General Dynamics Corp.

National Labor Relations Board - Board DecisionsNov 30, 1970

186 N.L.R.B. 978 (N.L.R.B. 1970)

978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dynatronics, an Operation of the Electronics Division of the General Dynamics Corporation and Interna- tional Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC and its Local 681, Joint Petitioners. Case 12-RC-3406 November 30, 1970 DECISION, ORDER, AND DIRECTION OF THIRD ELECTION By CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS Pursuant to a Decision, Order, and Direction of Second Election issued by the National Labor Relations Board on May 4, 1970, a second election by secret ballot was conducted on June 5, 1970, under the direction and supervision of the Regional Director for Region 12, among the employees in the stipulated unit. At the conclusion of the second election, the parties were furnished with a tally of ballots which showed that of approximately 498 eligible voters, 438 cast valid ballots, of which 180 were for, and 258 against, the Joint Petitioners. There were 39 chal- lenged ballots. The challenged ballots were not sufficient in number to affect the results of the election. Thereafter, on June 11, 1970, the Joint Petitioners filed timely objections to conduct affect- ing the results of the second election. In accordance with Section 102.69 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Acting Regional Director conduct- ed an investigation and, on July 1, 1970, issued and served on the parties his Report on Objections in which he recommended that the Board overrule all objections in their entirety. Thereafter, the Joint Petitioners filed exceptions and brief, and a supple- mental brief, to the Acting Regional Director's report. The Employer has filed a brief in answer to the Joint Petitioners' exceptions. 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. 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 stipulated, and we find, that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining with the meaning of Section 9(b) of the Act: All production and maintenance employees em- ployed at the Employer's three plants located at Highway 17-92 N., Orlando, Florida, being known as Plant # 1; Lake Mary, Florida, being known as Plant #5; and Sanford, Florida, being known as Plant #4; and including plant clericals, expeditors, material analysts, test technicians in Plant # 5, machine shop and specialist process mechanics; but excluding office clerical employ- ees, technical employees, planning employees, professional employees, guards, and supervisors as defined in the Act. 5. The Board has reviewed the entire record in this case, including the Acting Regional Director's Report on Objections and Recommendations, the exceptions and the briefs, and hereby adopts the Acting Regional Director's report only to the extent consistent here- with. Most of the facts critical to the resolution of this case are not disputed by the parties. Statements by employees and by representatives of the Employer agree that in April 1970, Sam Ackerman, the Employer's vice president, informed an assembled group of employees that the Company was conduct- ing its annual wage and benefit survey and that the results of the survey would be available on or about June 1, 1970. The employees claim that Ackerman also stated that the results of the survey would most likely be increased benefits for the employees, a statement the Employer denies. The announcement was made while exceptions to a Regional Director's Report on Objections in an earlier election, filed by the Joint Petitioners, were pending. Thereafter, a second election was ordered and scheduled for June 5, 1970. On June 3, 1970, Ackerman again spoke to the assembled employees, and read the following state- ment: I have been asked about the results of the area wage and benefit survey. . . . Under any other circumstance, we would move ahead with this in our normal way. However, due to the timing, it might appear that I was making a promise to you to try to influence your vote. Because I will not give the Union or anyone else an opportunity to make such a claim, I will not make any announce- ment concerning the survey results at this time. The Acting Regional Director concluded that Ackerman's June remarks could not be construed as a promise of economic benefit if employees rejected or abandoned the Joint Petitioners. Further, the Acting Regional Director concluded that even if Ackerman indicated in April that the employees would receive 186 NLRB No. 141 DYNATRONICS 979 increased wages and additional benefits as a result of the survey, it could not be reasonably or logically construed that his remarks on June 3 could be taken as a promise of benefit if the Joint Petitioners were rejected. We disagree with these conclusions. Although there is no dispute that the Employer regularly reviews wages and benefits, there is no indication that it usually announces to employees when such reviews are in progress or when to expect the results. Further, the employer has submitted, as an exhibit appended to its answering brief, a copy of the letter it distributed to its employees on June 2, 1970, urging them to reject the Joint Petitioners in the June 5 election. The letter refers to the Employer's policy of periodic wage and benefit reviews and adjustments and lists a series of benefit improvements implement- ed in the past year. A brief chronology of both merit and general wage increases follows, culminating in the specific amount (left blank on the exhibit) that wages increased in the past year for the employee to whom the letter is addressed. The letter goes on to suggest that the increased benefits and wages demonstrate that a union is unnecessary and urges that the employee reject the Joint Petitioners, ending with a graphic representation of an X in a "No" box. In our view, this letter is an attempt by the Employer to link increased benefits and wages to the periodic surveys, thus implying that the results of the current wage survey would prove equally beneficial to the employ- ees. The record clearly indicates that, at the same time the Employer was distributing the June 2 letter, Ackerman was telling the employees that the survey was completed but that its results would not be announced because the Employer did not want to give the Joint Petitioners an opportunity to claim that the Employer was attempting to buy votes. It thus appears that the Employer has attempted to place the responsibility for the withholding of the survey results and, hence, any possible increases in benefits and wages, upon the Joint Petitioners. The purpose of such an attempt can only be to disparage the Joint Petitioners in the eyes of the employees so as to discourage membership in the Union.' Further, the strategic placement of the partial sample ballot carries i J J Newberry, 183 NLRB No 69, McCormick Longmeadow Stone Co, Inc, 158 NLRB 1237, 1242-1243 2 The Gates Rubber Company, 182 NLRB No 15, Alton Bar Board Company, 173 NLRB No 105, Amboy, Incorporated 146 NLRB 1520, cf N L R B v Exchange Paris Company, 375 U S. 405 'i The Employer 's argument relies , in part , on our decision in Uarco Incorporated, 169 NLRB No 162 Uarco and the instant case are readily distinguishable , as that in Uarco the employer made no attempt to link the postponement of the adjustment of wage rates and benefits to the union. the employer clearly stated that the postponement was caused by "Labor Board rules " Further , the employer there stated that the wage adjustment policy would continue regardless of the outcome of the representation election 4 In order to assure that all eligible voters may have the opportunity to the suggestion that the effect of the current survey depended upon a "No" vote by employees. Moreover, we find no merit in the Employer's claim that it was withholding the results of the survey so as to not unduly influence the election. We have long held that, in the context of a pending Board-conduct- ed election, the employer's legal duty is to proceed as it would have done had the union not been on the scene.2 Here, the Employer announced that its normal conduct would have been to release the results of the survey, but that it would not do so because it did want this used by the Joint Petitioners. Such conduct is clearly contrary to Board precedent. By withholding the results of the survey the Employer created an atmosphere which prevented the exercise of free choice in the election. Accordingly, for the reasons set forth above, we shall set the second election aside and direct that a new election be conducted at a time determined by the Regional Director.3 ORDER IT IS HEREBY ORDERED that the election conducted on June 5, 1970, be, and it hereby is, set aside. [Direction of Third Election 4 omitted from pub- lication.] CHAIRMAN MILLER , dissenting: I cannot agree that Respondent's conduct was improper or sufficient to warrant setting aside the election. In April, while the Report on Objections to the first election was pending before the Board, Vice President Sherman announced at an employee meet- ing that the Company was continuing its practice of conducting annual wage and benefit surveys and that the results of the most recent survey would be announced on or about June 1. At that time, Sherman had no way of knowing that a second election would be scheduled within a few days of the date the results of the survey were to be announced. The second election was not directed by the Board until May 4, almost a month after Respondent set the announce- ment date. Respondent was obviously aware of its promise to inform employees of the results of the survey by June 1, but, it appears, did not want to make any announcement which could be construed as a 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 Underxear inc, 156 NLRB 1236, NLRB v Wyman-Gordon Company, 394 U S 759 Accordingly, it is hereby directed that an electron eligibility list, containing the names and addresses of all the eligible voters , must be filed by the Employer with the Regional Director for Region 12 within 7 days after the date of issuance of the Notice of Third Election by the Regional Director The Regional Director shall make the list available to all parties to the election . No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed 980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD promise of benefits sufficient to interfere with the election. Therefore, on June 3 Ackerman merely informed employees that the results of the annual survey had been completed, but refrained from announcing these results. Ackerman told employees his intent was "to divorce this subject completely from your mind as you vote in this election." Respondent's announcement did not contain anything which I would construe as a promise of benefit or threat of reprisal contingent upon the outcome of the election. Rather, Akerman's announcement seems to me to have been merely an attempt to maintain credibility with his employees in such a way as not to interfere with their right to make a choice free of coercion. I cannot find that objectionable. I would, therefore overrule the objections in their entirety and certify the results of the election.