Primco Casting Corp.

244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Primco Casting Corporation and International Union of District 50, United Mine Workers of America. Case 2-RC-14885 January 27, 1969 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA Upon a petition duly filed on April 8, 1968 by the Petitioner, and pursuant to a Stipulation for Certification upon Consent Election entered into by the above-named parties and United Optical Workers Union, Local 408, I.U.E., AFL-CIO, Intervenor, and approved on April 16, 1968, by the Acting Regional Director for Region 2, an election by secret ballot was conducted under the supervision of the Regional Director for Region 2 on April 26, 1968. Upon the conclusion of the election, a tally of ballots was furnished the parties, showing that of approximately 116 eligible voters, 109 ballots had been cast, 51 of which were for Petitioner, 52 were for Intervenor, 3 were challenged, and 3 were void. The challenged ballots were sufficient in number to affect the results of the election. The Petitioner timely filed objections to the election. Pursuant to the National Labor Relations Board Rules and Regulations, the Regional Director conducted an investigation, and on July 11, 1968, issued and duly served upon the parties his Report and Recommendations on Objections to Election and Challenged Ballots. The Regional Director recommended that the challenges to the 3 ballots be overruled, and that Objections 1 through 11, and 13, be overruled. He also recommended that Objection 12 be sustained, the election set aside, and that a second election be ordered, subject to the qualification, inter alia, that in the event the revised tally showed that the Petitioner received a majority, the Petitioner was to be certified. The Intervenor timely filed and served its exceptions to the Regional Director's recommendation that Objection 12 be sustained and that the election be set aside, and a brief in support of its exceptions. The Board, in an Order dated August 16, 1968, adopted, pro forma, the recommendations of the Regional Director that Objections 1 through 11, and 13 be overruled; and that the challenges to the 3 ballots be overruled, a revised tally of ballots be issued, and, if the Petitioner received a majority, that the Petitioner be certified. The Board deferred consideration of the remaining recommendations of the Regional Director pending the opening of the 3 challenged ballots and the issuance of a revised tally of ballots. On August 23, 1968, a revised tally of ballots was served upon the parties, showing that of 106 valid ballots counted, 52 were for the Petitioner and 54 for the Intervenor. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel. 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 Petitioner and the Intervenor are labor organizations claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production, maintenance, shipping and receiving employees employed by the Employer; but excluding all office clericals, salesmen, watchmen, guards and supervisors as defined in the Act. 5. The Board has considered the Regional Director's Report, the recommendations, and the entire record in this case, including the exceptions and brief, and makes the following findings concerning Objection 12: The Regional Director's investigation revealed the following undisputed facts: The Intervenor has represented the employees in question for many years. During this time a half-day's pay has been deducted by the Employer, in April and June, from each employee's pay through a checkoff authorization, for transmittal to the Intervenor's strike fund. For about 6 years employees have complained about this assessment. In early April 1968, the employees asked for a meeting with the Intervenor to discuss the issue. On April 8, 1968, the Petitioner filed the petition herein. On April 10, 1968, a representative of the Intervenor met with the employees in the shop. Upon hearing their displeasure with the checkoff assessment, the representative suggested that a committee of employees be formed to meet with him on the issue. A few days later 6 or 7 employees met with the Intervenor's representative and urged that the assessments be discontinued and that the last half-day's assessment, recently deducted in April, be returned to the employees. The representative informed the committee that, because of their strong opposition, the assessment would no longer be taken from the employees' wages, and the recent assessment would be returned to them. On April 19, 1968, a letter was sent by the representative to all employees informing them of the Intervenor's decision, and enclosing a check in the amount of a half-day's pay to cover the last i 174 NLRB No. 44 PRIMCO CASTING CORP. 245 deduction. The election was conducted on April 26, 1968. Without ruling on the cancellation of future assessments, the Regional Director recommended that the objection be sustained on the ground that the return of the April assessment was a tangible economic benefit to the employees, motivated by the Petitioner's filing of its petition, which impaired employee free choice in the election. We do not agree. The refund of the April assessment cannot properly be viewed as a bestowal of an economic benefit in the nature of a gift or bribe, comparable to the insurance policy found objectionable in Wagner Electric Corporation, Chatham Division, 167 NLRB No. 75, or the free gift certificate found objectionable in General Cable Corporation, 170 NLRB No. 172, the two cases on which the Regional Director relies. The refund resulted from and was but an incident to the Intervenor's change of policy with regard to the maintenance of a strike fund for the benefit of employees in the unit - a change of policy which obviously decreased one form of benefit the employees could expect from continued representation by the Intervenor. Thus the refund, limited to the recently collected April assessment, did not in any real sense constitute a gift or added economic benefit to employees. In practical effect, it amounted to no more than a rebate of an unused premium, the return to employees of money which they had themselves earned and which had been deducted from their wages to prepay the cost of the now discontinued strike fund protection. The situation presented in this case is thus not significantly different from what it would have been had the Intervenor's policy change with respect to the strike fund immediately preceded rather than immediately followed the April checkoff, thereby obviating the need for a cash refund. Unlike a cash gift or a bribe which can serve only to corrupt employees in their choice, the discontinuance of the strike fund had a legitimate relationship to the suitability - from the employees' point of view - of the Intervenor as a bargaining representative. It has a direct bearing on the kind and quality of services the Intervenor might be expected to provide and on the cost to employees for such services - considerations that are clearly relevant in the selection of a bargaining agent. Moveover, as the refund was not conditioned on the outcome of the election, and had no other strings attached, the employees, members and non-members alike, were left entirely free to evaluate the pros and cons of the Intervenor's action in determining whether to retain it as their bargaining agent. We are unable to conclude in these circumstances that the Intervenor's questioned conduct impaired a free and rational choice by employees in the election. Nor do we believe that the timing of the Intervenor's action requires a different conclusion. We assume for purposes of this decision that the Intervenor, in responding as it did to employees' complaint about its strike fund policy, was motivated in substantial part by a desire to improve its standing with employees in the forthcoming election. But we do not think a desire to make oneself more attractive as a candidate for election, in the case of a union representation election any more than in the case of a political election, is in itself a valid reason for condemning as objectionable an otherwise permissible change in position, particularly where, as here, the change is made in response to legitimate employee demands. To hold otherwise would mean in effect that once an incumbent union's status had been challenged, it must freeze its existing practices and policies until the representation question has been resolved, and that it may not, during that period, take measures to rectify grievances against it that have been a cause of employee discontent. We do not think that this makes good sense or good law. Moreover, we do not regard the Intervenor's action here in question as analogous in principle to that of an employer who, with a purpose to defeat a union, grants to employees a benefit he would not normally have granted. It appears plain that the two situations are materially different, even if we are to assume that Intervenor's policy change and consequent refund constituted an economic benefit to employees. The vice inherent in an employer's grant of benefit was identified by the Supreme Court in N.L.R.B. v. Exchange Parts Co., 375 U.S. 405, as follows: The danger inherent in well-timed increases in benefits is the suggestion of a fist inside the velvet glove. Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged. This coercive element, the presence of an implied threat of future reprisal cannot properly be found to be present where a union takes action such as the Intervenor took here to improve its agency relationship with employees. A union's attempt to make itself more attractive to employees can scarcely be viewed by the employees as a warning that, if the union is not obliged, the employees may be made to suffer later. For, as the employees are aware, if the union is not obliged - that is, if it loses the election - it can have no effect on the employees in the future whatsoever. No element of coercion is therefore present.' For the foregoing reasons, we conclude that the Intervenor's conduct, which is the subject of Objection 12, neither imposed a constraint upon employees nor otherwise interfered with their freedom of choice in the election. Accordingly, we 'Cf. DIT-MCO, 163 NLRB No. 147; Amalgamated Clothing Workers of America, AFL-CIO v N L.R.B., 345 F.2d 264 (C.A. 2) 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shall overrule that objection. As the Intervenor has secured a majority of the valid votes cast in the election, we shall certify it as the collective-bargaining representative of the employees in the appropriate unit. CERTIFICATION OF REPRESENTATIVE It is hereby certified that United Optical Workers Union, Local 408, I.U.E., AFL-CIO, has been designated and selected by a majority of the employees in the unit found appropriate as their representative for the purposes of collective bargaining, and that pursuant to Section 9(a) of the Act, the said labor organization is the exclusive bargaining agent for all such employees for the purposes of collective bargaining with resect to rates of pay, wages, hours of employment, and other terms and conditions of employment. MEMBER ZAGORIA, dissenting: I would adopt the Regional Director's recommendation and set aside the election, because the precipitate distribution of money to employees 7 days before the election constituted "a tangible and somewhat unusual economic benefit" which unfairly induced employees to vote for the Intervenor and thus impaired employee free choice in the election.' I disagree with my colleagues that the return of the strike assessment was not a bestowal of an economic benefit but was merely "an incident to the Intervenor's change of policy," and thus did not impair reasoned free choice in the election. For 6 years the Intervenor turned a deaf ear to the complaints of these employees about the biyearly cut in their take-home pay for the benefit of the Intervenor's strike fund. Then, 2 days after District 50 petitioned for a Board election, the Intervenor suddenly became responsive to the complaints, and within record time placed a check for a half-day's pay in the hands of each employee 1 week before the election was held. There is no doubt in my mind that each recipient of a check considered it an unexpected, immediate, and substantial economic benefit. Although to others there may be real advantages to a strike fund, these employees had consistently voiced their preference for cash in hand and had been unable to achieve it. I agree with my colleagues that an incumbent union is not required to freeze its existing practices and policies until a representation question has been resolved. Thus, the Intervenor's announcement that it would discontinue future strike fund assessments was a fair and reasonable response to legitimate employee complaints. But I cannot agree that the Intervenor's presentation of a half-day's pay in addition was the type of conduct which left the employees entirely free to make a reasoned choice between the two unions. In view of the 6 years of helplessness on the part of the employees in the face of the Intervenor's refusal to discontinue the assessments, I am forced to conclude that the receipt of cash such a short time before an election, by its very nature precluded rather than encouraged reasoned employee consideration of the Intervenor's capacity and qualifications effectively to represent the employees' interests. 'Cf. Wagner Electric Corporation , Chatam Division, 167 NLRB No 75; General Cable Corporation , 170 NLRB No. 172. Compare DIT-MCO, Incorporated. supra.