Fiber-Lam, Inc.

National Labor Relations Board - Board Decisions

Jan 11, 1991

301 N.L.R.B. 94 (N.L.R.B. 1991)

94
301 NLRB No. 9
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In the absence of exceptions, we adopt the Regional Director’s rec-
ommendations that the remainder of Objections 1, 2, and 3 and Objections 4,
5, and 6, in their entirety, be overruled.
2 See American Safety Equipment Corp., 234 NLRB 501 (1978).
3 171 NLRB 1366, 1369 (1968), enfd. 414 F.2d 99 (7th Cir. 1969). The
Board there held that economic strikers who unconditionally apply for rein-
statement at a time when their positions are filled by permanent replacements:
‘‘(1) remain employees; and (2) are entitled to full reinstatement upon the de-
parture of replacements unless they have in the meantime acquired regular and
substantially equivalent employment, or the employer can sustain his burden
of proving that the failure to offer full reinstatement was for legitimate and
substantial business reasons.’’
4 Eagle Comtronics, 263 NLRB 515 (1982).
5 The Regional Director relied on Harrison Steel Castings Co., 262 NLRB
450 (1982), enfd. 728 F.2d 831 (7th Cir. 1984); Mead Nursing Home, 265
NLRB 1115 (1982); Webel Feed Mills & Pike Transit Co., 217 NLRB 815
(1975); Hicks-Ponder Co., 186 NLRB 712 (1970), enfd. 458 F.2d 19 (5th Cir.
1972).
6 Eagle Comtronics, supra. The Board in Eagle distinguished Webel Feed
Mills & Pike Transit Co., supra, and Hicks-Ponder Co., supra, by noting that
in both those cases the employers went beyond informing the employees of
the risk of being permanently replaced by telling them they would permanently
lose their jobs.
Fiber-Lam, Inc. and United Paperworkers Inter-
national Union, AFL–CIO, CLC, Petitioner.
Case 5–RC–13224
January 11, 1991
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held June 2, 1989, and the Regional Director’s report
recommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows 6 for and 27 against
the Petitioner, with no challenged ballots.
The Board has reviewed the record in light of the
exceptions and brief, and has adopted the Regional Di-
rector’s findings and recommendations only to the ex-
tent consistent with this decision and finds that a cer-
tification of results of election should be issued.1
In support of its Objections 1 through 3, the Peti-
tioner submitted various campaign leaflets which the
Employer had distributed to the employees before the
election. The Employer also submitted campaign mate-
rial referred to here as Exhibit C, to which was at-
tached Exhibit G. The Regional Director overruled Ob-
jections 1 through 3 insofar as they were ‘‘specifically
addressed’’ by the Petitioner, but then considered
whether Exhibits C and G were objectionable.2
Exhibit C is a letter dated May 24, 1989, which the
Employer distributed to the employees during the crit-
ical period. The last paragraph exhorts employees to
vote ‘‘NO’’ to, among other things, ‘‘possible loss of
your job in an economic strike.’’
Exhibit G has the caption ‘‘QUESTIONS AND AN-
SWERS.’’ Among the questions and answers is the
following:
Question: Can an employee lose his job if a
union calls a strike?
Answer: Yes. Under the law, if a union calls a
strike to force the company to agree to their [sic]
demands, the company is free to replace striking
employees. This means that after the strike is
over, the employee may no longer have a job. The
law does not force the company to bring back the
employee unless his replacement quits. During an
economic strike the striker remains an employee,
unless fired for misconduct, with a right to rein-
statement under certain conditions.
The Regional Director correctly noted that an em-
ployer may truthfully inform employees that economic
strikers are subject to permanent replacement but may
not threaten that strikers would be deprived of their
rights as detailed in Laidlaw Corp.3 He also explained
that an employer’s statements concerning employees’
job status after a strike that are consistent with the law
cannot be found to have restrained or coerced employ-
ees under the Act.4
Applying that test, the Regional Director found that
Employer Exhibits C and G both contain statements to
the effect that employees can lose their jobs if the
Union calls a strike. He then found that such state-
ments are not consistent with the law.5 He further
found that in Exhibit G the answer to question 3 cre-
ates an ambiguity because the answer states an un-
equivocal ‘‘Yes’’ to the question, ‘‘Can an employee
lose his job if a union calls a strike?’’ and ‘‘then
lapses into equivocation.’’ The first full sentence of the
answer states that the law does not force the Company
to bring back an economic striker ‘‘unless his replace-
ment quits.’’ The answer concludes with a statement
that ‘‘During an economic strike the striker remains an
employee, unless fired for misconduct, with a right to
reinstatement under certain conditions.’’ In the Re-
gional Director’s view, ‘‘the use of the phrases [sic]
‘his replacement’ and ‘during’ an economic strike’’ in
the context of the Employer’s leaflets and mailings
reasonably could lead employees to conclude that
strikers ‘‘would risk termination unless their specific
replacements quit or that they no longer would have
employee status following the termination of an eco-
nomic strike.’’ (Emphasis in original.) He therefore
found the material objectionable and set aside the elec-
tion. We disagree.
As noted by the Regional Director, an employer
does not violate the Act by informing employees that
economic strikers are subject to permanent replace-
ment, even if he does not fully detail their rights under
Laidlaw, so long as the employer does not threaten
that employees will be deprived of those rights.6
95FIBER-LAM, INC.
7 John W. Galbreath & Co., 288 NLRB 876 (1988).
We do not agree with the Regional Director that the
Employer here overstepped the narrow line between
warning employees of the possible employment con-
sequence of striking and threatening a loss of jobs. In
an analogous case, John W. Galbreath,7 an employer
pamphlet containing the following statement was found
unobjectionable:
Question: You mean strikers can lose their
jobs?
Answer: You bet they can. However, they are
not discharged, technically speaking. But they’re
not working . . . .
The Board found that while the employer’s statement
spoke in terms of job loss, it also stated that employ-
ees are ‘‘not discharged, technically speaking, [b]ut
they’re not working.’’ The employer’s qualification
that the employees are ‘‘not discharged,’’ the Board
concluded, implied that the economic strikers retained
their status as employees.
Here also, although the Employer referred to job
loss, it also clearly stated that ‘‘the striker remains an
employee, unless fired for misconduct, with a right to
reinstatement under certain circumstances.’’ As the
Board observed in John Galbreath, the employees may
be left somewhat puzzled about their rights as eco-
nomic strikers, but the Employer did inform them that
they would remain employees. Although the Employ-
er’s statements were not a comprehensive recitation of
the rights of economic strikers, they did not constitute
threat of job loss and, thus, were not objectionable. We
will, therefore, overrule in their entirety Objections 1,
2, and 3, and certify 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 United Paperworkers Inter-
national Union, AFL–CIO, CLC, and that it is not the
exclusive representative of the bargaining unit employ-
ees.