Dresser Industries, Inc.

DI4)ECISIONS OF NA]TIONAL ILABOR REI.ATIONS BOARI) Dresser Industries, Inc. and Operating Engineers Lo- cal Union No. 3, AFL-CIO. Cases 32 CA-99 and 32 RC-13 (formerly Cases 20-CA 11736 and 20 RC 13552) May 8, 1979 SUPPLEMENTAL DECISION AND ORDER BY CIIAIRjAN FANNING AND MEMBIERS PENI.I.() AND MURPIHY On August 24, 1977, the National Labor Relations Board issued a Decision, Order, and Direction of Sec- ond Election in the above-entitled proceeding.' find- ing that Respondent had violated Section 8(a)(1) of the National Labor Relations Act, as amended, by interrogating its employees concerning the employ- ees' union activities: creating an impression that its employees' union activities were under surveillance: soliciting employee grievances; threatening employ- ees with plant closure in the event they chose to be represented by the Union; threatening to take away certain benefits: and granting wage increases to dis- courage support of the Union. The Board ordered that Respondent cease and desist therefrom and take certain affirmative action. Subsequently, the United States Court of Appeals for the Ninth Circuit en-- forced in part, and denied enforcement in part. the Board's Order.2 Thereafter, on August 28, 1978, Respondent filed with the Board a motion for reconsideration, request- ing that the Board reconsider its previous Direction of Second Election in light of the decision of the court of appeals. 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. Respondent alleges, in substance, that the Board's Direction of Second Election should be vacated since that direction was premised upon findings which were reversed by the court. Specifically, the Board found the Direction of Second Election warranted because there was an interrogation and promise of benefits to an employee in the critical period, in addition to the prepetition conduct, which the Board characterized as [a] background of earlier widespread threats, in- terrogations, impression of surveillance, and solicita- tion of grievances."l The court, however, reversed certain of the Board's findings of interrogations of employees, solicitation of grievances, surveillance of employees' union activi- 231 NLRB 591 (1977). 2 NL.R.B v. Dresser Industries, Inc., 580 F 2d 1053 (1978). 3231 NLRB 591, l. I ties, and threats to cease operating, on the ground that these particular findings were not supported by substantial evidence on the record as a whole. The Court adopted the Board's findings that Respondent's plant manager's visit to the home of four employees constituted unlawful interrogation: that Respondent's supervisors unlawfully interrogated employees on other occasions: and that Respondent impermissibly threatened layoffs and loss of benefits if the Union was chosen as the employees' bargaining representa- tive. Respondent, however, contends that those find- ings are insufficient to warrant setting aside the elec- tion. Respondent further contends that the single instance of unlawful conduct which occurred during the critical period is an isolated incident unrelated to the earlier 8(a)(I) violations, and that its impact, if any, upon the outcome of the election was (de minimis. The Board fund, and the court agreed, that prior to the filing of the petition in the instant case Respon- dent's plant manager and a supervisor visited four employees at their homes on the evening of May 7, 1976, with the stated purpose of finding out what complaints the employees had. Also in the prepetition period Respondent's supervisors threatened loss of benefits if the Union was elected, and unlawfully in- terrogated two employees, one of whom, Nichols, was later again unlawfully interrogated during the critical period. In light of these findings, we find no merit in Respondent's contentions. Respondent correctly cites 1Th Ideal Electric and Manuliwturing, (ompat,. 4 for the proposition that the Board will not consider instances of prepetition con- duct as a basis upon which to set aside an election. However, its we noted in Slevlcnson Equipment Clm- panv,s the ltdeal Eleclric rule does not preclude con- sideration of conduct occurring before the petition is filed where, as here, such conduct adds meaning and dimension to related postpetition conduct. Applying the Stevenson principle to the facts of the instant case, it readily appears that Respondent's prepetition ac- tivities-interrogations and threats were designed to defeat unionization of its facilities. Further examina- tion of Respondent's prepetition conduct reveals that the critical period interrogation of and promise of benefit to Nichols by a supervisor was a continuation of Respondent's earlier attempts to thwart unioniza- tion. Respondent further argues that the incident in the critical period was isolated. We disagree. In light of the number and severity of Respondent's illegal acts hef/re the tiling of the petition on May 18, 1976, Re- spondent's contention that the single postpetition io- 4 134 NlRB 1275 (1961) ' 174 NI.RB 865. 866, In. I 11969): Sec also If arren If ParkeC d ha Parke (rl Companv. 219 NL.RB 546. 547 (1975). 242 NLRB No. 14 74 [)RFSStR INI)t SIRRI.S. IN('. lation is isolated is not supported in either fact or law. Rather, the single violation of Section 8(a)( ) of the Act which occurred during the critical preelection pe- riod is hut an extension of' Respondent's consistent pattern of antiunion conduct that has now been en- fobrced by the court of appeals. As the court of appeals found, Respondent com- mitted several violations of Section 8(a)( I ) of the Act between May 4 and July 22. 1976, a period slightly exceeding 2 months. Specifically, a supervisor in- quired of an employee whether the latter intended to attend a union meeting and stated that he would tell the plant manager of the employee's action. Respon- dent's plant manager and a supervisor visited the homes of four employees after working hours to elicit any complaints the employees had and to discuss the disadvantages of a union: and another supervisor in- terrogated et another employee about the Union and threatened reprisals such as layoffs and mine clo- sure if the employees selected the Union to represent them. Finally, this same supervisor approached an employee only a few days bef;re the election, interro- gated him regarding the employee's predisposition toward the Union. and promised him a raise. Under these circumstances, we cannot agree with our dissenting colleague that the statements made bh Mine Foreman Johnson to employee Nichols on Jul\ 15 were casual and isolated in nature and therefore do not constitute grounds for a second election. The Board has repeatedly held that statements made prior to an election can reasonably be expected to be re- peated and discussed by employees.6 In addition, we note that at the time of the election there were 41 employees in the unit and that the Board has set aside elections where the ratio of violations to employees was higher than in the instant proceeding.' Further- more, as we indicated in our original decision in this case,' we may legitimately assess the impact of coer- cive statements on the basis of the closeness of the election results. In view of the fact that the Union lost the election herein by only a single vote, we find the conclusion inescapable that Respondent's unlawful conduct affected the results of the election. We do not believe that the recent decision of the court of appeals should lead to a different conclusion simply because it finds that some of Respondent's ac- tions prior to the filing of the petition did not violate the Act. As indicated in this Supplemental D)ecision a significant portion of that conduct has been ftund Sol Henlindl. an Indiidul, d/h, a (relnprk (are (Clner, 236 NI.RB 683 (1978): Super 7hrli larkAet. In tC a Enohi Spelr Thrili. 233 N.RB 409 (1977): 'fontgmers Ward & (Co Incrpriawd. 232 Nl.RB 848 (1978): Inler iontininal ktanuilwturin (apini In, 167 N I RB 769 t1967) Sndard Aiinyg Mitll,, Ir, , 172 NRB 1122 l1968) 'Id See alsi (iuclnm Riclen, Di ,! -hestin Riscire. In, 230) NLRB 247 1977) 8 Dresser Indu.trie.i, In . siipr a In I See als. luirt,-l cc 4I enu, c ( .rpo,- ration dh/ba The Hleartm . 225 NI RB 719 (1 976) violative, and we continue to be of the view that the prepetition conduct in this case lends additional meaning to Johnson's unlawful statements that were made just I week beftre this close election.9 Accordingly, we reaffirm our earlier holding that the first election must be set aside and that a second election be directed. and therefor shall deny Respon- dent's motion. ORDER It is herehb ordered that Respondent's motion for reconsideration be, and it hereby is, denied as lacking merit. M[: 1t1R MIL RPIItM, dissenting: ('ontrar. to my colleagues. I kould grant Respon- dent's motion tfor reconsideration. In the original decision in this case. I joined m colleagues in finding that Respondent had committed several violati ons of Section 8(a )( I) of' the Act ."' Iiow- ever, in light of' the decision of the court of' appeals that many of the 8(a)(l) violiations as ound by the Board were not supported b substantial evidence in the record as a whole, our [)irection of Second Elec- tion is unwarranted, fr, the single 8(a)( 1 ) violation which occurred in the critical period had a minimal impact. i an, on the outcome of' the election. As tile ma joritN concedes, most oft Respondent's conduct which would otherwise be objectionahle oc- curred prior to the filing of' the petition in the instant case. lwever, the majorit% has relied on this prepe- tition conduct erroneousl to find that the sole violation oft' Section (a)( I) of the Act which occurred in the critical period , tarrants the direction oft' a sec- ondl election. notitlhsttandingg the well-settled rule that prepetition conduct cannot he the basis for set- ting aside an election11 Indeed the majorit misstates the holding of the court in asserting that "the court ... ound . . . several violations of Section 8(a)( ) of the Act between MaN 4 and July 22, 1976, a period slightly exceeding 2 months." What the court found in act. was a number of 8(a) (l) violations between Ma? 4 and Mal 17. 1976 (prior to the filing of the petition), and one violation on Juli 15, approximatel\ 2 months later. The election was held on JulI 22. The majorit\ circumvents the cal flectric rule hb * We strong)l disagree illh the dlssrt' co lnletliln that our declioln e - tends the principles expressed in Stee, .. l. i I:qrtltpllkc, t clpri.; and I lrrln Iti Pirkel. slpra. t the poinl here the create ccmplete excepticon I) the Ideal Fle ctric rule We thlnk the Itet aIho c clearl Indicales that we are not lend- ing lindesersed ignifica.ice tic Respondent's cndut thllt occurred prior to Ma, 18. 1976. the dte Ihe petiti.on .tis tilet R.ather. we reler t that con- ducil ,nhl tio put Jhnssontls tltlv .tll p tpctutln st.altemlents in he proper perspectce 231 Nl RB 591 (1977) h 1w Idca l /ctrc a n l, turi , ( ,mpa., In,. 134 NI RB 1275 1962) 75 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its misconstruction of Stevenson Equipment CompanL. In Stevenson, the Board stated in a footnote that "[w]hile we agree . . . that the rule in Ideal Electric and Manufacturing Company .. forbids specific reli- ance upon prepetition conduct as grounds for object- ing to an election, such conduct may properly be con- sidered insofar as it lends meaning and dimension to related postpetition conduct."'2 The meaning of this statement is clear: there was then, as now, no intent to depart from the Ideal Electric principle, nor was there intent to create another exception to the rule.'3 The majority is creating a complete exception to Ideal Electric from what was intended as a limited qualifi- cation. And by considering the prepetition conduct under the guise of the Stevenson test, my colleagues have, in effect, evaded the Ideal Electric principle and expanded Stevenson beyond its intended parameters. In this case the conduct in the preelection period is not sufficiently connected to the single, isolated post- petition violation of Section 8(a)(1) to warrant the majority's extension of Stevenson in order to avoid the Ideal Electric rule. In this regard, it is significant that the court of appeals concluded that the Board's find- ings that Respondent violated Section 8(a)(I) of the Act by interrogating employee Stocking, creating the impression of surveillance, threatening to close its mine, soliciting grievances, and granting a wage in- crease because of the presence of the Union were not supported by substantial evidence. In light of the court's failure to find these violations, the casual in- terrogation and promise of benefits in the critical pe- riod is an isolated act which does not warrant setting aside the results of the first election. The majority cites several cases in footnote 6 of its 12 174 NLRB 865, 866, fn. 1 (1969). I' There are instances where the Board has recognized exceptions to the Ideal Electric rule. For example, in Gibson's Discount Center, A Division cf Scrivner-Boogaarl. Inc., 214 NLRB 221 (1974), the Board held that a prepe- tition offer to waive initiation fees in contravention of N.L.R.B. v. Svair Manufacturing Conmpany, 414 U.S. 270 (1973), was sufficient grounds for setting aside an election, and in Willis Shaot Frozen Expresv Inc., 209 NLRB 267 (1974), the Board set aside an election based on egregious acts of vic- lence committed in the prepetition period. Clearly. neither of these excep- tions is applicable here. opinion for the proposition that "statements made prior to an election can reasonably be expected to be repeated and discussed by employees." However, in each of those cases the Board found the statements at issue to constitute either threats of reprisal for union activity or threats plus interrogation, and, thus, such cases provide little or no support for the majority's holding here. The majority cites no cases where, in the absence of any evidence on the issue, the Board has found dissemination of a single isolated interroga- tion and implied promise of benefit. Indeed, when dealing with an isolated remark such as the one at issue here, and where no evidence is adduced that the statement was repeated and discussed by other unit employees, a contrary inference is more reasonable. This is particularly so, where, as here, the promise of benefit was by its terms applicable only to the em- ployees to whom it was made.'4 Acceptance of the majority's argument, per se, ex- tends Stevenson and lends undeserved significance to the acts occurring prior to May 18, 1976, the date the petition was filed in this case. The majority has exam- ined the prepetition conduct under the guise of Ste- venson because it occurred, not because it bears any relationship to the earlier events. However, Stevenson stands only for the proposition that objectionable conduct occurring prior to the filing of the petition may lend "meaning and dimension" to the post-peti- tion conduct. This does not imply that anything which happens in the period before the petition is filed is to be considered to buttress or lend signif- icance to conduct which occurs after the filing of the petition and before the election. Accordingly, I find that Stevenson is inapposite. On the basis of the foregoing, I find that Respon- dent's motion has merit and would issue a Notice To Show Cause why the Direction of Second Election should not be rescinded and the results of the first election certified. 4 In these circumstances, my colleagues' conclusion that the single inci- dent of unlawful conduct "affected the results of the election" is neither "inescapable" nor readily perceived, or, for that matter, very likely. 76