The Dayton Rubber Manufacturing Co., 1242 (1962)
through collective bargaining that the Employer would not otherwise give them voluntarily and that if they struck to enforce their demands the Employer was prepared and intended to fill their jobs with replacements.
Whether or not the Employer would have committed an unfair labor practice by engaging in such conduct is not, I submit, the issue in this case . 8 The issue as I see it is whether the Employer's preelection conduct so impressed upon the employees the futility of voting for the Petitioner that they were unable freely to express their desires in the election.
I find that it did. Here the employees went to the polls with the Employer's warning that it would not honor the Board's certification even if the Petitioner won the election, but instead would engage in several years of litigation; aware that they would gain nothing through collective bargaining that the Employer would not otherwise give them voluntarily;
and with the knowledge that the Employer was prepared to replace them if they struck for economic benefits. I find that the Employer's conduct was clearly calculated to create such an impression of futility in the minds of the voters and therefore constituted interference with that sober and thoughtful choice which a free election is designed to reflect. Accordingly,
I would set aside the election.
8Cf. the majority opinion in Peerless Plywood Company, 107 NLRB 427.
THE DAYTON RUBBER MANUFACTURING COMPANY and UNITED RUBBER WORKERS OF AMERICA, Petitioner. Case No. 11-R-1563 (formerly 5-R-1563). February 23, 1954 SUPPLEMENTAL DECISION
On July 17, 1944, the Board issued its Decision and Direction of Election in the above-entitled case' involving the branch factory of the Employer2 at Waynesville, North Carolina.
In it, the Board found that the following unit was appropriate and directed an election therein:
All production and maintenance employees including calendar operators , inspectors , testing and packing employees, receiving and shipping employees, and firemen, but excluding cafeteria workers, laboratory employees, watchmen, office and clerical employees, foremen,and all or any other supervisory employees with authority to hire, promote , discharge , discipline, or otherwise effect changes in the status of employees, or effectively recommend such action.
157 NLRB 388.
2 Since the original proceeding herein, the name of the Employer has been changed to The Dayton Rubber Company_ 107 NLRB No. 263.
On August 11, 1944...
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