Thomas Industries, Inc.

706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thomas Products Co., Division of Thomas Industries, Inc. and United Steelworkers of America, AFL-CIO, Petitioner. Case 10-RC-6990 February 6, 1968 ORDER DENYING MOTION FOR RECON- SIDERATION BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On October 12, 1967, the National Labor Rela- tions Board issued its Decision, Order, and Direction of Second Election in the above-entitled proceeding (167 NLRB 732). The Board, contrary to the recommendations of the Regional Director for Region 10 in his report on challenged ballot and objections issued May 12, 1967, sustained cer- tain of the Union's objections to conduct affecting the results of the election and ordered the single challenged ballot to be opened and a revised tally of ballots to be prepared and served upon the par- ties by the Regional Director. The Board further ordered that a certification of election be conducted, whichever might be appropriate in view of its Decision and the results of the revised tally. The Board found, inter alia, that, considered in its totality, the preelection campaign conducted by the Employer was coercive and interfered with the election. In so finding, the Board relied, in part, upon certain speeches made prior to the election by the president of the Employer's parent company and by the Employer's general manager. Thereafter, on November 6, 1967, the Employer filed a motion for reconsideration, in which it requested that the Board reconsider its October 12, 1967, Decision, delete therefrom its Direction of Second Election, and certify the March 31, 1967, election in accordance with the revised tally of bal- lots issued on October 18, 1967; or in the alterna- tive, find Objection 10, relating to the speeches, to be without merit and to remand for hearing on union Objections 1 through 7; or, in further alternative, order that a full hearing be held on all of the Union's objections. As a result of his investigation initiated by the ob- jections filed by the Union after the election, the Regional Director considered certain speeches made by the president of Thomas Industries and the Employer's general manager prior to the election. He found the speeches to be noncoercive. In our Decision, reversing the Regional Director, we found that these speeches contributed to the coer- cive effect of the Employer's entire campaign. The Employer now contends that, because the Union ' Sec. 102.69(a) of the Rules merely provides that objections to conduct affecting the results of the election "shall contain a short statement of the reasons therefor." 2 Hobart Manufacturing Company, 92 NLRB 203, citing Merrimac did not in its objections specifically raise objection to these speeches, the Board is precluded from con- sidering them as grounds for setting aside the elec- tion. Although the Union's objections did not express- ly refer to the speeches, the objections were suffi- ciently precise with respect to 10 other instances of allegedly objectionable conduct to warrant the Re- gional Director's initiation of an investigation under Section 102.69 of the National Labor Relations Board Rules and Regulations, Series 8, as amended.' Once such an investigation has com- menced, the Regional Director is not required to, nor can he properly, ignore evidence relevant to the conduct of the election or the preceding campaign simply because the Union may not have specifically mentioned such conduct in its objections. We have long held that "the jurisdiction of the Regional Director in making a postelection investigation is not limited to the issues raised by the parties."2 Thus, as we see it, the real question is not whether the Board has a right to consider the speeches, even though not expressly objected to, but whether the manner in which the speeches came before the Board violated the Employer's rights of due process. It appears to us that the Employer had ample notice that the speeches constituted part of the case against it, as well as adequate opportunity to present argument that the speeches could not have adversely affected the election. Appended to the 10 specific allegations of objec- tionable conduct filed by the Union after the elec- tion was the following language: "Other conduct made employees fearful in exercise of their rights in violation of the Act." This reference to other un- specified conduct should have indicated to the Em- ployer that the investigation could disclose other matters upon which the Union might rely. In the course of the subsequent investigation, the Re- gional Director requested, and the Employer proffered, copies of the speeches here involved. The penultimate paragraph of the Regional Director's Report states that he had "examined the contents of the speeches, and concludes that the re- marks therein are not coercive, and did not exceed the permissible bounds of electioneering." At this point, it should have been quite clear to the Em- ployer that the speeches had become an issue in the case. If the Regional Director's consideration of the speeches did not make this fact obvious, the Union's exceptions to the Regional Director's Re- port, timely served upon the Employer, should have finally clarified the matter. The exceptions alleged, inter alia, that "The totality of the communications made to the employees and completely shown in Hat Corporation, 85 NLRB 329, and J. I. Case Company, Inc., 86 NLRB 12. See also Lockwood-Dutchess, Inc, 106 NLRB 1089, and cf. Radiant Lamp Corporation, 116 NLRB 40, and City Tire Company, 117 NLRB 753. 169 NLRB No. 55 THOMAS PRODUCTS CO. Appendices A through K [of the Regional Director's Report] can lead to but one conclusion, and that is, that the employees have not been given their rights as guaranteed under Section 7 of the Act." The last two appendices to the Regional Director's Report, J and K, were copies of the speeches here under discussion. Thus the Union plainly urged to the Board that the speeches con- tributed to the coercive atmosphere engendered by "the totality of the communications made to the em- ployees" and argued that the Board should consider these speeches in reaching its decision. Although the Employer was in this manner put on notice that the content of the speeches was actively in issue, it failed to file any brief in opposition to the Union's exceptions or in support of the Regional Director's Report. While again, in its present motion for recon- sideration, the Employer could have presented ar- guments it wished to make against the Board's con- clusions as to the speeches, it has refrained from anything but the most general substantive attack. In the circumstances outlined above, we find that the speeches were properly before the Board, the Em- ployer was afforded full notice and opportunity to contest their legal effect, and no reason appears for not now attributing to these speeches a less coer- cive effect than that found in our previous decision. The Employer also contends that the Board has not, in fact, viewed the campaign in its "totality" because only limited evidence, relating solely to the Employer's campaign, was before the Board for consideration. Apparently the Employer would now adduce other evidence to demonstrate the Em- ployer's letters and speeches were only responsive to the economic facts and to the Union's campaign. 3 The Employer notes that, in our original Decision, we sustained Ob- jections 1-7 and 10. The Employer contends that it was improper for the Board to sustain Objection 10, since that objection relates "solely" to al- legedly coercive remarks by supervisors to employees on the day of the election, and this matter was not discussed in our Decision. As we read 707 The fact that various statements in the letters were intended to answer union claims or comments is ob- vious on the face of the letters, and the Board took this into account in its evaluation of the Employer's campaign. When the Union filed its 10 objections after the election, referring specifically to five let- ters, three notices, and one other item distributed by the Employer, it clearly became apparent that the Union was alleging the Employer's campaign to be generally coercive. Two days later, the office of the Regional Director for Region 10 requested the Employer by mail "to submit a statement setting forth [its] contentions with respect to each allega- tion together with any available evidence in support thereof." At that time, or at any time prior to the close of the Regional Director's investigation, the Employer was free to offer any of the evidence which it now asserts is vital to a contextual view of the preelection campaign. Furthermore, we note that the Employer has recited no specific facts in its motion which would indicate that a hearing is war- ranted at this late date. Finally, we can conceive of no undeveloped facts or circumstances which could have substantially mitigated the coercive thrust of the Employer's propaganda, especially the remarks made in the speeches as discussed in our earlier Decision. For the reasons given above, we shall deny the motion for reconsideration.3 ORDER It is hereby ordered that the motion for recon- sideration be, and it hereby is, denied. the Union's objections, the language earlier referred to, "Other conduct made employees fearful in exercise of their rights in violation of the Act," constitutes a second paragraph of the Union's Objection 10. This was the portion of the objection in which we found merit. 350-212 0-70-46