a1 Since we agree with the Regional Director that the Employer's objections should be overruled, we will certify the Petitioner as rep- resentative of the Employer's employees. [The Board certified Retail, Wholesale and Department Store Union, AFL-CIO, as the collective-bargaining representative of the production and maintenance employees at the Employer's New Orleans, Louisiana, plant, in the unit found appropriate.] 20A. R. F. Products, Inc, 118 NLRB 14'56; Maehinesy Overhaul Company, Inc, 115 NLRB 1787 , 1789 ; Shirlington Supermarket, Inc., et al, 106 NLRB 666 , 667. The Re- gional Director further found that one or more employees predicted to another employee that if she joined the Petitioner then, she might do so for $3 or $4, but that if she waited it might cost her $30 or $40. We agree with the Regional Director that this prediction does not warrant setting the election aside, both for the reasons stated in A. R. F. Prod- ucts, supra, and because it was made by a rank-and-file employee or employees. For the reasons set forth in connection with objections 1-a and 1-b, we reject the Employer's request for a hearing on the ground that the evidence developed therein might disclose that the piomuses were conditioned upon the employees' vote 21 See The Coolidge Corporation, 108 NLRB 3 , 5; National Furniture Company, Inc., 119 NLR1, 1 , Charles T Brandt, Inc, 118 NLRB 956.