NVF Co.

NVF COMPANY, HARTWELL DIV. 663 NVF Company, Hartwell Division and Shopmen's Local Union # 616 of the International Association of Bridge, Structural and Ornamental Iron Work- ers affiliated with AFL-CIO, Petitioner. Case 10-RC-9663 May 20, 1974 DECISION AND CERTIFICATION OF RESULTS OF ELECTION Pursuant to a Stipulation for Certification Upon Consent Election, an election by secret ballot was conducted on August 16, 1973, under the direction and supervision of the Regional Director for Region 10, among the employees in the unit described below. The tally of ballots furnished the parties showed that of approximately 170 eligible voters, 159 cast valid ballots,' of which 64 were for, and 95 were against, the Petitioner. There were three challenged ballots, which are insufficient in number to affect the results of the election. Thereafter, the Petitioner timely filed objections to conduct 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, on October 12, 1973, issued and duly served on the parties his Report on Objections finding that Petitioner's Objections 2 and 3 are without merit and recommending that they be overruled, and finding that Objection 1 raises material and substantial issues affecting the results of the election and recommending that it be sustained, the election be set aside, and a second election be directed. On October 24, 1973, the Employer filed exceptions to the report, and a supporting brief. Upon the entire record in this proceeding, 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 labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the following employees constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees in- cluding truckdrivers, leadmen, shipping and receiving clerks and all other plant clerical employees, employed by the Employer at its Hartwell, Georgia, facility, but excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act. 5. The Board has considered the Regional Direc- tor's report and the Employer's exceptions and brief, and hereby adopts the Regional Director's findings, conclusions, and recommendations only to the extent consistent herewith.2 Petitioner's Objection I alleges that during the critical period the Employer called small groups of employees into the Company's office and discussed the Union with them. The Regional Director recom- mended that the objection be sustained and the election results set aside. The Regional Director based his recommendation on his finding that Fred Rose, the Employer's general manager, during the 1 month preceding the election, called employees into his office in groups of five or six for the purpose of discussing with them the forthcoming election. Rose thereby talked to approx- imately 95 percent of the eligible voters, expressing the Employer's reasons for opposing unionism at the Hartwell plant and soliciting the employees to vote against the Petitioner. There is no contention that Rose's remarks to employees were coercive. To these facts the Regional Director applied the "well-established" doctrine enunciated in Peoples Drug Stores, Inc.3 that the technique of calling employees, individually or in small groups, into a private area removed from the employees' normal work places and urging them to reject the union is in itself conduct which interferes with the conditions necessary to a free choice by the employees in the selection of a bargaining representative and warrants setting aside the election. We do not agree with this broad, per se, application of the Peoples Drug doctrine herein. Such a per se policy represents an unwarranted extension of the Board's earlier General Shoe Corpo- ration4 decision. There the Board found that on the day before the election the company's president had the employees "brought into his own office in some 25 groups of 20 to 25 individuals, and there, in the very room which each employee must have regarded as the locus of final authority in the plant, read every small group the same intemperate antiunion ad- dress." In the opinion of the Board, "this conduct, and the Employer's instructions to its foremen to propagandize employees in their homes, went so far 1 One ballot was void 3 Peoples Drug Stores, Inc and Peoples Service Drug Stores, 119 NLRB 2 As no exceptions were filed thereto, the Regional Director's recommen- 634. dation that Objections 2 and 3 be overruled is adopted pro forma. 4 77 NLRB 124 210 NLRB No. 99 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD beyond the presently accepted custom of campaigns directed at employees' reasoning faculties that [the Board is) not justified in assuming that the election results represented the employees' own true wishes." 5 The Board in General Shoe evaluated "the circum- stances surrounding the election," concluding that those circumstances-the calling of the employees into the president's own office and imposing on them an intemperate antiunion speech, coupled with other propaganda imposed on the employees in their homes-raised substantial doubt as to whether the results of that election reflected the employees' free choice of a bargaining representative. In reaching its decision, the Board noted that "in the absence of excessive acts employees can be taken to have expressed their true convictions in the secrecy of the polling booth."6 The Board's responsibility is to establish standards for the conduct of elections. Where the standards drop too low, the Board will set aside an election even though the conduct does not constitute an unfair labor practice. The General Shoe and Peoples Drug cases represented attempts to apply this principle to given fact situations. Unfortunately, the words used in those cases to rationalize the results have been given narrow, rigid interpretations which we do not believe were the intent of those decisions. We shall continue to adhere to General Shoe and Peoples Drug, but only where it can be said on reasonable grounds that, because of the small size of the groups interviewed, the locus of the interview, the position of the interviewer in the employer's hier- archy, and the tenor of the speaker's remarks, we are not justified in assuming that the election results represented the employees' true wishes. In making this determination, all the facts in the particular case must be carefully weighed. A per se approach cannot be accepted.? Applying such an evaluation here, we are not convinced that the facts will support a finding that the Employer's conduct can reasonably be said to have interfered with the employees' expression of their desires with respect to representation.8 The employees were not called singly into the general manager's office but in groups of five or six until approximately 95 percent of the employees were interviewed. In view of the size of the groups and the total number of employees interviewed, there is no 3 Id at 126, 127 6 Ibid at 126 To the extent that Peoples Drug and its progeny are inconsistent with the above formulation, they are hereby overruled 8 Indeed, it is difficult to conceive of a more obvious per se approach to Peoples Drug than that applied by the Regional Director herein-setting aside the election solely on the basis of the Employer's interviewing employees in small groups away from their normal work places and there reason to believe that the individual employee considered that he was singled out by the Employer for special attention and thus for special pressure. The interviews took place in the general manager's office. But, as found by the Regional Director, the employees were familiar with this office since they had occasion to visit it to obtain loans from, or discuss grievance matters with, the general manager. It thus had no special impact of awe upon the employees. Moreover, the Employer's assertion that there were no places other than the general manag- er's office to present the Employer's views was not disputed .9 Finally, the general manager's remarks to the employees were noncoercive and temperate in tone. Under these circumstances, there is no reasona- ble basis for concluding that the Employer's meet- ings with employees prevented the employees from expressing their true wishes in the secret ballot election conducted under Board auspices. Accord- ingly, contrary to the Regional Director, we hereby overrule Petitioner's Objection 1. As the Petitioner has failed to receive a majority of the valid ballots cast, we shall certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for Shopmen's Local Union #616 of the International Association of Bridge, Structural and Ornamental Iron Workers affiliated with AFL-CIO, and that said labor organization is not the exclusive representative of all the employees, in the unit herein involved, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. MEMBERS FANNING and JENKINS, dissenting: Our colleagues reverse the Regional Director who recommended setting aside the election based on systematic preelection interviews by the general manager with employee groups of five or six in his own office. The Regional Director relied on Peoples Drug Stores, Inc., 119 NLRB 634, and earlier cases in which the Board examined the facts concerning the interviews on exceptions to the Regional Director's report. The recommended result in the instant case is seen as a "board, per se, application" extending without warrant the General Shoe Corporation deci- urging them to reject the Union. Yet, our dissenting colleagues would, despite the fact that neither the Petitioner's objection nor the Regional Director's findings raise any factual issues, direct a hearing before deciding the case before us In the absence of any factual allegations which would constitute grounds for setting aside the election , we find a hearing to be totally unwarranted. 0 The Regional Director considered this fact to be immaterial. NVF COMPANY, HARTWELL DIV. 665 sion, 77 NLRB 124, relied on in Peoples Drug. Our colleagues note that in General Shoe the circum- stances surrounding the election were evaluated, including the use of the president's office, the intemperateness of the antiunion remarks, and home visitation by supervisors. Both decisions are viewed as` having been narrowly and rigidly interpreted by the Board, beyond the original intent. Yet, whatever per se characteristics the "rule" may agpear to have, it has repeatedly been the subject of Board examination of the surrounding facts, result- ing 'in' precedent in turn urged for Board considera- tion of this issue.10 The criteria now advanced for a nonper se approach vary imperceptibly from those the Board has long considered: small size of the groups interviewed, locus of the interview, position of the interviewer, and the tenor of remarks. Perhaps our colleagues mean to restrict future application of the principle to very small groups and to coercive remarks, but, if so, they have not said so. And though they emphasize that in making such a determination all the facts in a particular case must be carefully weighed, they have ordered no hearing here to elucidate the facts urged by the Employer in its exceptions, a precaution we would consider essential 10 The Great A & P Atlantic & Pacific Tea Company, 120 NLRB 204, applying the rule; Mead-Atlantic Paper Company, 120 NLRB 832, not applying the rule, Arizona Television Company, 121 NLRB 889, not applying the rule , Columbus Division, Colonial Stores Incorporate4 121 NLRB 1384, applying the rule, Pennsylvania Power & Light Company, 124 NLRB 470, not applying the rule, National Caterers of Virginia, inc, 125 NLRB 110, applying the rule , The Great Atlantic & Pacific Tea Co, Inc., 140 NLRB 133, applying the rule, Dempster Brothers, Inc., 154 NLRB 688, not applying the rule, Three Oaks, Inc, 178 NLRB 534, not applying the rule ; Marshall Durbin and Company of Jasper, Inc., 179 NLRB 1027, not applying the rule. to a restatement of Board policy-if, in fact, that is what they wish their decision to be. They go so far as to say "we are not convinced that the facts will support" the Regional Director's conclusion that Employer's conduct can reasonably be said to have interfered with employee free choice, and then, without a hearing, conclude that the facts do not support that conclusion.ll Interviewing approximately 160 of 172 employees in less than a month before an election can hardly go unnoticed by employees about to select or reject a bargaining representative. If, in fact, the atmosphere in the manager's office is as relaxed as claimed, and if the tenor of employer remarks in these interviews further contributed to such a degree of informality that impact on employees free choice would be an unreasonable inference, then a hearing to establish as nearly as possible the actual conditions seems in order. In sum-except that, in the absence of hearing, we would here reach a contrary result and affirm the Regional Director-we view the majority opinion more as a tempest in a teapot than a meaningful restatement of the Peoples Drug-General Shoe princi- ple. ii It is difficult to reconcile our colleagues' insistence that there are no factual issues to justify a hearing before reversing the Regional Director. The Petitioner's objection was indeed brief; the Employees exceptions are another matter. Are the employees as farmhar with the general manager's office as the Employer contends in its exceptions' Is that office the only practical place to address employees ? Is it located immediately off the production floor? Were the meetings requested by employees as the Employer suggests? Did the Employer in fact urge the various small groups of employees to vote freely the way they wanted to?