The Louis Allis Co.

National Labor Relations Board - Board Decisions

Sep 1, 1971

193 N.L.R.B. 7 (N.L.R.B. 1971)

THE LOUIS ALLIS COMPANY 7
The Louis Allis Company (Division of Litton Indus-
tries, Inc.) and James O. Dodson. Case
25-CA-3865
September 1, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On March 16, 1971, Trial Examiner Laurence A.
Knapp issued his Decision in the above-entitled
proceeding, finding that Respondent had not engaged
in certain unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision, a supporting brief, and an answering brief,
and the Respondent filed cross-exceptions to the Trial
Examiner's Decision and an answering brief.
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.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the cross-excep-
tions, the briefs, and the entire record in the case, and
hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
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 Trial Examiner and hereby orders that
the complaint herein be, and it hereby is, dismissed in
its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LAURENCE A. KNAPP, Trial Examiner: I heard this case in
Evansville, Indiana, on October 15 and 16, 1970, following
pretrial procedures in compliance with the National Labor
i Following the filing of a charge on July 20, 1970, the complaint issued
on August 20, 1970, and Respondent answered the complaint on August
20, 1970 , denying commission of the unfair labor practices alleged in the
complaint.
2 The Board's decision in the first election proceeding states that prior
to the first election in 1969 both "the Union and the Employer engaged in
vigorous campaigns" and that the Union "distributed or mailed about 40
items of campaign literature ." 182 NLRB No. 67, G C. Exh 4. The record
Relations Act, as amended (herein referred to as khe
"Act ')1 Following the hearing, briefs were filed by coµ el
for the General Counsel and for Respondent, the oily
parties who appeared or were represented at the hearing„
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, the answer admits, and I find that
Respondent Is engaged at a plant' in Evansville, Indiana5 in
the manufacture and sale of electrical motors, and that in
the year preceding issuance of the complaint Respondent
received at this plant directly from States other than
Indiana, goods and materials valued in excess of $50,000.
Respondent is an employer engaged in commerce and in
activities affecting commerce within the meaning' of
Sections 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint charges that in June 1970 Respondent
granted its employees certain benefits and promised them
"possible" additional ones for the purpose of influencing
them not to support the Union named below in an election
petitioned fair by that Union. On the basis of my following
findings, I conclude that the General Counsel has failed to
establish these charges by a preponderance of the evidence
and will recommend that the complaint be dismissed.
After some preliminary planning and hiring of employ-
ees, Respondent began production operations at the
Evansville plant, a new facility, in mid-January, 1968.
Presumably, its employee complement gradually expanded;
in any case, by January 1970 it employed some 350-375
employees and by June of 1970 this number had increased
to something in excess of 425.
Since the time the plant went into operation, the
International Union of -Electrical, Radio and, Machine
Workers of America (IUE-AFL-CIO-CLC), herein called
the Union, has engaged in a continuous and vigorous
campaign to organize and become the collective-bargaitling
representative of the production and maintenance employ-
ees at this plant, through solicitation of union designation
cards, meetings , distribution of handbills and leaflets,
creation of employee organizing committees; and petitions
for election in 1969 and 1970.2 A consent election
conducted by the Board in March 1969 was lost by the
Union and this result was certified by the Board in May
1970 after the consideration of objections filed by the
Union. In the meantime, in March 1970, the Union filed a
petition for another election, and a few days prior to the
filing of the charge herein, the Regional Director, had
directed that an election be held at a date to be later
announced by him. The Regional Director subsequently
issued the complaint herein, the essence, of which is, as
indicates equally vigorous efforts by the Union thereafter and particularly
in the period immediately preceding and following the filing in March 1970
of the Union's second petition for an election . See G . C. Exh, 7, 8, and 9,
and Resp Exh . 24, 25, 26, 28, (A), (B), (C), (D), ( E), and (F), and 29. On
Respondent's part, there are in evidence communications from it_to the
employees countering union literature and claims during this second
election campaign stage See G. C. Exh. 10, 11, and 12.
193 NLRB No. 8
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
previously stated , that Respondent, by granting its
employees certain benefits and promising others while this
election petition was pending , sought to influence them
against supporting the Union in the prospective further
election 3
Just as the Union kept up its organizing campaign
throughout the 1968-1970 period involved in this case,
throughout the same period and at frequent intervals,
Respondent granted its employees improvements in wages,
benefits, and other conditions of employment. These
included several general wage increases , reductions in
wage-increase or within job advancement intervals, im-
provements in vacation , holiday, and health insurance
programs, and a wide variety of other steps for the benefit,
safety, and convenience of the employees . In making such
improvements , Respondent acted in response to two main
considerations . First, Respondent pursued the general
policy, repeatedly made known to the employees, of
keeping its employment standards generally on a par with
area or community standards (that is, affording its
employees as good employment terms as they could obtain
elsewhere in the area).4 To implement this general policy,
Respondent pursued the practice of making from time to
time periodic surveys of employment terms in effect or in
prospect among comparable employers in the Evansville
area, and, on the basis of information obtained in these
surveys and corresponding recommendations of the
personnel managers who conducted them , granting wage or
benefit improvements .5 Second, Respondent on occasion
took into account the wishes of its employees . Examples of
record are employees ' responses to a questionnaire and in
related employee interviews carried out in the fall of 1968,
and an employee petition of November 1969, signed by
some 112 employees , seeking an improvement in hospitali-
zation coverage .6
In putting into effect improvements so stimulated,
Respondent did so by means of announcements at general
employee meetings in some instances 7, through bulletin
board notices in others , and on occasion by written
communications to the employees . At one general meeting,
3 In these circumstances, one might expect that a charge alleging such
pre-election interference had been filed by the Union . But the charge filed
is of different import (that is, that Respondent dominated and interfered
with the formation and administration of a labor organization and
interrogated employees regarding their union activities-allegations not
appearing in the complaint), and it was not filed by the Union (or any
employee .) Rather it was filed by James O . Dodson , who is described in the
complaint (but not in the charge he filed ) as "Attorney." If this designation
is intended to mean that Mr. Dodson , a St. Louis attorney , filed the charge
in some representative capacity , there was no corresponding clarification at
the hearing , at which Mr. Dodson did not appear . (At the outset of the
hearing, counsel for the General Counsel announced that he had received a
telephone call from Mr. Dodson that morning in which Mr. Dodson had
requested him to inform the Trial Examiner that he, Mr. Dodson , would be
unable to attend the hearing due to a conflict of engagements and because
his earlier request for a postponement of the hearing , see G. C. Exh. 2(a)
and (b), had been denied by the Regional Director).
At the time the complaint herein issued , the Regional Director had fixed
August 26 as the date of the election and in that election the Union
received a large majority of the votes cast . Respondent filed objections to
this election , which had not been disposed of at the time of the hearing
herein.
4 See Resp. Exh . 5, 14, 23 ; G. C. Exh. 15.
8 Two such surveys were made in 1%7, in anticipation of the beginning
of productions , and further such surveys , of greater or lesser scope, were
made from time-to-time in 1968 , 1%9, and 1970. See, for example, Resp.
in November 1969, Plant Manager Onyett stated that the
area wage surveys, theretofore not made at precisely fixed
intervals , would be made on a twice-a-year basis, i.e., at 6
month intervals . Since such a survey had been made in
November 1969, this meant that the succeeding surveys
would be made in May and November of the following
years .8
In late May and early June of 1970, Personnel Manager
Tate conducted the semiannual wage and benefit survey
due to be made at that time , submitted a corresponding
report to Plant Manager Onyett, and had a corresponding
discussion with Onyett. In his written report, Tate stated
Respondent 's wage rates were competitive with the area but
that all the other companies he had surveyed provided nine
paid holidays while Respondent provided only eight, He
likewise pointed these matters out in his discussion with
Onyett, and, in addition, informed Onyett that it was not
the practice in the area to grant production employees with
1 year's service 2 weeks' (that is, 10 working days) vacation.
Tate made this latter report to Onyett because he had
received in late April a petition, signed by some 175
employees; seeking for production employees the same
period of vacation allowed to office clerical employees with
1 year's service, namely, 2 weeks. Tate informed Onyett of
this petition and of related meetings he had with a group of
the signing employees .9
At a meeting or meetings of all production employees
held on June 25, Plant Manager Onyett addressed the
employees on a variety of subjects pertaining to plant
operation, personnel, and employment matters.'° Toward
the end of his remarks, Onyett announced improvements in
the form bf one additional holiday and an increase' in the
vacation period of production employees having 1 year's
service to 10 days from the previous level of 7 days." In
explaining these increased benefits Onyett, after referring
to his earlier "commitment" that Respondent would keep
itself competitive in the area of wages and benefits and to
the semiannual survey procedure , stated:
And now six months later, we made another survey,
to see where we were in relation to the Evansville area,
Exh. 1, 2, 3, 4, 13, 20, and 21.
8 See Resp . Exh. 5-10, and 22.
7 General employee meetings at which the plant manager reviewed
employment and business conditions were held about every 3 months.
a At a general meeting of the employees held in June 1970 , Onyett
announced that because other Evansville employers were following a
pattern of making wage changes in October , he had directed that
Respondent's semiannual surveys be made in October and April of each
year. See infra.
9 This petition was the idea of employee Lillie Lemos, who caused it to
be prepared and circulated among the production employees after casually
learning that the office employees received the more favorable vacation
treatment . Following her submission of the petition to Tate, he held two
meetings with a group of employee signers of the petition (largely
designated by Lemos but, apparently, with one or two signers designated
by Tate to provide broader departmental representation). In the course of
these meetings, Tate told the employees' group that he would survey the
matter, that it was his impression that I week's vacation for production
employees after but I years' service was not area practice , and that he
could make no commitment on the matter . Tate gave the employees no
final answer because the matter was dealt with by Onyett at the June 25
employee meetings.
10 For the full text of Onyett's remarks see G . C. Exh. 15.
ii Although not referred to by Onyett in his remarks, there was a pro
rata increase in vacation allowances for employees having less than I year's
service.
THE LOUIS ALLIS COMPANY 9
and to determine whatever changes that might be
indicated to keep ourselves in line with other employers
in our Evansville area. We found that we have recently
fallen behind area practice in the number of paid
holidays per year. Accordingly, I am pleased to tell you
here and now that we are adding one more paid holiday
during 1970. This holiday will be the Friday after
Thanksgiving... .
Another improvement that we are making is in our
vacation policy, this change is not a direct result of our
survey. I did a lot of soul-searching on this one, and
therefore to balance the fringe package both internally
and externally I have reached the following dec.
[decision .] It is very common for office people to have
benefit plans that differ from those provided production
employees . But there is something about some of these
differences that I personally cannot agree with. It
sounds like first class citizens and second class citizens
and this is not what I want at Evansville. We are
changing our vacation policy as of this very minute, and
your vacation policy is now exactly the same as that of
our office people. All employees with one year of
service will be eligible for 10 days vacation this year.
The change is way ahead of local practice among
Evansville companies . Some differences will always
remain , however , because of the differences that exist in
the nature of the work, working conditions, pay, and so
on, between clerical and production people, and this
change brings into proper balance the relationship
between pay and benefits of our production and clerical
people.
Onyett went on to indicate that since the survey showed
that Respondent's wage rates were in line with comparable
jobs elsewhere in the area , there would be no wage rate
improvements at this time . He also stated that having
learned that quite a number of Evansville employers made
wage changes about October 1 of each year,
I have directed Harry Tate to re-schedule the six
months surveys to October and April of each year. We
will make changes that are then indicated to keep your
wages and benefits in line.
If Respondent had granted these improvements out of
the blue, that is, without precedent in prior practice or other
acceptable justification , an inference might reasonably be
drawn that they were designed to induce the employees to
refrain from supporting the Union . But Respondent's grant
of the additional holiday was in line with Respondent's
benefit adjustment policy and practice (or, at least , was not
a demonstrable departure from that policy and practice.)
Of course, as conceded by Onyett, the increased vacation
was not stimulated by a survey or otherwise justified on the
basis of keeping up with prevailing or dominant area
practice . But it was a change petitioned for by a very
i2 With respect to the additional holiday, counsel for the General
Counsel also adverts to the fact that half the other companies surveyed in
February 1969 then granted their production employees 9 paid holidays
and on the basis argues that Respondent should have granted the
additional holiday at that time if its guiding policy was to remain
competitive. But there is nothing in the record to show that Respondent's
policy was to equal or exceed other area employers in every term of
employment , or that it consistently regarded the practice of half the
employers surveyed as the telling number , Rather, the record as a whole
substantial proportion , about 40 percent , of Respondent's
production employees , and hence cannot be regarded as
something dreamed up by Respondent . Moreover, it was
not granted in a manner in conflict with Respondent's prior
practices; on the contrary, there was a precedent for this
employee-stimulation mode of granting improvements in
the form of the similar employee petition for hospitaliza-
tion-cost improvement of November 1969, some 6 months
previously.
In these circumstances , the General Counsel had the
burden of adducing persuasive evidence that Respondent's
actions were , in fact, marked with an antiunion purpose. In
this regard, counsel for the General Counsel argues that
such an intent is disclosed by: (1) Onyett's statements at the
end of his speech announcing the changes, to the effect that
the Union might either complain about or seek unjustifi-
ably to take credit for the improvements and might also file
corresponding charges with the Board ; (2) a statement read
by Respondent's foremen to employees prior to the March
1969 election which the Board considered in its decision
overruling the Union's objections to that election; and (3)
three written communications by Respondent to its
employees (in January, March, and April 1970) relative to
the Union's new election campaign . But the portion of
Onyett's remarks referred to plainly do not manifest an
antiunion intent, and any such intent is quite in conflict
with the specific explanations elsewhere given in his
remarks; the Board specificially held in its election decision
that the statement of the foremen was within "the bounds
of permissible persuasion"; and as to Respondent's
communications pointed to by counsel for the General
Counsel , two of them plainly were responsive to and
designed to correct union claims in its new election
campaign that Respondent was using "stalling" tactics in
the first election proceeding , and the third (and a portion of
one of the others) was devoted to explaining to the
employees that the Union's authorization cards were in
such a form that they could be used to obtain recognition
without an election. Obviously, these communications of
Respondent cannot be said to evidence the kind of
antiunion intent behind the benefit improvements an-
nounced in late June which the General Counsel is required
to establish.12
In the circumstances , I conclude that the General
Counsel has failed to meet the burden upon him to establish
that Respondent granted the June 1970 improvements for
the purpose of inducing the employees not to support the
Union.
The complaint also alleges that in his June speech Onyett
"promised possible additional benefits as a result of future
surveys ." However, what Onyett said, as previously set
forth, was merely a reiteration of a policy Respondent had
followed and declared all along , namely, that it would
suggests that what Respondent sought to do was offer employment
conditions which , by and large, were as attractive as those available to
employees at generally comparable businesses in the area,
Counsel also adverts to the fact that Respondent had operated at a loss
during the first half of 1970, but there is nothing in the record to suggest
that such a factor entered into any of Respondent's decisions relative to
wage or benefit improvements at any time subsequent to its opening of
operations.
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
continue to make periodic surveys and make "changes" so
"indicated to keep your wages and benefits in line."
Certainly, the restatement of this familiar theme was no
unlawful promise of future benefits.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and in activities affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Respondent has not engaged in any of the unfair
labor practices alleged in the complaint.
Upon the foregoing findings and conclusions and the
entire record in the case , I hereby issue, pursuant to Section
10(c) of the Act, the following recommended:
ORDER
The complaint herein is hereby dismissed in its entirety.