Mastercraft Leather Mfg. Co.

MASTERCRAFT LEATHER MANUFACTURING CO. 483 Mastercraft Leather Manufacturing Company, Inc. and Retail Store Employees Union, Local 876, United Food and Commercial Workers Interna- tional Union, AFL-CIO.' Cases7-CA-16137 and 7-RC-15301 May 14, 1980 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On January 23, 1980, Administrative Law Judge Michael O. Miller issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed limited cross-exceptions. 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 brief and has decided to affirm the rulings, findings, and conclusions2 of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 3 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, Mastercraft Leather Manufacturing Company, Inc., Troy, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: Substitute the following for paragraph 2(a): "(a) Post at its facility in Troy, Michigan, copies of the attached notice marked 'Appendix.' Copies of said notice, written in the English, Polish, Chal- The Charging Party's name, formerly Retail Clerks Union. Local 876. Retail Clerks International Union. AFL-CIO, has been changed in recognition of the June 7. 1979, merger between the Retail Clerks Inter- national Union and the Amalgamated Meatcutters and Butcher Workmen of North America. 2 Unlike the Administrative Law Judge. Members Jenkins and Trues- dale find it unnecessary to distinguish Caron International Inc., 246 NLRB No. 179 (1979), a case in which they dissented. In the absence of exceptions, Member Jenkins adopts proforma the Ad- ministrative Law Judge's dismissal of the allegation that Respondent io- lated Sec. 8(a)(1) by creating the impression of surveillance See his dis- senting opinion in South Shore Hospital, 229 NLRB 363 (1977). 3 In view of the fact that a substantial number of Respondent's em- ployees speak Polish. Chaldean, Roumanian, or Serbo-Croatian. we find merit in General Counsel's cross-exceptions to the Administrative Law Judge's failure to require Respondent to post the notice to employees in those languages as well as in English. We shall modify the Administrative Law Judge's recommended Order accordingly 249 NLRB No. 65 dean, Roumanian, and Serbo-Croatian languages, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's authorized 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 insure that said notices are not altered, defaced, or covered by any other material." IT IS FURTHER ORDERED that the election con- ducted on April 10, 1979, among the Employer's employees be, and it hereby is, set aside, and that Case 7-RC-15301 be, and it hereby is, severed and remanded to the Regional Director for Region 7 for the purpose of conducting a new election at such time as he deems that circumstances permit the free choice of a bargaining representative. [Direction of Second Election and Excelsior foot- note omitted from publication.] DECISION STATEMENT OF THE CASE MICHAEL O. MILL.ER, Administrative Law Judge: This matter was heard on October 17, 1979, in Detroit, Michi- gan, based upon an unfair labor practice charge filed on March 5, 1979, by the Retail Store Employees Union. Local 876, Retail Clerks International Union, AFL-CIO. herein called the Union, and a complaint issued on April 20, 1979, by the Regional Director for Region 7 of the National Labor Relations Board, herein called the Board. The complaint alleged that Mastercraft Leather Manu- facturing Company, Inc., herein called Respondent, vio- lated Section 8(a)(1) of the National Labor Relations Act, as amended, herein called the Act. Respondent's answer denied the substantive allegations of the com- plaint. Consolidated for hearing with the unfair labor practice allegations were union-filed objections to an election conducted on April 10, 1979, in Case 7-RC- 15301. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine the witnesses, and to argue orally. Briefs, which have been carefully considered, were filed by the Gener- al Counsel and Respondent. Upon the entire record, including my careful observa- tion of the witnesses and their demeanor, I make the fol- lowing: FINDINGS OF FACT I. RESPONDENT'S BUSINESS ANI) THE UNION'S ABOR ORGANIZAIrlON STAI US Respondent is a Michigan corporation engaged at Troy, Michigan, in the business of cutting leather uphol- stery for automobiles. Jurisdiction is not in issue. The complaint alleged, Respondent admitted, and I find and conclude that Respondent is an employer engaged in 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD commerce within the meaning of Section 2(6) and (7) of the Act. The complaint alleged, Respondent admitted, and I find and conclude that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES' Union activity among Respondent's employees began in early February 1979.2 The Union held its first meeting with employees on February 22 and subsequent meetings in mid to late March. The representation petition in Case 7-RC-15301 was filed on March I and a Stipulation for Certification Upon Consent Election was approved by the Regional Director on March 21. An election among Respondent's approximately 80 unit employees was con- ducted on April 10. A total of 46 votes was cast against representation; 24 employees voted for the Union. On April 17, the Union filed timely objections to the con- duct of the election. In response to a question asking employee Stanislawa Kuzia whether she had ever spoken to Respondent's treasurer, Rajinski, about the Union, Kuzia testified that, sometime in February, Rajinski "said that they might as well go on retirement and they will close the shop." Elsewhere in her direct testimony (which was offered, part, through an interpreter, the conversation being held in Kuzia's native language, Polish) she testified that she was not sure whether Rajinski said anything about the Union. When pressed further, and before her memory was refreshed with the use of her pretrial affidavit, she volunteered, "Well, I tell just once what Frank say, that sometime the union come in, they can close the shop, that's it." Rajinski did not testify, and Kuzia's testimony stands uncontradicted. On cross-examination, Kuzia ac- knowledged that Rajinski was at an age when he could be considered eligible to retire, was in ill health, and had discussed retirement with her previously. Whatever confusion existed in Kuzia's testimony con- cerning this incident, I must conclude, resulted from the language barrier and the necessity to receive her testimo- ny through the interpreter. Viewed in its entirety, how- ever, and considering the context in which it was given, 3 it is clear that Rajinski's statement was not an innocent discussion of the prospects for retirement for Respond- ent's older officers. It was a threat that Respondent would "close the shop" if the Union came in. Such a threat clearly coerces employees in the exercise of their Section 7 rights and, I find, violates Section 8(a)(1) of the Act. Sometime in February or March 4 Kuzia had a con- versation with Nathan Berman, Respondent's vice presi- The following discussion treats only with portions of complaint pars. 9(a), (b), and (h). All other complaint allegations were dismissed at the close of the hearing for lack of evidence without objection by the Gener- al Counsel or the Union. 2 All dates hereinafter are 1979 unless otherwise specified. 3 The Hanna Building Corporation, 223 NLRB 703, 704 (1976). ' Kuzia initially testified that this conversation occurred 1 to 2 months prior to the election (April 10). She had no current memory with which to establish the date any more precisely. When General Counsel sought to refresh her recollection by using her pretrial affidavit and leading questions, Kuzia was able to testify only that the conversation had oc- curred "maybe 2 weeks" prior to the March 20 date on her affidavit dent (but did not testify). Nathan Berman told them "that they were closing the factory that's producing hot dogs and corn beef because the union came in . . . that they closed the factory that the Union had come into, that the Union was demanding too much, that they went bankrupt." She replied that perhaps that factory had not made good food. Nathan said, "Maybe the union wants more for the people and get bankrupt." General Counsel contends that this statement, which stands undenied, was a veiled threat to close the plant. Respondent, pointing out that Nathan Berman "never mentioned Mastercraft, the Union, or the possibility that Mastercraft might close down," argued that this was an innocuous statement expressly protected by Section 8(c) of the Act, and was not a threat of reprisal in violation of Section 8(a)(1). The parameters for permissible em- ployer predictions about the effects of unionization were set by the Supreme Court in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). There the Court, noting that any evaluation of employer statements "must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dis- missed by a more disinterested ear," stated: [A]n employer is free to communicate to his em- ployees any of his general views about unionism or any of his specific views about a particular union, so long as the communications 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 com- pany. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization. .... If there is any implication that an employer may or may not take actions solely on his own initiative for reasons unrelated to economic necessitities and known only to him, the statement is no longer a reasonable pre- diction based on available facts but a threat of re- taliation based on misrepresentation and coercion, and as such without the protection of the First Amendment. [395 U.S. at 617-618.1 In the instant case, Nathan Berman told an employee, who had previously been threatened with plant closing, that a neighboring plant had closed because of union de- mands, and told her (as she related it) "maybe the union wants more for the people and get bankrupt." Nathan Berman's statement is devoid of any objective basis for predicting that the Union would demand unreasonable wages and benefits or that Respondent would be unable to meet whatever demands the Union made. It simply equated union demands with bankruptcy and bankruptcy with plant closing. Accordingly, I find that Nathan Ber- man's statement exceeded the bounds of Section 8(c) of the Act; his statement was a threat of reprisal in viola- tion of Section 8(a)(l) of the Act. See Emerson Electric MASTERCRAFT LEATHER MANUFACTURING CO. 485 Company, 228 NLRB 1275 (1977), Jimmy-Richard Co., Inc., 210 NLRB 802, 804 (1974); and Marathon LeTour- neau Company, Gulf Marine Division of Marathon Manu- facturing Company, 208 NLRB 213 (1974). Compare American Motor Inns d/b/a Holiday Inn Downtown, 212 NLRB 704 (1974). Kuzia had also spoken with Joseph Berman, Respond- ent's president, about the union campaign. At one point she told him that the other employees in the shop were blaming her for the union activity. She threatened to "quit if the trouble continued." Subsequently, about 2 or 3 weeks prior to the election, Joseph Berman told Kuzia that he had heard that she was organizing a union drive. She asked him "how was it possible that he could know who'I was going to vote for, how I was going to vote." Joseph Berman asked her whether she wanted to stay home on the day of the election and told her that she should do so if she so desired. In response to her ques- tion, he said that he could not pay her for the day. On cross-examination, Kuzia testified that Joseph Berman had said that he had heard people say that she was the union organizer. She replied that she could not do it by herself and that, if the people wanted the Union, that was okay, and, if they did not want it, they would not have it. She testified further that Joseph Berman told her that she should stay home on the day of the election if she had some problem with her children, and that it was possible that he was joking. Kuzia acknowledged that there was frequent union talk in the shop, sometimes car- ried on in a loud or boisterous manner. The General Counsel contends that the foregoing ex- change between Joseph Berman and Kuzia violated Sec- tion 8(a)(1) of the Act in two respects, the creation of an impression that Respondent was engaging in surveillance of the employees' union activities and encouragement of a known or suspected union supporter to waive her stat- utory franchise. Respondent, citing South Shore Hospital, 229 NLRB 363 (1977), correctly noted that the Board's test in determining whether a Respondent has unlawfully created an impression of surveillance is "whether em- ployees would reasonably assume from the statement in question that their union activities had been placed under surveillance." In that case, as in this, the employer's statement was based on an awareness of rumors pertain- ing to union activities. The Board, in South Shore, stated that it had "held that a respondent does not create an im- pression of surveillance by merely stating that it is aware of a rumor pertaining to the union activities of its em- ployees so long as there is no evidence indicating that the respondent could only have learned of the rumor through surveillance." In the instant case, Kuzia ac- knowledged that the Union was frequently, openly, and loudly discussed in the shop. She further acknowledged that she herself had approached Joseph Berman to com- plain that employees were blaming her for starting the union activity. Thus, it is clear that Kuzia could not rea- sonably have assumed from Joseph Berman's statement that Respondent could only have acquired its knowledge of her union role through surveillance. Accordingly, I must reject General Counsel's contention that Respond- ent violated Section 8(a)(l) of the Act by creating the impression of surveillance. However, it is clear from Kuzia's testimony that Joseph Berman encouraged her to remain away from the plant and the polls on election day. This, I find, is a seri- ous infringement upon Section 7 rights and the Board's processes. If the democratic process, be it in the political arena or in the shop, is to succeed, voters must be en- couraged to exercise their franchise. To discourage voting threatens both the individual exercise of statutory rights and the acceptability of the Board's election certi- fication. Respondent contended that no violation should be found on the basis of Joseph Berman's statement to Kuzia because the statement was made "in a joking manner." The evidence does not support this contention. At most, Kuzia testified that it was possible that Joseph Berman was joking; she was not sure. Thus, even assum- ing that the Board would disregard otherwise violative statements because they were made in jest, this case does not present such a state of facts. Compare McMillan Manufacturing Company, 220 NLRB 1354, 1357 (1975), where the evidence failed to establish the supervisory status of the individual making the alleged threat, but did establish that the statements "were made in a context of what might be described as an existing joke among em- ployees," and Walgreen Co., d/b/a Globe Shopping City, 203 NLRB 177, 181 (1973), where the "utterance in question came in the course of 'horseplay' and 'kidding around,' so characterized by [the witness] himself," with the facts in the instant case. These cases are clearly dis- tinguishable. Accordingly, I find that, by encouraging Kuzia not to vote, Respondent has interfered with the exercise of her statutory rights and with the rights of other employees, and has violated Section 8(a)(l) of the Act. On March 15, Respondent laid off a number of em- ployees. There was no contention that the layoff was in violation of Section 8(a)(3) and (1) of the Act. Prior to the layoff, Joseph Berman told employee Marie Piasecki that "all of us would lose our jobs." Nothing was said to her in regard to the Union, and Piasecki admitted that, in the area in which she was working, work had run out. The complaint alleged the foregoing conversation as a threat to close the plant if the employees chose the Union as their bargaining representative. The General Counsel, however, did not pursue this issue on brief. I find that the facts herein fail to demonstrate any connec- tion between Berman's statement and the union activity. Accordingly, I shall recommend that this allegation be dismissed. ill. THE OBJECTIONS As previously noted, the Union filed objections to the conduct of the election in Case 7-RC-15301. Those ob- jections essentially paralleled the unfair labor practice al- legations. However, only conduct occurring subsequent to the filing of a petition may be considered as the basis for setting aside an election. The Ideal Electric and Man- ufacturing Company, 134 NLRB 1275 (1961); Goodyear Tire and Rubber Company, 138 NLRB 453 (1962). Thus, Rajinski's statement to Kuzia, threatening to close the shop in the event the Union came in, having occurred prior to March 1, must be excluded from consideration 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as objectionable conduct. Similarly, I am constrained to exclude from this consideration Nathan Berman's veiled threat of plant closure similarly directed at Kuzia. The evidence in regard to when this undenied conversation occurred is unclear and conflicting. One cannot conclude from Kuzia's testimony whether Nathan Berman spoke to her prior to the filing of the petition, I or 2 months prior to the election, or after the petition was filed some- time in early March. See Super Thrift Markets, Inc. t/a Enola Super Thrift, 233 NLRB 409, fn. 2 (1977). Joseph Berman's attempt to discourage Kuzia from voting was, I find, the sole unfair labor practice estab- lished within the postpetition period. "Conduct violative of Section 8(a)(1) is, a fortiori, conduct which interferes with the exercise of a free and untrammeled choice in an election." Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1786 (1962). The question remains, however, whether this conduct was de minimis with respect to af- fecting the results of the election. I find that it was not. In making a determination as to whether 8(a)(l) miscon- duct is de minimis, "the Board takes into consideration the number of violations, their severity, the extent of dis- semination, the size of the unit, and other relevant fac- tors." Caron International, Inc., 246 NLRB No. 179 (1979); Enola Super Thrift, supra. Here, the postpetition unfair labor practice was not isolated. It followed two serious threats to close the plant, both directed at the same employee. Such prepetition misconduct is properly considered "where, as here, such conduct adds meaning and dimension to related postpetition conduct." Dresser Industries, Inc., 242 NLRB No. 14 (1979). Neither does the number of unit employees warrant a conclusion that the conduct was isolated. Compare Caron International, Inc., supra, where a single threat was directed at one em- ployee in a unit of approximately 850 who were em- ployed at five different locations, some of which where physically remote from the others, with Custom Recov- ery, Div. of Keystone Resources, Inc., 230 NLRB 247 (1977), where a single threat directed at one employee in a unit of approximately 85 was held sufficient to warrant setting aside an election. Finally, the nature of the misconduct must be consid- ered in determining whether it warrants setting the elec- tion aside. As previously discussed, discouraging employ- ees from voting threatens to weaken the acceptability of the results of Board-conducted elections. That, in turn, has the potential for bringing about the kind of labor in- stability, including work stoppages, which the Act was intended to prevent. Such conduct, therefore, cannot be deemed minimal or insubstantial. Accordingly, I recom- mend that the Union's objections be sustained and a second election directed.5 IV. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and to take certain I While the Union's objections did not specifically refer to Respond- ent's attempt to discourage employees from voting, they did specifically refer, in Objection 5, to the incident in which this conduct took place. Moreover, this issue was fully litigated and was addressed by Respondent in its brief. It is, therefore, appropriately considered herein, affimative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. By threatening employees with the closing of its plant in the event that they selected the Union as their collective-bargaining representative, and by attempting to discourage employees from voting in an NLRB elec- tion, Respondent has violated Section 8(a)(l) of the Act. 2. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 3. The Respondent did not engage in any other con- duct violative of Section 8(a)(l) of the Act as alleged in the complaint. Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS The Respondent, Mastercraft Leather Manufacturing Company, Inc., Troy, Michigan, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with the closing of the plant if they select a union as their collective-bargaining representative. (b) Discouraging employees from voting in NLRB- conducted representation elections. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights quaranteed them by Section 7 of the Act. 2. Take the following action which is necessary to ef- fectuate the purposes and policies of the Act: (a) Post at its Troy, Michigan, plant copies of the at- tached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by the Company's au- thorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 7, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges other violations of Section 8(a)(1) of the Act not specifically found herein. 6 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. I In the event that this Order is enforced by a Judgment of 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." MASTERCRAFT LEATHER MANUFACTURING CO. 487 IT IS ALSO RECOMMENDED that, in Case 7-RC-15301, the objections be sustained, the election be set aside, and the case be remanded to the Regional Director for Region 7 for the purpose of conducting a new election at such time as he deems the circumstances permit a free choice of bargaining representative. 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 opportunity to present evidence and state their positions, the National Labor Relations Board has found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives the employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through representa- tives of their own choice To engage in activities together for the pur- pose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT threaten to close our plant if the employees choose the Retail Store Employees Union, Local 876, Retail Clerks International Union, AFL-CIO, or any other union to represent them. WE WILL NOT discourage employees from voting in National Labor Relations Board elections for union representation. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. MASTERCRAFT LEATHER MANUFACTURIN(; COMPANY, INC.