A. Werman & Sons, Inc.

A. WERMAN & SONS, INC. 1037 If employees have any question concerning this notice or compliance with its provi- sions, they may communicate directly with the Board's Regional Office, Sixth Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas, Telephone No. Edison 5-4211, Extension 2131. A. Werman & Sons, Inc. and Boot & Shoe Workers' Union, AFL- CIO, Petitioner. Case No. 1-RC-6197. September 7, 1965 DECISION ON REVIEW, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a Decision and Direction of Election issued by the Regional Director for Region 4 on January 27, 1965, an election by secret ballot was conducted on February 18, 1965, under his direction and supervision, among the employees in the unit found appropriate. Upon the conclusion of the balloting, the parties were furnished with a tally of ballots which showed that of approximately 157 eligible voters, 143 cast ballots, of which 50 were for, and 89 against, the Peti- tioner and 4 were challenged. The challenged ballots were insufficient in number to affect the results of the election. Thereafter, the Peti- tioner filed timely objections to conduct affecting the results of the election. In accordance with the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director conducted an investigation and on April 6, 1965, issued his Supplemental Decision on Objections and Certificate of Results in which he overruled all the objections. Thereafter, pursuant to Section 102.67 of the Rules and Regulations, the Petitioner filed a timely request for review and the Employer filed a motion in opposition thereto. On May 24, 1965, the Board, by telegraphic order, granted the request for review. Thereafter, the Petitioner filed a supporting brief. Pursuant to Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fan- ning and Jenkins]. The Board has considered the entire record in this case with respect to the issues under review, the brief of the Petitioner, and the opposi- tion motion of the Employer, and makes the following findings: The objections relate solely to one speech made by Stanley Wei-man, the Employer's president, to an assembly of unit employees at the Mari- etta, Pennsylvania, plant. The speech, a copy of which was attached to the Regional Director's Supplemental Decision, was delivered during working hours in the plant on the morning of February 17, 1965, and was completed at 9 :07 a.m., approximately 25 hours before the ballot- ing began. 154 NLRB No. 79. 1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Regional Director was of the view that, under the Board's prec- edents involving employer election campaign statements and propa- ganda in opposition to selection of a collective-bargaining representa- tive, Werman's speech could clearly be evaluated by employees as par- tisan electioneering. We believe the Regional Director has placed too narrow a construction on the precedents in applying them herein. In determining whether last minute campaign propaganda such as that here involved prevents the holding of a free and fair election, resort to rules-of-thumb are of little avail. The Board in each case makes a careful analysis of the speech or other conduct complained of in the context of the entire situation confronting the prospective voters. We have read the Employer's prepared speech and conclude, upon the entire record before us, in agreement with the Petitioner's contention, that it contains veiled threats of adverse economic consequences to the Marietta plant employees if they vote in favor of the Petitioner. On page 8 of the prepared text of his speech, Werman asserts, as an illustration of the inability of unions "to guaranty" security and of "what has really happened in the shoe industry,'' that Haverhill, lkIas- sachusetts, in 1948 had around 50 shoe factories-most, if not all, of which had a union-and today has only about 8 or 9. Werman then refers to the Employer's other two plants at Norwich, Connecticut, and Brooklyn, New York, and confides to the employees that the Brooklyn plant, the only one which is unionized, is unprofitable, that the union there has been notified that something must be done about the situation, and that the Brooklyn plant might have to be closed. He goes on to say : Now I ask you one thing. What did the union do for those people in Brooklyn? What could the union guarantee them? Because no union at all can force a company or a plant to stay in business and operation if it is not profitable. If a plant is not operating at a profit or a, sufficient profit, then it can close down and move away, union or no union. Now that can happen in Brooklyn. It can happen in Norwich. It can happen right here in Marietta. Nobody can force a company to stay in business when it isn't profitable. In the long run the only people that really are hurt are the people that work in those plants. Now I am not telling you that it is going to happen here in Marietta, and I am not threatening you that we are going to close down, but I ain telling you one thing, I am saying that a company will stay in business and will offer security to its employees as long as it is able to operate profitably and meet competition. Having thus announced for the first time the possibility of the Employer's closing the Brooklyn's plant because of unprofitable opera- tions, and having indicated that the union there could not guarantee A. WERMAN & SONS, INC. 1039 the Brooklyn employees security and that a union could not prevent the Marietta plant from closing if it too became unprofitable , Werman makes it clear that in his view Brooklyn's problems were brought on by the union . At page 18 of his prepared text, after characterizing the Petitioner's campaign promises as ridiculous , Werman asserts : This proves that this union is irresponsible to try to make you think this or any other independent shoe factory could afford all this. This is what drove factories out of New England and New York. And by the way why do you think we have a problem in Brooklyn? On page 10 of the speech , Werman brings home to employees in another way the connection between the Brooklyn situation and the choice confronting them in the election . He states : Now don't think for a minute that because the Brooklyn plant might close down that the Marietta plant is indispensable and that all the production will be shifted here to Marietta . This is not so. No decision has been made on that yet . The only thing I can tell you-and I am being very honest and sincere about this-is that if the Brooklyn plant closes it could mean that we will take that much less business in this company or it might mean that all of the production will be shifted to Norwich cr it might possibly mean that the production will be shifted , or a part of it, to Mari- etta. I can only tell you one thing . That certainly the future of this plant, as well as any plant, depends upon whether or not we can compete profitably. What I am trying to tell you , and what I am trying to point out to you is very simple. A union does not offer the employees job security.... We believe the employees could reasonably conclude from this cau- tionary note that whether or not the closing of the Brooklyn plant would result in a shift in production to the Marietta plant would depend upon the outcome of the election. Werman next reminds the employees that the Employer took over the Marietta plant in 1938 when it had been forced out of business, as he understood it, by some unreasonable union situation . He then states that he has raised his family in Marietta, that he likes it there and wants to stay , but that "things can change ." He reminds the employees of his serious illness in the past year and that he has "time and strength and energy for just so much." He relates that the plant is changing over its production to make more compo shoes and that, "unlike many companies, and union companies," it is making the change gradually to avoid displacing any employees . He refers to the plant 's retraining programs and asserts that in most union shops retraining programs are unheard of. He then adverts to the big program in the plant for put- 1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ting in revised piece rates, and the system of standards and incentives that has been so successful at the Employer's Norwich plant, and expresses his confidence that the Employer will be able, if "given a fair chance to do it, to adopt the entire Norwich set-up"-"including attendance bonus and added incentives." All of the foregoing, in our opinion, embellishes the central theme of the speech that selection of the Petitioner is likely to result in adverse economic consequences, and that rejection is likely to bring economic rewards. We conclude that the Employer's speech, viewed in context, could reasonably lead the employees to fear that the Employer, in the event of a victory for the Petitioner in the election, would close the Marietta plant or take other action which would adversely affect their economic welfare. The Board has said that such tactics destroy the atmosphere of free choice which it seeks to preserve for its elections.' The objections are therefore sustained. Accordingly, we shall set aside the election and direct that a second election be conducted. [The Board set aside the election conducted herein on February 18, 1965]. [Text of Direction of Second Election omitted from publication.] 'See Oak Manufacturing Company, 141 NLRB 1323, 1326. As the Board there said: "We do not and cannot, by this or any other decision, restrict the right of any party to inform the employees of `the advantages and disadvantages of unions and of joining them.' But such information must be imparted in a noncoercive manner." Groendyke Transport, Inc. and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 961. Case No. 27-CA-1670. September 8, 1965 DECISION AND ORDER On May 12, 1965, Trial Examiner David F. Doyle issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommend- ing that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. There- after, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. 154 NLRB No. 95.