Boston Mutual Life Insurance Co.

272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jobs, to fill two unexpected vacancies, after the eligibility date but before the election. We shall, therefore, sustain the challenges to their ballots.5 As the Petitioner did not receive a majority of the valid ballots cast in the election, we shall certify the results of the election. [The Board certified that a majority of the valid ballots was not cast for United Gas, Coke & Chemical Workers of America, CIO, and that such union is not the exclusive representative of the employees ,of Gerber Plastic Company in the unit heretofore found appropriate.] 5Insofar as Sylvanrtia Electric Products , Inc, 91 NLRB 296, and the cases upon which it relies , are inconsistent with this decision, they are hereby overruled. BOSTON MUTUAL LIFE INSURANCE COMPANY, PETITIONER and INSUR- ANCE AGENTS INTERNATIONAL UNION, AFL, AND ITS LOCAL 243 and LOCAL 1776, INSURANCE WORKERS OF AMERICA, CIO. Case No. 1-Rill-179. October 7,1954 Decision and Order Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted on April 1, 1954, in the above- entitled proceeding under the direction and supervision of the Regional Director for the First Region. Thereafter a tally of ballots was fur- nished the parties which showed 185 votes cast for Insurance Agents International Union, AFL, and its Local 243, hereinafter called IAIU-Local 243, 185 votes cast for Local 1776, Insurance Workers of America, CIO, hereinafter called IWA-Local 1776, 1 vote cast against the participating labor organizations, and 1 vote challenged. As the results of the election were inconclusive and no objections thereto were filed, the Regional Director conducted a runoff election on April 15, 1954. The tally of ballots furnished the parties showed that in the runoff election 180 votes were cast for IAIU-Local 243,188 votes were cast for IWA-Local 1776, and 1 vote was challenged. On April 22, 1954, IAIU-Local 243 filed timely objections to the runoff election. After investigation of these objections, the Regional Director issued his report on objections on May 25, 1954. In his report the Regional Director found that certain conduct of the Employer interfered with the employees' free choice in the election and recommended that the election be set aside. The Employer filed timely exceptions to the report. The Board, having carefully con- sidered the stipulation of the parties, the objections to the election, the report on objections, the exceptions thereto, and the entire record in the case, makes the following findings : 410 NLRB No 36 BOSTON MUTUAL LIFE INSURANCE COMPANY 273 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. 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: All the industrial insurance agents of the Employer in Maine, New Hampshire, Massachusetts, Rhode Island, and Vermont, excluding executives, office clerical em- ployees, managers, assistant managers, inspectors, professional employees, guards, and supervisors as defined in the Act. 5. IAIU-Local 243's second objection to conduct affecting the results of the election concerns two letters the Employer sent to the employees on April 7, 1954, and April 13, 1954, in which, it is alleged, the Employer threatened to deny its employees certain contractual benefits in the event they chose IAIU-Local 243 as their bargaining representative. In the April 7 letter the president of the Employer stated, in part : I have had no hesitation in the past few weeks of disclosing to you the dislike and contempt that your Company has for the AFL Insurance Workers Union and its Local 243. I was of the opinion that I had made clear to all of you why your Company has taken this stand, but it would appear from the tie vote that resulted on April first that I may not have made our position clear to some of you. [Emphasis added.] After explaining the Employer's reasons for its disapproval of IAIU-Local 243, the president continued : That and only that is why we have nothing but contempt and dislike for the IAIU and its Local 243. In the second letter dated April 13, 1954, 2 days before the runoff election, the Employer's president pointed out to the employees that their job security could be guaranteed only by the Employer and that the Employer was not compelled by law to grant them job security by agreeing to an arbitration procedure with their union. In the course of this letter the president made the following statements : ... The result of a successful insurance company is that its employees can expect good income and good retirement benefits in their old age. Those benefits come from your company. If your company is successful and if it has respect for the union which represents its employees it is natural that the granting of yin-7o 328207-:1-op1 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such benefits and increased benefits as they come along are re- duced to writing in a contract with a union. However, it should be noted carefully that no law compels your company to come to an agreement on such matters with any union. The union can ask-but it is up to the company to decide whether it is willing to give. After reciting the provisions of Section 8 (d) of the Act to the effect that neither party in collective bargaining is required to agree to a proposal or make a concession, the letter continued : ... Therefore, the employer is not required to agree to insert any clause covering grievance procedure or arbitration in any contract with a union. It should be obvious that no company in the exercise of good discretionary judgment would agree to arbitration procedure if it has no respect for the representatives of the union with which it is negotiating. Your company is no exception. If your company should refuse to agree to insert an arbitration clause in a collective bargaining agreement, then it retains the unrestricted right to terminate anybody for any cause... . The Regional Director found that the Employer's statements in these two letters indicated the Employer's intention to grant fewer contract benefits to IAIU-Local 243, the labor organization which it held in contempt, if it were chosen, than the Employer would grant to IWA-Local 1776, the union which had not been so stigmatized, if the latter were chosen. The Regional Director concluded that the Em- ployer thereby interfered with the employees' free choice of repre- sentatives and, for this and other reasons, recommended that the election be set aside and a new, election directed. The Employer's vigorous condemnation of IAIU-Local 243 and its attendant failure to more than mention the competing union in the first letter, in conjunction with its declared intention in the second letter not to, in the exercise of good discretionary judgment, agree to an arbitration procedure with a union for which it had no respect, can reasonably be viewed only as implying the Employer's intention to grant greater contract privileges to its agents if they chose IWA- Local 1776 rather than IAIU-Local 243. And the Employer's gen- eral disclaimer of intention to make threats of reprisal or promises of benefit should not be held to immunize the Employer from the consequences of such threats and promises where we find, as here, that they were in fact made. We think these letters reveal the Employer's intention to accord more favorable treatment to 1 of 2 competing unions much more forcibly than did the employer's letter in Hudson Sharp Machine Company ' in which the Employer guaranteed that if 1107 NLRB 32. BOSTON MUTUAL LIFE INSURANCE COMPANY 275 the Intervenor won the election the Employer would "negotiate a con- tract .equal to or better than the one that presently exists." In its exceptions the Employer claims, and our dissenting colleagues would find, that since neither letter, by itself, contains a threat of reprisal or promise of benefit, they are both privileged under Section 8 (c) and may not be found to constitute jointly what neither consti- tutes singly. We do not agree. In our view each letter contains one element of a threat; either element without the other would not con- stitute interference. But when the related messages of these two letters are combined they convey to the reader the Employer's con- tempt for the IAIU-Local 243 and the Employer's unwillingness to grant certain contractual benefits to a union for which it has no respect. While it may be probable that the employees upon receiving the sec- ond letter did not lay the first beside it to examine them in juxtaposi- tion, we think it most unlikely that these employees on reading the second letter did not well remember the Employer's strong contempt for the IAIU-Local 243, forcefully expressed in its first letter. If we found it necessary to consider the Regional Director' s conclu- sions and recommendation regarding the Lefkowith discharge we might well agree with our dissenting colleagues that in disposing of the first objection the Regional Director was mistaken in not recom- mending that the matter be sent to a hearing which would then have been consolidated with the unfair labor practice proceeding relating to the discharge. However, the Regional Director in finding merit in the second objection did not rely upon his conclusion concerning the discharge ; in fact in his discussion of the Employer's letters he no- where even mentions the discharge. In disagreeing with the Regional Director regarding the effect of the Employer's letters, our dissenting colleagues make the unsubstantiated charge that the Regional Direc- tor's conclusion in the first objection "colors his entire Report and undoubtedly influenced his views as to the letters," which action they brand as "improper." And in disagreeing with our view as to the effect of the Employer's letters on the election they further observe that "Although the majority purport not to rely on the Regional Di- rector's view as to the discharge, it is difficult, if not impossible, to dissociate his recommendations, which the majority has adopted, from that opinion." While it may be difficult, if not impossible, for our dissenting colleagues to make the dissociation, we point out that this situation is quite like many others with which the Board and its agents are frequently confronted. We believe that an objective and logical approach to several issues contained in the same case will permit their "dissociation." Accordingly, we find, as did the Regional Director, that the Em- ployer's statements contained in the letters of April 7 and 13, 1954, 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amounted to interference in the exercise by its employees of a free choice in the election.' We shall, therefore, set aside the election and direct the Regional Director to conduct a new election at such time as he deems appropriate. [The Board set aside the runoff election held on April 15, 1954, and remanded this proceeding to the Regional Director for the First Region for the purpose of conducting a new election.] CHAIRMAN FARMER and MEMBER BEESON, dissenting : We dissent from the decision of the majority to set aside this elec- tion. The result of this determination will be to postpone indefinitely the conclusion of a long-drawn-out representation dispute on the basis of evidence which is indeed flimsy. One of the competing unions, the CIO, has at last-following an original election and a runoff- won a clear majority. We think that it should be certified so that collective bargaining on behalf of the employees may be permitted to get under way. This, we think, will more clearly and immediately effectuate the purposes of the Act than to set aside the CIO's victory and thus prolong the final resolution of the issue of representation. The majority bases its decision on its evaluation of the 2 letters. They adopt the Regional Director's conclusion that these 2 letters, read together, are coercive. We do not agree. The first letter was issued to employees on April 7, 1954. It was devoted principally to justifying the "dislike and contempt" which the Employer had ex- pressed for the AFL Insurance Workers Union and its Local 243 during the preceding weeks. It explained that this dislike and con- tempt was based only on the fact that the Insurance Workers had, over the opposition of other AFL unions, given refuge to the former bargaining representative of its employees, a local of Distributive, Processing and Office Workers of America (DPOWA). The presi- dent of this local, it asserted, had refused to reveal to a Massachusetts investigation commission whether he then was or had been a mem- ber of the Communist Party. The Regional Director found, and the majority apparently agree, that this letter in and of itself was privi- leged under Section 8 (c) of the Act. The second letter was distributed to employees on April 13, 1954, about a week after the first letter. This letter attempts to refute the alleged claim of the former DPOWA local president that he was responsible for job security. It states that the law does not require the Employer to agree to grant either economic benefits or a grievance and arbitration procedure. It further states that no company would 2In view of our disposition of this objection , we find it unnecessary to consider the other objections TAIU-Local 243 raised to the election. BOSTON MUTUAL LIFE INSURANCE COMPANY 277 agree to an arbitration procedure if it has no respect for the repre- sentatives of the union with which it is negotiating. The letter adds : We want to make it clear to you that in this letter and in past conversations we have exercised our right to express to you our views, arguments and opinions. The choice is yours entirely and you should know that we intend no threat of reprisal or force or promise of benefit on the part of your company. The April 13 letter nowhere mentions either of the competing labor organizations. It makes no reference to the April 7 letter. It con- tains no threats or promises of benefits. In fact, it expressly disclaims any intention to make one or the other. The letter attempts to do nothing more than answer the campaign propaganda of one of the unions. It seems to us that, standing alone, the letter of April 13, like that of April 7, is clearly privileged under Section 8 (c) of the Act.' We fail to perceive how these 2 separately issued privileged state- ments can be combined to make 1 nonprivileged statement. But this is what the majority has done, and it seems to us improper. Equally wrong is the process by which the majority has read one part of the first letter into another part of the second letter, ignoring the express denial of any intent to make promises or threats. Letters 1 and 2 were issued about a week apart. Neither contains any reference to the other. Each deals with an entirely different subject matter. It is unrealistic to believe that upon receiving the letter of April 13, the employees took out the letter of April 7, laid them side by side, and deduced that the Employer had promised to give more benefits to one union than to another, especially when in the second letter the Em- ployer clearly and unequivocally stated that it was not threatening reprisals or promising benefits. We think it appropriate also to point out that the Regional Director prefaces his consideration of these letters with a discussion of the dis- charge of an AFL adherent, Lefkowith, who he "finds" was discrim- inatorily discharged prior to the election. This finding, in our opinion, colors his entire report and undoubtedly influenced his view as to the letters. We consider this improper. The Regional Director, acting on behalf of the General Counsel, has the authority to issue a complaint as to this discharge, but he has no right to make a finding of discrimination. Only the Board has that authority and then only in an unfair labor practice proceeding. We have not yet made any 3 Esquire, Inc., 107 NLRB 1238. The letter in Hudson Sharp Machine Company, 107 NLRB 32, relied on by the majority, is clearly different from that distributed in this case . In Hudson Sharp, the employer promised in so many words that if the independent union won the election it would nego- tiate a contract with that labor organization equal to or better than the current one. Nowhere in the April 13 letter did the Employer in this case make any such promise On the contrary , it expressly disclaimed making any promise of benefit depending on the out. come of the election, 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such finding, and, certainly, we cannot now be influenced in our deter- mination as to the validity of the election by the Regional Director's opinion that the discharge was discriminatory. Although the ma- jority purport not to rely on the Regional Director's view as to the discharge, it is difficult, if not impossible, to dissociate his recommen- dation, which the majority has adopted, from that opinion. WHITE'S UVALDE MINES and UNITED BRICK AND CLAY WORKERS OF AMERICA, AFL, PETITIONER.' Case No. 39-RC-743. October 8, 1954 Supplemental • Decision and Certification of Representatives On April 6, 1954, pursuant to a Decision and Direction of Election 2 issued by the Board, an election by secret ballot among the employees of the Employer, in the unit found appropriate, was conducted under the direction and supervision of the Acting Regional Director for the Sixteenth Region. The tally of ballots shows that of 60 votes cast, 50 were for the Petitioner, and 10 against.. Thereafter, the Employer filed timely objections to conduct affecting the results of the election. After an investigation, the Acting Regional Director on June 21, 1954, issued a report on objections in which he found no merit to the Em- ployer's objections, and recommended that they be overruled and the Petitioner be certified as bargaining representative. The Employer filed timely exceptions to this report. In its exceptions, the Employer renews its contention, set forth in its objections, that the election should be set aside because a union representative, in a prior unfair labor practice case concerning the same parties involved herein, admittedly introduced at the hearing falsely dated authorization cards and that case was therefore dis- missed. The representative was active in the instant union campaign and attended a preelection conference. The Employer contends that the election should be set aside because of Lhese facts. However, we find, in agreement with the Acting Regional Director, that the union representative's misconduct in the prior case is not relevant here. About 2 months before the election, 2 of the Petitioner's officers separately contacted an employee and told him that "The boys that didn't sign up are going to wish they had . . . that the Union would make it so hot for the boys that didn't sign up, that they would have to quit" and similar statements. Although the Employer asserts that the election should be set aside because of the foregoing, we agree with the Acting Regional Director that these incidents were too isolated and remote in time from the date of the election to affect the results. Herein sometimes referred to as the Union. Case No. 39-RC-743 ( not reported in printed volumes of Board Decisions and Orders). 110 NLRB No. 35.