J. R. Wood, Inc.

National Labor Relations Board - Board Decisions

Mar 8, 1977

228 N.L.R.B. 593 (N.L.R.B. 1977)

J. R. WOOD 593
J. R. Wood, Inc. and Food Processing and Allied
Workers Teamsters Local Union No. 748,
I.B.T.C.W.H.A., Petitioner, and International
Union of Operating Engineers, Stationary Local
39, AFL-CIO, Petitioner. Cases 20-RC-12417
and 20-RC-12430
March 8, 1977
DECISION ON REVIEW AND
CERTIFICATION OF RESULTS
BY MEMBERS FANNING, PENELLO, AND
WALTHER
On February 20, 1976, the Acting Regional
Director for Region 20 issued a Supplemental
Decision and Direction of Second Election in Case
20-RC-124171 in which he sustained Petitioner's 2
Objections 3 and 11 to conduct affecting the results
of the election, directed that a second election be
conducted, and approved the Petitioner's request to
withdraw its other 11 objections.
Thereafter, in accordance with Section 102.67 of
the National Labor Relations Board Rules and
Regulations, Series 8, as amended, the Employer
filed a timely request for review contending, inter
alia, that the Acting Regional Director departed
from Board precedent in sustaining the objections.
By telegraphic order dated May 27, 1976, the
Board granted the Employer's request for review and
also remanded the case for a hearing to resolve issues
of fact relating to certain other alleged objectionable
conduct by the Employer upon which the Acting
Regional Director did not rule .3
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review,
including the Employer's brief, and makes the
following findings:
As indicated, we remanded for hearing because of
conflicting evidence with respect to the Petitioner's
allegation, in Objection 3, that Plant Manager
Bungart advised employees, in speeches on Septem-
ber 23 prior to the September 26, 1975, election, that
the Employer "would never negotiate or grant a wage
increase" if the Union won. Thereafter, on August 3,
1976, the Hearing Officer issued a report and
i The tally of ballots for the election showed that, of approximately 435
eligible voters, 302 cast ballots , of which 1 10 were for, and 174 against, the
Petitioner in Case 20-RC-12417. There were also 18 challenged ballots
which were not sufficient in number to affect the results of the election.
2 All references to the Petitioner refer to Food Processing and Allied
Workers, Teamsters Local Union No. 748, IBTCWHA. Prior to the election,
the International Union of Operating Engineers , Stationary Local 39, AFL-
228 NLRB No. 65
recommendation finding, based on the credited
evidence, that Plant Manager Bungart did not make
the alleged threats, but in fact acknowledged to
employees that the Employer was aware of its
bargaining obligation and would negotiate over
wages in the event the Union won. In the absence of
exceptions thereto, we adopt pro forma the Hearing
Officer's findings and, accordingly, overrule that
portion of Objection 3 relating to the alleged refusal-
to-bargain threat.
As to the effect of the Employer's campaign
literature upon the election, Objections 3 and 11, the
Acting Regional Director found that the Employer's
letters of September 2 and 22, 1975, pertinent
portions of which are attached hereto as an appen-
dix, exceeded the bounds of permissible campaign
propaganda, and warranted sustaining the objections
and setting the election aside. Specifically, the Acting
Regional Director found that repeated and emphatic
letter references indicating that the Company is
already giving "the best wages and benefits we can
afford," and that management would not yield to
union "pressure tactics" to obtain more benefits,
together with a recital of the severe economic
hardships, associated with strikes, in store for
employees in the event of a failure to reach
agreement, conveyed to employees that selection of
the Union would be futile because union bargaining
attempts would inevitably result in strikes and would
be destructive to their livelihood. Unlike the Acting
Regional Director, we do not infer from the
Employer's remarks, or the context within which
they were communicated, that employees had reason
to be fearful of, or feel futility in, voting for the
Petitioner.
Firstly, we note that the September 2 and 22 letters
formed only a part of the Employer's election
campaign which addressed many and varied issues in
speeches and in a total of five letters, and that the
Union responded to those issues in its six similarly
partisan handbills. We also note that the statements
in question are nowhere alleged to be untrue or
misrepresentative; rather, the objections allege only
that they conveyed to employees that the Employer
would refuse to bargain and that they would lose
their jobs if the Union won the election.
However, a careful reading of the letters reveals
that the Employer merely stated that it had no
intention of yielding to pressure, such as strikes, by
the Union for unreasonable or otherwise unaccept-
CIO, advised the Regional Office that it did not wish to participate in the
election . Local 39, therefore , did not appear on the ballot.
3 Although the Acting Regional Director found that conflicting evidence
uncovered upon investigation of Employer's alleged objectionable speeches
raises substantial and material issues of fact which would warrant a hearing,
he found it unnecessary to do so because of having sustained Objections 3
and 11 solely on written campaign literature.
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
able demands; it did not say, or imply, that the
Union would have to strike in order to gain
reasonable demands. Further, the Employer did not
announce anywhere in its campaign literature that it
would not negotiate with the Union; rather, as found
by the Hearing Officer, Plant Manager Bungart
affirmed the Employer's bargaining obligation in
preelection meetings with employees. Moreover, the
Board has approved as permissible campaign propa-
ganda, similar, if not identical, language relating to
an employer's description of existing benefits as the
maximum affordable, unwillingness to yield to union
pressure for more benefits, and discussion of the
economic realities of strikes as a possible conse-
quence of a bargaining impasse.4
In view of the foregoing, we shall reverse the
Acting Regional Director and overrule Objections 3
and 11. Accordingly, as all of the Petitioner's
objections have been overruled,5 and the tally of
ballots shows that a majority of the valid ballots have
not been cast in favor of the Petitioner, we shall
certify the results of the election.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Food Processing and
Allied Workers , Teamsters Local Union No. 748,
I.B.T.C.W.H.A., and that said labor organization is
not the exclusive representative of all the employees,
in the unit in Case 20-RC-12417, within the meaning
of Section 9(a) of the National Labor Relations Act,
as amended.
MEMBER FANNING , dissenting:
Contrary to my colleagues, I would set the election
aside.
The Employer's letter of September 22, 1975, read:
YOU COULD BE LOCKED OUT
Did you know that if this Union is unable to
reach agreement with us, we are entitled by law to
lock out employees. Have the Teamsters been
honest enough to tell you about this? Did you
know that such a lock-out could permanently cost
you your job... .
The Employer 's message to his employees here is
clear: if the Teamsters makes demands that we do
not like or refuses to accede to our demands, we will
not only lock you out but also permanently replace
you. The coercive impact of this statement is
indisputable; the policy announced therein would
effectively destroy the Section 7 right to bargain
collectively.6 This threat alone provides grounds for
setting the election aside; my colleagues, however,
ignore it.
In remanding this case, we raised the lockout issue,
sua sponte, and asked the parties to brief it. In doing
so, we took note of evidence, appearing in the
exhibits to the Regional Director's supplemental
decision, that had not been raised as a part of the
Petitioner's objections but provided prima facie
grounds for setting the election aside. We have long
held that a Regional Director must consider evidence
discovered during a postelection investigation as
relevant to the conduct of said election even though
not specifically alleged as objectionable.? Here,
therefore, we only did what the Regional Director
failed to do. To satisfy due process, however, we gave
the Employer an opportunity to brief the lockout
issue in our order which remanded this case for a
hearing on certain other conduct.
As the issue is now properly before us, I see no
reason not to reach it. In avoiding this issue, my
colleagues forget that the primary purpose of these
proceedings is to protect employee Section 7 rights.
4 See Belknap Hardware and Manufacturing Co, 157 NLRB 1393 (1966);
Bostitch Division of Textron, Inc., 176 NLRB 377 (1%9); Allied/Egry
Business Systems Inc., 169 NLRB 514 (1968).
5 In its May 27 , 1976, telegraphic order the Board sua sponte invited the
parties to comment on the Employer 's reference, in campaign literature
dated September 22, 1975, to locking out (and permanently replacing)
employees as a possible basis for setting the election aside ; the Employer
alone submitted a brief. Because of the Petitioner 's failure on review to
express any interest in participating in another election , or even briefing the
issue as requested , Member Penello and Member Walther have not
considered the merits of the lockout issue posed by the Board. Rather, in
view of these circumstances and the Board's decision herein that none of the
Petitioner's objections warrant setting the election aside , they would not
order another election in this case.
8 The use of temporary replacements during a lockout imposed to
support an employer 's bargaining position violates Sec. 8(axl) and (3).
Inland Trucking Co. and Wesley Medahn Co- Partners d/b/a Oshkosh Ready
Mix Co, 179 NLRB 350 (1969), enfd. 440 F.2d 562 (C.A. 7, 1971); Ottawa
Silica Company, 197 NLRB 449 (1972) ( Member Jenkins and my dissenting
opinion); Inter Collegiate Press, Graphic Arts Division, 199 NLRB 177 (1972)
(Member Jenkins and my dissenting opinion ). A fortiori, the use of
permanent replacements during a bargaining lockout also violates Sec.
8(a)(l) and (3). See Johns-Manville Products Corporation, 223 NLRB 1317
(1976).
r E.g., Thomas Products Co., Division of Thomas Industries, Inc., 169
NLRB 706 (1%8).
APPENDIX
Pertinent portions from Employer's letters of Sep-
tember 2 and 22, 1975.
September 2 letter:
That is why, despite our size, we have always done
all we could to make you happy, and to make this a
place where you would be proud to work. We, in
turn, are very proud of the many outstanding
benefits we have been able to provide our employees,
and we are equally proud of providing these benefits
without the intervention of an outside union. Remem-
ber, the benefits and working conditions you have
J. R. WOOD 595
received here have all been free. By "free" I mean
that you have never paid a union initiation fee to
receive them, nor have you ever been forced to pay
union dues, fees or assessments . Most importantly,
you have never had to miss work because of strikes,
picketing or boycotting to achieve what you now have
at Woods.
done before. It is illegal for the Union or anybody
else to interfere with your right to vote against this
Union.
If you make the mistake of letting this outside
Union win the election, as I explained before, there
will be no automatic increases in wages or in
overtime or in anything else, regardless of what the
Union may have told you. Instead, the Teamsters
The benefits described in this letter have been
provided to all of us, without any pressure whatsoever
from any outside union. There has been no union
standing between us, nor have you been required to
pay union dues, fines, assessments, or be subject to
any union discipline to receive these benefits. Most
importantly, you did not have to strike or picket or
lose paychecks to get these benefits. They have been
provided voluntarily because they were the best we
could provide at the time, and that is exactly what this
Company always intends to do. No union on earth can
ever get us to provide more benefits than we can
afford to pay.
I know that things are not perfect here at Woods.
In the past, improvement has come about largely
because of your suggestions. Let's keep it that way.
Because of this election, Federal law prohibits me
from telling you about any of our future plans
regarding your wages, hours and working conditions.
In this regard, our hands are thus temporarily tied.
All I can say for now is that this election means a
lot to all of us. When you hear the union make its
typical promises (and that's all they are - mere
promises), I hope you will keep in mind the things
this Company has done voluntarily for you, and the
fact that these things have been done without your
paying union dues , fees, fines or assessments what-
soever. It has always been our policy to provide you
with the best benefits we can, and no union on earth
can make us do more than that.
September 22 letter:
Dear Employee:
The election that we've all been talking and
thinking so much about will be held right here in our
plant on Friday, September 26, from 10:00 a.m. to
12:00 noon, and again from 5:00 p.m. to 7:00 p.m. I
urge everyone to vote. The election will truly be a
secret ballot election conducted by the United States
Government. The Union will not conduct the
election. The Union will not know how you vote. Other
employees will not know how you vote.
It doesn't matter whether or not you signed any
kind of Union cards or other Union papers because
Federal law protects your right to vote against the
Union no matter what you may have said, signed, or
will nave to sit down and bargain with us about
everything. So everything you now have can be put
on the bargaining table and you could end up with
more benefits, the same benefits, or fewer benefits
than you now have. We may be able to reach
agreement or we may come to a deadlock and have
no contract, depending upon what happens in
negotiations . We have no duty to agree on a contract
and neither does the Union. If we do not reach
agreement, and if there is a deadlock in negotiations,
there is one way that the Teamsters could try to force
us to agree to its demands , even if we consider those
demands unreasonable or which we otherwise cannot
see our way clear to accept. What this Union can do
is pull you out on strike! How many of you have ever
been out of work on strike?
I think most of you know me well enough to know
that I mean it when I say that we have no intention
of yielding to pressure tactics of that kind - ever! I
think you also know that we've always voluntarily
tried to provide you with the best wages and benefits
we can afford.
YOU COULD BE LOCKED OUT
Did you know that if this Union is unable to reach
agreement with us, we are entitled by law to lock out
employees. Have the Teamsters been honest enough
to tell you about this? Did you know that such a
lock-out could permanently cost you your job?' We
would sure hate to ever have to make that decision,
but anything is possible when a union is fighting an
employer. I hope, of course, that you will vote
against the Union so that it will never be necessary
for you or your families ever to consider the
possibility of a strike or lock-out. But in deciding
whether or not you want to support this Union, you
should realize that strikes, picketing and trouble are
facts of life whenever a union is involved. Where
unions are, that's when strikes occur.
Some union strikes have , of course, been longer
and rougher than others. During Teamster Union
strikes in Northern California, it has often been
necessary to get temporary restraining orders or
court injunctions against Teamsters' interference
with employees, customers and suppliers, threats of
violence, actual violence, and illegal picketing, in
order to maintain law and order. I hope we never
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have anything like it here. I don't say for sure that
the Teamsters would definitely strike at Wood's, or
that picketing and violence necessarily are going to
happen here, but I do know that it has happened
before with many unions and I do know that it could
happen here. In recent months the newspapers have
been full of news about various strikes, picketing and
Teamster violence and trouble. You may have read
the article about Local 748's strike against Carnation
Company in Modesto earlier this year, and the
violence, vandalism, jailed pickets, and court orders
issued against Local 748 because of that strike. I
would hate to see anything like that happen to you
and me. Don't let it happen at Wood's - vote "NO."
If the Teamsters win, and in order to try to deliver
on its promises you are called out on strike, I want
you to understand what it really can mean to you
and your family: