Andel Jewelry Corp.

National Labor Relations Board - Board Decisions

Aug 27, 1998

326 N.L.R.B. 507 (N.L.R.B. 1998)

ANDEL JEWELRY CORP. 507
Andel Jewelry Corporation and Local 74, Service
Employees International Union, AFL–CIO, Peti-
tioner. Case 29–RC–8674
August 27, 1998
DECISION AND CERTIFICATION OF RESULTS OF
ELECTION
BY CHAIRMAN GOULD AND MEMBERS FOX AND
LIEBMAN
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held on November 8, 1996, and the hearing officer’s
report recommending disposition of them. The election
was conducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows 90 for and 142 against
the Petitioner, with 31 challenged ballots, an insufficient
number to affect the results.
The Board has reviewed the record in light of the ex-
ceptions1 and briefs, has adopted the hearing officer’s
findings and recommendations,2 and finds that a
certification of results of election should be issued.3

Contrary to our dissenting colleague, we agree with
the hearing officer that the Employer did not make a
“speech” to a “massed assembly of employees” in viola-
tion of the rule set forth in Peerless Plywood Co., 107
NLRB 427 (1953).
The hearing officer specifically discredited testimony
that on November 7, 1996, the Employer made a
“speech” in a manner similar to those it made during the
weeks prior to the election. The hearing officer found
instead that the Employer’s conduct essentially was lim-
ited to distributing a campaign leaflet and answering any
employee questions that arose. The Employer made no
remarks unless there were questions, and even then the
remarks simply mirrored the wording of the leaflet.
As the hearing officer correctly recognized, the Peer-
less Plywood doctrine does not proscribe the distribution
of “campaign literature on . . . the premises at any time
prior to an election.” Id. Furthermore, the hearing offi-
cer emphasized that the Employer did not solicit em-
ployee questions, but merely answered questions as they
were posed. During an election campaign, an employer
can hardly be expected to ignore questions from its own
employees. With respect to the incident in the polishing
department on which our dissenting colleague relies, we
agree with the hearing officer that the Employer’s an-
swering of questions individually did not amount to a
speech made to all employees collectively.

1 In the absence of exceptions, we adopt pro forma the hearing offi-
cer’s recommendations that the Petitioner’s Objections 2, 3, 4, 6, 10
through 17, and 22 be overruled.
2 With respect to Objection 21, we do not endorse the conduct of the
Board agent in telling employees that they could not vote while wear-
ing union T-shirts. We agree with the hearing officer, however, that the
Board agent’s instruction to remove the T-shirts does not, by itself,
warrant setting the election aside under the standard applicable to
Board agent misconduct.
3 Chairman Gould agrees that the portion of Objections 5, 9, and 19
related to Sewell Mfg. Co., 138 NLRB 66 (1962), should be overruled
for the reasons set forth in his concurring opinion in Shepherd Tissue,
Inc., 326 NLRB No. 38 (1998).
Accordingly, we find no merit in our dissenting col-
league’s position, and we shall certify the results of the
election.4
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots have
not been cast for Local 74, Service Employees Interna-
tional Union, AFL–CIO, and that it is not the exclusive
representative of these bargaining unit employees.

MEMBER FOX, dissenting in part.
Contrary to my colleagues, I would sustain Petitioner
Objections 5, 9, and 19 insofar as they allege that the
Employer violated the rule set forth in Peerless Plywood
Co., 107 NLRB 427, 429 (1953), which prohibits the
“making [of] election speeches on company time to
massed assemblies of employees within 24 hours before
the scheduled time for conducting an election.”1
The record shows that the Employer repeatedly held
captive audience meetings with employees that would
have been prohibited by Peerless Plywood but for the
fact that they occurred outside the 24-hour preelection
period. Thus, the hearing officer found that during the
last 2-1/2 weeks prior to the election, the Employer’s
chief financial officer, Joseph Manber, accompanied by a
Spanish-speaking translator, conducted daily meetings
during working time with employees in each of the Em-
ployer’s departments. In each meeting, Manber distrib-
uted a campaign leaflet, which served as the topic for
discussion.
On November 7, 1996, within the key 24-hour period
before the election, the Employer engaged in conduct
very similar to that which had occurred on a daily basis
for the preceding 2-1/2 weeks. Chief Financial Officer
Manber visited each of the Employer’s departments dur-
ing working time. He was accompanied by the same
Spanish-speaking translator. Manber distributed a cam-
paign leaflet, which was the focus of his remarks. The
document in question claimed that the Petitioner was
challenging the eligibility of 45 employees on the basis
of their ethnic background.
4 Member Liebman concurs in the decision to overrule Objections 5,
9, and 19. However, she agrees with the dissent in Electro-Wire Prod-
ucts, 242 NLRB 960 (1979), that the Board erroneously held in that
case and in Associated Milk Producers, 237 NLRB 879 (1978), that the
rule of Peerless Plywood is not violated when an employer, on a sys-
tematic basis, meets individually with a substantial number of employ-
ees at their work stations on working time within 24 hours of the elec-
tion and urges them to vote against the union. In the absence of a cur-
rent Board majority to overrule Electro-Wire and Associated Milk,
however, Member Liebman agrees that the hearing officer correctly
applied that precedent here in finding that the Employer did not run
afoul of the Peerless Plywood doctrine.
1 I agree with my colleagues’ disposition of the Petitioner’s other ob-
jections.
326 NLRB No. 53
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 508
The hearing officer found that the Employer’s conduct
on November 7, 1996, did not violate the Peerless Ply-
wood rule. The hearing officer reasoned that Manber did
not make a “speech” but only “brief remarks.” The hear-
ing officer also found that Manber did not assemble em-
ployees for the purpose of addressing them en masse.
Rather, Manber’s “real purpose” was to distribute the
campaign leaflet.
Contrary to the hearing officer, I would find that the
Employer did not confine its conduct to merely distribut-
ing the campaign document. The Employer anticipated
that employees would be concerned about the controver-
sial claims it was making in the leaflet, and it had its
translator present to aid in the answering of questions
should they arise. In some departments, employees did
pose questions, which the Employer answered with the
help of the translator. Specifically in the polishing de-
partment, the question-and-answer session between the
Employer and the employees lasted about 15 minutes, a
period of time that cannot be dismissed as de minimis.
The polishing department employees were in effect a
captive audience because they were on working time and
were not free to leave their work stations where the dis-
cussion was taking place. The Employer thus was able to
gain an unfair advantage over the Petitioner in that it
delivered the “last, most telling word.” Peerless Ply-
wood, supra at 429.
In sum, I would find that at least in the polishing de-
partment the Employer did make an “election speech” to
a “massed assembly of employees” on November 7,
1996, just as it had done on a daily basis in every de-
partment during the preceding 2-1/2 weeks. Because this
incident occurred within 24 hours of the election, I would
sustain the Petitioner’s Peerless Plywood objections and
direct a second election.