MacDonald Machinery Co.

National Labor Relations Board - Board Decisions

Aug 27, 2001

335 N.L.R.B. 319 (N.L.R.B. 2001)

MACDONALD MACHINERY CO. 319
MacDonald Machinery Co., Inc. and Local 150, In-
ternational Union of Operating Engineers,
AFL–CIO. Case 25–RC–9930 (Amended)
August 27, 2001
DECISION AND CERTIFICATION OF RESULTS
OF ELECTION
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held on April 21, 2000, and the hearing officer’s report
recommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agreement.
The tally of ballots shows three for and four against the
Petitioner, with one challenged ballot, an insufficient
number to affect the results.
The Board has reviewed the record in light of the Peti-
tioner’s exceptions and brief,1 has adopted the hearing
officer’s findings2 and recommendations, and finds that a
certification of results of election should be issued.
Contrary to our dissenting colleague, we agree with the
hearing officer’s recommendation to overrule the Peti-
tioner’s Objection 8, which alleged that the Employer
engaged in objectionable conduct by soliciting and prom-
ising to remedy employee grievances during the critical
period.
As found by the hearing officer, the Employer had a
practice of soliciting and remedying employee com-
plaints. In November 1999, 9 weeks before the Peti-
tioner’s organizing drive began and 4 months before the
March 13, 2000 representation petition was filed,3 em-
ployees at the Employer’s South Bend, Indiana facility
requested a meeting with Joseph Shimek, the Employer’s
vice president. During the meeting, the employees raised
concerns regarding customer service and complained
about some of the working conditions in the shop.
Shimek told the employees that he would have to spend
more time with the South Bend managers to correct some
of the problems, that it would take some time to
straighten things out, and that if it took 6 months or a
year, he hoped that they would allow him that time. Af-
ter that meeting, Shimek did address and correct certain
problems.

1 In the absence of exceptions, we adopt pro forma the hearing offi-
cer’s recommendation to overrule Objection 5.
2 The Petitioner has excepted to some of the hearing officer's credi-
bility findings. The Board's established policy is not to overrule a hear-
ing officer's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Stretch-Tex
Co., 118 NLRB 1359, 1361 (1957). We find no basis for reversing the
findings.
3 All dates hereafter refer to 2000 unless otherwise stated.
The record also indicates that in 1999, i.e., before the
commencement of the union campaign, employee Smed-
ley had ongoing talks with Shimek regarding the shop
manager’s lack of organizational skills. Eventually, on
March 10, Shimek discharged the shop manager for fail-
ing to make certain customer service changes, and 3 days
later Shimek temporarily assumed the service manager
position. At that time, Shimek again reassured the em-
ployees that he was committed to do whatever it took to
have things done the way they needed to be, no matter
how long it took.
In early April, Shimek asked Smedley what he could
do to improve the shop operation. Although this was
after the petition was filed, it was only a few weeks after
Shimek had assumed the service manager position. The
two discussed some of the changes that Shimek had al-
ready made, and Shimek told Smedley “that the changes
that had already been implemented took time to initiate,
and they needed to make some more changes to improve
conditions . . . if he would give them a year to make the
shop a better place, and if he (Smedley) was still un-
happy, then he (Shimek) would contact the union.”
(HOR at p. 8)
As an initial matter, we do not find that Shimek’s
statement to Smedley that, in effect, the Employer
needed more time to make the shop a better place, consti-
tuted an expressed or implied promise of benefits. See
National Micronetics, Inc., 277 NLRB 993 (1985). Such
generalized expressions of an employer’s desire to make
things better have long been held to be within the limits
of permissible campaign propaganda. Id. citing Al-
lied/Egry Business Systems, 169 NLRB 514, 517 (1968).
In the instant case, Shimek was reiterating his request
that employees allow him the time to make good on his
prepetition promise to “straighten things out.”
As to the alleged solicitation of grievances, the Board
stated in Traction Wholesale Center Co., 328 NLRB
1058 (1999):

When an employer undertakes to solicit em-
ployee grievances during an organizational cam-
paign, there is a “compelling inference,” which the
Board can make, that the employer is implicitly
promising to correct the grievances and thereby in-
fluence employees to vote against union representa-
tion. Such conduct violates the Act. Reliance Elec-
tric Co., 191 NLRB 44, 46 (1971), enfd. 457 F.2d
503 (6th Cir. 1972).

Thus, when an employer undertakes the soliciting of
grievances only after a union has begun to organize its
335 NLRB No. 27
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 320
employees, the Board may draw an inference that the
employer is promising benefits in an effort to persuade
its employees that they do not need a union.
In the present case, however, the Employer undertook
to solicit employee grievances prior to the onset of the
union campaign. As explained above, employees ap-
proached Shimek more than 2 months before the advent
of the Union campaign to request a meeting to air em-
ployee complaints. The Employer could have declined
to hold such a meeting. Instead, the Employer held the
meeting, and at that meeting the Employer solicited em-
ployee grievances and thereafter undertook to resolve
them.
The Employer’s willingness to listen to employee
complaints, its solicitation of their grievances, and its
efforts to resolve them are also revealed in Shimek’s
dealings with Smedley. As explained above, in 1999,
again before the onset of the union campaign, Shimek
and Smedley held conversations in which Smedley
shared his concerns about the shop and the shop man-
ager. Eventually, in an effort to resolve employee griev-
ances and to improve the shop operation, Shimek dis-
charged the shop manager and took on the service man-
ager position himself. It was within this context that
Shimek asked Smedley what Shimek could do to im-
prove the shop operation.
Thus, the facts of the present case are clearly distin-
guishable from the situation described in Traction
Wholesale Center, supra. Before the Petitioner came on
the scene, the Employer had been presented with em-
ployee concerns and had begun to address and correct
some of these concerns. During this time, Shimek and
Smedley had ongoing discussion regarding the deficien-
cies of the shop manager. Shimek told Smedley and other
employees that the changes would take time and that he
hoped they would allow him that time. In these circum-
stances, there can be no “compelling inference” that
Shimek’s query of Smedley regarding what Shimek
could do to improve the shop operation was intended to
influence employees to vote against the Petitioner.
Rather, it was part of the Employer’s ongoing effort to
improve its shop operation by identifying problems and
correcting them.
Our colleague concedes that, prior to the Union’s cam-
paign, the employees approached the Employer about
problems. However, she argues that, after the campaign
began, the Employer approached the employees about
possible problems. In our view, the difference is not
critical. The significant point is that, both prior to the
onset of the union campaign and after, the Employer was
willing to listen to the complaints of its employees and to
respond to them. There was neither a need nor a warrant
to change this practice simply because of the union cam-
paign. The ultimate question is whether there has been a
promise of benefits in order to influence a union cam-
paign. As indicated above, we conclude there was no
such promise. To be sure, there were discussions of em-
ployee complaints, but these occurred before and after
the union campaign began. In the circumstances here, the
issue of which party began those discussions is not dis-
positive. Thus, it makes no difference whether Shimek or
Smedley initiated the April discussion regarding how to
improve the shop. Shimek had already promised to im-
prove conditions in response to employee concerns. His
inquiry to Smedley was within the scope of this original
promise and part of an ongoing dialogue with employees.
CERTIFICATION OF RESULTS OF ELECTION
It is certified that a majority of the valid ballots have
not been cast for Local 150, International Union of Oper-
ating Engineers, AFL–CIO, and that it is not the exclu-
sive representative of these bargaining unit employees.

MEMBER LIEBMAN, dissenting in part.
Contrary to the majority, I would sustain the Union's
Objection 8 and find that Vice President Joseph Shimek
improperly solicited employee grievances prior to the
election by questioning employee Timothy Smedley
about what could be done to improve operations in the
Employer’s shop. The evidence presented by the Peti-
tioner showed that, during the critical period (i.e., be-
tween the filing of the petition and the election), Shimek
approached Smedley and asked him what Shimek could
do to improve operations in the Employer’s shop. In
response to Smedley's stated concerns, Shimek recounted
changes that had recently been implemented, and stated
that the Employer needed to make some more changes to
improve conditions. Shimek asked Smedley to give him
a year to make the shop a better place.
There is no evidence in the record that Shimek had
ever approached employees to inquire about their con-
cerns prior to the commencement of the union’s organiz-
ing campaign. On the contrary, the evidence indicates
that on a single occasion several months before the rep-
resentation petition was filed, a group of employees ap-
proached Shimek with various complaints. Shimek
agreed to meet with them to hear their complaints, and
subsequently began implementing changes in response.
The record also indicates that Shimek and Smedley had
some further discussions prior to the campaign regarding
the deficiencies of the shop manager. The Employer
later fired the shop manager shortly before the represen-
tation petition was filed on March 13, 2000. There is no
evidence, however, that Shimek solicited Smedley's
complaints about the shop manager. Indeed, the record
MACDONALD MACHINERY CO. 321
indicates that Smedley raised the issue about the shop
manager.
Unlike my colleagues, I believe that whether the Em-
ployer, as opposed to the employees, initiated discus-
sions about problems in the shop is essential to determin-
ing whether the Employer engaged in objectionable con-
duct. That the Employer took affirmative steps to solicit
grievances after the petition was filed, but previously had
only reacted to employees’ initiatives, supports the infer-
ence that during the critical period the Employer was
implicitly promising to correct the grievances, in contrast
to his prior practice. In my view, the Employer cannot
rely upon the actions of its employees who actively
sought out Shimek hoping that he would address their
problems to establish that it had a practice of soliciting
grievances prior to the union’s organizing campaign.
Thus, I find nothing in the record to establish that the
Employer had a history of soliciting grievances from
employees.
Absent evidence that an employer has a past practice
of soliciting grievances prior to the onset of a union
campaign, the Board has routinely found such solicita-
tion during the campaign to be objectionable.1 Because I
find that the Employer has not established that it had any
such past practice, I would find that Shimek’s conduct
was objectionable, requiring that the election be set
aside.

1 See Traction Wholesale Center Co., 328 NLRB 1058 (1999), enfd.
216 F.3d 92 (D.C. Cir. 2000). See also Maple Grove Health Care
Center, 330 NLRB 775 (2000). National Micronetics, Inc., 277 NLRB
993 (1985), cited by the hearing officer and my colleagues, is distin-
guishable. The employer's conduct there was alleged to be an improper
promise of benefits, not an improper solicitation of grievances. Thus,
the Board in that case did not address whether, under the circumstances
presented, the employer's request for a second chance or more time
carried an implied promise to remedy grievances. In the circumstances
presented here, I find that Shimek's comments did carry such an im-
plied promise, and thus were objectionable in the absence of a past
practice of soliciting grievances.