Unitec Industries

National Labor Relations Board - Board Decisions

Dec 12, 1969

180 N.L.R.B. 51 (N.L.R.B. 1969)

CAMPBELL CHAIN, DIV. OF UNITEC
Campbell Chain, Division of Unitec Industries,
formerly Campbell Chain Company and United
Automobile , Aerospace & Agricultural Implement
Workers of America (UAW), Petitioner. Case
38-RC-553
December 12, 1969
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS FANNING, JENKINS , AND ZAGORIA
Pursuant to the provisions of a Stipulation for
Certification upon Consent Election, executed on
August 30, 1968, an election by secret ballot was
conducted on October 1, 1968, under the direction
and supervision of the Regional Director for Region
13, among the employees in the stipulated unit. At
the conclusion of the election the parties were
furnished with a tally of ballots which showed that
of approximately 117 eligible voters, 115 cast valid
ballots, of which 56 were cast for, and 59 were
against , the Petitioner . Thereafter, the Petitioner
filed timely objections to conduct affecting the
results of the election.
In accordance with Section 102.69 of the Board's
Rules and Regulations , Series 8, as amended, the
Regional Director conducted an investigation and,
on December 9, 1968, issued and duly served upon
the parties his Report on Objections' in which he
determined that the allegations involved in the
Petitioner's Objections raised issues which could
best be resolved by a hearing. Accordingly, the
Regional Director recommended that a hearing be
held.
Thereafter, on January 3, 1969, the Employer
filed exceptions to the Regional Director's Report
and a Motion to Issue Certification based on
Results of the Election. The exceptions and the
Motion both relied upon the timeliness issue which
the Regional Director had resolved in his Report on
Objections. The Board agreed with the Regional
Director ' s disposition of that issue and his
recommendation that the issues raised by the
Petitioner 's objections could best be resolved by a
hearing , and on January 28, 1969, it issued an Order
Denying Motion and Directing Hearing. The
Hearing Officer was directed to prepare and cause
to be served on the parties a report containing
resolutions of the credibility of the witnesses,
findings of fact , and recommendations to the Board
as to the disposition of said issues.
'In his Report on Objections the Regional Director denied the
Employer' s Motion to Dismiss the Objections. The Motion alleged that the
objections were not timely filed with the Board and that they were not
timely served upon the Employer . In ruling on the Motion to Dismiss the
Objections the Regional Director concluded that the evidence demonstrated
that the objections were timely filed with the Board 's Regional Office in
Chicago and were served on the Employer within 2 days thereafter.
Furthermore, the Regional Director noted that the Employer did not show
that it was prejudiced by the alleged untimeliness of service.
51
Pursuant to the Board's Order a hearing was held
on April 15 and 16, 1969, before Trial Examiner
Jerry B. Stone acting as Hearing Officer. All parties
participated and were given full opportunity to
examine and cross-examine witnesses and to
introduce evidence bearing upon the issues. On July
29, 1969, the Hearing Officer issued and duly served
upon the parties his report, in which he
recommended that the Board sustain certain of the
Petitioner's objections, set aside the results of the
election and direct a second election among the
employees in the appropriate unit described below.
Thereafter, the Employer filed exceptions to the
Hearing Officer's Report and a brief in support
thereof. The Petitioner filed an answering brief in
support of the Hearing Officer's Report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings made by the
Hearing Officer at the hearing and finds that they
are free from prejudicial error. They are hereby
affirmed.
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 is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of certain employees
of the Employer, within the meaning of Sections
9(c)(1) and 2(6) and (7) of the Act.
4. The following unit, as stipulated by the parties,
constitutes a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
All production and maintenance employees,
including warehouse employees, plant clerical
employees, laboratory technicians, quality control
employees, machinists, electricians, millwrights,
watchmen and leadmen, employed at the
Employer's plant located at 215 North Summer
Street, West Burlington , Iowa; but excluding
office clerical employees, guards and supervisors
as defined in the Act.
5. The Board had considered the Hearing
Officer's Report, the exceptions and briefs, and the
entire record in this case, and hereby adopts the
findings and recommendations of the Hearing
Officer as herein modified.
We are in accord with the conclusions of the
Hearing Officer's Report that the Employer engaged
in objectionable conduct which warrants setting the
election aside. In reaching this result we rely upon
the following.
During the course of the election campaign the
Petitioner distributed certain literature to the
180 NLRB No. 4
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees. On one occasion about a week before
the election Foreman Robert Gingerich told
employee Richard Campbell that if he was found to
have Union literature in his possession he would be
automatically discharged. On another occasion
Foreman Hahn noticed Union leaflets on certain
employees' desks and interrogated employee Roberts
regarding their presence. Hahn then began removing
the Union literature from the employees' desks. He
sought to take the literature which Roberts had in
his possession, but Roberts stopped him by
informing Hahn that he had not read the Union
material as yet and that he intended to do so. In
addition, prior to the Union campaign, the
Employer had allowed its employees to freely utilize
the company bulletin boards for the posting of
personal notices. After the campaign began the
Employer instituted a policy requiring that the
employees secure prior supervisory approval before
using the bulletin boards. In our opinion, the above
conduct constituted Employer attempts to harass
Union campaign activity and tended to have a
coercive effect upon the employees involved.
The petition herein was filed on July 25, 1968. On
September 27, George Campbell, vice president of
Unitec and former president of Campbell Chain,
spoke to the employees regarding the upcoming
election. In his speech Campbell stated, inter alia,
that the Employer had made its annual review and
had determined to grant 5 percent wage increase, a
substantial increase in pension benefits from $2.80
per month of service to $3.75 per month of service,
an additional paid holiday, an increase in the shift
bonus from 10 to 15 cents per hour, and a merit
review increase from 5 to 10 cents per hour.
Campbell announced that these increases would be
effective on October 7, 1968.
The record does not contain any evidence other
than Vice President Campbell's reference in his
speech to an annual review, that the Employer had
in fact, regularly granted its employees increases at
this time of the year or that the announced increases
were arrived at in a manner consistent with past
practices. In any event, Campbell announced the
increases, which were scheduled to go into effect 6
days after the election herein, 4 days before the
election was held. Even if the increases were wholly
consistent with the Employer's past practices, we
believe that the Employer prematurely disclosed the
new wages and benefits in an attempt to interfere
with employee freedom of choice.'
In his speech Vice President Campbell mentioned
alleged "rumors" regarding anticipated bargaining
demands of the Petitioner if it prevailed in the
election. Campbell then announced the increases in
wages and benefits that the Employer had
determined to grant on October 7. The exact
amount of the "rumored" demands was then
'See- N LA B v Exchange Parts , 375 U.S. 405, Baltimore Catering
Co., 148 NLRB 970
specified and Vice President Campbell also stated
that he "understood" that the Petitioner had
threatened to "shut down" the plant if its demands
were not met. Campbell continued that there could
then be "trouble" because the Employer, through its
annual review, had determined what it could afford
to pay, and that rather than be compelled to agree
to "exorbitant" demands it would close its plant
"until hell freezes over." Campbell then continued
by discussing strikes in general, stating that the only
way the Petitioner could force acceptance of its
demands would be by striking, and observing that
employees often lose their jobs permanently as a
result of strikes.
On the day of the speech the Employer also
distributed campaign literature in which it stated,
inter alia , that under the Supreme Court's
Darlington 3 decision it had an absolute right to close
a plant for any reason except to chill unionism, that
it had always shifted its production from one plant
to another (Campbell Chain operates two plants in
addition to the one involved herein.) as its needs
changed, and that "Union or No Union we don't
intend to change our method of doing business."
The possibility of strikes was then referred to again.
The following day the Employer distributed
additional literature, the primary theme of which
was a reiteration of the strike possibility and a
discussion of the dire consequences, including
permanent job loss, that a strike might have upon
the employees.
In our view the aforenoted conduct conveyed the
following message: the Employer had determined
the wage and benefit increases it could afford to
grant; the anticipated demands of the Petitioner
were exorbitant and the Employer would not only
refuse to agree to these demands, thereby
precipitating a strike, but would close its Burlington
plant before it gave in to the Union; the Employer
could afford to close the Burlington plant because it
had other plants to which it had shifted work in the
past and could do so again or, alternatively, the
strikers would be permanently replaced, losing their
jobs in either event. Thus, the Employer painted a
bleak picture in which the inevitable consequences of
its employees voting for the Petitioner were a strike
and the permanent loss of jobs.
The Employer, in arguing against unionism, is
free to present, in a rational context, his views on
the potential disadvantages of his employees'
selecting a union . However, we view the above
conduct as having exceeded the bounds of
permissible campaign propaganda. When an
Employer conjures the vision that a strike is
inevitable, a fact which he is certainly in the best
position to appreciate, it has an obvious potential
for interference with the free choice of his
employees. As the Supreme Court stated in its
'Textile Workers v Darlington Mfg Co, 380 U S 263
CAMPBELL CHAIN, DIV. OF UNITEC
recent Gissel decision 4
. (an employer) can easily make his views
known without engaging in brinkmanship .... at
the least he can avoid coercive speech simply by
avoiding conscious overstatements he has reason
to believe will mislead his employees.
Rather than discussing , in a rational manner, the
possibility of union strikes the Employer herein
deliberately attempted to create and sustain an
atmosphere in which his employees would fear job
loss as an inevitable consequence of voting for the
Petitioner. This, in our view, was the cumulative
effect of the conduct described above. Therefore, we
conclude that the combined content of the
Employer's speech of September 27 and its
campaign literature distributions of September 27
and 28 tended to have a coercive effect upon its
employees and interfered with their right of free
choice.
On the evening before the election, Foreman
Gingerich was discussing the relative merits of the
Petitioner with employees Ruble and Frederick.
During the course of the conversation Foreman
Gingerich offered to bet Frederick $50 that, if the
Petitioner prevailed, the plant would be closed
permanently within 3 months thereafter. Frederick
asked Ruble if he would assume responsibility for
one half of the wager. Ruble agreed, and the bet
was made. Several other employees were present
during this incident. Later, Gingerich returned and
told Ruble and Frederick that he would have to
recall the wager because he could get in difficulty
for having made it and therefore he should never
have done so. Only Ruble and Frederick were
present when the wager was cancelled.
In our opinion Foreman Gingerich's wage offer
conveyed to those employees present the impression
of knowledge regarding company policy, and the
'N L R B v Gissel Packing Company . 395 J S 575
53
further understanding that the policy involved would
inevitably result in plant closure if the Petitioner
prevailed. In view of the previous conduct of the
Employer noted above, it would appear that the
employees would be particularly sensitive to such
references. Gingerich's subsequent cancellation of
the bet, communicated only to employees Frederick
and Ruble, in no way sought to dispel the initial
impression created when the wager was
consummated Thus, we conclude that the incident
involving the bet proposed by Foreman Gingerich
had a coercive effect upon those employees involved
and tended to interfere with their rights of free
choice in the election.
Accordingly, for all of the reasons detailed herein,
we shall set the election aside and direct that a
second election be conducted.'
ORDER
It is hereby ordered that the election previously
conducted herein on October 1, 1968, be, and it
hereby is, set aside.
[Direction of Second Election6 omitted from
publication.]
'In view of our setting aside the election on the grounds set forth above,
we find it unnecessary to pass upon the Hearing Officer's conclusions
regarding the no-solicitation rule
,in order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Company,
394 U S 759 Accordingly, it is hereby directed that an election eligibility
list, containing the names and addresses of all the eligible voters, must be
filed by the Employer with the Officer - in-Charge for Subregion 38 within 7
days after the date of issuance of the Notice of Second Election by the
Regional Director The Officer-in-Charge shall make the list available to
all parties to the election No extension of time to file this list shall be
granted by the Officer-in-Charge except in extraordinary circumstances
Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed