Knickerbocker Manufacturing Co, Inc.

KNICKERBOCKER MANUFACTURING COMPANY, INC. 507 If a majority of the employees in the voting group vote for the Petitioner, they shall be deemed to constitute a part of the existing production and maintenance unit, and the Regional Di- rector will issue a certification of results of election to such effect. 5. A question was raised at the hearing involving the eligi- bility of 3 analysts (Savage, Hutkai, and Miller) who had been severed from the Employer's payroll. These employees were held by the Board to have been discriminatorily discharged.5 Although the Board's decision in the unfair labor practice case is before a United States court of appeals for enforcement, we find, in accordance with precedent , that the Board ' s decision in that proceeding is binding upon the Employer unless and until it is set aside by a court of competent jurisdiction.6 We therefore find that the employees in question are eligible to vote in the election. [Text of Direction of Election omitted from publication.] 5 Ohio Ferro Alloys Corporation, 104 NLRB 542. 6See Stationers Corporation, 97 NLRB 601. KNICKERBOCKER MANUFACTURING COMPANY, INC. and AMALGAMATED CLOTHING WORKERS OF AMERICA, CIO, Petitioner . Case No. 15 -RC-925. December 23, 1953 SUPPLEMENTAL DECISION AND ORDER Pursuant to a Decision and Direction of Election issued by the Board on June 3, 1953, 1 an election by secret ballot was conducted orr June 12, 1953, under the supervision of the Regional Director for the Fifteenth Region among the produc- tion and maintenance employees at the Employer's West Point, Mississippi, plant. Upon completion of the election, the parties were furnished with a tally of ballots which showed that of approximately 357 eligible voters, 345 cast valid ballots, of which 143 were for, and 202 against, the Petitioner. On June 18, 1953, the Petitioner filed timely objections to conduct allegedly affecting the results of the election. In ac- cordance with the Rules and Regulations of the Board, the Regional Director conducted an investigation and, on September 4, 1953, issued and served on the parties his report on objec- tions, in which he recommended that some of the objections be sustained and others overruled, and that the Board set aside the election and direct a new election. Thereafter the Employer filed exceptions to the Regional Director's report in which it moved that the Board overrule the Regional Director and certify the results of the election. 'Not reported in printed volumes of Board Decisions. 107 NLRB No. 111 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Petitioner , in substance , alleges that the Employer in- terfered with the free choice of a bargaining representative by announcing just before the election an improved vacation plan, and a paid holiday plan whereas none existed before, and by threatening in its June 10 and 11 letters to the employees that, if they voted for the Petitioner , they would suffer economic loss. The pertinent facts are these : 2 In mid-February 1953, the Petitioner began to organize among the employees of the Em- ployer's West Point plant and -in March it began distributing organizational literature . By a letter from the generalmanager to the president dated April 6, the Employer revived intra- management discussions of possible increased benefits for the employees .' On April 14 , the Petitioner requested recognition from the Employer as the bargaining representative of its em- ployees at West Point . The request was denied and on April 16 the Petitioner filed its petition with the Board. In a conversation between the Regional Director's representative and the Em- ployer's attorney on April 24, a hearing date of May 7 was agreed upon and the Employer ' s attorney was notified that a notice of hearing would issue promptly . The notice of hearing issued the next working day of the Board, Monday , April 27. Meanwhile , on Sunday , April 26, a notice was posted on the plant bulletin board announcing that a new vacation plan had been approved and would be set out in more detail within 30 days and containing the following additional paragraph:4 It is our understanding that the companyis also considering giving you additional benefits , such as paid holidays. The foregoing will be put into effect just as soon as details have been worked out. 2 Although the Employer excepts to certain inferences and conclusions made by the Regional Director in the report on objections , it does not dispute the findings of facts as herein re- lated. 3 The text of the letter reads: As previously discussed, I would like to finally review with you the proposed new vacation plan and suggested holidays for West Point As you know, most of the plants in our industry throughout the country have a more liberal vacation policy than we do and the question of holidays has come up previously. In fact, Mr. Estes suggested that we do these things prior to our 1950 Vacation at which time you thought we could wait until the 1952 Vacation. I intend being in West Point for about a week or ten days from April 15 on and feel we should conclude the matter one way or the other at this time 4The complete notice posted on April 26 reads: We have been advised by our New York office that a general change in the Company's vacation plan has been approved. The new plan will be set up on the basis of one and two weeks vacation paid at your average hourly earnings and complete details of the plan will be fully worked out in about thirty days. It is our understanding that the company is also considering giving you additional benefits , such as paid holidays . The foregoing will be put into effect just as soon as the details have been worked out. KNICKERBOCKER MANUFACTURING COMPANY, INC. 509 Concededly none of the employees in the voting unit saw this announcement until the following Monday, the day on which the notice of hearing issued . The hearing was conducted as scheduled on May 7. On May 28 the vacation plan was posted. 5 On June 3 the Board Decision and Direction of Election issued which set the election for June 12 . Prior to receipt of the Board's decision by the Employer , a paid holiday plan was posted on June 4. 6 On June 10 and 11 letters were posted on the bulletin board from the president and plant manager of the Employer urging the employees to vote against the Petitioner and containing reference to the recently granted benefits. The election was held on June 12 and the Petitioner lost. The Regional Director found that objections relating to the vacations and paid - holidays raise substantial and material is- sues affecting the results of the election for the reason that the Employer made no explanation for the. precise timing of the announcements of the benefits other than the fact that the va- cation period , was scheduled to begin the week of June 29 and the first holiday was to fall on July 4. He concluded therefrom that the reasons given were less than compelling and that the announcements were reasonably calculated to affect the em- ployees in their choice of a bargaining agent. He found it un- necessary to decide whether the letters of June 10 and 11 were coercive. In its exceptions , the Employer contends that, as its notice of April 26 antedated the issuance of the Board ' s notice of hearing , its conduct at that time cannot , under the authority of the great Atlantic & Pacific Tea Company case 7 be asserted as grounds for setting the election aside. With respect to the subsequent notices of May 28 as to the vacation benefits and June 4 as to paid holidays , it argues that they were not objec- tionable because they merely carried out or detailed the com- mitments previously made on April 26. Assuming without deciding that , under the above-cited case, the Petitioner is precluded from asserting the Employer's conduct as to the announcement of vacation benefits , we cannot agree that the Petitioner is similarly precluded with respect to the announcement of paid holidays. For in our opinion the paid holidays were not in fact announced until shortly before the election. The language of the April 26 notice that the Employer was "also considering giving you additional benefits , such as paid holidays " was no more than a vague suggestion of a possibility of paid holidays . It was not until the notice of June 4, 5 The plan, in effect, grants a 2- week vacation to employees with more than 5 years' service whereas such employees formerly received 1 week. 6 The plan established July 4, Labor Day, Thanksgiving Day, and Christmas Day as paid holidays. 7101 NLRB 1118. The cited case held, in part, that where, as here, a notice of hearing has issued, the Board will consider on its merits only such interference as is alleged to have occurred after the date of issuance of the notice of hearing. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after the hearing herein,a that this uncertain reference as- sumed the proportions of a promise. Indeed, it was then that the employees were told that there were to be 4 paid holidays, that they were to receive 8 hours' pay for each, and that their first paid holiday was to be July 4.9 We conclude, therefore, and we find, that the June 4 notice to the employees constituted the first actual announcement of paid holiday benefits. It is not contended, nor does it appear, that the June 4 an- nouncement was in accord with any fixed practice of periodic increases or improvements in conditions of employment which the employees could normally expect at the time. 10 However, the Employer seeks to justify its conduct on the ground that the first holiday was to fall on July4. As to this contention, we fail to perceive any element of urgency in the situation, particularly since the holiday was then a full month away. Nor do we find merit in the Employer's further argument that, in view of its assurance to the employees thereafter that they would get the benefits whether the Unionwonor lost, there was no interference with the election. We fail to see how this could operate to dissipate the vice inherent inthe timing of the June 4 notice as to holiday benefits. Accordingly, as we are not persuaded that the timing of the announcement was governed by factors other than the impending election, we conclude that the announcement was deliberately timed and calculated to, and did , interfere with the employees, freedom of choice of a bargaining representative . We shall set aside the election of June 12, 1953.11 ORDER IT IS HEREBY ORDERED that the previous election among the Employer ' s employees be, and it hereby is, set aside. IT IS FURTHER ORDERED that this proceeding be remanded to the Regional Director for the Fifteenth Region for the pur- pose of conducting a new election at suchtime as he deems the circumstances permit a free choice of acollective -bargaining representative. eAt the hearing the sole issue between the parties was whether part-time student em- ployees in the otherwise stipulated unit should be included and be allowed to vote. The Employer , therefore, could reasonably have believed that an election was impending. 9Contrary to our dissenting colleague, the concluding sentence of the April 26 notice stating "the foregoing will be put into effect just as soon as details have been worked out" in our opinion had reference to the new vacation plan and not to paid holidays. In the notice the only matter as to which the Employer had announced that details were being worked out was the vacation plan. Consequently the reference to putting the foregoing into effect just as soon as details were worked out obviously referred to that vacation plan. iiSee Union Sulphur and Oil Corporation, 106 NLRB 384 and cases cited therein. ii The Employer 's motion to reverse the Regional Director's recommendations and certify the results of the election is hereby overruled. AMERICAN LAUNDRY MACHINERY COMPANY 511 Member Rodgers , dissenting: I am unable to agree with my colleagues that "the paid holidays were not in fact announced until shortly before the election ." The Employer' s posted announcement of April 26, after informing the employees that "a general change in t e company's vacation plan has been approved," plainly stated that "the company is also considering giving you additional benefits , such as paid holidays " and that "the foregoing will be put into effect just as soon as details have been worked out." (Emphasis supplied.) The notice of hearing in this case was issued by the Regional Director on April 27. Clearly, then, under the rule in Great Atlantic & Pacific Tea Company, 101 NLRB 1118, the April 26 announcement cannot be considered as a valid election objec- tion. That the Employer ' s notice of June 4 gave the details of the proposed paid holidays in no way diminishes the fact that the employees had already been made aware -- at a time deemed unobjectionable by the Board--that such benefits were to be expected. All that is involved here is a notice which carried out the Employer's express written promise made in an earlier announcement , at an appropriate time. The majority ' s char- acterization of the April 26 announcement as "no more than a vague suggestion of a possibility of paid holidays " ignores the obvious import of the statement that "the foregoing will be put into effect just as soon as details have been worked out." Under any reasonable construction of the April 26 an- nouncement, "the foregoing " necessarily included "paid holi- days, " and not merely "vacation benefits " as the majority would seem to suggest . Under the circumstances , the ground relied on by my colleagues seems entirely too belabored and mechanistic a reason for setting aside this election. AMERICAN LAUNDRY MACHINERY COMPANY and UNITED STEELWORKERS OF AMERICA , C.I.O., Petitioner. Case No. 3-RC-1239. December 23, 1953 SUPPLEMENTAL DECISION AND CERTIFICATION OF RESULTS OF ELECTION Pursuant to a Decision and Direction of Electionissued by the Board on July 31, 1953 ,1 an election by secret ballot was con- ducted on August 28, 1953, under the supervision of the Regional Director for the Third Region, among the employees in the ap- propriate unit at the Employer's plant inRochester, New York. Upon completion of the election , the parties were furnished with 'Not reported in printed volumes of Board Decisions. 107 NLRB No. 114.