Joseph Bancroft & Sons Co.

National Labor Relations Board - Board DecisionsFeb 15, 1963

140 N.L.R.B. 1288 (N.L.R.B. 1963)

1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD may, if they so desire, constitute a separate, appropriate unit for collective-bargaining purposes. Accordingly, we shall direct that an election be held in the follow- ing voting group : All toolroom (department 139) employees employed at the Em- ployer's plant A, located at 100 Carlson Road, Rochester, New York, excluding all office clerical employees, guards, professional employees, all other employees, and supervisors as defined in the Act. 5. If a majority vote for the Petitioner, they will be taken to have indicated their desire to constitute a separate appropriate unit, and the Regional Director conducting the election directed herein is in- structed to issue a certificate of representatives to the Petitioner for the unit, described in paragraph numbered 4, which the Board, under such circumstances, finds to be appropriate for purposes of collective bargaining. In the event a majority do not vote for the Petitioner, these employees shall remain a part of the existing unit, and the Regional Director will issue a certificate of results of election to such effect., [Text of Direction of Election omitted from publication.] 9 The International Union of Electrical, Radio and Machine Workers, AFL-CIO, which was permitted to intervene at the hearing, has not shown that it has devoted itself traditionally to serving the special interests of toolroom employees. Accordingly, we- find that this union does not meet the "traditional representative" test, and is not there- fore entitled to a place on the ballot. Cf. American Potash & Chemical Corporation,. Supra Joseph Bancroft and Sons Co . and General Teamsters, Local 470, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Peti- tioner. Case No. 4-RC-4958. February 15, 1963 DECISION AND DIRECTION OF SECOND ELECTION Pursuant to a stipulation for certification upon consent election executed April 26, 1962, an election by secret ballot was conducted on May 15, 1962, under the supervision and direction of the Regional Director for the Fourth Region among the employees in the unit de- scribed below. Following the election, the Regional Director served upon the parties it tally of ballots, which showed that of approxi- mately 886 eligible voters, 855 votes were cast, of which 383 were for, and 444 against, the Petitioner, and 28 ballots were challenged. The Petitioner filed timely objections to the conduct affecting the results of the election. 140 NLRB No. 135. JOSEPH BANCROFT AND SONS CO. 1289 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Brown]. In accordance with the Board's Rules and Regulations, the Regional Director conducted an investigation and thereafter issued and served upon the parties his report on objections, in which he found that the objections were without merit and recommended that they be over- ruled. The Petitioner filed timely exceptions to the Regional Direc- tor's report. 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 is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Sections 9(c) (1) and2(6) and (7) of the Act. 4. The parties stipulated, and we find, that all production and maintenance employees, including plant janitors, office janitors, receiv- ing, loading, and packing employees, filter plant employees, shop em- ployees, truckdrivers, chauffeurs, helpers, mixers, chemical mixers, laboratory helpers, plant working leaders, laboratory technicians, expediters, packagers, roll engravers, garage mechanics, powerhouse and boilerroom employees, and plant clerical employees, excluding office clerical employees, professional employees, nurses, first-aid at- tendants, real estate employees, superintendents, supervisors, labora- tory group leaders, foremen, fire marshals, and watchmen and guards as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. The Petitioner objected to the election upon the ground, inter alia, that before the election the Employer had denied the Petitioner's representatives access, for organization purposes, to company-owned property where employees lived in company-owned homes. According to the Regional Director's report, 101 employees of the 886 included in the bargaining unit and eligible to vote lived in company-owned homes on company-owned land adjacent to the plant premises.' At various points of access to company land, including roads leading to the homes, there are "No Trespassing" signs posted. On May 1, 1962, about 2 weeks before the scheduled election, the Petitioner wrote to the Employer's personnel director requesting per- mission to engage in legitimate organizing activities on company- owned property where employees lived. The Employer's attorney I The Petitioner lost the election by 57 votes The employees living in company-owned homes were sufficient in number to affect the results of the election 1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD replied that "if you will advise me of the activities proposed by your client and of the nature of each of them and of the specific location where the same is proposed to be carried on, I will then be able to ad- vise you of the company's position in the light of its rules, policies and the law." Petitioner answered that it "wishes to speak to the employees of Bancroft [Employer] who live in company homes as if they were free men and women living in their own homes." The Em- ployer then denied the request. At a preelection conference held the day before the election, Petitioner asked the Employer's attorney for permission to distribute literature to employees occupying company- owned homes. The Employer refused because of a longstanding policy against distribution of literature by any party on company property. The Petitioner conducted its organizing campaign by mail, by tele- phone, and by meetings at its hall in downtown Wilmington. It tried to mail literature to employees living in company-owned homes, but lacking names it addressed the envelopes to the "occupants." As a result, according to Petitioner, most of the envelopes were returned marked "addressee unknown." The Regional Director found that : Since these employees [occupants of company-owned homes] could walk or drive from the plant to their company houses without leaving company premises, many could not, without violation of the no trespassing signs, be canvassed directly by Union organizers, nor were they available to receive Union lit- erature, except as they left and returned to the company property. Neither the Employer nor investigation developed any evidence supporting unusual or uncommon circumstances sustaining a no- distribution rule applied to eligibles to their company houses, nor were there any atypical characteristics surrounding the houses sustaining such a rule. The Employer notes possible clog- ging of the street, juvenile vandalism, and avoidance of con- troversial matters as the basis for the rule. However, the Em- ployer fails to indicate the manner in which distribution of Union literature at the houses of its employees on company property would necessarily produce the consequences it sought to avoid. The Employer's desire to avoid any personal involvement in sensi- tive matters like Union literature distribution must be weighed under rights granted employees in Section 7 of the Act. Notwithstanding the above findings, the Regional Director recom- mended against setting aside the election upon the theory, apparently, that if the Petitioner had ignored the "no trespassing" signs and conducted its organizing activities on company property the Em- ployer would not have interfered, and, further, the prohibition against JOSEPH BANCROFT AND SONS CO. 1291 the distribution of literature on company property applied to all distributions and not only to those pertaining to labor matters. In the Babcock chi Wilcox case,2 the Supreme Court said : The right of self-organization depends in some measure on the ability of employees to learn the advantages of self-organization from others . Consequently , if the location of a plant and the liv- ing quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them, the employer must allow the union to approach his employees on his property. In the present case, as found by the Regional Director , employees liv- ing in company - owned homes on company property were able to walk or drive from their homes to the plant and vice versa without leaving company property. This made it impossible for union representatives to solicit them directly without violating the "no trespassing" pro- hibition , except on irregular occasions when the occupants might leave company premises for personal reasons. The possibility that the Petitioner might have reached some of the employees living on company grounds by telephone or other means and that employees might voluntarily have visited the Petitioner's meeting hall is not, in the circumstances of the instant case, a feasible substitute for personal solicitation . Here an organizational campaign could not be carried on effectively without, the "seeking out" of em- ployees and their solicitation to membership by direct contact by ex- perienced organizers. Access to the homes of employees was there- fore vital to organizational efforts. The Regional Director commented that if the Petitioner had ig- nored the "no trespassing" signs and had solicited employees at their homes on company property no action would have been taken by the Employer to interfere with such conduct. But this is sheer specula- tion. The Petitioner was not required to risk prosecution for trespass in order to assert its right to organize . Quite properly it wrote to the Employer asking permission to enter upon company grounds in order to conduct its organizing activities . As previously noted, the Employer denied the request . Further , the fact, relied on by the Regional Director , that the no -distribution-of-literature rule was ap- plied to all distributions and not only to those involving union mat- ters, cannot curtail the Petitioner's statutory rights. Republic Avia- tion. Corporation v. N.L.R.B., 3924 U.S. 793,796-797,805. We hold that, because of the location of employees' living quarters on company premises , the employees residing in such homes were, as stated in Babcock di Wilcox, supra, placed "beyond the reach of rea- sonable union efforts to communicate with them ," and the Employer 2 N L R B v The Babcock A Wilcox Company , 351 U S. 105, 113 1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was therefore required to permit the Petitioner access to the employees on its property. In refusing such access, the Employer unlawfully interfered with the self-organization rights of such employees.' Ac- cordingly, we shall set aside the election held on May 15, 1962, and direct the holding of a new one. [The Board set aside the election held on May 15, 1962, among the employees of Joseph Bancroft and Sons Co. in the unit heretofore found appropriate.] [Text of Direction of Second Election omitted from publication.] a Cf. General Dynamics /Telecommunications , a division of General Dynamics Corpora- tion, 137 NLRB 1725 ( Member Brown dissenting ), where a Board majority found that an employer had not violated Section 8 ( a) (1) of the Act by prohibiting the distribution of union campaign literature on a purportedly private road by nonemployee union orga- nizers. The majority found that the union organizers had other reasonable means of communicating with employees . The majority also said specifically that its holding in that case did not apply to a company -town situation , the present case. Henry I. Siegel Co., Inc. and Amalgamated Clothing Workers of America , AFL-CIO . Case No. 26-CA-1179. February 18, 1963 DECISION AND ORDER On May 17 , 1962, Trial Examiner Harold X. Summers issued his Intermediate Report, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a sup- porting brief. Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated its powers in connection with this case to a three -member panel [Chairman McCulloch and Members Rodgers and Leedom]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief , and the entire record in this case , and finds merit in certain exceptions of the Respondent. Accordingly , it hereby adopts the findings , conclusions , and recom- mendations of the Trial Examiner to the extent that they are consistent with our Decision herein. The Trial Examiner upheld the essential allegation of the complaint that Respondent violated Section 8(a) (5) by agreeing during its ne- gotiations with the. Union over their 1961 contract that it would in- corporate into its piece rates a 121 2-percent incentive factor over the 140 NLRB No. 129.