Danadyne, Inc.

National Labor Relations Board - Board Decisions

Apr 27, 1970

182 N.L.R.B. 174 (N.L.R.B. 1970)

174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Danadyne , Inc. and Teamsters Local 35, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , Petitioner . Case 22-RC-4328
April 27, 1970
DECISION AND CERTIFICATION OF RESULTS OF
ELECTION
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
Pursuant to a Stipulation for Certification Upon Con-
sent Election approved by the Regional Director for
Region 22 on April 3, 1969, an election was conducted
on April 17, 1969, in the above-entitled proceeding,
under the direction and supervision of the said Regional
Director. At the conclusion of the election, the parties
were furnished with a tally of ballots which showed
that of approximately 41 eligible voters, 39 cast ballots,
of which 19 were cast for, and 20 were cast against,
the Petitioner. There were no challenged ballots.
Thereafter, the Petitioner filed timely objections to
conduct affecting the results of the election. On May
27, 1969, the Regional Director issued his report on
objections, order directing hearing, and notice of hearing.
The Regional Director found that since a decision as
to the merits of the objections depended on a resolution
of credibility, a hearing should be held before a duly
designated Trial Examiner for the purpose of receiving
evidence and resolving the issues raised; he directed
that the Trial Examiner prepare a report containing
findings of fact, including resolutions of credibility, and
recommendations to the Board as to the disposition
of said issues.
A hearing was held on July 16, 1969, before Trial
Examiner Boyd Leedom. The death of Trial Examiner
Leedom on August 11, 1969, prevented issuance of
a report on the matter. On October 20 and 21, 1969,
a hearing, de novo, was held before Trial Examiner
William F. Scharnikow. On November 24, 1969, Trial
Examiner Scharnikow issued his Report on Objections,
attached hereto, in which he found that certain state-
ments concerning a change in health insurance coverage
made to employees by Respondent's president and vice
president constituted an improper attempt on the part
of the Employer to influence its employees to vote
against the Petitioner in the April 17, 1969, election.
On the basis of this finding, the Trial Examiner recom-
mended that the April 17, 1969, election be set aside
and that a second election be conducted.' Thereafter
the Employer filed timely exceptions and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel.
' As there are no exceptions to the Trial Examiner's recommendations
that the remaining objections be overruled, we adopt, pro forma, the
Trial Examiner's recommendations as to them
The Board has reviewed the Trial Examiner's rulings
made at the hearing and finds that no prejudicial error
was committed. The rulings are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the
meaning of the Act and it will effectuate the purposes
of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of the 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 following
employees constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section
9(b) of the Act.
All production and maintenance employees
employed by the Employer at its Avenel, New
Jersey, location, excluding all professional employ-
ees, office clerical employees, guards, watchmen,
and supervisors as defined in the Act.
5. The Board has considered the Trial Examiner's
Report, the Employer's exceptions and brief, and the
entire record in this case, and hereby adopts the findings
and recommendations of the Trail Examiner only to
the extent they are consistent herewith.
We find in agreement with the Employer that it did
not engage in conduct which justifies setting aside this
election. On January 29, 1969, a month and a half
before the filing of the petition, employee Madurski
asked the Employer to investigate the possibility of
changing the Company's existing medical-health insur-
ance plan to one offered by Blue Cross. The Employer's
vice president, Britt, agreed to look into the matter.
On February 5, a Blue Cross representative discussed
with Britt the details of Blue Cross coverage, and Britt
instructed his accountant to obtain and analyze cost
figures from Blue Cross and other insurance companies.
Therafter, on a date in March, also prior to the filing
of the petition, Britt told Madurski that he, Madurski,
was right, Blue Cross benefits were superior. During
this period, the Employer continued its investigation
into Blue Cross coverage.
The petition was filed March 17. Shortly before the
election, which was held April 17, Madurski was in
Britt's office to talk about another matter, and Britt
mentioned, as Madurski was leaving, that the Employer
was "seriously looking into the Blue Cross-Blue Shield."
Britt made a similar statement to employee Gyure. In
speeches to employees 2 days before the election, the
Employer's president, Conklin, told employees they did
not need a union, truthfully pointed out that the Employ-
er had reviewed wages and benefits about the same
time the previous year (in May), and stated that employ-
ees' suggestions were always taken into account. The
Employer referred to the Blue Cross situation as an
example:
For instance, we have received some comments
that our health insurance and major medical plans
182 NLRB No. 26
DANADYNE, INC.
are good, but daily hospital rate allowances need
revision. Such comments as these are considered
when we make our annual review.
We find that the facts do not support the finding
of the Trial Examiner that the Employer improperly
"held" before employees the possibility of a change
to Blue Cross to influence their vote in the election.
Under Board law, the Employer had to continue consid-
ering any change in benefits that it had commenced
considering before the petition was filed, or it would
have appeared the Employer was punishing the employ-
ees because of their organizational efforts. Here, the
fact that the Employer was considering the insurance
change was known to employees as early as January,
a month and a half before the petition was filed; indeed,
it was a question from an employee at that time that
had prompted the Employer to consider the change.
Therafter, during the critical period, the Employer did
no more than advise employees the change was still
being considered. Aside from the fact that the Employer
had a duty to continue acting as it had before the
petition was filed, we believe the Employer had a right
to be judged on its past record with regard to employee
suggestions. Part of that record in the instant case
was its undertaking to consider a change to Blue Cross,
and, in our view, this was a legitimate point for the
Employer to make in the election campaign.
As we find that the Employer has not engaged in
any conduct which justifies setting the election aside,
and as the tally of ballots shows that a majority of
valid ballots has been cast against representation by
the Union, we shall certify the results of the election.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
ballots has been cast against representation by Teamsters
Local 35, International Brotherhood of Teamsters,Chauf-
feurs, Warehousemen and Helpers of America, and
that said Union is not the exclusive representative of
the employees in the appropriate unit, within the meaning
of Section 9(a) of the National Labor Relations Act,
as amended.
TRIAL EXAMINER'S REPORT ON OBJECTIONS
WILLIAM F. SCHARNIKOW, Trial Examiner: On May
27, 1969, the Regional Director issued his Report and
Order for a hearing on the Petitioner's objections to
the conduct of the Employer allegedly affecting the
results of a representation election which had been
conducted by the Regional Director in the above-entitled
case on April 17, 1969, and in which, according to
the official tally of ballots, 20 of the 39 valid votes
cast by eligible employees were cast against, and 19
for, representation by the Petitioner. In his report and
order, the Regional Director summarized the substance
of his investigation of the Petitioner's objections pur-
suant to Section 102.69 of the Board's Rules and Regula-
tions and, concluding that the objections and certain
other matters suggested by his investigation raised issues
of credibility, ordered that a hearing be held before
175
a duly designated Trial Examiner of the Board for
the purpose of receiving evidence and that, upon the
basis of such evidence, the Trial Examiner then prepare
and serve upon the parties a report containing his findings
of fact, including resolutions of credibility, and his rec-
ommendations to the Board as to the disposition of
the following issues which the Regional Director held
to be material on his consideration and investigation
of the Petitioner's objections:
(1) Did Thomas M. Britt, the Employer's vice presi-
dent, tell employees that the plant would close if the
Union (the Petitioner) won the election?
(2) Did Vice President Britt tell an employee that
certain employees would be fired for union activity?
(3) Did Vice President Britt interrogate an employee
as to the identity of those individuals who had signed
authorization cards for the Union?
(4) Did Vice President Britt tell employees that the
insurance plan was to be changed from Metropolitan
to Blue Cross?'
On July 16,1969, the hearing directed by the Regional
Director was held and oral evidence and exhibits were
received before Trail Examiner Boyd Leedom, the Trial
Examiner originally designated by the Chief Trial Exam-
iner. But Trial Examiner Leedom's death on August
11, 1969, prevented his issuance of a Report on the
matter.
Thereafter, in response to an order to show cause
issued by the Chief Trial Examiner on August 19, 1969,
and duly served upon the Regional Director, the Petition-
er, and the Employer; the Employer objected to the
designation of another Trial Examiner to consider the
matters referred by the Regional Director on the basis
of the record made in the hearing before Trial Examiner
Leedom and requested a hearing de novo. Accordingly,
on August 29, 1969, the Chief Trial Examiner issued
and caused to be served upon the parties an order
directing that a hearing de novo be held by a duly
designated substitute Trial Examiner on October 20,
1969.
Pursuant to this last order of the Chief Trial Examiner
and his second designation of a Trial Examiner in this
matter, a hearing de novo was held before me at Newark,
New Jersey, on October 20 and 21, 1969. The Regional
Director, the Petitioner, and the Employer appeared
by counsel and were afforded full opportunity to examine
and cross-examine witnesses and to introduce evidence
on the issues raised by the Regional Director's order
of reference. At the hearing, counsel for the Petitioner
submitted oral argument on the record in lieu of a
brief. On November 5, 1969, a brief was received from
counsel for the Employer.
' These four questions are, in substance, the questions referred to
the Trial Examiner by the Regional Director The order of their statement
has been rearranged to conform to the sequence in which they are
considered in the following sections of this Report It will be noted
that, for clarity and convenience of treatment after an introductory
section A, consideration of the related substance of questions (1) and
(2) has been combined in section B, and is followed by a separate
consideration of questions (3) and (4) in sections C and D, respectively
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the record of the hearing de novo before me,
my observation of the witnesses at the hearing, and
my consideration of the Petitioner ' s oral argument and
the Employer ' s brief , I make the following findings
of fact conclusions and recommendations
A Introductory Findings and Comments
The Petition for Certification of Representative origi-
nating this proceeding under Section 9(c) of the Act
was filed on March 19 , 1969 Thereafter the Petitioner
and the Employer executed a Stipulation for Certification
Upon Consent Election, which was approved by the
Regional Director on April 3, 1969 Under the stipulation,
the election was to be held and was held, on April
17, 1969
On April 3, 10, and 14, the Employer sent letters
to the employees in the election unit over the signature
of Thomas M Britt , the Employer ' s vice president,
and, on April 15 (2 days before the election) Britt
and President Charles Conklin of the Employer spoke
to the employees about the election at two meetings
in the plant , one held in the morning for the night-
shift employees and some of the employees on the
overlapping day shift and the other meeting held in
the afternoon for the remaining employees on the day
shift
In the letters, Britt urged the employees to vote
in the election , pointed out that their vote would be
secret , and expressed his belief that the employees
did not need a union , that their future and the Employer's
future would be "best served by a `No' vote," and
that a large majority of the employees did not want
a union and would vote "No " In the meetings with
the employees , Conklin said the Employer did not want
a union and Britt urged the employees to vote "No"
although he said the Employer would bargain with the
Petitioner if it won the election Britt and Conklin read
their remarks to the employees at both meetings from
prepared texts Britt added , at the afternoon meeting
but not at the morning meeting , that no employee would
be fired or in any way bothered, because he participated
in the union drive , the election , or union activity Britt's
letters and the prepared texts which he and Conklin
read at the meetings were received in evidence at the
de novo hearing before me
In the letter of April 10, Britt said among other
things, that "If you want to keep your wages and
not pay any union for the right to work here, you
should vote ` No'," and that "If you do not want the
possibility of the picket line or strike , you should vote
`No' " In its objections, the Petitioner originally referred
to these statements specifically , as well as to the letters
generally, as constituting grounds for setting the election
aside But in his report and order , the Regional Director
referred to the Trial Examiner for purposes of hearing,
findings, and recommendations , only the specific ques
tions which have already been noted In clarification
of this limited referral , he stated that
During the course of the [Regional Director ' s] inves-
tigation , the Petitioner withdrew all of its Objections
except that which protested alleged threats to close
the plant and to discharge employees because of
union activity As the Petititioner ' s withdrawal
includes the Employer ' s letter and other written
communications referred to in the Objections, no
ruling on them is required
However , the general attitude of the Employer in
opposition to it employees ' selecting the Petitioner as
their bargaining representative , as shown by Bntt's let-
ters as well as the speeches to the employees, is relevant
to my resolution of conflicting evidence on the matters
specifically referred to me by the Regional Director
And, in making my resolution of these conflicts, I have
considered the Employer ' s attitude as shown by Britt's
letters, although as will appear I have nevertheless
resolved the conflicts generally in favor of the Employ-
er's witnesses But the Regional Director ' s referral
excludes from my inquiry the consideration of any such
statements in the letters as grounds for setting the elec-
tion aside as was originally urged by the Petitioner
in its Objections
B Alleged Threats To Close or Move the Plant or To
Discharge Employees if the Petitioner Won the Election
To support its objection based upon alleged threats
by the Employer to close or move the plant if the
Petitioner won the election , the Petitioner produced
the testimony of John A Madurski, Jr , and Wayne
Rothrock , two of the mechanics employed in the election
unit Madurski testified that shortly before the election
on April 17, 1969, Vice President Britt stopped at
Madurski ' s work station and said that if the Union
won the election , Britt would shut the plant down
Madurski further testified that shortly after this, General
Foreman Alfonse Zyskowski told Madurski that Madur
ski knew that if the Union got in, Britt would shut
the plant down and Madurski would be out of a job
Rothrock , the Petitioner's second witness concerning
such threats , testified that a couple of weeks before
the election , when he stopped for a few minutes at
a machine at the back of the plant in order to get
a hand truck, he overheard Vice President Britt tell
Foreman Nagy and a group of employees , including
Mike Urban,' that if the Union got in he would move
away or close the plant
In his testimony , Vice President Britt denied that
he ever told any employee or Foreman Zyskowski that
if the Union came in or won the election , the plant
would be closed Foreman Zyskowski in his testimony
also denied that he told Madurski or any employee
that the plant would close if the Union came in or
that Britt had told him this would happen
This squarely conflicting testimony of the two employ-
ees and the Employer ' s vice president and foreman
was all the evidence given at the hearing which directly
related to the Petitioner's allegation in its objections
that the Employer threatened a plant shutdown if the
Petitioner won the election There was no evidence
2 Urban was subpenaed but did not appear nor testify at the hearing
DANADYNE, INC.
given at the hearing to support the Petitioner ' s similar
but separately alleged charge in its Objections that before
the election the Employer also threatened to discharge
some of the workers because of the Union ' s activity.
But, whatever their source , there were worrisome rumors
circulating among the employees before the election
that they might be discharged.
From Vice President Britt 's testimony as well as
that of a number of the employees , - it appears that
when employees asked Britt about these rumors, he
assured them that they were just unfounded rumors.
Thus, Britt testified , as did employee Frank Gyure,
another mechanic in the election unit , that a week or
so before the election , Gyure went to Britt's office
and asked Britt whether it was true as he had heard
from other employees that he was to be fired because
of union activity , and' that Britt told him it was just
a rumor and that no one would be fired . Similarly,
according to Britt ' s testimony and that of employees
Cora Flohs and Catherine Buhl, these two women
employees along with employee Mary Sheedy went to
Britt ' s office before the election and, in answer to their
question about rumors they had heard from other
employees concerning impending discharges, Britt told
the three women that there was no truth to these rumors.
Finally, Britt testified without contradiction that employ-
ee Ronald Zimmerman also came to his office and asked
whether he was going to be fired for union activity
and Britt told him , "No. Neither you nor no one else
is going to be fired for union activity."
Not only does it appear clear from this evidence
that Vice President Britt expressly reassured employees
before the election that there was no truth to rumors
of impending discharges , but his testimony and that
of Foreman Zyskowski suggest reasons for the rumors
and the employees ' fears for which the Employer was
not responsible and which had no relation to the employ-
ees' union activity or the coming election . Thus Zyskow-
ski testified , on cross-examination by Petitioner ' s counsel
who directed his attention to the particular incident,
that before the election he overheard several employees
talking in the plant cafeteria about the possibility the
plant might close "due to financial troubles"; that neither
the Union , the election , nor the NLRB was mentioned
in this conversation ; that he could not identify the
employees since they were sitting behind him; and that
he did not turn around nor enter into the conversation
because of the possibility that they might talk about
the Union , a subject which he wanted to avoid.
Britt's testimony concerning a possible reason for
the employees ' fearing a layoff or discharge was more
involved and suggests a distorted base for Rothrock's
testimony that he overheard Britt tell a number of the
employees that he would close the plant if the Petitioner
won the election . Britt's testimony was that , because
a "biax " line of machines had been inoperative most
of the time for the preceding year and a half and
he had been told by the manufacturer of the machines
that it would take 4 or 5 weeks to alter them and
make them operative , he had considered laying up the
machines and transferring the operators to other depart-
177
ments where they were needed ; that in a series of
talks with the operators in this small group and with
Foreman Nagy about 2 weeks before the election, he
had told them "there was a very good likelihood we
would shut down the biax department and rearrange
the people "; and that although he had no talks with
Rothrock about this , Rothrock may have overheard one
of these conversations.
Upon consideration of the foregoing evidence , I credit
Britt ' s and Foreman Zyskowski ' s denials that they told
Madurski or any other employee that the plant would
close if the Petitioner won the election. I also credit
Britt ' s denial that he told any employee that certain
of the employees would be fired for union activity.
Accordingly , I find no credible basis for concluding
that Britt told any employee either that the plant would
close if the Petitioner won the election or that certain
employees would be fired for union activity and recom-
mend that the Board overrule the Objections filed by
the Petitioner to this effect.
C. Alleged Interrogation
In his report , the Regional Director stated that in
addition to the objections expressly enumerated by the
Petitioner , the Regional Director's investigation had
revealed the possibility "that Britt had interrogated an
employee as to which employees had signed union
authorization cards, and that this employee thereafter
had told another employee about the incident." The
Regional Director noted , however , that "both Britt and
the individual alleged to have been interrogated, deny
any such occurrence ." Uncertain as to what might be
revealed at a hearing , the Regional Director directed
that evidence be taken before the Trial Examiner as
to possible interrogation affecting the election.
On an unfolding of the evidence in the hearing before
me, it appeared merely that, according to the testimony
of Madurski , employee Ronald Zimmerman told Madur-
ski on leaving Britt ' s office on one occasion shortly
before the election , that Britt "had asked [Zimmerman]
for the names of the people who had signed union
authorization cards and [had said ] that they would be
taken care of." But Zimmerman in his testimony denied
not only that he had made any such statement to Madur-
ski but also that Britt had asked him for any information
as to card signers. Britt, too, denied that he had ever
asked any employee , including Zimmerman , for informa-
tion as to who had signed authorization cards. Britt
further testified that on the occasion he spoke to Zimmer-
man in his office (to which I have already referred),
Zimmerman had come to his office and asked him,
"Am I going to be fired for union activity ?" and that
Britt had replied, "No. You nor no one else is going
to be fired for union activity."
Accordingly, I conclude in answer to one of the
Regional Director ' s questions , that there is no evidence
in my record which would support a charge that the
Employer through Vice President Britt interrogated any
employee as to the identity of those individuals who
had signed authorization cards for the Petitioner.
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Statements Made to Employees Concerning a Change
in Insurance Plan
The remaining issue referred to the Trial Examiner
by the Regional Director as a result of his investigation
is whether within the few weeks preceding the election
Vice President Britt made such a promise of benefit
as interfered with the election by telling employees
"there was to be a change in the medical -health insurance
plan from the current one administered by the Metropoli-
tan Life Insurance Company to that of Blue Cross."
From the evidence taken by me in the hearing, which
will now be considered in detail , it appears that although
Britt and President Conklin did not tell the employees
that there would be a change , they did tell them that
serious consideration was being given to the matter
of making the change . Under the circumstances, I con-
clude that this dangling of a possibility of an attractive
change in insurance coverage immediately before the
election , although not a definite promise of benefit,
was such an improper attempt by the Employer to
influence the employees in the election and a disturbance
of the "laboratory conditions " under which the Board
attempts to conduct its representation elections, that
it requires setting the present election aside and directing
that a new election be held . We may now turn to
the facts shown by the evidence which in my opinion
requires this conclusion.
For 3 years, the Employer had provided its employees
with life , disability , and medical -health insurance under
a group policy which had been issued by the Metropolitan
Life Insurance Company and was to expire in May
1969. A number of employees , including John Madurski,
had from time to time told Vice President Britt that
the benefits under Blue Cross were greater than under
the Metropolitan medical-health plan . According to his
testimony , Madurski had made this comment to Britt
in January 1969 and at "many times " over a period
of months and had asked Britt to change from the
Metropolitan to the Blue Cross plan.
Such a request was made by Madurski on January
29, 1969 , a month and a half before the representation
petition in the present case was filed, and Britt told
Madurski that he would look into the matter . According-
ly, on the same day , Britt wrote a letter to Blue Cross
asking for information on its group plan . In response,
a Blue Cross representative visited Britt at the plant
on February 5, 1969 . In February, Britt also asked
his accountant to get a cost breakdown and make an
analysis of the comparative costs and coverages offered
by Blue Cross through Metropolitan and four or five
other insurance carriers . As a result of this procedure,
Britt received preliminary Blue Cross figures and infor-
mation about coverage from the Blue Cross representa-
tive on February 5. And, by April 7 at the latest,
he also received the rest of the Blue Cross figures
directly from Blue Cross and from the four or five
insurance companies to whom the Employer's accoun-
tant had written .3 Thereafter, Britt forwarded these
3 Submissions of figures by the Metropolitan Life Insurance Company
figures to the offices of the Employer ' s parent companies
and the coverage of the expiring Metropolitan policy
was extended from month to month . Finally, as a result
of a decision reached in the summer of 1969, a new
group policy including life insurance and major medical
as well as Blue Cross insurance was secured by the
Employer from the Aetna Casualty Insurance Company
and became effective on September 1, 1969.
In the meantime , after Britt had received the prelimi-
nary Blue Cross figures in February , he told Madurski
that Madurski was right-that Blue Cross paid greater
benefits than were paid under the existing Metropolitan
plan. According to Britt ' s testimony , which I credit,
this conversation took place in March and before the
representation petition was filed on March 17.
However , after the representation petition had been
filed and shortly before the election was held on April
17, Britt called Madurski into his office and they had
another conversation about the Blue Cross plan in the
presence of Florence Regan (Britt ' s secretary) and Pro-
duction Manager Mladinich .' Britt and Mrs. Regan tes-
tified that Britt called Madurski into the office to speak
to him about whether Madurski had permission to take
some lumber from the plant and, being satisfied that
he did , then mentioned Blue Cross since Madurski's
request had originally prompted Britt to investigate the
possibility of better insurance coverage . Madurski tes-
tified however that Britt first spoke to him about the
insurance and then, as he was leaving , also about the
lumber.'
As to what was actually said by Britt in this conversa-
tion about the insurance , Madurski testified on direct
examination by Petitioner ' s counsel " that there might
be a change in the hospitalization , we might be getting
Blue Cross and Blue Shield." On further examination
by counsel for the Regional Director , he also testified
that Britt told him "that he was considering changing
the hospitalization." But, on then being shown his pre-
trial affidavit by counsel for the Regional Director, he
testified that Britt said " that he was having the hospitali-
zation analyzed and that he would be changing it to
Blue Cross and Blue Shield. " (Emphasis supplied.) On
later cross -examination by Employer's counsel , Madur-
ski testified that his original testimony had been in
error and that instead of saying that the insurance "might
be changed ," Britt had actually said that it "would
be changed."
But, especially in view of Madurski ' s apparent confu-
sion during his testimony as to exactly what Britt had
dated March 24, by the Equitable Life Assurance Society dated March
25 and April 7, and by the Prudential Insurance Company dated April
7, in each case including Blue Cross coverage , were received in evidence.
A submission of figures and coverage by Aetna Casualty (including
Blue Cross ) which was eventually accepted by the Employer was not
available at the time of the hearing having been forwarded to the
Employer 's New York office
' Madurski testified that this conversation took place about 2 weeks
before the election, but Britt testified that it occurred about 2 days
before the election.
Production Manager Mladinich was not a witness and we therefore
do not have the benefit of his testimony concerning any part of the
conversation
DANADYNE, INC.
said, I credit the testimony of Mrs. Regan and Britt
and find that Britt had called Madurski into the office
to speak to him about the lumber and then told Madurski
merely that the change of insurance was under serious
consideration and might be made. Thus, I credit Mrs.
Regan's testimony that Britt said at the end of the
conversation, "By the way, John, we are looking into
the Blue Cross-Blue Shield." And I further credit the
consistent testimony of Britt that he told Madurski as
Madurski was leaving the office, not that there would
be a change in insurance, but that "we were seriously
looking into the Blue Cross-Blue Shield . . . and had
established the competitive rates and a breakdown on
it."
It appears that employee 'Frank Gyure also had a
conversation with Britt about the possible change to
Blue Cross before the election, when he came to the
office and was reassured by Britt that he would not
be fired for union activity. Britt testified that at the
time he also told Gyure that "we had formulated a
thorough analysis of insurance in Blue Cross-Blue Shield
and forwarded it for action to the mother company."
As a witness for the Petitioner, Gyure had first testified
to the same effect," but, after being shown his pretrial
affidavit by counsel for the Regional Director, he gave
the same type of confused answers as had Madurski
on the point of whether Britt had definitely promised
a change to Blue Cross or had merely said the change
was being favorably considered.7 Upon consideration
of this testimony of Gyure and Britt, I find that Britt
told Gyure shortly before the election, as he had told
Madurski, that the Employer was giving favorable con-
sideration to a change to Blue Cross although he made
no promise that the change would actually be made.
The evidence also convinces me that in their speeches
to the employees 2 days before the election, President
Conklin but not Vice President Britt made similar state-
ments about the prospect of the insurance change.
Employees Cora Flohs, Catherine Buhl, and Mary
Sheedy attributed these remarks to Britt. But employee
Arthur Wilcox testified that it was President Conklin,
and not Britt, who said that "he was going to try
to get Blue Cross and Blue Shield." The prepared text
from which President Conklin read supports Wilcox'
testimony. It shows, and I find, that in the course
of his remarks to the employees, Conklin mentioned
At this point, Gyure's testimony was the following
I had mentioned to [Bntt] about Blue Shield, Blue Cross
at the time And he had said that they were taking a survey
or an analysis of all different insurances, insurance companies
and that they were thinking of Blue Shield-Blue Cross, while he
didn't actually say he was going to get Blue Shield, Blue Cross,
and that was about it [Bntt said] they were going to change
They were going through an analysis of all different insurance
companies I'm trying to think of the exact words It doesn't
come to me I know there was talk about [my wanting] Blue
Shield, Blue Cross, and that most of the people in the company
would like to have it And then [Britt] said they were taking
it into consideration to bring this Blue Shield, Blue Cross into
the company in place of other insurance
See the following passages from Gyure's testimony set forth in
the official transcript from p 50, 1 9, to p 51, I 12; and p 54,
1. 10, top 55,1 14
179
the Employer's willingness to consider a revision of
its health and medical insurance in connection with
the following remarks as to why the Employer opposed
a union for its employees and why the employees did
not need one:
I can tell you that the Company does not
want a union and why.
A union usually makes many promises to get
your vote. Can it make good on these promises?
It can only try and get the Company to agree.
The Company does not have to agree. Many times
strikes, discord and violence result when no agree-
ment can be reached. Such things harm both the
employees and the Company. Without a union they
do not happen. Do you need a union to improve
your wages and benefits? I think not.
You will recall we met with you in May of
last year and made a general wage increase and
added a paid holiday and paid sick days. We told
you that as in other Lily plants we review wages
and benefits each year. We adjust them in line
with rates and benefits for similar work in other
local plants and Lily plants, and also take into
account your suggestions throughout the year. For
instance, we have received some comments that
our health insurance and major medical plans are
good, but daily hospital rate allowances need revi-
sion. Such comments as these are considered when
we make our annual review....
This concludes the evidence and my findings as to
what the Employer through Britt and Conklin told the
employees about a change in the group insurance. In
sum, the evidence shows as I have found, that in
response to employee requests for a change from Metro-
politan to Blue Cross, Britt began a survey of available
group medical-health premiums and benefits a month
and a half before the representation petition was filed
in this case and, having completed it after the filing
of the petition but before the election was held, was
favorably impressed by Blue Cross. Although neither
Britt nor the Employer had yet definitely decided to
make the change to Blue Cross, Britt told employees
Madurski and Gyure immediately before the election
that the Employer was seriously considering making
the change, and President Conklin in his talk to the
employees just before the election also held out the
prospect of the change as one indication that the employ-
ees did not need a union to represent them. From
the conjunction of Britt's and Conklin's remarks to
the employees, it must be concluded that the Employer
intended to influence the employees to vote against
union representation by holding before them the prospect
of an attractive change in their insurance coverage.
That the change was one which the employees them-
selves had asked for, and Britt had begun to consider,
before the representation petition had been filed, does
not justify the Employer's apparent deliberate use of
the possibility of the change to convince the employees
they needed no union and should therefore vote against
the Petitioner in the election. As already noted, I find
this was improper and disturbed the "laboratory condi-
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions" essential to a fair election I shall therefore
recommend, that because of this conduct on the Employ-
er's part, the Board should set the election aside and
direct a new election
Upon my foregoing consideration of the evidence
taken in the hearing held before me and in response
to the questions referred to the Trial Examiner by the
Regional Director, I have reached the following
CONCLUSIONS
I Thomas M Britt, the Employer's vice president,
did not tell employees that the plant would close if
the Union (the Petitioner) won the election held on
April 17, 1969
2 Vice President Britt did not tell any employee
that certain employees would be fired for union activity
3 Vice President Britt did not interrogate any employ-
ee as to the identity of those individuals who had signed
authorization cards for the Union
4 Vice President Thomas M Britt of the Employer
told employees shortly before the representation election
conducted on April 17, 1969, that serious consideration
was being given by the Employer to making the change
requested by employees in the group medical-health
insurance coverage from the existing Metropolitan Insur-
ance Company plan to the Blue Cross-Blue Shield plan
5 At meetings of its employees called by the Employ-
er 2 days before the election, President Charles Conklin
of the Employer told the employees that they did not
need a union to improve their wages and benefits, citing
as one example, the Employer's willingness to consider
the change in insurance coverage referred to in paragraph
4 above
6 The conduct of the Employer through the state-
ments made to employees by Vice President Britt and
President Conklin as described in paragraphs 4 and
5, above, was an improper attempt on the part of the
Employer to influence its employees to vote against
the Petitioner in the election and, because this was
its normal and foreseeable effect, the election held by
the Regional Director on April 17, 1969, should be
set aside and a new election held
7 Except for the conduct of the Employer described
and referred to in paragraphs 4, 5, and 6, above, the
evidence does not support the Petitioner's Objections
nor any other possible other ground suggested by the
Regional Director's investigation for setting the election
of April 17, 1969, aside
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and
conclusions, it is recommended that the Board set aside
the election held by the Regional Director on April
17, 1969, and that it direct that a second election be
conducted by the Regional Director among the employees
in the appropriate unit at such time as the Regional
Director deems appropriate