Computer, Peripherals, Inc.

COMPUTER PERIPHERALS, INC 293 Computer Peripherals , Inc. and District Lodge 155 of the International Association of Machinists and Aerospace Workers, AFL-CIO, Petitioner. Case 26-RC-4792 December 5, 1974 DECISION AND CERTIFICATION OF RESULTS OF ELECTION By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Pursuant to a Stipulation for Certification Upon Consent Election approved on June 3, 1974, an election by secret ballot was conducted under the direction and supervision of the Regional Director for Region 26 on June 27, 1974, among the employees in the stipulated unit. At the conclusion of the election the parties were served with a copy of the tally of ballots which showed that of the approximately 182 eligible voters, 170 valid votes were cast of which 81 were cast in favor of, and 89 were cast against, the Petitioner. There were no challenged or void ballots. Thereafter, the Petitioner timely filed objections to the election. Pursuant to Section 102.69 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director conducted an investi- gation and on August 7, 1974, issued his report on objections and recommendations to the Board, of which a pertinent portion is attached hereto marked Appendix. The Regional Director found that the Em- ployer's action in stating to the employees in a leaflet and a speech that he would bargain from scratch was objectionable conduct which interfered with the elec- tion. Accordingly, the Regional Director recom- mended that the election conducted on June 27, 1974, be set aside and a second election directed. Thereafter, the Employer timely filed exceptions to the Regional Director's report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the basis of the entire record in the case, the National Labor Relations Board makes the following findings of fact: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to repre- sent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the fol- lowing employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: Included: All production and maintenance em- ployees including quality assurance technicians, check oui technicians, check out technicians II, inspectors, general inspectors, utility assemblers, material specialists, material specialists II, and material handlers, at the Company's plant located at 640 Massman Drive, Nashville, Tennessee. Ex- cluded: All professional employees, managerial employees, precision inspectors, mechanical qual- ity assurance technicians, test equipment techni- cians, calibration technicians, all other techni- cians, office clerical employees, guards, watchmen and supervisors as defined in the Act, as amended. 5. During the course of investigating Petitioner's ob- jections, the Regional Director discovered that the Em- ployer had stated to his employees, both in a leaflet distributed to them on May 7 and a speech delivered on June 26, that he would bargain from scratch if the Union were certified. The leaflet was distributed prior to the time the petition was filed, but remained posted on the plant bulletin board throughout the campaign and was therefore considered by the Regional Director in his report. The portions of the leaflet found objec- tionable were: 2. Will the Union take away any benefits we al- ready have? Answer: In the area of wages, hours, and working conditions, bargaining starts from scratch. We do not know at this time what the eventual outcome of any bargaining sessions might be. 3. Is there a federal law that says once a benefit is given it cannot be taken back? Answer: No. Only legally required wages, benefits, and working conditions such as OSHA, Social Security, minimum wages, etc. must be provided. All other wages, benefits, and working conditions beyond this are provided to keep us more competi- tive in the area. In his June 26 speech, Plant Manager Holmquist stated to gathered employees: Now I'm sure you have been told your wages and benefits could only get better. But if you think I am going to start bargaining from where you are now you've got another think coming. I'm going to start from scratch, a minimum proposal. If the Union wants something like checkoff of union dues or preferred security for stewards they may 215 NLRB No. 22 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have to exchange vacations, paid sick time or some other superior benefit you now have in order to get these things. Bargaining is just that, give and take. After finding the Petitioner's other objections to be without merit and recommending that they be overruled,' the Regional Director found Respondent's conduct in making the above statements sufficient to set aside the election. He based his recommendation on Saunders Leasing System, Inc., 204 NLRB 448 (1973), enfd. in relevant part 497 F.2d 453 (C.A. 8, 1974), in which the Board set aside an election, adopting the Administrative Law Judge's finding that the em - ployer's statements were meant to and did leave, the impression that all existing benefits would unilaterally be eliminated if the union were successful in its cam- paign and that what the employees ended up with would depend in large measure upon what the union could induce the respondent to restore. We find Saunders Leasing System, Inc., supra to be distinguishable. Instead, we find the facts herein to be analogous to those in Wagner Industrial Products Com- pany, Inc., 170 NLRB 1413 (1968), in which the Board found that in the context in which they were uttered, the main thrust of the employer's remarks was that the mere designation of a union would not automatically secure to employees a large increase in wages and bene- fits and there was no specific implication that Respond- ent intended to adopt a bargaining posture offering employees less than they were receiving. Similarly, in the instant case the Employer's remarks carried no implication that any benefits would be taken away uni- laterally if the Petitioner were designated as the bar- gaining representative of the employees; rather the em- phasis was on the possible results of lawful bargaining with that Union. Thus, the Employer stated that the eventual outcome of employee benefits depended on the give and take of bargaining, wherein certain benefits might be reduced or taken away but other benefits could be incre sled or initiated in exchange While the Employer stated that it would make a minimum inii al bargaining proposal, we can find in its remarks no express or implied threat that it would unilaterally take away benefits and require the Union to negotiate to get them back, especially in the absence of other threaten- ing remarks. See Stumpf Motor Company, Inc., 208 NLRB 431 (1974). We find, therefore, that the Em- ployer's statements were no more than expressions of views as to the nature of collective bargaining and the effects it could have on the terms and conditions of employment. Accordingly, we shall certify the results of the election. ' No exceptions were taken to these recommendations, which we there- fore adopt pro forma. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for District Lodge 155 of the International Association of Machinists and Aerospace Workers, AFL-CIO, and that said labor organization is not the exclusive bargaining representative of all the employees in the unit herein involved within the mean- ing of Section 9(a) of the National Labor Relations Act, as amended. MEMBER FANNING, dissenting: I agree with the analysis of the Regional Director and would affirm the decision set forth in his report on objections for the reasons set forth therein. APPENDIX In support of its contention that the Employer threatened employees that if the Union was voted in bargaining would start from scratch, the Petitioner submitted a leaflet which was distributed by the Com- pany on or about May 7, 1974, and presented several employee witnesses who testified that Holmquist, in a speech on June 26, said that negotiations would not start with the wages the employees were already mak- ing but would start from scratch. Although the Employer's leaflet was distributed on or about May 7, which is prior to the date that the petition was filed, Holmquist stated that the leaflet remained posted on the plant bulletin board through- out the campaign. Thus, the content of the material can be considered. The leaflet attached hereto as Exhibit 1 is in the form of questions and answers . Holmquist stated that in a meeting conducted on May 7, questions asked by the employees were compiled and written answers were prepared and a response given in the attached leaflet. Questions 2 and 3, on the first page of the leaflet, are in regard to the status of employee benefits. These ques- tions and answers are as follows: 2. Will the Union take away any benefits we already have? Answer: In the area of wages, hours and working conditions, bargaining starts from scratch. We do not know at this time what the eventual outcome of any bargaining sessions might be. 3. Is there a federal law that says once a benefit is given it cannot be taken back? Answer: No. Only legally required wages, bene- fits, and working conditions such as OSHA, Social Security, minimum wages, etc. must be provided. All other wages, benefits, and working conditions beyond this are provided to keep us more competi- tive in the area. COMPUTER PERIPHERALS, INC 295 In addition to the above- mentioned statements con- tained in the Employer's leaflet, a similar statement was made in Holmquist's speech given at approxi- mately 1.00 p.m. on June 26. A copy of Holmquist's prepared text of the pertinent portion of the speech is attached hereto as Exhibit 2. Turning first to the leaflet, Holmquist's reply that bargaining starts from scratch must be viewed in the context in which it is made; that is, a response to a question concerning the possible reduction of benefits. Holmquist's response is then followed by a statement to the effect that benefits once conferred are not neces- sarily retained. The clear implication from Holmquist's written responses is that the employees' existing bene- fits would be eliminated for purposes of bargaining. For those employees who may have missed the implication contained in the leaflet Holmquist provided a clear explanation of his position in his June 26 speech. Thus, on the day before the election, Holmquist said to the gathei ed employees: But if you think I am going to start bargaining from where you are now you've got another think coming. I'm going to start from scratch, a mini- mum proposal. Holmquist's threat to bargain from scratch, when viewed in the context in which it was presented to the employees, is clearly the type of threat which the Board found to constitute a violation of Section 8(a)(1) in adopting the Administrative Law Judge's Decision in Saunders Leasing System, Inc., 204 NLRB 448. The Board's Order was enforced on this point by the Eighth Circuit Court of Appeals [(497 F.2d 453 (C.A. 8, 1974)]. In view of the foregoing, it is found that the Employer, by threats to bargain from scratch contained in the May 7 leaflet and Holmquist's speech of June 26, interfered with the conduct of the election in this case and merit is found to this contention.