Bray Oil Co.

National Labor Relations Board - Board Decisions

Feb 27, 1968

169 N.L.R.B. 1076 (N.L.R.B. 1968)

1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
David C. Banks , Ulric B. Bray, and Evelyn Bray,
Partners , d/b/a Bray Oil Company and Oil,,
Chemical & Atomic Workers , Local 1-561
(Richmond), Oil, Chemical & Atomic Workers
International Union , AFL-CIO
David C. Banks, Ulric B. Bray and Evelyn Bray,
Partners , d/b/a Bray Oil Company and Oil,
Chemical & Atomic Workers , Local 1-561
(Richmond), Oil, Chemical & Atomic Workers In-
ternational Union , AFL-CIO, Petitioner. Cases
20-CA-4354 and 20-RC-7276
February 27, 1968
DECISION , ORDER , AND CERTIFICATION
OF RESULTS OF ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On November 28, 1967, Trial Examiner Martin
S. Bennett issued his Decision in the above-entitled
cases , finding that the Respondent had not engaged
in any unfair labor practices alleged in the com-
plaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel and the Charging Party filed exceptions to
the Decision and supporting briefs. The Respond-
ent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in these cases, and
hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
for the Oil , Chemical & Atomic Workers, Local
1-561 (Richmond ), Oil, Chemical & Atomic Wor-
kers International Union , AFL-CIO, and that said
labor - organization is not the exclusive representa-
tive of the employees in the unit found appropriate,
within the meaning of Section 9 (b) of the National
Labor Relations Act, as amended.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Trial Examiner: This matter was
heard at San Francisco, California, on August 30, 1967.
The complaint, issued June 13 and based upon charges
filed January 5 and June 6, 1967, by Oil, Chemical &
Atomic Workers, Local 1-561 (Richmond), Oil, Chemi-
cal & Atomic Workers International Union, AFL-CIO,
herein called the Union, alleges that Respondent, David
C. Banks, Ulric B. Bray and Evelyn Bray, Partners, d/b/a
Bray Oil Company, had engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act by, in es-
sence, interrogating employees concerning union activi-
ties, promising benefits for rejecting the Union, threaten-
ing reprisals for union activities, and promulgating a
retirement plan.,
By order dated June 16, 1967, the Regional Director
for Region 20 ordered, consolidated with the foregoing,
a hearing on objections to an election conducted in Case
20-RC-7276. Pursuant to a Stipulation for Certification
Upon Consent Election, approved December 1, an elec-
tion had been held on December 29, 1966, in an ap-
propriate bargaining unit, in essence the customary
production and maintenance unit. Of 28 eligible voters,
25 cast ballots, 3 for and 22 against the Union, with 3
challenged. Objections were duly filed by the Union.
The report of the Regional Director overruled these
objections, but, the investigation discovering certain
other conduct identical with the conduct attacked in Case
20-CA-4354, the Regional Director ordered the cases
consolidated and a hearing held on said conduct. This
recommendation was adopted by the Board on July 3,
1967. Briefs have been submitted by all parties.
Upon the entire record in the case, and from my obser-
vation of the witnesses, I make the following:
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the complaint in case 20 -CA-4354 be,
and it hereby is, dismissed in its entirety.
IT IS HEREBY FURTHER ORDERED that the objec-
tions to the December 29, 1966 , election in Case
20-RC-7276 be, and they hereby are, overruled in
their entirety.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
votes cast in Case 20-RC-7276 has not been cast
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
David C. Banks, Ulric B. Bray and Evelyn Bray, Part-
ners, d/b/a Bray Oil Company are a limited partnership
with principal offices located in Los Angeles, California.
Respondent operates a plant in Los Angeles, a terminal
facility in San Pedro and a plant at Richmond, California,
the latter being the situs of the instant dispute.
Respondent is engaged at Richmond in the blending
and sale of aircraft and missile hydraulic fluids and an-
nually ships products valued in excess of $50,000 to
points outside the State of California. I find that the
operations of Respondent affect commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Oil, Chemical & Atomic Workers, Local 1-561
(Richmond), Oil, Chemical & Atomic Workers Interna-
169 NLRB No. 150
BRAY OIL COMPANY
tional Union , AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
Respondent's employees were unorganized prior to the
events treated herein. The Union filed a representation
petition on November 9, 1966, and the complaint attacks
certain conduct in the ensuing period up to December 29
when an election was overwhelmingly lost by the Union.
The promulgation of a retirement program appears to be
the strongest string to the bow of the General Counsel
and this matter is treated initially.
B. The Retirement Plan
The General Counsel contends that this plan was hasti-
ly announced, although conceding that it may have been
considered nebulously for a period of time. He points to
the testimony of employees James Parks, John Banuelos,
and Harold Burdick that they had not heard of such a plan
prior to its announcement by partner and Assistant
Manager David Banks on or about December 9 or 10,
1966. It should be noted that Burdick, unlike the other
two, had little tenure, entering the employ of Respondent
in late September and departing its employ late in
November of 1966.
Banks is based in Los Angeles and visits Richmond
from time to time. He testified that in October of 1965,
Richmond employee William Walter spoke to him about
a pension plan, after having allegedly broached the matter
previously to partner Ulric Bray.' Walter pointed out that
he was contemplating leaving the employ of Respondent
to work for the California Highway Patrol because of its
excellent pension plan. He did state that he preferred to
stay with Respondent if some pension benefits were
forthcoming. Banks told him that Respondent contem-
plated the installation of a retirement or pension plan and
Walter, relying upon this, did not leave the employ of
Respondent.
Approximately December 18, 1965, Banks and partner
Ulric Bray met with the Los Angeles employees to dis-
tribute the Christmas bonus checks, as was their custom.
According to Banks, Bray announced that Respondent
had determined to install a retirement or pension plan of
some kind before the, end of 1966. Banks commenced
work upon such a plan and, together with Bray,
developed one during the ensuing months after studying
many existing ones at other concerns.
In August 1966, Bray and Banks held two identical
meetings with the employees at Richmond, one for the
day shift and one for the afternoon shift, with Bray as the
principal speaker. After bonus checks were distributed,
based on wages from the previous Christmas to that date,
Bray announced a change in the Christmas bonus plan.
He stated that in lieu of further bonuses, wages had been
increased 10 percent.2
Bray further announced that Respondent was working
on its retirement plan and anticipated that it would be put
into effect before the end of 1966. He also testified that
I Walter testified that he had originally spoken with Bray in October
1965 about this matter
2 This wage increase is not attacked by the General Counsel.
1077
immediately after this meeting, he repeated all of the
foregoing to two-named office girls who had been unable
to attend the two meetings. James Hughes, then assistant
plant manager, corroborated Banks, testifying that this
talk took place during the summer.
In October 1966, Banks spoke with the manager of its
bank in Los Angeles and arranged for the bank to handle
this plan under a trust deed arrangement. On November
3, employee William Walter, as he testified, sent a memo
to Goodrich, then plant manager of the Richmond plant.
This was captioned "Retirement Plan for Bray Oil Co."
and stated:
In October 1965 I was told that there would be a
retirement plan in a year. As far as I know now there
is no plan in effect. Would it be possible to obtain a
progress report on the retirement plan? Thank you-
This memo was referred to Banks in Los Angeles and
received by him on November 7. Banks told Goodrich to
advise Walter that the plan was in the mill and to sit tight.
A plan was finally executed on December 9, covering
all three installations of Respondent, and Ulric Bray an-
nounced it to the Los Angeles employees on that same
date; -according to Banks, these employees are not
represented by a labor organization and there is no
evidence of any organizational activity among them at
that time. As Banks put it, the document was prepared
several days earlier and December 9 was the earliest date
that everything could be signed by Respondent, its attor-
ney, and the trustee bank, and the plan was not ac-
celerated to coincide with the preelection period.
The announcement of the plan at Richmond was vari-
ously put at December 9, December 10, or a few days
after December 9. I find that December 10 was probably
the date, Bray having publicized it in Los Angeles at
December 9, with Banks present.
Banks testified that he announced the plan at
Richmond at two separate meetings of the respective
shifts on the same day with Goodrich and Hughes
present. He told the men that the plan was voluntary, that
they could join immediately with a December 1 effective
date or join at the beginning of any subsequent month.
Banks explained that it was a contributory plan with an
employee contribution matched by Respondent, made
available copies of the plan and answered questions. He
explained that Respondent had missed its target date of
the start of Respondent's fiscal year, November 1, but
that Respondent had kept its word to install it before the
end of 1966. Banks testified further that the Union was
not mentioned during this meeting, although he was
aware of the pending representation petition.3
The testimony for the General Counsel is far from con-
vincing. John Banuelos testified that Banks addressed the
employees late in November with both shifts present at
the same meeting; that the pension plan was discussed;
that the Union was discussed; and that copies of the
retirement plan were distributed. However, the an-
nouncement is dated December 9 and Banuelos was ap-
parently confusing Banks' address of approximately
December 10 with speeches by others on the merits of
unionization . Banuelos then placed this incident in late
November or early December but was unable to tell
whether Banks distributed the leaflets on the retirement
3 According to Hughes, Banks did refer to the Union at the meetings
but only in a sense secondary to the basic proposition of announcing the
retirement plan; he did not recall what was said about the Union
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plan before or after December 9. He also testified that he
first heard of the plan in Banks talk of December 9.
John Parks testified that at a meeting held about
December 10 Banks spoke about the Union and the
retirement plan. He conceded that Banks might have
discussed only the retirement plan on this occasion. As
noted, Parks testified that he had not heard of the retire-
ment plan prior to December 9 or 10, 1966.
Respondent argues that there is no showing by the
General Counsel that Banuelos and Parks were working
on the day in August when Bray announced the plan. And
Banks uncontrovertedly testified that he personally in-
formed two-named office clericals of the plan on the same
date in August; they were not called to testify herein.
While the General Counsel points to the fact that the
plan was made retroactive to December 1, I see no help
to him in this fact. Respondent announced that the plan,
a voluntary and contributory one, had to be effective at
the start of a month because of the contributory factor
and gave the employees a choice of December 1 or the
first of any ensuing month . And Respondent had
promised to install a plan before the end of the year.
The General Counsel further points to the fact that the
plan contemplated the selection of a committee to advise
the trustees when problems arose as to the disbursement
of funds. This committee had not been appointed as of the
date of the instant hearing . Banks explained that there
had been no need to appoint a committee because very
few employees had left Respondent and requested
withdrawal of their contributions. Moreover, Banks was
authorized by the plan to give instructions on such occa-
sions and had done precisely that.
I believe that the evidence by the General Counsel is
insufficient to overcome the heavy preponderance of the
evidence adduced by Respondent that the plan was con-
ceived long before the advent of the Union, announced in
August before the filing of the representation petition,
and installed at all three installations in December 1966,
without undue haste. I find that the plan was not adopted
and promulgated to impinge upon the freedom of choice
of employees of a labor organization in the impending
election and shall therefore recommend that this allega-
tion be dismissed.
C. The November Meetings
The General Counsel attacks certain remarks allegedly
made by Plant Manager William Goodrich and Associate
Plant Manager James Hughes to meetings of employees
in November 1966.
On direct examination , employee John Banuelos, testi-
fying for the General Counsel, was silent concerning this
topic presenting only testimony concerning the talks by
Banks. On cross-examination , he recalled a meeting
where Goodrich spoke to the employees, cautioned them
against solicitation for the Union during working time,
and made no promises of financial benefits for an anti-
union vote.
James Parks recalled two meetings addressed by
Banks . On cross-examination he, too, recalled a meeting
addressed by Goodrich, prior to the December 10 meet-
ing addressed by Banks. He testified that Goodrich said
Respondent would not interfere with the election and
made no promises of benefits in return for an antiunion
vote.
The General Counsel basically relies on the testimony
of Harold Burdick on direct examination that at a meeting
of the morning shift on or about November 16, 1966,
Hughes and Goodrich discussed the Union. They an-
nounced that it was up to the men to decide if they wanted
a union, that Respondent believed the employees "could
get along" without one and that "they could offer us the
same as the union could, and if not more, in the future."
On cross-examination, he admitted that the men were
told it was up to them to decide; that Respondent would
not interfere; that Respondent would not become in-
volved; that they could discuss the Union but not during
working time; that Respondent had tried to be fair in the
past and had paid good wages; that the employees could
expect the same kind of treatment in the future; and that
this policy would be carried out whether or not they were
unionized.
Hughes testified in behalf of Respondent that this
meeting was attended by eight swing shift employees and
was one of two held that day, the other with the morning
shift. He denied that he and Goodrich promised that con-
ditions of employment would be improved in any manner
in the future if the Union were not selected as the
representative of the employees. Goodrich and Hughes
did tell the employees that they had a right to select or re-
ject the Union, that there had been many improvements
in working conditions in the past and that there was no
reason why this should not continue, union or not.
Eliminating the chaff, the General Counsel perforce re-
lies on the phrase attributed to Goodrich by Burdick that
Respondent could offer the employees the same as the
Union in the future "and if not more." However, Bur-
dick's testimony on cross-examination substantially cor-
roborates that of Hughes that no promises of benefits
were made to the employees. I therefore credit the
testimony of Hughes herein. Moreover, even on its face,
I have doubts that this isolated four-word phrase con-
stitutes the type of unambiguous evidence necessary to
support a finding of a violation. I shall therefore recom-
mend that this allegation of the complaint be dismissed.
D. Unlawful Interrogation
The General Counsel here relies upon one conversa-
tion between employee John Banuelos and Hughes.
Respondent admits that a conversation took place but the
versions differ.
Banuelos placed this conversation after the second
meeting addressed by Banks on December 27 which is
discussed, infra; according to Banks, his second talk took
place 1 or 2 days before the election of December 29.
Banuelos testified that he and Hughes were "upstairs"
during the rainy season to discuss the repair of a leak. On
the way downstairs, Hughes asked what Banuelos
thought of the Union and Banuelos replied that he could
not really say at that time . Hughes mentioned that the
pension plan would take effect on January 1, 1967, and
asked what Banuelos thought about Respondent's wage
rates. Hughes went on to state that he considered
Respondent's wage structure to be good because it was
paying about the same wages as a neighboring interna-
tional oil company.
On cross-examination, Banuelos was uncertain
whether Hughes mentioned the Union in this conversa-
tion . And in his affidavit to the General Counsel, he
deposed that no one "from management ever talked to me
individually about the union ." He attempted to explain
this on the witness stand, testifying that Hughes did not
BRAY OIL COMPANY 1079
"ask" him about the Union but had "asked me more or
less what I thought about it." In his affidavit, he also
deposed that Hughes asked him 1 day prior to the elec-
tion while in the office what he thought about the Union
and that he, Banuelos, replied that he would like to have
one.
Hughes recalled that he and Banuelos were inspecting
the upstairs wall approximately December 10, after
Banks had held his first meeting with the employees and
announced the retirement plan.4- Hughes told Banuelos
that the plan was better than his anticipations. Banuelos
replied that this was fine but that he was more interested
in union representation in the hope of obtaining higher
wages. Hughes responded that Respondent's wages were
comparable to those of the nearby international oil com-
pany and other concerns in the area. He denied asking
Banuelos how he felt about the Union or how he would
vote in the election.
Respondent contends, and I agree, that this so-
phisticated and well represented employer, obviously
most circumspect in its speeches to employees during this
pre-election period, would hardly be apt to take the initia-
tive in interrogating one isolated employee. Moreover,
Hughes' story hangs together well and is substantially
corroborated by Banuelos who was less precise in his
testimony than Hughes. Finally, in the posture most
favorable to the General Counsel, this constitutes one
isolated and casual incident with one question asked in a
noncoercive setting. I shall, therefore, for the foregoing
considerations, recommend dismissal of this allegation of
the complaint. See N.L.R.B. v. Seamprufe, Inc., 382
F.2d 820 (C.A. 10).
E. The Speeches by Banks
The General Counsel alleges that in two meetings with
employees in December, Banks made statements which
contained veiled threats of economic reprisals to em-
ployees in the event the Union won the election. The first
meeting of December 10 has already been treated, with
respect to Banks' announcement of the retirement plan
and those findings are incorporated herein.
According to the complaint, Banks stated at the
December 10 meeting that the Union could not obtain in-
creased benefits for the employees; thatif the Union won
the election a strike would probably result; and that this
would lead to higher wages and the layoff of employees.
As will appear, Banks denied that the Union was men-
tioned at the December 10 meeting, but admitted that he
did discuss it at a second meeting held shortly before the
election of December 29.
Thus, according to Banuelos, who initially and errone-
ously placed this first meeting late in November, Banks
announced the pension plan and then discussed the
Union. Banks stated that Respondent was neither for nor
against a labor organization, but added that if the Union
did enter the picture, Respondent would eventually have
to cut down on its contracts and would have to terminate
employees because it would be forced to pay higher
wages.
On cross-examination, Banuelos referred to Banks
handing out copies of the retirement plan. As this plan
was dated December 9 and first released on that date,
Banuelos was manifestly in error as to the purported late
November date of the meeting. Banuelos later conceded,
consistent with the testimony of Banks, that Banks
"possibly could have" discussed the Union at the later
and not the first meeting. He agreed that Banks spoke
primarily on the retirement plan at the first meeting, going
into its provisions in some detail.
He conceded that Banks, apparently at the first meet-
ing, stated that if the Union won the election Respondent
would be required to bargain with the Union and that as
a result of this bargaining employees could obtain poorer,
identical, or improved working conditions.
Banks added that if as a result of negotiations Respond-
ent was paying higher wages than it could afford, or if
the Union was unable to obtain a favorable contract and
a strike was called, Respondent might not be able to ob-
tain United States Government contracts and that if it
lost these contracts, Respondent would have less work
and might have to lay off personnel.5
James Parks accurately placed the first meeting around
December 10. He testified that Banks stated to a meeting
of the day shift of approximately 206 that if the Union
won the election and demanded wages which Respondent
was unable to pay, the employees would probably go on
strike, that this would mean the loss of United States
Government contracts and that Respondent would be
forced to lay off employees and shut down the plant. He
did recall that Banks discussed and distributed copies of
the retirement plan.
On cross-examination, he conceded that the Union
might not have been mentioned until the second meeting,
but his best recollection was that it was raised at both. He
also testified that at one or the other of the two meetings
Banks stated that if the Union won the election, it would
have to bargain with Respondent; that any wage in-
creases would stem from negotiations and mutual agree-
ment; that if the demands were so high that the parties did
not agree, the Union would probably call a strike; that if
the strike caused Respondent to be unable to fulfill its
contracts, Respondent could lose some of these con-
tracts; and that Respondent might then lose some of its
customers such as the United States Government.
The General Counsel also relies on the testimony of
Banks that he did not know whether the contracts had
cancellation clauses in the event that Respondent could
not fulfill them.7
As for the second meeting, Banuelos initially placed it
both about 1 week and about several weeks after the first
meeting and claimed it was in essence a repetition of the
earlier meeting. Parks variously recalled that Banks
spoke to the day shift the day before or a couple of days
before the election. Banks again referred to the retirement
plan "and said something about the union, they couldn't
get us nothing" because the Union would bargain for
working conditions and it was up to Respondent to grant
these benefits.
4 Irrespective of the precise date, both Banuelos and Hughes agree that
the talk followed the announcement of the retirement plan.
5 The major portion of Respondent's business consists of Government
contracts, almost all of which are military items destined for delivery to
Viet Nam.
8 Banuelos testified that both shifts attended the same meeting in
November
' This I consider•nonpersuasive. Assuming the absence of a cancella-
tion clause, if a party to a contract breaches it by nonfulfillment and if the
other party urgently needs these materials for its Armed Forces, obvi-
ously they will be obtained elsewhere and rapidly so.
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Actually, the testimony of Banuelos and Parks sup-
ports that of Banks. As noted, Banks testified that the
first meeting was limited to a detailed explanation of the
retirement plan and there was no reference to the Union.
At the second meeting, 1 or 2 days before the election
of December 29, Banks initially reported to the assem-
blage that 15 employees had signed up for the retirement
plan and explained further details thereof. He denied stat-
ing that the Union could not obtain increased benefits;
that a strike would probably result in the event of
unionization ; that such a strike would cause Respondent
to increase wages and lay off employees; that Respondent
would require the Union to bargain for each benefit the
employees already enjoyed; or that selection of the Union
would result in reduced employee benefits.
He testified that he pointed to the retirement.plan and
other existing fringe benefits in addition to fair wages.
Banks explained that a purported claim by the Union of
excessive profits by Respondent was untrue. He ex-
plained that a union victory in the election would bring
about no immediate changes because Respondent then in-
curred the obligation to bargain in good faith concerning
conditions of employment and that Respondent would
undertake this. He stated that the employees might end
up with conditions superior to, inferior to, or identical
with those they then enjoyed.
He explained that if the Union made demands which
Respondent considered excessive and was therefore un-
willing to grant , the Union had two alternatives (1) to
abandon its demands or (2) to strike in support thereof. In
the event of such a strike, the strikers would not be eligi-
ble for unemployment compensation. Further, he drew
attention to Respondent's substantial contracts with the
United States Government which involved products
needed in Viet Nam. If Respondent could not meet its
contract dates for deliveries, the Government might can-
cel its contracts and place its business elsewhere, this
leading to a reduction in force.
He pointed out that the employees, by staying on the
job and paying attention to their duties, could expect to
attain the normal rate of $2.82 per hour; no contention is
made that this was not the normal journeyman rate.
The Union claims that Banks' reference to the loss of
unemployment compensation to strikers is not correct
because, despite a strike, an employee not joining the
strike who is deprived of work would be entitled to
benefits in California. The simple answer is that Banks
was obviously tailoring his remarks to the economic con-
sequences to a striker of striking and was not making the
subtle distinction applicable to a nonstriker as urged by
the Union.
Actually, it makes little difference whether Banks
referred to the Union at both meetings or only at the
second. His version, obviously that of one counseled as
to the limits of protected free speech in an election con-
test, hangs together and makes sense. While he came
close to the line, his version was clear and reflects solely
comments within that limit. His remarks were not un-
truthful, but were rather predictions of both the sunny
and shadowy side of the issue . One notes further that
Respondent had undertaken some contracts at a break-
even price in order to maintain its volume of business.
The testimony of Banuelos and Parks on cross-examina-
tion does depart substantially from their testimony on
direct and supports that of Banks. I have therefore
credited Banks' version and shall recommend that this al-
legation of the complaint be dismissed.
F. The Letters
The General Counsel contends that four letters mailed
to each employee by Plant Manager Goodrich on
December 20, 22, 24, and 26, 1966, contained statements
which warrant a finding of interference, restraint, and
coercion.
Turning to the December 20 letter, the General Coun-
sel alleges that it advised employees that if the Union
were selected Respondent would no longer maintain a
friendly attitude to the employees; that they did not need
a union to represent them; and that selection of the Union
was futile because it could not provide job security, better
wages, or improved working conditions. This letter ap-
pears in its entirety in Appendix A attached hereto and
does not go as far as the General Counsel contends.
In relevant part, it states that the election would decide
whether "we shall continue to operate in the future, as we
have in the past, on a friendly person-to-person basis, or
whether all of your future dealings with me [Goodrich]
and the company must be through the union." This
presents the third party concept and is not a statement
that Respondent would no longer be friendly to its em-
ployees.
As for the allegation that the employees did not need
the Union to represent them, the letter states rather that
"I [Goodrich ] sincerely believe that a union is not
needed here ." I see nothing amiss here and more particu-
larly, no promise of benefit or threat of reprisal.
As for the allegation that selection of the Union was a
futile act, the letter states rather "And remember this - no
union can provide you with job security, better wages, or
improved working conditions. All any union can do is
deal with the company on behalf of all employees as a
group. In other words, do your talking for you." This also
is factual and states only that changes in working condi-
tions must result from collective bargaining if the Union
entered the picture. It is not a fiat that collective bargain-
ing would be fruitless and futile.
The General Counsel further alleges that the
December 22 letter, appearing below in Appendix B,
contains statements that if the Union were selected, bar-
gaining would begin without reference to existing terms
and conditions of employment; that the Union would
have to bargain to achieve each existing employment
benefit; and that selection of the Union might result in the
Respondent providing less favorable terms and condi-
tions of employment.
Here again the letter does not go so far, although it is
rather close to the line. In relevant part, the General
Counsel relies on the following three paragraphs.
I must honestly tell you that if the union wins the
election, the company does not have to start negotia-
tions for benefits over and above those you now
receive. The Company could and would start bar-
gaining from scratch. This means that every word in
the union contract would have to be negotiated.
Every job classification, qualification, and pay rate
would have to be agreed upon. The union may
properly be required to bargain for every benefit.
You should also know that the law does not com-
pel us to agree to the union's proposal or to make
concessions. The law only requires that both parties
negotiate in good faith. If the union and the Company
are unable to reach agreement as a result of negotia-
tions, then, of course, there would be no contract.
If, on the other hand, we are able to agree upon the
terms of a contract, it would be only on the basis of
BRAY OIL COMPANY 1081
voluntary mutual agreement which will permit the
company to remain competitive in its business. No
one, not the company and certainly not the union,
can say what would be in that contract. You might
get less than you now receive, you could get more, or
you could get the same. You would not necessarily
improve your wages or working conditions any more
than you would necessarily lose benefits as a result
of collective bargaining.
I see nothing therein which reflects a promise of benefit
or threat of reprisal. In essence, Respondent adverted to
the theory that collective bargaining is a two-way street.
While bargaining for inferior conditions of employment
may be rare, it is theoretically permissible and not unlaw-
ful.
As for the December 24 letter, set forth in Appendix
C, the General Counsel contends that Respondent said
selection of the Union would result in less job security
and that there would be a strike.
Here again, in relevant part, Goodrich pointed out only
that job security was vital to the worker, and that the suc-
cess of the Company was the key to job security. He then
stated that "A union in itself is no guarantee of security,
because no union has the ability to provide work or main-
tain steady employment for its members." As for the
claim that there would be a strike, Goodrich stated:
We think you will agree that wherever one is faced
with the possibility of loss of work as a result of
strikes, picket lines and sympathy strikes, a feeling
of security is difficult to achieve. This is not to say
that if the union should be elected it would necessari-
ly or automatically call a strike. The fact of the
matter is, however, that if the union wins the election
and insists on making unreasonable demands that we
are unable or unwilling to grant, then the union must
either back down on the promises it may have made
to you, or do what is not unusual for unions to do;
namely, call you out on strike to back up its de-
mands.
Frankly, we hope that a strike will never occur
here. We believe that strikes work a hardship on
everyone except the union and those who live off it.
The employees and the families of those who are
called out on strike, together with the Company, are
the ones who suffer. Those who can least afford it are
hurt the most. So why run the risk? Remember,
strikes can and do happen wherever there is a union,
so why'take a chance on changing what we believe
has been a pleasant, successful relationship? Why
put your future and security in the hands of union
business agents who have no real stake in the success
of the Company?
At most, Goodrich explained the possibility of a strike
if the Union made demands which Respondent was un-
able or unwilling to grant. This is not a statement coer-
cive of Section 7 rights but rather an assessment of the
realities of the situation. And, as noted, Respondent
had undertaken a number of contracts at a break-even
price in order to maintain its volume of business.
As for the December 26 letter, appearing in Appendix
D, the General Counsel contends that Respondent
therein stated that selection of the Union would create a
barrier between the employees and Respondent, which in
turn would prevent friendly relations, and that rejection
of the Union would result in increased employee benefits
and improved conditions of employment.
The letter discloses rather that Goodrich proclaimed
his personal concern for the welfare of each family on the
payroll. He stated that by working together the Company
had achieved success and that he disliked the imposition-
of "barriers which could cause us to lose the close feeling
of friendship and confidence which have meant so much
to me." But, as Respondent argues, this does not con-
stitute a statement that the future relationship would not
be friendly.
As for the claim that rejection of the Union would
result in improved working conditions, the letter does not
so state. Therein, Goodrich drew attention to a specified
and lengthy list of improvements in working conditions
and pointed out that the men had not needed a labor or-
ganization to obtain these. In essence, he drew attention
to past progress, explained that Respondent was forbid-
den to list its future plans and promise benefits in a
preelection context, and implied that past progress in
working conditions was a reliable indication of what
might happen in the future.
In view of the foregoing considerations, I recommend
that this allegation of the complaint be dismissed."
CONCLUSIONS OF LAW
1. Oil, Chemical & Atomic Workers, Local 1-561
(Richmond), Oil, Chemical & Atomic Workers Interna-
tional Union, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
2. The operations of Respondent, David C. Banks,
Ulric B. Bray, and Evelyn Bray, Partners, d/b/a Bray Oil
Company affect commerce within the meaning of Section
2(6) and (7) of the Act.
3. Respondent has not engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
RECOMMENDED ORDER
In view of the foregoing findings of fact and conclu-
sions of law, it is recommended that the complaint be
dismissed in its entirety and that the objections to the
election be overruled.
8 The General Counsel does not urge that the rules of evidence be
relaxed in treating with the objections to the election It therefore
becomes necessary to consider donning a second hat for that purpose. It
is further noted that the Union may, as a matter of right, enjoy another
election in the near future if it so desires.
APPENDIX A
December 20, 1966
We are writing this letter to you at your home in order
to notify you officially of the coming union election and
the fact that you are eligible to vote.
As recently stated in a plant bulletin, this election will
be by secret balloting, conducted by the National Labor
Relations Board. The balloting will be held here at the
plant on Thursday, December 29, 1966, between the
hours of 3:15 p.m. and 3:45 p.m. The National Labor
Relations Board does not permit absentee balloting, so if
you are not scheduled to work, are on vacation, off sick,
or absent for any reason, you must come into the plant
and cast your ballot in person in order to vote.
You undoubtedly know that the O.C.A.W. Union is
trying to win the exclusive right to represent you and your
fellow employees and thereby add the monthly dues of
about 34 new members to its treasury.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The results of this election will decide at once whether
we shall continue to operate in the future , as we have in
the past , on a friendly person -to-person basis, or whether
all of your future dealings with me and the company must
be through the union . Because the results will affect the
future of all of us , it is extremely important that you vote
in this election . Remember , the results will be decided by
the majority of those voting - not the majority of those
eligible to vote . For example , although there are 34 em-
ployees eligible to vote , if only 11 of these eligible ac-
tually vote, as few as 6 of those voting could decide the
future of all of us here at the Bray Oil Company
Richmond Plant.
Fortunately the union is not going to make this deci-
sion . You and the other men in the plant will decide by
secret ballot whether you want to turn over to the union
all of your rights to deal with me and the company. You
and you alone will decide whether to put your future and
your security in the hands of paid union organizers who
do not depend upon this company for their livelihood and
who have nothing at stake.
Before you vote , however , we ask you to consider all
the facts- the whole picture. I am confident that, when
you weigh all the facts and the past records, you will vote
"NO"
I sincerely believe that a union is not needed here, and
I would not be human if I didn 't feel that a vote for "NO"
union is also a vote of confidence in yourself and in me. I
further believe that my responsibility during the next nine
days is to do my best to present the facts honestly. In this
connection I urge you to bring any questions you may
have to my attention personally or to the attention of Jim
Hughes or Bill Dotson . We don 't pretend to have all the
answers , but we will get truthful replies to any of your
specific inquiries.
Your responsibility will be to think this matter through
carefully and to consider all aspects of this important
issue - and then decide what is best for you and your
family.
Although many responsible union officials have recog-
nized the danger of making rash promises concerning sup-
posed benefits to be obtained for union members, we
know that some union campaigners continue to make
whatever promises they feel are necessary in order to win
this election . We don 't intend to make any promises,
since the law says we are not now permitted even to
discuss with you our future plans, solely because a union
has gotten into the act.
We do ask you , however , to take a close look at any
promise which might be made by a union organizer to see
what , if anything , it is worth . Ask the union organizer
how the union intends to force the company to make good
any such promises if we are unable or unwilling to give
what they predict we will give . Obviously, any such
promises aren 't worth your vote.
P.S. And remember this-NO union can provide you
with job security , better wages , or improved working con-
ditions. All any union can do is deal with the company on
behalf of all employees as a group. In other words,
do your talking for you.
APPENDIX B
December 22, 1966
In my last letter , I said "no union can provide you with
job security , better wages , or improved working condi-
tions." This statement was made because there seems to
be considerable misunderstanding among some of the
men about what would happen if the union won the elec-
tion . This confusion is understandable in view of the
misleading statements made by the union during the past
weeks - statements based on meaningless comparisons of
wages and benefits paid by companies completely dif-
ferent from ours - in an attempt to make you believe that
if the union wins, our company would have to meet the
most favorable benefits from all union contracts , plus the
superior benefits you now receive.
We think you will recognize that Bray Oil Company al-
ready offers wages and other benefits which , for com-
parable skills, are among the best available from those
competing companies of our same general size doing the
same type of specialized work . After all, it is not proper
to compare us with large publicly owned oil corporations
or basic heavy chemical manufacturers.
I must honestly tell you that if the union wins th{, elec-
tion , the company does not have to start negotiations for
benefits over and above those you now receive. The
Company could and would start bargaining from scratch.
This means that every word in the union contract would
have to be negotiated . Every job classification , qualifica-
tion , and pay rate would have to be agreed upon. The
union may properly be required to bargain for every
benefit.
You should also know that the law does not compel us
to agree to the union 's proposals or to make concessions.
The law only requires that both parties negotiate in good
faith . If the union and the Company are unable to reach
agreement as a result of negotiations , then , of course,
there would be no contract.
If, on the other hand , we are able to agree upon the
terms of a contract, it would be only on the basis of volun-
tary mutual agreement which will permit the company to
remain competitive in its business . No one, not the com-
pany and certainly not the union, can say what would be
in that contract . You might get less than you now receive
you could get more , or you could get the same. You
would not necessarily improve your wages or working
conditions any more than you would necessarily lose
benefits as a result of collective bargaining.
If you men were being mistreated or forced to work for
substandard wages or under inferior working conditions,
then it could fairly be said that you "have nothing to
lose". However, you know this is not the case here in our
company. An honest appraisal will convince you that
your skills and efforts are well compensated by fair wages
with steady advancement , a broad range of valuable
benefits, and a congenial and friendly working at-
mosphere . So why gamble on the uncertainties and pit-
falls of union representation and collective bargaining?
APPENDIX C
December 24, 1966
In spite of all that you may hear, the real question to be
decided in the coming election is whether you, as an
individual, are better off with or without a union . Taking
into consideration all things, we believe you would be
much wiser to vote for "NO" union.
One of the things that concern all of us today is securi-
ty, and job security is one of the most vital parts of overall
security. It is fundamental that , as an individual, your
best assurance of steady employment , periodic wage in-
BRAY OIL COMPANY 1083
creases, and improved benefits is the success of your
Company. The contribution made by you, your fellow
workers, and the management will largely determine this
success. A union in itself is no guarantee of security,
because no union has the ability to provide work or main-
tain steady employment for its members.
Let's take alook at the history and progress of Bray Oil
Company in providing job security for its employees.
When the Richmond Plant was opened in 1956 we had
contract workavailable less than half time, on a stop and
start basis. Things were pretty difficult for the first few
years, but we still managed to furnish steady income for
our staff. Since that time, we have developed new
products and improved methods so that during the last
year we have not had fewer than 21 employees working
steadily, and we have frequently operated 2 or 3 produc-
tion lines on multiple shifts, using some additional tempo-
rary help.
Our Government contract business, which represents
by far the largest portion of our sales, is secured only by
successful direct competitive bidding against the most ef-
ficient manufacturers in the nation. We can all be justly
proud of our record of providing superior products at
steadily decreasing prices, (which are really limited by
our competition) with profit margins restricted to a max-
imum of ten percent (before taxes) by the Government
Renegotiation' Regulations, yet with steadily increasing
volume. Only, with your help, has the Company, through
prudent financial management been able to grow by rein-
vesting in the business its net profits, which have been
consistently less than five percent of sales. This growth
and stability are real job security, and we've worked
together for it during ten years without any help from a
union.
We think you will agree that wherever one is faced with
the possibility of loss of work as a result of strikes, picket
lines and sympathy strikes, a feeling of security is difficult
to achieve. This is not to say that if the union should be
elected it would necessarily or automatically call a strike.
The fact of the matter is, however, that if the union wins
the election and insists on making unreasonable demands
that we are unable or unwilling to grant, then the union
must either back down on the promises it may have made
to you, or do what is not unusual for unions to do; name-
ly, call you out on strike to back up its demands.
Frankly, we hope that a strike will never occur here.
We believe that strikes work a hardship on everyone ex-
cept the union and those who live off it. The employees
and the families of those who are called out on strike,
together with the Company, are the ones who suffer.
Those who can least afford it are hurt the most. So why
run the risk? Remember, strikes can and do happen wher-
ever there is a union, so why take a chance on changing
what we believe has been a pleasant, successful relation-
ship? Why put your future and security in the hands of
union business agents who have no real stake in the suc-
cess of the Company?
APPENDIX D
December 26, 1966
On Thursday you will vote in the N.L.R.B. election. The
decision you will make will decide your future and the fu-
ture of the Company.
Unfortunately, some of the union representatives, those
who might represent you later in dealing with the com-
pany, have tried to confuse and influence you with unsup-
ported promises, misleading comparisons and outright
misstatements of fact.
We have made no promises. We have tried only to
present all the facts and point out the real worth of your
working conditions, your pay and your fringe benefits as
compared with similar companies in our line of business.
We respect your intelligence and your judgment. We are
sure that if you know the whole truth about what is at
stake in this election, you will recognize that, without a
union you have done and can do better in the long run at
Bray Oil Company than at any other Company, large or
small, in this area.
We think we have succeeded in providing all of our em-
ployees with fair, steadily improving wages as well as a
solid, comprehensive and well-balanced set of employ-
ment benefits well suited to the steady kind of employee
we need in our business. Knowing these facts and our
past record of progress, we rely on your common sense to
act for the common good by voting "NO" union.
What about a look to the future? You all know that I have
always tried my level-best to keep you posted on develop-
ments in the Company and our plans for the future. You
may be disappointed that I have not told you the outlook
for 1967 and what plans the Company has for the years to
come. Believe me I would have liked nothing better than
to take you into my confidence, because I think you have
an absolute right to know about these matters. BUT THE
LAW SAYS WE CAN NOT DISCUSS THESE
THINGS WITH YOU BECAUSE A UNION HAS
GOTTEN INTO THE ACT. You see, once the union
becomes involved we cannot say anything that can be
considered as a promise or an offer of improvement or
benefit. It is unfortunate ` that this barrier should arise
between us, but it is one of the things that happens when
a union enters the scene.
Even though we are nor prohibited by law from
discussing our future plans with you, we are not ashamed
to discuss our past record. On the basis of this record and
an honest look-see at what exists at other comparable
places, the undeniable conclusion is that YOU HAVE
NOT NEEDED A UNION at Bray Oil Company to ob-
tain:
Fair Wages with Regular Increases
(6 blanket raises in the last 9 years)
Shift Premium for Night Work
Christmas Bonus (10%) now Guaranteed and In-
cluded in Regular Wages
Vacation Plan, ranging up to 4 weeks in 20 years
Eight Paid Holidays, with
Saturday Holidays observed on Friday
Sunday Holidays observed on Monday
Sick Pay Plan, 5 full days per year, cumulative to 25
days, and effective on the first day sick
Medical Insurance for Employees and Dependents
- one of the most beneficial group plans now carried
by Blue Cross, including:
120 Days of Full Hospital care (3 bed ward)
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Full cost of Additional Hospital Services
Outpatient Surgical and Emergency Accident
care
$50 Maternity Benefit
$500 Surgical Fee Schedule, plus Assistant Sur-
geon and Anesthetist
Doctors Visit in hospital
Ambulance Fees
$300 Accident Benefit without any deductible
$10,000 Extended Benefits (Major Medical
Coverage) on 80/20 basis after $100 deductible
per year
Company pays at least 50% of premium for
either single employee or family coverage
Employee premium is only $4.65 (single) or
$13.53 (family) per month
$2,500 Life Insurance with AD&D (Double In-
demnity), Premium completely paid by Company
Retirement Plan, where company contributes an ad-
ditional 4% to match your 4% wage contribution,
the money to be invested in a Trust Fund (Bank
of America) for growth and safety until needed
for Retirement, Disability, or Death
Emergency Loans to Employees, up to $100 free of
interest charges
U. S. Savings Bonds for Long Time Employees (10
years and over)
Improvements in Working Conditions over the years
and above all,
A Congenial and Friendly Place to Work, where
each man's work is appreciated and where an
understanding and helping hand is always ex-
tended to those who need it.
We are sure that the things you have a right to want -a
better job in a better Company-can best be accom-
plished if you vote "NO" on Thursday. Working together
we have achieved a very successful past - have a very
promising future - let's not change our pattern of success.
Vote as your conscience and intelligence tell you -but be
sure to vote!
In conclusion, let me be personal for a moment. This
could be the last letter that I can write you as one friend
to another. Ever since the Richmond Plant has been
operating I have felt in my heart a deep and sincere
responsibility for the welfare of every family represented
on our payroll. You have cast your lot with us in the past
and I have done my best to earn your confidence. Work-
ing together, we have achieved success which is admired
by everyone who knows about our Company. You and I
have worked together to make this a good, happy, and
profitable place to work. Now, I would hate to see any of
this lost. Most of all, I would hate to see barriers put up
between you and me-barriers which could cause us to
lose the close feeling of friendship and confidence which
have meant so much to me. We all need the satisfaction
and flexibility which come only from a complete mutual
understanding. Therefore, I urge you most sincerely to
vote "NO", because I know as surely as anything that
you and I, working together, will give to you and your
loved ones the happiest, most secure, and best future.
The entire management joins me in expressing my
deepest appreciation for our east association and friend-
ship, and in sending you my most sincere best wishes for
1967 and the future of you and your family.