Storkline Corp.

National Labor Relations Board - Board Decisions

May 29, 1963

142 N.L.R.B. 875 (N.L.R.B. 1963)

STORKLINE CORPORATION 875
remove the agreement as a bar.3 As the Board stated in the Willis
case:4
The Board's contract bar rule is based upon policy considerations.
It aims to stabilize an existing contractual relationship between
an employer and its employees' bargaining representative for a
reasonable term. To disrupt that relationship, it seems to us,
would require something more than finding that several individ-
uals were included, who should not have been, in an otherwise
clearly appropriate unit.
We believe that the same considerations apply with equal force to
this case.
Accordingly, as the petition was untimely filed, we find, contrary to
the Regional Director, that the current agreement constitutes a bar.
We therefore shall dismiss the petition.
[The Board dismissed the petition.]
$ See Mission Appliance Oorporation, 104 NLRB 577 , footnote 7; cf. O. G. Willis, Inc.,
119 NLRB 1677.
• O. G. Wallis, Inc, supra, at p. 1678
Storkline Corporation and Local Union No. 3031 , United Brother-
hood of Carpenters and Joiners of America, AFL-CIO, Peti-
tioner. Case No. 15-RC-53327. May 09, 1963
DECISION, ORDER, AND DIRECTION OF THIRD
ELECTION
Pursuant to a Board Decision, Order, and Direction of Second Elec-
tion issued on February 20, 1962,1 an election by secret ballot was con-
ducted in the above-entitled proceeding on March 22, 1962, under the
direction and supervision of the Regional Director for the Fifteenth
Region, among the employees in the appropriate unit. At the con-
clusion of the balloting, the parties were furnished with a tally of
ballots which showed that of approximately 1,396 eligible voters, 677
cast votes for, and 703 against, the Petitioner, 6 cast void ballots, and
10 were challenged.2 The challenged ballots were insufficient in num-
ber to affect the election results. Thereafter, the Petitioner filed timely
objections to conduct affecting the election.
The Regional Director conducted an investigation of the objections
and on June 29, 1962, issued his report on objections in which he^
1135 NLRB 1146.
a Petitioner was the only labor organization participating in this election. The Regional'
Director granted the request of International Union of Electrical, Radio and Machine-
Workers of America, AFL-CIO, which had participated in the first election, to be re-
moved from the ballot for the second election.
142 NLRB No. 99.
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommended that Petitioner's objections I, 11(d), and II(g) be sus-
,tained, that the election be set aside, and a new election be held. He
did not rule on Petitioner's objections 11(e), 11(h), and 11(j), the
substance of which have been alleged as unfair labor practices in a
separate proceeding against the Employer.' He recommended that the
remaining objections II(a), (b), (c), (f), and (i) and III and IV,
be overruled. The Employer filed timely exceptions to the report and a
supporting 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 Brown].
The Board has considered the Regional Director's report, the excep-
tions, and brief,4 and hereby adopts certain of the Regional Director's
findings with respect to objection I and his recommendation to set the
election aside.5
An election in this case was initially held on May 12, 1961, pursuant
to Board direction. On February 20, 1962, the Board set aside this
election, because, by its antiunion campaign tactics, the Employer had
engaged in conduct which was "calculated to, and did, convey to em-
ployees the message that selection of a bargaining representative would
result in loss of employment opportunity."' Immediately upon re-
ceiving notice of the direction of a second election, the Employer em-
barked on a new campaign to defeat the Union. Between February 21
and March 22, 1962, the date of the second election, the Employer sent
eight letters, made three speeches, and showed two movies on five sep-
arate occasions, and distributed six other pieces of propaganda. The
new campaign, much like the old one, was keyed to the idea of instill-
ing fear in the minds of employees who might be disposed to vote for
the Union-fear of physical violence, fear of strikes, and fear of loss
of employment. This keynote was set forth in the first campaign com-
munication from the Employer's president, Ryan, to the employees,
in which he said :
3In his Intermediate Report issued on November 23, 1962, in that proceeding, Trial
Examiner William J. Brown found that the Employer had interrogated employees con-
cerning union activities in violation of Section 8(a) (1) of the Act. In Its Decision and
Order issued on March 28, 1963, the Board adopted these findings. Storkline Corporation,
141 NLRB 899.
4 As the Employer's exceptions and brief, the Regional Director's report, and the record
as a whole adequately present the facts, the issues involved, and the positions of the
parties, we hereby deny the Employer 's request for a hearing or for oral argument
5 As no exceptions were filed with respect to the Regional Director's recommendations
that objections 11(a), (b), (c), (f), and ( 1) and III and IV be overruled , we adopt these
recommendations pro forma. In view of our decision herein we do not rule on the
Employer's exceptions respecting objections 11(d) and II(g).
9 Storkline Corporation, supra. Specifically , this objectionable conduct consisted of
(a) emphasizing in campaign speeches to employees that if the Union won the election,
bargaining would be futile , a strike probable , and permanent strike replacements would
be hired ; ( b) building up a pool of such potential replacements before the election and
before any contract demands had been made upon the Employer ; and (c ) unsupported
statements that in the event of a union victory , the Employer 's customers would reduce
their orders and business would be adversely affected.
STORKLINE CORPORATION 877
In ordering the [new] election, the Labor Board felt that we were
not justified in what we said and did about the threat of strikes,
what strikes might do to your jobs, and what new employees might
have to do about crossing picket lines . . . We intend to see
that you get all the facts. The violence and the strikes and the
threats to the jobs of working people which we hear about all the
time are very, very real. You need only pick up your daily news-
paper to read of such strikes and violence, and they occur only
where there are unions. [Emphasis in original.]
On March 13, Ryan wrote to employees that "The Carpenters Union
[Petitioner] is a threat to the security and peaceful existence of every
man and woman in our plant." A week later the Employer's vice
president, Bracken, told employees in a prepared speech :
Everyone of you has a great deal at stake in this election Thurs-
day. If the Carpenters Union gets control of your future, you
have a lot to lose. These paid organizers of the union try to get
you to believe that you have everything to gain and nothing to lose.
That is nothing but sales talk ! And it's dangerous sales talk.
If you fall for that line you may make the worst mistake of your
life. This Carpenters Union can mean real trouble here at Stork-
line for everyone-you and me both. This union can cost you a
lot of your money, it can throw you into violence that will en-
danger yourself and your family ; it can "give away" some of your
present benefits ; and it can cause you to lose your job! [Emphasis
in original.]
In the same speech Bracken also referred to the alleged constant danger
of strikes attendant upon successful organization of employees by labor
organizations. In this context, which was buttressed by statistics re-
specting strikes and strike violence across the country and in the State
of Mississippi, Bracken warned his listeners :
When you are pulled out on an economic strike, your pay stops
immediately. You cannot even collect Unemployment Compen-
sation from the government. The company is perfectly free
under the law to permanently replace economic strikers with new
employees. When that happens, the strikers completely lose their
jobs even though the strike later ends. Thousands of men and
women have permanently lost good jobs, because of union strikes,
and it could happen to you! [Emphasis in original.]
On March 20, President Ryan also delivered a prepared speech to
the employees. In speaking out against unionization of the plant, he
stressed that a strike might result in loss of certain of the Employer's
customers which would mean "lost jobs here at Storkline and less job
security for the future." Two weeks earlier on March 2, 1962, the
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer had attached a leaflet to the paychecks delivered to em-
ployees which read : "What if you didn't get this paycheck because of
a strike?" Also, in a poster displayed in the plant before the election
the Employer urged employees to "Vote No" to "protect your job,
your pay, your benefits, your security-against bad union strikes, bad
union troubles, bad union leadership ." Finally , on several occasions
between March 8 and 15, 1961 , the Employer showed two movies to
,,mployees, one entitled "And Women Must Weep" 7 and, the other "A
Question of Law and Order." 8 Both deal with alleged union
violence.
In the Sewell Manufacturing case ," the Board said :
Our function , as we see it , is to conduct elections in which the
employees have the opportunity to cast their ballots for or against
a labor organization in an atmosphere conducive to the sober and
informed exercise of the franchise , free not only from interference,
restraint, or coercion violative of the Act, but,also from other ele-
ments which prevent or impede a reasoned choice.
Because of the "powerful emotional force" inherent in the Em-
ployer's propaganda there involved , we held that we would not permit
such propaganda unless it was germane as well as truthful . Since the
Employer 's only purpose was to inflame emotions by appealing to
racial prejudice and since the statements were not germane to the
issues in the campaign , they exceeded the bounds of appropriate
electioneering.
Much the same sort of appeal was involved in the present case,
albeit not based on the racial issue. Nevertheless , the principle of
Sewell is, in our opinion , relevant here. An employer may point out
in noncoercive terns for his employees' consideration the possible re-
' The Board dealt with this motion picture in its decision in Plochman and Harri8on-
Cherry Lane Foods, Ino., 140 NLRB 130. This film purports to be a true story account of
the 1956 Potter-Brumfield strike in Princeton, Indiana, which involved a different company
and a different union. The film, however, was a dramatized production rather than a
documentary film 'The staging, acting, and director were performed by persons skilled
in this medium The competence of the cast and the excellence of the production resulted
in a moving story of callous union, leaders, a helpless employer,^unfortunate victims, ex-
treme acts of violence and sabotage by union adherents including the shooting of an infant
child, fear and hatred-all in connection with an allegedly unnecessary and unjustified
strike. In the Plochman decision , the Board also recited the facts of the Potter-Brumfield
strike as they appear in the Board 's public records. Comparing these facts with the film
account , it is not clear to what extent the events portrayed in the latter represent poetic
license rather than what actually occurred.
s The Regional Director's Report includes an account of this motion picture, excerpted
from the Intermediate Report (IT R 147-62), issued on April 20, 1962, in Ideal Baking
Company of Tennessee, Cares Nos 26-CA-1167 and 26-RC-1663 [143 NLRB 1461
wherein its showing was the subject of objections and unfair labor practice allegations.
Briefly summarized , the film is devoted to the subject of violence in labor disputes A
narrator makes editorial comments while showing various scenes of strike violence and of
testimony adduced before the Senate Select Committee on Improper Activities in the Labor
or Management Field, 85th Cong ., 1st sess
9138 NLRB 66.
STORKLINE CORPORATION 879
suits of unionization. But this campaign far exceeded any such mere
appeal to reason. Rather it was clearly calculated to evoke an un-
reasoning fear of the consequences resulting from union organization
of the plant. The Employer, by the letters and speeches of its officials,
by its leaflets, and by the showing of the above-mentioned motion pic-
tures, created such an atmosphere of fear and confusion as to make
impossible the holding of a free election. The preelectoral campaign
conducted by the Employer was calculated to convey to the employees,
in the same fashion as the Employer's campaign prior to the previous
election, the inevitability of a strike, violence, and loss of jobs if they
selected the Petitioner as their collective-bargaining representative.1e
Contributing to the employees' concern over the possibility of personal
economic losses, engendered by the Employer, were its statement that
union strikes might lead to the cancellation of orders by some of its
customers 11 and its references to existing benefits and its predictions
that some might be lost if the Union were selected and bargained for
the employees.12 These appeals to the employees' fears of economic
and physical harm, if the Union won the election, were intensified by
the several showings of the motion pictures "And Women Must Weep"
and "A Question of Law and Order." A majority of the Board said
of the former film in the Plochman decision, supra, that its impact
upon the average viewer was in the nature of a misrepresentation
which exceeded the bounds of permissible propaganda, hence the
Board set aside an election held on the day after the film's showing.
Although, in the present case, it appears that the last showing of the
film took place approximately a week before the election, its effect
was not neutralized by the passage of this short period of time because
it was intended to, and did, in a most dramatic way, drive home the
Employer's general propaganda theme that a vote for the Petitioner
would result in strikes jeopardizing the economic security and physical
safety of the employees and their families. The film "A Question of
Law and Order" emphasized the same point.13
Significantly, the Employer's campaign of fear was not provoked
by any conduct of the Petitioner. There is not the slightest hint that
the Petitioner engaged in any violence or that it was . threatening
strikes or other oppressive action against the Employer. Thus the
Employer's campaign was waged on an issue of its own making. It
created a "straw man" and then proceeded to frighten the employees
10 Storkline Corporation, supra; see Sewell Manufacturing Company, 140 NLRB 220.
"Haynes Stellite Co., 136 NLRB 95; if. D . Cole Manufacturing Company, 133
NLRB 1455.
n See Colvert Dairy Products Company, 136 NLRB 1508.
13 We are not deciding that the showing of "A Question of Law and Order" is per Be
grounds for setting aside an election . Our holding is only that the film exacerbated the
other fear propaganda material used by the Employer and , in this context, contributed to
the creation of an atmosphere which made impossible the holding of a free election.
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into the belief that their physical safety and jobs were at stake in the
election.i4
In view of the above, we conclude that the campaign destroyed the
"laboratory conditions" which the Board deems necessary for ascer-
taining the uninhibited desires of the employees.15 Accordingly, we
shall set the election aside and direct a new one.16
[The Board set aside the election conducted on March 22, 1962.]
[Text of Direction of Third Election omitted from publication.]
MEMBER Roi o is, dissenting :
For the reasons stated below, I am unable to agree with my col-
leagues' decision to set aside the March 22, 1962, election.
As set forth in the Regional Director's report, the Employer used
various propaganda media to convey to the employees its opposition
to the Union and the reasons why the Employer thought that the
employees would be better off without the Petitioner as their repre-
sentative. No contentions have been urged, nor have any findings been
made, that the propaganda involved any material misrepresentations
or in any way involved a misstatement of the truth. Instead, my col-
leagues' decision is based upon their sweeping characterization that
such propaganda "was keyed to the idea of instilling fear in the minds
of employees who might be disposed to vote for the Union."
I cannot agree that opposition of an employer to unionization and
its attempt to convince employees not to accept unionization is, with-
out more, a sufficient basis for setting aside an election. Certainly,
employees are entitled to know the benefits they are presently enjoying,
the effectiveness and the status of the union which seeks to represent
them, and to be apprised that unionization can and does entail risks
and responsibilities as well as rights and privileges. Indeed, the
courts 11 and the Board in several recent cases 18 have made clear that
employees are not only entitled to such information, but that the dis-
semination of such information in a preelection campaign is privileged
under the Act we administer.
14 In reaching our conclusion in this case , we have, contrary to the statement of our
dissenting colleague, considered not only the Employer 's propaganda , but also that of the
Petitioner, examples of which are attached to the Employer 's exceptions and brief.
16 General Shoe Corporation, 77 NLRB 124, 127.
1e We find it unnecessary to consider certain conduct of third parties which was relied
upon by the Regional Director in his recommendation to set the election aside
17 See, e.g., N.L.R.B. v. Threads , Inc., 308 F. 2d 1 (C A. 4) ; Union Carbide Corp v.
N.L.R.B., 310 F. 2d 844 (C.A. 6); N.L.R.B. v. Transport Clearings Inc, 311 F. 2d 519
(C.A. 5).
1s See , e.g., Seven-Up Bottling Company, Inc., 140 NLRB 611; Allen-Morrison Sign Co,
138 NLRB 73; Decorated Products , Inc, 140 NLRB 1383; Arch Beverage Corporation,
140 NLRB 1385 . See also, Alto Plastics Manufacturing Corporation , 136 NLRB 850.
STORKLINE CORPORATION 881
Moreover, I must once more express my disapproval of my col-
leagues' method of "evaluating" preelection propaganda.10 For here
again they have considered the Employer's campaign matter only in
terms of selected passages and paragraphs without regard to the total
election campaign of which they were an integral part. The record
here shows that the Petitioner throughout the campaign engaged in
full scale propaganda and counterpropaganda, and many of the issues
raised by the Employer were in answer to the Petitioner's propaganda.
Furthermore, it is clear that the Petitioner had ample opportunity to,
and did in fact, answer and dissipate much of the Employer's so-called
"appeal." 20
Moreover, I am unable to agree with my colleagues' basic contention
that the Employer's campaign in the instant case was a mere repetition
of the conduct involved in the Board's Decision, Order, and Direction
of a Second Election issued on February 20, 1963 (135 NLRB 1146) 71
Accordingly, I would overrule the Regional Director' s recommenda-
tion that objection I be sustained.
19 See, e.g., in Oak Manufacturing Company, 141 NLRB 1323; The Lord Baltimore Press,
142 NLRB 328
20 My colleagues in evaluating the Employer' s propaganda are apparently impressed with
the quantity of the "appeal." For example , they note that the Employer "sent eight
letters, made three speeches, showed two movies . ." and distributed other pieces of
propaganda not identified . However, the Employer asserts in its brief that during the
same period the Petitioner distributed approximately 13 pieces of propaganda containing
for the most part criticisms of the Company's management and personnel policies, and
promises as to what benefits the employees would obtain if the Petitioner won the election.
The Petitioner's broadside , according to the Employer, began almost as soon as the Board's
Direction of a Second Election was issued and continued until the day before the election,
when the Petitioner issued a pamphlet approximately 16" by 22" devoted to answering
the Employer' s so-called "Half-Truths, Untruths, and Propaganda ." Moreover , the Em-
ployer's exceptions indicate that the local papers carried accounts of the Petitioner' s posi-
tion. The Petitioner's propaganda was not considered by the Regional Director in deter-
mining whether the employees could evaluate the Employer 's "appeal." Accordingly, even
if I were inclined at first blush to agree with my colleagues concerning the inability of the
employees to evaluate the Employer' s propaganda , I would remand the proceedings to the
Regional Director for a Supplemental Report 'to make a complete record of the matters
adverted by the Employer, so that the Board can evaluate in total context whether or not
the "uninhibited desires of the employees" were interfered with. It is not enough merely
to consider "examples" of such propaganda , as my colleagues have done here.
211n the original case the Board's decision was based primarily upon the Employer's
"building up of a pool of potential replacements before the election and even before any
contract demands were made upon it, and by emphasizing to its employees the existence
of this pool in its campaign speeches . . . ." The Board agreed with the Regional Director
that the employees could reasonably be expected to interpret these actions to mean that
bargaining would be futile , a strike would be inevitable, and thereby an atmosphere would
be created rendering the exercise of free choice impossible (p. 1149). Although in the
instant case the Employer advertised for employees during the critical period , the Regional
Director here specifically found that "it does not appear that the Employer conveyed or
sought to convey to its employees a belief or impression that it was building up a pool of
applicants, as it did before the first election." No exceptions were filed to this finding
by the Regional Director.
As for my colleagues ' reliance upon the motion pictures which were shown, I have
previously expressed my views on that matter in Plochman and Harrison-Cherry Lane
Foods, Inc., 140 NLRB 130, and Carl T. Mason Co., Inc, 142 NLRB 480 I might note,
however, that the last showing of the film here took place approximately a week before the
election rather than the eve of the election which the majority found controlling in
Plochman.