Eagle Transport Corp.

National Labor Relations Board - Board Decisions

Mar 31, 1999

327 N.L.R.B. 1210 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1210
Eagle Transport Corporation and International
Brotherhood of Teamsters-Tankhaul Division,
AFL–CIO, Local 528, Petitioner. Case 10–RC–
14919
March 31, 1999
DECISION AND CERTIFICATION OF RESULTS
OF ELECTION
BY MEMBERS LIEBMAN, HURTGEN, AND
BRAME
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held June 25, 1998, and the hearing officer’s report rec-
ommending disposition of them. The election was con-
ducted pursuant to a Stipulated Election Agreement. The
tally of ballots shows 11 for and 22 against the Peti-
tioner, with no challenged ballots.
The Board has reviewed the record in light of the ex-
ceptions and brief,1 and has decided to adopt the hearing
officer’s findings and recommendations only to the ex-
tent consistent with this Decision and Certification of
Results of Election.
The Petitioner’s objections allege that the Employer
interfered with employees’ free choice by referring to
letters from customers in meetings held with its employ-
ees during the critical period prior to the election, and by
thereafter posting four customer letters. The Employer
has excepted to the hearing officer’s recommendation
that the latter objection be sustained. For the reasons set
forth below, we disagree with the hearing officer’s rec-
ommendation that that objection be sustained.
The Employer is engaged in the transportation of pe-
troleum products. The Employer’s customers are major
oil companies and small distributors of petroleum prod-
ucts. The Union is seeking to represent the drivers em-
ployed at the Employer’s Doraville, Georgia terminal.
During the Union’s organizing campaign, the Em-
ployer conducted several meetings with its employees to
convey its opposition to unionization. The Employer’s
director of operations, Ron Thomas, told employees at
one meeting that job security is provided by customers,
that without customers the jobs would cease to exist, and
that the nature of the petroleum supply industry was that
competitors were continuously trying to take customers
away. At a subsequent meeting, the Employer’s vice
president, Bob Heinisch, made reference to letters the
Employer had received from four of its customers. He
stated that he would not discuss the content of the letters
at the meeting, but rather would post the letters at a later
date.
The Employer thereafter posted the four customer let-
ters on a green poster board which was prominently dis-
played next to a glass-enclosed bulletin board in the
hallway of the Employer’s facility. Written on the bot-
tom of the poster board was “VOTE NO!!” and an “x”
mark in a rectangular box. The hearing officer found that
the poster was displayed from June 19 to 23, 1998, 2
days before the election. The letters each essentially
state that it had come to the customer’s attention that the
Employer’s drivers were considering unionizing and, if
that occurred, the customer might need to make other
business arrangements.2 The posted letters were the sub-
ject of repeated conversations among the employees prior
to the election. All the letters were addressed to the Em-
ployer’s marketing representative for Georgia, Jay
Swanger.

1 The Employer was the only party to file a brief.
The hearing officer concluded that the posting of the
letters constituted objectionable conduct. She found that
the Employer failed to proffer any direct evidence to
authenticate the letters. Absent such authentication, the
hearing officer reasoned that the Employer could not rely
on the contents of the four letters for the truth of the mat-
ters asserted therein because, in the hearing officer’s
view, the letters were nothing more than hearsay docu-
ments. Therefore, the hearing officer found that the Em-
ployer had failed to establish that it had an objective fac-
tual basis upon which to believe that the letters conveyed
demonstrably probable consequences beyond its control,
as required by NLRB v. Gissel Packing Co., 395 U.S. 575
(1969). She further found that the Employer had actu-
ally solicited the letters from the customers. The hearing
officer stated:
2 The letters provide in pertinent part:
It has come to our attention that Eagle may be unionized in
the near future. Although we have enjoyed a very good business
relationship with Eagle in the past, we feel that in order to give
our customers the very best service we will need to make a
change if that happens. As you know, the margins in the gas
business are so low and the competition at the retail level so in-
tense that we need to keep all our costs down as low as possible.
Please keep me informed. . . . [Letter from Dekalb Petroleum,
Inc.]
It has been brought to our attention that Eagle Transport driv-
ers are considering unionizing. This very much concerns us in
that rates will likely rise. Because of this new development, we
just want to let you know that we are in the market of looking for
a new transport service as we must keep costs as low as possible.
Please keep us informed. . . . [Letter from P & B Petroleum Co.]
It has been brought to our attention that Eagle Transport may
possibly be going to unionized drivers. That being the case, Clay-
ton Oil may need to make other arrangements due to the circum-
stances of our operation. I would appreciate being kept advised. .
. . [Letter from Clayton Oil Co.]
We have heard rumors that drivers of petroleum carriers are
considering joining a union in the Atlanta area. As you know, we
did not replace our transport after the fire in 1995 and have used
outside carriers to move our product since that date. These out-
side carriers have done a satisfactory job thus far and we will con-
tinue using their services in their present structure. Please keep us
advised on the activity of this possibility of a union structure. We
will have to take a long hard look at the ramifications which may
exist should this come about. With all the rules and regulations of
a union shop we would have to consider putting our own unit into
service and hiring our own drivers. This allows us a lot more
flexibility in truck utilization and could be a cost saver as well.
[Letter from Lance Oil Co.]
327 NLRB No. 198
EAGLE TRANSPORT CORP. 1211
[T]he letters were merely a tool of the Employer’s to
assist in its campaign to defeat the Union and . . . their
posting interfered with the employees’ free choice in
the election by indirectly threatening the loss of em-
ployment due to loss in business as a consequence of
unionization.

. . . .

. . . [T]he Employer accomplished through the apparent
auspices of its customers . . . what it could not do di-
rectly, i.e., to threaten its employees with the loss of
employment because they sought to be unionized.

The hearing officer thus recommended that the Petitioner’s
objection regarding the posting of the letters be sustained.3
Having carefully reviewed the record, we find, for the
reasons set forth below, that the Employer’s communica-
tions with its employees did not exceed the bounds of
permissible campaign statements.
Initially, we observe that: “[A]n employer is free to
communicate to his employees any of his general views
about unionism or any of his specific views about a par-
ticular union, so long as the communications do not con-
tain a ‘threat of reprisal or force or promise of benefit.’”
NLRB v. Gissel Packing Co., supra at 618. An employer
may even make a prediction as to the precise effects that
he believes unionization will have on his company.
However, any such prediction “must be carefully phrased
on the basis of objective fact to convey an employer’s
belief as to demonstrably probable consequences beyond
his control” or to convey a management decision already
made. Id. Applying this standard here, we find, contrary
to the hearing officer, that the Petitioner’s objections
should be overruled.
The record does not support the hearing officer’s find-
ings that the customers’ letters had not been properly
authenticated and that they had been admitted into the
record for the limited “purpose of what had been alleg-
edly referred to in the captive audience [employee] meet-
ings and then posted for employees to view.” On the
contrary, the record clearly shows that the letters were
admitted into evidence without any objection or limita-
tion. Indeed, the hearing officer herself stated on the
record that the letters “were stipulated to prior to the
hearing[.]” No question was raised at any time by either
party as to the authenticity of the letters, despite constant
mention of the letters at the hearing. At no time during
the course of the hearing did the hearing officer advise
the parties that she was accepting the letters into evi-
dence for a limited purpose. Under these circumstances,
it was error for the hearing officer to disregard the par-
ties’ stipulation and conclude, sua sponte, after the close

3 The hearing officer accordingly found it unnecessary to pass on the
Petitioner’s objection asserting that the Employer improperly refer-
enced the four customer letters in the employee meetings.
of the hearing, that the letters had not been properly au-
thenticated.4
The record, thus, shows that the Respondent received
the letters from its customers and thereafter posted them.
The posted letters accordingly constitute actual customer
statements that they may need to make “other arrange-
ments” for petroleum suppliers if unionization of the
Employer occurred. The Employer accurately conveyed
these customer statements to employees by posting the
letters verbatim. Most significantly, the posting did not
go beyond the objective facts—what was actually stated
in the letters. We accordingly find that the Employer’s
posting of the letters was supported by objective fact
under Gissel, conveyed demonstrably probable conse-
quences beyond the Employer’s control, and thus did not
constitute objectionable threats.5
The hearing officer credited the testimony of the Em-
ployer’s witnesses that it did not discuss or characterize
the content of the customer letters at its meetings with
employees, but rather stated that it would post the letters.
The Employer, thus, comported with the Court’s admoni-
tion in Gissel that coercive speech can be averted by
“avoiding conscious overstatements [the employer] has
reason to believe will mislead his employees.” Id. at 620.
We accordingly find no merit in the Petitioner’s objec-
tion asserting that the Employer engaged in objectionable
conduct by merely making reference to the letters at its
employee meetings.
We note that the burden is on the Union, as the object-
ing party, to show that the Employer engaged in objec-
tionable solicitation of the letters from its customers. We
find that the Union has failed to meet its burden here, as
the record fails to show that the Employer solicited the
letters from its customers. In finding the objectionable
conduct, the hearing officer primarily relied on the testi-
mony of Director of Operations Thomas. He testified
that Marketing Representative Swanger had told custom-
4 See McCormick, Evidence, § 54 (2d ed. 1972). (“If the evidence is
received without objection, it becomes part of the evidence in the case,
and is usable as proof to the extent of the rational persuasive power it
may have.”)
In addition, the hearing officer drew an adverse inference from the
Employer’s failure to call its Marketing Representative Swanger to
authenticate the letters. Given our finding, above, however, that the
letters were admitted into evidence without objection or limitation, we
reverse the hearing officer on this point as well and conclude that the
Employer was not obligated to call Swanger to authenticate them.
5 See Long-Airdox Co., 277 NLRB 1157, 1158 (1985) (employer
lawfully told employees that a customer would be “very apprehensive
of ever sending any work” to the employer in the event of unionization;
employer’s statements were corroborated by testimony of customer).
By contrast, in Reeves Bros., 320 NLRB 1082, 1083 (1996), on
which the hearing officer relied, the Board found that the employer’s
statement that customers “would remove their business” in the event of
unionization “went beyond the objective facts (what was actually said
in the customer letters)” and constituted a threat of reprisal. Unlike
Reeves, here, as emphasized above, the Employer merely posted the
actual customer letters it received and thus did not go “beyond the
objective facts.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1212
ers that “if the customers [felt] that strongly about the
[union] situation they needed to put it in writing.” This
testimony does not establish that the Employer ap-
proached its customers to obtain the letters from them.
Indeed, the record is silent as to who approached whom.
Thus, an equally plausible reading of this testimony is
that the customers initiated the conversations because of
their concern about the union situation. Further, even if
the Employer initiated the conversation, the evidence
does not establish that it told the customers to write let-
ters. The Employer merely told them that if they felt
strongly about the Union, they should put their views in
writing. Further, the fact that the letters were similar
does not establish that the Employer solicited the letters.
Finally, the record fails to establish that the letters repre-
sented anything other than the genuine views of the cus-
tomers.6 We do not believe that it was objectionable for
the Employer to share those views with its employees.
Phrased differently, the Employer was not required to
withhold this relevant information from its employees.
Finally, the hearing officer stated that “it is difficult to
understand the urgency” of the concerns expressed by
three of the four customers because they were operating
under contracts with the Employer, two of the customers
had recently signed 3-year contracts in March 1998, and
one of the customers (Lance Oil Co.) no longer used the
Employer as its primary petroleum carrier. It is, how-
ever, not the proper role of a hearing officer to second-
guess business judgment or “give . . . gentle guidance by
over-the-shoulder supervision.” NLRB v. Columbus
Marble Works, 233 F.2d 406, 413 (5th Cir. 1956). In any
event, the hearing officer’s speculation is in conflict with
the record, which shows that the Employer was actively
seeking to regain the business of Lance Oil, that custom-
ers have breached their contracts with the Employer in
the past, and that the contract of at least one customer
was due to be renegotiated in the near future. In sum, the
evidence relied on by the hearing officer falls far short of
establishing that objectionable solicitation occurred.7
Accordingly, for all these reasons, we overrule the Pe-
titioner’s objections and, as the Petitioner has failed to
secure a majority of the valid ballots cast, we shall cer-
tify the results of the election.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots
have not been cast for International Brotherhood of
Teamsters-Tankhaul Division, AFL–CIO, Local 528, and

s.
6 We find no basis for our dissenting colleague’s inference that the
letters reflected the views of the Employer and not the customers. This
inference is wholly speculative and is not supported by the record evi-
dence.
7 The dissent, in agreeing with the hearing officer’s conclusion, as-
signs unwarranted probative weight to the evidence relied on by the
hearing officer which is, at best, ambiguous and speculative.
that it is not the exclusive representative of these
bargaining unit employee

MEMBER LIEBMAN, concurring in part and dissenting in
part.
I agree with my colleagues that the four “customer let-
ters” that are the subject of the Petitioner’s objections
were admitted into evidence without objection or limita-
tion and, therefore, it was error for the hearing officer to
conclude that the letters had not been properly authenti-
cated.
Contrary to my colleagues, however, I would find that
the record supports the hearing officer’s key finding that
the Employer solicited the letters from its customers. In
my view, it is highly improbable that, within a brief pe-
riod of time, the Employer would independently receive
four letters from four major customers (or potential cus-
tomers), all addressed to the same Employer official,
using similar wording and expressing similar concerns
over the consequences of unionization. In these circum-
stances, the inference is warranted, and I would draw it,
that the letters were prepared at the behest of and re-
flected the views of, the Employer, not the customers.
Under NLRB v. Gissel Packing Co., 395 U.S. 575, 618
(1969), an employer may advise employees of the state-
ments actually made by its customers concerning the
effect unionization may have on the customer’s willing-
ness to continue doing business with the employer. See
the discussion in Reeves Bros., 320 NLRB 1082, 1083
(1996). This is so because the customer’s actual state-
ments constitute “objective facts” within the meaning of
Gissel. Id. Customer statements that are solicited by an
employer, however, call into question the objective fac-
tual nature of the statements; whether the statements in-
deed are beyond the employer’s control; and whether
they are an accurate representation of the customer’s
position absent employer involvement. In this case, there
was nothing “objective” or “factual” about so-called
“customer letters” because the Employer was the real
party responsible for the dire statements they contained
predicting loss of business.
There can be no dispute that statements that appear to
be from customers raising the specter of cessation of
business with the employer in the event of unionization
will have a highly significant impact on employee choice
in representation elections. The Board’s fundamental
responsibility to safeguard free and fair elections requires
that we ensure that such statements are genuine. The
Board’s failure to do so permits an employer to accom-
plish indirectly through its customers what the Act pro-
hibits the employer from doing directly: threatening em-
ployees with loss of employment because they seek to be
unionized. I agree with the hearing officer that the “cus-
tomer letters” were not genuine and that it was objec-
tionable for the Employer to post them.