Dart Container Of Michigan

National Labor Relations Board - Board Decisions

Dec 31, 1985

277 N.L.R.B. 1369 (N.L.R.B. 1985)

DART CONTAINER 1369
Dart Container of California , a Wholly Owned Sub-
sidiary of Dart Container of Michigan and
Wholesale Delivery Drivers & Salesmen Local
848, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America, Petitioner . Case 21-RC-17455
31 December 1985
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
The National Labor Relations Board , by a three-
member panel , has considered objections to an
election held 19 September 1984 and the Acting
Regional Director's report recommending disposi-
tion of them . The election was conducted pursuant
to a Stipulated Election Agreement . The tally of
ballots shows 99 for and 55 against the Petitioner
with 1 nondeterminative challenged ballot.
The Board has reviewed the record in light of
the exceptions and brief, has adopted the Acting
Regional Director 's findings and recommendations
as modified , and finds that a certification of repre-
sentative should be issued.
We agree with the Acting Regional Director
that the Petitioner 's leaflets , offered in support of
Objections 1 through 5 , are not objectionable only
for the following reasons.
During its organizational campaign , the Petition-
er distributed at least two leaflets to employees,"
one of which was signed by the Petitioner 's orga-
nizing director , was notarized , and purported to be
a "LEGAL DOCUMENT." It stated in part:
WE GUARANTEE: THAT ONCE WE
WIN THE ELECTION YOU WILL BE EL-
IGIBLE FOR ALL TEAMSTERS LOCAL
848 BENEFITS, INCLUDING LOCAL 848's
3/4 OF A MILLION DOLLARS STRIKE
FUND.
The second discussed election issues in a ques-
tion and answer format. That leaflet stated in part:
QUESTION
I HEARD WHEN THE UNION WINS THE
ELECTION, WE WOULD HAVE FREE
LEGAL HELP FROM THE TEAMSTERS
ATTORNEYS, IS THIS TRUE?
ANSWER
YES !! LOCAL 848 HAS THIS AS A BENE-
FIT TO ALL MEMBERS , COULD IT BE
THE COMPANY DOESN 'T WANT YOU
TO HAVE ACCESS TO FREE LEGAL
i Attached as Appendix B
HELP FROM THE TEAMSTERS ATTOR-
NEYS????
The Employer argues-that the Petitioner's leaf-
lets were an attempt to unlawfully coerce employ-
ee votes and that we should therefore set aside the
election.
We initially find that the Petitioner 's leaflets do
.not present the problem which the union's offer to
waive initiation fees created in NLRB v. Savair
Mfg. Co.2 The Supreme Court found that the union
in that case interfered with a fair and free election
by limiting its offer to those employees who dem-
onstrated support for the- union before the election.
The Court found the offer objectionable because it
"paint [ed] a false portrait of employee support"
and could have provoked a false sense of moral ob-
ligation to vote for the union in the election.3
Here , by contrast , no employee need have demon-
strated preelection support for the Petitioner to
take advantage of the promised benefits . Should
the Petitioner have won , all employees were poten-
tially eligible . Thus, no advance portrait of employ-
ee support was painted , and no sense of moral obli-
gation was provoked.
We also find that the substance of the promises
did not interfere with the election. The Petitioner's
first leaflet in part emphasized the size of its strike
fund . The extent to which a union may , be able. to
withstand strikes is. a natural employee concern,
and we have long, held that promising strike bene-
fits-even generous benefits-does not impair free
choice.4 We therefore do not find that the first
leaflet interfered with the election.
The Petitioner's second leaflet advised employ-
ees that the Petitioner provided free legal help to
all its members and promised to continue to do so
after the election. The Employer contends that the
Petitioner 's promise is similar to the union 's prom-
ise in Crestwood Manor 5 to hold a $100 raffle for
the entire unit in the event the union won the elec-
tion . The Board found that the promise in Crest-
wood Manor interfered with employees' free
choice.6 Here , by contrast, the Petitioner promised
to provide free legal help only as an existing inci-
dent of union membership.?
3414 US 270 (1973)
3 Id at 277-278.
4 See Lloyd A. Fry Roofing Co., 119 NLRB 661, 662 (1957) (union
promised $30-per-day strike benefit, a "munificent" sum).
5 234 NLRB 1097 (1978)
8 Id at 1097- 1098. See also General Cable, 170 NLRB 1682 (1968)
(union gave $5 gift certificates to all employees during election cam-
paign); cf. Loubella Extendables, 206 NLRB 183 (1973) (union promised
to forgive certain employees' financial obligations in the event the union
won).
' The Employer argues that we should not regard the Petitioner's pro-
viding free legal help as an existing benefit because "there is no evidence
Continued
277 NLRB No. 149
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We do not believe that a union interferes with an
election when it promises to extend an existing in-
cident of union membership to new members."
Unlike promising a newly created benefit to all em-
ployees as the union did in Crestwood Manor, prom-
ising to extend an existing benefit to new union
members does not suggest to employees that their
votes are being purchased . Just as an employer can
call attention to benefits that its employees in the
proposed unit currently enjoy, so, too, can a union
point out the benefits its members currently enjoy.
Accordingly, we agree with the Acting Regional
Director that the Employer's objections should be
overruled and that the election should not be set
aside.
CERTIFICATION OF
REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid bal-
lots has been cast for Wholesale Delivery Drivers
& Salesmen Local 848, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America , and that it is the exclusive col-
lective -bargaining representative of the employees
in the following appropriate unit:
All full-time and regular part-time production
and maintenance employees, truckdrivers, and
warehousemen employed by the Employer at
its facility located at 150 South Maple Street,
Corona, California, excluding all office clerical
employees, professional employees , guards,
watchmen and supervisors as defined in the
Act.
that the Petitioner presently provides such services for any reason to all
members " Under settled law, however , it is the employer 's burden to
supply specific evidence that prima facie would warrant setting the elec-
tion aside Bujkor-Pelzner Division , 169 NLRB 998 , 999 (1968), NLRB v
Howard Johnson Co, 650 F 2d 741, 743-744 (5th Cir 1981), see also
NLRB v Mattison Machine Works, 365 U S 123, 123-124 (1961). Absent
such evidence , we have no reason to believe the benefit was anything
other than what the Petitioner claimed it to be an existing benefit the
Petitioner provided all its members
8 Contrast Wagner Electric Corp, 167 NLRB 532 (1967), in which the
Board found objectionable the union 's having made free life insurance
coverage available during an election campaign Although the offer was
made only as an incident of union membership , the union limited the ben-
efit to those employees'who joined before the election See Savatr, supra.
In Circleville Metal Workers, 266 NLRB 719 (1983), cited by the Acting
Regional Director , the Board found unobjectionable the union 's having
set forth a method by which dues could be lowered. Id at 720 Like the
promises here, the benefits of that opportunity were not reserved for
those employees who supported the union before the election, see Savatr,
supra , nor were they made available only to a select group , see Loubella
Extendables, supra.
In General Cable, supra, in which the Board found the union interfered
with the election, the benefit ($5 gift certificates) was newly created
APPENDIX A
REPORT ON OBJECTIONS
Pursuant to a Stipulation for Certification Upon Con-
sent Election approved on August 25, 1984, an election
by secret ballot was conducted on September 19, 1984,
among the employees of the Employer, in the unit
agreed appropriate for the purposes of collective bar-
gaining. ' The tally of ballots which was served on the
parties immediately following the election showed the
following results:
Approximate number of eligible voters-166
Number of Void ballots-0
Number of Votes cast for Petitioner-99
Number of Votes cast against participating
labor organization-55
Number of Valid votes cast-154
Number of Challenged ballots-1
Number of Valid votes counted plus challenged
ballots-155
The challenged ballots are not sufficient in number to
affect the results of the election. On September 26, 1984,
the Employer timely filed objections to conduct affecting
the results of the election, a copy of which was thereaf-
ter served upon the Petitioner by the Acting Regional
Director . Pursuant to Section 102.69 of the Board's
Rules and Regulations , Series 8, as amended , the under-
signed after reasonable notice to the parties to present
relevant evidence , has completed an investigation of the
objections and hereby issues his report thereon.
Objections Nos. 1 through 5
1. Petitioner Local 848 made promises of a grant of
benefits regarding participation in the Petitioner's strike
fund and/or receipt of approximately $170 per week in
strike benefits.
2. Petitioner Local 848 made promises of a grant of
benefits regarding receipt by the employees of free legal
services.
3. Petitioner Local 848 made promises of a grant of
benefits regarding immediate eligibility of employees in
all Teamsters benefits as soon as Petitioner wins the elec-
tion.
4. Petitioner Local 848 made promises of a grant of
benefits that if the Union wins the election, the employ-
ees would receive between three and four paid sick days
every quarter.
5. Petitioner Local 848 made promises of a grant of
benefits that if the Union wins the election, employees
who work in any area 90 degrees or more will have
added to his or her periodic break time an additional five
minutes and for employees working in areas 100 degrees
or more an additional 10 minutes.
1 All full time and regular part time production and maintenance em-
ployees , truckdrivers , and warehousemen employed by the Employer at
its facility located at 150 South Maple Street, Corona , California, exclud-
ing all office clerical employees , professional employees , guards, watch-
men and supervisors as defined in the Act
DART CONTAINER 1371
The evidence presented by the Employer with regard
to the above objections consists of two one-page leaflets
allegedly distributed by the Union to unit employees
prior to the election which are attached hereto as Exhib-
its A and B, and Employer-prepared statements from six
employees and one supervisor concerning alleged prom-
ises made to employees by union representatives.
It appears that, except for the statements set forth in
the attached leaflets, virtually all of the "promises" alleg-
edly made by the Union were conveyed to the testifying
employees by other employees. Thus, the employees and
the supervisor state variously that they were told by
other employees that the Union said, inter alia, the fol-
lowing would occur if it were selected as the employees'
representative; employees would be reclassified and some
would be promoted; employees would receive a $3 an
hour increase; those selected to be union stewards would
receive a 25 cent an hour increase; a cheaper health plan
would be provided; complete job security would be pro-
vided; overtime benefits would be forthcoming; addition-
al break time would be given those working in high heat
areas; and strike benefits of $165 (or $170) a week would
be paid to striking employees in the event of a strike.
There is no direct evidence of any specific union repre-
sentatives having made any of the "promises" which
form the basis of Objections Nos. 1 through 5. The evi-
dence of the "promises" is therefore hearsay as to what,
if anything, union representatives may have said. Assum-
ing, arguendo, that union representatives' did inform em-
ployees that they could obtain increased employment
benefits for them, employees must be aware that the
grant of employee benefits is within the control of the
Employer, subject to the bargaining process, and that
any representations to the contrary are campaign rheto-
ric which can be evaluated by employees as such. Turn-
bury Isle Country Club, 253 NLRB 416 (1980).
As to the promise of benefits contained in the attached
leaflets, those "benefits" set forth therein are not limited
to employees who supported the union prior to the elec-
tion or to a select group, but are, rather, benefits general-
ly available to all union members. The explanation of ex-
isting benefits available to union members which is set
forth in the attached leaflets cannot be considered in the
light of a promise of an economical benefit to induce a
vote in the Union's favor, and is therefore not an imper-
missible campaign statement. Circleville Metal Works, 266
NLRB 719 (1983).
Therefore, in light of the foregoing, the undersigned
concludes that Objections Nos. 1 through 5 are without
merit and recommends that they be overruled.
Objection Nos. 6(a) through (j)
6. During the critical preelection period, at times when
the Employer did not have the opportunity to effectively
2 Four of the employee statements are unsigned. and the Employer
contends that employees ' refusals to sign the declarations made by them
is indicative of the atmosphere of fear and intimidation created by the
Union at the Employer's facility That contention will be discussed infra
For purposes of assessing the merit of Objections Nos 1 through 5, the
allegations contained in the unsigned statements have been considered
along with those contained in the signed statements
respond, the Petitioner made the following gross and ma-
terial misrepresentations:
(a) If the Petitioner wins the election, the em-
ployees would -receive between three and four paid
sick days every quarter;
(b) If the Petitioner wins the election, employees
who work in any area of 90 degrees or more will
have added to his or her periodic break time an ad-
ditional five minutes and for employees working in
areas 100 degrees or more an additional 10 minutes;
(c) If the Petitioner wins the election, the em-
ployees would receive immediately a $3 increase;
(d) If the Petitioner wins the election, the em-
ployees would have complete job security;
(e) If the Petitioner wins the election, employees
selected to be the union stewards would receive a
promotion and an additional 25 cents per hour;
(f) If the Petitioner wins the election and there is
a strike, the Union would provide approximately
$170 per week in strike benefits;
(g) If the Petitioner wins the election, employees
would be promoted through a change in job classifi-
cations;
(h) If the Petitioner wins the election, part-time
employees would be covered by the Union medical
insurance;
(i) If the Petitioner wins the election, employees
would be paid overtime rates for Saturday and
Sunday work, even though they would not be
working more than 40 hours per week;
(j) Misrepresentations regarding the process of
strike authorization and employee participation in a
strike.
The evidence presented in support of Objection No. 6
is the same as that outlined in the discussion of Objec-
tions Nos. I through 5. Respondent contends the alleged
statements of Union representatives both as to future em-
ployment benefits and future union benefits are material
misrepresentations of fact. In Midland National Life In-
surance Co., 263 NLRB 127, 133 (1982), the Board held
that it will not probe into the truth or falsity of parties'
campaign statements, and will not set elections aside on
the basis of misleading campaign statements . Therefore,
the alleged statements even if constituting misrepresenta-
tions of fact, are not sufficient grounds for setting aside
the election. Accordingly, Objection No. 6 is without
merit and it is recommended that it be overruled.
Other Evidence Submitted
Although not specifically alleged in the objections, the
Employer asserted that the Petitioner had created an at-
mosphere of fear and intimidation for employees who did
not support Petitioner, and thus interfered with the free
choice of voters in the election. The only evidence sub-
mitted on this issue was a statement by an employee that
a local Union supporter had told him that if he did not
want to join the Union or go on strike on behalf of the
Union, "We'll put you in the hospital."
There is nothing to indicate that the employee making
the threat was authorized by the Union to do so. Conse-
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quently, the threat must be considered the act of a third
party. ATR Wire and Cable Co., 267 NLRB 204 (1983).
In such situations, the test is whether the alleged conduct
is so aggravated as to create a general atmosphere of fear
and reprisals rendering'a free election choice impossible.
The Seville, 262 NLRB 1282, fn. 1 (1982). The threat al-
leged to have been made here, without further incident,
is essentially trivial in a unit of approximately 166, and
not so severe as to have intimidated the free choice of
employees. Additionally, it cannot be said that the refus-
al of some employees to sign declarations sought by the
Employer in preparation of its objections (see footnote 1,
supra) is evidence of a general atmosphere of fear and re-
prisal necessitating a new election . Accordingly, I con-
clude that this additional evidence presented by the Em-
ployer does not disclose conduct warranting a new elec-
tion , and it is recommended that Objection No. 6 be
overruled'.
Conclusion
The undersigned has recommended that the Employ-
er's Objections to the election be overruled . Inasmuch as
the results of the election show that a majority of the
valid ballots have been cast for the Petitioner, the under-
signed further recommends that a Certification of Repre-
sentative be issued to Wholesale Delivery Drivers &
Salesmen Local 848, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica.3
3 Under the provisions of Section 102 69 of the Board 's Rules and Reg-
ulations, exceptions to this Report may be filed with the Board in Wash-
ington, D.C, 20570 Exceptions must be received by the Board in Wash-
ington by November 6, 1984
Under the provisions of Section 102 69(g) of the Board's Rules docu-
mentary evidence , including affidavits , which a party has timely submit-
ted to the Regional Director in support of its objections or challenges
and which are not included in the Report are not part of the record
before the Board unless appended to the exceptions or opposition thereto
which the party files with the Board Failure to append to the submission
to the Board copies of evidence timely submitted to the Regional Direc-
tor and not included , in the Report shall preclude a party from relying
upon that evidence in any subsequent related unfair labor practice pro-
ceeding
APPENDIX B
TEAMSTERS LOCAL NO. 848
INDUSTRIAL DIVISION
DUE TO ALL THE DESPERATE RUMORS
AND LIES THAT HAS BEEN PUT OUT BY
DART CONTAINER CORP. TO TRY TO CON-
FUSE THE REAL ISSUES TEAMSTERS
LOCAL 848 HAS DECIDED TO ELIMINATE
ALL DOUBT, BY GIVING YOU IN WRITING
THIS LEGAL DOCUMENT, GUARANTEEING
YOU THE FOLLOWING.
TO ALL DART CONTAINER WORKERS
THE
TEAMSTERS LOCAL 848
GUARANTEES
WE GUARANTEE: THAT YOU WILL NOT PAY
INITIATION FEE, ONLY THOSE WHO ARE
HIRED IN AFTER YOUR CONTRACT IS NEGOTI-
ATED.
WE GUARANTEE: THAT YOU WILL NOT PAY
DUES UNTIL AFTER YOU HAVE ACCEPTED A
CONTRACT THAT YOU FEEL IS WORTH
PAYING DUES FOR.
WE GUARANTEE: THAT THE OFFICERS OF
TEAMSTERS LOCAL 848 CANNOT AND WILL
NOT CALL A STRIKE IN YOUR PLANT. ONLY
YOU (THE EMPLOYEES) CAN AUTHORIZE A
STRIKE AND ONLY BY A 2/3 MAJORITY VOTE
OF THE WORKERS IN DART CONTAINER. RE-
MEMBER IN THE TEAMSTERS LOCAL 848 YOU
NEVER HAVE TO STRIKE!!
WE GUARANTEE: THAT YOU WILL VOTE BY
SECRET BALLOT ELECTION WHETHER TO
ACCEPT OR REJECT A CONTRACT. YOU WILL
NOT BE FORCED TO ACCEPT A CONTRACT.
WE GUARANTEE: THAT YOU CAN REMOVE
ANY STEWARD OR REPRESENTATIVE IF YOU
FEEL THEY ARE NOT PERFORMING THEIR
DUTIES PROPERLY.
WE GUARANTEE: THAT YOU WILL ELECT
STEWARDS OF YOUR CHOICE ON ALL SHIFTS
AND DEPARTMENTS.
WE GUARANTEE: YOU PROPER AND JUST
REPRESENTATION FOR ALL EMPLOYEES.
WE GUARANTEE: THAT ONCE WE WIN THE
ELECTION YOU WILL BE ELIGIBLE FOR ALL
TEAMSTERS LOCAL 848 BENEFITS, INCLUDING
LOCAL 848's 3/4 OF A MILLION DOLLARS
STRIKE FUND
WE GUARANTEE: THAT YOUR GRIEVANCES
AND PROBLEMS WILL BE HANDLED PROMPT-
LY ON A DAILY BASIS, AND A TEAMSTERS 848
REPRESENTATIVE WILL TOUR YOUR PLANT
NO LESS THAN ONCE A MONTH, EVEN IF
THERE ARE NO PROBLEMS.
WE GUARANTEE: THAT ONCE A CONTRACT
IS NEGOTIATED AND ACCEPTED BY THE
WORKERS AT DART CONTAINER, ALL EM-
PLOYEES WILL BE GIVEN A COPY OF THE
CONTRACT AND BENEFITS.
WE GUARANTEE: THAT YOU WILL NOT LOSE
ANY SCHEDULED RAISES, COST OF LIVING
RAISES, BONUSES,,OF ANY OTHER BENEFITS
BECAUSE YOU VOTE FOR THE UNION.
WE GUARANTEE: THAT NO ONE WILL LOSE
THEIR JOB PART TIME OR FULL TIME BE-
CAUSE THEY VOTED FOR THE UNION.
STATE OF CALIFORNIA
COUNTY OF RIVERSIDE
DART CONTAINER 1373
/s/ David Taliani
David Taliani , Director of Organizing
Teamsters Local 848
On the date indicated below , DAVID TALIANI
personally appeared before me and acknowledged
to me that he executed the same.
DATED: September 17, 1984
TEAMSTERS LOCAL NO. 848
INDUSTRIAL DIVISION
1616 WEST NINTH ST., ROOM 223
LOS ANGELES , CALIFORNIA 90015
TELEPHONE (213) 385-2036
3637 CANYON CREST DRIVE, SUITE F-106
RIVERSIDE , CALIFORNIA 92507
TELEPHONE (714) 788-7025
QUESTION
DOES THE TEAMSTER UNION HAVE
ANY OTHER COMPANIES THAT DO THE
SAME WORK AND MAKE THE SAME PROD-
UCTS AS WE DO?
ANSWER
YES ! AND THE TEAMSTERS IN THE
PLANT ENJOY MUCH HIGHER WAGES
AND BENEFITS THAN ARE GIVEN AT
YOUR PLANT, THE EMPLOYEES THERE
WERE TOLD THE SAME GARBAGE AS
YOUR COMPANY IS TELLING YOU, NEED-
LESS TO SAY, THEY DIDN 'T FALL FOR IT
AND THAT IS WHY THE WAGES AND BEN-
EFITS ARE MUCH HIGHER (THEY WENT
UNION).
WE WILL SHOW YOU THE CONTRACTS
AT OUR MEETINGS , ATTEND AND SEE
FOR YOURSELF!
QUESTION
I HEARD WHEN THE UNION WINS THE
ELECTION , WE WOULD HAVE FREE'
LEGAL HELP FROM THE TEAMSTERS AT-
TORNEY, IS THIS TRUE?
ANSWER
Y E S !! LOCAL 848 HAS THIS AS A BENE-
FIT TO ALL MEMBERS , COULD IT BE THE
COMPANY DOESN 'T WANT YOU TO HAVE
ACCESS TO FREE LEGAL HELP FROM THE
TEAMSTER ATTORNEYS ????
QUESTION
THE COMPANY NOW SAID THEY ARE
GOING TO CALL US IN ONE AT A TIME TO
WORK OUT OUR INDIVIDUAL GRIEV-
ANCES , WHAT GIVES ???
ANSWER
THE COMPANY IS ONLY TRYING TO
GAIN VOTES AGAINST THE UNION BY
MAKING YOU THINK TFIEY REALLY
CAREIII
IN UNION ELECTIONS ALL COMPANIES
DO THIS TO TRY AND GET PERSONAL
WITH THE EMPLOYEES . THIS IS ONLY A
PLAN TO TRICK YOU Y IF IT REALLY MAT-
TERED TO THEM THEY WOULD HAVE
DONE THIS LONG BEFORE YOU PETI-
TIONED FOR AN ELECTION . BE PRE-
PARED, THE CLOSER WE GET TO ELEC-
TION DAY, THE HARDER THE COMPANY
WILL TRY TO CONFUSE AND DECEIVE
YOU.