J. R. Wood, Inc.

J. R. WOOD 593 J. R. Wood, Inc. and Food Processing and Allied Workers Teamsters Local Union No. 748, I.B.T.C.W.H.A., Petitioner, and International Union of Operating Engineers, Stationary Local 39, AFL-CIO, Petitioner. Cases 20-RC-12417 and 20-RC-12430 March 8, 1977 DECISION ON REVIEW AND CERTIFICATION OF RESULTS BY MEMBERS FANNING, PENELLO, AND WALTHER On February 20, 1976, the Acting Regional Director for Region 20 issued a Supplemental Decision and Direction of Second Election in Case 20-RC-124171 in which he sustained Petitioner's 2 Objections 3 and 11 to conduct affecting the results of the election, directed that a second election be conducted, and approved the Petitioner's request to withdraw its other 11 objections. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed a timely request for review contending, inter alia, that the Acting Regional Director departed from Board precedent in sustaining the objections. By telegraphic order dated May 27, 1976, the Board granted the Employer's request for review and also remanded the case for a hearing to resolve issues of fact relating to certain other alleged objectionable conduct by the Employer upon which the Acting Regional Director did not rule .3 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the entire record in this case with respect to the issues under review, including the Employer's brief, and makes the following findings: As indicated, we remanded for hearing because of conflicting evidence with respect to the Petitioner's allegation, in Objection 3, that Plant Manager Bungart advised employees, in speeches on Septem- ber 23 prior to the September 26, 1975, election, that the Employer "would never negotiate or grant a wage increase" if the Union won. Thereafter, on August 3, 1976, the Hearing Officer issued a report and i The tally of ballots for the election showed that, of approximately 435 eligible voters, 302 cast ballots, of which 1 10 were for, and 174 against, the Petitioner in Case 20-RC-12417. There were also 18 challenged ballots which were not sufficient in number to affect the results of the election. 2 All references to the Petitioner refer to Food Processing and Allied Workers, Teamsters Local Union No. 748, IBTCWHA. Prior to the election, the International Union of Operating Engineers, Stationary Local 39, AFL- 228 NLRB No. 65 recommendation finding, based on the credited evidence, that Plant Manager Bungart did not make the alleged threats, but in fact acknowledged to employees that the Employer was aware of its bargaining obligation and would negotiate over wages in the event the Union won. In the absence of exceptions thereto, we adopt pro forma the Hearing Officer's findings and, accordingly, overrule that portion of Objection 3 relating to the alleged refusal- to-bargain threat. As to the effect of the Employer's campaign literature upon the election, Objections 3 and 11, the Acting Regional Director found that the Employer's letters of September 2 and 22, 1975, pertinent portions of which are attached hereto as an appen- dix, exceeded the bounds of permissible campaign propaganda, and warranted sustaining the objections and setting the election aside. Specifically, the Acting Regional Director found that repeated and emphatic letter references indicating that the Company is already giving "the best wages and benefits we can afford," and that management would not yield to union "pressure tactics" to obtain more benefits, together with a recital of the severe economic hardships, associated with strikes, in store for employees in the event of a failure to reach agreement, conveyed to employees that selection of the Union would be futile because union bargaining attempts would inevitably result in strikes and would be destructive to their livelihood. Unlike the Acting Regional Director, we do not infer from the Employer's remarks, or the context within which they were communicated, that employees had reason to be fearful of, or feel futility in, voting for the Petitioner. Firstly, we note that the September 2 and 22 letters formed only a part of the Employer's election campaign which addressed many and varied issues in speeches and in a total of five letters, and that the Union responded to those issues in its six similarly partisan handbills. We also note that the statements in question are nowhere alleged to be untrue or misrepresentative; rather, the objections allege only that they conveyed to employees that the Employer would refuse to bargain and that they would lose their jobs if the Union won the election. However, a careful reading of the letters reveals that the Employer merely stated that it had no intention of yielding to pressure, such as strikes, by the Union for unreasonable or otherwise unaccept- CIO, advised the Regional Office that it did not wish to participate in the election. Local 39, therefore, did not appear on the ballot. 3 Although the Acting Regional Director found that conflicting evidence uncovered upon investigation of Employer's alleged objectionable speeches raises substantial and material issues of fact which would warrant a hearing, he found it unnecessary to do so because of having sustained Objections 3 and 11 solely on written campaign literature. 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD able demands; it did not say, or imply, that the Union would have to strike in order to gain reasonable demands. Further, the Employer did not announce anywhere in its campaign literature that it would not negotiate with the Union; rather, as found by the Hearing Officer, Plant Manager Bungart affirmed the Employer's bargaining obligation in preelection meetings with employees. Moreover, the Board has approved as permissible campaign propa- ganda, similar, if not identical, language relating to an employer's description of existing benefits as the maximum affordable, unwillingness to yield to union pressure for more benefits, and discussion of the economic realities of strikes as a possible conse- quence of a bargaining impasse.4 In view of the foregoing, we shall reverse the Acting Regional Director and overrule Objections 3 and 11. Accordingly, as all of the Petitioner's objections have been overruled,5 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 Food Processing and Allied Workers, Teamsters Local Union No. 748, I.B.T.C.W.H.A., and that said labor organization is not the exclusive representative of all the employees, in the unit in Case 20-RC-12417, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. MEMBER FANNING, dissenting: Contrary to my colleagues, I would set the election aside. The Employer's letter of September 22, 1975, read: YOU COULD BE LOCKED OUT Did you know that if this Union is unable to reach agreement with us, we are entitled by law to lock out employees. Have the Teamsters been honest enough to tell you about this? Did you know that such a lock-out could permanently cost you your job... . The Employer's message to his employees here is clear: if the Teamsters makes demands that we do not like or refuses to accede to our demands, we will not only lock you out but also permanently replace you. The coercive impact of this statement is indisputable; the policy announced therein would effectively destroy the Section 7 right to bargain collectively.6 This threat alone provides grounds for setting the election aside; my colleagues, however, ignore it. In remanding this case, we raised the lockout issue, sua sponte, and asked the parties to brief it. In doing so, we took note of evidence, appearing in the exhibits to the Regional Director's supplemental decision, that had not been raised as a part of the Petitioner's objections but provided prima facie grounds for setting the election aside. We have long held that a Regional Director must consider evidence discovered during a postelection investigation as relevant to the conduct of said election even though not specifically alleged as objectionable.? Here, therefore, we only did what the Regional Director failed to do. To satisfy due process, however, we gave the Employer an opportunity to brief the lockout issue in our order which remanded this case for a hearing on certain other conduct. As the issue is now properly before us, I see no reason not to reach it. In avoiding this issue, my colleagues forget that the primary purpose of these proceedings is to protect employee Section 7 rights. 4 See Belknap Hardware and Manufacturing Co, 157 NLRB 1393 (1966); Bostitch Division of Textron, Inc., 176 NLRB 377 (1%9); Allied/Egry Business Systems Inc., 169 NLRB 514 (1968). 5 In its May 27, 1976, telegraphic order the Board sua sponte invited the parties to comment on the Employer's reference, in campaign literature dated September 22, 1975, to locking out (and permanently replacing) employees as a possible basis for setting the election aside ; the Employer alone submitted a brief. Because of the Petitioner's failure on review to express any interest in participating in another election, or even briefing the issue as requested, Member Penello and Member Walther have not considered the merits of the lockout issue posed by the Board. Rather, in view of these circumstances and the Board's decision herein that none of the Petitioner's objections warrant setting the election aside , they would not order another election in this case. 8 The use of temporary replacements during a lockout imposed to support an employer's bargaining position violates Sec. 8(axl) and (3). Inland Trucking Co. and Wesley Medahn Co-Partners d/b/a Oshkosh Ready Mix Co, 179 NLRB 350 (1969), enfd. 440 F.2d 562 (C.A. 7, 1971); Ottawa Silica Company, 197 NLRB 449 (1972) (Member Jenkins and my dissenting opinion); Inter Collegiate Press, Graphic Arts Division, 199 NLRB 177 (1972) (Member Jenkins and my dissenting opinion). A fortiori, the use of permanent replacements during a bargaining lockout also violates Sec. 8(a)(l) and (3). See Johns-Manville Products Corporation, 223 NLRB 1317 (1976). r E.g., Thomas Products Co., Division of Thomas Industries, Inc., 169 NLRB 706 (1%8). APPENDIX Pertinent portions from Employer's letters of Sep- tember 2 and 22, 1975. September 2 letter: That is why, despite our size, we have always done all we could to make you happy, and to make this a place where you would be proud to work. We, in turn, are very proud of the many outstanding benefits we have been able to provide our employees, and we are equally proud of providing these benefits without the intervention of an outside union. Remem- ber, the benefits and working conditions you have J. R. WOOD 595 received here have all been free. By "free" I mean that you have never paid a union initiation fee to receive them, nor have you ever been forced to pay union dues, fees or assessments. Most importantly, you have never had to miss work because of strikes, picketing or boycotting to achieve what you now have at Woods. done before. It is illegal for the Union or anybody else to interfere with your right to vote against this Union. If you make the mistake of letting this outside Union win the election, as I explained before, there will be no automatic increases in wages or in overtime or in anything else, regardless of what the Union may have told you. Instead, the Teamsters The benefits described in this letter have been provided to all of us, without any pressure whatsoever from any outside union. There has been no union standing between us, nor have you been required to pay union dues, fines, assessments, or be subject to any union discipline to receive these benefits. Most importantly, you did not have to strike or picket or lose paychecks to get these benefits. They have been provided voluntarily because they were the best we could provide at the time, and that is exactly what this Company always intends to do. No union on earth can ever get us to provide more benefits than we can afford to pay. I know that things are not perfect here at Woods. In the past, improvement has come about largely because of your suggestions. Let's keep it that way. Because of this election, Federal law prohibits me from telling you about any of our future plans regarding your wages, hours and working conditions. In this regard, our hands are thus temporarily tied. All I can say for now is that this election means a lot to all of us. When you hear the union make its typical promises (and that's all they are - mere promises), I hope you will keep in mind the things this Company has done voluntarily for you, and the fact that these things have been done without your paying union dues, fees, fines or assessments what- soever. It has always been our policy to provide you with the best benefits we can, and no union on earth can make us do more than that. September 22 letter: Dear Employee: The election that we've all been talking and thinking so much about will be held right here in our plant on Friday, September 26, from 10:00 a.m. to 12:00 noon, and again from 5:00 p.m. to 7:00 p.m. I urge everyone to vote. The election will truly be a secret ballot election conducted by the United States Government. The Union will not conduct the election. The Union will not know how you vote. Other employees will not know how you vote. It doesn't matter whether or not you signed any kind of Union cards or other Union papers because Federal law protects your right to vote against the Union no matter what you may have said, signed, or will nave to sit down and bargain with us about everything. So everything you now have can be put on the bargaining table and you could end up with more benefits, the same benefits, or fewer benefits than you now have. We may be able to reach agreement or we may come to a deadlock and have no contract, depending upon what happens in negotiations. We have no duty to agree on a contract and neither does the Union. If we do not reach agreement, and if there is a deadlock in negotiations, there is one way that the Teamsters could try to force us to agree to its demands, even if we consider those demands unreasonable or which we otherwise cannot see our way clear to accept. What this Union can do is pullyou out on strike! How many of you have ever been out of work on strike? I think most of you know me well enough to know that I mean it when I say that we have no intention of yielding to pressure tactics of that kind - ever! I think you also know that we've always voluntarily tried to provide you with the best wages and benefits we can afford. YOU COULD BE LOCKED OUT Did you know that if this Union is unable to reach agreement with us, we are entitled by law to lock out employees. Have the Teamsters been honest enough to tell you about this? Did you know that such a lock-out could permanently cost you your job?' We would sure hate to ever have to make that decision, but anything is possible when a union is fighting an employer. I hope, of course, that you will vote against the Union so that it will never be necessary for you or your families ever to consider the possibility of a strike or lock-out. But in deciding whether or not you want to support this Union, you should realize that strikes, picketing and trouble are facts of life whenever a union is involved. Where unions are, that's when strikes occur. Some union strikes have, of course, been longer and rougher than others. During Teamster Union strikes in Northern California, it has often been necessary to get temporary restraining orders or court injunctions against Teamsters' interference with employees, customers and suppliers, threats of violence, actual violence, and illegal picketing, in order to maintain law and order. I hope we never 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have anything like it here. I don't say for sure that the Teamsters would definitely strike at Wood's, or that picketing and violence necessarily are going to happen here, but I do know that it has happened before with many unions and I do know that it could happen here. In recent months the newspapers have been full of news about various strikes, picketing and Teamster violence and trouble. You may have read the article about Local 748's strike against Carnation Company in Modesto earlier this year, and the violence, vandalism, jailed pickets, and court orders issued against Local 748 because of that strike. I would hate to see anything like that happen to you and me. Don't let it happen at Wood's - vote "NO." If the Teamsters win, and in order to try to deliver on its promises you are called out on strike, I want you to understand what it really can mean to you and your family: