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Edw. C. Levy Co. d/b/a The Levy Company and Rex N. Franklin, Petitioner and International Union of Operating Engineers,
Local Union No. 150, AFL–CIO, CLC, Intervenor. Case
25–RD–1490
December 28, 2007
DECISION AND ORDER
By Members Schaumber, Kirsanow, and Walsh
The National Labor Relations Board, by a three-member
panel, has considered objections to and determinative challenges in a mixed manual-mail
ballot election held October 27, 2006, and the Regional Director’s and hearing
officer’s reports recommending disposition of them. The election was conducted pursuant to a Stipulated
Election Agreement. The tally of ballots
shows 0 for the Petitioner, 0 for the Union,
with 225 challenged ballots.
The Board has reviewed the record in light of the Union’s exceptions to the Regional Director’s report and
its supporting brief, and has decided to adopt the Regional Director’s findings
and recommendations.
The Board has also reviewed the record in light of the Union’s and the Employer’s exceptions to the hearing
officer’s report and their supporting and answering briefs. We have decided to adopt the hearing officer’s
recommendation to overrule the challenges to the ballots cast by the replacement
employees and to sustain the challenges cast by striking employees.
We do not adopt, however, the hearing officer’s recommendation
to sustain the Union’s Objections 6, 7, 8, 25, 30, and 33, which, taken together,
alleged that the Employer threatened replacement employees with the loss of
their jobs, and linked the security of their jobs to the results of the
decertification election. We find, contrary
to the hearing officer, that the Employer’s statements do not constitute
objectionable conduct sufficient to set aside the election.
Facts
The Employer
operates a slag processing and steel mill services facility in Burns Harbor, Indiana. The Union
has represented the Employer’s production and maintenance employees for many
years. The parties’ most recent
collective-bargaining agreement expired in March 2005. In August 2005, when negotiations for a
successor agreement proved unsuccessful, the Union
called a strike against the Employer. The Employer continued its operations using
supervisors and replacement employees. We have adopted the hearing officer’s
finding that the Employer offered permanent employment to replacement employees
on or about March 27, 2006. The decertification petition here was filed
in September 2006, and, pursuant to the Stipulated Election Agreement, both replacement
employees and striking employees were permitted to vote in the election that
was scheduled for October 27, 2006.
During the strike, the Employer and the Union continued to
negotiate for a new collective-bargaining agreement, and attempted, among other
things, to resolve issues raised by the strike, including the Union’s
bargaining proposal that the Employer return all striking employees to
work. At a January negotiating session,
Union Representative Dave Fagan proposed that “all former employees go back to
work.” Linda Wyatt, the Employer’s human
resources director, asked Fagan how many employees (strikers) would be coming
back to work. Fagan testified he stated
that, to the best of his knowledge, “probably 30 or 40 employees had found
other work,” and that he was not sure they would be coming back. According to notes taken by Wyatt, which the
parties agree accurately reflect the parties’ discussions at the negotiating
sessions, Fagan indicated that 40 to 60 strikers had jobs elsewhere and
“probably won’t come back,” and that 15 strikers “are working elsewhere” and
“may or may not return.”
In a July negotiating session, Fagan presented a “complete
and comprehensive,” 14-point bargaining proposal that included the Union’s
request that all strikers be offered reinstatement with their original date of
hire, as well as the Union’s offer that the Employer could fill any vacancies
with replacement employees. Fagan
testified that Wyatt then asked how many employees would be coming back to
work. Fagan indicated that “around 50
percent [of the strikers] would probably not be coming back to work.” Fagan
testified that the 50 percent figure was in reference to the total number of employees
who were on strike not only at the Employer’s facility, but also at the
facilities of two companies affiliated with the Employer at which employees had
engaged in a sympathy strike.
Between October 9 and 13, the Employer conducted its
regular monthly safety meetings at which the plant manager and a supervisor discussed
safety procedures and related concerns. Wyatt attended these meetings and discussed
the upcoming election with employees.
Wyatt told employees they could possibly lose their jobs and that the Union “poorly represented” its members by having
employees at Levy Indiana Slag Co. and Edw. C. Levy Co. engage in a sympathy
strike in the face of a contractual no-strike clause. Either Wyatt or Human Resources Manager Waha
stated that part of the Union’s negotiations was to “get rid of” replacement
workers and “let all the [strikers] have their jobs back,” and that the Union “wants all replacements out.” Waha urged the employees to vote against the
Union “if you want to keep your job,” and stressed that the Union
“does not want you (replacement workers) here.”
In a letter to employees dated October 16, Wyatt explained
the mechanics of voting in the upcoming election, urged employees to vote, and
stated that the election outcome “will determine the future of our business and
your job at Levy.” Wyatt also stated,
in the letter, that during recent negotiations, the Union
had proposed that the Employer put all strikers back to work. Wyatt concluded that if the Union
were voted out, the Employer “will no longer be required to negotiate with
Local 150 (strikers will not be able to take your jobs).”
On October 25, two days before the election, the Employer’s
executive vice president, Evan Wiener, spoke to employees about the election. Wiener, referring to contract negotiations
with the Union, pointed out that one “key feature” of the Union’s
negotiation was “they want to put their strikers back to work.” Wiener assured the employees that the
Employer had consistently informed the Union
that it already had, and wanted to keep, its work force, i.e., the replacement
employees. Wiener pointed out that the
Employer, contrary to the Union, believed that
replacement employees were eligible to vote in the election, but that strikers
were not eligible. Wiener stated that
the Employer did not believe that the strikers’ votes would count, but
suggested there would be a “fight about that” with the Union. Wiener emphasized that the Employer did not
want Local 150 back and did not want the strikers back; that the Employer
wanted to keep the replacement workers as its employees; and that the Employer
wanted all of the replacement employees to vote “no” in the decertification
election.
The Union’s
Objections
The Union’s Objections 6 and 7 alleged that the Employer
threatened that if replacement employees voted for the Union, they would lose
their jobs and that the Employer depicted strikes, violence, and loss of jobs
as the inevitable consequence of continued representation by the Union. Objections
8, 25, and 33 alleged that Linda Wyatt, on or about October 11 and in her
October 16 letter to employees, threatened replacement workers that if they
voted for the Union, strikers would be able to take their jobs, but that once
they decertified the Union, the Employer would no longer be required to negotiate
with the Union. Objection 30 alleged
that on October 25, Evan Wiener told replacement employees that the Union does not want replacement workers to continue to
work for the Employer.
The hearing officer consolidated these six Objections for
discussion, as, taken together, they alleged that the Employer threatened replacement
employees with the loss of their jobs and linked the security of their jobs
with the results of the decertification election.
Hearing Officer’s Report
The hearing officer recommended sustaining the Union’s Objections regarding the Employer’s conduct. He found that Wyatt’s statement to
replacement employees, in her October 16 letter, that the election results
would determine the future of their jobs, when combined with the Employer’s
statements in its October meetings to the effect that the Union wanted all
replacement employees “out,” and that if the Union was voted out, the Employer
would not have to negotiate with the Union and that strikers would not be able
to take replacement workers’ jobs, impliedly threatened replacement employees
with the loss of their jobs. He further
found that the Employer implicitly linked the security of the employees’ jobs
with the results of the decertification election.
The hearing officer rejected the Employer’s contention
that it simply informed the employees of the Union’s
bargaining proposal regarding returning strikers to work. The hearing officer found that the Employer
“selectively left out portions of” the Union’s
proposals. The hearing officer
acknowledged that Wyatt’s notes of the negotiating sessions show that the
Union’s proposals called for the return of all strikers, but concluded, from
Fagan’s comments regarding the number of strikers who might return, that the Union did not expect that all strikers would, in fact,
return. In this regard, the hearing officer
noted that the Union proposed that the
Employer could fill any vacancies with current replacement employees. While acknowledging that the Employer did not
present employees with inaccurate or false details of the Union’s proposals,
the hearing officer nonetheless determined that Wyatt and Wiener, although
having “personal knowledge of the Union’s proposals,”
gave replacement employees only “pieces” of those proposals by omitting Fagan’s
estimate of the number of strikers who were likely to return to work.
The hearing officer described the Employer’s statements
that omitted Fagan’s estimates as “inaccurate and misleading,” and emphasized
that they were made at the same time that Wyatt and Wiener told employees that
if they voted “no” in the election, the strikers would not be able to take
their jobs. The hearing officer found
that the Employer’s incomplete description of the Union’s bargaining proposals
regarding the return of striking employees, coupled with its declaration that
the outcome of the decertification election would determine the security of the
replacement employees’ jobs, raised the prospect of job loss and linked
continued employment with the election results.
The hearing officer concluded that the Employer had engaged in
objectionable conduct sufficient to set aside the election.
Discussion
We have carefully reviewed the record and find, contrary
to the hearing officer, that the Employer’s statements to its employees, taken
as a whole, did not constitute a threat that employees would lose their jobs if
the Union were not voted out in the
decertification election.
It is well settled that an employer “is free to communicate
to his employees any of his general views about unionism or any of his specific
views about a particular union, so long as the communications do not contain a ‘threat
of reprisal or force or promise of benefit.’”
NLRB v. Gissel Packing Co.,
395 U.S.
575, 618 (1969). An employer may make a
prediction as to the precise effect he believes unionization will have on his
company, so long as the prediction is “carefully phrased on the basis of
objective fact to convey an employer’s belief as to demonstrably probable
consequences beyond [its] control.” Id. Applying
these principles to the facts presented here, we find, contrary to the hearing
officer, that the Union’s Objections 6, 7, 8,
25, 30, and 33 should be overruled.
By its conduct, the Employer provided its current work force—all
of whom were striker replacements—concrete information about the possible
outcome for them should the Union prevail in its desire to continue to
represent employees and achieve its contract demands. The Employer’s speeches and memoranda
described a series of events and demands that conveyed the unvarnished facts
that because of the Union’s conduct, striking employees elsewhere had lost
their jobs, and that the Union had made
contractual demands which, if followed, would also lead to the replacement
employees being supplanted by the strikers.
The Employer did not threaten employees with job loss. Rather, it explained to them the consequences
of the Union’s demands that could result in
their replacement by striking employees.
That the Employer did not explain every possibility to employees does
not transform its lawful statements into objectionable threats.
It is clear that the Employer provided employees with
accurate information. Thus, Wyatt’s
notes of the January and July 2006 bargaining sessions confirm that the Union wanted the Employer to return all striking employees to work.
There is no dispute that Fagan proposed at the January session that “all
former employees go back to work,” and proposed at the July session that “all
strikers be offered reinstatement.” There
is also no dispute that, on several occasions shortly before the October 27
decertification election, representatives of the Employer discussed the Union’s bargaining proposals with replacement
employees. Employer representatives told
employees that the Union “wants all replacements out” and “does not want you
[replacement employees] here,” and that in recent negotiations, the Union had proposed that the Employer “put all strikers
back to work.” The Employer’s
presentation of the substance of the Union’s
proposals was consistent with what Fagan had requested in negotiations. We find, in agreement with the hearing
officer, that the Employer did not present “inaccurate or false details” of the
Union’s bargaining proposals to its employees,
but truthfully and accurately conveyed the substance of those proposals to its
employees.
We do not agree, however, with the hearing officer that
the Employer’s omission of any reference to Fagan’s bargaining session comments
that some strikers might not return to work rendered its description of the
Union’s bargaining proposals “inaccurate and misleading.” Upon questioning by Wyatt, Fagan stated that,
“to the best of [his] knowledge,” some strikers “probably won’t come back” or “may
or may not return.” In the absence of
any evidence showing that Fagan’s claim had a factual basis, we think it clear
that his comments were, at best, merely a “guess” or an estimate on his
part. Further, Fagan’s “estimate” was
not part of the Union’s actual bargaining
proposal. Wyatt’s notes of the July bargaining
session show that the 14-point written bargaining proposal that Fagan presented
did not include any estimates of how
many striking employees might or might not return. The Union’s formal
proposal on this issue was stated clearly, succinctly, and unequivocally—all strikers were to be offered
reinstatement. That being so, the
Employer was not compelled to tell its employees that the Union
did not expect that all strikers would actually return to work. Although the Employer did not reveal all of
the Union’s bargaining table comments to its employees, the Employer did not
misstate or misreport the Union’s formal,
written bargaining proposals, which clearly did not include any “guesses” as to
the number of strikers who might return to work.
Finally, and significantly, at no time did the Employer
make any threats of reprisals or promise any benefits in return for employees
voting against the Union. On the contrary, rather than threatening its
employees with adverse employment action, the Employer consistently told its
employees that they were permanent employees, that the Employer wished to
retain them as its work force, and that the Employer did not want the strikers
to return. It was the Union,
in seeking the return of all its striking members, which sought to displace
replacement employees from their jobs.
For all these reasons, we find that the Employer did not
engage in objectionable conduct as alleged by the Union. The Employer accurately presented its employees
with the substance of the Union’s bargaining proposals, and lawfully discussed
with them the possible consequences, both positive and negative, that could
ensue if the Union’s proposals were
accepted. Significantly, the Employer’s
discussions with its employees were devoid of threats or promises. Accordingly, we overrule the Union’s Objections
6, 7, 8, 25, 30, and 33, and remand the case to the Regional Director with
directions to open and count the ballots cast by permanent replacement employees
and to issue a revised tally of ballots.
ORDER
It is ordered
that the case is remanded to the Regional Director for further appropriate
action consistent with this Decision.
Dated, Washington, D.C. December 28, 2007
Peter C. Schaumber, Member
Peter N. Kirsanow Member
Dennis P. Walsh, Member
(seal) National
Labor Relations Board
