Flex Products, Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1986

280 N.L.R.B. 1117 (N.L.R.B. 1986)

FLEX PRODUCTS
Flex Products, Inc. and Shopmen 's Local Union No.
662 of the International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-
CIO, Petitioner. Case 8-RC-13190
26 June 1986
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
The National Labor Relations Board, by a three-
member panel, has considered determinative chal-
lenges in an election held 19 April 1985 and the
Regional Director's report recommending disposi-
tion of them. The election was conducted pursuant
to a Stipulated Election Agreement. The tally of
ballots shows 42 for and 106 against the Petitioner,
with no challenged ballots.
The Board has reviewed the record in light of
the exceptions, has adopted the Regional Director's
findings and recommendations only to the extent
consistent with this decision, and finds that a certi-
fication of results of election should be issued. The
hearing officer recommended overruling the Peti-
tioner's Objections 3, 4, 6, 8, and 14 and sustaining
its Objection 2. In the absence of exceptions, we
adopt the recommendations to overrule the various
objections. For the following reasons, we do not
adopt the recommendation to sustain Objection 2.
Shopmen's Local 662 petitioned to represent the
production and maintenance employees at the Em-
ployer's Mt. Eaton, Ohio plant. Two days before
the election, the Employer held meetings of the
first- and second-shift employees at which the Em-
ployer's president, Glenn Burket, gave speeches
opposing the Union. On the next day, over a 10-
hour period, about 120 of the 164 unit employees'
were called one at a time into the plant manager's
office, where they met with Burket alone . (Burket's
own office was not located at the Mt. Eaton facili-
ty.)
Burket told each employee that the purpose of
the meeting was to give the employee an opportu-
nity to ask Burket questions concerning the mass
meeting held the previous day, because some
people were too shy to ask questions in front of a
group. The evidence concerning what further tran-
spired in these individual meetings is as follows.
Employee Eve Karlen testified that her meeting
with Burket "was about the voting and any ques-
tions you had about the Union. He thought that
' The hearing officer's report states that Burket met with "all Flex em-
ployees" and "virtually every employee eligible to vote," but these state-
ments are not supported by the record Apparently Burket met with all
the employees in the unit who were present that day
280 NLRB No. 61
1117
some might be too shy to have asked him any
questions . So it was about the Union, I guess." She
testified that her meeting with Burket, as well as
those of other employees, lasted about 5 minutes,
although "some people were in there longer."
Concerning her meeting with Burket, employee
Kathleen Brand testified:
I asked him why the company and the union
couldn't work together for the benefit of the
company. He said not with this union. Then
he said that people might have their minds
made up, and then once they get in the voting
booth, change at the last minute. Then he
asked me when my baby was due and things
like that, how many kids I had.
Employee Louisa Tusing testified that in re-
sponse to a question she asked during her meeting
with Burket, Burket said that the Company had
moved out of its Midvale facility because the union
was costing them money and was more trouble
than it was worth.
Finally, employee Roberta Zimmerly testified
that she had been in the office area and overheard
part of the meeting between Burket and an em-
ployee named Juanita. According to Zimmerly,
Juanita said to Burket, "I thought we weren't al-
lowed to talk to you 24 hours before the vote."
Burket replied, "I'm allowed to talk to anybody I
want. This is my company." Zimmerly heard noth-
ing further except that at the end of the conversa-
tion Juanita said , "Thanks for talking to me, Glenn.
I appreciate it," and Burket replied, "I'd appreciate
your `no' vote."
There was also uncontroverted testimony that
Burket had on previous occasions talked to em-
ployees in the plant manager 's office and had
walked around the plant and talked to employees.
Also, it appears that the employees customarily
called Burket by his first name.
As noted, the hearing officer recommended that
all the Union's objections to the election be over-
ruled except Objection 2, concerning Burket' s indi-
vidual meetings with employees during the 24-hour
period before the election.
With respect to Objection 2, the hearing officer,
rejecting the Union's contention, found that Bur-
ket's individual meetings with employees did not
violate the rule of Peerless Plywood, 107 NLRB 427
(1953), barring election speeches on company time
to massed assemblies of employees within 24 hours
prior to the election.2 The hearing officer, howev-
2 We note that although no exceptions have been filed to the hearing
officer's finding that the Employer's conduct did not violate the rule of
Peerless Plywood, we specifically agree with the finding
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er, found Burket 's meeting with the individual em-
ployees to be objectionable conduct under NVF
Co., 210 NLRB 663 (1974). That case holds that
when an employer during an election campaign
calls employees , individually or in small groups,
into a private, area removed from their normal
workplace and urges them to reject the union, such
actions may constitute objectionable conduct de-
pending on the size of the groups interviewed, the
locus of the interview, the position of the inter-
viewer in the employer's hierarchy, and the tenor
of the speaker's remarks . Applying this test, the
hearing officer found that in this case the size of
the group interviewed could not be any smaller as
the Employer interviewed each employee individ-
ually; the interviews took place in the "locus of
final authority in the plant," the plant manager's
office; the interviewer was the highest official in
the Company, the president; and the tenor of the
speaker's remark was "decidedly anti-union and a
solicitation for a 'no' vote on the next day." Ac-
cordingly, the hearing officer held that Burket's in-
dividual meetings with the employees reasonably
tended to interfere with the employees' free choice
in the election and recommended that the election
be set aside.
We disagree with the hearing officer's conclusion
that Burket's meetings with individual employees
constituted objectionable conduct under NVF Co.,
supra . Prior to NVF, the Board, in Peoples Drug
Stores, 119 NLRB 634, 636 (1957), had held objec-
tionable "the technique of calling employees, indi-
vidually or in small groups , into a private area re-
moved from the employees' normal workplaces
and urging them to reject the union." NVF reject-
ed the per se rule of Peoples Drug Stores and held
that such conduct would be deemed objectionable
"only where it can be said on reasonable grounds
that, because of the small size of the groups inter-
viewed, the locus of the interview, the position of
the interviewer in the employer's hierarchy, and
the tenor of the speaker's remarks , we are not justi-
fied in assuming that the election results represent-
ed the employees' true wishes." The Board added,
"In making this determination, all the facts in a
particular case must be carefully weighed." 210
NLRB at 664.
Applying the factors articulated in NVF, we find
that, although the employees were interviewed in-
dividually, there is no evidence that the employees
were being singled out for special pressure, the
factor which was of concern in NVF. To the con-
trary, Burket told each employee that he was
speaking to the employees individually because he
thought that shy individuals may be unwilling to
present questions in a group . Moreover , the em-
ployees were aware that Burket was meeting indi-
vidually with virtually every employee present at
the plant . Although the locus of the interview was
the plant manager's office , there is evidence that
the employees had been in the plant manager's
office on prior occasions to meet with Burket or
for other reasons, and that they were familiar with
it. Burket himself was familiar to the employees be-
cause he periodically visited the plant and walked
around and greeted the employees . Several of the
employee witnesses called him by his first name.
Finally, contrary to the hearing officer 's conclu-
sion , the record is quite clear through the testimo-
ny of each employee witness that the tenor of Bur-
ket's remarks to the employees in his meetings with
them was noncoercive and temperate in tone.3
Burket told each employee that the purpose of his
meeting with them was to give them an opportuni-
ty to ask him questions concerning the previous
day's meetings because some people were too shy
to ask questions in front of a group . Burket an-
swered whatever questions the employees had and
then simply made small talk with them . Burket's
request at the end of his meeting to one or more
employees that the employee "vote no" does not
constitute coercive or intimidating conduct, which
warrants setting aside the election . Therefore, and
in view of our findings with respect to the other
three factors discussed above , we conclude that
Burket's individual meetings with employees did
not constitute conduct warranting that the election
be set aside under the test of NVF. Accordingly,
we shall certify the results of the election.
CERTIFICATION OF RESULTS OF
ELECTION
IT IS CERTIFIED that a majority of the valid bal-
lots have not been cast for Shopmen 's Local Union
No. 662 of the International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-
CIO, and that it is not the exclusive representative
of these bargaining unit employees.
3 As noted above, the hearing officer characterized the remarks attrib-
uted to Burket as "decidedly anti-union " The hearing officer did not
specify the testimony on which he relied or otherwise elaborate on the
basis for his characterization of the remarks attributed to Bucket. Consid-
ering all the evidence concerning such remarks, including Burket's state-
ment in response to employee questions and his statement that he would
appreciate a "no" vote, we cannot agree with the hearing officer's char.
acterization.