Jensen Sound Laboratories

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1314 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jensen Sound Laboratories anid Highway Drivers,
Dockmen, Spotters, Rampmen, Meat Packing
House and Allied Products Drivers and Help-
ers, Office Workers and Miscellaneous Employ-
ees Local 710, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Cases 13-CA-19930 and
13-RC-15440
September 30, 1981
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTIONS
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On June 9, 1981, Administrative Law Judge
James J. O'Meara, Jr., issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel and the Charging Party filed exceptions
and a brief in response to Respondent's exceptions
and in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.2
'Respondent has excepted to certain credibility findings tirade by the
Administratisve aw Judge It is the oard's established policy nt to
overrule an administrative law judge's resolutions swith respect to credi-
bility unless the clear preponderance o(f all of thle rlevalt evidence con-
flices us that the resolutions are incorrect Standard Drv Wlu/l Producv.
inc.. 91 NLRB 544 (1950). enfd. 188 F2d 32 (3d Cir 1951). We hae
carefully examined the record and find no basis fr reversing his indings.
Respondent excepted to the Administrative Lass Judges crediting of
the testimony of union wilness Onefre Arcos conclierning a Ma 9 198().
conliversatiolin between Respondent Personnel Manager Joseph O' Conior
and Arcos. Respondent specifically excepted to the Administrative Las
Judge's finding that O'Connor's initiation of the conversation with Arcos
was motivated i part y a physical attack oin O'Connor prior to the
meeting Responlidenl contends that the attack ott O'Connor took place
after the May 9 clivcrsation. To bolster this conitetiloni. Responident has
filed a "Motion for leave To Itroduce Nes F idence by Way of Affi-
das it anid Attached Documents i Support Thereof or. i the Alternative.
To Reopen the Record." We deny Responident's motion ias we find it un-
necessary to rely on fhis finding by the Administrative las Judge. The
other fiindings of the Administrative Law Judge. including O'Colnor's
awareness of a prior offer of promotion made to Arcos and that O'Ci i-
nor would have beeit embarrassed to acknol ledge tihle Arcos meeting
sinice his duties were to advise Respondenit regarding proper campaign
conduct. are sufficient to support the Adminilistratisve I as JLudgc's credit-
ig the testimollny of Arcos over that of O'Connlor.
''he General Counsel has excepted to the Admniisratic Law
Judge's omi ission froim his recommended ()rdecr and llotice o eiployees
that Responident violated Sec. 1Sia)(1) of the Act b threatenliig its em-
ployees ith loss of emploimenit fter reachinig this conclusioi i his D)e-
cision. 'l'o correct this inadvertent error. e shall rtnodifr Ihe Adlfinisra-
tire ass Judge's recominlicided Order to rtlect his conclusion that Re-
258 NLRB No. 181
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Jensen Sound Laboratories, Schiller Park, Illinois,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for paragraph l(a):
"(a) Threatening its employees with physical
harm and/or loss of employment because they en-
gaged in activities in support of a union."
2. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the election held
on May 23, 1980, be, and it hereby is, set aside.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
spondent violated Sec 8(a)(1) by hreatening its employee with loss of
employ ment.
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 an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
Accordingly, we give you these assurances:
WE WI.L NOT threaten employees with
physical harm and/or loss of employment if
they engage in activities in support of a union.
WI Wll NOT coercively interrogate em-
ployees regarding their union activities or
sympathies.
1314
JENSEN SOUND LABORATORIES
WE Wll.l. NOT offer job promotions to em-
ployees in order to induce them not to support
a union.
WE WIl.l NOT selectively enforce any no-
posting, or similarly characterized, rule where
equal access or treatment is not afforded a
union during any organizational campaign
period.
WE WILL NOT in any similar or related
manner interfere with, restrain, or coerce em-
ployees in the exercise of their rights under
the National Labor Relations Act.
JENSEN SOUND LABORATORIES
DECISION
STATEMENT OF THE CASE
JAMES J. O'MEARA, JR., Administrative Law Judge:
The charge underlying the complaint in this consolidated
case was filed on May 16, 1980, by Highway Drivers,
Dockmen, Spotters, Rampmen, Meat Packing House and
Allied Products Drivers and Helpers, Office Workers
and Miscellaneous Employees Local 710, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (hereinafter referred to as Local
710 or the Union). The complaint, issued on June 25,
1980, alleged that Jensen Sound Laboratories, Respond-
ent, violated Section 8(a)(1) of the National Labor Rela-
tions Act, as amended, by threatening and interrogating
employees regarding union activities, by offering a pro-
motion to a union activist, and by refusing to permit
prounion campaign signs to be posted in its plant. Re-
spondent denies that it violated the Act.
The representation case was consolidated with the
complaint case by an order dated June 27, 1980. The
matter arose pursuant to a petition filed on March 26,
1980, and a Stipulation for Certification Upon Consent
Election Agreement approved on April 11, 1980. An
election by secret ballot was conducted on May 23, 1980,
where, of 60 eligible voters, 59 voted, resulting in 13
votes for and 45 votes against the petitioner with one
void ballot.
Timely objections were filed by the Union on May 30,
1980, some of which objections are congruous to the
unfair labor acts alleged in the complaint.
The consolidated matters were heard in Chicago, Illi-
nois, on February 4, 1981. At the close of the hearing,
oral argument was waived and the parties were given
leave to file briefs, which have been received and consid-
ered.
In consideration of the entire record in these cases and
the briefs and argument of counsel, the following find-
ings are hereby made:
FINDINGS AND CONCUSIONS
I. JURISI)ICTION
Respondent Jensen Sound Laboratories is a division of
International Jensen, Inc.. a Delaware corporation, and
maintains an office and place of business in Schiller Park.
Illinois, where it has engaged in the warehousing, assem-
bly, and distribution of speakers.' During the past year,
Respondent sold and distributed products valued in
excess of $50.000 which were shipped directly from its
Schiller Park, Illinois, facility to points located outside
the State of Illinois.
Respondent admits in its pleadings, and I find, that Re-
spondent is, and at all times material herein was, an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
I further find that it will effectuate the policies of the
Act to assert jurisdiction in these cases.
11. THE ABOR ORGANIZATION
Respondent admits in its pleadings, and I find, that the
Union is, and at all times material herein has been, a
labor organization within the meaning of Section 2(5) of
the Act.
Ill. THE AI.LEGED UNFAIR l.ABOR PRACTICES
Respondent employs 60 nonsupervisory workers in
production, shipping, warehousing, and quality control
operations at its Schiller Park, Illinois, facility. On
March 18, 1980, the Union notified Respondent that its
employees, Onefre Arcos, Carlos Baez, Mayimo Pinada,
and Leon Salgado, and "other employees" had launched
a campaign to organize for collective-bargaining pur-
poses. On March 25, 1980, Respondent received a second
notice naming nine additional employees. In the period
extending from the receipt of the first notice directed to
Respondent to the election of May 23, the parties con-
ducted a vigorous campaign in support of their respec-
live interests.
A. The O'Connor-Arcos Meeting
Joseph O'Connor was Respondent's personnel man-
ager who advised management and supervisory person-
nel regarding the conduct of Respondent in its opposi-
tion to the Union's campaign to organize the employees
at the facility. He initially learned of the union petition
when he was shown the March 18 notice of intent to or-
ganize on or about that date.
On May 9, O'Connor called employee Onefre Arcos
to his office to discuss allegations of threats made by
Arcos to other employees in the course of Arcos' efforts
to persuade employees to vote for the Union. Arcos
denied threatening any employees and the matter was
not pursued. O'Connor told Arcos that he had a great
opportunity to be a supervisor "outside the line." 2 Arcos
said that he had no desire to take such a position at that
time. O'Connor asked Arcos if he was looking for
"something with the Teamsters" and if he was a "leader"
among the employees in the union movement. Arcos told
'i h, failit i the only facilht! of Resplndent in ol: ed in ihis prol-
cceding
Arco,rs had heen offered a "leadman" oh h he plant mnager ilid
plant stlpTri o lr 11 Fhrtllr 28 aid 2 ., hlich Arco' retecl ed silce }hC
did not , aiilil to Iike O1i i ire rc rsp iislbilii
1315
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
O'Connor that not only he but 14 other people were en-
gaged in the union movement.
Arcos was wearing a union button at the time of the
meeting. O'Connor told him that the button was "shit"
and said, "I'll give you the weekend to take that button
off." Arcos refused to remove the button. O'Connor told
him that he, O'Connor, "can't take care of the conse-
quences" and added "the trouble is, you are a son-of-a-
bitch because you cause many problems. I'm giving you
an opportunity and you don't want it."
O'Connor also told Arcos that Respondent was very
powerful and he would send someone to Arcos' house to
kill him or to give him problems and that if the Union
lost the election Arcos and his companions would be
fired immediately. The foregoing comprise unlawful
threats to and interrogation of employees and violates
Section 8(a)(1) of the Act. 3
Although there is no testimony that O'Connor express-
ly offered Arcos a promotion, his statement that Arcos
had a great opportunity to be a supervisor is tantamount
to an offer or promise requiring only Arcos' pursuit of
the suggestion. Such offer or promise violates Section
8(a)(1).4
B. Respondents No-Posting Rule
During the period commencing from the receipt by
Respondent of the Union's notice of intent to organize
and continuing to the date on which the election was
held, procompany campaign signs were posted at numer-
ous locations throughout Respondent's facility. These
signs were located in the employees cafeteria, in the
men's washroom, in the shipping department, about the
storage racks, and at productions lines.
Approximately 2 weeks prior to the election employee
Joseph Gentile observed three co-employees placing pro-
company signs at their work stations on the production
line. " He estimated the number of procompany signs at
10 to 20 about the plant. He saw no prounion signs. A
few days later Gentile put up two prounion signs which
were ripped down by Ray Kulm, a supervisor, who told
Gentile not to put up any more signs. Kulm told Gentile
to "see Joe O'Connor about it." Gentile spoke to O'Con-
nor requesting permission to post prounion signs about
' Puk-Mor Manufacturing Comnpuny. 241 NLRB 801 (1979); The Estate
of 4lhert Kaskel d/h/a Doral Holel and Countrv Club, 240 NLRB 1112
(1979)1 Paramont Miinng Corporation. 239 NLRB 699 (1978).
4 riumph T'ist Drill Company, 237 NLRB 1442 (1978).
These findings are based on the testimony of Arcos. During the first
week of May. O'Connor. while driving home from a company dinner,
was forced off the road and assaulted by unidentified persons. He was
told, "This will teach you to mess with the Union, if you don't knock it
off, we'll get our wife and kids." This episode admittedly, and under-
standably., angered O'Connor and was followed by the May 9 meeting
with Arcos which O'Connor initiated
O'Connor was aware of the prior offer of promotion made to Arcos
He collaborated with Bergert. plant manager, in selecting a qualified em-
ployee candidate for the new position. The dialogue, as testified to by
Arcos. is compalible with his knowledge that Arcios was offered a pro-
motion in February and had refused it.
()'Connor also would have been embarrassed to ackinowledge the con-
tent of his meeting with Arcos, since his duties were to advise manage-
ment regarding proper campaign conduct
For the above reasons, I credit the testimony of Arcos notwithstanding
the denial of O'Connor.
"The signs read, "Vote No Union."
the plant. After being refused, he asked O'Connor why
he could not put up prounion signs since other people
were putting up procompany signs. O'Connor's response
was, "It's Jensen's property and Jensen says what goes
on Jensen's property."
During this period, Arcos also observed numerous
procompany campaign signs about the plant. He asked
his supervisor, Bob Semerick, for permission to put up a
prounion sign. Semerick said he would have to consult
with Raymond Burgert, the plant manager, and refused
to permit Arcos to place the sign.
At the time in question, Respondent's policy prohibit-
ed the posting of signs of any nature about the plant with
the exception of signs on the company bulletin board.
Respondent admits that Arcos and Gentile requested per-
mission to place prounion signs in and about the plant
and were refused. O'Connor also admitted that many
signs were located in the plant and acknowledged that
the company policy prohibiting the posting of signs was
not enforced. 6
Respondent did not deny the fact that Kulm removed
the prounion signs placed by Gentile. O'Connor also ac-
knowledged that there were "hundreds" of such signs
about the plant and contended that the signs were "pro
and con." He also refused permission to place signs
"when asked." No effort to enforce the "no signs" rule
was made until a Board agent instructed O'Connor to
remove them on the day of the election. It is incongru-
ous that the signs were prounion and procompany in
view of the removal of the two signs posted by Gentile
and the refusal of O'Connor to permit Gentile or Arcos
to place prounion signs. The testimony of these two em-
ployees that procompany signs were allowed to be
posted is credible and I find that the "no posting rule" of
Respondent was discriminately enforced against the
Union. Such unilateral enforcement of that rule created
an imbalance in the accessibility of the prounion cam-
paign to the electorate and constitutes a violation of Sec-
tion 8(a)(1) of the Act.'
IV. THE OBJECTIONS TO THE ELECTION
The Union has filed nine objections arising from al-
leged acts of Respondent which it claims interfered with
the conduct of a fair election. These objections are as
follows:
1. The Employer improperly injected the Board into
its election propaganda.
2. The Employer engaged in improper campaigning.
3. The Emplover made material misrepresentations
during the campaign.
4. The Employer interrogated its employees concern-
ing their union and/or protected concerted activities.
5. The Employer conducted unlawful interviews of its
employees.
()'CIonnor testiflied that it would take "I) hours das" to remo e all
such sigils
7 Cf (Conlinentil Kitchen (orporalion, 246 NRB 611 (1979) Green
Giant Comparv, 223 NI RH 377 (197h) (discriminator use f cornpain
bulletin boards)
1316
JENSEN SOUND I.ABORAT()RIFES
6. The Employer offered benefits to its employees ill
order to dissuade support from Local 710, International
Brotherhood of Teamsters.
7. The Employer threatened employees because of
their union and/or protected concerted activities.
8. The Employer engaged in surveillance of its em-
ployees.
9. By these and other acts not specified above, the
Employer, by its supervisors and/or agents, interfered
with the holding of a free and fair election on May 23,
1980.
Objections 4, 5, 6, and 7 relate to matters which have
been considered and resolved above and, consistent with
that resolution, are sustained.
There is no evidence in this record to sustain Objec-
tion 8 that Respondent engaged in "surveillance of its
employees" and that objection is overruled. Also, Objec-
tion 9 is sufficiently lacking in specificity to be consid-
ered a proper objection and includes by reference the
other objections. It is accordingly overruled.
Respondent, as part of its campaign during the period
prior to the election, distributed several memos to "All
Hourly Employees" over the signature of O'Connor.
These memos were written and distributed in English,
Spanish. and Polish.
Such a memo dated May 13. 1980, stated that the
Union "will become the sole and exclusive spokesman
for all employees on all matters concerning wages, bene-
fits, and other conditions of employment. By law you
will no longer have the right to speak for yourself with
any member of Management . . . you would have to go
through the Union."
This statement is a clear misstatement of employee
rights provided in Section 9(a) of the Act and is an un-
lawful threat of loss of benefits. Sacramento Clinical Lab-
oratory. Inc.. 242 NLRB 944 (1979).
As stated by the Board in Sacramento, supra, each case
must be viewed in the context of its own particular cir-
cumstances to determine whether a statement conveys a
clear threat of loss of benefit in violation of the Act. The
language of the May 13 memo is expressly contradictory
to the first proviso of Section 9(a) and constitutes a mis-
representation of an employee's right under the Act.
Through a memo dated May 1, 1980, the employees
were told that an attempt to decertify the Union could
result in the employee-union member being penalized by
the Union by way of a heavy fine. The Board has ruled
that a fine imposed upon a union member by the union
because that member filed a decertification petition vio-
lates Section 8(b)(l)(A) of the Act. International Molders'
and Allied Workers Union. Local .o. 125. AFL-CIO
(Blackhawk Tanning Co.. Inc.). 178 NLRB 208 (1969).
The clear unmistakable meaning of the language in the
May I memo is contrary to this ruling and constitutes a
false and misleading statement. In view of the foregoing,
Objections 2 and 3 must be sustained.
The final objection to be considered is that Respond-
ent improperly injected the Board into its election propa-
ganda. The mere use of Board material in an election
campaign is not improper. The impropriety arises when
the material gives the impression of Board endorsement
or tends to compromise the Board's neutrality. IHall-
Brooke lHospital v. .L.R.B.. 645 F.2d 158 (2d Cir. 1981).
enfg. 244 NLRB 18 (1979). Respondent attached a copy
of a Board publication entitled "A Guide to Basic Law
Procedures Under the National Labor Relations Act"'' to
twro of its memos. The photostated material carried the
language "Prepared in the Office of the General Coun-
sel, National Labor Relations Board." No inordinate ref-
crence to the attachment vwas contained in the body of
the memo. On one of the attachments. emphasis by un-
derscoring. was indicated but in no way was such em-
phasis improper. The material was attached to Respond-
ent's memo and thus the distributor's identity was clear.
It did not constitute a misrepresentation of fact or law.
Such material would not create an impression of Board
endorsement of Respondent nor could it be claimed to
have compromised the Board's neutrality. Objection I is
overruled.
In summary, it is recommended that Objections 2. 3., 4.
5, 6. and 7 be sustained and Objections 1, 8. and 9 be
overruled.
CONCI USIONS O[ LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act: and the Union is a labor
organization within the meaning of the Act.
2. Respondent engaged in unfair labor practices %Within
the meaning of Section 8(a)( I) of the Act by:
(a) Threatening an employee with physical harm and
loss of employment for engaging in union activities.
(b) Interrogating an employee about his union activi-
ties.
(c) Offering to promote an employee if he would forgo
his union organizational activities.
(d) Refusing employees who were union supporters
equal access to company premises for the posting of
prounion campaign signs while permitting procompany
signs to be posted.
3. The aforecited practices are unfair labor practices
affecting commerce within the meaning of the Act.
4. The union objections, which have been sustained,
establish that Respondent thereby has interfered with the
results of the Board election of May 23, 1980.
TH1 REtMIDY
Having found that Respondent engaged in certain
unfair labor practices it shall be ordered that it cease and
desist therefrom or from engaging in any similar or relat-
ed conduct and that it take certain affirmative action to
effectuate the policies of the Act.
Further, having found that several of the Union's ob-
jections to the election of May 23. 1980, should be sus-
tained, it is recommended that said election be set aside
and a new election be ordered by the Regional Director
to take place as soon as practicable.
Upon the foregoing findings of fact. conclusions of
law, and the entire record in this case. and pursuant to
Section 10(c) of the Act, I hereby recommend the fol-
lowing:
1317
DECISIONS OF NATIONA. LABOR REI.ATI()NS B()ARI)
ORDER'
The Respondent, Jensen Sound Laboratories, a Divi-
sion of International Jensen, Inc.. Schiller Park. Illinois.
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening its employees with discharge or bodily
harm because they engaged in activities in support of a
union.
(b) Coercively interrogating employees concerning
their union activity or sympathy.
(c) Offering job promotion to employees in order to
induce them not to support the Union.
(d) Discriminately enforcing any policy or rule relat-
ing to the posting of union campaign literature in its
plant.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed by the Act.
' Ili the evtil 10, exceptionls are Filed as prosidcd hb Sec. 102 46 of the
Rules and Rgulation,m of the National; I.ahor Relatilns tard, the find-
ings, cnclusiiols, and rcommelnded Order herein shall. as pro, ided ill
Sec 102.48 of the Rules and Regulations, be adopted b the oa;lrd and
become its finldings, concIlusionsls, afld Order, and all objeclions hereto
shall he denmed waived for all purposes
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its facility in Schiller ark, Illinois, copies
of the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional Director
foir Region 13, after being duly signed by Respondent's
authorized representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
eluding all places where notices to employees are cus-
tonmarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order, what
steps it has taken to comply herewith.
ITI IS FURTHEIR RCOMMIENiI) that the Board set aside
the election of May 23, 1980, and order a new election
to be conducted as soon as practicable.
'" Il he 'enllt hat this Order is ctnforced by a Judgmnllt of a United
SlllIte Court of Appeals. the words ill the notice reading "P'osted by
)rder of' the Naionlal Lahbor Relations HIoard" shall read "Posted Pur.slu
alit to a Jdgnlellt oi the United Staltes Court of Appeals Enfiorcing all
Order (of the Niolal I abor Relations Board
131 X