Lake Superior District Power Co.

National Labor Relations Board - Board Decisions

Mar 28, 1950

88 N.L.R.B. 1496 (N.L.R.B. 1950)

In the Matter of LAKE SUPERIOR DISTRICT POWER COMPANY, EMPLOYER
and LOCAL No. 276, INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, AFL, PETITIONER
Case No. 18-RC-349.-Decided March 28, 1950
DECISION.
AND
ORDER SETTING ASIDE ELECTION
Pursuant to a Decision and Direction of Election 1 dated Novem-
ber 10, 1949, an election by secret ballot was conducted in this case on
December 7 and 8, 1949, under the direction and supervision of the
Regional Director for the Eighteenth Region, among the employees
in the unit found appropriate in said Decision. Upon completion
of the election, a Tally of Ballots was issued and duly served by the
Regional Director upon the parties concerned. The tally reveals
that of approximately 191 eligible voters, 187 cast valid ballots, of
which 70 were for, and 112 against the Petitioner, and 5 were
challenged.
On December 15, 1949, the Petitioner filed Objections to Conduct
Affecting the Results of the Election. Thereafter, on February 17,
1950, following an investigation, the Regional Director issued and
duly served on the parties his Report on Objections, in which he found
that the objections raised material issues with respect to the election
and recommended: (1) that the objections be sustained; and (2)
that the election be set aside. On. February. 24, 1950, the Employer
duly filed Exceptions to the Regional Director's Report on Objections.
The Board 2 has considered the Report on Objections to Election,
exceptions filed by the, Employer, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Regional Director, insofar as they are consistent with the findings
and conclusions set forth below :
In the seventh objection raised by the Petitioner, it is asserted that
the Employer, immediately prior to the election, addressed a letter
1 87 NLRB S.
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Members Reynolds , Murdock, and Styles].
88 NLRB No. 237.
1496
LAKE SUPERIOR DISTRICT POWER COMPANY 1497
to all employees in which increased pension benefits were discussed
and statements made which were coercive and which were calculated
to and did preclude those employees eligible to vote from exercising
their free choice of a collective bargaining representative . As a result
of an investigation the Regional Director found that the Employer,
for at least a year prior to the election , had been considering a Sur-
vivors Income Insurance plan which was finally adopted by the Em-
ployer and became effective October 31 , 1949. However , although
the Employer was notified on November 25, 1949, of the effective date
of the insurance , it did not notify its employees of this new benefit
until December 5, 1949, 2 days prior to the representation election.
The announcement of this substantial benefit which contained the in-
formation that the insurance was to be paid for entirely by the Em-
ployer, was made by means of a letter signed by the president of the
Employer and mailed to individual employees. This letter, which
contained many expressions of an electioneering type, included the fol-
lowings statements :
We have been working on an enlargement of the pension
plan . . . if the plan becomes operative , the past service
benefits will be increased 50% ... I am now wondering
whether or not you can be assured of any more satisfactory con-
ditions if , instead of representing yourself personally and freely,
you designate representatives of a different and larger group.
The Regional Director concluded that the objections , insofar as
they pertain to the pension and insurance benefits alleged in objection
No. 7, raised substantial and material issues with respect to conduct
affecting the results of the election . The Employer , in taking excep-
tion to the Regional Director 's conclusions, in substance denies that
the letter of December 5, 1949, contained a promise of benefit or that
by its intrinsic implications it was an enticement to employees. The
Employer further denies that the letter interfered with or prevented
or tended to prevent employees from exercising their free choice of
a bargaining representative , and denies that the Employer 's conduct
was coercive or that it was calculated to or did interfere with or pre-
clude employees from exercising their free choice .3 The Employer
3 The Employer also takes exception to the Regional Director's ruling that the objections
of the Petitioner were filed within the time designated by the Rules and Regulations of the
Board . The Tally of Ballots was served oh the parties on December 8, 1949. The Peti-
tioner 's objections were received on December 15, 1949 . In view of the fact that under
Section 203.86 of the Board ' s Rules and Regulations , the date of service of the Tally of
Ballots, Saturday and Sunday , are not to be computed in determining the duration of the
objection period, the Petitioner 's objections were timely filed on the fifth day of the
objection period as prescribed by the Board ' s Rules and Regulations . Craddock-Terry Shoe
Corp ., 82 NLRB 161 . The Regional Director ' s finding, in response to the Employer 's, reply
of December 20, 1949 , to the objections , that the objections were timely filed within the
meaning of Section 203.61 of the Rules and Regulations of the Board , is hereby affirmed.
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
urges that in writing this communication it was merely exercising
its constitutional and statutory right of free speech, and that such
communication is privileged by Section 8 (c) of the Act .4
We find no merit in the Employer's exceptions. The Board has held
repeatedly in unfair labor practice proceedings that the disclosure of
economic benefits and the announcement of proposed additional eco-
nomic benefits at a strategically selected time, either during a union's
organizational campaign or immediately preceding a representation
election is violative of Section 8 (a) (1) of the Act; S and that such
conduct is beyond the protection of free speech guaranteed by Section
8 (c) of the Act." Although it appears that the original purpose of
the Survivors Income Insurance plan may have been unrelated to the
organizational drive of the Petitioner, there is nothing in the record
to indicate that the Employer was under any obligation to announce
its adoption of this plan and the pending enlargement of the pension
plan only 2 days before the election. It appears therefore that the
sole purpose of the announcement at this time was to influence the
employees in their choice of a bargaining representative through the
promise of an economic benefit from the Employer.7 We find there-
fore that the Employer's timing of the announcement of a Survivors
Income Insurance plan paid for entirely by the Employer, and the
disclosure of a pending enlargement of the pension plan accompanied
by the solicitation of employees to vote against the Union, constitutes
interference of the type which we would find violative of Section 8
(a) (1) of the Act if presented to us in an unfair labor practice pro-
ceeding." It follows that such conduct, which occurred so shortly be-
fore the election as to have been calculated to have an effect upon the
action of the employees at the polls, interfered with their free exercise
of the right to choose a bargaining representative.9 Accordingly, we
shall set the election aside70 We shall direct a new election at such
time as the Regional Director advises us that the circumstances permit
a free choice among the employees herein concerned.
4 Section 8 (c) of the Act reads as follows : "The expressing of any view, argument, or
opinion, or the dissemination thereof, whether in written, printed or graphic, or visual
form, shall not constitute or be evidence of an unfair labor practice under any of the
provisions of this Act, if such expression contains no threat of reprisal or force or promise
of benefit."
R The Bailey Company, 75 NLRB 941; West Ohio Gas Company , 76 NLRB 179; The
National Plastic Products Company, 78 NLRB 699 ; Agar Packing & Provisions Corporation,
81 NLRB 1262.
Minnesota Mining & Manufacturing Co., 81 NLRB 557, and cases cited therein.
West Ohio Gas Company, 76 NLRB 179; Lancaster Garment Company, 78 NLRB 935;
Minnesota Mining & Manufacturing Co., 81 NLRB 557.
8 See footnotes 5, 6, and 7, supra.
9 The Univis Lens Company , 82 NLRB 1390.
10 Because of our determination herein, we find it unnecessary to pass upon the other
objections raised by the Petitioner.
LAKE SUPERIOR DISTRICT POWER COMPANY 1499
ORDER
IT IS $EREBY ORDERED that the election held on December 7 and 8,
1949, among the employees of the Lake Superior District Power Com-
pany of Ironwood, Michigan, be, and it hereby is, set aside.