WATE, Inc.

WATE, INC. 301 department to the cutting department on a permanent basis, and the supervisors were instructed by the Employer to devote part of their time to the cutting operation. From the foregoing, we conclude that Meledandri, Rabich, and Dixon are permanent replacements for the striking employees who were employed on the eligibility date, and were eligible to participate in the election.3 Accordingly, in agreement with the Regional Di- rector's recommendation we hereby overrule the challenges to the ballots of Meledandri, Rabich, and Dixon. As we have overruled the challenges to four of the eight challenged ballots and as the outcome of the election depends upon the con- sideration of those four ballots, we shall direct that they be opened and counted. [The Board directed that the Acting Regional Director for the Tenth Region shall, within 10 days from the date of this Direction, open and count the ballots of Thommie Hime, Arthur Meledandri, Joseph Rabich, and Cyril Dixon, and serve upon the parties a sup- plemental tally of ballots.] s Although Rabich was in New York on leave of absence without pay , on the eligibility date, he returned to work on August 11, 1958, was still employed on September 3, 1958, and was therefore eligible to participate in the election. WATE, Inc. and Local No. 760, International Brotherhood of Electrical Workers, AFL-CIO, Petitioner. Case No. 10-RC- 4067. March 19, 1959 DECISION AND CERTIFICATION OF RESULTS OF ELECTION Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted on April 24, 1958, among the employees in the agreed appropriate unit, under the direction and supervision of the Regional Director for the Tenth Region. Upon the conclusion of the election, a tally of ballots was furnished the parties. The tally of ballots shows that 16 ballots were cast, of which 6 were for the Petitioner and 10 were against the Petitioner. There were no void or challenged ballots. On April 28, 1958, the Petitioner filed timely objections to conduct affecting the election. In accord with the Board's Rules and Regu- lations, the Regional Director caused an investigation to be made of the issues raised by the objections, and on August 13, 1958, he issued and served on the parties his report on objections. He recom- mended that the Board overrule allegations Nos. 1, 2, 4, 5, 6, 7, and 8 123 NLRB No. 36. 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the objections and that the Board direct a hearing to resolve the factual issues raised by allegation No. 3, as well as by a preelection speech made by the Employer on April 23, 1958. As no exceptions had been filed to the Regional Director's report, the Board, on September 3, 1958, issued an order overruling allegations Nos. 1, 2, 4, 5, 6, 7, and 8 and directing a hearing to resolve the issues raised by allegation No. 3 and the Employer's preelection speech. On October 16, 1958, a hearing was held before James R. Webster,, hearing officer. On November 14, 1958, the hearing officer issued and caused to be served on the parties his report and recommendations, a copy of which is attached hereto. The hearing officer concluded that the Employer had engaged in no preelection conduct which unduly interfered with the employees' free choice of a bargaining representative at the election and therefore recommended that the, Petitioner's objections be overruled. The Petitioner filed timely exceptions. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The Board has considered the reports, the objections and exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the hearing officer insofar as they are not inconsistent with this Decision.' Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved herein claims 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. appropriate for purposes of collective bargaining within the mean- ing of Section 9(b) of the Act : All engineers in radio and TV transmitting; TV and Video technicians; all TV projectionists, employed at WATE, Inc., in Knoxville, Tennessee, excluding office clerical employees, professional employees, announcers, staff artists, cameramen-floormen, film tech- nicians, program and production employees, the maid and janitors, watchmen-guards, executive supervisors, and all other supervisors as defined in the Act. 5. On April 23, 1958, the Employer's general manager made a preelection speech. The issues arising out of the preelection speech 'We adopt the hearing officer's credibility findings, which in our opinion are supported by the clear preponderance of all the relevant evidence in this case. Standard Dry Walt Products, Inc., 91 NLRB 544, 545, enfd. 188 F. 2d 362 (C.A. 3). WATE, INC. 303. are two-fold: (a) Whether the speech violated the Board's Peerless- Plywood rule, which forbids election speeches on company time to. massed assemblies of employees within 24 hours before the scheduled time for conducting an election; 2 and (b) whether the speech con- tained coercive remarks which unduly interfered with the election. (a) The applicability of the Peerless Plywood rule: The credited testimony shows that the election was held at 10 a.m. on April 24,. 1958. During working hours, between 8:30 and 9 a.m. on April 23,. the day before the election, Linebaugh, the Employer's general manager, began a meeting of employees in a small studio room.. Most of the approximately 15 employees in the unit, other employees,, and 3 department heads attended. Those who attended were paid. Linebaugh began the meeting by stating that those who desired to, leave could do so, and that the meeting would have to close before 10 a.m. because of Federal law. Linebaugh spoke until nearly 10= a.m. At 9:58 or 9:59 a.m. he adjourned the meeting. Some em- ployees had left during the speech; others left immediately following- the adjournment. Still others remained, together with Linebaugh. and at least one other Employer representative. From 10 to possibly 10:25, employees who remained after the- adjournment questioned the Employer representatives as to the mat- ters discussed before the adjournment. There was, however, increas- ing confusion : Employees commenced questions simultaneously,. question-and-answer discussion groups formed, and employees began rearranging chairs and cleaning up the meeting room. Linebaugh and one employee, conversing together, were the last to leave,. somewhere between 10:10 and 10:25. No employees had their pay docked for staying after the adjournment. There is no showing- that following the adjournment the Employer initiated the ensuing conversations.' We find without merit the Petitioner's contention that Linebaugh's speech was continued after 10 a.m. In our opinion, the post-adjourn- ment conversations, which were initiated entirely by the employees, constituted merely permissible pre-election talk, normally to be ex- pected after a speech, rather than an extension of the speech itself.' Accordingly, we find that the Employer's preelection speech of April 23 did not violate the Peerless Plywood rule. (b) The allegedly coercive nature of the speech: The Petitioner's allegation No. 3 alleged that the Employer had made statements that 2 Peerless Plywood Company, 107 NLRB 427 , at 429. 3 Thus a witness for the Petitioner testified : "I would say that the meeting after 10, was carried on by people just asking questions." Moreover, the record shows that at about 10 a .m., when the formal meeting adjourned , one employee announced to the remain- ing employees that "it was our fault if we stayed there after ten," and that if the employees remained , the ensuing questions would be "just between us." 'Montgomery Ward d Company, 119 NLRB 52. 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it would never agree to a contract with the Petitioner. The Regional Director found that only Linebaugh's speech was material in this connection. The credited testimony in the record shows that in the speech of April 23, Linebaugh discussed the Employer's management plan,5 the Petitioner, and the imminent election. In response to questioning as to the possible effect of a union contract on the man- agement plan, he stated that any such contract would have to include the plan. There was no testimony that Linebaugh had stated he would never sign a contract with the Petitioner. The hearing officer found that Linebaugh's statement was an expression of the Employ- er's position as to what it wanted included in the contract and was not a statement that it would refuse to bargain in good faith with the Petitioner. As Linebaugh's statement constituted a permissible preelection expression of the Employer's bargaining position and was noncoercive in character, we agree with the hearing officer that it did not constitute interference with the election.6 Accordingly, we find without merit the Petitioner's objections and exceptions, and hereby overrule them. As the Petitioner has failed to receive a majority of the votes cast in the election, we shall certify the results of the election. [The Board certified that a majority of the valid ballots was not cast for Local No. 760, International Brotherhood of Electrical Workers, AFL-CIO, and that said labor organization is not the exclusive representative of the employees of the Employer in the unit heretofore found appropriate.] 5 The management plan , devised by an independent engineering firm, covered employees' wages , hours, and working conditions. At the time of the hearing , it had not been re- duced to writing, and whether or not it was actually in existence is unclear. Previous employee meetings had been held on the management plan. 6 See The Gutberson Corporation, 121 NLRB 260; Machinery Overhaul Company, Inc., 119 NLRB 1071. HEARING OFFICER'S REPORT AND RECOMMENDATIONS Pursuant to the provisions of a stipulation for certification upon consent election, an election by secret ballot was conducted on April 24, 1958, which election com- menced at 10 a.m. There were approximately 17 eligible voters, of whom 6 cast valid ballots for the petitioner and 10 cast valid ballots against petitioner. There were no void or challenged ballots. On April 28, 1958, timely objections to the election were filed by the petitioner and a copy served on the employer. On August 13, 1958, the Regional Director for the Tenth Region of the National Labor Relations Board issued his report on objections recommending that the Board direct a hearing to resolve certain issues , and recommending that certain allegations of petitioner be overruled. No exceptions were filed to this report, and on September 3, 1958, the Board issued an order that petitioner 's allegations Nos. 1, 2, 4, 5, 6, 7, and 8 be overruled and "that a hearing be held to resolve the issues raised by allegation No. 3 and by the speech made to the employees by the Employer's general manager on April 23, 1958." A notice of hearing was issued by the Regional Director of the Tenth Region of the National Labor Relations Board and a hearing was held before the hearing officer on October 16 , 1958, in Knoxville, Tennessee . At this hearing the petitioner, WATE, INC. 305 the employer, and Counsel for the Regional Director participated, and all parties were afforded full opportunity to be heard, to examine and cross examine wit- nesses, to introduce evidence bearing upon the issues, and to file briefs. Upon the entire record in this case, and from his observations of the witnesses, the hearing officer makes the following findings of fact, conclusions, and recom- mendations: FINDINGS OF FACT On April 23, 1958, the employer conducted a meeting of employees in the small studio room of its Broadway Television Station. There were approximately 12 to 15 of the employees in the appropriate unit present, and also some depart- ment heads and other employees. The meeting commenced between 8:30 and 9 a.m., and was held on company time. The issues are as follows: 1. Whether the employer's meeting of employees terminated before or after 10 a.m. on April 23, 1958, 24 hours before the commencement of the election. 2. Whether Mr. Linebaugh, general manager of WATE, made a statement during the meeting of April 23, 1958, to the effect that he would never sign a con- tract with the Union in the event it won the election. At the April 23 meeting the Employer discussed his management plan for the operation of the Company and also unionism. Prior meetings had been held on the proposed management plan. Off-duty employees were called to the meeting and paid for time involved. Based on the hearing officer's consideration of the record and observation of the witnesses, I find that the Employer's meeting held on April 23, 1958, was adjourned immediately prior to 10 a.m. on that date. There is testimony of several witnesses to the effect that the company officials and employees continued after 10 a.m. to discuss matters brought out during the meeting; but as indicated by petitioner's witnesses Underwood and Madison the employees were there at their own choice after 10 a.m.' I do not consider the voluntary discussion that continued after 10 a.m. to be in violation of the Board's 24-hour rule as expressed in The Peerless Plywood Company case, 107 NLRB 427. As to statements of Mr. Linebaugh at the April 23 meeting regarding a con- tract with the Union, I find that he was asked about his management plan in rela- tion to a union contract, and I find that he replied that the contract would have to include the management plan.2 No witness testified that he stated he would never sign a contract with the petitioner in the event it won the election. I conclude that Mr. Linebaugh's statement was an expression of his position as to what he wanted included in the contract 3 and was not a statement that he would refuse to bargain in good faith with the Union. I further conclude that the statement by Mr. Linebaugh did not constitute an interference with the election. RECOMMENDATIONS I recommend that the allegation No. 3 of petitioner be overruled, and as there was no violation of the Board's 24-hour rule, that the objections of petitioner be overruled in their entirety. As provided in the order of the Board directing hearing on objections, any party may, within 10 days from the date of the issuance of this report, file with the Board in Washington, D.C., an original and six copies of the exceptions thereto. Upon filing such exceptions, the party filing same shall serve a copy thereof upon each of the other parties and shall file one copy with the Regional Director of the Tenth Region. If no exceptions are filed thereto, the Board will adopt the recommendation of the hearing officer. 1 Tr. p. 77, lines 5-10 and p. 92, lines 4-7. 2 Several witnesses gave testimony as to this statement of Mr. Linebaugh (Linebaugh, Tr. p. 29; Crouse, p. 59; Underwood, pp. 77 and 85; Madison, pp. 91 and 93; and Wiedemann, p. 121), and all are in substantial agreement. Underwood and Madison testified that he stated he could not or would never sign a union contract unless the management plan was included. In view of the fact that each of these witnesses on examination by the hearing officer attributed a different choice of words to Mr. Linehaugh, and in consideration of their testimony as a whole I do not credit 'their versions of Mr. Linebaugh's choice of words. 3 Tr. p. 85, lines 10-13. 508889-60-vol. 1.23-21