Emery Worldwide

National Labor Relations Board - Board Decisions

Sep 30, 1992

309 N.L.R.B. 185 (N.L.R.B. 1992)

185
309 NLRB No. 19
EMERY WORLDWIDE
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 The judge also dismissed other allegations of 8(a)(1) conduct and
there are no exceptions to those dismissals.
3 The Union lost that election by a vote of 37 for and 49 against,
with 1 challenged ballot.
4 ‘‘G.I.T.’’ stands for general information and training.
5 Quinn indicated he was ‘‘elated’’ that the employees would get
the bonus and wanted to let them know they were to receive it.
6 The Union’s corresponding election Objections 2–4 alleged that
Quinn made a promise of benefits at the February 12 G.I.T. meeting.
The Union never alleged that the bonus program itself constituted
objectionable conduct.
Emery Worldwide, a CF Company and Teamsters
Local 544, affiliated with International Broth-
erhood of Teamsters, AFL–CIO.1 Cases 18–
CA–11612 and 18–RC–14676
September 30, 1992
DECISION, ORDER, AND CERTIFICATION
OF RESULTS OF ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On March 11, 1992, Administrative Law Judge
James M. Kennedy issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the Charging Party filed an answering brief to the
Respondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this deci-
sion.
The judge found that the Respondent violated Sec-
tion 8(a)(1) of the Act by announcing a bonus to the
employees the day before a representation election and
also violated Section 8(a)(1) by engaging in an unlaw-
ful interrogation of an employee about a week before
the election.2 Based on these violations, the judge also
recommended that the election, which the Union lost,
be set aside and a second election be directed.3 We re-
verse the judge and find that the Respondent did not
unlawfully announce the bonus to its employees or co-
ercively interrogate an employee. Further, as these
were the bases on which the judge recommended the
election be set aside, we reject that recommendation
and instead issue a certification of results of election.
The Alleged Improper Bonus
On February 12, 1991, the day before the election,
the Respondent held a regular ‘‘G.I.T.’’ meeting.4 The
meeting was conducted by one of the Respondent’s
lower-level supervisors, Operations Supervisor Fred
Quinn, and about 20 employees were present. At the
meeting, which apparently lasted about 5 minutes,
Quinn mentioned four items: a new two-way radio sys-
tem, some management changes at the corporate level
in Palo Alto, the upcoming election, and a bonus. Re-
garding the election, Quinn encouraged the employees
to vote but he did not urge them to vote no. He also
announced to the employees that they would be receiv-
ing a bonus. The bonus program had been previously
announced to all the employees in December 1990.
The bonus was linked to a competition which was
companywide. The Respondent had set up a competi-
tion in which terminals of roughly equal size were
competing against each other. On the evening of Feb-
ruary 11, the day before the meeting, Quinn was told
by his superior, who himself had just learned of it, that
the Minneapolis office had met the goals of the com-
petition. Quinn then announced at the G.I.T. meeting
that the employees had exceeded the competition goal
and were now eligible for the bonus. No bonus amount
was mentioned. Quinn did not know the size of the
bonus at that time.
The judge found that the Respondent, through
Quinn, violated the Act by announcing the bonus ‘‘on
the eve of the balloting.’’ He found that the timing of
the announcement could not have been closer to the
election; that the announcement occurred in a meeting
where the employees were encouraged to vote; that the
failure to supply an amount to the bonus was insignifi-
cant; and that Quinn’s ‘‘subjective good intention’’ in
announcing the bonus was of no matter.5 The judge
concluded that by the announcement of the bonus the
Respondent engaged in an unlawful promise of bene-
fits. We disagree.
First, we note there is no allegation by the General
Counsel that the bonus competition itself was unlaw-
ful. There also is no dispute that the employees were
earlier informed of that competition.6 There is further
no dispute that the bonus competition was company-
wide. The judge’s finding of a violation decision es-
sentially turns on the timing of the announcement of
the bonus, but timing is not enough to establish a vio-
lation in this case. Rather, in the above circumstances,
we find nothing unlawful in the Respondent’s February
12 announcement where the Respondent had just
learned the result of the ongoing competition on Feb-
ruary 11. This conclusion is supported by Weather
Shield of Connecticut, 300 NLRB 93, 96–97 (1990). In
that case, the Board reversed the judge’s finding that
the employer had violated Section 8(a)(1) and had en-
gaged in objectionable conduct by an election eve an-
nouncement of pension benefits for its employees of
which they had not been previously aware. The Board
stated:
186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 See also Ideal Macaroni Co., 301 NLRB 507 (1991), in which
the Board found no violation in an employer’s publicly telling em-
ployees for the first time during an election campaign that it had
over the years given interest-free loans to certain employees who
needed assistance. The Board found that because the employer was
referring to existing benefits rather than granting or announcing new
benefits, the reference did not in itself violate the Act.
8 American Geri-Care, 270 NLRB 95 (1984), cited by the judge
is distinguishable. There the employer instituted a tuition reimburse-
ment plan prior to an election but it failed to establish that it was
justified by business reasons, or that the plan was the result of any
established policy or past practice, and it also used this benefit as
part of its campaign against the union. Here, the bonus program
itself was not alleged as unlawful and it and the announcement of
the results of the program were not used in the Respondent’s elec-
tion campaign propoganda.
9 An ‘‘on-job survey’’ consists of a supervisor riding with an em-
ployee and making suggestions for improved performance.
10 He testified that he was aware right away that Bolle was uncom-
fortable talking about the subject.
11 We of course do not suggest that an interrogation could not be
found coercive in the absence of other unfair labor practices. We
The judge found that the employees would
have received the pension plan even in the ab-
sence of the Union’s organizing campaign, but
that the timing of the [r]espondent’s announce-
ment of a previously unknown benefit warranted
finding a violation of Section 8(a)(1) in the ab-
sence of any valid justification for making such
an announcement at that time. In reversing this
finding, we rely on Scotts IGA Foodliner, 223
NLRB 394 fn. 1 (1976), enfd. mem. 549 F.2d 805
(7th Cir. 1977), in which the Board held that the
respondent’s announcement during a union cam-
paign of the availability of certain existing insur-
ance benefits did not violate Section 8(a)(1). In
Scotts, the Board stated that prohibiting an em-
ployer from publicizing existing benefits merely
because the employees had not previously been
made aware of such benefits would deprive the
employer of a legitimate campaign strategy nec-
essary to counter the union’s claim that it offers
better benefits. Because the [r]espondent’s pension
plan was granted to employees in the normal
course of events unrelated to their union activity,
the instant case is more akin to the announcement
of existing benefits than to the cases relied on by
the judge, which all involve the grant or an-
nouncement of new or future benefits. In accord
with Scotts, we therefore find that the Respond-
ent’s announcement of its pension plan benefit did
not violate the Act.7
Here, unlike Weather Shield, the employees were al-
ready aware of the bonus competition. Like Weather
Shield, however, they were not aware of a critical fact,
i.e., the competition’s results until the Respondent’s
announcement of it. In making the announcement, the
Respondent was simply informing the employees the
results of that known ongoing competition; which the
Respondent itself had just learned.8
The Alleged Unlawful Interrogation
Merry Bolle was a courier-driver and, on February
7, 1991, she was undergoing the third ride of a routine
‘‘on-job survey’’ with her immediate supervisor, Oper-
ations Supervisor Dan Swaser.9 During this particular
ride, after some initial discussion about the sequence
of Bolle’s stops, Swaser, according to Bolle, ‘‘casually
asked me how I felt about the union.’’ Bolle indicated
the question seemed ‘‘to come out of the blue.’’ She
responded that she did not know how she felt; she had
mixed feelings. Swaser said that he had worked for an-
other company where he had been laid off and the
union had not helped him. Bolle said that she had
mixed feelings because ‘‘you hear one thing from the
union and one thing from the company, and you just
don’t know which way to go. You’re confused.’’
Swaser then changed the subject10 and there was no
further reference to the Union in the 4-1/2 hour ride.
Swaser did not press her further; did not follow up
later; never asked her how she intended to vote; and
did not ask her to vote against the Union.
The judge found that Swaser’s question was an un-
warranted interrogation about Bolle’s personal views
towards union representation and that it had the rea-
sonable tendency to interfere with her free exercise of
the right to choose or not to choose a union and vio-
lated Section 8(a)(1). In so concluding, he indicated
that ‘‘in one sense I think it is fair to say that his ques-
tion was not really intimidating; the two were on good
personal terms.’’ But he found that Swaser asked the
question at a time when there was no need to do so
and in an enclosed area and this constituted a viola-
tion. In the circumstances of this case, we disagree.
Interrogation of employees is not unlawful per se. In
determining whether or not an interrogation violates
Section 8(a)(1) of the Act, the Board looks at whether
under all the circumstances the interrogation reason-
ably tends to interfere with, restrain, or coerce employ-
ees in the exercise of their Section 7 rights. Rossmore
House, 269 NLRB 1176 (1984); Sunnyvale Medical
Clinic, 277 NLRB 1217 (1985). Under all the cir-
cumstances here, we do not agree with the judge’s
finding that Swaser’s questioning violated the Act as
those circumstances do not indicate that Swaser’s iso-
lated questioning of Bolle was coercive in nature. Spe-
cifically, there is no history of employer hostility to-
wards, or discrimination against, union supporters; the
statement was made in a context free of other unfair
labor practices;11 the nature of the brief questioning
187EMERY WORLDWIDE
merely indicate that the existence of other unfair labor practices is
one factor that may render a particular interrogation coercive.
12 Quemetco, Inc., 223 NLRB 470 (1976), cited by the judge, in-
volved an interrogation where, in the same conversation, the super-
visor also threatened an employee with possible loss of employment
if the union were successful in organizing the employees. This threat
was found to be a separate violation. In finding the interrogation to
be unlawful, the Board noted that unlawful threat as well other un-
fair labor practices directed at the interrogated employee. Here, there
were no other unfair labor practices committed by the Respondent.
1 Peerless Plywood Co., 107 NLRB 427 (1953).
2 The original complaint contains a typographical error respecting
the appropriate sections of the Act, but jurisdiction is not contested
here.
was essentially general and was not threatening; it does
not appear that the Respondent was seeking to take ad-
verse action against Bolle or any other employees; the
conversation was casual and amicable and was unac-
companied by coercive statements; and Swaser was a
lower level, first-line supervisor. Thus, in the cir-
cumstance of this particular case, we find that
Swaser’s questioning of Bolle did not violate the
Act.12
Summary
As we have reversed the two unfair labor practice
findings on which the judge based his recommendation
to set aside the election, we shall dismiss the com-
plaint and we shall not set aside the election but in-
stead we shall issue a certification of results of elec-
tion.
ORDER
The complaint is dismissed in its entirety.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots
have not been cast for Teamsters, Local 544, affiliated
with International Brotherhood of Teamsters, AFL–
CIO, and that it is not the exclusive representative of
these bargaining unit employees.
Joseph H. Bornong Esq., for the General Counsel.
D. Clay Taylor and J. Michael Colloton Esqs. (Mackall
Crounse & Moore), Minneapolis, Minnesota, for the Re-
spondent.
Martin J. Costello, Eqs. (with Carol A. Baldwin on brief)
(Peterson, Bell, Converse & Jensen), of St. Paul, Min-
nesota, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried before me in Minneapolis, Minnesota on April 30
and May 1, 1991, upon a complaint issued by the Regional
Director for Region 18 of the National Labor Relations
Board on March 21, 1991, and amended on March 26, 1991.
The complaint is based on a charge filed by Teamsters Local
544, affiliated with International Brotherhood of Teamsters,
AFL–CIO (Charging Party) on February 4, 1991. It alleges
that Emery Worldwide, a CF Company (Respondent) has
committed certain violations of Section 8(a)(1) of the Na-
tional Labor Relations Act. The Regional Director has con-
solidated the issues raised by the complaint with certain ob-
jections to the representation election conducted in Case 18–
RC–14676 filed by the Union.
Issues
The issues presented by this matter are whether or not
shortly before an NLRB-conducted representation election
Respondent committed certain acts which violated Section
8(a)(1) of the Act and/or had the tendency to improperly af-
fect the outcome of the election.
Specifically, the complaint alleges that several of Respond-
ent’s first-line supervisors made certain threats, promises, or
engaged in coercive interrogation. In addition, Respondent is
alleged to have improperly influ- enced the outcome of the
election by announcing a bonus award to the employees on
the eve of the election. Finally, it is asserted that a captive
audience meeting was conducted by one of the supervisors
within the 24 hours preceding the commencement of the
election, a breach of the Peerless Plywood rule.1
I. JURISDICTION
Respondent admits it is a Delaware corporation, with an
office and place of business in Minneapolis, Minnesota,
where it is engaged in the interstate transportation of freight
by air. The evidence shows that its headquarters are located
in Palo Alto, California. It further admits that during the cal-
endar year 1990, it purchased and received at its Minneapolis
facility products, goods, and materials valued in excess of
$50,000 directly from points outside Minnesota. Accordingly,
it admits it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.2
II. LABOR ORGANIZATION
Respondent admits that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
In the Minneapolis area Respondent operates its freight
forwarding business from two locations. The Minneapolis/St.
Paul Airport and a yard located in the nearby suburb of
Eagan. Its terminal manager is David Briggs. Among his
subordinates are at least four individuals whose title is oper-
ations-supervisor. One of them, Fred Quinn, described that
position as the first-line supervisor job. These individuals in-
clude Robert ‘‘Vern’’ Plant, Dale Wait, Quinn and Dan
Swaser. In general, these individuals supervise loading and
unloading of aircraft, the sorting of freight and the daily as-
signments and oversights given to the courier-drivers in-
volved here.
The Union filed the election petition on October 10, 1989.
After a hearing, the Regional Director dismissed it on the
basis that the individuals involved were guards within the
188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The appropriate unit as described in the Supplemental Decision
and Direction of Election is:
All courier-guards employed by the Employer at and out of its
Eagan, Minnesota and Minneapolis/St. Paul Airport locations;
excluding office clerical employees, professional employees,
guards and supervisors as defined in the Act.
meaning of Section 8(b)(3) of the Act and the Union was a
labor organization not eligible to represent them. The Peti-
tioner filed a request for review and on December 21, 1990,
the Board granted the request and remanded the proceeding
to the Regional Director for processing. On January 14,
1991, the Regional Director issued a Supplemental decision
and Direction of Election in the bargaining unit sought by
the Petitioner.3 The election was actually conducted on Feb-
ruary 13, 1991. The tally shows that of approximately 97 eli-
gible voters, 37 voted in favor of representation by the Union
while 49 voted against. There is one challenged ballot which
does not affect the outcome of the election.
The Union thereafter filed timely objections to the election
and the Regional Director, in a report, consolidated certain
of them with the complaint for the purpose of a hearing.
It has been Respondent’s long-established practice to con-
duct a short meeting of employees with one of the super-
visors early each morning. At the airport facility this was
done on a daily basis. At Eagan, the practice was not quite
as frequent, being limited to 1 or 2 days per week. Because
of the large number of employees at the airport and, because
of varying reporting times, the meeting was often conducted
twice each day, involving a different complement of employ-
ees. These meetings are known as general information and
training meetings and are referred to in acronym terms, as
‘‘G.I.T.’’ meetings. Plant was the supervisor who usually
conducted those meetings at the airport, while the supervisor
who conducted them at Eagan was usually Quinn. These
were the supervisors who were responsible for direct super-
vision during those particular hours. Other supervisors came
on duty later in the day. As will be seen it was only the first-
line supervisors who made the remarks which are the subject
of the complaint. Moreover, all but one occurred during the
course of a G.I.T. meeting.
B. The January 30 G.I.T. Meetings at the Airport
Two G.I.T. meetings occurred on January 30 at the airport.
The first occurred sometime between 6 and 6:30 a.m. and the
second, sometime between 8 or 8:30 a.m., although one wit-
ness places it as late as 9 a.m. Plant led both.
Drivers Brian Rodeck and Ralph Zaccardi gave testimony
about the first meeting. Rodeck is stationed at Eagan, but
happened to be at the airport that morning. He heard a por-
tion of the meeting. He testified that Plant spoke to an as-
sembled group consisting of 20–30 employees. He remem-
bers only a few by name, including Zaccardi, who was ap-
parently was standing next to him. Rodeck said Plant was
doing the talking ‘‘explaining the upcoming election . . . not
explaining it in detai. . . . that there would be an election
coming up, and everybody would be eligible to vote.’’ In the
course of his testimony he said, ‘‘It was said in the meeting
that, if you vote ‘yes,’ that you lose all your benefits . . . .’’
However, he was unable to say what, if any benefits, would
actually be lost.
Zaccardi, like Rodeck, had arrived at the airport from
Eagan. He testified, ‘‘[A]t that particular meeting, what I re-
member Vern [Plant] saying directly to us kind of just relates
to what intrigued me at that particular moment. And he was
talking, did say that if you were voting for the union, if you
voted ‘yes’ that you would lose all your benefits, including
medical, and automatically become a salaried employee.’’
However, Zaccardi’s recollection of the remainder of the
meeting is poor. He does remember Rodeck attempting to
ask a question, but Plant waved him off, typical of the way
G.I.T. meetings are usually conducted. On cross-examination,
Zaccardi agreed that Plant announced the election. He is not
certain whether it was the first time, although it appears un-
disputed that it was.
He also gave the following testimony on cross:
Q. (By Mr. Taylor) Okay, so during the course of
this l5 minute meeting your recollection is that he said
that you would lose all your benefits, lose your medi-
cal, become salaried, if you vote for the union?
A. That’s true.
Q. Is it possible that during this meeting as well Mr.
Plant told you that these items would be negotiable in
the collective bargaining process?
A. That could be true.
Driver Merry Bolle also appears to have attended that
meeting. She testified that after Plant discussed some routine
business matters he turned to a discussion of the Union. Ac-
cording to her, he said, ‘‘If the union got in there, that we
may take a cut in wages and lose our medical benefits.’’
After being prompted about ‘‘time off,’’ she said, ‘‘He had
brought up the fact that if the union got in there, if you—
as a part-timer that you have a rotating day off. And if you
ever went to school and you go to school on Thursdays, that
you would have to talk to the union first, to see if you can
get the day off.’’
On cross-examination she testified a little differently, say-
ing Plant had said the employees ‘‘may’’ take a cut in pay
and ‘‘will’’ lose medical benefits. She had some difficulty
recalling the context in which Plant made his remarks but ul-
timately gave this testimony:
Q. (By Mr. Taylor) You said that Mr. Plant said that
you may get a cut in pay. At this time and during the
course of this election, do you recall Mr. Plant saying
the wages, benefits, you may get a in crease? You may
get a decrease. Everything’s negotiable. You remember
him saying that?
A. I remember him saying it once. Once or twice.
Yes.
Q. Okay. You’ve said your testimony is that he said
during this meeting that you may get a cut in pay. Does
that mean that he told you in this meeting that every-
thing was negotiable? You might get a cut in pay?
A. I don’t remember him saying that everything
would be negotiable, no.
Q. Did he say you might get a pay raise—
A. No.
Q.—if the union is certified?
A. No.
Q. Okay. You don’t recall him talking about negotia-
tion at all in this meeting, is that your testimony?
189EMERY WORLDWIDE
A. I don’t recall it, no.
Q. Okay. But you have testified that you had heard
him say that before, that everything’s negotiable, right?
A. Okay. That we sit down at a bargaining table and
negotiated wages and benefits, in the union context?
A. Right.
Q. You had heard him say that before?
A. Yes.
Q. Let me ask you this. Is it possible that Mr. Plant
may have said in this meeting that these items are ne-
gotiable?
A. He could have, yes.
Driver John Juhl also testified about the January 30 meet-
ing. He said that after Plant mentioned some routine matters,
he turned to the Union. He testified:
Q. (By Mr. Bornong) All right. And what did he
[Plant] say?
A. Well, first topic of basic conversation was—or
discussion was if the union was brought in reduction of
hourly wage, medical benefits, . . . and reduced hours.
Those all—those were all—
Q. Okay. Now what exactly did he say about your
medical benefits?
A. Medical benefits could all be bargained with. Or
we could lose them altogether.
Q. All right. Did he say how—what causes that?
A. Well, a vote. Concerning the vote . . . .
Q. Okay. Voting for the union would have what con-
sequences again, now? [Objection interposed]
A. It would just be—the medical benefits would
have to be negotiated with. We could lose them, or
whatever. Or maintain them.
Q. Okay. Did he said anything about your vacation?
[Objection interposed]
A. Well, another topic was—it was vacation
wouldn’t be like it is right now. If you want a vacation,
you could take off – or you’d have to write down on
a slip of paper, ahead of time, and get it taken off and
if it was taken from—other former employees, it
wouldn’t be possible.
[Clarification sought by Judge]
THE WITNESS: Well, vacation—it wouldn’t be—
okay, if we wanted to get a day off, vacation, it
wouldn’t be the same as it is now as with the union
being in.
With respect to wages, Juhl testified he remembered Plant
saying, ‘‘Our pay could be reduced.’’
On cross-examination, Juhl readily conceded that Plant
said every subject was subject to negotiation, referring spe-
cifically to medical benefits and vacation.
With respect to both Bolle and Juhl’s testimony it appears
that although they recalled that meeting as occurring at the
6 a.m. meeting, it seems likely that they attended the second,
later meeting. Whether that is so or not, is really not signifi-
cant. What is clear, however, is that the testimony of all four
of the General Counsel’s witnesses is tentative and uncertain.
Their recollection is uniformly poor. When it was suggested
that these remarks occurred in the context of a larger discus-
sion, including the manner in which collective bargaining oc-
curred, they readily accepted that and conceded that Plant
was observing that negotiations could result in more, less, or
the same levels of wages and benefits.
Plant testified that Respondent employs three types of em-
ployees, full-time regulars, part-time regulars, and casuals,
who are limited to only 20 hours per week. At the time in
question, Respondent employed approximately five casual
employees. Under company policy, they were not entitled to
fringe benefits.
With respect to the January 30 meetings, Plant testified
that the topics were the same each time. He says he remem-
bers handing out an announcement and also saying that there
was an election upcoming on February 13, that it was impor-
tant that everyone vote, regardless of what their persuasion
was. He said he emphasized that because, as he pointed out,
the majority would rule. He remembers giving an example
that if only three people voted, and two voted in favor of
representation, the entire work force would become union-
ized regardless of the number of ‘‘available’’ voters. Accord-
ingly, he was urging everyone to exercise their franchise.
He agrees he discussed wages and benefits, observing that
if the Union were voted in, the collective-bargaining process
would take some time and during that process, benefits
would become negotiable. He says that he told them they
knew what they had now, in a noncontractual environment,
but in a collective-bargaining environment, until those bene-
fits were established, all benefits would become negotiable.
He specifically denies saying that in the event the employ-
ees chose the Union, that they would be switched from hour-
ly to salaried or that they would lose benefits or receive a
cut in wages. Furthermore, he denied saying that if the Union
became the representative, the employees would not be able
to take vacations or days off without the Union’s permission.
He does recall opining that scheduling would likely become
less flexible than the current system because he thought it
would have to be done more in advance and that last mo-
ment change requests would be more difficult to accommo-
date.
Drivers James Williams and Larry Harris were called by
Respondent with respect to a January 30 meeting.
Harris recalls Plant that morning discussing the ‘‘floor
plan,’’ i.e., the daily schedule, then turning to the NLRB
election. He said Plant told the group that a union vote was
coming up and that all the employees should vote. He further
said that Plant did not encourage the employees to vote
against the Union but emphasized that it was the employees’
choice to vote, ‘‘to make sure that everyone did vote . . .
it was our right to vote.’’ Similarly, Williams says Plant told
the employees he wanted to make an effort to get everyone
to vote, whatever their views were on the situation—the
main thing was to get out and vote. He further corroborates
that Plant did not urge anyone to vote in any particular way.
He does not recall wages or specific benefits being discussed
that morning. However, he denies that Plant said anything
about losing benefits, being switched to salaried status, suf-
fering a wage cut or getting the Union’s permission to take
a vacation. He does remember Plant saying something to the
effect that the Union’s presence might hamper his ability to
schedule people as freely.
Williams also recalled Plant ‘‘[M]ention[ed] the fact that
everything becomes negotiable, and that all of our benefits
would become negotiable.’’ Similarly, Harris said Plant
‘‘[W]ent through some items that were—that some things
190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 It should be observed here, that the General Counsel has offered
no evidence to rebut the accuracy of Plant’s version [from
Shanahan] of what actually happened in Chicago. I assume, there-
fore, that Plant’s testimony accurately describes the Chicago negotia-
tions.
that are negotiable on some things, you know, everything
that just—that we go through is negotiable, you know, with
this program.’’ He, too, says Plant did not discuss specific
benefits in that meeting.
It is my view, that with respect to the meetings which
were conducted on January 30, 1991, that the General Coun-
sel has failed to prove by credible evidence that Plant en-
gaged in any threats, restraint, or coercion within the mean-
ing of Section 8(a)(1) of the Act. It is quite clear that the
General Counsel’s witnesses have poor recall and are unable
to place Plant’s remarks in any specific context. Section 8(c)
of the Act, the free speech section, specifically permits an
employer to truthfully advise employees about the collective-
bargaining process, about the benefits they currently have
and about the fact that such matters become subject to nego-
tiation in the event the Union is certified. It further permits
the employer to discuss the fact that negotiations can result
in better conditions, worse conditions, or the same conditions
or any variable that bargaining may reach. Moreover, one of
the alleged threats, the claim that Respondent would convert
hourly employees to salaried employees is improbable on its
face and so unlikely as to be obviously the product of some-
one who simply doesn’t understand, who is unable to per-
ceive or who has an overactive imagination.
On the other hand, Plant’s testimony, as corroborated by
Williams and Harris, reasonably describes what he said and
that description does not even hint at unlawful threats, re-
straint, or coercion. Accordingly, I specifically credit the ver-
sion reported by Williams and Harris.
C. The Meeting of February 6, 1991
On February 6, Plant again conducted a G.I.T. meeting,
this time at the Eagan facility. Ralph Zaccardi testified that
the meeting began at about 7:30 a.m. and lasted about 1-1/2
hours because an aircraft was late. This gave the group the
opportunity to use the company conference room at Eagan.
Zaccardi says, again having some difficulty describing the in-
cident, that during the meeting Plant ‘‘made several state-
ments for good reasons and bad reasons for voting for the
union.’’ Specifically Zaccardi testified that Plant said ‘‘if we
voted for the union our [401(k) retirement plan] would be
one of the benefits or the opportunities we would lose.’’ He
could not recall Plant discussing the loss of any other bene-
fit; moreover, he could not recall any other ‘‘general topics’’
discussed during this meeting.
On cross-examination, although he had not mentioned it in
his direct, Zaccardi agreed Plant distributed and read, appar-
ently verbatim, a 2-page ‘‘election factsheet.’’ (R. Exh. 1.)
He also concedes that he was unable to recall any of the
other topics during the 1-1/2 hours but he was confident that
he recalled Plant saying that the 401(k) plan could be lost.
He concedes, as mentioned earlier, that Plant at other times
had said that such matters were subject to negotiation, but
says he can’t recall if Plant made that statement during the
February 6 meeting.
John Juhl testified that he attended a meeting in early Feb-
ruary (he is not quite certain whether it was on February 6).
He, too, recalls Plant discussing the thrift plan. He was asked
what he remembered Plant saying about the Union. He re-
sponded, somewhat tangentially, ‘‘Well, about the thrift plan
we would be getting. It could be bargained with. That is all
I can remember.’’ Then, after having his memory refreshed,
he said he recalled Plant saying that if the Union won the
election, ‘‘The casual employees who work on Saturdays
only could lose their jobs.’’ Then he modified that testimony
to say Plant asserted that the casual employees ‘‘would’’ lose
their jobs.
As noted previously, on cross-examination he agreed that
Plant said every subject was subject to negotiation, but as-
serts that he didn’t remember Plant making that remark in
connection with the Saturday casuals. However, on further
cross-examination he conceded Plant’s remark about Satur-
day casuals related to an example which apparently had oc-
curred at the Chicago facility when it was organized by the
Teamsters several years previously. He says Plant told them
that as a result of negotiations in Chicago, the casuals ‘‘dis-
appeared.’’
Plant testified that he conducted two G.I.T. meetings on
February 6, the first at 6:30 a.m. at the airport and the sec-
ond at 7:45 a.m. at Eagan. He says the reason he conducted
the Eagan meeting was due to Quinn’s absence for an illness
that day.
With respect to the airport portion, Plant says he spoke
about an aircraft delay which was occurring, about the con-
sequences of that delay, and that it meant job reassignments
that day.
After that part of the meeting was over, he says he re-
minded the employees that the NLRB election was scheduled
for the following week and encouraged them to vote. He also
says, because he had learned of an incident in Chicago from
Respondent’s divisional employee relations manager, Neill
Shanahan, he reported that incident to them. He says he told
the group that Respondent’s offering employment to casuals
was a great opportunity to people who had regular employ-
ment during the week and allowed them the opportunity to
earn some money by working just Saturdays. He said he
would miss them if they were unable to be employed. With
respect to Chicago, he told them the Chicago couriers were
represented by another Teamsters local. He says that he told
the Minneapolis crew that one of the first ‘‘stipulations’’ that
local had had during the negotiating process at Chicago was
to eliminate all Saturday casuals, because the Teamsters felt
it was robbing the earnings potential of the regular full-time
employees.4
He does agree that he did say that the same thing might
happen in Minneapolis if that is what the Union negotiated
for. He says that at the 6:30 meeting, he distributed the fact-
sheet asserting that he did not describe anything different
from what it said. He does not believe he read it out loud
at the 6:30 meeting.
The Eagan meeting, beginning at 7:45 lasted about 2-1/2
hours because of the aircraft delay. At this meeting, Plant
says he did read the factsheet out loud as well as well as
distribute it. He remembers saying at this particular point he
was on his ‘‘soapbox’’ and spoke for about 20 minutes, then
took questions and answers from the floor.
He says during this particular meeting, he did refer to the
401(k) retirement plan and ‘‘to my knowledge there is no
401(k) plan at Emery facilities where there is also a collec-
191EMERY WORLDWIDE
5 It is clear from Monson’s testimony that Wait was not referring
to anything violent.
tive bargaining contract.’’ He remembers Rodeck responding
to the 401(k) plan could be negotiated to which he replied
that he agreed. He denies saying that if the employees voted
for the Union they would lose the 401(k) plan.
In connection with his reference to the election factsheet,
he says that he did list the current benefits which the em-
ployees were then enjoying including a medical plan, the ac-
cess to the 401(k) plan, 10 sick days per year, and a vaca-
tion.
In this regard, the factsheet concludes with the following
questions and answers:
Question: What will happen if the union wins the
election on February 13th?
Answer: We will negotiate in good faith for the en-
tire package of wages, benefits and working conditions,
as required by law. Question: Are you threatening a cut
in wages and benefits if the union wins?
Answer: Absolutely not. We will negotiate in good
faith. We simply cannot foresee union demands or the
details of any contract which would be negotiated.
With respect to these two meetings, the observations
which I made in the previous section remain the same.
Zaccardi has a very limited ability to describe what occurred.
Moreover, Juhl undercuts Zaccardi when he says Plant told
them that the 401(k) plan was subject to negotiations.
The probability that Plant would say something directly
contrary to the factsheet which he had just handed out is
very low. Had he handed out a factsheet which said, as this
one did, that the Company was not threatening a cut in
wages or benefits if the Union won, while simultaneously
making such a threat, like killing the 401(k) plan, so blatant
an inconsistency would have triggered a memorable and
heated discussion. Rodeck already wanted to challenge Plant
on the point, but Plant’s response seems to have satisfied
him. Had Plant said that the 401(k) plan would definitely be
terminated, Rodeck would undoubtedly have pursued the
matter in a way which others would recall. Therefore, I find,
that during the February 6 meetings, Plant did not threaten
the loss of the 401(k) retirement plan.
Furthermore, insofar as the reference to the Saturday cas-
uals is concerned, an employer is free to refer, truthfully, to
circumstances which have occurred elsewhere. The Team-
sters in Chicago had actually negotiated a collective-bargain-
ing contract which favored full-time or regular part-time em-
ployees over casuals. That fact is certainly grist for an elec-
tion campaign. It does not constitute a threat that the casuals
locally would actually lose their jobs. Negotiations always
involve certain risks as well as advantages. An employer is
free to refer to both of those, so long as he does not make
an actual threat or a promise of benefit.
D. James Monson
James Monson is a veteran driver for Respondent. In late
January 1991 his job included sorting and loading freight, as
well as delivering it.
He testified that during the last week of January he had
a conversation with one of the supervisors, Dale Wait. He
says he remembers it ‘‘vividly.’’ Monson testified it occurred
while he was loading his vehicle and, although there were
other employees around, they were not involved in the con-
versation. He says he observed Wait walking around but can-
not recall exactly how the conversation started, for he talks
to Wait every day. He believes it began as just ‘‘casual
talk.’’ Monson said that he and Wait had ‘‘talked union quite
a bit before the election, it was a hot topic . . . everybody
was talking about it . . . .’’ Nevertheless, in this conversa-
tion, Monson says Wait told him he ‘‘thought it was a bad
idea to have a union in the company . . . It would do us
more harm than good.’’ Monson says Wait said, ‘‘We could
lose our benefits or we could also lose our vacation, or sick
pay and . . . I believe it was sick pay and holiday pay.’’ He
quotes Monson as saying ‘‘It would not be good . . . We
could end up closing the company if we did get a union in.’’
Monson goes on to clearly say that the remarks Wait made
‘‘was his opinion.’’
Monson then refers to Wait’s description of an experience
he had had in Milwaukee some years before. Wait apparently
told Monson that during his tenure at the Milwaukee termi-
nal, it turned out that the union there hadn’t done them any
good and that it was a ‘‘real rough situation.’’ He was un-
able to describe with any particularity what Wait had actually
said in that regard. However, it is clear that even though he
mentioned that it was ‘‘rough,’’ he was referring to a ‘‘tense
time during . . . negotiations, or something.’’5 Later, he says
Wait told him that the company ‘‘could reduce wages.’’ He
went on to say that Wait told him that if the employees do
vote for the Union, there is nothing saying that the Company
couldn’t lower the wages.
Wait testified that he is the operations supervisor respon-
sible for the ‘‘P.M.’’ functions and during the preelection pe-
riod, supervised about 16 courier-drivers. He has worked for
Respondent for about l6 years, although the last 5 were in
Minneapolis. Prior to that he worked in Milwaukee.
He says in 1975 while working as a dock worker for Re-
spondent’s Milwaukee operation, he organized dockworkers
for a Teamsters local. He remembers after an NLRB election
that it took about 10 to 12 months to get a contract and dur-
ing the year under the contract the dockworkers became dis-
satisfied with their representation. As a result, he was equally
involved in the decertification process.
He says that a few of the Minneapolis employees knew of
his involvement with the Teamsters in Milwaukee, including
Monson. He says he remembers Monson asking him at some
point how the Teamsters had dealt with the employees in
Milwaukee. He says that he responded that there was some
problems but there are also problems with the Company, too.
He emphatically denies having told Monson that Monson or
the employees would be sorry if they voted for the Union
and denies that he ever said that the employees would lose
wages or benefits.
He does recall a conversation which appears to be the
same one which Monson describes. He says Monson ac-
costed him while he was hurrying toward the dispatch office
to answer a telephone call. He says Monson called to him
from his truck, so he ran over. Monson then asked his opin-
ion about the Union. Waits says, ‘‘Basically, all I told him
was . . . they would be your bargaining unit. They would
represent you. You could get more money out of it, you
could get less. I would have no idea. I don’t think anybody
would know until it was actually negotiated. I have no idea.
192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I mean, hopefully, they would get everything they want.’’ He
concluded, ‘‘I mean, he is a personal friend of mine. I’d
never threaten him.’’
The direct examination of both these witnesses seems en-
tirely credible. The principal difference is that Wait seemed
to handle the cross-examination better than Monson. In
cross-examination Monson agreed that he and Wait were
friends and that it was a casual conversation. He further
agrees that he has had many conversations with Wait about
his experience in Milwaukee. When asked for specific recol-
lections of the conversations he had had with Wait regarding
Milwaukee, Monson repeatedly said he did not recall, saying
at one point he did not recall because he just ‘‘blew it off.’’
When counsel asked what he meant by that phrase, he said
again that he didn’t recall.
Frankly, Monson’s response here leads me to conclude
that his recollection is not as ‘‘vivid’’ as he initially claimed.
Among other things, he agrees that these were casual,
unremarkable conversations and that he recalled very little of
them. Based on that I conclude that his recollection is insuf-
ficiently strong to warrant a finding that Wait made any re-
mark which constitutes an unlawful threat.
E. Merry Bolle
Merry Bolle was a courier-driver from 1988 until April
1991, when she was laid off. In early February her imme-
diate supervisor was Dan Swaser. On February 7 Bolle was
undergoing the third ride of a routine ‘‘on-job survey,’’ i.e.,
a ride with her supervisor. She testified she and Swaser are
generally friendly.
During this particular ride, between the terminal and her
first stop, normally the ‘‘Quality Park,’’ Swaser suggested
that perhaps she should cover other stops before that one.
She says, ‘‘Then he casually asked me how I felt about the
union.’’ She says the question seemed ‘‘to come out of the
blue.’’ She answered that she did not know how she felt; she
had mixed feelings. She says that he went on to say that he
had worked for another company where he had gotten laid
off but the union had not helped him. She says she re-
sponded that the reason that she had mixed feelings was be-
cause, ‘‘You hear one thing from the union and one thing
from the company, and you just don’t know which way to
go. You’re confused.’’ At that point, she says, Swaser turned
to other subjects and the ride continued without further ref-
erence to the Union. Indeed, on cross-examination she agrees
Swaser did not press her further and did not follow it up
later. She also agrees he told her that it was his opinion that
the Union hadn’t done anything for him at his previous em-
ployment.
Swaser testified that although he has worked for the Com-
pany for 15 years, his promotion to operations supervisor
was quite recent. The upgrade occurred about 8 months be-
fore his testimony, or about 5 months before he took the
third job survey ride with Bolle. He said that the entire sur-
vey lasted about 4-1/2 hours and they made about 20 stops.
He made some suggestions regarding the manner in which
she should perform her job and they talked about a number
of things during that period including each other’s children.
He agrees that during the first part of the ride he asked
her what she felt about the Union. He further agrees that she
answered that she was ‘‘torn between the two.’’ He says he
recognized right away that she was uncomfortable talking
about that subject so he did not proceed. He says the entire
matter took about 1-1/2 minutes. (She says it took between
4 and 5.) He says, and she apparently does not disagree, that
he never asked her how she intended to vote in the election
nor did he ask her to vote against the Union.
On cross-examination Swaser concurred with Bolle that he
had referred to an earlier experience he had had as a United
Auto Workers member, saying he told her that in 1973 when
he participated in a U.A.W. strike he had never gotten his
job back. He believes he told her he thought that was ‘‘a bad
experience.’’
Based on the testimony of the two, I conclude that
Swaser’s question to Bolle had the reasonable tendency to
interfere with her free exercise of the right to choose or not
to choose a union. It is undisputed that he asked her how she
felt about the Union and he did so at a time when there was
no need. It also occurred in the proximity of the cab of a
truck. In one sense I think it is fair to say that his question
was not really intimidating; the two were on good personal
terms. Nonetheless, the question constituted an unwarranted
interrogation about her personal views toward union rep-
resentation. The fact that the NLRB election was upcoming
and the fact that the subject of the Union was a commonly
discussed topic within the Minneapolis and Eagan terminals
does not excuse or justify the question itself. In context, we
have a supervisor in an enclosed area questioning an em-
ployee about how she felt about the Union. That constitutes
a violation of Section 8(a)(1) of the Act. Quemetco, Inc., 223
NLRB 470 (1976). The circumstances are not devoid of co-
ercive effect. See Sunnyvale Medical Clinic, 277 NLRB 1217
(1985).
F. Supervisor Quinn’s Meeting of February 12
The parties have stipulated that the election was conducted
on February 13, 1991, with the first polling period beginning
at 6 a.m. On the morning before, February 12, Operations
Supervisor Fred Quinn, conducted a G.I.T. meeting at the
Eagan facility beginning about 7:30 a.m.
Couriers Brain Rodeck and Earnest Bischoff testified
about it. The meeting followed a directive to employees
made over the intercom system; approximately 18 drivers
were present. Rodeck says during the meeting Quinn re-
minded the couriers the election was scheduled for the fol-
lowing morning and he wanted the drivers to ‘‘feel com-
fortable’’ with the fact that the Company was doing well fi-
nancially. Rodeck then says Quinn told them, ‘‘If you vote
‘yes’ or if you vote ‘no,’ that is the way the cookie crum-
bles, but I urge you to vote ‘no’ in the upcoming election.’’
In addition Rodeck testified, ‘‘It was also brought to our
attention again that we would be receiving our $120 bonus
. . . he didn’t go into detail about it. It was just said that
we would be receiving our $120 bonus . . . for some incen-
tive goals that was going on at the present time.’’
On cross-examination Rodeck stated that Quinn urged the
employees to vote no, but that it was the same thing others
had said before. He also said Quinn urged them to ‘‘vote’’
and announced the election was to be conducted the next
day. He remembers Quinn saying, ‘‘No matter how you
[feel], please vote.’’ He also says Quinn did not discuss the
issues in any way and did not mention wages, benefits, or
any of the issues involved in the election.
193EMERY WORLDWIDE
6 It appears from Bischoff’s and others’ testimony that there have
been bonus programs of one sort or another in place in previous
years.
Bischoff testified that he too attended the 7:30 a.m. meet-
ing, although it was not mandatory for him. He had come
in to get coffee. Bischoff says, ‘‘Well, I got in there just
about the time [Quinn] came up with telling us the election
was coming up.’’ He remembers Quinn saying he wanted to
make sure everyone voted, then going on to say, ‘‘We urge
you to vote ‘no.’’’
Bischoff also remembers the discussion about the bonus.
He recalls Quinn saying that Minneapolis had been voted
‘‘the No. 1 terminal’’ and then concedes he isn’t certain if
Quinn mentioned a specific dollar amount or not.
On cross-examination, he decided that Quinn had not men-
tioned the dollar amount of the bonus.6 Furthermore, on
cross-examination Bischoff agreed that Quinn’s meeting was
‘‘not mandatory for me’’ and he also agrees that Quinn said
‘‘no matter which way you vote, please vote—it was impor-
tant to vote.’’
Bischoff initially said the discussion about the election
lasted about 10 minutes; however, when pressed on cross-ex-
amination and faced with his affidavit, he conceded that the
entire matter was brief and the reference to the election was
only made ‘‘in passing.’’
Quinn testified that the February 12 G.I.T. meeting was
called at about 7:25 a.m. and once it got going the entire
meeting lasted for about 5 minutes. Quinn says he mentioned
four things during this particular meeting; all were relatively
brief. The four items were: a new two-way radio system, the
bonus, some management changes at the corporate level in
Palo Alto, and the upcoming election. It is not clear from his
testimony in what order the matters were discussed.
Insofar as the election is concerned, he says he recalls his
exact words which were: ‘‘Tomorrow will be the day of the
election. Please vote. It is important that you vote. Tomorrow
will determine whether we will be organized by a union or
not, so whatever you do, vote.’’ He denies discussing any
issues such as wages, benefits or union dues. Furthermore,
he says that he did not urge the employees to vote ‘‘no.’’
He agrees that he did announce the bonus. By way of
background, it appears that the bonus program had been an-
nounced in December by general manager Briggs at a meet-
ing at the airport terminal conference room. Quinn says the
employees who attended the December meeting at which
Briggs made the announcement were essentially the same
employees who attended his February 12 G.I.T. meeting.
Quinn asserts that the competition was companywide based
on the size of the terminal, so that terminals of roughly equal
size were competing against one another. Quinn says on the
evening of February 11, Briggs showed him a computer mes-
sage he had just received stating that the Minneapolis office
had met the goals of the competition. He says no one, in-
cluding Briggs gave him any instructions to tell the employ-
ees about it and even then he did not know the amount of
the bonus. Nonetheless, he says, he was ‘‘elated.’’
Accordingly, at the G.I.T. meeting the following day, he
announced that the employees had exceeded the goal and that
they were eligible for the bonus.
There is no evidence that he directly connected the bonus
to the election during the meeting, although it is obvious,
given the brief nature of the meeting, a connection could be
inferred. Moreover, Quinn agrees that he once told an NLRB
agent that he hoped the bonus ‘‘would boost the morale of
the employees.’’ He explains that he did not regard the em-
ployees’ morale as particularly low or even related to the
perceived need for union representation. Instead, he says, he
is always concerned about morale and anything which will
improve it. He denies he hoped the bonus would encourage
employees to vote against union representation.
Couriers Larry Harris and Marshall Peterson both attended
the February 12 G.I.T. meeting. They both corroborate Quinn
in his assertion that he did not suggest that anybody vote
‘‘no.’’ Indeed, they both say Quinn told them to make cer-
tain they voted; that they could vote either way and that the
decision was the employees’ to make. Furthermore, both
Harris and Peterson, to a lesser extent, corroborate Quinn
with respect to the bonus. Both were aware of the bonus pro-
gram well before February. Harris remembers the meeting in
December with Briggs when the program was announced.
Peterson, too, was aware of the bonus before February. He,
however, does not remember Quinn discussing the bonus the
morning of February 12. Harris agrees with the remaining
witnesses that Quinn did discuss the bonus, but says Quinn
did not mention its size. He also says Quinn did not specifi-
cally connect the bonus to the election.
Rodeck also agrees that the incentive program had been
‘‘going on’’ for some time. He says in early January he
heard about the meeting Briggs had had at the airport con-
ference room. Furthermore, Rodeck says that 2 days before
Quinn’s G.I.T. meeting, he had heard from another source
that the employees were going to get the bonus. He does not
say what the source was.
With respect to the contention that Quinn urged employees
to vote against the Union during the February 12 G.I.T.
meeting, I find that the assertion has not been proven by
credible evidence. I find Quinn to be a forthright candid wit-
ness who had no difficulties in recollection. The same cannot
be said for either Rodeck or Bischoff. Furthermore, Quinn is
corroborated by both Harris and Peterson. Accordingly, I do
not find that any ‘‘campaigning’’ occurred at the G.I.T.
meeting on the morning before the election. It is true that
G.I.T. meetings are mandatory and in that sense could be
transformed into captive-audience meetings within the mean-
ing of the Peerless Plywood rule. Nonetheless, the Peerless
Plywood rule is directed at campaign meetings, not daily in-
formation meetings. Since no campaigning took place the
rule does not apply.
Moreover, even if I were to credit the contention that
Quinn urged people to vote ‘‘no’’ at this particular G.I.T.
meeting, it would not amount to the sort of captive speech
which the rule prohibits. See Livingston Shirt Corp., 107
NLRB 400 (1953). Accordingly, I am unable to conclude
that Quinn’s G.I.T. meeting constituted a captive audience
speech within the 24 hours preceding the election to warrant
setting it aside.
However, with respect to the announcement of the bonus,
I must conclude that Quinn, whether or not intended, en-
gaged in an unlawful promise of benefits within the meaning
of the Supreme Court’s decision in NLRB v. Exchange Parts
Co., 375 U.S. 405 (1964). The timing of the announcement
could not have been closer to the election. It occurred 24
hours before the election was to commence and occurred in
194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 For a discussion of the preelection critical period, see Ideal Elec-
tric & Mfg. Co., 134 NLRB 1275 (1961). In general, that case holds
that objectionable conduct (not unfair labor practices) must occur
after the filing of a representation petition or it will not be deemed
as having an affect on the outcome of the election. In this case the
petition had been dismissed at the time the bonus program was an-
nounced, but was reinstated during the competition.
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
9 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
a meeting at which voters were reminded to vote. Although
it is true that the size of the bonus was not announced at that
time, that omission pales when juxtaposed against the timing.
I have no difficulty concluding that employees would likely
view the two as connected. That being the case, the employ-
ees could not help but see the bonus as a message that the
source of their well-being was the Employer, not the Union.
It clearly interfered with the employees’ free exercise of their
Section 7 right to choose. And, in a very real sense it ap-
pears as a bribe to vote against union representation. See also
American Geri-Care, 270 NLRB 95 (1984).
Frankly, I credit Quinn’s reason for making the announce-
ment. Indeed, it appears that he acted entirely on his own.
If he had not, a similar announcement would have been
made at the airport terminal. There is no evidence that such
an announcement was made. Therefore, it seems likely that
Quinn was acting totally on his own. Unfortunately, whether
he was acting on his own or on management’s behalf, the
message he issued warrants a finding that the Section 8(a)(1)
of the Act was breached. It is the objective effect the mes-
sage is likely to have which is dispositive, not Quinn’s sub-
jective good intention or his innocence of the Act’s require-
ments. Therefore, his announcement, coming as it did on the
eve of the balloting tended to undermine the employees’ free
choice in that election.
Accordingly, based on the foregoing findings of fact, I
make the following
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and
in an industry affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent, acting through its supervisor and agent,
Dan Swaser, on or about February 7, 1991, violated Section
8(a)(1) of the Act by coercively interrogating an employee
regarding her union activities, sympathies, and desires.
4. Respondent on February 12, 1991, acting through its su-
pervisor and agent, Fred Quinn, violated Section 8(a)(1) of
the Act by announcing a bonus on the eve of a representation
election and thereby interfered with, restrained, and coerced
employees in the free exercise of their Section 7 rights to
choose or refrain from choosing a labor organization as their
collective-bargaining representative.
5. The General Counsel has failed to prove by a prepon-
derance of credible evidence that the Respondent engaged in
any other unfair labor practices as alleged.
REMEDY
Having found Respondent to have engaged in certain acts
and conduct which interfered with, restrained, and coerced
employees in the exercise of their Section 7 rights, I shall
recommend that it be ordered to cease and desist therefrom.
In addition, I shall recommend that it take certain affirmative
action designed to remedy the unfair labor practices.
III. RECOMMENDATION REGARDING THE
REPRESENTATION ELECTION IN CASE 18–RC–14676
In view of the the unfair labor practices committed by Re-
spondent’s supervisors Quinn and Swaser, I recommend that
the Board set aside the representation election in Case 18–
RC–14676 and, after an appropriate remedial period, conduct
a second election. In this regard, Quinn’s pre-election an-
nouncement of a bonus aimed directly at the voting unit in
question cannot be ignored under the Exchange Parts rule.
It is not necessary to rule on Respondent’s argument that the
pre-election critical period was not reestablished until the
Board’s remand.7 It is not the bonus program itself which is
of concern, but the timing of the announcement that these
particular employees had won. Moreover, the fact that Quinn
withheld (because he did not know) the size of the award
does not assist Respondent’s defense. The announcement
itself carried with it the promise of money and the timing
was such that the bonus and the election cannot be seen as
disconnected. Accordingly, a rerun election is required.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The Respondent, Emery Worldwide, a CF company, Min-
neapolis, Minnesota, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Coercively interrogating its employees with respect to
their union activities, sympathies, and desires.
(b) Announcing or offering bonuses or other things of
value in circumstances where such an offer tends to interfere
with the freedom of employees to choose or refrain from
choosing a collective bargaining representative in an NLRB
representation election.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its Minneapolis and Eagan, Minnesota facilities,
copies of the attached notice marked ‘‘Appendix.’’9 Copies
of the notice, on forms provided by the Regional Director for
Region 18, after being signed by Respondent’s authorized
representative, shall be posted by Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
195EMERY WORLDWIDE
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT coercively interrogate our employees with
respect to their union activities, sympathies, and desires.
WE WILL NOT announce or offer bonuses or other things
of value in circumstances where such an offer tends to inter-
fere with the freedom of employees to choose or refrain from
choosing a collective bargaining representative in an NLRB
representation election.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
EMERY WORLDWIDE, A CF COMPANY