Union Camp Corp.

National Labor Relations Board - Board Decisions

Apr 10, 1973

202 N.L.R.B. 1023 (N.L.R.B. 1973)

UNION CAMP CORPORATION 1023
Union Camp Corporation and United Papermakers
and Paperworkers , AFL-CIO , Petitioner. Case
11-RC-3544
April 10,. 1973
DECISION, ORDER, AND, DIRECTION
OF SECOND ELECTION
By CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election, a secret ballot election was
conducted among the employees in the stipulated
unit, described below, at the Employer's Seaboard,
North Carolina, plant on June 22, 1972. The tally of
ballots furnished the parties showed that of approxi-
mately 47 eligible voters, 45 cast valid ballots of
which 15 were for, and 30 against, the Petitioner. One
ballot was declared void. The Petitioner filed timely
objections, a copy of which was duly served on the
Employer.
The Regional Director for Region 11, having
conducted an investigation of the issues raised by
these objections, issued and served on the parties his
Report on Objections and Direction, dated Septem-
ber 25, 1972, in which report he directed that a
hearing be held to resolve the issues raised by the
Petitioner's objections. In a Notice of Hearing, dated
October 4, 1972, the Regional Director further
directed that the Hearing Officer prepare and cause
to be served on the parties a report containing
resolutions of the credibility of witnesses, findings of
fact, and recommendations to the Board as to the
disposition of said issues.
The hearing was held before Hearing Officer David
Kaufman on October 25, 1972, at Roanoke Rapids,
North Carolina. The Employer and the Regional
Office were represented by counsel, and the Petition-
er by a union representative, all of whom participat-
ed in the' hearing. All parties were afforded full
opportunity to be heard, to examine and to cross-
examine witnesses, and to introduce evidence bear-
ing on the issues. On December 12, 1972, the Hearing
Officer issued his Report and Recommendations on
Objections, pertinent parts of which are attached
I In finding objectionable conduct , Chairman Miller relies solely upon
the Employer 's statement to employees that accrued vacation benefits might
be deferred should the Union win the election and choose to begin
negotiating a contract covering such benefits.
Contrary to his colleagues, however, he would not find that the Employer
engaged in objectionable conduct by timing the announcement of increased
holiday benefits on the day before the election to achieve a tactical
advantage during the election campaign where , as here, the increase in the
number of holidays was not shown to have been granted for reasons which
the Board would find objectionable . Chairman Miller notes that the
increased holiday schedule appears to have become effective as of April 3,
1972, more than a month before the petition 's filing, and that one of the
hereto as the Appendix, in which he found, inter alia,
that the Employer had engaged in objectionable
conduct and recommended that a new election be
held.
Thereafter, the Employer filed exceptions to the
Hearing Officer's Report and Recommendations on
Objections and a supporting 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.
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 labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The parties have 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
Company's Chip N Saw Mill in the Building
Products Division at Seaboard, North Carolina,
but excluding clerical employees, salaried em-
ployees, watchmen, office janitors, storekeepers,
foremen, and all other supervisory employees as
defined in the Act.
The Board has considered the Hearing Officer's
report, the Employer's exceptions and brief, and the
entire record in the case, and hereby adopts the
Hearing Officer's findings, conclusions, and recom-
mendations.) Accordingly, having found that the
Employer has engaged in objectionable conduct, we
shall set aside the election of June 22, 1972, and
direct that a new election be held.
Contrary to our dissenting colleague, we view the
announcement by the Employer on June 21, 1972,
the day before the election, that the employees would
receive an additional paid holiday at Christmas,
additional holidays granted , Memorial Day, had been celebrated by the
employees almost a month before the Employer brought the matter of
increased holiday benefits to their attention in his preelection speeches.
Since the Employer's initial effort in the matter of improving holiday
benefits predated the Union's appearance on the scene , and, accordingly,
cannot be characterized as simply a stratagem in response to the threat of
unionism , he would find that the Employer's announcement of the
improvement in holiday benefits was permitted under Sec . 8(c). See his
dissenting opinion in Tommy's Spanish Foods, Inc., 187 NLRB No. 31,
adopted by the court in N.L.R.B. v. Tommy's Spanish Foods, Inc., 463 F.2d
116 (C.A. 9).
202 NLRB No. - 144
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1973, 18 months hence, as calculated to influence the
employees in their choice of a bargaining representa-
tive. As the Hearing Officer held, in these circum-
stances the burden is on the Employer to show that
factors other than the pendency of the election
prompted the announcement of this benefit to the
employees at this critical time.
ORDER
It is hereby ordered that the election conducted on
June 22, 1972, be, and it hereby is, set aside.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
APPENDIX
Conversely, the record supports the Union's
contention No. 3 that Foreman did make promises of
additional benefits to employees in his speech of
June 21. I find, based on Foreman's own testimony,
that he did interfere with the election by announcing
the promise of benefits one day before the election
since Employer failed to show that timing of the
announcement was governed by factors other than
the pendency of the election. The Board has set aside
elections on the grounds that the granting of benefits
at that particular time was calculated to influence the
employees in their choice of a bargaining representa-
tive.10 The burden of showing these other factors is
upon the Employer.' 1 Assuming the Employer's
uncontradicted assertion that it had formulated its
modified holiday plan in April, prior to the filing of
the petition, and that the Employer had previously
given the unorganized plant the same fringe benefits
as was negotiated for its organized employees, the
Employer's actions as of April 3 gives rise to several
questions. The first question is, why did the Employ-
er not post or announce the increased holiday
benefits on or about April 3, when it posted the
general wage increase?
Secondly, in view of Memorial Day being celebrat-
ed on Monday, May 29, why did the Employer
withhold the announcement until Thursday, May
25?-only four calendar days prior to the holiday.
Thirdly, why did the Employer announce to its
employees on June 21 the fact that they would
receive an additional paid holiday at Christmas time
1973-18 months hence?
The Employer's inconsistent actions with regard to
announcements of increased holiday benefits subse-
quent to April 3 fails to convince me that the June 21
announcement of the additional holiday benefit
scheduled for Christmas 1973 was governed by
factors other than the pendency of the election.
I believe that the announcement, of an increased
holiday benefit for 1973, was scheduled to fall one
day before the election when it would have "maxi-
mum possible impact on the minds of the employ-
ees." 12
The fact that the Petitioner's witnesses were slightly
confused as to their holiday benefits is readily
understandable in view of the Employer's policy of
not ' regularly posting, distributing or otherwise
informing the employees on •a regular basis what
their benefits were.
With respect to Union's contention No. 4, Fore-
man testified that he was aware of the Employer's
legal position insofar as granting existing benefits
promised, as of April 3, notwithstanding any Union
petitions. Foreman made it a point to state that all
eligible employees who had already earned their
vacation and vacation pay would get it. He nonethe-
less then proceeded to convey certain assumptions to
the employees as established fact and reasoned from
them that the result of the Union's advent would
mean a deferral of their vacation pay and vacation
benefits. He made an a priori assumption that the
Union might wish to negotiate their already vested
vacation benefits. I 'do not find that Foreman's
assumptions and predictions can be rationally
justified. Additionally, I find his statement that the
employees' vacation benefits which were due the
following week 13 would be indefinitely deferred was
calculated to induce the employees to vote against
the Union.
In conclusion, Foreman misinformed the employ-
ees with respect to the law by stating that the
withholding of their benefits was due to the forth-
coming Union election. Additionally, by implying
that a Union victory would result in the deferment of
their earned benefits, he sought to place the responsi-
bility of any delay on the Union, thereby attempting
to discredit the Union and influence the employees'
vote. His statement strongly implied that a rejection
of the Union could quickly free the Company to
grant these benefits.
Accordingly, I find merit to Union's contention
No. 4.
10 Bata Shoe Company, Inc., 116 NLRB 1239. 13 Foreman testified that vacation pay was distributed on June 30, the
11 Food Fair Stores, 120 NLRB 1669; Bata Shoe Company, Inc., supra. Friday preceding July 4.
12 Food Fair Stores, supra; Bata Shoe Company, Inc., supra.