Oak Manufacturing Co.

National Labor Relations Board - Board Decisions

Apr 15, 1963

141 N.L.R.B. 1323 (N.L.R.B. 1963)

OAK MANUFACTURING COMPANY 1323
men, cooks , mess boys , and janitors , but excluding clerical employees,
professional employees , guards, the superintendent , assistant superintendent,
captains, deck captains, chief engineers, dump foremen, levermen, mates,
and all other supervisors as defined in the Act.
ATKINSON DREDGING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 707
North Calvert Street, Baltimore 2, Maryland, Telephone No. 752-8460, Extension
2100, if they have any questions concerning this notice of compliance with its
provision.
Oak Manufacturing Company and District Lodge No . 122, In-
ternational Association of Machinists , AFL-CIO, Petitioner.
Case No. 13-I?C-7638. April 15, 1963
SUPPLEMENTAL DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
Pursuant to the Board's Decision and Direction of Election dated
June 30, 1961,1 an election by secret ballot was conducted by the
Regional Director for the Thirteenth Region on July 28, 1961, among
the employees in the appropriate unit. After the election, the parties
were furnished with a tally of ballots which showed that, of approxi-
mately 58 eligible voters, 18 votes were cast for, and 40 votes were
cast against, the Petitioner. Thereafter, the Petitioner filed timely
objections to conduct affecting the results of the election.
After investigation, the Regional Director, on August 28, 1961,
issued and served upon the parties his report on objections in which
he recommended that the objections be overruled. Thereafter, the
Petitioner filed timely exceptions to the Regional Director's report.
Prior to the election the Employer sent copies of the attached two
letters 2 to its employees. In the first letter, the Employer stated
that the Union's contracts had lower rates than the Employer was
paying, which would give the Employer strong arguments for reduc-
ing wages. It also stated "categorically" that the Union "cannot
and will not obtain any wage increase for you." As to fringe benefits,
the Employer said its program was better than most in the area, and
would be improved whether or not there was union representation.
Therefore, the Employer argued, the most Petitioner could do was to
claim credit, and charge dues, for improvements that would be made
in any event; the worst it could do was to give the Employer an
I Not published in NLRB volumes.
2 See Appendix . The letters were signed by J. L. von Harz , vice president in charge of
administration.
141 NLRB No. 121.
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
argument for cutting wages. As to seniority, the Employer agreed
that its system might not be perfect, but it could "assure" the em-
ployees that the Union's program "will be worse." In the second letter
the Employer again pointed out that the Union could not improve the
employees' wages or other benefits. It then listed certain fringe
benefits which the Employer had voluntarily established and asked
the employees how they would finance the procurement of such pro-
grams for themselves and their families. It further stated, "You
have everything to gain and nothing to lose by voting 'NO'."'
Over the years one of the greatest obstacles to the achievement of
the central purpose of the Act, the encouragement of the practice
and procedure of collective bargaining, has been the use by some
employers of economic pressure to thwart the exercise of free choice
by employees in the selection of a bargaining agent. Many of the
other rights guaranteed to employees by the Act are meaningless if
an employer may use such pressure to influence the employees. There-
fore, the Board, as the primary agency for the enforcement of the
Act, must closely guard the integrity of its elections so that employees
may exercise the freedom of choice contemplated by the Act and
thereby have a full opportunity to enjoy its other benefits.
Our examination of the preelection campaign letters to the em-
ployees in this case convinces us that they tended to engender so much
fear of reprisal as would render impossible a rational, uncoerced
decision by the employees 4
Our dissenting colleague, in our opinion, is confusing the rules,
concerning various types of conduct which may interfere with an
election, by treating the instant case as one involving alleged mis-
representation of facts rather than threats and promises of benefits.5
He is thereby ignoring the rule that where the Employer's comments
clearly contain improper threats and promises, the Union's statements
are irrelevant to the issue before the Board.6 Furthermore, he has
3 As can be seen from the attached copies, both letters are short ; the excerpts we have
set forth constitute a substantial portion thereof , and are the segments which color the
communications.
4 We are well aware that unions on occasion also trench upon the boundaries of per-
missible preelection propaganda . Wherever and to the extent that this occurs, it likewiee
impairs the integrity of the election process and calls for our administrative action See
Hollywood Ceramics Company, Inc., 140 NLRB 221.
e Thus, he recites the rule applicable to misrepresentation of relevant facts Our
colleague 's notation of the timing of the Employer ' s letters , his observation of the lack
of objection to their truth , and his speculation that the Petitioner had time to answer
the letters and dissipate whatever effect they may have had, further indicate that he is
applying the test of the effect of misrepresentation to threats and promises of benefit.
The legality of statements that are alleged to be threats does not depend on these factors.
See Wilson & Co, Inc ., 115 NLRB 327, 334 Of . Hollywood Ceramics Company, Inc,
supra, at footnote 4; Walgreen Co., 140 NLRB 1141.
6 We disagree with our dissenting colleague that this case should be remanded to the
Regional Director for consideration of Petitioner 's propaganda There are cases, of course,
where the statements of a party cannot properly be evaluated except in the context of
statements of the other party or parties . See Arch Beverage Corporation , 140 NLRB
1385, Decorated Products , Inc, 140 NLRB 1383 Cf United States Gypsum Company,
OAK MANUFACTURING COMPANY 1325
inaccurately and incompletely paraphrased the Employer's letters so
that their real context and probable impact on the employees are lost.
An examination of the letters demonstrates that they go far beyond
any attempt to eliminate possible confusion in the minds of the voters.
In fact, they contain cleverly phrased threats to the economic position
of the employees. The entire content of both messages is directed to
impressing upon the employees that they could only be adversely
affected by selecting the Union. Clearly, their intent and purpose was
to demonstrate to the employees that the Union's selection would not
improve their economic situation and might well result in reduced
wages, job security, and employment opportunities,' whereas its rejec-
tion would result in retention of their present benefits and the receipt
of additional, improved benefits. The entire tone of the two letters
is one of emphasizing the Employer's control of their economic status,
and the futility and economic hazards of selecting the Union. Thus,
the Employer's admonitions that a number of dire consequences might
follow unionization more than imply the likelihood that these events
would occur. For while purporting to discuss possibilities, it was the
Employer alone who could translate these possibilities into realities.
In this context, we find the Employer's statements to be a threat to
the economic welfare of the employees.' It is, of course, true that
sentences or phrases which, plucked out of context, might appear to
be unlawful interference might appear otherwise when appraised in
their total context .9 However, it is equally true and it has long been
recognized that statements and words which, standing alone, might
be noncoercive, take on the character and quality of coercive comments
which accompany them and no longer can be said to be permissible ex-
pression of views. As Justice Holmes observed concerning words and
their use, "A word is not a crystal, transparent and unchanged; it is
the skin of a living thought and may vary greatly in color and content
according to the circumstances and the time in which it is used." 10
It is elementary that employees cannot exercise their mature judgment
and commonsense when their employer is threatening their very liveli-
hood. Contrary to our dissenting colleague, our decision does not
downgrade the intelligence of the employee or show a lack of confidence
130 NLRB 901, 906. However, where as here, the Employer's statements impart un-
ambiguous threats and promises of benefits, and the impropriety is thus clear, the Union's
propaganda is irrelevant , absent a contention that union misconduct constitutes an inde-
pendent ground for setting aside the election, and the election must be vacated without
regard to Petitioner 's statements or conduct.
'The Board has found that similar unsupported suggestions of loss of orders, together
with frequent references to possible strikes if the Union won the election, constituted inter-
ference with the election where, as in the instant case, they were made for the purpose of
implanting in the employees fear that a loss of jobs would inevitably follow a union vic-
tory R D. Cole Manufacturing Company, 133 NLRB 1455-1456.
8Abrasive Salvage Company , Inc, 127 NLRB 381, 392 ; H. H. Zimmerli, 133 NLRB
1217; Dal-Tex Optical Company, Inc., 137 NLRB 1321.
9 See Arch Beverage Corporation and Decorated Products , Inc., supra.
1 0 Towne v. Eisner, 245 U.S. 418, 425 (1918).
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the Board's election processes. It is precisely because it is quite
likely that the employees will be able to perceive the import of the
Employer's message implicit in these letters that the integrity and pur-
pose of the election are destroyed. We therefore find that the text of
both letters, taken as a whole, interfered with the exercise of the em-
ployees' freedom of choice and hence with the conduct of the election."
We do not and cannot, by this or any other decision, restrict the
right of any party to inform the employees of "the advantages and
disadvantages of unions and of joining them." 12 But such informa-
tion must be imparted in a noncoercive manner. Here, as we have
shown, the letters went far beyond this.
In sum, we find that the Employer's conduct constituted substantial
interference with the election.13 Accordingly, we hereby overrule the
decision of the Regional Director and shall set the election aside and
direct a second one.
[The Board set aside the election].
[Text of Direction of Second Election omitted from publication.]
MEMBER RODGERS, dissenting :
My colleagues are finding that the two letters distributed to the em-
ployees warrant overturning the election in this case. They do so
without realistic regard to the 4-week election campaign of which
they were a part, and by placing undue emphasis upon certain selected
segments of two isolated letters.14 For the reasons stated below, I
would find, in accordance with the Regional Director's recommenda-
tion, that the letters in question do not warrant setting aside the
election.
"Our dissenting colleague 's statement in footnote 15 that we are applying a per se
rule , occurring as it does in the face of our extensive analysis and consideration of the
Employer 's letters in their entirety , reveals per se an obvious misconception of our position
12R. J. Thomas v. H. W. Collins, 323 U.S 516 , 532 (1944 ). We recognize that the
Employer has a constitutionally protected right of free speech, but , in this instance, its
rights are not derived from Section 8(c), a legislative enactment which is not applicable
to representation cases. Dal-Tex Optical Company, Inc ., supra. This provision merely
prohibits the use of certain evidence in unfair labor practice cases.
13 Dal-Tex Optical Company, Inc , supra.
'4 Because the Regional Director did not find the Employer 's propaganda a basis for
setting aside the election , he did not find it necessary to consider the propaganda in ques-
tion in the context of the preelection campaign as a whole . Even were I inclined at first
blush to agree with my colleagues , I would nevertheless , before issuing any decision herein,
first remand the proceeding to the Regional Director so that the Board can truly consider
"the color and content" of each letter "according to the circumstances " I find it in-
conceivable to assume , as apparently implied by my colleagues , that the Petitioner, long
knowledgeable in the ways of organizing, remained mute during the entire 4 -week critical
period , particularly where, as here , it has more than sufficient time to answer and to dis-
sipate whateever effect the letters in question might have had
Both Chairman McCulloch and Member Fanning have in fact relied upon the approach
herein advanced in two recent cases in which they joined with me in holding that the
coerciveness of preelection propaganda should be judged in the context of the complete
documents involved and of the "total election campaign" and not on the basis of isolated
statements "considered in the abstract." See, Decorated Products, use., supra; Arch
Beverage Corporation, supra.
OAK MANUFACTURING COMPANY 1327
Apparently of most concern to my colleagues was the first letter
circulated on July 19, 1961, approximately 9 days before the election.
In this letter the Employer discussed the following topics: (1) Wages
and benefits, emphasizing wage scales and other economic benefits be-
ing presently enjoyed, and pointing out that these benefits were greater
than those obtaining at plants the Petitioner represents; (2) work-
ing conditions, stressing that the Employer was providing working
conditions equivalent to, or better than, the Petitioner, on the basis of
its experience with other employers, could provide; and (3) job se-
curity, noting that steady employment depends upon business orders,
that the Petitioner has called strikes in the past, and that strikes can
have an adverse economic effect upon employees. No contention has
been made that any of the Employer's statements were in any way mis-
leading or untrue.
As for the second letter which reached the employees approximately
3 days before the election, I find the document to be a clear statement of
the Employer's opposition to unionization and an endeavor to encour-
age the employees to use their democratic privilege to vote. Thus the
Employer pointed out that it was attempting to answer the conflicting
statements previously issued during the campaign which might con-
fuse the voters, and to stress again that the Petitioner in its contracts
was not able to obtain benefits comparable to what the employees were
already enjoying. I am unable to agree with my colleagues that the
Employer by stating, "You have everything to gain and nothing to
lose by voting `NO,"' was in fact making "cleverly phrased threats to
the economic position of the employees." Nor do I believe that the
above phrase in the context of the letter could reasonably be so con-
strued by the employees.','
Consequently, I am unable to agree with my colleagues' sweeping
characterization that "the entire tone of the two letters is one of em-
phasizing the Employer's control of their economic status, and the
futility and economic hazards of selecting the Union." Certainly, an
employer is not required under the Act we administer to favor the
union; similarly, an employer has the right to inform employees of
15 My colleagues in finding the propaganda of the Employer clearly coercive on its face
are applying a per se rule and, therefore , conclude that a consideration of the record as
a whole is "irrelevant " This is contrary to our long -established approach in this area.
Our test as to whether or not preelection statement or conduct interfere with the freedom
of choice of the employees involved has consistently been whether on the basis of all the
objective evidence preelection statements or conduct could reasonably destroy the essential
laboratory conditions . See, for example , Pinkerton's National Detective Agency, Inc,
124 NLRB 1076, 1077; G.H.R. Foundry Division, Dayton Malleable Iron Company, 123
NLRB 1707 , 1709. Such test is not only contrary to the mechanical approach herein ap-
plied, but is also contrary to the approach that my colleagues have taken in recent cases
See, e g , Sewell Manufacturing Company, 138 NLRB 66 , 140 NLRB 220; A llen-Mo) rison
Sign Co , Inc, 138 NLRB 73; Seven-Up Bottling Company, Inc, 140 NLRB 611; Holly-
wood Ceramics Company, supra ; Walgreen Co , 140 NLRB 1141; Faribo Turkeys, Inc,
140 NLRB 1397 ; Arch Beverage Corporation, supra ; Decorated Products , Inc., supra
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the advantages and disadvantages of unions.16 In pointing out to the
employees the benefits they were enjoying, in pointing out the lack
of effectiveness of the Union which was seeking to represent them,
and in apprising the employees that unionization may well entail risks
and responsibilities as well as balm and benefits, I find that the Em-
ployer was exercising such rights. To find otherwise, I believe, not
only downgrades the intelligence of the average employee and indicates
an absence of confidence in the Board's election process, but it also con-
stitutes an unwarranted infringement upon the Employer's constitu-
tional right of "free speech," and ignores the guidelines recently set
forth by courts in regard to the Board's findings in this area.17
For the above reasons, I would, therefore, sustain the Regional Di-
rector and would certify the results of the election in which the Peti-
tioner was rejected by the employees by a more than 2-to-1 vote.
MEMBER LEEDOM took no part in the consideration of the above Sup-
plemental Decision, Order, and Direction of Second Election.
ie See Decorated Products, Inc., supra.
17 See, for example, N.L.R.B. v. Threads, Inc ., 308 F. 2d 1 (C.A. 4) ; Union Carbide
Corp. v. N L R.B., 310 F. 2d 844 (C.A. 6); N.L R B. v. Transport Clearings , Inc, 311
F 2d 519 ( C.A. 5). See also , Weyerhaeuser Co. v. N.L.R.B., 311 F. 2d 19 (C.A. 7)
APPENDIX
OAK MANUFACTURING CO.
Crystal Lake, Illinois
JULY 19, 1961.
DEAR OSCAr.: As you know by now, a representation election will
be held among employees of the Tool Room and Model Shop on
July 28,1961, at 9:00 A.M. to 9 :30 A.M. so that you can decide whether
you want District 122, IAM, to be your spokesman here at Oak. Your
decision on which way to vote in this election should not be based on
what is best for the Union or even on what is best for the Company.
Your decision should be based on what is best for you and your family.
Between now and July 28th District 122 will try to "sell" you on
designating their union as your bargaining agent. They know they
will have to "sell" you, because a union has to charge members for its
services. So what will they try to "sell"? Three things-(1) Higher
wages and benefits. (2) Better working conditions. (3) Job security
through seniority.
O.K., let's look at these items realistically.
(1) Wages and Benefits.
At the present time we are paying wages in the Tool Room and
Model Shop which are far above the rates paid by other plants in our
area. Our rates are also far above those paid in the overwhelming
OAK MANUFACTURING COMPANY 1329
majority of District 122 contracts . Here is just a brief comparison
which may be of interest to you: You know what your rate is now.
But consider this : The hourly rate for members of Local 122 in Elgin,
THE LOCAL THAT WILL REPRESENT YOU IF YOU ELECT
IT, ranges from $2.88 and $3.20 maximum per hour for skilled Tool
and Die Makers in this area . Machinists receive even less.
We can state categorically that the election of District 122 will not
bring about any increase in your wages . In fact, the designation of
District 122 as bargaining agent would give us strong arguments for
reducing Tool Room and Model Shop wages , since District 122 ordi-
narily agrees to lower wages than you are already being paid. Dis-
trict 122 cannot and will not obtain any wage increase for you.
Our benefit program is set forth in your booklet and it is a very fine
one. We are especially proud of our vacation program, our Com-
pany paid group insurance program including Major Medical Ex-
pense benefits , and our profit-sharing retirement plan. We don't say
that District 122 can't search around and find a contract here or there
that has a little better this or that-but we do say this : Our fringe
benefit program is far better than the programs of most companies in
this area, including companies under contract with District 122.
From time to time we will be making improvements in our benefits.
These improvements will be made regardless of whether or not you
are represented by a union.
Thus, District 122 can in reality accomplish nothing in the field of
wages or benefits . We already have the highest wages in the area.
We already have an outstanding benefit program . The most that Dis-
trict 122 could do would be to claim credit for future wage and bene-
fit improvements , which will take place union or no union. For this
they will , of course , charge you their regular monthly dues. The
worst District 122 can do is give us a good argument for reducing
wages, based on their own contracts.
(2) Working Conditions.
It doesn't take any particular genius to discover that our working
conditions are among the best, already . This is not to say they can't
and won't be improved. They will. But the important fact is that
a union can do little about this. Sure , they can set up a fancy griev-
ance procedure , make a lot of noise and blow a lot of hot air. The
fact remains , our working conditions are among the best and we are
constantly striving to make them better. Our Personnel Department
and our supervisors are open to the receipt of your suggestions, com-
ments and complaints . No Union can improve on this.
(3) Job Security.
On the subject of job security , we are sure that everyone realizes
that real job security comes only through satisfied customers. Our
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
customers determine what and how much we are going to produce.
District 122 cannot possibly help to increase our sales. We can hardly
imagine a customer who would place more business with us as a result
of District 122 representing our employees. A strike would, of
course, cause us to lose many customers-and would mean less work
for all of us.
But the Union says "We will give you a seniority system." O.K.
let's look at that :
First. District 122 is far more interested in union security than
they are in job security. District 122 has even gone on strike in order
to force all employees to join the union.
Second. District 122 commonly demands that local union officials
be given "super" seniority rights. This means that union officers and
stewards will be treated as if they have top seniority in the shop and
will be kept at work even though employees with much greater service
are laid off.
Third. Virtually all union contracts qualify the exercise of senior-
ity on the basis of ability. So do we. In order to remain efficient, all
employers must make certain that they retain qualified employees.
So let's face it. District 122 is not going to provide job security.
We may not be perfect, but we can assure you that their program will
be worse.
We mentioned above that District 122 has gone on strike to obtain
union shop clauses. You must recognize then that a strike is always
possible when a union is in the picture. Have you thought of the
harm that could come to you and your family from a strike?
What would you do if you were to learn on short notice that :
-you would be out of work because the Union decided to strike?
-you would not be eligible for unemployment compensation?
-no other company would hire you?
-your group insurance would be lost?
-your company rights would stop?
-you would not be able to get a loan?
-your savings would be depleted?
What would you do? What could you do? Let's hope this never
happens here at Oak. This is what happens when District 122 strikes
for a union shop. This is not job security.
These matters are important. We believe in your good judgment.
Yours truly,
J. L. ION HARZ.
Pi(e P),esident-Adni,i ni.strortio7^.
JvJI/clm
OAK MANUFACTURING COMPANY 1331
OAK MANUFACTURING CO.
Crystal Lake, Illinois
JULY 25, 1961.
In view of the great interest expressed in our letter to you last week
regarding the union election on Friday, July 28, we thought we'd pass
a few last-minute thoughts on to you.
As we pointed out last week, our concern is for you, as an employee,
and your families. We also pointed out that you should be beware
of the promises that District 122 would be making in order to get your
vote in the coming election.
Briefly, we called your attention to the fact that District 122 cannot
improve your wages or benefits. If you studied the history and cur-
rent situation of this Elgin local, you would know that they have con-
sistently settled for lower wage rates than you are now receiving at
Oak without a union.
Seems to us that a union as weak as this won't be able to do much
for you. All they can do is charge you dues for trying and then take
you out on strike when they fail.
As for fringe benefits, you are probably not aware that the average
amount credited to each employee of the Tool Room in 1960 totaled
more than $1,000. In other words, Oak has contributed an additional
$1,000, over and above your pay, in the form of life insurance, major
medical premiums, profit-sharing and many other fringe benefits.
We have long recognized that you need these benefits for the well-
being of yourself and your family. What if you had to pay for these
necessities yourself ? Can you imagine what your personal finances
would be if the company didn't provide these benefits for you, thus
forcing you to pay for most of them yourself ?
What we're trying to do in calling your attention to these benefits
is make you aware of the kind of company you work for.
Usually there are a few people who get confused by conflicting
statements by the Company and the Union in representation elections.
Sometimes these people resolve the confusion by deciding to give the
union a "chance" to prove whether it can get higher wages or benefits.
We urge you to consider now that THERE IS NO SUCH THING
AS TAKING A "CHANCE" WITH A UNION. Once you vote
a union in, that union is virtually impossible to get rid of, and all of
the problems that unions can bring are yours. Unions have even been
known to call long, bitter and violent strikes for the apparent purpose
of preventing employees from voting them out.
So there's no doubt about it-your decision on July 28, is extremely
important to you and your family. Don't "take a chance" by voting
for District No. 122. "Taking a chance" can prove to be extremely
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
expensive . You have everything to gain and nothing to lose by voting
"NO."
The vote will be by secret ballot. You can vote any way you please
and no one will know how you voted . Even if you have signed a union
card, you are still free to vote "NO."
Yours truly,
J. L. voN HARZ,
Vice President-Administration.
JvH/dm
P.S. The ballot will look something like the following. We urge
you to vote "NO" by placing an "X" in that box. Make no other
marking on the ballot. If you spoil the ballot, ask for a new one.
Do you wish to be represented
for purposes of collective
bargaining by -
District No. 122, International
Assedation of Machinists, AFL-
CIO
YES I _ I NO
Vote "NO". by placing.
your "X" here.
O