Performance Measurements Co., Inc.

National Labor Relations Board - Board Decisions

Dec 8, 1964

149 N.L.R.B. 1451 (N.L.R.B. 1964)

PERFORMANCE MEASUREMENTS CO.,-INC. 1451
Performance Measurements Co., Inc. and International Union,
United Automobile , Aerospace and Agricultural Implement
Workers of America , (UAW) AFL-CIO, Petitioner. Case No.
7-RC-6212. December 8, 1964
SUPPLEMENTAL DECISION, ORDER GRANTING, IN PART,
EMPLOYER'S MOTION FOR RECONSIDERATION AND
ORDER DENYING, WITHOUT PREJUDICE, PETITION-
ER'S MOTION TO AMEND
On October 13, 1964, the Board issued its Decision, Order, and
Direction of Second Election,' finding merit in objections to the
election filed by the Petitioner.
The Petitioner thereafter filed a motion to amend the Board's deci-
sion to include in the notice of election language to insure that the
eligible voters are fully informed that a new election is being con-
ducted because of employer conduct which affected the results of the
first election. This request is hereby denied without prejudice to the
Petitioner to renew it before the Regional Director.
The Employer filed a petition requesting reconsideration in which
it alleged, relative to objection No. 1, that the decision contains incor-
rect statements of facts based on incomplete information. Attached
to the petition was an affidavit setting forth the Employer's version
of the facts.2 The Petitioner filed a motion in opposition. As there
are some differences in details between our factual statements and
those of the. Employer, we shall, for the purposes of this decision,
accept the Employer's statement as true and we accordingly grant
Employer's motion for reconsideration to this extent.
,On such reconsideration, viewing the facts in the light most favor-
able to the Employer, we arrive at the same conclusion and therefore
affirm the Direction of Second Election previously issued herein.
However, in order that the actual basis of our decision be set forth,
we hereby order that the following section 5 be substituted for sec-
tion 5 of the Decision issued October 13, 1964:
"5. Petitioner's objection No. 1 is based upon the fact that the
Employer, between the dates of the stipulation and the election,
promised a number of employees that the Employer would give them
1148 NLRB 1657
2 The Employer's petition for reconsideration relative to objection No 3 contains no
matter not previously considered by the Board and is accordingly denied In the alterna-
tive , the Employer requested a hearing on the Union ' s exceptions to the report of the
Acting Regional Director This request is denied as we accept the Employer 's version of
the facts as to objection No 1, and the Employer urges no new matter as to objection
No 3
149 NLRB No. 131.
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shoes or boots or a $6 allowance toward such items after the election,
and in accordance with this promise paid the allowance immediately
after the election.
"It appears that certain chemicals present on the floor of some of
the Employer's plant operations cause footwear to deteriorate, and
that the Employer's predecessor in this plant had been faced with the
same condition. Because of this continuing problem the Employer,
in early March 1964, purchased at a minimal expense a roll of plastic
boots for the employees to wear over their own shoes. These were
found to be unsatisfactory, as they deteriorated in the same fashion
as the employees' own footwear. A resolution of this condition,
which had long existed, was suddenly announced 4 days before the
April 28 election when the Employer's officials advised several em-
ployees it would pay a flat $6 allowance toward the purchase by the
employees of their own footwear and on April 24 circulated a memo-
randum confirming this. In so doing, the Employer had, without
notice, withdrawn earlier permission it had granted to the employ-
ees to decide among themselves what type of footwear they preferred
from among those suggested by the Employer. The checks for $6
were withheld and were then distributed after the balloting.
"The Director regarded the $6 allowance as the ultimate solution of
a long-standing problem brought about as the normal culmination of
efforts to resolve it to the satisfaction of those affected. He con-
cluded that there was `no evidence to indicate that the allowance was
intended to influence the vote of any individual recipient or that its
timing was other than fortuitous.' We do not agree.
"Although granting employees benefits during the period imme-
diately preceding an election is not per se ground for setting aside an
election, in the absence of a showing that the timing of the announce-
ment was governed by factors other than the pendency of the elec-
tion, the Board will regard such timing as calculated to influence the
employees in their choice of a bargaining representative. The burden
of showing other factors is upon the Employer .-3 No justification has
been established here.
"On the contrary, it is undisputed that shoe damage was a long-
standing problem of employees which the Employer had been in no
hurry to resolve until just before the election. Even then the
Employer did not remedy the situation but instead announced its
promise to do so. There appears no reason why the announcement as
well as the benefit could not have been withheld until after the
employees had expressed their preference with respect to representa-
tion. Indeed, promising the benefit but withholding the payment
s International Shoe Company , 123 NLRB 682, 6'84.
PERFORMANCE MEASUREMENTS CO., INC. 1453
until after the election could itself be interpreted as a form of unlaw-
ful pressure upon, and interference with, the employees' freedom of
choice' In these circumstances, we are convinced, and find, that both
the timing and the granting of the $6 allowance were unlawfully
designed to influence employees and that the Employer thereby inter-
fered with the conduct of the election.
"The Petitioner alleges in objection No. 3 that during the election
at each plant the Employer's president stood by the door to the elec-
tion area so that it was necessary for each employee who voted to
pass within 2 feet of him to gain -access to the polls. The investiga-
tion disclosed that at various times Employer's president was in a
position near the door employees were to use to enter the polling
place, and that for a period of time he was seated at a table approxi-
mately 6 feet from such doorway. Some of this time was allegedly
devoted to instructing supervisors in regard to their release of
employees from work for voting purposes. In addition, on two occa-
sions during the time that the polls were open, the Employer's presi-
dent entered into the immediate area of the polling place. When this
occurred at the first polling place, the Board agent informed him that
the polls were still open and he left. At the second polling place he
entered as the ballot box was being sealed.
"The Acting Regional Director found no merit to this objection
because there was no evidence that Employer's president, while in or
near the voting places, engaged in electioneering. While we agree
that the brief forays into the election area alone may not tend to
interfere with the free choice of the employees, the continued pres-
ence of the Employer's president at a location where employees were
required to pass in order to enter the polling place was improper
conduct not justified by the fact that for part of the time he was
instructing supervisors on the release of employees for voting pur-
poses.5 We find that by this conduct the Employer interfered with
employees' freedom of choice in the election s
"In agreement with the Acting Regional Director, and for the rea-
sons set forth in his report, we find no merit in objections Nos. 2 and 4.
As we have sustained Petitioner's objections Nos. 1 and 3, we shall
set aside the election held herein on April 28, 1964, and order a new
election."
CHAIRMAN MCCULLOCH and MEMBER JENKINS took no part in the
consideration of the above Supplemental Decision, Order Granting,
in Part, Employer's Motion for Reconsideration and Order Denying,
Without Prejudice, Petitioner's Motion To Amend.
Cf. R. H. Osbrink, et al., doing business under the name and style of R . H. 0sbrink
Manufacturing Company, 104 NLRB 42, 44.
See Belk's Department Store of Savannah, Ga., Inc., 98 NLRB 280.
Member Fanning finds it unnecessary to rely on this ground.