O'Neil Moving and Storage, Inc.

O'NEIL MOVING & STORAGE, INC. O'Neil Moving and Storage, Inc. and Van Storage Drivers, Packers, Warehousemen & Helpers Local 389, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case 21-CA-11650 March 15, 1974 DECISION AND ORDER Upon a charge duly filed on March 21, 1973, by Van Storage Drivers, Packers, Warehousemen & Helpers Local 389, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, hereinafter called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, issued a complaint and notice of hearing on April 30, 1973, against O'Neil Moving and Storage, Inc., hereinafter called Respondent. The complaint alleged that Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(1) of the National Labor Relations Act, as amended, by distributing to its employees a letter which misstated the law with regard to union- security clauses and impliedly threatened its employ- ees with a loss of employment if they selected the Union as their collective-bargaining representative. On May 11, 1973, Respondent filed an answer denying the commission of any unfair labor prac- tices. On June 14, 1973, the parties executed a stipulation of facts by which the parties waived a hearing before an Administrative Law Judge and the issuance of an Administrative Law Judge's Decision and recom- mended Order, and agreed to submit the case to the Board for findings of fact, conclusions of law, and an Order, based upon a record consisting of the stipulation of facts and exhibits, together with the charge, the complaint, and the answer. On June 15, 1973, the Regional Director for Region 21 referred the stipulation to the Board for decision. On June 20, 1973, the Board approved the stipulation of the parties and ordered the case transferred to the Board, granting permission for the filing of briefs. Thereafter, both the General Counsel and the Respondent filed briefs. Upon the basis of the stipulation, the briefs,' and the entire record in this case, the Board makes the following: I Following the submission of briefs. General Counsel moved to strike portions of Respondent's brief on the grounds that factual statements contained therein are not part of the record now before the Board. To the extent that Respondent's brief makes factual assertions not part of the record, it has not been considered. To the extent that it makes arguments with regard to the logical consistency of facts as applied to this case, the FINDINGS OF FACT I. JURISDICTION 713 O'Neil Moving and Storage, Inc., is, and at all times material herein has been, a corporation with a place of business located at 4101 South Main Street, Santa Ana, California. Respondent is engaged in the moving and storage of furniture. In the normal course of its business operations, Respondent annu- ally performs services valued in excess of $50,000 directly for customers located outside the State of California. Respondent admitted, and we find, that O'Neil Moving and Storage, Inc., is, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The Respondent admitted, and we find, that Van Storage Drivers, Packers, Warehousemen & Helpers Local 389, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts On or about July 18, 1972, the Union began an organizational campaign at Respondent's place of business. On or about September 19, 1972, the Regional Director for Region 21 issued his Decision and Order directing an election among Respondent's employees. On or about January 30, 1973, while the campaign was still in progress, Respondent delivered a letter to its employees. This letter, which was signed by Richard H. O'Neil, president of Respondent, contained, inter alia, the following passages: Here's what you can expect from Teamsters' representation: The only contract that the Team- ster will agree to, if they win the election, is the industry-wide Southern California area contract, for the moving and storage industry. This includes the union shop, among many other objectionable provisions. A union shop would require each and every one of you, as well as any future employee, to be a brief has been considered . In addition, those factual assertions relating to the processing of Case 21-RC-12759 and Case 2l-RC-12803, so far as they are contained also in the official record of those cases, have been considered because the Board has taken official notice of its own records Accordingly, the General Counsel's motion to strike is denied 209 NLRB No. 82 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD member of the Teamsters. This would force us to fire anyone who refuses to become a member and pay dues, assessments and fines which, are totally controlled by the Teamsters. We are opposed to this and do not believe we have any right to force any of our people to join any union to keep their jobs. [Emphasis supplied.] The letter went on to point out that Respondent was also opposed to many other provisions of the Teamsters agreement with the moving and storage industry in Southern California. Finally, the letter contained the following remark: We want you to know that, in the event of any strike in the future, because the Teamsters if they win the election could not force us to sign their contract, O'Neil's is not going to close down its operations for even one day. We would expect our people to continue working and we would hire other employees permanently to replace the present employees who would refuse to cross any Teamsters' picket line. The law gives us the right to do this and we would do it. The election conducted by this Board, to which this campaign literature was relevant, was held February 22, 1973. The charges herein were filed on March 21. 1973. The Union lost the election and filed objec- tions thereto, which were dismissed. The results of the election were certified in July 1973. B. Contentions of the Parties The General Counsel contends that Respondent violated Section 8(a)(1) of the Act by misstating the law as to the scope of a union-security clause and the Respondent's obligation to discharge employees covered by a union-security clause who have not paid, in addition to dues, fines and assessments levied by the Union. General Counsel also contends that Respondent violated Section 8(a)(1) by telling its employees that it was opposed to the union-security clause as well as otherprovisions of the Union's area contract, that the union could only impose these conditions on Respondent by a strike, that predict- ably there would be a strike, and that in the event of a strike Respondent's employees could and would be replaced, thereby creating a sense of futility in the minds of its employees towards collective bargaining through an authorized collective-bargaining repre- sentative, thus interfering with their Section 7 rights to engage in protected concerted activities. The General Counsel also contends that by stating that it would refuse to bargain on the union-security issue, a mandatory condition of bargaining, a strike on the part of Respondent's employees would be an unfair labor practice strike and that the statement with regard to replacing strikers was inaccurate. In these circumstances, the General Counsel contends that the letter as a whole threatens and coerces employees in violation of Section 8(a)(l) of the Act. Respondent admits that it misstated the law when it referred to a union-security provision that would compel it to discharge any employees who failed to pay assessments andfines. Respondent argues howev- er that such a misstatement in all of the surrounding circumstances was de minimis and did not have any tendency to interfere with the employees' organiza- tional activities. At the same time, Respondent contends that its letter of January 30, 1973, was nothing more than an expression of facts and opinions that did not tend to interfere with the employees' Section 7 rights. C. Analysis and Conclusions The portion of Respondent's letter to employees which dealt with the union-security issue consisted, essentially, of three statements, which may be summarized as follows: (1) The Teamsters Union insists upon union shop clauses in its contracts in the area. (2) A union shop clause is described as forcing the discharge of an employee who refuses to become a member and to pay dues, assessments, and fines. (3) The Respondent is opposed to union shop clauses. Statements (1) and (3) above are clearly privileged, and General Counsel does not assert otherwise. Statement (2) is, concededly, an erroneous descrip- tion of the permissible effect of a lawful union shop clause. The proviso to Section 8(a)(3) of the Act which legitimizes discharges under certain kinds of union-security clauses has been interpreted not to legitimize discharges requested by a union solely because an employee has not paid assessments or fines. Only delinquencies in periodic dues and/or initiation fees constitute a permissible ground for discharge under any lawful union-security agree- ment. We are, of course, not here examining into the question of whether there was a material misrepre- sentation which is asserted to have justified the invocation of our Hollywood Ceramics 2 rule, pur- suant to which we will, in proper cases, set aside an election because voters have, at the last minute, been 2 Hollywood Ceramics Company, Inc, 140 NLRB 221. O'NEIL MOVING & STORAGE, INC. seriously misled by last-minute misstatements by a party. Such misrepresentations may often not consti- tute unlawful interference under Section 8(a)(1) but nevertheless be deemed to have had a sufficient effect on conditions surrounding an election to persuade us that we can best effectuate our election policies by conducting a new election under more healthy conditions. Nevertheless we note that, even if we were considering the instant misstatement in such a context, there was ample opportunity for the Union to have called the employees' attention to the erroneous statement of the law well before the time when they cast their ballots in the election we conducted some 3 weeks after the allegedly offending letter had been distributed. That factor would have taken the case out of the ambit even of our Hollywood Ceramics doctrine, which is concerned only with last-minute misrepresentations. But to return to the precise issue presented in this unfair labor practice proceeding, we do not believe that a misstatement of the legal consequences of a possible contract clause, which the contending Union might demand but to which Respondent was, in the same breath, expressing its opposition and indicating its unwillingness to agree to, is the kind of threat of adverse employer action which constitutes the gravamen of 8(a)(1) violations. The remoteness of the predicted adverse effect on the employee is considerable. It requires the employ- ee to assume that (1) the Union would indeed insist upon a union-shop clause; (2) the employer, despite his announced opposition to such a clause, would nonetheless agree to incorporate it in an agreement; (3) the employee would refuse to pay an assessment or a fine imposed upon him by the Union at some future date; (4) the Union would then unlawfully demand his discharge; and (5) the employer would, under a mistaken view of the law, discharge him. We think it would be stretching unduly the fabric of our law to hold that such a set of remote predictions, however mistaken we as lawyers might think them to be, constitute so serious an invasion of employees' freedom as to be a violation of Federal law and require the exercise of this Board's remedial authority. With regard to the remaining allegations, the General Counsel relies primarily on the Board's decision in Tommy's Spanish Foods, inc.3 In that case, the Board found a violation of the Act by virtue of the employer's absolute rejection of any bargaining on its part with regard to a union-security clause in any contract that might be negotiated. In the instant case, a careful reading of the letter shows that Respondent was merely explaining to its employees 3 187 NLRB 235, enfd. in pertinent part 463 F.2d 116 (C.A. 9, 1972). 4 Adco Advertising, Inc, d'h/a Pennysaver and Atnpress Incorporated, 206 715 its position on the issues and what it predicted would be the Union's position with regard to its area contract with other moving and storage companies. Respondent's letter does not contain an adamant refusal to even consider a union shop as was the case in Tommy's Spanish Foods, supra. To the contrary, Respondent pointed out, albeit erroneously, what could happen to its employees if it did in fact accept a contract with a union-security clause in it. In our opinion, Respondent's letter of January 30, 1973, does not create an atmosphere of futility. In view of this conclusion, we have no basis for stating that any ensuing strike that might occur would have been caused by Respondent's unfair labor practices. In addition, it must be noted that Respondent did not disavow any intention to bargain with the Union, but, rather, predicted that the Union would not recognize various employment factors peculiar to Respondent's operations insisting instead on Res- pondent's unqualified acceptance of the Union's area contract with the possibility of a strike if the Employer did not accept in toto the area contract. In these circumstances, we find that the letter did not contain an anticipatory intent to refuse to bargain and that it did not contain a threat of loss of employment.4 Accordingly, we shall dismiss the complaint. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. Respondent has not engaged in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint be, and it hereby is, dismissed in its entirety. MEMBERS FANNING and JENKINS, dissenting: An employer's misstatement of the law during an election campaign, which erroneously threatens the employees with possible dire economic consequences (loss of employment if union assessments and fines were not paid) if the union won the election, violates Section 8(a)(1) of the Act. We cannot agree with our colleagues' conclusion that it does not. The majority has, we think, approached this question from the wrong direction. The thrust of NLRB No. 58 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their rationale is that (1) the impact, if any, of the misstatement on the employees is remote; and (2) it was uttered at a time during the course of the campaign when the Union could have issued a communication correcting the employer's misstate- ment. Neither of these factors, in our opinion, is relevant to the issue in this case. Many if not all employer statements in an election campaign suggesting dire consequences to employees if they select a union to represent them necessarily have a "remoteness of impact" quality about them. No "dire consequences," inevitably predicted by employers, can or will come to pass until the union first wins the election, and yet, notwithstanding "remoteness of impact," we have found threatening statements by employers violative of Section 8(a)(1) that predict that (1) if the union is certified it will make excessive demands, (2) which the employer will not accept, (3) leading to a strike on the part of the employees, and (4) which will result in their being permanently replaced thus losing their jobs 5 Clearly, as in the instant case, the ultimate "dire conse- quence" is remote in point of time, and may never come to pass, but it is not the "remoteness" of the consequence that is involved; rather, it is the present or immediate impact on the employees that is critical. Statements made during the election cam- paign are made for immediate consideration by the employee and are made for the purpose of securing immediate employee reaction: a "no" vote against the union. Here the employees were told shortly before the election that if the Union won the election, employees could (and presumably would) be fired if they failed to pay union levied assessments and fines. This clearly misstates the law as to union- security agreements. The majority errs when it attempts to defer the "impact" of the misstatement to some future date "if" and "when" the union wins the election and would demand and receive a union-security clause, fine or assess an employee, demand the discharge of that employee if he refuses to pay the fine or assessment, and secure the employee's discharge by the employer. Insofar as "impact" is concerned, there is only one "if" involved according to the Employer's misstatement, and that is, "if" the Union wins the election, an employee immediately becomes and remains subject to the potential threat of losing his job if at some future time he refuses or cannot pay union levied assessments or fines. The majority's finding of "remoteness of impact" overlooks one very simple fact of life. If the Respondent thought as the majority does that the impact was too remote in point of time to have any effect on the way the employees voted, it would not have made the statement. Just the opposite is true, of course. The January 30 letter was a carefully worded document which covered many items of presumed interest to the employees. Each item was framed in such a way as to instill in the minds of the employees that voting for the Union could result in severe adverse consequences to the employee and it is clear that each item included in the letter was placed therein in order to affect the way the employees voted. In addition, we believe that to hold, as the majority now appears to be doing, that a coercive or threatening statement designed to instill in the minds of the employees potential dire economic conse- quences because of their unionization will be measured by the remoteness in time as to when the impact on the employees may be expected, will open the door to extensive abuses. Under such a ruling an employer need only couch his threat in terms (albeit erroneous) of what the law allows him to do and to then place the ultimate impact of the threat in the future. Another factor which the majority overlooks is the necessity for a remedial order, in a case like this to eliminate the impact of Respondent's misstatement of the law. A union-issued statement correctly stating the law would not eliminate the impact. At best the employees would then have before them two con- flicting statements as to what the law does or does not allow and would have to risk judging correctly between them, a task they are not equipped to perform. We should not subject the employees' Section 7 rights to the vagaries of such conflicting opinions, particularly when the misstatement in- volves the very Act we are charged with enforcing. In our opinion, only a notice to employees posted by the Respondent setting forth that it misstated the law and what the correct law is will eliminate any effects the misstatement may have created in the minds of the employees, effects which by their very nature are lingering and not subject to dissipation through the passage of time alone. In short, it is the misstatement of the law, the employee's immediate consideration of the potential impact on himself, and his reaction at the polls that are critical. As the Supreme Court noted, it is the Board's duty to focus on the question "what did the speaker intend and the listener understand."6 Because the Employer's misstatement of the law in this particular case carries with it a threat to the employees' future job security in the event they elect to vote for the Union, we would find that the Employer's misstatement necessarily tends to inter- 5 Glacier Packing Co, Inc., 204 NLRB No. 103 6 N L R B v. Gissel Packing Co, Inc., 395 U S. 575, 619 (1969) O'NEIL MOVING & STORAGE, INC. 717 fere with the employees' Section 7 rights in violation of Section 8(a)(1) of the Act.7 As to the majority's reference to Hollywood Ceramics, it would appear that the majority is attempting to equate the facts of this case with a principle applicable only to the question of whether we will or will not set aside an election because of false campaign propaganda. The Hollywood Ceramics principle is bottomed on the theory that false campaign statements will notjustify the setting aside of an election if the other party had an adequate opportunity, timewise, to respond or answer the false statements . The principle can have no application to misstatements of law which, unlike campaign propa- ganda, cannot be adequately evaluated by employees even if they also have a correct statement before them from the other party. 7 Dayton Food Fair Stores, Inc. v. N LR B., 399 F.2d 153 (C.A 6, 1968).