Colony Printing & Labeling

COLONY PRINTING AND LABELING 223 Colony Printing and Labeling, Inc. and Muncie Printing and Graphic Communications Union No. 126 affiliated with International Printing & Graphic Communications Union, AFL-CIO. Case 25-CA- 11468 May 2, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE Upon a charge filed on October 18, 1979,' by Muncie Printing and Graphic Communications Union No. 126 affiliated with International Printing & Graphic Communications Union, AFL-CIO, herein called the Union, and duly served on Colony Printing and Labeling, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 25, issued a complaint on November 19 against Respondent, alleging that Respondent had engaged in and was engaging in certain unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on or about August 31, Respondent mailed and delivered to its employees a letter, written on Respondent's letter- head and signed by its general manager, John Pe- terson, which (1) threatened the employees with loss of benefits if they selected the Union as their collective-bargaining representative; (2) attempted to persuade the employees to inform Respondent of the identity of union sympathizers; and (3) threat- ened the employees that Respondent would prob- ably acquire knowledge of the identity of union au- thorization card signers and would take action in reprisal against its employees because they signed union authorization cards. Thereafter, on Novem- ber 23, Respondent filed its answer to the com- plaint, admitting in part and denying in part the al- legations in the complaint, stating an affirmative defense, and requesting that the complaint be dis- missed. On December 11, Respondent filed with the Board a Motion for Summary Judgment and a brief in support thereof, with exhibits attached. In its answer to the complaint and in its motion and brief, Respondent contends that the contents of its August 31 letter to employees are free speech, pro- tected by the first amendment to the United States i All dates hereinafter are 1979, unless otherwise indicated 249 NLRB No. 2 Constitution as well as by Section 8(c) of the Na- tional Labor Relations Act. Respondent therefore maintains that, since there is no genuine issue of material fact involved, summary judgment should be entered in its favor as a matter of law. On December 27, counsel for the General Coun- sel filed with the Board a Motion for Summary Judgment and a motion in opposition to Respond- ent's Motion for Summary Judgment. Subsequent- ly, on January 8, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why Respondent's or the General Counsel's Motion for Summary Judgment should or should not be granted. Thereafter, Re- spondent advised the Board of Respondent's inten- tion that its Motion for Summary Judgment and brief in support thereof stand as its written state- ment of cause as to why its Motion for Summary Judgment should be granted, and the General Counsel's denied. 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. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment According to the General Counsel and Respond- ent, the facts in this case are not in dispute, and there is no matter in issue that requires a hearing before an administrative law judge. The sole issue is whether statements by Respondent, admittedly made in a letter to its employees, constitute unfair labor practices. For the reasons set out below, we conclude that the statements in question violate Section 8(a)(l) of the Act. Accordingly, we grant the General Counsel's Motion for Summary Judg- ment, and we deny Respondent's Motion for Sum- mary Judgment and its request to dismiss the com- plaint. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, a corporation duly organized under and ex- isting by virtue of the laws of the State of Indiana, with its principal office and place of business at Eaton, Indiana, where it is engaged in the business of printing and labeling of materials for commercial enterprises. During the past 12 months, which is a representative period of time, Respondent, in the course and conduct of its business operations, pur- chased, transferred, and delivered to its Eaton, In- 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD diana, facility goods and materials valued in excess of $50,000, which were transported to said facility directly from States other than the State of Indi- ana, and manufactured, sold, and distributed at said facility products valued in excess of $50,000 which were shipped from said facility directly to States other than the State of Indiana. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material herein, an employer 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 herein. II. THE LABOR ORGANIZATION INVOLVED Muncie Printing and Graphic Communications Union No. 126 affiliated with International Printing & Graphic Communications Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. IIl. THE UNFAIR LABOR PRACTICES On or about August 31, Respondent sent a letter to its employees, containing statements which are alleged to violate Section 8(a)(l) of the Act. As noted above, Respondent contends that the state- ments in question constitute free speech, protected by the first amendment to the Constitution and by Section 8(c) of the Act. We disagree. The complaint alleges, inter alia, that Respond- ent's letter threatened employees with loss of bene- fits if they selected the Union as their collective- bargaining representative, by stating: If you sign your name to a union card, you give up the right to talk to us about your hours, your work, your working conditions, your pay, and everthing else concerning your future and continued employment. . . Do not sign if you want to continue to speak for your- self, and be your own person.... When you sign, you give away your right to talk to us about your pay, your benefits, the hours you work, and about your job. Respondent asserts that these statements did not threaten any loss of benefits, but instead truthfully informed the employees that, if a union represented them, Respondent must deal only with the union. As support for its argument that it was "merely telling its employees the truth," Respondent relies on the portion of Section 9(a) of the Act, which states as follows: Sec. 9. (a) Representatives designated or se- lected for the purpose of collective bargaining by the majority of the employees in a unit ap- propriate for such purposes, shall be the exclu- sive representatives of all the employees in such unit for the purposes of collective bar- gaining in respect to rates of pay, wages, hours of employment, or other conditions of employ- ment. Respondent's reliance on the above-quoted part of Section 9(a) as support for its contention that its statements are "the truth," is misplaced because Respondent has failed to take into account the fol- lowing provisos to that section of the Act in ad- judging its meaning: Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representa- tive, as long as the adjustment is not inconsist- ent with the terms of a collective-bargaining contract or agreement then in effect: Provided further, That the bargaining representative has been given opportunity to be present at such adjustment. Clearly, these provisos make plain that the selec- tion by employees of a union does not preclude employees, as individuals, from going to their em- ployer with their problems or grievances. Thus, contrary to Respondent's claim, it is not "the truth" that when an employee signs a union authorization card (as Respondent's letter states), 2 or even when employees choose to be represented by a labor or- ganization (as Respondent claims its letter to have meant), the employees "give up the right to talk to" employers about matters concerning their em- ployment. Accordingly, we find that the above-quoted ex- cerpts from Respondent's August 31 letter are mis- statements of the law which constitute threats on the part of Respondent to curtail employee rights and discontinue employee benefits in reprisal against a choice by the employees to be represent- ed by a union. As such, these statements of Re- spondent tended to interfere with, restrain, and coerce employees in the exercise of their rights 2 Although Respondent contends that, by the above-quoted passages from its letter to employees, it was merely informing the employees of what would happen "if a union represents them," the statements them- selves are predicated not in terms of "if a union represents you" but rather in terms of "If you sign your name to a union card" and "when you sign." Thus. Respondent's argument that it was merely truthfully inform- ing the employees of one result of unionization is seriously undermined by the express terms of its statements, which convey quite a different mes- sage to the employees; i.e.. that the stated result will be brought about not bh unionization, but instead by the employee's mere act o signing a union authorization card. COLONY PRINTING AND LABELING 225 under Section 7 of the Act, and are thus violative of Section 8(a)(l) of the Act.3 The complaint also alleges that Respondent's August 31 letter attempted to persuade employees to inform the Respondent of the identity of union sympathizers, by stating: If anyone tries to cause you any trouble at your work, or puts you under any kind of pressure to join a union, you should let the company know of it immediately, and we will promptly stop this illegal and immoral prac- tice. Respondent contends that this statement does not attempt to persuade employees to identify union sympathizers, because employees who seek Re- spondent's assistance in this regard are not required to identify the person or persons whose conduct the complaining employee finds objectionable. At any rate, argues Respondent, a person who "threat- ens" an employee is not engaging in an activity protected by the Act. The above-quoted excerpt from Respondent's letter has the potential dual effect of encouraging employees to report to Respondent the identity of union card solicitors who in any way approach em- ployees in a manner subjectively offensive to the solicited employees, and of correspondingly dis- couraging card solicitors in their protected organi- zational activities. For these reasons, the Board has consistently found such instructions to employees to be unlawful. 4 We find, therefore, that Respond- ent has violated Section 8(a)(l) of the Act as al- leged in this regard. Finally, the complaint alleges that Respondent's August 31 letter threatened employees that Re- spondent would probably acquire knowledge of the identity of union authorization card signers, and would take action in reprisal against them. In this regard, the August 31 letter states in relevant part: Don't be fooled into signing misleading union cards. It is said that when you sign such a card, no one other than a Union Representa- tive, or a representative of the National Labor Relations Board will ever see this card. This is not the truth. In many instances, the signed card is disclosed to the company by the union, the NLRB, or both of them. Be careful about what you sign-don't sign ANYTHING unless you KNOW what you are signing and what it I See 'ipton Electric Company and Professional Furniture Companc. 242 NLRB No 36 (1979), and cases cited therein; see also General Electric Wiring Devices. Inc., 182 NLRB 76 (1970) (objectionable conduct affect- ing results of election). J. H. BRlck & Co., Inc., 247 NLRB No. 41, sl. op. pp 2 4 (1980). and cases cited in fn 3 therein might mean to you, your family, or your fellow employees. Respondent contends that the above-quoted pas- sage conveys no explicit threat, and that no threat can be implied therefrom.This statement is substan- tially the same as statements which the Board found to be unlawful in Hobart Brothers Company, 150 NLRB 956 (1965), enforcement denied 372 F.2d 203 (6th Cir. 1967), and in Sparton Manufac- turing Company, 150 NLRB 948 (1965), enforce- ment denied 355 F.2d 523 (7th Cir. 1960).5 The final sentence, cautioning employees to "be care- ful" about what they sign, uses precisely the same language found to be coercive by the Board in the Hobart and Sparton decisions. That language clear- ly suggests the possibility that harm will come to employees as a result of disclosure to Respondent of the names of employees who signed union au- thorization cards. Thus, the statement contains a subtle, yet nevertheless effective, threat of reprisal against those who sign union authorization cards. When, as in the instant case, an employer expresses its absolute opposition to unions "as clearly and strongly as possible," and then warns its employees that "in many instances, the signed card is dis- closed to the company" and that the employees should be "careful about what you sign," it is rea- sonably predictable, if not entirely certain, that the employees will construe it as a warning that not only might the identity of card signers be disclosed to the employer, but that, more importantly, such disclosure is to be carefully avoided, in order to avoid retaliation by the employer; and, of course, the most effective way to avoid such disclosure is not to sign a union authorization card in the first place. Indeed, it is difficult to imagine what other purpose an employer might have in warning its em- ployees in this manner. Support for our position that Respondent's warn- ing that it might find out who signed union cards has a tendency to restrain employees in the exer- cise of their rights under the Act is found in the recent words of the Sixth Circuit Court of Appeals in Madeira Nursing Center v. N.L.R.B., 103 LRRM 2707, 2708 (6th Cir. 1980), a case decided under the Freedom of Information Act: 5 In denying enforcement of the Board's Orders in Sparron Mfanufactur- ing Company and Hobart Brothers, the courts noted that there was no his- tory of antiunionism and no pattern of coercive conduct on the part of the employers in those cases, and found in essence that it was unreason- able for the Board to have found that the statements in question in thos cases-almost identical to the comment in question made by the Re %pondent in this case-constituted an implicit threat of loss of benefits it of economic reprisals against those employees whose identity as card signers became known to the employers We note that, unlike hose ase, in the instant case there are other passages in the letter in question Ahich as seen, we have found to be unlaw ful as well 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 employer scru- tiny. We would be naive to disregard the abuse which could potentially occur if employers and other employees were armed with this information. The inevitable result of the availability 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 guaran- teed by the N.L.R.A., and, for all intents and purposes, would make meaningless those provisions . . . which guarantee secre- cy in union elections. Similarly, to the extent that Respondent has relied on subtle language in an attempt to mask the threat of reprisals implicit in its comment in ques- tion, we note the expressive language of the Sev- enth Circuit Court of Appeals in Wausau Steel Cor- poration v. N.L.R.B., 377 F.2d 369, 372 (7th Cir. 1967), decided shortly after that court's decision in Sparton Manufacturing supra: While we do not doubt that [the employer's president] proceeded carefully in attempting to limit his communications to his employees to the legally permissible, his words must be judged by their likely import to his employees. . . . [O]ne who engages in "brinksmanship" may easily overstep and tumble into the brink. Accordingly, we find that Respondent's state- ment quoted above constitutes an implicit threat that Respondent will engage in reprisals against those employees who sign union authorization cards. 6 We further find that by making the statement Respondent engaged in conduct which interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and thus violated Section 8(a)(1) of the Act.7 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its oper- ations described in section I, above, have a close, Cf. Forenra. Inc.. 165 NLRB 641 (1967): Elano Corporution. 216 NLRI 691 (1975). 7 Fisher Cheese Compurny. 238 NlRB 626 (1978). In so finding, we re- spectfully acknowledge the different view held hy the Sixth and Sesenth Circuit Courts of Appeals on the question of the la fulness of the cm- ment in question. However, for the reasons set out above, we shall con- tinue to adhere to our position on this issue intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act, we shall order that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Colony Printing and Labeling, Inc., is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Muncie Printing and Graphic Communications Union No. 126 affiliated with International Printing & Graphic Communications Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act, and has thus violated Section 8(a)(1) of the Act by: (a) Threatening its employees with loss of their right to speak directly with management about their wages, hours, and other terms and conditions of employment if they should select to be repre- sented by a labor organization. (b) Instructing employees that they should inform Respondent if they are put under pressure to join a union, or otherwise inviting and encour- aging employees to report to Respondent the iden- tity of union card solicitors. (c) Threatening employees with reprisals for signing union authorization cards. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the men- aing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Colony Printing and Labeling, Inc., Eaton, Indiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening its employees with loss of their right to speak directly with management about their wages, hours, and other terms and conditions COLONY PRINTING AND LABELING 227 of employment if they should select to be repre- sented by a labor organization. (b) Instructing employees that they should inform Respondent if they are put under pressure to join a union, or otherwise inviting and encour- aging employees to report to Respondent the iden- tity of union card solicitors. (c) Threatening employees with reprisals for signing union authorization cards. (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at its facility at Eaton, Indiana, copies of the attached notice marked "Appendix."s Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by Respondent's representative, shall be posted by Re- spondent 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. Rea- sonable steps shall be taken by Respondent to I In the event that this Order is enforced by a Judgment or a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten employees with loss of their right to speak with management about their wages, hours, and other terms and condi- tions of employment if they should select to be represented by a labor organization. WE WILL NOT instruct employees that they should inform Respondent if they are put under pressure to join a union, and WE WILL NOT otherwise invite or encourage employees to report to us the identity of union card so- licitors. WE WILL NOT threaten employees with re- prisals for signing union authorization cards. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. COLONY PRINTING AND LABELING, INC.