Grunwald-Marx, Inc.

476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.) Grunwald-Marx, Inc. and Amalgamated Clothing Workers of America, AFL-CIO. Case No. 21-CA-3863. April 29, 1960 DECISION AND ORDER On January 15, 1960, Trial Examiner David F. Doyle issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel and the Charging Union filed exceptions to the Intermediate Report together with supporting briefs, and the Respondent filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Bean, and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and finds merit in some of the General Counsel's and the Charging Union's exceptions. Accordingly, the Board adopts the findings of the Trial Examiner only to the extent that they are consistent with this Decision and Order. The complaint alleges that the Respondent violated Section 8 (a) (1) of the Act by threatening that it would never sign a union contract. The Trial Examiner found that such statement was made but that it was protected by Section 8(c) of the Act and was therefore not a violation. The record shows the following facts : In the summer of 1959, the Charging Union tried to organize the employees of the Respondent. .The- Union distributed pamphlets to the employees explaining the benefits which the employees could expect if the Union became the employees' bargaining representative. A day or two after each such distribution, Fred Grunwald, the president of the Respondent, called 127 NLRB No. 58. GRUNWALD-MARX, INC. 477 employees' meetings in the plant cafeteria during working hours. The employees were. summoned to these meetings over the public address system and all attended. At these meetings Grunwald ana- lyzed the statements contained in the Union's pamphlets and attempted to persuade the employees that their present benefits were as good or better than they could hope to obtain through a union. At one such meeting, on July 27, 1959, Grunwald stated that he would never sign a union contract and that Respondent's vice president and manager in charge of the finishing operations, one Mr. Whirlow, would not work in a place that did. At a subsequent meeting which took place after the charges herein were filed and approximately a week before the hearing, Grunwald asked the employees to recall this statement and that he had said : "I, Fred Grunwald, personally, will not sign a union contract." The Board has consistently held that a company's threat not to sign a collective-bargaining agreement under any circumstances interferes with, restrains, and coerces employees in the exercise of the rights guaranteed them in Section 7 of the Act.' It is now well established that "a threat to . . . employees involving an anticipatory refusal to bargain is tantamount to a threat to . . . employees to refrain from assisting or becoming members of any union." 2 Such threat goes beyond a mere expression of views, arguments, or opinions pro- tected by Section 8(c) of the Act. The Trial Examiner's conclusion that it becomes a violation of Section 8(a) (1) only within the context of other threats or other violations of the Act is not supported by Board precedent.' Moreover, the Board has also found the statement of a company officer that he would leave if a union should come in, as equivalent to a threat to the economic security of the employees and violative of Section 8(a) (1).' Accordingly, we find, contrary to the Trial Examiner, that the Respondent violated Section 8 (a) (1) by Grunwald's remark of July 27,1959. Grunwald's threat was made in the presence of about 150 employees. It was not a chance remark made in the heat of discussion but, in our opinion, a deliberate attempt to interfere with the employees' selec- tion of a bargaining representative. Therefore, as it was not an iso- lated matter, we find it necessary to issue the customary cease and desist order. i Walton Manufacturing Company, 124 NLRB 1331 ; Waycross Machine Shop, 123 NLRB 1331; Alamo Express, Inc., et al., 119 NLRB 6; San Angelo Standard, Inc., 110 NLRB 1091, 1092; F. W. Woolworth Company, 101 NLRB 1457, 1458. ' Augusta Bedding Company, 93 NLRB 211, 212. 8 Grunwald in effect admitted that a blanket threat by a company not to sign a collective- bargaining agreement was violative of the Act, by his attempt, in a subsequent meeting, to deflect his statement from the Respondent to himself personally . Contrary to Member Rodgers, Members Bean and Fanning do not believe that the second remark of Grunwald dispelled the coercive effect of the threat of July 27, 1959. ' Walton Manufacturing Company, supra; Alamo Express, Inc., et al., supra. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that the Respondent has violated Section 8(a) (1) of the Act by threatening its employees, we shall order the Respondent to cease and desist from such unlawful conduct and to take certain affirmative action designed to effectuate the policies of the Act.' CONCLUSIONS OF LAW 1. Grunwald-Marx, Inc., is engaged in commerce within the mean- ing of Section 2 (6) and (7) of the Act. 2. Amalgamated Clothing Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening its employees that the Respondent would never sign a union contract and that its vice president would not work in a place where there is a union, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Upon the entire record in this case, and pursuant to Section' 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Grunwald-Marx, Inc., its officers, agents , successors, and assigns, shall : 1. Cease and desist from : (a) Notifying its employees that Respondent will not enter into a collective-bargaining agreement v ith Amalgamated Clothing Work- ers of America, AFL-CIO, or any other labor organization. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid and protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: c Member Rodgers would not issue a cease and desist order because the Respondent's president , Grunwald , effectively dispelled the coercive effect of his earlier remark by later stating to the assembled employees that he personally would not sign a contract with the Union, thereby eliminating any possible threat that Respondent would not do so, and also because this was the only unfair labor practice committed or alleged . In these circum- stances no useful purpose can be served by issuing an order which is designed to remedy that which has already been remedied. GRUNWALD-MARX, INC. 479 (a) Post at its plant in Phoenix, Arizona, copies of the notice attached hereto marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for the 'Twenty-first Region, shall, after being duly' signed by an authorized representative of the Re- spondent, be posted by Respondent immediately upon receipt thereof and maintained by it for 60 consecutive clays thereafter, in conspicu- ous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Twenty-first Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. IIn the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT notify our employees that we will not enter into a collective-bargaining agreement with Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the right to self- organization, to form labor organizations, to join or assist Alnal- gamated Clothing Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a conch- tion of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. GRUNWALD-MARX, INC.. Employer. Dated----- ----------- By------------------------------------- (Representitive ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 480 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT'AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before the duly desig- nated Trial Examiner in Phoenix , Arizona, on November 12, 1959 , on complaint of the General Counsel and answer of Grunwald -Marx, Inc., herein called the Company. The issue litigated was whether or not the Company violated Section 8(a)( I) of the Act by a particular statement made in the course of a speech to the employees by Fred Grunwald , president of the Company , on July 27, 1959. Upon the entire record , and from my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE COMPANY Upon the pleadings I find that the Company is a California corporation, having an office and place of business in the city of Los Angeles, California, and a manu- facturing plant located in the city of Phoenix, Arizona, where it manufactures shirts. In the course and conduct of its business operations during the 12-month period prior to the issuance of the complaint, the Company shipped products valued in excess of $50,000 directly from the State of Arizona, to points outside that State. It is conceded, and I find, that at all times material herein the Company has been engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Upon the pleadings I find that Amalgamated Clothing Workers of America, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The Issue The complaint alleges that in the course of a speech to employees on July 27, 1959, Fred Grunwald, the Company's president, said, "That he would never sign a union contract." The General Counsel contends that this statement constitutes interference, restraint, and coercion of the employees in violation of Section 8(a) (1) of the Act. The Company contends that the specific statement was merely "the expression of a view, argument, or opinion" within the meaning of Section 8(c) of the Act. Testimony as to the Statement It is undisputed, and I find, that the Union for some weeks prior to Jury 27, 19591, made an effort to organize the approximately 150 employees of the Company. As part of its organizational program, the Union distributed pamphlets to the employees at the gate of the plant from time to time. These pamphlets explained the benefits which would accrue to employees from membership in the Union. It is likewise undisputed, and I find, that it became the practice for Fred Grun- wald, president of the Company, to hold a meeting of employees, a day or two after the distribution of a pamphlet, at which time Grunwald would point out to the employees the benefits accruing to them under their existing employment conditions, and attempt to answer or refute the statements and arguments of the Union. It is likewise undisputed that the General Counsel finds no fault with any of Grunwald's speeches, except as to the specific statement which is the basis of this proceeding. In support of the complaint the General Counsel called four female employees who testified credibly to the statement made by Grunwald in his address of July 27. According to Dorothy Gibson, one of the employees, Grunwald said that he would "never sign a union contract, and Mr. Whirlow," vice president and manager in charge of the Phoenix operation, "wouldn't work in a place that did." Employees Carrie Middleton, Eulagine Mitchell, and Marjorie Eastwold corroborated this testimony. The witness also testified that at a subsequent meeting of employees, Grunwald referred to the prior meeting, and asked the girls to remember and note GRUNWALD-MARX, INC. 481 that at that meeting he had said, "I, Fred Grunwald, personally,-will not sign a union contract." I credit this testimony of the named employees.' The above constitutes the entire testimony in the case. Concluding Findings Upon the credited testimony of the employees, I find that in the course of a speech to the employees on July 27, 1959, Fred Grunwald told the employees "That he would never sign a union contract." Thus the complaint is found to be established by a preponderance of the evidence. However, at this point we approach the real issue of the case. Is this statement, in the context of the undisputed circumstances here presented, a violation of Sec- tion 8(a)(1) of the Act, or is the statement protected by Section 8(c) of the Act? Section 8(c) of the Act read as follows: The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit. Counsel for the General Counsel and the Company have both filed well-reasoned briefs on this issue. The General Counsel contends that Grunwald's unambiguous declaration that he would never sign a union contract interfered with, restrained, and coerced employees in the free exercise of their organizational rights,2 and that the statement is violative of the Act because it underscores the futility of concerted activities .3 The General Counsel also argues that the anticipatory refusal to sign a contract is tantamount to a threat to the employees to refrain from assisting or becoming mem- bers of the Union,4 and that a declaration of an intention to refuse to deal with the Union can reasonably be interpreted as a threat to close operations,5 or, in all events, that the statements constituted a threat to the economic security of the Company's employees.6 I have considered these propositions and the authorities cited by the General Counsel. While the cases lend substance to his arguments, in all the cited cases, the questionable statement occurred in a context of other unfair labor practices, which lent an element of threat to the statement. None of the cited cases dealt with such a naked statement as is here presented. Counsel for the Company has presented a line of cases in which the U.S. Circuit Courts of Appeal and the Board have held similar statements to be protected by the free speech provision of Section 8(c). He points out that Section 8(c) permits the expressions of views, arguments, or opinions as long as these contain "no threats of reprisal or force or promise of benefit." On this point he cites the case of N.L.R.B. v. The Sun Company of San Bernardino, California, 215 F. 2d 379 (C.A. 9). In that case the court said, "Since we fail to find in Guthrie's statements implying that he would never deal with the union a threat of reprisal or force or promise of bene- fit we regard these statements as being within the protection of Section 8(c)." T Counsel also calls attention to Cone Brothers Contracting Company v. N.L.R.B., 235 F. 2d 37 (C.A. 5), in which the court said of a similar statement, "Several state- ments (including this one) are extremely inconsequential and have a standing of a specific complaint only through their extraordinary technicality." In support of his position that the statement does not violate the Act since it con- tains no threat of reprisal or force or promise of benefit, counsel for the Company has cited several decisions of the Board. In Lithium Corporation, 116 NLRB 602, the Board found that a statement of a supervisor that "the employer did not want a 11 do not credit the testimony of Eddie Estrada His testimony is at variance with that of the named employees, and I deem it to be implausible and unreliable. 2 Waycross Machine Shop, 123 NLRB 1331 ; Alamo Express, Inc., and Alamo Cartage Co., 119 NLRB 6; San Angelo Standard, Inc., 110 NLRB 1091, at page 1092. 8 Gala-Mo Arts, Inc., 113 NLRB 1. ' Augusta Bedding Company, 93 NLRB 211. 6 Walton Manufacturing Co., 124 NLRB 1331. 6 Walton Manufacturing Co., supra; John H. McCann, et al. d/ b/a McCann Steel Com- pany, 106 NLRB 41, 59. 7 N.L.R.B. v. West Ohio Gas Company, 172 F. 2d 685 (C.A. 6). 560940-61-vol. 127-32 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union, and was not going to have a union,". did not violate the Act because it con- tained no threat of reprisal or. force or promise of benefit .8 Upon a consideration of all the authorities, and the undisputed circumstances sur- rounding the utterance of the statement here in question, I feel constrained to find that the statement is the expression of a view, argument, or opinion, and is protected by Section 8(c) of the Act. That section defines the criterion by which such state- ments are to be measured-the statement is to be protected unless it contains a threat of reprisal or force or a promise of benefit. Measured by that test the state- ment falls short of becoming an unfair labor practice in violation of Section 8(a) (1). Accordingly, I will recommend that the complaint be dismissed. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of the Act. 2. The Company is engaged in commerce within the meaning of the Act. 3. The Company has not engaged in the unfair labor practice alleged in the complaint. [Recommendations omitted from publication.] 8 In similar vein, see R. tt J. Underwear Co., Inc., 101 NLRB 299; Senorita Hosiery Mills, Ino., 115 'NLRB 1304, 1315; Sunset Lumber Products, 113 NLRB 1172. Memphis Can Company and Local 250, American Federation of Grain Millers, AFL-CIO. Case No. 4-CA-1972. April 29, 1960 DECISION AND ORDER On January 5, 1960, Trial Examiner Thomas A. Ricci issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the charging party filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report and the entire record in this case, including the excep- tions and the brief, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board dismissed the complaint.] INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before the duly designated Trial Examiner in Allentown, Pennsylvania, on November 23 and 24, 1959, on 127 NLRB No. 64.