Amwood Homes, Inc.

National Labor Relations Board - Board Decisions

Aug 2, 1979

243 N.L.R.B. 1006 (N.L.R.B. 1979)

I)l( ISIO()NS )1 NA II )NAL I.AB()R R l.A I I()NS BO)ARI)
Amwood llolnes, Inc. and General I)rivers, I)airy Em-
ployces and Helpers IAocal Union No. 579, affiliated
with the International Brotherhood of Teamsters,
Chauffeurs Warehousemen and HIelpers of America,
Petitioner. Case 33 RC 2358
August 2, 1979
DECISION, DIRECTION, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN FANNING ANI) MIMBEIRS JINKINS
ANI) PENH.I(
Pursuant to a Decision and Direction of Election of
the National Labor Relations Board, issued by the
Regional Director for Region 33. a secret-ballot elec-
tion was conducted on December 15, 1978, among
the employees in the unit found appropriate. Follow-
ing the election the parties were furnished a tally of
ballots which showed that, of approximately 24 eligi-
ble voters, 24 cast ballots, of which I I were for, and
II were against, Petitioner, with 2 challenged ballots.
The challenged ballots are sufficient in number to af-
fect the results of the election.
The Petitioner filed timely objections to conduct
affecting the results of the election.
Pursuant to Section 102.69 of the National Labor
Relations Board Rules and Regulations and State-
ments of Procedure, Series 8, as amended, the Re-
gional Director conducted an investigation and on
January 5, 1979, the Regional Director issued a Sup-
plemental Decision on challenged ballots and objec-
tions, direction of hearing, and notice of hearing, in
which he ordered that a hearing be held to resolve the
issues raised by Petitioner's Objections 1, 2, and 3,
and Petitioner's challenges to the ballots of Richard
Meyers and George Koloski.
The hearing was held before Hearing Officer Ray-
mond M. Forster on January 18, 19, and 31, 1979, in
Rockford, Illinois. All parties were afforded full op-
portunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the
issues. On March 6, 1979, the Hearing Officer issued
his report and recommendations on objections and
challenged ballots in which he recommended that Pe-
titioner's objections be overruled in their entirety, the
challenge to the ballot of Richard Meyers be sus-
tained, and the challenge to the ballot of George
Koloski be overruled, opened, and counted. On
March 15, 1979, the Employer filed exceptions and
supporting brief to the Hearing Officers report. The
Employer contends the Hearing Officer erred in up-
holding Petitioner's challenge to the ballot of Work-
ing Foreman Richard Meyers, and in failing to treat
Petitioner's challenges to the ballots of Working
Foreman Richard Meyers and George Koloski con-
sistently. On March 16, 1979, Petitioner filed excep-
tions to the learing Officer's report on objections
with respect to Petitioner's Objection I (that the Em-
ployer's employee interviews and electioneering on
election day interfered with the election), and Objec-
tion 2 (that the Employer promised, and paid to some
employees, a bonus on election day,) that part of
Hearing Officer's report attached hereto. Thereafter,
the Employer filed a brief in opposition to Petitioner's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the earing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
makes the fillowing findings:
We find, in agreement with the Hearing Officer's
recommendation, that the challenge to the ballot of
George Koloski be overruled, and the ballot of Rich-
ard Meyers be sustained.
We find merit in Petitioner's exception that the
Hearing Officer erred in overruling a portion of Peti-
tioner's Objection 2 alleging that the profitsharing bo-
nus promised and given the employees on the election
day interf'ered with the election.'
In brief, the record shows the Employer instituted a
profit-sharing plan for its Amnwood production em-
ployees some time prior to the filing of the Union's
petition on September 18. 1978. Precise details of the
plan were not communicated to employees, however,
until at least September 19. 1978.2 According to testi-
In the abselce of exceptions thereto, we adopt. pro /orma, the Hearing
Officer's recommendations overruling Petitioner Objection 3 and that part of
Objection 2 alleging that wage increases were paid to employees after the
filing of the petition.
In addition. Members Jenkins and Penello. In agreement with the Hearing
Officer. find no merit in that part of Objection I alleging that one-to-one
interviews on the day of the election amounted to captive audience speeches
within 24 hours of an election. See, generally Peerless Pl.wood Company,
107 NLRB 427 (1953); ssociated Milk Producers, Inc. 237 NLRB 879
(1978). Chairman Fanning disagrees with Members Jenkins and Penello. See
his dissent in Electro-Wire Products Inc, 242 NLRB 960 (1979).
Finally, Member Jenkins notes that Objection I also alleges. and the
Hearing Officer found, that on the morning of' the election at least nine
employees were shown or read a letter signed by the production manager
which stated "as your supervisor it would be a vote against me if you vote
union .... I hope you vote No." The Board repeatedly has found that
similar statements are violative of Sec. 8(a)(1I) of the Act inasmuch as they
equate protected union activity with employee disaffection or disloyally
toward an employer. See Oscar Enterprise Inc., OCMO Inc., Halvin Products
Co., 214 NLRB 823 (1974); Radio Station WISN, Division of Hearst Corpora-
tion, 169 NLRB 699, 701 (1968) In Member Jenkins' view it follows. a
fortiori, that such statements warrant setting aside an election.
2 The Hearing Officer concluhided that a reference in a September 18 letter
by the Employer's owner to a January 31. 1977, cutoff date for the plan was
"inadvertent" and was corrected by a letter of September 19 to employees
indicating that November 30, 1978. was the cutoff and payment date for the
plan.
243 NLRB No. 163
I (X)6
AMWOOD H(
mony credited by the Hearing Officer, the cutoff date
for the plan-November 30, 1978-was selected be-
cause Amwood Homes had recently taken over the
functions of Hiland Homes, a corporation owned by
George Scott who also owns Amwood, and the date
coincided with the end of the fiscal year for Am-
wood.3
The record also shows that payment of the profit-
sharing bonus was not made on December I as origi-
nally planned, but was deferred to the next scheduled
payday, December 15, which was also the day of the
election. The Hearing Officer found the payment was
delayed because just prior to the November 30 cutoff
date the Employer announced to employees if they
completed a particular house, the so-called bonus
house, before November 30, the profit from its "sale"
would be included in the profit-sharing payment. The
bonus house was in fact completed prior to Novem-
ber 30 and, according to the Employer, the computa-
tions for including the amounts derived from the bo-
nus house sale could not be made in time for the
scheduled December I payment.
In recommending that Objection 2 be overruled in
its entirety the Hearing Officer noted that the Em-
ployer made substantial "campaign mileage" out of
the plan and that the amounts published as being due
employees increased dramatically during September,
October, and November, 1978. The Hearing Officer
also recognized that "profits" payable under the plan
"were only paper transactions" inasmuch as they
were calculated on internal transactions between cor-
porations owned by George Scott and were designed
to aid Amwood in calculating production costs. Fi-
nally, the Hearing Officer observed that "profit" in-
creased "remarkably just prior to the election."
largely as the result of the "bonus house" payment.
Despite these findings the Hearing Officer con-
cluded the Employer neither deviated from the plan
nor changed its benefits in response to the union cam-
paign.
Contrary to the Hearing Officer, we find merit in
Objection 2 to the extent it alleges that the inclusion
in the profit-sharing plan of the amounts derived
from the so-called bonus house sale constituted objec-
tionable conduct that warrants setting aside the elec-
tion. Simply stated, the Hearing Officer ignored or
overlooked the fact that inclusion of the "bonus
house" profit in the profit-sharing payment made on
the day of the election was itself the grant of an addi-
tional benefit. In effect, the Employer "sweetened the
pot" of the existing profit-sharing plan. It is axiomatic
that the grant of such new or improved benefits, ab-
3 Hiland had been producing homes at the South Beloit facility prior to
March 8., 1978, using the same employees, equipment, and processes as pres-
ently used by Amwood.
1007
sent evidence that the timing or implementation of
changes in benefits was governed by factors other
than the pendency of an election, constitutes the basis
for setting aside an election. See, generally, The Balti-
more Catering Company, 148 NLRB 970 (1964). In
the instant case the Employer has established no jus-
tification for announcing and including in payments
under the profit-sharing plan amounts derived from
the sale of the bonus house. Indeed, as the record
shows and as discussed above, such a "sale" was
merely a paper transaction which we infer and find
was calculated to influence employees improperly
and to interfere with their free choice in the matter of
selecting a bargaining representative.
DIRECTION
It is hereby directed that, as part of the investiga-
tion to ascertain a representative for the purpose of
collective bargaining with the Employer, the Re-
gional Director for Region 33, pursuant to the Na-
tional abor Relations Board's Rules and Regula-
tions and Statements of Procedure. Series 8. as
amended, and within 10 days from the date of this
Decision, Direction, and Direction of Second Elec-
tion, shall open and count the ballot of George Kolo-
ski, the challenge to which has been overruled herein,
and shall thereafter prepare and cause to be served on
the parties a revised tally of ballots, including therein
the count of the said challenged ballot. If the tally
discloses that the majority of the ballots have been
cast for Petitioner then the Regional Director shall
issue a certification to Petitioner as the exclusive col-
lective-bargaining representative of the employees in
the appropriate unit.
However. in the event that the revised tally of hal-
lots shows that Petitioner has not received a majority
of the valid ballots cast, the following shall be appli-
cable:
It is hereby ordered that the portion of Petitioner
Objection 2 discussed above be, and it hereby is. sus-
tained.
IT rs FRtHER ORDERED that the election conducted
herein on December 15. 1978. be, and it hereby is, set
aside.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
MEMBER PENELI.O, dissenting in part:
I agree with the Hearing Officer that Objection 2
should be overruled.
APPENDIX
Objection No. 2.
Petitioner alleged in Objection No. 2 that the Employer
promised employees, and paid to some employees, a bonus
on the election day, and that it also gave certain employees
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wage raises after the petition was filed. No evidence was
offered at the hearing concerning wage increases granted
after the filing of the petition on September 18, and accord-
ingly I recommend that this portion of Objection No. 2 be
overruled. Concerning the other portion of this Objection.
the Employer did. on December 15, following the election
make cash payments to production employees at the facil-
ity, but not to drivers. The Employer contends that these
payments were made pursuant to, and the timing was com-
pelled by, a previously announced profit-sharing plan for
production employees, excluding drivers, at the South Be-
loit facility. Employees at the Brodhead facility were not
involved.
Since some time prior to February. 1978. Hiland Homes.
a corporation owned by Gene Scott, who also owns Am-
wood Homes, had been producing houses at the South Be-
loit facility, using the same employees, equipment and pro-
cesses as presently performed by Amwood at this facility.
In an internal transaction designed to aid Amwood in cal-
culating costs on the houses. Hiland would then sell the
houses to Amwood.6 About February, 1978, following the
close of Hiland's fiscal year January 31, Scott established a
profit-sharing or incentive plan for South Beloit's Hiland
production employees. He also switched the employees
from a weekly to a hi-weekly pay period, to facilitate the
later transition from Hiland to Amwood. It is undisputed
that at a meeting of Hiland's employees during February.
Doug Scott, son of Gene Scott, and Russell Klatt informed
the production employees of the plan and explained it to
them, giving each employee a written summary of the plan.
Although substantial rights to change the plan were re-
served by management, no evidence of bad faith or intent
to depart from the plan was adduced. and I do find that the
plan was implemented in good faith well prior to the Peti-
tioner's contact with Amwood's employees.
About March 8, Hiland's functions were assumed by
Amwood, whose fiscal year ended November 30. The inter-
nal appellation "Amwood Systems" was used, replacing
"Hiland Systems". The Employer introduced internal busi-
ness records, prepared by Klatt and transmitted bi-weekly
at the end of each payroll period, to President Gene Scott.
concerning at first the performance of Hiland (later of Am-
wood Systems), the production branch. Although these
were purely internal, and were based on charges set up by
Scott and billed between units of businesses he owns, I do
credit the testimony of Klatt that he prepared and trans-
mitted these documents during the months prior to the on-
set of the organizing campaign. No amounts were actually
set aside or earmarked for payment of the funds, and in fact
these records indicate that at least up until about Septem-
ber, 1978. the production facility was not showing a "year
to date" profit.
Petitioner has raised several discrete points in its Objec-
Thus Amwood "purchased" the output of the production employees at
the South Beloit "Hiland" facility, and advertised, sold and delivered the
finished homes through the Amwood organization, which also directl) em-
ployed the truck drivers. Presently Amwood Homes purchases the raw mate-
rials and performs the marketing, selling and delivery functions and also
purchased the output of the South Beloit production employees. The South
Beloit production organization formerly known as Hiland Systems, is now
referred to as "Amwood Systems" but is not a separate legal entity.
tion to the Employer's conduct respecting the plan: first.
that the employees, prior to the time of Petitioner's demand
for recognition about September 15 were not assured of
receiving anything; second, that Scott. probably about Sep-
tember 18 in a conversation with Koss, advanced the pay-
ment date from January 31, 1979, to November 31, 1978,
and then distributed a campaign leaflet with the November
date shown on it; third, that the amounts of the payments.
which had been non-existent so far as employees knew until
September suddenly grew miraculously with each new an-
nouncement as Petitioner's campaign progressed, including
the so-called "bonus house"; and finally., that to affect the
outcome of the election Amwood rescheduled payment
from November 31 to December 15. the date of the elec-
tion. Amwood did have a profit sharing plan for production
employees and was in proper time sequence performing the
paper work to administer the plan. I find that, whether or
not employees were told the significance to the plan of the
switch in fiscal years accompanying the switch from Hiland
to Amwood that the fiscal year did change when Amwood
assumed Hiland. I also find, crediting the testimony of'
Gene Scott, that his reference in the letter dated September
18 to a January 31 cut-off date for the plan was inadver-
tent that that letter was in fact only a rough draft not
given out to employees in this unit, and was corrected by
the letter dated September 19, after Scott discovered the
error during his conversation with Koss about that date. It
is true that Amwood made substantial campaign mileage
out of the plan once Petitioner's campaign began. and that
the amounts published as being due employees dramati-
cally increased during the final three months of' the plan.
Plant Manager Klatt testified at the hearing, supported
by his bi-weekly profit reports, that during the summer Am-
wood was making up for early fiscal year production losses.
and that during September. October and particularly No-
vember, the production facility began showing an actual
profit. distributable under the profit-sharing plan. It is clear
that the fiscal year cut-off was in fact November 30. Shortly
befo)re that date, employees were told that if they completed
a particular house. the "bonus house", before that time, the
profit from its "sale" to Amwood Homes would be includ-
able.
The house was completed and the profit included. I
credit Amwood's explanation that the payments were made
on December 15. the first regular pay day following conclu-
sion of the fiscal year, because the computations were not
concluded in time for payment with the December I pay
day. Payment of the profit sharing bonus at some other
time between December I and December 15 would not
have lessened any impact on the election.
It is true that the calculations on "profit" were only pa-
per transactions, and the "profit" did increase remarkably
just prior to the election. Nonetheless. I am unable to find
that Amwood deviated from the plan or changed its bene-
fits in response to Petitioner's organizing campaign. Rather.
Amwood was making permissible campaign mileage of
publicizing it and was performing a legally necessary duty
in making the payments. Dominio of Cliffornia, Inc.. 205
NLRB 1083: Lamb-Weston. Inc.. 214 NLRB 412.
'The election was not directed until about November 21 (Ir. 168): thus
communication of the change occurred well prior to this date.
1008