Adco Metals, Inc.

National Labor Relations Board - Board Decisions

Oct 17, 1986

281 N.L.R.B. 1300 (N.L.R.B. 1986)

1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Adco Metals , Inc. and Shopmen 's Local Union No.
502, International Association of Bridge , Struc-
tural and Ornamental Iron Workers , AFL-CIO.
Case 4-CA-15410
17 October 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
Upon a charge filed 7 November 1985 by Shop-
men's Local Union No. 502, International Associa-
tion of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO, the General Counsel of the
National Labor Relations Board issued a complaint
on 17 December 1985 against the Respondent,
Adco Metals, Inc., alleging that it had violated
Section 8(a)(1) of the National Labor Relations
Act. Copies of the complaint and notice of hearing
were served on the Respondent. The Respondent
filed a timely answer denying the commission of
any unfair labor practices.
On 21 March 1986 the parties and the General
Counsel moved the Board to transfer the instant
proceeding to the Board without benefit of a hear-
ing before an administrative law judge, and they
submitted a proposed record consisting of the
formal papers and the parties' stipulation of facts
with attached exhibits. On 29 May 1986 the Board
issued an order granting the motion, approving the
stipulation, and transferring the proceeding to the
Board. The General Counsel and the Respondent
filed briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On the entire record in this case, the Board
makes the following findings.
1. JURISDICTION
The Respondent is a Delaware corporation en-
gaged in the fabrication and erection of steel at its
facility located in New Castle, Delaware. The Re-
spondent, in the course and conduct of its business
operations within the State of Delaware, annually
purchases and receives goods valued in excess of
$50,000 directly from points outside the State of
Delaware. Accordingly, we find that the Respond-
ent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and
that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Issue
The issue presented is whether the Respondent
violated Section 8(a)(1) of the Act by notifying its
employees in writing that they could expect to be
subpoenaed as witnesses in a Federal proceeding if
they signed a union authorization card.
B. Facts
The Respondent employed approximately 60
shop employees who were not represented by any
labor organization and approximately 50 ironwork-
ers who were represented by Iron Workers Local
451. The Charging Party was engaged in a cam-
paign to organize the Respondent's shop employ-
ees. On 22 October 1985 the Charging Party dis-
tributed 39 authorization cards among the Re-
spondent's unrepresented shop employees. Four of
these authorization cards were signed , dated, and
subsequently returned to the Charging Party. The
Charging Party has not filed a representation peti-
tion with the Board seeking to represent any of the
Respondent's employees.
On or before 24 October 1985 the Respondent
became aware that authorization cards had been
distributed and, about that same date, the Respond-
ent distributed to its employees the following state-
ment signed by the Respondent's president, Elmer
P. Renzi:
Before you consider signing a union authori-
zation card, keep in mind, by signing the card,
it is not a free ride. Anybody that signs the
union card can expect to be subpoenaed as a
witness in a federal proceeding.
C. Contentions of the Parties
The General Counsel contends that the Respond-
ent violated Section 8(a)(1) of the Act by distribut-
ing the above statement. The General Counsel as-
serts that the statement carried the obvious implica-
tion that harm of retaliation would result from dis-
closure of the identity of the cardsigner to the Re-
spondent and was therefore a deterrent to union af-
filiation. The General Counsel argues that the Re-
spondent had "no reason for informing [its] em-
ployees that they might be required to testify . . .
other than to let them know that the names of
union adherents could be ascertained and appropri-
ate reprisals taken," and, further, that even if the
Respondent had not "exaggerated" that a card-
signer "can expect to be subpoenaed," the truthful-
281 NLRB No. 172
ADCO METALS 1301
ness of a statement does not insulate the statement
if it is an unlawful threat.'
The Respondent contends that its written com-
munication contained no threats or coercive state-
ments, express or implied , and that there was no
background of threatening or coercive employer
conduct from which an inference of harm or retal-
iation might be drawn . The Respondent also argues
that its handout was a fair statement of the law or,
in the alternative , that, if a misstatement , it is not
so blatant as to constitute a per se violation of the
Act.
D. Discussion and Conclusions
We recently held, in Southwire Co., supra, that an
employer's statements similar to the one at issue in
the instant case constituted an unlawful threat of
retaliation against employees who had signed au-
thorization cards . In doing so, we emphasized that
"the violation flow[ed] from the context in which
the [r]espondent made the statements ." 2 For similar
reasons , we find that the Respondent 's statement to
employees in this case unlawfully threatened them
with retaliation if they signed authorization cards.
In this regard , although the presence of independ-
ent evidence of union animus has been a significant
circumstance in several of the cases relied on by
the General Counsel , such evidence is not a prereq-
uisite to finding a violation . Solicitation of authori-
zation cards plays a vital role in organizational
campaigns , and we recognize the "chilling" effect
on the right of employees to signify their union
support if they know that their employer can read-
ily ascertain their identity . 3 The statement here
was signed by the president of the Company and
distributed to the employees just after they had re-
ceived union authorization cards and while they
were in the statutorily protected process of making
a decision about joining the Union . In addition, the
Respondent had no apparent legitimate justification
for circulating its statement at that time . Further-
more , the admonition that "it is not a free ride"
suggests some cost to employee cardsigners as a
consequence of the disclosure of their identities.
Although not dispositive, we also note that the Re-
spondent has overstated in absolute terms the inevi-
tability of subpoenaed testimony . There are many
i In support of these contentions , the General Counsel cites , inter alia,
Southwire Co., 277 NLRB 377 (1985), Heck's Inc., 273 NLRB 202 (1984),
and 272 NLRB 227 (1984), Huntington Rubber Co., 260 NLRB 1008
(1982), Arrow Automotive Industries, 256 NLRB 1027 (1981 ), enfd. 679
F.2d 875 (4th Cir. 1982); Lundy Packing Co., 223 NLRB 139 (1976), enf.
denied in relevant part 549 F .2d 300 (4th Cir. 1977), Finesilver Mfg Co,
160 NLRB 1400 (1966), enfd . in relevant part 400 F 2d 644 (5th Cir.
1968)
2 277 NLRB at 377.
3 Heck 's Inc., supra ; Committee on Masonic Homes Y. NLRB, 556 F 2d
214, 221 (3d Cir 1977).
instances in which neither the Board nor the Fed-
eral courts will permit forced disclosure of the
identity of employees who sign cards seeking union
representation.4
Our finding of the potential impact on employees
of the Respondent 's statement is consistent with nu-
merous Board and court cases . For example, in
support of its holding that authorization cards may
not be obtained from the Board by an employer in
a Freedom of Information Act proceeding, the
United States Court of Appeals for the Sixth Cir-
cuit stated in Madeira Nursing Center v. NLRB,
supra at 730-731:
When an employee signs an authorization
card during the initial phase of union organiza-
tion , he expresses a personal decision to seek
the support of a union in future dealings with
his employer . Since the union organization of
a company may take the form of a protracted
and bitter struggle over employee loyalties, an
employee may be amply justified in wishing to
protect his pro-union declaration from employ-
er scrutiny.
We would be naive to disregard the abuse
which could potentially occur if employers
and other employees were armed with this in-
formation. The inevitable result of the avail-
ability of this information would be to chill the
right of employees to express their favorable
union sentiments. Such a chilling effect would
undermine the rights guaranteed by the
N.L.R.A ., and, for all intents and purposes,
would make meaningless those provisions . . .
which guarantee secrecy in union elections
[quoting Pacific Molasses Co. v. NLRB, 577
F.2d at 1182].
We also note the Board's "customary rule"5 is to
hold authorization cards in confidence during rep-
resentation cases . In our view , therefore , the im-
portance to employees of maintaining anonymity
during organizing campaigns is both obvious and
well-recognized, and we cannot approve of the Re-
spondent 's statement , which threatened that it
would learn the identities of employees who signed
such cards . Furthermore , with respect to the Em-
ployer's threat that employees who signed cards
would be forced to testify as witnesses in a Federal
proceeding, we point out the Supreme Court rec-
ognized in NLRB v. Robbins Tire & Rubber Co.,
437 U.S. 214 (1978), the "all too familiar unwilling-
ness [of employees] to `get too involved' [in formal
4 See, e g., Madeira Nursing Center Y. NLRB, 615 F 2d 728 (6th Cir.
1980); Pacific Molasses Co. v. NLRB, 577 F 2d 1172 (5th Cir. 1978), Com-
mittee on Masonic Homes Y. NLRB, supra
6 Midvale Co, 114 NLRB 372, 374 (1955)
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proceedings] unless absolutely - necessary ." Id. at
240-241. The Court acknowledged in the context
of that case the positive effects of the Board's abili-
ty to assure witnesses who give affidavits during
investigations "that in most instances their state-
ments will not be made public." Id.
We do not hold here that the precise words used
by the Respondent in this case would establish a
violation under all circumstances . As noted above,
however, there is no evidence that employees ex-
pressed to the Respondent 's officials any confusion
about the ramifications of signing a union card or
that the Respondent reasonably contemplated liti-
gation of issues related to cardsignings , and there-
fore the Respondent had no apparent legitimate
justification for its conduct. Finally, we do not
hold that the violation depends on the truth or fal-
sity of the Respondent 's statement . The violation
stems from what this Board , in its cumulative expe-
rience, views as the plain coerciveness of an em-
ployer's statement that cardsigners not only will be
identified, but will be forced to testify in a Federal
proceeding whether they may wish to or not-and
all of this in the absence of any issues, which is or
is likely to be litigated concerning the signing of
union authorization cards.
Based on the foregoing , we conclude that the
Respondent 's statement that cardsigners can
"expect to be subpoenaed" reasonably tended to
discourage employees from signing the union au-
thorization cards by instilling fear of reprisals. We
therefore find that the statement violated Section
8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Adco Metals, Inc. is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. Shopmen's Local Union No. 502 , International
Association of Bridge, Structural and Ornamental
Iron Workers, AFL-CIO is a labor organization
within the meaning of Section 2(5) of the Act.
3. By distributing to its employees a written
statement from the Company 's president indicating
that employees who sign union authorization cards
can expect to be subpoenaed , the Respondent has
engaged in an unfair labor practice within the
meaning of Section 8 (a)(1) of the Act.
4. The aforesaid unfair labor practice is an unfair
labor practice affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged
in an unfair labor practice, we shall order that it
cease and desist therefrom and that it take certain
affirmative action to effectuate the policies of the
Act.6
ORDER
The National Labor Relations Board orders that
the Respondent, Adco Metals, Inc., New Castle,
Delaware , its officers, agents, successors , and as-
signs, shall
1. Cease and desist from
(a) Restraining employees from signing union au-
thorization cards.
(b) In any like or related manner interfering
with, restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Post at its facility in New Castle, Delaware,
copies of the attached notice marked "Appendix."7
Copies of the notice, on forms provided by the Re-
gional Director for Region 4, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted . Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
CHAIRMAN DOTSON, concurring.
I can concur in the result only on the basis that,
in the context of the stipulated facts, the statement
that employees "can expect to be subpoenaed as a
witness in a federal proceeding " can reasonably be
construed as a statement of an intention on the part
of the Employer to involve employees in the in-
convenience of "a federal proceeding " without
lawful and proper cause as retaliation for signing a
card. This is particularly true in view of the fact
that in the usual course of representation proceed-
ings the identity of cardsigners is not revealed as a
result of legal processes . On the other hand, it is a
fact that numerous circumstances, such as demands
for recognition , litigation, and informal communi-
cations, can lead to the disclosure of the identity of
cardsigners without regard to their desire for ano-
° The General Counsel 's request that the remedial order include a visi-
tatonal clause is denied.
' If 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 Nation-
al 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."
i
ADCO METALS 1303
nymity. As a practical matter, employees cannot
sign cards with the assurance that their identities
will not be disclosed.
It is difficult to understand why a settlement
could not be reached before so much of the
Board's and parties' resources were expended on
this case.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT restrain you from signing union
authorization cards.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
ADCO METALS, INC.