Big "D" Mining

522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jerry T. Driskill, Sr., an Individual Trading and Doing Business as Big "D" Mining and United Mine Workers of America, Petitioner. Case 9-RC-10898 January 22, 1976 DECISION ON REVIEW AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On July 22, 1975, the Acting Regional Director for Region 9 issued a Supplemental Decision, Order and Direction of Second Election in the above-entitled proceeding in which he sustained Petitioner's Objec- tions 1 and 2 to conduct affecting the results of the election, and directed that a second election be con- ducted.' -Thereafter, pursuant to the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed a request for review of the Acting Regional Director's Supplemental Deci- sion on the ground, inter alia, that he departed from officially reported Board precedent. The Petitioner filed an opposition to the request for review. By telegraphic order dated August 20, 1975, the National Labor Relations Board granted the request for review and stayed the election pending decision on review. Thereafter, the Employer and Petitioner filed a brief on review, and the Employer filed a re- ply brief. The Board has considered the entire record in this case with respect to the issues under review, includ- ing the briefs of the parties, and makes the following findings: Objections 1 and 2 were concerned with the effect on the election of the Employer's preelection cam- paign letters and a speech that owner Driskill deliv- ered to the assembled employees on March 12, 1975, the day before the election. The Acting Regional Di- rector, in sustaining Petitioner's Objections 1 and 2, concluded that, while the Employer's campaign let- ters and the speech considered individually "might not rise to the level of objectionable conduct," taken in their totality the letters and the speech could only instill in employees the futility of selecting the Peti- tioner as their bargaining representative, that a strike would be inevitable if the Petitioner were selected, and that such act would be detrimental to the em- 1 The tally of ballots for the election showed that of approximately 24 eligible voters 17 cast valid ballots of which 6 were for and 1 t were against the Petitioner. There were seven challenged ballots and no void ballots The Acting Regional Director sustained four challenges and made no determi- nation with respect to the remaining three challenges as they were not deter- minative. ployees. Accordingly, he found that Objections I and 2 constituted grounds to set aside the election. We have carefully considered each of the cam- paign letters and the text of the Employer's speech of March 12, 1975 , and, in agreement with the Acting Regional Director's predicate conclusion , we con- clude that standing alone neither the letters nor the statements in the speech rise to the level of objection- able conduct. However, we disagree with the Acting Regional Director's conclusion that the totaling up of several otherwise unobjectionable campaign state- ments can support the setting aside of the election here. Thus, it is clear that in each of its campaign letters the Employer has carefully couched its lan- guage in terms apparently designed to achieve maxi- mum impact on the employees while staying within the bounds of permissible campaign conduct. The cases cited by the Acting Regional Director in support of his conclusion contain facts which are dis- tinguishable from those in the instant case . In Ame- race Corporation, ESNA Division,2 we found the pre- election campaign conduct improper because the entire thrust of the campaign was directed at con- vincing the employees that a strike was inevitable in order to obtain bargaining concessions from the em- ployer and that there would be job losses due to plant closing. In Mohawk Bedding Company,3 in eval- uating the Employer's campaign , we said: He reiterated the implied theme of the prior publications that the plant would close if the Union were voted in. and in The Singer Company, Friden Division,4 the Board adopted the Administrative Law Judge's Deci- sion, wherein he found that: Both the inevitability of strikes, with the atten- dant consequences, and the spectre of plant clo- sure were the predominant and insistent themes of the speeches. Unlike the cited cases, in our opinion the Employer's statements here do not lead to a conclu- sion that the Employer's operations would close down or jobs would be lost in the event the employ- ees selected the Union as their bargaining agent. Al- though owner Driskill in his March 1 and 5 letters made references to the possibility of a strike, such references were in relation to the consequences that could result from strike actions; i .e., economic strik- ers could be replaced, and under Kentucky law eco- nomic strikers could not draw unemployment com- pensation during the term of the strike. We do not find that Driskill's references to the possibility of a 2 217 NLRB No 149 (1975). 3 204 NLRB 277 , 278 (1973) 4 199 NLRB 1195, 1214 (1972) 222 NLRB No. 81 BIG "D MINING 523 strike were such as to instill in the minds of the em- ployees a rejection of the collective-bargaining prin- ciple but rather revolved around his contention that the Union would adamantly insist on, accept nothing less than, and strike to achieve, the Employer's ac- ceptance of the Union's "National" contract. As to the Acting Regional Director's conclusion that the Employer's speech contained certain misrep- resentations of law, the record shows that Driskill in referring to the Petitioner's union-security . and checkoff clauses in its national contract commented to the effect that under the national contract employ- ees must belong to the Union and pay monthly dues, initiation fees, assessments, credit union, group auto insurance, etc., "which are deducted from their pay checks before they even get the checks, in order to keep their jobs." It is clear that the Employer's comments constitut- ed his effort to explain the union-security and check- off clauses contained in the Union's national agree- ment. Although such comments may not have described with complete accuracy the two separate contractual provisions to which the Employer was referring, and were not wholly correct as to the legal impact of a union-security clause, we note that the checkoff clause described above did provide that such items as credit union, group insurance, assess- ments, and other items were subject to the checkoff procedure. We are of the view that the Employer's reference to these two clauses was not sufficiently a departure from the truth so as to warrant setting aside- the election.5 In these circumstances, we find insufficient basis exists to warrant setting aside the election and we therefore reverse the Acting Regional Director and overrule Objections 1 and 2. Accordingly, as all of the Petitioner's objections have been overruled, and the tally of ballots shows that a majority of the valid ballots have not been cast in favor of the Petitioner, we shall certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for United,Mine Workers of America, and that said labor organization is not the exclusive representative of all the employees, in the unit herein involved, within the meaning of Sec- tion 9(a) of the National Labor Relations Act, as amended. 5 Member Penello agrees that the alleged misrepresentations do not war- rant setting the election aside, but does so for the reasons set forth in his dissenting opinions in Medical Ancillary Services, Inc, 212 NLRB 582 (1974), and Ereno Lewis, 217 NLRB No. 45 (1975). Chairman Murphy agrees with this conclusion inasmuch as the same result is reached under any view of the applicability or validity of Modme Manufacturing Company, 203 NLRB 527 (1973), and Hollywood Ceramics Company, Inc, 140 NLRB 221 (1961)