Primco Casting Corp.

National Labor Relations Board - Board Decisions

Jan 27, 1969

174 N.L.R.B. 244 (N.L.R.B. 1969)

244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Primco Casting Corporation and International Union
of District 50, United Mine Workers of America.
Case 2-RC-14885
January 27, 1969
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
Upon a petition duly filed on April 8, 1968 by the
Petitioner, and pursuant to a Stipulation for
Certification upon Consent Election entered into by
the above-named parties and United Optical
Workers Union, Local 408, I.U.E., AFL-CIO,
Intervenor, and approved on April 16, 1968, by the
Acting Regional Director for Region 2, an election
by secret ballot was conducted under the supervision
of the Regional Director for Region 2 on April 26,
1968. Upon the conclusion of the election, a tally of
ballots was furnished the parties, showing that of
approximately 116 eligible voters, 109 ballots had
been cast, 51 of which were for Petitioner, 52 were
for Intervenor, 3 were challenged, and 3 were void.
The challenged ballots were sufficient in number to
affect the results of the election.
The Petitioner timely filed objections to the
election. Pursuant to the National Labor Relations
Board Rules and Regulations, the Regional Director
conducted an investigation, and on July 11, 1968,
issued and duly served upon the parties his Report
and Recommendations on Objections to Election
and Challenged Ballots. The Regional Director
recommended that the challenges to the 3 ballots be
overruled, and that Objections 1 through 11, and 13,
be overruled. He also recommended that Objection
12 be sustained, the election set aside, and that a
second election be ordered, subject to the
qualification, inter alia, that in the event the revised
tally showed that the Petitioner received a majority,
the Petitioner was to be certified. The Intervenor
timely filed and served its exceptions to the
Regional Director's recommendation that Objection
12 be sustained and that the election be set aside,
and a brief in support of its exceptions.
The Board, in an Order dated August 16, 1968,
adopted, pro forma, the recommendations of the
Regional Director that Objections 1 through 11, and
13 be overruled; and that the challenges to the 3
ballots be overruled, a revised tally of ballots be
issued, and, if the Petitioner received a majority,
that the Petitioner be certified. The Board deferred
consideration of the remaining recommendations of
the Regional Director pending the opening of the 3
challenged ballots and the issuance of a revised tally
of ballots.
On August 23, 1968, a revised tally of ballots was
served upon the parties, showing that of 106 valid
ballots counted, 52 were for the Petitioner and 54
for the Intervenor.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
Board has delegated its powers in connection with
this case to a three-member panel.
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 jurisdiction herein.
2. The Petitioner and the Intervenor are labor
organizations claiming to represent certain
employees of the Employer.
3. A question affecting commerce exists
concerning the representation of employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All production, maintenance, shipping and
receiving employees employed by the Employer;
but excluding all office clericals, salesmen,
watchmen, guards and supervisors as defined in
the Act.
5. The Board has considered the Regional
Director's Report, the recommendations, and the
entire record in this case, including the exceptions
and brief, and makes the following findings
concerning Objection 12:
The Regional Director's investigation revealed the
following undisputed facts:
The Intervenor has represented the employees in
question for many years. During this time a
half-day's pay has been deducted by the Employer,
in April and June, from each employee's pay
through a checkoff authorization, for transmittal to
the Intervenor's strike fund. For about 6 years
employees have complained about this assessment.
In early April 1968, the employees asked for a
meeting with the Intervenor to discuss the issue. On
April 8, 1968, the Petitioner filed the petition herein.
On April 10, 1968, a representative of the
Intervenor met with the employees in the shop.
Upon hearing their displeasure with the checkoff
assessment, the representative suggested that a
committee of employees be formed to meet with
him on the issue. A few days later 6 or 7 employees
met with the Intervenor's representative and urged
that the assessments be discontinued and that the
last half-day's assessment, recently deducted in
April, be returned to the employees. The
representative informed the committee that, because
of their strong opposition, the assessment would no
longer be taken from the employees' wages, and the
recent assessment would be returned to them. On
April 19, 1968, a letter was sent by the
representative to all employees informing them of
the Intervenor's decision, and enclosing a check in
the amount of a half-day's pay to cover the last
i
174 NLRB No. 44
PRIMCO CASTING CORP. 245
deduction. The election was conducted on April 26,
1968.
Without ruling on the cancellation of future
assessments, the Regional Director recommended
that the objection be sustained on the ground that
the return of the April assessment was a tangible
economic benefit to the employees, motivated by the
Petitioner's filing of its petition, which impaired
employee free choice in the election. We do not
agree.
The refund of the April assessment cannot
properly be viewed as a bestowal of an economic
benefit in the nature of a gift or bribe, comparable
to the insurance policy found objectionable in
Wagner Electric Corporation, Chatham Division,
167 NLRB No. 75, or the free gift certificate found
objectionable in General Cable Corporation, 170
NLRB No. 172, the two cases on which the
Regional Director relies. The refund resulted from
and was but an incident to the Intervenor's change
of policy with regard to the maintenance of a strike
fund for the benefit of employees in the unit - a
change of policy which obviously decreased one
form of benefit the employees could expect from
continued representation by the Intervenor. Thus the
refund, limited to the recently collected April
assessment, did not in any real sense constitute a
gift or added economic benefit to employees. In
practical effect, it amounted to no more than a
rebate of an unused premium, the return to
employees of money which they had themselves
earned and which had been deducted from their
wages to prepay the cost of the now discontinued
strike fund protection. The situation presented in
this case is thus not significantly different from what
it would have been had the Intervenor's policy
change with respect to the strike fund immediately
preceded rather than immediately followed the April
checkoff, thereby obviating the need for a cash
refund.
Unlike a cash gift or a bribe which can serve only
to corrupt employees in their choice, the
discontinuance of the strike fund had a legitimate
relationship to the suitability - from the employees'
point of view - of the Intervenor as a bargaining
representative. It has a direct bearing on the kind
and quality of services the Intervenor might be
expected to provide and on the cost to employees
for such services - considerations that are clearly
relevant in the selection of a bargaining agent.
Moveover, as the refund was not conditioned on the
outcome of the election, and had no other strings
attached, the employees, members and non-members
alike, were left entirely free to evaluate the pros and
cons of the Intervenor's action in determining
whether to retain it as their bargaining agent. We
are unable to conclude in these circumstances that
the Intervenor's questioned conduct impaired a free
and rational choice by employees in the election.
Nor do we believe that the timing of the
Intervenor's action requires a different conclusion.
We assume for purposes of this decision that the
Intervenor, in responding as it did to employees'
complaint about its strike fund policy, was
motivated in substantial part by a desire to improve
its standing with employees in the forthcoming
election. But we do not think a desire to make
oneself more attractive as a candidate for election,
in the case of a union representation election any
more than in the case of a political election, is in
itself a valid reason for condemning as objectionable
an otherwise permissible change in position,
particularly where, as here, the change is made in
response to legitimate employee demands. To hold
otherwise would mean in effect that once an
incumbent union's status had been challenged, it
must freeze its existing practices and policies until
the representation question has been resolved, and
that it may not, during that period, take measures
to rectify grievances against it that have been a
cause of employee discontent. We do not think that
this makes good sense or good law.
Moreover, we do not regard the Intervenor's
action here in question as analogous in principle to
that of an employer who, with a purpose to defeat a
union, grants to employees a benefit he would not
normally have granted. It appears plain that the two
situations are materially different, even if we are to
assume that Intervenor's policy change and
consequent refund constituted an economic benefit
to employees. The vice inherent in an employer's
grant of benefit was identified by the Supreme
Court in N.L.R.B. v. Exchange Parts Co., 375 U.S.
405, as follows:
The danger inherent in well-timed increases in
benefits is the suggestion of a fist inside the velvet
glove. Employees are not likely to miss the
inference that the source of benefits now
conferred is also the source from which future
benefits must flow and which may dry up if it is
not obliged.
This coercive element, the presence of an implied
threat of future reprisal cannot properly be found to
be present where a union takes action such as the
Intervenor took here to improve its agency
relationship with employees. A union's attempt to
make itself more attractive to employees can
scarcely be viewed by the employees as a warning
that, if the union is not obliged, the employees may
be made to suffer later. For, as the employees are
aware, if the union is not obliged - that is, if it
loses the election - it can have no effect on the
employees in the future whatsoever. No element of
coercion is therefore present.'
For the foregoing reasons, we conclude that the
Intervenor's conduct, which is the subject of
Objection 12, neither imposed a constraint upon
employees nor otherwise interfered with their
freedom of choice in the election. Accordingly, we
'Cf. DIT-MCO, 163 NLRB No. 147 ; Amalgamated Clothing Workers
of America, AFL-CIO v N L.R.B., 345 F.2d 264 (C.A. 2)
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall overrule that objection. As the Intervenor has
secured a majority of the valid votes cast in the
election, we shall certify it as the
collective-bargaining representative of the employees
in the appropriate unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that United Optical Workers
Union, Local 408, I.U.E., AFL-CIO, has been
designated and selected by a majority of the
employees in the unit found appropriate as their
representative for the purposes of collective
bargaining, and that pursuant to Section 9(a) of the
Act, the said labor organization is the exclusive
bargaining agent for all such employees for the
purposes of collective bargaining with resect to rates
of pay, wages, hours of employment, and other
terms and conditions of employment.
MEMBER ZAGORIA, dissenting:
I would adopt the Regional Director's
recommendation and set aside the election, because
the precipitate distribution of money to employees 7
days before the election constituted "a tangible and
somewhat unusual economic benefit" which unfairly
induced employees to vote for the Intervenor and
thus impaired employee free choice in the election.'
I disagree with my colleagues that the return of
the strike assessment was not a bestowal of an
economic benefit but was merely "an incident to the
Intervenor's change of policy," and thus did not
impair reasoned free choice in the election. For 6
years the Intervenor turned a deaf ear to the
complaints of these employees about the biyearly
cut in their take-home pay for the benefit of the
Intervenor's strike fund. Then, 2 days after District
50 petitioned for a Board election, the Intervenor
suddenly became responsive to the complaints, and
within record time placed a check for a half-day's
pay in the hands of each employee 1 week before
the election was held. There is no doubt in my mind
that each recipient of a check considered it an
unexpected, immediate, and substantial economic
benefit. Although to others there may be real
advantages to a strike fund, these employees had
consistently voiced their preference for cash in hand
and had been unable to achieve it.
I agree with my colleagues that an incumbent
union is not required to freeze its existing practices
and policies until a representation question has been
resolved. Thus, the Intervenor's announcement that
it would discontinue future strike fund assessments
was a fair and reasonable response to legitimate
employee complaints. But I cannot agree that the
Intervenor's presentation of a half-day's pay in
addition was the type of conduct which left the
employees entirely free to make a reasoned choice
between the two unions.
In view of the 6 years of helplessness on the part
of the employees in the face of the Intervenor's
refusal to discontinue the assessments, I am forced
to conclude that the receipt of cash such a short
time before an election, by its very nature precluded
rather than encouraged reasoned employee
consideration of the Intervenor's capacity and
qualifications effectively to represent the employees'
interests.
'Cf. Wagner Electric Corporation , Chatam Division , 167 NLRB No 75;
General Cable Corporation , 170 NLRB No. 172. Compare DIT-MCO,
Incorporated . supra.