Liquid Transporters, Inc.

LIQUID TRANSPORTERS. INC. Liquid Transporters, Inc. and General Drivers, Warehousemen and Helpers Local No. 89, affili- ated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Case 9-RC- 13117 July 29, 1981 DECISION AND DIRECTION OF SECOND ELECTION Pursuant to a Decision and Direction of Elec- tions' issued by the National Labor Relations Board on August 6, 1980, elections by secret ballot were conducted on September 5 and 6, 1980, under the direction and supervision of the Regional Di- rector for Region 9, among the employees in the units described below. At the conclusion of the elections, the parties were furnished a tally of bal- lots which showed that in Unit A, of approximate- ly 99 valid ballots, 42 were cast for and 56 against the Petitioner, and there was 1 challenged ballot, an insufficient number to affect the results. In Unit B, of approximately 39 valid ballots, 24 were cast for and 7 against the Petitioner, and there were 8 challenged ballots, an insufficient number to affect the results. Thereafter, the Petitioner filed a timely objection to the election in Unit A. No objections were filed to the election in Unit B.2 After an investigation, the Regional Director issued his Report on Objection and Recommenda- tions to the Board wherein he recommended that the Petitioner's objection be overruled and that a certification of results of election be issued. There- after, the Petitioner filed exceptions and the Em- ployer filed an answering brief. The Board has considered the Regional Direc- tor's report, the Petitioner's exceptions, the Em- ployer's answering brief, and the entire record in the case, and makes the following findings: I. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization which claims to represent certain employees of the Em- ployer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The following unit, designated as Unit A in the Board's aforementioned Decision and Direction of Elections, constitutes a unit appropriate for pur- ' 250 NLRB 1421 'On Seplember 15, 1980, the Regional Director certified the Petitioner as he collecti'e-bargaining representative of the emplolees in Unit 257 NLRB No. 52 poses of collective bargaining within the meaning of Section 9(b) of the Act: Unit A: All truck drivers employed by the Employer at its Fern Valley Road terminal, Louisville, Kentucky, including owner-opera- tors and nonowner-drivers of equipment leased by the owners to the Employer; excluding all mechanics, mechanics helpers, check-out lane employees, cleaning rack employees, office clericals, dispatchers, guards and supervisors as defined in the Act. 5. The Board has considered the Regional Direc- tor's report, the Petitioner's exceptions, and the Employer's answering brief, and hereby adopts the Regional Director's findings and recommendations only to the extent consistent herewith. The Petitioner maintains that letters from the Employer to the employees dated August 20, 22, 25, and 29, 1980, contain objectionable statements that warrant setting aside the election. Contrary to the Regional Director, we find that the Employer engaged in objectionable conduct by making threats of loss of jobs, strikes, and loss of business that had a coercive impact on the employees which interfered with the results of the election. Thus, in its August 20, 1980, letter to the em- ployees, the Employer refers to predictions that new nonunion carriers "will do their utmost to get business by undercutting the union carriers' tariffs" and that "[b]ad business conditions have already done in a number of large union over-the-road car- riers." Specifically referring to a union carrier, Dealers Transport, whose work in Louisville was taken over by another carrier, the letter states that "[t]his means that all Dealer Transport's drivers are now out in the cold." The Employer adds that "Wilson Freight (one of the country's largest union truck lines) has recently gone into bankruptcy, put- ting many of its drivers completely out of work. Another big union carrier, Johnson Freight Lines, has gone out of business completely." Finally, the Petitioner objects to the statement in that letter that "[t]he same loss of business could very well occur here in Louisville, if Local 89 should happen to win the NLRB election here and then try to force the national contract on us by taking you out on strike." In the August 22 letter, the Employer states that it will never agree to the Teamsters national con- tract, adding: The only way the Union could try to force such a noncompetitive contract on us would be by taking you out on strike. That is just ex- actly what they did a couple of years ago at our Calvert City Terminal, but it didn't suc- 345 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ceed in getting the Teamsters or the employ- ees there anything but lost earnings and bene- fits . As far as the Union's National Contract is con- cerned, they have had a long strike in every negotiation on it for the last several years. Even at that, some carriers have not accepted it, although that meant a still longer strike. The August 22 letter also refers to strikes by the Petitioner at Manning Equipment and Dealers Truck Equipment and Dixie Warehouse which the Employer characterizes as "very violent" and "vio- lent" and "unsuccessful." The Employer, more- over, makes reference to an employee who "had his eye shot out" in the Manning Equipment strike. The August 25 letter poses the question, "What will happen if the Union wins the election and then calls a strike?" In response, the letter states: Just remember-there are plenty of unem- ployed truck drivers looking for jobs now. Has the Teamsters Union guaranteed to find you another job as good as the one you now have, if they take you out on strike and you are then permanently replaced? This letter states further that "THE ONLY WAY YOU CAN BE SURE the Union doesn't cause you any more trouble in the future is to vote against them in the NLRB election next week." The Peti- tioner also objects to the statement in the August 29 letter that "[i]f the Union wins this election, then your job, your earnings and benefits, and your working conditions will be in the Union's hands." Based on the foregoing, we find that the Em- ployer's repeated references associating the Peti- tioner with strikes, loss of jobs, and loss of business had a coercive impact on the employees by tending to create the impression that such adverse conse- quences would be a direct result of unionization.3 The Employer maintains that its statements fall within the bounds of permissible campaign conduct and that, in the August 20 letter, for example, it stated that it was "not trying to be alarmist or threatening about the future which this Company faces because of the Union." As the Board ob- served in Turner Shoe Company, supra at 146, quot- ing from Georgetown Dress Corporation, 201 NLRB 102, 116 (1973): Communications which hover on the edge of the permissible and the [im]permissible 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."' Inasmuch as we have found that the Employer's campaign, with its emphasis on the adverse conse- quences of unionization, was clearly coercive and prevented the employees from exercising their free choice, we shall sustain the Petitioner's objection. Accordingly, we shall direct that a second election be conducted. [Direction of Second Election and Excelsior foot- note omitted from publication.] 3 Turner Shoe Company. Inc., and Carmen Athletic Industries Inc., 249 NLRB 144 (1980). 346