Fabriko, Inc.

FABRIKO, INCORPORATED Fabriko, Incorporated and General Teamsters, Ware- house and Dairy . Employees Local 126, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca, Petitioner. Case 30-RC-2694 December 17, 1976 DECISION AND DIRECTION OF SECOND ELECTION BY MEMBERS FANNING, PENELLO, AND WALTHER Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the National Labor Relations-Act, as'amended, a three- member panel has considered the objections to an election held December 17, 1975, and the Hearing Officer's report recommending disposition,of same.l The Board has reviewed the record in light of the exceptions and brief, and hereby adopts the Hearing Officer's findings 2 and recommendations. [Direction - of Second, Election omitted from publication.]3 MEMBER WALTHER, dissenting: In an election conducted on December 17, 1975, with two unions on the ballot Petitioner lost to the Intervenor by a vote of 21 to 36. Petitioner filed 12 objections to the election. After a hearing on the objections, the Hearing Officer recommended that five of the objections be overruled (1, 5, 6, 7, and 12), and six sustained (3, 4, 8, 9, -10, and 11).4 He also recommended that the election be set aside and a new election directed. The Employer filed exceptions to the Hearing Officer's report. The Intervenor has been the collective-bargaining representative of the Employer's production and maintenance employees since 1971. On November 3, 1975, Petitioner filed a petition seeking to represent 1 The election was conducted pursuant to a Stipulation for Certification Upon Consent Election. Petitioner received 21 votes, Intervenor (Fabnko Employees Association) 36 votes, with 4 votes cast for neither organization. 2 The Heanng Officer found that certain statements made by the Employer exceeded the limits of permissibility when viewed in the context of the Employer's entire campaign Our dissenting colleague disagrees with this conclusion and quotes portions of speeches made by the - Employer's president in an attempt to demonstrate the permissibility of the Employer's campaign . In so doing, he ignores some of the statements relied on by the Heanng Officer and thus overlooks the context in which the statements were made. For example, he omits any mention of Employer's statements as to the likelihood of Teamster strikes and the probability of their occurrence despite the opposition of a .majority of the unit employees, that the door would be thrown wide open on wages and benefits if the Teamsters were elected, and that an agreement would be reached with the Employees Association without a strike. The Employer's statements, in toto, portray negotiations with the Employees Association as quickly ending in a harmomous agreement, while negotiations with the Teamsters would be protracted, potentially strike and lawsuit ridden, and possibly ending in lower wages and benefits for the employees The issue is whether the Employer's statements, considered in their 227 NLRB No. 45 387 the aforesaid -employees. Thereafter the parties en- tered into a. Stipulation for Certification Upon Consent Election calling for an election to be held on December 17. Both Petitioner and the Employer waged vigorous preelection campaigns : Petitioner in the form of letterwriting and the Employer by letters and by speeches to assemblies of employees. The Intervenor did not distribute any campaign material. It is undisputed that in its propaganda the Employ- er opposed the selection of Petitioner as bargaining representative and urged employees to vote for the Intervenor. However, as the Hearing Officer recog- nized, an employer need not remain neutral in a campaign between rival labor organizations, but may express a preference for one of the rivals. Absent threats or promises of benefits accompanying such expression of preference, the employer's conduct will not justify setting aside an election.5 The Hearing Officer concluded that in this case certain statements by the Employer made during the, campaign implied that the Employer would take a tougher bargaining stance if Petitioner were selected , as bargaining representative- than if the Intervenor, were,selected. On this ground, the Hearing Officer recommended setting aside the election. - The relevant objections filed by Petitioner are as follows: 3. On or about December 12, 1975, the Employer held meetings with its employees at which employees were told, encouraged and induced to vote for the Fabriko Employees Association. 4. On or about December 16, 1975, the Employer held meetings with its employees at which employees were told,- encouraged and induced, to vote for the Fabriko Employees Association. 8. On or about November 25, 1975, the Employer sent a letter to each,employee asking totality, are innocent predictions of circumstances outside ' Employer's control, or threats of Employer reprisal. Gissel Packing Co, Inc, 395 U.S. 575, 618 (1969). In our opinion, the Heanng Officer was correct in concluding that the total effect of Employer's campaign statements including the rampant vilification of the Petitioner and constant praise of the Intervenor had the effect of interfering with the employees ' free choice. The Employer's statements, we believe, constitute an implied but nonetheless clear promise that the Employer would bargain in a more favorable and prompt manner with the Intervenor or a threat that not only negotiations would be protracted but that it would take a much harder bargaining approach with the Petitioner which would reasonably instill' in the employees a threat of futility in voting for the Petitioner. In short, the statements concerning matters precisely within the Employer's control reflect an intention to bargain in a disparate manner with the two organizations. Duvernoy & Sons, Inc, 177 NLRB 538 (1969); Iowa Pork Company, Inc, 148 NLRB 1242 (1964). 3 [Excelsior footnote omitted from publication.] 4 Objection 2 was withdrawn by Petitioner at the hearing. 5 Alley Construction Company, Inc., 210 NLRB 999 (1974); Rold Gold of California, Incorporate4 123 NLRB285 (1959); Stewart-Warner Corporation, 102 NLRB 1153 (1953). 388 DECISIONS OF " NATIONAL LABOR RELATIONS BOARD each not to vote for Petitioner but rather ". .: I ask that you vote in favor of the Fabriko_Employ- ees Association." 9.--' On or about November 7, 1975, the Em- ployer sent a letter to each employee condemning Petitioner only, supporting Fabriko Employees Association. 10. On or about December 1, 1975, the Employer sent a letter to each employee con- demning Petitioner only, supporting Fabriko Employees Association. 11. On or about December 4, 1975, the Employer sent a letter to each employee con- demning Petitioner only, supporting Fabriko Employees Association. I have quoted Petitioner's objections at length because they indicate rather clearly that the basis for Petitioner's objections to the election was only the separate expression of preference for Intervenor and hostility manifested to Petitioner. The Hearing Offi- cer did not consider, each of the above objections separately because "no single one of [President] Chelstrom's "remarks would constitute an objection- able statement warranting the setting aside' of the election..." -However, he proceeded to find that various statements made by Chelstrom in letters and speeches, although standing alone not objectionable, when considered together had the effect of interfering with employee free choice. In reaching this conclusion, the Hearing Officer put together excerpts from the various letters and speech- es of Chelstrom over a 6-week period to create a construct to which no employee gave testimony. The construct, in short, is purely a figment of the Hearing Officer's imagination. Moreover, in putting together the various excerpts, the Hearing Officer omitted in some cases relevant parts of Chelstrom's remarks, and ignored their context and background. For example, the Hearing Officer considered objection- able Chelstrom's statement that if Petitioner won the election the Employer would have its lawyer do the bargaining, the same layer who had negotiated with Petitioner a 50-cent reduction wage at another company which thereafter went out of business. In a letter to employees dated December 8, Peti- tioner made pejorative references to the Employer's attorney "to whom he" [Employer] is paying a small fortune to keep the Teamsters from' being your representative .", The letter also said that the Employ- er's attorney had negotiated several labor agreements with Petitioner. In another letter dated December 12 the Petitioner stated: The only games Local 126 [Teamsters ] plays is the game of putting up with attorneys and employers that will spend a fortune - in money to keep a Union out of their company so that they will _ not have to pay their employees a fair wage. In a speech to the employees on December 16, in obvious answer to the statements in Petitioner's letters of December 8 and 12, President Chelstrom said: We did hire a lawyer. We felt it necessary to hire a lawyer because we're not playing kids' games. The Teamster's Union-the Teamsters are famous- rather they're not famous, but they do have law suits. And we're not interested in getting involved in anything like this without good legal competent help. Let's face it. If the Teamster's Union wins this election, we're going to have our lawyer negotiate for us. Our lawyer has negotiated with Teamster Local 126 on various other company situations. In one particular case he negotiated a 50-cent deduction in the contract simply because the Teamster's Union ripped off the company the year before. It wasn't long after that the company went out of business. We aren't paying a small fortune for our attorney either. We're paying what is reasonable and what is to be expected under the situation. [Emphasis supplied.] In quoting the "Let's face it" portion of Chelstrom's speech, the Hearing Officer omitted the underlined part of the statement and he also omitted to mention that the excerpt was an obvious answer to the assertions contained in Petitioner's earlier propagan- da letters to employees . I can find nothing coercive in this statement by Chelstrom. It' is not unlawful or coercive to say that in the event of a union victory the employer will have a lawyer conduct its negotiations. Obviously, it would be more difficult to conduct negotiations with a powerful, rich, and effective organization like the Teamsters which openly pro- claimed to employees that it was the "largest indepen- dent Union in the world" and that it had "well- trained Business Agents to protect you and negotiate a fair Labor Agreement of your choice," than with an independent union like the Intervenor.'The reference to the Employer's attorney having negotiated a 50- cent deduction with Petitioner for another company is clearly a rejoinder, albeit ironic, to_ Petitioner's statement that it had negotiated bargaining contracts with the Employer's attorney. It is not claimed that the statement was false, and of course if the attorney had negotiated the decrease for his employer client, Petitioner had accepted the decrease on behalf of FABRIKO, INCORPORATED 389 employees. The statement might tend to deflate some of Petitioner's claims, but it was not on that count coercive. - In a speech to employees on December 12, Chel- strom said, after outlining the voting procedure: What happens after the vote? The ballots may be counted by the observers -and-by the NLRB. And they may be assisted by the observers. If the vote is 51 percent in favor of the Teamsters Union Local 126 Fabriko will be required to bargain with them as your representative. How long these negotiations will take, I cannot say. It could take a day, could take a month, could take -a year, or more: I know of one case where the Retail Clerks Union in Kenosha and Thrifty Drugs took 3 years to negotiate a contract. And it wasn't settled then. They took it to the National Labor Relations Board, and a period of time went by after that. During all that time wage increases were not given. If the vote is 51 percent in favor of the Fabriko Employees Association there will be a 7 day waiting period for the Teamsters Union to file objections as to the conduct of the election. During that time no negotiations will be taking place. If, after that time, no objections are filed, I would assume that we will look to the Association for their wishes on how they would like to proceed. Should objections be filed, negotiations will not be allowed until the NLRB makes a ruling on the charges ....[Emphasis supplied.] If 51 percent of the eligible employees vote Neither, the Teamsters Union or the Fabriko Employees Association, we will again have to wait 7 days for any objections to be filed by the unions. Again, if unfair labor practices, or I should say unfair objections are filed, negotiations of any kind will not be allowed until the NLRB makes their ruling. In a talk to another group of employees on the same day, Chelstrom was asked what would happen if the employees voted for no union. He replied: Well, I assume that what we would do is we would have to sit down and have a common goal, a starting place. That isn't to mean that everything is lost, but it doesn't mean everything is to gain either. But because I can't commit right now. I can't tell you yes, everything is going to be the 6 The Hearing Officer cited Iowa Pork Company, Inc., 148 NLRB 1242, 1256 (1964), in support of his conclusion Iowa Park is apposite. In that case two unions participated in an election to determine the bargaining represen- same or no, everything is going to be starting from scratch. The rules and regulations of this time period that we're in right now are very very explicit on what I can promise and what I can't promise. For that reason, as I did in 1970, I have made no promises as to what the company will do in- anything. Other than the fact that if the Employ- ees Association is voted-in that we will sit down with the Association members-and work out something to our benefit. [Emphasis supplied.] If the Union comes in,- as I said, we're going to have to sit down and negotiate with them. How long that will take I don't know. On December 16, Chelstrom again spoke to em- ployees and attempted to answer various charges made by Petitioner during the preceding week. In the course of his talk he said We've also been charged that we said we could not afford .... a pay increase. Prior to the Teamster's petition for the election we were negotiating and had offered the employees a 25 cent an hour wage increase to the hourly employ- ees, a piece work base of two dollars and thirty five cents for the piece rate operators, plus a day rate of two dollars and seventy five cents for those people averaging a daily piece rate of two seventy five and above, and a two dollar and thirty cents and hour piece rate-day rate for those employees averaging less than two seventy five. We would continue to pay the forty eight dollars medical insurance benefits with the employees paying any increase. There were two additional added proposals onto that for your choice. We asked for a vote and the vote never came off. Because the petition by the union for the election did not allow us to. The Federal Government, the NLRB said no negotiations can take place during this time. We had fully intended that if the Employees Association as body rejected any proposal that we offered to go back and negotiate further. [Emphasis supplied.] By stringing together the italicized portions of the above quotations, the Hearing Officer concluded that the Employer was threatening to take a much harder arm's length approach to bargaining with Petitioner than with the Intervenor and this threat of disparate bargaining justified setting aside the election results . 6 tative Neither union had ever previously represented the employees. During the preelection period the employer engaged in unlawful conduct-interro- gation, threats, and promises of benefits-aimed at discouraging employees (Continued) 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Hearing Officer's evaluation of Chelstrom's statements is unrealistic. The Intervenor at the time of the statements had been for.5 years the collective- bargaining representative of the employees involved. Just prior to the filing of the petition, the Employer and the Intervenor had all but reached agreement on terms of a new collective-bargaining contract. On the other hand, Petitioner had never represented the employees and its propaganda emphasized its tough- ness and the numerous demands for, additional benefits for employees. It does not take great exper- tise in labor relations- to appreciate that collective bargaining with a new union for an initial contract is likely to be more difficult and protracted than collective bargaining with an incumbent union which has already negotiated several contracts with the employer. Employees can understand this as well as lawyers. In my opinion, all that Chelstrom was telling the employees was that negotiations with the Interve- to vote for one of the two competing unions. In this context the Trial Examiner (now Administrative Lacy Judge) found, and the Board adopted this finding, that the respondent employer's statement to acaptive audience of its employees that if the independent union won the election it would secure a good contract right away, whereas if the affiliated union won the nor would be easier and swifter than negotiations with Petitioner. This was a reasonable 'prediction based on experience; it was not a threat that the Employer would bargain in a disparate manner. Except for the alleged threat to bargain in a disparate manner, which as shown in the outline above was not specifically alleged as an objection to the election, the Hearing Officer recommended overruling all the other objections to the election. As I would not find an objectionable threat of disparate bargaining, I would overrule Petitioner's objections in their entirety and certify the results of the election. The decision of the majority is, in my opinion, another example of the failure of this great Agency, the National Labor Relations Board, to recognize that employees are not children and are entitled to a proper expression of facts-, and opinion from both sides in order to vote intelligently and informed in Board-conducted elections. Accordingly, I dissent. employer would negotiate at arm's length, was a threat to bargain in a disparate manner and justified setting aside the election . The facts in the present case are entirely different.