Coors Porcelain Co.

National Labor Relations Board - Board Decisions

May 25, 1966

158 N.L.R.B. 1108 (N.L.R.B. 1966)

1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threaten , coerce, or restrain the above named employers or any other person
engaged in commerce or an industry affecting commerce where, in either case,
an object thereof is to force or require the above -named employers or any such
other person to cease doing business with Ralph H McClain , Weldon B Royse
Masonry and Waterproofing Co, Inc , or any other person
CARPENTERS DISTRICT COUNCIL OF KANSAS CITY
AND VICINITY , AFL-CIO,
Labor Organization
Dated------------------- By---------------------------- --------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material
If members have any question concerning this notice or compliance with its pro
visions, they may communicate directly with the Boards Regional Office, 1200
Rialto Building , 906 Grand Avenue, Kansas City, Missouri , Telephone No 221-2712
Coors Porcelain Company and International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of America,
Local No 452, Petitioner Case No 27-RC-2911 May 25, 1966
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
Pursuant to a stipulation for certification upon consent election,
an election by secret ballot was conducted on January 26, 1966, under
the direction and supervision of the Regional Director for Region 27
among the employees in the stipulated unit At the conclusion of
the election, the parties weie furnished with a tally of ballots show-
ing that of approximately 736 eligible voters, 687 cast valid ballots,
of which 177 were foi, and 501 were against, the Petitioner, and 9 were
challenged The challenged ballots were insufficient in number to
affect the results of the election Thereafter, the Petitioner filed
timely objections to the conduct of the election
In accordance with the National Labor Relations Board Rules and
Regulations, Series 8, as amended, the Regional Director conducted
an investigation, and on March 10, 1966, issued and duly served on
the parties his report on objections in which he recommended sus-
taining the objections pertaining to the Employer's campaign litera-
ture distributed to employees during the critical period Accord-
ingly, the Regional Director further recommended that the election
be set aside tnd that a second election be directed Thereafter, the
Employer filed timely exceptions to the Regional Director's report
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Brown, Fanning, and Zagoria]
158 NLRB No 109
COORS PORCELAIN COMPANY 1109
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act and it will effectuate the purposes of the Act to assert juris-
diction herein.
2. The Petitioner is a labor organization claiming to represent cer-
tain employees of the Employer.
3. A question affecting commerce exists concerning the representa=
tion of the employees of the Employer within the meaning of Sections
9(c) (1) and 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the following employees
constitute a unit appropriate for the purpose of collective bargaining
within the meaning of Section 9 (b) of the Act : '
All employees in Employer's ceramic and metal products plant,
including production planning department employees, plant clerical
employees, process and quality control department employees, research
department employees, and manufacturing engineering development
employees, but excluding draftsmen, office clerical employees, alu-
minum office employees, sales department employees, design engi-
neering department employees (except tool crib attendants), in-
dustrial engineering department employees, estimating department
employees, guards, professional employees, and supervisors as defined
in the Act.
5. The Board has considered the Regional Director's report and the
exceptions thereto and makes the following findings with respect to
the Petitioner's objections. These concern a series of bulletins that
were mailed or distributed -to the employees by the Employer during
the critical period before the election.
In the instant case the Regional Director explicitly found that the
Employer's bulletins did not contain any threats or unlawful induce-
ments. Nevertheless, he found that the employees who read the Em-
ployer's propaganda "could only conclude that the unions have had,
and will continue to have, difficulties, including strikes, with the
Employer because of his `unwillingness to accord the Union a legiti-
mate role in representing employees.' 11 The Employer contends that'
its circulars were within the limits of permissible campaign propa-
ganda. We find merit in this contention.
In determining whether campaign statements interfered with
employee free choice in representation elections, the Board is some-
times presented with difficult issues of fact. Frequently, the conclu-
sion will require the delicate balancing of the rights of individuals
and the parties involved to express themselves freely on the economic
issues before the voters, against the rights of the latter to be free of
coercive influence, however subtle, in the exercise of their franchise.
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In this case, both the Employer and Union have engaged in distri-
bution of campaign literature. The Employer's initial bulletins on
January 5 and 12 stressed the importance of voting in the election and
then reminded its employees of the plant's previous bargaining his-
tory between 1955 and 1960. The Employer referred to prior "trouble
and suffering" and pointed out that while the Company did negoti-
ate and sign several contracts in that period, two strikes occurred in
which many of the striking employees had lost their jobs as a result
of having been permanently replaced.
By some of its communications the Employer responded to the
Union's assertions. Thus, some union literature claimed that a union
contract brings greater job security and assures to employees continu-
ity of existing wages and other conditions of employment. The
Employer in its own bulletins of January 18 and 19 replied that the
"only one who can give you job security is the one who signs your
pay checks," pointing out that the selection of a union did not save
jobs when a number of local employers who had been unionized in the
past had shut down their plants. It further noted that employees
who engage in an economic strike can be and have been permanently
replaced, as shown by the 1963 strike at the nearby plant of one of its
suppliers in which 24 of 46 employees had lost their jobs as a result of
such action. In a subsequent bulletin entitled "THE UNION AS A
CURE ALL," the Employer stated that there is a wide gap between
union promises and accomplishments, and illustrated this point by
comparing past promises of unions with related provisions in their
collective-bargaining agreements concerning such matters as vaca-
tions, shift or job preference, promotions, distribution of overtime,
and the requirement of employees to do various work assignments.
One union bulletin declared that there had not been a strike in 18
years by the Teamsters in the Denver area, and the Company coun-
tered with its own bulletin entitled "THE TEAMSTERS' RECORD
IN DENVER" in which it labeled this representation as a "Half
Truth" and pointed out four relatively recent instances where the
Teamsters had conducted strikes in the area. In other releases the
Employer also made numerous references to other previous strikes,
many of which did not involve the Petitioner herein.
As is apparent from the above summary, the Employer waged an
aggressive campaign against selection by its employees of the Peti-
tioner as their bargaining representative. But its statements were
factual in character and were relevant to the election issues before the
employees. Further, while many of the Employer's assertions were
strongly antiunion in character and were not limited to merely
answering prounion propaganda, we believe that the employees could
evaluate them as partisan electioneering.
COORS PORCELAIN COMPANY 1111
After reading the Employer's propaganda in its entirety, we, un-
like the Regional Director, do not find that the employees could rea-
sonably conclude that the selection of a union was necessarily an act
of futility. Contrary to the Regional Director, we find no indication
of unwillingness by the Employer to accord unions a legitimate role
in representing employees. Rather, the Employer in 'one bulletin
stated unequivocally that if the Union won it would bargain with it
in good faith, and in another, that between 1955 and 1960 it had ne-
gotiated and signed several collective-bargaining agreements. Con-
sidering all the facts, we are not persuaded that the Employer's
remarks exceeded the bounds of fair comment or that they otherwise
impaired the employees' free exercise of choice in the election., We
therefore dismiss the Petitioner's objections.
As the tally of ballots shows that the Petitioner has not received a
majority of the valid votes cast in the election, and as the challenged
ballots pare insufficient in number to affect the results of the election,
we shall certify the results of the election.
[The Board certified that a majority of the valid votes was not
cast for International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Local No. 452, and that said
labor organization is not the exclusive representative of the employees
in the appropriate unit.]
MEMBER BROWN, dissenting :
I would adopt the Regional Director's finding that the Employer's
preelection propaganda instilled in the employees the fear of inevit-
able strikes, unemployment, and other trouble at the plant and that
the Employer thereby interfered with the employees' free choice in
the election.
I fully agree with my colleagues that the Employer has a right to
inform its employees of the 'advantages `and disadvantages of unions
and of joining them. Although acknowledging that such information
must be imparted in a noncoercive manner, my colleagues character-
ize the Employer's repeated efforts to link unionism with strikes and
loss of employment as merely "partisan electioneering." But such
characterization ignores the obvious coercive impact inherent in the
campaign propaganda. Thus, the Employer's initial bulletins on
January 5 and 12 stressed "the trouble and suffering" that had oc-
curred at the plaint between 1955 and 1960, when the employees had
been represented by two unions (neither of which is involved herein).
The Employer appealed to the employees' fears of economic harm,
i See Universal Electric Company, 150 NLRB 1101; American Greeting Corporation,
146 NLRB 1440.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and vividly reminded them of two strikes that had occurred at the
plant during that prior period of union recognition, emphasizing
repeatedly economic strikes both here and at other plants could and
did result in the loss of jobs and that many employees who were
without pay during those strikes at Coors lost their automobiles, tele-
visions, refrigerators, and other articles purchased on credit. By its
assertion that the settlements reached at the end of these strikes were
based on the company offers that had been made prior to their incep-
tion, the Employer indicated that employee efforts in both Coors'
strikes were complete failures. Ina subsequent bulletin, the Employer
also argued that the current situation was no different than it had
been, as shown by the fact that only 2 years previously a strike had
occurred at a nearby plant of one of its customers. Although the
Petitioner herein was not involved in that strike, the Employer none-
theless stressed the fact that at the strike's termination, 24 out of
46 striking employees were without jobs as a result of having been
replaced.
In other campaign literature entitled "JOB SECURITY," the
Employer indicated that "[j ] ob security means a steady job with as
few layoffs as possible," and again attempted to capitalize on incidents
in which the Petitioner was not involved. Thus, it implied that union
organization and plant closure were closely related by stating:
Ask the employees who used to work at Heckethorne Manufac-
turing Co. in Littleton, what job security the Automobile Work-
ers Union gave them when Heckethorne Manufacturing Co.
closed its Littleton plant in 1957.
Ask the more than 5,000 employees who were laid off at Martin
Company near Littleton, what job security the Automobile
Workers Union gave them.
Ask the employees who used to work for U.S. Foundries in
Denver, what job security the Molders Union gave them when
U.S. Foundries closed its plant about a year ago and went into
bankruptcy.
Ask the 30,000 employees at Convair in San Diego who had
been represented by the Machinists Union for many, many years,
what job security the Machinists Union gave them when Convair
closed its plant in San Diego last year. Ask the 6,000 employees
at Studebaker what job security the Automobile Workers Union
gave them when Studebaker closed its plant in South Bend about
a year ago.
This equating of union representation with job insecurity was fur-
ther underscored by the Employer's final distriibutions, in which it
MERRILL AXLE AND WHEEL SERVICE 1113
asked the employees to look at their jobs and their present favorable
working conditions and then stated "[b]y voting 'NO', you will be
choosing the path of continued labor peace" and "If you don't want
CONSTANT UNCERTAINTY - VOTE 'NO'."
Evaluating the Employer's campaign propaganda in its entirety,
I am compelled to conclude that the employees could only construe
these `communications as a means of letting them know that harmful
consequences would necessarily follow with the advent of the Union.
Clearly, the central theme of the Employer's propaganda was that
selection of a union could only bring the employees strikes, loss of
jobs, troubles, and uncertainty. While some of the Employer's com-
ments were purportedly made in response to prior union propaganda,
even these were found in bulletins where the Employer's central
theme of resultant harm was so predominant that it could only
serve to intensify and heighten employees' fears of dire consequences.
By repeatedly emphasizing this theme, the Employer did more than
simply answer prior propaganda.2 Rather, it had undertaken a
campaign geared to inflaming fears of strike activity and job loss,
and thereby created an atmosphere in which an uncoerced vote could
not be cast.3 Sanctioning the Employer's conduct herein can only
have the effect of undercutting and precluding a free and informed
vote. Accordingly, I would direct the Regional Director to hold
another election.
a Accord, Storkline Corporation, 142 NLRB 875.
See my dissenting opinions in Universal Electric Company, supra, and in American
Greeting Corporation, supra at 1445.
Marcellus S. Merrill and Geraldine R. Merrill , co-partners, d/b/a
Merrill Axle and Wheel Service ; and Marcellus S. Merrill and
Geraldine R. Merrill, co-partners , d/b/a Merrill Engineering
Laboratories and International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Local
Union No. 775. Case No. ?7-CA.-1834. May 26, 1966
DECISION AND ORDER
On February 10, 1966, Trial Examiner Martin S. Bennett issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent, Marcellus S. Merrill and Geraldine R. Merrill, co-partners,
d/b/a Merrill Axle and Wheel Service had engaged in and was en-
gaging in certain unfair labor practices within the meaning of the
National Labor Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain affirmative action, as
158 NLRB No. 107.