Visador Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Visador Co. and UBC, Mid-Atlantic Industrial Coun- cil, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Cases 5-CA 9693 and 5- CA -9945 September 27, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on July 27, 1978, by UBC, Mid-Atlantic Industrial Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called the Union, and duly served on Visador Co., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 5, issued a complaint and notice of hearing on September 8, 1978, on certain allegations arising out of the charge filed in Case 5- CA-9693 alleging violations of Section 8(a)(1) and (3), which charge was duly served on Respondent by registered mail on the same date. This complaint was superseded on December 13, 1978, by an amended complaint and notice of hearing alleging in pertinent part that Respondent has engaged in and is engaging in certain unfair labor practices affecting commerce within the meaning of Section 8(a)(l) and (5) and Section 2(6) of the National Labor Relations Act, as amended. Thereafter, on December 14, 1978, the Re- gional Director issued an order consolidating cases. Subsequently, Respondent filed an answer, an amended answer, and a second amended answer, ad- mitting in part and denying in part the allegations of the complaint and amended complaint, submitting defenses asserting, inter alia, that the complaint and amended complaint fail to state a claim upon which relief can be granted, and requesting that the com- plaint and the amended complaint be dismissed. On March 2, 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on March 8, 1979, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the Gen- eral Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed "Respon- dent's Memorandum in Opposition to the Counsel for the General Counsel's Motion for the Summary Judg- ment." 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 In its answer to the complaint and its opposition to the Motion for Summary Judgment, besides refusing to admit filing and service of the charge, as an affir- mative defense claims only that the complaints' alle- gations fail to state a claim upon which relief can be granted.' Review of the record herein reveals that, from late July or early August to September 1978, two of Re- spondent's admitted supervisors, William Foster and Charles Neitch, delivered a series of four speeches to employees. It is alleged that these speeches con- tained: an implied threat of plant closure, the threat of reduced wages, and an open solicitation of griev- ances, all in violation of Section 8(a)(1) of the Act. The four speeches which contain the alleged 8(a)(l) violations are attached to the motion as Exhibits A through D. In a speech delivered on several occasions by William Foster between July 24 to July 27, 1978 (attached to the complaint in Case 5-CA-9693 as Exh. A), Foster told the employees that he was aware of the ongoing union campaign and then went on to describe how the Employer had closed one of its plants in Logan, Ohio, because of the union trouble there and opened the Marion plant because of the nonunion work force in the area. Inasmuch as Re- spondent gave no objective facts which would other- wise justify the closing of its Logan plant beyond the unionization of the employees there, it is clear that such comments were intended to convey and did con- vey the message that similar consequences would re- sult at the Marion plant should the employees select the Union as their bargaining representative. Such comments constitute a thinly veiled threat to close the plant if the employees chose the Union and therefore constitute a violation of Section 8(a)(l) of the Act. The complaint also alleges that after this speech Foster went on to specifically request that employees come to him with their problems should they have any, stating, "Whatever problems we've got, we don't need a union to solve them. If you work with me I promise to be fair and to listen to suggestions for im- proving our plant." Without more in the record we are unable to say that such comments constitute a solicitation of grievances in violation of Section 8(a)(1). To listen to suggestions does not in and of itself imply that the suggestions will be acted on and, in the absence of any evidence that Respondent was deviating from past practice, we shall dismiss this al- legation. I In light of the following discussion, we deny the General Co)unsel's "Mo- tion to Strike Respondent's Memorandum in Opposition to the Motion for Summary Judgment." 245 NLRB No. 71 508 less, saying that it would therefore offer lower wages in the course of bargaining with the Union, but also stated that lower wages "will happen ... if the union comes in" and that things will become substantially worse if the Union is elected as their representative.3 By telling its employees that lower wages and wors- ened working conditions would result from selection of the Union, not merely that such things could result from bargaining, Respondent was clearly threatening its employees in violation of Section 8(a)(1) of the Act. In response to a Motion for Summary Judgment, an adverse party may not rest on denials in the plead- ings, but must present specific facts which demon- strate that there are material facts at issue which re- quire a hearing. 4 Respondent in the instant case presented no material facts at issue which require a hearing,5 as all such facts have either been admitted or previously determined. Respondent has admitted that there are no mate- rial issues of fact to be litigated in this proceeding, nor does it allege that any special circumstances exist herein which would require a hearing.6 We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice pro- ceeding. Accordingly, we grant the Motion for Sum- mary Judgment, to the extent indicated above. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a Texas corporation engaged in the manufacture of stairs and stair parts at its Marion, Virginia, facility. During the preceding 12 months, a representative period, Respondent sold and shipped, in interstate commerce, products valued in excess of $50,000 to points located outside the Commonwealth of Virginia. 3 Contrary to Member Penello's partial dissent, Respondent's statements did not merely compare wages at other plants in the area and set forth the position Respondent would take in bargaining with the Union. Thus, in one of the speeches to employees, Respondent's agents stated, in regard to wages, that "Visador would insist on paying no more than the other employers in this area are paying." (Emphasis supplied.) Such a statement goes beyond setting forth a bargaining position and conveys to employees a clear message that unionization will result in lower wages and worsened working condi- tions. Western Electric Company, Hawthorne Works 198 NLRB 623 (1972). Further, we consider it unnecessary to adopt the Acting Regional Director's recommendation that this proceeding be consolidated with Case 5-CA-9693, 9945, for purposes of decision. Cf. Little Lake Industries, Inc., 233 NLRB 1049 (1977). 5See Pittsburgh Plate Glass Co. v. N.LRB., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 6 Respondent's refusal to admit filing and service of the charge does not raise any such issue since the affidavits of service and post office receipts attached to the motion are adequate proof of these matters. Beck Corpora- tion, d/b/a Jesse Beck's Riverside Hotel and Casino, 231 NLRB 907 (1977). The complaint also alleges that in three speeches given by Charles Neitch during September 1978 (at- tached to the complaint in Case 5-CA-9945 as Exhs. A, B, and C) the Employer delivered to employees the threats that selection of the Union would result in lower wages; working conditions would be worsened; and the inevitable result of unionism would be no contract, a strike, and the loss of their jobs. In addi- tion, Neitch pointed to a strike by the Teamsters Union at its Jasper, Texas, plant which lasted over 6 months and resulted in the strikers being permanently replaced, with no improvements in wages, benefits, or working conditions and no union contract. With respect to the allegation that the above speeches constitute unlawful statments that it would be futile to select the Union as bargaining representa- tive, Respondent contends that these comments were merely statements of its bargaining position and as such do not constitute unlawful threats. As these statements allegedly conveying the futility of selecting the Union appear on this record, we can- not find that, without more, they are sufficient to sus- tain this allegation. Although we have previously found that Respondent threatened employees with plant closure and, as discussed infra, we agree with the General Counsel's contention that Respondent violated Section 8(a)(1) of the Act by threatening lower wages and poorer working conditions if the em- ployees selected the Union, we believe that such evi- dence standing alone is insufficient to establish that Respondent would not bargain with the Union.2 In all other respects Respondent's message to the em- ployees was that union representation would not guarantee higher wages or benefits and that Respon- dent's bargaining position would be to pay wages and benefits competitive with those in the area. Neither of these latter statements may be deemed to be unlaw- ful. Accordingly, we shall dismiss that portion of the complaint. However, with respect to the allegations that selection of the Union would inevitably result in lower wages and worsened working conditions, Re- spondent not only compared the wages at Marion to other plants in the area that were allegedly paying 2 Chairman Fanning would find that Respondent conveyed to employees that selecting the Union as its bargaining representative would be futile. In the Chairman's view, this conclusion must follow from the majority's finding. ifra, that Respondent threatened to reduce wages and impose poorer work- ing conditions. Certainly, wages and working conditions are of primary con- cern to employees, and a threat to "insist" on on worsening those wages and working conditions-if unionization occurs-can only emphasize to employ- ees that unionization would be futile. Respondent's threats, which are clearly outside the protection of Sec. 8(c) of the Act, are not redeemed because Respondent, in other portions of its speeches, stated it would bargain in good faith if the Union was successful. Accordingly. Chairman Fanruning would find, as alleged in the complaint, that Respondent unlawfully emphasized to employees the futility of unionization. See Montgomery Ward & Co., Inc, 222 NLRB 965 (1976); Leggett and Platt, Inc., 230 NLRB 463 (1977). VISADOR CO. 509 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find, on the basis of the foregoing, that Respon- dent 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 At all times material herein, the Union is and has been a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES As set forth above, the actions of Respondent's rep- resentatives, Foster and Neitch, in giving a series of speeches to the employees during which employees were threatened with plant closure, reduced wages, and worsened working conditions, constitute interfer- ence, restraint, and coercion of its employees in the exercise of the rights guaranteed them in Section 7 of the Act. Accordingly, we find that such actions are unfair labor practices within the meaning of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. v. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(1) of the Act, we shall order that it cease and desist therefrom. CONCLUSIONS OF LAW 1. Visador Co. is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. By threatening employees with plant closure, re- duced wages, and worsened working conditions, Re- spondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, em- ployees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing 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 Rela- tions Board hereby orders that the Respondent, Visa- dor Co., Marion, Virginia, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, and coercing em- ployees in the exercise of the rights guaranteed them in Section 7 of the Act by threatening to close the plant, to reduce wages, and to worsen working condi- tions if the employees chose the Union as their exclu- sive bargaining representative. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise 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 Marion, Virginia, facility copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Direc- tor for Region 5, after being duly signed by Respon- dent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that the comments of William Foster requesting employees to come to him with their problems violated Section 8(a)(I) of the Act. MEMBER PENELLO, dissenting in part: I disagree with my colleagues' finding that Respon- dent violated Section 8(a)(1) by threatening its em- ployees with lower wages and worsened working con- 7 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 Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 510 VISADOR CO. ditions. In support thereof, the majority relies on an incomplete extraction from a speech delivered by Re- spondent. A more complete quotation from that speech shows the following: There's been some talk of a dollar per hour raise if the Union comes in our plant. Let me make the Company's position very clear on what will happen... if the Union comes in.8 First, let's look at how your wages at Visador compare to the average wages in this part of Vir- ginia. The State of Virginia has released the most recent wage and benefit survey for our type of plant. I had this chart made so you can see with your own eyes where you stand compared to other workers around here. Let's look at the pay employees get from other plants for doing the same work you do at Visa- dor. As you can see from these official figures, Visador employees earn a lot more than average for this part of the country. If the Union [is] voted in at Marion, the Company will take the position in bargaining that our wages should be comparable to the average wage for comparable jobs. We will bargain in good faith, and we will obey the law. But just like the Company in this court case, we will propose that wages at Visador 8 The emphasized words represent the quotation in the majority opinion. be brought into line with our competitors in this area. When the extraction from Respondent's speech re- lied on by the majority is considered in context, it is plainly not a threat that lower wages "will happen... if the Union comes in," but instead is merely a com- parison of wages at Respondent to other plants in the area and the position that Respondent will take in bargaining. I would, therefore, dismiss this allegation of the complaint. 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 that we will close the plant, reduce their wages, or worsen their working conditions if they choose UBC, Mid-Atlantic Industrial Council, United Broth- erhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization, as their exclusive bargaining representative. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. VISADOR Co. 511