Mr. Fine, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1974

212 N.L.R.B. 399 (N.L.R.B. 1974)

MR. FINE, INC.
Mr. Fine, Inc. and International Ladies' Garment
Workers ' Union, Texas-Oklahoma District Council,
affiliated with International Ladies' Garment Work=
ers' Union, AFL-CIO. Cases 16-CA-5311 and
16-RC-6390
June 28, 1974
- DECISION AND ORDER AND
CERTIFICATION OF RESULTS OF ELECTION
By CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On March 29, 1974, Administrative Law Judge
John G. Gregg issued the attached Decision in this
proceeding. Thereafter, General Counsel and Charg-
ing Party-Petitioner filed exceptions and supporting
briefs, and Respondent filed a brief and a reply brief.'
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.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for International Ladies'
Garment Workers ' Union , Texas-Oklahoma District
Council, affiliated with International Ladies' Gar-
ment Workers ' Union , AFL-CIO, and that said labor
organization is not the exclusive representative of all
the employees, in the unit herein involved, within the
meaning of Section 9(a) of the National Labor Rela-
tions Act, as amended.
1 Respondent filed a "Motion to Correct Record" and General Counsel
filed a "Response in Opposition" thereto. It appears that Respondent's mo-
tion would not correct the alleged error in the transcript Since the alleged
error is not prejudicial and does not affect our decision herein, we hereby
deny Respondent's "Motion to Correct Record."
DECISION
399
JOHN G. GREGG, Administrative Law Judge: The com-
plaint herein consolidated for trial certain objections of the
Charging Party-Petitioner (the Union) to conduct of the
Respondent-Employer (the Respondent) that was claimed
to have so affected the outcome of the representation elec-
tion conducted by the Board of Respondent's Jacksonville,
Texas, facility on October 18, 1973, as to require that the
election be set aside for a new election, Case 16-RC-6390;
and the complaint of alleged unfair labor practices by the
Respondent issued November 30, 1973, on a charge filed by
the Union October 15, 1973, Case 16-CA-5311 ; alleging
essentially that the Respondent Company by certain acts
interfered with, restrained, and coerced its employees in the
exercise of their statutory rights, thereby committing unfair
labor practices in violation of Sections 8(a)(1) and 2(6) and
(7) of the National Labor Relations Act, as amended, 29
U.S.C. Sec. 151, et seq. The Respondent denies the commis-
sion of any unfair labor practices. The case was tried before
me at Jacksonville, Texas, on January 22, 23 and 24, 1974.
Upon the entire record herein, including my observation
of the demeanor of the witnesses as they testified and care-
ful consideration of the briefs filed, I make the-fallowing:
FINDINGS OF FACT
1. JURISDICTION
A. The Respondent is, and has been at all times material
herein a corporation duly organized under and existing by
virtue of the laws of the State of Texas, where it is engaged
in the manufacture and sale of ladies' garments, maintain-
ing its principal place of business at 1555 Regal Row, Dal-
las, Texas. During the past 12 months, which period is
representative of all times material herein the Respondent,
in the course and conduct of its business operations, manu-
factured and shipped from its Jacksonville, Texas, facility
products valued in excess of $50,000 directly to points out-
side the State of Texas. The Respondent is now, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
B. The complaint alleges and the Respondent denies,
that the International Ladies' Garment Workers' Union,
Texas-Oklahoma District Council, affiliated with Interna-
tional Ladies' Garment Workers' Union, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the
Act.
The record establishes that the Texas-Oklahoma District
Council is an association of some seven local labor organi-
zations which represents employees in the garment manu-
facturing industry in Texas and Oklahoma. It has as its
purpose the organizing of shops, the negotiating and admin-
istering of contracts, and the promoting of the health and
welfare of its membership. Each local labor union is entitled
to a certain number of delegates to the Council.
The Board has consistently looked to the purpose of an
alleged labor organization and whether its member unions
or locals participate in it through representatives or dele-
212 NLRB No. 49
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gates. Washoe Investment Co., Inc., d/b/a Crystal Bay Club,
169 NLRB 838 (1968 ); Halliburton Company, 142 NLRB
644 (1963).
Accordingly, I find that the Texas -Oklahoma District
Council is , and has been at all times material herein , a labor
organization within the meaning of Section 2 (5) of the Act.
11 THE ALLEGED UNFAIR LABOR PRACTICES AND OBJECTIONS TO THE
ELECTION
A. Background
The record discloses that the Charging Party , Union here-
in, began its organizing campaign at the Jacksonville plant
on July 26, 1973 . An election was held at Jacksonville on
October 18, 1973 , at which 83 votes were cast for the Union
and 85 votes cast against the Union with 2 ballots chal-
lenged . The Union filed objections to set aside the election
asserting, among other grounds, the following which were
ordered to be heard herein : I. The election observer used by
the Employer was a supervisor as defined in the Act ; 9. after
October 15, 1973 the Employer regularly took individual
employees away from the production line for interrogation
and thereby caused reduced productivity and lost wages for
such and other remaining production line workers ; 10. the
Employer, during the course of the Union organizational
campaign granted additional benefits to his employees in
the form of a profit-sharing plan; 12 . dunng the course of
the Charging Party's organizational campaign the Employer
increased employee benefits.
Additionally , unfair labor practice charges were filed by
the Union and the complaint herein duly issued asserting
essentially that the Respondent , (a) By Glenn Kelly on or
about September 15, 1973, to October 17, 1973, orally inter-
rogated employees at the plant concerning their Union
membership , activities , and desires ; (b) by Glenn Kelly on
or about September 15, 1973, to October 17, 1973, orally
opposed collective bargaining telling employees the Re-
spondent would refuse to sign a contract with the Union
even if the Union were chosen to represent the employees;
(c) by T. E. Beach on or about September 7, 1973 , instituted
an employee profit -sharing plan in order to induce employ-
ees from becoming and remaining Union members, or giv-
ing assistance to the Union ; (d) by T . E. Beach on or about
August 15, 1973, granted an absentee wage rate increase
and a piece rate wage increase to its employees to induce
them not to become or remain Union members or giving
assistance to the Union.
B. The Status of Mary Lewis
The record discloses that Mary Lewis, an employee of the
Respondent, was appointed an election observer by the Re-
spondent . The stated Union objection is that Lewis was a
supervisor as defined in the Act.
Mary Lewis testified that she worked in the thread room
at the Jacksonville plant . On arrival at the plant each morn-
ing she secures counts from the warehouse of the completed
garments to be shipped out that day, and prepares an in-
voice of such garments for the truckdriver . She then checks
the cut sheets and trim delivered that morning by Company
truck from Dallas, and takes the sewing guide and invoice
sheet to Glenn Kelly, and when they are subsequently re-
turned to the thread room she records them in a book,
checking to ascertain whether she has everything needed to
make a cut with.
Lewis testified that when more interlining is required, she
cuts interlining , and generally services requests by supervi-
sors and workers for thread . She also recuts percolene inter-
lining which has runners or holes.
Between 11 and 11:30 each morning she answers the
office telephone while the secretary , Curtis, goes to lunch,
then she returns to the thread room.
In the afternoon Lewis starts counting to get ready for the
cuts to be shipped the next morning , going back and forth
to the warehouse.
According to Lewis, on Fridays from 3 to 4 p.m. she posts
rates on timecards , and if the secretary is busy, clips checks
to the timecards and places them in the rack . Lewis stated
that the rates are computed by the secretary and that she,
Lewis, merely posts it on the card.
Lewis stated that she works the thread room by herself.
The thread room is lined on two walls with shelves on which
there is kept buttons , trim, lace , boxes of thread , elastic and
so forth . After the thread , buttons , and zippers go out to the
production line, the residue is returned and redeposited in
the inventory . The room also contains a desk and a table on
which Lewis recuts material. Under the table is the perpo-
lene or other interlining to be recut.
Lewis stated that she has no helpers who work for her, has
no authority to hire, transfer , suspend , lay off , recall, pro-
mote , discharge , assign, reward or discipline any employee,
nor any responsibility to direct other employees as to what
they are to do, nor does she have authority to effectively
recommend in the foregoing areas.
Lewis stated she took orders directly from Glenn Kelly,
and that she had never attended a• supervisors ' meeting.
There was testimony of record by other employees con-
cerning Lewis ' fob functions . Marie Carlile testified that if
a dress or item was missing Lewis goes to the line girls "and
asks them or tells them if one is missing " and if the item
needs recuffing Lewis tells them how to do it. Carlile also
stated that when Kelly called supervisors ' meetings Lewis
attended.
Sandra Gibson, another employee testified when she
racked completed garments , Lewis would come check them,
and if the amount was incorrect , Lewis would tell Gibson
to "go in there and check the sizes ." Similarly, if one of the
items was not satisfactorily cleaned , Lewis would hand it to
Gibson and tell her to clean it, that it needed cleaning.
Gibson testified that on a number of occasions she had been
scolded by Lewis.
Glenn Kelly, the plant manager, testified that Lewis nev-
er attended supervisors ' meetings, and that she had no one
under her supervision.
Based on my observation of the demeanor of the witness-
es, Mary Lewis and Glenn Kelly as they testified , I credit
their testimony . Both were direct , uncontrived , straightfor-
ward and impressed me with their sincerity and truthful-
ness. In my view, the record does not support a finding that
Mary Lewis is a supervisor within the meaning of the Act.
Substantially , most of her time is spent in the thread room
MR. FINE, INC. 401
operation. The Charging Party concedes that, the thread
room work does not entail direct supervision of any employ-
ees.
While the Charging Party argues in the alternative that
Lewis was a person "closely identified with the employer"
and accordingly should be held to be a supervisor , I am not
so persuaded on this record, distinguishing International
Stamping Company, 97 NLRB 921(1951), on the basis of the
peculiar family relationship involved in that case.
I do not find established on this record any of the criteria
clearly set forth in the Act, and accordingly overrule Objec-
tion 1 to the conduct of the election.
C. The Alleged Interrogation of Employees by Glenn Kelly
and Kelly's Alleged Opposition to Collective Bargaining
The record establishes that Glenn Kelly did in fact con-
duct meetings with employees as alleged in the complaint
and the objections herein, in the lunchroom, during working
hours during the period August 1973, to the time of the
election on October 18, 1973.
In his testimony Kelly stated that in conducting these
meetings or interviews, he bore in mind the very strict in-
structions which he had received at meetings in August
1973, between company management and its counsel con-
cerning what he and the supervisors were permitted to do
and not allowed to do. He described these basically as fol-
lows, that during the Union campaign there could be no
promises made to employees, no changes made, no threats
made and no direct questioning of employees as to their
union activities.
Kelly stated that he had not questioned any employee
concerning the employees' union activities or attitudes but
had made two specific statements to all employees inter-
viewed in accordance with his instructions. "I told them that
I was not allowed to ask them of their union activities, and
I was not allowed to ask them how they would vote."
Donna Lyles, an employee, in her testimony stated that
in her meeting with Kelly there was discussion of benefits,
with Kelly stating that benefits in the Respondent's plant
were better than the other plants in town, wages higher, and
that he felt they would be better off without a union. Ac-
cording to Lyles, Kelly asked her what she thought about
the Union and explained why a Union was not needed. She
testified that during the discussion, Kelly told her he would
not sign a contract if the Union was chosen.
There was testimony by employee Laverne Harris who
stated that in her meeting with Kelly "he just said that the
Union was not going to do us any good." On cross-examina-
tion, in response to a direct question, Harris stated that
Kelly had not stated to her in the meeting that he was not
allowed to ask her opinion about the Union or ask how she
would vote.
There was testimony by Donna Summerhill, who stated
that in her meeting with Kelly they discussed various sub-
jects and Kelly asked her what she thought about the
Union, whether the Union could get anything for the em-
ployees, that Kelly stated that the Company was the one to
decide what the employees were going to get, that "the
Union could not give us anything."
An analysis of the relevant testimony of record concern-
ing the meetings or interviewswith employees conducted by
Kelly, leads me to find that such meetings were not conduct-
ed in an unlawful manner. Turning first to a resolution of
conflicting testimony, based on my observation of the de-
meanor of the witness Kelly as he testified. I was thoroughly
impressed with his sincerity and I am convinced he testified
truthfully and without evasion. I credit his version of the
conduct of his meetings with the employees and his state-
ment that he conducted such meetings in accordance with
his instructions. I credit his denial that he stated that he
would not sign a contract with the Union if it were selected
as the bargaining representative. On the other hand, I do not
credit the versions supplied by Lyles and Summerhill. Lyles,
particularly on cross-examination, displayed a reluctance to
respond to questions which identified her as an original
union organizer and throughout her testimony did not im-
press me as forthright. Similarly, Summerhill impressed me
as less than candid and I do not credit her version of Kelly's
statements.
Secondly, and of no small significance, is the fact that of
approximately 170 employees interviewed by Kelly, only 2
directly contradict Kelly's testimony that he specifically
avoided the pitfall of discussing employee Union activities
and attitudes.
I do not credit the testimony of Harris that Kelly did not
advise her he could not interrogate employees as to their
Union activities and attitudes. This question was posed di-
rectly to Harris after she had concluded testimony relative
to the meeting with Kelly, and in any event assuming, ar-
guendo, that Kelly had failed to employ this caveat in the
meeting with Harris, I would nevertheless find no unlawful
interrogation involved.
Finally, it is urged by counsel that these meetings be
found to have violated the Act in view of the criteria set
forth in Struksnes Construction Co., Inc., 165 NLRB 1062
(1967). In my view these meetings fall without the ambit of
Struksnes as they were not conducted as polls within the
sense of that case involving the verification of a Union's
majority status by an employer where a union claim for
recognition has become the issue.
As I view it, the Kelly-conducted meetings and interviews
herein did not constitute unlawful interrogation, did not
unlawfully interfere with employee statutorily protected
rights, and were well within the protection of Section 8(c)
of the Act.
Additionally, crediting the testimony of Kelly who was
most impressive in his sincerity, I have resolved conflicting
testimony and accepted his denial that he made statements
that he would not sign a contract even if the Union were
selected as bargaining representative.
Finally, I am convinced on this record, that the interviews
and meetings conducted by Kelly were not in the nature of
unlawful complaint solicitation so as to interfere with the
exercise of employee statutory rights.
Accordingly, in view of the foregoing, Objection 9 to the
conduct of the election is hereby overruled and those allega-
tions of the complaint alleging Kelly's opposition to collec-
tive bargaining and oral interrogation of employees
concerning their union membership, activities and desires
are dismissed.
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The Institution of the Profit-Sharing Plan during the
Campaign
The record discloses that the Respondent did in fact insti-
tute a profit-sharing plan during the campaign prior to the
election. The record is also clear that the Respondent Com-
pany prior to any Union activity herein and over a period
of years had conceived, deliberated on, considered, actually
funded this plan and submitted it for Internal Revenue
approval all prior to the union activities herein on July 26,
1973. The question raised herein has to do with the timing
of the announcement of the plan by the Respondent to the
Respondent's employees.
The profit-sharing plan was approved by the Internal
Revenue Service by the Internal Revenue regulations on
August 3, 1973. The regulations require that the plan be
announced to the employees but no actual time for the
announcement of the plan is specified.
The record establishes that the Respondent notified its
employees of the profit-sharing plan on about August 30,
1973, about 4 weeks after its approval by the Internal Reve-
nue Service and at a time when the Union campaign was
underway.
It is generally recognized that the Act, as construed by the
Board and the courts, places the employer in a rather diffi-
cult position when he is impelled by bona fide economic
considerations to revise his wage structure while a represen-
tation proceeding is pending. The same may be said con-
cerning the granting of the benefits herein. It is urged that
the act of announcing the plan to the employees under the
circumstances is violative of Section 8(a)(1) of the Act,
amounting to interference, restraint, or coercion of the em-
ployees in their exercise of their statutorily protected rights,
that when the Respondent realized it had a viable organiz-
ing effort in its plant it accelerated the announcement to
counteract the Union activity, and that the motive for such
publication was to induce employees not to support the
Union.
Based on the record as a. whole, I am unable to so con-
clude. In my view, without more, this is mere speculation.
Indeed, the timing of the announcement herein, following
in a reasonably timed sequence, viewed against a back-
ground chronology of conception, refinement, preparation,
adoption, and compliance with Internal Revenue regula-
tions, all lead me to conclude that the timing of the an-
nouncement herein was clearly reasonable, and a proper
exercise of management.
While the Supreme Court has ruled in essence in N.L.R.B
v. Exchange Parts Company, 375 U.S. 405 (1964), that the
conferral of employee benefits while a representation elec-
tion is pending, for the purpose of inducing employees to
vote against the union interferes with the protected right to
organize, it is noted that the issue therein was posed precise-
ly as to whether Section 8(a)(1) prohibits the conferral of
such (economic) benefits, without more, where the
employer's purpose is to affect the outcome of the election.
In Exchange the identification of the employer's purpose is
based on the finding that the announcement of the benefit
was arranged by the company with the express purpose of
impinging upon the employees' freedom of choice for or
against unionization, and that it was reasonably calculated
to have that effect. The express purpose to impinge is identi-
fied through an inference which is raised by a statement by
the company that the union could not put benefits in the
employees' envelopes, only the company could.
In the case at hand, unlike the situation in Exchange, the
record provides no basis for such an inference. In view of
my crediting Kelly's candid and straightforward testimony,
there are no statements juxtaposing the source of the benefit
with the benefit, nor suggesting that the Union could not
provide such benefits. It is clear herein that the profit-shar-
ing plan had its inception and took form well before the
campaign. It was set on a course calculated to culminate in
its approval and announcement to employees. The timing of
the announcement, without more, was reasonably related to
the overall chronology. While the Respondent was under no
legal compulsion to publicize its profit-sharing plan during
the organizing effort, neither was it under legal compulsion
without more, to refrain from so doing.
Additionally, in this case, as was adverted to by the Su-
preme Court in Exchange, it should be recognized that the
danger of discouragement of union activity may be dimin-
ished if, as in this case, the benefits are conferred perma-
nently and unconditionally Certainly the record is devoid
of anything which would suggest that employees might infer
that to vote in favor of the Union would in some manner
place the newly instituted plan in jeopardy. Thus, no bene-
fits would inure to the employees by virtue of rejecting the
Union. Louisiana Plastics Inc, 173 NLRB 1426 (1968).
Accordingly, I find that the timing of the announcement
of the profit-sharing plan by the Respondent in the circum-
stances of this case, was not motivated by the express pur-
pose of impinging on the freedom of choice of employees
for or against unionization and was not calculated to have
that effect, and hence does not violate Section 8(a)(l) of the
Act. I therefor overrule Objection 10 to the conduct of the
election and dismiss that portion of the complaint alleging
an unlawful institution of a profit-sharing plan.
E. The Alleged Unlawful Increase of Benefits and Grant of
Rate Increases
The complaint alleges that on or about August 15 the
Respondent granted an absentee wage rate increase and
piece rate wage increase to its employees in order to induce
them from becoming and remaining members of the Union
or giving any assistance or support to it. Similarly, an objec-
tion to the conduct of the election avers that during the
campaign the Respondent increased employee benefits.
Uncontroverted testimony of record establishes that all of
the Company's production employees at the Jacksonville
plant are on an incentive rate referred to as line pay. About
175 production employees engage in sewing and related
manufacturing processes at the Jacksonville plant. The
Company establishes a production rate for each style of
garment manufactured, the rate sometimes tailored to re-
flect variations in the same style where additional work is
required Variables which might increase or decrease this
production rate include differences in fabrics, some of
which are more difficult to sew than others; the size of the
garment, some with belts, collars, or long sleeves; and pro-
duction processes such as the fusing of fabrics by machines
MR. FINE, INC. 403
rather than pressing or sewing.
Robert Newhouse, the Respondent's president, in
straightforward, uncontradicted and credited testimony
stated that in the incentive pay program the Company guar-
antees its production employees a base pay of $2 an hour.
Production standards are set to a certain level to provide
employees with incentive to manufacture more garments
and consequently to earn more money. All employees on a
production line make the same amount of money and there
are no individual rates in the plant.
Glenn Kelly, the plant manager, provided credited testi-
mony indicating that all production employees of the Jack-
sonville plant are paid on an incentive basis directly related
to production, that the incentive or line pay is applicable to
all its production employees on the six production lines and
also the pressers and inspectors, with indirect or nonproduc-
tion employees paid on a straight hourly basis.
It appears from the record that incentive or line pay is
based on the hourly rate earned by each production line,
with individual employees paid at an hourly rate based
upon the production achieved by the line in which the em-
ployee is working. Accordingly, there would normally be
variations between the rate of employees working on differ-
ent production lines, with each, however, guaranteed a $2
hourly minimum rate. Excessive absenteeism will reduce an
employee from the applicable rate of line pay to the mini-
mum rate, which would not take place until the employee
was permitted one full working day of excused absence.
When the hourly rate of line pay is computed for each line,
from daily production sheets, it is then posted the following
morning on blackboards at the front of each line. The re-
cord establishes that Glenn Kelly, as plant manager, has
complete authority in his discretion and judgment to make
such adjustments in the production records as he finds rea-
sonable. According to uncontradicted testimony by Charles
Hamlin and Glenn Kelly, adjustments are made to cover
contingencies beyond the control of the employees which
interrupt or delay the production process and are referred
to as the "lost time factor."
When determined appropriate by Kelly, the number of
hours of lost time factor are subtracted from the computa-
tion of line pay so as to not unfairly penalize the production
employees affected thereby. Accordingly, the incentive or
line pay is made up of two categories of variables, those
discussed above taken into account in establishing the pro-
duction rate for each style of garment, and those of uniden-
tified source taken into account in determining the amount
of net hours to be included in the computation. The lower
the net hours used in the computation, the higher the hourly
rate.
The Respondent's counsel urges, the record establishes,
and I find, that at the times material herein the Company
did not increase the pay rates of its employees as charged
in the complaint and the objections to the election. Insofar
as the complaint and the objections essentially allege a
change in the hourly line pay of the Respondent's produc-
tion employees during the times material herein it is clear
from the record that this would be normal and anticipated
in view of the variables that go into the computation of
hourly rates and of hours added or subtracted through im-
plementation by Kelly of the lost time factor.
Careful analysis of the testimony and exhibits of record
herein fails to provide any basis on which to find that Kelly
manipulated the lost time factor so as to increase the incen-
tive or line rate of its employees for the purpose of inducing
them or encouraging them to refrain from joining or becom-
ing members of the Union or assisting or supporting it. On
the contrary, I credit Kelly's straightforward account of his
computation of the lost time factor in a variety of situations
and his problems with the introduction of equipment for use
in fusing garments which led to his use of the lost time factor
to offset time lost in this production changeover which oc-
curred without the fault of the production employees. This
appears to me to have been a valid exercise of judgment on
the part of Kelly. The record, short of speculation, does not
support a finding that rates were unlawfully manipulated by
Kelly through use of the lost time factor in order to induce
Respondent's employees not to join or remain as members
of the Union or to support the Union.
Some lost time credited by Kelly as lost time factor is
attributable to identified individuals and other such lost
time is not attributable to any identified individual but aris-
es from other sources such as a malfunctioning machine.
The records kept by the Respondent do not always provide
explanation of the origin of lost time factors where not
identified with an individual. However, there was credited
testimony by Kelly indicating that he had utilized the lost
time factor for a period of 8 years, during which time he
utilized lost time factors both attributable to individuals and
to other sources. In any event, I am unable to find on this
record any evidence of a manipulation or abuse of the lost
time factor so as to constitute interference, restraint or coer-
cion of the Respondent's employees. Nor do I feel com-
pelled to raise an inference of unlawful use of the lost time
factor as urged by counsel for the Charging Party on the
asserted fact that the first use of the lost time factor oc-
curred on August 6, 1973, the date on which Kelly received
his first direct communication from the Union. The record
does not support that assertion. On the contrary the relevant
exhibit clearly establishes the use of the lost time factor on
May 2, 1973, and throughout the period material herein.
Accordingly, I find no basis to infer that Kelly abused the
lost time factor upon the inception of the Union campaign
herein.
Nor does the record support a finding that by interview-
ing and meeting with production employees prior to the
election the Respondent caused reduced productivity and
lost wages for employees. The record persuades me, and I
find, that such variations in the pay of the production em-
ployees as occurred during the period material herein were
attributable to contingencies in the production process,
such as the malfunctioning of the fusing machine, and to
other variables routinely involved in the computation of line
pay.
Finally, the record discloses that on October 19, 1973, the
Respondent did in fact announce a change in the absentee-
rate. Prior to October 19, 1973, and since April 30, 1973, the
Respondent's policy was that excessive absenteeism would
result in the employee receiving the absentee rate which was
then $1.85 an hour. On October 19, 1973, Bob Newhouse
announced that the lowest minimum rate in the plant hence-
forth would be $2 an hour. The record discloses that this
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was already effective in some of the other plants of the
Respondent and was applied to all plants within a week and
the stated purpose was to achieve uniformity in this regard.
It is significant to me that this announcement took place
the day following the election. Under these circumstances,
I do not find such grant of benefit, for the obvious purpose
of achieving uniformity in the applicable minimum rate at
all of Respondent's operations, to provide a valid objection
to the conduct of the election nor to amount to interference,
restraint, or coercion in violation of Section 8(a)(1) of the
Act.
Accordingly, I shall overrule Objections 9 and 12 to the
conduct of the election, and dismiss that portion of the
complaint alleging an unlawful piece rate and absentee rate
increase on or about August 15, 1973.
Upon the foregoing findings of fact, and upon the entire
record in the case, I make the following:
of Section 2(5) of the Act.
3. The Respondent has not interfered with, restrained, or
coerced its employees in their exercise of statutory rights,
and has not violated Section 8(a)(1) of the Act, as alleged
in the complaint.
4. Objections 1, 9, 10, and 12 to the conduct affecting
results of the election held on October 18, 1973, have not
been sustained and are overruled.
Upon the entire record herein, it is hereby recommended
that the Board issue the following:
ORDERI
It is hereby ordered that the complaint herein be, and it
hereby is, dismissed in its entirety.
Further, it is ordered that Case 16-RC-6390 be transfer-
red to and continued before the Board in Washington,
D. C., for such disposition as it shall deem appropriate.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
1 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102 48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes