CPP Pinkerton

723 309 NLRB No. 109 CPP PINKERTON 1 The Region conducted a secret-ballot election by mail between February 7 and 24, 1992. The Region counted the ballots on March 3. 2 Both the Petitioner and the Employer filed exceptions and briefs, the Employer filed a brief in opposition to the Petitioner’s excep- tions, and the Petitioner filed a brief in response to the Employer’s exceptions. 3 In the absence of exceptions, we adopt pro forma the hearing of- ficer’s disposition of Objections 2, 3, and the additional (Catchall) objection. 4 The pertinent contract section states: ARTICLE 27—CANCELLATION, TERMINATION AND SUSPENSION 27.1 Owner shall have the unconditional option and right, exer- cisable at Owner’s sole election, to terminate this Agreement for Owner’s convenience at any time upon furnishing thirty (30) days advance written notice thereof to Contractor. 5 Pace testified that Nylen told him that U.S. Steel was actively seeking bids from competitors, and at one time Nylen had represent- atives from Wells Fargo in his office. Pinkerton, Inc., d/b/a CPP Pinkerton and Inter- national Union, United Plant Guard Workers of America (UPGWA), Petitioner. Cases 13– RC–17501 and 13–RC–17910 November 30, 1992 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN STEPHENS AND MEMBERS OVIATT AND RAUDABAUGH The National Labor Relations Board, by a three- member panel, has considered objections to an election held on March 3, 1992,1 and the hearing officer’s re- port recommending disposition of them. The election was conducted pursuant to the Regional Director’s Third Supplemental Decision and Direction of Elec- tion. The tally of ballots shows 60 votes for and 62 votes against the Petitioner, with 1 challenged ballot, an insufficient number to affect the results. The Board has reviewed the record in light of the exceptions and briefs,2 and adopts the hearing officer’s findings and recommendation concerning all objec- tions3 except Objection 4. As explained below, we dis- agree with the hearing officer’s conclusion that this ob- jection has merit. Accordingly, we find that a certifi- cation of results of election should be issued. In Objection 4, the Petitioner alleged that the fol- lowing letter sent by Site Supervisor Michael J. Pace Sr. to employees at the U.S. Steel Gary site in late January or early February constituted a threat of job loss: To all Security Officers at USS Gary Works, As you may have heard, after much legal wran- gling which has lasted several years, the Labor Board in Chicago has ruled that an election will be held for our guards in the Gary district on Feb- ruary 14, 1992. The matter is now on appeal to the Labor Board in Washington, so everything could change. As we get more information about the election, we will pass it on to you. At this point, I just want to pass on some clear information to you, because I know you may have been hearing many different claims from many different sources. You should know this: your wages are pretty much determined by our contract with U.S. Steel. Thus, any real change in your wages will have to be negotiated with U.S. Steel. Then you have to ask yourself—why would our client agree to an increase? U.S. Steel, like most of our clients, can place their work elsewhere if we try to raise our wages too high. You should bear this in mind when the plant guard union tells you they can get you wages higher than what you are now earning. This can only happen if our client agrees to pay for the in- crease. If the union demands an increase, the cli- ent is completely free to cancel our contract and take its business elsewhere. Then we would no longer have any jobs at the U.S. Steel facility. To put it bluntly, the plant guard workers’ wages at other facilities is totally irrelevant. What U.S. Steel is willing to pay (and what Pinkerton will agree to) is what matters. To conclude, we want you to know Pinkerton’s position that the plant guard union is not wanted nor needed at the U.S. Steel facility. Quite frank- ly, there is precious little to gain, and much to lose, from such a decision. Please let me know if you have any questions, and Please VOTE NO on February 14! Sincerely yours, Capt. M. Pace Pace testified that in many conversations with him, U.S. Steel Managers Nylen and Kolb stated that U.S. Steel did not want the Union at U.S. Steel sites, that corporate sentiment was opposed to the presence of the Union, and that U.S. Steel would exercise its contrac- tual option to give 30 days’ notice to the Employer,4 should the Union win the election. Pace also testified that several employees told him that an unknown agent of the Union had said that if the Union won the elec- tion there would be more uniform wages and across- the-board wage increases. According to Pace, he felt compelled to warn the bargaining unit, and he did this in the letter. In addition, Pace told employees who spoke to him that the U.S. Steel contract had a 30-day- notice cancellation clause. Pace told employees that U.S. Steel had this option and that he, Pace, felt U.S. Steel would pursue it.5 The hearing officer found that the letter was tanta- mount to a threat of job loss and that no objective 724 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 Robert Cottrell and John D’Agostino testified that they were aware that client companies were free to choose another security contractor at any time. The Employer also argued in its exceptions that the hearing officer improperly drew a negative inference from the Employer’s failure to have U.S. Steel Managers Nylen and Kolb testify directly, and im- properly discredited Pace concerning his testimony about the con- versations with Nylen and Kolb. 7 We therefore need not reach the Employer’s second theory in support of its exception. 8 See Buck Brown Contracting Co., 283 NLRB 488 (1987); Daniel Construction Co., 264 NLRB 569, 569–571 (1982). In BI-LO, 303 NLRB 749 (1991), relied on by the hearing officer, the letter at issue conveyed the employer’s message that employee job security would be jeopardized if employees chose to be represented by a union. The letter stated: ‘‘Our constant effort to see that you have a steady job is one of the many reasons you should vote NO UNION on election day.’’ BI-LO, supra. facts were presented in support of the assertion that a third party controlled the fate of the Employer’s jobs at the U.S. Steel sites. The hearing officer noted that the Employer failed to present the direct testimony of U.S. Steel Managers Nylen and Kolb at the hearing. The hearing officer therefore drew a negative inference concerning the statements attributed by Pace to Nylen and Kolb and concluded that Pace’s testimony in this respect was not credible. Accordingly, the hearing offi- cer found that the letter constituted objectionable con- duct. The Employer excepted on two grounds. First, the Employer argued that the letter constituted a statement of opinion rather than a threat of reprisal and, there- fore, the objective evidence test is irrelevant. Second, the Employer argued that even if the letter is viewed as a ‘‘threat,’’ the record contains the requisite objec- tive evidence. In this respect, the Employer cited the termination clause in its contract with U.S. Steel and testimony of employees that, even before they received Pace’s letter, they knew U.S. Steel could terminate the contract at will.6 We agree with the Employer’s contention that Pace’s letter constitutes a mere statement of opinion concerning possible third-party action and as such is no threat of reprisal.7 We note particularly that the lan- guage at issue in Pace’s letter connotes possibility, not probability. Thus, the letter opines: U.S. Steel . . . can place their work elsewhere if we try to raise our wages too high . . . . If the union demands an increase, the client is com- pletely free to cancel our contract and take its business elsewhere. Then we would no longer have any jobs at the U.S. Steel facility. We find that this language merely cautioned that the Employer’s contracts on any of its jobs could be jeop- ardized if it did not remain competitive. It did not state that any adverse consequences would occur if the em- ployees chose to unionize. This plain statement of fact does not constitute objectionable conduct in context.8 Accordingly, we find no merit in the Petitioner’s Ob- jection 4. CERTIFICATION OF RESULTS OF ELECTION IT IS CERTIFIED that a majority of the valid ballots have not been cast for International Union, United Plant Guard Workers of America (UPGWA) and that it is not the exclusive representative of these bargain- ing unit employees.