General Electric Wiring Devices, Inc.

National Labor Relations Board - Board Decisions

May 27, 1970

182 N.L.R.B. 876 (N.L.R.B. 1970)

876 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Electric Wiring Devices, Inc. and International
Association of Machinists and Aerospace Workers,
AFL-CIO, Petitioner . Case 24-RC-3886
May 27, 1970
DECISION, ORDER , AND DIRECTION OF SECOND
ELECTION
BY MEMBERS FANNING, BROWN, AND JENKINS
Pursuant to a Stipulation for Certification Upon Con-
sent Election an election by secret ballot was conducted
in the above-entitled proceeding on October 23, 1969,
under the direction and supervision of the Regional
Director for Region 24. At the conclusion of the election,
the parties were furnished a tally of ballots which showed
that of approximately 264 eligible voters, 241 ballots
were cast, of which 83 were for, and 155 against, the
Petitioner. There were three challenged ballots.
On October 29, 1969, the Petitioner filed timely objec-
tions to conduct affecting the results of the election.
The Regional Director caused an investigation of the
objections to be made and, thereafter, on March 13,
1970, issued and served on the parties his report and
recommendation on objections. In his report, the Region-
al Director recommended that Objections 1, 4, and 6
be sustained, that Objections 2 (that part of which
alleges a denial of overtime to employees),' 3, and
5 be overruled, and that the results of the election
be set aside and a second election be directed. There-
after, the Employer filed timely exceptions to the Region-
al Director'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 con-
nection 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 Petitioner is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of 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 follow-
ing employees constitute a unit appropriate for the pur-
pose of collective bargaining within the meaning of
Section 9(b) of the Act:
All production and maintenance employees
employed by the Employer at its plant in Juana
Diaz, Puerto Rico, but excluding all office clerical
employees,- professional personnel, guards and
supervisors as defined in the Act.
' The remaining portion of Objection 2, alleging a discriminatory
reassignment of an employee, is the subject of an unfair labor practice
case (Case 24-CA-2774) now pending decision by the Board
5. The Board has considered the objections; the
Regional Director's report, and the Employer's excep-
tions, and adopts the Regional Director's recommenda-
tions for the reasons that follow-
Following the filing of the Union's election petition
on September 3, 1969,2 the Company embarked on an
antiunion campaign which through a series of leaflets
and speeches, when viewed in their entirety, conveyed
an unmistakeable threat of adverse economic conse-
quences and loss of a statutorily protected employee
right as the inevitable result of the employees' selection
of the Union as their bargaining representative. Thus,
as is more fully documented in the Regional Director's
report, in a leaflet issued on September 26, the Company
first alluded to a plant closing in the town of Utuado
as follows:
ABOUT THE MATTER OF EMPLOYMENT SECURITY:
What did the I.A.M. Union do to prevent the
layoffs at Micro Electric Motors of Utuado when
this company did not have enough orders" What
did it do for the workers at Micro who were left
jobless when the factory closed?
The theme was pursued again on October 8:
The I.A.M. Failures in Industry:
And what about Micro Electric of Utuado? You
know the story . . . May it rest in peace! What
did the IAM and its organizer do for the employees
who were left jobless? NOTHING!! Were the prom-
ises made to the Micro employees fulfilled?. NO!
On the contrary , the factory no longer exists. And
the money that the employees paid as dues. . . .
WHERE IS IT"
A subsequent leaflet issued on October 14 was devoted
entirely to a discussion of the plight of the Micro work-
ers. Attached to it is a letter allegedly prepared by
former Micro employees addressed to the employees
of General Cigar exhorting them to reject the Union
at that plant . The letter in pertinent part states:
We know that next Sunday all of you will hold
a meeting to vote concerning whether you accept
the conditions that the factory has proposed for
the contract with the IAM. We are in the obligation
of making you understand that we are out of jobs
due to the IAM demands . That union forced Micro
to close down and, consequently , now we are job-
less and said union has not worried about us and
has not helped us to find jobs . We fell down because
we wanted to fly fast and very high ; we were
asking for too much and we were left with nothing.
This same thing is'going to happen to you if you
continue giving your support to that union.
2 All dates hereafter are in 1969
182 NLRB No. 130
GENERAL ELECTRIC WIRING DEVICES , INC 877
We are living examples of the attitude of that
union that wants to represent you We believe
that you can work in that factory without the
need of the union, you will be more secure
In a final leaflet, issued 2 days prior to the election,
the Company stated
You read the sheet that several former employees
of Micro wrote to the employees of General Cigar
of Utuado You were able to see the difficulties
and problems these employees went through when
they remained jobless You were also able to see
the advice that, out of their own experience, they
gave to the General Cigar employees
The leaflet also noted that the Union has subsequently
sued the former Micro employees who had signed the
original message for $200,000 A copy of the complaint
was attached to this leaflet
In addition to the foregoing campaign literature, com-
pany representatives made a number of speeches to
the employees In one, made some 4 weeks before
the election, Quality Control Manager Alvarez identified
himself as a former manager at Micro and proceeded
to outline his version of the difficulties encountered
by Micro with the Union which eventually led to its
closing He stated
During the month of July 1968 we started negoti-
ating a new contract with the IAM The Union's
demands came up to more than $1 00 increases
per hour With these facts on hand Micro's future
was insecure The employment security that the
Union preached about could no longer be guaran-
teed During that time relations with the Union
deteriorated to such a degree that there was the
need to start looking for a new location for Micro
To top everything, the Union employed its favorite
weapon the strike' Strikes are not inevitable
but everybody knows that strikes generally occur
where unions are Strikes mean losses of wages,
at times loss of jobs but, what is still worse, the
company loses customers like in the Micro case
The strike at Micro was short but some of our
customers became scared and placed orders at other
factories
Alvarez noted that the strike settlement resulted in only
a 5-cent-per-hour increase but the damage had been
done and shortly thereafter the plant closed The natural
implication that the closing was an act of retaliation
rather than the result of increased economic costs flowing
from the agreement was made more directly by Alvarez'
concluding remark that, "I believe that if a union had
not interfered at Micro I would still be working there "
The Supreme Court has recently articulated the stand-
ards by which we are to determine whether a company
prediction of the possible effects of unionization is proper
and permissible
[The employer] may make a prediction as
to the precise effects he believes unionization will
have on his company In such a case, however,
the prediction must be carefully phrased on the
basis of objective fact to convery an employer's
belief as to demonstrably probable consequences
beyond his control or convey a management deci-
sion already arrived at to close the plant in case
of unionization If there is any implication
that an employer may or may not take action solely
on his own initiative for reasons unrelated to eco-
nomic necessities and known only to him, the state-
ment is no longer a reasonable prediction based
on misrepresentation and coercion, and as such
without the protection of the First Amendment
We therefore agree with the Court below that
"[c]onveyance of the employer's belief, even
though sincere, that unionization will or may result
in the closing of the plant is not a statement of
fact unless, which is most improbable, the eventuali
ty of closing is capable of proof " (N L R B
v Gissel Packing Co , 395 U S 575, 618)
The Company's plain suggestion through its leaflets
and speeches that unionization would bring about the
closing of the plant had the natural tendency to imply
retaliation for supporting the Union since that suggestion
was not based on "demonstrably probable consequences
beyond [the Company's] control" From its persistent
emphasis throughout the campaign on the Union's part
in causing the demise of the Micro operation, the employ-
ees could reasonably infer that their employment relation
was threatened by unionization and that their employer
was willing to use its economic power to ensure that
the threat became a reality On this basis alone we
would find sufficient interference with the election proc-
ess to require the direction of a second election
In addition, however, Alvarez, in the same speech,
threatened that the employees would lose their freedom
to discuss complaints and grievances with the Company
He stated
Right now you are absolutely free to bring your
complaints to the supervisor, directly to Mr Calder
and even to any of the Company executives Once
the Union wins the election you then lose that
right You have to tell your problems to the Union
delegate so that he then speaks with the supervisor
In other words, you have to pay dues to lose
the freedom you now enjoy Don't believe the
propoganda that it is going to be easier to work
in this factory if the Union wins
The selection by employees of a union does not, of
course, preclude employees as individuals from going
to their employer with their problems i Alvarez's state
ment that after the Union came in employees would
not be able to go to management with their problems
was, by its nature, the threat of denial of a statutory
right in reprisal for selection of a union and thereby
3 Sec 9(a) of the Act provides that any individual employee or
a group of employees shall have the right at any time to present
grievances to their employer and to have their grievances adjusted
without the intervention of the bargaining representative as long as
the adjustment is not inconsistent with the terms of the collective bargain
ing contract or agreement then in effect Provided further That the
bargaining representative has been given opportunity to be present
at such adjustment
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interfered with the employees' free choice in the selec-
tion of a bargaining representative "
Finally, we agree with the Regional Director that
the sudden, unexplained appearance of a helicopter
which hovered over the voting area for some 15 to
20 minutes, and whose occupants were observed taking
photographs of the voters, was an improper interference
with the Board's election process The appearance of
this alien element at such a critical time, considered
in conjunction with the objectionable conduct engaged
in by the Company during the election campaign, could
reasonably have created such apprehension in the minds
of the voters, as to destroy the laboratory conditions
necessary for the conduct of a free and fair election
Accordingly, based on the foregoing,
' Graber Manufacturing Co Inc 158 NLRB 244 248-249 Block
Southland Sportswear Inc 170 NLRB No 101 TXD C 2 C
' We deem it immaterial that at the time of the incident neither
party was aware of who was responsible for the helicopter s appearance
Indeed the very uncertainty of where to place responsibility at that
time may be said to have further contributed to the apprehension
and confusion of the employees
ORDER
It is hereby ordered that the election conducted herein
on October 23, 1969, among certain employees of General
Electric Wiring Devices, Inc Juana Diaz, Puerto Rico,
be, and it hereby is, set aside
[Direction of Second Electionfi omitted from publica-
tion ]
" 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 v Wyman Gordon Compa
ny 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 Regional Director
for Region 24 within 7 days after the date of issuance of the Notice
of Second 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