Honeywell, Inc.

HONEYWELL, INC. 617 Honeywell, Inc., Photographic Products Division and International Brotherhood of Electrical Workers Local 1823, Petitioner. Case 27-RC-5086 June 30, 1976 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a Stipulation for Certification Upon Consent Election, an election by secret ballot was conducted on July 23, 1975, under the direction and supervision of the Regional Director for Region 27, among the employees in the stipulated unit. Upon the conclusion of the election, the parties were fur- nished a tally of ballots which showed that of ap- proximately 180 eligible voters 62 cast ballots for the Petitioner, 4 cast ballots for the Intervenor,' and 88 cast ballots against the participating labor organiza- tions. There were two challenged ballots, a number insufficient to affect the results of the election. Thereafter, the Petitioner filed timely objections to conduct affecting the results of the election. Pursuant to Section 102.69 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Acting Regional Director conducted an investigation of the issues raised by the objections and on December 2, 1975, issued his Report on Ob- jections in which he recommended that the objec- tions be overruled.2 The Petitioner filed exceptions to the Acting Regional Director's report. No exceptions were filed by the Intervenor. Upon the entire record in this case, including Petitioner's exceptions and brief, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the pur- poses of the Act to assert jurisdiction herein. 2. The labor organizations involved claim to rep- resent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of employees within the mean- ing of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties stipulated and we find that the fol- lowing employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees, in- cluding group leaders and photo technicians em- 1 International Association of Machinists and Aerospace Workers, Dis- trict Lodge No. 86. 2 The report on objections was not timely served with respect to Petitioner's representatives and, accordingly, on December 30, 1975, the Acting Regional Director issued his amended report on objections which perfected service on all parties ployed by the Employer at its Photographic Products Division plants located at 5501 South Broadway, Littleton, Colorado, and 5200 East Evans Avenue, Denver, Colorado; excluding of- fice clerical, plant clerical, administrative, pro- fessional, and sales employees, engineering and quality technicians, service technicians, janitors, cafeteria workers, senior production electronic technician, guards, and supervisors as defined in the Act. 5. The Board has considered the Acting Regional Director's Report, the Petitioner's exceptions and ac- companying brief, and the entire record in this case, and makes the following findings: The Acting Regional Director's investigation of Petitioner's objections establishes, inter aka, that on July 22, 1975, the day immediately preceding the scheduled election, Vice President and General Man- ager Pennock read a prepared statement to employ- ees assembled at a meeting held by the Employer.3 After relating to the employees what the Employer had attempted to achieve in the past and also what it anticipated in the future with respect to sales and new products, Pennock stated: In order to meet customer demands from these new marketing approaches, we expect to recall 10 or so employees in the next several weeks. But all of this effort could be wasted if we can't continue to work effectively as a team. I there- fore feel the interference of a labor union would only hinder our chances of further recovery. The Acting Regional Director found that Pennock's statement concerning the possibility of the recall of laid-off employees was made in the context of remarks explaining the Employer's economic and competitive position in the industry and, as such, the statement constituted nothing more than permissible campaign propaganda. We disagree. In drawing the distinction between a permissible prediction and an unlawful threat, the test to be applied is the one fash- ioned by the United States Supreme Court in Gissel Packing Co.4 As the Court there stated, an employer's prediction of dire economic effects which will stem from union organization of the employees must not contain "any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities," and; if any such prediction is made, it must be supported "on the basis of objective fact to convey an employer's belief as to demonstrably probable conse- quences beyond his control." 5 7 The meeting lasted for approximately 1-1/2 hours 4 N L R B v Gissel Packing Co, Inc, 395 U S 575 (1969) 5Id at 618 225 NLRB No. 79 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In our view, the only logical interpretation to be placed on Pennock's remarks is that the Employer intended to and did convey to employees the mes- sage that while favorable conditions had made it pos- sible for the Employer to consider the recall of laid- off employees, the selection of the Union as bargain- ing representative would jeopardize the recall of these employees and the economic recovery of the Company. Pennock's statement makes no effort to explain why the representation by the Union would or could thwart the Employer's economic recovery. Rather, it simply asks the employees to accept the proposition that the two inevitably go hand in hand together-as in fact it was within the Employer's power to bring about. Under the test in Gissel, such a statement must be construed as a threat rather than a prediction because not only has the Employer failed to demonstrate that its belief is based upon objective considerations, it has also failed to affirmatively es- tablish that any such adverse economic effects would result from circumstances beyond the Employer's control. Though our dissenting colleagues quote the Employer's statement correctly, as a flat statement of what "would" happen, i.e., choice of the union "would" hinder the speedy recall of 10 employees, in their discussion of it they treat it as setting out what "may" happen if the Union is chosen by the employ- ees. The difference is substantial and, as noted above, contributes to our view that the statement in- terfered with the employees' freedom of choice in the election. Accordingly, we find, contrary to the Acting Regional Director, that Pennock's remark to employ- ees that their selection of the Union as bargaining representative would or could hinder the Employer's economic recovery and patently objectionable con- duct which necessitates the holding of another elec- tion. ORDER [Direction of Second Election omitted from publi- cation.] 6 CHAIRMAN MURPHY and MEMBER WALTHER, dissent- ing: In agreement with the Regional Director, we con- clude that the speech made by the Employer's vice president and general manager, Pennock, to employ- ees on July 22, 1975, contains nothing objectionable. The speech was devoted, in part, to a discussion of the Employer's expectation as to sales and new prod- ucts. During the course of that discussion Pennock stated: In order to meet customer demands from these new marketing approaches we expect to recall 10 or so employees in the next several weeks. But all this effort could be wasted if we can't continue to work effectively as a team. I there- fore feel the interference of a labor union would only hinder our chances of further recovery. Our colleagues find that this statement constitutes a threat. We see no basis for such a conclusion. Cer- tainly, there is nothing objectionable in pointing with pride to growth which will enable the recall of a number of employees. Nor is it objectionable to re- flect on the need for continued team work in order to realize the fruits of the effort to achieve growth. We fail to see how the expression of concern that the Union may interfere with that team work can reason- ably be viewed as a threat. The statement contains no suggestion that Employer will not continue its ef- forts to achieve growth should the Union be selected or that any future failure to recall would be the result of other than a failure of Employer's best efforts in this regard.' Thus, Employer has in no way threat- ened to take any adverse action towards the employ- ees should they select the Union.' We would affirm therefore the Regional Director's conclusion that Pennock's July 22, 1975, speech was not objectionable, and we would certify the results of the election. It is hereby ordered that the election held in Case 27-RC-5086, on July 23, 1975, be, and it hereby is, set aside. 6 [Excelsior footnote omitted from publication ] ' See, e g, The Hiatt Shoe Company Blue Star Shoes, Inc, 195 NLRB 554 (1972) 8 See Warton Drilling Co, Inc, 164 NLRB 357 (1967)