Comet Electric

National Labor Relations Board - Board Decisions

Sep 20, 1994

314 N.L.R.B. 1215 (N.L.R.B. 1994)

1215
314 NLRB No. 195
COMET ELECTRIC
1 All dates are in 1991 unless otherwise indicated.
2 The Board, in an unpublished Order dated August 28, 1991,
adopted the Acting Regional Director’s recommendation that the
challenges to eight ballots be sustained, that the challenge to one
ballot be overruled, and that the seven remaining challenges be re-
solved by a hearing. At the hearing, the parties stipulated that six
of the remaining challenged voters are ineligible to vote, and that
the other remaining challenged voter is eligible. In light of this dis-
position, the two challenged ballots cast by eligible employees are
not determinative, and it is unnecessary to open and count their bal-
lots.
3 We agree with the hearing officer’s recommendation to overrule
Petitioner’s Objection 9 concerning the consumption of alcohol near
the polling place for the reasons stated in the hearing officer’s re-
port. Members Browning and Devaney note in addition that there
was no clear proof that the Employer purchased and/or provided the
alcohol.
Comet Electric, Inc. and International Brotherhood
of Electrical Workers, Local 323, AFL–CIO,
Petitioner. Case 12–RC–7404
September 20, 1994
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN GOULD AND MEMBERS STEPHENS,
DEVANEY, BROWNING, AND COHEN
The National Labor Relations Board has considered
objections to an election held March 21, 1991,1 and
the hearing officer’s report recommending disposition
of them. The election was conducted pursuant to a
Stipulated Election Agreement. The tally of ballots
shows 5 for and 10 against the Petitioner, with 16
challenged ballots.2
The Board has reviewed the record in light of the
exceptions and brief, and has adopted the hearing offi-
cer’s findings and recommendations3 only to the extent
consistent with this decision.
The Petitioner’s Objection 6 contends that the Em-
ployer interfered with the employees’ free choice by
requiring their attendance at a ‘‘captive audience’’
speech after their normal quitting time, without pro-
viding them full compensation for the time spent at the
meeting and without distributing the employees’ pay-
checks until the meeting concluded.
The following facts are not in dispute. On the morn-
ing of March 14, 1 week before the election, the Em-
ployer told its employees to report back to the shop at
3 p.m. for a meeting. The employees’ regular quitting
time is 4 p.m. Virtually all of the employees reported
for the meeting, as instructed. At the meeting, which
lasted from 3 to 5 p.m., the Employer’s two co-owners
made an antiunion speech to the assembled employees.
None of the employees left the meeting or asked to
leave while it was in progress.
Although the employees regularly receive their pay-
checks on Thursdays at 4 p.m., on March 14, a Thurs-
day, the employees were not paid until the meeting
concluded at 5:30 p.m. As employee Allan Osier ex-
plained, ‘‘[D]uring this meeting they hadn’t paid us so
we wanted to get paid so everybody stayed.’’
Osier testified that after the meeting he suggested to
several of his coworkers that they include the time
spent at the meeting on their weekly timecards. Two
employees claimed 3 hours for attending the meeting,
another employee claimed 2 hours, and a few claimed
1 hour. Most employees, however, did not claim any
time for the meeting.
None of the employees received full compensation
for the time spent at the meeting. Employees who did
not specifically request payment past 3 p.m. received
nothing. Employees who requested payment for 1 to 3
hours for the meeting received only 1 hour of pay for
the period 3 to 4 p.m. The Employer refused to pay
any employee for the 1-1/2 hours spent at the meeting
beyond the employees’ regular 4 p.m. quitting time.
On the following payday, which was the day of the
election, Osier requested to see his timecard and no-
ticed that the time he had claimed for the meeting had
been changed from 3 hours to 1 hour. When he asked
about this change, the Employer’s bookkeeper said
‘‘she could not pay everybody for that meeting and she
said—and something to the effect that I started this all
and she would not pay me for it.’’
On these facts, the hearing officer found it unneces-
sary to decide whether refusing to pay employees for
time spent at a captive audience speech beyond their
regular quitting time and failing to distribute pay-
checks until the meeting ended would constitute objec-
tionable conduct. The hearing officer instead concluded
that there was ‘‘no factual basis’’ to support such an
objection. He noted that employees who asked to be
compensated for the meeting were paid for 1 hour. He
also found that no employee requested his or her pay-
check before the meeting began or during the meeting,
and that there was no evidence that such request, if
made, would have been denied.
Contrary to the hearing officer, we find Objection 6
to be well supported by the record. Initially, we reject
any implication in the hearing officer’s report that the
employees’ attendance at this meeting was voluntary.
Thus, on March 14, the Employer explicitly directed
the employees to return to the shop at 3 p.m. to attend
the meeting. The meeting then began during the em-
ployees’ workday, when the Employer had the recog-
nized authority to direct its work force, including re-
quiring their attendance at company meetings. Further,
although the employees’ shift ended at 4 p.m., the
meeting continued thereafter without interruption, ten-
der of paychecks, or assurances from the Employer
that employees were free to leave. In these cir-
cumstances, it is unlikely that employees would feel
free to stand up and leave at their normal quitting
time, in the midst of the Employer’s presentation.
1216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Cf. House of Raeford Farms, 308 NLRB 568, 570–581 (1992),
enfd. 7 F.3d 223 (4th Cir. 1993).
5 Peerless Plywood Co., 107 NLRB 427, 429 (1953).
6 Member Devaney would find the Employer’s conduct with re-
spect to the captive audience speech objectionable under all the cir-
cumstances. Thus, in addition to factors identified by his colleagues,
Member Devaney notes that the employees were required to remain
at the workplace and listen to the antiunion speech on their own time
after the workday had ended under coercive circumstances in which
they would reasonably fear that any attempt to leave would mark
them as union supporters and subject them to the risk of reprisals.
In this regard, Member Devaney also notes that the Employer spe-
cifically tied its refusal to fully compensate employees for the time
spent at the meeting to Osier’s protected activities in encouraging his
coworkers to request full compensation.
1 Cf. Martin Industries, 290 NLRB 857 (1988) (withholding reg-
ular annual wage increase during representation campaign without
giving employees lawful explanation violates the Act). I would not
equate failure to give an expected pay increase with the Employer’s
apparent failure here to take scrupulous care that the employees were
compensated for every minute spent listening to the speech.
2 Cf. Peoria Plastic Co., 117 NLRB 545, 547 (1957) (home visits
by high company officials urging rejection of the union found objec-
tionable regardless of whether the officials’ actual remarks were co-
Rather, employees reasonably would fear that by walk-
ing out during the owners’ speech against the Union,
they would publicly identify themselves as union sup-
porters and invite retaliation.4 In addition, because the
Employer withheld the employees’ paychecks during
this meeting, it is unreasonable to expect employees to
leave before being paid. Accordingly, we find that em-
ployee attendance at the March 14 meeting was man-
datory, and that employees were compelled to remain
for its entire 2-1/2-hour duration.
In addition to requiring its employees to attend the
meeting, we find that the Employer did not pay them
for their attendance. Thus, as noted above, it is clear
that the Employer’s speech continued well past the
normal 4 p.m. quitting time, and that no employee was
compensated for the 1-1/2 hours between 4 and 5:30
p.m. Indeed, most employees were not even paid for
the 1 hour of the meeting that occurred during the 3
to 4 p.m. portion of their usual workday.
Although the hearing officer acknowledges that em-
ployees may not have been fully compensated for at-
tending the March 14 captive audience speech, he con-
cludes that any loss they suffered was monetary and
would not be remedied by setting aside the election.
We disagree, and we conclude that the election should
be set aside. In this regard, we note that the captive
audience speech was occasioned by the Union’s cam-
paign. Because of that speech, employees were re-
quired to give uncompensated time to the Employer. In
addition, the employees were required to endure the
uncompensated meeting as a condition of receiving the
pay that was due them. In these circumstances, em-
ployees would reasonably perceive that the Union’s
campaign had caused them to suffer an economic det-
riment. Although under Peerless Plywood5 and its
progeny, the Employer was privileged to conduct a
captive audience meeting for its employees on March
14, by failing to pay employees for the time spent in
the meeting and by delaying their paychecks, it effec-
tively punished them for seeking union representation.
Under these circumstances, we find that the Em-
ployer interfered with employee free choice by requir-
ing employees’ attendance at a captive audience
speech without fully compensating them for the time
spent at the meeting, and without distributing their
paychecks until the meeting concluded. Accordingly,
we sustain Petitioner’s Objection 6, set aside the elec-
tion, and direct that a second election be conducted.6
[Direction of Second Election omitted from publica-
tion.]
MEMBER STEPHENS, dissenting.
I think the hearing officer correctly overruled the
Petitioner’s objection to the manner in which the Em-
ployer conducted a ‘‘captive audience’’ speech.
Except for the 24-hour period preceding an election,
it is not unlawful for an employer to subject its em-
ployees during working time to such antiunion re-
marks. In the instant case, a week before the election,
1 hour before quitting time, on a day when paychecks
are distributed (normally at the close of business at 4
p.m.), the owners of the Employer assembled its work
force to deliver such a campaign speech. However, the
problem which gives this case its novel twist is that
the owners apparently became too loquacious: They
did not conclude the meeting at 4 p.m., but continued
talking for another hour and a half. As the hearing of-
ficer found, no employee left the meeting before it
ended, but there is no evidence that the Employer pre-
vented any employee from leaving after 4 p.m. Like-
wise, there is no evidence that the owners offered to
distribute the paychecks prior to the end of the meet-
ing, but neither is there any evidence that the owners
would have withheld checks from anyone who had at-
tempted to depart anytime after 4 p.m. While it is true
that the owners did not offer to pay the employees for
staying beyond the normal quitting time, it is also true
that no employee who made a claim for any time after
3 p.m. was paid less than he would have expected to
earn for working a regular shift that day.
In my view, this hearing record is simply too ambig-
uous to support my colleagues’ factual finding that the
employees were ‘‘compelled’’ to attend the entire
meeting, much less their legal conclusion that the em-
ployees reasonably perceived the union campaign as
causing the infliction of economic punishment. To be
sure, had the Petitioner, as objecting party, presented
evidence that employees were subjected to real eco-
nomic deprivation1 or trapped into submitting to one-
on-one barrages of antiunion rhetoric either during or
after working hours, the Board might well be justified
in finding objectionable conduct.2 However, given the
1217COMET ELECTRIC
ercive); General Shoe Corp., 97 NLRB 499, 501 (1951) (ordering
employees individually into managers’ offices to be lectured about
why they should oppose the union found objectionable). I do not see
the group meeting involved in the present case as having an equiva-
lent coercive potential.
3 The party challenging an election has the ‘‘burden of showing by
specific evidence at the hearing that 1) improprieties occurred, and
2) that they interfered with the employees’ exercise of free choice
to such an extent materially to have affected the election results.’’
Bell Foundry Co. v. NLRB, 827 F.2d 1340, 1343 (9th Cir. 1987),
citing NLRB v. Krafcor Corp., 712 F.2d 1268 (8th Cir. 1983). See
also NLRB v. Mattison Machine Works, 365 U.S. 123 (1961) (burden
of proof upon objecting party to show prejudice to the fairness of
the election); Caron International, 246 NLRB 1120 (1979) (even if
conduct is violative of the Act, under the circumstances it may be
of such a de minimis nature as to not affect the results of the elec-
tion).
With respect to Member Devaney’s reliance on alleged retaliation
against employee Osier’s ‘‘protected activities in encouraging his co-
workers to request compensation,’’ I note that the Petitioner has
never urged this distinct theory in support of its objection. It has
simply argued that the Employer implicitly required the employees
to stay beyond quitting time and that failure to pay employees extra
for this was objectionable.
inadequacy of the record, I think the majority has failed to set out a clear theory of how the employees
have been coerced in their choice of bargaining rep-
resentative.3