Mantrose-Haeuser Co.

377 306 NLRB No. 74 MANTROSE-HAEUSER CO. 1 On June 22, 1990, Administrative Law Judge Martin J. Linsky issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Charging Party and the General Counsel filed answering briefs. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 2 Out of the 67 eligible voters, 30 votes were cast for the Union and 30 votes were cast against the Union. 3 The Union originally filed five objections to the election but later withdrew all but the one that is coextensive with the alleged unfair labor practices at issue here. 4 Gould, Inc., 260 NLRB 54 (1982); Alpha Cellulose Corp., 265 NLRB 177 (1982), enfd. mem. 718 F.2d 1088 (4th Cir. 1983); North Electric Co., 225 NLRB 1114 (1976), enfd. 588 F.2d 213 (6th Cir. 1978); 299 Lincoln Street, Inc., 292 NLRB 172 (1988). Mantrose-Haeuser Company and Attleboro Joint Board, Retail, Wholesale, Department Store Union, AFL–CIO. Cases 1–CA–26765 and 1– RC–19320 February 21, 1992 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND RAUDABAUGH Exceptions filed to the judge’s decision in this case present the issue whether a statement made in a 19- page campaign document mailed by the Respondent to employees 1 to 2 days prior to a representation elec- tion constituted an unlawful threat to freeze wages and benefits in violation of Section 8(a)(1) of the Act.1 The Board has considered the decision and the record in light of the exceptions and briefs and has de- cided to affirm the judge’s rulings, findings, and con- clusions only to the extent consistent with this Deci- sion and Order. The Respondent is engaged in the manufacture and distribution of shellac at its place of business in Attle- boro, Massachusetts. A representation petition was filed by the Union on September 8, 1989. The Union lost the Board-conducted election on October 19, 1989, in a unit of 67 of the Respondent’s employees.2 The Union filed the instant objections3 and unfair labor practice charge, which the General Counsel consoli- dated for hearing. The Respondent’s antiunion campaign ended with the mailing of a 19-page document entitled ‘‘The Deci- sion is Yours’’ to all unit employees 1 to 2 days prior to the election. The complaint alleges that the fol- lowing language contained on page nine of the docu- ment constitutes an unlawful threat to freeze wages and benefits: WHEN BARGAINING FOR A FIRST CON- TRACT DOES BEGIN, IT CAN BE A LONG, COMPLICATED AND TECHNICAL PROCE- DURE WHICH CAN GO ON FOR MONTHS, A YEAR . . . OR LONGER. WHILE BARGAINING GOES ON, WAGE AND BENEFIT PROGRAMS TYPICALLY REMAIN FROZEN UNTIL CHANGED, IF AT ALL, BY A CONTRACT. IF THE UNION WINS, YOU TAKE THE RISKS . . . YOU WILL HAVE TO ‘‘WAIT AND SEE’’ IF ANYTHING HAPPENS WITH WAGES AND BENEFITS. THE UNION, HOWEVER, IS FREE TO BEGIN COLLECTING DUES RIGHT AWAY. [Emphasis in original.] Relying primarily on four Board cases,4 the judge found that the above language amounted to a threat in violation of Section 8(a)(1) because the message com- municated by the Respondent to employees was that wage and benefit programs would remain frozen dur- ing the potentially long period of negotiations. The judge noted that the Respondent granted Christmas bo- nuses and annual merit raises in December of each year, that the language in the document was ambig- uous as to whether the December bonuses and wage increases would be given, and that any ambiguity should be resolved against the author of the document. For the reasons set forth below, we disagree with the judge and find that, in the context of the cir- cumstances presented here, the language contained in the Respondent’s campaign literature which the judge found unlawful does not constitute a threat within the purview of Section 8(a)(1). At the outset, we note that the Respondent’s state- ment appeared in a 19-page document which was de- void of any other unlawful or objectionable statements. In addition, the statement appeared only in the 19-page document, even though the Respondent distributed sev- eral additional campaign materials to employees. Fur- ther, during this entire time period, there were no other allegations of unfair labor practices or objectionable conduct committed by the Respondent. We also note that the Respondent did not say that preexisting benefits would be lost if the Union won the election. The Respondent’s statement was that wage and benefit programs would be frozen. The statement implies only that wages and benefit programs would not change. The Respondent’s conduct is consistent with this view. Thus, the Respondent had a past prac- tice of granting predetermined wage increases fol- lowing probationary and training periods. That practice continued during the campaign. Similarly, the Re- spondent had a practice of giving Thanksgiving tur- keys and a Christmas party. The Respondent said that this practice would continue. Finally, the Respondent had a past practice of granting a Christmas bonus and annual merit increases in December. William Mischel, who was the vice president and general manager of the 378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 5 Cf. Frank’s Nursery & Crafts, 297 NLRB 781 (1990). It is well established in the record that these increases were not in the nature of predetermined, fixed benefits, but instead were dis- cretionary as to amount. Thus, had the Union won the election, the Respondent would have been obligated to bargain prior to granting any increases, thereby at least temporarily creating a period during which the bonuses and increases would not be given. Southwire Co., 282 NLRB 916 fn. 1 (1987); Gerkin Co., 279 NLRB 1012 (1986); Goodman Holding Co., 276 NLRB 935 (1985). 6 The cases cited by the judge are inapposite. In none of those cases did the employer refrain from other unlawful conduct and con- tinue the status quo as to employment benefits. 1 See generally Auto Workers (Kawasaki Motors) v. NLRB, 834 F.2d 816 (9th Cir. 1987). Thus, in some circumstances, comments referring to a ‘‘freeze’’ may well indicate an employer’s retaliatory intent withhold periodic wage increases from employees simply be- cause they have chosen union representation. Frank’s Nursery & Crafts, 297 NLRB 781 (1990). In other circumstances, however, an employer may be simply alluding to the fact that the advent of a union in the workplace will interject an additional, perhaps time con- suming step in the process by which customary wage increases are implemented. Fiber Industries, 267 NLRB 840, 853 (1983). 2 Tr. 147–164. 3 Id. Respondent during the election campaign, testified without contradiction that he told employees that the amounts of the Christmas bonus and merit increases were subject to negotiation with the Union if the Union won the election. Thus, the Respondent was saying that the past practice of granting bonuses and amounts would continue. The amount would be subject to negotiation. That statement correctly described the Respondent’s obligations.5 Finally, we note that the word ‘‘frozen’’ was pre- ceded by the word ‘‘typically,’’ which modified and limited its meaning, thereby reducing the possibility that employees would reasonably perceive the state- ment as a threat that their wages and benefits would be lost. In addition, the fact that the statement was made in a third-person context further reduced the pos- sibility of its perception by the employees as a threat. We therefore conclude that, in the circumstances presented here, the Respondent’s statement regarding wages and benefits ‘‘typically remain[ing] frozen’’ contained in campaign literature mailed on the eve of an election did not constitute a threat in violation of Section 8(a)(1) of the Act, and accordingly, that the election should not be set aside.6 ORDER The complaint is dismissed. CERTIFICATION OF RESULTS OF ELECTION IT IS CERTIFIED that a majority of the valid ballots have not been cast for the Attleboro Joint Board, Re- tail, Wholesale, Department Store Union, AFL–CIO, and that it is not the exclusive representative of these bargaining unit employees. CHAIRMAN STEPHENS, concurring. I agree with my colleagues that the Respondent did not unlawfully threaten its employees by distributing campaign literature which included the observation that during collective bargaining ‘‘wage and benefit pro- grams typically remain frozen until changed, if at all, by a contract.’’ In so finding, however, I would ac- knowledge that this unadorned statement is ambiguous, especially when immediately followed by assertion that with a union victory, the employees ‘‘take the risks . . . [they] will have to ‘wait and see’ if anything hap- pens with wages and benefits.’’ (Emphasis added.) By definition, a risk is ‘‘the possibility of loss, injury, dis- advantage, or destruction.’’ Webster’s Third New International Dictionary (1971). Thus it is plausible to read the sentences in isolation as suggesting a causal link between a union victory and a ‘‘loss’’ of what the employees otherwise might be reasonably expect to re- ceive in the way of customary wage increases. When faced with such equivocal campaign rhetoric, the Board commonly resorts to an examination of the surrounding circumstances to determine whether it conveys an implied threat.1 As suggested by my col- leagues, the Employer’s campaign is otherwise devoid of unlawful conduct that would indicate an intent to re- taliate against the employees for voting in a union. For example, Vice President Mischel apparently commu- nicated to employees the legal constraints against mak- ing threats.2 And, there is testimony to the effect that various employees were told that the various fringe benefits would remain in place and that the employees would get their raises, but that they would be subject to negotiation with the union.3 In this context, I am not persuaded that the written statement in question constituted an implied unlawful threat or that it would be reasonably perceived as one. Carol Sax, Esq. and Deidre D. Hamlar, Esq., for the General Counsel. Donald C. Moss, Esq., of New York, New York, for the Re- spondent. James O. Hall, Esq., of Boston, Massachusetts, for the Charging Party. DECISION STATEMENT OF THE CASE MARTIN J. LINSKY, Administrative Law Judge. On Octo- ber 19, 1989, Attleboro Joint Board, Retail Wholesale, De- partment Store Union, AFL–CIO (Charging Party or Union) lost an election to represent a unit of employees of Montrose-Haeuser Company (Respondent). Thereafter, on October 24, 1989, the Union filed objec- tions to the election and an unfair labor practice charge against Respondent. On December 15, 1989, the Regional Director for Region 1 issued an order consolidating for trial the unfair labor practice complaint in Case 1–CA–26765 and the Report on Objections in Case 1–RC–19320. 379 MANTROSE-HAEUSER CO. The complaint alleges that Respondent violated Section 8(a)(1) of the National Labor Relations Act (the Act), when it threatened to freeze the wages and benefits of employees if the Union won the election in Case 1–RC–19320. The ob- jection to the election is this same threat to freeze wages and benefits. The General Counsel and Union argue that Respondent violated Section 8(a)(1) of the Act and the election should be set aside because of this violation and a new election or- dered. Respondent argues that it did not violate the Act in any way and that the election results should be certified. The results of the October 19, 1989 election were 30 votes for the Union and 30 votes against the Union. Because less than a majority voted in favor of the Union, the Union lost the election. I agree with the General Counsel and the Union. Trial was held before me in Boston, Massachusetts, on March 21 and 22, 1990. On consideration of the entire record, to include posthearing briefs filed by the General Counsel, Respondent, and the Union, and on my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT I. JURISDICTION At all times material Mantrose-Haeuser Company, an unin- corporated division of Milmaster Onyx Group, Inc., has had an office and place of business in Attleboro, Massachusetts, where it is engaged in the manufacture and distribution of shellac. Annually, Respondent, in the course and conduct of its business operations described above, sells and ships from its Attleboro facility products, goods, and materials valued in excess of $50,000 directly to points outside the State of Mas- sachusetts and also purchases and receives at its Attleboro fa- cility products, goods, and materials valued in excess of $50,000 directly from points outside the State of Massachu- setts. Respondent admits and I find that it is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits and I find that the Union is now, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE The Union, as noted above, lost an election among a unit of Respondent’s employees on October 19, 1989. It was a Board-conducted election. On October 17 and 18, 1989, Re- spondent mailed to each of the 67 eligible voters a 19-page document entitled ‘‘The Decision is Yours.’’ Each page of the document, in evidence as Joint Exhibit 3, is in large, easy to read print. The document was translated into Spanish and Portuguese for those employees who do not read English. Most of the copies were mailed on October 17, 1989. Each year in November employees received a Thanks- giving turkey from Respondent. In addition, Respondent gave a Christmas bonus around the holidays and threw a Christ- mas party (sitdown dinner) for its employees. Lastly and most importantly, Respondent gave its annual yearly raises in December on each year. Employee Perry Denham, who re- tired right after the October 19, 1989 election, testified with- out contradiction that these annual wage increases had been given every December for the 25 years he was employed by Respondent. This wage increases and benefits above de- scribed were all due within 2 months of the election. On page 9 of ‘‘The Decision is Yours,’’ the following lan- guage appears: WHAT HAPPENS IF THE UNION WINS ? NOTHING HAPPENS FOR AT LEAST SEVEN (7) CALENDAR DAYS. THE LABOR BOARD PROVIDES THIS TIME FOR THE FILING OF ‘‘OBJECTIONS.’’ IF OBJECTIONS ARE FILED, THE LABOR BOARD WILL CON- DUCT AN INVESTIGATION BEFORE THE ELEC- TION RESULTS CAN BE CERTIFIED AS OFFI- CIAL. SUCH INVESTIGATIONS TAKE TIME. BAR- GAINING WOULD NOT EVEN BEGIN UNTIL THE INVESTIGATION WAS COMPLETED AND THE ELECTION RESULTS CERTIFIED. WHEN BARGAINING FOR A FIRST CONTRACT DOES BEGIN, IT CAN BE A LONG, COM- PLICATED AND TECHNICAL PROCEDURE WHICH CAN GO ON FOR MONTHS, A YEAR . . . . OR LONGER. WHILE BARGAINING GOES ON, WAGE AND BENEFIT PROGRAMS TYPICALLY REMAIN FRO- ZEN UNTIL CHANGED, IF AT ALL, BY A CON- TRACT. IF THE UNION WINS, YOU TAKE THE RISKS . . . YOU WILL HAVE TO ‘‘WAIT AND SEE’’ IF ANY- THING HAPPENS WITH WAGES AND BENEFITS. THE UNION, HOWEVER, IS FREE TO BEGIN COL- LECTING DUES RIGHT AWAY. It is alleged that this language sent to every eligible voter in this very close election (30 votes for the Union and 30 votes against the Union) amounted to a threat in violation of Section 8(a)(1) of the Act. I agree. The clear message is that wage and benefit programs will remain frozen during the pe- riod of negotiations which can take a long time. It is ambig- uous if the December wage increase will go into effect or not and, of course, any ambiguity resolved against the author of the document. In Gould, Inc., 260 NLRB 54 (1982), the Board held that an employer violates Section 8(a)(1) of the Act if it has a practice of granting merit increases in August of each year but tells its employees before the election that negotiations, in the event the Union wins, can take over a year (going past August) and that wages and benefits remain frozen during this period of negotiations. See also Frank’s Nursery & Crafts, 297 NLRB 781 (1990). In Alpha Cellulose Corp., 265 NLRB 177 (1982), the Board at 177–178 stated: On October 11, 1979, the Union mailed a letter to all employees in the bargaining unit which discussed the procedure for calling a strike, dues, assessments, and the benefits of unionism. On October 16, October 380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 23, and October 30, 1979, allegedly in response to the Union’s letter, Respondent mailed letters to its employ- ees. Certain of the statements in those letters are al- leged as objectionable, and as unfair labor practices. 1. The October 16 letter from Respondent outlined the collective-bargaining process, and stated, inter alia, that ‘‘[n]egotiation is a long, drawn-out process that can take months, and in the meantime all wages and bene- fits are frozen. There can be no wage increase or any benefits improved by the Company during this period of negotiation.’’ Respondent argues that the letter merely recited the realities of collective bargaining in response to the Union’s earlier letter which ‘‘misrepresented’’ that unionization necessarily meant better wages and bene- fits for the employees. Respondent asserts that there is no indication in the letter that employees would lose wages and benefits during negotiations or that it would not bargain in good faith. And Respondent claims that, in fact, during negotiations an employer cannot unilater- ally implement a benefit without bargaining with the union and the letter apprises the employees of the fact. We agree with the General Counsel, however, that Respondent violated Section 8(a)(1) of the Act by de- claring that wages and benefits would be frozen during the period of contract negotiation. The letter, in fact, not only misinformed the employees as to the law by stating that the negotiations prevented employee wage increases, it also implied that a rejection of the Union would free the Company to grant raises and other bene- fits. The employees were thereby led to conclude that a penalty was attached to the exercise of their rights in choosing a bargaining representative. We thus find that the portions of the letter discussed above violated Sec- tion 8(a)(1) of the Act and were objectionable state- ments.’’ In another case, the Board was faced with language similar to the language in this case. The language contained in the Employer’s campaign literature was as follows: Bargaining a union contract does not start with wages and benefits you now have. All of your present benefits and wages are open for negotiations. [This letter] is about what actually happens if the union wins the election . . . . If the union wins the election, it only means . . . one thing . . . . We do not have to agree to anything. We do not have to give in to any- thing . . . . Bargaining starts with a blank sheet of paper . . . . I can tell you for a fact that Company rep- resentatives would bargain legally with the union. They would bargain in good faith, but they would bargain hard . . . . . . . . The Company would bargain in good faith with the union, but you should know that it frequently takes a long time to bargain. This is especially true when you are bargaining with the union for the first time, for a brand new contract, where you have not had one be- fore. No one knows how long those negotiations would last. Sometimes these negotiations go on for months. Sometimes bargaining for a new contract goes on for over a year. All the time this bargaining was going on, your wages and your bnefits would be frozen! . . . Un- less there was an agreement between the union and the Company, your wages and benefits would be frozen during negotiations and no one can say how long this wage freeze would last. . . . . In some instances, unions and companies have bar- gained and negotiated for a year or even more. This is especially true in a first contract. Unless there is agree- ment, your wages and benefits are frozen by law during this period.’’ The Board in North Electric Co., 225 NLRB 1114 (1976), enfd. 588 F.2d 213 (6th Cir. 1978), concluded that the above language amounted to a threat in violation of Section 8(a)(1) of the Act. In North Electric Co., supra, the election, which the union lost, was set aside and a new election ordered. It seems clear to me in light Gould, Inc., supra, Alpha Cel- lulose Corp., supra, and North Electric Co., supra, that page 9 of ‘‘The Decision is Yours,’’ which is set forth above, is violative of Section 8(a)(1) of the Act because it threatened employees with a loss of benefits if they selected the Union as their collective-bargaining representative. Clearly a threat to freeze wages and benefits is unlawful and it seems clear that threat to freeze wage and benefit programs is likewise unlawful. Does a threat to freeze a wage program mean that the December wage increase would be given or not? It is at least ambiguous and the language could reasonably be con- strued to mean there would be no December wage increase. Any doubt that a threat to freeze a wage program is tanta- mount to a threat to freeze wages was resolved by the Board in 299 Lincoln St., 292 NLRB 172 (1988), in which the Board held: [T]he Respondent also engaged in unlawful conduct when its owner, William Dobson, admittedly stated in his November 18, 1985 speech to employees that they would ‘‘at least be subject to a very lengthy period of frozen wages and benefits’’ if the Union was voted in. Because the Respondent would be obliged, on the Union’s demonstration of its majority in the election, to maintain in effect its current wage and benefit policies until negotiations resulted in an agreement on its change or an impasse, Dobson’s statement to employees that wages and benefits would be frozen constituted a threat to deprive employees of benefits to which they otherwise would be entitled because they chose union representation. Accordingly, we find that this threat fur- ther violated Section 8(a)(1) of the Act. [Emphasis added.] If a threat to freeze wage and benefit policies is unlawful, a threat to freeze wage and benefit programs is likewise un- lawful. I note that ‘‘The Decision is Yours’’ was mailed to em- ployees on the eve of the election and Respondent did not gather the employees together to resolve any ambiguity in the document. Hence, the defense of ‘‘repudiation’’ und Passavant Memorial Area Hospital, 237 NLRB 138 (1978), is not available to Respondent. This 8(a)(1) threat was not de minimis or isolated. It was communicated to every sngle eligible voter and went to one 381 MANTROSE-HAEUSER CO. of the most significant factors in employment, i.e., wages and benefits enjoyed by the employees. Does this violation war- rant setting aside the election and ordering a new election? Yes. As the Board noted in Westek Fabricating, 293 NLRB 879 fn. 2 (1989): The Respondent contends that the single violation of Sec. 8(a)(1) here was de minimis and does not warrant setting aside the election. It is well settled that conduct violative of Sec. 8(a)(1) interferes with an election un- less ‘‘the violations are such that it is virtually impos- sible to conclude that they could have affected the re- sults of the election.’’ Enola Super Thrift, 233 NLRB 409 (1977). In this case, because the threat was communicated to all eligible voters on the eve of an election which could not pos- sibly have been closer, it is obviously impossible to conclude that Respondent’s 8(a)(1) threat had no effect on the election outcome. The election must be set aside. See also Dal-Tex Optical Co., 137 NLRB 1782 (1962). CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce, and in operations affecting commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act when it threatened to freeze the wages and benefits of its employees if they selected the Union as their representative for purposes of collective bargaining. 4. The aforesaid unfair labor practices affects commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent did not violate the Act in any other way. [Recommended Order omitted from publication.]