Rein Co.

National Labor Relations Board - Board Decisions

Feb 8, 1955

111 N.L.R.B. 537 (N.L.R.B. 1955)

REIN COMPANY 537
adopts the findings and recommendations of the Regional Director in
view of the Board's long-established policy, absent unusual circum-
stances, not to interfere with the Regional Director in the exercise of
his discretion in making arrangements with respect to the conduct of
elections and the counting of ballots. Accordingly, as it appears that
the Petitioner has secured a majority of the valid votes cast in the elec-
tion, we shall certify the Petitioner as the bargaining representative
of the employees in the appropriate unit.
[The Board certified Rice. Workers Local 321, National Agricul-
tural Workers Union, AFL, as the designated collective-bargaining
representative of the employees of the Employer in the unit found
appropriate.]
REIN COMPANY and HOUSTON PRINTING PRESSMEN & ASSISTANTS'
UNION No. 71, INTERNATIONAL PRINTING PRESSMEN & ASSISTANTS'
UNION OF NORTH AMERICA, AFL, PETITIONER . Case No. 39-RC-7928.
February 8,1955
Supplemental Decision , Order, and Direction of Second Election
On June 25, 1954, pursuant to the Board's Decision and Direction
of Election,' an election by secret ballot was conducted under the di-
rection and supervision of the Regional Director for the Sixteenth
Region, among the employees in the unit heretofore found appropri-
ate. At the conclusion of the election, a tally of ballots was furnished
the parties. The tally shows that of approximately 42 eligible voters,
39 cast ballots, of which 12 were for the Petitioner, 21 were against
the Petitioner, and 6 were challenged.
On June 30, 1954, the Petitioner filed timely objections to conduct
affecting the results of the election. In accordance with the Rules and
Regulations of the Board, the Regional Director conducted an inves-
tigation of the objections and, on July 26, 1954, issued and served on
the parties his report on objections to conduct affecting results of elec-
tion, in which he found merit in the Petitioner's objections, and recom-
mended that the Board set aside the election. Thereupon the Em-
ployer filed exceptions to the Regional Director's report.
In his report, the Regional Director found that on the day before
the election the Employer posted on its bulletin board a 7-page letter
to the employees, and also placed copies of the letter on the desks of
departmental foremen where they were picked up by the employees.
The final paragraph of the letter reads as follows :
The law of the land does not require the Rein Company after an
election to negotiate its present benefits into the contract that the
1 Rein Company, 108 NLRB 598.
111 NLRB No. 89.
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union presents. In the case of the National Labor Relations
Board vs. Nash Finch, 211 Federal Reporter Second Series page
622, of the Court of Appeals of the United States, held that it
was not unfair for the employer to tell the employees in advance
of an election such benefits voluntarily given in the past would
be discontinued. We deem it only fair to tell you that we have
this right and that we do not propose to do anything but start
from scratch if the union becomes your bargaining agent, but
we will negotiate collectively as required by the law but will not
feel bound to voluntarily offer in any contract which the union
may negotiate any benefits which may have heretofore been given.
The Regional Director found that the entire letter, except for the
quoted portion, contained customary campaign propaganda. How-
ever, he found that the final paragraph clearly advised the employees
that the existing employee benefits would be discontinued, prior to
bargaining, if the Petitioner was certified as bargaining agent, and
constituted a threat to the employees of loss of certain benefits. He
found that such threats interfered with the employees' freedom of
choice in the selection of a bargaining representative, and therefore,
recommended that the election be set aside.
The Employer, in its exceptions, contends in pertinent part, that
the letter states that it will negotiate collectively as required by law,
but that it will not feel bound to voluntarily offer any benefits, other
than those which the Union may negotiate into its contract. It fur-
ther argues that the letter merely stated a privilege granted under the
law and that it is not unlawful for an employer to make known to
employees those things it had a legal right to do.
We do not agree with the Employer, or our dissenting colleague,
that the quoted portion of the letter conveyed the impression that the
existing employee benefits would be discontinued only after bargain-
ing with the Petitioner, if it won the election, and if the Petitioner
was unsuccessful in its efforts to negotiate existing benefits into the
contract. The Employer's statement to the employees that it could
discontinue existing benefits, followed by its announced intention to
start negotiations "from scratch" if the Petitioner became their bar-
gaining agent, and its reference to benefits "heretofore" given, make
it clear to us, as it must have been to the employees, that the Employer
threatened to discontinue existing employee benefits, prior to bargain-
ing, if the Petitioner was certified as bargaining agent.2
2 The Employer 's reliance on the Nash-Finch case to support its position that it was
not unfair to tell the employees in advance of an election such benefits voluntarily given
in the past would be discontinued, is clearly without merit . In the Nash-Finch case, the
Court found that the Employer did not commit an unfair labor practice by withdrawing
certain benefits and a Christmas bonus after the Employer entered into a collective-bar-
gaining agreement which made no mention of such benfits
REIN COMPANY 539
Accordingly , we find that, by such threats to the employees of the
loss of certain existing benefits, the Employer interfered with the em-
ployees' freedom of choice in the selection of a bargaining representa-
tive. We shall order that the election be set aside and direct that a
new election be held.
[The Board set aside the election.]
[Text of Direction of Second Election omitted from publication.]
MEMBER DODGERS, dissenting :
Like my colleagues , I have read with great care the final paragraph
in the Employer 's 7-page letter to the employees . However, I cannot
agree with them in their construction of the tenor and purport of that
paragraph, or in their conclusion as to its reasonably foreseeable effect
on the employees.
In the paragraph in question the Employer discusses a court of
appeals decision in the first two sentences , and in the third sentence
makes the statement that it does not propose "to do anything but start
from scratch if the union becomes your bargaining representative."
In the very same sentence , the Employer adds-and I deem this sig-
nificant-that "we will negotiate collectively as required by the law
but will not feel bound to voluntarily offer in any contract which the
union may negotiate any benefits which may have heretofore been
given. " The majority seizes upon the first part of the sentence to reach
the conclusion that the "Employer threatened to discontinue existing
employee benefits, prior to bargaining, if the Petitioner was certified
as bargaining agent. " But the Employer did not say anything of the
kind. It seems only fair to read the sentence in its entirety in which
he indicates that in the course of collective bargaining "as required
by the law" he is free to make any offer of terms and conditions of em-
ployment that he sees fit. It is crystal clear that he was privileged to
state his position that he did not have to approach the bargaining
table inhibited by what had transpired before the advent of the union,
and that he could indeed "start from scratch," which is, of course, what
parties characteristically do when they sit down to bargain.
The error in the majority 's reasoning , it seems to me, is to import
a meaning to plain language that is wholly unwarranted. Thus, al-
though practically all of a 7-page letter is conceded to contain custom-
ary campaign propaganda protected by Section 8 (c) of the Act, and
therefore no basis for setting aside the election , a portion of a sentence
at the very end of the document is singled out as having a coercive
effect on the employees . I regard this as nothing more than "straining
at a gnat" to achieve the result that the majority does here . Even the
portion of the sentence that is seized upon hardly furnishes a reason-
able basis for this conclusion , but to wrench it out of context from
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what immediately follows is patently indefensible. Nor do I believe
that the majority gain any greater cogency from the fact that the
Employer may have misconstrued the Nash-Finch decision. I can
find no warrant for setting aside an election because of a misinterpre-
tation of a decision. The test, as the Board has repeatedly held, is
whether the statements made in the course of a preelection campaign
were reasonably calculated to interfere with the employees' freedom
of choice.' Applying that test to the facts under consideration, I have
no alternative but to dissent from the majority's finding.
'National Furev tore Mangefactor img Company, Inc, 106 NLRB 1300.
CLAYTON & LAMBERT MANUFACTURING COMPANY, ORDNANCE DIVISION
and LODGE 681, DISTRICT 27, INTERNATIONAL ASSOCIATION OF TvL4-
CHINISTS, AFL, PETITIONER. Case No. 9-RC-2123. Februafry 8,
1955
Decision and Order
Upon a petition duly filed under Section 9 (c) of the NationalLabor
Relations Act, a hearing was held before Harold M. Kennedy, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.'
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent employees
of the Employer.
3. No question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
The Contract-Bar Issue
The Steelworkers moved to dismiss the petition on the ground that
the current contract bars an election of` representatives at this time.
The contract provides that it is to be effective until December 20,
1953, but that 60 days prior to that date the parties thereto shall
commence negotiations looking to the execution of a new contract to
take effect upon the expiration date of the existing contract. The
1 Fall City Carpenters District Council, United Brotherhood of Carpenters and Joiners
of America, and Millwrights, Conveyors, and Machinery Erectors, Local Union 2209, AFL,
affiliated with the Fall City Carpenters District Council, were permitted to intervene on
the basis of cards signed by 23 of the 38 employees involved, authorizing the Millwrights,
Conveyors and Machinery Erectors , Local Union 2209, to represent them for purposes of
collective bargaining
Local Union No. 4811, United Steelworkers of America, CIO, was allowed to intervene
on the basis of its contractual interest in the employees herein involved.
111 NLRB No. 91.