Carbonneau Industries, Inc.

CARBONNEAU INDUSTRIES 597 Carbonneau Industries, Inc. and Central States Joint Board, Service & Production Division, Amalga- mated Clothing and Textile Workers Union, AFL- CIO, Petitioner. Case 7-RC-13686 March 9, 1977 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION 3. A question affecting commerce exists concern- ing 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 of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: BY MEMBERS JENKINS, PENELLO, AND WALTHER Pursuant to the terms of a Stipulation for Certifica- tion Upon Consent Election approved by the Regional Director for Region 7 on June 21, 1976, an election by secret ballot was conducted on July 2, 1976, under the Regional Director's direction and supervision among the employees in the stipulated unit. At the conclusion of the election, the parties were furnished with a tally of ballots which showed that, of approximately 145 eligible voters, 124 cast valid ballots, of which 62 were for and 62 were against the Petitioner. Nine ballots were challenged and were determinative of the outcome of the election. Thereafter,' the Petitioner timely filed objections to conduct affecting the results of the election. The Regional Director issued a report on chal- lenged ballots on July 15, 1976, and a report on objections on July 22, 1976. Finding that both the challenged ballots and objections raised substantial and material factual issues, including credibility resolutions, he ordered that a hearing on challenged ballots and objections be held. The hearing was conducted on August 3, 4, 5, 23, 24, and 25, 1976. The Hearing Officer issued and duly served on the parties her report on objections and challenged ballots on November 5, 1976, recommending that each of the Petitioner's four objections be overruled, four challenges to ballots be sustained, and five such challenges be overruled. Thereafter, the Petitioner filed exceptions to the Hearing Officer's report with regard to her recommendations concerning the objections. 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. 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 labor organization involved claims to represent certain employees of the Employer. 228 NLRB No. 69 All production and maintenance employees, including drivers and shipping and receiving personnel employed by the Employer at its facilities located at 100 Lexington, S.W., Grand Rapids, Michigan, and 100 Scribner, N.W., Grand Rapids, Michigan; but excluding office clerical employees, professional employees, tech- nical employees, guards and supervisors as defined in the Act. 5. The Board has reviewed the rulings made by the Hearing Officer at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Hearing Officer's report, the exceptions and briefs, and the entire record in this case. For the reasons set forth hereafter, we agree with the Petitioner that the Employer's conduct in soliciting employee grievanc- es, promising to cure employee grievances, and remedying employee grievances interfered with the employees' free choice in the election and requires a second election to be conducted. Solicitation of Employee Grievances and Promises To Cure Them In Objection 1, the Petitioner contended that the Employer impermissibly solicited employee grievanc- es and promised to cure them. With respect to that objection, the Hearing Officer made the following findings of fact: Beginning in May 1976, Petitioner began an organizational drive at two of the Employer's plants. In response to the Union's leafletting, the Company's president, Gordon Carbonneau (sometimes referred to herein as the Employer), arranged a series of five or six meetings with each of several groups of approximately 25 of his employees, intending to provide the employees with information relating to the Employer's financial and economic status. Carbonneau did in fact discuss the economics of his business concern with the employees at these meetings. However, at each meeting, he also asked if the employees had any questions. In at least two meetings the employees responded with several complaints and questions regarding working condi- tions, including grievances concerning a retirement 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plan, bathroom ventilation, an additional relief person on the main production line, holes in the floor, floor fans, a leaky roof, and two supervisors. In addition, Carbonneau held a meeting for all the employees at a local hotel at which he distributed paper and pencils to each employee, asked for questions from employees, and then responded to 8 or 9 of the 51 inquiries submitted. The bulk of the meeting's time was taken up with a discussion by the employees themselves of the pros and cons of unionization. The Employer also replaced an old suggestion box with a new one at one of its plants in early June, and posted employee suggestions, which were submitted, along with the Employer's attached responses. The suggestions dealt with a cost-of-living adjustment, vacation pay, bathroom ventilation, a new lunch table, new electrical outlets, a new coke machine, and a new stapler. The Employer's responses included words such as "checking into," "done," "finished," or "forthcoming." The Petitioner contends in Objection 1 that Carbonneau's conduct at the series of group meet- ings, the meeting at the hotel, and the Employer's installation of the suggestion box, along with the posting of suggestions and responses thereto, consti- tute an impermissible solicitation of employee grievances and promises to cure the same, and therefore warrants setting aside the election results. The Hearing Officer overruled this objection on the basis that the totality of the evidence reveals that solicitation of grievances was neither the intent nor content of these meetings. In support of her conclu- sion, the Hearing Officer found that, of the approxi- mately 30 meetings with employees, grievances were expressed at only 2 of them. And, stated the Hearing Officer, assuming arguendo that the Employer solic- ited grievances, solicitation is not illegal unless accompanied by a promise of benefits. By this latter statement, the Hearing Officer impliedly found that the Employer made no promises of benefits. We do not agree with the basic findings and conclusions of the Hearing Officer with respect to Objection 1. While the record is unclear as to the number of meetings in which grievances were actually expressed, the Hearing Officer found that in at least two meetings a number of grievances were presented by the employees.' This finding alone, however, establishes that the meetings did in fact contain a significant expression of grievances. More- over, the record provides ample evidence that those grievances were solicited by the Employer. For I The Employer himself testified that he asked for questions at every meeting. However, it is unclear at how many meetings grievances, as opposed to other types of inquiries, were expressed by the employees. 2 The Hearing Officer found that the Employer conducted meetings with example, Carbonneau admittedly asked the employ- ees at every meeting if they had any questions, and failed to limit such questions to the economic status of the company or to the benefits or disadvantages of unionization. Furthermore, Carbonneau passed around paper and pencils to each employee at the hotel meeting in an attempt to solicit questions. The Employer even installed a new suggestion box in a different location which was more accessible to the employees. It is well established that an employer who has had a past policy and practice of soliciting employee grievances may continue such a policy and practice during an organizational campaign. Lasco Industries, Inc., 217 NLRB 527 (1975); Reliance Electric Company, Madison Plant Mechanical Drivers Division, 191 NLRB 44, 46 (1971). In this case, the Employer had a past practice of maintaining an "open door" policy and soliciting complaints on occasion from individuals.2 However, this past practice is not an adequate justification for the manner and methods by which Carbonneau solicited employee grievances during the organization and preelection periods in this case. The Board has ruled in the following situations that an employer cannot rely on past practice to justify solicitation of employee grievances where the em- ployer significantly alters its past manner and methods of solicitation: soliciting grievances more frequently than regularly done in the past, Grede Foundries, Inc. (Milwaukee), 205 NLRB 39 (1973); searching out grievances more carefully than before, Rotek, Incorporated, 194 NLRB 453 (1971); initiating group discussions of employee grievances where the employer had merely discussed grievances on an individual basis previously, Flight Safety, Inc., 197 NLRB 223 (1972); and the installation of a sugges- tion box where one had not previously been located, H. L. Meyer Company, Inc., 177 NLRB 565 (1969). The Employer's conduct of initiating a systematic series of meetings among groups of its employees, wherein it asked for questions at each meeting and failed to limit the questions to subjects other than employee grievances, and the Employer's actions in replacing an old suggestion box and installing the new one in a more convenient location constitute a significant alteration of the Employer's past practice. As stated earlier, the Hearing Officer found that the Employer made no promises of benefits to the employees in conjunction with its solicitation of grievances. The record clearly indicates otherwise. In response to each grievance aired by the employees at employees approximately two to three times per year with large groups and five to six times per year with small groups . However, there was no evidence presented that the Employer actually solicited employees' grievances at any of those meetings. CARBONNEAU INDUSTRIES 599 the meetings (with the exception of the grievance relating to the retirement plan), Carbonneau stated that he would take care of it or see what he could do. And, as found by the Hearing Officer and mentioned earlier, the responses attached to the suggestions which were posted by the Employer contained clear promises that Carbonneau would correct the griev- ances. The Board has consistently held that an employer's solicitation of employee grievances and its promise to remedy those grievances during an organizational campaign or preelection period is objectionable conduct which interferes with the free choice of employees in an election. Montgomery Ward & Co., Inc., 225 NLRB 112 (1976); Litton Dental Products Division of Litton Industrial Products, Inc., 221 NLRB 700 (1975); Shulman's Inc. of Norfolk, 208 NLRB 772 (1974); Reliance Electric Company, supra. Thus, based on our findings herein and the applicable law, we find merit in Objection 1. Remedying Employee Grievances Objection 4 alleges as another ground for setting aside the election the Employer's granting of bene- fits. More specifically, the Petitioner asserts that the Employer remedied various of the employee griev- ances which he solicited. With respect to each grievance which the Hearing Officer found to have been remedied, the Hearing Officer also concluded that there was sufficient justification for Carbon- neau's actions in the form of a fixed past practice, pattern, or preorganizational announcement. Ac- cordingly, the Hearing Officer overruled Objection 4. We, however, find merit in this objection.3 First, the Employer corrected grievances which stemmed out of the employees' use of the suggestion box, including transferring a used soda machine between the two plants, lowering the height of the lunch table, and installing a bathroom fan. The Hearing Officer concluded that the Employer's actions in correcting these grievances were permissi- ble, based on Carbonneau's past practice of respond- ing to employee complaints and suggestions from whatever source.4 However, the Hearing Officer also found that the Employer's actions in remedying those grievances were admittedly undertaken in response to employee requests. Moreover, although there was some evidence in the record that the Employer had occasionally patched holes in the floor of the plant after employees had brought this 3 We agree with the Hearing Officer's findings with regard to some grievances which were remedied. Adequate justification in the form of past practice was shown by the Employer concerning his remedying grievances relating to holes in the floor of the plant, floor fans , and electrical outlets. 4 The Hearing Officer also found that the complaints submitted through the suggestion box were too minimal to set the election aside. However, even problem to the Employer's attention, no specific evidence was presented that the Employer had had a past practice of responding to grievances such as those submitted in the suggestion box, or that the Employer had maintained an actual practice of remedying grievances as expeditiously as he did once the union organizational drive had started. Another complaint expressed by the employees was the abusive conduct of Pat Koshneff, one of the Employer's supervisors. The Hearing Officer found that the Employer had been made aware through the latest employee grievances that Koshneff had fre- quently used foul language and threats of physical violence toward employees, and that she had left work earlier than scheduled. Carbonneau had previ- ously been informed of Koshneff's use of abusive language, yet had taken no disciplinary action other than speaking with her. However, after the latest grievances concerning Koshneff had been presented to Carbonneau, he conducted a vote among the nine employees supervised by Koshneff on the issue of whether or not to retain her. Upon learning that the vote was unanimous to relieve her of her duties as supervisor, Carbonneau spoke to Koshneff on the telephone. According to the Employer's testimony, he told Koshneff that she was not fired; however, he said: "on the basis of the nine-to-nothing vote, I don't see how we can keep you as supervisor. . . ." Koshneff then told the Employer that she was resigning. The Hearing Officer found sufficient justification in the Employer's conduct with regard to Koshneff on the basis of the Employer's past practice of dealing with complaints involving her and the serious nature of the allegations . However, the facts show that Carbonneau had merely spoken with Koshneff after earlier complaints regarding her conduct. Moreover, the actual degree of seriousness of those allegations in the eyes of the Employer is seriously put in doubt by his action in polling the employees. Apparently, employee sentiment was the chief reason for the Employer's action in relieving Koshneff as supervisor, not her conduct. Thus, we find that the Employer relieved Koshneff in response to employee grievances. The Employer also took action which remedied the employee grievances for an additional relief person on the main production line so that employees could go to the restroom when they desired. The Employer admitted that he only discussed this matter with the modest changes are often important to employees and are sufficient to set aside an election. House of Mosaics, Inc., Subsidiary of Thomas Industries, Inc., 215 NLRB 704 (1974). Furthermore, in light of the additional grievances found below to have been remedied in an objectionable manner, this de minimis rationale is inapplicable in this case. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant manager and supervisors after receipt of this grievance by the employees. The Hearing Officer justified the Employer's action in providing a relief person for the employees based on the coincidental request by the current supervi- sors in maintaining their own expected level of production. The Hearing Officer concluded that the ultimate decision to add the relief person was based on legitimate business reasons. A preponderance of the evidence in the record, however, supports a different conclusion. While the plant manager's testimony supports the Hearing Officer's reasoning, Carbonneau himself stated that he discussed the addition of a relief person only after the employees complained. Moreover, the employee eventually selected to provide relief, Marsha Baker, testified that she knew why she was given a new position, and that the reason was that Carbonneau was responding to the employee complaints. In light of the testimony of Carbonneau and Baker, and, in the context of our earlier findings that the Employ- er's conduct in remedying several other grievances was in response to employee complaints, the Board finds that the ultimate decision to add a relief person was also based on the employee grievances. The Board has ruled that an employer interferes with its employees' free choice in an election when, immediately prior to an election, it grants or announces changes in working conditions which were not contemplated prior to a union's organiza- S Although the Employer presented evidence of past use of voting machines among his employees, the evidence indicates that it was last used over 4 years ago and last used before that about II years ago. Such infrequent use does not constitute a past practice. The evidence also suggests that none of the employees who voted had ever heard of Carbonneau using the voting machine previouslyy. Thus, to the employees who voted, the exercise was a novel tool in resolving employee grievances. 6 Member Walther relies solely on the Employers promise to cure, and its actual remedying of, employee grievances in setting the election aside. tional campaign and for which the employer fails to demonstrate a legitimate business reason for the timing of the changes. Litton Dental Products Division of Litton Industrial Products, Inc., supra; May Department Stores Company, 191 NLRB 928 (1971). None of the employee grievances remedied by the Employer in this case had been considered prior to the Union's campaign, and the Employer failed to adequately justify the timing of each of the changes. In addition, with respect to the specific remedy of relieving Koshneff as supervisor, the Board has held to be objectionable an employer's conduct in permitting its employees to vote on the removal of a supervisor where, as here, no such practice of voting had previously existed,5 Paoli Chair Company, Inc., 213 NLRB 909 (1974), and where the employer actually removed a supervisor pursuant to employee grievances and in order to placate the employees, Eagle Material Handling of New Jersey, 224 NLRB 1529 (1976). For these reasons, we find merit in the Petitioner's Objection 4, in addition to finding merit in Objection 1. Accordingly, we shall set the election results aside.6 ORDER It is hereby ordered that the election conducted on July 2, 1976, be, and it hereby is, set aside. [Direction of Second Election and Excelsior foot- note omitted from publication.] In light of our decision to set the election results aside, the Board finds it unnecessary to pass on the merits of the Petitioner's Objections 2 and 3. Also, in the absence of exceptions thereto , we adopt pro forma the Hearing Officer's recommendations regarding the challenged ballots , although our decision to set the election results aside eliminates any need to open and count the ballots to which challenges were overruled.