BRK Electronics

National Labor Relations Board - Board Decisions

Apr 18, 1980

248 N.L.R.B. 1275 (N.L.R.B. 1980)

BRK ELECTRONICS 1275
BRK Electronics and International Brotherhood of
Electrical Workers, Local Union No. 461,
AFL-CIO, Petitioner. Case 13-RC-15102
April 18, 1980
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
Pursuant to a Stipulation for Certification Upon
Consent Election, a secret-ballot election was con-
ducted on June 14, 1979,1 among the employees in
the stipulated unit. 2 The tally of ballots showed
that of approximately 475 eligible voters 199 cast
ballots for Petitioner, 2 cast ballots for the Inter-
venor, International Brotherhood of General
Workers, and 236 cast ballots against the participat-
ing labor organizations. There were 13 challenged
ballots, an insufficient number to affect the results
of the election.
On June 19, Petitioner filed timely objections to
conduct affecting the results of the election. Fol-
lowing an investigation of the objections, the Re-
gional Director, on August 17, issued his Report
on Objections and notice of hearing, in which he
approved Petitioner's withdrawal of its Objections
1 and 4, and ordered that a hearing be held by a
duly designated hearing officer to resolve the issues
raised by Objections 2 and 3. A hearing was con-
ducted on September 7 and 25.
On October 29, Hearing Officer Linda McCor-
mick issued her Report on Objections in which she
recommended that Petitioner's Objection 2 be
overruled in part and sustained in part,3 and that
the election be set aside and that a new election be
directed. Thereafter, the Employer filed exceptions
to the Hearing Officer's report and a supporting
memorandum, and Petitioner filed a brief in sup-
port of the Hearing Officer's report.
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 reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed. The Board has considered the Hearing Of-
All dates herein are 1979.
2 All production and maintenance employees including shipping and
receiving employees, warehouse employees, analyzers, quality control
employees employed at the Employer's facility located at 780 McClure
Avenue. Aurora, Illinois, but excluding technical employees, model
makers, office clerical employees, guards and supervisors as defined in
the Act.
I The parties stipulated to the withdrawal of Petitioner's Objection 3
during the course of the hearing. We accept that stipulation and approve
the withdrawal
248 NLRB No. 169
ficer's report and the exceptions, memorandum,
and brief and hereby adopts the Hearing Officer's
findings, conclusions, and recommendations, as
modified herein.
In its Objection 2, Petitioner contends that "The
Employer, by means of captive audience speeches,
threatened that voting for and certification of the
union would result in loss of all benefits to the em-
ployees."
The Employer's president, Fred Conforti, deliv-
ered 5 speeches to the employees during the 3-
week period immediately prior to the election. The
Hearing Officer credited Conforti that he did not
deviate from the prepared texts of these speeches in
delivering them. The texts of the speeches were in-
troduced into evidence, and the Hearing Officer
found them to be entirely unobjectionable. We
agree with the Hearing Officer, and adopt her find-
ing in this regard. However, as discussed below,
the Hearing Officer did find that certain responses
by Conforti to questions asked by employees
during and following the speeches constituted ob-
jectionable conduct sufficient to warrant the setting
aside of the election.
1. The Hearing Officer found that the Employer
engaged in objectionable conduct when its presi-
dent, Conforti, stated to the employees on at least
one occasion that the employee manual, containing
a description of existing employee benefits, would
be "null and void" if the employees elected to have
a union, and that bargaining would be "from
scratch." The Hearing Officer reasoned that in
view of these statements the employees could rea-
sonably conclude that all existing benefits would
unilaterally be eliminated if they chose to have a
union.
While we agree with the Hearing Officer that
Conforti's remarks constituted objectionable con-
duct under the circumstances of this case, we do
not rely on an erroneous evidentiary finding made
by the Hearing Officer in reaching her conclusion.
In finding that Conforti made the "null and void"
remark, the Hearing Officer mistakenly found that
there is no evidence in the record that Conforti ex-
pressly qualified his "null and void" remark with a
statement to the employees that he meant only that
all benefits would be considered to be negotiable if
a union were selected. Conforti testified, however:
I think there was a couple [of questions from
employees] .... [T]he employees asked ....
if they would lose all their benefits in the
manual. .... "It's been brought out in one
meeting," I said, "the manual, as far as the
company is concerned, if the Union got in,
would be null and void because everything in
there would be a negotiable item."
BRK ELECTRONICS
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, contrary to the Hearing Officer's finding,
there is record evidence that Conforti expressly
couched his "null and void" remark in terms of the
negotiability of the items contained in the employ-
ee manual.
Nevertheless, we find Conforti's remarks, even
qualified to the extent he testified, to be objection-
able. Employee Kathie Herold-incorrectly re-
ferred to by the Hearing Officer as "Kathy
Howard"-credibily testified that, at one of the
employee meetings conducted by Conforti, she as-
serted that "the Labor Board told us we would not
lose anything we already have," to which Conforti
replied that that was not true and that "when you
get the union in you will start from scratch, with
nothing." In response to subsequent questioning,
Herold testified that the discussion at the meeting
in regard to the employee manual was:
That this handbook, if the Union gets in,
would be null and void. [Conforti] shook it up
and said there would be nothing in it that they
could go by. That is when he also said that ev-
erything that we would have . . . would have
to start from scratch.
In these circumstances, Conforti's qualification of
his "null and void" comment is insufficient to over-
come the clearly negative meaning of that com-
ment, especially since the comment was coupled
with the further one that, when a union gets in, the
employees would "start from scratch, with noth-
ing." Thus, Conforti's declarations that the benefits
contained in the employee manual would become
"null and void" and that bargaining over those
benefits would "start from scratch" tended to
convey a clear message to the employees: if they
elected to be represented by a union, they would
lose their existing benefits; and the coercive nature
of this message was not effectively dissipated by
his merely adding to the offending comments that
everything would be negotiable. Plastronics, Inc.,
233 NLRB 155 (1977). Accordingly, we find that
Conforti's statements in question constituted objec-
tionable conduct requiring that the election be set
aside.
2. The Hearing Officer also found that the Em-
ployer engaged in objectionable conduct when,
during the course of one of the preelection assem-
blies of employees conducted by Conforti, he delib-
erately failed to answer employees' questions about
whether they would get their vacation pay, when
an answer should have reasonably been expected in
order to dispel a false impression on the part of the
employees. We agree with the Hearing Officer.
In this regard, employee Mary Gates testified
that:
[Employees] asked if they would lose their va-
cation pay. [Conforti] wouldn't answer. He
never answered the question. Went on to
something else.... This was the main thing
they were asking, would they lose their vaca-
tion pay. He never would answer them. [Em-
ployees] would always say we are going to
lose our vacation .... They were under the
impression they would lose their vacation pay.
They-he never told them if they would lose
it or they would get it.4
Under these circumstances, Conforti's failure to
explain, in direct response to employee questions,
that election of the Union would not automatically
result in a loss or suspension of regularly scheduled
vacation benefits would clearly tend to create in
the minds of the employees doubt and uncertainty
where none need have existed. And indeed, as the
evidence shows, it appears to have had such an
effect. Consequently, the Employer's deliberate si-
lence on the subject interfered with the employees'
right freely to decide whether or not to be repre-
sented by a union. Accordingly, we find the Em-
ployer thereby engaged in objectionable conduct
requiring that the election be set aside.
3. Additionally, the Hearing Officer found that
the Employer engaged in objectionable conduct
when Conforti admittedly told the employees, in
response to an employee's question, that whether
or not the employees received their pay raises prior
to vacation would depend on the outcome of the
upcoming election. We agree with the Hearing Of-
ficer's finding in this regard. At the very least,
Conforti's response had a tendency to create an im-
pression among the employees that, if the Union
won the election, pay raises would be delayed.
Indeed, the Hearing Officer found that Conforti's
remark raised "the possibility that wage increases
might be forfeited if a union won the election."
(Emphasis supplied.) The Employer contends that
no threat of forfeiture of pay raises was implied by
Conforti's comment. We find the Employer's con-
tention unpersuasive. Whether the comment is con-
strued as an implication that pay raises would be
delayed if the Union won the election, or whether
the comment is construed, as it was by the Hearing
Officer, that pay raises would be withheld, the com-
ment carried the message that pay raises would be
affected by the results of the election. This is ob-
4 Employee Shean Coleman testified that:
[A]t one of our meetings they was asking about, well, it was around,
close to our vacation period. We were supposed to be getting our
vacation period around that time, and when the people asked [Con.
forti] questions like if we were going to get our vacation pay, he
wouldn't answer them. He like left them hanging, wondering like,
are we going to get our vacation pay or are we not.
BRK ELECTRONICS 1277
jectionable conduct, further warranting the setting
aside of the election.
4. Finally, the Hearing Officer found that the
Employer engaged in objectionable conduct when
Conforti told an employee that whether or not she
received her vacation pay would depend on the
outcome of the election. In light of our finding of
other objectionable conduct, discussed above,
which we find to be sufficient in itself to warrant
the setting aside of the election, and further in
view of certain evidentiary weaknesses attendant to
the Hearing Officer's finding discussed in this para-
graph, 5 we do not rely on, and thus find it unnec-
6 Employee Mary Felix was the only witness who testified that Con-
forti told an employee that whether or not she would receive her vaca-
tion pay would depend on the outcome of the election. However, Felix
admitted:
I really, really didn't listen that much, because in my mind many of
the statements, I would say that's not true, that's not true, so I
wouldn't pay attention.
essary to pass on, the Hearing Officer's finding in
question here.
ORDER
It is hereby ordered that the election conducted
in Case 13-RC-15102 on June 14, 1979, be, and it
hereby is, set aside, and that a new election be con-
ducted as directed below.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
Felix reiterated that there were numerous times during the preelection
meetings she attended when she would not pay any attention, because
what Conforti was saying was, in her view, not true. She further testified
that:
It would be like when [Confortil would start a statement, when to
me it sounded untrue, I dismissed it from my mind.
Although the Hearing Officer credited Felix's testimony as to Conforti's
remark about vacation pay, we are reluctant, for obvious reasons, to
place any significant weight on that testimony, and, under the circum-
stances of this case, we need not do so.