Fairchild Camera & Instrument Corp.

90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fairchild Camera & Instrument Corporation and International Brotherhood of Electrical Workers, Local No. 95, AFL-CIO Fairchild Camera & Instrument Corporation and International Brotherhood of Electrical Workers, Local No. 95, AFL-CIO, Petitioner. Cases 17-CA-3039 and 17-RC-5149 17-RC-5149 be remanded to the Regional Director for Region 17 for the purpose of conducting a new election in the appropriate unit at such time as he deems that the circumstances permit the free choice of a bargaining representative. [Direction of Second Runoff Election2 omitted from publication.] January 11, 1968 DECISION, ORDER , AND DIRECTION OF SECOND RUNOFF ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On September 26, 1967, Trial Examiner Fannie M. Boyls issued her Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also recommended that the election con- ducted October 6, 1966, be set aside and that a new runoff election be directed. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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 and brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommenda- tions 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 Recom- mended Order of the Trial Examiner and hereby or-' ders that the Respondent, Fairchild Camera & In- strument Corporation, Joplin, Missouri, its officers, agents, successors, and assigns, shall take the ac- tion set forth in the Trial Examiner's Recom- mended Order. IT IS FURTHER ORDERED that the runoff election held on October 6, 1966, among Respondent's em- ployees, be, and it hereby is, set aside and that Case The request for oral argument is denied inasmuch as the record, in- cluding the Respondent's exceptions and brief, adequately presents the is- sues and positions of the parties. 2 An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 17 within 7 days after the date of this Decision and Direction of Election. The Regional Director shall make the list available to all parties to the election. No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. Excelsior Underwear Inc., 156 NLRB 1236. TRIAL EXAMINER'S DECISION FANNIE M. BoYLS, Trial Examiner: Upon a charge filed by International Brotherhood of Electrical Workers, Local No. 95, AFL-CIO, herein called the Union, on or about October 12, 1966, a complaint was issued on March 17, 1967, alleging that Respondent, Fairchild Camera & Instrument Corporation, had engaged in cer- tain unfair labor practices in violation of Section 8(a)(1) of the Act. Respondent filed an answer denying that it had engaged in the unfair labor practices alleged. This complaint case, after being consolidated with a represen- tation case, 17-RC-5149, was heard before me in Joplin, Missouri, on June 1, 1967. The General Counsel and Respondent thereafter filed briefs, which I have carefully considered. Upon the entire record, the briefs, and from my obser- vation of the demeanor of the witnesses, I make the fol- lowing: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Delaware corporation, engaged in the manufacture, distribution, and sale of cameras, instru- ments, and allied equipment, at Joplin , Missouri. During the year 1966, which is a representative period, Respond- ent sold and shipped at and from its Joplin plant finished products valued in excess of $50,000 directly to customers located outside the State of Missouri. Re- spondent concedes , and I find, that it is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent's answer admits and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Setting and Issues At a representation election held on September 15, 1966, the Union received 117 votes, an intervening labor organization, International Association of Machinists and 169 NLRB No. 11 FAIRCHILD CAMERA & INSTRUMENT CORP. 91 Aerospace Workers, received 3 votes, and 114 em- ployees cast votes against representation. Since the results of the election were inconclusive , a runoff election was held on October 6, 1966. In the runoff election 103 employees voted for and 137 against the Union. In objec- tions to the election and in the complaint , it is alleged that Respondent, during the period between the two elections, called meetings of its employees for the purpose of hear- ing and adjusting employee grievances and promised its employees a paid sick leave plan, an object being to inter- fere with a free choice by its employees at the second representation election, and that Respondent thereby vio- lated Section 8(a)(1) of the Act. Whether Respondent's conduct in this respect was unlawful and constitutes grounds for setting aside the second election presents the principal issue in this case. It is alleged in the complaint that Respondent further violated Section 8(a)(I) of the Act by granting to its em- ployees a sick leave plan on December 19, 1966, during the pendency of the objections to the election. B. The Employee Meetings Conducted by Respondent Between the Dates of the First and the RunoffElections During the period between the first election on Sep- tember 15 and the runoff election on October 6, Respond- ent's industrial relations manager, Milton B. Johnson, held 10 or 12 meetings with groups of the production em- ployees. The first of these meetings was held on Sep- tember 20 and the last on October 3 or 4. Employees, in groups of 12 to 20 each, were told by their supervisors to go to Respondent's conference room and they were there invited by Johnson to air their grievances or complaints and ask any questions they might wish to ask. At one of the meetings held on September 20, Johnson opened the meeting by telling the employees that he felt there was unrest or unhappiness among some of them and that he would like to learn from them what they thought was wrong at the plant. He stated that "if there was anything or any trouble that he could help [them] with," he "would try to straighten it out." One of the complaints aired involved employee McGarrah who, at times, acted as a NASA instructor but when not instructing performed the same work as production workers. Some employees expressed the view that it was unfair to pay her a substan- tially higher rate of pay than that paid to production work- ers, which they conceded was warranted while she was instructing, at times when she was doing the same kind of production work as the other employees receiving sub- stantially less pay. Johnson asked for suggestions as to what the employees thought should be done about this matter. Various suggestions - such as that McGarrah be reclassified as a lead girl, that while not instructing she be put on some kind of nonproduction work at her higher rate of pay, or that the wages of the other production wor- kers be raised - were offered . Johnson promised to in- vestigate the matter and give it some further thought. Another matter about which employees asked at this meeting was a paid sick leave plan for the production workers. Some of them expressed the view that they should have such a plan. Johnson told the employees that the Company had put into effect a paid sick leave plan for office employees during the preceding year and, to his surprise, it had worked out satisfactorily , with no more absenteeism after than before the institution of the plan. Johnson said that the Company was working on the problem as it related to the production workers but had not as yet "come up with anything."1 Also at this meeting some employees raised a question about wage increases and Johnson explained that the Company , as it had done in previous years, was making a survey to determine whether wage increases were in order . He stated, how- ever, that he could not say what the outcome of the sur- vey might be.2 Still another employee at this September 20 meeting complained that employees had asked several times that a seniority list be posted and that nothing had been done about it. Following this meeting and prior to the runoff election a seniority list was posted.3 At one of the employee meetings held on October 3, a number of the same questions were raised as had been raised at the September 20 meeting just described. Ac- cording to the credited testimony of employee Noe, John- son explained to the employees that the meeting was just to take up their gripes or answer questions about com- pany policy and not to determine whether they should vote for or against the Union . Some of the employees asked about getting more money and Johnson replied that the Company was in the process of making a cost of living survey to ascertain whether a wage increase was war- ranted. Other employees were interested in knowing how the vacation schedule worked and about Respondent's seniority policy, and Johnson explained those matters to them. Many of those present at this meeting were new employees and Johnson told them that the answers to most of their questions could be obtained from reading the employees ' handbook which had been given to all em- ployees. In answer to a question by one employee about the chances of getting the parking lot paved , Johnson replied that the Company was in the process of expand- ing, that it had not decided in what direction it would go in building a new plant and that it did not want to pave the parking lot, and then tear part of it up for the new plant lo- cation. At a meeting held with another group of employees on October 3 , similar questions were raised. According to the credited testimony of employee Lewis, in response to a question by the employee as to why the production em- ployees could not have a paid sick leave plan like that ac- corded the office employees , Johnson replied that such a plan was being contemplated for the production workers. When an employee complained of the holes in the parking lot, Johnson stated that no plans had been made to im- prove it but suggested that it would help if employees would try to refrain from spinning the tires on their cars. As at the September 20 meeting, a question was raised as to the fairness of paying employee McGarrah a wage highter than that paid other production workers during the time when she was performing production work. Industrial Relations Manager Johnson testified that it was at the employees' request that he conducted these conferences and that all of the meetings "evolved around I It was not until December 19, subsequent to the runoff election, that Respondent announced the institution of a sick leave plan for the produc- tion workers. 2 It was in fact the policy of the Company to make an annual survey with respect to whether wage increases and fringe benefits should be granted. 3 The above findings concerning what took place at the meeting just described are based upon the undisputed and mutually corroborative testimony of employees Yust and Crossley 92 DECISIONS OF NATIONAL production, policy and safety problems ." He further testified that he started off the meetings with the an- nouncement that the employees were called together to "discuss any or answer any questions pertaining to these three areas , production, policy or safety," and that questioning regarding production problems took up most of the time. Johnson's testimony regarding these meetings was very vague and general and I do not credit it insofar as it is inconsistent with that of the employee witnesses. He could not name any employee who purportedly requested the conferences, explaining , "They went to their supervisors and asked them if they could have a con- ference" and "As a rule, they would go to their super- visor." None of the four employee witnesses who testified about these meetings themselves requested or knew of any other employee who had requested the meetings . Although Johnson had from time to time in the past met with individual employees or small groups about special problems, at their request , meetings with the em- ployees generally such as those here under consideration were infrequent. Johnson testified that the last such meetings were in late 1965 , to explain an insurance plan. The last such conference employee Lewis could re- member attending where employees were invited to air their grievances was in 1964 or 1965 just before an elec- tion initiated by a representation petition filed by the Machinists Union. Johnson was not a very candid witness . I doubt that any employee in fact requested a meeting to air employee grievances . But even if one or more employees did request a meeting, this would not have warranted John- son's action in calling the meetings with all employees, in- cluding those who had not requested meetings , during the critical period just preceding the runoff election to con- sider matters which normally would be discussed with a bargaining representative . I am convinced and find, under all the circumstances , that the meetings between Sep- tember 20 and October 4 were called by him for the pur- pose of learning from the production employees (who were in the unit which the Union sought to represent) what grievances or complaints they had which might cause them to want a union as their representative and of adjusting or causing the employees to believe he would adjust such complaints , his object being to bring about a defeat of the Union in the runoff election . The mere act of an employer in soliciting employees to air their grievances is, without more , sufficient to warrant an in- ference by the employees that their employer intends to try to -do something about their grievances. Johnson, how- ever, expressly told some of the employees that the pur- pose of the meetings was to learn about any problem an employee might have and "try to straighten it out." Although in his replies to employee questions concerning their various complaints, Johnson sought to avoid making express promises of benefits, his responses were in most instances clearly intended to leave the employees with the impression that their grievances would be satisfied. This was especially true with respect to his handling of the paid sick leave request. Moreover, he, in fact, did adjust one of the grievances - that relating to the nonposting of a seniority list - fol- lowing one of the meetings and prior to the runoff elec- tion. This matter was apparently of sufficient importance in the minds of the employees to have been the subject of a complaint upon several previous occasions and the sub- ject of Respondent's seniority policy was brought up at more than one of the conferences with the employees LABOR RELATIONS BOARD conducted shortly before the runoff election. Although many of the employees may have known that by inquiring in Respondent's personnel office about their relative seniority standing, they could have been shown the list there, it is natural that individual employees might be reluctant to expose themselves to special attention in that respect, especially at a time when, uninformed as to their relative seniority, they would not know whether they had a justified grievance. It is found that Resondent, in conducting the meeting with groups of employees to have them air their grievances, in posting the seniority list of its production workers and in making veiled promises to grant them a paid sick leave plan and other benefits pursuant to the complaints which Respondent had invited its employees to air, was motivated by a desire to bring about the defeat of the Union in the runoff election and that such conduct constituted interference with the employees' organiza- tional rights within the meaning of Section 8(a)(1) of the Act. N.L.R.B. v. Exchange Parts Company, 375 U.S. 405. C. The Grant of a Paid Sick Leave Plan to Production Workers Subsequent to the Runoff Election It is undisputed that on December 19, 1966, more than 2 months after the date of the runoff election but while objections to the election were still pending, Respondent announced to its production workers that it was granting them a paid sick leave plan which, together with a general wage increase, would be put into effect on January 1, 1967. It is alleged that the announcement of the paid sick leave plan was an unlawful interference with the em- ployees' organizational rights. I do not agree. The record shows that as a result of surveys which it conducts each year as to what wage increases and fringe benefits are warranted, Respondent has granted a general wage in- crease each year since it opened its plant in 1961 and has added fringe benefits every year except in 1963. It is a fair inference therefore that, regardless of whether any union was then seeking to represent its production work- ers, Respondent would have granted the paid sick leave or some other fringe benefits to its employees in 1966. In- deed, a failure of Respondent to follow its established pol- icy in this regard because of the pendency of the representation question might itself have subjected Respondent to an unfair labor practice charge. Dan Howard Manufacturing Co., 158 NLRB 805, 813. CONCLUSIONS OF LAW 1. By interfering with its employees in the exercise of the rights guaranteed in Section 7 of the Act, as set forth above, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 2. By its conduct, as set forth above , Respondent has interfered with the exercise of a free and untrammeled choice in the runoff election held on October 6, 1966. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, my Recommended Order will require that Respondent cease and desist therefrom and take the affirmative action customarily required to remedy unfair labor practices of the nature found. FAIRCHILD CAMERA & INSTRUMENT CORP. Having found that Respondent's said, conduct inter- fered with the exercise of a free and untrammeled choice in the runoff election, my Recommended Order will pro- vide that said election be set aside and that a new election be directed. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law and upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is hereby ordered that Respondent, Fairchild Camera & Instrument Corporation, its officers, agents, successors and assigns, shall: 1. Cease and desist from: (a) Conducting meetings with groups of its employees for the purpose of hearing and adjusting employee grievances, and promising or granting them economic benefits or improved working conditions, in order to in- terfere with their choice of a bargaining representative, or as an inducement to reject and refrain from activities in support of International Brotherhood of Electrical Work- ers, Local No. 95, AFL-CIO, or any other labor or- ganization; provided, however, that nothing in this Order shall be construed as requiring Respondent to vary or abandon any economic benefit or other terms or condi- tions of employment which it has heretofore established. (b) In any like or related manner interfering with its employees in the exercise of their right to self organiza- tion, to form labor organizations, to join or assist Interna- tional Brotherhood of Electrical Workers, Local No. 95, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities. 2. Take the following affirmative action designed to ef- fecttiate the policies of the Act: (a) Post at its Joplin, Missouri, plant, copies of the at- tached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 17, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.5 IT IS FURTHER ORDERED that the runoff election held in Case 17-RC-5149 on October 6, 1966, be, and the same is, set aside and that the case be remanded to the aforesaid Regional Director for the purpose of conduct- ing a new runoff election at such time as he deems that 93 circumstances permit the free choice of a bargaining representative. 4 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " 5 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Re- spondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended O er of a Trial Ex- aminer of the National Labor Rel boons Board and in order to effectuate the policies of/ the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL NOT conduct meetings with groups of our employees for the purpose of hearing and adjusting their grievances, or promise or grant them economic benefits or improved working conditions, in order to discourage our employees from voting for, joining, or supporting International Brotherhood of Electrical Workers, Local No. 95, AFL-CIO, or any other union. This does not mean, however, that we will remove from our bulletin boards the seniority list which we posted or that we will take from you any benefit we have granted you even though these mat- ters were mentioned by you at the meetings at which we heard your grievances. WE WILL NOT in any like or related manner inter- fere with our employees in the exercise of their or- ganizational rights guaranteed under the National Labor Relations Act. FAIRCHILD CAMERA & IN- STRUMENT CORPORATION (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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 610 Federal Building, 601 E. 12th Street, Kansas City, Missouri 64106, Telephone FR4-5181.