Lewittes & Sons, Inc.

National Labor Relations Board - Board Decisions

Dec 18, 1952

101 N.L.R.B. 1107 (N.L.R.B. 1952)

LEWITTES & SONS, INC. 1107'
LEwrrms & SONS, INC. and UPHOLSTERERS INTERNATIONAL UNION,
AFL and LocAL 78, UNITED FuRNrrmu WORKERS of AMERICA,
CIO. Cases Nos. /3-RC-4850 and 13-RM-405. December 18, 195/'
Decision and Order
Pursuant to a stipulation for certification upon consent election,
an election by secret ballot was conducted on July 24, 1952, under
the direction and supervision of the Regional Director for the Second
Region, among the employees in the stipulated unit. Thereafter, a
tally of ballots was furnished the parties, showing that of approxi-
mately 148 eligible voters, 141 cast valid ballots, of which 68 were
for United Furniture Workers of America, CIO, hereinafter called
CIO, 66 were for Upholsterers International Union, AFL, herein-
after called AFL, and 1 was against the participating labor organiza-
tions. There were 6 challenged ballots. Thereafter, the AFL filed
timely objections to conduct affecting the results of the election.
In accordance with the Board's Rules and Regulations, the Re-
gional Director conducted an investigation of the matters raised by
the Petitioner's objections, and on September 30, 1952, issued and
duly served upon the parties his report on objections in which he
recommended that the election be set aside. The CIO and the Em-
ployer filed exceptions to the Regional director's report on objections.
As the principal basis for its objections, the AFL alleged, in sub-
stance, that the Employer permitted the CIO to solicit employees on
company time and property but denied a similar privilege to the AFL.
The AFL also alleged that the Employer permitted leaflets and stick-
ers in the plant on the eve of the election.
The Regional Director's report disclosed the following :
During the period in question the CIO had a contract with the
Employer while the AFL did not. The contract with the CIO pro-
vided, among other things, that :
... representatives of the Union shall have the right to visit
the plant . . . This right shall be reasonably exercised. The
intent of the provision is to facilitate the adjustment of griev-
ances and compliance with the terms and spirit of the agreement.
There shall be no union activities during working hours.
Following the consent-election agreement on June 19, 1952, CIO
Official Cina, who had been handling grievances at the plant, was
joined by three other CIO representatives for the stated purpose of
assisting in the grievance work. The latter, however, were not per-
mitted above the first floor. During June 1952, the CIO representa-
tives, principally Cina, in addition to discussing grievances, and on
101 NLRB No. 190.
242305-53-71
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one occasion soliciting a grievance during working hours, talked to
two of the employees in favor of the CIO, in some instances during
working hours, and on another occasion brought beer into the plant
for some of the employees. During the same period when the pre-
election campaign was in progress, outside AFL organizers, having no
access to the plant, did most of their campaigning at the company
gate during the noon hour. However, some of the workers themselves
campaigned inside the plant, and employee Turco, who led the AFL
drive, appears also to have campaigned on company premises and at
a time when he was supposed to be working.
The AFL wrote the Employer, in May and June 1952, warning it
against permitting its supervisors or a rival union to solicit on com-
pany time and property unless the AFL was granted the same priv-
ilege, and the Employer replied on each occasion that it had a long-
standing rule against such practices, and that it would continue to
comply with all the provisions of its existing contract with the CIO
for the remainder of the term. The Employer specifically denied
knowledge of Cina's activities and repeated that it would not permit
solicitation on company time. It also appears that the Employer had
in fact on several occasions warned representatives of both CIO and
AFL against vote solicitation on company time and property.
The Board has considered the objections to the election, the Regional
Director's report, and the exceptions filed thereto, and assuming for
the purpose of this Decision the correctness of the factual findings
in the Regional Director's report, finds no merit in the objections.
It is true that by virtue of the contract, representatives of the CIO
had a greater opportunity than some of the rank-and-file employees
who favored the AFL, or the AFL outside organizers who did their
campaigning at the gate, to talk to plant employees. However, the
Regional Directors' investigation does not show any independent
knowledge on the part of the Employer of unauthorized activity, or
any acquiescence by the Employer in any deviations from the contract
provision by the CIO. Indeed, it clearly establishes that the Em-
ployer warned the CIO representatives on several occasions against
electioneering on company time and property, and that such warnings
were also given to some of the AFL adherents among the rank-and-
file employees who had engaged in electioneering on company time
and property.
It has been the policy of the Board to require employer neutrality,
but without infringing on the rights of an incumbent union to ad-
minister its contract." On the facts of the instant case, we cannot
R The Goodyear Tare & Rubber Company, 85 NLRB 135 ; E I. DuPont de Nemours and
Company, 81 NLRB 238; Western Electric Company, Incorporated, 87 NLRB 183.
LEWITTES & SONS, INC. 1109
agree with the Regional Director that the Employer was unneutral or
that it displayed any favoritism toward the CIO. The instances in
which the CIO representatives may have deviated from the precise
requirements of the contract while engaged in administering it do not,
in our opinion, warrant setting aside the election, in the absence of
any evidence of partiality on the part of the Employer. As the Board
said in the Westinghouse 2 case :
As the Intervenor, which had previously been certified by the
Board as the representative of the employees involved herein,
derived its greater opportunity to contact such employees by
virtue of its valid contract with the Employer, we find that such
opportunity, even though it may have been abused without the
Employer's knowledge or consent, does not constitute a basis for
directing that the election herein be set aside.
For the foregoing reasons , we find that, under the circumstances
present here, no basis exists to warrant setting aside the election .3
Accordingly, we hereby overrule the AFL's objections to the con-
duct affecting the results of the election as they do not raise substan-
tial or material issues of fact. However, as the challenged ballots
are sufficient in number to affect the results of the election, we shall
remand the case to the Regional Director for the purpose of conduct-
ing an investigation of the challenged ballots, and preparing and
serving a report of such investigation.
Order
IT Is HEREBY ORDERED that the objections heretofore filed herein be,
and the same hereby are, overruled.
IT IS FURTHER ORDERED that this case be, and it hereby is, remanded
to the Regional Director for the Second Region for the purpose of con-
ducting an investigation of the challenged ballots, and preparing and
serving a report of such investigation, in accordance with the pro-
visions of Section 102.61 of the National Labor Relations Board Rules
and Regulations, as amended.
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
2 Westinghouse Electric Corporation , 91 NLRB 955, 951.
We do not regard the incident involving the pasting of stickers in favor of the CIO
on the day before the election as showing partiality on the part of the Employer in the
absence of any evidence connecting the Employer with the incident. In view of its status
as contract union, we find no impropriety In the CIO 's use of plant bulletin boards. Nor is
there any warrant for setting the election aside because of the alleged remarks made by
Supervisor Anderson , standing alone, and unrelated to any other facts or circumstances
time or place.