Thomas Industries, Inc.

National Labor Relations Board - Board Decisions

Feb 6, 1968

169 N.L.R.B. 706 (N.L.R.B. 1968)

706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thomas Products Co., Division of Thomas Industries,
Inc. and United Steelworkers of America,
AFL-CIO, Petitioner . Case 10-RC-6990
February 6, 1968
ORDER DENYING MOTION FOR RECON-
SIDERATION
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On October 12, 1967, the National Labor Rela-
tions Board issued its Decision, Order, and
Direction of Second Election in the above-entitled
proceeding (167 NLRB 732). The Board, contrary
to the recommendations of the Regional Director
for Region 10 in his report on challenged ballot
and objections issued May 12, 1967, sustained cer-
tain of the Union's objections to conduct affecting
the results of the election and ordered the single
challenged ballot to be opened and a revised tally
of ballots to be prepared and served upon the par-
ties by the Regional Director. The Board further
ordered that a certification of election be conducted,
whichever might be appropriate in view of its
Decision and the results of the revised tally. The
Board found, inter alia, that, considered in its
totality, the preelection campaign conducted
by the Employer was coercive and interfered with
the election. In so finding, the Board relied, in part,
upon certain speeches made prior to the election by
the president of the Employer's parent company
and by the Employer's general manager.
Thereafter, on November 6, 1967, the Employer
filed a motion for reconsideration, in which it
requested that the Board reconsider its October 12,
1967, Decision, delete therefrom its Direction of
Second Election, and certify the March 31, 1967,
election in accordance with the revised tally of bal-
lots issued on October 18, 1967; or in the alterna-
tive, find Objection 10, relating to the speeches, to
be without merit and to remand for hearing on union
Objections 1 through 7; or, in further alternative,
order that a full hearing be held on all of the Union's
objections.
As a result of his investigation initiated by the ob-
jections filed by the Union after the election, the
Regional Director considered certain speeches
made by the president of Thomas Industries and the
Employer's general manager prior to the election.
He found the speeches to be noncoercive. In our
Decision, reversing the Regional Director, we
found that these speeches contributed to the coer-
cive effect of the Employer's entire campaign. The
Employer now contends that, because the Union
' Sec. 102.69(a) of the Rules merely provides that objections to conduct
affecting the results of the election "shall contain a short statement of the
reasons therefor."
2 Hobart Manufacturing Company, 92 NLRB 203, citing Merrimac
did not in its objections specifically raise objection
to these speeches, the Board is precluded from con-
sidering them as grounds for setting aside the elec-
tion.
Although the Union's objections did not express-
ly refer to the speeches, the objections were suffi-
ciently precise with respect to 10 other instances of
allegedly objectionable conduct to warrant the Re-
gional Director's initiation of an investigation under
Section 102.69 of the National Labor Relations
Board Rules and Regulations, Series 8, as
amended.' Once such an investigation has com-
menced, the Regional Director is not required to,
nor can he properly, ignore evidence relevant to the
conduct of the election or the preceding campaign
simply because the Union may not have specifically
mentioned such conduct in its objections. We have
long held that "the jurisdiction of the Regional
Director in making a postelection investigation is
not limited to the issues raised by the parties."2
Thus, as we see it, the real question is not whether
the Board has a right to consider the speeches, even
though not expressly objected to, but whether the
manner in which the speeches came before the
Board violated the Employer's rights of due
process. It appears to us that the Employer had
ample notice that the speeches constituted part of
the case against it, as well as adequate opportunity
to present argument that the speeches could not
have adversely affected the election.
Appended to the 10 specific allegations of objec-
tionable conduct filed by the Union after the elec-
tion was the following language: "Other conduct
made employees fearful in exercise of their rights in
violation of the Act." This reference to other un-
specified conduct should have indicated to the Em-
ployer that the investigation could disclose other
matters upon which the Union might rely. In the
course of the subsequent investigation, the Re-
gional Director requested, and the Employer
proffered, copies of the speeches here involved.
The penultimate paragraph of the Regional
Director's Report states that he had "examined the
contents of the speeches, and concludes that the re-
marks therein are not coercive, and did not exceed
the permissible bounds of electioneering." At this
point, it should have been quite clear to the Em-
ployer that the speeches had become an issue in the
case. If the Regional Director's consideration of the
speeches did not make this fact obvious, the
Union's exceptions to the Regional Director's Re-
port, timely served upon the Employer, should have
finally clarified the matter. The exceptions alleged,
inter alia, that "The totality of the communications
made to the employees and completely shown in
Hat Corporation, 85 NLRB 329, and J. I. Case Company, Inc., 86
NLRB 12. See also Lockwood-Dutchess, Inc, 106 NLRB 1089, and cf.
Radiant Lamp Corporation, 116 NLRB 40, and City Tire Company, 117
NLRB 753.
169 NLRB No. 55
THOMAS PRODUCTS CO.
Appendices A through K [of the Regional
Director's Report] can lead to but one conclusion,
and that is, that the employees have not been given
their rights as guaranteed under Section 7 of the
Act." The last two appendices to the Regional
Director's Report, J and K, were copies of the
speeches here under discussion. Thus the Union
plainly urged to the Board that the speeches con-
tributed to the coercive atmosphere engendered by
"the totality of the communications made to the em-
ployees" and argued that the Board should consider
these speeches in reaching its decision. Although
the Employer was in this manner put on notice that
the content of the speeches was actively in issue, it
failed to file any brief in opposition to the Union's
exceptions or in support of the Regional Director's
Report. While again, in its present motion for recon-
sideration, the Employer could have presented ar-
guments it wished to make against the Board's con-
clusions as to the speeches, it has refrained from
anything but the most general substantive attack. In
the circumstances outlined above, we find that the
speeches were properly before the Board, the Em-
ployer was afforded full notice and opportunity to
contest their legal effect, and no reason appears for
not now attributing to these speeches a less coer-
cive effect than that found in our previous decision.
The Employer also contends that the Board has
not, in fact, viewed the campaign in its "totality"
because only limited evidence, relating solely to the
Employer' s campaign , was before the Board for
consideration. Apparently the Employer would
now adduce other evidence to demonstrate the Em-
ployer's letters and speeches were only responsive
to the economic facts and to the Union's campaign.
3 The Employer notes that, in our original Decision , we sustained Ob-
jections 1-7 and 10. The Employer contends that it was improper for the
Board to sustain Objection 10, since that objection relates "solely" to al-
legedly coercive remarks by supervisors to employees on the day of the
election , and this matter was not discussed in our Decision . As we read
707
The fact that various statements in the letters were
intended to answer union claims or comments is ob-
vious on the face of the letters, and the Board took
this into account in its evaluation of the Employer's
campaign. When the Union filed its 10 objections
after the election, referring specifically to five let-
ters, three notices, and one other item distributed
by the Employer, it clearly became apparent that
the Union was alleging the Employer's campaign to
be generally coercive. Two days later, the office of
the Regional Director for Region 10 requested the
Employer by mail "to submit a statement setting
forth [its] contentions with respect to each allega-
tion together with any available evidence in support
thereof." At that time, or at any time prior to the
close of the Regional Director's investigation, the
Employer was free to offer any of the evidence
which it now asserts is vital to a contextual view of
the preelection campaign. Furthermore, we note
that the Employer has recited no specific facts in its
motion which would indicate that a hearing is war-
ranted at this late date. Finally, we can conceive of
no undeveloped facts or circumstances which could
have substantially mitigated the coercive thrust of
the Employer's propaganda, especially the remarks
made in the speeches as discussed in our earlier
Decision.
For the reasons given above, we shall deny the
motion for reconsideration.3
ORDER
It is hereby ordered that the motion for recon-
sideration be, and it hereby is, denied.
the Union's objections, the language earlier referred to, "Other conduct
made employees fearful in exercise of their rights in violation of the Act,"
constitutes a second paragraph of the Union's Objection 10. This was the
portion of the objection in which we found merit.
350-212 0-70-46