Plastronics, Inc.

National Labor Relations Board - Board Decisions

Oct 1, 1977

233 N.L.R.B. 155 (N.L.R.B. 1977)

PLASTRONICS, INC.
Plastronics, Inc. and District No. 10, International
Association of Machinists and Aerospace Workers,
AFL-CIO Petitioner. Case 30-RC-3030
November 1, 1977
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Pursuant to a Stipulation for Certification Upon
Consent Election, a secret-ballot election was con-
ducted on March 30, 1977,' among the employees in
the stipulated unit.2 The tally of ballots furnished the
parties showed that of approximately 229 eligible
voters, 81 cast ballots for, and 125 cast ballots
against, the Petitioner. There were 10 challenged
ballots which were insufficient to affect the results of
the election.
On April 5 and 13, Petitioner filed timely objec-
tions to conduct affecting the results of the election.
Following a preliminary investigation of the objec-
tions, the Acting Regional Director, on April 13,
issued a notice of hearing on objections to conduct
affecting the results of the election. A hearing was
conducted on May 17 through May 20.
On June 24, the Hearing Officer issued his Report
on Objections in which he recommended that
Petitioner's objections be overruled in their entirety.
Petitioner has filed timely exceptions to the Hearing
Officer's report and a supporting brief, and the
Employer has filed an answering brief.
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 reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
The Board has considered the Hearing Officer's
report and the exceptions and briefs and hereby
adopts the Hearing Officer's findings, conclusions,
and recommendations, only to the extent consistent
herewith.3
In Objection 12, Petitioner contends that the
Employer's agents interfered with the election by
threatening to take away existing employee benefits
and to bargain from scratch. We agree. Employer's
President, J. L. Clark, made a speech to all
employees 8 days before the election. The speech was
given five times to small departmental groups of
All dates herein are 1977.
2 All production and maintenance employees employed by the Employer
at its 407 East Michigan Street, Milwaukee, Wisconsin, location; excluding
all office clerical employees, engineenng employees, professional employees.
233 NLRB No. 23
employees in the Employer's lunchroom. Clark read
the prepared speech from a podium. The speech was
supplemented, however, by a number of slide
transparencies which were projected as visual aids.
An examination of the text of Clark's speech
indicates that at one point he said, "All present
benefits are negotiable and could go up or down. The
law contains no guarantee as you can see from this
slide." The transparency projected at this point
indicates in bold letters: "Bargaining Beginning
Point: I. wages - federal minimum $2.30 per hour;
2. No paid holidays; 3. No paid vacations; 4. No
medical insurance; 5. No life insurance; 6. No
pension plan; 7. No savings plan."
At a later point, the text of Clark's speech reads:
"Here's what you may experience if you bring in a
union." Then Clark projected another transparency
which read in part: " HERE'S WHAT YOU CAN EXPECT
FROM A UNION: 1. Begin from scratch at the
bargaining table such as uncertain wages and
uncertain fringes."
Employee Chad Huffman testified Clark stated in
his speech that if the Union "got in, they [the
employees] would start from zero-no paid vacation,
no paid holiday, absolutely nothing" and wages
would start at $2.30 per hour. Employee Kenneth
Paradowski testified Clark said during the speech
that if the Union "got in" the employees would lose
benefits and wages would be $2.30 per hour.
Employee Theresa Perkins corroborated the testimo-
ny of Huffman and Paradowski. Director of Employ-
ee Relations D. C. Newman testified he followed his
copy of the text of Clark's speech while Clark
delivered it and Clark did not deviate therefrom.
Clark did not testify.
In an earlier incident Supervisor Vic Schaefer
called a departmental meeting of certain employees
to explain the Employer's creation of a rumor control
center. At the end of his explanation, Schaefer
opened up the meeting for questions. Employee
Theresa Perkins asked Schaefer why the employees
could not receive a rate other than the base pay of
$2.30 for downtime. According to Perkins, Schaefer
replied that, if the Union won, the employees would
end up with nothing for downtime. Several employ-
ees challenged his statement and he subsequently
"backed off."
Assistant Supervisor Sue Ann Whitcomb, who also
attended the meeting, testified Schaefer replied that
"the Company was not legally required to give
anything for downtime and the Company would
make no policy changes during the campaign."
guards and supervisors as defined in the Act, and all other employees.
a In the absence of exceptions thereto the Board adopts. pro forma, the
Hearing Officer's recommendation that Petitioner's Objections 1-11 and
13- 17 be overruled.
155
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Whitcomb, Schaefer also said that, if
the Union won, negotiations would start from zero
and the employees would not even necessarily get
$2.30 for downtime. He added that the Union could
not promise them anything and all negotiations
would start from zero.
Depending upon the surrounding circumstances,
an employer which indicates that collective bargain-
ing "begins from scratch" or "starts at zero" or
"starts with a blank page" may or may not be
engaging in objectionable conduct. Saunders Leasing
System, Inc., 204 NLRB 448, 454 (1973); Stumpf
Motor Company, Inc., 208 NLRB 431, 432 (1974). 4
Such statements are objectionable when, in context,
they effectively threaten employees with the loss of
existing benefits and leave them with the impression
that what they may ultimately receive depends in
large measure upon what the Union can induce the
employer to restore. On the other hand, such
statements are not objectionable when additional
communication to the employees dispels any impli-
cation that wages and/or benefits will be reduced
during the course of bargaining and establishes that
any reduction in wages or benefits will occur only as
a result of the normal give and take of collective
bargaining. White Stag Mfg. Company, 219 NLRB
1246, 1246-51 (1975) (Member Fanning dissenting);
Computer Peripherals, Inc., 215 NLRB 293, 293-294
(1974) (Member Fanning dissenting); C & K Coal
Company, 195 NLRB 1038, 1038-39 (1972). The
totality of all the circumstances must be viewed to
determine the effect of the statements on the
employees.
There can be no doubt that Clark and Schaefer
conveyed the impression that the employees would
lose their existing benefits during the course of
negotiations. While the text of Clark's speech
indicated that all benefits are negotiable, the supple-
mental transparencies established unequivocally that
bargaining would begin "from scratch" with Federal
minimum wages of $2.30 per hour and all present
benefits would be lost-no paid holidays, no paid
vacations, no medical insurance, no life insurance,
no pension plan, and no savings plan. Schaefer's
earlier statements at the departmental meeting
conveyed a similar impression. He indicated that the
employees would lose existing benefits because
"negotiations would start from zero" and the
employees would not (or not necessarily) even get
$2.30 per hour for downtime.
In sum, we find the Employer interfered with the
election by threatening the employees with the loss of
4 Cf. Textron, Inc. (Talon Division), 199 NLRB 131, 133-135, 149 (1972).
and cases cited therein for analogous violations of the law in the context of
unfair labor practice proceedings.
I (Excelsior footnote omitted from publication.)
existing wages and benefits if the Petitioner won the
election, Saunders Leasing System, supra; Stumpf
Motor Company, supra. Accordingly, we shall sustain
Petitioner's Objection 12, set aside the election, and
direct a second election.
ORDER
It is hereby ordered that Petitioner's Objection 12
be sustained, the election set aside, and a new
election be held.
IT IS FURTHER ORDERED that Case 30-RC-3030 be,
and it hereby is, remanded to the Regional Director
for Region 30 for the purpose of conducting a new
election.
[Direction of Second Election 5 omitted from
publication.]
MEMBER MURPHY, dissenting:
Unlike my colleagues, I would adopt the Hearing
Officer's report in its entirety. For the reasons thereto
fully and clearly set forth, I would reject the
objections to the election, including Objection 12,6
and would certify the results. 7
APPENDIX
Objection No. 12:
In this objection, Petitioner objects to statements made
to employees by Messrs. Clark and Newman on about
March 22 and 1, respectively. The testimony disclosed that
three campaign speeches were made during the election
campaign by the Employer. One speech by Clark delivered
prior to the filing of the petition was not considered herein.
The Employer provided texts of the two remaining
speeches (Employer Exhibits 22 and 23), which, it main-
tains, were approved by counsel herein prior to their
presentation.
The objection, which is subdivided into sections (a)
through (j), alleges that the speeches contained threats,
promises of benefits and material misstatements of fact.
Having examined the texts of the speeches of Newman and
Clark, I am convinced that neither exceeded the bounds of
permissible campaign propaganda.
In subsection (a), petitioner witnesses stated that the
Employer threatened to take away all existing benefits and
bargain from "scratch" or "zero" in the event Petitioner
won the election. An examination of the text of Clark's
March 22 speech shows that the term "bargain from
scratch at the bargaining table" indeed appeared on a
transparency used by Clark in his speech. However, Clark
also said, "All present benefits are negotiable and could go
up or down," after which he proceeded to point out that a
$2.30 minimum wage without fringe benefits constituted
6 The portion of the Hearing Officer's report dealing with Objection 12 is
attached as an Appendix.
7 White Stag Mfg. Company, 219 NLRB 1246 (1975).
156
PLASTRONICS, INC.
the starting point. Petitioner's witnesses did not contend
that Clark strayed from his text in any material respect.
In threatening to take away existing employee benefits
and bargain from scratch, an employer violates Section
8(a)(1) of the Act. Saunders Leasing System, Inc., 204
NLRB 448. However, it is also true that statements to the
effect that a loss of benefits could occur as a result of
collective bargaining, or that all benefits are negotiable are
permissible. White Stag Manufacturing Company, 219
NLRB 1246; Computer Peripherals, Inc., 215 NLRB 293;
Stumpf Motor Company, 208 NLRB 43 1. I find that Clark's
statements were permissible campaign propaganda, falling
in the latter category.
Not specified in the objection, but noteworthy, is the
allegation by Theresa Perkins that supervisor Vic Schaefer
told a group of incentive-paid employees that if the Union
came in, Employees would not be paid $2.30 per hour
when the machines broke down but would be paid nothing.
This took place at a departmental meeting called by
Schaefer to discuss the opening of the rumor control
center.
Employer witness Sue Whitcomb testified that Perkins
asked Schaefer why employees could not receive a rate
other than the base pay of $2.30 per hour for down time.
Schaefer replied that the Employer was not legally bound
to pay anything for downtime, but that no policy changes
could be made during the campaign. According to
Whitcomb, Schaefer added that negotiations would start
from zero and that the employees would not even get the
$2.30 downtime. Perkins stated that Schaefer's statement
was strongly challenged by the employees, after which he
"backed off."
It is apparent that this meeting was attended by a great
deal of acrimony. Schaefer's statement, while it may be an
arguable violation of the Act, was made to a rather
argumentative group of employees unhappy with their rate
of pay. The statement appears to have been made
spontaneously and in a heated discussion rather than
having been contrived. Under these circumstances, I find
the incident to have been isolated and thus unlikely to have
affected the results of the election.
As to the remainder of objection no. 12, I find that
likewise, it is without merit. There is insufficient evidence,
or no evidence, to support Petitioner's allegations in
subsections (b), (c), (d), (g) and (i). Moreover, the Board
has stated that it will no longer consider material
misrepresentation of fact during a preelection campaign,
even where the opposing party has insufficient opportunity
to respond. Shopping Kart Food Market, Inc., 228 NLRB
No. 90. Here, of course, Petitioner had ample opportunity
to respond to the Employer's statements. Thus, subsections
(d), (f), (h) and (j), even if they are true as alleged, do not
exceed the boundaries of acceptable campaign propagan-
da. Finally, while Newman's speech placed considerable
emphasis on strikes and strike violence, I find that the
Employer's campaign, viewed in its entirety, falls far short
of preaching the inevitability of strikes.
Based upon the foregoing, I find objection no. 12 as
being without merit.
157