The Guiberson Corp.

National Labor Relations Board - Board Decisions

Jul 31, 1958

121 N.L.R.B. 260 (N.L.R.B. 1958)

260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
They also have the authority to warn, both verbally and in writing,
and to discipline, the employees working under them, and to handle
grievances at step I of the grievance procedure established by the
collective-bargaining agreement. The record is unclear as to the
power of the operating supervisors to discharge. In the past, they
have discharged messengers for excessive absenteeism and poor job
performance, as well as for violations of rules, unavailability for
work, and insubordination. However, a confidential' memorandum
sent to all supervisors in July 1957 requires that discharges for poor
performance be effected through the main office. The record is clear,
however, that even if the power'to discharge is-presently so limited,
the operating supervisors have the authority to, and do in fact, effec-
tively recommend such discharges.
We find that the branch office operating supervisors are supervisors
within the meaning of Section 2 (11) of the Act, and are excluded
from the previously certified bargaining unit.
[The Board granted the parties' request for clarification of the
Board's April 16, 1954, certification and found that the branch office
operating supervisors are supervisors as defined in the Act and are
excluded from the previously certified unit.]
The G-uiberson Corporation and United Steelworkers of America,
AFL-CIO, Petitioner. Ca$e No.16-R c -164. J_u7y 31,19"54
DECISION AND CERTIFICATION OF RIF,
OF ELECTION
Pursuant to a stipulation for certification upon -consent election
executed on August 21, 1957, an election by secret ballot was conducted
on September 2^; 1957, under the supervision of'the Regional Director
for the Sixteenth Region, among the employees in the appropriate
unit set forth in the stipulation. 'Upon completion of-the relection,
'the parties were furnished a tally of ballots which showed that of
approximately 289 eligible voters, '286 valid- votes were cast. Of
these,. 119 were cast in favor of the Petitioner; 144"were cast against
the Petitioner; and 23 were challenged.' -
On September 30, 1967, the Petitioner timely filed objections to the
election. In accordance with the Board's Rules and Regulations, the
Regional Director conducted an investigation and, on January 6, 1958,
issued and duly served upon the parties his report on objections to
election, in which he recommended that certain objections be over-
1 The challenged, ballets were thus insufficient in number to affect - the results of the
election.
121 NLRB No. 45.
THE GUIBERSON CORPORATION 261
ruled and that others be sustained and the election set aside 2 The
Employer timely filed exceptions to the report.
The Board has reviewed the stipulation of the parties, the objec-
tions, the report on objections to election, as supplemented, and the
exceptions filed by the Employer. Upon the basis of the entire record
in this case, the Board makes ,the, following findings of fact :
1. The Employer is engaged in commerce within 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 employees of the Employer within the meaning of Section 9
(c) (1) and Secti6n2 (6) and (7) of the Act.
4. The parties stipulated, and we find, that the following employees
of the Employer constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
All production and maintenance employees of the Employer at its
oil field equipment manufacturing plant at Dallas, Texas, including
shipping and receiving employees, truckdrivers, inspectors, and hourly
paid laboratory employees, but excluding cafeteria employees, shop
clerical employees, office porters and maids, office clerical employees,
professional and technical employees, guards, watchmen, and super-
visors as defined in the Act.
5. The Petitioner filed five objections to the conduct of the election.
The Regional Director recommended that objections 1, 3, and 4 be
overruled. As no exceptions were filed to such recommendations, we
adopt them and hereby overrule the objections involved.
In objection 2, the Petitioner alleged that the Employer notified
employees that it would not negotiate regarding their Christmas bonus
if the Union, won the election. In objection 5, the Petitioner alleged
that the'Employer informed employees that they "stand to lose" such
benefits as their profit-sharing plan. The Regional Director's investi-
gation of these objections discloses, the utilization herein of consid-
erable preelection campaign propaganda. In one of its circulars, the
Petitioner advocated a bargaining contract providing for 7 paid
holidays, and an improved vacation plan. Thereafter, the Employer
circulated to its employees a letter dated September 17, 1957, in which
it stated, among other things :
In looking over some of the things the steelworkers union says
it will get for you, Item 5 of their last release says they will get
you 7 paid holidays. You are now getting 5 paid holidays. The
Company admits that many companies are giving 6 paid holidays,
2 By order dated May 15 , 1958, the Board requested the Regional Director to furnish it
with copies of certain preelection campaign material referred to in his report. Such
material was duly furnished in a supplemental report dated June 12, 1958.
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
however, 'had you ever stopped to think that Guiberson has here-
tofore, of its own free will, given each man, who has been with
the Company a year, 11 days pay at the end of the year? This
11 days pay has amounted to an average of $154.00 cash per per-
son, or an average of 71/20 per hour for the total hours worked
during the year. There is no way that any union , including the
steelworkers, can require or insist that the Company give you a
Christmas present in the form of a stated number of days pay
unless the Company wants to do it. Certainly if you should
decide to have a union , we will negotiate a holiday agreement
with the union , but there will be no negotiation regarding
Christmas gifts , as this is a matter for the Company to decide for
itself.'
At present there is in effect in our whole Company a retirement
plan paid by a portion of the Company 's profits being applied to
the plan. Each individual gets a vested interest in his portion of
the money spent for this plan . Every one of you is supplied
with a "Pass Book" which shows the amount deposited to your
credit each year. Each of you has a document which fully
explains the program .. Should a union represent you in your
dealings with the Company the subject of a retirement plan
would be one for negotiation . Inasmuch as plans negotiated with
unions are for a stated period of years , without any right on the
part of the Company to revise, we would discuss with the union
the type of plan negotiated by the steelworkers and all other
unions . These plans carry pension benefits at the age of 65, and
based upon the individual 's years of service-no less than 15--L
without any vesting whatever . The last several pension plans
negotiated by the unions , it is estimated , cost about 9 to 100 per
man hour. You can look at your Pass Book year after year and
you will find that the plan you now have in effect, to which you
acquire title after 5 years of service , amounts to an average over
the years of 220 per hour, or more.
There are many other benefits and practices in Guiberson with
which you are entirely familiar that could be subject to revision
or discontinuance were we obligated to negotiate a contract with
a union, covering wages, hours and other conditions of employ-
ment.
The Petitioner , in an undated circular, replied to the Employer's
September 17 statements as follows :
Mr. Smith has made childish threats in his letter of September
17; threats which he hopes will scare a few weak-kneed employees
into voting against the Union.
THE GUIBERSON CORPORATION' 263
Here_ is the` truth :
`Mr. Smith' cannot take one penny away from your Christmas
bonus because you vote for the Union. He must bargain for its
-4improveinent. - ' '
Mr.' Smith' cannot discontinue or adversely alter the profit-
sharing'plan because you'vote for 'the, Union: He mutt bargain
for any improvement of it.
That is the law. ` It is Federal law.
In a letter to employees dated September 23, the Employer stated
as follows :
It is easy enough to reason that you can vote for the union, and
if you should get some benefit from it you are that much ahead-
that you have nothing to lose by doing so. Nothing could be
further from the truth. We have set forth in our other 'releases
to you the risks you are taking and the things you stand-'to' lose.
Each of you stands to lose $60.00 a year in union dues. You are
also taking risks with benefits you now have, such as, the profit
sharing , retirement program, 'the voluntary Christmas present
payment and other benefits. This is so regardless of how loudly
and violently the union 'organizers might have tried to tell you
otherwise. Don't let them mislead you into believing that the
law puts the Company under any obligation to write voluntary,
cancellable practices into a union contract and improve them.. .
All a union can do is become your spokesman-they can't decide
anything-they can only request and argue.... The Company
still does the deciding, which is essential in the operation of any
business enterprise.... We hope and sincerely believe that ...
you will vote "NO" in the election on Wednesday. Whatever
the outcome the Company, will', of course, abide by your decision.
It is left in your hands.
The Regional Director found that the Employer's letters of Sep-
tember 17 and 23 contained threats to discontinue the employees'
profit-sharing plan and customary. Christmas bonus if they selected
the Petitioner to represent them. We do not agree. When all - the
statements made by the, Employer before the election are considered
together in the context in which they were made, particularly in con-
junction with the Petitioner's false and misleading preelection claims
above set forth, we find therein no more than a statement of the
Employer's legal position that it was under no obligation to grant
the Petitioner a contract which increased employee benefits, which
was coupled with an expression of the Employer's opinion that bar-
gaining negotiations with the Petitioner could produce less favorable
employee benefits. Our view in the latter connection is underscored
by the detailed explanation in the September 17 letter as to how the
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees' retirement plan might be adversely affected, without fault
of the Employer, by negotiations with the Petitioner. All the cir-
cumstances serve to make it manifest to us, as it must have been to
the employees, that, when the Employer told the employees in the
September 23 letter thatjthey,were "taking risks" with benefits they
had, it was not promising unlawful retribution if a bargaining repre-
sentative were selected. Accordingly, we find that the Employer was
privileged to make the statements in issue and that it did not thereby
interfere with a free election.' Objections 2 and 5, therefore, are
also overruled.
As the Petitioner failed to secure a majority of the valid ballots
cast, we shall certify the results of the election.
[The Board certified that a majority of the valid votes was not
cast for United Steelworkers of, America, AFL-CIO; and that said
labor organization is not the exclusive representative of the employees
in the unit found appropriate.]
MEMBERS BEAN and JENKINS took no part in the consideration of
the above Decision and Certification of Results of Election.
3N. L. R . B. v. Nash-Flinch Company, 211 F. 2d 622 ; Schick, Incorporated, 118,NLRB
1160 , 1162-3; LaPointe Machine Tool Company, 113 NLRB 171 , 172-3.
Bermingham & Prosser Company and Warehousemen, Inside
Workers, Drivers and Helpers , Local Union 394, affiliated with
I. B. T. C . W. & H. of America , Petitioner. Case No. 18-BC-
3574. July 31, 1958
SUPPLEMENTAL DECISION AND CERTIFICATION OF
REPRESENTATIVES
Pursuant to a Decision and Direction of Election issued by the Board
on May 16, 1958,' an election by secret ballot was conducted on May 27,
1958, under the direction and supervision of the Regional Director
for the Eighteenth Region. After the election the Regional Director
served upon the parties a tally of ballots which showed that of ap-
proximately 3 eligible voters, 3 cast ballots, all of which were for
the Petitioner.
On May 29,1958, the Employer timely filed objections to the conduct
of the election and to conduct affecting the election. The Regional
Director, investigated the-objections and on June 3, 1958, issued and
duly served upon the parties his report on objections, recommending
that the Employer's objections be overruled and that the Petitioner
be certified as the exclusive bargaining representative in the unit found
1 Unpublished.
121 NLRB No. 88.