CPP Pinkerton

National Labor Relations Board - Board Decisions

Nov 30, 1992

309 N.L.R.B. 723 (N.L.R.B. 1992)

723
309 NLRB No. 109
CPP PINKERTON
1 The Region conducted a secret-ballot election by mail between
February 7 and 24, 1992. The Region counted the ballots on March
3.
2 Both the Petitioner and the Employer filed exceptions and briefs,
the Employer filed a brief in opposition to the Petitioner’s excep-
tions, and the Petitioner filed a brief in response to the Employer’s
exceptions.
3 In the absence of exceptions, we adopt pro forma the hearing of-
ficer’s disposition of Objections 2, 3, and the additional (Catchall)
objection.
4 The pertinent contract section states:
ARTICLE 27—CANCELLATION, TERMINATION AND
SUSPENSION
27.1 Owner shall have the unconditional option and right, exer-
cisable at Owner’s sole election, to terminate this Agreement for
Owner’s convenience at any time upon furnishing thirty (30)
days advance written notice thereof to Contractor.
5 Pace testified that Nylen told him that U.S. Steel was actively
seeking bids from competitors, and at one time Nylen had represent-
atives from Wells Fargo in his office.
Pinkerton, Inc., d/b/a CPP Pinkerton and Inter-
national Union, United Plant Guard Workers
of America (UPGWA), Petitioner. Cases 13–
RC–17501 and 13–RC–17910
November 30, 1992
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held on March 3, 1992,1 and the hearing officer’s re-
port recommending disposition of them. The election
was conducted pursuant to the Regional Director’s
Third Supplemental Decision and Direction of Elec-
tion. The tally of ballots shows 60 votes for and 62
votes against the Petitioner, with 1 challenged ballot,
an insufficient number to affect the results.
The Board has reviewed the record in light of the
exceptions and briefs,2 and adopts the hearing officer’s
findings and recommendation concerning all objec-
tions3 except Objection 4. As explained below, we dis-
agree with the hearing officer’s conclusion that this ob-
jection has merit. Accordingly, we find that a certifi-
cation of results of election should be issued.
In Objection 4, the Petitioner alleged that the fol-
lowing letter sent by Site Supervisor Michael J. Pace
Sr. to employees at the U.S. Steel Gary site in late
January or early February constituted a threat of job
loss:
To all Security Officers at USS Gary Works,
As you may have heard, after much legal wran-
gling which has lasted several years, the Labor
Board in Chicago has ruled that an election will
be held for our guards in the Gary district on Feb-
ruary 14, 1992. The matter is now on appeal to
the Labor Board in Washington, so everything
could change. As we get more information about
the election, we will pass it on to you.
At this point, I just want to pass on some clear
information to you, because I know you may have
been hearing many different claims from many
different sources. You should know this: your
wages are pretty much determined by our contract
with U.S. Steel. Thus, any real change in your
wages will have to be negotiated with U.S. Steel.
Then you have to ask yourself—why would our
client agree to an increase? U.S. Steel, like most
of our clients, can place their work elsewhere if
we try to raise our wages too high.
You should bear this in mind when the plant
guard union tells you they can get you wages
higher than what you are now earning. This can
only happen if our client agrees to pay for the in-
crease. If the union demands an increase, the cli-
ent is completely free to cancel our contract and
take its business elsewhere. Then we would no
longer have any jobs at the U.S. Steel facility.
To put it bluntly, the plant guard workers’
wages at other facilities is totally irrelevant. What
U.S. Steel is willing to pay (and what Pinkerton
will agree to) is what matters.
To conclude, we want you to know Pinkerton’s
position that the plant guard union is not wanted
nor needed at the U.S. Steel facility. Quite frank-
ly, there is precious little to gain, and much to
lose, from such a decision.
Please let me know if you have any questions,
and
Please VOTE NO on February 14!
Sincerely yours,
Capt. M. Pace
Pace testified that in many conversations with him,
U.S. Steel Managers Nylen and Kolb stated that U.S.
Steel did not want the Union at U.S. Steel sites, that
corporate sentiment was opposed to the presence of the
Union, and that U.S. Steel would exercise its contrac-
tual option to give 30 days’ notice to the Employer,4
should the Union win the election. Pace also testified
that several employees told him that an unknown agent
of the Union had said that if the Union won the elec-
tion there would be more uniform wages and across-
the-board wage increases. According to Pace, he felt
compelled to warn the bargaining unit, and he did this
in the letter. In addition, Pace told employees who
spoke to him that the U.S. Steel contract had a 30-day-
notice cancellation clause. Pace told employees that
U.S. Steel had this option and that he, Pace, felt U.S.
Steel would pursue it.5
The hearing officer found that the letter was tanta-
mount to a threat of job loss and that no objective
724 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Robert Cottrell and John D’Agostino testified that they were
aware that client companies were free to choose another security
contractor at any time.
The Employer also argued in its exceptions that the hearing officer
improperly drew a negative inference from the Employer’s failure to
have U.S. Steel Managers Nylen and Kolb testify directly, and im-
properly discredited Pace concerning his testimony about the con-
versations with Nylen and Kolb.
7 We therefore need not reach the Employer’s second theory in
support of its exception.
8 See Buck Brown Contracting Co., 283 NLRB 488 (1987); Daniel
Construction Co., 264 NLRB 569, 569–571 (1982). In BI-LO, 303
NLRB 749 (1991), relied on by the hearing officer, the letter at issue
conveyed the employer’s message that employee job security would
be jeopardized if employees chose to be represented by a union. The
letter stated: ‘‘Our constant effort to see that you have a steady job
is one of the many reasons you should vote NO UNION on election
day.’’ BI-LO, supra.
facts were presented in support of the assertion that a
third party controlled the fate of the Employer’s jobs
at the U.S. Steel sites. The hearing officer noted that
the Employer failed to present the direct testimony of
U.S. Steel Managers Nylen and Kolb at the hearing.
The hearing officer therefore drew a negative inference
concerning the statements attributed by Pace to Nylen
and Kolb and concluded that Pace’s testimony in this
respect was not credible. Accordingly, the hearing offi-
cer found that the letter constituted objectionable con-
duct.
The Employer excepted on two grounds. First, the
Employer argued that the letter constituted a statement
of opinion rather than a threat of reprisal and, there-
fore, the objective evidence test is irrelevant. Second,
the Employer argued that even if the letter is viewed
as a ‘‘threat,’’ the record contains the requisite objec-
tive evidence. In this respect, the Employer cited the
termination clause in its contract with U.S. Steel and
testimony of employees that, even before they received
Pace’s letter, they knew U.S. Steel could terminate the
contract at will.6
We agree with the Employer’s contention that
Pace’s letter constitutes a mere statement of opinion
concerning possible third-party action and as such is
no threat of reprisal.7 We note particularly that the lan-
guage at issue in Pace’s letter connotes possibility, not
probability. Thus, the letter opines:
U.S. Steel . . . can place their work elsewhere if
we try to raise our wages too high . . . . If the
union demands an increase, the client is com-
pletely free to cancel our contract and take its
business elsewhere. Then we would no longer
have any jobs at the U.S. Steel facility.
We find that this language merely cautioned that the
Employer’s contracts on any of its jobs could be jeop-
ardized if it did not remain competitive. It did not state
that any adverse consequences would occur if the em-
ployees chose to unionize. This plain statement of fact
does not constitute objectionable conduct in context.8
Accordingly, we find no merit in the Petitioner’s Ob-
jection 4.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots
have not been cast for International Union, United
Plant Guard Workers of America (UPGWA) and that
it is not the exclusive representative of these bargain-
ing unit employees.