Norther Telecom, Inc.

National Labor Relations Board - Board Decisions

Dec 12, 1977

233 N.L.R.B. 1104 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Northern Telecom, Inc. and Communications Workers
of America, Petitioner. Case 26-RC-5304
December 12, 1977
DECISION ON REVIEW AND
CERTIFICATION OF RESULTS OF
ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On May 27, 1977, the Regional Director for Region
26 issued his Fourth Supplemental Decision and
Order in the above-entitled proceeding in which he
sustained certain objections by the Petitioner alleging
conduct affecting the results of the third election held
on March 8, 1977, set aside that election, and
ordered that a new election be held. Thereafter, in
accordance with Section 102.67 of the National
Labor Relations Board's Rules and Regulations,
Series 8, as amended, the Employer filed a timely
request for review of the Regional Director's decision
on the grounds, inter alia, that he departed from
reported Board precedent and erred on substantial
factual issues. The Petitioner filed a timely opposi-
tion to the request for review.
By telegraphic order dated June 27, 1977, the
Board granted the Employer's request for review and
stayed the election pending decision on review.
Thereafter, the Petitioner filed a brief on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record in this case,
including the briefs of the parties, and makes the
following findings:
The Regional Director sustained Petitioner's Ob-
jections 4 and 14, which alleged that the "Employer
promised and/or gave employees sick pay benefits
contrary to past practice and in order to affect the
results of the election" and the "Employer promised
and/or put into effect changes in wages, hours or
other terms and conditions of employment to
influence the election outcome."' In sustaining the
Petitioner's objections, the Regional Director con-
cluded that the timing of the announcement of
Employer's sick pay plan in the week before the
election was calculated to have an effect on the
t The Regional Director overruled 18 other objections filed by the
Petitioner.
2 On October 29, 1976, the Regional Director issued his Second
Supplemental Decision and Direction of Election in this case, in which he
set aside the results of the first election and ordered a second election. The
second election was held on December 17, 1976. Subsequent to the second
election, the Petitioner filed objections, several of which were sustained in
the Regional Director's Third Supplemental Decision and Direction of
Election, which was issued on February 2. The Employer's announcement
233 NLRB No. 157
outcome of the election, and that Employer's
explanation for such timing was unacceptable. The
Employer contends that this conclusion is in error,
since the sick pay plan was implemented pursuant to
a companywide decision and was not calculated to
improperly influence the outcome of the election. We
find merit in the Employer's contentions.
On December 29, 1976,2 the Employer announced
certain new corporatewide benefits at its Nashville
facility including the aforementioned sick pay plan.
The sick pay plan was apparently announced in
November 1976 at other plants of the Employer
lacking such a plan. The sick pay plan as explained
to the Nashville employees provided that employees
could accumulate 4 hours sick pay per month,
receive a maximum of 3 days per year, and receive
cash payments for hours not used but they would not
be able to carry over sick days. 3
Subsequently, on January 28, a memorandum was
sent from the Employer's divisional manager and
vice president to its Nashville controller, directing
implementation of the sick pay plan as soon as
practical. This memorandum also set forth an outline
of the sick pay plan and policy. It differed in certain
respects from the plan as originally presented, and
provided that sick pay benefits would not have to be
accrued by employees. Rather, employees were to be
given a "bank" of 3 sick days which would be paid
when taken.
Pursuant to the January 28 memorandum, the
Employer's personnel director circulated a memoran-
dum on February 23. This memorandum, which was
sent to the production manager, listed guidelines for
the implementation of the sick pay plan and
requested that supervisors prepare a list of employees
who had accumulated unpaid sick leave. The list was
to be given to the payroll department which would
then prepare payments. The list of employees entitled
to sick pay was prepared by March I and showed
that more than 100 employees were eligible for 4-24
hours of sick leave pay. Eligibility extended back to
the effective date of January 1, as originally
announced at the December 29, 1976, presentation. 4
During the week of March 1, following the prepara-
tion of the list, supervisors informed the eligible
employees individually that they would receive sick
pay benefits in their checks of March 10 or 1 1.5
of benefits thus occurred after the second election, while Petitioner's
objections were pending.
The dates hereinafter are 1977 dates unless otherwise indicated.
3 The Regional Director noted that there was testimony by one
employee-witness which suggested that the Employer would require 6
months' employment before an employee would be eligible for the benefits.
4 January I was also the effective date at other plants of the Employer.
5 As indicated above, the third election was scheduled for March 8, 1977.
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NORTHERN TELECOM, INC.
The Employer asserts that each of its plants which
instituted the new sick pay plan was permitted to do
so on its own timetable. The Employer states that
because of the pendency of the second election at
Nashville it chose not to announce the sick pay plan
there until after that election was held. The Employer
further argues that the delay, if any, in implementa-
tion of the sick pay plan at that location was
necessitated, in part, because its Nashville personnel
manager moved his family from Minnesota to
Nashville during that period and also was visiting
other plants, resulting in frequent absences from the
Nashville plant. The Employer urges that the
implementation of the sick pay plan at Nashville was
done in orderly fashion as indicated by its corporate
memorandums, and that any "change" or deviation
in the sick pay plan as earlier announced was
promulgated prior to the Regional Director's order
to hold a third election.
The Petitioner argues that the timing of the
implementation of the sick pay plan was calculated
to have an effect on the outcome of the third election
at Nashville and that the Employer has not met the
burden of justifying its action. The Petitioner asserts,
inter alia, that there was no justifiable reason for the
Employer to individually advise employees during
the week before the election that they would receive
sick pay benefits just after the election.
Upon the foregoing and the entire record in this
case, we are unable to conclude that the timing of the
supervisors' informing eligible employees of their
sick pay benefits constituted objectionable conduct
herein. The Board has long held that, where an
increase in benefits is part of an established company
policy or pattern, a grant of those benefits or
announcement of them prior to the election is not
grounds for setting aside an election. 6 Further, where
an increase in benefits results from a corporatewide
decision and is implemented corporatewide in a
normal business fashion, election results will not be
set aside.7
6 White Stag Mfg. Company, 219 NLRB 1246 (1975); Mallory Controls
Company, A Division of P. R. Mallory Co., Inc., 214 NLRB 616 (1974);
Meier's Wine Cellars, Inc., 188 NLRB 153 (1971).
I See, e.g., Oxco Brush Division of Vistron Corporation. 171 NLRB 512
(1968).
s While our dissenting colleague has made much of the alleged delay, as
quantified in days, in the announcements made by the Employer, we believe
the facts show otherwise. In comparing the fact that the Employer did not
announce the plan some 37 days prior to the second election but announced
just prior to the third election that employees' checks would contain the sick
pay, the dissenting opinion omits an important fact: the sick pay plan itself
was announced some 69 days prior to the holding of the third election. In
our view, the sequence of events leading up to the effectuation of that plan
appears legitimate. That a further announcement concerning paychecks was
made just prior to the election is thus of no great import. In addition, no
matter how our dissenting colleague attempts to characterize the change in
the sick pay plan, the fact is, supported by documentary evidence, that the
Employer enacted such a change fully 5 days prior to the Regional
The chronology of events leading to the implemen-
tation of the sick pay plan here does not, in our view,
warrant setting aside the third election. It is clear
from the record that prior to December 29, 1976,
when the Employer made its announcement to its
employees, the Employer had decided to establish a
sick pay plan at a number of its facilities, of which
Nashville was only one. In fact, it had earlier
announced such a plan at other facilities which
previously did not have such a plan and had withheld
announcing the plan at this plant because of the
pendency of the second election. Subsequently, as
noted above, the Employer outlined internally, with
no apparent reference to the union campaign, the
method for instituting the sick pay plan. After the
necessary completion of the list of employees eligible,
in the first week of March, just 2 months after it had
announced the plan, and in apparent due course, the
Employer advised those employees that they would
soon receive the sick pay benefits. The period of time
for the implementation at Nashville is approximately
the same 2-month time period taken at other plants.
Accordingly, we believe that the timing of the
announcement to its employees was not calculated to
and did not, in the circumstances, interfere with the
employees' freedom of choice.8 For the Employer to
have withheld it further at the Nashville plant merely
because the employees there were seeking union
representation might well itself have constituted
objectionable conduct. Accordingly, we hereby
overrule Objections 4 and 14 in their entirety. 9
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Communications
Workers of America and that said labor organization
is not the exclusive representative of all the employ-
ees, in the unit herein involved, within the meaning
of Section 9(a) of the National Labor Relations Act,
as amended.
Director's direction of a third election. Thus, the change was made without
any knowledge that a new election would be called and without reference to
the Union. That the sick leave would be paid beginning with the start of the
new year is not surprising, since the Employer had implemented the plan at
other plants effective January I, and had announced to its employees at
Nashville that the plan would be effective on that date. Regardless of what
change was effected, it is clear that the Nashville employees had expected
benefits since the December 29. 1977, announcement, and although the
benefit to be received by the employees deviated to some degree from that
initially contemplated by the Employer, we do not feel that such a departure
in the circumstances here warrants a contrary result.
9 The Petitioner also objected to the institution of a new holiday by the
Employer. However, the Regional Director concluded that the new holiday
was enacted pursuant to a new companywide policy. Petitioner has not
requested review on this issue. We believe that the implementation of the
sick pay plan was similar to the implementation of the new holiday, which
was found not objectionable by the Regional Director.
1105
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CHAIRMAN FANNING, dissenting:
Unlike my colleagues, I would adopt '1 the Region-
al Director's Fourth Supplemental Decision and
Order.
It is an employer's burden to establish that an
announcement or implementation of improved em-
ployee benefits during an election campaign was not
governed by election-related factors. The Baltimore
Catering Company, 148 NLRB 970, 973 (1964). In
this case, the Employer's explanation of the timing
not only of its announcement of a new sick pay plan,
but of its supervisors' announcement to the voters,
just days before the election, that their next pay-
checks would contain sick pay benefits, is woefully
inadequate in my judgment, as is my colleagues'
rationale for accepting the conclusionary "explana-
tion" proffered by the Employer.
In early November 1976, the Employer announced
a new sick pay plan. The announcement, notably,
was made to all plants except the Nashville plant,
which is the plant involved in this proceeding. The
Employer alleges that it withheld the announcement
from the Nashville facility "because of the pendency
of the second election at the Nashville plant at the
time of the announcement." The "second election"
to which the Employer refers was held December 17,
1976. Thus, an announcement to the Nashville
employees, if made simultaneous with the announce-
ment to those plants in which no question concerning
representation existed, would have preceded the
second election by some 37 days. Why the Employer
considered an announcement of a sick pay plan to
voters 37 days before an election potentially disrup-
tive of that election and yet did not consider at least
equally disruptive an announcement to the voters,
less than a week before a subsequent election, that
the paychecks they were to receive 2 days after the
election would contain substantial cash bonuses in
the form of a sick pay benefit is, to say the least,
suspicious. There is no explanation for this on the
record, and none is propounded by my colleagues.
On December 29, 1976, approximately 49 days
after the Employer announced the plan at its other
plants, the sick pay plan was revealed to the
Nashville voters. It may be assumed, although the
probability is minimal, that the Employer withheld
the plan not only from the Nashville voters but also
to The Regional Director dismissed Petitioner's Objections 3, 9, 16, and
18 because the activity alleged objectionable in those objections would
constitute, if found, an unfair labor practice under Sec. 8(a) of the Act. The
Regional Director thus relied on the Board's holdings in Texas Meat
Packers Inc., Texas Meat and Provision Co., Spiritas & Sloan Inc. and Portion
Control Meat Co.. 130 NLRB 279 (1961), and Spray Sales and Sierra Rollers,
225 NLRB 1089 (1976), holdings from which I dissented and with which I
continue to disagree. I would not, therefore, adopt this aspect of the
Regional Director's decision. I do adopt his disposition of Petitioner's
Objection II, solely on the basis of the facts presented in support of the
from its Nashville managerial staff, throughout that
49-day period.
The plan, as depicted 49 days later to the Nashville
voters, was to take effect January 1, 1977, the
effective date of the plan at the Employer's other
plants and would provide, inter alia, that employees
could "accumulate 4 hours [per] month" of sick
leave.
Fully 30 days after the announcement to the
Nashville voters, Nashville management had not
implemented a plan, which, at best, cannot be
characterized as a complicated or highly involved
one.t The only explanation for this particular delay
in taking action on the plan, to which the majority
itself does not allude, is the Employer's allegation
that the delay was caused by "the fact that [personnel
Manager Millard] was in the process of moving his
family to Nashville, Tennesee, from his former home
in Minnesota and that time ... as well as time spent
at other plants resulted in frequent absences by him
"12
On January 28, 1977, the Nashville controller was
directed by a corporate vice president to "apply the
following policy to the payment of sick leave for
hourly employees .... [A]s soon as it is practical
. . . [slick leave will be paid for all claimed sick days
up to a maximum of three beginning immediately with
the beginning of the year. " (Emphasis supplied.) That
is to say, by January 28, the plan had been materially
changed from that announced December 29, 1976, to
provide, instead of a monthly 4-hour accrual of sick
leave, an immediate 24-hour accrual of sick leave.
There is, on the record, no viable explanation for this
change in the plan beyond the Employer's assertion
that "the plan and the details of the plan were
adopted in the normal course of business."
In practical terms, this change in plan "enabled"
the Employer to pay an employee who was absent
from work for 3 days during the period January 1-
March 1, 1977, a full 3 days sick leave (if the reasons
for absence were, of course, covered by sick leave).
Under the plan as announced 30 days earlier,
however, such an employee would be entitled to no
more than I day's pay, since sick leave pay could be
accrued only at a rate of 4 hours per month.
On February 23, 1977, or 25 days after the change
in plan, Nashville management, which still had not
"finalize[d] the formal policy and procedure covering
objection as amplified by the Regional Director's investigation and not on
the basis of Shopping Kart Food Market, Inc., 228 NLRB 1311 (1977), upon
which the Regional Director relied. See my dissenting opinion there.
II As described on December 29, 1976, the plan would allow employees
to be paid up to 3 days sick leave a year, the leave accrued 4 hours per
month, unused leave, up to the 3 days, payable in cash at year's end and no
carryover of sick leave from one year to the next.
12 It would, of course, be pure conjecture to consider the possibility that
in the time the personnel manager "spent at other plants" he familiarized
himself with the sick pay plans implemented at them.
1106
NORTHERN TELECOM, INC.
sick leave," "suggested" that supervisors prepare a
list of employees entitled to the sick pay. Notably, it
took only 6 days for a list of 149 employees, with the
number of hours of sick leave taken by each, to be
prepared. Of those, 94 were entitled to a sick pay
greater than they otherwise would have received had
the plan not been materially changed in late January.
The list was prepared on Tuesday, March 1, 1977.
Supervisors, throughout the remainder of the work-
week, systematically informed the 149 employees
that their March 11 paychecks would contain the
sick pay. The election was scheduled for, and
ultimately held on, March 8.
13 See Baltimore Catering, supra; Cadillac Overall Supply Company, 148
NLRB 1133 (1964); Colonial Knitting Corp.., 187 NLRB 980 (1971); Newport
Division of Wintex Knitting Mills, Inc., 216 NLRB 1058 (1975).
14 Inexplicably, my colleagues, in response to this observation, equate
the fact of announcement with its content. Thus, I have not "omitted" the
fact that a sick pay plan was announced "69 days prior to the holding of the
third election" (see the third paragraph of this dissent) but, instead, have
chosen not to ignore the obvious disparity between the content of the plan
announced at that time and the one by which employees were informed, in
the week before the election, that they would be receiving substantial cash
sums in their next paychecks. That the altered plan was decided upon 5 days
before the Regional Director's direction of a third election is not nearly as
important as the undeniable fact that the voters were not told of that change
It was not, I reiterate, incumbent upon the
Regional Director to establish that the timing of the
announcement and implementation of the plan was
governed by the pending question of representation.
It was, rather, the Employer's burden to disprove' 3
that the delay which attended implementation of the
sick pay plan, as well as the relatively blinding speed
with which the sick pay beneficiary list was prepared
and disseminated throughout the work force, bore no
relation to that question. That burden surely has not
been met here14 and I therefore dissent. Like the
Regional Director, I would set aside the election and
order that a new one be held.
until the moment its significance could be best appreciated by the electorate.
To characterize a "further announcement concerning paychecks" as of "no
great import" could only be appropriate, it seems to me, if the announce-
ment did not constitute a change from a previous one, especially when the
substance of the change is withheld from the electorate until an election is
imminent. Finally, if an employer were to inform potential voters, 3 months
before an election that they would, in the future. receive a 5-cent-an-hour
increase and then, 5 days before the election, were to tell the employees the
increase had been upped to 10, I would be hard pressed to dismiss that
action on the theory, novelly espoused by the majority, that the voters had,
after all, "expected benefits" to begin with. What the benefits were, just like
what the announcements here were, strikes me as of -great import" indeed.
1107