Renton Issaquah Freightlines

National Labor Relations Board - Board Decisions

May 25, 1993

311 N.L.R.B. 178 (N.L.R.B. 1993)

178
311 NLRB No. 25
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 A copy of the hearing officer’s Report on Objection and Rec-
ommendations, which the Regional Director adopted, also is attached
in pertinent part as Appendix B.
1 The briefs were duly considered.
2 The hearing officer’s misstatement that the union rather than the
employer in S. M. Lorusso & Sons, Inc., 297 NLRB 793 (1990),
would make an offer that would never be accepted is harmless error
inasmuch as it was directed at prepetition conduct which was not the
basis for overturning the election.
3 The hearing officer did not specifically credit or discredit wit-
nesses Christiansen or Denney. Therefore, in reviewing the hearing
officer’s report I am relying on the testimony of employer witness
Denney.
4 Renton Issaquah Freightlines.
Renton Issaquah Freightlines, Inc. and Chester
Laurent, Petitioner and General Teamsters
Local Union 174, International Brotherhood of
Teamsters, AFL–CIO. Case 19–RD–3053
May 25, 1993
ORDER DENYING REVIEW
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel, which has considered the Employer’s request for
review of the Regional Director’s Supplemental Deci-
sion and Order Setting Aside Election Results and Di-
recting Second Election (pertinent portions are attached
as Appendix A).1 The request for review is denied as
it raises no substantial issues warranting review. In ad-
dition to the cases cited by the Regional Director and
the hearing officer, see Madison Industries, 290 NLRB
1226, 1230 (1988).
APPENDIX
SUPPLEMENTAL DECISION AND ORDER
SETTING ASIDE ELECTION RESULTS AND
DIRECTING SECOND ELECTION
Pursuant thereto, a hearing was held on January 5, 1993,
before a designated hearing officer, who issued her Report
on Objection and Recommendations on January 26, 1993. On
February 5, 1993, the Employer filed timely exceptions to
the hearing officer’s report, with supporting brief, copies of
which were served on all parties. On February 16, 1993, the
Union timely filed an answering brief in support of the hear-
ing officer’s report, copies of which were served on all par-
ties.1
The Employer’s exceptions are that:
1. The Hearing Officer completely misconstrued the
‘‘West Roxbury’’ case in applying it to the instant mat-
ter.
2. The Hearing Officer erroneously concluded that
Renton Issaquah Freightlines implicitly threatened em-
ployees with a continued shutdown of operations during
the laboratory period.
Although it is proper to use prepetition conduct as back-
ground information, it cannot, per se, be the basis for setting
aside an election. Therefore, since the hearing officer’s report
clearly differentiates prepetition and postpetition conduct, my
review of her report will focus on the postpetition conduct.2
The hearing officer found, and based on the record, I affirm
her findings, that the Employer told employee Christiansen
that it would reopen the business if the Union pulled its pick-
ets or if the Union was voted out.3 Thereafter, the Employer
issued a memo which was either read or mailed to 16–20
employees that stated, inter alia:
We are not operating because the Union is striking
us. If the Union is voted out, the strike will be over.
If the strike ends, we will open A.S.A.P. Major ac-
counts have been informed of our circumstances. Many
of them are loyal to RIAF4 due to the good service we
have provided them.
. . . .
We have now been robbed of this by no fault of any
one of us. Let’s protect all of us from this nightmare
happening again in the near future. The Denney family
hopes you will vote NO to decertify. That will end the
picketing and put us all back to work with pride and
honesty like we have always had.
The hearing officer properly concluded that the laboratory
conditions were destroyed by the Employer linking the de-
certification of the Union with the end of picketing and em-
ployees being put back to work. The Employer clearly com-
municated that the employees’ future employment depended
on getting rid of the Union; otherwise the business would re-
main closed. In BI-LO, 303 NLRB 749 (1991), the Board af-
firmed the judge’s decision that the employer had violated
Section 8(a)(1) of the Act by conducting a mass mailing and
campaign that communicated to employees the idea that if
they voted for the Union the store stood a good chance of
being closed. In BI-LO, the employer only implied that the
store would be closed. Nevertheless, a violation was found
since the mailing and campaign were designed to inspire in
employees a fear of closure in the event of unionization. Sig-
nificantly, in the instant case employees were specifically
told that if they voted the Union out they could come back
to work ‘‘A.S.A.P.’’
Contrary to the Employer’s assertions, S. M. Lorusso &
Sons is on point with the case here. In addition to the em-
ployer violating the law in S. M. Lorusso & Sons by stating
that it was making an offer the union would never accept,
it also violated the law by telling striking employees that
they were not going back to work and could blame the union
for it. The Board affirmed the judge’s conclusion that:
such remark, at least implicitly, imparts to employees a
concept that their representatives are the cause of their
predicament. The impression being conveyed is that
their relationship with their union representatives has
caused the Respondent to become inflexible in its atti-
tude toward resolving the strike. Obviously, such hos-
tility inhibits employees in the exercise of and the pur-
179RENTON ISSAQUAH FREIGHTLINES
3 On August 14, Robert Denney’s wife, Lynda, who is the com-
pany bookkeeper, gave unit employees George Kruger and Chester
Laurent a list of employees, including addresses and phone numbers.
Lynda Denney told them that the Employer needed to stay in touch
with the striking employees.
suit of the rights which they are guaranteed under Sec-
tion 7 of the Act.
Here, as in S. M. Lorusso & Sons, the Employer’s remarks
communicated to employees that the Union had caused it to
become inflexible and that whether it resumed operations de-
pended on whether employees decertified the Union.
Hostar Marine Transport Systems, 298 NLRB 188 (1990),
cited by the Employer, is distinguishable on the facts. In
Hostar Marine, Respondent’s remarks about ‘‘going under’’
or ‘‘farming out the work’’ were specifically found to be hy-
perbole that could not seriously be viewed as a threat by an
employee who initiated the conversation about the negotia-
tions and who used his own hyperbole. Here, the Employer
did not engage in hyperbole; it told the employees if they de-
certified the Union, then they could go back to work.
The other cases cited by the Employer all have a similar
theme: during a campaign the Employer is allowed to com-
municate rational arguments supporting its position on the
‘‘untoward consequences of unionization.’’ However, as
noted in BI-LO and S. M. Lorusso & Sons, an employer is
not allowed to inhibit employees in the exercise of their Sec-
tion 7 rights by conditioning their employment on decerti-
fication.
Therefore, I affirm the hearing officer’s findings and con-
clusions with respect to the Union’s objection, and I shall
adopt her recommendation to sustain the objection.
Therefore, it is hereby ordered that the election results be
set aside and a new election conducted.
APPENDIX B
HEARING OFFICER’S REPORT ON OBJECTION
AND RECOMMENDATIONS
The Union’s Objection
Laboratory conditions were not present due to the perva-
sive atmosphere created by the circumstances surrounding
the Employer’s decisions first to close permanently and then
to reconsider such decision. The results were a belief by the
bargaining unit employees that the Employer would reopen
only if the Union were decertified.
A. Finding of Fact
Prepetition
The Employer is a local cartage company operating in the
Puget Sound area. The Union has represented the unit em-
ployees since 1935. The most recent collective-bargaining
agreement expired on April 30, 1992 (all dates hereafter are
1992 unless otherwise noted). The Union had collective-bar-
gaining agreements with a number of other trucking compa-
nies in the same industry which also expired around the same
time as the Employer’s. In July, the Union reached agree-
ment for a labor contract with several of the other trucking
companies. The Union offered this same contract proposal to
the Employer. Robert Denney, employer president, told the
Union he could not afford the Union’s proposal and offered
to have the Union examine its books. On August 11 and 13,
Denney informed the Union he would have no choice but to
close the business if he was forced to accept the Union’s
proposal.
On August 12 and 13, Denney met with unit employees.
According to employee Kevin Christiansen, Denney gave the
employees a copy of his last and final offer, stating that this
was all he could afford to remain in business. Denney said
if he was forced to accept the Union’s proposal, he would
not be able to operate in a profitable manner and he would
have to close the business. Christiansen testified that Denney
told employees if the Union went on strike, he could not op-
erate with pickets, that it would be too difficult with the
trucks being followed, and it was not good for the customers.
Employee Charles Rake attended the August 13 meeting and
also testified that Denney said he could not afford the union
proposal and it would probably put him out of business.
On August 14, union representatives met with Denney and
informed him that the Union would not accept the Employ-
er’s last and final offer and that the Union would strike if
Denney refused to accept its proposal. Denney refused to ac-
cept the Union’s proposal, again offering to open his books
to the Union. The Union went on strike and picketing began
on August 14. Picketing has continued through the date of
the hearing.
On August 17, Denney notified the Union that he was per-
manently liquidating and selling his assets and offered to
meet with the Union to bargain over effects of the closure.
Denney testified that customers had been informed of the
labor dispute and some had switched to other carriers. As of
that date, and through the date of the hearing, the Employer
ceased operating its business. There was uncontroverted evi-
dence that Denney obtained appraisals on his equipment and
operating authority and met with or talked to several pro-
spective buyers.
On September 1, Denney wrote to Union Business Agent
Clint Copeland. Denney wrote that while he was still nego-
tiating with potential buyers, it was possible that he would
not permanently shut down the business. There was no evi-
dence showing that Denney had any knowledge that a decer-
tification petition would be filed the next day.
Postpetition
The petition was filed on September 2. On September 25,
Denney notified the Union that discussions with potential
buyers had not been fruitful and the Employer was not per-
manently discontinuing its business.
Employee Christiansen testified that he was contacted by
unit employee George Kruger regarding a meeting to be held
at Denney’s home on August 16.3 Christiansen did not attend
this meeting. In a September phone call, Christiansen testi-
fied that Kruger told him that if the Union was decertified,
Denney was going to hire everyone back with seniority and
vacation pay. Denney testified that he never authorized
Kruger to speak on the Employer’s behalf.
Christiansen received two phone calls from Denney. The
first was sometime in October to invite Christiansen to an in-
formational meeting at Denney’s house. According to
Christiansen, Denney said that if he sold the business it
would be at a great loss and that with the response he was
180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The transcript incorrectly states on p. 141, L. 1, ‘‘if they were
bolted out.’’ According to my notes, this should read, ‘‘if they are
voted out.’’
getting from the drivers, he would like to try to open the
business after the decertification vote. Nothing was said
about what would happen if the Union won the election. Ac-
cording to Denney, he told Christiansen during the conversa-
tion that the only way he could open his business was if the
Union pulled the pickets or if it was voted out.4 Denney told
Christiansen that he had favorable responses from employees
regarding the petition.
In a second phone call in November, Christiansen stated
that Denney encouraged Christiansen to vote, no matter
which way he chose to vote. Christiansen testified that
Denney stated if the decertification went through, he would
try to open the business and hire the employees back accord-
ing to need, at the existing wage.
Neither Christiansen nor Rakes attended meetings at
Denney’s home. At a November meeting, Denney handed
out statement which was read to the 12 to 14 unit employees.
The statement was also mailed to six employees who did not
attend the meeting. In this statement, the Employer stated
that it is ‘‘not operating because the Union is striking us. If
the Union is voted out, the strike will be over. If the strike
ends, we will reopen A.S.A.P. . . . The Denney Family
hopes you will vote NO and to decertify. That will end the
picketing and put us all back to work with pride and honesty
like we have always had.’’
B. Analysis and Recommendation
It is well established that an employer can talk to employ-
ees about the organizing campaign ‘‘so long as the commu-
nications do not carry a threat of reprisal or force or promise
of benefits.’’ NLRB v. Gissel Packing Co., 395 U.S. 575, 618
(1969). Threats to shut down a business if a union is voted
in is considered such a threat. Coradian Corp., 287 NLRB
1207 (1988); Overnite Transportation Co., 296 NLRB 669
(1989).
Prior to the filing of the petition, the Employer had in-
formed the Union that it could not afford to operate its busi-
ness if it had to accept the Union’s proposal. When th Union
struck the Employer more than 2 weeks before the petition
was filed, Robert Denney told employees that he was not
going to operate the business while it was being picketed.
Employee Christiansen was told that the reason for this is
that it was not good for the customers. In S. M. Lorusso &
Sons, Inc., 297 NLRB 793 (1990), the Board found an em-
ployer violated Section 8(a)(1) by telling employees that the
union would not return to the plant because the union had
made contract proposals the employer could not accept. The
Board affirmed the administrative law judge’s decision, in
which the judge stated that these remarks had an inhibiting
effect on employees and represent a threat to them in the ex-
ercise of their Section 7 rights under the Act.
Christiansen had a conversation with fellow unit employee
Kruger during which Kruger states that Denney would hire
everyone back if the Union is decertified. While the Union
claims that Kruger was acting as an agent for Denney, the
Union presented no evidence that Denney ever authorized
Kruger to speak on the Employer’s behalf. The only evi-
dence relied on by the Union is the fact that Lynda Denney
gave Kruger half of an employee list because the Employer
wouldn’t lose contact with striking employees. In Cream of
the Crop, 300 NLRB 914 (1990), cited by the Union, to
show apparent agency, there must be a manifestation by the
principal to third parties that supplies a reasonable basis for
the latter to believe that the principal has authorized the al-
leged agent to do the acts in question. This means that the
principal intended to cause third persons to believe the agent
is authorized to act for him or the principal should realize
this conduct is likely to create such a belief. Id. In the cur-
rent case, the only action relied on by the Union is the fact
that Kruger was given half of an employee list. I do not find
this action alone is sufficient to show that either Robert or
Lynda Denney meant to authorize Kruger to speak on behalf
of the Employer to other unit employees. Therefore, state-
ments attributed to Kruger shall be considered hearsay and
not credited.
The Union claims that laboratory conditions were not
present because of the pervasive atmosphere created by the
Employer’s decision to permanently close its business and
later reconsideration of this decision.
The postelection evidence presented by the Union included
a September 25 letter that the Employer was reconsidering
its decision to close the business. The Employer presented
evidence that it had received an unacceptable offer from a
prospective buyer on September 21. Denney also told
Christiansen that if Denney sold the business, it would be at
a great loss. While Denney noted that he had been encour-
aged by the unsolicited responses of employees to the decer-
tification petition, the Union presented no evidence to show
that this was the reason that the Employer announced it had
reconsidered permanently closing the business. However,
there was no evidence that Denney ever stated what he
would do if the Union on the election.
The Union presented evidence that Christiansen had two
phone conversations with Denney. According to Christiansen,
Denney told him that the business would reopen if the decer-
tification went through. Denney admits that he told
Christiansen that the only way the business would reopen
was if the Union pulled its pickets or the Union was voted
out. In a statement read or mailed to 16 to 20 employees just
prior to the election, Denney specifically linked decertifica-
tion of the Union with the end of picketing and employees
being put back to work. In this statement and during the
phone conversation with Christiansen, the Employer has im-
plied that if the Union is not decertified, the business will
remain closed. In the case of the conversation with
Christiansen, Denney admittedly stated that decertifying the
Union out was one of the two only ways employees can re-
turn to work.
When making a determination of the effect of the Employ-
er’s comment or conduct among the factors to be considered
are the size of the unit, the closeness of the election, and the
extent to which reports of the misconduct are disseminated
to unit employees. Rosehill Cemetery Assn., 275 NLRB 180
(1985). In the present case, there is a close vote. There are
only 28 in the bargaining unit. While the Union presented no
evidence that Christiansen repeated Denney’s comment to
other unit employees, Denney testified that a majority of the
bargaining unit had received his written statement. Based on
the fact that Robert and Lynda Denney personally dissemi-
nated the information regarding the consequences of the de-
181RENTON ISSAQUAH FREIGHTLINES
certifying the Union, I find that the Employer’s conduct is
not de minimis and has tainted laboratory conditions. See
Airstream, Inc., 304 NLRB 151 (1991).
Based on the above evidence, I find the Union has met its
burden of presenting sufficient evidence that the Employer’s
conduct during the critical period created a pervasive atmos-
phere that tainted laboratory conditions. Id. Based on the evi-
dence presented, I find the circumstances are such that the
voters or results of the election were affected. Therefore, I
recommend that the objection be sustained, the election re-
sults be set aside, and a new election be directed.
Summary
As set forth above, I recommend that the Union’s objec-
tion be sustained, that the election results be set aside, and
that a new election be directed.