Checker Motors Corp.

National Labor Relations Board - Board Decisions

Oct 12, 1977

232 N.L.R.B. 1077 (N.L.R.B. 1977)

CHECKER MOTORS CORPORATION
Checker Motors Corporation and Office and Profes-
sional Employees International Union, Local 10,
AFL-CIO. Cases 7-CA-13250 and 7-RC-13472
October 12, 1977
DECISION, ORDER, AND
CERTIFICATION OF RESULTS OF
ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On May 16, 1977, Administrative Law Judge
James M. Fitzpatrick issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent filed a brief in support of the Administrative
Law Judge's Decision and in answer to the General
Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,1 and conclusions of the Administrative Law
Judge and to adopt both his recommended Order
and his recommendation that Petitioner's objections
to conduct affecting the results of the election held
July 30, 1976, be overruled in their entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Office and Professional
Employees International Union, Local 10, AFL-
CIO, and that said labor organization is not the
exclusive representative of all the employees, in the
unit herein involved, within the meaning of Section
9(a) of the National Labor Relations Act, as
amended.
' The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
232 NLRB No. 167
Inc., 91 NLRB 544 (1950)., enfd. 188 F.2d 362 (C.A. 3. 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
JAMES M. FITZPATRICK, Administrative Law Judge: The
questions here are whether, in advance of a representation
election, management officials made statements sufficient-
ly coercive to be unfair labor practices or grounds for
setting aside the election. As set out below, I find
management made no statements amounting to either
unfair labor practices or grounds sufficient to set aside the
election.
The genesis of these consolidated unfair labor practice
and representation proceedings is fully set out in the
complaint and the Regional Director's Supplemental
Decision on Objections attached thereto. Briefly, on
February 5, 1976,1 the Union filed a petition (Case 7-RC-
13472) with the National Labor Relations Board (the
Board) seeking a representation election among Respon-
dent's plant clerical employees. In the resulting election
conducted July 30, five ballots were cast for representation
by the Union, seven were cast against, and there were no
challenged ballots.
On August 6 the Union filed timely "objections to
election" and also filed unfair labor practice charges
against Respondent (Case 7-CA-13250). On September 30,
a complaint based upon the charges issued alleging that
Respondent during the preelection period engaged in
unfair labor practices prohibited by Section 8(a)(1) of the
National Labor Relations Act, as amended (the Act). The
Regional Director appended to the complaint his Supple-
mental Decision on Objections to Conduct of Election in
the representation case in which he overruled the stated
objections filed by the Union but indicated that investiga-
tion revealed additional conduct which might be objection-
able and which was alleged in the complaint as unfair labor
practices. He ordered the unfair labor practice case and the
representation proceeding consolidated for the purposes of
hearing, ruling, and decision by an Administrative Law
Judge.
On October 8 Respondent answered the complaint,
admitting the jurisdictional allegations, but denying it had
engaged in unfair labor practices. The issues posed were
heard before me at Kalamazoo, Michigan, on January 19,
1977. At the hearing, the General Counsel of the Board
further amended the complaint to add an additional
allegation of independent 8(a)(1) conduct which Respon-
dent then denied.
Upon the entire record, including my observation of the
witnesses and consideration of the briefs filed by the
General Counsel and Respondent, I make the following:
FINDINGS OF FACT
I. THE EMPLOYER INVOLVED
Checker Motors Corporation (herein Respondent) is a
New Jersey corporation engaged at Kalamazoo, Michigan,
All dates herein are in 1976 unless otherwise indicated.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the manufacture of automobiles and automobile parts.
For this work Respondent employs a substantial number of
employees including about 13 plant clericals. During
calendar 1975, a period representative of its operations, it
purchased and caused to be delivered to its Kalamazoo
plant goods and materials valued at over $100,000 of which
goods and materials valued in excess of $50,000 were
transported and delivered to it directly from points outside
Michigan, and during the same period it sold and
distributed at its Kalamazoo plant products valued in
excess of $500,000 of which products valued in excess of
$50,000 were shipped directly to points outside Michigan.
Based on the foregoing I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Office and Professional Employees International Union,
Local 10, AFL-CIO (herein the Union) is the party which
filed both the unfair labor practice charges and the
representation petition. The complaint alleges, the answer
admits, and I find, that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
IIi. THE ALLEGED UNFAIR LABOR PRACTICES
A. The June 14 Conduct of Johnson
Guthrie Johnson is head timekeeper at Respondent's
plant. The complaint as amended at the hearing alleges,
and Respondent denies, that on June 14 Johnson threat-
ened an employee with loss of existing benefits, such as 2-
week vacation pay, 2-week Christmas bonus, and I-week
sick pay, if the Union was selected to represent the
employees.
Ronald Sonicksen, a timekeeper who previously had
worked for Respondent, was rehired on June 14. He
testified that shortly before 7 a.m. that day he reported to
the office of Johnson to discuss his job. Assistant Head
Timekeeper William Hauke was also present. According to
Sonicksen, Johnson said he should be aware before he
talked to other employees that two of them, Chad
Kolodizieizyck and Chuck Whitfield, were trying to get a
union in, which would not be beneficial for the timekeep-
ers. Johnson felt the Company was giving the employees
adequate compensation, comparable with two other manu-
facturing plants in the area, and if the Union got in there
was a chance of a strike and loss of wages during the strike,
and also it was possible the employees could lose their 2-
week vacation time or their 2-week Christmas bonus which
was a gift from the Company, and I week of sick pay.
According to Sonicksen, Johnson stated that the Company
did not have to go along with anything that the Union set
up and he felt the Company was really looking out for the
employees. Sonicksen testified that the conversation lasted
about 15 minutes and ended with Johnson telling him to go
out into the plant and get acquainted with the ones
working out there and begin to work.
Johnson denied that he had such a conversation with
Sonicksen on the morning of June 14. According to him, he
only greeted Sonicksen on the occasion of his returning to
work for Respondent and made sure that he knew in which
department to work.
On this conflict I credit Johnson who testified in a more
lucid manner. Also, as noted later herein, Sonicksen in
testifying about other aspects of the case seemed confused
as to the timing of events and the significance of economic
strikes. By comparison Johnson's testimony is the more
credible.
B. The Conversations in July
1. The allegations
The complaint contains two allegations (which Respon-
dent denies) regarding statements on or about July 22.
These are (a) that Johnson and Hauke threatened employ-
ees with loss of existing benefits, such as 2-week vacation
pay, 2-week Christmas bonus, and I-week sick pay, if they
selected the Union as their representative, and (b) that
Hauke implied to an employee that his support of the
Union was futile because if the Union did win the
upcoming election employees would lose the 5 weeks' pay
benefits just referred to, they would start bargaining from
zero benefits, and they would have to bargain to get back
what they now had.
Some of the evidence offered in support of these
allegations deals with the subject matter but in only a
general way relate to the time alleged.
2. The second conversation of Sonicksen
Sonicksen testified that about 3 weeks after his reemploy-
ment on June 14 (which would place the time approximate-
ly in the first week of July) he initiated a conversation with
Hauke regarding work to be done. He was unsure whether
Johnson was also present. Sonicksen asked Hauke what the
Company could give him as opposed to what the Union
could give. Hauke replied that the Company was giving
adequate benefits and it would be detrimental to the
employees if the Union came in because there was a
chance of a strike and if the employees struck they would
lose their pay. In these circumstances Hauke felt it would
be far more advantageous for the situation to remain as it
was. After some prodding from counsel, Sonicksen further
testified that Hauke explained the loss of pay as including
not only loss of wages during a strike but also as a result of
negotiations in that the employees might not be able to get
everything they had had with the Company. They might
not be able to get back all of the 2-week Christmas bonus
which was a gift that the Company did not have to
continue and they would have to bargain from zero to get
back any pay, holiday pay, or sick pay.
On cross-examination, however, Sonicksen showed some
uncertainty. He placed his second conversation in or about
the third week of June, which would have been during his
first week of reemployment. He testified, "But the second
meeting, about the third week of June, Mr. Johnson or Mr.
Hauke used the phrase that we would be starting from zero
on bargaining when we bargained for the Union." He then
testified he was not sure who used the phrase "zero-based
bargaining" but he believed it was Johnson at the second
conversation and that Hauke used it at the next one. He
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CHECKER MOTORS CORPORATION
testified that he construed the use of that phrase to mean
that when the Union came in the employees would be
starting out from nothing trying to get back what they had
lost in company benefits. He was asked whether he was led
to believe that if the Union was voted in he would not be
paid anything and would not have any benefits whatsoever.
He agreed that was his position. He further testified, "Yes,
sir, I figured that when the Union came in, all right, those
benefits ceased, and then we would have to bargain to get
back anything that we had lost." He indicated that this
interpretation of what had been said was consistent with
the Company's position in the election campaign letters
they distributed.2
Johnson, a credible witness, denied ever telling Sonick-
sen he would lose fringe benefits if the Union got in.
However, Sonicksen did, on a date Johnson could not
recall, ask him what the benefits would be if the Union got
in, and Johnson replied: "And I said, Ron, it's real simple,
the benefits, the pay that you receive now, you keep until
they are changed by a contract, if a union gets in."
According to Johnson, specific benefits such as vacation
pay, Christmas bonus, or sick pay were not mentioned by
name. I credit Johnson over Sonicksen because in demea-
nor he was a more impressive witness and appeared more
responsive to questions. Further, Sonicksen was not too
accurate in reporting specific facts. Thus, with respect to
the July 22 letter, he testified he never received one, yet the
sense of his testimony is that he knew of the Company's
position as stated in its letters. Hauke testified that he
handed Sonicksen a copy of the July 22 letter. I find he did.
The July 22 letter was distributed by Hauke on July 22 or
23. He testified as follows:
I gave him [Sonicksen] the letter. I said the Company
has some facts here we would like you to read; some of
the things that I'd like to point out that are in the letter
are some of the things you presently have, will have to
be bargained for if the Union was elected. I said, one of
the other things I'd like to point out is another
employee had come up to me and told me that if the
Union got in, they would make between six and seven
dollars an hour. I said, there's no way the union can
guarantee you that ...
Hauke specifically denied using the phrase "zero-based
bargaining" because counsel had specifically instructed
him not to. He also at first denied specifically mentioning
vacation benefits, Christmas bonus, or sick pay. He finally
admitted that when he handed the July 22 letter to
Sonicksen he discussed the Christmas bonus, the vacation
pay, and sick pay by saying "some of the benefits you have
now [that] may be subject to bargaining is two weeks'
vacation pay, a week's sick pay and the two weeks'
Christmas bonus."
In spite of this change in his testimony I credit Hauke
over Sonicksen because of his demeanor, because generally
his recollection seemed to be more exact than Sonicksen's,
and because I think it likely he would have tracked the
company position set forth in the letters. In addition,
2 The two letters in question were dated July 22 and 27 and are attached
to the complaint.
Sonicksen's uncertainty as to the time he spoke with Hauke
and whether Johnson or Hauke first advised him of
Respondent's alleged zero bargaining position cast doubt
on the reliability of his recollection.
3. The conversations of Whitfield
Timekeeper Charles Whitfield testified that about a week
before the election of July 30, he and Hauke had a
conversation in the timekeeper's office in which Hauke
stated he would like to present the Company's point of
view regarding the Union. He first said the Company
would not like to see the Union come in; that he had been
in unions in the past and they had never done him any
good; and that dues could be quite expensive and mostly
just went for fancy cars for union executives. Then,
according to Whitfield, Hauke said that if the Union was
voted in Whitfield would lose 5 weeks' pay, and when
asked how he figured that, specified a week's sick pay, 2
weeks' Christmas bonus, and 2 weeks' vacation pay. They
then discussed the bargaining process.
On cross-examination Whitfield was asked if he had any
discussions with Hauke as to what happens to employee
benefits when employees strike. Whitfield referred to the
conversation reported above. He was then asked: "Okay.
And did he (Hauke) outline for you what benefits you
might lose if you went on strike?" Whitfield answered,
"Just the five weeks' pay, two weeks' vacation, two weeks'
Christmas, and a week's sick time." Then he recanted and
denied any recollection of discussing with Hauke losses
which might result from going on strike other than the fact
that employees would be subject to picket duty. He denied
that Hauke said employees would lose wages if they struck
or would lose fringe benefits. He then related the
possibility of such losses solely to the event of the Union
being voted in.
About the same time as this conversation, according to
Whitfield, Johnson handed him the Company's letter of
July 22. Johnson, on the other hand, credibly denied that
he handed the letter to Whitfield or to any other employee.
He testified Hauke was designated that chore. On his part
Hauke recalled handing the July 22 letter to Whitfield on
July 22 or 23 and telling him that they would have to
bargain for some benefits if the Union got in, and that
employees would not get a $6 or $7-per-hour raise as
predicted by another employee because the Union could
not guarantee it. Hauke went on to deny saying to
Whitfield that if the Union was voted in employee fringe
benefits would be taken away. But later in his testimony, he
admittted stating the following:
I said, some of the benefits you have now are two
weeks' vacation pay; a week's sick pay and two weeks'
Christmas bonus. I said those things are things that
would have to be bargained for if the Union won the
election.
The following week they had another discussion at which
Sonicksen and others were present when Whitfield asked
him what would happen if the Union won the election and
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
went on strike. Hauke testified he gave the following
response:
I said I really don't know for sure, but I think that if
you went out on strike, you would be, in effect, saying
that you no longer want to work for the company under
these conditions. So I would think that you would not
have any of the benefits you now have. But I don't
know for sure. But if you want, I can set up an
appointment with Art Sampson, because I am sure he
would know.
Sampson is Respondent's personnel director. Whitfield
replied it would not be necessary to set up an appointment
with Sampson.
Regarding the conflicting testimony of Whitfield and
Hauke, I credit Hauke because Whitfield appeared to be
testifying to facts to support the conclusion he desired.
Both Whitfield and Sonicksen seemed confused as to the
rights of the parties in a situation where bargaining is in
progress but no strike is in effect, as distinguished from a
situation where bargaining continues during a strike. As a
result they seem unreliable sources of evidence as to the
precise company position.
On the other hand they agree that the company position
as asserted in statements by Johnson and Hauke were also
set forth in the Company's letters of July 22 and 27. Those
letters do not indicate an intention to penalize employees
by unilaterally taking away benefits if they selected the
Union. The letters indicate, as do the verbal statements of
Johnson and Hauke as reported by them, that the benefits
enjoyed by the employees would be the subject of
bargaining. Hauke's verbal statements specifically identi-
fied some of these benefits as the vacation pay, the
Christmas bonus, and the sick pay. For such a position to
be taken by an employer is not unlawful. Ludwig Motor
Corp., 222 NLRB 635 (1976). I find, therefore, that
Respondent did not engage in unfair labor practices within
the meaning of Section 8(a)(1) of the Act as alleged in the
complaint.
C. Summary of Fact Findings
In sum, I find that Johnson did not threaten Sonicksen at
the time he was reemployed with the loss of existing
benefits such as 2 weeks' vacation pay, 2 weeks' Christmas
bonus, and I week's sick pay, if the Union won the
election. I further find that neither Johnson nor Hauke
prior to the election threatened either Sonicksen or
Whitfield with loss of those benefits if the employees
selected the Union. I find that neither Johnson nor Hauke
used the expression "zero-based bargaining" or similar
words in conversations with Sonicksen or Whitfield. I find
that on some occasions Hauke stated that if the employees
chose the Union the specific benefits mentioned above
"may be subject to bargaining" and on other occasions
said those benefits "would have to be bargained for if the
Union won." As already noted, I find those comments
were not unfair labor practices.
IV. THE OBJECTIONS
In his Supplemental Decision on Objections to Conduct
of Election the Regional Director noted that certain
conduct disclosed in the investigation could possibly be
objectionable and that the same conduct is alleged in the
complaint as unfair labor practices. The Director ruled that
the question of whether such conduct was objectionable
should be resolved in this proceeding. He classified this
additional conduct in two categories:
i. Alleged threats to one or more employees by Head
Timekeeper John (sic) Johnson and Assistant to the Head
Timekeeper William Hauke that employees would lose
their 2-week vacation pay, 2-week Christmas bonus, and I-
week sick pay if they selected the Union as their
representative for the purpose of collective bargaining.
2. Alleged statements to an employee by William
Hauke that his assistance to and support of the Union were
futile because if the Union did win the election, the
employees would lose the above-described 5 weeks' pay
and they would have to start bargaining from zero and
have to bargain to get these benefits back.
In accordance with the findings of fact herein relating to
unfair labor practices I find that with respect to category 1,
above, no threats were made by Johnson or Hauke and no
objectionable conduct in the form of threats by them has
been established.
With respect to category 2, above, I find that the
evidence does not establish that Hauke told employees that
they would inevitably lose the benefits they already
enjoyed, that they would have to start bargaining from zero
and have to bargain to get back benefits they already had. I
find that Hauke stated at one point that the benefits
specified above in category 1 may be subject to bargaining
and at another point stated that they would have to be
bargained for. Such statements do not necessarily imply
that employees would lose those benefits through unilateral
action of the employer or as a result of bargaining with the
Union. They only imply that benefits in the future would
have to be the result of collective bargaining. The
statements in question were permissible expressions of
employer views regarding the nature of collective bargain-
ing and its possible effects on terms and conditions of
employment. Such statements do not warrant setting aside
the election. White Stag Mfg. Company, 219 NLRB 1246,
1248-50 (1975); Computer Peripherals, Inc., 215 NLRB 293,
294 (1974); Ludwig Motor Corp., supra.
Based on the foregoing I conclude that Respondent
engaged in no objectionable conduct warranting the setting
aside of the election and I recommend that the results of
the election be certified.
CONCLUSIONS OF LAW
i. Checker Motors Corporation is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Office and Professional Employees International
Union, Local 10, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. Respondent has not engaged in unfair labor prac-
tices within the meaning of Section 8(a)(l) of the Act by
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CHECKER MOTORS CORPORATION
threatening employees with loss of existing benefits such as
their 2 weeks' vacation pay, 2 weeks' Christmas bonus, and
1 week's sick pay if they select the above-named Union as
their representative for purposes of collective bargaining or
by implying to employees that their support of the above-
named Union was futile because if the Union did win the
election the employees would lose the benefits mentioned
above and would start bargaining from zero benefits and
would have to bargain to get these back.
3 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec.
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 3
The complaint is dismissed in its entirety.
IT IS FURTHER RECOMMENDED that the Board overrule all
objections to the election conducted July 30, 1976, and that
the results of the election be certified.
102.48 of the Rules and Regulations, be adopted by the board and become
its findings. conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
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