Union Sulphur and Oil Corp.

384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All of our employees are free to become or remain members of the above-named union or any other labor organization. MONARCH FOUNDRY COMPANY. Employer. Dated ................ By.............................................................................. ............... (Representative) (Title) This notice must remain posted for 60 days from date hereof, and must not be altered, defaced, or covered by any other material. UNION SULPHUR AND OIL CORPORATION and LOCAL NO. 407, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL, Petitioner. Case No. 15 -RC-560. July 24, 1953 SECOND SUPPLEMENTAL DECISION AND ORDER Pursuant to a Supplemental Decision and Direction of Elec- tion issued on May 7, 1952,1 an election was held under the supervision of the Regional Director on June 2, 3, 4, and 5, 1952. A tally of ballots was served upon the parties which showed that of approximately 395 eligible voters, 167 cast their ballots for, and 215 against, the Petitioner. The Petitioner filed timely objections to the election. The Regional Director investigated these objections, and on September 17, 1952, issued his report and recommendations, to which the Employer filed timely exceptions. On January 12, 1953, the Board having fully considered the Petitioner's objections, the Regional Director's report, and the Employer's exceptions, and having determined that substantial and material issues of fact had been raised, ordered that a hearing be held, and provided that the hearing officer des- ignated for the purpose of conducting such hearing should prepare and cause to be served upon the parties a report con- taining resolutions of the credibility of witnesses, findings of facts , and recommendations to the Board as to the disposition of the objections. On February 26, 1953, such hearing was held before Andrew P. Carter, hearing officer. Both parties were represented and participated in the hearing. On March 27, 1953, the hearing officer issued and served upon the parties i Union Sulphur and Oil Corporation, 99 NLRB 19. The original decision in this proceeding was issued on January 31, 1952, dismissing the petition on the ground of the inappropriateness of the unit requested, thePetitionerhavingsoughtto represent the Employer's Louisiana oper- ations' employees only, excluding its Texas operations' employees. Union Sulphur and Oil Corporation, 97 NLRB No. 236 (not reported in printed volumes of Board decisions) On March 14, 1952, the Petitioner filed a new petition seeking to include the employees of both the Employer's Louisiana and Texas operations, but withdrew this petition on April 28, 1952, at which time it moved the Board to reconsider its original petition on the basis of its amended unit request. The Board granted this motion, and issued its Supplemental Decision and Direction of Election mentioned in the text. 106 NLRB No 75. UNION SULPHUR AND OIL CORPORATION 385 his report containing findings of fact and recommendations to the Board. The Employer thereafter filed exceptions to the hearing officer ' s report and recommendations. The Board ' has reviewed the rulings made by the hearing officer at the hearing and finds that no prejudicial error was committed. These rulings are hereby affirmed. The Board has considered the hearing officer's report, findings of fact, and recommendations , and the Employer ' s exceptions . Upon the entire record in this case the Board finds: Less than 2 weeks before the election the Employer mailed to its employees 2 notices announcing that it had made applica- tion to the Wage Stabilization Board for approval of a sub- stantial number of employee benefits .3 The hearing officer found that, although the Employer had had a practice of announcing wage increases , insurance plans , and other im- provements in working conditions by written notice to its employees , such notices had customarily not been made until the benefits were to take effect. He concluded that the an- nouncements of May 22 and 26 were departures from that practice , and that, both because of this timing and because they disclosed an unusually great showering of benefits on the employees within a short space of time immediately preceding the election, they constituted a restraint upon the employees' freedom of choice which was essential to a fair election. He therefore recommended that the election be set aside. The Employer excepts to these findings , asserting , in sub- stance, that: (1) The notices did not constitute a departure from its past practices , because it also had a custom of making verbal announcements to its employees of increases and other benefits which were under consideration or for which applica- tion had been made to the Wage Stabilization Board for approval; and (2 ) all the benefits mentioned in the May 22 and May 26 announcements were not promulgated in the crucial period of 2 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[Members Houston, Murdock, and Peter- son]. $ In one of these notices dated May 22, 1952, the Employer announced that: (1) In an amended petition before the Wage Stabilization Board it was seeking a shift differential of 6 cents and 12 cents per hour (the petition before the amendment had sought 4 cents and 6 cents per hour); and (2) it was filing a petition with the Wage Stabilization Board to include additional group- insurance benefits with a formal sickness plan. In the other of these notices, dated May 26, 1952, the Employer announced changes and additions to its company- sponsored insurance plans consisting of (1) increases in the amounts of life insurance, accidental death, and dismemberment provisions; (2) increases in amounts of hospitalization benefits; (3) increase in amount of the surgical benefit; (4) provision for employees medical expenses; (5) extension of the revised hospitalization and surgical benefits to include eligible dependents; (6) provision for in-hospital medical expenses for dependents; and (7) replacement of existing nonaccident sickness and medical insurance with a formal sickness and accident plan paid for entirely by the Company. As to the insurance features of the plan, the Employer announced that it would pay a substantial portion of the premiums involved and the cost of administration and accounting. The notice further stated that "the actual effective date of these improvements will be based upon Wage Stabilization Board written approval," and that "in the case of the insurance plan, enrollment of at least 75 percent of the eligible employees and dependents participating is required " 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2 weeks before the election , in that the shift differential had been announced to the employees in April of 19524 and its change to an increased amount was simply in keeping with a change in the oil industry generally , which occurred when the Wage Stabilization Board's approval of the increased differ- ential was disclosed in a recent decision. As to ( 1), there is undisputed evidence in the record that the Employer had in the past made announcements to its employees of benefits before they were to take effect.' As to (2), however , we do not believe that the record supports the Employer ' s assertion that its amended application seeking increased shift differentials was merely in accord with a general change in the amount of shift differentials in the oil industry. The Wage Stabilization Board's decision in a case, allowing 6- and 12-cent per hour shift differentials was issued on May 14 , 1952.6 Most of the major oil companies in the area had been paying a 4 - and 6-cent per hour shift differ- ential for a substantial period of time. 7 The Petitioner concedes that after the Wage Stabilization Board's approval of an in- crease in the differential to 6- and 12 -cent per hour , this in- creased differential rapidly became the pattern in the industry, and practically all the major companies operating the area adopted such increased differentials during the months of May and June 1952.6 4The date appears as 1951 in the Employer 's exceptions . It is apparent, however, that the date referred to is that given above, as that is the date of issue of a company paper " The Imp Print," containing a review of employee benefits that the Employer had granted, which mentioned the application to the Wage Stabilization Board for shift differentials. 5 This evidence, however , though uncontradicted , is not highly persuasive. It consists merely of generalized testimony by witnesses for the Employer that employee meetings were held at which the Employer learned of employee requests or suggestions and advised them of management decisions. Although the employees involved in this case are scattered throughout the Employer 's southwest Louisiana and southeast Texas , operations , no specific testimony was given as to where and when such meetings were held. Exhibits offered in evidence to support testimony by the Employer's chief of personnel that he "called or at- tended" such meetings (Company's Exhibits Nos. 16, 17, and 18) do not in fact appear to relate to meetings of employees, but on the other hand clearly are notices issued by the Employer 's executives to the chief of personnel , inviting him to attend management meet- ings. The chief of personnel further testified, however , that at supervisors ' meetings, the supervisors were instructed to inform the employees in the field of the Employer 's plans. 6As given in the record, this was the case of Farmers Union Central Exchange, Billings, Montana, and Local 443, Oil Workers International Union, CIO. 7 The various oil companies mentioned in the record include the Gulf, Shell. Texas, Phillips, Lion, Sinclair , Cities Service, Magnolia , Stanolind, and Sun oil companies . In the spring of 1952, the Employer made a survey of some of these companies and found that Magnolia, Shell, Gulf, Humble, Stanolind, and Sun were paying 4- and 6-cent shift differentials. The Employer's witnesses stated that it was as a result of this survey that the Employer made its original application to the Wage Stabilization Board for approval to pay the 4- and 6-cent differential. 8 The Employer 's exceptions are based upon the premise that initially in seeking approval for payment of shift differentials , and later in increasing the amount of differentials that it sought, it was merely endeavoring to keep abreast of what other companies were doing in the area. The Employer's operations have expanded substantially in the last several years, and its vice president testified that it considers itself as competing generally with the major oil companies. The Employer itself elicited testimony, however, in cross-exam- UNION SULPHUR AND OIL CORPORATION 387 However, the record discloses that, among the companies which ultimately adopted the increased differentials , very few actually had taken this action during the interval between May 14, the date of the Wage Stabilization Board's approval of 6- and 12-cent shift differentials , and May 22 , the date of the Employer's announcement of its application to pay such dif- ferentials to its employees . The record discloses that 1 or 2 companies did in fact indicate their agreement to the in- creased differentials almost immediately after the Wage Stabilization Board's decision announcing its approval. How- ever, others of the major companies did not come to an agree- ment with the representatives of their employees until a period of weeks or even months after the May 14 decision.9 It thus appears that a pattern of granting 6- and 12-cent shift differentials had not in fact become manifest throughout the industry at a date as early as May 22, 1952 . Accordingly, we find that the Employer ' s announcement of an application for increased differentials , made to the employees on that date, was not made in the course of the Employer ' s practice of ad- justing its employment conditions to meet those of its com- petitors in the area, but rather constituted a promise of benefit calculated to interfere with the freedom of choice of its employees in the election. Moreover , as to both the notices of May 22 and May 26, 1952, the record reveals no other instances in which the Employer announced so many benefits to be showered upon its employees within so short a period of time . The Employer ' s assertion is uncontradicted that the improvements and benefits an- nounced in the May 26 notice had been under consideration for some substantial period of time. However , the announce- ments were not of benefit plans which had ripened to the stage where they could become effective immediately , but of the Employer's decision to seek Government approval to grant them to the employees . Upon the whole record, we conclude that it was more than mere coincidence that the Employer chose to announce decisions to such approval for so many benefits simultaneously and within the space of 2 weeks before the election . For this additional reason , therefore, we find that the May 26 notice , as well as that of May 22, con- stituted interference by the Employer with the employees' ination of the Petitioner 's representative, disclosing that most of the major companies mentioned are many times larger than the Employer, and that a number of the smaller companies about the size of the Employer did not pay any shift differentials, even in the spring of 1952. 9The Employer contended at the hearing that even though some negotiations ( in settlement of a strike then current among the employees of several companies) continued for a long period of time, the issue of shift differentials had become settled "in a matter of days" and was no longer in dispute We do not credit this assertion, but rather credit the testimony of the Petitioner's representative that even though it became known that the Wage Stabili- zation Board would approve the increased differentials , the unions nevertheless were com- pelled to continue to negotiate with the various companies to persuade them to agree to grant these differentials to their employees. 322615 0 - 54 - 26 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD free choice in the election. We shall set the election aside. to ORDER IT IS HEREBY ORDERED that the election of June 2, 3, 4, and 5, 1952, among the Employer's employees, be, and it hereby is, set aside. IT IS FURTHER ORDERED that this proceeding be re- manded to the Regional Director for the Region in which this case was heard, for the purpose of conducting a new election at such time as he deems the circumstances permita free choice as to collective -bargaining representation. ioSpengler-Loomis Mfg. Co., 95 NLRB 243; Le Roi Company, 101 NLRB 55; Beaver Machine & Tool Co., Inc., 101 NLRB 1782. The Employer also claims that the Petitioner waived its right to object to the notices of May 22 and 26, 1952, because it knew of them before the election and yet participated in it without raising any question as to these notices. It relies largely on Denton Sleeping Garment Mills, Inc., 93 NLRB 329. As noted by the hearing officer, however, this case has since been overruled by the Board on this particular point in The Great Atlantic & Pacific Tea Company, 101 NLRB 1118. The hearing officer's finding that there is no merit in this contention is affirmed. MR. JOHN, INC. and MILLINERY BLOCKERS UNION, LOCAL 42, UNITED HATTERS, CAP AND MILLINERY WORKERS, INTERNATIONAL UNION, AFL, Petitioner. Case No. 2-RC-5765. July 24, 1953 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Leonard J. Lurie, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.1 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 [Members Houston, Styles, and Peterson] . Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the mean- ing of the Act. 2. The labor organization involved claims to represent certain employees of the Employer. 3. No question affecting commerce exists concerning the representation of employees of the Employer within the mean- 'On June 15, 1953, the Employer filed with the Board a motion to strike testhpony admitted by the hearing officer at the hearing relating to statements made by the Employer's general manager at the informal conference. In view of our determination in paragraph 3, we do not pass on this motion. 106 NLRB No. 71.