North American Car Corp.

National Labor Relations Board - Board Decisions

Dec 24, 1980

253 N.L.R.B. 958 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
North American Car Corporation and Teamsters and
Chauffeurs Local Union 529 a/w The Interna-
tional Brotherhood of Teamsters, Petitioner.
Case 4-RC-13859
December 24, 1980
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
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 objections filed by
the Intervenor, Brotherhood of Railway Carmen of
the United States and Canada (herein also called
the Union), to a runoff election held on December
20, 1979,1 and the Regional Director's report rec-
ommending disposition of same. The Board has
considered the report in light of the exceptions and
brief, and hereby adopts the Regional Director's
recommendations, findings, and conclusions only to
the extent consistent herewith.
On December 18, 1979, 2 days before the runoff
election, the Employer distributed to its employees
a letter, signed by the company president, indicat-
ing that they were receiving "special" treatment
and that their fringe benefits exceeded those of
union employees at other of the Employer's facili-
ties, but that, "[i]f you vote for the Union, you'll
simply be considered as another BRC union shop
and dealt with accordingly." The fundamental issue
presented by the case is whether the Employer,
through its campaign literature, overstepped the
bounds of legitimate electioneering and impliedly
made a promise of benefits or threatened employ-
ees with reduced wages and benefits if they voted
for the Union. We disagree with the Regional Di-
rector's assessment of the Employer's tactics and
their potential effect on the outcome of this elec-
tion, and conclude that the Employer overstepped
permissible boundaries and a new election is re-
quired.
The relevant portions of the campaign material
stated:
THE COMPANY HANDOUTS EXPLAIN IN DETAIL
EXACTLY HOW THE SAYRE EMPLOYEES HAVE
RECEIVED SPECIAL TREAMENT FROM NORTH
AMERICAN CAR. YOUR WAGES, FRINGE BENE-
FITS AND COMPANY SPONSORED ACTIVITIES
An election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tally was 29 for the Petitioner, 67 for the
Intervenor. and 78 against the participating labor organizatolns; there
were 4 challenged ballots Thereafter, a runoff election was conlducteld on
December 20, 1979 The tally was 74 for. and 104 against, the Interenor;
there were no challenged ballots
253 NLRB No. 128
ALI. EXCEED THOSE OF ANY BRC UNION SHOP.
WE WANT TO CONTINUE TO CONSIDER THE
SAYRE EMPLOYEES AS A SPECIAL. GROUP. IF
YOU VOTE FOR THE UNION, YOU'LL SIMPLY BE
CONSIDERED AS ANOTHER BRC UNION SHOP
AND DEALT WITH ACCORDINGLY.
THE SAYRE EMPLOYEES AND EVEN THE UNIONS
THEMSELVES HAVE INDICATED THAT THE
SAYRE SHOP PAYS VERY GOOD WAGES. WE
INTEND TO CONTINUE INCREASING WAGES
EVERY YEAR JUST AS WE HAVE IN THE PAST,
AND IN DOING SO WE WII. BE. TAKING INTO
CONSIDERATION THE INCREASE IN COST OF
LIVING. YOU HAVE MORE FLEXIBIITY WITH-
OUT A UNION CONTRACT BECASUE YOUR
WAGES ARE REVIEWED ONCE EACH YEAR. THE
BRC UNION CONTRACTS FIX WAGES FOR THRIEE
YEARS AT A TIME, AND THOSE CONTRACTS DO
NOT HAVE AN UNLIMITED COST OF LIVING
PROVISION EITHER.
IF YOU GO UNION, EVERYTHING IS SUBJECT TO
RENEGOTIATION. THIS MEANS YOUR FRINGE
BENEFITS, WAGES AND COMPANY SPONSORED
ACTIVITIES COUI.) POSSIBIY CHANGE OR BE
REDUCED. UNIONS FREQUENTLY GIVE AWAY
BENEFITS IN EXCHANGE FOR A CLOSED UNION
SHOP PROVISION AND A CHECK OFF CLAUSE.
WHAT ABOUT THE EMPLOYEES AT ROSCOE ANI)
STAPLES WHO HAVE LOST THOUSANDS OF DOL-
I.ARS AND BEEN PERMANENTLY REPLACED BE-
CAUSE THEY FOLLOWED THE UNION'S LEAI)ER-
SHIP IN DEMANDING MORE THAN THE COMPA-
NY COULD AGREE TO.
I ENCOURAGE ALI. OF YOU TO KEEP YOUR
JOBS RATHER THAN POSSIBLY BEING PERMA-
NENTILY REPLACED IN THE EVENT OF A
STRIKE-KEEP YOUR INDIVIDUAL RIGHI TO
SPEAK FOR YOURSELF-KEEP YOUR STANDING
AS THE SPECIAL NORTH AMERICAN CAR SHOP
FOR WAGES AND FRINGE BENEFITS ARE
HIGHER THAN AT THE OTHER BRC SHOPS.
I AM VERY ENCOURAGED ABOUT THE FUTURE
OF THE SAYRE SHOP. THERE'S NO REASON WHY
IT CAN'T CONTINUE TO BE THE SPECIAL SHOP
IN THE NORTH AMERICAN CAR ORGANIZATION.
ON THE OTHER HAND, IF YOU VOTE UNION,
YOU'LL BE I)EALT WITH JUST LIKE ANY OHTER
UNION SHOP.
958
NORTH AMERICAN CAR CORPORATION
I SINCERELY BELIEVE THAT THE UNION CAN'T
AND WON'T DO ANYTHING FOR YOU-IN FACT,
IT COUI.I) WORK TO YOUR DISADVANTAGE.
The Regional Director correctly stated that the
Employer clearly "conveyed the message that it
would have no incentive to continue the Sayre em-
ployees' premium wages and benefits if they voted
for Union representation .... " However, we dis-
agree with the Regional Director's conclusion that
any objectionable impact of the Employer's "mes-
sage" was dissipated when the Employer later "ex-
plained" to employees that wages and benefits
would be determined by collective-bargaining ne-
gotiations when it stated, "If you go union, every-
thing is subject to renegotiation. This means your
fringe benefits, wages and company sponsored ac-
tivities could possibly change or be reduced."
Rather, when the statements are viewed as a total
course of calculated conduct and when proper
weight is accorded to the tone of the campaign
propaganda and literature, the implication of the
Employer's message to its employees becomes
clear. The fact that up to now the Sayre employees
"have" received "speciar' treatment, that the Em-
ployer "wants" to consider Sayre employees as a
"special" group, that it "will be taking into consid-
eration the increase in cost of living," that the Em-
ployer encourages employees to keep their jobs
rather than "possibly being permanently replaced"
in the event of a strike, that "if you vote union,
you'll be dealt with just like any other union
shop," all emphasize the Employer's control over
the employees' economic status and the futility and
the economic hazards of selecting a union. In view-
ing the Employer's campaign propaganda as a
whole, the statements in this case are much like
those in Oak Manufacturing Company, 141 NLRB
1323 (1963), in which the Board set aside the elec-
tion. There the Board explained (141 NLRB at
1325):
An examination of the letters demonstrates
that they go far beyond any attempt to elimi-
nate possible confusion in the minds of the
voters. In fact, they contain cleverly phrased
threats to the economic position of the em-
ployees. The entire content of both messages is
directed to impressing upon the employees
that they could only be adversely affected by
selecting the Union. Clearly, the intent and
purpose was to demonstrate to the employees
that the Union's selection would not improve
their economic situation and might well result
in reduced wages, job security, and employ-
ment opportunities, whereas its rejection
would result in retention of their present bene-
fits and the receipt of additional, improved
benefits.... In this context, we find the Em-
ployer's statements to be a threat to the eco-
nomic welfare of the employees.
We find that the Employer, by distributing cam-
paign propaganda on December 18, 1979, engaged
in a course of conduct impliedly promising benefits
or threatening the employees with loss of wages
and benefits, which interfered with their exercise of
free choice in the runoff election. In all other re-
spects we affirm the Regional Director's findings 2
and conclusions.
The Objections
Based upon our findings herein, we shall sustain
the Intervenor's Objection 2 and set aside the
runoff election conducted on December 20, 1979.
We shall remand the case to the Regional Director
for Region 4 to conduct a new election when he
deems the circumstances permit a free choice of a
bargaining representative.
ORDER
It is hereby ordered that the runoff election con-
ducted on December 20, 1979, be, and it hereby is,
set aside and that the case be, and it hereby is, re-
manded to the Regional Director for Region 4 to
conduct a new election when he deems circum-
2 Attached to said letter were photographs and a "fact sheet" listing
six of the Emploer's facilities where the Union had struck and the ap-
proximate wage lost by employees at those plants. The photograph,
were allegedly taken al the North American Car Corporation's Staples.
Minnesota plant and show men picketing The photograph caption reads.
"This has been a very violent dlsruptive strike which has lasted for over
a year and has resulted In the permanent replacement of all employees "
Ihe Regional DIirector found the Fmployer's reference to the piossibility
of a strike within the bounds of permissible campaign conduct The
tinion excepted contending the overall impression given by the letter,
photos. and "fact sheel" was that a strike was inevitable if the employees
',oted for the Union The niion argued that the Employer implied it
would adopt a hard bargaining posture which threatened the loss of em-
ployment ahd the Inevitability of a strike if employees choiese a collec-
tiveh bargaining representative
In its exceptions. the Union contends, although its objections did not
specifically allege, that the Employer indicated it would refuse to negoti
ate on the termination date of the contract with the Union when it stated
in its letter, "All of the present RC union contracts have different ter-
mination dates and North American Car plans on continuing this posl-
tion", and that the Employer gave the clear message that bargaining n
the event ,of unionization would begin from scratch hen the photo-
graphs of strikers and the Employer's "fact sheet" are coupled with its
statement, "If you go uilon everything is subject to enegotiarrtion" In
view of our decision n this case Ordering a second electionl and due to
the fact that the abovementioned contentions of the ULnion were raised
for the first time in its exceptions, we do not decide them on their merits
Chairman Fanninig would find that the totality of the Employer's cam
paign was calculated to impress upon the employees that they could only
he adverse1l affcted by selecting the Union Considering the overall
context of the Employer's campaign, he would find that the Employer
threatened that a strike was Ilevtable, and also find that the statements
by the Employer which the Union lludes to n its exceptions constitute a
threat to bargain from cratch and a threat to refuse to negotiate on the
termination date of a contract, and that these threats also constitute ob-
jectionable conduct.
96(O D[FCISIONS OF NATIONAl LABOR RELATIONS BOARI)
stances permit a free choice of bargaining repre- [Direction of Second Election and Excelsior foot-
sentative. note omitted from publication.]