Tri-Cast, Inc.

National Labor Relations Board - Board Decisions

Feb 27, 1985

274 N.L.R.B. 377 (N.L.R.B. 1985)

TRI-CAST, INC 377
Tri-Cast, Inc. and International Molders and Allied
Workers Union, AFL-CIO-CLC, Petitioner.
Case 7-RC-16468 1 ,' `
27 February 1985
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Pursuant to a Stipulation for Certification Upon
Consent Election,' a secret-ballot election was con-
ducted on 18 September 1981. The tally of ballots
shows that of approximately 25 eligible voters 11
cast ballots for and 12 cast ballots against the Peti-
tioner. There were two challenged ballots, a
number sufficient to affect the results of the elec-
tion . Subsequently, the parties agreed to, and the
Regional Director approved, a stipulation resolving
challenged ballots. The revised tally of ballots
shows 11 ballots for and 14 against the Petitioner.
The Petitioner also filed timely objections to
conduct affecting the results of the election. Fol-
lowing an investigation of the objections, the Re-
gional Director issued his Report and Recommen-
dation on Objections recommending that the Peti-
tioner's Objection 1 be sustained, that the election
be set aside, and that a second election be direct-
ed.2 Thereafter, the Employer filed exceptions and
a supporting brief.
The Board has reviewed the record in light of
the exceptions and brief, and adopts the Regional
Director's findings and recommendations only to
the extent consistent with this decision.
1. On the day of the election, the Employer dis-
tributed a letter to its employees. Paragraph 2 of
the letter stated:
2. We have been able to work on an infor-
mal and person-to-person basis. If the union
comes in this will change.
We will have to run things by the book,
with a stranger, and will not be able to handle
personal requests as we have been doing.
The Regional Director concluded these state-
ments misrepresented employee rights under Sec-
tion 9(a) of the Act,3 under which employees
i The stipulated unit is
All full-time and regular part-time production and maintenance
employees , including leaders and drivers , employed by the Employer
at its 16960 148th Street , Spring Lake, Michigan facility, but exclud-
ing all office clerical employees , guards and supervisors as defined in
the Act.
2 The Regional Director also recommended that the Petitioner's re-
quest to withdraw its Objection 2 be approved There were no exceptions
to this recommendation , and therefore we adopt it pro forma
s Sec 9(a) of the Act reads as follows
Sec 9 (a) Representatives designated or selected for the purposes of
collective bargaining by the majority of the employees in a unit ap-
/ . , i , .
retain the right, with certain limitations, to present
individual ,grievances to their employer. The Re-
gional Director also found that the statements
amounted to a threat to take away existing rights
since the Employer was implying, contrary to Sec-
tion 9(a), that personal requests would not be han-
dled as before because of unionization. Thus, the
Regional Director, relying on Greensboro News Co.,
257 NLRB 701 (1981); Armstrong Cork Co., 250
NLRB 1282 (1980); and LOF Glass, Inc., 249
NLRB 428 (1980), found the statements were ob-
jectionable and warranted setting aside the results
of the election.
We do not agree with the Regional Director's
finding that the Employer threatened to withdraw
rights preserved by Section 9(a). The Employer's
statement, crafted in layman's terms, simply expli-
cates one of the changes which occur between em-
ployers and employees when a statutory represent-
ative is selected. There is no threat, either explicit
or implicit, in a statement which explains to em-
ployees that, when they select a union to represent
them, the relationship that existed between the em-
ployees and the employer will not be as before.
This is especially so, as implied in the Employer's
statement here, where a collective-bargaining
agreement is negotiated.4 Section 9(a) thus contem-
plates a change in the manner in which employer
and employee deal with each other. For an em-
ployer to tell its employees about this change
during the course of, an election campaign cannot
be characterized as an objectionable retaliatory
threat to deprive employees of their rights, but
rather is nothing more or less than permissible
campaign conduct.5 As the Ninth Circuit has ob-
served, "[I]t is a `fact of industrial life' that when a
union represents employees they will deal with the
employer indirectly, through a shop steward."
NLRB v. Sacramento Clinical Laboratory, 623 F.2d
110, 112 (9th Cir. 1980).
propriate for such purposes, shall be the exclusive representatives of
all the employees in such unit for the purposes of collective bargain-
ing in respect to rates of pay, wages, hours of employment , or other
conditions of employment Provided, That any individual employee
or a group of employees shall have the right at any time to present
grievances to their employer and to have such grievances adjusted,
without the intervention of the bargaining representative , as long as
the adjustment is not inconsistent with the terms of a collective-bar-
gaining contract or agreement then in effect. Provided further, That
the bargaining representative has been given opportunity to be
present at such adjustment
4 The proviso to Sec 9(a) specifically provides that employees have
the right to present grievances to their employer without union interfer.
ence "as long as the adjustment is not inconsistent with the terms of a
collective-bargaining contract or agreement then in effect Provided fur-
ther, That the bargaining representative has been given opportunity to be
present at such adjustment "
5 Cf Eagle Comtromcs. Inc, 263 NLRB 515 (1982) To the extent that
the cases relied on by the Regional Director, cited above, are to the con-
trary, they are overruled
274 NLRB No. 59
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furthermore, the Regional Director's finding of
an, objectionable misrepresentation cannot stand. In
Midland National Life Insurance Co., 263 NLRB
127, (1982), the Board stated that it would "no
longer probe into the truth or falsity of the parties'
campaign statements, and . . . will not set elections
aside on the basis of misleading campaign state-
ments."6 • Subsequently, the Board :reaffirmed its
commitment to Midland National when it decided
to treat mischaracterizations of Board actions in the
same manner as other misrepresentations. Riveredge
Hospital, 264 NLRB 1094 (1982). Finally, in Furr's,
Inc., 265 NLRB 1300 fn. 10 (1982), the Board indi-
cated that there was no basis for treating misrepre-
sentations of law differently from any other.misrep-
resentations. Accordingly, we would-not overturn
the election results here even if the letter were read
to have misrepresented employee rights.7
2. In the same letter to employees, the Employer
stated in paragraphs 1 and 3:
1. We are still a young company fighting for
new business. If we have to bid higher or cus-
tomers feel threatened because of delivery can-
cellations (union strikes) we lose business-and
jobs. [Emphasis in the original.]
3. We will lose the flexibility we need to
ship castings and beat the competition. We
cannot stay healthy with union restrictions.
We are much too smalll
The Regional Director concluded that these
comments were veiled threats that business would
decline and jobs would be lost if employees select-
ed the Petitioner to represent them. The Regional
Director found that the Employer failed to show
an objective basis for the predictions stated in the
letter. Thus, the Regional Director determined that
the comments constituted objectionable threats.
Accordingly, the Regional Director also recom-
mended setting aside the results of the election on
this basis.
Contrary to the Regional Director, we do not
view the Employer's statements as threats, but
rather as permissible campaign comments. The Em-
8 263 NLRB at 133
r See Member Hunter's dissent in Hahn Property Management Corp,
263 NLRB 586 (1982)
ployer's printed views and opinions here, when
properly analyzed, are, bereft of threats, and thus
not objectionable.
The - Employer's first • comment is couched in
terms,, of what, might,, happen - "if' certain events
occur. We construe this comment as nothing more
than the Employer's permissible mention of possi-
ble effects of unionization. Higher bids or customer
feelings of dissatisfaction because of problems
caused by union strikes can lead to lost business
and lost jobs. There is no dispute that the Employ-
er is a young company and that higher wages de-
manded by a union -could mean ultimately higher
bids which might, in turn, affect the amount of
business garnered by the Employer. Making these
reasonable possibilities known to employees does
not constitute objectionable conduct.8
Nor does the Employer's reference to loss of
business health constitute objectionable conduct. A
statement by the Employer that it could not remain
healthy with union restrictions because they would
lessen its flexibility and its competitiveness can
only refer to possible restrictive conditions that
may be sought by the Petitioner in future bargain-
ing. These restrictions are possible outgrowths of
unionization, designed to assure the amount and
types of work done by unit members. Since the
Employer's comments reflect possible conse-
quences of unionization, and are moderate in tone,
we conclude that they are not threats of retaliatory
conduct.
Accordingly, we overrule the Petitioner's objec-
tions and certify the results of the election.9
CERTIFICATION OF RESULTS OF
ELECTION
IT IS CERTIFIED that a majority of the valid bal-
lots have not been cast for International Molders
and Allied Workers Union , AFL-CIO-CLC, and
that the labor organization is not the exclusive rep-
resentative of all the employees in the unit herein
involved , within the meaning of Section 9(a) of the
National Labor Relations Act.
8 See, e g, Daniel Construction Co, 264 NLRB 569 (1982), Butler Shoes
New York, 263 NLRB 1031 (1982) Cf Fiorella, 261 NLRB 281, 283
(1982)
8 The Employer requested that a hearing be held on the issues raised in
this case In light of our decision here, there is no need to pass on the
Employer's request for a hearing