Arch Beverage Corp.

National Labor Relations Board - Board Decisions

Feb 21, 1963

140 N.L.R.B. 1385 (N.L.R.B. 1963)

ARCH BEVERAGE CORPORATION 1385
The Employer in its brief contends that the matters which the Re-
gional Director found objectionable were mentioned and discussed
by it in a letter to employees 3-weeks before the election, so that the
reliance upon the impact of a last minute appeal which could not be
answered or evaluated was unwarranted.2 Moreover, the Employer
contends that the above statements, when considered in conjunction
with the complete letter of which it was an integral part and the re-
lated 4-week preelection campaign, could be recognized by the em-
ployees as propaganda. We agree with the Employer.
In our opinion the above statements relied upon by the Regional
Director contained neither an implied nor expressed threat of re-
prisal or promise of benefit, especially when considered, in the context
of the complete letter and the total election campaign. In such state-
ments the Employer was merely answering prior propaganda of the
Petitioner as to the benefits to be gained from unionization and point-
ing out certain disadvantages which could result. This an employer
has a right to do where, as here, it is done in a noncoercive manner.'
Under the circumstances, therefore, we do not believe that the freedom
of choice of the employees was sufficiently impaired to warrant setting
aside the election. Accordingly, we shall overrule the findings of the
Regional Director and certify the results of the election.
[The Board certified a majority of the valid votes was not oast for
the International Chemical Workers Union, AFL-CIO, and that this
labor organization is not the exclusive representative of the employees
in the unit found appropriate.]
MEMBER BROWN took no part in the consideration of the above De-
cision on Review and Certification of Results of Election.
2 The factual contentions raised in the Employer's brief are uncontroverted
8 See Thomas v. Collins, 323 U.S. 516, 532 (1944).
Arch Beverage Corporation and Local 135, International Brother-
hood of Teamsters, Chauffeurs , Warehousemen and Helpers
of America, Petitioner. Case No. 25-RO-2140. Febrwa?1J 21,
1963
DECISION ON REVIEW AND CERTIFICATION OF
RESULTS OF ELECTION
Pursuant to a Decision and Direction of Election issued by the
Regional Director for the Twenty-fifth Region, an election was held
on August 30, 1962, under the direction and the supervision of the
140 NLRB No. 132
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director. Upon the conclusion of the election, the parties
were furnished a tally of ballots which showed that of approximately
8 eligible voters, 4 ballots were cast against, and 3 ballots were cast
for, the Petitioner, and 1 ballot was challenged. The Petitioner filed
timely objections to conduct affecting the results of the election. The
Regional Director investigated the objections and thereafter, on Octo-
ber 18, 1962, issued and served upon the parties his Supplemental
Decision and Direction of Second Election in which he found merit
in the Petitioner's objections. The Employer thereafter filed a timely
request for review.
On November 11, 1962, the Board, by telegraphic order, granted
the Employer's request. Subsequently, a brief in support of such re-
quest was filed by the Employer. No brief was filed by the Petitioner.
The Petitioner's objections relate to a letter mailed to eligibles by
the Employer prior to the election. The Regional Director's investi-
gation revealed that on August 28, 1962, approximately 2 days before
the election, the Employer sent a four-page letter to all employees
in which it discussed inter alia: (1) The forthcoming election and
the possible effects of union victory upon the relationships employees
now enjoy with the Employer, and the necessity for employees to vote
so that their true wishes be expressed; (2) the Petitioner's propa-
ganda as to the wage increases and other benefits if the Union is
voted in and the Employer's inability to meet such demand; and (3)
the responsibilities and the possible loss of individual freedoms which
can result from unionization.
The Regional Director found that the following sentence which
appeared as a separate paragraph on the top of page 3 of the above
letter coercive and a basis for setting aside the election :
The Teamsters have no power, legal or otherwise to force the
Company to operate this warehouse for a day, a week, a month
or any longer time.
The Regional Director concluded that this sentence stood by itself
"unrelated to what preceded it or succeeded it" and leads to the infer-
ence that the Employer "might cease operating its warehouse if the
employees designated the Union as their representative."
In its brief the Employer contends that the above paragraph was
considered out of context from the complete letter and without regard
to propaganda distributed a few days before in which the Petitioner
claimed that certain wage increases and other benefits would auto-
matically prevail if the Petitioner were successful in receiving a
majority of the votes cast. Furthermore, the Employer points out
that on the day the letter was distributed a group meeting was held
with the employees in which the benefits which the Petitioner publi-
ARCH BEVERAGE CORPORATION 1387
cized would be forthcoming were frankly discussed in terms of the
financial position of the Company and the Employer stressed, as it did
in the letter, that the Petitioner could not force it to pay an uneconomic
wage increase. The Employer's basic position is that the single sen-
tence relied upon by the Regional Director cannot be considered in
the abstract, but should be viewed in the total context of the letter,
the group meeting, and the Petitioner's propaganda which the Em-
ployer was seeking to answer.' We agree with the Employer.
As we read the Employer's letter, the one-sentence paragraph in
question is directly related to preceding statements which stress that
the Employer must operate profitably to stay in business and that on
the basis of the Employer's financial position it would lose money if
the Petitioner's demands were to be met. In the paragraph immedi-
ately preceding the sentence found objectionable by the Regional Di-
rector, the Employer in a temperate, business-like manner presented a
detailed statement of its profit-and-loss position for the years 1959
to 1962 with the caveat that "any radical wage increase that the Union
may have promised you would more than likely place Arch Beverage
in bankruptcy inside of six months." In our opinion the intended
and natural implication of the one-sentence paragraph in question was
a continuation of the Employer's contentions that it has the respon-
sibility for operating a profitable business and that the Petitioner re-
gardless of its claims cannot force the Employer to sign a contract
or to operate on a basis which is not in the good interest of the busi-
ness. We find the one-sentence paragraph in question, under all the
circumstances, was an attempt to answer the Petitioner's propaganda
rather than a threat to close the warehouse if the employees voted
for the Petitioner, and we believe that the paragraph would be so
reasonably construed by the employees a Accordingly, we shall over-
rule the findings of the Regional Director and certify the results of
the election.
[The Board certified a majority of the valid votes was not cast for
Local 135, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, and that this labor organization is
not the exclusive representative of the employees in the unit found
appropriate.]
MEMBER BROWN took no part in the consideration of the above
Decision on Review and Certification of Results of Election.
1 The factual contentions of the Employer as to the Petitioner's propaganda regarding
benefits it would demand and the nature of the group meeting on the day the Employer's
letter was distributed are uncontroverted.
2 See, e.g., Motec Industries , Inc., 136 NLRB 711 ; Allen-Morrison Sign Co., Inc., 138
NLRB 73; cf. Lake Catherine Footwear, Inc., 133 NLRB 443, 444.