Four Winds Industries, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1977

228 N.L.R.B. 1124 (N.L.R.B. 1977)

1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Four Winds Industries, Inc. and Orange County
District Council of Carpenters, affiliated with the
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO. Cases 21-CA-11403, 21-
CA-11507, and 21-RC-12985
March 31, 1977
SUPPLEMENTAL DECISION AND
ORDER
By CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On June 13, 1974, the National Labor Relations
Board issued a Decision and Order 1 in the above-
entitled proceeding, finding violations of Section
8(a)(1), (3), and (5) of the Act and ordering the
Respondent to cease and desist therefrom, to take
certain affirmative action, and to bargain with the
Union upon request. Thereafter, the United States
Court of Appeals for the Ninth Circuit enforced the
Board's Order relating to the 8(a)(1) violation,
reversed the finding of an 8(a)(3) violation in the
discharge of two union activists, and remanded the
proceeding to the Board for reconsideration of the
bargaining order in light of its reversal of the finding
of the 8(a)(3) violation.2
In remanding, the court questioned the propriety of
the bargaining order in view of (1) its finding that the
discharges were justified, (2) its assumption that the
Board "gave considerable weight to the effect of
these discharges on the election" in issuing its
bargaining order, (3) its conclusion that "under our
findings" the discharges "cannot be considered to
have influenced the election,"3 and its observation
that the language which it agreed violated Section
8(a)(1) "was not greatly dissimilar from Adco
Advertising4 and ONeil Moving & Storage5 which
had been approved by the Board."
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has again reviewed the entire record in
this case pursuant to the court's remand and
concludes that lingering effects of the 8(a)(1) viola-
tion, because of its threat to employees' jobs, render
a free and fair election in the foreseeable future
unlikely and, for this reason, a bargaining order
based on the 8(a)(1) violation alone is required to
remedy the effects of the unfair labor practice.
i 211 NLRB 542 (Chairman Miller dissenting).
2 N L R B v. Four Winds Industries, Inc, 530 F 2d 75 (C.A 9, 1976.)
3 The Union lost the election by a vote of 26 to 3. In our earlier decision
in this case, 211 NLRB 542, we found that when the Union made its request
The finding of an 8(a)(1) violation was based on
three preelection letters distributed by Respondent
which, in the words of the court of appeals,
contained "a thinly veiled threat from the employer
that voting in the Union would inevitably result in
ultimate job loss for its supporters." This threat
consisted of the representation in the letters that if
the Union won the election its demands would not be
accepted by Respondent, a strike would follow, and,
as the court stated, "with job loss, i.e., permanent
replacement, of striking employees the only possible
outcome." The court further noted that "To an
employee in a position of economic dependence the
message is received as a threat of reprisal."
The Board has long regarded the threat of job loss
as having a seriously coercive effect on the employ-
ees' freedom of choice in the election of a collective-
bargaining representative. For example, in General
Stencils, Inc., 195 NLRB 1109, 1109-10 (1972), the
Board held that "A direct threat of loss of employ-
ment, whether through plant closure, discharge, or
layoff, is one of the most flagrant means by which an
employer can hope to dissuade employees from
selecting a bargaining representative. Such conduct is
especially repugnant to the purposes of the Act
because no legitimate justification can exist for
threatening to close a plant or to impose more
onerous and severe working conditions in the event
of a union victory. Such threats can have only one
purpose, to deprive employees of their right freely to
select or reject a bargaining representative." Similar-
ly, in Cohen Bros. Fruit Company, 166 NLRB 88, 90
(1967), the Board observed that:
Threats of loss of work and income are a type of
threat likely to have the most substantial impact
upon employee attitudes and reactions. By their
nature they may justifiably be regarded as serious
violations of the Act. Such threats, although
directed at no more than 2 employees in a unit of
15, may well be sufficiently pervasive in their
impact to prevent a fair election and to under-
mine a union's support.
Our earlier decision predicted the bargaining order
on both the 8(a)(1) and the 8(a)(3) violations. Thus
our decision there stated (211 NLRB at 544):
[W ]e further find, in the circumstances noted
below, that a Gissel type bargaining order is
necessary to remedy the violation. These circum-
stances include the following: By October 26,
for recognition more than 75 percent of Respondent 's approximately 40
employees had signed authorization cards.
4 Adco Advertising, Inc. d/b/a Pennysaver and Ampress, Incorporated 206
NLRB 497 (1973).
b 209 NLRB 713 (1974XMembers Fanning and Jenkins dissenting).
228 NLRB No. 140
FOUR WINDS INDUSTRIES, INC. 1125
1972, the Union had secured authorization cards
representing more than 75 percent of the Respon-
dent's employees in an appropriate unit; on
November 17, 1972, the Petitioner filed its instant
petition in Case 21-RC-12985; on October 30,
1972, and January 3 and 9, 1973, the Respondent
circulated among the employees antiunion state-
ments, including the October 30 letter hereina-
bove found violative of Section 8(a)(1) of the Act;
and on January 12, 1973, an election was held,
which the Union lost by a margin of 26 votes to 3
votes, with 4 ballots challenged.
In Gissel, the United States Supreme Court
stated that "In fashioning a remedy in the
exercise of its discretion . . . the Board can
properly take into consideration the extensiveness
of the employer's unfair labor practices in terms
of their past effect on election conditions and the
likelihood of their recurrence in the future." In
the instant circumstances, we conclude that the
extent and seriousness of both the 8(a)(1) viola-
tions and the 8(a)(3) discharges committed by the
Respondent in its effort to demonstrate to its
employees the futility of any further adherence to
the Union not only affected the last election, but
also destroyed the atmosphere in which a fair
election can be held in the future, and that the
effect of this unlawful conduct cannot be erased
by just a cease-and-desist order.
We concluded therein that the signed authorization
cards "constituted a better expression of employee
sentiment than an election would be" and ordered
Respondent to bargain with the Union. We reach the
same conclusion now solely on the basis of Respon-
dent's three job-threatening letters. In arriving at this
conclusion we have reviewed the Board's decisions in
Adco and O'Neil, supra, as suggested by the court of
appeals, and are of the opinion that little importance
should be attributed to the fact that the language
held lawful by the Board in those cases "was not
greatly dissimilar" from that employed in the present
case. The significant fact is that in this case the court
and the Board agree that the three letters amounted
to threats that the employees would lose their jobs if
the Union won the election. No such threats were
found in Adco and O'Neil because in the eyes of a
Board majority, the employers' literature in those
cases did not contain an adamant refusal even to
consider a predicted union-shop proposal by the
union with a representation that a strike and
permanent replacement of strikers were inevitable .6
6 Any similarity between Adco and O 'Neil on the one hand and this case
on the other ends with the fact that the employers in all three situations
expressed some opposition to umon -shop provisions . However, the mere
expression of opposition to such provisions does not connote total rejection
As noted above, the threat of job loss is one of the
most flagrant acts of interference with a fair election,
the effect of which is to render a reliable election
unlikely . For these reasons , we shall affirm our
bargaining order.
Based on the foregoing , and the entire record in
this case , the National Labor Relations Board hereby
affirms its Order issued in this proceeding on June
13, 1974, as pertains to the 8(a)(1) and (5) violations.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Four Winds Industries, Inc., Santa Ana, California,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to bargain collectively in
good faith with Orange County District Council of
Carpenters, affiliated with the United Brotherhood
of Carpenters and Joiners of America, AFL-CIO, as
the exclusive bargaining representative of all its
employees constituting the unit found below to be
appropriate for the purpose of collective bargaining:
All production and maintenance employees,
including shipping and receiving employees,
leadmen, and truckdrivers employed by Four
Winds Industries, Inc., at its facilities located at
1918 East Occidental, Santa Ana, California,
excluding office clerical employees, professional
employees, guards, and supervisors as defined in
the Act.
(b) Expressing to the employees, by preelection
propaganda or otherwise, the futility of their union
support, anticipatory refusal meaningfully to consid-
er mandatory subjects of bargaining, such as a
union-shop provision, and threats to discharge or
permanently replace strikers, in a manner violative of
Section 8(a)(1).
(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
right to self-organization, to form labor organiza-
tions, to join or assist Orange County District
Council of Carpenters, affiliated with the United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their
own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection as guaranteed in
of it as a bargainable issue . Something more expressive than that must be
stated to show such rejection. If not , there would be precious few, if any,
statements that an employer could make in mounting a legitimate campaign
against unionization of its employees.
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 7 of the Act, or to refrain from any and all
activities, except to the extent that such right may be
affected by an agreement requiring membership in a
labor organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act as modified
by the Labor-Management Reporting and Disclosure
Act of 1959.
2. Take the following affirmative action which it
is found will effectuate the policies of the Act:
(a) Upon request recognize and bargain with the
above-named Union as the exclusive representative
of all the employees in the bargaining unit described
above and, if an understanding is reached, upon
request embody such understanding in a signed
agreement.
(b) Post at its plant in Santa Ana, California, copies
of the attached notice marked "Appendix." 7 Copies
of said notice, on forms provided by the Regional
Director for Region 21, after being duly signed by
Respondent 's authorized representative , shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
IT IS ORDERED that the election conducted on
January 12, 1973, in Case 21-RC-12985 be, and the
same hereby is, set aside and the position dismissed.
IT IS FURTHER ORDERED that the allegations of the
complaint not hereinabove found to be supported by
the evidence be, and they hereby are, dismissed.
r In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to
give evidence the National Labor Relations Board
has found that we violated the National Labor
Relations Act and has ordered us to post this notice.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through represen-
tatives of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all these things.
WE WILL NOT express to our employees, by
means of preelection propaganda or otherwise,
the futility of their union support, anticipation of
refusal to meaningfully consider mandatory
subjects of bargaining, such as a union-shop
provision, and threats to discharge or permanent-
ly replace strikers.
WE WILL NOT in any other manner interfere
with, restrain , or coerce employees in the exercise
of their rights guaranteed in Section 7 of the Act.
WE WILL bargain collectively with Orange
County District Council of Carpenters, affiliated
with the United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, as the exclusive
collective-bargaining representative of our em-
ployees in the following appropriate unit:
All production and maintenance employees,
including shipping and receiving employees,
leadmen , and truckdrivers employed by Four
Winds Industries, Inc., at its facilities located at
1918 East Occidental, Santa Ana, California,
excluding office clerical employees, professional
employees, guards, and supervisors as defined in
the Act.
FOUR WINDS
INDUSTRIES, INC.