Scantlin Electronics, Inc.

National Labor Relations Board - Board DecisionsFeb 14, 1973

201 N.L.R.B. 888 (N.L.R.B. 1973)

888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Scantlin Electronics , Incorporated and Local Union 1710, International Brotherhood of Electrical Workers, AFL-CIO-CLC. Cases 31-CA-2955 and 31-RC-1936 February 14, 1973 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS FANNING, KENNEDY, AND PENELLO On August 23, 1972, Administrative Law Judge' Martin S. Bennett issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel filed a brief in answer to Respondent's 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Scantlin Electronics, Incorporated, Los Angeles, California, its officer, agents , successors , and assigns , shall take the action set forth in said recommended Order. IT IS FURTHER ORDERED that the election conducted on February 25, 1972, in Case 31-RC-1936 be, and it hereby is, set aside, and that Case 31-RC-1936 be, and it hereby is, remanded to the Regional Director for Region 31 for the purpose of conducting a new election at such time as he deems that circumstances permit the free choice of a bargaining representative. [Direction of Second Election and Excelsior foot- note omitted from publication.] i The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MARTIN S . BENNETT, Trial Examiner : This matter was heard at Los Angeles , California , on June 20, 1972. The complaint , issued April 28, later amended , and based on charges filed March 3 and June 6 , 1972, by Local Union 1710, International Brotherhood of Electrical Workers, AFL-CIO-CLC, herein the Union , alleges that Respon- dent, Scantlin Electronics , Inc., had engaged in unfair labor practices within the meaning of Section 8(a)( I) of the Act. Consolidated with the foregoing were certain objections to conduct affecting an election held in Case 31-RC-1936. In that case , a petition for an election was filed on January 3 and an election conducted on February 25, 1972, in a unit of production and maintenance employees at Respon- dent's Los Angeles plant, with the customary exclusions. Of 73 eligibles , 71 ballots were cast , with 37 against the Union , 30 in its favor , and 4 challenges . A hearing was directed on two of the objections filed by the Union, this involving the identical conduct attacked in the unfair labor practice complaint . Briefs have been submitted by the General Counsel and Respondent. Upon the entire record in the case, and from my observation of the witnesses , I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Scantlin Electronics, Inc., is a California corporation maintaining its principal place of business in Los Angeles, California , where it is engaged in the manufacture, sale, lease , and service of data retrieval and communications equipment . It annually purchases and receives goods and materials valued in excess of $50 ,000 directly from suppliers outside the State of California . I find that the operations of Respondent affect commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local Union 1710, International Brotherhood of Electri- cal Workers , AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue; Introduction As indicated, the Union lost an election held on February 25, 1972, in a unit of Respondent 's previously unorganized employees. The sole issue herein is whether Respondent granted improved holiday and vacation benefits to these employees on January 25 and February 14, 1972, respectively, for the purpose of discouraging their support of the Union and affecting the results of the election . Respondent contends that these improved bene- fits were contemplated and being processed before the advent of the Union upon the scene. Respondent has approximately 350 employees in 30 locations in the country. About 225 are at the Los Angeles manufacturing facility with 73 in the proposed bargaining unit . Most of its customers are members of the New York Stock Exchange and, as will appear, Respondent 's labor negotiations with a unit of about 16 employees in New York City are indirectly involved herein. In mid-October , International Representative Frank Salerno of the Union commenced an organizational 201 NLRB No. 124 SCANTLIN ELECTRONICS, INC. 889 campaign among the previously unorganized employees in Los Angeles. This consisted of meetings at homes of employees, telephone calls, and the mailing of union literature. There was no activity at the plant gates until after the filing of the petition on January 3, 1972. Specifically attacked herein are (1) the announcement on January 25, 1972, that the employees of Respondent in Los Angeles would thereafter enjoy nine paid holidays rather than seven in effect for a number of years; and (2) the promulgation of an improved vacation policy on February 14, viz, 3 rather than 2 weeks after 5 years of employment, a policy in effect for at least 3 years. As for the former, the notice concerning the holidays was dated January 1 and, listed the eight remaining holidays for the year. Also, at a meeting held on January 25, Manufacturing Supervisor Ray Breiholtz, admittedly a supervisor, directed the attention of employees to the posting and stated that it was Respondent's intention to make its holidays consistent with those of the New York Stock Exchange and also conform them throughout the country. Turning to the changed vacation plan announced on February 14, on that same date Director of Personnel and Administration George Enoch, an admitted supervisor, called a meeting of unit employees, at the request of some. In response to a question, he stated that Respondent's vacation policy was 3 weeks after 5 years and, in a letter to employees on February 18 shortly before the election wherein an antiunion vote was advocated, Respondent reminded them of various improvements in working conditions without union representation including the two attacked herein. Manifestly, the strategically timed granting of benefits reasonably calculated to stimulate a vote against a labor organization is violative of Section 8(a)(1) of the Act. N. L. R. B. v. Exchange Parts Company, 375 U.S. 405. A defense preventing such a finding may arise where an employer can demonstrate that the change arose in the normal or planned course of events or resulted from a decision and ensuing implementation antedating the advent of a labor organization upon the scene. See, e.g., Delmar Gardens, Inc., 198 NLRB No. 57. B. Respondent 's Defense Respondent indeed raises the defense adverted to above and has advanced considerable evidence demonstrating the antiquity of its decision to make these two changes in working conditions during the period preceding the filing of the petition on January 3 which led to the February 25 election. George Enoch entered the employ of Respondent in January 1971 and left on March 17, 1972. He testified that shortly after entering its employ he concluded that Respondent was deficient in two areas compared with other employers in the community , viz, Respondent granted two less holidays than the norm and it lacked increased vacation benefits consistent with high seniority. In the spring of 1971, he took this up with key executives of Respondent but they were unwilling to agree to any improvements; at that time Respondent was operating at a considerable loss. In discussions with Foreman Archie Thompson of the manufacturing area who is no longer in the employ of Respondent and did not testify herein, they agreed that it was increasingly difficult to attract new hires due to Respondent's inadequate fringe benefits . According to Enoch , the next pertinent matter was that Respondent was preparing for negotiations with the small New York City unit whose contract was due to expire in August 1971. Enoch , having full industrial relations responsibility for the entire company, received a list of demands from the labor organization representing that unit and also became concerned over differing benefits and conditions of employment throughout the Company. Due to the wage and price freeze which expired on November 14, 1971, improved New York City conditions were installed early in December. Enoch claimed that in conversations starting late in August , following a New York City prenegotiation meeting in July, he commented to company executives during the following months that a decision had been made to increase holidays from seven to nine and to give 3 weeks of vacation after 5 years of employment. He vaguely recalled that he had it in his own mind to do this around the first of the year, but could not recollect so advising the company executives. Enoch further testified that he passed this information along to various supervisors and to rank-and- file employees as he passed through the building . This, too, was told to new hires , in orientation , who arrived late in August or early in September up to the time of the filing of the petition on January 3. Respondent also places reliance upon two intraoffice communications reflecting top level management meetings. Thus, on December 17, Enoch prepared a memorandum reflecting a staff meeting held on December 13, 1971. Therein , inter alia, President Mohr ' was quoted as stating that the holiday policy for 1972 should parallel that of the New York Stock Exchange. Again, a memorandum dated December 21 reflecting a December 20 meeting quoted Enoch as stating that the "Holiday Policy will be issued this week." As set forth, the holidays were increased on January 25 and the vacations as late as February 14, 1972. The testimony of a number of employees presented by Respondent to support its claim of prior planning in these areas is not impressive. (1) Thus, Connie Des Roche was hired as an assembler on December 20, 1971, and went to an orientation meeting with other new employees on December 22. Enoch allegedly told them, according to Des Roche, that Respondent "was working on more holidays," and that, as to vacations, there would be 3 weeks after 5 years. He stated "It's in effect, but it is not official ." I deem this far less than an accomplished decision in these areas. This is so viewed because the December 21 minutes reflecting the December 20 management meeting state only that a holiday policy was to be issued later that week; moreover, even on the face of her testimony, he stated only that Respondent was "working" on the problem. (2) Leadwoman Peggy Mason, an employee of long tenure, testified that in April or May 1971, then Foreman Archie Thompson advised all the leads that Respondent I Also reflected in the transcript as Moore. 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was working on a 3-week vacation (after 5 years) and that she was to pass it along to the rank-and-file employees. In June or July, she asked Enoch about this and he replied that he was working on it as well as improved holidays. But the record discloses that she went further than Enoch. The latter testified only that he and Foreman Thompson discussed their difficulty in attracting new hires because of Respondent's inferior fringe benefits and that he had no knowledge of Thompson discussing these topics with employees. And Enoch himself testified that in late August, in anticipation of negotiations in New York City, he commenced executive level discussions as to increases in holiday and fringe benefits. This is a far cry from a fait accompli in June or July. Indeed, Mason also testified that in November Enoch told her that the longer vacations were approved, but without an effective date. Yet, Enoch testified that early in December Respondent was then in a position to determine how it could operate under the wage-price freeze. But he also testified that around January 15, 1972, Respondent concluded that it could put the vacation increases into effect. I am unable to reconcile these. (3) Brenda Camberg, 12 years with Respondent and a leadlady, testified that Foreman Thompson told her in April or May 1971 that they would qualify for 3 weeks' vacation and also that Enoch told her in June that he was working on changes. Similarly, new hires in the department variously told her, including one occasion in January, that there would be improved benefits for older employees. But, Camberg admitted that she first heard of increased holiday benefits on January 25, 1972, as did Receiving Inspector Gordon Van Dyke. And there is evidence by Production Foreman Larry Holland, not a supervisor, that Respondent had variously been referring to or promising such an increased vacation benefit for many years. (4) Another witness for Respondent was Leadlady Paulita Gonzales, also an employee for many years. She testified how Foreman Thompson told her in May 1971 that there would be an improvement for older employees. She also testified that, in October, she asked Enoch about the 3-week vacation and he replied, in effect, that she would be pleasantly surprised. In view of the timetables set forth above, this perforce reflected only supreme optimism. Although new hires were reporting improvement in holidays and vacations in November or December, Gonzales also testified that she learned officially of the holiday changes only in January 1972. Once again, it must be borne in mind that only as of December 21 was Respondent to officially embark upon a new holiday policy, this well into the organizational campaign. (5) Michael Montepara, a purchasing supervisor exclud- ed from the unit, testified that he and Enoch had a number of talks in November concerning employee benefits, paid holidays, and vacation pay. Enoch told him that he would receive "extra benefits" because of Respondent's associa- tion with the New York Stock Exchange. Yet, as of the date of his testimony, he had never seen anything in writing concerning Respondent 's vacation or holiday policies. Significantly, he testified that their conversations dealt rather with how vacations would be split up among the rank -and-file employees . He was later asked what Enoch told him about the vacations and replied that Enoch told him that 1 week was granted after 6 months and 2 weeks after I year. He remembered nothing further than that . He was next specifically asked if Enoch ever mentioned granting a 3-week vacation after 5 years and replied that he had not heard about that facet until quite recently, namely "within the last month or two."2 It is readily apparent that this substantially undercuts Respondent 's basic position , this stemming from a supervi- sor who allegedly had many talks with Enoch on the topic. Indeed, Enoch specifically named Montepara as one with whom he had discussed these topics. (6) The testimony of Enoch leaves much to be desired here . He claimed that although Respondent had decided as far back as August to make these changes, the wage-price freeze installed shortly thereafter affected these decisions and that on December 20 Respondent realized that it could proceed with increased holidays . This is quite different from announcing a decision to employees during earlier talks. (7) The delay to January 25 in granting the new holidays was attributed by Enoch to the fact that "there was no great urgency to do this ," that something else interfered, and that he was remiss in not posting the notice. As the General Counsel points out, this is most difficult to credit . All that was required was the ministerial act of having a one-page document typed; indeed, the document is most brief taking up but one-half of the page double spaced , stating what it is and then listing eight holidays. This also is highlighted by other testimony adverted to above, as to how pressing a problem this was for so many months . This renders suspect dating the January 25 vacation posting January 1 and listing the eight ensuing holidays rather than all nine. (8) Enoch also testified that the December 21 minutes of the December 20 meeting wherein he was instructed to issue the holiday policy that week were to be directed to various officials that week . Yet this was not done until mid-February due to other more pressing problems, not specified ; his taking several days off; and then the advent of the Union. (9) Enoch testified that after New York City negotiations started he and President Mohr decided that company benefits should be uniform nationally . Yet, New York City had 10 holidays and Los Angeles was increased from 7 to 9 and not to 10, this allegedly premised upon the industry pattern in Southern California. (10) As found , the new vacation policy was not publicized until February 14, although allegedly decided on January 1. But employee Gordon Van Dyke, who testified for the General Counsel , claimed that he never heard of any vacation changes prior to February 14. Under cross-examination , he conceded only that when he told Enoch prior to the February 25 election that he had not heard of any vacation changes , Enoch replied that Respondent had been "working on it for quite some time." In this respect , it is interesting to note that the minutes of Y He testified on June 20 and the new vacation policy was announced on February 14. SCANTLIN ELECTRONICS , INC. 891 the managerial staff meetings on December 13 and 20 are silent as to the topic of vacations, treating only with holidays. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. C. Analysis and Conclusions In view of the foregoing findings, I conclude that the evidence preponderates in favor of the General Counsel. On the posture most favorable to Respondent, there is evidence that Enoch had vaguely and generally considered improved working conditions for some time. But for various reasons, including managerial resistance and indecision, these were not implemented. And despite having obtained approval of these, official promulgation of the holiday and vacation changes did not come about until January 25 and February 14, respective- ly, well into the union organizational campaign and after the filing of the petition. Enoch testified further that there was no need to inform employees of this on December 20, despite all the alleged conversations prior thereto and the ostensible concern of employees. He also claimed that although Respondent had previously decided that the changes would meet the guidelines of the wage-price freeze, some of the data he needed concerning vacations did not come in until mid-January; this is hardly a decision predicated upon existing data and planning. The inconsistencies in the testimony in behalf of Respondent lead me to conclude that, upon learning of the union campaign, Respondent accelerated what was at best a nebulous idea to improve longstanding working condi- tions in the Company with the intent to influence the electorate in the organizational campaign and the pending election. Stated otherwise, I find that at the very least, with the advent of the Union on the scene, Respondent hastily put forth these two changes and that this was not the leisurely implementation of previously made decisions. Even on the face of Enoch's testimony that certain data was not forthcoming until mid-January, the improved vacation benefit was not promulgated for another month. This simply does not hold together. I find, on a preponderance of the credible evidence, that Respondent has thereby interfered with, restrained, and coerced employees in the exercise of the rights guaranteed by Section 7 of the Act, thereby violating Section 8(a)(1) thereof. It therefore follows that the election in Case 31-RC-1936 is to be set aside. Dal-Tex Optical Co., Inc., 137 NLRB 1782, 1786. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Scantlin Electronics, Incorporated , is an employer within the meaning of Section 2(2) of the Act. 2. Local Union 1710, International Brotherhood of Electrical Workers, AFL-CIO-CLC, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By granting increased holidays and vacations to influence its employees in the context of a representation election , Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices , I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Nothing herein is intended to require Respondent to reduce or diminish existing conditions of employment. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS I. Cease and desist from granting employees improved working conditions to influence them in a representation election , or in any like or related manner interfering with, restraining , or coercing employees in the exercise of the rights guaranteed under Section 7 of the National Labor Relations Act, except to the extent such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post at its facilities in Los Angeles , California, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 31 shall, after being duly signed by Respondent, be posted by it immediately upon receipt thereof and maintained for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 31, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith.5 IT IS FURTHER RECOMMENDED that the objections to the election conducted on February 25, 1972, in Case 31-RC-1936 be sustained, that the election be set aside, and that a new election be conducted. 3 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions , and Order, and all objections thereto shall be deemed waived for all purposes. 4 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 8 In the event that this recommended Order is adopted by the Board after exceptions have been filed , this provision shall be modified to read: "Notify the Regional Director for Region 31, in writing , within 20 days from the date of this Order , what steps the Respondent has taken to comply herewith." 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT grant employees improved working conditions to influence them in a representation election or in any like or related manner interfere with, restrain , or coerce employees in the exercise of the rights guaranteed under Section 7 of the National Labor Relations Act. Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material . Any questions concern- ing this notice or compliance with its provisions may be directed to the Board 's Office, Federal Building, Room 12100, 11000 Wilshire Boulevard , Los Angeles , California 90024, Telephone 213-824-7357. SCANTLmN ELECTRONICS, INC. (Employer)