Vistron Corp.

National Labor Relations Board - Board Decisions

May 17, 1968

171 N.L.R.B. 512 (N.L.R.B. 1968)

512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Oxco Brush Division of Vistron Corporation, Peti-
tioner and United Cork , Rubber , Linoleum, and
Plastic Workers of America , AFL-CIO. Case
10-RM-484
May 17, 1968
DECISION AND ORDER REMANDING THE
PROCEEDING TO THE REGIONAL DIRECTOR
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
Pursuant to a stipulation for certification upon
consent election, an election by secret ballot was
conducted on December 6, 1967, under the
direction and supervision of the Regional Director
for Region 10, among the employees in the unit
described below. At the conclusion of the election,
the parties were furnished with a tally of ballots,
which showed that of approximately 267 eligible
voters, 258 ballots were cast, of which 117 were
for, and 123 against, the Union, 17 ballots were
challenged, and I was ruled void. The challenged
ballots were sufficient in number to affect the
results of the election. On December 13, 1967, the
Union filed timely objections to conduct affecting
the results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations, the Regional
Director conducted an investigation and, on Janu-
ary 24, 1968, issued and duly served on the parties
his report on objections and challenged ballots,
recommending that the Union's Objections 2, 3, 4,
5, and 6 be overruled and that Objection I be
sustained. He further recommended that 4 chal-
lenged ballots be sustained, and 13 overruled; that
the latter ballots be opened and counted; and that if
a revised tally showed that the Union had not
received a majority of the votes cast, the election of
December 6, 1967, be set aside, and a new election
conducted. Thereafter, the Employer filed excep-
tions to the Regional Director's Report, together
with a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations 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 Union is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists con-
cerning the representation of employees of the Em-
ployer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. In accordance with the stipulation of the
parties, we find that the following employees of the
Employer constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act:
All production and maintenance employees of
the Employer's Cookeville, Tennessee, plant,
including plant clerical employees and
watchmen, but excluding all office clerical em-
ployees, professional employees, quality con-
trol employees, guards, group leaders, and
other supervisors as defined in the Act.
5. The Board has considered the Regional
Director's Report, the Employer's exceptions
thereto, and the entire record in the case, and finds
as follows:'
The sole question before us is whether, as found
by the Regional Director, the Employer's
November 16 announcement of improvements in
holiday benefits was conduct which interfered with
the pending election and warranted setting it aside.
Contrary to the Regional Director, we are unable to
conclude that the announcement was objection-
able.
The relevant facts are not in dispute. During July
1967, the Employer's parent corporations2 decided
to standardize certain personnel policies
throughout all unrepresented plants of the Vistron
Corporation, effective October 1, 1967. Among
other things, it was decided to grant to all em-
ployees on the payroll as of October 1 who might
thereafter work on any holiday the same premium
pay rates theretofore given only to employees with
6 months' seniority.
The Employer was orally informed of this policy
change in August, but received no written directive
on the matter until October 17. Meanwhile, on Oc-
tober 13, the Employer had received from the
Union a letter demanding recognition as bargaining
agent for the employees here involved. The Em-
ployer filed the instant petition3 on October 19; and
on November 9 the parties executed a stipulation
' No exception having been taken thereto, ue adopt, pro fornm, the Re-
gional Director's recommendations that 13 challenges and Union's Objec-
tions 2, 3, 4, 5, and 6 he overruled and that 4 challenges he sustained
' Oxco Brush Company is a division of the Vntron Corporation, as hick is
itself a subsidiary of Standard Oil of Ohio
' Although the Laption of the Regional Director's report correct! ) identi-
fies the Employer as the Petitioner, in the text of the report rtselt the Union
is often referred to as the Petitioner This is , of course , incorrect , and the
report is hereby amended to show that the Employer is the Petitioner
171 NLRB No. 70
OXCO BRUSH DIVISION OF VISTRON CORP. 513
for certification upon consent election , which pro-
vided , inter alia , that the election would be con-
ducted on December 6.
On November 16, the Employer posted an an-
nouncement on its bulletin boards which stated in
part:
Thursday November 23rd 1967 is Thanks-
giving Day and is one of our seven paid
holidays for all employees.
On October 1, 1967 our Holiday Pay Policy
was changed on eligibility and now all em-
ployees , regardless of time with the company,
will be paid Holiday Pay if they work the regu-
larly scheduled work days of Wednesday
November 22 and Friday November 24th.
The reason we must work Friday November
24th is because we have about 850 unshipped
customer orders. If we don 't work and keep
our customers happy we ' ll lose business and
lose jobs . To work and keep our customers
happy will therefore give us "Job Security"-
and this is the only way it is obtained.
If anyone works on the, Holiday he will be
paid his regular rate plus time and one-half,
( this amounts to 2-1/2 times his regular hourly
rate).
Anyone who works the scheduled hours on
Monday , Tuesday , Wednesday and Friday of
the Thanksgiving week, and is requested to
work Saturday November 25, he or she will
receive time and one -half for the Saturday
work hours.
Although the above notice was the first general
announcement to the employees of the Employer's
decision to confer the added holiday benefits, there
is nothing in the facts before us to suggest a causal
connection between that decision and the Union's
presence in the plant . It is true that the announce-
ment was not made until after the petition had been
filed and the election scheduled , and at a time
when the election was only 3 weeks away. But it is
undisputed that the decision , which affected other
plants as well , was actually made final long before
the Employer had any indication of union interest
in the plant . ' Moreover, the announcement itself
made no mention of the Union or of the pending
election . It was confined to a description of the
changes and their impact upon the pay of em-
ployees who, for economic reasons there stated,'
would be required to work on the Thanksgiving
holiday, November 23, 1967, then but a week
away. The timing of the announcement has been
plausibly explained by the Employer on the ground
that the Thanksgiving holiday was the first holiday
to which the previously adopted changes in benefits
were germane. As the Board has heretofore
declared:
As a general rule, an employer , in deciding
whether to grant benefits while a representa-
tion election is pending, should decide that
question as he would if a union were not in the
picture. On the other hand, if an employer's
course of action is prompted by the union's
presence, then the employer violates the Act
whether he confers benefits or withholds them
because of the union.'
In all the foregoing circumstances, we are unable
to find that the Employer 's conferral or announce-
ment of the changes in holiday pay benefits was un-
dertaken with the express purpose of infringing
upon the employees ' freedom of choice or was cal-
culated to interfere with the results of the election.7
Accordingly we hereby overrule the Union's Objec-
tion 1.
As we have overruled all the objections, and as
the remaining 13 ballots, the challenges to which
have been overruled , are sufficient in number to af-
fect the results of the election , but have not yet
been counted, we shall remand the matter to the
Regional Director with directions to open and
count the ballots and to issue the appropriate cer-
tification based upon a revised tally.
ORDER
It is hereby ordered that this proceeding be, and
it hereby is, remanded to the Regional Director for
Region 10 , and that said Regional Director shall,
within 10 days from the date of this Order, open
and count the ballots of Nancy Renner, Joyce
Bowen , Sadie Franklin, Austin Thomas, Jo Ann
Priest, James M. Watts, Dwight Hammock, Louis
Mann , Frank Anderson , Jerry Sams, Russell Fogle,
Roger Clouse , and Carl Johnson , prepare and cause
to be served on the parties a revised tally of ballots,
and issue the appropriate certification based upon
the revised tally.
' Indeed, the Employer claims it had no knowledge of union interest
among its employees until it received the Union 's October 13 letter in
which the Union claimed to represent the employees, and there is no
evidence to belie this claim
' The Employer 's notice indicates that the Employer sought to urge its
employees to work overtime on the holiday weekend so as to till unshipped
orders even though this meant paying them 1 - 1/2 to 2 - 1/2 times their nor-
mal hourly rate
" The Great Atlantic & Pacific Tea Compam, Inc , 166 NLRB 27, see also
McCorinicl Longmeadow Stone Co , Inc , 158 NLRB 1237
7Cf N L R B v LzchaigePartsCo ,375US 405