Speco Corp.

National Labor Relations Board - Board Decisions

May 7, 1990

298 N.L.R.B. 439 (N.L.R.B. 1990)

SPECO CORP. 439
Speco Corporation and Douglas A.- Chapman and
International Union, United Automobile, Aero-
space and Agricultural Implement Workers of
America, UAW, AFL-CIO. Cases 9-CA-25474
and 9-RC-15205
May 7, 1990
Leo A. Nouhan, Esq. (Sullivan, Ward, Bone, ,Tyler, Fiott &
Asher), of Southfield, Michigan, for the Respondent
Employer.
Emma J. Farley, of Dayton, Ohio, for the Charging
Party Petitioner.
DECISION
DECISION AND DIRECTION OF
SECOND ELECTIONS
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On March 9 , 1989 , Administrative Law Judge
Bernard Ries issued the attached decision . The Re-
spondent filed exceptions and a supporting brief,
and the General Counsel filed exceptions and a
supporting brief. The Respondent also filed a brief
in partial support of the judge 's decision.'
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs, and has
decided to affirm the judge's rulings, findings,2 and
conclusions and to adopt the, recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
IT IS FURTHER ORDERED that the elections held
in Case 9-RC-15205 be set aside and second elec-
tions be conducted.
[Direction of Second Election omitted from pub-
lication.]
' On February 9, 1990, the Board issued a Notice to Show Cause why
the complaint should not be dismissed under Nickles Bakery of Indiana,
296 NLRB 927 (1989), on the ground that the underlying charge is msuf-
ficient to support the complaint allegation On February 22, 1990, the
General Counsel filed a response stating, in pertinent part, "that Nickles
is controlling and precludes a finding of meet in the subject case " On
this basis, the General Counsel withdrew his exceptions to the judge's
dismissal of the complaint.
8 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
In finding that the Respondent's announcement of improved medical
insurance benefits was objectionable, we do not rely on any presumption
that benefits conferred during an organizing campaign are objectionable.
Rather, we draw an inference of interference with employee free choice
from all the evidence presented and the Respondent's failure to establish
a legitimate reason for the timing of the announcement . See Montgomery
Ward, 288 NLRB 126 fn. 6 (1988).
Eric V. Oliver, Esq., for the General Counsel.
STATEMENT OF THE CASE
BERNARD RIES, Administrative Law Judge. These
matters-a related representation case and unfair labor
practice allegation-were heard in Springfield, Ohio, on
August 23, 1988.' They present questions of whether the
Respondent Employer violated Section 8(a)(1) of the Act
by announcing a new insurance benefit on the day pre-
ceding an election, whether such conduct is also grounds
for setting aside the election, and whether the Regional
Director acted within the bounds of the law in issuing
the unfair labor practice complaint.
The General Counsel and the Respondent Employer
(the Respondent) filed briefs on September 27, 1988.2
Having reviewed the briefs and the entire record, and
taking into account my recollection of the demeanor of
the witnesses as they testified, I make the following find-
ings and conclusions.
1. THE CHALLENGE TO THE PROPRIETY OF
THE COMPLAINT
The Respondent contends that the Regional Director
was not authorized to issue the complaint. The material
facts follow.
On September 4, 1987, the Union filed a petition f'or an
election in a unit consisting of Respondent's approxi-
mately 110 salaried employees (see G.C. Exh. 1(e)); its
hourly employees were already represented by the
Union. The election was held on March 11, 1988, in pro-
fessional and nonprofessional units, and the Union lost by
tallies, respectively, of 27 to 11 and 32 to 31 (with one
challenged ballot).
The Union's only specific objection based on conduct
assertedly affecting the results of the election was that
Respondent had, on election day, informed employees
that it "was making available to the employees insurance
coverage at an affordable price." In his Supplemental
Decision, Order and Direction of Second Election, dated
May 6, the Regional Director found that the evidence
warranted a conclusion that the Respondent's "an-
nouncement . . . that a better insurance program would
be implemented . . . was calculated to affect the voters
in the exercise of their choice in the election." He or-
dered, accordingly, that a second election be conducted.
'The charge in Case 9-CA-25474 was filed on June 1, 1988; in cir-
cumstances explained below , the complaint issued on July 5, 1988, and
the representation and unfair labor practice cases were consolidated for
hearing by order of the Regional Director dated July 7, 1988.
2 Thereafter, on November 8, 1988, the Respondent filed a motion
seeking permission to file a supplemental brief. Having received no oppo-
sition, I granted the motion by an order dated November 18; the supple-
mental brief was to be filed by November 30 and any response thereto by
December 12 The supplemental brief was duly filed; no responses were
received.
298 NLRB No. 56
440 DECISIONS OF THE NATIONAL. LABOR RELATIONS BOARD
On May 23, the Respondent filed a request for review
with the Board.
On June 1, Douglas A. Chapman filed an unfair labor
practice charge against Respondent, asserting that his
layoff on April 23 had been motivated by his support of
the Union; it is this charge, alleging a violation of Sec-
tion 8(a)(3) and (1), which underlies Case 9-CA-25474.
According to the unchallenged representation of counsel
for Respondent at the hearing, Chapman's charge per-
taining to his layoff was thereafter dismissed by the Re-
gional Director except for the alleged "8(a)(1) violation."
On July 5, the Region issued a complaint, labeled Case
9-CA-25474, which alleged as a violation of Section
8(a)(1) the March 10 promise by Respondent to its em-
ployees of improved medical insurance benefits.
On July 7, the Regional Director issued an order va-
cating his May 6 order and consolidating Cases 9-RC-
15205 and 9-CA-25474. In so doing, he stated that he
was treating the Respondent's May 23 request for review
as a motion to the Region for reconsideration, and he ef-
fectively granted that constructive motion by ordering
that a hearing be held on the issue raised by the Union's
election objection. At the same time , the Regional Direc-
tor consolidated the representation case with the recently
issued complaint case and ordered that both matters, ad-
dressing the same set of facts, be heard by an administra-
tive law judge.
As it did in a motion for dismissal made at the hearing,
the Respondent argues on brief that the Regional Direc-
tor exceeded his authority by issuing a complaint based
upon the charge filed by Chapman. Respondent, noting
Clark Equipment Co., 278 NLRB 498 (1986), and G. W.
Galloway Co., 281 NLRB 262 (1986), acknowledges
"longstanding precedent to the effect that where the
charge alleges, in general language, that Section 8(a)(1)
has been violated, even without particularizing the con-
duct alleged to be violative of Section 8(a)(1), the charge
is sufficient to support specific allegations in the com-
plaint of 8(a)(1) conduct during the six month period
preceding the service of the original charge, and subse-
quent thereto." It is Respondent's position, however, that
some language contained in footnotes in those two cases,
referring to the application of the Casehandling Manual,
should be given controlling weight here.3
' In both cases, the Board "stress [ed] the importance" of complying
with the manual provision which states that if a charge is "too narrow,"
an amendment of the charge should be sought ; if such an amendment is
not filed, "the case should be appraised in this light and the complaint
issued, if any, should cover only matters related to the specifications of
the charge" (emphasis in original). In fact, however, in neither case was
there an amendment and in neither case did the Board examine the rela-
tionship of the complaint allegation to the charge In both cases, instead,
the Board approved the, issuance of 8(a)(1) complaint allegations where
only 8(a)(3) and (5) conduct had been specified in the charge, based
"solely on the printed language of the charge form NLRB-401 that '[b]y
the above acts and other acts, the above-named employer has interfered
with , restrained and coerced employees in the exercise of rights guaran-
teed in Section 7 of the Act." Clark Equipment Co., supra at 498.
As the Respondent has pointed out in its supplemental brief, the Court
of Appeals' for the District of Columbia Circuit, in G. W. Galloway Co. v.
NLRB, 856 F 2d 275 (1988), has held that the Board's reliance upon the
"other acts" printed matter constitutes an unwarranted enlargement of its
,jurisdiction. While Respondent urges me to apply here the reasoning of
the D.C Circuit, Iowa Beef Packers, 144 NLRB 615, 616 (1963), and simi-
lar precedents forbid my doing so.
The, General Counsel's brief also addresses the Clark
Equipment line of cases, correctly claiming that the
present facts fall within the Clark rationale. Neither side
has referred to Redd-I, Inc., 290 NLRB 115 (1988), per-
haps because it issued only 11 days before the briefs
were filed in this case. In Redd-I, Inc., the Board consid-
ered at length the test which the General Counsel must
meet "to add complaint allegations outside the 6-month
10(b) period": that test is whether the allegations "are
closely related to the allegations of the timely filed
charge."
The "closely related" (or some like) standard, howev-
er, would seem to apply to more than just cases in which
there is a claim of untimeliness. Even if, as in this case,
the complaint issues within 6 months of the disputed
event, there still must be on file a charge which in some
manner justifies the issuance of the complaint allegation.
NLRB v. Kohler Co., 220 F. 2d 3, 7 (7th Cir. 1955)
("There must be some relationship between charge and
complaint, however. Section 10(b) makes the filing of a
complaint contingent upon the existence of a charge.").
In Redd-I, however, the Board made no reference to
the Clark Equipment rule. Since the Board has recently
reiterated its adherence to that rule in three cases (Gallo-
way, supra; The Broker, 282 NLRB 1265 (1987); Cast-
aways Management, 285 NLRB 954 (1987), I must assume
that the rule is still the law. Iowa Beef Packers, supra.
It would appear, however, that an overriding consider-
ation in this area down through the years has been that
any allegations which eventually turn up in a complaint
must be, as a threshold requirement, the product of the
investigation triggered by a charge. In NLRB v. Fant
Milling Co., 360 U.S. 301, 309 (1959), the Court made it
explicit that the Board was not to be left "carte blanche
to expand the charge as they might please." The Kohler
Co. court stated that when the Board "gets so complete-
ly outside of the situation which gave rise to the charge
that it may be said to be initiating the proceeding on its
own motion, then the complaint should fall as not sup-
ported by the charge." 220 F.2d at 7. And in NLRB v.
Central Power & Light Co., 425 F.2d 1318, 1321 (5th Cir.
1970), while seeming to find the "closely related" test
too restrictive, the Fifth Circuit said that the one indis-
pensable requirement was a sufficient relationship be-
tween charge and complaint "to negate the possibility
that the Board is proceeding on its own initiative rather
than pursuant to a charge."
In Red Food Store, 252 NLRB 116 (1980), with Board
approval, I applied these precedents to hold that a Re-
gional Director had apparently "taken advantage of the
material entered into [a] representation proceeding" to
formulate complaint allegations against a' respondent
based on a charge otherwise unrelated to the representa-
tion proceeding, and, by doing so, had gone too far. 252
NLRB at 123. It seems to me that the same view should
be adopted here. The Region simply stuffed an existing
election objection into a handy charge which bore the
talismanic printed words "other acts," and issued a com-
plaint which has no apparent relationship to the alleged
unlawful layoff of Douglas Chapman 6 weeks after the
election. General Counsel's characterization on brief of
SPECO CORP. 441
the complaint allegation as having "surfaced after the
Board's investigatory power was set in motion" by the
charge is, to be kind, not consistent with the facts.
Why the Region chose to use the remains of the fortu-
itously available Chapman charge to clothe in unfair
labor practice garb the existing election objection (an
avenue not pursued by the interested labor organization
or by Chapman and not accompanied by the Region's so-
licitation of an amendment to the charge, a course twice
urged, in Clark Equipment and Galloway, by the Board)
is not clear . I might have thought it a tactical maneuver
to bring into play the doctrine of Dal-Tex Optical Co.,
137 NLRB 1782, 1786 (1962) (holding that conduct
found to be violative of Section 8(a)(1) is, ipso facto,
conduct which requires setting aside an election), but the
General Counsel 's brief does not mention Dal-Tex. Per-
haps the Region preferred not to tie up a member of its
own staff in resolving this objection, and thought that is-
suance of a complaint , to be consolidated with the repre-
sentation case , would take care of that problem. Or it
may be that the Regional Director simply believed that
the policies of the Act would be served by issuing the
complaint. Whatever the motivation, I conclude that the
Region here , as another Region did in Red Food Store,
acted irregularly and beyond the pale. Accordingly, I
recommend that the 8(a)(1) allegation be dismissed.
II. THE ELECTION OBJECTION
Respondent is a manufacturing firm which was for-
merly owned by the Kelsey-Hayes Company and was
purchased, effective July 31, 1987, by Grabill Aerospace
Industries, Ltd. Respondent's president at material times
was Andrew Pike ; Peter Bolton was the director of in-
dustrial relations ; and Carol Palmer, whose status as an
agent of Respondent is in dispute , held the position of
"Benefits Administrator."
Under Kelsey-Hayes ownership , the employees of Re-
spondent , both the organized hourly workers and the un-
organized salaried employees, received "first dollar"
health insurance coverage-that is, their medical claims
were subject to no deductible or co-pay provisions. A
new plan introduced by Grabill to the salaried employees
at a meeting in August 1987 did include such provisions;
they had the net result of subjecting each such employee
and covered family member to potential out-of-pocket
costs of $1200 per year . Since "first dollar" coverage of
the unionized hourly workers was embodied in a bar-
gaining agreement, their insurance was not changed.
The record shows that the salaried employees were ex-
tremely upset by this change, and so was President Pike,
who told them that he would make an effort to secure
some relief from Grabill.4 Bolton , the industrial relations
director, testified that employees complained to him
about the reduced benefits as early as August 17, when
they were first told about the new plan. Some employees
had suggested the possibility that they be allowed to
contribute to a plan which would recapture their former
complete coverage, and Bolton asked Grabill 's insurance
broker, Corroon and Black , to look into the matter.
The investigation went slowly , Bolton asserts , despite
his efforts to accelerate it. He testified that Corroon and
Black told him that several months of experience would
be necessary before the actuaries would be able to cost
out the figures . "Early in December" Bolton purportedly
received a letter from Corroon and Black laying out sev-
eral options , including the same coverage as under
Kelsey-Hayes in exchange for a monthly employee con-
tribution of about $41 for a family and about $ 13 for a
single person.
That most employees knew Respondent was trying to
correct the situation seems probable .. There is employee
testimony which makes likely Bolton 's testimony that
"every day" from August through the winter , employees
would ask him if any progress was being made , and that
employee meetings were occasionally held at which Pike
spoke of his efforts regarding improved insurance. In
fact, according to Bolton , progress was nonexistent.
Once Respondent had received the broker 's options in
December, it had to convince Grabill. Bolton says that,
for reasons I did not fully comprehend , Grabill regarded
the employee contribution option as a "drain on cash,"
based on statistics indicating that with "first dollar" cov-
erage , employees tend to use a health plan more often
than if they have to face a deductible or co -pay provi-
sions For this reason , Bolton testified, it was "very diffi-
cult" to persuade Grabill that the option should be of-
fered.
While Respondent purportedly pressured Grabill, the
election petition moved along . After a hearing , the Re-
gional Director released a lengthy direction of election
on February 12, 1988 , and the voting was set for March
11. At a meeting with employees on March 7, the
Monday prior to the election , Pike asserted that he was
still doing "battle" with Grabill to win back the old cov-
erage.
Bolton testified that late in the afternoon of March 10,
Pike called him into the office to say that he "had just
gotten off the telephone with Grabill, and they said they
would allow us to go with the option if the employees
paid the premium ." Bolton then Went over to the nearby
office of Benefits Administrator Carol Palmer and re-
layed this information to her.
The first problem with Bolton 's testimony in this area
is that it does not jibe with Palmer's . While he quoted
Pike as having said to the employees on the Monday
before the election , "We're working on it . It's a battle,"
Palmer blithely testified , "We knew it was , coming, so it
wasn't a great surprise . We just didn't know when it was
going to happen ." While Bolton said that Pike had told
him on March 10 that Grabill "would allow" the contri-
bution option, Palmer was very careful to quote Bolton
as saying that Grabill had "approved some options in our
insurance plans , and that it looked like we could revert
back to the old level of benefits ." Palmer further testified
that, in immediately telling two other employees about
4 The record does not definitively establish that Pike told the employ-
ees about this effort prior to the filing of the petition for election on Sep- I would have supposed that the actuarial calculations would have al-
tember 4, 1987 ready taken this factor into account in arriving at the $41 and $13 figures
442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
this, she said to each one that "it looked like" they
would be able to return to the original coverage (Tr. 26,
27).6
A second problem with Bolton's testimony arises from
his explanation of his motivation in speaking to Palmer
about the matter at all. He gave as his reason that she
would be the contact with the insurance company and
the broker about the approved option, and should quick-
ly be made cognizant of the decision. Pretty clearly,
however, as Bolton conceded, nothing was going to
happen in the few hours remaining on March 10 with re-
spect to the implementation of this new option. Instead,
as was foreseeable and as Bolton testified, although he
did not specify the date, "[R]ight away we got with Cor-
roon and Black and with Cigna [the insurance company]
to work out the details." Indeed, as matters eventuated,
after disposing of a major "glitch" which appeared in
May, the new program was not put into effect until July
1.
This leads into the third problem I have with Bolton's
testimony. He offered, at the close of his appearance,
that he was frustrated by his situation on March 10:
"And here I've got a union vote coming up. I've got
something that we've been working on for months, and I
can't even tell the employees." At the same time, howev-
er, he had no reservations about talking to Palmer (who
cast a challenged ballot) with regard to the approval (or
almost- approval) of the insurance program, and he ad-
mittedly did not caution her to keep the information con-
fidential, despite his present assertion that he believed
that he could not lawfully tell the employees.
As indicated, Palmer testified that she hastily tele-
phoned two employees after Bolton left her office. One
she called because she knew that the employee's husband
was preparing to take some costly tests and she wanted
to suggest that they be postponed, if feasible. Palmer did
not, however, explain why she called the other employ-
ee. Palmer also testified that "probably" that same after-
noon she told perhaps a half-dozen employees that "it
looked as though we were going to be able to revert
back to the old level of benefits." While Palmer testified
that she did not initiate these discussions, but rather
dropped this information into two (Tr. 44) or three (Tr.
39) ongoing conversations about the insurance problem, I
find that her testimony (which generally seemed to me
rather biased in favor of Respondent) to this effect is im-
probable ("I walked into the ladies' room. There were
already three or four ladies in there, discussing insurance
.... And again, when I went into the mail room later
in the day, there were already two or three employees
there, and they were discussing insurance"). This course
of events might, however, seem more plausible if the two
women whom Palmer had called had already spread the
6 In testifying about what appears to be the conversation to which
Palmer referred, one of the employees said that Palmer "just told me that
the company was working on it," and that it would be a good idea to
postpone, if possible, some medical tests that her husband was facing
The second employee who had been called by Palmer remembered a
conversation with her "a day or two" before the election, in which
Palmer said only that the company "was still striving very hard" to
secure the better coverage, but did not say that Grabill "had given" ap-
proval. I cannot believe that Palmer would have called the latter employ-
ee simply to say that Respondent was "still striving very hard."
word; but Palmer's account does not indicate that the
discussions she walked into were already informed of the
news.
By that evening, the word was out and circulating. At
6 p.m., employee Marcia Monroe received a call at home
from employee Carol Rower, stating that Rower had
been told by another employee that "we got our insur-
ance back with a slight charge." The record shows that
the following day-the day of the elections-the plant
was abuzz with discussion of the new development.
The Union, as earlier noted, lost the two elections on
March 11, one by a very close margin. As also noted,
the first presentation of the new option to the employees
was not made until sometime in May, but the effective
date, set for June, was canceled because of an unexpect-
ed problem, and the program did not begin until July 1.
The General Counsel, who is not a party to the repre-
sentation proceeding, properly addresses her argument
only to the claim that an 8(a)(1) violation was made out.
I have concluded that the 8(a)(1) allegation is not validly
before me; accordingly, I shall consider only the claim
that the Respondent engaged in objectionable conduct
which warrants setting aside the election.
It is worth noting, however, that an evaluation of con-
duct for unfair labor practice purposes and for represen-
tational purposes may to some extent require differing
analyses, at least in the area of conferral of benefits. In
NLRB v. Exchange Parts Co., 375 U.S. 405, 409 (1964),
the Supreme Court held that Section 8(a)(1) encompasses
"conduct immediately favorable to employees which is
undertaken with the express purpose of infringing upon
their freedom of choice for or against unionization and is
reasonably calculated to have that effect." In objection-
able conduct cases, however, what matters is not so
much whether an "express purpose" existed as whether a
sufficient impact occurred; in the words of the Board in
Falmouth Co., 114 NLRB 896, 901 (1955), "The impor-
tant fact is that conditions existed which prevented a free
election." That intention is less relevant than impact is
demonstrated by the cases basing election set-asides on
third-party interference. See, e.g., Falmouth Co., supra;
Al Long, Inc., 173 NLRB 447, 448 (1968) ("It is not ma-
terial that fear and disorder may have been created by
individual employees or nonemployees and that their
conduct cannot probatively be attributed either to the
Employer or to the Union." ).v
The foregoing leads me to' conclude that even if it
were true that 'Bolton did not intend to set off a chain
reaction among the employees by dropping his bomb-
shell in Palmer's office on March 10, since he was (and
thus Respondent was) the initiating force, they should be
held responsible for the consequences. If a degree of cul-
pability were considered to be 'necessary, the least that
could be said is that Bolton's statement to Palmer (indi-
cating either approval of the desired option or increased
likelihood of its adoption) was so fraught with predict-
7 Even in applying Sec. 8(axl), the Board has held that, in some cir-
cumstances, an intention to threaten or coerce need not be proved. Thus,
threats accidently overheard by employees are violative of the Act. Ford
Radio & Mica Corp., 115 NLRB 1046, 1047 (1956); Bahama Joe's, Inc,
270 NLRB 1377, 1378, 1382 (1984).
SPECO CORP. 443
ably significant consequences , should it be given curren-
cy among the employees , that Bolton 's failure to caution
Palmer against communication of the news to others
must be deemed unforgivably reckless ." The General
Counsel makes an argument on brief about Palmer's ap-
parent authority , but any such inquiry is beside the point
here . In agreement, rather, with the implicit view ex-
pressed by the Regional Director in his May 6 , 1988 Di-
rection of Second Election , p. 4, fn . 2, I believe that it is
enough for present purposes that Bolton armed Palmer
with this weapon, released the safety catch , and did not
bother to tell her not to pull the trigger.
The Board has held that in conferral-of-benefits cases
it will presume a violation of Section 8(a)(1) from noth-
ing more than conferral itself during the pendency of an
election, leaving it to the employer to establish a "non-
discriminatory , business-related basis" for the grant of
benefit. Brooks Bros., 261 NLRB 876, 882 (1982); Gor-
donsville Industries , 252 NLRB 563, 575 ( 1980). Respond-
ent argues here that the evidence shows the revelation of
the insurance benefit to have been simply an appropriate-
ly timed disclosure of the culmination of a quest upon
which Respondent had long before , and with the knowl-
edge of the employees , set out, citing such cases as
Domino of California, Inc., 205 NLRB 1083 ( 1973), and
Cartridge Actuated Devices, 282 NLRB 426 (1986).
The Brooks Brothers-Domino analytical process is appli-
cable to objections cases. United Airlines Services Corp.,
290 NLRB 954 (1988). If the employees were anticipat-
ing the benefit, its production , even as a last-minute pree-
lection announcement , would not necessarily have an un-
toward effect upon the election . Furthermore , it is clear
that an employer 's right to recite for employees the ben-
efits bestowed upon them prior to the union 's appearance
includes the right to announce the culmination of any
nonunion related efforts to improve those benefits when
such efforts come naturally to term, even in the period
of an organizing campaign . The announcement becomes
perilous , however, when the employer has, and exercises,
discretion in choosing the time for announcement; timing
may not be manipulated to heighten the impact of a new
benefit, a subject to which employees are keenly sensi-
tive. United Airlines Services Corp., supra ("[T]he Em-
ployer has not offered any explanation for its timing, i.e.,
for making this change in the biweekly payroll system
during the pendency of the election.").9
In the present case, the Respondent has not -only failed
to present cogent evidence of an orderly sequence of
events which led naturally and inexorably to Bolton's
message to Palmer on the literal eve of the elections, but
it has failed with a very loud and suspect noise. Despite
having gone to the trouble of introducing into evidence
as trivial and unnecessary a piece of evidence as the log
9 As noted, Bolton expressed awareness of the lurking dangers by testi-
fying that he was bursting to inform the employees but believed that it
would be improper.
9 In NLRB a Exchange Parts Co., supra , 375 U S. at 409, the Supreme
Court declared, "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."
sheet - which showed that representatives of Corroon and
Black had appeared at the building on August 17, 1987,
Respondent subsequently failed to present any first-hand
evidence relating to the months long effort to secure the
return of first-dollar coverage . It did not call President
Pike as a witness or explain his absence , nor did it call
whichever Grabill official it was who purportedly
phoned Pike on the afternoon before the ele tion to tell
him that, at long last, Grabill had seen the light.
It would have been of acute interest to hear from at
least one of these gentlemen how it came about that the
chief executive officer of Grabill , who, so Bolton says,
had been unconvinced with "passion" since December,
executed an about -face on March 10. They ^ also might
have been helpful in explaining why Bolton testified that
as late as the Monday before the elections , Pike was
speaking of doing "battle" with 'Grabill about the cover-
age, while Benefits Administrator Palmer testified that
they "knew it was coming so it wasn 't a great surprise,"
but they "just didn't know when it was going to
happen." Nor were we given the benefit of a, single doc-
ument-and there surely would have been some , generat-
ed by both Respondent and Grabill-to substantiate Bol-
ton's oral history of the asserted efforts to get informa-
tion from the insurance carrier and then to get an affirm-
ative response from Grabill.
This vast void necessarily gives rise to an ' adverse in-
ference, although I have no fixed notion as to which of
the possible adverse inferences to draw . It may be that
Respondent had received authorization from Grabill long
before March 10, in which case the husbanding of the
approval until that date would have constituted such an
abuse of the election process , entailing a substantial
chance of increasing the "fist in the velvet glove" effect,
that the elections would have to be set aside. I would be
inclined to believe (if the choice were material ; I think it
is not) that in fact Grabill did not convey to Pike on
March 10 any definitive indication that Grabill had ap-
proved the new option . This conclusion would perhaps
explain the fact that Palmer repeatedly testified , contrary
to Bolton, that he spoke only ' of a likelihood that the
benefit would be conferred.
But whether likelihood or fait accompli ,, we can at
least discern in the dimly lit recesses of this particular
cave that, on the day before the election , Bolton set in
motion a communication about a beneficial resolution of
a problem which had been of considerable '; concern to
the electorate and which communication Bolton reason-
ably could have foreseen would have been, absent ex-
press restraints imposed by him, quickly disseminated to
the voters. That the benefit, whether bestowed or simply
more prominent, would have seemed of great value to
the employees, I have little cause to doubt, and I con-
clude that the statement by Bolton to Palmer therefore
constitutes ample ground ' for setting aside the elec-
tions.10
10 I also cannot help but take note of Bolton's testimony that at the
employee meeting on the Monday before the elections , he and Pike were
"asking them to give us what the problems are . We wanted to
assure them again that we were doing everything we could to put down
Continued
444 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2) and (6) of the
Act.
some of the problems which had come to light since the union petition
had come in . There had been a lot of problems that were brought to our
attention "
Such statements constitute express promises to rectify grievances, and
are themselves not only objectionable conduct but also violations of Sec.
8(a)(1). It is an understandably human thing for an employer, faced with
a union campaign , to conduct a vigorous inquiry into what is troubling
his employees, and to set about repairing the cracks The law, however,
does not condone such emergency rehabilitation . To do so could mean
that an employer would perform just enough hasty plastering to make the
union disappear; but after the union leaves (its pockets emptier than they
had been prior to the campaign), the cracks might quickly reappear. The
law prefers that the employers be flash-frozen at the time the union
enters the picture, so that the playing field is relatively level. The em-
ployer may woo the employees with both what it has done for them and
what it has been attempting to do for them , but it is not permitted sud-
denly to develop a keen interest in the needs and problems of the em-
ployees and to promise , perhaps after years of disinterest and neglect, to
make life better for them . The employer who does not want a umon (that
is to say, nearly all employers) should make surveys and bestow benefits
before the umon arrives
2. The Charging Party is a labor organization within
the meaning of Section 2 (5) of the Act.
3. The allegation that the Respondent has violated
Section 8(a)(1) of the Act is not properly before the
Board and should be dismissed.
4. The elections held in Case 9-RC-15205 should be
set aside and second elections should be conducted.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
IT IS RECOMMENDED that the elections held in Case 9-
RC-15205 on March 11, 1988, be set aside, and second
elections by secret ballot be conducted by the Regional
Director for Region 9 at such time as he deems appropri-
ate.
11 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses