The Baltimore Catering Co.

970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. All our employees are free to become, remain, or to refrain from becoming or re- maining, members of the above-named or any other labor organization. WAGNER-WOOD COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) 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. Employees may communicate directly with the Board's Regional Office, Room 2023, Federal Office Building, 550 Main Street , Cincinnati, Ohio, Telephone No. 381-2200, if they have any questions concerning this notice or compliance with its provisions. The Baltimore Catering Company and International . Union of Electrical, Radio and Machine Workers, AFL-CIO, Petitioner. Case No. -5-RC-4457. September 11, 1964 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a. stipulation of certification upon consent election exe ,cuted and approved December 5, 1963, an election by secret ballot was conducted on December 19, 1963, under the direction and supervision .of the Regional Director for Region 5, among employees in the stipu- lated unit. Upon the conclusion of the election, a tally of ballots was furnished the parties in accordance with the Board's Rules and Regu- lations, Series 8, as amended.' The tally of ballots showed that of approximately 121 eligible voters, 116 cast ballots, of which 54 were for and 62 were against the Petitioner. No ballots, were challenged or, void. Thereafter, on De- ,cember 27, 1963, the Petitioner filed timely objections to conduct affect- ing the outcome of the election. In accordance with the Board's Rules and Regulations, the Re- gional Director conducted an investigation of the objections and thereafter issued and duly served on the parties on January 31, 1964, a report thereon recommending to the Board that the objections be overruled in their entirety. . - On February 24, 1964, the Petitioner filed timely exceptions to the Regional Director's report with respect to objections Nos. 1, 4, and 5 only, and requested that the election be set aside and a new election be directed, or, in the alternative, that a hearing be held on the issues involved. The Board; having duly considered the Petitioner's;objections, the Regional, Director's report,,the Employer's , stateiiient,,in,support of 148 NLRB No. 101. THE BALTIMORE CATERING COMPANY 971 the Regional Director's recommendation, and the Petitioner's excep- tions thereto, was of the-opinion that the material and substantial issues raised by the Petitioner's exceptions with respect to objections Nos. 1, 4, and 5 could best be resolved by a hearing. Accordingly, the Board ordered that a hearing be held before a Hearing Officer to be designated by the Regional Director for Re- gion 5 to resolve the issues raised by the Petitioner's objections Nos. 1, 4, and 5, the Regional Director's report thereon, and the Petitioner's exceptions. The Board further ordered that the Hearing Officer prepare and cause to be served upon the parties, a report containing resolutions of the credibility of witnesses, findings of fact, and recommendations to the Board as to the disposition of said issues. Pursuant to notice, a hearing was held on Friday, May 8, 1964, be- fore Hearing Officer Morris H. Rapoport. At this hearing, the Peti- tioner, the Employer, and the Regional Director appeared and partici- pated therein. All parties were represented by counsel and afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. On June 8, 1964, the Hearing Officer filed his report recommending to the Board that the objections be overruled in their entirety. The Petitioner filed timely exceptions to the Hearing Officer's report and a .supporting brief. The Employer filed a brief in support of the Hear- ing Officer's recommendations. . Pursuant to the provisions of Section 3'(b) of the National Labor. Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. I Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of.the Act to assert jurisdiction herein. , 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Sections 9(c) (1) and 2(6) and (7) of the Act. 4. We find, in. accordance with the parties' stipulation, that the fol- lowing unit is appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All employees employed by The Baltimore Catering Company, including all cashiers, cooks, cooks' assistants, cafeteria-' workers, truckdrivers, charge girls, chefs, and utility workers_ employed at Westinghouse Electric Corporation plants located at Friendship. -1 1 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lansdowne, and Halethorpe, Maryland, but excluding all office cleri- cal employees and professionals at the Employer's 'Caton Avenue offices and all supervisors as defined in the Act, as amended. 5. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that no prejudicial error was committed.' The rulings are hereby affirmed. The Board has considered the Hearing Officer's recommendations, the exceptions and briefs, and the entire record in the case, and hereby finds : Petitioner's first objection is based upon the allegation that im- mediately after the petition was filed, the Employer granted to all employees in the unit wage increases in amounts greater than any given in past years and, also stated that the past practice of giving bonuses would be discontinued. - The Employer operates cafeterias on a concession basis at the West- inghouse Electric Corporation plant in Baltimore, Maryland. The Union began organizing the 125 employees of the. Baltimore cafeteria involved herein-"on June 6, 1963, by distributing leaflets and author= ization cards. At a meeting shortly thereafter, Employer's presi- dent, Whelpley, asked all the employees who among them had signed the cards, but received no reply. Leaflets distributed in August, November, and December also came to Whelpley's attention. In June or July, Whelpley made some verbal inquiries of Westing- house regarding permission to increase prices in the Baltimore cafe- teria in order to enable him to raise the wages of the employees. On September 18, President Whelpley wrote Westinghouse : To bring the cafeteria employees pay a little closer to the start- ing rate in the plant, also more in line with the key sheet in effect at the Westinghouse plants in New Jersey, where the IUE have organized: the cafeteria employees, request permission to increase prices as itemized on the attached sheet, so the new rates shown on attached key sheet may be put into effect. In the past it has been our practice to pay a bonus twice '& year (July and December) which has averaged at least $.08 per hour, as well as, a $.05 increase in hourly rate each Christmas. I propose to include the $.08 per hour in the going rate in lieu of the semi-annual bonus and increase the other rates as noted ... . He then read the letter to his. employees and promised to advise them of the decision of Westinghouse The petition mailed by the Union on November 13, 1963, was, re- ceived and docketed in the Board's Baltimore office on November 14. 1 Petitioner correctly contends that the Hearing Officer committed error In ruling'that the General Counsel's obligation , to produce the pretrial statements of a witness under Section 102 .118, Board's Rules' and Regulations , Series 8, as amended , is limited to the production of affidavits. We find, in the light of our decision herein, that the error was not prejudicial. See 0 & 8 Mannjacturing Inc., 123 NLRB 1002. THE BALTIMORE CATERING COMPANY 973 At the end of the lunch period on November 14, Anderson, the Em- ployer's vice president, announced to the employees that starting with the next pay they would be getting the 10-cent-per-hour wage increase and that the old bonus Would be eliminated and replaced by an addi- tional 8 cents per hour? Whelpley claims to have received on that same day permission from Westinghouse to raise prices. The Hearing Officer found that the Employer announced and granted the wage increase and the bonus change for regular business reasons and not for the purpose of interfering in the election. He accepted and found significant the Employer' s contention that the bonus substitution and raise ha 4 been decided upon several months before the,petition was filed. Accordingly, he found that the an- nouncement of the authorization from Westinghouse together with the wage and bonus change on the same day as the filing of the petition was coincidental. We disagree with this conclusion. The announcement was made subsequent to the filing of the petition and therefore must be subject to close scrutiny.' Although the granting of benefits during the rele- vant period preceding an election is not necessarily cause for setting aside an election, the Board has set aside elections where it appears that the granting of the benefits at that particular time was calcu- lated to influence the employees in their choice of a bargaining repre- sentative. In the absence of evidence demonstrating that the timing of the announcement of changes in benefits was governed by factors other than the pendency of the election, the Board will regard inter- ference with employee freedom of choice as the motivating factor. The burden of establishing a justifiable motive remains with the Em- ployer 4 The fact that the employees may have known about or other- wise anticipated the increase in wages is not necessarily controlling.5 The crucial determination is whether the benefits were conferred for the purpose of influencing the employees in their choice of bargaining representatives and were of a type reasonably calculated to have that effects Although the elimination of the bonus plan and the substitution of a pay raise may have been decided upon in June or July, no convinc- ing reasons appear why the Employer decided to depart from its es- tablished practice of granting wage benefits in December. Indeed, it 2It had been the Employer's practice to grant wage increases of 5 cents per hour each year at Christmas time , although on one occasion the raise was at a rate of 7y2 cents per hour. Only in 1960 did the Employer grant the raise at any time other than Christmas On that occasion it was done to match an increase which had been given to the Westinghouse employees at the plant. 8 West Texas Equipment Company, 142 NLRB 1358. 4 Glosser Bros , Inc., 120 NLRB 965. 5Des Moines Glove Co ., subsidiary of Victor Comptometer Corp ; of America, 146 NLRB 225. 6 See N.L R B . v Exchange Parts Company, 375 U.S. 405. 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appears that the plan to seek the raise in prices from Westinghouse was conceived after the Union began its organizing campaign and at a time when the Employer first became aware of this union activity, as demonstrated by the interrogation of employees shortly after the distribution of. membership cards along with campaign leaflets. The Employer contends that it announced the wage increase when it did because of the desire to notify the employees of Westinghouse's au- thorization to raise prices. However, even if it were accepted,' this argument is not applicable to that portion of the increase which was a, substitution for the bonus, since President Whelp]ey admitted that the bonus substitution was merely a conversion of the usual semi- annual bonus into the hourly rate and payment thereof on that basis."- It was in no way contingent upon an increase in prices and could have been effectuated at any time without a concurrent increase in prices for which the Employer apparently needed the consent of Westing- house. The Employer's choice of November 14 to announce the bonus substitution rather than wait until Christmas, which was the usual time for'announcing bonuses and raises, convinces us that the an- nouncement was calculated to influence the employees in their election choice. In these circumstances, we find, contrary to the Hearing Officer, that the Employer has failed to show that the timing of the announcement of the wage raise and the bonus substitution was governed by factors other than the pending election. Accordingly, we find that the timing of the announcement was calculated to and did interfere with the election. Petitioner alleged in objections Nos. 4 and 5 that on the day prior to the election the Employer promised a reward to all employees in the unit in the form of a paid birthday holiday and a yearly bonus of $5 per year for each year of service with the Company. The record shows that on December 17 or 18, 1 or 2 days before the election,. Whelpley and Anderson had a conversation at an "office" that Ander- son maintained in the Baltimore cafeteria. The office consisted of nothing more than a desk which was approximately 3 or 4 feet from where the employees sat to eat their lunch. No precautions were taken by Whelpley and Anderson to prevent their conversation from being overheard although they were aware that several of the employees. ,were seated nearby. -- 7 Member Leedom would accept this argument. 8 The Employer 's officers testified that they were aware that the employees had ex- pressed dissatisfaction with the existing method of calculating the bonus and that a wage, substitution was what many of the employees regarded as a more satisfactory system. It is, therefore , immaterial that the bonus substitution did not necessarily result in any in- crease in the total annual wages received by the employees. See Exchange Parts Com- pany, supra THE BALTIMORE CATERING COMPANY 975 Anderson, who was primarily concerned with the Baltimore cafe- teria, asked Whelpley about the status of the Employer's negotiations with the Union at the New Jersey cafeterias.' He was told that the New Jersey employees were going to get a paid holiday on their birth- days and an additional annual bonus of $5 for every year of service with the Employer. Whelpley added that they planned to give the Baltimore employees the same holiday benefits and, if business con- ditions allowed, the bonus as well. The conversation was overheard by one of the employees, Mrs. Krahling, who had been seated a few feet from the men at the time. Krahling promptly informed about 30 other employees who were also seated in the area that they were about to receive this additional bonus and holiday. The Hearing Officer determined that there was insufficient evidence to show that the Employer intended to make any such announcement prior to the election. He also rejected the Petitioner's contention that Krahling was a supervisor, and that the Employer was therefore re- sponsible for her action in spreading the rumor by reason of her status. We do not find it necessary to reach either question. It is clear from the circumstances of this case that any conversation held in Anderson's office could be overheard by the employees and that on the eve of the election a declaration of intention to grant an addi- tional holiday and other benefits would be communicated to the work force as assuredly as if it were announced at a formal meeting. The Employer's officers must be held accountable for the reasonably for- seeable consequences of their act, and under these circumstances should have anticipated this natural and inevitable result and taken appro- priate precautions to prevent it. Undoubtedly such an announcement of benefits within 48 hours of the election would be a strong influence on the decision to be made by the employees. Anderson's interest in determining whether the benefits granted the New Jersey employees were also to be granted in his plant does not constitute a credible ex- planation of the timing or manner of the discussion. The conversa- tion took place virtually in the midst of the employees during a rela- tively slow portion of the day within 2 days of the election, when it would have the maximum effect upon the minds of the employees.lo Accordingly, we further find that the timing and the manner of the declaration of the intention to grant the additional holiday and bonus was calculated to and, in any event, did interfere with the election. We shall, therefore, sustain the Petitioner's objections 1, 4, and 5, and shall set aside the election held on December 19, 1963, and direct a new election. 0In addition to the Baltimore Installation , the Employer also operated two cafeterias in New Jersey, the employees of which had been represented by the Petitioner. 10 See Food Fair Stores of Florida, Inc., 120 NI,RB 1669, 1672-1673. 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [The Board set aside the election conducted herein on December 19, 1963.] [Text of Direction of Second Election omitted from publication.] Lasko Metal Products, Inc. and District Lodge No. 155, Inter- national Association of Machinists, AFL-CIO. Case No. 26- CA-1584. September 14, 1964 DECISION AND ORDER On March 19, 1964, Trial Examiner George A. Downing issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the Act and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Decision. Thereafter, both Respondent and the General Counsel filed exceptions to the Decision and briefs in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. 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 Ex- aminer's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner only to the extent consistent with this Decision and Order. We agree with the Trial Examiner's findings that Respondent vio- lated Section 8 (a) (1) of the Act in the manner and to the extent set forth in his Decision. We agree also with his dismissal of the allega- tions of the complaint relating to general bad-faith bargaining, the institution of unilateral wage increases and other benefits, and the dis- charge of employee Howard Sands. However, we cannot agree with the Trial Examiner's findings that (1) certain unilateral layoffs and recalls violated the Act; (2) the strike of July 22, 1963,1 was caused by Respondent's unfair labor practices; and (3) Respondent's refusal to furnish certain information requested by the Union violated Sec- tion 8(a) (5) of the Act. As to the unilateral layoffs and recalls, the facts are not in dispute and may be summarized as follows. Following its certification on 'Unless otherwise stated, all events occurred in 1963. 148 NLRB No. 104.