The Louis Allis Co.

THE LOUIS ALLIS COMPANY 7 The Louis Allis Company (Division of Litton Indus- tries, Inc.) and James O. Dodson. Case 25-CA-3865 September 1, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On March 16, 1971, Trial Examiner Laurence A. Knapp issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in certain unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision, a supporting brief, and an answering brief, and the Respondent filed cross-exceptions to the Trial Examiner's Decision and an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National 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, the cross-excep- tions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations 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 recommend- ed Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LAURENCE A. KNAPP, Trial Examiner: I heard this case in Evansville, Indiana, on October 15 and 16, 1970, following pretrial procedures in compliance with the National Labor i Following the filing of a charge on July 20, 1970, the complaint issued on August 20, 1970, and Respondent answered the complaint on August 20, 1970, denying commission of the unfair labor practices alleged in the complaint. 2 The Board's decision in the first election proceeding states that prior to the first election in 1969 both "the Union and the Employer engaged in vigorous campaigns" and that the Union "distributed or mailed about 40 items of campaign literature ." 182 NLRB No. 67, G C. Exh 4. The record Relations Act, as amended (herein referred to as khe "Act ')1 Following the hearing, briefs were filed by coµ el for the General Counsel and for Respondent, the oily parties who appeared or were represented at the hearing„ FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The complaint alleges, the answer admits, and I find that Respondent Is engaged at a plant' in Evansville, Indiana5 in the manufacture and sale of electrical motors, and that in the year preceding issuance of the complaint Respondent received at this plant directly from States other than Indiana, goods and materials valued in excess of $50,000. Respondent is an employer engaged in commerce and in activities affecting commerce within the meaning' of Sections 2(6) and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES The complaint charges that in June 1970 Respondent granted its employees certain benefits and promised them "possible" additional ones for the purpose of influencing them not to support the Union named below in an election petitioned fair by that Union. On the basis of my following findings, I conclude that the General Counsel has failed to establish these charges by a preponderance of the evidence and will recommend that the complaint be dismissed. After some preliminary planning and hiring of employ- ees, Respondent began production operations at the Evansville plant, a new facility, in mid-January, 1968. Presumably, its employee complement gradually expanded; in any case, by January 1970 it employed some 350-375 employees and by June of 1970 this number had increased to something in excess of 425. Since the time the plant went into operation, the International Union of -Electrical, Radio and, Machine Workers of America (IUE-AFL-CIO-CLC), herein called the Union, has engaged in a continuous and vigorous campaign to organize and become the collective-bargaitling representative of the production and maintenance employ- ees at this plant, through solicitation of union designation cards, meetings, distribution of handbills and leaflets, creation of employee organizing committees; and petitions for election in 1969 and 1970.2 A consent election conducted by the Board in March 1969 was lost by the Union and this result was certified by the Board in May 1970 after the consideration of objections filed by the Union. In the meantime, in March 1970, the Union filed a petition for another election, and a few days prior to the filing of the charge herein, the Regional Director, had directed that an election be held at a date to be later announced by him. The Regional Director subsequently issued the complaint herein, the essence, of which is, as indicates equally vigorous efforts by the Union thereafter and particularly in the period immediately preceding and following the filing in March 1970 of the Union's second petition for an election . See G. C. Exh, 7, 8, and 9, and Resp Exh. 24, 25, 26, 28, (A), (B), (C), (D), ( E), and (F), and 29. On Respondent's part, there are in evidence communications from it_to the employees countering union literature and claims during this second election campaign stage See G. C. Exh. 10, 11, and 12. 193 NLRB No. 8 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD previously stated, that Respondent, by granting its employees certain benefits and promising others while this election petition was pending, sought to influence them against supporting the Union in the prospective further election 3 Just as the Union kept up its organizing campaign throughout the 1968-1970 period involved in this case, throughout the same period and at frequent intervals, Respondent granted its employees improvements in wages, benefits, and other conditions of employment. These included several general wage increases, reductions in wage-increase or within job advancement intervals, im- provements in vacation, holiday, and health insurance programs, and a wide variety of other steps for the benefit, safety, and convenience of the employees. In making such improvements, Respondent acted in response to two main considerations. First, Respondent pursued the general policy, repeatedly made known to the employees, of keeping its employment standards generally on a par with area or community standards (that is, affording its employees as good employment terms as they could obtain elsewhere in the area).4 To implement this general policy, Respondent pursued the practice of making from time to time periodic surveys of employment terms in effect or in prospect among comparable employers in the Evansville area, and, on the basis of information obtained in these surveys and corresponding recommendations of the personnel managers who conducted them, granting wage or benefit improvements .5 Second, Respondent on occasion took into account the wishes of its employees. Examples of record are employees' responses to a questionnaire and in related employee interviews carried out in the fall of 1968, and an employee petition of November 1969, signed by some 112 employees, seeking an improvement in hospitali- zation coverage.6 In putting into effect improvements so stimulated, Respondent did so by means of announcements at general employee meetings in some instances 7, through bulletin board notices in others, and on occasion by written communications to the employees . At one general meeting, 3 In these circumstances, one might expect that a charge alleging such pre-election interference had been filed by the Union . But the charge filed is of different import (that is, that Respondent dominated and interfered with the formation and administration of a labor organization and interrogated employees regarding their union activities-allegations not appearing in the complaint), and it was not filed by the Union (or any employee.) Rather it was filed by James O. Dodson, who is described in the complaint (but not in the charge he filed ) as "Attorney." If this designation is intended to mean that Mr. Dodson , a St. Louis attorney, filed the charge in some representative capacity , there was no corresponding clarification at the hearing, at which Mr. Dodson did not appear. (At the outset of the hearing, counsel for the General Counsel announced that he had received a telephone call from Mr. Dodson that morning in which Mr. Dodson had requested him to inform the Trial Examiner that he, Mr. Dodson , would be unable to attend the hearing due to a conflict of engagements and because his earlier request for a postponement of the hearing, see G. C. Exh. 2(a) and (b), had been denied by the Regional Director). At the time the complaint herein issued, the Regional Director had fixed August 26 as the date of the election and in that election the Union received a large majority of the votes cast. Respondent filed objections to this election, which had not been disposed of at the time of the hearing herein. 4 See Resp. Exh. 5, 14, 23 ; G. C. Exh. 15. 8 Two such surveys were made in 1%7, in anticipation of the beginning of productions, and further such surveys, of greater or lesser scope, were made from time-to-time in 1968, 1%9, and 1970. See, for example, Resp. in November 1969, Plant Manager Onyett stated that the area wage surveys, theretofore not made at precisely fixed intervals, would be made on a twice-a-year basis, i.e., at 6 month intervals. Since such a survey had been made in November 1969, this meant that the succeeding surveys would be made in May and November of the following years .8 In late May and early June of 1970, Personnel Manager Tate conducted the semiannual wage and benefit survey due to be made at that time, submitted a corresponding report to Plant Manager Onyett, and had a corresponding discussion with Onyett. In his written report, Tate stated Respondent's wage rates were competitive with the area but that all the other companies he had surveyed provided nine paid holidays while Respondent provided only eight, He likewise pointed these matters out in his discussion with Onyett, and, in addition, informed Onyett that it was not the practice in the area to grant production employees with 1 year's service 2 weeks' (that is, 10 working days) vacation. Tate made this latter report to Onyett because he had received in late April a petition, signed by some 175 employees; seeking for production employees the same period of vacation allowed to office clerical employees with 1 year's service, namely, 2 weeks. Tate informed Onyett of this petition and of related meetings he had with a group of the signing employees .9 At a meeting or meetings of all production employees held on June 25, Plant Manager Onyett addressed the employees on a variety of subjects pertaining to plant operation, personnel, and employment matters.'° Toward the end of his remarks, Onyett announced improvements in the form bf one additional holiday and an increase' in the vacation period of production employees having 1 year's service to 10 days from the previous level of 7 days." In explaining these increased benefits Onyett, after referring to his earlier "commitment" that Respondent would keep itself competitive in the area of wages and benefits and to the semiannual survey procedure , stated: And now six months later, we made another survey, to see where we were in relation to the Evansville area, Exh. 1, 2, 3, 4, 13, 20, and 21. 8 See Resp. Exh. 5-10, and 22. 7 General employee meetings at which the plant manager reviewed employment and business conditions were held about every 3 months. a At a general meeting of the employees held in June 1970 , Onyett announced that because other Evansville employers were following a pattern of making wage changes in October, he had directed that Respondent's semiannual surveys be made in October and April of each year. See infra. 9 This petition was the idea of employee Lillie Lemos, who caused it to be prepared and circulated among the production employees after casually learning that the office employees received the more favorable vacation treatment. Following her submission of the petition to Tate, he held two meetings with a group of employee signers of the petition (largely designated by Lemos but, apparently, with one or two signers designated by Tate to provide broader departmental representation). In the course of these meetings, Tate told the employees' group that he would survey the matter, that it was his impression that I week's vacation for production employees after but I years' service was not area practice, and that he could make no commitment on the matter . Tate gave the employees no final answer because the matter was dealt with by Onyett at the June 25 employee meetings. 10 For the full text of Onyett's remarks see G. C. Exh. 15. ii Although not referred to by Onyett in his remarks, there was a pro rata increase in vacation allowances for employees having less than I year's service. THE LOUIS ALLIS COMPANY 9 and to determine whatever changes that might be indicated to keep ourselves in line with other employers in our Evansville area. We found that we have recently fallen behind area practice in the number of paid holidays per year. Accordingly, I am pleased to tell you here and now that we are adding one more paid holiday during 1970. This holiday will be the Friday after Thanksgiving... . Another improvement that we are making is in our vacation policy, this change is not a direct result of our survey. I did a lot of soul-searching on this one, and therefore to balance the fringe package both internally and externally I have reached the following dec. [decision.] It is very common for office people to have benefit plans that differ from those provided production employees. But there is something about some of these differences that I personally cannot agree with. It sounds like first class citizens and second class citizens and this is not what I want at Evansville. We are changing our vacation policy as of this very minute, and your vacation policy is now exactly the same as that of our office people. All employees with one year of service will be eligible for 10 days vacation this year. The change is way ahead of local practice among Evansville companies. Some differences will always remain, however, because of the differences that exist in the nature of the work, working conditions, pay, and so on, between clerical and production people, and this change brings into proper balance the relationship between pay and benefits of our production and clerical people. Onyett went on to indicate that since the survey showed that Respondent's wage rates were in line with comparable jobs elsewhere in the area, there would be no wage rate improvements at this time. He also stated that having learned that quite a number of Evansville employers made wage changes about October 1 of each year, I have directed Harry Tate to re-schedule the six months surveys to October and April of each year. We will make changes that are then indicated to keep your wages and benefits in line. If Respondent had granted these improvements out of the blue, that is, without precedent in prior practice or other acceptable justification, an inference might reasonably be drawn that they were designed to induce the employees to refrain from supporting the Union . But Respondent's grant of the additional holiday was in line with Respondent's benefit adjustment policy and practice (or, at least, was not a demonstrable departure from that policy and practice.) Of course, as conceded by Onyett, the increased vacation was not stimulated by a survey or otherwise justified on the basis of keeping up with prevailing or dominant area practice. But it was a change petitioned for by a very i2 With respect to the additional holiday, counsel for the General Counsel also adverts to the fact that half the other companies surveyed in February 1969 then granted their production employees 9 paid holidays and on the basis argues that Respondent should have granted the additional holiday at that time if its guiding policy was to remain competitive. But there is nothing in the record to show that Respondent's policy was to equal or exceed other area employers in every term of employment, or that it consistently regarded the practice of half the employers surveyed as the telling number , Rather, the record as a whole substantial proportion, about 40 percent, of Respondent's production employees , and hence cannot be regarded as something dreamed up by Respondent. Moreover, it was not granted in a manner in conflict with Respondent's prior practices; on the contrary, there was a precedent for this employee-stimulation mode of granting improvements in the form of the similar employee petition for hospitaliza- tion-cost improvement of November 1969, some 6 months previously. In these circumstances , the General Counsel had the burden of adducing persuasive evidence that Respondent's actions were, in fact, marked with an antiunion purpose. In this regard, counsel for the General Counsel argues that such an intent is disclosed by: (1) Onyett's statements at the end of his speech announcing the changes, to the effect that the Union might either complain about or seek unjustifi- ably to take credit for the improvements and might also file corresponding charges with the Board ; (2) a statement read by Respondent's foremen to employees prior to the March 1969 election which the Board considered in its decision overruling the Union's objections to that election; and (3) three written communications by Respondent to its employees (in January, March, and April 1970) relative to the Union's new election campaign . But the portion of Onyett's remarks referred to plainly do not manifest an antiunion intent, and any such intent is quite in conflict with the specific explanations elsewhere given in his remarks; the Board specificially held in its election decision that the statement of the foremen was within "the bounds of permissible persuasion"; and as to Respondent's communications pointed to by counsel for the General Counsel, two of them plainly were responsive to and designed to correct union claims in its new election campaign that Respondent was using "stalling" tactics in the first election proceeding, and the third (and a portion of one of the others) was devoted to explaining to the employees that the Union's authorization cards were in such a form that they could be used to obtain recognition without an election. Obviously, these communications of Respondent cannot be said to evidence the kind of antiunion intent behind the benefit improvements an- nounced in late June which the General Counsel is required to establish.12 In the circumstances, I conclude that the General Counsel has failed to meet the burden upon him to establish that Respondent granted the June 1970 improvements for the purpose of inducing the employees not to support the Union. The complaint also alleges that in his June speech Onyett "promised possible additional benefits as a result of future surveys." However, what Onyett said, as previously set forth, was merely a reiteration of a policy Respondent had followed and declared all along, namely, that it would suggests that what Respondent sought to do was offer employment conditions which, by and large, were as attractive as those available to employees at generally comparable businesses in the area, Counsel also adverts to the fact that Respondent had operated at a loss during the first half of 1970, but there is nothing in the record to suggest that such a factor entered into any of Respondent's decisions relative to wage or benefit improvements at any time subsequent to its opening of operations. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD continue to make periodic surveys and make "changes" so "indicated to keep your wages and benefits in line." Certainly, the restatement of this familiar theme was no unlawful promise of future benefits. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and in activities affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent has not engaged in any of the unfair labor practices alleged in the complaint. Upon the foregoing findings and conclusions and the entire record in the case, I hereby issue, pursuant to Section 10(c) of the Act, the following recommended: ORDER The complaint herein is hereby dismissed in its entirety.