Bro-Tech Corp.

National Labor Relations Board - Board Decisions

Dec 16, 1994

315 N.L.R.B. 1014 (N.L.R.B. 1994)

1014
315 NLRB No. 151
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On July 13, 1992, the Board issued a Decision and Order Re-
manding (unpublished), in which it adopted the Acting Regional Di-
rector’s report on objections wherein he recommended that certain
employer objections be overruled and that a hearing be held on the
Employer’s Objections 4(a) and 6.
2 The Employer has excepted to some of the hearing officer’s
credibility findings. The Board’s established policy is not to overrule
a hearing officer’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis
for reversing the findings.
3 We agree with the hearing officer that the union observer’s con-
duct during the election did not constitute improper electioneering
that requires setting aside the election; thus, we adopt the hearing
officer’s recommendation that the Employer’s Objection 6 be over-
ruled.
4 Prior to Peerless Plywood, the Board applied a broader prohibi-
tion and found that any speech by an employer at the plant prior
to the election was a ground for setting the election aside, unless the
employer gave the union an equal opportunity to reply. Bonwit Tell-
er, Inc., 96 NLRB 608 (1951). This broad rule was reversed in Liv-
ingston Shirt Co., 107 NLRB 400 (1953), in which the Board held
that an employer can lawfully make a campaign speech to the em-
ployees at the plant without providing the union an opportunity to
reply on the company premises.
5 The Board found the conduct to be objectionable only in U.S.
Gypsum, in which the employees could clearly hear the union’s
speeches inside the plant during workhours. In the other three cases,
the Board found that the conduct was not objectionable where the
speeches were broadcast during lunch hours, during shift changes, or
while the employees were at the timeclock punching in or out.
6 There was some disagreement between the Employer and the Pe-
titioner over whether the election day broadcast included non-Team-
sters songs. We agree with the hearing officer that it is not necessary
to resolve this dispute because our decision is not affected by wheth-
er or not the Teamsters songs were interspersed with non-Teamsters
songs.
Bro-Tech Corp. t/a Purolite and Teamsters Local
107, affiliated with International Brotherhood
of Teamsters, AFL–CIO, Petitioner. Case 4–
RC–17846
December 16, 1994
SUPPLEMENTAL DECISION AND
CERTIFICATION OF REPRESENTATIVE
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held July 17, 1992, and the hearing officer’s report
recommending disposition of them.1 The election was
conducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows 35 for and 30 against
the Petitioner, with 1 void and 2 challenged ballots, an
insufficient number to affect the results.
The Board has reviewed the record in light of the
exceptions and briefs, has adopted the hearing officer’s
findings2 and recommendations3 only to the extent
consistent with this decision, and finds that a certifi-
cation of representative should issue. (Relevant por-
tions of the hearing officer’s report are attached.)
The hearing officer concluded that the Petitioner’s
broadcast of Teamsters songs from a soundtruck
parked outside the plant on the day of the election vio-
lated the Board’s prohibition of campaign speeches set
forth in Peerless Plywood Co., 107 NLRB 427 (1953).
Thus, the hearing officer recommended that Objection
4(a) be sustained, that the election results be set aside,
and that a second election be ordered. The Petitioner
excepts to the hearing officer’s finding and rec-
ommendation, arguing that the Teamsters songs do not
constitute ‘‘campaign speech.’’ We find merit in the
Petitioner’s argument.
In Peerless Plywood, the Board established a prohi-
bition of election speeches by either party, union or
employer, on company time to massed assemblies of
employees within the 24 hours before an election. 107
NLRB at 429.4 The Board formulated this narrow limi-
tation to address its concern that such speeches ‘‘have
an unwholesome and unsettling effect and tend to
interfere with that sober and thoughtful choice which
a free election is designed to reflect. . . . Such a
speech, because of its timing, tends to create a mass
psychology which overrides arguments made through
other campaign media and gives an unfair advantage to
the party . . . who in this manner obtains the last most
telling word.’’ Id. The paramount purpose of the rule
was to ensure that elections remain free. The prohibi-
tion was not meant to ‘‘interfere with the rights of
unions or employers to circulate campaign literature on
or off the premises at any time prior to an election,
nor [to] prohibit the use of any other legitimate cam-
paign propaganda or media.’’ Id. at 430 (emphasis
added).
The Board has consistently applied the Peerless Ply-
wood rule to cases in which a union has broadcast
campaign speech into the plant from a soundcar within
the 24 hours before the election. See Industrial Acous-
tics Co., 297 NLRB 387 (1989), enf. denied 912 F.2d
717 (4th Cir. 1990); Crown Paper Board Co., 158
NLRB 440 (1966); U.S. Gypsum Co., 115 NLRB 734
(1956); and Underwood Corp., 108 NLRB 1368
(1954). Each of these cases examined, among other
things, whether or not the employees were on company
time and could hear the broadcast inside the plant.5
The facts of this case present the question of wheth-
er the Teamsters songs constitute ‘‘campaign speech’’
that is prohibited by Peerless Plywood.6 Resolution of
that narrow but threshold issue is determinative of the
Peerless Plywood issue before us, because it is undis-
puted that the Petitioner’s soundcar broadcasts were
heard at many workstations from approximately 7 a.m.
to 4:30 p.m. on the day of the election.
The hearing officer concluded that the lyrics of the
Teamsters songs included ‘‘campaign phrases’’ that
1015BRO-TECH CORP.
7 For the same reasons that we do not find the Petitioner’s conduct
objectionable under Peerless Plywood, we find no merit in the Em-
ployer’s argument that the Petitioner’s broadcast of the Teamsters
songs constituted improper electioneering ‘‘at or near the polls’’
under Alliance Ware, 92 NLRB 55 (1950). In addition, we find it
significant that although Alliance Ware is a soundcar case, it pre-
dates Peerless Plywood and the Board’s application of the Peerless
Plywood rule in soundcar cases. See Underwood, supra; U.S. Gyp-
sum, supra; Crown Paper, supra; and Industrial Acoustics, supra.
Chairman Gould questions whether Peerless Plywood is applicable
in the circumstances of this case, but need not reach that issue here
in light of our disposition of the matter.
3 The songs included on the tape listed sequentially are: ‘‘The
Bird,’’ ‘‘Proud to be a Teamster,’’ ‘‘Burning Bridges,’’ ‘‘Celebra-
tion,’’ ‘‘We are the Champions/We will Rock You,’’ ‘‘The Twist,’’
Teamsters Anthem, and ‘‘When the Saints Come Marching In.’’
were calculated to sway employees’ votes by describ-
ing how the Petitioner, if elected, would benefit the
employees. The hearing officer characterized the
Teamsters songs as ‘‘traditional campaign speech set
to music’’ and distinguished the songs in this case
from mere exhortations to vote for a union accom-
panied by music. The lyrics found objectionable by the
hearing officer include: ‘‘the brotherhood of Teamsters
will always be right here’’; ‘‘your union’s by your
side; as long as we’re together our numbers will in-
crease’’; ‘‘this will be our motto: prosperity and
peace’’; ‘‘carving out a better life’’; ‘‘working hard for
what is fair’’; and ‘‘united we stand tall.’’
Contrary to the hearing officer, we find that the
Teamsters songs are more similar to appeals to vote set
to music, which have been found not to violate the
Peerless Plywood prohibition. Crown Paper, supra.
The prohibition established in Peerless Plywood was
intended to be a narrow limitation on the parties’ free-
dom of speech. See Livingston Shirt, supra, 107 NLRB
407–408. It is in the context of applying a limited pro-
hibition on campaign speech that we examine the facts
of this case.
The lyrics of the two Teamsters songs do not make
any specific campaign promises; do not address wages,
hours, terms or conditions of employment or other col-
lective-bargaining issues; do not refer in any way to
the Employer; and indeed, do not contain specific ap-
peals to vote in favor of the Petitioner. These phrases
do not convey the type of message that requires a re-
sponse or rebuttal from the employer. We find that the
broad and amorphous quality of the lyrics would not
create the type of ‘‘mass psychology’’ that concerned
the Board in Peerless Plywood. As the Board ex-
plained in Crown Paper, ‘‘[i]n our experience, sound-
truck appeals are seldom utilized for argument or per-
suasion. Rather they are used as reminders of the
forthcoming election and as appeals to the electorate to
‘get out and vote’—with an indication of the favored
choice thrown in. As such, they come neither within
the specific scope of Peerless Plywood nor its underly-
ing rationale.’’ 158 NLRB at 445.
For these reasons, we conclude that the Petitioner’s
broadcast of Teamsters songs from a soundcar parked
outside the plant on the day of the election was insuffi-
cient to interfere with the free choice of the employees
and is not conduct that breaches the Peerless Plywood
prohibition of certain campaign speech.7 Accordingly,
because we are adopting the hearing officer’s rec-
ommendation that we overrule the only other objection
at issue, we shall issue a certification of representation.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for Teamsters Local 107, affiliated with
the International Brotherhood of Teamsters, AFL–CIO,
and that it is the exclusive collective-bargaining rep-
resentative of the employees in the following appro-
priate unit:
All full-time production, maintenance, warehouse,
and laboratory employees, but excluding all other
employees including office clerical employees,
guards and supervisors as defined by the Act.
APPENDIX
HEARING OFFICER’S REPORT AND
RECOMMENDATIONS ON OBJECTIONS
Objection 4(a)
Employer’s Objection 4(a) alleges that Teamsters Local
107 Business Agent William Hamilton and 10 to 15 Team-
sters members appeared at the plant on the day of the elec-
tion with a soundtruck which blared prounion speeches and
songs throughout the day, which could be heard within the
plant and in the voting areas during the course of the elec-
tion, in violation of Peerless Plywood Co., 107 NLRB 427
(1953).
It is undisputed that on the day of the election, July 17,
1992, the Petitioner broadcasted music from a soundtruck
parked on G Street, the street adjacent to the Employer’s fa-
cility, from approximately 7 a.m. to 4:30 p.m. The election
was held in the first floor conference room of the Employer’s
facility in two sessions from 7:45 to 9:45 a.m. and from 3:30
to 4:30 p.m.
In response to a subpoena duces tecum served on the Peti-
tioner, the Petitioner produced the audio cassette which was
broadcast from the soundtruck on the day of the election.
The cassette which was entered into evidence as Employer’s
Exhibit 1, contains a selection of six popular non-Teamsters
songs interspersed with two Teamsters songs.3 The same se-
quence of songs is repeated on both sides of the tape.
In support of this objection, the Employer presented Plant
Manager Gary Gresham and numerous employee witnesses
who testified that they repeatedly heard only the Teamsters
songs coming from the soundtruck on the day of the election
while they were working at their work stations as well as in
other areas both inside and outside the plant. These witnesses
testified that they either did not hear, or did not recall hear-
1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing, any of the non-Teamsters popular songs which are con-
tained on the tape. All of the employee witnesses, however,
testified with certainty that they did not hear the soundtruck
broadcast while they were in the voting area.
Plant Manager Gary Gresham testified that he saw a huge
soundtruck arrive at the facility at 7 a.m. and heard music
which he characterized as ‘‘very loud, campaign, college
football, rah, rah rowdy type music’’ but that the only lyrics
he could recall were ‘‘brothers and sisters unite.’’ Gresham
specifically denied hearing the other popular songs on the
tape at any time during that day. Gresham testified hat he
heard this ‘‘pro-union’’ music at various locations throughout
the plant during his workday, with the exception of the
Cation Department where the sounds of machinery drowned
out the music from the soundtruck.
Lab Technician Catherine Heizman testified that at ap-
proximately 7 a.m., employee Tony Aveles entered her lab
and told her to come outside to see what was going on.
Heizman testified that she then left the plant and went out-
side into the parking lot where she saw approximately 15 to
20 employees in the parking lot near the soundtruck and saw
other employees there entering and leaving for the shift
change which took place at that time. She stated that she
heard the soundtruck blaring ‘‘we are united, we are like un-
beatable, we can do anything as long as we’re together.’’
Heizman remained in the parking lot for approximately 20
minutes and then returned to her lab on the second floor of
the plant. Heizman reported that she heard the same message
described above, continually and repeatedly throughout the
day, while she was working in her lab, while on break, and
while at lunch. In her testimony, Heizman also recalled the
lyrics as ‘‘we’re united, we’re together, we’re brothers.’’
Heizman testified that she voted at approximately 2 p.m. and
at all points along her route to the voting room she heard
the same music and lyrics. Heizman stated that once she en-
tered the voting room, she could not hear the soundtruck.
Heizman reported that at the end of the day she heard the
soundtruck broadcasting the song ‘‘Celebration’’ as the truck
pulled away. Heizman denied hearing any of the other non-
Teamsters songs which the Union contends were played.
Shift Leadperson Nicholas Carniglia testified that on July
17, 1992, he was not scheduled to work when he arrived at
the plant sometime around 9:30 a.m. to vote, he saw the
Teamsters soundtruck parked on G Street and heard loud
music with lyrics he related as ‘‘stand united, brothers and
sisters, come together’’ and ‘‘we have to stick together and
unite.’’ Carniglia testified that all along his route from the
parking lot to the polling area, he heard the Teamsters song
up until the time he closed the door to the polling room be-
hind him. After voting, Carniglia testified, he again heard the
same lyrics as he walked back out to his car in the parking
lot to leave and that he thereafter drove away.
Process Equipment Operator David Concepcion, who
works in the Cation Department, testified he went outside to
the parking lot at approximately 7:15 a.m. and saw the
soundtruck. Concepcion characterized the music coming out
of the soundtruck as a union message with music behind it.
The only lyrics of the song that Concepcion could recall
were ‘‘brothers and sisters unite, unite with me.’’ Concep-
cion testified that he could not hear the soundtruck in the
Cation Department because of the machine noise but that
when he left the department to vote during the morning ses-
sion, he heard the soundtruck repeatedly playing the same
song as he walked to the polling area. Concepcion denied
hearing the music in the polling area and denied hearing any
of the non-Teamsters songs which appear on the tape. Con-
cepcion left the facility at 8 a.m. at the end of his shift.
Shipping and Receiving employee Jose Garcia testified
that he heard the soundtruck music when he went outside to
the parking lot on his break to go to a food vendor truck.
He stated that he saw approximately 7 to 10 employees
standing outside by the truck and recalled the lyrics of the
music as ‘‘we’re brothers and sisters until the end.’’ Garcia
testified that he heard this same song all day long when he
was working in the warehouse that day and that he heard the
soundtruck continuously until he left the facility at 4:30 p.m.
He also heard it clearly along his route to vote at approxi-
mately 3:30 p.m., but he could not hear the music while in
the voting room.
The Employer presented warehouse employee Israel
Rodriguez who testified that the speakers which he saw on
the Teamsters soundtruck were EV brand speakers with 15-
to 18-inch woofers Rodriguez stated that based on his knowl-
edge of audio equipment he was able to determine that the
type of speakers he saw on the soundtruck were the type
generally used for outdoor broadcasts. Rodriguez could not
recall any lyrics that came from the soundtruck with the ex-
ception of th word ‘‘Teamsters.’’
The Petitioner presented Business Agent William Hamilton
who testified that all the songs contained on the audio cas-
sette, including the two Teamsters songs, were played in se-
quence, without interruption, repeatedly throughout the day.
The Petitioner did not present any other witnesses to refute
the previous testimony that the soundtruck broadcast was
heard within the plant during the day of the election, nor has
the Petitioner argued this position in its brief.
Credibility
Based on the record as a whole, my observation of the de-
meanor of each witness while testifying under oath and the
reasonable probabilities of events and statements, I make the
following credibility resolutions regarding the testimony con-
cerning the soundtruck. Throughout the course of the hear-
ing, I carefully observed all employee witnesses who testified
to hearing the soundtruck broadcast and although there were
minor inconsistencies regarding certain aspects of their testi-
mony, I have concluded all of the witnesses who testified in
regard to this issue, testified honestly and credibly to the best
of their knowledge and ability. The only credibility issue in-
volved in this objection is Petitioner’s assertion through
Business Agent Hamilton, that the non-Teamsters songs were
broadcast together with the Teamsters songs, in contradiction
to the testimony of both Gresham and the employee wit-
nesses. For reasons described below in the analysis section,
I do not find it necessary to resolve this conflict in the testi-
mony.
Analysis
I find that the Petitioner’s broadcast of pro-Teamsters
songs from its soundtruck on the day of the election violative
of the Board’s Rule prohibiting campaign speeches to captive
audiences during the 24-hour period preceding the election,
1017BRO-TECH CORP.
4 The record reveals that the soundtruck began broadcasting at ap-
proximately 7 a.m. The first session of the election commenced at
7:45 a.m. Thus, the soundtruck broadcasting from 7 to 7:45 a.m.
falls within the 24-hour time period prior to the election.
5 Although the audio cassette, Emp. Exh. 1, is in evidence, the
record does not contain a transcription of the lyrics to the Teamsters
songs. Therefore, a transcription of the lyrics of these songs, made
from Emp. Exh. 1, is contained in Apps. 1 and 2 to this report.
as set forth in Peerless Plywood, 107 NLRB 427.4 In addi-
tion in subsequent cases, the Board appears prepared to ex-
tend the Peerless Plywood rule to cover the actual time the
election is in progress. See O’Brien Memorial, 310 NLRB
943 (1993). The Board has also generally found that the use
of a soundtruck to broadcast campaign speeches into the
plant which is audible to employees while on company time,
violates the Peerless rule and is grounds for setting aside an
election. U.S. Gypsum Co., 115 NLRB 734 (1956).
Soundtruck broadcast appeals to employees which are lim-
ited to times employees are on a shift change have been
found not to violate Peerless Plywood: see Crown Paper
Board Co., 158 NLRB 440 (1956), and Underwood Corp.,
108 NLRB 1368 (1954). However, the Board has found that
prolonged soundtruck broadcasts of campaign speeches
which were intended to reach employees while on worktime
where they could not avoid such campaigning provide
grounds for setting aside the results of an election. See U.S.
Gypsum Co., supra. I find that the undisputed evidence in
this case demonstrates that the Petitioner broadcasted the two
pro-Teamsters songs continuously throughout the day, from
approximately 7 a.m. to 4:30 p.m., and therefore intended
that the songs be heard during times other than shift changes,
lunches, or breaks. The record contains sufficient evidence
that the songs could be heard by the employees while they
were at their work stations on company time. There is no re-
quirement to show that any particular number of employees
actually heard the broadcast for it to be violative of Peerless
Plywood, and a de minimis exception to the rule has clearly
been rejected by the Board. Great Atlantic & Pacific Tea
Co., 111 NLRB 623 (1955). Accordingly, I find that the Pe-
titioner, in a planned and systematic manner, directed its pro-
Teamsters campaign nessages contained in the songs at the
employees in the facility while on company time.
In order for a violation of the Board’s Peerless Plywood
rule to occur, the soundtruck broadcast heard by the employ-
ees must be considered a campaign ‘‘speech.’’ While the
Board has found that mere exhortations to vote for the Union
accompanied by music, O’Brien Memorial, supra, or general
‘‘get out the vote’’ appeals, not to be campaign speeches, I
find that the two Teamsters songs which were broadcast
throughout the day of the election constitute campaign
speeches under Peerless Plywood for the following reasons.
The Board, in promulgating this rule, sought to prohibit last
minute campaign speeches which tended to create a mass
psychology that would override arguments made through
other campaign media, to avoid giving an unfair advantage
to the party making the campaign speech. In Great Atlantic
& Pacific Tea Co., supra, the Board pronounced that a
preelection speech need not be ‘‘formalized’’ to fall within
the prohibition of Peerless. I find that the songs broadcast
into the plant on the day of the election were no different
than a speech because the lyrics of these songs5 include cam-
paign phrases such as ‘‘the brotherhood of Teamsters will al-
ways be right here’’; ‘‘your Union’s by your side; as long
as we’re together our numbers will increase’’; ‘‘this will be
our motto: prosperity and peace’’; ‘‘carving out a better
life’’; ‘‘working hard for what is fair’’; and ‘‘united we stand
tall.’’ These messages, although sung and accompanied by
music, are clearly emotional appeals to sway voters in favor
of the Petitioner by telling the voters how the Petitioner will
benefit them if elected. In addition, these songs cannot be
considered neutral or merely patriotic as the Petitioner ar-
gues, as they propound the Petitioner’s campaign position
that the Teamsters will help the employees secure ‘‘a better
life’’ if elected. These lyrics contain significantly more
meaning and are more characteristic of a speech than is the
mere repetition of a slogan to vote for the Petitioner accom-
panied by music, which the Board determined not to be a
campaign speech in Crown Paper Board, 158 NLRB 440.
Although the songs contained no specific mention of the Em-
ployer, or any campaign issue, the message behind the lyrics
is clear: the Petitioner, if elected, will be ‘‘working hard for
what is fair’’ and ‘‘carving out a better life,’’ bringing
‘‘prosperity and peace.’’ Both Teamsters songs which were
broadcast are traditional campaign speech themes put to
music. Often, last minute campaign speeches do not focus on
any specific issue but are more generalized themes of how
voting for a particular party will benefit the employees. Such
is the case here.
As I have found the Teamsters campaign songs that were
broadcast into the plant during the election to be campaign
speeches under Peerless Plywood, I do not find it necessary
to resolve the credibility issue regarding whether or not the
other non-Teamsters music was played during the election. I
find that as the Petitioner, through Business Agent Hamilton,
admitted that the soundtruck did play the two Teamsters
songs repeatedly from approximately 7 a.m. to 4:30 p.m., the
presence or absence of the other musical selections inter-
spersed with the Teamsters songs would not have the result
of mitigating the effect of the Teamsters songs, and as such,
has no bearing on my finding.
The Employer, in its brief, argues an alternate theory for
finding the soundtruck broadcast to be objectionable conduct,
if not so found under the Peerless Plywood doctrine. This ar-
gument is based on the testimony of the employee witnesses
who heard the Petitioner’s soundtruck broadcast up until the
point they entered the voting area. In this argument, the Em-
ployer contends that the audible soundtruck broadcast in the
corridor leading to the voting area constitutes last minute
electioneering at or near the polling place. As there is no evi-
dence that employees were waiting in line to vote in this cor-
ridor where the broadcast was heard, and the record is clear
that the broadcast could not be heard within the polling area,
I do not find any basis to support such an argument.