Direct Laboratories, Inc.

380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WILLIAM S. FRAZIER Employer. Dated--------------------- By------------------------------ (Representative ) 4 (Title) This notice must remain posted for 60 days from the date hereof and must not be altered, defaced, or covered by any other material. DIRECT LABORATORIES , INC. and UNITED GAS, COKE, AND CHEMICAL WORKERS OF AMERICA, CIO, PETITIONER. Case No. 3-RC-541. May 10, 1951 Decision and Order Pursuant to a .stipulation for certification upon consent election, an election by secret ballot among the Employer's production and main- tenance employees was conducted on October 3, 1950, under the di- rection and supervision of the Regional Director for the Third Region. Upon completion of the election, a tally of ballots was issued and duly served upon the parties. The tally reveals that of approximately 24 eligible voters, 23 cast valid ballots, of which 10 were for and 13 against the Petitioner; 1 ballot was void. The Petitioner filed timely objections to conduct affecting the re- sults of the election. Thereafter, on December 15, 1950, following an investigation, the Regional Director issued and duly served upon the parties his report on objections, wherein he recommended that a hearing be held on the objections. The Employer filed timely excep- tions to the Regional Director's report. On February 28, 1951, the Board, having duly considered the matter, issued an Order directing a hearing on the issues raised by the objections and exceptions. Upon notice duly served, a hearing was held on March 16, 1951, before John H. Garver, hearing officer. On March 26, 1951, the hearing officer issued and duly served upon the parties his report on objections, in which he found that the Em- ployer had engaged in conduct improperly affecting the results of the election, and recommended that the election be set aside and a new election directed. He based his recommendation on a finding that immediately before the election the Employer promised a wage in- crease to each of the employees in the voting group, and that no justifi- 94 NLRB No. 75. DIRECT LABORATORIES, INC. 381 cation had been established for such conduct.' The Employer filed timely exceptions, and a supporting brief, to the hearing officer's report. The rulings made by the hearing officer at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board makes the following : Findings of Fact Immediately before the election, in some cases on the day before and in others on the day of the election but before the balloting, the Employer distributed to each of the employees involved in this pro- ceeding a! letter reading, in part, as follows : You have been told by the CIO that there would be no increase granted if the CIO lost the election . . . this is absolutely false as the Company intends to grant an increase to the production and maintenance employees regardless of the outcome of the election. [Emphasis by the Employer.] 2 There is evidence in the record that management had previously considered the advisability of increasing wages generally. However, this letter constituted the first announcement to the employees of any over-all raises. Moreover, the Employer's practice had not been to grant over-all increases, but rather to grant raises, to individuals in small groups based on merit and promotion. On the entire record, we find that the announcement did not con- form with any established company practice, and that it was timed solely in connection with the pending election. As the Board has repeatedly held, such a promise of wage increases improperly in- fluences the results of an election and prevents an untrammeled ex- pression of choice by the employees.3 The Employer defends its conduct on the grounds that the letter was a privileged expression of opinion, and that it was justified to combat the Petitioner's "false propaganda." In support of this last contention, it asserts that the Petitioner had told the employees that no raises could be won except through the Petitioner. We reject each of these defenses. That an announcement of a wage increase is a clear promise of benefit and therefore not protected by Section 8 (c) of the Act is too well established to require further comment here 4 As to the claim The Petitioner also charged that the Employer told the employees that they would receive more benefits without a union , and threatened reprisals if they voted for the Petitioner. 2 After the election , which the Petitioner lost, a general wage increase was put into effect for all production and maintenance employees 3 Lake Superior District Power Company, 88 NLRB 1496, Gaylord Products, Inc, 74 NLRB 496. 1 Minnesota Mining & Manufacturing Co , 81 NLRB 557. 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of false union propaganda, the record contains no evidence support- ing the assertion. Indeed, Arthur Herzog, the Employer's vice presi- dent, testified that this defense rests on a leaflet (received in evidence) distributed by the Petitioner during its organizational campaign. The leaflet mentioned certain raises granted by the Employer to its office and clerical employees, excluded from the voting group, and the in- creases which the Petitioner intended to demand for the production and maintenance employees if it won the election. It added that wage increases not covered by collective bargaining contracts could be with- drawn by an employer. The leaflet does not otherwise speak of wage increases. Accordingly, we find, as did the hearing officer, that the Employer's conduct in promising wage increases on the eve of the election im- properly affected the results of the election.' We therefore adopt the hearing officer's recommendation, and shall set aside the election. We will direct a new election at such time as the Regional Director ad- vises the Board that the circumstances permit a free choice among the employees herein concerned. Order IT IS HEREBY ORDERED that the election held on October 3, 1950, among the employees of Direct Laboratories, Inc., Buffalo, New York, be, and it hereby is, set aside. 0In view of this finding, we deem it unnecessary to pass upon the other allegation made by the Petitioner in support of its objections. WALTER J. AND JOSEPH VAUGHN, D/B/A VAUGHN BROTHERS; SAM J. MILLER; J. G. CAGLE; R. L. GRANGER; O. M. GRANGER; AND N. H. CAGLE and INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL, PETITIONER. Cases Nos. 15-RC-J21, 422, 424, 425, 445, and 465. May 10, 1951 Decision and Direction of Elections Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before Charles A. Kyle, hearing officer. The hearing officer's rulings made at the hear- ing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Reynolds and Murdock]. 94 NLRB No. 64.