American Laser Corp.

National Labor Relations Board - Board Decisions

Jun 20, 1986

280 N.L.R.B. 483 (N.L.R.B. 1986)

AMERICAN LASER CORP.
American Laser Corporation and Amalgamated
Clothing and Textile Workers Union , Petition-
er. Case 27-RC-6405
20 June 1986
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
The National Labor Relations Board , by a three-
member panel, has considered objections to, and
determinative challenges in, an election held 1 Sep-
tember 1983' and the hearing officer's report rec-
ommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows 29 for and 37
against the Petitioner, with 17 challenged ballots.2
The Board has reviewed the record in light of
the exceptions and brief and has adopted the hear-
ing officer's findings3 and recommendations as
modified herein.
The Petitioner's Objection 34 involves individual
employee interviews conducted by the Employer's
personnel manager, Joyce Wickham, after the criti-
cal period had begun.5 The hearing officer found
that these interviews constituted solicitations of
employee grievances. Although the hearing officer
found that Wickham did not make any express
promises of corrective action, she also found that
Wickham had impliedly promised that the employ-
ee grievances raised in these interviews would be
corrected. In its exceptions, the Employer contends
that any inference in these meetings of any implied
promise of corrective action was rebutted (1) by
All dates are in 1983 unless otherwise indicated
s At the heanng the parties agreed that 16 challenges should be sus-
tained and that the challenge to the one remaining ballot was no longer
determinative. The hearing officer accepted the parties ' hearing stipula-
tion and recommended sustaining these challenges In the absence of ex-
ceptions, we adopt pro forma the hearing officer's disposition of these
challenged ballots
8 The Employer has excepted to some of the hearing officer's credibil-
ity findings The Board 's established policy is not to overrule a hearing
officer's credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect Stretch-Tex Co,
118 NLRB 1359, 1361 (1957) We find no basis for reversing the findings
4 The hearing officer recommended overruling the Petitioner 's Objec-
tion 9 and sustaining its Objections 1-8 and 117-12 In the asbence of ex-
ceptions , we adopt the hearing officer's recommendation to overrule Ob-
jection 9 In view of our decision to set aside the election solely on the
basis of Objection 3, we find it unnecessary to pass on the Petitioner's
other objections
On 28 October 1985 the General Counsel filed a "Motion to Hold in
Abeyance Board Review of the Hearing Officer's Report on Objections
and Challenged Ballots Findings and Recommendations to the Board "
The General Counsel requests that the Board delay consideration of this
case pending the decision of the administrative law judge in Case 27-
CA-8542-2, et al , because the Petitioner 's Objections 1, 2, and 5 are
among the unfair labor practices alleged there No response was filed to
the General Counsel's motion We deny the motion as lacking in merit
5 On 25 July the Union filed its representation petition with the Board
483
Wickham's express disavowal that the complaints
would be remedied, and (2) when the solicitation
by Wickham is viewed in the context of her also
updating in these meetings employee performance
appraisals after having been away from the plant
for 6 months. The Employer's exceptions relating
to Objection 3 are without merit and, for the rea-
sons set forth below, we adopt the hearing officer's
recommendation that Objection 3 be sustained.
The employee interviews conducted by Wick-
ham varied between 5 and 15 minutes in length and
occurred over a 2-day period in early August. The
interviews were on an individual basis encompass-
ing approximately 70 employees, which is about 95
percent of the unit. For these interviews, Wickham
basically used the same agenda, discussing wages,
complaints , and suggestions.6 In this regard, Wick-
ham testified that after she asked the employee
what his or her salary was, she then asked if the
employees had any complaints or suggestions.
Wickham further testified that 95 percent of the
employees interviewed voiced some complaints or
suggestion.' According to Wickham, after the
complaints were solicited, she told the employees
that she would not record what they told her, but
"was just making an overall note of any sugges-
tions or complaints they had, and it would be
passed on to management ." Wickham admitted that
on the day following the interviews, she gave the
employees' complaints to the Employer's president,
Jack Savage.'
There is no evidence that the Employer had an
established past practice of conducting this sort of
employee interview.9 In fact, in the 2 years of
Wickham's service with the Employer as personnel
manager, she had never held such interviews with
employees on this large a scale or for her stated
purpose for the August interviews, which was to
update employee performance appraisals.
Applying the Board's decisions in Reliance Elec-
tric Co. I ° and Raley's, Inc.," the hearing officer
concluded that Wickham's interviews constituted
objectionable conduct. In both the cited cases, like
the situation here, the employer held employee
meetings during a union organizational campaign; it
invited the airing of employee complaints; it indi-
8 The record reveals that in some of the interviews Wickham also dis-
cussed the ongoing union organizing when the subject was mentioned by
the employee
° For example, according to credited testimony of employee Lewis, he
told Wickham that there were too many management personnel and the
need for a retirement program, better insurance , dental coverage, and
sick pay
8 There is no evidence that any further action concerning these griev-
ances was taken
9 Cf. Carbonneau Industries, 228 NLRB 597 (1977)
10 191 NLRB 44 (1971)
" 236 NLRB 971 (1978)
280 NLRB No. 67
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cated in some fashion that management would look
into those complaints, implying some action would
be forthcoming from the employer although no ex-
press promises were made ; and it had not previous-
ly solicited employee grievances in the same
manner . In this regard , the Board , in Reliance Elec-
tric,1 2 stated:
Where, as here, an employer, who has not
previously had a practice of soliciting employ-
ee grievances or complaints , adopts such a
course when unions engage in organizational
campaigns seeking to represent employees, we
think there is a compelling inference that he is
implicitly promising to correct those inequities
he discovers as a result of his inquiries and
likewise urging on his employees that the com-
bined program of inquiry and correction will
make union representation unnecessary. In
both cases, the Board found that the employ-
er's conduct did not dispel the employee's
belief that "the reason for their voicing such
complaints was the hope that they might be
remedied." 13
We agree with the hearing officer that the Em-
ployer impliedly promised to correct employee
complaints . Contrary to the Employer, we find
that Wickham's conduct did not dispel the employ-
ees' belief that corrective action on their grievances
would be forthcoming. As indicated by the record,
at no time did Wickham announce that she could
not make any promises or commitments concerning
the employee grievances.14 Moreover, Wickham's
explanation for the timing of these interviews is in-
sufficient to counter the reasonable inference that
these interviews were scheduled because of the
union campaign. Wickham claimed that her work
schedule away from the plant, rather than the
union campaign , had required that the interviews
be held in August.1 s However, Wickham's cross-
examination indicates that earlier in the year there
were several occasions when she was working at
the plant and could have conducted such inter-
views then instead of in August. Wickham did not
satisfactorily explain why those earlier dates were
not chosen.
12 191 NLRB at 46
13 Raley's, Inc, above at 972.
14 Cf. Uarco. Inc., 216 NLRB 1, 2 (1974) Our dissenting colleague fails
to point out that in Uarco the company repeatedly told employees that it
could make no promises regarding the grievances made The Board
found that this specifically negated any possible inference of a promise of
benefits Here, contrary to the Employer 's claim , Wickham at no time ex-
pressly disavowed the inference that complaints would be remedied
's During the 6 months preceding the interviews, she frequently had
been away from the Employer 's facility on business for intermittent pen-
ods of varying lengths.
We further reject the Employer's contention that
these interviews were for the purpose of updating
employee performance appraisals. Thus, as far as
the record shows, except for the solicitation of the
complaints , the only other topic brought up by
Wickham was employee wages. Employee "per-
formance" was not discussed. Wickham testified
that she asked each employee what his or her
salary was. It is reasonable , however, to assume
that such information normally is readily available
to an employer and its personnel manager and the
record does not show that Wickham, as the Em-
ployer's personnel manager, had any apparent need
to go directly to the employees for such informa-
tion. This more than suggests that the conducting
of these interviews during the preelection period
was not simply coincidental to the election as the
Employer claims.
Accordingly, in all the circumstances here, we
find that the Employer, through Wickham's inter-
views of employees, engaged in objectionable con-
duct. We therefore sustain the Petitioner's Objec-
tion 3, set aside the election, and shall direct a new
election.
[Direction of Second Election omitted from pub-
lication.]
CHAIRMAN DOTSON , dissenting.
Contrary to my colleagues, I cannot find that the
Employer improperly solicited grievances prior to
the election. The majority opinion, in essence,
transforms an innocent inquiry by a supervisor
during employee evaluations concerning what com-
plaints or suggestions employees might have for
the company into a promise of benefit which con-
stitutes grounds for overturning the election. Such
an interpretation unduly restricts an employer's
ability to gather employee input. I would, there-
fore, overrule the Petitioner's Objection 3 and
reach the merits of the Petitioner's Objections 1, 2,
4-8, and 10-12.
Approximately 1 month prior to the election
held 1 September 1983, the Employer 's personnel
director, Joyce Wickham, conducted a series of in-
dividual employee interviews. The purpose of these
interviews was to update employee evaluations.
Wickham had fallen behind in the evaluations be-
cause she had been out of the country for much of
the 6 months preceding the interviews. The meet-
ings with employees varied from between 5 and 15
minutes in length. During the interviews, Wickham
reviewed employee wages and inquired whether
employees had any suggestions for or complaints
against the Employer. Employees were told that
their comments "would be passed onto manage-
ment," but no promises were made with respect to
AMERICAN LASER CORP.
any action being taken on the complaints. There is
no evidence that any action was, in fact, taken on
any of the matters raised in the interviews.
The hearing officer found, and the majority
agreed, that these interviews constituted objection-
able solicitation of employee grievances. I disagree.
Wickham's comment that she would pass the em-
ployees' suggestions and complaints on to manage-
ment is too generalized to imply that any specific
action would be forthcoming from the Employer.'
Nor does the fact that the information was actually
transmitted to management create such an implica-
tion. The Board has found that it is not the solicita-
tion of grievances itself that is coercive, but rather
the promise to correct the grievances that is unlaw-
ful. Uarco, Inc., 216 NLRB 1, 2 (1974). Here,
Wickham made no promise of corrective action,
and none was taken. Each of the cases cited by the
majority can be distinguished from the present case
i Only 3 of the approximately 70 employees interviewed testified at the
hearing Their testimony whether the personnel director made any prom-
ises is not entirely consistent on this point Employee Beachler testified
that the personnel director did not indicate any action would be taken
concerning employee complaints Employee Archuleta testified that the
personnel director said she was going to put the complaints together and
talk to management about them . Employee Lewis testified that in his
interview , he was told that the complaints would be presented to Presi-
dent Savage to see what could be feasibly implemented at a later date
Because the testimony of Beachler and Archuleta is largely corroborative
of the version given by the personnel director herself, I am satisfied that
the personnel director did not make any promises and that Lewis ' testi-
mony reflects his interpretation of what the personnel director said and
not what she actually told him
485
either on the basis of a promise by the employer to
"look into" the matter,2 or on the basis of correc-
tive action actually being taken. 3
In addition, I do not find it determinative that
this was the first time such employee interviews
were held. In Uarco, supra, no objectionable con-
duct was found even though the employer had no
prior history of similar meetings in which it invited
employee complaints. Further, it is significant that
the interviews were held for the purpose of em-
ployee evaluation, and not for the purpose of dis-
cussing the union. Receiving input from employees
about the company during an evaluation is a
common practice and should not, in and of itself,
raise the inference of objectionable conduct. As the
majority notes, Wickham did not even mention the
Union during the interviews unless the subject was
raised by the Employees. Thus, here, the Employ-
er's request for input would not intimate to em-
ployees that a benefit would be forthcoming if they
voted against the Union. Without more, I cannot
agree that an inquiry to employees during an eval-
uation about complaints or suggestions for the
Company represents objectionable conduct even
when the Union is engaged in an active organizing
campaign. Accordingly, I would overrule the Peti-
tioner's Objection 3 and reach the merits of the
other objections.
2 See Reliance Electric Co., 191 NLRB 44, 46 (1971)
3 See Raley's, Inc, 236 NLRB 971, 972 (1978)