Legion Utensils Co.

National Labor Relations Board - Board Decisions

Mar 20, 1953

103 N.L.R.B. 875 (N.L.R.B. 1953)

LEGION UTENSILS COMPANY
V. THE REMEDY
875
It has been found that Respondent has engaged in the unfair labor practice of
refusing to bargain collectively with the chosen representative of its employees.
It will therefore be recommended that it cease and desist therefrom and from
like and related conduct. It will further be recommended that Respondent bar-
gain collectively, upon request, with the Union as the exclusive representative of
its employees in the aforesaid appropriate unit.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, I make the follow,ing :
CONCLUSIONS OF LAW
1. United Furniture Workers of America, CIO, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees at the Respondent's Birming-
ham, Alabama, plant, including the truckdriver, but excluding office clerical em-
ployees, professional employees, guards, the general manager, the plant superin-
tendent, the mill foreman, the upholstery department foreman, the shipping and
receiving clerk, and other supervisors 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.
3. United Furniture Workers of America, CIO, was on September 25, 1951,
and at all times since has been the exclusive representative of all employees in
the aforesaid unit for the purposes of collective bargaining within the meaning
of Section 9 (a) of the Act.
4. By refusing on and after January 24, 1952, to bargain collectively with the
aforesaid Union as the exclusive representative of the employees in the appro-
priate unit, Respondent has engaged in and is engaging in an unfair labor
practice within the meaning of Section 8 (a) (5) of the Act.
5. By the aforesaid unfair labor practices, Respondent has interfered with, re-
strained, and coerced its employees in the exercise of rights guaranteed in Sec-
tion 7 of the Act, thereby engaging in an unfair labor practice within the mean-
ing of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices affect commerce within the meaning
of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
ANGELO C. SCAVULLO , MARIE ISABELL SAEGERT , MARGARET MARY SCOTT,
ANGELA M. SCAVULLO , VICTOR K. SCAVULLO AND CHARLES SCAVULLO
D/B/A LEGION UTENSILS COMPANY and LOCAL 475 , UNITED ELECTRI-
CAL, RADIO AND MACHINE WORKERS OF AMERICA , PETITIONER and
LOCAL 463, INTERNATIONAL UNION OF ELECTRICAL , RADIO AND MA-
CHINE WORKERS, CIO. Case No. 2-RC-4239. March 00, 1953
Supplemental Decision and Order
Pursuant to a Decision and Direction of Election issued herein on
March 14, 1952,1 an election by secret ballot was conducted on April 4,
1 Not reported in printed volumes of Board decisions.
103 NLRB No. 39.
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1952, under the direction and supervision of the Regional Director
for the Second Region, among the employees in the voting group
established by the Board. Following the election, a tally of ballots
was furnished the parties. The tally shows that of approximately 97
eligible voters, 93 cast valid votes, of which 7 were for UE, 37 were
for IUE, and 41 were against the participating labor organizations.
There were 8 challenged ballots.
Thereafter, on April 9, 1952, the Intervenor (IUE) filed timely
objections to conduct affecting the results of the election. The Re-
gional Director investigated the objections and, on August 20, 1952,
issued and duly served upon the parties a report on objections and
challenges, in which he recommended that the objections be sustained
and the election be set aside. On August 28, 1952, the Employer filed
exceptions to the Regional Director's report. Thereafter, on Sep-
timer 16, 1952, the Board issued an Order Directing Hearing on
Objections and remanded the case to the Regional Director for the
purpose of conducting a hearing on the issues raised by certain of
said objections.
The hearing was held on November 10, 1952, before Sidney A.
Coven, hearing officer. The Employer and Intervenor appeared and
participated. On January 14, 1953, the hearing officer issued and
served upon the parties his report, in which he recommended that the
election be set aside. On January 23, 1953, the Employer filed ex-
ceptions to the hearing officer's report.
The hearing officer found that Victor Scavullo, one of the partners
and general manager of the Employer, told his employees in a pre-
election speech on April 3, 1952, that if the UE were successful in
the election, the Employer would not do business with it because it
was "Communist dominated." Although Scavullo denied making
this statement, the Employer's personnel director, Michael Martin,
testified that Scavullo had stated "that he [Scavullo] knew that the
UE was a Communist dominated union; further that he would bar-
gain with them if he had to, but he would use all legal [means] that
he could not to." The Employer's statement that it would not bargain
with the UE was calculated to impress upon the employees the fu-
tility of voting for the UE. Moreover, Martin's testimony that
Scavullo referred to the use of all legal means to avoid bargaining
with the UE was equivalent to an anticipatory refusal to bargain,2
there being no "legal" means to avoid an existing duty to bargain.
We agree with the hearing officer in finding that the former state-
ment was, in fact, made to the employees, and further agree that
either statement, separately considered, constituted an interference
2 Augu8ta Bedd%ng Company, 93 NLRB 211, 212 , where the Board held an anticipatory
refusal to bargain to be violative of the Act.
LEGION UTENSILS COMPANY 877
with the election, in that it created an atmosphere incompatible with
freedom of choice by the employees in their selection of a bargaining
representative s
The Employer contends that as the above statements were directed
solely against the UE, the IUE, the party filing objections herein, has
no standing to object as it is not an aggrieved party. We are aware
of the irony of the situation. However, the Board has repeatedly
held that "in election proceedings, it is the Board's function to pro-
vide a laboratory in which an experiment may be conducted, under
conditions as nearly as ideal as possible, to determine the uninhibited
desires of the employees." 4 We therefore find that objections to
interferences with the "laboratory" atmosphere in representation
elections may be raised by any party to such election, aggrieved or
not' Moreover, although there may be no direct relation between
Scavullo's statements and the number of votes cast for the IUE, the
shift in voting from UE to "No-Union" may have adversely affected
IUE's position. Thus, the IUE's vote in a possible runoff situation
would undoubtedly differ, depending on whether the runoff be held
against UE or "No-Union."
We agree with the hearing officer's finding that Scavullo stated in
his preelection speech that he knew employees Kagan and Russo were
organizers for the Union a and that he would "take care of" them.
We find that this statement is a threat of reprisal and constitutes
interference with the election.'
We agree with the hearing officer's finding that Scott, one of the
Employer's supervisors, stated the night before the election to the
sister of one of the employees [Keyes] that "if the Union ever got in,
he [Keyes] might as well look for another job." This conversation
was relayed to Keyes that very night, and Keyes informed other em-
ployees of Scott's threat the next morning prior to the election. We
8 Capital Transit Company , 100 NLRB 1173; Howell Chevrolet Company, 95 NLRB 410,
414; Metropolitan Life Insurance Company, 90 NLRB 935 ( Chairman Herzog dissenting
but now bound).
' General Shoe Corporation, 77 NLRB 124 ; see Edward J. Schlachter Meat Co., Inc., 100
NLRB 1171.
" A party to a representation proceeding has the general right to urge objections to the
conduct of an election where such party is entitled to a place on the ballot . See American
Coating Mills, Division of Owens-Illinois Glass Co., 98 NLRB No. 113 and cases cited
therein.
6 The record fails to state the union for which these employees worked as organizers.
7 Nu-Car Carriers, Inc., 88 NLRB 75, 89. See Meyer & Welch , Incorporated, 91 NLRB
1102, 1112. See, in connection with these cases, Lake Superior District Power Co., 88
NLRB 1496, holding preelection conduct sufficient to warrant setting an election aside
where such conduct, if presented in an unfair labor practice proceeding, would constitute
an 8 (a ) (1) violation. In reaching this conclusion we have considered the testimony of
Scavullo and Martin that Scavullo also stated during his speech that neither Kagan nor
Russo would be treated any differently from other employees. We do not believe that this
later statement by Scavullo cures the coercive effect of the threatening remarks as to
Kagan and Russo . See Graniteville Co., Sibley Division, 96 NLRB 456.
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find that this threat of economic reprisal constitutes interference
with the election.
Although certain statements relied upon herein as constituting in-
terference with the election were denied having been made by wit-
nesses for the Employer, we have, in accordance with precedent,
accepted the hearing officer's credibility findings, by which he discred-
its those denials.
Accordingly, because of the foregoing instances of interference, we
shall order the election set aside .9 When the Regional Director
advises the Board that the circumstances permit a free choice of rep-
resentatives, we shall direct that a new election be held among the
Employer's employees.
Order
IT IS HEREBY ORDERED that the election held on April 4, 1952, among
employees of the Employer be, and it hereby is, vacated and set aside.
MEMBERS HouSTON and STYLES took no part in the consideration
of the above Supplemental Decision and Order.
8 Wilson & Co., Inc., 88 NLRB 1.
a As we are setting the election aside on the above grounds, we find it unnecessary to
pass upon the additional grounds on which the hearing officer relied in recommending that
the election be set aside.
UNITED AIRCRAFT CORPORATION , PRATT & WHITNEY AIRCRAFT DIVI-
SION and INTERNATIONAL ASSOCIATION OF MACHINISTS , AFL, PETI-
TIONER. Case No. 1-RC-2889. March 20, 1953
Order
On February 27, 1953, the Board issued its Decision, Order, and
Direction of New Runoff Election 1 in the above-entitled proceeding
in which it found that the International Union, United Automobile,
Aircraft and Agricultural Implement Workers of America, CIO,
herein called the UAW, had committed conduct which required set-
ting aside the results of the runoff election conducted on October 23,
1952, among certain of the Employer's employees. The Board simul-
taneously directed that a new runoff election be held with voting
eligibility to be determined on the basis of the Employer's payroll
for the week ending October 4, 1952, this being the same eligibility
date used in the original consent election and runoff election previ-
ously held in this proceeding.
On March 9, 1953, the UAW filed a motion requesting the Board
to reconsider and to reverse, modify, or clarify the foregoing Decision
1103 NLRB No. 15.
103 NLRB No. 106.