Pacific Telephone Company

PACIFIC TELEPHONE COMPANY 449 Pacific Telephone Company and Communications Workers of America, AFL-CIO, Petitioner. Case 20-RC-15087 June 9, 1981 DECISION AND DIRECTION OF SECOND ELECTION The National Labor Relations Board has consid- ered objections to an election held on June 20, 1980,1 and the Regional Director's report recom- mending disposition of same. The Board has re- viewed the record in light of the exceptions, and hereby adopts the Regional Director's findings and recommendations. 2 As found by the Regional Director, Petitioner's Objection 1 alleges that on June 16, 1980, an agent of the Employer made material misrepresentations of fact and law to the employees which affected the results of the election. On that date the Em- ployer's manager distributed a letter to unit em- ployees which reads, in pertinent part, as follows: Between now and June 20, you will have to decide for yourself whether you will be better off with or without a union. This is an impor- tant decision and I strongly encourage you to give it careful consideration. The first question you must ask yourself is, "Do I really need a union?" Personally, I be- lieve the answer is "No." The main function of a union is to bargain with the Company to improve wages, hours and working conditions. The fact of the matter is, however, that the wages, hours and benefits you receive today are equal to those provided to Pacific Company Business Service Centers employees represented by a union. The fact that your present wages, hours and benefits are equal to those of union represent- ed employees is the result of the Company's long standing policy to provide similar wages and working conditions to all employees re- gardless of whether employees are union rep- resented or not. Thus, I believe you already receive in wages and benefits all that you could reasonably expect a union to obtain for you. And you re- ceive equal wages and benefits without having The election was conducted pursuant to a Stipulation for Certifica- tion Upon Consent Election The tally was 10 votes for Petitioner. 7 for the intervenor (Telecommunications International Union). and 25 against the participating labor organizations; there was I challenged ballot which was not sufficient to affect the results of the election. 2 In the absence of exceptions, we adopt, pro forma, the Regional Di- rector's recommendation that the Petitioner's Objections 2, 3, 4, 5. and 6 be overruled. 256 NLRB No. 70 to pay union dues or being subject to union bylaws or regulations. In finding that the Employer's statements in the above letter were objectionable, the Regional Di- rector relied on our recent decision in American Telecommunications Corporation, Electromechanical Division, 249 NLRB 1135 (1980).3 In that case, an NLRB representation election had been held at one of the employer's facilities and organizing was un- derway at a second facility. In response to the ac- tivity at its second facility, the employer told em- ployees that they would receive any benefits se- cured by the union for employees at the unionized facility because the company made a practice of spreading benefits equally throughout all operating divisions. The employer added that the employees did not need a union because they would just pay dues and get nothing for it. The Board found these statements violative of Section 8(a)(l) of the Act, on several interrelated grounds. First, the employ- er's statement to unit employees that they would receive all the benefits of a union contract without a union constituted a promise of benefits made for the purpose of coercing employees into rejecting a union. Second, the statement indicated that union representation for unit employees would be a futil- ity and that in no event would union representation result in improvements of working conditions for unit employees. Finally, the employer made clear to employees the futility of the selection of a bar- gaining representative by also stating that with "a union you just pay dues and get nothing for it "4 The facts in the instant case are strikingly simi- lar. Thus, here, as in American Telecommunications, the Employer not only stated that the unrepresent- ed employees received benefits equal to represent- ed employees, he also stated that employees would continue to receive such benefits whether repre- sented by a union or not. This constitutes the promise of a benefit to encourage employees to reject the union and indicates to employees the fu- tility of selecting a representative. The indication of futility is highlighted by the Employer's state- ment that employees already receive in wages and benefits all they could expect a union to obtain for a The Regional Director found it unnecessary to determine whether Objection I encompassed the statements of the June 16, 1980, letter, in light of her finding that Board precedent permits an election to be set aside on the basis of objectionable conduct not specifically alleged but discovered during the course of the Regional Director's investigation of specific objections. 4 The Board also found the respondent employer's statement was con- trar) to the bargaining obligation that would ensue if the union were cer- tified at one of its plants Neither this factor, nor the fact that respondent employer's remarks concerned uniform benefits at several facilities signifi- cantly distinguish .4merican Telecommunications from the instant case PACIFIC TELEPHONE COMPANY "9 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them. It is implicit, perhaps even overt, in the em- ployer's statements that the policy of providing the same wages, with or without a union, would be continued in the event the union won the election, and the statements thus crossed to the wrong side of the line. As the Board observed in Turner Shoe Company, Inc., 249 NLRB 144, 146 (1980): Communications which hover on the edge of the permissible and the unpermissible are ob- jectionable as "[i]t is only simple justice that a person who seeks advantage from his elected use of the murky waters of double entendre should be held accountable therefor at the level of his audience rather than that of sophis- ticated tribunals, law professors, scholars of the niceties of labor law or 'grammarians."' [Georgetown Dress Corporation, 201 NLRB 102, 116 (1973)]. As the Supreme Court has noted, an employer "can easily make his views known without engaging in 'brinksmanship' when it becomes all too easy to 'overstep and tumble [over] the brink,' Wausau Steel Corp. v. N.L.R.B., 377 F.2d 369, 372 (7th Cir. 1967). At the least he can avoid coercive speech simply by avoiding conscious overstatements he has reason to believe will mislead his employees." [N.L.R.B. v. Gissel Packing Co., 395 U.S. at 620]. Further, as in America Telecommunications, the Employer herein indicated that if the employees se- lected the Union they would pay dues and receive nothing for it. Thus, for the reasons we held the re- spondent employer's conduct to be unlawful in American Telecommunications, we find the Employ- er's conduct at issue herein to be objectionable. Accordingly, we shall set aside the election, and issue the following: [Direction of Second Election and Excelsior foot- note omitted from publication.]