Jacqueline Cochran Inc.

JACQUELINE COCHRAN, INC. Jacqueline Cochran, Inc. and Glass Bottle Blowers Association of The United States and Canada, AFL-CIO, Petitioner. Case 4-RC-7917 June 30, 1969 SUPPLEMENTAL DECISION and CERTIFICATION OF REPRESENTATIVE BY MEMBERS FANNING, BROWN, AND JENKINS Pursuant to an Order and Direction of Second Election issued by the National Labor Relations Board on December 11, 1968, an election by secret ballot was conducted on December 20, 1968, under the direction and supervision of the Regional Director for Region 4. At the conclusion of the balloting, the parties were furnished with a tally of ballots, which showed that, of approximately 58 eligible voters, 28 cast ballots for, and 26 cast ballots against, the Petitioner, and 1 ballot was challenged. The challenged ballot is insufficient to affect the results of the election. The Employer filed timely objections to conduct affecting the results of the election. In accordance with the National Labor Relations Board Rules and Regulations, the Regional Director investigated the objections and, on February 20, 1969, issued his Report on Objections in which he recommended that the objections to the election be overruled in their entirety, a copy of which is attached hereto. Thereafter, the Employer filed timely exceptions to the Regional Director's Report on Objections and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations 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 and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. We find, in accord with the stipulation of the parties, that the following unit is appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees, including warehousemen, at the Employer's Moosic, Pennsylvania plant; excluding executive, administrative, office clerical, professional, and 837 technical employees, the research laboratory, guards and supervisiors as defined in the Act. 5. The Board has considered the Regional Director's Report, and the entire record in this case, including the Employer's exceptions and brief thereto and hereby adopts the Regional Director's findings and recommendations.' Accordingly, as the tally of ballots shows that the Petitioner has obtained a majority of the valid ballots cast, we shall certify it as the exclusive bargaining representative of employees in the appropriate unit. CERTIFICATION OF REPRESENTATIVE It is hereby certified that Glass Bottle Blowers Association of the United States and Canada, AFL-CIO, has been designated and selected by a majority of the employees in the unit found appropriate by the Board as their representative for the purposes of collective bargaining, and that, pursuant to Section 9(a) of the Act, the said labor organization is the exclusive representative of all such employees for purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. MEMBER ZAGORIA, dissenting: I find the circumstances of this case indistinguishable from those involved in General Cable Corporation, 170 NLRB No. 172. I therefore would set aside the election, based on the Petitioner's gift of a free turkey to each employee. See also my dissent in Buzza-Cardozo, A Division of Gibson Greeting Cards, Inc., 177 NLRB No. 38. 'The Employer's exceptions raise no material or substantial issues of fact or law which would warrant reversal of the Regional Director 's findings and recommendations SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON OBJECTIONS TO ELECTION Pursuant to a stipulation for certification upon consent election, executed September 6, 1968, an election by secret ballot was conducted on October 4, 1968 under my direction and supervision. The tally of ballots showed that of the 54 ballots cast, 18 were for the Petitioner, 32 were against the Petitioner, and 4 were challenged. On October 8, 1968 the Petitioner filed objections to the election. During the investigation the Employer and Petitioner entered into a stipulation in which the Employer agreed that a new election be held although not conceding that its conduct affected the results of the election. In my report on objections issued December 6, 1968, I recommended, in view of the Stipulation of the parties and the results of the investigation, that the election conducted on October 4, 1968, be set aside and a new one held. The Board adopted my recommendation in its Order of December 11, 1968. Pursuant to the Board's Order a second election by secret ballot was conducted on December 20, 1968, under my direction and supervision. Upon the conclusion of the 177 NLRB No. 39 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election, a tally of ballots was furnished the parties in accordance with National Labor Relations Board Rules and Regulations . The tally of ballots shows the results of the election as follows: Approximate number of eligible voters . . 58 Void ballots .. 0 Votes cast for petitioner . . 28 Votes cast against participating labor organization . . 26' Valid votes counted . . 54 Challenged ballots . 1 Valid votes counted plus challenged ballots . . 55 Challenges are insufficient in number to affect the results of the election. On December 30, 1968 , the Employer filed and served timely objections which allege: Jacqueline Cochran, Inc. objects to conduct of Glass Bottle Blowers Association of the United States and Canada, AFL-CIO, and its agents and representatives affecting the results of the election held on Friday, December 20, 1968 , and in particular to the following activities. 1. Giving employees of Jacqueline Cochran , Inc. free turkeys to induce and influence them to vote in favor of the petitioner. 2. Providing the employees of Jacqueline Cochran, Inc. with a Christmas party at which they were given food and alcoholic beverages free of charge to induce and influence them to vote in favor of petitioner. 3. Dissemination of literature and news releases in which petitioner and its agents and representatives made material misrepresentations of fact and law. 4. The making of threats to employees in the event that the union lost the election and promising benefits to employees in the event the union won the election. 5. Distribution of literature to employees shortly before the time for the election in which material misrepresentations were made . There was insufficient time for the Employer to make an adequate response to such material misrepresentations. 6. Petitioner restrained and coerced employees and interfered with the exercise of their rights under the National Labor Relations Act. Pursuant to paragraph 6 of the stipulation for certification upon consent election and Section 102.69(c) of the Board' s Rules and Regulations and Statements of Procedure, Series 8, as amended and revised, an investigation of the Objections was conducted under my direction and supervision . During the investigation, each party was afforded full opportunity to present witnesses, evidence, documents, statements and letters pertinent to the issues raised by the Objections. On the basis of all the evidence and material adduced in the investigation and relevant precedents, I report as follows: Objection 1 Investigation discloses that on Friday, November 22, 1968, GBBA International Organizer John Wrobleski distributed the following leaflet to employees leaving the plant: GBBA The G.B.B.A., would like to give each hourly employee a Thanksgiving Turkey. You can pick it up anytime after 4:30 p.m. on Monday, November 25, 1968 - at Howard Johnson's Conference Room - Route 315 - Pittston, Pa. I would like to take this time to wish each and every employee a very Happy Thanksgiving. Sincerely, John Wrobleski Starting shortly after 4:30 p.m. on Monday, November 25, 1968, hourly employees came to the Conference Room at the Howard Johnson Motel. The same Conference Room had been used previously as the site of union meetings during the preelection campaign. The Union's December 12, 1968, meeting was also held at the Motel. All the turkeys were placed on a large table and each employee was permitted to select one. Employees were then asked to give their names and correct addresses to either Wrobleski or his two assistants, Charles Cocker, Jr., and Philip Matone, two hourly paid, eligible voters. Wrobleski testifies that he decided to give free turkeys to employees attending the meeting because he wanted to encourage them to attend, wished to check correct names and addresses, was eager to meet new employees and hoped for a second election. On the basis of his experience, Wrobleski reasoned that if he did not offer something special, it was likely that only the same, faithful workers would come and he was most concerned about inducing other employees to attend. Signs in the Conference Room read: "All the way with GBBA" and "I'm proudly GBBA." At the meeting in the Conference Room Wrobleski discussed the first election and the Union's Objections, reviewed the Employer's working conditions and those at a nearby company organized by the Union, and answered employees' questions. Wrobleski testifies that insofar as he knows, only employees attending the meeting received free turkeys. According to one employee who attended the Conference Room meeting, Wrobleski said that he wasn't there to make a speech, that employees would have to wait for the NLRB's determination of the Union's Objections since no second election had yet been scheduled, that it was OK with him whether or not the election stands, and that they would try to settle the whole thing. Other employee witnesses corroborate Wrobleski's testimony regarding his comments during the Conference Room meeting. Uncontradicted evidence shows that approximately 54 employees received turkeys, 25 employees stayed for at least one-half hour, an additional 12 employees remained for an hour and the remainder left after a relatively short period of time. Except for two employees, there is no evidence that the Union gave free turkeys to any employees who did not appear in person at the Conference Room. With respect to two employees who could not attend, they asked several other employees to pick up the free turkeys for them, and this was done. Wrobleski denies any firsthand knowledge about the above incident. Was the Union's distribution of free turkeys under the circumstances of this case, including the timing, the type of tangible economic benefit which impaired the free choice of employees in the election? Should the Union's action be viewed as a bestowal of an economic benefit in the nature of a gift or bribe, comparable to the insurance policy found objectionable in Wagner Electric Corporation, Chatham Division , 167 NLRB No. 75, or the free gift certificate found objectionable in General Cable Corporation, 170 NLRB No. 172? JACQUELINE COCHRAN, INC. It is undisputed that the free turkeys were not conditioned on the outcome of the election, or how the gift-recipient intended to vote. The free turkeys had no other strings attached, and all eligibles, whether members, supporters or antiunion were left free to determine for themselves whether to vote for, or against, the Union. Faced with a union's refund of a strike assessment to employees about a week before an election, the Board concluded that it was not the kind of cash gift, bribe or economic benefit which impaired a free and rational choice by employees in the election. Primco Casting Corporation, 174 NLRB No. 44. Although the nature of the strike assessment refund and the , circumstances in Primco are clearly distinguishable from the facts herein, the Board therein notes that a union's desire to make itself "more attractive" is not itself objectionable. In NLRB elections, like political elections, parties or candidates seek through various ways to advertise their special qualities in order to appeal to the electorate. There is, of course, a line between unobjectionable means for making a party more attractive, and objectionable means intended to achieve the same response from the electorate. Thus, when the union distributes, without cost to eligibles, trinkets like balloons, plastic rain hats, rabbits' feet, combs, pens, compacts, or tickets for a chance on prizes and does not make such distribution contingent upon the outcome of the election or how particular eligibles will vote, the Board does not find such advertising to constitute a gift or bribe or the bestowal of an economic benefit sufficient to impair the free choice of employees. Bordo Products Co., 119 NLRB 84; Jai Transportation Corp., 131 NLRB 122, 123. When a union or employer gives money or things of value to employees to encourage them to attend, or for attending, meetings, the Board does not consider these objectionable where the offer of money or thing of value or actual bestowal is not contingent on how employees will vote in the election or the prospective outcome of the election. Bordo and Jat, supra. Similarly, the Board has held that a union 's waiver of dues and initiation fees is not the type of gift or bribe impairing the employees' free choice. Dit-M Co. Incorporated, 163 NLRB No. 147. Applying the principles established in the above precedents and considering the circumstances and timing of the Union's distribution of free turkeys in this case, I am persuaded that the Union's conduct was to encourage eligibles to come to its meeting , to generate a kindly feeling toward the Union and to make it more attractive as the bargaining agent. In the instant case the substantially undisputed evidence shows that free turkeys were distributed about Thanksgiving, 1968 during investigation of the Union's Objections when there was no disposition of the Objections and neither party knew whether or not I would recommend sustaining the Objections and holding a second election. Indeed, my Report did not issue until December 6, 1968, and the second election was not held until December 20, some 25 days after the turkeys were distributed. The Conference Room had previously been used as the Union' s meeting room for campaign meetings so that employees were accustomed to attending Union meetings in the Conference Room. No Union attempt was made to distribute turkeys to any employees other than those who appeared in person at the Conference Room. The only exception involved two employees and there is no evidence that the Union was aware of or responsible for this minor deviation. 839 Although the Employer relies heavily upon General Cable, supra, I am persuaded that the facts differ significantly, and therefore find that General Cable is not diapositive of this objection. The Union's November 22 leaflet was intended clearly to encourage employees to attend the Union's meeting at the Conference Room. When the turkeys were distributed there was no imminent or prospective election; indeed, the second election was not held until 25 days after the turkeys were distributed. The Union gave free turkeys only to those employees who attended the Conference Room meeting. And there is no evidence that the Union conditioned the free turkeys upon the outcome of the election or how eligibles intended to vote. Under the circumstances herein, I find that the Union's action was neither a bribe, gift or economic benefit, but rather a means for encouraging workers to attend a Union meeting and for obtaining a kindly, warm, attractive, and generous feeling for the Union. Accordingly, I find and conclude that the free turkeys did not destroy the atmosphere which the Board seeks to preserve for its elections in order that employees may exercise freedom of choice on representation questions. Consistent with the facts, analysis and precedents, I find and conclude that Objection 1 does not raise any substantial and material issues with respect to the election,and recommend it be dismissed. Objection 2 Investigation discloses that the Petitioner held a Christmas party on the evening of December 15, 1968, where food and alcoholic beverages were provided free of charge to the employees. The Board has held that a preelection dinner party or meeting where food and drinks are provided free to employees by either a Union or an Employer is permissible electioneering and is not grounds for setting aside an election, absent, as in this case, any evidence of coercion. Lloyd A. Fry Roofing Company, 123 NLRB 86, The Zeller Corporation, 115 NLRB 762, Fashion Fair, Inc., 157 NLRB 1645. Therefore, I find and conclude that Objection 2 raises no material and substantial issues with respect to the election. Accordingly, I recommend it be dismissed. Objection 3 This is based on newspaper articles appearing in the Scranton Tribune and the Scranton Times on December 7 and 8, 1968, respectively, and also on a leaflet distributed by Petitioner at the plant entrance on December 6, 1968. The newspaper articles report that the Board set aside the first election and scheduled a second election for December 20, 1968. The Scranton Tribune article also reports that Petitioner's agent said that the Board found the Employer guilty of coercing employees. The Scranton Times article reports that the Board found the Employer guilty of coercion, interrogation of employees and promising promotions to certain employees if they voted against representation , but does not attribute the source of its information to the Petitioner. The Union denies advising the newspaper that the Board found the Employer guilty of any misconduct with respect to the election. In its handbill, the Union characterized my Report as the "National Labor Relations Board Decision" and included the following: 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This decision proves beyond a shadow of doubt that we Americans live in a free society and we can choose the GBBA without any interference from Management under the protection of Federal Law. In response to the newspaper articles and union leaflet the Employer posted on the bulletin board the stipulation entered into by parties for a second election . The plant manager held a meeting with all employees in the plant on December 11, 1968. At this meeting he responded to each of the assertions in the newspaper stories and the Union's handbill. He stressed the fact that the Board had not found the Employer guilty of any misconduct as stated in the newspaper stories and Union ' s handbill. The Manager also read the report on objections and stipulation. On the basis of the evidence, I am not persuaded that the newspaper stories can be attributed to the Union. However, assuming without deciding that the Union was the source, the evidence shows that the Employer responded comprehensively to the newspaper stories and Union's handbill. The Board has held that exaggerations , inaccuracies and falsehoods while not condoned may be excused as legitimate campaign propaganda provided they are not so misleading as to interfere with the employees ' free choice in an election. The Gummed Products Comany, 112 NLRB 1092. It is also well established that an election will be set aside only where there has been misrepresentation which involves a substantial departure from the truth , at a time which prevents the other party from making an effective reply, so that the misrepresentation , whether deliberate or not, may reasonable be expected to have a significant impact on the election . Hollywood Ceramics Company, Inc., 140 NLRB 221. In determining whether an election should be set aside because of alleged misrepresentation, the Board considers whether it was gross or deliberate . Follett Corp., 160 NLRB 506; Coors Porcelain Co., 158 NLRB 1108. Moreover, the information in the newspaper stories and Union's leaflet was not within the special knowledge of the Union, but was information which the Employer was in a position to, and did, correct. Kennametal, Inc., 121 NLRB 410. Appraising the alleged misrepresentation in light of The Gummed Products and Hollywood Ceramics, supra, I am not persuaded that the newspaper stories and Union' s leaflet were deliberate, gross, material and misleading misrepresentations . Celanese Corp. of America, 121 NLRB 303; The Holtite Manufacturing Co., Inc., 146 NLRB 385; American Greetings Corp., 146 NLRB 1440; Ralston Purina Co., 147 NLRB 506; cf., Zarn, Inc., 170 NLRB No . 130; Southern Foods, Inc., 171 NLRB No. 131. With respect to effective time to reply, the evidence shows that the Employer responded to the newspaper stories and Union's leaflet about 9 days before the election . Indeed, the Employer posted on the bulletin board a copy of the stipulation for a second election and explained fully to employees in a face-to-face meeting all the facts relating to the stipulation and second election. Consequently, I find that the Employer had and utilized effective time to reply . General Electric Co., 162 NLRB No. 91, enfd . 383 F .2d 152 (C.A. 4). Consistent with the evidence and precedents, I find and conclude that Objection 3 does not raise any material and substantial issues with respect to the election . Accordingly, I recommend it be dismissed. Objection 4 The Employer alleges that at a December 12 union meeting the Union made threats and promises to several employees regarding consequences if the Union won the election. The Employer asserts that employee A was promised a job with Owens-Illinois in exchange for his vote for the Union. Employee A denies in his affidavit that he either asked for or was promised a job at Owens-Illinois by any union representative. The Employer asserts that employee B was threatened by the Union when it told her that she would not be treated favorably if she did not vote for the Union. Employee B's sworn testimony does not support this allegation. Employee C testifies that when the Union' s business agent asked why he was not married, he replied that it was because he had a military service obligation and could not afford it. The employee further reports that the Union responded that if employee C promised to vote for the Union, the agent would promise him higher wages so that he could get married . The union agent denies making this statement. The Employer alleges that employee D was told by the Union that it could dictate rates and incentive bonuses and also control the production lines if it became the bargaining agent. Employee D reports that the union agent merely indicated that when it became the bargaining agent it would negotiate wage increases and incentive rates with the Employer thereby giving the employees a voice in determining these matters. The results of the investigation do not disclose any evidentiary support for the allegations regarding conversations with employees A and B. The alleged promise of a job to employee A and the alleged threat of unfavorable treatment are denied by the involved employees. The allegations as to employees C and D are no more than the customary type of permissible union campaign propaganda concerning union promises of higher wages, increased benefits and a voice in determining working conditions. Accordingly , I find and conclude that Objection 4 does not raise any substantial and material issues with respect to the election, and I shall recommend it be dismissed. Objection 5 The Employer refers to two handouts, Exhibits A and B [omitted from publication], distributed to employees by the Union on the day before the election about 4:30 p.m. at the entrance to the plant . The Employer alleges that these handbills contain material misrepresentations of facts, distributed at a time when the Employer had no adequate opportunity to respond. In addition to Exhibits A and B, both parties carried on an extensive propaganda campaign including the distribution of numerous leaflets and letters and held meetings with employees. Both the literature and meetings discussed fully all issues relevant to the election. Also, employees could clearly identify the Union's handouts as partisan propaganda and evaluate it as such. Recognizing that this is an imperfect world in which the ideal of "laboratory" election conditions is literally unattainable, the Board applied this general criterion: "Exaggerations, inaccuracies, partial truths, name-calling, and falsehoods, while not condoned, may be excused as legitimate propaganda, provided they are not so JACQUELINE COCHRAN, INC. 841 misleading as to prevent the exercise of a free choice by employees in the election of their bargaining representative." The Gummed Products, supra, 1093-94. The Board is also aware that absolute precision of statement and complete honesty are not always attainable in election campaigns . These are hotly contested with exacerbated feelings. During campaigns an over-zealous party may overstate its own virtue and vices of the other without necessarily impairing "laboratory conditions." The Board and I are called upon to balance the right of employees to an untrammeled choice with the right of the parties to wage a free and vigorous campaign, utilizing the legitimate tools of electioneering . Hollywood Ceramics, supra, 223-224. And in evaluating the electioneering techniques of parties,"the utterances of either side in an election campaign ought not receive a narrow or strained construction." Union Carbide Corp . v. N.L.R.B., 310 F.2d 844 (C.A.6). With respect to last-minute circulation and distribution of campaign literature , the Board has held that the rule in Peerless Plywood, 107 NLRB 427, 430 does not "interfere with the rights of unions or employers to circulate campaign literature on or off the premises at any time prior to an election...." Consistent with this rule no party to an election must have sufficient time to rebut the propaganda of any other party. The fact that the Employer did not have adequate time to reply to Exhibits A and B is no ground for finding that eligibles were deprived of a free choice in the election. I have reviewed carefully Exhibits A and B to which the Employer objects and find that the Union's literature does not exceed the bounds established by The Gummed Products and Hollywood Ceramics. I, therefore, find and conclude that Objection 5 does not raise any material and substantial issues with respect to the election. Accordingly, I recommend it be dismissed. Objection 6 This is no more than a summary and conclusionary Objection. Since no evidence other than that treated in the prior Objections was submitted to support it, I find and conclude that Objection 6 raises no substantial and material issues with respect to the election. Accordingly, I recommend it be dismissed. FINDINGS, CONCLUSIONS AND RECOMMENDATIONS On the basis of the evidence disclosed by the investigation and consistent with Board precedents, I find and conclude that the Objections do not raise any substantial and material issues with respect to the election. Accordingly, I recommend they be dismissed.