O'Neil Moving and Storage, Inc.

National Labor Relations Board - Board Decisions

Mar 15, 1974

209 N.L.R.B. 713 (N.L.R.B. 1974)

O'NEIL MOVING & STORAGE, INC.
O'Neil Moving and Storage , Inc. and Van Storage
Drivers, Packers, Warehousemen & Helpers Local
389, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America.
Case 21-CA-11650
March 15, 1974
DECISION AND ORDER
Upon a charge duly filed on March 21, 1973, by
Van Storage Drivers, Packers, Warehousemen &
Helpers Local 389, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, hereinafter called the Union, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 21, issued a
complaint and notice of hearing on April 30, 1973,
against O'Neil Moving and Storage, Inc., hereinafter
called Respondent. The complaint alleged that
Respondent had engaged in and was engaging in
unfair labor practices within the meaning of Section
8(a)(1) of the National Labor Relations Act, as
amended, by distributing to its employees a letter
which misstated the law with regard to union-
security clauses and impliedly threatened its employ-
ees with a loss of employment if they selected the
Union as their collective-bargaining representative.
On May 11, 1973, Respondent filed an answer
denying the commission of any unfair labor prac-
tices.
On June 14, 1973, the parties executed a stipulation
of facts by which the parties waived a hearing before
an Administrative Law Judge and the issuance of an
Administrative Law Judge's Decision and recom-
mended Order, and agreed to submit the case to the
Board for findings of fact, conclusions of law, and an
Order, based upon a record consisting of the
stipulation of facts and exhibits, together with the
charge, the complaint, and the answer. On June 15,
1973, the Regional Director for Region 21 referred
the stipulation to the Board for decision.
On June 20, 1973, the Board approved the
stipulation of the parties and ordered the case
transferred to the Board, granting permission for the
filing of briefs. Thereafter, both the General Counsel
and the Respondent filed briefs.
Upon the basis of the stipulation, the briefs,' and
the entire record in this case, the Board makes the
following:
I Following the submission of briefs. General Counsel moved to strike
portions of Respondent's brief on the grounds that factual statements
contained therein are not part of the record now before the Board. To the
extent that Respondent 's brief makes factual assertions not part of the
record, it has not been considered . To the extent that it makes arguments
with regard to the logical consistency of facts as applied to this case, the
FINDINGS OF FACT
I. JURISDICTION
713
O'Neil Moving and Storage, Inc., is, and at all
times material herein has been, a corporation with a
place of business located at 4101 South Main Street,
Santa Ana, California. Respondent is engaged in the
moving and storage of furniture. In the normal
course of its business operations, Respondent annu-
ally performs services valued in excess of $50,000
directly for customers located outside the State of
California.
Respondent admitted, and we find, that O'Neil
Moving and Storage, Inc., is, and at all times
material herein has been, an employer engaged in
commerce and in operations affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Respondent admitted, and we find, that Van
Storage Drivers, Packers, Warehousemen & Helpers
Local 389, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, is
a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
On or about July 18, 1972, the Union began an
organizational campaign at Respondent's place of
business. On or about September 19, 1972, the
Regional Director for Region 21 issued his Decision
and Order directing an election among Respondent's
employees. On or about January 30, 1973, while the
campaign was still in progress, Respondent delivered
a letter to its employees. This letter, which was signed
by Richard H. O'Neil, president of Respondent,
contained, inter alia, the following passages:
Here's what you can expect from Teamsters'
representation: The only contract that the Team-
ster will agree to, if they win the election, is the
industry-wide Southern California area contract,
for the moving and storage industry. This
includes the union shop, among many other
objectionable provisions.
A union shop would require each and every one
of you, as well as any future employee, to be a
brief has been considered . In addition , those factual assertions relating to
the processing of Case 21-RC-12759 and Case 2l-RC-12803, so far as they
are contained also in the official record of those cases, have been considered
because the Board has taken official notice of its own records Accordingly,
the General Counsel's motion to strike is denied
209 NLRB No. 82
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
member of the Teamsters. This would force us to
fire anyone who refuses to become a member and pay
dues, assessments and fines which, are totally
controlled by the Teamsters. We are opposed to
this and do not believe we have any right to force
any of our people to join any union to keep their
jobs. [Emphasis supplied.]
The letter went on to point out that Respondent
was also opposed to many other provisions of the
Teamsters agreement with the moving and storage
industry in Southern California.
Finally, the letter contained the following remark:
We want you to know that, in the event of any
strike in the future, because the Teamsters if they
win the election could not force us to sign their
contract, O'Neil's is not going to close down its
operations for even one day. We would expect
our people to continue working and we would
hire other employees permanently to replace the
present employees who would refuse to cross any
Teamsters' picket line. The law gives us the right
to do this and we would do it.
The election conducted by this Board, to which this
campaign literature was relevant, was held February
22, 1973. The charges herein were filed on March 21.
1973. The Union lost the election and filed objec-
tions thereto, which were dismissed. The results of
the election were certified in July 1973.
B. Contentions of the Parties
The General Counsel contends that Respondent
violated Section 8(a)(1) of the Act by misstating the
law as to the scope of a union-security clause and the
Respondent's obligation to discharge employees
covered by a union-security clause who have not
paid, in addition to dues, fines and assessments levied
by the Union. General Counsel also contends that
Respondent violated Section 8(a)(1) by telling its
employees that it was opposed to the union-security
clause as well as otherprovisions of the Union's area
contract, that the union could only impose these
conditions on Respondent by a strike, that predict-
ably there would be a strike, and that in the event of
a strike Respondent's employees could and would be
replaced, thereby creating a sense of futility in the
minds of its employees towards collective bargaining
through an authorized collective-bargaining repre-
sentative, thus interfering with their Section 7 rights
to engage in protected concerted activities. The
General Counsel also contends that by stating that it
would refuse to bargain on the union-security issue, a
mandatory condition of bargaining, a strike on the
part of Respondent's employees would be an unfair
labor practice strike and that the statement with
regard to replacing strikers was inaccurate. In these
circumstances, the General Counsel contends that
the letter as a whole threatens and coerces employees
in violation of Section 8(a)(l) of the Act.
Respondent admits that it misstated the law when
it referred to a union-security provision that would
compel it to discharge any employees who failed to
pay assessments andfines. Respondent argues howev-
er that such a misstatement in all of the surrounding
circumstances was de minimis and did not have any
tendency to interfere with the employees' organiza-
tional activities. At the same time, Respondent
contends that its letter of January 30, 1973, was
nothing more than an expression of facts and
opinions that did not tend to interfere with the
employees' Section 7 rights.
C. Analysis and Conclusions
The portion of Respondent's letter to employees
which dealt with the union-security issue consisted,
essentially, of three statements, which may be
summarized as follows:
(1) The Teamsters Union insists upon union shop
clauses in its contracts in the area.
(2) A union shop clause is described as forcing the
discharge of an employee who refuses to become
a member and to pay dues, assessments, and
fines.
(3) The Respondent is opposed to union shop
clauses.
Statements (1) and (3) above are clearly privileged,
and General Counsel does not assert otherwise.
Statement (2) is, concededly, an erroneous descrip-
tion of the permissible effect of a lawful union shop
clause . The proviso to Section 8(a)(3) of the Act
which legitimizes discharges under certain kinds of
union-security clauses has been interpreted not to
legitimize discharges requested by a union solely
because an employee has not paid assessments or
fines. Only delinquencies in periodic dues and/or
initiation fees constitute a permissible ground for
discharge under any lawful union-security agree-
ment.
We are, of course, not here examining into the
question of whether there was a material misrepre-
sentation which is asserted to have justified the
invocation of our Hollywood Ceramics 2 rule, pur-
suant to which we will, in proper cases, set aside an
election because voters have, at the last minute, been
2 Hollywood Ceramics Company, Inc, 140 NLRB 221.
O'NEIL MOVING & STORAGE, INC.
seriously misled by last-minute misstatements by a
party. Such misrepresentations may often not consti-
tute unlawful interference under Section 8(a)(1) but
nevertheless be deemed to have had a sufficient
effect on conditions surrounding an election to
persuade us that we can best effectuate our election
policies by conducting a new election under more
healthy conditions. Nevertheless we note that, even if
we were considering the instant misstatement in such
a context, there was ample opportunity for the Union
to have called the employees' attention to the
erroneous statement of the law well before the time
when they cast their ballots in the election we
conducted some 3 weeks after the allegedly offending
letter had been distributed. That factor would have
taken the case out of the ambit even of our
Hollywood Ceramics doctrine, which is concerned
only with last-minute misrepresentations.
But to return to the precise issue presented in this
unfair labor practice proceeding, we do not believe
that a misstatement of the legal consequences of a
possible contract clause, which the contending
Union might demand but to which Respondent was,
in the same breath, expressing its opposition and
indicating its unwillingness to agree to, is the kind of
threat of adverse employer action which constitutes
the gravamen of 8(a)(1) violations.
The remoteness of the predicted adverse effect on
the employee is considerable. It requires the employ-
ee to assume that (1) the Union would indeed insist
upon a union-shop clause; (2) the employer, despite
his announced opposition to such a clause, would
nonetheless agree to incorporate it in an agreement;
(3) the employee would refuse to pay an assessment
or a fine imposed upon him by the Union at some
future date; (4) the Union would then unlawfully
demand his discharge; and (5) the employer would,
under a mistaken view of the law, discharge him.
We think it would be stretching unduly the fabric
of our law to hold that such a set of remote
predictions, however mistaken we as lawyers might
think them to be, constitute so serious an invasion of
employees' freedom as to be a violation of Federal
law and require the exercise of this Board's remedial
authority.
With regard to the remaining allegations, the
General Counsel relies primarily on the Board's
decision in Tommy's Spanish Foods, inc.3 In that case,
the Board found a violation of the Act by virtue of
the employer's absolute rejection of any bargaining
on its part with regard to a union-security clause in
any contract that might be negotiated. In the instant
case, a careful reading of the letter shows that
Respondent was merely explaining to its employees
3 187 NLRB 235, enfd. in pertinent part 463 F.2d 116 (C.A. 9, 1972).
4 Adco Advertising, Inc, d'h/a Pennysaver and Atnpress Incorporated, 206
715
its position on the issues and what it predicted would
be the Union's position with regard to its area
contract with other moving and storage companies.
Respondent's letter does not contain an adamant
refusal to even consider a union shop as was the case
in Tommy's Spanish Foods, supra. To the contrary,
Respondent pointed out, albeit erroneously, what
could happen to its employees if it did in fact accept
a contract with a union-security clause in it. In our
opinion, Respondent's letter of January 30, 1973,
does not create an atmosphere of futility. In view of
this conclusion, we have no basis for stating that any
ensuing strike that might occur would have been
caused by Respondent's unfair labor practices. In
addition, it must be noted that Respondent did not
disavow any intention to bargain with the Union,
but, rather, predicted that the Union would not
recognize various employment factors peculiar to
Respondent's operations insisting instead on Res-
pondent's unqualified acceptance of the Union's area
contract with the possibility of a strike if the
Employer did not accept in toto the area contract. In
these circumstances, we find that the letter did not
contain an anticipatory intent to refuse to bargain
and that it did not contain a threat of loss of
employment.4 Accordingly, we shall dismiss the
complaint.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce
within the meaning of the Act.
2. The Union is a labor organization within the
meaning of the Act.
3. Respondent has not engaged in unfair labor
practices within the meaning of Section 8 (a)(1) of the
Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint be,
and it hereby is, dismissed in its entirety.
MEMBERS FANNING and JENKINS , dissenting:
An employer's misstatement of the law during an
election campaign, which erroneously threatens the
employees with possible dire economic consequences
(loss of employment if union assessments and fines
were not paid) if the union won the election, violates
Section 8(a)(1) of the Act. We cannot agree with our
colleagues' conclusion that it does not.
The majority has, we think, approached this
question from the wrong direction. The thrust of
NLRB No. 58
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their rationale is that (1) the impact, if any, of the
misstatement on the employees is remote; and (2) it
was uttered at a time during the course of the
campaign when the Union could have issued a
communication correcting the employer's misstate-
ment. Neither of these factors, in our opinion, is
relevant to the issue in this case.
Many if not all employer statements in an election
campaign suggesting dire consequences to employees
if they select a union to represent them necessarily
have a "remoteness of impact" quality about them.
No "dire consequences," inevitably predicted by
employers, can or will come to pass until the union
first wins the election, and yet, notwithstanding
"remoteness of impact," we have found threatening
statements by employers violative of Section 8(a)(1)
that predict that (1) if the union is certified it will
make excessive demands, (2) which the employer will
not accept, (3) leading to a strike on the part of the
employees, and (4) which will result in their being
permanently replaced thus losing their jobs 5 Clearly,
as in the instant case, the ultimate "dire conse-
quence" is remote in point of time, and may never
come to pass, but it is not the "remoteness" of the
consequence that is involved; rather, it is the present
or immediate impact on the employees that is
critical. Statements made during the election cam-
paign are made for immediate consideration by the
employee and are made for the purpose of securing
immediate employee reaction: a "no" vote against
the union. Here the employees were told shortly
before the election that if the Union won the
election, employees could (and presumably would)
be fired if they failed to pay union levied assessments
and fines. This clearly misstates the law as to union-
security agreements.
The majority errs when it attempts to defer the
"impact" of the misstatement to some future date
"if" and "when" the union wins the election and
would demand and receive a union-security clause,
fine or assess an employee, demand the discharge of
that employee if he refuses to pay the fine or
assessment , and secure the employee's discharge by
the employer. Insofar as "impact" is concerned, there
is only one "if" involved according to the Employer's
misstatement , and that is, "if" the Union wins the
election, an employee immediately becomes and
remains subject to the potential threat of losing his
job if at some future time he refuses or cannot pay
union levied assessments or fines. The majority's
finding of "remoteness of impact" overlooks one
very simple fact of life. If the Respondent thought as
the majority does that the impact was too remote in
point of time to have any effect on the way the
employees voted, it would not have made the
statement. Just the opposite is true, of course. The
January 30 letter was a carefully worded document
which covered many items of presumed interest to
the employees. Each item was framed in such a way
as to instill in the minds of the employees that voting
for the Union could result in severe adverse
consequences to the employee and it is clear that
each item included in the letter was placed therein in
order to affect the way the employees voted.
In addition, we believe that to hold, as the majority
now appears to be doing, that a coercive or
threatening statement designed to instill in the minds
of the employees potential dire economic conse-
quences because of their unionization will be
measured by the remoteness in time as to when the
impact on the employees may be expected, will open
the door to extensive abuses. Under such a ruling an
employer need only couch his threat in terms (albeit
erroneous) of what the law allows him to do and to
then place the ultimate impact of the threat in the
future.
Another factor which the majority overlooks is the
necessity for a remedial order, in a case like this to
eliminate the impact of Respondent's misstatement
of the law. A union- issued statement correctly stating
the law would not eliminate the impact. At best the
employees would then have before them two con-
flicting statements as to what the law does or does
not allow and would have to risk judging correctly
between them, a task they are not equipped to
perform. We should not subject the employees'
Section 7 rights to the vagaries of such conflicting
opinions, particularly when the misstatement in-
volves the very Act we are charged with enforcing. In
our opinion, only a notice to employees posted by
the Respondent setting forth that it misstated the law
and what the correct law is will eliminate any effects
the misstatement may have created in the minds of
the employees, effects which by their very nature are
lingering and not subject to dissipation through the
passage of time alone.
In short, it is the misstatement of the law, the
employee's immediate consideration of the potential
impact on himself, and his reaction at the polls that
are critical. As the Supreme Court noted, it is the
Board's duty to focus on the question "what did the
speaker intend and the listener understand."6
Because the Employer's misstatement of the law in
this particular case carries with it a threat to the
employees' future job security in the event they elect
to vote for the Union, we would find that the
Employer's misstatement necessarily tends to inter-
5 Glacier Packing Co, Inc., 204 NLRB No. 103
6 N L R B v. Gissel Packing Co, Inc., 395 U S. 575, 619 (1969)
O'NEIL MOVING & STORAGE, INC. 717
fere with the employees ' Section 7 rights in violation
of Section 8(a)(1) of the Act.7
As to the majority' s reference to Hollywood
Ceramics, it would appear that the majority is
attempting to equate the facts of this case with a
principle applicable only to the question of whether
we will or will not set aside an election because of
false campaign propaganda. The Hollywood Ceramics
principle is bottomed on the theory that false
campaign statements will notjustify the setting aside
of an election if the other party had an adequate
opportunity, timewise, to respond or answer the false
statements . The principle can have no application to
misstatements of law which, unlike campaign propa-
ganda, cannot be adequately evaluated by employees
even if they also have a correct statement before
them from the other party.
7 Dayton Food Fair Stores, Inc. v. N LR B ., 399 F .2d 153 (C.A 6, 1968).