Montana Lumber Sales Inc.

46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Montana Lumber Sales Inc. (Delaney & Sons Divi- sion) and Montana Carpenters District Council, Lumber and Sawmill Workers Union , United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Petitioner. Case 19-RC-5062 August 21, 1970 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION BY MEMBERS FANNING, MCCULLOCH, AND JENKINS Pursuant to a Stipulation for Certification Upon Consent Election executed by the parties on May 16, 1969, an election by secret ballot was conducted in the above-entitled proceeding on June 10, 1969, under the direction and supervision of the Acting Regional Director for Region 19 (Seattle, Washing- ton). Upon the conclusion of the election, a tally of ballots was furnished the parties in accordance with National Labor Relations Board Rules and Regu- lations and Statements of Procedure, Series 8, as amended. The tally of ballots shows that there were approxi- mately 22 eligible voters and that 22 ballots were cast, of which 6 were for the Petitioner, 12 were against the Petitioner, and 4 were challenged. The challenged ballots are not sufficient in number to affect the results of the election. On June 13, 1969, the Petitioner filed timely objec- tions to the conduct of the election. The Acting Regional Director caused an investigation of the objec- tions to be made and, thereafter, on October 10, 1969, issued and served on the parties his Report on Objections to the Election. In his report, the Acting Regional Director recommended that the Board set aside the election on the basis of Objections 3 and 4. He further recommended that, if the Board does not concur with said recommendations, a hearing be held to resolve the credibility question raised in Petitioner's Objection 2. Thereafter, on October 23, 1969, the Employer filed timely exceptions to the Acting Regional Director's Report with respect to Objections 2, 3, and 4 and a brief in support of its exceptions, request- ing that the Board overrule all objections and certify the results of the election. On December 16, 1969, it appearing to the Board that the Petitioner's objections raised issues that could best be resolved by a hearing, it was ordered that a hearing be held before a Hearing Officer designated by the Acting Regional Director, with directions to prepare and cause to be served on the parties a 185 NLRB No. 12 report containing resolutions of the issues raised with respect to the Petitioner's Objections 2, 3, and 4. A duly scheduled hearing was held before Hearing Officer George L. McCargar on February 11, 1970. The Employer and the Petitioner appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. On March 6, 1970, the Hearing Officer issued his Report on Objections, finding that the evidence failed to support Objections 2 and 3 and recommend- ing that they be overruled in their entirety. He further recommended that Petitioner's Objection 4 be sus- tained and that the election of June 10, 1969, be set aside and a second election be directed. The Employer filed timely exceptions to the Hearing Offi- cer's Report and a supporting brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings made by the Hearing Officer at the hearing and finds that no prejudicial error was committed. The rulings are here- by affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of employees of the Employer with- in the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. We find, in accordance with the stipulation of the parties, that the following employees of the Employer constitute a unit appropriate for the purpos- es of collective bargaining within the meaning of Section 9(b) of the Act: All production and mainte- nance employees of the Delaney & Sons Lumber Division of the Employer at its plant in Lincoln, Montana, except and excluding all office and clerical employees, temporary employees, supervisors, plant guards and watchmen, and professional employees as defined in the Act. 5. The Hearing Officer found that Petitioner's Objection 4 had merit and recommended that the election be set aside on that basis. We cannot agree. ' In the absence of exceptions thereto, the Board adopts the Hearing Officer's recommendation that Petitioner's Objections 2 and 3 be overruled MONTANA LUMBER SALES INC 47 Petitioner's Objection 4 states that: Under the date of June 7, 1969, postmarked June 9, 1969, and received late in the afternoon of June 9, 1969, by the employees a letter was sent to all employees containing erroneous state- ments to which there was no possible time for the Union to reply. It is uncontroverted that in response to two letters from Petitioner, one dated June 3, 1969, and the other June 5, 1969, the Employer prepared an answer in the form of a letter dated June 7, 1969 (a copy of which is attached hereto). This three-page document was placed in the mail on June 8, 1969. The Hearing Officer found that the portion of the letter entitled "What the Union Could Mean to You" contains predictions of loss of employment and other potential financial hardship, to which, because of its late delivery, Petitioner had insufficient time to respond. Further, he concluded that the para- graph entitled "Getting Forced into the Union" con- tains an erroneous characterization of the law with respect to an employee's obligation under a union- security contract provision. We are convinced by the wording and content of the letter that "there does not appear to be any substantial misrepresenta- tion which involves a departure from the truth so that the misrepresentation may reasonably be expected to have a significant impact upon the election."2 The Hearing Officer found objectionable the follow- ing paragraphs in the letter on the ground that the Employer thereby shifted the onus for the nonimple- mentation of several fringe benefits to the Petitioner: Some of you apparently think our Company would never have offered to start our fringe benefit program if it hadn't been for the union. Those who think so are dead wrong. The only thing the union did was to file its petition in such a way that we have had to wait until after the election before we can begin to pay the fringes. A union "accident?" Maybe. But we doubt it. We now believe it was deliberate by the union. The letter, in discussing the progress which had been made by the Employer and the benefits enjoyed by the employees, also stated. Well, we have the benefits now, too. The Union cannot take any credit for any of this. We believe the only credit the union can claim is for the delay in when our benefits can be effective. Standing alone, those portions of the letter would raise a serious question in light of McCormick Long- meadow Stone Co., Inc.,' where we found it a violation of the Act to announce the withholding of, and to withhold, benefits which an employer had led its employees to believe would be forthcoming but for the Union. However, we cannot view those portions of the letter in isolation from all the circumstances of this case. In dismissing Petitioner's Objections 2 and 3, the Hearing Officer found the following facts: The Employer commenced internal discussions rela- tive to certain wage increases and the institution of various fringe benefits during the early part of Februery 1969. In mid-March 1969, the Employer decided to, and did, initiate certain "bracket increases" to be effective as of March 1, 1969. On March 27, 1969, the Employer reached a decision to grant its employees a 12-cent-per-hour wage increase, effective April 1, 1969, and to initiate a fringe benefit plan including paid vacations, paid holidays, and a health and welfare program. On March 28, 1969 (the date the Union filed its petition), the Employer announced its decision to its employees at a plant meeting conducted by the superintendent of mills, Cliff Rawlings. When Rawlings asked which of the fringe benefits the employees would like to have initiated first, the employees indicated that paid vacations held first priority. Rawlings informed the employees that the 12-cent-per-hour wage increase would be granted on April 1; that the paid vacation plan could be made effective "right away"; and that, while the Employer had decided to institute the other fringe benefits, it would take some time to do so and that a later meeting would be held to consider these items in greater detail. On April 15, 1969, (after the Employer was notified of the Union's petition) Rawlings held a second meet- ing with the employees at which he read a statement in which the vacation plan was spelled out. Included in this text were the following statements: Now, before I get into this fringe benefit question, I should make one thing clear. Since our March meeting, we have received word that the Lumber and Sawmill Workers Union has filed petition for an election here. That petition really took us all by surprise. I guess that shows some poor communications someplace, because we had always thought that if any of you had a problem with your job, you would let us know about it and see if we couldn't solve it on our own, before any outside Union agents were invited in. So I'm real sorry that you didn't let us know about your problems before taking them ' National WaterlGft Company, 175 NLRB No 135, Hollywood Ceramics Company, Inc,140 NLRB 221, 224 ' 158 NLRB 1237 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to a Labor Union . But, that, of course, is your business, and we can't and won 't interfere in that in anyway. [sic] The fact that a Union filed a petition for an election after I promised complete and specific answers on all of the fringe benefits , but prior to this April meeting which we had previously scheduled for ourselves back there in March, has really made for a delicate situation . In March, I point-blank promised you the Company's full answer on your request to have the main fringe benefits in effect here . In fact, when we met in March, I pretty strongly implied that we would be having these benefits, as you know. However, I did have to check through some of the details with other Company officials before I could talk with you fully about them. I know back in March, even before our March meeting, that the decision had already been made by the upper Company management to put these benefits in effect here, but specifics were still being worked out at the time of our meeting here in March. However, the labor law says that in most cases, a Company shouldn 't change wages, hours, bene- fits or working conditions after a Union petitions for an election, until after the election is over with. Then there's another part of the law which says that if a Company promises something to its employees, but then refuses to deliver on those promises after a Union files a petition for an election, this also has illegal aspects. So you can see that our Company is sort of damned if we do, and also damned if we don't here today. If I talk to you about fringe benefit improvements, even though this has already been promised to you, I could be getting our Company into hot water. If I say I can't talk about them now on account of the Union petition , I could also be getting our Company into hot water. After a lot of thought, and talking it over among our Company management people and our attor- ney, we've decided the only honest and fair thing we can do at this point is talk about the fringe benefits with you, since we've already promised to do so. This promise was made before we had any idea of any Union petition, or any other kind of Union activity . We made this prom- ise in complete good faith, as a way to answer the requests for improvements which you had brought to us, and out of respect to you, our employees, I don't think we have any choice but to go ahead. We will do these things whether you decide to have a Union in the election or not. You won't lose anything if you vote in favor of the Union. You won't lose anything if you vote against the Union . If the Union is voted in, we will, of course, have to negotiate these matters with the Union . However, I think the Union would accept these benefits , and our Company would immediately offer to grant these benefits in any negotiations with the Union. On this matter of a Union, we sure don't think you need a Union here to get a fair shake from this Company. We think that if you simply speak up and let us know what is on your mind, you can get along as well or better without a Union. However, what you do about having a Union here is your own business , not ours. And if you decide to have a Union, we'll do our best to negotiate with the outside Union representatives . This whole question will be decid- ed by you in the election which is coming up. Like I said before, I'm real sorry our meeting here today has to be complicated so badly by the problem of what we can and can't say now that a petition for an election has been filed. But since you fellows directly asked for answers on these benefits, and since I promised that we would give you our answers by April 15, I feel strongly that our Company is obligated to give you the full answers you have requested from us. You now have these answers, and I again want to emphasize that these benefits do not depend on how you vote in this up-coming election. You don't have to vote either against or for the Union to get these benefits, and, while we sincerely don't believe you need the Union here, we also realize that the decision on this is entirely in your hands. Subsequent to this meeting , but prior to the election, two employees were granted vacation checks in accordance with the Employer's plan announced at this meeting. The Hearing Officer overruled the Union's objection that this action constituted conduct which interfered with the election. No exceptions were taken to his recommendation. It is not alleged, nor did the Hearing Officer find, that the Employer's statement to the Employees on April 15 was improper. The failure of the Employer to institute all benefits has not been questioned. Rath- er, Union Objection 2 alleged that the Employer acted improperly in granting the vacation plan previ- MONTANA LUMBER SALES INC ously promised the employees . This objection was properly found to be without merit.' In view of the foregoing, it is clear that the portions of the Employer's letter dated June 7, 1969, found objectionable by the Hearing Officer are ambiguous at most. Although the Employer stated that "The only thing the union did was to file its petition in such a way that we have had to wait until after the election before we can begin to pay fringes," it is evident that the employer did not wait to institute wage increases and the vacation plan, although paid holidays and health benefits were not instituted. Fur- thermore, at the meeting of April 15, 1969, the Employer spelled out its position and reasons therefor in detail to the employees. We have held that, where an Employer has made clear in its campaign statements that its only reason for postponing expected benefits was to avoid the appearance of election interference, its action did not constitute objectionable conduct sufficient to set aside an election.' We see no reason for a different holding in this case. Since the Employer's actual conduct with respect to the payment of benefits has not been found objec- tionable, the paragraphs relating to such benefits in the June 7 letter must be considered priviliged cam- paign propaganda under the standards declared in Hollywood Ceramics.' There we stated at page 224: We believe that an election should be set aside only where there has been a misrepresentation or other similar campaign trickery, which involves a substantial departure from the truth, at a time which prevents the other party or parties from making an effective reply , so that the misrepresentation whether deliberate or not, may reasonably be expected to have a significant impact on the election . However, the mere fact that a message is inartistically or vaguely worded and subject to different interpretations will not suffice to establish such misrepresentation as would lead us to set the election aside. Such ambiguities, like extravagant promises , derogato- ry statements about the other party, and minor distortions of some facts, frequently occur in communications between persons. But even where a misrepresentation is shown to have been sub- stantial, the Board may still refuse to set aside the election if it finds upon consideration of all the circumstances that the statement would not be likely to have had a real impact on ' See McCormick Longmeadow Stone Co., supra UARCO Incorporated, 169 NLRB No 162 140 NLRB 221 49 the election. For example, the misrepresentation might have occurred in connection with an unim- portant matter so that it could only have had a de minimis effect. Or, it could have been so extreme as to put the employees on notice of its lack of truth under the particular circum- stances so that they could not reasonably have relied on the assertion . Or, the Board may find that the employees possessed independent knowl- edge with which to evaluate the statements. Using the above standards, it is clear that the Employ- er's statement in his letter of June 7, 1969, could not "reasonably be expected to have a significant impact on the election." Furthermore, since the record indicates that the Union was made aware of the employer's letter during a union meeting of all employ- ees the day before the election , it appears that the Union was not prevented from making an effective reply. In the circumstances of this case , we do not believe that the employees could reasonably have concluded, nor do we conclude, that the restatement of the Employer's position was intended to affect, or did substantially affect the employees ' freedom of choice in the election. Accordingly, in disagreement with the Hearing Officer , we overrule Petitioner's Objection 4. Accordingly, as all objections to the election are now overruled and as the tally of ballots shows that a majority of the valid votes has not been cast in favor of Petitioner, we shall certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION IT IS HEREBY CERTIFIED that a majority of the valid votes has not been cast for Montana Carpenters District Council Lumber and Sawmill Workers Union, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and that said labor organization is not the exclusive representative of the employees in the unit found appropriate within the meaning of Section 9(a) of the National Labor Relations Act, as amended. APPENDIX A To Our Employees: We're now at that critical time when you have to decide this union question . Everyone of us knows we've had some problems here in the past. That is no reason why anyone should vote for the union on Tuesday. Our problems have been caused mainly from three fires at this mill in the last 10 years. The last one 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occurred in 1967. We underwent a big loss to rebuild this mill and start operations again . Did the LSW offer to loan us any money? You bet they didn't. They just waited around until we got back on our feet. Now here they are, camped at our doorstep, greedy to get in our plant. Some of you apparently think our Company would never have offered to start our fringe benefit program if it hadn't been for the union. Those who think so are dead wrong. The only thing the union did was to file its petition in such a way that we have had to wait until after the election before we can begin to pay the fringes. A union "accident?" Maybe. But we doubt it. We now believe it was deliberate by the union. What's past is past. What counts now is the present. We now have a program of wages and benefits which are excellent for the size and kind of operation we have at Lincoln. Our program is as good, or better, than at Mt. Lolo, where this union did manage to get in the plant (and where the employees have been trying unsuccessfully to get back out for several years). If the union gets in our plant here now, it won't mean any "automatic" increases on anything, except maybe the amount of money you would end up having to pay the union. Please don't be fooled into thinking otherwise. I don't care what "promises" the union may make. Union "promises" are just a lot of hot air. Don't let yourselves get "bought" by meaningless union promises. You'll always be sorry if you do. If we can continue to cooperate closely together, we can continue to make really fine progress here in every respect. We've always followed the industry "pattern" here in Montana on our wages. No union was necessary for you to get this in the past, and it won't take a union in the future. We were behind on benefits, because we couldn't afford them due to those disasterous fires. Well, we have the benefits now, too. The union cannot take any credit for any of this. We believe the only credit the union can claim is for the delay in when our benefits can be effective. That June 3 letter from the union to you was plain trash, from one end to the other. We've got no high-powered "specialists" assisting us-only the union can afford that sort of thing. We're not afraid of this union for one second. We believe Elkhorn is going to vote against this union. The Elkhorn employees have voted against this union several times in the past few years. They've seen this union up close, and they know the kind of deals this union sometimes pulls. And we say again, there is sure no use of you paying money to this or any other union because there is nothing the union coul.d get for you which you can't get just as easy and fast for yourselves. We sincrerely are convinced of this. Up to now, we've had the freedom to sit down together and work our problems out among ourselves. Sure, there have been some rough spots. But a union wouldn't change that one bit. In fact, a union could easily create 10 rough spots for every one we've ever experienced up to now. With the union in this plant, you would lose your freedom almost totally. You couldn't come to anyone in management directly on any problem. You would have to go through an outside union business agent. The union is asking you to surrender almost all of your personal freedom and your individual rights to them. What do you get in exchange? Let's have a real close, open, and above-board look at some of the things you would get in exchange: WHAT THE UNION COULD MEAN TO YOU 1. Getting forced into the union: The union manages this little stunt through the "union shop." The "union shop" means you have to belong to the union, and pay your dues, initiation fees , etc., to keep your job. If you don't, the union sees to it that you get fired. The Company is then supposed to hire someone who will be willing to put up with the union's nonsense, and who will pay his money to the union. It's a nice neat arrangement for a guaran- teed income for the union . For you, it could easily mean guaranteed insecurity in your job with our Company. 2. Union trials and union fines: Once you become a union member, you are then completely under the union power. If you violate their "rules and regulations", they can now put you on trial. They do put people on trial . They can fine you if you are found guilty . And they can take you to court to collect the fine if you refuse to pay. They can even garnishee your wages, if you refuse to pay their fines! 3. The union costs you MONEY Let's face it. The union isn't free. In addition to the high monthly union dues (which get higher each year), there are the fees, and assessments, and maybe the fines. This comes out of your pocket. If this LSW union is in the plant, and you become a member, you wouldn't have much choice but to pay every cent of the money the union demanded of you. 4. Union-called strikes: Look at the record. The LSW strike record in our region is pretty sad. One recent LSW strike was at Stoltze Lumber Co. at Columbia Falls. That one went for months and months. Most strikers got replaced . They lost out MONTANA LUMBER SALES INC on everything. If the LSW got in here, you could face this same possible situation. 5. Getting permanently replaced in your job: If a union calls an economic strike against a Company, the Company has the right to replace the strikers with permanent replacements. This has happened in many LSW-called strikes. It happened at Stoltze. The smaller the plant, the quicker the Company has been able to replace the strikers. 6. The union can't guarantee anything: This is critically important for everyone to remember. The union can promise anything it believes will "buy" votes in the election. But it can't guarantee a single thing, except that it will want your money every month no matter what happens. 7. The union has no stake in our plant: The union didn't build this mill. The union doesn't have to meet the payroll. You don't see any of the union agents doing any of the work here. They won't loan any money if we go on the skids. If they got you in a strike which went sour, they could (and would) walk away from it. They have. They wouldn't help you find other jobs. The union could easily end up making a real mess of things here just like they have at several other small operations. They could walk away from it. We couldn't. You and I would be left trying to pick up the pieces. Often, there isn't much left to pick up. The former Stoltze employ- ees who got replaced in the LSW-called strike are still wondering what happened. 8. Union thrives on trouble: Unions and "trouble" in a plant just seem to go together. If a plant doesn't have a lot of trouble when the union gets in, it often happens that the union agents try to stir things up. They have to make themselves look needed. Other- wise, the employees would get tired of having to pay the dues, etc. real quick. We just don't believe our plant needs someone coming around trying to stir up trouble all the time. We don't believe that 51 is going to help anyone who works here accomplish anything worthwhile. WE CAN SOL VE OUR OWN PROBLEMS We're a small plant. We can speak our minds. You can get the very best in wages and benefits we can afford to give, and the union is not necessary for you to get any part of it. There is no reason in the world that you should pay all that money out to the union. There is no reason why you should subject yourselves to all the potential problems this LSW union could bring into our plant. IF IN DO UBT, VOTE NO!! Some of you may have doubts. If so, we strongly urge that you vote NO in the election . If you're unhappy at the end of a year, you can always get this or any other union back for another election. However, it doesn 't work in reverse. You can't vote the union in on Tuesday , and then figure you can get it out in a year if you are unhappy with it. Federal labor laws make this very complicated, and also the union would fight each of you right down to the wire if you tried it. Ask our Mt. Lolo employ- ees- they know real well how this works . Also, unions are now even trying to fine members who try to get the union back out, once it gets in. And those fines are not small-some of them run into the hun- dreds of dollars. We are convinced your best interest is to vote NO. Be sure you vote. It will be a secret ballot election . You are free to vote exactly as you personally see fit. The past counts for nothing. This election determines the whole thing. Fellows, this union has been passing around some real trash . It could end up to be a real trap for a lot of you. We sincerely hope that you will think this over carefully, and then vote "NO" on Tuesday. We know you won't regret it if you do. Sincerely, Don Delaney