Otterbacher Manufacturing, Inc.

National Labor Relations Board - Board Decisions

May 29, 1986

279 N.L.R.B. 1167 (N.L.R.B. 1986)

OTTERBACHER MFG
Otterbacher Manufacturing , Inc. and United Steel-
workers of America, AFL-CIO-CLC, Petition-
er. Case 8-RC-13207
29 May 1986
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
The National Labor Relations Board, by a three-
member panel, has considered objections to an
election held 24 May 19851 and the hearing offi-
cer's report recommending disposition of them.
The election was conducted pursuant to a Stipulat-
ed Election Agreement. The tally of ballots shows
21 for and 12 against the Petitioner, with 2 chal-
lenged ballots, an insufficient number to affect the
results.
The Board has reviewed the record in light of
the exceptions and briefs, has adopted the hearing
officer's findings and recommendations only to the
extent consistent with this decision, and finds that a
certification of representative should be issued.
The hearing officer recommended that the elec-
tion be set aside based on his finding that a third-
party's assertion regarding the Employer's inten-
tions toward its employees created an atmosphere
of fear which interfered with a free election. We
agree with the hearing officer's conclusion that the
case should be analyzed under the third-party
standard. However, considering all the circum-
stances , we do not agree that an atmosphere of fear
interfered with a free election.2
The assertion was contained in what purported
to be an interoffice memorandum between Ray
Blankenship, a labor relations consultant, and his
associate regarding an earlier meeting between the
consultants and the Employer's president. The
memorandum asserted that the Employer was
vengeful and deceitful and that, without the Union
to help the employees, the Employer would dis-
charge the employees because they had sought
union representation. The record shows that the
memorandum, which was typed on stationery
which identified the consultant's firm as represent-
ing management in union matters, was posted on a
bulletin board in the Employer's plant. It was seen
by at least 15 of the Employer's 35 employees.3
The representation petition was filed on 2 April.
In the second week of April, the Employer's presi-
dent, Gary Otterbacher, interviewed a law firm
' All dates are in 1985 unless otherwise indicated
2 In the absence of an exception, we adopt pro forma the hearing offi-
cer's recommendation that the Employer 's Objection 5 be overruled
3 The memorandum is reproduced in an appendix to this decision
1167
about representing the Employer in the organizing
campaign. The following day, Otterbacher con-
ducted a similar interview with Management Con-
sultant Blankenship and Blankenship's associate.
Blankenship spoke disparagingly of the law firm
when told that they had also been interviewed. A
few days later Otterbacher chose the law firm and
informed Blankenship of his decision. Thereafter,
Blankenship billed Otterbacher $900, which Otter-
bacher disputed and refused to pay.
The parties stipulated that Dan Martin, the Peti-
tioner's subdistrict director, received in the mail a
copy of the memorandum. That day, about 3 May,
a Board agent and Ancil Mitchell, a former em-
ployee of the Employer, were in the Union's office
investigating Mitchell's discharge which had oc-
curred approximately 2 weeks earlier. Martin testi-
fied that he received the memorandum, showed it
to the Board agent and Mitchell, and gave them
copies. Martin testified that Mitchell asked for a
copy of the memorandum and Martin gave it to
him. He also testified that he gave Mitchell no in-
structions about what to do or not do with the
memorandum. Mitchell had been on the in-plant
organizing committee before he was terminated.
However, Martin testified that he had had no con-
tact with Mitchell regarding the organizing cam-
paign after Mitchell was fired. There is no evi-
dence which connects Mitchell with the posting of
the memorandum.
The hearing officer found that, in the first week
of May, a copy of the memorandum was posted on
a bulletin board at the Employer's plant, and at
least 15 of the Employer's 35-employee comple-
ment saw it at that time. No person who testified
saw the memorandum being posted. One employee
testified that he saw another employee show a
copy of the memorandum to other employees
before a copy was posted.
Otterbacher had the memorandum removed from
the bulletin board the same afternoon that it was
posted and consulted with the law firm regarding
how to respond. Within 2 days after the memoran-
dum was posted, Otterbacher called meetings of all
of the employees in groups of seven to nine em-
ployees. He testified that during these meetings, he
explained that the consultant who had authored the
memorandum was angry because the Employer
had hired the law firm instead of the consultant.
He also told the employees that he was not deceit-
ful as the memorandum had accused and that he
was not "out to get" the employees. An employee
testified that Otterbacher said that the memoran-
dum was false and that he, Otterbacher, did not
have any intent to fire the employees.
279 NLRB No. 160
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About 10 May, several employees received
copies of a campaign letter on the Petitioner's sta-
tionery which was signed by Martin. The letter
questioned why an earlier employer campaign
letter had not addressed the comments of the con-
sultant Blankenship's memorandum and questioned
the Employer's representatives' credibility.
Otterbacher testified that he called other meet-
ings of the employees during May and discussed
campaign issues such as wages and benefits, but did
not again refer to Blankenship's memorandum. He
stated that he thought that his reply to the memo-
randum was ineffective and that the employees no
longer believed him.
The hearing officer found that the memorandum
did not involve a misrepresentation, misleading
campaign statement, or forgery by a party to the
election within the meaning of Midland National
Life Insurance Co., 263 NLRB 127 (1982). He
looked instead to the Board's decisions concerning
third-party conduct and found the Board's decision
in Frates, Inc., 230 NLRB 952 (1977), applicable. In
that case an employee became aware of a docu-
ment, signed by an employer representative, con-
taining a detailed plan for closing the facility if the
union won the election. The employee, who had
become aware of the document in an unauthorized
manner , informed other employees of the employ-
er's plans. The Board found that when the contents
of the employer's plan became known, the only
conceivable result was the creation of a coercive
atmosphere precluding a fair election. It noted that
the employer did not disavow the plan to close the
terminal and, in dicta, stated that in the face of the
employer's clear statement that it would close, it
was unlikely that disavowal would have been effec-
tive.4 Accordingly the election was set aside on the
union's objections.
In this case, the hearing officer concluded that
Blankenship's memorandum conveyed to the em-
ployees the impression that, if the Petitioner lost
the election, their employment was in jeopardy. He
concluded that this created an atmosphere of fear
of reprisal which interfered with a free election.
The hearing officer further found that although
there was sufficient time for the Employer to reply
to the consultant's memorandum, the nature of the
charges made it impossible for the Employer to
refute the contents of the memorandum fully.
The Employer excepted to the failure of the
hearing officer to find the Petitioner directly re-
4 The hearing officer also cited Monroe Auto Equipment Co, 230
NLRB 742 (1977), and James Lees & Sons Co, 130 NLRB 290 (1961) In
both cases elections were set aside based on numerous third-party state-
ments that the employers would close if the unions involved won the
elections
sponsible for the atmosphere created by its publica-
tion of the memorandum among the employees and
reference to the memorandum in its 10 May cam-
paign letters. However, there is no evidence which
links the Petitioner with the production or distribu-
tion of the memorandum . Nor does reference to
the memorandum in a campaign letter make the
Petitioner responsible for the memorandum.
The Petitioner excepted to the hearing officer's
finding that an atmosphere of fear of reprisal exist-
ed. We find merit to this exception. Whether em-
ployees' free choice in an election is interfered with
by an atmosphere of fear and coercion is deter-
mined by an objective evaluation of the facts.
James Lees & Sons, supra at fn. 1. In this case,
there was a single third-party assertion which was
posted and removed in one afternoon more than 2
week$ before the election. Within 2 days the Em-
ployer held small group meetings with all its em-
ployees. In these meetings Otterbacher denied any
intent to discharge employees because they had
sought union representation. Otterbacher explained
the consultant's retaliatory motive for allegedly
writing the memorandum so that the employees
had sufficient information with which to evaluate
the assertion . Upon consideration of these circum-
stances , we do not believe that the employees' free
choice was interfered with by an atmosphere of
fear of reprisal.
Frates, Inc., supra, relied on by the hearing offi-
cer, is inapposite. In that case, the document that
was found to create an atmosphere of coercion was
the employer's own detailed plan to close the plant
if the union won the election. The Board was will-
ing to assume arguendo that the employer was not
responsible for the document's dissemination, but it
concluded that grounds for overturning the elec-
tion were established nonetheless. The memoran-
dum was written by one of the employer's manag-
ers and not disavowed by any member of manage-
ment . In these circumstances, employees could rea-
sonably believe that voting for the union might
well mean losing their jobs.
The instant case is closer to U.S. Electrical
Motors, 261 NLRB 1343 (1982). There, a newspa-
per article and a related editorial raised a theme of
possible strike violence and also implied that the
employer would close if the union won the elec-
tion. The Board found no basis for concluding that
the newspaper was an agent of the employer, and it
accordingly evaluated the article and the editorial
under the third-party conduct standard-whether
they created "a general atmosphere of fear and co-
ercion so as to render the conduct of a free elec-
tion impossible." Id. at 1344 fn. 5. Noting that, on
the day before the election, the newspaper had
OTTERBACHER MFG.
published on its front page a rebuttal by the union
of the article and editorial, the Board concluded
that the article and related editorial did not create
an atmosphere of fear that would render impossible
a free election. Our holding in the present case
would appear to follow a fortiori; for, unlike the
union in U.S. Electrical Motors, which could not
authoritatively say whether the employer there
might close its plant, the Employer's president
here, who denied that the Employer would fire or
otherwise discriminate against employees because
of their union activities, was clearly in a position to
know and control the Employer's policies. More-
over, President Otterbacher's explanation that the
memorandum had been written for a retaliatory
motive gained credence from the clear disclosure
in the memorandum itself that Blankenship had
talked with Otterbacher about the union campaign
and had not been hired as Otterbacher's labor con-
sultant. Because the employees had good reason to
discount the contents of the memorandum, it
cannot be said that the Employer has carried its
burden of showing that an atmosphere of fear and
coercion existed to make impossible the conduct of
a free election.
Because a majority of employees have selected
the Petitioner to represent them, we will issue a
certification of representative.
CERTIFICATION OF
REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid bal-
lots have been cast for United Steelworkers of
America , AFL-CIO-CLC and that it is the exclu-
sive collective-bargaining representative of the em-
ployees in the following appropriate unit:
All production and maintenance employees ex-
cluding all office clerical employees , and pro-
fessional employees , guards and supervisors as
defined in the Act.
MEMBER JOHANSEN, concurring.
I concur in the result of the case. However, inas-
much as the management consultant did not testify
1169
in the hearing and there is no evidence that he was
given the opportunity to confirm or deny author-
ship, I would not name him nor would I publish
the memorandum as an appendix.
APPENDIX
Office of
Blankenship and Associates, Inc.
April 11, 1985
INTEROFFICE MEMO
TO: Stephen H. Confer
FROM : Ray Blankenship
SUBJECT: Otterbacher Manufacturing Company,
Crestline, Ohio
Our recent visit to talk to Gary Otterbacher at his
plant revealed the truth of the fears that you and I spoke
about his several phone calls to me about the Steelwork-
ers Union. Without the union to help them, the employ-
ees are going to be fired and abused simply because they
south the union to repreent them, and the fact tht they
might vote against the union in the election will not stop
otterbacher from carrying out his plans to engage in the
activity he explained to you and me. He just maliciously
intends to vent his anger on all the employees who have
supported the union.
There have been only a few companies that I absolute-
ly refuse to represent , but Gary Otterbacher is one. He is
also an example of other companies that I have refused
to represent, those that set out on a designed path to be
vengeful toward their employees, and who intends to
violate the law and wanted me to assist them in such ef-
forts.
I wish I could explain to the employees that they need
the Steelworkers Without the Steelworkers to help
them, they don't stand a chance. Further, I am glad Ot-
terbacher has Steve Nobil to represent him in the Steel-
workers election. Otterbacher and Nobil go togeter.
Both are decitful, and neither has any credibility. Maybe
Otterbacher's employees will see through their smoke
screens before the union election.
Let me know your observations were.
RAY BLANKENSHIP
cc: File