Humboldt Flakeboard

National Labor Relations Board - Board Decisions

Apr 9, 1970

181 N.L.R.B. 1040 (N.L.R.B. 1970)

1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Humboldt Flakeboard and Jack L. Fleek , Petitioner
and Lumber and Sawmill Workers , Local 2808,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO. Case 20-RD-583
April 9, 1970
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
Pursuant to a Stipulation for Certification upon
Consent Election , executed on April 15, 1969, an
election by secret ballot was conducted on May 6,
1969, under the direction and supervision of the
Regional Director for Region 20 among the
employees in the stipulated unit . Upon the
conclusion of the election , a tally of ballots was
furnished to the parties which showed that, of
approximately 89 eligible voters, 89 cast valid
ballots, of which 35 were for , and 54 were against,
the Union . Thereafter , the Union filed timely
objections to conduct affecting the results of the
election
In accordance with the National Labor Relations
Board Rules and Regulations and Statements of
Procedure , Series 8, as amended , the Regional
Director conducted an investigation and, on July 16,
1969, issued and s^rved upon the parties his Report
on Objections , Oder and Notice of Hearing on
Objections . In his report , the Regional Director
recommended to the Board that Objections 2, 4, 5,
6, 7, 8, 9 , 10, 11, 12, and 13 be overruled , and that
a hearing be held to resolve the issues raised with
respect to Objections I and 3.
On August 1, 1969, the National Labor Relations
Board issued an Order in which it adopted the
Regional Director ' s aforementioned
recommendations in their entirety . Accordingly, the
Board overruled all of the Union's objections , except
Objections I and 3, and notified the parties that the
issues raised by these latter objections would be
processed pursuant to the Regional Director ' s Order
and Notice of Hearing on Objections.
Pursuant thereto, a hearing was held on August
29, 1969, at Eureka , California , before Donald E.
Twohey, Hearing Officer . The Employer and the
Union appeared and participated and were afforded
full opportunity to be heard , to examine and
cross-examine witnesses, and to introduce evidence
bearing on the issues . Petitioner was not represented
by counsel , nor did he make an appearance at the
hearing.
On November 20, 1969, the Hearing Officer
issued and served on the parties his Report on
Objections , recommending that Union Objections 1
and 3 be overruled in their entirety and that the
results of the election be certified . The Union filed
timely exceptions to the Hearing Officer's Report
and a supporting brief.
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.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby
affirmed.
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 jurisdiction herein.
2. The Union is a labor organization claiming to
represent certain employees of the Employer.
ai i3. A question affecting commerce exists
e01i1t erning the representation of certain employees
of ''he Employer within the meaning of Section
.'9,(c)(1) and Section 2(6) and (7) of the Act.
,4i.' The parties stipulated, and we find, that the
folhgwing employees constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees,
including truckdrivers, employed by the Employer at
its Arcata, California location, but excluding office
clerical employees, guards, and supervisors as
defined in the Act.
5. The Union, in its objections, contends that the
Employer interfered with the decertification election
conducted at its Arcata, California, plant by its
dealings with two of its employees, Cleveland and
Langjahr, about the proposed implementation of a
contract loading plan, and also by making a
concerted attempt to convey to its employees that
wage increases already granted to employees in the
Employer's nonunion mills in the spring of 1969
might be in jeopardy in the Employer's unionized
Arcata mill because of the Union's presence there.
As to the first objection, the record shows that
about 5 weeks before the election, the Employer's
owner, A. A. Emerson, spent about 5 hours with
employees Cleveland and Langjahr in a local
restaurant In a discussion about the forthcoming
decertification election, Emerson said that he could
live with the Union, but his five • other mills were
nonunion and he would like to see the Union out of
the Arcata mill. Emerson further, stated that he
would like an opportunity to show the employees
that they could live without the Union, and several
times said that he would like to convert Cleveland, a
known union adherent, to his side.
At one point, after determining that Cleveland's
earnings for the preceding year had been $8,000,
Emerson said that car loaders like Cleveland had
earned more at his nonunion mills under a contract
loading plan. Cleveland mentioned his awareness
that a friend of his had earned $12,000 under such a
181 NLRB No. 169
HUMBOLDT FLAKEBOARD
piece-work arrangement . Both employees expressed
an interest in the plan, and Emerson said he would
like them to have one Emerson stated that the
Union would not endorse such a plan because it
might reduce the number of jobs. When Langjahr
asked if they could have such a system under a
union contract , Emerson replied that it would cause
a slight problem , but he did not see why it could not
be worked out; it was understood between the men,
however, that the Union would be an impediment to
such a plan.
After a considerable amount of discussion about
the plan, Emerson stated that he would , and the two
employees also should , speak further to plant
officials Johnson and Fusi to work out details. On
the following Monday, plant superintendent Fusi
approached employee Cleveland, referred to
Cleveland 's earlier conversation with Emerson, and
said he would certainly like to get the plan for the
employees . On several other occasions there^i;fa. i
and before the election , Langjahr asked Emerson
about the proposed plan. Emerson stated thdt he'
was serious about it ; that there were a lot of details
to be worked out; and that Cleveland and Langlahr
should meet with Johnson and Fusi to discuss the
matter
The Hearing Officer found that the Employer's
conversations with Cleveland and Langjahr
regarding the incentive loading system raised serious
questions about the fairness of the election , in view
of owner Emerson ' s openly expressed desire to
neutralize , diminish or destroy Cleveland's and
Langjahr's support for the Union. However, he
found that no interference with the election resulted
from the Employer's conduct because Emerson's
conversations with Cleveland and Langjahr were not
made known to other employees
With regard to the Hearing Officer's finding that
there was no dispersal of information about the
proposed incentive loading plan beyond Cleveland
and Langjahr , it is clear that such conversations
may have come to the attention of at least one
employee well-placed to disperse information about
the proposed plan to others. Thus, in answering a
question from the Hearing Officer as to whether he
told other employees about such conversations,
employee Langjahr stated that he thought he might
have told John David , the car checker on the
evening shift , about the contract loading discussions.
Good news concerning a prospective plan for
increasing earnings must be presumed to have some
amount of notoriety. More important , however, is
the fact that owner Emerson himself recognized
employee Cleveland as an ardent union supporter,
and admittedly wished to enlist his support in
Emerson's attempt to rid the Arcata mill of the
Union. Holding out the promise of a substantial
increase in earnings to a known union advocate, in
the context of a discussion about a forthcoming
election, and at the same time suggesting that the
Union might be an obstacle to achievement of that
1041
increase, is an inducement to revoke the Union's
representative status and constitutes interference
with employees' freedom of choice. Equally, as the
Hearing Officer points out, such direct dealings with
employees, with the obvious purpose of showing
them that they do not need a union to better their
lot, derogates from the Union's status as
representative of all the unit employees and further
tends to interfere with freedom of choice in the
election
As to the second objection, the facts show that
sometime during the week preceding the May 6
election, general manager Johnson mentioned to
employee Blair that the employees at the
Employer's nonunion mills had received a 30-cent
increase. Blair replied that he was aware of this fact.
About May 2 or 3, foreman Lancaster told
employee Cleveland about the 30-cent increase and
.added that there would be no increase for the unit
employees. When asked why, Lancaster said that
because of the Union's representative status, there
would have to be negotiations for any raise.
Cleveland replied that the employees were going for
more than a 30-cent raise, in any event. On the
morning of the election, in the course of a
conversation about the balloting, foreman Strahan
said to employee Langjahr that if it were not for the
Union, the unit employees would probably have
received a 30-cent increase as of May 1, when
employees at nonunion mills received their raise. On
at least one other occasion prior to the election,
foreman Strahan talked to another employee about
the 30-cent increase, although the precise nature of
the conversation is not known.
The Hearing Officer found that these remarks to
several employees by Employer officials emphasizing
that wage increases had been recently granted at the
Employer's five nonunion mills but would have to
await negotiation in the Arcata mill were nothing
more than accurate statements of fact in which he
could find no election interference. Such remarks, in
his view, merely conveyed to employees information
about wage increases in the nonunion mills, which
they had already learned about through a local
newspaper, and correctly informed them that their
own wage increases would have to be negotiated.
The record discloses that at least some large
nonunion mills in the Humboldt County area, where
the Arcata mill is located, customarily granted wage
increases each year in the spring, somewhat before
union contracts expired in union mills around June
I Petitioner filed no specific objections with respect
to the wage increases granted at the Employers
nonunion mills, and there is no evidence to show
that they were granted for any other reason than to
maintain the Employer's competitive position in the
lumber industry. But, even so, in a situation where
employees were no doubt aware of industry wage
practices and collective-bargaining procedures, there
is no valid explanation of why, just prior to an
election, Employer officials would make an effort to
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stress to employees that such increases had already
been received in nonunion mills but would be
delayed in the Arcata mill because of the presence
-of the union . The unusual pattern of supervisors
approaching employees to inform them that their
raises, unlike those of nonunion employees, would
be subject to the uncertainties of the negotiating
process, can be reasonably characterized as a
deliberate attempt to suggest to employees that
receipt of the increases could be long-delayed if the
Union were not voted down. Certainly, in view of
the pending election, the employees could have
construed the unsolicited proffers of information to
mean as much. In other circumstances, the
conveying of such information might be of no
coercive effect; in the present case, the volunteering
of such information by supervisors might well have
carried with it, to the closely-attuned ears of
employees, the implication that their wage increases
could rest upon the results of the election.
The case, in sum , presents a situation where the
Employer has bypassed the Union and sought to
undermine its representative capacity and support by
dealing with two employees, in the bargaining unit,
about increased benefits, for the manifest purpose of
ridding the Employer of the Union, and, in addition,
has engaged in a pattern of conduct designed to
less-than-subtly utilize a wage adjustment made in
the Employer's own nonunion mills to convey to
employees the impression that their economic
interests would be better served without their union
representative. In our view, this conduct destroyed
the requisite conditions for a fair election and
thereby interfered with the employee's freedom of
choice to determine whether or not to retain their
collective-bargaining representative.'
Accordingly, we shall order that the
decertification election conducted on May 6, 1969,
be set aside, and shall direct that a new election be
held in the appropriate unit
ORDER
It is hereby ordered that the decertification
election conducted herein on May 6, 1969, be, and it
hereby is, set aside.
[Direction of Second Election' omitted from
publication ]
''Afle^'Fruit Co, 101 NLRB 761
:,In'o'rder to assure that all eligible voters may have the opportunity to
be,mformed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Company,
394 U S 759 Accordingly, it is hereby directed that an election eligibility
list, containing the names and addresses of all the eligible voters, must be
filed by the Employer with the Regional Director for Region 20 within 7
days after the date of issuance of the Notice of Second Election by the
Regional Director The Regional Director shall make the list available to
all parties to the election No extension of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances
Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed