N.L.R.B. v. Styletek, Div. of Pandel-Bradford, Inc.
| Decision Date | 06 August 1975 |
| Docket Number | No. 75-1017,PANDEL-BRADFOR,INC,75-1017 |
| Citation | 520 F.2d 275 |
| Parties | 89 L.R.R.M. (BNA) 3195, 77 Lab.Cas. P 11,038 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. STYLETEK, DIVISION OF, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Margery E. Lieber, Atty., with whom Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and John H. Ferguson, Atty., were on brief, for petitioner.
George H. Foley, Boston, Mass., with whom Hale & Dorr, Boston, Mass., was on brief, for respondent.
Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
This case arises out of an organizational campaign by Teamsters Local 437 at the Groveland, Massachusetts, plant of Styletek, Division of Pandel-Bradford, Inc. In an unfair labor practice proceeding after the union narrowly lost a representation election, the National Labor Relations Board found that the company violated section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), 1 by promising and granting benefits in order to discourage unionization, and by coercively interrogating employees on one occasion. The Board now petitions for enforcement of its order, 2 and our task is to determine whether substantial evidence in the record as a whole supports the two Board findings of violations.
At the hearing before the administrative law judge, the following evidence was introduced. The company engages in the manufacture, sale, and distribution of unit soles, heels, and platforms for shoes. On May 29, 1972, general manager John Walker gave all employees a general cost-of-living increase and said there would be a similar increase in May 1973. From May 1972 through March 1973, the company expanded rapidly, increasing the number of its employees from about 50 to about 315. The company did not have a formal personnel department or an experienced personnel official, and records were not properly kept. Inequities arose in wage grade structures, hours per shift, and weekly schedules in the different departments. In February 1973, the company began moving piecemeal into a new plant.
In late February 1973, employee Cook first contacted the union and arranged a meeting between the union and six employees. Employees then began handing out union cards and literature and speaking about the union. By early March the company was aware of the union's organizing activities.
Near the end of April 1973, the company hired Michael Foster, a man experienced in reorganizations, as general manager. He was to plan and carry out a reorganization of production and administrative procedures. Foster was informed by his predecessor that the employees had been promised another cost-of-living increase in May 1973, but no increases were made at that time. During the spring and summer a number of employees individually and occasionally in groups asked Foster when they would get a raise. Foster's response was that the company was in the process of reviewing and rewriting all job descriptions for the plant and also working on incentive systems. Foster told the employees that the company was trying to do a complete revision rather than just a piecemeal job. In May, in order to expedite preparation of the job descriptions, Foster hired an industrial relations engineer, Ronald Coupe. On June 8, the company announced that certain areas of the unit sole department would change from a schedule of four 12-hour days per week to one of six eight-hour shifts, and that wages of the affected employees would be raised to compensate them for the accompanying loss of overtime pay. Also, an incentive plan for them was instituted shortly thereafter.
On June 29, the last day before the plant shut-down for a two-week summer vacation, Foster posted the following notice following employee pressure for a wage increase:
"The rapid growth of Styletek has tended to create some inequities in the labor grade and rate structure of some of the jobs at the Styletek factory. For this reason, we are presently reviewing all jobs with an eye toward correcting any inequities in these grades and broadening the wage categories.
You have seen the beginning of this effort with the realignment of the unit sole department along with the installation of the incentive system for this area.
We will continue to review all job descriptions, labor grades, and the possibility of incentive programs in as many areas as possible.
We hope this will eliminate any inequities that presently exist."
On July 24 the union filed a petition for an election. Beginning in early August, after job descriptions in the production department had been rewritten and the number of labor grades reduced, each employee was evaluated and slotted into a grade and position within the grade by supervisors and Foster. On August 15 a group of 15 to 20 women from the unit sole finishing area at the end of their shift presented Foster with a petition and orally argued for a cost-of-living wage increase. Foster asked them for their notes from which they were reading, and they typed these notes and presented them to Foster the next day, August 16. Foster told the women that a new job system was near completion, and that he hoped it would be in effect within a week. 3 Also, on August 16 the company and union signed a Stipulation For Certification Upon Consent Election, in which they agreed to an election on September 6.
On August 20, Foster posted the following notice:
"TO ALL FACTORY AND WAREHOUSE EMPLOYEES:
As we reported to you last June 29th, we have been reviewing all jobs with an eye to correcting inequities in our rate structure and broadening the wage categories. This has been a difficult and time consuming job because it has involved reviewing all job descriptions and labor grades and then slotting in each individual at the appropriate step and hourly rate in his or her labor grade.
As demonstrated by the copy of the new wage structure posted herewith, we have reduced the number of grades from seven to three and have substantially raised the maximum for each job.
The new structure sets minimum amounts which an employee must receive after 30 day's employment in a particular labor grade and again after an additional 90 days of employment in the grade. No one will receive less than these minimums, but he or she may receive more.
Raises after the 120 day increase will be based upon merit up to the maximum for each job.
Your supervisors will talk to each of you in the next day or two and furnish you with a copy of your job description, tell you your new rate of pay and answer any questions. The new rate will be reflected in your pay envelope this coming pay day.
We are continuing to review the possibility of incentive programs in as many areas as possible on a basis which would guarantee that no employee would receive less than he now receives but which would earn him additional money for greater productivity.
(emphasis in original)
This plan was implemented promptly. Each production employee was spoken to and furnished with a copy of his job description by the employee's supervisor. The supervisors did not talk about the union or pending election at that time. The job reevaluation covered all production employees, about 140 people. It did not include 25 to 30 maintenance and machine shop employees, who were also eligible to vote in the election. Under the plan no one (with one possible exception) received a wage decrease, some received no increase, and others received increases of varying size. The plan raised by about five percent the company's labor costs for production employees covered by the plan. Foster continued to work on further incentive programs and was still doing so at the time of the unfair labor practice hearing in January 1974.
In the secret ballot representation election on September 6, 1973, the union lost by a 90 to 78 vote, with 10 ballots challenged and remaining unopened.
The administrative law judge found that the timing and other circumstances of the company's promises and grants of benefits warranted the inference that the conduct " 'was designed to defuse the employees' union activity, particularly in the absence of evidence of any legitimate economic reason for the timing of the change' ". The judge further found that the company's " 'series of specially timed announcements . . . were designed to, and did, interfere materially with the organizational rights of its employees.' " She concluded that as the granting and announcement of benefits, and promises of future benefits, were to discourage unionization, the company had "interfered with, restrained, and coerced its employees" in the exercise of their section 7 rights, in violation of section 8(a)(1).
The Board, with Chairman Miller dissenting, affirmed the administrative law judge's findings and rulings. It took the position that the company had demonstrated anti-union animus by announcing and implementing a restructuring of its job classification and wage rates rather than by merely granting the earlier promised cost-of-living raise. The Board further noted that the August 20 announcement and grant of wage increases was timed "during the critical preelection period between July 24 (when the Union filed its petition) and September 6 (when the election was held)." Finally the Board rejected the company's argument of business justification, on the ground that the company's efforts to remedy wage inequities by hiring a new general manager did not occur until several months after union organizing efforts had begun.
In NLRB v. Gotham Industries, Inc., 406 F.2d 1306, 1309 (1st Cir. 1969), we pointed out that there were two ingredients to a section 8(a)(1) violation case based upon an employer's granting of benefits to his employees. The Board...
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