Performance Measurements Co., Inc.

National Labor Relations Board - Board Decisions

Oct 13, 1964

148 N.L.R.B. 1657 (N.L.R.B. 1964)

PERFORMANCE MEASUREMENTS CO., INC. 1657
Performance Measurements Co., Inc. and International Union,
United Automobile, Aerospace and Agricultural Implement
Workers of America , (UAW) AFL-CIO, Petitioner. Case No.
7-RC-6212. October 13, 1961
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
Pursuant to a stipulation for certification upon consent election, an
election by secret ballot was conducted on April 28, 1964, under the
direction and supervision of the Acting Regional Director for Region
7 among the employees in the appropriate unit. At the conclusion of
the election, the parties were furnished with a tally of ballots which
showed that of approximately 56 eligible voters, 44 cast ballots, of
which 19 were for the Petitioner, 25 against the participating labor
organization, and 5 were challenged. Thereafter, the Petitioner filed
timely objections to conduct affecting the election.
In accordance with the Board's Rules and Regulations, Series 8,
as amended, the Acting Regional Director conducted an investigation
and thereafter, on July 15, 1964, issued his report on objections in
which he recommended that the Board overrule all objections and
certify the results of the election. The Petitioner filed timely excep-
tions tq these recommendations and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Leedom, Fanning and Brown].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce with the meaning of
the Act.
2. The labor organization involved claims to represent employees
of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of the employees of the Employer within the meaning of Sec-
tions 9(c) (1) and 2(6) and (7) of the Act.
4. In accordance with the stipulation of the parties, we find that
the following employees constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9(b)
of the Act.
All production and maintenance employees employed by the Em-
ployer at 15120 Third Avenue, Highland Park, Michigan, and 90
West Delaware, Detroit, Michigan, including shipping department
employees, inspection department employees, and truckdrivers, but
excluding office clerical employees, professional employees, drafts-
men, guards, and supervisors as definded in the Act.
148 NLRB No. 166.
1658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Petitioner's objection No. 1 is based upon the fact that the
Employer, between the dates of the stipulation and the election,
promised a number of employees that the Employer would give them
shoes or boots or a $6 allowance toward such items after the election,
and in accordance with this promise paid the allowance immediately
after the election.
It appears that certain chemicals present on the floor in some of
Employer's plant operations cause footwear to deteriorate and that
it was the practice of Employer's predecessor in this plant to supply
the affected employees with footwear, a practice which this Employer
abandoned. Because of this continuing problem the Employer, in
early March, purchased at a minimal expense a roll of plastic boots
for employees to wear over their own shoes. These were found un-
satisfactory as they deteriorated in the same fashion as the em-
ployees' own footwear. This condition, which had existed for some
time before the petition, was suddenly resolved 4 days before the
April 28 election when the Employer's officials advised several
employees it would pay a flat $6 allowance toward the purchase by
employees of their own footwear. Thereafter, this commitment was
set forth in writing and circulated among employees on April 24. On
the day before the election, employees were told they would receive
the $6 allowance right after the election, and the checks for that
amount were distributed after the results of the election were made"
known.
The Director regarded the $6 allowance as the ultimate solution of
a long-standing problem brought about as the normal culmination of
efforts to resolve it to the satisfaction of those affected. He con-
cluded that there was "no evidence to indicate that the allowance was,
intended to influence the vote of any individual recipient or that its
timing was other than fortuitous." We do not agree.
Although granting employees benefits during the period imme-
diately preceding an election is not per se ground for setting aside an
election, in the absence of a showing that the timing of the announce-
ment was governed by factors other than the pendency of the elec-
tion, the Board will regard such timing as calculated to influence the
employees in their choice of a bargaining representative. The burden
of showing other factors is upon the Employer.' No justification has
been established here.
On the contrary, it is undisputed that shoe damage was a long-
standing problem of employees which the Employer had been in no
hurry to resolve until just before the election. Even then the Em-
ployer did not remedy the situation but instead announced, its
promise to do so after the election. There appears no reason why
'International Shoe Company, 123 NLRB 682, 684.
PERFORMANCE MEASUREMENTS CO., INC. 1659
the ' announcement `as well as the benefit could not have been withheld
until after the emn loyees had expressed their preference with respect
to representation. Indeed, promising the benefit but withholding the
payment until after the election could itself be interpreted as a form
of unlawful pressure upon, and interference with, the employees'
freedom of choice .2 In these circumstances, we are convinced, and
find, that both the timing and the granting of the $6 allowance were
unlawfully designed to influence employees and that the Employer
thereby interfered with the conduct of the election.
The Petitioner alleges in objection No. 3 that during the election at
each plant the Employer's president stood by the door to the election
area so that"it was necessary for each employee who voted to pass
within 2 feet of him to gain access to the polls. The investigation
disclosed that at various times Employer's president was in a position
near the door employees were to use to enter the polling place, and
that for a period of time he was seated at a table approximately 6
feet from such doorway. Some of this time was allegedly devoted to
instructing supervisors in regard to their release of employees from
work for voting purposes. In addition, on two occasions during the
time that the polls were open, the Employer's president entered into
the immediate area of the polling place. When this occurred at the
first polling place, the Board agent informed him that the polls were
still open and he left. At the second polling place he entered as the
ballot box was being sealed.
The Acting Regional Director found no merit to this objection
because there was no evidence that Employer's president, while in or
near the voting places, engaged in electioneering. While we agree
that the brief forays into the election area alone may not tend to
interfere with the free choice of the employees, the continued pres-
ence of the Employer's president at a location where employees were
required to pass in order to enter the polling place was improper
conduct not justified by the fact that for part of the time he was
instructing supervisors on the release of employees for voting pur-
poses.3 We find that by this conduct the Employer interfered with
employees' freedom of choice in the election .4
In agreement with the Acting Regional Director, and for the rea-
sons set forth in his report, we find no merit in objections Nos. 2 and
4. As we have sustained Petitioner's objections Nos. 1 and 3, we shall
set aside the election held herein on April 28, 1964, and order a new
election.
2 Cf. R. H. Osbrink, et at, doing business under the firm name and style of R H.
Osbrink Manufacturing Company , 104 NLRB 42, 44
3 See Belk's Department Store of Savannah , Go , Inc., 98 NLRB 280.
4 Member Fanning finds it unnecessary to rely on this ground
1660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[The Board set aside the election conducted herein on April 28,
1964.]
[Text of Direction of Second Election omitted from publication.]
General Electric Company and International Union of Electri-
cal, Radio & Machine Workers, AFL-CIO, Petitioner. Case
No. 1-RC-7875. October 13, 1964
DECISION AND ORDER
Upon the petition duly filed under Section 9(c) of the National.
Labor Relations Act, a hearing was held before Hearing Officer A.
Gene Niro. The Hearing Officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Fanning, Brown, and Jenkins].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act and it will effectuate the purposes of the Act to assert juris-
diction herein.
2. The labor organization involved claims to represent certain
employees of the Employer.'
3. No question affecting commerce exists concerning the represen-
tation of certain employees of the Employer within the meaning of
Sections 9(c) (1) and 2(6) and (7) of the Act, for the following
reasons:
The Fitchburg plant (designated as the Fitchburg department by
the Employer) is engaged in the manufacture of small steam turbine
engines. The department, headed by a general manager, maintains
five sections-finance, employee relations, marketing, engineering,
and manufacturing. Each section is under the supervision of a
manager and is further divided into subsections under the supervi-
sion of subsection managers. The subsections are further broken
down into units which are also headed by unit managers.
The manufacturing section in which the Petitioner seeks an elec-
tion, has seven subsections which are as follows : manufacturing
engineering, quality control, materials, manager of shop operations
(small machinery), manager of shop operations (heavy machining),
manager of shop operations (erection and shipping), and manager
of shop operations (buckets and rotors). The manufacturing sub-
i The American Federation of Technical Engineers, AFL-CIO, was permitted to inter-
vene at the hearing. Its subsequent request to withdraw is hereby granted.
148 NLRB No. 162.