Petrochem Insulation, Inc.

PETROCHEM INSULATION, INC. 473 Petrochem Insulation, Inc. and International Associa- tion of Heat & Frost Insulators & Asbestos Workers, Local 5, AFL–CIO and International Union of Petroleum and Industrial Workers. Case 21–RC–20619 March 24, 2004 DECISION AND DIRECTION OF SECOND ELECTION BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND WALSH The National Labor Relations Board, by a three- member panel, has considered objections to an election held by mail ballot from June 4, 2003, to June 18, 2003, and manual polling on June 26, 2003, and the hearing officer’s report recommending disposition of them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 14 ballots for the Petitioner, 71 for the Intervenor, and 0 ballots cast against the participating labor organizations. There were 16 challenged ballots, an insufficient number to affect the result. The Board has reviewed the record in light of the ex- ceptions and briefs, has decided to adopt the hearing of- ficer’s findings and recommendations only to the extent consistent with this Decision and Direction of Second Election, and finds that the election must be set aside and a new election held. Petitioner’s Objection 2 alleges that the Employer in- terfered with the election by threatening the loss of wages and benefits if employees voted for the Petitioner. Contrary to the hearing officer’s recommendation, we shall sustain the objection. The facts are not in dispute. The Employer issued a memo to all employees on June 3, 2003. In pertinent part, that memo stated: Local 5 says Petrochem does not want you to vote for Local 5. We don’t. Petrochem does not want to lower your wages and benefits and have 2 Union contracts that discriminate against the employees. Petrochem wants all employees to be treated the same.1 The hearing officer found that this statement was not objectionable because it was merely an expression of the Employer’s desire to maintain the status quo and because 1 The Employer’s language regarding “2 union contracts” reflects the fact that the Intervenor represents the Employer’s employees nation- ally. Therefore, a victory for the Petitioner in the petitioned-for unit would eventually require the negotiation of two separate collective- bargaining agreements. the Petitioner did not show that employees viewed the statement as a threat. We disagree. As noted, the Employer has a contract with the Inter- venor. The record does not expressly disclose whether the employees represented by the Intervenor currently earn more, the same, or less than the employees sought by the Petitioner. However, the implicit suggestion of the Employer’s memo is that all employees are now treated the same, and that a vote for the Petitioner would change that because a separate Petitioner contract would provide for lesser amounts and would thereby “discrimi- nate” against those employees. The Employer’s memo—in particular the phrase “Pet- rochem does not want to lower your wages and benefits” —clearly implied to employees that if they successfully voted in the Petitioner, the Employer would reduce their wages and benefits. Nothing in the memo disavows or contradicts this implication. The memo explicitly de- clared the Employer’s opposition to the Petitioner and linked that opposition to its own prospective actions. Although the lowering of wages and benefits referred to an anticipated collective-bargaining agreement with the Petitioner, it would not constitute a prediction of adverse consequences that was both beyond the Employer’s con- trol and based on objective facts. See generally NLRB v. Gissel Packing Co., 395 U.S. 575, 618–619 (1969). In addition, the hearing officer improperly focused on the employees’ subjective reactions to the Employer’s state- ment. The Board has long held that the test for objec- tionable conduct is an objective one and that the subjec- tive reactions of employees are irrelevant. See, e.g., G. H. Hess, Inc., 82 NLRB 463 fn. 2 (1949); Hopkins Nurs- ing Care Center, 309 NLRB 958, 958 fn. 4 (1992) (col- lecting cases). In this case, the issue is whether the state- ment can be reasonably understood to threaten the loss of wages or benefits. We believe that the employees could reasonably interpret the Employer’s statement as a threat that if the Petitioner won, they would face reduced wages and benefits. Accordingly, we sustain the Petitioner’s Objection 2 and set aside the election.2 [Direction of Second Election omitted from publication.] 2 Because we sustain Objection 2, we find it unnecessary to pass on the hearing officer’s recommendation that the Board overrule Objec- tions 1 and 3. 341 NLRB No. 60