Pan American Optical Co., Inc.

National Labor Relations Board - Board Decisions

May 31, 1974

211 N.L.R.B. 50 (N.L.R.B. 1974)

50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pan American Optical Company, Inc. and Internation-
al Association of Machinists and Aerospace Work-
ers, AFL-CIO, Petitioner. Case 28-RC-2549
May 31, 1974
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties, and
approved by the Regional Director for Region 28 of
the National Labor Relations Board on July 13,
1973, an election by secret ballot was conducted in
the above-entitled proceeding on August 31, 1973,
under the direction and supervision of said Regional
Director. Upon the conclusion of the election, a tally
of ballots was furnished the parties in accordance
with the Board 's Rules and Regulations , Series 8, as
amended.
The tally of ballots shows that there were approxi-
mately 49 eligible voters and that 47 ballots were
cast, of which 22 were for the Petitioner, 22 were
against the Petitioner , 1 was challenged, and 2 were
void.
The challenged ballot is sufficient to affect the
results of the election and the Petitioner filed timely
objections to conduct affecting the results of the
election . The Regional Director caused an investiga-
tion of the challenged ballot and objections to be
made and, thereafter, on October 26, 1973, issued
and served on the parties his Report and Recommen-
dations on Challenged Ballot and on Objections to
Conduct Affecting the Results of the Election and
Order. In his report, the Regional Director recom-
mended to the Board that the challenged ballot be
overruled, that the ballot be opened and counted,
and that a revised tally of ballots be issued. He
further recommended that Objections 1, 3, 4, and 5
be overruled, and ordered that a hearing be held, if
necessary, to resolve the issues raised by Objection 2.
Thereafter, on November 5, 1973, the Employer
filed timely exceptions to the Regional Director's
report, contending that the election should be set
aside and new election ordered or, in the alternative,
that a hearing be directed on Objections 1, 3, and 4,
as well as Ojection 2.
The Board gave due consideration to the matter
and concluded that the Employer's exceptions did
not raise material or substantial issues warranting
reversal of the Regional Director's findings and
recommendations with respect to Petitioner's Objec-
tions 1, 3, and 4. Therefore, the Board adopted the
Regional Director's findings and recommendations
as contained in his report, and Petitioner's Objec-
tions 1, 3, 4, and 5 were overruled.' The Board
further ordered that a hearing be held before a duly
designated Hearing Officer for the purpose of
receiving evidence to resolve the issues raised by
Petitioner's Objection 2.
On January 15, 1974, a hearing was held before
Hearing Officer Guy David Knoller, in El Paso,
Texas. The Employer and the Petitioner were
represented by counsel. All parties were afforded full
opportunity to be heard, to examine and cross-
examine witnesses , and to introduce evidence rele-
vant to the issues.
On February 21, 1974, the Hearing Officer issued
and served on the parties his Report on Objections.
In his report, the Hearing Officer recommended to
the Board that Petitioner's Objection 2 be sustained,
that the election be set aside, and that a second
election be directed. Thereafter, the Employer filed
timely exceptions to the Hearing Officer's report and
a brief in support thereof.
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 Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of the employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate for
the purpose of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees em-
ployed at 6213 Alameda, El Paso, Texas, exclud-
ing office clerical employees , professional em-
ployees, guards and supervisors as defined in the
National Labor Relations Act, as amended.
5. The Board has considered the Regional Direc-
tor's report and the Petitioner's exceptions thereto,
the Hearing Officer's report and the Employer's
exceptions thereto, and the entire record in this case,
and hereby adopts the findings, conclusions, and
I In the absence of exceptions thereto , the Board adopted , pro forma , the N. Martinez be overruled . The revised tally shows that 23 ballots were cast
Regional Director 's recommendation that the challenge to the ballot of C. against, and 22 were cast for , the Petitioner.
211 NLRB No. 5
PAN AMERICAN OPTICAL CO.
recommendations of the Regional Director and the
Hearing Officer to the extent consistent with this
decision. Specifically, we do not agree with the
Hearing Officer's recommendation that Petitioner's
Objection 2 be sustained, the election be set aside,
and a second election be directed.
Objection 2 is as follows:
The Employer held private meetings with each
employee during the afternoon of August 30,
1973, less than 24 hours before the election. At
these private meetings, the Employer discussed a
profit sharing program with the employees,
leading many of them to believe, their voting for
the Union would affect their participation in such
plan, and also leaving in the mind of employees
that they would cash in on the plan for an
excessive amount of money, if they voted against
the Union.
Briefly stated, the record shows that the Employer
instituted a profit-sharing plan for its employees
effective July 1, 1971. The first allocation under the
plan, covering, the period from July 1, 1971, to June
30, 1972, was announced to employees in late August
or early September 1972.2 In mid-August 1973, the
Employer determined the amounts to be allocated
under the plan to employees for the period covering
July 1, 1972, to June 30, 1973. The announcement
was made concerning this allocation on August 30,
1973, 1 day before the election, when the Employer
conducted individual interviews with employees to
explain benefits under the preexisting profit-sharing
plan .3 The Employer claims that it would have
announced the allocation sooner, but that it was
waiting to make use of the profit-sharing booklets
which were not received until August 27, 1973. The
interviews , which were conducted by the president in
his office and by a nonsupervisory office employee in
a supervisor's office,4 lasted with some exceptions
from about 2 to 5 minutes . The substance of the
interviews was limited to an explanation of the
profit-sharing booklet with a covering letter which
included a detailed explanation of the plan. It is clear
that the allocation announcement made during the
interview did not provide for any change in the
established benefits, but merely explained the preex-
isting method for the computation of employee
shares . As noted by the Hearing Officer, no reference
2 The information regarding this announcement was distributed to
employees while they were working on the floor.
s The Employer claims that interviews were necessary in order to explain
this allocation because it was the first year of reallocation and interest.
4 The record shows that the nonsupervisory office employee spoke to
51
was made to the Union or to the upcoming election
by the Employer during the course of the interviews.
The Hearing Officer found the Employer's conduct
in conducting the above employee interviews on the
day before the election to be objectionable. We do
not agree. In making his recommendations, the
Hearing Officer relied upon the Employer's failure to
sustain its burden of proving by a preponderence of
the evidence that the timing of the announcement
was justified. In addition, he also found that by
holding the interviews within 24 hours of the
election, and within the offices which were the locus
of managerial authority, the Employer further
intensified the objectionable conduct.
Under the circumstances of this case, where the
profit-sharing plan had been in existence prior to the
onset of organizational activity and where the final
allocation announcement made no change in the
previously established method for computing em-
ployee shares, we are unable to conclude that the
Employer engaged in objectionable conduct by
interviewing employees on the day before the
election to inform them of their benefits under the
plan. The interviews, as noted by the Hearing
Officer, were limited to a discussion of the plan, and
no references were made by the Employer to the
Union or to the upcoming election. Furthermore,
approximately one-half of the employees were
interviewed by a nonsupervisory office employee in a
supervisor's office. Under these circumstances, there
is no reasonable basis for concluding that the
Employer's interviews with employees were deliber-
ately timed in order to prevent employees from
expressing their true wishes in the secret ballot
election. Accordingly, contrary to the Hearing
Officer, we hereby overrule Petitioner's Objection 2.5
Accordingly, we shall certify the results of the
election.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
votes have not been cast for International Associa-
tion of Machinists and Aerospace Workers,
AFL-CIO, and that said labor organization is not
the exclusive representative of all the employees, in
the unit herein involved, within the meaning of
Section 9(a) of the National Labor Relations Act, as
amended.
half of the employees concerning the profit -sharing plan.
5 The Hearing Officer erred by finding that the holding in Peerless
Plywood Company, 107 NLRB 427, prohibits an employer from conducting
individual employee interviews within 24 hours of the election.