Plastronics, Inc.

PLASTRONICS, INC. Plastronics, Inc. and District No. 10, International Association of Machinists and Aerospace Workers, AFL-CIO Petitioner. Case 30-RC-3030 November 1, 1977 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Pursuant to a Stipulation for Certification Upon Consent Election, a secret-ballot election was con- ducted on March 30, 1977,' among the employees in the stipulated unit.2 The tally of ballots furnished the parties showed that of approximately 229 eligible voters, 81 cast ballots for, and 125 cast ballots against, the Petitioner. There were 10 challenged ballots which were insufficient to affect the results of the election. On April 5 and 13, Petitioner filed timely objec- tions to conduct affecting the results of the election. Following a preliminary investigation of the objec- tions, the Acting Regional Director, on April 13, issued a notice of hearing on objections to conduct affecting the results of the election. A hearing was conducted on May 17 through May 20. On June 24, the Hearing Officer issued his Report on Objections in which he recommended that Petitioner's objections be overruled in their entirety. Petitioner has filed timely exceptions to the Hearing Officer's report and a supporting brief, and the Employer has filed 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 authority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. The Board has considered the Hearing Officer's report and the exceptions and briefs and hereby adopts the Hearing Officer's findings, conclusions, and recommendations, only to the extent consistent herewith.3 In Objection 12, Petitioner contends that the Employer's agents interfered with the election by threatening to take away existing employee benefits and to bargain from scratch. We agree. Employer's President, J. L. Clark, made a speech to all employees 8 days before the election. The speech was given five times to small departmental groups of All dates herein are 1977. 2 All production and maintenance employees employed by the Employer at its 407 East Michigan Street, Milwaukee, Wisconsin, location; excluding all office clerical employees, engineenng employees, professional employees. 233 NLRB No. 23 employees in the Employer's lunchroom. Clark read the prepared speech from a podium. The speech was supplemented, however, by a number of slide transparencies which were projected as visual aids. An examination of the text of Clark's speech indicates that at one point he said, "All present benefits are negotiable and could go up or down. The law contains no guarantee as you can see from this slide." The transparency projected at this point indicates in bold letters: "Bargaining Beginning Point: I. wages - federal minimum $2.30 per hour; 2. No paid holidays; 3. No paid vacations; 4. No medical insurance; 5. No life insurance; 6. No pension plan; 7. No savings plan." At a later point, the text of Clark's speech reads: "Here's what you may experience if you bring in a union." Then Clark projected another transparency which read in part: " HERE'S WHAT YOU CAN EXPECT FROM A UNION: 1. Begin from scratch at the bargaining table such as uncertain wages and uncertain fringes." Employee Chad Huffman testified Clark stated in his speech that if the Union "got in, they [the employees] would start from zero-no paid vacation, no paid holiday, absolutely nothing" and wages would start at $2.30 per hour. Employee Kenneth Paradowski testified Clark said during the speech that if the Union "got in" the employees would lose benefits and wages would be $2.30 per hour. Employee Theresa Perkins corroborated the testimo- ny of Huffman and Paradowski. Director of Employ- ee Relations D. C. Newman testified he followed his copy of the text of Clark's speech while Clark delivered it and Clark did not deviate therefrom. Clark did not testify. In an earlier incident Supervisor Vic Schaefer called a departmental meeting of certain employees to explain the Employer's creation of a rumor control center. At the end of his explanation, Schaefer opened up the meeting for questions. Employee Theresa Perkins asked Schaefer why the employees could not receive a rate other than the base pay of $2.30 for downtime. According to Perkins, Schaefer replied that, if the Union won, the employees would end up with nothing for downtime. Several employ- ees challenged his statement and he subsequently "backed off." Assistant Supervisor Sue Ann Whitcomb, who also attended the meeting, testified Schaefer replied that "the Company was not legally required to give anything for downtime and the Company would make no policy changes during the campaign." guards and supervisors as defined in the Act, and all other employees. a In the absence of exceptions thereto the Board adopts. pro forma, the Hearing Officer's recommendation that Petitioner's Objections 1-11 and 13- 17 be overruled. 155 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to Whitcomb, Schaefer also said that, if the Union won, negotiations would start from zero and the employees would not even necessarily get $2.30 for downtime. He added that the Union could not promise them anything and all negotiations would start from zero. Depending upon the surrounding circumstances, an employer which indicates that collective bargain- ing "begins from scratch" or "starts at zero" or "starts with a blank page" may or may not be engaging in objectionable conduct. Saunders Leasing System, Inc., 204 NLRB 448, 454 (1973); Stumpf Motor Company, Inc., 208 NLRB 431, 432 (1974). 4 Such statements are objectionable when, in context, they effectively threaten employees with the loss of existing benefits and leave them with the impression that what they may ultimately receive depends in large measure upon what the Union can induce the employer to restore. On the other hand, such statements are not objectionable when additional communication to the employees dispels any impli- cation that wages and/or benefits will be reduced during the course of bargaining and establishes that any reduction in wages or benefits will occur only as a result of the normal give and take of collective bargaining. White Stag Mfg. Company, 219 NLRB 1246, 1246-51 (1975) (Member Fanning dissenting); Computer Peripherals, Inc., 215 NLRB 293, 293-294 (1974) (Member Fanning dissenting); C & K Coal Company, 195 NLRB 1038, 1038-39 (1972). The totality of all the circumstances must be viewed to determine the effect of the statements on the employees. There can be no doubt that Clark and Schaefer conveyed the impression that the employees would lose their existing benefits during the course of negotiations. While the text of Clark's speech indicated that all benefits are negotiable, the supple- mental transparencies established unequivocally that bargaining would begin "from scratch" with Federal minimum wages of $2.30 per hour and all present benefits would be lost-no paid holidays, no paid vacations, no medical insurance, no life insurance, no pension plan, and no savings plan. Schaefer's earlier statements at the departmental meeting conveyed a similar impression. He indicated that the employees would lose existing benefits because "negotiations would start from zero" and the employees would not (or not necessarily) even get $2.30 per hour for downtime. In sum, we find the Employer interfered with the election by threatening the employees with the loss of 4 Cf. Textron, Inc. (Talon Division), 199 NLRB 131, 133-135, 149 (1972). and cases cited therein for analogous violations of the law in the context of unfair labor practice proceedings. I (Excelsior footnote omitted from publication.) existing wages and benefits if the Petitioner won the election, Saunders Leasing System, supra; Stumpf Motor Company, supra. Accordingly, we shall sustain Petitioner's Objection 12, set aside the election, and direct a second election. ORDER It is hereby ordered that Petitioner's Objection 12 be sustained, the election set aside, and a new election be held. IT IS FURTHER ORDERED that Case 30-RC-3030 be, and it hereby is, remanded to the Regional Director for Region 30 for the purpose of conducting a new election. [Direction of Second Election 5 omitted from publication.] MEMBER MURPHY, dissenting: Unlike my colleagues, I would adopt the Hearing Officer's report in its entirety. For the reasons thereto fully and clearly set forth, I would reject the objections to the election, including Objection 12,6 and would certify the results. 7 APPENDIX Objection No. 12: In this objection, Petitioner objects to statements made to employees by Messrs. Clark and Newman on about March 22 and 1, respectively. The testimony disclosed that three campaign speeches were made during the election campaign by the Employer. One speech by Clark delivered prior to the filing of the petition was not considered herein. The Employer provided texts of the two remaining speeches (Employer Exhibits 22 and 23), which, it main- tains, were approved by counsel herein prior to their presentation. The objection, which is subdivided into sections (a) through (j), alleges that the speeches contained threats, promises of benefits and material misstatements of fact. Having examined the texts of the speeches of Newman and Clark, I am convinced that neither exceeded the bounds of permissible campaign propaganda. In subsection (a), petitioner witnesses stated that the Employer threatened to take away all existing benefits and bargain from "scratch" or "zero" in the event Petitioner won the election. An examination of the text of Clark's March 22 speech shows that the term "bargain from scratch at the bargaining table" indeed appeared on a transparency used by Clark in his speech. However, Clark also said, "All present benefits are negotiable and could go up or down," after which he proceeded to point out that a $2.30 minimum wage without fringe benefits constituted 6 The portion of the Hearing Officer's report dealing with Objection 12 is attached as an Appendix. 7 White Stag Mfg. Company, 219 NLRB 1246 (1975). 156 PLASTRONICS, INC. the starting point. Petitioner's witnesses did not contend that Clark strayed from his text in any material respect. In threatening to take away existing employee benefits and bargain from scratch, an employer violates Section 8(a)(1) of the Act. Saunders Leasing System, Inc., 204 NLRB 448. However, it is also true that statements to the effect that a loss of benefits could occur as a result of collective bargaining, or that all benefits are negotiable are permissible. White Stag Manufacturing Company, 219 NLRB 1246; Computer Peripherals, Inc., 215 NLRB 293; Stumpf Motor Company, 208 NLRB 43 1. I find that Clark's statements were permissible campaign propaganda, falling in the latter category. Not specified in the objection, but noteworthy, is the allegation by Theresa Perkins that supervisor Vic Schaefer told a group of incentive-paid employees that if the Union came in, Employees would not be paid $2.30 per hour when the machines broke down but would be paid nothing. This took place at a departmental meeting called by Schaefer to discuss the opening of the rumor control center. Employer witness Sue Whitcomb testified that Perkins asked Schaefer why employees could not receive a rate other than the base pay of $2.30 per hour for down time. Schaefer replied that the Employer was not legally bound to pay anything for downtime, but that no policy changes could be made during the campaign. According to Whitcomb, Schaefer added that negotiations would start from zero and that the employees would not even get the $2.30 downtime. Perkins stated that Schaefer's statement was strongly challenged by the employees, after which he "backed off." It is apparent that this meeting was attended by a great deal of acrimony. Schaefer's statement, while it may be an arguable violation of the Act, was made to a rather argumentative group of employees unhappy with their rate of pay. The statement appears to have been made spontaneously and in a heated discussion rather than having been contrived. Under these circumstances, I find the incident to have been isolated and thus unlikely to have affected the results of the election. As to the remainder of objection no. 12, I find that likewise, it is without merit. There is insufficient evidence, or no evidence, to support Petitioner's allegations in subsections (b), (c), (d), (g) and (i). Moreover, the Board has stated that it will no longer consider material misrepresentation of fact during a preelection campaign, even where the opposing party has insufficient opportunity to respond. Shopping Kart Food Market, Inc., 228 NLRB No. 90. Here, of course, Petitioner had ample opportunity to respond to the Employer's statements. Thus, subsections (d), (f), (h) and (j), even if they are true as alleged, do not exceed the boundaries of acceptable campaign propagan- da. Finally, while Newman's speech placed considerable emphasis on strikes and strike violence, I find that the Employer's campaign, viewed in its entirety, falls far short of preaching the inevitability of strikes. Based upon the foregoing, I find objection no. 12 as being without merit. 157