The Conolon Corp.

National Labor Relations Board - Board Decisions

Jun 17, 1971

191 N.L.R.B. 254 (N.L.R.B. 1971)

254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Conolon Corporation and Industrial Union of Ma- FINDINGS OF FACT
rive and Shipbuilding Workers of America, AFL-
CIO
The Conolon Corporation and Industrial Union of Ma-
rine and Shipbuilding Workers of America, AFL-
CIO, Petitioner . Cases 21-CA-9230 and 21-RC-
10431
June 17, 1971
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
Upon charges duly filed on May 15, 1970, by the
Union against the Respondent, the Regional Director
for Region 21 on August 27 issued his complaint alleg-
ing violations of Section 8(a)(1) by the Respondent in
connection with its preelection activity in Case 21-RC-
10431. On August 28, 1970, the Regional Director is-
sued his Report on Objections and order directing hear-
ing and order consolidating cases and notice of hearing,
finding that the issue raised by the evidence offered in
support of the Petitioner's objections to the election
and the issue to be resolved in the unfair labor practice
charge case are related and involve the same evidence.
On November 2 and 3, 1970, all parties entered into
a stipulation which provides that this matter shall be
submitted directly to the Board for decision. The par-
ties further stipulated that the entire record of this
proceeding shall consist of the motion to transfer pro-
ceedings to the Board, the stipulation, and the follow-
ing documents attached to the stipulation: the charge,
the notice of charge, the complaint and notice of hear-
ing, the affidavit of service of same, the Report on
Objections and order directing hearing and consolidat-
ing, with attached letter from Petitioner objecting to
conduct of Employer affecting the results of election,
the affidavit of service of same, and Respondent's an-
swer to the complaint.
By an order issued November 13, 1970, the Board
approved the aforesaid stipulation, made it a part of the
record herein, and transferred the matter to, and con-
tinued it before, the Board.
Upon the basis of the aforesaid stipulation, and the
entire record in this case, including the briefs filed by
the Respondent and the General Counsel, the Board
makes the following:
I THE BUSINESS OF THE COMPANY
Respondent , the Conolon Corporation , a California
corporation , is engaged in the manufacture of fishing
rods at a plant located at Santa Ana , California. During
the past year , which period is representative , Respond-
ent, in the normal course and conduct of its business
operations , directly shipped and sold products valued
in excess of $50 ,000 to customers located outside the
State of California . We find that at all times material
herein Respondent has been engaged in commerce
within the meaning of Section 2(6) and (7) of the Act,
and that it will effectuate the policies of the Act to
assert jurisdiction in this case.
II. THE LABOR ORGANIZATION INVOLVED
Industrial Union of Marine and Shipbuilding Work-
ers of America, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE FACTS
Howard Ashby, the Respondent 's president, made
the following preelection speech to the employees on
April 27, 1970, which included his reading , as the cen-
tral part of his speech , portions of a decision of the
Court of Appeals for the Eighth Circuit.'
Introductory remarks:
The Union indicates to you that the government
has frozen or protects your present benefits. These
statements are just not so-were the Union able to
get in we are obliged to negotiate with it but not
I repeat not obligated to agree to any proposals or
requests it makes. All benefits at that time would
be subject to renegotiation.
To bear this out I want to read you an actual
case history, a statement actually made by a com-
pany official in an election campaign and these
statements were upheld by the NLRB.
Then Ashby read this excerpt from the court opin-
ion:
I do not want a union in this plant ... and I will
fight the union in every legal way possible ... If a
union wins, all it wins is the right to bargain-
nothing more .. . Do you realize that the only way
a union can try to force your company to do any-
thing that it is unwilling to do would be to pull you
I By mistake Ashby, both before and after reading the court-approved
paragraphs, identified them as part of a Board decision (149 NLRB 673)
which had upheld an employer's right to make the quoted remarks, whereas
in fact the Board, by a panel of Members Fanning and Brown, with Member
Leedom dissenting, had found an 8(a)(I) violation based on the employer's
speeches and pamphlets The court, in a two to one decision, found the
remarks privileged and denied enforcement. NL.R.B. v. Herman Wilson
Lumber Co., 355 F.2d 426 (C A 8)
191 NLRB No. 51
THE CONOLON CORPORATION
out on strike? If a union calls an economic strike,
you place your job on the line. You can be perma-
nently replaced . You can lose your job.
An economic strike could cause us to lose busi-
ness. This might cause us to have to shut down the
plant. If so, you would be without a job.
This union is going to find me to be the most
disagreeable person it ran up against . I told you
last week I was going to fight this union in every
legal way possible , and I mean it ...
In dealing with the Union I'll deal hard with it
-I'll deal cold with it-I'll deal at arms length
with it.
You know, or if you don't you should know
before you vote, that I'm not obligated by law to
agree to any proposals that the Union makes on
wages, hours, working conditions , or what have
you. If the Union wins the election, we will be
obligated to agree to negotiate with it , but we are
not obligated to, agree to any proposals or requests
that it makes. We are not required to make any
concessions to it.
Ashby concluded as follows:
As I said, this was upheld at the N.L.R.B. in
favor of the Company.
I'm not saying we would take such an attitude
as this man took, but I am saying to you that what
the Union would get would depend on whether or
not the Company can afford to give it.
Regardless , as indicated by what I just read, the
Company will still run this business , not the
Union.
The election was held on May 1, 1970, the Union
losing by a vote of 89 for, 292 against, and 9 votes
challenged. Based principally upon the context of Ash-
by's speech, the Union filed timely objections to the
election , and on May 15 filed a charge alleging the
speech as an 8(a)(1) violation. On August 28 a com-
plaint issued describing the alleged violation as threat-
ening loss of employment in the event employees se-
lected the Union as their bargaining representative, and
as creating an atmosphere of futility to discourage sup-
port for the Union. As the same evidence supported
both the objections and the complaint , the Regional
Director consolidated the two cases for hearing. The
hearing was thereafter waived by the stipulation of
facts which followed in November.
The remarks from the Wilson case were analyzed by
the court as showing an intent to oppose the Union,
thus an announcement the Employer was privileged to
make ; as explaining that permanent replacement was
the possible effect of an economic strike, thus an accu-
rate forecast "within the pale of law"; and as proclaim-
ing an intent to engage in hard bargaining as distin-
guished from a refusal to bargain . Thus the nub of
Ashby's remarks was an exact quotation from a public
255
document which he, in effect , identified and from which
he then proceeded to read to his employees. Although
the quoted portion was court-approved rather than
Board-approved, there is no question that what he read
was an accurate excerpt from the court opinion of cam-
paign remarks which the court deemed permissible un-
der the Act. In our opinion the Act does not prohibit
the use of a court decision in this manner . As we see
nothing objectionable in Ashby's additional remarks,
made before and after the reading of the excerpt in
question, we find that this speech as a whole was pro-
tected by Section 8(c) of the Act.
Accordingly, based upon the facts stipulated herein
we shall dismiss the complaint and the objections to the
election. As the tally of ballots shows that Petitioner
has not received a majority of the valid ballots cast, we
shall certify the results of the election.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid votes
cast in Case 21-RC-10431 has not been cast for Indus-
trial Union of Marine and Shipbuilding Workers in
America, AFL-CIO, and that said labor organization
is not the exclusive representative of the employees in
the unit found appropriate, within the meaning of Sec-
tion 9(b) of the National Labor Relations Act, as
amended.
ORDER
It is hereby ordered that the complaint herein be, and
it hereby is, dismissed in its entirety.
MEMBER FANNING, concurring:
I agree with my colleagues to dismiss this case, but
for different reasons.
The Respondent here limited its preelection cam-
paign to a single speech made to each of two shifts,
which speech, in the particular circumstances, I would
find noncoercive . No other antiunion conduct by the
Respondent is involved , the speech itself being the sum
total of the objections to the election and the 8(a)(1)
allegations of the complaint.
The speech is brief, most of it being an excerpt-
consisting of employer antiunion remarks-from an
opinion of the Court of Appeals for the Eighth Circuit
in Wilson.' This quotation my colleagues consider per-
missible, viewing it simply as the reading to employees
of a public document properly identified. I doubt the
wisdom of this approach and believe that quoted judi-
cial opinions , like other employer remarks , should be
analyzed for possible coercive implication in the spe-
cific context.
' Herman Wilson Lumber Company, 149 NLRB 673, enforcement de-
nied 355 F.2d 426 (C.A. 8), Judge Larson dissenting.
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This brings me to the Board's Decision in the said
Wilson case, where Member Brown and I affirmed a
Trial Examiner's Decision finding and 8(a)(1) violation
based upon "threatening employees with adverse
consequences, including job loss, in the event they se-
lected the Union as their collective-bargaining agent,
and by creating an atmosphere of futility to discourage
support for the Union among employees, and by other
acts." Member Leedom dissented. The Court of Ap-
peals, in a two to one decision, denied enforcement of
the Board's order. I most respectfully disagree with the
view of the Court majority in that case. I note that
Judge Larson, who dissented, thought that the consti-
tutional immunity should be withdrawn from the Wil-
son remarks because of the proviso to Section 8(c) con-
cerning threats and promises, and because of an
"over-riding societal purpose" demanding that expres-
sion be regulated where balance of interests demands.
Since that time the U.S. Supreme Court has spoken
decisively in the difficult area of First Amendment
rights where an employers' antiunion efforts consist of
speech alone. See N. L.. R.B. v. Gissel Packing Company,
395 U.S. 575, section IV at the end of the opinion.
Actually the Wilson case involved a series of
speeches by the employer's president as well as the
distribution of letters or pamphlets to employees con-
cerning the strike theme and possible job loss through
permanent replacement, as well as the futility of select-
ing a bargaining agent. The Trial Examiner's Decision,
which the Board majority affirmed , characterized the
employer activity as an "unremitting effort" to defeat
the union by informing employees that the Union's
only way of getting anything was by striking, by "re-
peatedly stating" that management reserved the right
to make all the final decisions , and by "continual
harassment" in projecting loss of jobs.
In my view the impact upon employees of the em-
ployer barrage in Wilson cannot be equated with that
of the single speech made by Ashby. The court in Wil-
son, unlike the Board , distilled the separate remarks
into what sounded like a single statement-here read
by Ashby-and focused upon the several categories of
antiunion remarks involved , though finally concluding
that not "any" handbill or speech of the employer
stated anything more than its legal rights . Thus the
court ignored the overall impact of the challenged re-
marks. This ambivalent approach was pointedly re-
ferred to by the dissenting judge who quoted from the
Court of Appeals for the Fourth Circuit in Daniel Con-
struction Co. v. N.L.R.B., 341 F.2d 805 , to, the effect
that "words and phrases , each lawful when considered
alone, can be united in such a fashion as to yield an
improper end product."
Though similar in tone to the employer 's theme in
Wilson, what occurred here lacked the repetition and
harassment of that case and consequently , as I see it,
had no objectionable effect on the employees . Accord-
ingly , I agree with the dismissal result.