Duo-Fast Corp.

52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Duo-Fast Corporation and Fred Axcenty, Petitioner, and Production, Merchandising and Distribution Employees Union Local 210, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Union. Case 29-RD-495 16 January 1986 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN The National Labor Relations Board, by a three- member panel, has considered objections to an election held 15 June 1984 and the hearing officer's report recommending sustaining them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows two for, and seven against, the Union, with no challenged bal- lots. The Board has reviewed the record in light of the exceptions and brief, and adopts the hearing of- ficer's- findings' and recommendations only to the extent consistent with this decision. 1. In Objection 1, the Union alleged that the Em- ployer interfered with the free conduct of the elec- tion by promising improved benefits if the employ- ees voted against the Union. The credited facts are as follows. At a 7 June 1984 meeting with the unit employees, Division Manager Stephen Leber dis- tributed a leaflet, signed by him, comparing bene- fits received by the union-represented employees with benefits received by the Employer's nonunion employees with respect to life insurance, accidental death and dismemberment, hospital services, pro- fessional services, major medical, maternity, opti- cal, and dental benefits. The Employer's nonunion benefits were generally better. Preceding the com- parisons, the leaflet stated, "I'm not promising you better medical benefits if you vote `No' on June 15th but you should know our non-union employ- ees' medical benefits." The leaflet concluded, "[G]ive me and Duo-Fast a chance to show you that you don't need Local 210. Vote `No' on June 15." When distributing the leaflet, Leber stated that if the employees voted the Union out, they would receive "basically this type of coverage." In addi- tion, Leber answered employee questions concern- ing medical coverage, not only at the 7 June meet- ing, but at employee meetings held on 8 or 9, 13, and 14 June. In response to an employee's question ' The Employer has excepted to some of the hearing officer's credibil- ity findings The Board's established policy is not to overrule a hearing officer's credibility resolutions unless the clear preponderance of all the about when the medical coverage would go into effect, Leber answered, "immediately" or "most likely right away," and that "he would get back" to the employee. Leber further stated that "once the contract had ended, then most likely it would go into effect right away." Although it is unclear that Leber stated at every meeting that he was not making any promises, it is undisputed that he made this disclaimer at some of the meetings. The hearing officer acknowledged that although a comparison of benefits is not per se objectionable, it may be objectionable if the circumstances indi- cate it amounts to an express or implied promise. Based on the totality of the present circumstances, she found that the Employer had made an implied promise of benefit and that this was not nullified by the disclaimers. She, therefore, recommended that the objection be sustained. We do not agree. The Employer's alleged misconduct can be sepa- rated into two actions: first, it circulated a leaflet comparing the insurance benefits of its union-repre- sented employees with the benefits it provided to its nonunion employees; second, through its divi- sion manager, Leber, it answered employee inquir- ies about a possible change in insurance coverage. Concerning the former, as the hearing officer cor- rectly stated, such a comparison is not per se ob- jectionable.2 Concerning the latter, the Board has permitted employers to explain that there will not be a gap in insurance coverage should a change occur and that such explanations do not amount to promises.3 Contrary to the hearing officer, we find no convincing support in the record for a determi- nation that the Employer did anything more than make an honest comparison of benefits or give a straightforward explanation concerning insurance coverage in the event of a change in union repre- sentation. The hearing officer apparently sought to distin- guish Viacom Cablevision, supra, in which similar action was found unobjectionable, by stressing that in that case the employer's comparisons were in re- sponse to employee questions, accompanied by dis- claimers of promises, discussed with topics other than wages, and made in the absence of other ob- jectionable conduct. We do not agree with her analysis. Instead, we find that those very same fac- tors on which the Board relied in Viacom to find the conduct permissible are present here. Although the leaflet, the focal point of this objection, was not published in response to employee questions, it did contain an explicit disclaimer of promises, and this disclaimer was repeated more than once by Divi- relevant evidence convinces us that they are incorrect Stretch-Tex Co, 2 Viacom Cablevision, 267 NLRB 1141 (1983). 118 NLRB 1359, 1361 (1957). We find no basis for reversing the findings 3 Best Western Executive Inn, 272 NLRB 1315 (1984) 278 NLRB No. 10 DUO-FAST CORP. 53 Sion Manager Leber in his meetings with the em- ployees. Further, all Leber's oral comments con- cerning the insurance were made in specific re- sponse to employee questions and, as in Viacom, Leber discussed other topics in his meetings, in- chiding a recent arbitration, future negotiations, and union dues. Finally, in light of our overruling Objection 2, infra, the Employer here engaged in no other objectionable conduct. We must conclude, as we did in Viacom, in similar circumstances, that the record discloses no extraordinary efforts by the Employer that would constitute a promise of bene- fit, either express or implied, should the employees vote the Union out.4 We, consequently, do not find that the Employer's honest comparison of benefits or discussion of the timing of insurance coverage, uncoupled with any promises, amounts to objec- tionable conduct.5 _ Accordingly, we reverse the hearing officer and overrule Objection 1.6 2. In Objection 2, the Union alleged that the Em- ployer interfered with the free conduct of the elec- tion by providing a $50 bonus to each unit employ- ee during the preelection period. The facts show that minimal service charges were collected from counter consumers for the repair of small tools by the unit employees. However, these moneys did not go into the Employer's general funds. Instead, pursuant to a practice in effect since 1978, Division Manager Leber would divide the current amount among the unit employees as a bonus for their good work, adding money from his own pocket, if necessary, to round out the amount. He would dis- tribute bonuses in this manner approximately four to six times per year and, according to the credited testimony of employee Fred Axcenty, about the longest period between these payments was 2 months. Each unit employee would receive be- tween $30 and $90, and Leber would thank each for his good work. Bookkeeper Doreen Popule turned over $340 of this money to Leber between 24 January, and 17 February 1984. Leber divided and distributed the 4 On the other hand, we distinguish Ranco Inc., 241 NLRB 685 (1979), on which the hearing officer relied In that case, supervisors made exphc- it the constantly implied message in the employer 's written commumca- tions that the unionized employees would receive increased benefits if they rejected the union. Further, no disclaimers of promises were made. 5 See also KCRA-TV, 271 NLRB 1288 (1984) 8 Member Dennis , dissenting, would find, in agreement with the hear- ing officer, that Division Manager Leber made an objectionable promise of benefit while distributing the leaflet comparing fringe benefits the Em- ployer's union-represented employees and its nonunion employees re- ceived As discussed above, Leber stated that if the employees voted the Uniion out, they would receive "basically this type of coverage." Leber's statement went beyond a mere comparison of benefits or an assurance that there would be no gap in coverage from any existing plan to a non- union plan. As the hearing officer found , Leber's statement constituted a promise "that the better plan would go into effect after the election" if the Union lost . Accordingly, Member Dennis would direct a second elec- tion, money among the employees sometime in March. Between 2 March and 17 April 1984, Popule col- lected $336.23. This money was divided and dis- tributed among the unit employees in $50 amounts on 7 June, approximately 1 week before the elec- tion. When Leber handed each employee his bonus, he made no reference to the Union or the upcoming election. The hearing officer cited Board precedent which holds that it is objectionable for an employer to grant benefits during the preelection period unless it can establish that the timing was based on factors unrelated to the election. She found that the Em- ployer's practice of distributing the bonuses had no set pattern either concerning timing or amount and that, therefore, the Employer had not met its burden. She, accordingly, recommended that the objection be sustained. We do not agree. According to undisputed evidence, the Employ- er's pattern of distributing these bonuses was dis- cernible, although obviously not precise, both as to timing and amount. Thus, the bonuses were given at least once every quarter (and usually at least once every 2 months) and were in amounts be- tween $30 and $90. The Employer's dispensation of the bonuses on 7 June fits this pattern on both counts. The bonuses were in the lower half of the monetary range and were not given earlier than the employees reason- ably could have expected. It is well settled that an employer must continue to provide benefits as if an election were not pending.? Here, consistent with earlier practice, the Employer provided two distri- butions within the first two quarters of the, year and well within the range of amounts it usually provided. Absolutely no evidence was adduced to show that Leber orally, or otherwise, linked the bonuses to the election, or that he varied from his practice of merely thanking the employees for their good work. Further, the Board has found it impermissible for employers, during the preelection period, to dis- continue benefits normally provided if those bene- fits have been provided in the, past in a discernible, albeit somewhat imprecise, manner." The Employ- er has established that it has not deviated from its practice of providing this benefit. We, accordingly, reverse the hearing officer on this issue as well and overrule Objection 2. As all objections in this case have been over- ruled, we shall certify the results of the election. 7 See, e g., StumpfMotor Co, 209 NLRB 431, 433 (1974), Gates Rubber Co., 182 NLRB 95 (1970). 8 See Gossen Co., 254 NLRB 339, 353-355, 368 (1981), enfd in part 719 F.2d 1354 (7th Cir. 1983). 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CERTIFICATION OF RESULTS OF dising and Distribution Employees Union Local ELECTION ' 210, International Brotherhood of , Teamsters, IT IS CERTIFIED that a majority of the valid bal- Chauffeurs, Warehousemen and Helpers of Amer- ica, and that it is not the exclusive representative of lots have not been cast for Production , Merchan- these bargaining unit employees.