Thomas Industries, Inc.Download PDFNational Labor Relations Board - Board DecisionsApr 30, 1969175 N.L.R.B. 776 (N.L.R.B. 1969) Copy Citation 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thomas Products Company, Division of Thomas Industries , Inc. and United Steelworkers of America , AFL-CIO. Cases 10-CA-6871, 10-CA-6960, l0-CA-7029, and 10-CA-6908 April 30, 1969 DECISION AND ORDER By CHAIRMAN M'CCULLOCH AND MEMBERS BROWN AND JENKINS On January 15, 1969, Trial Examiner Lowell Goerlich issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, Respondent filed exceptions to the Decision and a supporting brief, and the General Counsel filed cross-exceptions' to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, cross-exceptions, briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that Respondent, Thomas Products Company, Division of Thomas Industries, Inc., Johnson City, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 'Respondent ' s motion to dismiss the General Counsel's cross-exceptions is hereby denied as lacking in merit. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Trial Examiner : The charges in Cases 10-CA-6908, 10-CA-6871, 10-CA-6960, and 10-CA-7029 were filed respectively on April 5, March 9, May 22, and July 21, 1967. The complaint in Case 10-CA-6908 was issued on December 13, 1967, naming Thomas Products Company, Division of Thomas Industries , Inc., as the Respondent. On January 5, 1968, an order consolidating cases, complaint and notice of hearing was issued in Cases 10-CA-6871, 10-CA-6960, 10-CA-7029, and 10-CA-6908 also naming as Respondent, Thomas Products Company, Division of Thomas Industries, Inc. The complaint in Case 10-CA-6908. alleged that the employer had violated Section 8( a)(1) and (5) of the National Labor Relations Act, Series 8, as amended, herein called the Act, and the complaint in Cases 10-CA-6871, 10-CA-6960 , and 10-CA-7029 alleged that the Respondent had engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act. The Respondent filed timely answers denying that it had engaged in or was engaging in the unfair labor practices alleged. The cases came on for hearing on May 21, 22, 23, and 24, July 8, 9, and 10, October 3, and November 13, 1968, at Johnson City, Tennessee. During the hearing, with the approval of the Trial Examiner, the parties settled the issues involved in Cases 10-CA-6871, 10-CA-6960, and 10-CA-7029 and the charges were withdrawn and the complaint as to these cases was dismissed. Case 10-CA-6908 was submitted for decision. Each party was afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses , to argue orally on the record, and to submit proposed findings of fact and conclusions of law, and to file briefs.' The issue before the Trial Examiner involves the Bernel Foam doctrine.' Upon the whole record and upon his observation of the witnesses , the Trial Examiner makes the following: FINDINGS OF FACT AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is and has been at all times material herein a Tennessee corporation with its principal office and place of business located at Johnson City, Tennessee , where it is engaged in the manufacture and sale of paint rollers. Respondent , during the past calendar year , which period is representative of all times material herein, sold and shipped finished products valued in excess of $50,000 directly to customers located outside the State of Tennessee . The Trial Examiner finds , as is admitted by the Respondent, that at all times material herein the Respondent was an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO, the Charging Party, is now and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES As violations of Section 8(a)(1) of the Act, the General Counsel alleged in his complaint: The only brief received by the Trial Examiner was from the counsel for the General Counsel. 'Berne! Foam Products Co.. 146 NLRB 1277. 175 NLRB No. 126 THOMAS PRODUCTS COMPANY Respondent, by its supervisors and agents, General Manager Clifton Snyder, in letters mailed to its employees dated March 24, 25, 27, 28 and 29, 1967, in two bulletins posted in and about the vicinity of its plant, on or about March 23, 1967, and in speeches to its employees on or about March 30, 1967, in and about the vicinity of its plant, and President John G. Beam, in speeches to its employees on or about March 27, 1967, in and about the vicinity of its plant, threatened its employees that it would refuse to bargain in good faith, that it might bargain so as to decrease employee benefits, that the only real result of the election would be a strike, and that the strike might well cause the closing of the plant. The sole evidence offered in support of these allegations was the report on challenged ballots and objections filed by the Regional Director, Region 10, in Case I0-RC-6990 to which was attached, as appendixes, the letters, bulletins, and speeches referred to in the General Counsel's complaint. The parties stipulated: MR. WATSON: Mr. Batson, Mr. Clark and myself, and Mr. Crawford,' discussed a stipulation of facts with respect to General Counsel's Exhibit No 2, the exhibits attached to the Regional Director's Report, which set out the speeches made by Messrs Snyder & Beam, and we would stipulate now that those were in fact the speeches which were delivered by those two individuals. And the facts as found in the report by the Regional Director, we will stipulate to those facts And to the appendices attached to his report. The Board's Decision (167 NLRB No. 106) on the Union's exceptions to the Regional Director's Recommendations in Case 10-RC-6990 in which he overruled the Union's objections to conduct affecting the result of the election held on March 31, 1967, and the Board's Decision (169 NLRB No 55) denying the employer's motion for reconsideration were made a part of the record. In considering the Union's exceptions to the Regional Director's report, the Board rejected the Regional Director's recommendation that "the objections be overruled in their entirety" and directed a second election. The Board thoroughly analyzed the effect of the election propaganda which was attached to the Regional Director's report and which was the same and only evidence submitted by the General Counsel in this hearing to support the above noted allegations of violations of Section 8(a)(1) of the Act. The Board viewed the Respondent's election propaganda, referred to above (167 NLRB No. 106), in this light In the course of the week prior to the election, the Employer mailed to each of its employees five letters, posted several notices, and addressed the employees on two occasions. The five letters stressed three themes The likelihood of strikes and loss of jobs if the Union should be elected; the impotence of the Union to do anything but call a strike; and the Employer's resolve to deal no more generously with a union than with its employees individually. Two of the posted notices again dealt with strikes and loss of jobs. The two speeches embellished and expanded upon these subjects. One speech was delivered 4 days before the election by John Beam , president of Thomas Industries, Inc., the parent company of the Employer. This speech was mainly addressed to the probable results of any bargaining 'Messrs Watson and Clark represented the Respondent , Mr Batson, the General Counsel ; and Mr . Crawford , the Charging Party 777 session in which the Employer might be forced to engage. After Mr. Beam properly advised the employees that the Employer was not compelled by law to agree to any benefits the Union may have promised the employees, he went on to describe the course that bargaining would likely take. In so doing, he depicted a "horse trading" process in which the Union would begin by asking for concessions which would strengthen the position of the Union, such as a dues-checkoff agreement, a bulletin board, and access to the plant. The Employer might be willing to agree to such terms, Beam said , but the nature of "horse trading" required that the Union would then have to offer some consideration in exchange . Beam stated, "Now, ask yourselves the question, `What has the Union got that they can give us?' The answer is that they can only give us something you already have." Beam went on at some length to embroider this approach - that he was perfectly willing to exact from the Union, in trade for security arrangements that it would probably demand, a diminution in presently existing employee benefits. Coupled with the similar messages conveyed in the barrage of letters currently being mailed by the Employer (e.g., March 27 - "This company is never going to give anything to an outsider that we won't give to our employees"; March 28 - "Anything you get you must get for yourself. All [the Petitioner] can do is tell you to go on strike."), this description of the kind of bargaining that the Employer intended to engage in carried a clear implication that selection of a union would be a futile - and perhaps dangerous - act. The repeated references to strikes in the letters and speeches served to reinforce the Employer's explicit position that the employees would gain nothing by organizing . In outlining , the advantages and disadvantages of, unionization, an employer is not prohibited from pointing out that the strike is a union's chief economic lever, and that strike action might entail certain consequences. But the more the employer persists in referring to strikes and what they might entail - replacement, violence, unemployment, walking picket lines, unpaid bills - the more the employee is likely to believe that the employer has already determined to adopt an intransigent bargaining stance which will force employees to strike in order to gain any benefits. An employer who campaigns on the theory that a strike is an inevitable result of unionization leaves himself open to the construction that he does not intend to bargain in any meaningful sense. When the employer additionally warns that he will never grant to the union benefits that he would not grant without a union , and, indeed, that he stands ready to demand a reduction in employee benefits in exchange for security measures which the union might request, the employees can well believe that the employer has decided in advance to refuse to accord to the union in bargaining the good faith and open mind that the law requires. The Employer's campaign, was not, however, restricted to repeated allusions to strikes and to a concept of bargaining which might even result in a decrease in existing employee benefits. Other campaign utterances put the employees on notice that selection of the Union might well jeopardize the existence of their jobs and of the plant which provided those jobs. In his speech of March 27, 4 days before the election, Beam, the president of Thomas Industries, Inc., told the employees of Thomas Products Co., that the operations 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the division had "not been successful" and that he had brought in General Manager Snyder to "save" the plant. Beam was "frankly" disappointed in the results of the past year, but he wanted the plant to succeed. He then pointed out to the employees that there "have been plants in Thomas Industries that have not succeeded." Beam gave an account of three such plants at which he was forced to terminate operations, one of which was closed after operating the plant "through one union turmoil after another." Finally, he cautioned employees that " I am a business man and I have to make business decisions." Power can persuade , and substantial power can persuade substantially. When an employer who controls a multiplant operation stands before employees and verbally juggles the factories, blithely reminding them of his ability to close this, that, or the other one, it is a display of enormous economic power, calculated to put the fear of unemployment in the minds of employees. Such a demonstration is unnecessary to a reasoned discussion of the pros and cons of unionism and can only tend to make employees believe that, should they incur the employer's displeasure, he could easily find a formidable way . to express his dissatisfaction. The speech given by General Manager Snyder on the day before the election rang changes on this same theme. He addressed himself more specifically to the possibility of strikes and the consequent loss of customers, and related a "fairy tale" of a once "happy" plant in Pennsylvania which now stood empty because of the advent of the Union. When comments such as these are delivered by men in positions to affect permanently the lives of the listeners , they are not lightly received. There may have been no direct, unqualified threats to close the plant . We believe that expressions of a willingness to do so, if necessary, and prophecies that the necessity might well arise, constitute coercion sufficient to pollute the atmosphere of an election and to render the employees incapable of making a free choice. We conclude that the Employer' s campaign , keyed to threats that it would refuse to bargain in good faith, that it might bargain so as to decrease employee benefits, that the only real result of the election would be a strike , and that the strike might well cause the closing of the plant, materially interfered with the election.' 'Dal-Tex Optical Company , Inc., 137 NLRB 1782. In McEwen Manufacturing Company and Washington Industries, Inc., 172 NLRB No. 99, the Board held that the Trial Examiner erred "in considering himself bound by, and relying upon , the Board's findings sustaining objections in the prior representation proceeding" and in concluding therefrom that an employer's remarks were violative of Section 8(a)(1) of the Act. The Board opined "[ilt is well settled that the Board ' s findings and conclusions with respect to conduct alleged as objectionable in a representation proceeding are not binding upon the Trial Examiner in a subsequent hearing where such conduct is alleged as an unfair labor practice, since the issues are different in the two types of proceedings." Mindful of the rule announced in the McEwen case , the Trial Examiner has independently examined and considered the communications of the Respondent which were offered by the General Counsel in this proceeding . Having considered such communications together with the entire record in this case, the Trial Examiner concurs with the Board in its analysis and conclusions as to the import of these communications and adopts them as the Trial Examiner 's findings of fact and conclusions in respect to such communications. Based upon these findings of fact and conclusions , the Trial Examiner finds that the Employer 's campaign , keyed as it was to threats that it would refuse to bargain in good faith , that it might bargain so as to decrease employee benefits , that the only result of the election would be a strike , and that the strike might well cause a closing of the plant , interfered with , restrained , and coerced employees in their rights guaranteed by Section 7 of the Act and constituted a violation of Section 8(a)(1) of the Act.' It is the further opinion of the Trial Examiner that the Section 8(a)(1) violations herein found under Board precedent are insufficient to support a violation of Section 8(a)(5) of the Act or to justify a bargaining order remedy. See Hercules Packing Corporation , 163 NLRB No. 35; Grafton Boat Co ., Inc., 173 NLRB No. 150. Cf. N.L.R.B . v. Ben Duthler , Inc., 395 F.2d 28 (C.A. 6). Accordingly , those allegations in the complaint charging a violation of Section 8 (a)(5) of the Act are dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. RECOMMENDED REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act, the Trial Examiner recommends that it cease and desist therefrom and take the specific affirmative action , described below , designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor 'The Respondent filed a motion for reconsideration of the Board's Decision, Order, and Direction of Second Election which the Board considered, 169 NLRB No. 55; the Board said ". . . we can conceive of no undeveloped facts or circumstances which could have substantially mitigated the coercive thrust of the Employer 's propaganda , especially the remarks made in speeches as discussed in our earlier Decision ." The Trial Examiner has considered all the evidence offered by the Respondent in this hearing. 'In view of his dismissal of the 8(aX5) allegations , the Trial Examiner deems it unnecessary to pass on the issues related to the Union 's majority status. THOMAS PRODUCTS COMPANY practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this case, it is recommended that Respondent , Thomas Products Company, Division of Thomas Industries , Inc., of Johnson City , Tennessee , its officers , agents, successors, and assigns , shall: 1. Cease and desist from: (a) Threatening , in the event the employees choose the Union as their bargaining representative , that it will refuse to bargain in good faith , and might bargain so as to decrease employee benefits ; that the only real result of an election would be a strike ; and that a strike might well cause the closing of the plant. (b) In any like or related manner, interfering with, restraining , or coercing its employees in the exercise of their rights to self-organization , to form labor organizations , to join or assist United Steelworkers of America , AFL-CIO, or any other labor organization, to bargain through representatives of their own choosing and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any and all such activities. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Post at its Johnson City plant, copies of the attached notice marked "Appendix."` Copies of said notice , on forms provided by the Regional Director for Region 10 , after being duly signed by the Respondent's representative , shall be posted by it 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 Respondent to insure that said notices are not altered , defaced , or covered by any other material. (b) Notify the Regional Director for Region 10, in writing , within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.' 'In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice . In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 'In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." 779 IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act other than those found in this Decision. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT threaten, if the United Steelworkers of America, AFL-CIO, or any other union becomes the bargaining representative of our employees, that we will refuse to bargain in good faith, or that we might bargain so as to decrease employee benefits. WE WILL NOT threaten that the only real result of an election will be a strike, and that a strike might well cause the closing of the plant. The Act gives all employees these rights: To organize themselves To form and join or help unions To bargain as a group through representatives they choose To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things WE WILL NOT do anything that interferes with these rights. All of you are free to become or remain , or refrain from becoming or remaining , members of any labor organization including the United Steelworkers of America, AFL-CIO. THOMAS PRODUCTS COMPANY, DIVISION OF THOMAS INDUSTRIES, INC. (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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 730 Peachtree Street, NE., Room 701, Atlanta, Georgia 30308, Telephone 404-526-5760. Copy with citationCopy as parenthetical citation