Pacific Telephone Company

National Labor Relations Board - Board Decisions

Jun 9, 1981

256 N.L.R.B. 449 (N.L.R.B. 1981)

PACIFIC TELEPHONE COMPANY 449
Pacific Telephone Company and Communications
Workers of America, AFL-CIO, Petitioner.
Case 20-RC-15087
June 9, 1981
DECISION AND DIRECTION OF
SECOND ELECTION
The National Labor Relations Board has consid-
ered objections to an election held on June 20,
1980,1 and the Regional Director's report recom-
mending disposition of same. The Board has re-
viewed the record in light of the exceptions, and
hereby adopts the Regional Director's findings and
recommendations. 2
As found by the Regional Director, Petitioner's
Objection 1 alleges that on June 16, 1980, an agent
of the Employer made material misrepresentations
of fact and law to the employees which affected
the results of the election. On that date the Em-
ployer's manager distributed a letter to unit em-
ployees which reads, in pertinent part, as follows:
Between now and June 20, you will have to
decide for yourself whether you will be better
off with or without a union. This is an impor-
tant decision and I strongly encourage you to
give it careful consideration.
The first question you must ask yourself is,
"Do I really need a union?" Personally, I be-
lieve the answer is "No."
The main function of a union is to bargain
with the Company to improve wages, hours
and working conditions. The fact of the matter
is, however, that the wages, hours and benefits
you receive today are equal to those provided
to Pacific Company Business Service Centers
employees represented by a union.
The fact that your present wages, hours and
benefits are equal to those of union represent-
ed employees is the result of the Company's
long standing policy to provide similar wages
and working conditions to all employees re-
gardless of whether employees are union rep-
resented or not.
Thus, I believe you already receive in wages
and benefits all that you could reasonably
expect a union to obtain for you. And you re-
ceive equal wages and benefits without having
The election was conducted pursuant to a Stipulation for Certifica-
tion Upon Consent Election The tally was 10 votes for Petitioner. 7 for
the intervenor (Telecommunications International Union). and 25 against
the participating labor organizations; there was I challenged ballot which
was not sufficient to affect the results of the election.
2 In the absence of exceptions, we adopt, pro forma, the Regional Di-
rector's recommendation that the Petitioner's Objections 2, 3, 4, 5. and 6
be overruled.
256 NLRB No. 70
to pay union dues or being subject to union
bylaws or regulations.
In finding that the Employer's statements in the
above letter were objectionable, the Regional Di-
rector relied on our recent decision in American
Telecommunications Corporation, Electromechanical
Division, 249 NLRB 1135 (1980).3 In that case, an
NLRB representation election had been held at one
of the employer's facilities and organizing was un-
derway at a second facility. In response to the ac-
tivity at its second facility, the employer told em-
ployees that they would receive any benefits se-
cured by the union for employees at the unionized
facility because the company made a practice of
spreading benefits equally throughout all operating
divisions. The employer added that the employees
did not need a union because they would just pay
dues and get nothing for it. The Board found these
statements violative of Section 8(a)(l) of the Act,
on several interrelated grounds. First, the employ-
er's statement to unit employees that they would
receive all the benefits of a union contract without
a union constituted a promise of benefits made for
the purpose of coercing employees into rejecting a
union. Second, the statement indicated that union
representation for unit employees would be a futil-
ity and that in no event would union representation
result in improvements of working conditions for
unit employees. Finally, the employer made clear
to employees the futility of the selection of a bar-
gaining representative by also stating that with "a
union you just pay dues and get nothing for it
"4
The facts in the instant case are strikingly simi-
lar. Thus, here, as in American Telecommunications,
the Employer not only stated that the unrepresent-
ed employees received benefits equal to represent-
ed employees, he also stated that employees would
continue to receive such benefits whether repre-
sented by a union or not. This constitutes the
promise of a benefit to encourage employees to
reject the union and indicates to employees the fu-
tility of selecting a representative. The indication
of futility is highlighted by the Employer's state-
ment that employees already receive in wages and
benefits all they could expect a union to obtain for
a The Regional Director found it unnecessary to determine whether
Objection I encompassed the statements of the June 16, 1980, letter, in
light of her finding that Board precedent permits an election to be set
aside on the basis of objectionable conduct not specifically alleged but
discovered during the course of the Regional Director's investigation of
specific objections.
4 The Board also found the respondent employer's statement was con-
trar) to the bargaining obligation that would ensue if the union were cer-
tified at one of its plants Neither this factor, nor the fact that respondent
employer's remarks concerned uniform benefits at several facilities signifi-
cantly distinguish .4merican Telecommunications from the instant case
PACIFIC TELEPHONE C MPANY "9
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them. It is implicit, perhaps even overt, in the em-
ployer's statements that the policy of providing the
same wages, with or without a union, would be
continued in the event the union won the election,
and the statements thus crossed to the wrong side
of the line. As the Board observed in Turner Shoe
Company, Inc., 249 NLRB 144, 146 (1980):
Communications which hover on the edge of
the permissible and the unpermissible 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."'
[Georgetown Dress Corporation, 201 NLRB 102,
116 (1973)]. As the Supreme Court has noted,
an employer "can easily make his views
known without engaging in 'brinksmanship'
when it becomes all too easy to 'overstep and
tumble [over] the brink,' Wausau Steel Corp. v.
N.L.R.B., 377 F.2d 369, 372 (7th Cir. 1967). At
the least he can avoid coercive speech simply
by avoiding conscious overstatements he has
reason to believe will mislead his employees."
[N.L.R.B. v. Gissel Packing Co., 395 U.S. at
620].
Further, as in America Telecommunications, the
Employer herein indicated that if the employees se-
lected the Union they would pay dues and receive
nothing for it. Thus, for the reasons we held the re-
spondent employer's conduct to be unlawful in
American Telecommunications, we find the Employ-
er's conduct at issue herein to be objectionable.
Accordingly, we shall set aside the election, and
issue the following:
[Direction of Second Election and Excelsior foot-
note omitted from publication.]