Owens-Illinois, Inc.

National Labor Relations Board - Board Decisions

Aug 24, 1984

271 N.L.R.B. 1235 (N.L.R.B. 1984)

OWENS-ILLINOIS, INC.
Owens-Illinois, Inc., Forest Products Group and
United Food and Commercial Workers Interna-
tional Union Local No. 210, AFL-CIO, Peti-
tioner. Case 15-RC-6933
24 August 1984
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Pursuant to a Stipulation for Certification Upon
Consent Election approved by the Regional Direc-
tor for Region 15 of the National Labor Relations
Board on 20 September 1982 an election by secret
ballot was conducted on 21 October 1982 under
the direction and supervision of said Regional Di-
rector. At the conclusion of the election, the par-
ties were furnished with a tally of ballots which
showed that of approximately 84 eligible voters, 84
cast ballots, of which 41 were for and 36 against
the Petitioner, and 7 were challenged. The chal-
lenged ballots were sufficient in number to affect
the results of the election. The Employer filed
timely objections to conduct affecting the results of
the election.
In accordance with the Board's Rules and Regu-
lations, the Regional Director conducted an inves-
tigation and, on 8 December 1982, issued his
Report on Challenged Ballots and Objections in
which he recommended that the objections be
overruled in their entirety; that the challenges to
the ballots of Ruth Ann Combs, Billy M. Dees,
Freddy Frazier, and Follis L. Ruthardt be sus-
tained; and that the challenges to the ballots of Mi-
chael Burger, LaCarlus Fuller, and Charles E.
Grafton be overruled. Thereafter, the Employer
filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has reviewed the entire record in this
case, including the Regional Director's Report on
Challenged Ballots and Objections and the excep-
tions and brief, and hereby adopts the findings,
conclusions, and recommendations' of the Region-
al Director with the following modifications.
1. The Regional Director recommended overrul-
ing Objection i, which alleges, inter alia, that the
Petitioner promised employees financial and other
I In the absence of any exceptions thereto, we adopt pro forma the
Regional Director's recommendations that the challenge to the ballot of
Michael Burger be overruled and that Objections 5 and 8 be overruled
In adopting the Regional Director's recommendations as to the remaining
challenges, we find it unnecessary to resolve the question of Ruth Ann
Combs' eligibility to vote, inasmuch as her challenged ballot is not suffi-
cient in number to affect the results of the election
rewards if they supported the Petitioner and it won
the election and that employees were actually
given material things of value such as jackets with
union insignia in return for their commitment to
support and vote for the Petitioner. As to the
promises of benefits, the Employer presented an
employee witness who stated that at a union meet-
ing the Petitioner's business representative Christ
said negotiations would start from employees'
present salaries and go up from there. We agree
with the Regional Director's conclusion that such
campaign propaganda is not objectionable under
the Board's recent decision in Midland Life Insur-
ance Co., 263 NLRB 127 (1982), even if it might be
misleading. Inasmuch as the evidence regarding
this statement, when viewed in the light most fa-
vorable to the Employer, does not establish a
prima facie case of objectionable conduct, we do
not rely on the Regional Director's finding that,
"considered in total context," the evidence does
not indicate that the Petitioner actually made such
a statement.
As to the gifts of union jackets, the Petitioner's
business representative Christ admitted that he
handed out about 25 jackets with union insignia to
employees who came to his room at the Ramada
Inn during the period between the first and second
voting sessions and that about five or six of these
employees had not yet voted. The jackets cost the
Petitioner $16 each, and thus the Petitioner's gifts
to unit employees on election day totaled about
$400. The Regional Director concluded that the
Petitioner's gifts were not objectionable, because
there was no evidence that the jackets were given
to any employee conditioned on a promise to vote
for the Petitioner but rather it appeared the jackets
were given to employees who had already mani-
fested support for the Petitioner. We are persuad-
ed, however, that distribution of these jackets was
objectionable conduct. While only five or six em-
ployees received jackets before voting, the vote
tally and our disposition of the challenged ballots
show that five or six votes could have determined
the election's results. Moreover, these jackets were
not given away during the preelection campaign
but on election day itself; distributed as they were
between voting sessions, they could well have ap-
peared to the electorate as a reward for those who
had voted for the Petitioner and as an inducement
for those who had not yet voted to do so in the
Petitioner's favor. While not dispositive, we note
that the evidence indicates one employee was
heard to say, "the way I voted I better get a
jacket." Although the Board held in R. L. White
Co., 262 NLRB 575, 576 (1982), that distribution of
inexpensive pieces of campaign propaganda such as
271 NLRB No. 194
1235
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
buttons, stickers, or T-shirts is not per se objection-
able conduct, the value of the jackets given away
here far exceeds that of the items considered in R.
L. White. Given all the circumstances of this case,
we find the Petitioner's distribution of these jackets
was objectionable conduct. Accordingly, we shall
sustain Objection 1 and set aside the election.
2. The Regional Director also recommended
overruling Objection 4, which alleges that the Peti-
tioner made material misrepresentations to employ-
ees. An employee witness presented by the Em-
ployer stated that at a union meeting the Petition-
er's business representative Dickey offered to give
the employee 100-to-I odds that there would not
be anyone in the plant making less money than
they were making now if the Petitioner won the
election. The employee accepted the bet. Accord-
ing to this same employee, at another union meet-
ing he asked the Petitioner's business representative
Christ how the Petitioner could guarantee such
things as 5 personal days, anniversaries, and birth-
days off plus 2 weeks' vacation after 1 year, and
Christ responded that it was true the Union did
have to negotiate but that it had gotten these bene-
fits at the other plants it represented so it should
not have any trouble getting them at this plant. In
addition, this witness stated that another employee
asked Christ if the Petitioner was going to cut out
overtime, and Christ replied jokingly, "Well, we've
already done that." Again, we agree with the Re-
gional Director's conclusion that, under Midland,
supra, these statements are nothing more than typi-
cal campaign propaganda, which would not war-
rant setting aside the election even if they were
found to be misrepresentations. However, in adopt-
ing the Regional Director's recommendation that
Objection 4 be overruled, we find it unnecessary to
rely on his comments as to the Petitioner's motiva-
tion in making these statements. Furthermore, we
note the Board has held that betting incidents do
not by themselves constitute objectionable con-
duct. 2
3. The Regional Director recommended overrul-
ing Objection 6 because the Employer presented
no evidence in support of its allegation that the Pe-
titioner created an atmosphere of fear and coercion
which destroyed the conditions necessary for the
employees' free expression of choice in the elec-
2 Personal Products Corp., 116 NLRB 393, 398 (1956); Calvine Cotton
Mills, 98 NLRB 843, 846 (1952).
3 Finally, the Regional Director recommended overruling Objection
10, which alleges that the Petitioner promised to waive its initiation fees
for employees who signed union authorization cards and otherwise sup-
ported the Petitioner. The Employer contends that Objection 10 raises
substantial and material issues of fact which can best be resolved by a
tion. Although the Employer has implicitly except-
ed to the Regional Director's recommendation, it
has not directed our attention to any evidence
which the Regional Director failed to consider. We
have reviewed the evidence presented by the Em-
ployer in connection with the other objections and
we find that it does not rise to the level of estab-
lishing that an atmosphere of fear and coercion was
created.3
[Direction of Second Election omitted from pub-
lication.]
MEMBER DENNIS, dissenting in part.
Contrary to my colleagues, I would adopt the
Regional Director's finding that the Petitioner did
not engage in objectionable conduct by giving em-
ployees jackets with union insignia. Applying the
objective "tendency-to-influence test" set forth in
Board and court precedent,' I cannot find that a
$16 union jacket is of sufficient value to create in
the recipient a feeling of obligation to favor the Pe-
titioner in the election. Rather, I would find that
the Petitioner's conduct here was comparable to
that of the employer in R. L. White Co., 262
NLRB 575, 576 (1982), where the distribution of
company T-shirts was found to be permissible. 2
The Board correctly recognized in R. L. White
that the distribution of inexpensive pieces of cam-
paign propaganda is commonplace in NLRB elec-
tions. I decline my colleagues' invitation to begin
regulating such innocuous conduct.
I would not adopt, however, the Regional Direc-
tor's recommendation to overrule Objection 10,
which alleges that the Petitioner promised to waive
its initiation fees for employees who signed union
authorization cards and otherwise supported the
Petitioner. Although the Regional Director ac-
knowledged that a factual dispute existed as to
what the Petitioner told employees regarding its
policy on initiation fees, he found that the Petition-
er had clarified its policy by mailing employees
certificates explaining its requirements for waiving
initiation fees, which were consistent with the
standards set forth in NLRB v. Savair Mfg. Co., 414
U.S.
hearing. Because we are directing a second election, we find it unneces-
sary to pass on the question whether the Regional Director should have
held a hearing on Objection 10.
I See, e.g., Gulf States Canners, 242 NLRB 1326 (1979), and cases cited
therein, enfd. 634 F.2d 215 (5th Cir. 1981). Because the test is an objec-
tive one, my colleagues' reliance on the subjective reaction of one em-
ployee is erroneous.
2 My colleagues also regard as significant the $400 total value of the
Petitioner's gifts to employees. In R. L. White, however, the employer
distributed 468 T-shirts (262 NLRB at 588), and therefore the two cases
cannot be distinguished on that ground.
1236
OWENS-ILLINOIS, INC.
U.S. 270 (1973). The Employer contends that a fac-
tual dispute still exists as to what statements were
made by the Petitioner and which employees actu-
ally received the certificates in the mail. I agree
with the Employer that Objection 10 raises sub-
stantial and material issues of fact which can best
be resolved by a hearing. Accordingly, I would
direct a hearing on Objection 10.3
3 In all other respects I agree with my colleagues.
1237