Norther Telecom, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Northern Telecom, Inc. and Communications Workers of America, Petitioner. Case 26-RC-5304 December 12, 1977 DECISION ON REVIEW AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On May 27, 1977, the Regional Director for Region 26 issued his Fourth Supplemental Decision and Order in the above-entitled proceeding in which he sustained certain objections by the Petitioner alleging conduct affecting the results of the third election held on March 8, 1977, set aside that election, and ordered that a new election be held. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board's Rules and Regulations, Series 8, as amended, the Employer filed a timely request for review of the Regional Director's decision on the grounds, inter alia, that he departed from reported Board precedent and erred on substantial factual issues. The Petitioner filed a timely opposi- tion to the request for review. By telegraphic order dated June 27, 1977, the Board granted the Employer's request for review and stayed the election pending decision on review. Thereafter, the Petitioner filed a brief on review. 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 considered the record in this case, including the briefs of the parties, and makes the following findings: The Regional Director sustained Petitioner's Ob- jections 4 and 14, which alleged that the "Employer promised and/or gave employees sick pay benefits contrary to past practice and in order to affect the results of the election" and the "Employer promised and/or put into effect changes in wages, hours or other terms and conditions of employment to influence the election outcome."' In sustaining the Petitioner's objections, the Regional Director con- cluded that the timing of the announcement of Employer's sick pay plan in the week before the election was calculated to have an effect on the t The Regional Director overruled 18 other objections filed by the Petitioner. 2 On October 29, 1976, the Regional Director issued his Second Supplemental Decision and Direction of Election in this case, in which he set aside the results of the first election and ordered a second election. The second election was held on December 17, 1976. Subsequent to the second election, the Petitioner filed objections, several of which were sustained in the Regional Director's Third Supplemental Decision and Direction of Election, which was issued on February 2. The Employer's announcement 233 NLRB No. 157 outcome of the election, and that Employer's explanation for such timing was unacceptable. The Employer contends that this conclusion is in error, since the sick pay plan was implemented pursuant to a companywide decision and was not calculated to improperly influence the outcome of the election. We find merit in the Employer's contentions. On December 29, 1976,2 the Employer announced certain new corporatewide benefits at its Nashville facility including the aforementioned sick pay plan. The sick pay plan was apparently announced in November 1976 at other plants of the Employer lacking such a plan. The sick pay plan as explained to the Nashville employees provided that employees could accumulate 4 hours sick pay per month, receive a maximum of 3 days per year, and receive cash payments for hours not used but they would not be able to carry over sick days. 3 Subsequently, on January 28, a memorandum was sent from the Employer's divisional manager and vice president to its Nashville controller, directing implementation of the sick pay plan as soon as practical. This memorandum also set forth an outline of the sick pay plan and policy. It differed in certain respects from the plan as originally presented, and provided that sick pay benefits would not have to be accrued by employees. Rather, employees were to be given a "bank" of 3 sick days which would be paid when taken. Pursuant to the January 28 memorandum, the Employer's personnel director circulated a memoran- dum on February 23. This memorandum, which was sent to the production manager, listed guidelines for the implementation of the sick pay plan and requested that supervisors prepare a list of employees who had accumulated unpaid sick leave. The list was to be given to the payroll department which would then prepare payments. The list of employees entitled to sick pay was prepared by March I and showed that more than 100 employees were eligible for 4-24 hours of sick leave pay. Eligibility extended back to the effective date of January 1, as originally announced at the December 29, 1976, presentation. 4 During the week of March 1, following the prepara- tion of the list, supervisors informed the eligible employees individually that they would receive sick pay benefits in their checks of March 10 or 1 1.5 of benefits thus occurred after the second election, while Petitioner's objections were pending. The dates hereinafter are 1977 dates unless otherwise indicated. 3 The Regional Director noted that there was testimony by one employee-witness which suggested that the Employer would require 6 months' employment before an employee would be eligible for the benefits. 4 January I was also the effective date at other plants of the Employer. 5 As indicated above, the third election was scheduled for March 8, 1977. 1104 NORTHERN TELECOM, INC. The Employer asserts that each of its plants which instituted the new sick pay plan was permitted to do so on its own timetable. The Employer states that because of the pendency of the second election at Nashville it chose not to announce the sick pay plan there until after that election was held. The Employer further argues that the delay, if any, in implementa- tion of the sick pay plan at that location was necessitated, in part, because its Nashville personnel manager moved his family from Minnesota to Nashville during that period and also was visiting other plants, resulting in frequent absences from the Nashville plant. The Employer urges that the implementation of the sick pay plan at Nashville was done in orderly fashion as indicated by its corporate memorandums, and that any "change" or deviation in the sick pay plan as earlier announced was promulgated prior to the Regional Director's order to hold a third election. The Petitioner argues that the timing of the implementation of the sick pay plan was calculated to have an effect on the outcome of the third election at Nashville and that the Employer has not met the burden of justifying its action. The Petitioner asserts, inter alia, that there was no justifiable reason for the Employer to individually advise employees during the week before the election that they would receive sick pay benefits just after the election. Upon the foregoing and the entire record in this case, we are unable to conclude that the timing of the supervisors' informing eligible employees of their sick pay benefits constituted objectionable conduct herein. The Board has long held that, where an increase in benefits is part of an established company policy or pattern, a grant of those benefits or announcement of them prior to the election is not grounds for setting aside an election. 6 Further, where an increase in benefits results from a corporatewide decision and is implemented corporatewide in a normal business fashion, election results will not be set aside.7 6 White Stag Mfg. Company, 219 NLRB 1246 (1975); Mallory Controls Company, A Division of P. R. Mallory Co., Inc., 214 NLRB 616 (1974); Meier's Wine Cellars, Inc., 188 NLRB 153 (1971). I See, e.g., Oxco Brush Division of Vistron Corporation. 171 NLRB 512 (1968). s While our dissenting colleague has made much of the alleged delay, as quantified in days, in the announcements made by the Employer, we believe the facts show otherwise. In comparing the fact that the Employer did not announce the plan some 37 days prior to the second election but announced just prior to the third election that employees' checks would contain the sick pay, the dissenting opinion omits an important fact: the sick pay plan itself was announced some 69 days prior to the holding of the third election. In our view, the sequence of events leading up to the effectuation of that plan appears legitimate. That a further announcement concerning paychecks was made just prior to the election is thus of no great import. In addition, no matter how our dissenting colleague attempts to characterize the change in the sick pay plan, the fact is, supported by documentary evidence, that the Employer enacted such a change fully 5 days prior to the Regional The chronology of events leading to the implemen- tation of the sick pay plan here does not, in our view, warrant setting aside the third election. It is clear from the record that prior to December 29, 1976, when the Employer made its announcement to its employees, the Employer had decided to establish a sick pay plan at a number of its facilities, of which Nashville was only one. In fact, it had earlier announced such a plan at other facilities which previously did not have such a plan and had withheld announcing the plan at this plant because of the pendency of the second election. Subsequently, as noted above, the Employer outlined internally, with no apparent reference to the union campaign, the method for instituting the sick pay plan. After the necessary completion of the list of employees eligible, in the first week of March, just 2 months after it had announced the plan, and in apparent due course, the Employer advised those employees that they would soon receive the sick pay benefits. The period of time for the implementation at Nashville is approximately the same 2-month time period taken at other plants. Accordingly, we believe that the timing of the announcement to its employees was not calculated to and did not, in the circumstances, interfere with the employees' freedom of choice.8 For the Employer to have withheld it further at the Nashville plant merely because the employees there were seeking union representation might well itself have constituted objectionable conduct. Accordingly, we hereby overrule Objections 4 and 14 in their entirety. 9 CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for Communications Workers of America and that said labor organization is not the exclusive representative of all the employ- ees, in the unit herein involved, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. Director's direction of a third election. Thus, the change was made without any knowledge that a new election would be called and without reference to the Union. That the sick leave would be paid beginning with the start of the new year is not surprising, since the Employer had implemented the plan at other plants effective January I, and had announced to its employees at Nashville that the plan would be effective on that date. Regardless of what change was effected, it is clear that the Nashville employees had expected benefits since the December 29. 1977, announcement, and although the benefit to be received by the employees deviated to some degree from that initially contemplated by the Employer, we do not feel that such a departure in the circumstances here warrants a contrary result. 9 The Petitioner also objected to the institution of a new holiday by the Employer. However, the Regional Director concluded that the new holiday was enacted pursuant to a new companywide policy. Petitioner has not requested review on this issue. We believe that the implementation of the sick pay plan was similar to the implementation of the new holiday, which was found not objectionable by the Regional Director. 1105 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CHAIRMAN FANNING, dissenting: Unlike my colleagues, I would adopt '1 the Region- al Director's Fourth Supplemental Decision and Order. It is an employer's burden to establish that an announcement or implementation of improved em- ployee benefits during an election campaign was not governed by election-related factors. The Baltimore Catering Company, 148 NLRB 970, 973 (1964). In this case, the Employer's explanation of the timing not only of its announcement of a new sick pay plan, but of its supervisors' announcement to the voters, just days before the election, that their next pay- checks would contain sick pay benefits, is woefully inadequate in my judgment, as is my colleagues' rationale for accepting the conclusionary "explana- tion" proffered by the Employer. In early November 1976, the Employer announced a new sick pay plan. The announcement, notably, was made to all plants except the Nashville plant, which is the plant involved in this proceeding. The Employer alleges that it withheld the announcement from the Nashville facility "because of the pendency of the second election at the Nashville plant at the time of the announcement." The "second election" to which the Employer refers was held December 17, 1976. Thus, an announcement to the Nashville employees, if made simultaneous with the announce- ment to those plants in which no question concerning representation existed, would have preceded the second election by some 37 days. Why the Employer considered an announcement of a sick pay plan to voters 37 days before an election potentially disrup- tive of that election and yet did not consider at least equally disruptive an announcement to the voters, less than a week before a subsequent election, that the paychecks they were to receive 2 days after the election would contain substantial cash bonuses in the form of a sick pay benefit is, to say the least, suspicious. There is no explanation for this on the record, and none is propounded by my colleagues. On December 29, 1976, approximately 49 days after the Employer announced the plan at its other plants, the sick pay plan was revealed to the Nashville voters. It may be assumed, although the probability is minimal, that the Employer withheld the plan not only from the Nashville voters but also to The Regional Director dismissed Petitioner's Objections 3, 9, 16, and 18 because the activity alleged objectionable in those objections would constitute, if found, an unfair labor practice under Sec. 8(a) of the Act. The Regional Director thus relied on the Board's holdings in Texas Meat Packers Inc., Texas Meat and Provision Co., Spiritas & Sloan Inc. and Portion Control Meat Co.. 130 NLRB 279 (1961), and Spray Sales and Sierra Rollers, 225 NLRB 1089 (1976), holdings from which I dissented and with which I continue to disagree. I would not, therefore, adopt this aspect of the Regional Director's decision. I do adopt his disposition of Petitioner's Objection II, solely on the basis of the facts presented in support of the from its Nashville managerial staff, throughout that 49-day period. The plan, as depicted 49 days later to the Nashville voters, was to take effect January 1, 1977, the effective date of the plan at the Employer's other plants and would provide, inter alia, that employees could "accumulate 4 hours [per] month" of sick leave. Fully 30 days after the announcement to the Nashville voters, Nashville management had not implemented a plan, which, at best, cannot be characterized as a complicated or highly involved one.t The only explanation for this particular delay in taking action on the plan, to which the majority itself does not allude, is the Employer's allegation that the delay was caused by "the fact that [personnel Manager Millard] was in the process of moving his family to Nashville, Tennesee, from his former home in Minnesota and that time ... as well as time spent at other plants resulted in frequent absences by him "12 On January 28, 1977, the Nashville controller was directed by a corporate vice president to "apply the following policy to the payment of sick leave for hourly employees .... [A]s soon as it is practical . . . [slick leave will be paid for all claimed sick days up to a maximum of three beginning immediately with the beginning of the year. " (Emphasis supplied.) That is to say, by January 28, the plan had been materially changed from that announced December 29, 1976, to provide, instead of a monthly 4-hour accrual of sick leave, an immediate 24-hour accrual of sick leave. There is, on the record, no viable explanation for this change in the plan beyond the Employer's assertion that "the plan and the details of the plan were adopted in the normal course of business." In practical terms, this change in plan "enabled" the Employer to pay an employee who was absent from work for 3 days during the period January 1- March 1, 1977, a full 3 days sick leave (if the reasons for absence were, of course, covered by sick leave). Under the plan as announced 30 days earlier, however, such an employee would be entitled to no more than I day's pay, since sick leave pay could be accrued only at a rate of 4 hours per month. On February 23, 1977, or 25 days after the change in plan, Nashville management, which still had not "finalize[d] the formal policy and procedure covering objection as amplified by the Regional Director's investigation and not on the basis of Shopping Kart Food Market, Inc., 228 NLRB 1311 (1977), upon which the Regional Director relied. See my dissenting opinion there. II As described on December 29, 1976, the plan would allow employees to be paid up to 3 days sick leave a year, the leave accrued 4 hours per month, unused leave, up to the 3 days, payable in cash at year's end and no carryover of sick leave from one year to the next. 12 It would, of course, be pure conjecture to consider the possibility that in the time the personnel manager "spent at other plants" he familiarized himself with the sick pay plans implemented at them. 1106 NORTHERN TELECOM, INC. sick leave," "suggested" that supervisors prepare a list of employees entitled to the sick pay. Notably, it took only 6 days for a list of 149 employees, with the number of hours of sick leave taken by each, to be prepared. Of those, 94 were entitled to a sick pay greater than they otherwise would have received had the plan not been materially changed in late January. The list was prepared on Tuesday, March 1, 1977. Supervisors, throughout the remainder of the work- week, systematically informed the 149 employees that their March 11 paychecks would contain the sick pay. The election was scheduled for, and ultimately held on, March 8. 13 See Baltimore Catering, supra; Cadillac Overall Supply Company, 148 NLRB 1133 (1964); Colonial Knitting Corp.., 187 NLRB 980 (1971); Newport Division of Wintex Knitting Mills, Inc., 216 NLRB 1058 (1975). 14 Inexplicably, my colleagues, in response to this observation, equate the fact of announcement with its content. Thus, I have not "omitted" the fact that a sick pay plan was announced "69 days prior to the holding of the third election" (see the third paragraph of this dissent) but, instead, have chosen not to ignore the obvious disparity between the content of the plan announced at that time and the one by which employees were informed, in the week before the election, that they would be receiving substantial cash sums in their next paychecks. That the altered plan was decided upon 5 days before the Regional Director's direction of a third election is not nearly as important as the undeniable fact that the voters were not told of that change It was not, I reiterate, incumbent upon the Regional Director to establish that the timing of the announcement and implementation of the plan was governed by the pending question of representation. It was, rather, the Employer's burden to disprove' 3 that the delay which attended implementation of the sick pay plan, as well as the relatively blinding speed with which the sick pay beneficiary list was prepared and disseminated throughout the work force, bore no relation to that question. That burden surely has not been met here14 and I therefore dissent. Like the Regional Director, I would set aside the election and order that a new one be held. until the moment its significance could be best appreciated by the electorate. To characterize a "further announcement concerning paychecks" as of "no great import" could only be appropriate, it seems to me, if the announce- ment did not constitute a change from a previous one, especially when the substance of the change is withheld from the electorate until an election is imminent. Finally, if an employer were to inform potential voters, 3 months before an election that they would, in the future. receive a 5-cent-an-hour increase and then, 5 days before the election, were to tell the employees the increase had been upped to 10, I would be hard pressed to dismiss that action on the theory, novelly espoused by the majority, that the voters had, after all, "expected benefits" to begin with. What the benefits were, just like what the announcements here were, strikes me as of -great import" indeed. 1107