Computer, Peripherals, Inc.

National Labor Relations Board - Board Decisions

Dec 5, 1974

215 N.L.R.B. 293 (N.L.R.B. 1974)

COMPUTER PERIPHERALS, INC 293
Computer Peripherals , Inc. and District Lodge 155 of
the International Association of Machinists and
Aerospace Workers, AFL-CIO, Petitioner. Case
26-RC-4792
December 5, 1974
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
By CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election approved on June 3, 1974, an election
by secret ballot was conducted under the direction and
supervision of the Regional Director for Region 26 on
June 27, 1974, among the employees in the stipulated
unit. At the conclusion of the election the parties were
served with a copy of the tally of ballots which showed
that of the approximately 182 eligible voters, 170 valid
votes were cast of which 81 were cast in favor of, and
89 were cast against, the Petitioner. There were no
challenged or void ballots. Thereafter, the Petitioner
timely filed objections to the election.
Pursuant to Section 102.69 of the National Labor
Relations Board Rules and Regulations, Series 8, as
amended, the Regional Director conducted an investi-
gation and on August 7, 1974, issued his report on
objections and recommendations to the Board, of
which a pertinent portion is attached hereto marked
Appendix. The Regional Director found that the Em-
ployer's action in stating to the employees in a leaflet
and a speech that he would bargain from scratch was
objectionable conduct which interfered with the elec-
tion. Accordingly, the Regional Director recom-
mended that the election conducted on June 27, 1974,
be set aside and a second election directed. Thereafter,
the Employer timely filed exceptions to the Regional
Director's report.
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.
Upon the basis of the entire record in the case, the
National Labor Relations Board makes the following
findings of fact:
1. The Employer is engaged in commerce within the
meaning of the Act.
2. The labor organization involved claims to repre-
sent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of employees of the Employer within
the meaning of Sections 9(c)(1) and 2(6) and (7) of the
Act.
4. The parties stipulated, and we find, that the fol-
lowing employees constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
Included: All production and maintenance em-
ployees including quality assurance technicians,
check oui technicians, check out technicians II,
inspectors, general inspectors, utility assemblers,
material specialists, material specialists II, and
material handlers, at the Company's plant located
at 640 Massman Drive, Nashville, Tennessee. Ex-
cluded: All professional employees, managerial
employees, precision inspectors, mechanical qual-
ity assurance technicians, test equipment techni-
cians, calibration technicians, all other techni-
cians, office clerical employees, guards, watchmen
and supervisors as defined in the Act, as amended.
5. During the course of investigating Petitioner's ob-
jections, the Regional Director discovered that the Em-
ployer had stated to his employees, both in a leaflet
distributed to them on May 7 and a speech delivered on
June 26, that he would bargain from scratch if the
Union were certified. The leaflet was distributed prior
to the time the petition was filed, but remained posted
on the plant bulletin board throughout the campaign
and was therefore considered by the Regional Director
in his report. The portions of the leaflet found objec-
tionable were:
2. Will the Union take away any benefits we al-
ready have?
Answer: In the area of wages, hours, and working
conditions, bargaining starts from scratch. We do
not know at this time what the eventual outcome
of any bargaining sessions might be.
3. Is there a federal law that says once a benefit is
given it cannot be taken back?
Answer: No. Only legally required wages, benefits,
and working conditions such as OSHA, Social
Security, minimum wages, etc. must be provided.
All other wages, benefits, and working conditions
beyond this are provided to keep us more competi-
tive in the area.
In his June 26 speech, Plant Manager Holmquist
stated to gathered employees:
Now I'm sure you have been told your wages and
benefits could only get better. But if you think I
am going to start bargaining from where you are
now you've got another think coming. I'm going
to start from scratch, a minimum proposal. If the
Union wants something like checkoff of union
dues or preferred security for stewards they may
215 NLRB No. 22
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have to exchange vacations, paid sick time or some
other superior benefit you now have in order to get
these things. Bargaining is just that , give and take.
After finding the Petitioner's other objections to be
without merit and recommending that they be
overruled,' the Regional Director found Respondent's
conduct in making the above statements sufficient to
set aside the election. He based his recommendation on
Saunders Leasing System, Inc., 204 NLRB 448 (1973),
enfd. in relevant part 497 F.2d 453 (C.A. 8, 1974), in
which the Board set aside an election, adopting the
Administrative Law Judge's finding that the em -
ployer's statements were meant to and did leave, the
impression that all existing benefits would unilaterally
be eliminated if the union were successful in its cam-
paign and that what the employees ended up with
would depend in large measure upon what the union
could induce the respondent to restore.
We find Saunders Leasing System, Inc., supra to be
distinguishable. Instead, we find the facts herein to be
analogous to those in Wagner Industrial Products Com-
pany, Inc., 170 NLRB 1413 (1968), in which the Board
found that in the context in which they were uttered,
the main thrust of the employer's remarks was that the
mere designation of a union would not automatically
secure to employees a large increase in wages and bene-
fits and there was no specific implication that Respond-
ent intended to adopt a bargaining posture offering
employees less than they were receiving. Similarly, in
the instant case the Employer's remarks carried no
implication that any benefits would be taken away uni-
laterally if the Petitioner were designated as the bar-
gaining representative of the employees; rather the em-
phasis was on the possible results of lawful bargaining
with that Union. Thus, the Employer stated that the
eventual outcome of employee benefits depended on the
give and take of bargaining, wherein certain benefits
might be reduced or taken away but other benefits
could be incre sled or initiated in exchange While the
Employer stated that it would make a minimum inii al
bargaining proposal, we can find in its remarks no
express or implied threat that it would unilaterally take
away benefits and require the Union to negotiate to get
them back, especially in the absence of other threaten-
ing remarks. See Stumpf Motor Company, Inc., 208
NLRB 431 (1974). We find, therefore, that the Em-
ployer's statements were no more than expressions of
views as to the nature of collective bargaining and the
effects it could have on the terms and conditions of
employment. Accordingly, we shall certify the results
of the election.
' No exceptions were taken to these recommendations, which we there-
fore adopt pro forma.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for District Lodge 155 of the
International Association of Machinists and Aerospace
Workers, AFL-CIO, and that said labor organization
is not the exclusive bargaining representative of all the
employees in the unit herein involved within the mean-
ing of Section 9(a) of the National Labor Relations Act,
as amended.
MEMBER FANNING, dissenting:
I agree with the analysis of the Regional Director
and would affirm the decision set forth in his report on
objections for the reasons set forth therein.
APPENDIX
In support of its contention that the Employer
threatened employees that if the Union was voted in
bargaining would start from scratch, the Petitioner
submitted a leaflet which was distributed by the Com-
pany on or about May 7, 1974, and presented several
employee witnesses who testified that Holmquist, in a
speech on June 26, said that negotiations would not
start with the wages the employees were already mak-
ing but would start from scratch.
Although the Employer's leaflet was distributed on
or about May 7, which is prior to the date that the
petition was filed, Holmquist stated that the leaflet
remained posted on the plant bulletin board through-
out the campaign. Thus, the content of the material can
be considered.
The leaflet attached hereto as Exhibit 1 is in the form
of questions and answers . Holmquist stated that in a
meeting conducted on May 7, questions asked by the
employees were compiled and written answers were
prepared and a response given in the attached leaflet.
Questions 2 and 3, on the first page of the leaflet, are
in regard to the status of employee benefits. These ques-
tions and answers are as follows:
2. Will the Union take away any benefits we
already have? Answer: In the area of wages, hours
and working conditions, bargaining starts from
scratch. We do not know at this time what the
eventual outcome of any bargaining sessions might
be.
3. Is there a federal law that says once a benefit
is given it cannot be taken back?
Answer: No. Only legally required wages, bene-
fits, and working conditions such as OSHA, Social
Security, minimum wages, etc. must be provided.
All other wages, benefits, and working conditions
beyond this are provided to keep us more competi-
tive in the area.
COMPUTER PERIPHERALS, INC 295
In addition to the above- mentioned statements con-
tained in the Employer's leaflet, a similar statement
was made in Holmquist's speech given at approxi-
mately 1.00 p.m. on June 26. A copy of Holmquist's
prepared text of the pertinent portion of the speech is
attached hereto as Exhibit 2.
Turning first to the leaflet, Holmquist's reply that
bargaining starts from scratch must be viewed in the
context in which it is made; that is, a response to a
question concerning the possible reduction of benefits.
Holmquist's response is then followed by a statement
to the effect that benefits once conferred are not neces-
sarily retained. The clear implication from Holmquist's
written responses is that the employees' existing bene-
fits would be eliminated for purposes of bargaining. For
those employees who may have missed the implication
contained in the leaflet Holmquist provided a clear
explanation of his position in his June 26 speech. Thus,
on the day before the election, Holmquist said to the
gathei ed employees:
But if you think I am going to start bargaining
from where you are now you've got another think
coming. I'm going to start from scratch , a mini-
mum proposal.
Holmquist's threat to bargain from scratch, when
viewed in the context in which it was presented to the
employees, is clearly the type of threat which the Board
found to constitute a violation of Section 8(a)(1) in
adopting the Administrative Law Judge's Decision in
Saunders Leasing System, Inc., 204 NLRB 448. The
Board's Order was enforced on this point by the Eighth
Circuit Court of Appeals [(497 F.2d 453 (C.A. 8,
1974)]. In view of the foregoing, it is found that the
Employer, by threats to bargain from scratch contained
in the May 7 leaflet and Holmquist's speech of June 26,
interfered with the conduct of the election in this case
and merit is found to this contention.