Turner Shoe Co., Inc.

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, INC 145 146 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, INC. 147