Flex Products, Inc.

FLEX PRODUCTS Flex Products, Inc. and Shopmen's Local Union No. 662 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL- CIO, Petitioner. Case 8-RC-13190 26 June 1986 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS The National Labor Relations Board, by a three- member panel, has considered determinative chal- lenges in an election held 19 April 1985 and the Regional Director's report recommending disposi- tion of them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 42 for and 106 against the Petitioner, with no challenged ballots. The Board has reviewed the record in light of the exceptions, has adopted the Regional Director's findings and recommendations only to the extent consistent with this decision, and finds that a certi- fication of results of election should be issued. The hearing officer recommended overruling the Peti- tioner's Objections 3, 4, 6, 8, and 14 and sustaining its Objection 2. In the absence of exceptions, we adopt the recommendations to overrule the various objections. For the following reasons, we do not adopt the recommendation to sustain Objection 2. Shopmen's Local 662 petitioned to represent the production and maintenance employees at the Em- ployer's Mt. Eaton, Ohio plant. Two days before the election, the Employer held meetings of the first- and second-shift employees at which the Em- ployer's president, Glenn Burket, gave speeches opposing the Union. On the next day, over a 10- hour period, about 120 of the 164 unit employees' were called one at a time into the plant manager's office, where they met with Burket alone. (Burket's own office was not located at the Mt. Eaton facili- ty.) Burket told each employee that the purpose of the meeting was to give the employee an opportu- nity to ask Burket questions concerning the mass meeting held the previous day, because some people were too shy to ask questions in front of a group. The evidence concerning what further tran- spired in these individual meetings is as follows. Employee Eve Karlen testified that her meeting with Burket "was about the voting and any ques- tions you had about the Union. He thought that ' The hearing officer's report states that Burket met with "all Flex em- ployees" and "virtually every employee eligible to vote," but these state- ments are not supported by the record Apparently Burket met with all the employees in the unit who were present that day 280 NLRB No. 61 1117 some might be too shy to have asked him any questions. So it was about the Union, I guess." She testified that her meeting with Burket, as well as those of other employees, lasted about 5 minutes, although "some people were in there longer." Concerning her meeting with Burket, employee Kathleen Brand testified: I asked him why the company and the union couldn't work together for the benefit of the company. He said not with this union. Then he said that people might have their minds made up, and then once they get in the voting booth, change at the last minute. Then he asked me when my baby was due and things like that, how many kids I had. Employee Louisa Tusing testified that in re- sponse to a question she asked during her meeting with Burket, Burket said that the Company had moved out of its Midvale facility because the union was costing them money and was more trouble than it was worth. Finally, employee Roberta Zimmerly testified that she had been in the office area and overheard part of the meeting between Burket and an em- ployee named Juanita. According to Zimmerly, Juanita said to Burket, "I thought we weren't al- lowed to talk to you 24 hours before the vote." Burket replied, "I'm allowed to talk to anybody I want. This is my company." Zimmerly heard noth- ing further except that at the end of the conversa- tion Juanita said, "Thanks for talking to me, Glenn. I appreciate it," and Burket replied, "I'd appreciate your `no' vote." There was also uncontroverted testimony that Burket had on previous occasions talked to em- ployees in the plant manager's office and had walked around the plant and talked to employees. Also, it appears that the employees customarily called Burket by his first name. As noted, the hearing officer recommended that all the Union's objections to the election be over- ruled except Objection 2, concerning Burket' s indi- vidual meetings with employees during the 24-hour period before the election. With respect to Objection 2, the hearing officer, rejecting the Union's contention, found that Bur- ket's individual meetings with employees did not violate the rule of Peerless Plywood, 107 NLRB 427 (1953), barring election speeches on company time to massed assemblies of employees within 24 hours prior to the election.2 The hearing officer, howev- 2 We note that although no exceptions have been filed to the hearing officer's finding that the Employer's conduct did not violate the rule of Peerless Plywood, we specifically agree with the finding 1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD er, found Burket's meeting with the individual em- ployees to be objectionable conduct under NVF Co., 210 NLRB 663 (1974). That case holds that when an employer during an election campaign calls employees, individually or in small groups, into a private, area removed from their normal workplace and urges them to reject the union, such actions may constitute objectionable conduct de- pending on the size of the groups interviewed, the locus of the interview, the position of the inter- viewer in the employer's hierarchy, and the tenor of the speaker's remarks. Applying this test, the hearing officer found that in this case the size of the group interviewed could not be any smaller as the Employer interviewed each employee individ- ually; the interviews took place in the "locus of final authority in the plant," the plant manager's office; the interviewer was the highest official in the Company, the president; and the tenor of the speaker's remark was "decidedly anti-union and a solicitation for a 'no' vote on the next day." Ac- cordingly, the hearing officer held that Burket's in- dividual meetings with the employees reasonably tended to interfere with the employees' free choice in the election and recommended that the election be set aside. We disagree with the hearing officer's conclusion that Burket's meetings with individual employees constituted objectionable conduct under NVF Co., supra. Prior to NVF, the Board, in Peoples Drug Stores, 119 NLRB 634, 636 (1957), had held objec- tionable "the technique of calling employees, indi- vidually or in small groups, into a private area re- moved from the employees' normal workplaces and urging them to reject the union." NVF reject- ed the per se rule of Peoples Drug Stores and held that such conduct would be deemed objectionable "only where it can be said on reasonable grounds that, because of the small size of the groups inter- viewed, the locus of the interview, the position of the interviewer in the employer's hierarchy, and the tenor of the speaker's remarks, we are not justi- fied in assuming that the election results represent- ed the employees' true wishes." The Board added, "In making this determination, all the facts in a particular case must be carefully weighed." 210 NLRB at 664. Applying the factors articulated in NVF, we find that, although the employees were interviewed in- dividually, there is no evidence that the employees were being singled out for special pressure, the factor which was of concern in NVF. To the con- trary, Burket told each employee that he was speaking to the employees individually because he thought that shy individuals may be unwilling to present questions in a group . Moreover, the em- ployees were aware that Burket was meeting indi- vidually with virtually every employee present at the plant. Although the locus of the interview was the plant manager's office , there is evidence that the employees had been in the plant manager's office on prior occasions to meet with Burket or for other reasons, and that they were familiar with it. Burket himself was familiar to the employees be- cause he periodically visited the plant and walked around and greeted the employees . Several of the employee witnesses called him by his first name. Finally, contrary to the hearing officer 's conclu- sion, the record is quite clear through the testimo- ny of each employee witness that the tenor of Bur- ket's remarks to the employees in his meetings with them was noncoercive and temperate in tone.3 Burket told each employee that the purpose of his meeting with them was to give them an opportuni- ty to ask him questions concerning the previous day's meetings because some people were too shy to ask questions in front of a group . Burket an- swered whatever questions the employees had and then simply made small talk with them . Burket's request at the end of his meeting to one or more employees that the employee "vote no" does not constitute coercive or intimidating conduct, which warrants setting aside the election . Therefore, and in view of our findings with respect to the other three factors discussed above, we conclude that Burket's individual meetings with employees did not constitute conduct warranting that the election be set aside under the test of NVF. Accordingly, we shall certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION IT IS CERTIFIED that a majority of the valid bal- lots have not been cast for Shopmen 's Local Union No. 662 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL- CIO, and that it is not the exclusive representative of these bargaining unit employees. 3 As noted above, the hearing officer characterized the remarks attrib- uted to Burket as "decidedly anti-union " The hearing officer did not specify the testimony on which he relied or otherwise elaborate on the basis for his characterization of the remarks attributed to Bucket. Consid- ering all the evidence concerning such remarks, including Burket's state- ment in response to employee questions and his statement that he would appreciate a "no" vote, we cannot agree with the hearing officer's char. acterization.