Plymouth Shoe Co.

PLYMOUTH SHOE COMPANY Plymouth Shoe Company and United Shoe Workers of America, AFL-CIO-CLC, Petitioner. Case 1-RC-10668 April 15, 1970 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN Pursuant to a Stipulation for Certification Upon Con- sent Election, an election by secret ballot was conducted under the direction and supervision of the Regional Director for Region 1 on September 4, 1969, among the employees in the stipulated unit described below. After the election, the parties were furnished with a tally of ballots which showed that of approximately 451 eligible voters, 370 cast ballots, of which 138 were for the United Shoe Workers of America, AFL-CIO-CLC, the Petitioner, 225 votes were for the Plymouth Shoe Company Employees' Benefit Associa- tion , the Intervenor , 5 votes were cast against the partici- pating labor organizations, and 2 ballots were challenged. Thereafter, the Petitioner filed timely objections to con- duct affecting the results of the election. In accordance with the National Labor Relations Board Rules and Regulations , Series 8, as amended, the Regional Director conducted an investigation, and thereafter on October 31, 1969, issued and duly served upon the parties his report on objections, in which he recommended that the objections be overruled, and that the Intervenor be certified as the collective- bargain- ing representative of the employees in the unit found appropriate below. Thereafter, the Petitioner filed excep- tions to the Regional Director's report and the Employer filed a brief in support of the Regional Director's report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel. 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 Petitioner and Intervenor are labor organiza- tions claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of certain employees of the Employer within the meaning of Sections 9(c) (1) and 2(6) and (7) of the Act. 4. In agreement with the stipulation of the parties, we find that the following employees of the Employer constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. All employees engaged in the manufacture of shoes directly, including maintenance crew and mechanics, watchmen, porters, shipping room employees, and stock clerks, but excluding all supervisors, office and adminis- 1 trative employees, salesmen, and professional employ- ees. 5. The Petitioner's basic objections relate to a series of five letters which the Employer distributed to its employees during the critical period prior to the election.' The letters on August 1, 2, and 4, 1969, were concerned with a pending merger between the incumbent Intervenor and the Petitioner, affiliated with the AFL-CIO. In all three letters the Employer indicated strong opposition to the merger of the Intervenor with the Petitioner and urged its employees to actively reject such merger. The letter of August 1 read in pertinent part: I am writing to you because of my deep concern for our future together at Plymouth Shoe Company. The fact is that you already have the full strength which comes from joining together in your Benefit Association. You can get nothing from the CIO except the obligation of paying their high dues, fines , and assessments. Unfortunately, 1,850 shoe workers in New England have lost their jobs this year, where this CIO Union was their representa- tive. You certainly do not need this kind of leader- ship. My worry is not that you can't tell good advice from bad advice but that when you belong to this CIO Union you no longer will have the right to choose. You must obey these outside CIO Dictators or you will be fined, expelled from the union, and will lose your job. If you feel, as I do, that your freedom and your job is worth fighting for, you must stop the CIO takeover .... The letter of August 2 set forth numerous reasons why the employees should vote "No" at the union meeting scheduled for this purpose and, in addition, tied the merger vote with the Board-conducted election which was scheduled for September 4 at which it also urged the employees express their opposition by voting against the Petitioner. The letter of August 4 was in a similar vein and stated inter alia: You are entitled to make the C. I. O. union explain to you why it is that CONNOLLY SHOE COMPANY - which they organized - has been out of business for over two years. Your company took over the Connolly production and today with- out the C. I. O. union it represents a substantial part of your plant production. What happens next? You should ask the C. I. O. union what it is now doing for those ex-Connolly employees whose jobs you now have. You should also ask the C. I. O. how many paychecks it is giving to the employees who lost their jobs when the following plants went out of ' The Petitioner's exceptions to the Regional Director's overruling Objection 1, relating to alleged inadequacies in the Excelsior list, in our opinion , raise no material or substantial issues of fact or law which would warrant reversal of the Regional Director's ultimate findings and recommendations In the absence of exceptions thereto, we adopt, pro forma, the Regional Director's recommendation that Objections 4, 5, and 6 be overruled 182 NLRB No. 1 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD business after the C. I. O. union got in:...[approxi- mately 11 plants are listed] The letter also urged its employees to vote "NO" in "a Government-supervised secret ballot election on Sep- tember 4." The above letters were signed by officials of the Employer. In the letter of August 8 the Employer, referring to a merger vote, thanked the employees for voting "against invasion by the C.I.O." and for "a vote of confidence in your company's management." The letter then indicated: So that we in management can have the opportu- nity to show you our appreciation for your good judgment, we ask that you vote against the C.I.O. in the upcoming National Labor Relations Board election on September 4th. We can then sit down together and negotiate a new contract of which we can all be proud. Four of the Employer's officials signed the above letter. Finally, on August 28, less than a week before the election, the Employer accused the Petitioner of issuing misleading statements about the requirements of becom- ing a member of the Petitioner and the obligations which it imposes upon its members. The letter concluded: "Since the C. I. O. union has lied to you about these matters, you should ask yourself, `What else has the union lied about?' " The Regional Director found that the above letters consisted merely of expressions of views, arguments, and opinions and were not, therefore, objectionable. Moreover, the Regional Director found that the letters were not distributed at a time which prevented an effec- tive reply. Accordingly, he found that the letters did not have a significant impact upon the election and that the employees were not precluded from exercising a free choice in the September 4 election and recommend- ed that the objections resulting thereto be overruled. We do not agree. We recognize that in an election campaign an employer may express a preference between two competing unions. However, we have long held that such preference is not permissible when it is accompanied with implied promises of benefit if the favored union wins the election, and by the conveyance of the employer's belief, even though sincere, that the selection of the other union will or may result in the closing of the plant or have an adverse effect upon the jobs of its employees.2 As the Supreme Court pointed out in the recent N.L.R.B. v. Gissel Packing Co. case, 395 U.S. 575, 618, an employ- er is not only free to communicate to its employees any of its views any of its views about a particular union so long as the communications do not contain a threat of reprisal or force or promise of benefit, but is also free to make predictions as to the precise effects it believes the employees choice of a particular union will have on the operations of the company. In the latter situation, however, the Court stressed the prediction must be "carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in the case of unionization." In our opinion the series of letters, hereinabove described, taken together, do not meet these tests. Considered as a whole, we are of the opinion they reasonably tended to convey to the employees the belief or impres- sion that employees would gain nothing in the way of improved benefits by selection of the Petitioner and that such choice would have an adverse effect upon the employees' jobs in that it could lead the Employer to close its plant. That these suggested adverse conse- quences were not predicated on matters entirely beyond the Employer's control was made reasonably clear in the assurances given in the letters that selection of the Intervenor in the forthcoming election would result in a favorable contract and would in other ways be beneficial to the employees. Thus, we conclude that the probable effect of the Employer's preelection letters was to raise unjustified fears that if the Petitioner was selected the employees' jobs would be adversely affected, but that if the employ- ees choose the Intervenor they would receive special benefits.3 Accordingly, we find that the impact of the series of the Employer's letters beginning around August 1 and continuing up until less than a week before the election interfered with the free choice of the employees and made a fair election impossible. We shall, therefore, set the election aside and direct that a new election be held. ORDER IT IS HEREBY ordered that the election previously conducted herein on September 4, '1969, be, and it hereby is, set aside. [Direction of Second Election4 omitted from publication.] 2 Cf , e g , Rold Gold of California, 123 NLRB 285, 286, Westinghouse Electric Co , 110 NLRB 332, Heinty Mfg. Co , 103 NLRB 768, 769. See N L.R B v Pearson Co , 420 F.2d 695 (C A 1) (1969), enfg 173 NLRB No 228 " In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc , 156 NLRB 1236; N.L R B v Wyman- Gordon Company, 394 U S 759. Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region I within 7 days after the date of issuance of the Notice of Second Election by the Regional Director The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed