Storkline Corp.

STORKLINE CORPORATION 875 remove the agreement as a bar.3 As the Board stated in the Willis case:4 The Board's contract bar rule is based upon policy considerations. It aims to stabilize an existing contractual relationship between an employer and its employees' bargaining representative for a reasonable term. To disrupt that relationship, it seems to us, would require something more than finding that several individ- uals were included, who should not have been, in an otherwise clearly appropriate unit. We believe that the same considerations apply with equal force to this case. Accordingly, as the petition was untimely filed, we find, contrary to the Regional Director, that the current agreement constitutes a bar. We therefore shall dismiss the petition. [The Board dismissed the petition.] $ See Mission Appliance Oorporation, 104 NLRB 577, footnote 7; cf. O. G. Willis, Inc., 119 NLRB 1677. • O. G. Wallis, Inc, supra, at p. 1678 Storkline Corporation and Local Union No. 3031, United Brother- hood of Carpenters and Joiners of America, AFL-CIO, Peti- tioner. Case No. 15-RC-53327. May 09, 1963 DECISION, ORDER, AND DIRECTION OF THIRD ELECTION Pursuant to a Board Decision, Order, and Direction of Second Elec- tion issued on February 20, 1962,1 an election by secret ballot was con- ducted in the above-entitled proceeding on March 22, 1962, under the direction and supervision of the Regional Director for the Fifteenth Region, among the employees in the appropriate unit. At the con- clusion of the balloting, the parties were furnished with a tally of ballots which showed that of approximately 1,396 eligible voters, 677 cast votes for, and 703 against, the Petitioner, 6 cast void ballots, and 10 were challenged.2 The challenged ballots were insufficient in num- ber to affect the election results. Thereafter, the Petitioner filed timely objections to conduct affecting the election. The Regional Director conducted an investigation of the objections and on June 29, 1962, issued his report on objections in which he^ 1135 NLRB 1146. a Petitioner was the only labor organization participating in this election. The Regional' Director granted the request of International Union of Electrical, Radio and Machine- Workers of America, AFL-CIO, which had participated in the first election, to be re- moved from the ballot for the second election. 142 NLRB No. 99. 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recommended that Petitioner's objections I, 11(d), and II(g) be sus- ,tained, that the election be set aside, and a new election be held. He did not rule on Petitioner's objections 11(e), 11(h), and 11(j), the substance of which have been alleged as unfair labor practices in a separate proceeding against the Employer.' He recommended that the remaining objections II(a), (b), (c), (f), and (i) and III and IV, be overruled. The Employer filed timely exceptions to the report and a supporting brief. 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 [Chairman McCulloch and Members Rodgers and Brown]. The Board has considered the Regional Director's report, the excep- tions, and brief,4 and hereby adopts certain of the Regional Director's findings with respect to objection I and his recommendation to set the election aside.5 An election in this case was initially held on May 12, 1961, pursuant to Board direction. On February 20, 1962, the Board set aside this election, because, by its antiunion campaign tactics, the Employer had engaged in conduct which was "calculated to, and did, convey to em- ployees the message that selection of a bargaining representative would result in loss of employment opportunity."' Immediately upon re- ceiving notice of the direction of a second election, the Employer em- barked on a new campaign to defeat the Union. Between February 21 and March 22, 1962, the date of the second election, the Employer sent eight letters, made three speeches, and showed two movies on five sep- arate occasions, and distributed six other pieces of propaganda. The new campaign, much like the old one, was keyed to the idea of instill- ing fear in the minds of employees who might be disposed to vote for the Union-fear of physical violence, fear of strikes, and fear of loss of employment. This keynote was set forth in the first campaign com- munication from the Employer's president, Ryan, to the employees, in which he said : 3In his Intermediate Report issued on November 23, 1962, in that proceeding, Trial Examiner William J. Brown found that the Employer had interrogated employees con- cerning union activities in violation of Section 8(a) (1) of the Act. In Its Decision and Order issued on March 28, 1963, the Board adopted these findings. Storkline Corporation, 141 NLRB 899. 4 As the Employer's exceptions and brief, the Regional Director's report, and the record as a whole adequately present the facts, the issues involved, and the positions of the parties, we hereby deny the Employer's request for a hearing or for oral argument 5 As no exceptions were filed with respect to the Regional Director's recommendations that objections 11(a), (b), (c), (f), and ( 1) and III and IV be overruled , we adopt these recommendations pro forma. In view of our decision herein we do not rule on the Employer's exceptions respecting objections 11(d) and II(g). 9 Storkline Corporation, supra. Specifically, this objectionable conduct consisted of (a) emphasizing in campaign speeches to employees that if the Union won the election, bargaining would be futile, a strike probable, and permanent strike replacements would be hired ; ( b) building up a pool of such potential replacements before the election and before any contract demands had been made upon the Employer ; and (c) unsupported statements that in the event of a union victory , the Employer's customers would reduce their orders and business would be adversely affected. STORKLINE CORPORATION 877 In ordering the [new] election, the Labor Board felt that we were not justified in what we said and did about the threat of strikes, what strikes might do to your jobs, and what new employees might have to do about crossing picket lines . . . We intend to see that you get all the facts. The violence and the strikes and the threats to the jobs of working people which we hear about all the time are very, very real. You need only pick up your daily news- paper to read of such strikes and violence, and they occur only where there are unions. [Emphasis in original.] On March 13, Ryan wrote to employees that "The Carpenters Union [Petitioner] is a threat to the security and peaceful existence of every man and woman in our plant." A week later the Employer's vice president, Bracken, told employees in a prepared speech : Everyone of you has a great deal at stake in this election Thurs- day. If the Carpenters Union gets control of your future, you have a lot to lose. These paid organizers of the union try to get you to believe that you have everything to gain and nothing to lose. That is nothing but sales talk ! And it's dangerous sales talk. If you fall for that line you may make the worst mistake of your life. This Carpenters Union can mean real trouble here at Stork- line for everyone-you and me both. This union can cost you a lot of your money, it can throw you into violence that will en- danger yourself and your family ; it can "give away" some of your present benefits ; and it can cause you to lose your job! [Emphasis in original.] In the same speech Bracken also referred to the alleged constant danger of strikes attendant upon successful organization of employees by labor organizations. In this context, which was buttressed by statistics re- specting strikes and strike violence across the country and in the State of Mississippi, Bracken warned his listeners : When you are pulled out on an economic strike, your pay stops immediately. You cannot even collect Unemployment Compen- sation from the government. The company is perfectly free under the law to permanently replace economic strikers with new employees. When that happens, the strikers completely lose their jobs even though the strike later ends. Thousands of men and women have permanently lost good jobs, because of union strikes, and it could happen to you! [Emphasis in original.] On March 20, President Ryan also delivered a prepared speech to the employees. In speaking out against unionization of the plant, he stressed that a strike might result in loss of certain of the Employer's customers which would mean "lost jobs here at Storkline and less job security for the future." Two weeks earlier on March 2, 1962, the 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer had attached a leaflet to the paychecks delivered to em- ployees which read : "What if you didn't get this paycheck because of a strike?" Also, in a poster displayed in the plant before the election the Employer urged employees to "Vote No" to "protect your job, your pay, your benefits, your security-against bad union strikes, bad union troubles, bad union leadership ." Finally, on several occasions between March 8 and 15, 1961, the Employer showed two movies to ,,mployees, one entitled "And Women Must Weep" 7 and, the other "A Question of Law and Order." 8 Both deal with alleged union violence. In the Sewell Manufacturing case," the Board said : Our function, as we see it, is to conduct elections in which the employees have the opportunity to cast their ballots for or against a labor organization in an atmosphere conducive to the sober and informed exercise of the franchise , free not only from interference, restraint, or coercion violative of the Act, but,also from other ele- ments which prevent or impede a reasoned choice. Because of the "powerful emotional force" inherent in the Em- ployer's propaganda there involved, we held that we would not permit such propaganda unless it was germane as well as truthful . Since the Employer's only purpose was to inflame emotions by appealing to racial prejudice and since the statements were not germane to the issues in the campaign, they exceeded the bounds of appropriate electioneering. Much the same sort of appeal was involved in the present case, albeit not based on the racial issue. Nevertheless , the principle of Sewell is, in our opinion, relevant here. An employer may point out in noncoercive terns for his employees' consideration the possible re- ' The Board dealt with this motion picture in its decision in Plochman and Harri8on- Cherry Lane Foods, Ino., 140 NLRB 130. This film purports to be a true story account of the 1956 Potter-Brumfield strike in Princeton, Indiana, which involved a different company and a different union. The film, however, was a dramatized production rather than a documentary film 'The staging, acting, and director were performed by persons skilled in this medium The competence of the cast and the excellence of the production resulted in a moving story of callous union, leaders, a helpless employer,^unfortunate victims, ex- treme acts of violence and sabotage by union adherents including the shooting of an infant child, fear and hatred-all in connection with an allegedly unnecessary and unjustified strike. In the Plochman decision , the Board also recited the facts of the Potter- Brumfield strike as they appear in the Board's public records. Comparing these facts with the film account, it is not clear to what extent the events portrayed in the latter represent poetic license rather than what actually occurred. s The Regional Director's Report includes an account of this motion picture, excerpted from the Intermediate Report (IT R 147-62), issued on April 20, 1962, in Ideal Baking Company of Tennessee, Cares Nos 26-CA-1167 and 26-RC-1663 [143 NLRB 1461 wherein its showing was the subject of objections and unfair labor practice allegations. Briefly summarized , the film is devoted to the subject of violence in labor disputes A narrator makes editorial comments while showing various scenes of strike violence and of testimony adduced before the Senate Select Committee on Improper Activities in the Labor or Management Field, 85th Cong., 1st sess 9138 NLRB 66. STORKLINE CORPORATION 879 suits of unionization. But this campaign far exceeded any such mere appeal to reason. Rather it was clearly calculated to evoke an un- reasoning fear of the consequences resulting from union organization of the plant. The Employer, by the letters and speeches of its officials, by its leaflets, and by the showing of the above-mentioned motion pic- tures, created such an atmosphere of fear and confusion as to make impossible the holding of a free election. The preelectoral campaign conducted by the Employer was calculated to convey to the employees, in the same fashion as the Employer's campaign prior to the previous election, the inevitability of a strike, violence, and loss of jobs if they selected the Petitioner as their collective-bargaining representative.1e Contributing to the employees' concern over the possibility of personal economic losses, engendered by the Employer, were its statement that union strikes might lead to the cancellation of orders by some of its customers 11 and its references to existing benefits and its predictions that some might be lost if the Union were selected and bargained for the employees.12 These appeals to the employees' fears of economic and physical harm, if the Union won the election, were intensified by the several showings of the motion pictures "And Women Must Weep" and "A Question of Law and Order." A majority of the Board said of the former film in the Plochman decision, supra, that its impact upon the average viewer was in the nature of a misrepresentation which exceeded the bounds of permissible propaganda, hence the Board set aside an election held on the day after the film's showing. Although, in the present case, it appears that the last showing of the film took place approximately a week before the election, its effect was not neutralized by the passage of this short period of time because it was intended to, and did, in a most dramatic way, drive home the Employer's general propaganda theme that a vote for the Petitioner would result in strikes jeopardizing the economic security and physical safety of the employees and their families. The film "A Question of Law and Order" emphasized the same point.13 Significantly, the Employer's campaign of fear was not provoked by any conduct of the Petitioner. There is not the slightest hint that the Petitioner engaged in any violence or that it was . threatening strikes or other oppressive action against the Employer. Thus the Employer's campaign was waged on an issue of its own making. It created a "straw man" and then proceeded to frighten the employees 10 Storkline Corporation, supra; see Sewell Manufacturing Company, 140 NLRB 220. "Haynes Stellite Co., 136 NLRB 95; if. D . Cole Manufacturing Company, 133 NLRB 1455. n See Colvert Dairy Products Company, 136 NLRB 1508. 13 We are not deciding that the showing of "A Question of Law and Order" is per Be grounds for setting aside an election . Our holding is only that the film exacerbated the other fear propaganda material used by the Employer and, in this context, contributed to the creation of an atmosphere which made impossible the holding of a free election. 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD into the belief that their physical safety and jobs were at stake in the election.i4 In view of the above, we conclude that the campaign destroyed the "laboratory conditions" which the Board deems necessary for ascer- taining the uninhibited desires of the employees.15 Accordingly, we shall set the election aside and direct a new one.16 [The Board set aside the election conducted on March 22, 1962.] [Text of Direction of Third Election omitted from publication.] MEMBER Roi o is, dissenting : For the reasons stated below, I am unable to agree with my col- leagues' decision to set aside the March 22, 1962, election. As set forth in the Regional Director's report, the Employer used various propaganda media to convey to the employees its opposition to the Union and the reasons why the Employer thought that the employees would be better off without the Petitioner as their repre- sentative. No contentions have been urged, nor have any findings been made, that the propaganda involved any material misrepresentations or in any way involved a misstatement of the truth. Instead, my col- leagues' decision is based upon their sweeping characterization that such propaganda "was keyed to the idea of instilling fear in the minds of employees who might be disposed to vote for the Union." I cannot agree that opposition of an employer to unionization and its attempt to convince employees not to accept unionization is, with- out more, a sufficient basis for setting aside an election. Certainly, employees are entitled to know the benefits they are presently enjoying, the effectiveness and the status of the union which seeks to represent them, and to be apprised that unionization can and does entail risks and responsibilities as well as rights and privileges. Indeed, the courts 11 and the Board in several recent cases 18 have made clear that employees are not only entitled to such information, but that the dis- semination of such information in a preelection campaign is privileged under the Act we administer. 14 In reaching our conclusion in this case , we have, contrary to the statement of our dissenting colleague, considered not only the Employer 's propaganda , but also that of the Petitioner, examples of which are attached to the Employer 's exceptions and brief. 16 General Shoe Corporation, 77 NLRB 124, 127. 1e We find it unnecessary to consider certain conduct of third parties which was relied upon by the Regional Director in his recommendation to set the election aside 17 See, e.g., N.L.R.B. v. Threads, Inc., 308 F. 2d 1 (C A. 4) ; Union Carbide Corp v. N.L.R.B., 310 F. 2d 844 (C.A. 6); N.L.R.B. v. Transport Clearings Inc, 311 F. 2d 519 (C.A. 5). 1s See, e.g., Seven-Up Bottling Company, Inc., 140 NLRB 611; Allen-Morrison Sign Co, 138 NLRB 73; Decorated Products, Inc, 140 NLRB 1383; Arch Beverage Corporation, 140 NLRB 1385 . See also, Alto Plastics Manufacturing Corporation, 136 NLRB 850. STORKLINE CORPORATION 881 Moreover, I must once more express my disapproval of my col- leagues' method of "evaluating" preelection propaganda.10 For here again they have considered the Employer's campaign matter only in terms of selected passages and paragraphs without regard to the total election campaign of which they were an integral part. The record here shows that the Petitioner throughout the campaign engaged in full scale propaganda and counterpropaganda, and many of the issues raised by the Employer were in answer to the Petitioner's propaganda. Furthermore, it is clear that the Petitioner had ample opportunity to, and did in fact, answer and dissipate much of the Employer's so-called "appeal." 20 Moreover, I am unable to agree with my colleagues' basic contention that the Employer's campaign in the instant case was a mere repetition of the conduct involved in the Board's Decision, Order, and Direction of a Second Election issued on February 20, 1963 (135 NLRB 1146) 71 Accordingly, I would overrule the Regional Director' s recommenda- tion that objection I be sustained. 19 See, e.g., in Oak Manufacturing Company, 141 NLRB 1323; The Lord Baltimore Press, 142 NLRB 328 20 My colleagues in evaluating the Employer's propaganda are apparently impressed with the quantity of the "appeal." For example , they note that the Employer "sent eight letters, made three speeches, showed two movies . ." and distributed other pieces of propaganda not identified. However, the Employer asserts in its brief that during the same period the Petitioner distributed approximately 13 pieces of propaganda containing for the most part criticisms of the Company's management and personnel policies, and promises as to what benefits the employees would obtain if the Petitioner won the election. The Petitioner's broadside, according to the Employer, began almost as soon as the Board's Direction of a Second Election was issued and continued until the day before the election, when the Petitioner issued a pamphlet approximately 16" by 22" devoted to answering the Employer's so-called "Half-Truths, Untruths, and Propaganda." Moreover, the Em- ployer's exceptions indicate that the local papers carried accounts of the Petitioner' s posi- tion. The Petitioner's propaganda was not considered by the Regional Director in deter- mining whether the employees could evaluate the Employer 's "appeal." Accordingly, even if I were inclined at first blush to agree with my colleagues concerning the inability of the employees to evaluate the Employer' s propaganda , I would remand the proceedings to the Regional Director for a Supplemental Report 'to make a complete record of the matters adverted by the Employer, so that the Board can evaluate in total context whether or not the "uninhibited desires of the employees" were interfered with. It is not enough merely to consider "examples" of such propaganda , as my colleagues have done here. 211n the original case the Board's decision was based primarily upon the Employer's "building up of a pool of potential replacements before the election and even before any contract demands were made upon it, and by emphasizing to its employees the existence of this pool in its campaign speeches . . . ." The Board agreed with the Regional Director that the employees could reasonably be expected to interpret these actions to mean that bargaining would be futile, a strike would be inevitable, and thereby an atmosphere would be created rendering the exercise of free choice impossible (p. 1149). Although in the instant case the Employer advertised for employees during the critical period , the Regional Director here specifically found that "it does not appear that the Employer conveyed or sought to convey to its employees a belief or impression that it was building up a pool of applicants, as it did before the first election." No exceptions were filed to this finding by the Regional Director. As for my colleagues' reliance upon the motion pictures which were shown, I have previously expressed my views on that matter in Plochman and Harrison-Cherry Lane Foods, Inc., 140 NLRB 130, and Carl T. Mason Co., Inc, 142 NLRB 480 I might note, however, that the last showing of the film here took place approximately a week before the election rather than the eve of the election which the majority found controlling in Plochman.