Turner Shoe Co., Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1980

249 N.L.R.B. 144 (N.L.R.B. 1980)

144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Turner Shoe Company, Inc. and Carmen Athletic In-
dustries, Inc. and Sindicato Puertorriqueno de
Trabajadores affiliated with United Food and
Commercial Workers International Union,
AFL-CIO,' Petitioner. Case 24-RC-6247
April 30, 1980
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
Pursuant to a Stipulation for Certification Upon
Consent Election approved by the Regional Direc-
tor for Region 24 on January 10, 1979, an election
by secret ballot was conducted on February 15,
1979, under the direction and supervision of the
Regional Director for Region 24, among the em-
ployees in the stipulated unit. At the conclusion of
the election, the parties were furnished a tally of
ballots which showed that, of approximately 724
valid ballots, 178 were cast in favor of the Petition-
er, 514 were against the Petitioner, and there were
32 challenged ballots. The number of challenged
ballots was not determinative of the results of the
election. Thereafter, the Petitioner filed timely ob-
jections to the election.
After an investigation, the Regional Director on
March 23, 1979, issued his Report and Recommen-
dation on Objections and Notice of Hearing where-
in he ordered a hearing pursuant to Section 102.69
of the Board's Rules and Regulations, Series 8, as
amended, to resolve the issues raised by the objec-
tions. On May 21, 1979, a hearing was conducted
in which all parties participated. On August 2,
1979, the Hearing Officer issued her Report and
Recommendations on Objections to Election
wherein she recommended that the Petitioner's Ob-
jection I be sustained and that a second election be
conducted. The Hearing Officer also recommended
that the Petitioner's Objections 2 and 3 be over-
ruled. Thereafter, the Employer filed timely excep-
tions to the Hearing Officer's recommendation that
Objection I be sustained and that a second election
be conducted. No exceptions were filed to the
Hearing Officer's recommendation to overrule the
Petitioner's Objections 2 and 3.
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.
I he name of the Petitioner, formerly Sindicato Puertorriqueno de
Trabajadores affiliated with Amalgamated Meat Cutters of North Amer-
ica, AFL.-CIO, is amended to reflect the change resulting from the merg-
ing of Retail Clerks International Union and Amalgamated Meatcutters
and Butcher Workmen of North America on June 7, 1979.
249 NLRB No. 20
The Board has considered the Hearing Officer's
report, the Employer's exceptions thereto, and the
entire record in this case, and makes the following
findings:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization which
claims to represent certain employees of the Em-
ployer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer, within the meaning of Sections 9(c)(1)
and 2(6) and (7) of the Act.
4. The following unit, as stipulated by the par-
ties, constitutes a unit appropriate for purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All production and maintenance employees, in-
cluding shipping and receiving employees, em-
ployed by the Employer at its facilities in
Aguadilla, Puerto Rico, but excluding all
office clerical employees, guards and supervi-
sors as defined in the Act.
5. The Board has considered the Hearing Offi-
cer's report and the Employer's exceptions and
brief, and hereby adopts the Hearing Officer's find-
ings and recommendations except as hereafter
modified.
Although the Hearing Officer found that none of
the Employer's conduct was objectionable in and
of itself, she further found that the overall impact
of the Employer's campaign speeches and literature
created a coercive atmosphere which interfered
with the results of the election. We agree with the
Hearing Officer's recommendation that the election
be set aside but also find, contrary to the Hearing
Officer, that specific conduct by the Employer
constituted objectionable conduct. As set forth
more fully below, we find that the Employer en-
gaged in objectionable conduct by making threats
of plant closure and loss of jobs, and that, within
the context of such threats, the Employer's repeat-
ed statements about strikes, plant closure, and loss
of jobs had a coercive impact on the employees
which also interfered with the results of the elec-
tion.
The Employer conducted a vigorous campaign
against the Union consisting of speeches 2 and dis-
tribution of campaign literature. Between January
2 The Employer delivered its first speech on December 6-7, 1978, and
emphasized the themes of strikes, plant closing, and loss of jobs resulting
from unionization. Since this speech was made prior to the filing of the
operative petition involved herein, it cannot serve as a basis for setting
aside the election. However, it has been considered insofar as it provides
background in evaluating the Employer's post-petition conduct. Stevenson
Equipment Company, 174 NLRB 865, 866, fn. 1 (1969).
TURNER SHOE COMPANY, INC. 145
22-29, 1979, the Employer delivered a speech in
both Spanish and English to small groups of em-
ployees. In this speech the Employer made several
statements associating the Petitionera with strikes,
plant closings, and loss of jobs.
Shortly after this speech, the Employer distribut-
ed a campaign leaflet entitled "The Death of a
Shoe Factory" and a leaflet which described plant
closings where employees had been represented by
the Amalgamated Meat Cutters Union. The leaflet
was printed in the form of a prayer card distributed
at Catholic funerals and stated in Spanish:
OBITUARY (DEATH NOTICE)
DEAD: Dorado Shoe Co., Augadilla, P.R.
BORN: 1965
UNIONIZED BY: Meat Cutters Union, 1970
Three Week Strike
DEAD: 1971
The Meat Cutters Union alleges that if it goes
into a plant it guarantees your job.
The Company Dorado Shoes was a very suc-
cessful company when it was organized by the
Meat Cutters Union. In 1970, six months later,
the Meat Cutters Union called the employees
to a strike at the Company which lasted three
weeks.
Six months thereafter, one year after the Meat
Cutters Union came into the Company, the
Meat Cutters Union negotiated a close out of
the plant.
WHY DID THIS HAPPEN?
Because the plant could not successfully com-
pete in the shoe industry and the plant closed.
This was the death of a shoe factory.
LESSON:
Our job security depends on the working to-
gether as a team and of the mutual coopera-
tion and ability to produce shoes of quality at
competitive prices so that we can sell our
shoes to our customers.
BUT NOT WITH UNION PROMISES
VOTE NO
The pamphlet on plant closings was also printed in
Spanish and stated:
Job security is very important for you. What
job security does the Meat Cutters give its
members? You be the judge.
s In its speeches and campaign literature the Employer did not specifi-
cally refer to the Petitioner by name, but rather referred to the Amalga-
mated Meat Cutters Union, the former name of the Union with which the
Petitioner is affiliated.
CLOSING OF PLANTS, CLOSING OF
PLANTS, CLOSING OF PLANTS
The Meat Cutters Union was the representa-
tive of these plants that closed recently.
CLOSED-Swift & Co., Scottsbluff, Nebraska;
Swift & Co., Wilson, N.C.; Hygrade Packing
Co., Richmond, Va.; Goetz Packing, Balti-
more, Md.; Clayman Packing, Philadelphia,
Pa.; Swift & Co., Telleson, Arizona; Hygrade
Packing Indianapolis, Inc.; Swift & Co., Nash-
ville, Tenn.; Dukeland Packing, Baltimore,
Md.; Swift & Co., Kearney, N.J.; Dorado
Shoe Co., Aguadilla, P.R.; G. H. Meyer Sons,
Richmond, Virginia; Marhoeffer Co., Muncie,
Indiana (Pictures of plants with the words
CLOSED across the picture itself.)
What job security did the employees of these
plants receive from the Meat Cutters Union?
Vote No.
The final aspect of the Employer's campaign was
a speech delivered to groups of employees in Span-
ish and English on February 13, 1979, 2 days
before the election. After telling its employees that
unionization could mean strikes, plant closure, and
loss of jobs, the Employer stated near the end of
the speech that "If we are not careful a disaster
could hit and we could lose it all."
In evaluating the Employer's campaign conduct
we must carefully balance the Employer's right to
express its views on the subject of unionization
with the right of its employees to make a reasoned
decision regarding unionization in an atmosphere
free of coercion and threats. In N.LR.B. v. Gissel
Packing Co., Inc., 395 U.S. 575, 618 (1969), the Su-
preme Court pointed out that:
[A]n employer is free to communicate to his
employees any of his general views about un-
ionism or any of his specific views about a
particular union, so long as the communica-
tions do not contain a "threat of reprisal or
force or promise of benefit." He may even
make a prediction as to the precise effect he
believes unionization will have on his compa-
ny. In such a case, however, the prediction
must be carefully phrased on the basis of ob-
jective fact to convey an employer's belief as
to demonstrably probable consequences
beyond his control or to convey a manage-
ment decision already arrived at to close the
plant in case of unionization. See Textile Work-
ers v. Darlington Mfg. Co., 380 U.S. 263, 274,
fn. 20 (1965). If there is any implication that an
employer may or may not take action solely
on his own initiative for reasons unrelated to
TURNER SHOE COMPANY, I C
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
economic necessities and known only to him,
the statement is no longer a reasonable predic-
tition based on available facts but a threat of
retaliation based on misrepresentation and co-
ercion, and as such without the protection of
the First Amendment.
In Gissel4 the Court found the employer, in its
election campaign, had informed its employees that
other area plants had closed because of unioniza-
tion, that the union was strike happy, and that the
union would probably engage in a strike which
would result in plant closure and a loss of jobs.
The Court further found, in agreement with the
Board, that there was no record support for the
employer's underlying assumptions that the union
would have to strike or that other area plants had
closed because of unionization. In the absence of an
objective basis to support its message of probable
strikes and plant closure, the Court found that the
employer's statements were not permissible predic-
tions of economic consequences but were implicit
threats of job loss and constituted objectionable
conduct sufficient to set aside the election.
Our evaluation of the campaign conduct of the
Employer in the instant case reveals a striking simi-
larity to the conduct of the employer in Gissel. The
Employer's campaign was geared to convey to its
employees the message that unionization would
lead to strikes, plant closure, and loss of jobs. Thus,
the Employer distributed a pamphlet entitled "The
Death of a Shoe Factory" which related the
"death" of a nearby factory subsequent to unioniza-
tion. Although the pamphlet did not directly attri-
bute the closing of the factory to unionization, the
graphic presentation of the plant closing in the
form of an obituary notice was a clear attempt to
communicate by form if not by words a clear mes-
sage to employees-unionization caused a nearby
plant to close and unionization would likewise
cause the Employer to close its plant. Similarly, in
its February 13 speech, 2 days before the election,
the Employer told its employees that the Union
was strike happy, unionization could lead to a long
and costly strike, striking employees could be per-
manently replaced, other area union plants had
been forced to close, and if the employees were not
careful "a disaster could hit" and everything could
be lost. The Employer's reference to an impending
disaster just 2 days before the election conveyed
the not too subtle message that a vote for the
Union would lead to a strike and permanent strike
replacements or plant closure and a resulting loss
of jobs. Thus, the Employer sought to take advan-
tage of employee concerns about job security and
4 N.LR.B. v. Gissel Packing Co., 395 U.S. at 617-619.
informed its employees that the only way to pro-
tect their jobs was to vote against the Union.
The record in the instant case, like the record in
Gissel, contains no demonstrable record evidence to
support the Employer's message that unionization
caused the closure of other area plants or that
unionization would lead to strikes, plant closure,
job loss, and other unidentified disasters. Therefore,
the Employer failed to convey a permissible non-
coercive prediction that unionization might lead to
an economic dispute that could result in a loss of
jobs. Instead, in the context of the employer-em-
ployee relationship, the Employer's leaflet in the
form of an obituary notice and its February 13
speech constituted threats of plant closure and job
loss since "employees, who are particularly sensi-
tive to rumors of plant closings, take such hints as
coercive threats rather than honest forecasts." 5
We find no merit to the Employer's contentions
that it did not threaten its employees with job loss
because none of its campaign material or statements
directly or explicitly attributed strikes, plant clos-
ings, or job loss to unionization. Communications
which hover on the edge of the permissible and the
unpermissible are objectionable as "[i]t is only
simple justice that a person who seeks advantage
from his elected use of the murky waters of double
entendre should be held accountable therefor at the
level of his audience rather than that of sophisticat-
ed tribunals, law professors, scholars of the niceties
of labor law, or 'grammarians."' 6 As the Supreme
Court has noted, an employer "can easily make his
views known without engaging in 'brinksmanship'
when it becomes all too easy to 'overstep and
tumble [over] the brink,' Wausau Steel Corp. v.
N.L.R.B., 377 F.2d 369, 372 (7th Cir. 1967). At the
least he can avoid coercive speech simply by
avoiding conscious overstatements he has reason to
believe will mislead his employees." 7 The Employ-
er's use of a leaflet in the form of an obituary
notice and its reference to an impending disaster
are examples of "brinksmanship" which over-
stepped and tumbled over the brink.
We also find that in the context of these specific
threats of plant closure the Employer's repeated
statements in its speeches and campaign material
associating the Petitioner with strikes, plant clo-
sures, and loss of jobs had a coercive impact on the
employees. In its January 22-29 speech the Em-
ployer told the employees that "the Meat Cutters
were involved in 1,235 strikes in the last four
years," that "hundreds of plants that the Meat Cut-
ters union was in have closed," and that "25,000
' N.LR.B. v. Gissel Packing Co., 395 U.S, at 619-620.
Georgetown Dress Corporation, 201 NLRB 102, 116 (1973).
N7 L.R.B. v. Gissel Packing Co., 395 U.S. at 620.
TURNER SHOE COMPANY, INC. 147
Meat Cutters union members lost their jobs." Two
days before the election the Employer informed
the employees in its February 13 speech that "with
40% unemployment in Aguadilla, the union still
does not give one job to one single person," that
"the Meat Cutters was one of the most strike-
happy Unions," and that although two area plants
were union plants, they closed "throwing hundreds
of workers out of work." In addition, the Employ-
er's campaign material emphasized the themes of a
strike-happy union, plant closures, and the loss of
jobs. Within the context of the threats of plant clo-
sure and loss of jobs, as found above, we find that
the Employer's constant references to strikes, plant
closure, and loss of jobs constituted additional ob-
jectionable conduct which prevented the employ-
ees from exercising their free choice in the elec-
tion.
Moreover, even if we did not find that the Em-
ployer's distribution of the death notice or its
threat of an impending disaster constituted specific
threats of plant closure, we would find that the
overall impact of the Employer's campaign created
a coercive atmosphere sufficient to set aside the
election. We have found such a coercive atmos-
phere, even in the absence of a specific finding of
objectionable conduct, in cases where an employer
has emphasized campaign themes such as the likeli-
hood of strikes, plant closure, and loss of jobs if the
union won the election. Thomas Products Co., Divi-
sion of Thomas Industries, Inc., 167 NLRB 732
(1967); Amerace Corporation, ESNA Division, 217
NLRB 850 (1975). As indicated above, the Em-
ployer in the instant case constantly emphasized
job security to its employees and attempted to link
the Petitioner with strikes, plant closure, and loss
of jobs.8 Therefore, we find that the Employer's
overall campaign created a coercive atmosphere
and tended to create the impression that strikes,
plant closure, job loss, and other adverse conse-
quences would be a direct result of unionization.
Accordingly, we find merit to the Petitioner's Ob-
jection , and find that a second election should be
directed.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
8 The record does not support the Hearing Officer's finding that the
Employer first interjected the campaign issue of job security on its own
initiative. In agreement with the Hearing Officer's further finding, how-
ever, we find that the Employer, on its own accord, made job security
the dominant theme of its campaign.
TURNER SHOE COMPANY, I C.