NVF Co.

National Labor Relations Board - Board Decisions

May 20, 1974

210 N.L.R.B. 663 (N.L.R.B. 1974)

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?