Coca-Cola Bottling Co.

National Labor Relations Board - Board Decisions

Aug 25, 1995

318 N.L.R.B. 814 (N.L.R.B. 1995)

814
318 NLRB No. 102
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 See Duo-Fast Corp., 278 NLRB 52(1986); Viacom, supra. See
also Weather Shield Mfg., 292 NLRB 1 (1988) (a promise to main-
tain the status quo is not misconduct); Best Western Executive Inn,
272 NLRB 1315 (1984) (employers can answer questions and re-
spond to employee requests for information); KCRA-TV, supra
(same).
2 See Etna, supra; Lutheran Retirement Village, 315 NLRB 103
(1994).
3 Whether or not information has been solicited by employees has
been one of the factors the Board has considered in deciding whether
there has been an implied promise of benefit. In Viacom the Board
noted the wage comparisons were distributed as a result of employee
requests. Viacom, supra at 1141 & fn. 3. Recently the Board found
an implied promise when an employer at a preelection meeting with
employees ‘‘sua sponte volunteered unexpected information,’’ con-
cerning the employer’s interest in offering a pension plan. Lutheran
Retirement Village, supra.
Coca-Cola Bottling Co. of Dubuque, Iowa and Wil-
liam R. Winter, Jr., Petitioner and General
Drivers and Helpers Union Local No. 421 a/w
International Brotherhood of Teamsters, AFL–
CIO. Case 33–RD–635
August 25, 1995
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND TRUESDALE
The National Labor Relations Board, by a three-
member panel, has considered the objections to an
election held on June 24, 1994, and the hearing offi-
cer’s report recommending disposition of them. The
election was conducted pursuant to a Stipulated Elec-
tion Agreement. The tally of ballots shows three for
and seven against the Union, with no challenged bal-
lots.
The Board has reviewed the record in light of the
Union’s exceptions and brief, and hereby adopts the
hearing officer’s findings and conclusions only to the
extent consistent herewith.
The hearing officer overruled all of the Union’s ob-
jections and recommended that the results of the elec-
tion be certified. The Union excepts to the hearing of-
ficer’s recommendation to overrule Objection 2, con-
tending that the Employer engaged in election mis-
conduct by an implied promise to grant benefits if the
employees voted against the Union. We agree with the
Union’s contention.
A. Pertinent Facts
During the 10 days prior to the decertification elec-
tion, the Employer held four to five special meetings
with the bargaining unit employees. At one meet-
ing,Regional Manager for Human Resources Bill
Cahill, distributed documents, which on their face indi-
cated they were prepared June 8, 1994, and which
compared benefits of bargaining unit employees with
those of nonbargaining unit employees. In addition to
a comparison of the nonbargaining and bargaining unit
health plans, the materials included a pension compari-
son, a benefit cost and tax comparison, and five esti-
mates of retirement savings under a 401-K plan that
was not currently available to union employees. All
these documents were prepared specifically for each
individual employee using the appropriate salary, age
and withholding exemptions for that employee. The
projections of retirement earnings under the 401-K
plan varied based on two different retirement ages, two
different rates of returns and three different savings
rates. Cahill told the employees to take the compari-
sons home and show their spouses.
At a subsequent meeting, Cahill conducted a slide
show presentation and answered questions from em-
ployees about benefit comparisons in the Employer’s
printout given to them the previous day. He told the
group that employees who belonged to the Union
could not participate in the employer’s 401-K plan. It
was also common knowledge that nonunion employees
companywide and at the worksite received these bene-
fits and participated in the 401-K plan. Finally, the
record shows that, after receiving the documents, some
employees asked additional questions of the Employer
including one employee who testified he met privately
with Cahill, who had made himself available for that
purpose.
B. Discussion
The hearing officer found that the Employer’s con-
duct did not create an implied promise of benefit to the
employees. He found the case to be more like Viacom
Cablevision of Dayton, 267 NLRB 1141 (1983), in
which the Board found wage comparisons between
union and nonunion worksites nonobjectionable, than
like Etna Equipment & Supply Co., 243 NLRB 596
(1979), in which the Board found an implied promise
in the employer’s distribution of individually tailored
comparisons of pension benefits. We disagree.
It is well settled that an employer may lawfully in-
form employees of the wages and benefits its nonunion
employees receive and respond to requests for informa-
tion from employees about such benefits.1 The Board
will set aside an election, however, where an implicit
promise of substantial benefit to employees is made,
because such a promise is deemed to interfere with
employees’ free choice in that election.2
We believe that the Employer’s conduct here
amounted to an implicit promise. Initially, we note that
the comparisons of bargaining and nonbargaining ben-
efits given to the unit employees were unsolicited.3
The hearing officer credited the testimony of two em-
ployees that they did not request the information. Fur-
thermore, there is no direct evidence that any em-
815COCA-COLA BOTTLING CO.
4 On cross-examination two employee witnesses testified that be-
fore the documents were distributed the 401-K plan was discussed
at a union meeting and also that some employees (although neither
of the two witnesses) had asked questions about the 401-K plan.
However, there is no evidence that the Employer became aware of
the union discussion before the information was distributed, nor is
there any indication of the occasion on which questions were asked
and of whom.’’
5 Compare Dallas Morning News, 285 NLRB 807 (1987), where
the Board dismissed an 8(a)(1) allegations against an employer who
circulated a notice about a sick pay plan excluding those covered by
the collective-bargaining agreement. The Board reasoned that an em-
ployer can provide accurate descriptions of the details and scope of
all its existing nonunion employee benefits so long as there are no
allegations of bargaining in bad faith. Id. at 808–809. The Employer
here did more than just accurately describe existing nonunion bene-
fits, however; it did exactly what Dallas Morning News proscribed
in distinguishing its facts from those in which it would find a viola-
tion: it used the presentation of the material as a ‘‘device to defeat
the Union by implicitly promising benefits to be accorded if the unit
employees voted to decertify the Union.’’ Id. at 809.
6 The example in which the Employer assumes a 10-percent em-
ployee savings rate and an 8-percent rate of return yields a retire-
ment fund of over $800,000.
7 In finding the Employer’s conduct unobjectionable, our dissent-
ing colleagues argues a position at odds even with that of the Em-
ployer. Contrary to our dissenting colleague, we find nothing in the
record establishing that the 401-K plan was ‘‘automatically available
to non-unit employees without the necessity of some decision by the
Employer to extend it to employees who were no longer in a collec-
tive-bargaining unit [emphasis added].’’ Indeed, it is clear that it was
the Employer’s position that it was not promising the 401-K plan to
the unit employees. In that regard, at the hearing, it elicited an af-
firmative response from employee Paul Green to the following state-
ment, ‘‘And at [no] time during any of those meetings did anyone
[from the Employer] promise you that you would get 401(k), the
health insurance or any other benefits there were available to non-
represented employees of Coca-Cola Enterprises.’’
We have, however, rejected the Employer’s position and found an
objectionable implicit promise of benefits in this case.
ployee requested this information from the Employer
before the materials were prepared on June 8 and dis-
tributed. Indeed, the Employer failed to present as wit-
nesses any company official indicating the documents
were prepared in response to employee requests, or for
that matter indicating why the documents were pre-
pared and when they were distributed.4 In these cir-
cumstances we find that testimony of general em-
ployee interest in the information after it was distrib-
uted or of discussions at union meetings, as described
in fn. 4 above, does not establish that the Employer
was responding to requests.
The record also shows that the Employer was
‘‘doing more than just ‘comparing’ nonunion bene-
fits.’’ Thus, the Employer provided comparisons of
benefits that were detailed and elaborate, consisting of
several pages of hypothetical figures individually tai-
lored to the employee’s age and salary level, as well
as five estimates of retirement savings under the 401-
K plan, all displaying the employee’s name. Such doc-
uments, accompanied by the slide show presentation
and the willingness of a high-level manager to meet in-
dividually with employees, make the Employer’s con-
duct more like the employer’s preparation of individual
pension comparisons involving IRAs found objection-
able in Etna, than like the wage comparisons found
nonobjectionable in Viacom.5
The speculative nature of the 401-K estimates is in
marked contrast to the comparisons distributed in
Viacom, which consisted of ‘‘statements of historical
fact’’ describing nonunion wages paid at different
company locations in the past. Here, the Employer dis-
tributed future-oriented projections as to what a given
employee would collect assuming various savings
rates, rates of return, retirement ages, salary growth
and employer contribution.6 With the exception of the
percentage the Employer at that point committed to
contribute, none of the numbers could be certain. The
hearing officer’s finding that these documents did not
‘‘rise to the level of extraordinary effort given the var-
ious computer programs available today,’’ focuses ex-
clusively on the Employer’s time and effort assumed
to be involved in preparing the documents and fails to
account for employees’ reasonably foreseeable reaction
to a presentation of elaborate multiple alternative sce-
narios tailored to each employee. Employees could rea-
sonably believe that the Employer would not go to
such lengths if it were not intending to bestow the ben-
efits upon the employees as soon as they voted to de-
certify the Union.
Finally, we note that the Employer did not offer any
type of disclaimer to counter the clear impression of
a promise of benefit. Since the comparisons and retire-
ment projections were distributed in a context in which
employees might be expected to know that the 401-K
plan was available to nonunion employees, we are left
to conclude that the Employer’s presentation here was
intended to alert the employees to, or reinforce, the
‘‘distinct possibility’’ that they were being promised
the nonunion health and 401-K plans. Compare Duo-
Fast Corp., supra; Viacom, supra.7
In sum, because the Employer, without a request by
employees, presented elaborate individualized benefits
comparisons and 401-K projections to each employee,
and made no effort to deny it was promising such ben-
efits should the employees vote out the Union, we find
that the Employer’s conduct constituted an implied
promise of benefit which warrants setting aside the
election and directing a second election.
[Direction of Second Election omitted from publica-
tion.]