Petrochem Insulation, Inc.

National Labor Relations Board - Board Decisions

Mar 24, 2004

341 N.L.R.B. 473 (N.L.R.B. 2004)

PETROCHEM INSULATION, INC. 473
Petrochem Insulation, Inc. and International Associa-
tion of Heat & Frost Insulators & Asbestos
Workers, Local 5, AFL–CIO and International
Union of Petroleum and Industrial Workers.
Case 21–RC–20619
March 24, 2004
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held by mail ballot from June 4, 2003, to June 18, 2003,
and manual polling on June 26, 2003, and the hearing
officer’s report recommending disposition of them. The
election was conducted pursuant to a Stipulated Election
Agreement. The tally of ballots shows 14 ballots for the
Petitioner, 71 for the Intervenor, and 0 ballots cast
against the participating labor organizations. There were
16 challenged ballots, an insufficient number to affect
the result.
The Board has reviewed the record in light of the ex-
ceptions and briefs, has decided to adopt the hearing of-
ficer’s findings and recommendations only to the extent
consistent with this Decision and Direction of Second
Election, and finds that the election must be set aside and
a new election held.
Petitioner’s Objection 2 alleges that the Employer in-
terfered with the election by threatening the loss of
wages and benefits if employees voted for the Petitioner.
Contrary to the hearing officer’s recommendation, we
shall sustain the objection.
The facts are not in dispute. The Employer issued a
memo to all employees on June 3, 2003. In pertinent
part, that memo stated:

Local 5 says Petrochem does not want you to vote for
Local 5. We don’t. Petrochem does not want to lower
your wages and benefits and have 2 Union contracts
that discriminate against the employees. Petrochem
wants all employees to be treated the same.1

The hearing officer found that this statement was not
objectionable because it was merely an expression of the
Employer’s desire to maintain the status quo and because

1 The Employer’s language regarding “2 union contracts” reflects the
fact that the Intervenor represents the Employer’s employees nation-
ally. Therefore, a victory for the Petitioner in the petitioned-for unit
would eventually require the negotiation of two separate collective-
bargaining agreements.
the Petitioner did not show that employees viewed the
statement as a threat. We disagree.
As noted, the Employer has a contract with the Inter-
venor. The record does not expressly disclose whether
the employees represented by the Intervenor currently
earn more, the same, or less than the employees sought
by the Petitioner. However, the implicit suggestion of
the Employer’s memo is that all employees are now
treated the same, and that a vote for the Petitioner would
change that because a separate Petitioner contract would
provide for lesser amounts and would thereby “discrimi-
nate” against those employees.
The Employer’s memo—in particular the phrase “Pet-
rochem does not want to lower your wages and benefits”
—clearly implied to employees that if they successfully
voted in the Petitioner, the Employer would reduce their
wages and benefits. Nothing in the memo disavows or
contradicts this implication. The memo explicitly de-
clared the Employer’s opposition to the Petitioner and
linked that opposition to its own prospective actions.
Although the lowering of wages and benefits referred to
an anticipated collective-bargaining agreement with the
Petitioner, it would not constitute a prediction of adverse
consequences that was both beyond the Employer’s con-
trol and based on objective facts. See generally NLRB v.
Gissel Packing Co., 395 U.S. 575, 618–619 (1969). In
addition, the hearing officer improperly focused on the
employees’ subjective reactions to the Employer’s state-
ment. The Board has long held that the test for objec-
tionable conduct is an objective one and that the subjec-
tive reactions of employees are irrelevant. See, e.g., G.
H. Hess, Inc., 82 NLRB 463 fn. 2 (1949); Hopkins Nurs-
ing Care Center, 309 NLRB 958, 958 fn. 4 (1992) (col-
lecting cases). In this case, the issue is whether the state-
ment can be reasonably understood to threaten the loss of
wages or benefits. We believe that the employees could
reasonably interpret the Employer’s statement as a threat
that if the Petitioner won, they would face reduced wages
and benefits. Accordingly, we sustain the Petitioner’s
Objection 2 and set aside the election.2
[Direction of Second Election omitted from publication.]
2 Because we sustain Objection 2, we find it unnecessary to pass on
the hearing officer’s recommendation that the Board overrule Objec-
tions 1 and 3.
341 NLRB No. 60