Montana Lumber Sales Inc.

National Labor Relations Board - Board Decisions

Aug 21, 1970

185 N.L.R.B. 46 (N.L.R.B. 1970)

46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Montana Lumber Sales Inc. (Delaney & Sons Divi-
sion) and Montana Carpenters District Council,
Lumber and Sawmill Workers Union , United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, Petitioner . Case 19-RC-5062
August 21, 1970
DECISION, ORDER, AND CERTIFICATION OF
RESULTS OF ELECTION
BY MEMBERS FANNING , MCCULLOCH, AND JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties on May
16, 1969, an election by secret ballot was conducted
in the above-entitled proceeding on June 10, 1969,
under the direction and supervision of the Acting
Regional Director for Region 19 (Seattle, Washing-
ton). Upon the conclusion of the election, a tally
of ballots was furnished the parties in accordance
with National Labor Relations Board Rules and Regu-
lations and Statements of Procedure, Series 8, as
amended.
The tally of ballots shows that there were approxi-
mately 22 eligible voters and that 22 ballots were
cast, of which 6 were for the Petitioner, 12 were
against the Petitioner, and 4 were challenged. The
challenged ballots are not sufficient in number to
affect the results of the election.
On June 13, 1969, the Petitioner filed timely objec-
tions to the conduct of the election. The Acting
Regional Director caused an investigation of the objec-
tions to be made and, thereafter, on October 10,
1969, issued and served on the parties his Report
on Objections to the Election. In his report, the
Acting Regional Director recommended that the
Board set aside the election on the basis of Objections
3 and 4. He further recommended that, if the Board
does not concur with said recommendations, a hearing
be held to resolve the credibility question raised in
Petitioner's Objection 2.
Thereafter, on October 23, 1969, the Employer
filed timely exceptions to the Acting Regional
Director's Report with respect to Objections 2, 3,
and 4 and a brief in support of its exceptions, request-
ing that the Board overrule all objections and certify
the results of the election.
On December 16, 1969, it appearing to the Board
that the Petitioner's objections raised issues that could
best be resolved by a hearing, it was ordered that
a hearing be held before a Hearing Officer designated
by the Acting Regional Director, with directions to
prepare and cause to be served on the parties a
185 NLRB No. 12
report containing resolutions of the issues raised with
respect to the Petitioner's Objections 2, 3, and 4.
A duly scheduled hearing was held before Hearing
Officer George L. McCargar on February 11, 1970.
The Employer and the Petitioner appeared at the
hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and
to adduce evidence bearing on the issues.
On March 6, 1970, the Hearing Officer issued
his Report on Objections, finding that the evidence
failed to support Objections 2 and 3 and recommend-
ing that they be overruled in their entirety. He further
recommended that Petitioner's Objection 4 be sus-
tained and that the election of June 10, 1969, be
set aside and a second election be directed. The
Employer filed timely exceptions to the Hearing Offi-
cer'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 rulings made by the
Hearing Officer at the hearing and finds that no
prejudicial error was committed. The rulings are here-
by 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 Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of employees of the Employer with-
in the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.
4. We find, in accordance with the stipulation
of the parties, that the following employees of the
Employer constitute a unit appropriate for the purpos-
es of collective bargaining within the meaning of
Section 9(b) of the Act: All production and mainte-
nance employees of the Delaney & Sons Lumber
Division of the Employer at its plant in Lincoln,
Montana, except and excluding all office and clerical
employees, temporary employees, supervisors, plant
guards and watchmen, and professional employees
as defined in the Act.
5. The Hearing Officer found that Petitioner's
Objection 4 had merit and recommended that the
election be set aside on that basis. We cannot agree.
' In the absence of exceptions thereto, the Board adopts the Hearing
Officer's recommendation that Petitioner's Objections 2 and 3 be overruled
MONTANA LUMBER SALES INC 47
Petitioner's Objection 4 states that:
Under the date of June 7, 1969, postmarked
June 9, 1969, and received late in the afternoon
of June 9, 1969, by the employees a letter was
sent to all employees containing erroneous state-
ments to which there was no possible time for
the Union to reply.
It is uncontroverted that in response to two letters
from Petitioner, one dated June 3, 1969, and the
other June 5, 1969, the Employer prepared an answer
in the form of a letter dated June 7, 1969 (a copy
of which is attached hereto). This three-page document
was placed in the mail on June 8, 1969.
The Hearing Officer found that the portion of
the letter entitled "What the Union Could Mean
to You" contains predictions of loss of employment
and other potential financial hardship, to which,
because of its late delivery, Petitioner had insufficient
time to respond. Further, he concluded that the para-
graph entitled "Getting Forced into the Union" con-
tains an erroneous characterization of the law with
respect to an employee's obligation under a union-
security contract provision. We are convinced by
the wording and content of the letter that "there
does not appear to be any substantial misrepresenta-
tion which involves a departure from the truth so
that the misrepresentation may reasonably be expected
to have a significant impact upon the election."2
The Hearing Officer found objectionable the follow-
ing paragraphs in the letter on the ground that the
Employer thereby shifted the onus for the nonimple-
mentation of several fringe benefits to the Petitioner:
Some of you apparently think our Company
would never have offered to start our fringe
benefit program if it hadn't been for the union.
Those who think so are dead wrong. The only
thing the union did was to file its petition in
such a way that we have had to wait until
after the election before we can begin to pay
the fringes. A union "accident?" Maybe. But
we doubt it. We now believe it was deliberate
by the union.
The letter, in discussing the progress which had
been made by the Employer and the benefits enjoyed
by the employees, also stated.
Well, we have the benefits now, too. The Union
cannot take any credit for any of this. We believe
the only credit the union can claim is for the
delay in when our benefits can be effective.
Standing alone, those portions of the letter would
raise a serious question in light of McCormick Long-
meadow Stone Co., Inc.,' where we found it a violation
of the Act to announce the withholding of, and
to withhold, benefits which an employer had led
its employees to believe would be forthcoming but
for the Union. However, we cannot view those portions
of the letter in isolation from all the circumstances
of this case.
In dismissing Petitioner's Objections 2 and 3, the
Hearing Officer found the following facts:
The Employer commenced internal discussions rela-
tive to certain wage increases and the institution
of various fringe benefits during the early part of
Februery 1969. In mid-March 1969, the Employer
decided to, and did, initiate certain "bracket increases"
to be effective as of March 1, 1969. On March 27,
1969, the Employer reached a decision to grant its
employees a 12-cent-per-hour wage increase, effective
April 1, 1969, and to initiate a fringe benefit plan
including paid vacations, paid holidays, and a health
and welfare program.
On March 28, 1969 (the date the Union filed
its petition), the Employer announced its decision
to its employees at a plant meeting conducted by
the superintendent of mills, Cliff Rawlings. When
Rawlings asked which of the fringe benefits the
employees would like to have initiated first, the
employees indicated that paid vacations held first
priority. Rawlings informed the employees that the
12-cent-per-hour wage increase would be granted on
April 1; that the paid vacation plan could be made
effective "right away"; and that, while the Employer
had decided to institute the other fringe benefits,
it would take some time to do so and that a later
meeting would be held to consider these items in
greater detail.
On April 15, 1969, (after the Employer was notified
of the Union's petition) Rawlings held a second meet-
ing with the employees at which he read a statement
in which the vacation plan was spelled out. Included
in this text were the following statements:
Now, before I get into this fringe benefit question,
I should make one thing clear. Since our March
meeting, we have received word that the Lumber
and Sawmill Workers Union has filed petition
for an election here. That petition really took
us all by surprise. I guess that shows some poor
communications someplace, because we had
always thought that if any of you had a problem
with your job, you would let us know about
it and see if we couldn't solve it on our own,
before any outside Union agents were invited
in. So I'm real sorry that you didn't let us
know about your problems before taking them
' National WaterlGft Company, 175 NLRB No 135, Hollywood Ceramics
Company, Inc,140 NLRB 221, 224 ' 158 NLRB 1237
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to a Labor Union . But, that , of course , is your
business , and we can't and won 't interfere in
that in anyway. [sic]
The fact that a Union filed a petition for an
election after I promised complete and specific
answers on all of the fringe benefits , but prior
to this April meeting which we had previously
scheduled for ourselves back there in March,
has really made for a delicate situation . In March,
I point-blank promised you the Company's full
answer on your request to have the main fringe
benefits in effect here . In fact , when we met
in March , I pretty strongly implied that we
would be having these benefits , as you know.
However , I did have to check through some
of the details with other Company officials before
I could talk with you fully about them. I know
back in March , even before our March meeting,
that the decision had already been made by the
upper Company management to put these
benefits in effect here , but specifics were still
being worked out at the time of our meeting here
in March.
However , the labor law says that in most cases,
a Company shouldn 't change wages , hours, bene-
fits or working conditions after a Union petitions
for an election , until after the election is over
with.
Then there 's another part of the law which says
that if a Company promises something to its
employees , but then refuses to deliver on those
promises after a Union files a petition for an
election , this also has illegal aspects.
So you can see that our Company is sort of
damned if we do , and also damned if we don't
here today . If I talk to you about fringe benefit
improvements , even though this has already been
promised to you , I could be getting our Company
into hot water . If I say I can 't talk about them
now on account of the Union petition , I could
also be getting our Company into hot water.
After a lot of thought, and talking it over among
our Company management people and our attor-
ney, we 've decided the only honest and fair thing
we can do at this point is talk about the fringe
benefits with you, since we've already promised
to do so . This promise was made before we
had any idea of any Union petition, or any
other kind of Union activity . We made this prom-
ise in complete good faith , as a way to answer
the requests for improvements which you had
brought to us, and out of respect to you, our
employees , I don 't think we have any choice
but to go ahead.
We will do these things whether you decide
to have a Union in the election or not. You
won't lose anything if you vote in favor of the
Union . You won 't lose anything if you vote
against the Union . If the Union is voted in,
we will , of course , have to negotiate these matters
with the Union . However , I think the Union
would accept these benefits , and our Company
would immediately offer to grant these benefits
in any negotiations with the Union.
On this matter of a Union , we sure don 't think
you need a Union here to get a fair shake from
this Company . We think that if you simply speak
up and let us know what is on your mind,
you can get along as well or better without
a Union. However , what you do about having
a Union here is your own business , not ours.
And if you decide to have a Union , we'll do
our best to negotiate with the outside Union
representatives . This whole question will be decid-
ed by you in the election which is coming up.
Like I said before , I'm real sorry our meeting
here today has to be complicated so badly by
the problem of what we can and can't say now
that a petition for an election has been filed.
But since you fellows directly asked for answers
on these benefits , and since I promised that
we would give you our answers by April 15,
I feel strongly that our Company is obligated
to give you the full answers you have requested
from us. You now have these answers, and I
again want to emphasize that these benefits do
not depend on how you vote in this up-coming
election . You don't have to vote either against
or for the Union to get these benefits, and,
while we sincerely don't believe you need the
Union here , we also realize that the decision
on this is entirely in your hands.
Subsequent to this meeting , but prior to the election,
two employees were granted vacation checks in
accordance with the Employer's plan announced at
this meeting . The Hearing Officer overruled the
Union 's objection that this action constituted conduct
which interfered with the election . No exceptions
were taken to his recommendation.
It is not alleged , nor did the Hearing Officer find,
that the Employer 's statement to the Employees on
April 15 was improper . The failure of the Employer
to institute all benefits has not been questioned. Rath-
er, Union Objection 2 alleged that the Employer
acted improperly in granting the vacation plan previ-
MONTANA LUMBER SALES INC
ously promised the employees . This objection was
properly found to be without merit.'
In view of the foregoing , it is clear that the portions
of the Employer 's letter dated June 7, 1969, found
objectionable by the Hearing Officer are ambiguous
at most. Although the Employer stated that "The
only thing the union did was to file its petition
in such a way that we have had to wait until after
the election before we can begin to pay fringes,"
it is evident that the employer did not wait to institute
wage increases and the vacation plan, although paid
holidays and health benefits were not instituted. Fur-
thermore, at the meeting of April 15, 1969, the
Employer spelled out its position and reasons therefor
in detail to the employees.
We have held that , where an Employer has made
clear in its campaign statements that its only reason
for postponing expected benefits was to avoid the
appearance of election interference, its action did
not constitute objectionable conduct sufficient to set
aside an election .' We see no reason for a different
holding in this case.
Since the Employer 's actual conduct with respect
to the payment of benefits has not been found objec-
tionable , the paragraphs relating to such benefits in
the June 7 letter must be considered priviliged cam-
paign propaganda under the standards declared in
Hollywood Ceramics.' There we stated at page 224:
We believe that an election should be set aside
only where there has been a misrepresentation
or other similar campaign trickery, which
involves a substantial departure from the truth,
at a time which prevents the other party or
parties from making an effective reply , so that
the misrepresentation whether deliberate or not,
may reasonably be expected to have a significant
impact on the election . However , the mere fact
that a message is inartistically or vaguely worded
and subject to different interpretations will not
suffice to establish such misrepresentation as
would lead us to set the election aside. Such
ambiguities , like extravagant promises , derogato-
ry statements about the other party, and minor
distortions of some facts , frequently occur in
communications between persons. But even where
a misrepresentation is shown to have been sub-
stantial , the Board may still refuse to set aside
the election if it finds upon consideration of
all the circumstances that the statement would
not be likely to have had a real impact on
' See McCormick Longmeadow Stone Co., supra
UARCO Incorporated, 169 NLRB No 162
140 NLRB 221
49
the election . For example , the misrepresentation
might have occurred in connection with an unim-
portant matter so that it could only have had
a de minimis effect. Or, it could have been so
extreme as to put the employees on notice of
its lack of truth under the particular circum-
stances so that they could not reasonably have
relied on the assertion . Or, the Board may find
that the employees possessed independent knowl-
edge with which to evaluate the statements.
Using the above standards , it is clear that the Employ-
er's statement in his letter of June 7 , 1969, could
not "reasonably be expected to have a significant
impact on the election ." Furthermore , since the record
indicates that the Union was made aware of the
employer's letter during a union meeting of all employ-
ees the day before the election , it appears that the
Union was not prevented from making an effective
reply.
In the circumstances of this case , we do not believe
that the employees could reasonably have concluded,
nor do we conclude , that the restatement of the
Employer's position was intended to affect, or did
substantially affect the employees ' freedom of choice
in the election. Accordingly , in disagreement with
the Hearing Officer , we overrule Petitioner 's Objection
4.
Accordingly , as all objections to the election are
now overruled and as the tally of ballots shows that
a majority of the valid votes has not been cast in
favor of Petitioner, we shall certify the results of
the election.
CERTIFICATION OF RESULTS OF ELECTION
IT IS HEREBY CERTIFIED that a majority of the
valid votes has not been cast for Montana Carpenters
District Council Lumber and Sawmill Workers Union,
United Brotherhood of Carpenters and Joiners of
America , AFL-CIO, and that said labor organization
is not the exclusive representative of the employees
in the unit found appropriate within the meaning
of Section 9(a) of the National Labor Relations Act,
as amended.
APPENDIX A
To Our Employees:
We're now at that critical time when you have
to decide this union question . Everyone of us knows
we've had some problems here in the past. That
is no reason why anyone should vote for the union
on Tuesday.
Our problems have been caused mainly from three
fires at this mill in the last 10 years . The last one
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occurred in 1967. We underwent a big loss to rebuild
this mill and start operations again . Did the LSW
offer to loan us any money? You bet they didn't.
They just waited around until we got back on our
feet. Now here they are, camped at our doorstep,
greedy to get in our plant.
Some of you apparently think our Company would
never have offered to start our fringe benefit program
if it hadn't been for the union. Those who think
so are dead wrong. The only thing the union did
was to file its petition in such a way that we have
had to wait until after the election before we can
begin to pay the fringes. A union "accident?" Maybe.
But we doubt it. We now believe it was deliberate
by the union.
What's past is past. What counts now is the present.
We now have a program of wages and benefits which
are excellent for the size and kind of operation we
have at Lincoln. Our program is as good, or better,
than at Mt. Lolo, where this union did manage to
get in the plant (and where the employees have been
trying unsuccessfully to get back out for several years).
If the union gets in our plant here now, it won't
mean any "automatic" increases on anything, except
maybe the amount of money you would end up
having to pay the union. Please don't be fooled into
thinking otherwise. I don't care what "promises"
the union may make. Union "promises" are just
a lot of hot air. Don't let yourselves get "bought"
by meaningless union promises. You'll always be sorry
if you do.
If we can continue to cooperate closely together,
we can continue to make really fine progress here
in every respect. We've always followed the industry
"pattern" here in Montana on our wages. No union
was necessary for you to get this in the past, and
it won't take a union in the future. We were behind
on benefits, because we couldn't afford them due
to those disasterous fires. Well, we have the benefits
now, too. The union cannot take any credit for any
of this. We believe the only credit the union can
claim is for the delay in when our benefits can be
effective. That June 3 letter from the union to you
was plain trash, from one end to the other. We've
got no high-powered "specialists" assisting us-only
the union can afford that sort of thing. We're not
afraid of this union for one second. We believe Elkhorn
is going to vote against this union. The Elkhorn
employees have voted against this union several times
in the past few years. They've seen this union up
close, and they know the kind of deals this union
sometimes pulls. And we say again, there is sure
no use of you paying money to this or any other
union because there is nothing the union coul.d get
for you which you can't get just as easy and fast
for yourselves. We sincrerely are convinced of this.
Up to now, we've had the freedom to sit down
together and work our problems out among ourselves.
Sure, there have been some rough spots. But a union
wouldn't change that one bit. In fact, a union could
easily create 10 rough spots for every one we've
ever experienced up to now.
With the union in this plant, you would lose your
freedom almost totally. You couldn't come to anyone
in management directly on any problem. You would
have to go through an outside union business agent.
The union is asking you to surrender almost all
of your personal freedom and your individual rights
to them. What do you get in exchange? Let's have
a real close, open, and above-board look at some
of the things you would get in exchange:
WHAT THE UNION COULD MEAN TO YOU
1. Getting forced into the union : The union manages
this little stunt through the "union shop ." The "union
shop" means you have to belong to the union, and
pay your dues , initiation fees , etc., to keep your
job. If you don't , the union sees to it that you
get fired . The Company is then supposed to hire
someone who will be willing to put up with the
union 's nonsense , and who will pay his money to
the union . It's a nice neat arrangement for a guaran-
teed income for the union . For you , it could easily
mean guaranteed insecurity in your job with our
Company.
2. Union trials and union fines: Once you become
a union member , you are then completely under
the union power . If you violate their "rules and
regulations", they can now put you on trial. They
do put people on trial . They can fine you if you
are found guilty . And they can take you to court
to collect the fine if you refuse to pay. They can
even garnishee your wages, if you refuse to pay their
fines!
3. The union costs you MONEY Let's face it.
The union isn't free . In addition to the high monthly
union dues (which get higher each year), there are
the fees , and assessments, and maybe the fines. This
comes out of your pocket. If this LSW union is
in the plant, and you become a member , you wouldn't
have much choice but to pay every cent of the money
the union demanded of you.
4. Union-called strikes: Look at the record. The
LSW strike record in our region is pretty sad. One
recent LSW strike was at Stoltze Lumber Co. at
Columbia Falls . That one went for months and
months . Most strikers got replaced . They lost out
MONTANA LUMBER SALES INC
on everything. If the LSW got in here, you could
face this same possible situation.
5. Getting permanently replaced in your job: If
a union calls an economic strike against a Company,
the Company has the right to replace the strikers
with permanent replacements. This has happened in
many LSW-called strikes. It happened at Stoltze.
The smaller the plant, the quicker the Company
has been able to replace the strikers.
6. The union can't guarantee anything: This is
critically important for everyone to remember. The
union can promise anything it believes will "buy"
votes in the election. But it can't guarantee a single
thing, except that it will want your money every
month no matter what happens.
7. The union has no stake in our plant: The union
didn't build this mill. The union doesn't have to
meet the payroll. You don't see any of the union
agents doing any of the work here. They won't loan
any money if we go on the skids. If they got you
in a strike which went sour, they could (and would)
walk away from it. They have. They wouldn't help
you find other jobs. The union could easily end
up making a real mess of things here just like they
have at several other small operations. They could
walk away from it. We couldn't. You and I would
be left trying to pick up the pieces. Often, there
isn't much left to pick up. The former Stoltze employ-
ees who got replaced in the LSW-called strike are
still wondering what happened.
8. Union thrives on trouble: Unions and "trouble"
in a plant just seem to go together. If a plant doesn't
have a lot of trouble when the union gets in, it
often happens that the union agents try to stir things
up. They have to make themselves look needed. Other-
wise, the employees would get tired of having to
pay the dues, etc. real quick. We just don't believe
our plant needs someone coming around trying to
stir up trouble all the time. We don't believe that
51
is going to help anyone who works here accomplish
anything worthwhile.
WE CAN SOL VE OUR OWN PROBLEMS
We're a small plant. We can speak our minds.
You can get the very best in wages and benefits
we can afford to give, and the union is not necessary
for you to get any part of it. There is no reason
in the world that you should pay all that money
out to the union. There is no reason why you should
subject yourselves to all the potential problems this
LSW union could bring into our plant.
IF IN DO UBT, VOTE NO!!
Some of you may have doubts. If so, we strongly
urge that you vote NO in the election . If you're
unhappy at the end of a year , you can always get
this or any other union back for another election.
However, it doesn 't work in reverse . You can't vote
the union in on Tuesday , and then figure you can
get it out in a year if you are unhappy with it.
Federal labor laws make this very complicated, and
also the union would fight each of you right down
to the wire if you tried it. Ask our Mt. Lolo employ-
ees- they know real well how this works . Also, unions
are now even trying to fine members who try to
get the union back out , once it gets in. And those
fines are not small-some of them run into the hun-
dreds of dollars.
We are convinced your best interest is to vote
NO. Be sure you vote . It will be a secret ballot
election . You are free to vote exactly as you personally
see fit . The past counts for nothing. This election
determines the whole thing.
Fellows , this union has been passing around some
real trash . It could end up to be a real trap for
a lot of you . We sincerely hope that you will think
this over carefully, and then vote "NO" on Tuesday.
We know you won't regret it if you do.
Sincerely,
Don Delaney