258 N.L.R.B. 1162 (N.L.R.B. 1981)

International Harvester Company

National Labor Relations Board - Board DecisionsSep 30, 1981

258 N.L.R.B. 1162 (N.L.R.B. 1981)

DECISIONS OF NATIONAI. LABOR REL.ATI()NS BOARD International Harvester Company and International Union, United Automobile, Aerospace and Agri- cultural Implement Workers of America (UAW), Petitioner. Case 9-RC-13144 September 30, 1981 DECISION AND DIRECTION OF SECOND ELECTION BY Ml IItRS ANNIN(i, JNKINS, NI) ZIMMI RMAN Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the National Labor Relations Act, as amended, a three- member panel has considered the objections to an election' held on February 21, 1980, and the Hear- ing Officer's attached report recommending dispo- sition of same [omitted from publication]. The Board has reviewed the record in light of the ex- ceptions2 and briefs, and hereby adopts the Hearing Officer's findings and recommendations.:' ' Ih ele li \;'its conldulcd d pursuanll to i Stipiulation tir (crtifilca- iin tipoi Connto El ca ltio the thilly> \i 44 flr, and 112 againsl. tIlt I)elill(oler; Illere ,'ere 14 clialletiged hballtls ail il.uficicl Illllh uber li alTecl Iihe rulils Ih'lie Inplitl hai ls cepted i i Ile Hlearing ()fficei's cedibliit rell- hlition It is he cslablished polioi of thBl Ilard not tio oxcrrulc ai hearing officer's credibiliN resoluitlilon Uil's'I a clear prepondtierace I idl o1' the rclealllt csidice i corlnillcc's Ils Ihat Ihe restollliOlls arct illtorrectl 1 h (ol (ul BoIluilig ('Oinpuiuv iJ Mvinphii. 132 N RI 481I 483 11I1i I SIr'tch-le('r (o 1 NlRB ti 159 l61i (157) We Iid ii 't ilfufiteit his flr disturbing hese credibilit resiluillls in his case ' e aW;dopl the learing ()Oficer', coniclusionll I:it the [nmpil>er cL1- gaged in objeclioniable conLduc h Ihlreateniig emiployees, i.ih iloss o their Savings and Illvestmentil rogra;n (SIP') i they chose t he rcprc- sented bh Ihe Unioin Even if the ;tioln;ll agreeenitl woiuld aulicllicalily apply o he uit of clerical employees it the oisvii i il plait. 1e SIP ,ioutld he suhjecl to 1nelgoiation. (he Eimploycr itself laler dnltlcld tlus I'act ) ilowcver. the recolrd is clear that the in ploscr. oii secral os1ca- sions. stalted iutrightl hat the emplo ee, wo/ld /' their SIPl' i the! volted For unioll representalolln. Although, as oilr disilinig llegaeLI correctly st;les, i cry previous illstanlce in 'which au clerical illlit ilf tiliv Employer oted for repre iltathi ll hosc employees hase losl thclr ighlt to participate ii Sll,' te do Inlt characerize such Io a il 1 'ddTllllitl lla- hly probahle" conlsequcnce beyolnd the control oif l h'e EunpihLt.c Ihcre is n1i evidetice i l;lsoever to shos that lthe ois S isis beh tilid tIh control of he flplo yer Onl the conraliry the record diiit;ite thai t 11ui Unioin cornsideretd he SIP a ery desirable hellefi ad vould tcrlill! not force he mploii cr I) isithudrais it We finrld %ilntl,'mirr iiri & ('i., /Itcpoeratld. 219 NIR I') 111 I 175). cited bh oitil distllllnllg iI- leagIe llislinguisiable on it, fict il thal tllihe tlhar here I[l(itI li lcial of iaderse cOtnscquteltCes Altlhoiugh he e'mployer i %VItilfk, Utrll' 14}l, lupriti priiprl y "prer lr t ed" that lie pa iti l l' alltlllilalc' iltlisiuiiil it 1 ItI natiolial tanlmstcrs corltr;acl ioiuld citl1 filinUe lfor all iNl 11. I tltlc IthlIC litlits. the li icrd did iot sLIppIort Ihe c il llil;t IItIc (I jll'l> ' il l '111c- dicted" lithe adt clse ctlnsequellCe o(f 1 lover 5wage rtc We are TlOl ilps.rC. l hi T1Â¢ l lplOlcrs aiit nlpts tIO caiilfT it earlivr statienucet h! bh'lledtll illforililg Clipluipt Lecs Ilai SI' Iiii11 i /t s h 'll tI nICegolialltl s, hil ailt Ihe sillt' little I'lllilldill g T11l clillhl i!( ts 1hlile 11 LUAW'-organized clerical unil had been able Il eio(llTi1 at rciellin ,1 I te SIl' i their conlira;l.t ('e fid these attemptl "belaled" iiii bhc.;lle i any parlicular period o' limle that has pssed as suiggestc'd h ouiI disselIt- ing coulleagile. hlt becaun' oncellc hrealt i uttered ii is vcr') dificilll l ; later (date Ii ciic ils cie rclC clTecls, parlicilarl 5. i s 1ere, i her . l 1 i11 posedly cilraltic alsItclllel seCl C's i11I', it renlliid liIlt hlilr.l c ic ' i l i ll- plo,>ur'rs cterci,' polier) \) W'e agle \.tih t he ttilllg ()flictCl 1hat tI ' t(mployLer's effors ail disasoi all I0i repidiatillli %.c1rc liel e c icfl' itd li.hd IIo CIu atise c fect o IIIoit lo fli Pr Jt i s I Cc1 .l . Il iilgilllillg ,,. C MI:MBHIR ZIMMI:RMAN, dissenting: Contrary to my colleagues and the Hearing ()ffi- cer, and for the reasons set forth below, I would overrule Petitioner's )Objections I a(l 4, and issue a Certification of Results of l lection. I (lo not agree with my colleagues that the lnploycr threatened the employees with loss of the opportlu- nity to continue to participate ill a savinlgs invest- ment plan (SIP) and to bid on certain nonunion job openings, if they selected Petitioner as their certi- fied bargaining representative. Rather, I find that the Employer's statements to the employees that they would lose their participation in the SIP if the Petitioner became their representative were reason- able predictions as to one consequence of unioniza- tionl. Similarly, the Employer reasonably predicted that the petitioned-for employees would lose the right to bid on certain nonunion job openings if those employees chose to organize. The facts of this case provide no warrant for characterizing the Employer's statements in this regard as "threats." The Employer and the Petitioner are parties to a national collective-bargaining agreement covering salaried office clerical and technical employees at other plants. That agreement provides, in part, that, if Petitioner becomes certified by the Board as the collective-bargaining representative for any ad- ditional clerical or technical, or combined clerical and technical, bargaining unit in any of the Em- ployer's manufacturing operations, such as the Em- ployer's Louisville factory involved here, then the national agreement will be made applicable to the newly certified bargaining unit as soon as the Em- ployer and Petitioner's Local reach agreement as to local matters such as classification, position de- scriptions, and wages. ' Slil' le[ lllcl ! ldtalilg th;al thIe cmnplhec s.ouldl lse Sit' i lllnder- scirc th pl-I of( tihe niploscr to larrtF Otil is ithreal and o ptse he ilpllph r' illtlll l Il, skir i duI! III bargainl ii good failhll Iiilr- 1101'C, SL' f'ild l l hlt lit' PtiI llCr',s assesTIeiiii o' le silaalti). slalcd iii it, callll; algll l atelil alill II l Ioh'l's. ial.lld it, ltacit aillll .tl lll ti nlplhce'. Ihll I lltltl Il1oi ha c m cllh If .It Challl keepiIng Ile 1SI' at il' h lill- illI ta;ble 11 I tIlI rl i I l il c1 tii oII l tha t Ih loss tf sll' I ;I d1llll ,i1iah , l 1ioh;ihl. t1I i11iCll ll-e 1)ii'tl Ihc coill II l 1i i I lpllt I t it, 1ilill I iss .I Sill' it 11 -l.s 1itl o' I \ till;ti1 is i.l fiiidc ., Ioih ;ihl, k, tll' ~"lI lk U hb.(%,d li llll l l , l iI I 111l"[ !'cl hl\ th 11 11., 11.cl d ln." I llht, si ,1k tli l l ie 1. n 11 llT.l I'l i nhgl! l i T le. . IHlill , e SilC1; I 11\. L itt.111ll 1 1 h .lllll ig () tiC ill1ll g t111.11 lllph IIIIl !i1i ell ,g l IId IS'd tl ll[llll hII ' tIIIIl IC'hÂ·ltlL'/n11 g 1cll,; I'll t'11h tl % 'h jIll qicn! lctl h]~ 1he c\llli qll I '1 I1't 11illO1 h i'OIIIf;ICI odill]; itlll. rllzx i~;l ) l 1)ll 1\ IIg t I lI, ll ll S I. Ih I 'I I I Is 1 rll lmll 1. II Illh .lI l'fII It II, I ,rl~,li sllhd b th t uie k l~tl l vlpl o c ,1 ' i l~lllll llll Ill ,Ipp l IhC11I \k,lfik I fl II sÂ·il l ) Il l I1 ll'lI'!'' cal l' I h N I 1s Illl I lIlg lllt lp'l I1 Ill ' t'fhe 1.111ll1 ()I'llc l t1( i III 1 dlllg ll ;1r i " llfit 1 1un 3llg llC111 t ill o11. lf- .1t1(l IlWO, III t' \'111I.lI 1 11.111)11l I Ilg ,, :,z 11,1, Ilt h 1.1\ 11l 111l I I,, ld lltl ;111 1 1 llll ill 1 I1l 1 -11sx ll 1ILlill" ( *1~ li llf ' 111s "110 ( '' rn d!1t,., 258 NLRB No. 155 1 162 INTE.RNATIONAI. HARVFSTER CO()MPANY One of the fringe benefits enjoyed by the non- union office clerical employees who are sought to be represented herein is the Savings and Invest- ment Plan (SIP) whereby participating employees allow a portion of their pay to be deducted by the Employer, which in turn matches the deduction with its own funds and invests the total on behalf of the employees. The SIP is not included in thile national collective-bargaining agreement, and em- ployees covered under that agreement arc there- fore not contractually entitled to participate in SIP. Thus, the automatic inclusion of the office clericals under the national agreement as a newly certified unit would not automatically continue their partici- pation in the SIP. Indeed, not one of the clerical and/or technical units, which as a result of their subsequent certification have become automatically covered by the national agreement, has thereafter retained its eligibility for participation in the SIP. In a mass meeting of employees conducted by the Employer in the cafeteria in early November 1979, Community Services Manager Budnick was asked by an employee if the employees would lose their SIP if the Union became certified. Budnick did not give a definite answer but stated that the SIP had become a negotiable question at other em- ployer plants where the Petitioner represented the clerical employees. Budnick then named other plants, by way of example, where Petitioner had achieved certification and negotiated a collective- bargaining agreement that did not include the SIP. At another, somewhat smaller meeting of em- ployees conducted by the Employer in mid-No- vember 1979, Assistant Plant Manager James Meyer was asked what would happen to the SIP if the Petitioner were successful in the upcoming election. Meyer replied that, "From past perform- ncous fillding, i isa conlractual certati that all of the nlllollnal alreT- ment hetiern the I(mployer ad the 'etiltioner v1ill ppl 1Io t11e isltanl bargaininig unit f tIh Petitioner hecoimnls crlifild lo rirellre, thatl LiTln Although he natiornal agreement heltcvn the linlploi Cr and ll I'.etlllti er is not itIelf in ctidcncc. C'harles A lludnick the FIplo'n, r', man;lagel of commulti sericr at he time nlilerial hereinll ;il I lill .ilpllli. rcsplonsiblc for. itir a /Iu. labor relattiols. tsifle ,,t i lllall rt that once agreement is reached loiall o the sulhitc of clTifi.sSilh.iIO thei nlf crtified units are aomnilaticallf inchlderid lnletr the nationi agreemtent nion oirgatlinlg cotniilce Ilelnher l)at itl W' Nloi cI roshoraled iudnic k' I'cstirmon as Io the iuti;orlatic eilll IO iull' Itl%'% N e L ' lified cl rical olr technical units nder the IthÂ¢ lltli l olricl I llN. C- lain sectiilons of the naitiolal colltrac rit %re Ililrodulct' ii lle Lttl1Ci the f mpJloscr hcese seclilonls the cith CIIict. IicIliltg til, secti lt COl- lainllng the prli siotln for automatic inculusiIonlt o(11 s It' \ CIlliCLd 1nlll. rcrc prl t' a; prcpared sppeech dlcered %Trhatilll h I kt1ic- J1 L 1I. I'he FnplhLcr' supcr. isor of ,lauidardi, anid t11el0,i. io stle tpllrlIt In lair Nvetnher 1979 'Ihc sctiltll tn iti lltisi li I It' clilic 1utls u consislnil ith the lestinlmoi of Itudutick and Nlsrlon Ii sIlpporl of his erroTletus ftintling as to the appicailit of he Iolit il gr-cteit,. the Hearig ()fficetr also rrollousl found lhat fluItLik told ile' Litlp otesC thil ll mAlitrs stIre itgltliilui l ltMter. s ;1, eIl l t1 s11]lt s . llil .1 Ih lietirinig ()ffi.r Iinimself orrctll li'iiiil ill ci.r Ili }1lis 1epill fliud Ilck 1illIX 1ltl tle cIllpi'ccs Iat tuh p t11 l itii mlld tIll J it ' t Iugs i telllll t IrOgraitl s \Lr' rLhlh'tcl I\l tl g li lltos ance . .. of other di\isions ill the company . . none of themll have been able t hold on to their SIP . ,. . 110o uio has been ahle to hold tllheir- SIP alnd what\lil ould marIl;r kc eniploce] think \e'd hold ours"" At a cÂ¢llniig tl' I ;t ccounltlig deparlincnt em- ployees conlldtucled b lhthe I inployvrr ill tar1) No- \iember 1979. the chiefl of geitlrall accountiinl. F'v- relt I)cckard, sated his opinion Ill [tIh eplo - Ces did [lot liced a union, because i getting uionr there was a possibilit\ of losing ome hbeletits cur- rently av\'ailablc io nonIunion employees. I)eckard , as asked about the possibility of' losillg the SIl' Deckard replied, "[I]t's possible ... that we \%ould lose the savings and investmlent because it wIas a practice throughout this company that when- ever a bargaining agency came in that you lost your Savings and Investment Plan." At this same, or another, meeting (the record is not clear), Deck- ard again gave his opinion that the employees did not need a union, and pointed out that if the em- ployces voted a union in they would comec under the national contract. and that they would lose their SIP. Supervisors Cynthia George and J. D. Rumsey also advised employees, in separate meetings. that. if they voted the Union in. they would lose their SIP. George supported her statement by reference to the other employer plants where the Union had come in and SPll had been lost. In response to al employee's questiion about the negotiability of SIP. Rumsey replied that "it [is] the Company's side of it" that SIP \vould be discontinued if the employ- ees voted the Union in. Finally. on February 14, 1980, 1 week before the election, Community Relations Manager Budnick held a series of two meetings in the plant cafeteria. All clerical unit employees attended one of the two meetings. After each meeting was convened. ud- nick handed out to each employee a two-page doc- ument entitled "THINK ABOUT YOUR PEN- SION AND SAVINGS & INVESTMENT P'R()- GRAMS BEFORE YOU VOTE ON FEBRU- ARY 21." In addition to giving each emploe a copy of this docunenlt, hudnick read the documlent verhatim to the employees at each meeting. 'he document, in pcrtinent part, states the following: 'Your Pension and Savinigs & Iestmnllt I'-Pr- grams are soniething you can count oin 1no\. but affiliatiotn ith the UAW could affect both programs. Both would be subject to negotia- tions. The AW.U' as the exc/luiv representa- tive of thle enlllot les, anld tlit' ('olllpalll\ \voild ha;l\v aulhloriit to negotiallec halilgc, or eve\1 eliiinatitln. I 13 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The document then stated that employees would not lose either benefit simply by voting for the Union, but reminded them that () the current mul- tiplant UAW-Employer contract did not provide for the SIP, (2) no clerical unit of the Employer represented by the UAW participated in the SIP, and (3) no clerical unit, after selecting the UAW, was able to incorporate the SIP in its contract. The first page of the document closed as follows: Maybe nothing will happen to your . . . Sav- ings & Investment Programs. We are certainly not saying that anything will. But you must understand and consider the "give and take" of negotiations. That is why we say-consider your . . . Savings & Investment Programs before voting on February 21st. The second page of the document contained a comparison of the monetary features of the UAW retirement plan and the SIP. As the Hearing Officer himself acknowledged, it is well settled that an employer may, in the midst of a union campaign, make predictions as to the ad- verse consequences of unionization on its employ- ees. Such predictions will be found to be lawful and nonobjectionable where they are "carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable con- sequences" of unionization which are beyond the Employer's control. N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618 (1969). Contrary to my col- leagues and the Hearing Officer, I would find on the facts of this case that, if the employees were to choose Petitioner to represent them, a demonstra- bly probable consequence would be the loss of the SIP by the clerical employees. 5 Thus, in each of the previous instances, wherein office clerical or technical employees have selected Petitioner as their bargaining representative, those employees have, through no fault of the Employer, subse- quently lost their right to participate in the SIP. 6 I In fact. Petitioner's principal witness, employee Henry Humphrey,. acknowledged that loss of the SIP was a distinct probability under these circumstances, by explaining that "[o]nce you became a UAW organized union . . SIP would no longer he available to you as all employee" (Emphasis supplied.) 6 Indeed, employee Judith Branham testified that during all ultimately unsuccessful election campaign conduclted by Petitioner at Louisvillc il 1977. she received a piece of Petitioner's campaign literature in which Pe- tilioner stated: We are told that five-year and under participants are concerned about the loss of Harvester contributions in the Savings and Invest- ment Plan. While it is true that contributions of both Harvester and the employee would be stopped on the date that an agreement is signed, the disposition of the fund up to that date would be handled as described by an earlier Harvester leafet. Thus, Petitioner is found in the anomalous plsition of asserting that the Employer's 1979 predictions of loss of SIP are objectiolnable threats. Ilt- withstanding the fact that Petitioner itself advised these same consituents in no uncertain terms just 2 years earlier that they would indeed lose In finding the Employer's various comments to its employees about the loss of the SIP in the event of unionization to be objectionable threats rather than permissible predictions, the Hearing Officer notes that loss of SIP was not an "inevitable conse- quence" of unionization. However, adverse conse- quences of unionization need not be "inevitable" before an employer is permitted to alert its employ- ees to them. Such consequences need only be "de- monstrably probable."7 To limit employers to speaking only about inevitable consequences would be effectively to muzzle them completely-an effect which the Act clearly does not contemplate. In any event, whatever lingering confusion may have remained in any employee's mind as a result of the Employer's comments in November 1979 must ultimately have been dispelled as a result of the Employer's above-described handouts and unitwide speeches on February 14, 1980, a full 7 days prior to the election, in which the Employer made it clear that continuation of the SIP was a matter for negotiation. 8 In addition, Petitioner their SIP under the precise conditions-a union victory-that the Em- ployer is now alleged to have objectionably predicted. ' My colleagues contend that there is "no evidence whatsoever to show that the loss of SIP was beyond the control of the Employer." On the contrary. it is abundantly clear from the evidence that if Petitioner won the election, the national collective-bargaining agreement between the Employer and Petitioner would automatically apply to the newly cer- tified unit--and the national agreement does not include the SIP. Thus. the initial, immediate, and unavoidable loss of the SIP upon certification of Petitioner would inevitably occur as the direct result of the operation of the terms of the agreement which the Employer and Petitioner them- selves negotiated. That circumstance puts the immediate loss of the SIP wehll beyond the control of the Employer Thereafter, continued participa- tion in the SIP by the employees in the newly certified unit would have to be regained at the bargaining table, via the give-and-lake of negotia- tions between the Employer and Petitioner. Unless my colleagues, in the face of the consistent and negative results of past similar negotiations. are suggesting that the Employer should magnanimously-and unilaterally- simply grant the SIP to the employees in the newly certified unit, then the Employer's statements do no more than state the obvious: that the loss of SIP was a "demonstrably probable consequence beyond the con- trol (of the Employer." In this regard, employee Humphrey testified that: [M]atter of fact, [SIP] is one of the options that was supposed to have been able to be negotiated on a local level ... In one meet- ing it was discussed and someone said that you will probably have to discuss [SIP] on your local level to keep it. My colleagues profess to be "not impressed" by the clarifying effects of hat they characterize as the Employer's "belated" reassurances to the employees that the SIP would be subject to negotiationts. while the Employer at the same time reminded the employees that to UAW-organi7ed clerical unlit had been able to negotiate a recnti- tin of the SIP. Regardless of what my colleagues profess to mean by their use of the term "belated." I doubt they would suggest that any statements made by anl employer official responsible for labor re- lati ons, vithi 7 days prior to an election. are made too close in time to that election to have an effect on its outcome Further. I cannot agree with my colleagues that a reminder from the Employer to the employees that o UAW-organized clerical unit had been able o negotiate a retention of the SIP is tanamount it a lreut by the Employer to unilaterally deprive the employees of the SIP I tlhere- fire reject as wholly unlfounded m colleagues' a;ssertion that i truthful- ly Iadisinig the emnployees of Pet'itioner's repealed past failure,. o regain the SIP a the bargaining table. the Eploer was somehos exposing all "inteltio t skirt its dulN to bargain in good faith 1164 INTERNATIONAL HARVESTER COMP'ANY itself, in a February 19, 1980, employee newsletter, just 2 days before the election, advised the employ- ees that: The majority of our salary people are greatly interested in S.I.P. and C.A.P. In our last union drive, two years ago (1977), we were in- formed by our company that by joining a union, we would lose S.I.P. As of this year, our company is admitting that it is very possi- ble that we would not lose S.I.P., because this program is negotiable only after charges were filed with the NLRB against the company. To insure that it is very possible to keep S.I.P., Springfield, who has been organized approxi- mately twenty (20) years, was given the op- portunity to join S.I.P., but refused in order to receive the double-dip or the 160Â°% EBA plan. In light of all the foregoing evidence, I find that the Employer did not threaten employees with the loss of the SIP if Petitioner won the election. I find instead that the Employer legitimately predicted the loss of SIP as a demonstrably probable adverse consequence of an election victory by Petitioner, based on the objective facts discussed above. 9 Accordingly, I would overrule Petitioner's Ob- jection 1. The evidence in support of Petitioner's Objection 4 is even less convincing than that in support of Objection 1. As the Hearing Officer noted, the Louisville plant has had numerous organized employee bar- gaining units, each of which is comprised of hourly production and maintenance craft or industrial em- ployees. There has also existed an unorganized group of salaried office clerical and technical em- ployees. It is the office clerical segment of this nonorganized salaried group which Petitioner seeks to organize. Since Petitioner sought only to represent the clerical segment of the combined clerical-technical unorganized group, one result of victory by Peti- tioner in the election would have been to split the group into an organized clerical bargaining unit and an unorganized technical group, with obvious consequences for the seniority rights of the em- ployees in the presently unorganized combined group. Entitlement to promotions within the currently unorganized clerical-technical group is by group seniority; that is, clerical and technical employees compete on the basis of overall seniority within the group for vacant clerical and technical positions. Entitlement to promotions within organized bar- gaining units is determined by unit seniority. This Sc .Monlrtomcr Wl ard & ( IMn ?,iropr . d. 21 ) N I R 1 I (I 19[) is mandated by the national agreement between the parties, which, as discussed above, would by its terms become applicable to newly certified units such as the office clerical unit sought here. Thus, under the existing practice, seniority acquired in unit A is worth nothing in units B, C, D, etc., and vice versa. It therefore follows that seniority ac- quired in what would be the newly certified cleri- cal bargaining unit would have no value to clerical unit employees applying for job vacancies in the residual unorganized technical group.'" It is in this context that I reject what Petitioner contends and my colleagues have found were "threats" by the Employer of loss of promotion op- portunities if Petitioner succeeded in becoming cer- tified as the representative of the clerical employ- ees. While union witness Humphrey testified that the employees were told by Respondent officials that if they voted the Union in they would not be able to bid on jobs that were not classified "in the UAW under the UAW," he also testified that nonunit em- ployeees presently have no right to apply their nonunit seniority in attempting to obtain bargaining unit jobs covered by the collective-bargaining agreement, and that bargaining unit employees presently have no right to apply their unit seniority in attempting to obtain a nonbargaining unit job; there is separate seniority for bargaining unit jobs as opposed to nonbargaining unit jobs. " Humphrey acknowledged that in his 9 years of employment he had never seen a case wherein a bargaining unit employee bid into a nonunion job. In any event, the comments of Employee Rela- tions Manager Budnick at the aforementioned Feb- ruary 14, 1980, meetings attended by all unit em- ployees I week before the election effectively dissi- pated any confusion about seniority rights. At the meeting, Budnick addressed the question of bar- gaining unit employees bidding or being considered for nonbargaining unit jobs. Budnick told the cleri- cal unit employees that they would be "contrac- tually separate from the technical group," that there would be no contractual obligation to honor requests into the technical or anv other group, and that in filling vacancies in either the technical or 'Iidced. tile n.inagcncil-righlt, c.Iaue in the naliona.l collIiccic-har. ganing aigrccnCnlI heb v Cenl th p.lries pro Irde th il t IlC inlplkocr retain, tile rol right to detclcrnlll the h.lsi% tfir sclectiotl. retentilon. and protrlo- lion of enmploees ftFr occi pitio.i not \ lthiln the hrgaining uinit clt.lh- lihed In Ihe ilgrcecr ncll Ilu.. Tc icrdrig to ltiniphri' A n houl tl p r,,irn can ilik Ill Iinit1ag Ct lIC ,IJ i 1n IIegiii.I. if tIhCtre' ill peillig f r lin .I1 thI' Ihc, li ii th i, ll an brilig tl i l t, h..eln Ilnglelnclll t .1Lnlt !i u t1i! ill nget .O i It I sehclil .ti are houri?, ltl'\ hla'e to gelt >iu [A.\ t hrg.liig t1lill l mpl CCee] the'! v odl d .I l. tl c T, nt Tlt I 1 xv. ITl I T I hit l \ .h ifn allollltn - dkllllld't h hlc to di o i T. l . t hill inl i oh l Ike I Citl 1is 1 65 I)(tSIO()NS ()- NAI'I()NAI. I.AIt)R RItlA I()NS O()ARI) maniagerial group, all qualified candidates would certainl be givel consideration. Finally, Budnick reminded the employees that there had been trans- fers from bargaining uits to nonorganized jobs in the past, and that the Company would continue to consider candidates as it had always done. The principles applied inll analysis of Ob)hjection 1, supra. are equally applicable and valid here. The conclusion that the Employer's comments are rea- sonable. objective predictions of probable adverse consequences. and not threats of retaliation, is ines- capable on the facts of this case. It is clear that, in the nonorganized combined office clerical-technical group. office clericals bid their group seniority equally against technical employees for technical vacancies in the group. It is also clear that employ- ees from organized bargaining units have no ability to bid their urnil seniority against nonorganized office clerical and technical employees for techni- cal vacancies in the nonorganized group. Thus. one of the sacrifices which the office clericals would have to make to secure union representation would be the loss of their bidding advantage over all or- ganized employees as well as less senior technical employees in the pursuit of technical vacancies. That is not a threat, that is at least a demonstrable probability on the supporting facts of this case as set out above.1 In light of the foregoing. I find that tile Employ- er did not threaten employees witilh loss of opportu- ilities tfor promotion if Pc itiioier on tile election but instcad legitimately predicted thie loss of the right of office clerical emlployees to bid on the basis of seniority into technical vacancies as a de- monstrably probable adverse consequence of an election victory by Petitioner. Accordinigly I would overrull e ec Iitionler's ()b- jection 4 and issue a Certification of Results of Election. ' t ( 'i, l t , ll li II!. i I i 1 IIII t ()l' i r i) t 1 11 t lI '(11 . Z Il l l, lil l tillg IlIl "l \\he I , \ lL , l lckl It .llIlpl ,,I t b ldIid g II ig lt% \%I l d IH 1 ItI'l 'Ip I, 11.' 1 )k('t' % Of1 I llliilll A1'k'1 tllk' 111r 11 bttalllt tlillil .:\, A L'1CII ;Ih)\ . Iht I Ilalilllll ;Igl't't'llll \l t dt.' 111.11 pltllilT"ll'il \%tllll IIml2ill/.td h;llglillllle Illlil I, iCllllillt' h! 11"11 %CllIll \, illld] proilll-lllll \1llll oIlrll.l d kl lllll gllplt5! l 1 , lt'll l ll . lll 1t'l t llilillgt11 .'11 ll Itghl, I hCC ICTrill. ;il]lIg \%il ;I[l OI( .1 I pi \ I , 11 l I11 i1t' llllal l l l;Iglt'L'll'l.111 hC- IxAcC11 Ihlt' ,illlt ' , ould hte.,llt Ip libah lc toh ., I t'\lN I tllll t'd ,Jitt' chlcrla-. ll Ill . ;1 ...... 11 . . It. d[a grt. t lllt \agreeme t l'a'lt.,d a'* I1 .la,l'fi.ia- 1 ll S 1()( to1111, J I'II(IH d ( ill' .1 l \iIg', ]t il~ (cllfil r 1I lt It'ile rilg lC ()r- fiCl. crnlpl .-,c c hltldllig lighl' %\md.o ld m1/ hc left I I' gtllalillU'llll o Itl-lOIi g it 1ln \itll!, bill r;liler \wl d bc Hllp-t~.... I ill .tha. II il% il m11.llt'r f p"t'.'\lillg 0'. l 1111 i .11 ' llll lill . Colli ll o lel \%fCV \ *I Ill t'tl]lt'. gteX. lhc' ,lh"' llk'C .- t ,11 k'\J'lt ' ~ pi , ontlrIallil] [ ru lllihilllm .ig}m lll lilt ilpJ'~Jlt'illi(ll o' Olgillll l 11111un 1llorI ll 1 hl ll tll Il ll h% 111 thIlgill tl grt-Il5> e i -n t m lck l ltil"l(llil ! I,1 l' ll! 1 s P0ll l IllIt. lhu\> ,ul!, Ic~, Icg{lglli~lzl('J pft-'li,.-tldblc Ihl li' 111I.% 1 t1l lglIlllt't atJtrlt,lJ Lllit 1' l' '.11 Ct 1 \S M111( 110,1 h Ill b) A 1 1l l .lr 1ILI ( O Illlt' , I ll ,.'lCe king I0, lill \.aCilll',lt ill Iht' lollolga.lldl/ c( 1,,lttlk.li c t'111t.11 Illlit " Stc %I1&,)1tnl rt H;I',/ A ( e). l/ orrwraI d. upra St' il'k, l(' liaIt .Sho,) ( 'omp. nt l, .Sa SockI. / , I95 N R 54 (1 (72) (prediLte '11 'It ''I'i' lllll Ill'", ,(t dll('t'lt,,,) 1 Ihh1