John E. Cain Co.

OXFORD PICKLES 109 Oxford Pickles, Division of John E. Cain Co. and Bakery and Confectionery Workers International Union of America, AFL-CIO, Local 96, Petitioner. Case 1-RC-11,139 April 26, 1971 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS Pursuant to a Stipulation for Certification Upon Consent Election executed on July 8, 1970, an election by secret ballot was conducted on August 20, 1970, under the direction and supervision of the Regional Director for Region 1, among the employees in the stipulated unit. At the conclusion of the election, the parties were furnished with a tally of ballots which showed that of approximately 78 eligible voters, 75 cast ballots, of which 27 were for, and 47 against, the Peti- tioner. There was 1 challenged ballot which was not sufficient to affect the results of the election. Thereafter, the Petitioner filed timely objections to the election. In accordance with Section 102.69, Series 8, as amended, of the National Labor Relations Board Rules and Regulations, the Regional Director conducted. an investigation and, on October 8, 1970, issued and duly served upon the parties his Report on Objections, in which he recommended that the objections be over- ruled in their entirety and that the Board certify the results of the election. Thereafter, the Petitioner filed timely exceptions to the Regional Director's Report. 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 powers in connection with this case to a three-member panel. Upon the entire record in this case, the Board finds: 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 claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties agree, and we find, that the following employees of the Employer constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time production and maintenance employees employed by the Em- ployer at its South Deerfield, Massachusetts plant, including leadmen, freshening room employees, outside yard employees, packing employees, label- 190 NLRB No. 24 ing employees, shop mechanics and porters, but excluding all office clerical employees, summer seasonal employees, chemists, garage mechanics, professional employees, truck drivers currently represented by another labor organization, guards and all supervisors as defined in the Act. 5. The Board has considered the Regional Director's Report On Objections, the Petitioner's exceptions thereto and brief, and the entire record in this case and hereby makes the following findings. In its Objection 3, the Petitioner contends that the Employer in letters to its employees, dated August 14 and 18, 1970, with attachments, misrepresented the facts and law and threatened reprisals should the Peti- tioner be successful in the election. These letters, which in the main contain questions and answers as to what the possible effects of a union victory would mean with respect to the employees' rights and the Employer's obligations, are, as found by the Regional Director, legitimate campaign propaganda. In our opinion, the letters and accompanying questions and answers are accurate statement of the law and facts and do not amount to implied threats of reprisals. Contrary to our dissenting colleague, we do not view the various state- ments of the Employer or its answers to the numerous questions propounded in the attachments to the letters as dire predictions necessitating the production of ob- jective evidence indicating that the possible conse- quences of unionization were beyond its control. With regard to the answers to the questions, there is no requirement in the Act that an employer accede to all union demands or, after bargaining, retain all cur- rent benefits. Nor does the presence of a union prohibit an employer from moving its plant should economic conditions so dictate. Similarly, an employer may per- manently replace economic strikers. With respect to the Employer's statement that it "does have the power to make good its promises and the Union does not," we note that such statement was not made in connection with any promises of benefits or predictions of possible economic consequences of unionization but rather as an attempt to inform the employees that all union promises of improved benefits are not attainable without prior Employer assent. In these circumstances, and in the absence of any other evidence of Employer conduct which might give threatening color to the Employer's otherwise legal comments with respect to the possible effect of unioni- zation, we adopt the Regional Director's recommenda- tion that Objection 3 be overruled. The Petitioner's remaining exceptions, in our opin- ion, raise no material or substantial issues of fact or law which would warrant reversal of the Regional Direc- tor's remaining findings, conclusions, and recommen- dations. Accordingly, we hereby adopt the Regional 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Director's findings, conclusions, and recommenda- tions. As the tally of the ballots shows that the votes cast for the Petitioner were less than a majority of valid votes cast, we shall certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid votes has not been cast for Bakery and Confectionery Work- ers International Union of America, AFL-CIO, Local 96, and that said labor organization is not the exclusive representative of the employees in the unit found ap- propriate within the meaning of Section 9(a) of the Act. MEMBER BROWN, dissenting: The Petitioner, in connection with its Objection 3, contends that an employer letter dated August 14, 1970, and a list of questions and answers attached, sent to all employees, contained misrepresentations of fact and law and threats of reprisals if the Union won the election. The Regional Director's investigation appar- ently turned up another letter dated August 18 that restated some of the material in the earlier communica- tion. The August 14 letter calls attention to the forth- coming election and then states: I thought it best to send each of you a list of some of those questions and my answers to them. Please look at them carefully because it is your future, along with the future of this Company, that is at stake. The outcome of Thursday's election is a vital im- portance to you, to those who depend on your income, and to the continued operation of this Company. It is my firm belief that this plant's chances for survival and growth would be seriously hurt by the presence of a union here. Take a good look at the benefits you now have. You have never had to pay money to strangers to get those benefits. Your take-home pay and benefits are among the highest in our industry and you can count on steady em- ployment. VOTE NO ON AUGUST 20, 1970 One page of the answers and questions deals essentially with some aspects of the Board's election procedures. The other page, however, offers more explicit advice: The Company does not have to agree to a single thing the Union proposes so long as we bargain in good faith. The law itself provides that bargaining in good faith does not require the Company to agree to any Union demands or to make any concessions to the Union. We do not have to sign any contract which we do not believe to be in the Company's best interest. There is no law that forces us to agree with the views and demands of the Union. Actually, bargaining means putting everything on the table, including the benefits you already have. The wages and conditions you end up with depend on what the Company is willing to give. But re- member that the most important item for the Un- ion is getting a union-security clause which forces you to pay dues every month in order to keep your job. One way the Union can try to force the Company to agree to what the Union has been promising is to call you out on strike. Promises are cheap, but it is something else for the Union to fulfill those promises. Under our state laws you cannot collect Unem- ployment Compensation if you are out of work on strike. The Company is free to hire permanent replace- ments for the strikers so that it can continue to operate. This means that after the strike is over, you may no longer have a job. And finally, Question: If the Union is voted in, isn't the Company forced by law to keep its plant in South Deerfield? Answer: Absolutely not! If a Union in this plant put us in a position of not being able to compete in the sale of pickles, we have every legal right to move the business to a location where costs would permit us to compete with other plants. The August 18 letter stated that the law prevents the Employer from making promises, but implied that the only reason for such prohibition is that the Board knows that the Employer "does have the power to make good its promises and the Union does not. " And in an attempt to disabuse the minds of those employees who mistakenly believe that a union victory is bound to mean higher wages and benefits, the letter continued: But nothing could be further from the truth. Under the law an employer is not even required to continue in effect its existing benefits if a union wins. Bargaining starts from scratch. What wages and conditions will prevail thereafter depends on what the employer is willing to give. Oxford Pickle most certainly will not agree, merely because there is a union, to raise our costs out of line with our competition. Our aim has always been to make the South Deerfield plant a stable operation with good wages, the best fringe benefits and steady employ- ment for every one, and we would not jeopardize that goal. The Regional Director, addressing himself prin- cipally to some of the alleged misrepresentations in the questions and answers, disposed of them by noting that the Petitioner had ample time to respond, he found no OXFORD PICKLES 111 implied threat in the Employer's statement that "bar- gaining starts from scratch," and although he acknowl- edge that the Board's approach is to evaluate written campaign propaganda as a whole, he concluded, rely- ing on a number of earlier Board cases,' that the Em- ployer's statements disclosed no express or implied threat and did not go beyong the limits of privileged campaign propaganda; that reminding the employees of the disadvantages of unionization "cannot be said [to] ... create in the minds of the employees a sense of futility of selecting a bargaining representative or an atmosphere of such unreasoned fear of the conse- quences of unionization or such confusion that the em- ployees are precluded from exercising a rational choice." The majority agrees with the Regional Direc- tor, but in my view, his conclusions are in error. Initially, we must bear in mind, as the Supreme Court noted, in Gissen that: [A]n employer's rights cannot outweigh the equal rights of the employees to associate freely, as those rights are embodied in § 7 and protected by § 8(a)(1) and the proviso to § 8(c). And any balanc- ing of those rights 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 dismissed by a more disinterested ear. Id. at 617. The Court went on to say: ... [A]n employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular un- ion, so long as the communications do not contain a "threat of reprisal or force or promise of be- nefit." He may even make a prediction as to the precise effects he believes unionization will have on his company. In such a case, however, the pre- diction 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 al- ready arrived at to close the plant in case of union- ization ... If there is any implication that an em- ployer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on avail- able facts but a threat of retaliation based on mis- representation and coercion, and as such without ' Trent Tube Co., 167 NLRB 538; American Greetings Corporation, 146 NLRB 1440; Shure Brothers Inc., 147 NLRB 43; Elgin Butler Brick Com- pany, 147 NLRB 1624. ' N.L.R.B. v. Gissel Packing Co., 395 U.S. 575. See also Henry!. Siegel v. N.L.R.B., 417 F.2d 1206 (C.A. 6, 1969); N.L.R.B. v. Aerovox, 435 F.2d 1208 (C.A. 4, 1970). the protection of the First Amendment.... " [c]onveyance of the employer 's belief, even though sincere, that unionization will or may result in the closing of the plant is not a statement offact unless, which is most improbable, the eventuatity of closing is capable of proof " Id. at 618-619 . [Emphasis supplied.] It cannot be challenged that the August 14 letter contained a "prediction as to the precise effects [the Employer] believes unionization will have on his com- pany." The letter said in so many words : "the future of the Company ... is at stake ... [t]he outcome of Thursday's election is of vital importance ... to the continued operation of this Company," and "this plant's chances of survival and growth would be seri- ously hurt by the presence of a union here." In N.L. R.B. v. R. J. Pearson Co., 420 F.2d 675 (C.A. 1, 1969), the court read the opinion in Gissel: [a]s indicating two ways in which an employer's prediction as to the possible unhappy conse- quences of unionization might transgress . The pre- diction might indicate that the unnecessary conse- quences would be deliberately inflicted by the employer, in other words, a threat of retaliation. Alternatively , consequences not within the control of the employer might be described as probable or likely, when in fact there was no objective evidence of such likelihood . This would not be a retaliatory threat, but it would be an improper threat nonetheless . See 395 U .S. 575 at 618. It thus becomes apparent that the majority's view that the Employer's communications were only a prediction of the disadvantages that could flow from unionization -to wit, the probable or likely consequences that the company would have to discontinue operations-does not furnish an answer, but only states the problem. It was incumbent upon the Employer to produce the ob- jective evidence that his prediction of such conse- quences were, indeed , beyond his control . Such evi- dence is completely lacking; the Employer made no effort to support the accuracy of his statements , and, as the Supreme Court noted , "it is most improbable that the eventuality of closing is capable of proof." In the circumstances, the only permissible inference is that the Employer's statements, even if considered not to be an overt, retaliatory threat, constitute nonetheless an improper threat .' Of like character is the Employer's threat that the likely or probable consequences of col- lective bargaining would lead the Employer to move his plant. The fact that the threat was conditioned on un- ion action of some sort does not make it any less of a I See also N.L.R.B. v . Noll Motors, Inc., 433 F.2d 853 (C.A. 8); Southwest Regional Joint Board (Levi Strauss & Co.) v. N.L.R.B., 441 F.2d 1027 (C.A.D.C.); N.L.R.B. v. General Stencils, Inc., 438 F.2d 894 (C.A. 2). 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD threat, for the condition was neither explicit nor was it ployer's communications as a whole, I find that they shown to have any immediacy. were coercive in nature and interfered with the elec- I find nothing in the Employer's communications but tion.' I would therefore without passing on Objections a firm declaration that the Employer will place every 1 and 2, sustain Petitioner's Objection 3, set aside the obstacle in the path of achieving meaningful bargain- election, and direct a new election. ing; and he plainly suggests the futility of seeking union representation because he "has decided in advance to refuse to accord to the union the good faith and open mind that the law requires."' Evaluating the Em- N.L.R.B. v. Thomas Products Co., 432 F.2d 1217 (C.A. 6). 5 N.LR.B. v. Aerovox Corp., 435 F.2d 1208 (C.A. 4) (bargaining starts from scratch, and strike as only weapon); Riviana Fords, Inc., 187 NLRB No. 14 (serious harm, bargaining to impasse and strikes); Sprague Power Company, 181 NLRB No. 45 (removal of plant); Schrementi Bros., 179 NLRB No. 147 (bargaining from scratch); Deutsch Co., 178 NLRB No. 95 (nothing from bargaining employer is unwilling to give).