Liquid Transporters, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 1981

257 N.L.R.B. 345 (N.L.R.B. 1981)

LIQUID TRANSPORTERS. INC.
Liquid Transporters, Inc. and General Drivers,
Warehousemen and Helpers Local No. 89, affili-
ated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Petitioner. Case 9-RC-
13117
July 29, 1981
DECISION AND DIRECTION OF
SECOND ELECTION
Pursuant to a Decision and Direction of Elec-
tions' issued by the National Labor Relations
Board on August 6, 1980, elections by secret ballot
were conducted on September 5 and 6, 1980, under
the direction and supervision of the Regional Di-
rector for Region 9, among the employees in the
units described below. At the conclusion of the
elections, the parties were furnished a tally of bal-
lots which showed that in Unit A, of approximate-
ly 99 valid ballots, 42 were cast for and 56 against
the Petitioner, and there was 1 challenged ballot,
an insufficient number to affect the results. In Unit
B, of approximately 39 valid ballots, 24 were cast
for and 7 against the Petitioner, and there were 8
challenged ballots, an insufficient number to affect
the results. Thereafter, the Petitioner filed a timely
objection to the election in Unit A. No objections
were filed to the election in Unit B. 2
After an investigation, the Regional Director
issued his Report on Objection and Recommenda-
tions to the Board wherein he recommended that
the Petitioner's objection be overruled and that a
certification of results of election be issued. There-
after, the Petitioner filed exceptions and the Em-
ployer filed an answering brief.
The Board has considered the Regional Direc-
tor's report, the Petitioner's exceptions, the Em-
ployer's answering brief, and the entire record in
the case, and makes the following findings:
I. 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 Petitioner is a labor organization which
claims to represent certain employees of the Em-
ployer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Sections 9(c)(1)
and 2(6) and (7) of the Act.
4. The following unit, designated as Unit A in
the Board's aforementioned Decision and Direction
of Elections, constitutes a unit appropriate for pur-
' 250 NLRB 1421
'On Seplember 15, 1980, the Regional Director certified the Petitioner
as he collecti'e-bargaining representative of the emplolees in Unit
257 NLRB No. 52
poses of collective bargaining within the meaning
of Section 9(b) of the Act:
Unit A: All truck drivers employed by the
Employer at its Fern Valley Road terminal,
Louisville, Kentucky, including owner-opera-
tors and nonowner-drivers of equipment leased
by the owners to the Employer; excluding all
mechanics, mechanics helpers, check-out lane
employees, cleaning rack employees, office
clericals, dispatchers, guards and supervisors
as defined in the Act.
5. The Board has considered the Regional Direc-
tor's report, the Petitioner's exceptions, and the
Employer's answering brief, and hereby adopts the
Regional Director's findings and recommendations
only to the extent consistent herewith.
The Petitioner maintains that letters from the
Employer to the employees dated August 20, 22,
25, and 29, 1980, contain objectionable statements
that warrant setting aside the election. Contrary to
the Regional Director, we find that the Employer
engaged in objectionable conduct by making
threats of loss of jobs, strikes, and loss of business
that had a coercive impact on the employees which
interfered with the results of the election.
Thus, in its August 20, 1980, letter to the em-
ployees, the Employer refers to predictions that
new nonunion carriers "will do their utmost to get
business by undercutting the union carriers' tariffs"
and that "[b]ad business conditions have already
done in a number of large union over-the-road car-
riers." Specifically referring to a union carrier,
Dealers Transport, whose work in Louisville was
taken over by another carrier, the letter states that
"[t]his means that all Dealer Transport's drivers are
now out in the cold." The Employer adds that
"Wilson Freight (one of the country's largest union
truck lines) has recently gone into bankruptcy, put-
ting many of its drivers completely out of work.
Another big union carrier, Johnson Freight Lines,
has gone out of business completely." Finally, the
Petitioner objects to the statement in that letter
that "[t]he same loss of business could very well occur
here in Louisville, if Local 89 should happen to win
the NLRB election here and then try to force the
national contract on us by taking you out on
strike."
In the August 22 letter, the Employer states that
it will never agree to the Teamsters national con-
tract, adding:
The only way the Union could try to force
such a noncompetitive contract on us would
be by taking you out on strike. That is just ex-
actly what they did a couple of years ago at
our Calvert City Terminal, but it didn't suc-
345
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceed in getting the Teamsters or the employ-
ees there anything but lost earnings and bene-
fits .
As far as the Union's National Contract is con-
cerned, they have had a long strike in every
negotiation on it for the last several years.
Even at that, some carriers have not accepted
it, although that meant a still longer strike.
The August 22 letter also refers to strikes by the
Petitioner at Manning Equipment and Dealers
Truck Equipment and Dixie Warehouse which the
Employer characterizes as "very violent" and "vio-
lent" and "unsuccessful." The Employer, more-
over, makes reference to an employee who "had
his eye shot out" in the Manning Equipment strike.
The August 25 letter poses the question, "What
will happen if the Union wins the election and then
calls a strike?" In response, the letter states:
Just remember-there are plenty of unem-
ployed truck drivers looking for jobs now.
Has the Teamsters Union guaranteed to find
you another job as good as the one you now
have, if they take you out on strike and you
are then permanently replaced?
This letter states further that "THE ONLY WAY
YOU CAN BE SURE the Union doesn't cause you
any more trouble in the future is to vote against
them in the NLRB election next week." The Peti-
tioner also objects to the statement in the August
29 letter that "[i]f the Union wins this election,
then your job, your earnings and benefits, and your
working conditions will be in the Union's hands."
Based on the foregoing, we find that the Em-
ployer's repeated references associating the Peti-
tioner with strikes, loss of jobs, and loss of business
had a coercive impact on the employees by tending
to create the impression that such adverse conse-
quences would be a direct result of unionization.3
The Employer maintains that its statements fall
within the bounds of permissible campaign conduct
and that, in the August 20 letter, for example, it
stated that it was "not trying to be alarmist or
threatening about the future which this Company
faces because of the Union." As the Board ob-
served in Turner Shoe Company, supra at 146, quot-
ing from Georgetown Dress Corporation, 201 NLRB
102, 116 (1973):
Communications which hover on the edge of
the permissible and the [im]permissible are ob-
jectionable as "[i]t is only simple justice that a
person who seeks advantage from his elected
use of the murky waters of double entendre
should be held accountable therefor at the
level of his audience rather than that of sophis-
ticated tribunals, law professors, scholars of
the niceties of labor law, or 'grammarians."'
Inasmuch as we have found that the Employer's
campaign, with its emphasis on the adverse conse-
quences of unionization, was clearly coercive and
prevented the employees from exercising their free
choice, we shall sustain the Petitioner's objection.
Accordingly, we shall direct that a second election
be conducted.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
3 Turner Shoe Company. Inc., and Carmen Athletic Industries Inc., 249
NLRB 144 (1980).
346