Fabriko, Inc.

National Labor Relations Board - Board Decisions

Dec 17, 1976

227 N.L.R.B. 387 (N.L.R.B. 1976)

FABRIKO, INCORPORATED
Fabriko, Incorporated and General Teamsters, Ware-
house and Dairy . Employees Local 126, affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca, Petitioner . Case 30-RC-2694
December 17, 1976
DECISION AND DIRECTION OF
SECOND ELECTION
BY MEMBERS FANNING, PENELLO, AND
WALTHER
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations-Act, as'amended, a three-
member panel has considered the objections to an
election held December 17, 1975, and the Hearing
Officer's report recommending disposition,of same.l
The Board has reviewed the record in light of the
exceptions and brief, and hereby adopts the Hearing
Officer's findings 2 and recommendations.
[Direction - of Second, Election omitted from
publication.]3
MEMBER WALTHER, dissenting:
In an election conducted on December 17, 1975,
with two unions on the ballot Petitioner lost to the
Intervenor by a vote of 21 to 36. Petitioner filed 12
objections to the election. After a hearing on the
objections, the Hearing Officer recommended that
five of the objections be overruled (1, 5, 6, 7, and 12),
and six sustained (3, 4, 8, 9, -10, and 11).4 He also
recommended that the election be set aside and a new
election directed. The Employer filed exceptions to
the Hearing Officer's report.
The Intervenor has been the collective-bargaining
representative of the Employer's production and
maintenance employees since 1971. On November 3,
1975, Petitioner filed a petition seeking to represent
1 The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. Petitioner received 21 votes, Intervenor (Fabnko
Employees Association) 36 votes, with 4 votes cast for neither organization.
2 The Heanng Officer found that certain statements made by the
Employer exceeded the limits of permissibility when viewed in the context of
the Employer's entire campaign Our dissenting colleague disagrees with this
conclusion and quotes portions of speeches made by the - Employer's
president in an attempt to demonstrate the permissibility of the Employer's
campaign . In so doing , he ignores some of the statements relied on by the
Heanng Officer and thus overlooks the context in which the statements were
made. For example, he omits any mention of Employer's statements as to the
likelihood of Teamster strikes and the probability of their occurrence despite
the opposition of a .majority of the unit employees, that the door would be
thrown wide open on wages and benefits if the Teamsters were elected, and
that an agreement would be reached with the Employees Association without
a strike. The Employer's statements, in toto, portray negotiations with the
Employees Association as quickly ending in a harmomous agreement, while
negotiations with the Teamsters would be protracted, potentially strike and
lawsuit ridden, and possibly ending in lower wages and benefits for the
employees
The issue is whether the Employer 's statements, considered in their
227 NLRB No. 45
387
the aforesaid -employees. Thereafter the parties en-
tered into a. Stipulation for Certification Upon
Consent Election calling for an election to be held on
December 17. Both Petitioner and the Employer
waged vigorous preelection campaigns : Petitioner in
the form of letterwriting and the Employer by letters
and by speeches to assemblies of employees. The
Intervenor did not distribute any campaign material.
It is undisputed that in its propaganda the Employ-
er opposed the selection of Petitioner as bargaining
representative and urged employees to vote for the
Intervenor. However, as the Hearing Officer recog-
nized, an employer need not remain neutral in a
campaign between rival labor organizations, but may
express a preference for one of the rivals. Absent
threats or promises of benefits accompanying such
expression of preference, the employer's conduct will
not justify setting aside an election.5 The Hearing
Officer concluded that in this case certain statements
by the Employer made during the, campaign implied
that the Employer would take a tougher bargaining
stance if Petitioner were selected , as bargaining
representative- than if the Intervenor, were,selected.
On this ground, the Hearing Officer recommended
setting aside the election. -
The relevant objections filed by Petitioner are as
follows:
3. On or about December 12, 1975, the
Employer held meetings with its employees at
which employees were told, encouraged and
induced to vote for the Fabriko Employees
Association.
4. On or about December 16, 1975, the
Employer held meetings with its employees at
which employees were told,- encouraged and
induced, to vote for the Fabriko Employees
Association.
8. On or about November 25, 1975, the
Employer sent a letter to each,employee asking
totality, are innocent predictions of circumstances outside ' Employer's
control, or threats of Employer reprisal. Gissel Packing Co, Inc, 395 U.S.
575, 618 (1969). In our opinion, the Heanng Officer was correct in
concluding that the total effect of Employer's campaign statements including
the rampant vilification of the Petitioner and constant praise of the
Intervenor had the effect of interfering with the employees ' free choice. The
Employer's statements, we believe , constitute an implied but nonetheless
clear promise that the Employer would bargain in a more favorable and
prompt manner with the Intervenor or a threat that not only negotiations
would be protracted but that it would take a much harder bargaining
approach with the Petitioner which would reasonably instill ' in the employees
a threat of futility in voting for the Petitioner. In short , the statements
concerning matters precisely within the Employer's control reflect an
intention to bargain in a disparate manner with the two organizations.
Duvernoy & Sons, Inc, 177 NLRB 538 (1969); Iowa Pork Company, Inc, 148
NLRB 1242 (1964).
3 [Excelsior footnote omitted from publication.]
4 Objection 2 was withdrawn by Petitioner at the hearing.
5 Alley Construction Company, Inc., 210 NLRB 999 (1974); Rold Gold of
California, Incorporate4 123 NLRB285 (1959); Stewart-Warner Corporation,
102 NLRB 1153 (1953).
388 DECISIONS OF " NATIONAL LABOR RELATIONS BOARD
each not to vote for Petitioner but rather ". .: I
ask that you vote in favor of the Fabriko_Employ-
ees Association."
9.--' On or about November 7, 1975, the Em-
ployer sent a letter to each employee condemning
Petitioner only, supporting Fabriko Employees
Association.
10. On or about December 1, 1975, the
Employer sent a letter to each employee con-
demning Petitioner only, supporting Fabriko
Employees Association.
11. On or about December 4, 1975, the
Employer sent a letter to each employee con-
demning Petitioner only, supporting Fabriko
Employees Association.
I have quoted Petitioner's objections at length
because they indicate rather clearly that the basis for
Petitioner's objections to the election was only the
separate expression of preference for Intervenor and
hostility manifested to Petitioner. The Hearing Offi-
cer did not consider, each of the above objections
separately because "no single one of [President]
Chelstrom's "remarks would constitute an objection-
able statement warranting the setting aside' of the
election..." -However, he proceeded to find that
various statements made by Chelstrom in letters and
speeches, although standing alone not objectionable,
when considered together had the effect of interfering
with employee free choice.
In reaching this conclusion, the Hearing Officer put
together excerpts from the various letters and speech-
es of Chelstrom over a 6-week period to create a
construct to which no employee gave testimony. The
construct, in short, is purely a figment of the Hearing
Officer's imagination. Moreover, in putting together
the various excerpts, the Hearing Officer omitted in
some cases relevant parts of Chelstrom's remarks,
and ignored their context and background. For
example, the Hearing Officer considered objection-
able Chelstrom's statement that if Petitioner won the
election the Employer would have its lawyer do the
bargaining, the same layer who had negotiated with
Petitioner a 50-cent reduction wage at another
company which thereafter went out of business.
In a letter to employees dated December 8, Peti-
tioner made pejorative references to the Employer's
attorney "to whom he" [Employer] is paying a small
fortune to keep the Teamsters from' being your
representative .", The letter also said that the Employ-
er's attorney had negotiated several labor agreements
with Petitioner. In another letter dated December 12
the Petitioner stated:
The only games Local 126 [Teamsters ] plays is the
game of putting up with attorneys and employers
that will spend a fortune - in money to keep a
Union out of their company so that they will
_
not
have to pay their employees a fair wage.
In a speech to the employees on December 16, in
obvious answer to the statements in Petitioner's
letters of December 8 and 12, President Chelstrom
said:
We did hire a lawyer. We felt it necessary to hire a
lawyer because we're not playing kids' games. The
Teamster's Union-the Teamsters are famous-
rather they're not famous, but they do have law suits.
And we're not interested in getting involved in
anything like this without good legal competent help.
Let's face it. If the Teamster's Union wins this
election , we're going to have our lawyer negotiate
for us.
Our lawyer has negotiated with Teamster Local
126 on various other company situations. In one
particular case he negotiated a 50-cent deduction
in the contract simply because the Teamster's
Union ripped off the company the year before. It
wasn't long after that the company went out of
business.
We aren't paying a small fortune for our attorney
either. We're paying what is reasonable and what is
to be expected under the situation . [Emphasis
supplied.]
In quoting the "Let's face it" portion of Chelstrom's
speech, the Hearing Officer omitted the underlined
part of the statement and he also omitted to mention
that the excerpt was an obvious answer to the
assertions contained in Petitioner's earlier propagan-
da letters to employees . I can find nothing coercive in
this statement by Chelstrom. It' is not unlawful or
coercive to say that in the event of a union victory the
employer will have a lawyer conduct its negotiations.
Obviously, it would be more difficult to conduct
negotiations with a powerful, rich, and effective
organization like the Teamsters which openly pro-
claimed to employees that it was the "largest indepen-
dent Union in the world" and that it had "well-
trained Business Agents to protect you and negotiate
a fair Labor Agreement of your choice," than with an
independent union like the Intervenor.'The reference
to the Employer's attorney having negotiated a 50-
cent deduction with Petitioner for another company
is clearly a rejoinder , albeit ironic , to_ Petitioner's
statement that it had negotiated bargaining contracts
with the Employer's attorney. It is not claimed that
the statement was false, and of course if the attorney
had negotiated the decrease for his employer client,
Petitioner had accepted the decrease on behalf of
FABRIKO, INCORPORATED 389
employees. The statement might tend to deflate some
of Petitioner's claims, but it was not on that count
coercive. -
In a speech to employees on December 12, Chel-
strom said, after outlining the voting procedure:
What happens after the vote? The ballots may be
counted by the observers -and-by the NLRB.
And they may be assisted by the observers. If the
vote is 51 percent in favor of the Teamsters Union
Local 126 Fabriko will be required to bargain with
them as your representative. How long these
negotiations will take, I cannot say. It could take a
day, could take a month, could take -a year, or
more: I know of one case where the Retail Clerks
Union in Kenosha and Thrifty Drugs took 3 years
to negotiate a contract. And it wasn't settled then.
They took it to the National Labor Relations
Board, and a period of time went by after that.
During all that time wage increases were not
given.
If the vote is 51 percent in favor of the Fabriko
Employees Association there will be a 7 day
waiting period for the Teamsters Union to file
objections as to the conduct of the election.
During that time no negotiations will be taking
place. If, after that time, no objections are filed, I
would assume that we will look to the Association for
their wishes on how they would like to proceed.
Should objections be filed, negotiations will not be
allowed until the NLRB makes a ruling on the
charges ....[Emphasis supplied.]
If 51 percent of the eligible employees vote
Neither, the Teamsters Union or the Fabriko
Employees Association, we will again have to wait
7 days for any objections to be filed by the unions.
Again, if unfair labor practices, or I should say
unfair objections are filed, negotiations of any
kind will not be allowed until the NLRB makes
their ruling.
In a talk to another group of employees on the same
day, Chelstrom was asked what would happen if the
employees voted for no union. He replied:
Well, I assume that what we would do is we would
have to sit down and have a common goal, a
starting place. That isn't to mean that everything
is lost, but it doesn't mean everything is to gain
either. But because I can't commit right now. I
can't tell you yes, everything is going to be the
6 The Hearing Officer cited Iowa Pork Company, Inc., 148 NLRB 1242,
1256 (1964), in support of his conclusion Iowa Park is apposite. In that case
two unions participated in an election to determine the bargaining represen-
same or no, everything is going to be starting from
scratch. The rules and regulations of this time
period that we're in right now are very very
explicit on what I can promise and what I can't
promise. For that reason, as I did in 1970, I have
made no promises as to what the company will do
in- anything. Other than the fact that if the Employ-
ees Association is voted-in that we will sit down with
the Association members-and work out something to
our benefit. [Emphasis supplied.]
If the Union comes in,- as I said, we're going to
have to sit down and negotiate with them. How
long that will take I don't know.
On December 16, Chelstrom again spoke to em-
ployees and attempted to answer various charges
made by Petitioner during the preceding week. In the
course of his talk he said
We've also been charged that we said we could
not afford .... a pay increase. Prior to the
Teamster's petition for the election we were
negotiating and had offered the employees a 25
cent an hour wage increase to the hourly employ-
ees, a piece work base of two dollars and thirty
five cents for the piece rate operators, plus a day
rate of two dollars and seventy five cents for those
people averaging a daily piece rate of two seventy
five and above, and a two dollar and thirty cents
and hour piece rate-day rate for those employees
averaging less than two seventy five. We would
continue to pay the forty eight dollars medical
insurance benefits with the employees paying any
increase.
There were two additional added proposals onto
that for your choice. We asked for a vote and the
vote never came off. Because the petition by the
union for the election did not allow us to.
The Federal Government, the NLRB said no
negotiations can take place during this time. We
had fully intended that if the Employees Association
as body rejected any proposal that we offered to go
back and negotiate further. [Emphasis supplied.]
By stringing together the italicized portions of the
above quotations, the Hearing Officer concluded that
the Employer was threatening to take a much harder
arm's length approach to bargaining with Petitioner
than with the Intervenor and this threat of disparate
bargaining justified setting aside the election results . 6
tative Neither union had ever previously represented the employees. During
the preelection period the employer engaged in unlawful conduct-interro-
gation, threats, and promises of benefits-aimed at discouraging employees
(Continued)
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Hearing Officer's evaluation of Chelstrom's
statements is unrealistic. The Intervenor at the time
of the statements had been for.5 years the collective-
bargaining representative of the employees involved.
Just prior to the filing of the petition, the Employer
and the Intervenor had all but reached agreement on
terms of a new collective-bargaining contract. On the
other hand, Petitioner had never represented the
employees and its propaganda emphasized its tough-
ness and the numerous demands for, additional
benefits for employees. It does not take great exper-
tise in labor relations- to appreciate that collective
bargaining with a new union for an initial contract is
likely to be more difficult and protracted than
collective bargaining with an incumbent union which
has already negotiated several contracts with the
employer. Employees can understand this as well as
lawyers. In my opinion, all that Chelstrom was telling
the employees was that negotiations with the Interve-
to vote for one of the two competing unions. In this context the Trial
Examiner (now Administrative Lacy Judge) found, and the Board adopted
this finding , that the respondent employer' s statement to acaptive audience
of its employees that if the independent union won the election it would
secure a good contract right away, whereas if the affiliated union won the
nor would be easier and swifter than negotiations
with Petitioner. This was a reasonable 'prediction
based on experience; it was not a threat that the
Employer would bargain in a disparate manner.
Except for the alleged threat to bargain in a
disparate manner , which as shown in the outline
above was not specifically alleged as an objection to
the election, the Hearing Officer recommended
overruling all the other objections to the election. As I
would not find an objectionable threat of disparate
bargaining, I would overrule Petitioner's objections
in their entirety and certify the results of the election.
The decision of the majority is, in my opinion,
another example of the failure of this great Agency,
the National Labor Relations Board, to recognize
that employees are not children and are entitled to a
proper expression of facts-, and opinion from both
sides in order to vote intelligently and informed in
Board-conducted elections. Accordingly, I dissent.
employer would negotiate at arm 's length, was a threat to bargain in a
disparate manner and justified setting aside the election . The facts in the
present case are entirely different.