Carbonneau Industries, Inc.

National Labor Relations Board - Board Decisions

Mar 9, 1977

228 N.L.R.B. 597 (N.L.R.B. 1977)

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.