Mantrose-Haeuser Co.

National Labor Relations Board - Board Decisions

Feb 21, 1992

306 N.L.R.B. 377 (N.L.R.B. 1992)

377
306 NLRB No. 74
MANTROSE-HAEUSER CO.
1 On June 22, 1990, Administrative Law Judge Martin J. Linsky
issued the attached decision. The Respondent filed exceptions and a
supporting brief, and the Charging Party and the General Counsel
filed answering briefs.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 Out of the 67 eligible voters, 30 votes were cast for the Union
and 30 votes were cast against the Union.
3 The Union originally filed five objections to the election but later
withdrew all but the one that is coextensive with the alleged unfair
labor practices at issue here.
4 Gould, Inc., 260 NLRB 54 (1982); Alpha Cellulose Corp., 265
NLRB 177 (1982), enfd. mem. 718 F.2d 1088 (4th Cir. 1983); North
Electric Co., 225 NLRB 1114 (1976), enfd. 588 F.2d 213 (6th Cir.
1978); 299 Lincoln Street, Inc., 292 NLRB 172 (1988).
Mantrose-Haeuser Company and Attleboro Joint
Board, Retail, Wholesale, Department Store
Union, AFL–CIO. Cases 1–CA–26765 and 1–
RC–19320
February 21, 1992
DECISION, ORDER, AND CERTIFICATION
OF RESULTS OF ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Exceptions filed to the judge’s decision in this case
present the issue whether a statement made in a 19-
page campaign document mailed by the Respondent to
employees 1 to 2 days prior to a representation elec-
tion constituted an unlawful threat to freeze wages and
benefits in violation of Section 8(a)(1) of the Act.1
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The Respondent is engaged in the manufacture and
distribution of shellac at its place of business in Attle-
boro, Massachusetts. A representation petition was
filed by the Union on September 8, 1989. The Union
lost the Board-conducted election on October 19, 1989,
in a unit of 67 of the Respondent’s employees.2 The
Union filed the instant objections3 and unfair labor
practice charge, which the General Counsel consoli-
dated for hearing.
The Respondent’s antiunion campaign ended with
the mailing of a 19-page document entitled ‘‘The Deci-
sion is Yours’’ to all unit employees 1 to 2 days prior
to the election. The complaint alleges that the fol-
lowing language contained on page nine of the docu-
ment constitutes an unlawful threat to freeze wages
and benefits:
WHEN BARGAINING FOR A FIRST CON-
TRACT DOES BEGIN, IT CAN BE A LONG,
COMPLICATED AND TECHNICAL PROCE-
DURE WHICH CAN GO ON FOR MONTHS, A
YEAR . . . OR LONGER.
WHILE BARGAINING GOES ON, WAGE AND
BENEFIT PROGRAMS TYPICALLY REMAIN
FROZEN UNTIL CHANGED, IF AT ALL, BY A
CONTRACT.
IF THE UNION WINS, YOU TAKE THE RISKS
. . . YOU WILL HAVE TO ‘‘WAIT AND SEE’’
IF ANYTHING HAPPENS WITH WAGES AND
BENEFITS. THE UNION, HOWEVER, IS FREE
TO BEGIN COLLECTING DUES RIGHT
AWAY. [Emphasis in original.]
Relying primarily on four Board cases,4 the judge
found that the above language amounted to a threat in
violation of Section 8(a)(1) because the message com-
municated by the Respondent to employees was that
wage and benefit programs would remain frozen dur-
ing the potentially long period of negotiations. The
judge noted that the Respondent granted Christmas bo-
nuses and annual merit raises in December of each
year, that the language in the document was ambig-
uous as to whether the December bonuses and wage
increases would be given, and that any ambiguity
should be resolved against the author of the document.
For the reasons set forth below, we disagree with
the judge and find that, in the context of the cir-
cumstances presented here, the language contained in
the Respondent’s campaign literature which the judge
found unlawful does not constitute a threat within the
purview of Section 8(a)(1).
At the outset, we note that the Respondent’s state-
ment appeared in a 19-page document which was de-
void of any other unlawful or objectionable statements.
In addition, the statement appeared only in the 19-page
document, even though the Respondent distributed sev-
eral additional campaign materials to employees. Fur-
ther, during this entire time period, there were no other
allegations of unfair labor practices or objectionable
conduct committed by the Respondent.
We also note that the Respondent did not say that
preexisting benefits would be lost if the Union won the
election. The Respondent’s statement was that wage
and benefit programs would be frozen. The statement
implies only that wages and benefit programs would
not change. The Respondent’s conduct is consistent
with this view. Thus, the Respondent had a past prac-
tice of granting predetermined wage increases fol-
lowing probationary and training periods. That practice
continued during the campaign. Similarly, the Re-
spondent had a practice of giving Thanksgiving tur-
keys and a Christmas party. The Respondent said that
this practice would continue. Finally, the Respondent
had a past practice of granting a Christmas bonus and
annual merit increases in December. William Mischel,
who was the vice president and general manager of the
378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Cf. Frank’s Nursery & Crafts, 297 NLRB 781 (1990).
It is well established in the record that these increases were not
in the nature of predetermined, fixed benefits, but instead were dis-
cretionary as to amount. Thus, had the Union won the election, the
Respondent would have been obligated to bargain prior to granting
any increases, thereby at least temporarily creating a period during
which the bonuses and increases would not be given. Southwire Co.,
282 NLRB 916 fn. 1 (1987); Gerkin Co., 279 NLRB 1012 (1986);
Goodman Holding Co., 276 NLRB 935 (1985).
6 The cases cited by the judge are inapposite. In none of those
cases did the employer refrain from other unlawful conduct and con-
tinue the status quo as to employment benefits.
1 See generally Auto Workers (Kawasaki Motors) v. NLRB, 834
F.2d 816 (9th Cir. 1987). Thus, in some circumstances, comments
referring to a ‘‘freeze’’ may well indicate an employer’s retaliatory
intent withhold periodic wage increases from employees simply be-
cause they have chosen union representation. Frank’s Nursery &
Crafts, 297 NLRB 781 (1990). In other circumstances, however, an
employer may be simply alluding to the fact that the advent of a
union in the workplace will interject an additional, perhaps time con-
suming step in the process by which customary wage increases are
implemented. Fiber Industries, 267 NLRB 840, 853 (1983).
2 Tr. 147–164.
3 Id.
Respondent during the election campaign, testified
without contradiction that he told employees that the
amounts of the Christmas bonus and merit increases
were subject to negotiation with the Union if the
Union won the election. Thus, the Respondent was
saying that the past practice of granting bonuses and
amounts would continue. The amount would be subject
to negotiation. That statement correctly described the
Respondent’s obligations.5
Finally, we note that the word ‘‘frozen’’ was pre-
ceded by the word ‘‘typically,’’ which modified and
limited its meaning, thereby reducing the possibility
that employees would reasonably perceive the state-
ment as a threat that their wages and benefits would
be lost. In addition, the fact that the statement was
made in a third-person context further reduced the pos-
sibility of its perception by the employees as a threat.
We therefore conclude that, in the circumstances
presented here, the Respondent’s statement regarding
wages and benefits ‘‘typically remain[ing] frozen’’
contained in campaign literature mailed on the eve of
an election did not constitute a threat in violation of
Section 8(a)(1) of the Act, and accordingly, that the
election should not be set aside.6
ORDER
The complaint is dismissed.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots
have not been cast for the Attleboro Joint Board, Re-
tail, Wholesale, Department Store Union, AFL–CIO,
and that it is not the exclusive representative of these
bargaining unit employees.
CHAIRMAN STEPHENS, concurring.
I agree with my colleagues that the Respondent did
not unlawfully threaten its employees by distributing
campaign literature which included the observation that
during collective bargaining ‘‘wage and benefit pro-
grams typically remain frozen until changed, if at all,
by a contract.’’ In so finding, however, I would ac-
knowledge that this unadorned statement is ambiguous,
especially when immediately followed by assertion that
with a union victory, the employees ‘‘take the risks
. . . [they] will have to ‘wait and see’ if anything hap-
pens with wages and benefits.’’ (Emphasis added.) By
definition, a risk is ‘‘the possibility of loss, injury, dis-
advantage, or destruction.’’ Webster’s Third New
International Dictionary (1971). Thus it is plausible to
read the sentences in isolation as suggesting a causal
link between a union victory and a ‘‘loss’’ of what the
employees otherwise might be reasonably expect to re-
ceive in the way of customary wage increases.
When faced with such equivocal campaign rhetoric,
the Board commonly resorts to an examination of the
surrounding circumstances to determine whether it
conveys an implied threat.1 As suggested by my col-
leagues, the Employer’s campaign is otherwise devoid
of unlawful conduct that would indicate an intent to re-
taliate against the employees for voting in a union. For
example, Vice President Mischel apparently commu-
nicated to employees the legal constraints against mak-
ing threats.2 And, there is testimony to the effect that
various employees were told that the various fringe
benefits would remain in place and that the employees
would get their raises, but that they would be subject
to negotiation with the union.3
In this context, I am not persuaded that the written
statement in question constituted an implied unlawful
threat or that it would be reasonably perceived as one.
Carol Sax, Esq. and Deidre D. Hamlar, Esq., for the General
Counsel.
Donald C. Moss, Esq., of New York, New York, for the Re-
spondent.
James O. Hall, Esq., of Boston, Massachusetts, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On Octo-
ber 19, 1989, Attleboro Joint Board, Retail Wholesale, De-
partment Store Union, AFL–CIO (Charging Party or Union)
lost an election to represent a unit of employees of
Montrose-Haeuser Company (Respondent).
Thereafter, on October 24, 1989, the Union filed objec-
tions to the election and an unfair labor practice charge
against Respondent. On December 15, 1989, the Regional
Director for Region 1 issued an order consolidating for trial
the unfair labor practice complaint in Case 1–CA–26765 and
the Report on Objections in Case 1–RC–19320.
379MANTROSE-HAEUSER CO.
The complaint alleges that Respondent violated Section
8(a)(1) of the National Labor Relations Act (the Act), when
it threatened to freeze the wages and benefits of employees
if the Union won the election in Case 1–RC–19320. The ob-
jection to the election is this same threat to freeze wages and
benefits.
The General Counsel and Union argue that Respondent
violated Section 8(a)(1) of the Act and the election should
be set aside because of this violation and a new election or-
dered. Respondent argues that it did not violate the Act in
any way and that the election results should be certified. The
results of the October 19, 1989 election were 30 votes for
the Union and 30 votes against the Union. Because less than
a majority voted in favor of the Union, the Union lost the
election. I agree with the General Counsel and the Union.
Trial was held before me in Boston, Massachusetts, on
March 21 and 22, 1990.
On consideration of the entire record, to include
posthearing briefs filed by the General Counsel, Respondent,
and the Union, and on my observation of the demeanor of
the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material Mantrose-Haeuser Company, an unin-
corporated division of Milmaster Onyx Group, Inc., has had
an office and place of business in Attleboro, Massachusetts,
where it is engaged in the manufacture and distribution of
shellac.
Annually, Respondent, in the course and conduct of its
business operations described above, sells and ships from its
Attleboro facility products, goods, and materials valued in
excess of $50,000 directly to points outside the State of Mas-
sachusetts and also purchases and receives at its Attleboro fa-
cility products, goods, and materials valued in excess of
$50,000 directly from points outside the State of Massachu-
setts.
Respondent admits and I find that it is now, and has been
at all times material, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits and I find that the Union is now, and
has been at all times material, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
The Union, as noted above, lost an election among a unit
of Respondent’s employees on October 19, 1989. It was a
Board-conducted election. On October 17 and 18, 1989, Re-
spondent mailed to each of the 67 eligible voters a 19-page
document entitled ‘‘The Decision is Yours.’’ Each page of
the document, in evidence as Joint Exhibit 3, is in large, easy
to read print. The document was translated into Spanish and
Portuguese for those employees who do not read English.
Most of the copies were mailed on October 17, 1989.
Each year in November employees received a Thanks-
giving turkey from Respondent. In addition, Respondent gave
a Christmas bonus around the holidays and threw a Christ-
mas party (sitdown dinner) for its employees. Lastly and
most importantly, Respondent gave its annual yearly raises in
December on each year. Employee Perry Denham, who re-
tired right after the October 19, 1989 election, testified with-
out contradiction that these annual wage increases had been
given every December for the 25 years he was employed by
Respondent. This wage increases and benefits above de-
scribed were all due within 2 months of the election.
On page 9 of ‘‘The Decision is Yours,’’ the following lan-
guage appears:
WHAT HAPPENS IF THE UNION WINS ?
NOTHING HAPPENS FOR AT LEAST SEVEN (7)
CALENDAR DAYS.
THE LABOR BOARD PROVIDES THIS TIME FOR
THE FILING OF ‘‘OBJECTIONS.’’ IF OBJECTIONS
ARE FILED, THE LABOR BOARD WILL CON-
DUCT AN INVESTIGATION BEFORE THE ELEC-
TION RESULTS CAN BE CERTIFIED AS OFFI-
CIAL. SUCH INVESTIGATIONS TAKE TIME. BAR-
GAINING WOULD NOT EVEN BEGIN UNTIL THE
INVESTIGATION WAS COMPLETED AND THE
ELECTION RESULTS CERTIFIED.
WHEN BARGAINING FOR A FIRST CONTRACT
DOES BEGIN, IT CAN BE A LONG, COM-
PLICATED AND TECHNICAL PROCEDURE
WHICH CAN GO ON FOR MONTHS, A YEAR
. . . . OR LONGER.
WHILE BARGAINING GOES ON, WAGE AND
BENEFIT PROGRAMS TYPICALLY REMAIN FRO-
ZEN UNTIL CHANGED, IF AT ALL, BY A CON-
TRACT.
IF THE UNION WINS, YOU TAKE THE RISKS . . .
YOU WILL HAVE TO ‘‘WAIT AND SEE’’ IF ANY-
THING HAPPENS WITH WAGES AND BENEFITS.
THE UNION, HOWEVER, IS FREE TO BEGIN COL-
LECTING DUES RIGHT AWAY.
It is alleged that this language sent to every eligible voter
in this very close election (30 votes for the Union and 30
votes against the Union) amounted to a threat in violation of
Section 8(a)(1) of the Act. I agree. The clear message is that
wage and benefit programs will remain frozen during the pe-
riod of negotiations which can take a long time. It is ambig-
uous if the December wage increase will go into effect or
not and, of course, any ambiguity resolved against the author
of the document.
In Gould, Inc., 260 NLRB 54 (1982), the Board held that
an employer violates Section 8(a)(1) of the Act if it has a
practice of granting merit increases in August of each year
but tells its employees before the election that negotiations,
in the event the Union wins, can take over a year (going past
August) and that wages and benefits remain frozen during
this period of negotiations. See also Frank’s Nursery &
Crafts, 297 NLRB 781 (1990).
In Alpha Cellulose Corp., 265 NLRB 177 (1982), the
Board at 177–178 stated:
On October 11, 1979, the Union mailed a letter to
all employees in the bargaining unit which discussed
the procedure for calling a strike, dues, assessments,
and the benefits of unionism. On October 16, October
380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23, and October 30, 1979, allegedly in response to the
Union’s letter, Respondent mailed letters to its employ-
ees. Certain of the statements in those letters are al-
leged as objectionable, and as unfair labor practices.
1. The October 16 letter from Respondent outlined
the collective-bargaining process, and stated, inter alia,
that ‘‘[n]egotiation is a long, drawn-out process that can
take months, and in the meantime all wages and bene-
fits are frozen. There can be no wage increase or any
benefits improved by the Company during this period of
negotiation.’’
Respondent argues that the letter merely recited the
realities of collective bargaining in response to the
Union’s earlier letter which ‘‘misrepresented’’ that
unionization necessarily meant better wages and bene-
fits for the employees. Respondent asserts that there is
no indication in the letter that employees would lose
wages and benefits during negotiations or that it would
not bargain in good faith. And Respondent claims that,
in fact, during negotiations an employer cannot unilater-
ally implement a benefit without bargaining with the
union and the letter apprises the employees of the fact.
We agree with the General Counsel, however, that
Respondent violated Section 8(a)(1) of the Act by de-
claring that wages and benefits would be frozen during
the period of contract negotiation. The letter, in fact,
not only misinformed the employees as to the law by
stating that the negotiations prevented employee wage
increases, it also implied that a rejection of the Union
would free the Company to grant raises and other bene-
fits. The employees were thereby led to conclude that
a penalty was attached to the exercise of their rights in
choosing a bargaining representative. We thus find that
the portions of the letter discussed above violated Sec-
tion 8(a)(1) of the Act and were objectionable state-
ments.’’
In another case, the Board was faced with language similar
to the language in this case. The language contained in the
Employer’s campaign literature was as follows:
Bargaining a union contract does not start with wages
and benefits you now have. All of your present benefits
and wages are open for negotiations.
[This letter] is about what actually happens if the union
wins the election . . . . If the union wins the election,
it only means . . . one thing . . . . We do not have to
agree to anything. We do not have to give in to any-
thing . . . . Bargaining starts with a blank sheet of
paper . . . . I can tell you for a fact that Company rep-
resentatives would bargain legally with the union. They
would bargain in good faith, but they would bargain
hard . . . .
. . . .
The Company would bargain in good faith with the
union, but you should know that it frequently takes a
long time to bargain. This is especially true when you
are bargaining with the union for the first time, for a
brand new contract, where you have not had one be-
fore. No one knows how long those negotiations would
last. Sometimes these negotiations go on for months.
Sometimes bargaining for a new contract goes on for
over a year. All the time this bargaining was going on,
your wages and your bnefits would be frozen! . . . Un-
less there was an agreement between the union and the
Company, your wages and benefits would be frozen
during negotiations and no one can say how long this
wage freeze would last.
. . . .
In some instances, unions and companies have bar-
gained and negotiated for a year or even more. This is
especially true in a first contract. Unless there is agree-
ment, your wages and benefits are frozen by law during
this period.’’
The Board in North Electric Co., 225 NLRB 1114 (1976),
enfd. 588 F.2d 213 (6th Cir. 1978), concluded that the above
language amounted to a threat in violation of Section 8(a)(1)
of the Act. In North Electric Co., supra, the election, which
the union lost, was set aside and a new election ordered.
It seems clear to me in light Gould, Inc., supra, Alpha Cel-
lulose Corp., supra, and North Electric Co., supra, that page
9 of ‘‘The Decision is Yours,’’ which is set forth above, is
violative of Section 8(a)(1) of the Act because it threatened
employees with a loss of benefits if they selected the Union
as their collective-bargaining representative. Clearly a threat
to freeze wages and benefits is unlawful and it seems clear
that threat to freeze wage and benefit programs is likewise
unlawful. Does a threat to freeze a wage program mean that
the December wage increase would be given or not? It is at
least ambiguous and the language could reasonably be con-
strued to mean there would be no December wage increase.
Any doubt that a threat to freeze a wage program is tanta-
mount to a threat to freeze wages was resolved by the Board
in 299 Lincoln St., 292 NLRB 172 (1988), in which the
Board held:
[T]he Respondent also engaged in unlawful conduct
when its owner, William Dobson, admittedly stated in
his November 18, 1985 speech to employees that they
would ‘‘at least be subject to a very lengthy period of
frozen wages and benefits’’ if the Union was voted in.
Because the Respondent would be obliged, on the
Union’s demonstration of its majority in the election, to
maintain in effect its current wage and benefit policies
until negotiations resulted in an agreement on its
change or an impasse, Dobson’s statement to employees
that wages and benefits would be frozen constituted a
threat to deprive employees of benefits to which they
otherwise would be entitled because they chose union
representation. Accordingly, we find that this threat fur-
ther violated Section 8(a)(1) of the Act. [Emphasis
added.]
If a threat to freeze wage and benefit policies is unlawful,
a threat to freeze wage and benefit programs is likewise un-
lawful.
I note that ‘‘The Decision is Yours’’ was mailed to em-
ployees on the eve of the election and Respondent did not
gather the employees together to resolve any ambiguity in
the document. Hence, the defense of ‘‘repudiation’’ und
Passavant Memorial Area Hospital, 237 NLRB 138 (1978),
is not available to Respondent.
This 8(a)(1) threat was not de minimis or isolated. It was
communicated to every sngle eligible voter and went to one
381MANTROSE-HAEUSER CO.
of the most significant factors in employment, i.e., wages and
benefits enjoyed by the employees. Does this violation war-
rant setting aside the election and ordering a new election?
Yes.
As the Board noted in Westek Fabricating, 293 NLRB 879
fn. 2 (1989):
The Respondent contends that the single violation of
Sec. 8(a)(1) here was de minimis and does not warrant
setting aside the election. It is well settled that conduct
violative of Sec. 8(a)(1) interferes with an election un-
less ‘‘the violations are such that it is virtually impos-
sible to conclude that they could have affected the re-
sults of the election.’’ Enola Super Thrift, 233 NLRB
409 (1977).
In this case, because the threat was communicated to all
eligible voters on the eve of an election which could not pos-
sibly have been closer, it is obviously impossible to conclude
that Respondent’s 8(a)(1) threat had no effect on the election
outcome. The election must be set aside. See also Dal-Tex
Optical Co., 137 NLRB 1782 (1962).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce, and
in operations affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act when it
threatened to freeze the wages and benefits of its employees
if they selected the Union as their representative for purposes
of collective bargaining.
4. The aforesaid unfair labor practices affects commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent did not violate the Act in any other way.
[Recommended Order omitted from publication.]