Leggett and Platt, Inc.

LEGGElT AND PLATT, INC. Leggett and Platt, Inc. and General Drivers, Sales Drivers, Warehousemen and Helpers Local No. 245, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 17-CA-7180 and 17- RC-7994 June 24, 1977 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On February 24, 1977, Administrative Law Judge Abraham Frank issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. While we agree with the Administrative Law Judge's finding that many of the statements con- tained in Respondent's letters, and in Tate's preelec- tion speech exceeded the bounds of permissible campaign propaganda and violated Section 8(a)(1) of the Act, we disagree with two of his findings. Thus, we disagree with the Administrative Law Judge's finding that Respondent violated Section 8(aXl) and engaged in objectionable preelection conduct by asking its employees to campaign against the Union, by soliciting them to vote "No," and by requesting that they solicit other employees to vote "No." Since these requests and solicitations were generally made to all employees through the indirect and rather impersonal medium of a form letter, rather than directly to selected employees by their supervisors, we find that they were no more than customary campaign statements and did not reasonably tend to coerce the employees or interfere with their free choice in the election. We also disagree with the Administrative Law Judge's finding that Respon- dent, by its June 11 letter, unlawfully implied that it would close the plant if the employees selected the Union to represent them. As more fully set forth in the Administrative Law Judge's Decision, the June 11 letter merely decried the fighting between employ- ees caused by the union campaign and noted that as 230 NLRB No. 68 a result of such fighting production had declined. It warned that if production continued in that trend, while costs remained up, the plant could close for that reason. It also warned that "fight we will, if the majority vote ... Teamsters Union in here and they try to dictate wages, hours and working conditions." These statements, in our view, fall short of an implied threat to close the plant if the employees select the Union to represent them. At most, the letter indicated that Respondent could close the plant if production declined while costs remained high and that Respondent intended to "fight" if the Union tried "to dictate" to Respondent rather than negoti- ate with it the wages, hours, and working conditions the employees would receive. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified herein, and hereby orders that the Respon- dent, Leggett and Platt, Inc., Springfield, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modified below: 1. Delete paragraphs l(b) and (h) and reletter the subsequent paragraphs accordingly. 2. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the election in Case 17-RC-7994 be, and it hereby is, set aside, and that a second election be conducted by the Regional Director for Region 17 pursuant to the following: [Direction of Second Election and Excelsior foot- note omitted from publication.] CHAIRMAN FANNING, concurring and dissenting: I would affirm the Administrative Law Judge's Decision in its entirety. I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten to refuse to bargain in good faith and to take legal steps through an 463 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attorney to reduce wages and benefits if a union wins a Board election. WE WILL NOT threaten to refuse to sign a contract with a union under present conditions. WE WILL NOT promise employees that if they vote against a union in a Board election we will make beneficial changes in their conditions of employment within 1 year. WE WILL NOT promise employees a better chance of obtaining benefits without the presence of a union in the plant. WE WILL NOT promise employees a raise if they vote "NO" in a Board election. WE WILL NOT interrogate employees as to how they intend to vote in a Board election by asking them to report to management that they intend to vote "NO." WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act. All our employees are free to become or remain members of General Drivers, Sales Drivers, Ware- housemen and Helpers, Local No. 245, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other labor organization. LEGGETT AND PLATT, INC. DECISION ABRAHAM FRANK, Administrative Law Judge: The charge in this consolidated case was filed on June 23, 1976,1 and the complaint, alleging violations of Section 8(a)(1) of the Act, issued on August 9. The hearing was held on October 14 at Springfield, Missouri. The General Counsel and the Respondent have filed briefs, which have been considered. The Respondent, a Missouri corporation, is engaged in the manufacture of wood products at its facility located at 4654 W. Maple, Springfield, Missouri. In the course and conduct of its business the Respondent annually purchases goods and services valued in excess of $50,000 directly from sources located outside the State of Missouri and annually sells goods and services valued in excess of $50,000 directly to customers outside the State. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Charging Party, hereinafter called the Union, is a labor organization within the meaning of the Act. The complaint alleges that in letters to its employees, dated May 10 and June 11, respectively, prior to the election of June 17, the Respondent interrogated its employees concerning their union sympathies, threatened employees with loss of benefits if the Union won the election, and promised additional benefits if the employees rejected the Union. The same conduct formed the basis of the Union's Objection to the Conduct of the Election. The two cases were consolidated by the Regional Director for purpose of hearing on August 11. The Union's petition was filed on April 7. On May 10 Respondent sent the first of two letters to its employees in the proposed bargaining unit on the letterhead of Leggett and Platt and over the signature of Plant Manager Ivan Holdren. The letters, which follow, had been discussed with Respondent's attorney, John Tate, and certain changes were made in accordance with his legal advice: May 10, 1976 FELLOW EMPLOYEES: While I am Manager of the Plant I am willing to listen and give real consideration to any gripe and complaint of any employee in the company. Really it is in this way I learn what we need to do to improve. But I will tell you something else. If anyone or any union tries to tell me what I have got to do, then they can go jump! If that happens I will turn all union dealings over to our attorney to negotiate. We will see then who can do the best job. I will tell the government, the labor union, you or anybody else that I will obey the law but no one is going to force me to agree to anything I figure is not in the best interest of this company. I have been here awhile. I remember the cases of McBee with its long union troubles and finally shutting down and its workers losing all of their seniority and, in fact, their jobs and had to start all over again, just like they did at the Ramey Supermarket grocery chain. It is unfortunate in those cases that it was not the union leaders who suffered. It was the poor people who believed the promises of the union leaders. Obviously, I cannot perdict what would happen in negotiations at this company, but I do think all employees need to be reminded that in spite of what the Teamsters say and in spite of what they did somewhere else in some other town, I would not negotiate. Our lawyer would do that and in negotiations he has the legal power to take away wages or reduce pay, holidays and benefits. No one can predict what the results would be or, indeed, if a contract would be signed at all. Of course, you nor anyone else has to stay here so when the Teamsters strike, if they ever did, you could just quit, but that seems to be a poor choice for most of us who need to work. Most of us know that I am new in this job. I want and I'm asking for a year to show what I can do. I have a number of ideas for changes but you know that with the union elections scheduled for June 17th I cannot tell you what those plans are or make any changes or promises. They say that would be illegal. I do want your support. I am asking you to vote "NO"- to tell me you are going to vote "NO" - to tell your friends and coworkers you are going to vote "NO." It is up to you, but I do hope you will do what I All dates are in 1976 unless otherwise indicated. 464 LEGGElT AND PLATT, INC. you can to get everyone to vote "NO" to the Teamsters so we can all join hands (not fight) and work together to make the changes we feel we can and should make. I am seeking your outward and affirmative support from now on for at least a year. Thanks - and we will continue to stay in touch with you." Sincerely, LEGGETI AND PLATE, INC. Ivan Holdren Manager You also have my word that no one will be fired because he signed a union card or worked for the union. I want to prove to those people also that joining a union was unnecessary - again thanks. On June 11 Respondent sent its second letter to the employees in the proposed bargaining unit: June 11, 1976 FELLOW WORKERS AND FAMILIES: I know I am not the smartest guy in the world but it just doesn't make sense to have us fighting each other even in a campaign. You can see what has happened to our production. It has been on a steady decline the past few weeks and our costs have remained high. You and I both know that if production gets too low, the plant is closed for that reason. A good part of our working hours are spent together and it is not right that we have little groups fighting each other in the plant, while outsiders stand back to watch the fun. But fight we will, if the majority vote, what I believe is recognized as the crime infested Teamster's Union in here and they try to dictate wages, hours and working conditions. NO WAY! Everyone can strike but no one can force me or our negotiator to act contrary to what we consider lawfully good business judgment. The Union tried that with Royal McBee and Ramey's Market, didn't they? Some of you signed cards before you understood all the facts. I can understand that. That will not be held against anyone. No one has to be afraid of their job because they signed a card. The NLRB protects you against that and they are as near as your telephone to Kansas City, Missouri. Since Jim has been promoted into Sales and I have taken over this job, I could not legally make any changes at all in wages, hours or working conditions, but when the majority of you vote NO UNION on June 17th, I can go to bat for the changes I would like to make. A few of you have indicated you do not have much interest either way. I believe all of you should, and if you want to stop the Teamsters from being able to call the whole plant out on strike, you had better do your best to see that the people with whom you work, join you in voting NO UNION. If things have not changed, to suit you in a year, you can vote in the Woodworker's Union, the Teamsters Union or whoever you want, but I do not think I am being unreasonable for myself or you to suggest that starting right now, you do all you can to get everybody to vote NO UNION next Thursday. Sincerely, LEGGETT AND PLATT, INC. Ivan Holdren Plant Manager During the course of the hearing additional evidence was adduced with respect to the Respondent's conduct immedi- ately prior to the election. While the complaint does not allege such conduct to be unlawful, it was fully litigated and is closely related to the allegations of the complaint. I have therefore considered such evidence on its merits. On June 16 about 9 or 9:30 a.m. Respondent held a meeting to offer its views on the election scheduled for 11 I or 11:30 the next morning. Employees were required to attend and were paid at an hourly rate for their time. The meeting lasted about one-half hour. Holdren, James Lindsay, the personnel manager, and Tate were present. Tate held Respondent's letters of May 10 and June 11 up in his hand and asked if everyone had received copies. Tate spoke for the Respondent as an expert in labor relations. He made it clear that he was highly skilled in negotiations of this type and that he would negotiate for the Respon- dent in the event the Teamsters won the election. He reminded them that in negotiations the parties did not start from the status quo. The employees would not necessarily keep their current salaries; their salaries could go lower or higher. In answer to a question as to how long negotiations lasted, he said that he had been in one negotiation for 10 years, but usually they didn't take that long. Without stating that he would close the Respondent's plant in Springfield, Tate told the employees that he was the management negotiator for two plants that had closed after the advent of a union. One plant was a steel mill in Missouri and the other a Leggett and Platt plant in Hominy, Oklahoma. In those cases Tate had counseled management not to lay the employees off because business was slow, but to wait until the Union called a strike, which it did, and then the plant closed. (At the time of the hearing the Leggett and Platt plant had since reopened and was functioning.) Tate told the employees that if they wanted benefits the better approach was to ask Holdren or someone in authority rather than having the Teamsters in the plant. Graphically illustrating how the Respondent viewed bargaining with the Teamsters, Tate grabbed an 465 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee and said, "Give me a cup of sugar, you son-of-a- bitch."2 Tate told the employees, in effect, that he would not sign a contract with the Teamsters Union under present conditions. 3 At or about 5:30 p.m. on June 16 Lindsay approached employee Roger Lee Gully at the spindle sander near the office in the plant and told him that if the election was voted no that the employees would get a raise; that it had been the practice in the past that they would get a raise in September, but because of the election they could not give it to the employees until the Union was voted down. Lindsay did not recall having such a conversation, but agreed that he could have talked to Gully on that afternoon. I credit Gully. About an hour before the election commenced on June 17 Lindsay and employee Higdon removed Respondent's anti-Teamsters campaign material from the bulletin board. I find no violation of the Act with respect to this conduct. Conclusions The issue here is the familiar one of an initial attempt by a union to organize an unrepresented plant. The employer, of course, under Section 8(c) of the Act and the first amendment has a right to speak his mind on this subject, but he must refrain from impinging on the right of his employees to join or assist a union without coercion from their employer. In striking a balance between these sometimes conflicting rights the Board and the courts have established recognizable guidelines for employer conduct in the context of a nascent union organizational drive. An employer may decide to go out of business entirely even if motivated by union considerations, 4 but he cannot tell his employees that he will do so unless, improbably, it is a proven statement of fact.5 He may make a prediction of economic consequences due to unionization, but if he does he must exercise extraordinary care to avoid the implica- tion that he himself will make the prediction come true. "If there is any implication that an employer 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 available facts but a threat of retaliation based on misrepresentation and coercion, and as such without the protection of the First Amendment." [Emphasis supplied.]6 It is the responsibility of the Board to examine the specific statements alleged to be unlawful and the context in which the statements were made. "The question is not only what the employer intended to imply, but also what the employees could reasonably have inferred."7 Any balanc- ing of rights must take into consideration the fact that employees are economically dependent on their employer 2 Holdren testified he wasn't "sure" that the incident did not occur at a prior meeting. However, I credit the testimony of employees Luna and Gully that the incident occurred at the meeting of June 16. 3 Holdren testified that Tate said he would negotiate in good faith for anybody but that nobody was going to force him to make or sign contracts that were not economically sound for the Company. Employees Luna and Gully both testified that Tate had said he would not sign a contract. Luna subsequently modified his testimony as indicated above. In view of my findings below with respect to the letters of May 10 and June 11, which were written with the assistance of Tate, I find that Tate created the impression, which the employees received, that Respondent would not sign a contract and would be alert to hear intended implications in an employer's statement that might be lost to others.8 "Employees, whose jobs are at stake, are particularly sensitive to rumors of plant closure and any hint by their employer that the plant might close as a result of unionization is viewed not as an honest prediction but as a coercive threat." [Emphasis supplied.] From the above, I conclude that the burden is on an employer to see to it that his employees cannot reasonably infer from his statements and conduct during an organiza- tional campaign a threat of reprisal or promise of benefit. In such circumstances the employer acts at his peril. He cannot walk between the raindrops. He cannot proclaim his right to free speech while garnering at the same time the benefit of his employees' induced concern that disaster would befall them and their families if they voted for the Union. In the instant case the employees could reasonably infer from the letters of May 10 and June 11 and the Tate speech of June 16 that it would be futile to vote for the Teamsters Union, but that if they voted "No Union" Respondent would make beneficial changes in wages, hours, and working conditions. I find that the Respondent violated Section 8(a)(l) of the Act by the following conduct: (I) Telling employees in the May 10 letter that Holdren would listen to an individual employee, but that a union could "go jump" if it tried to tell him what to do; that he would not negotiate except through an attorney who had "the legalpower to take away wages or reduce pay, holidays and benefits," with the implication that Respondent would not bargain in good faith, but would take legal steps through an attorney to reduce employees' wages and benefits if the Teamsters won the election. (2) Telling employees in the May 10 letter that Holdren had a number of ideas for changes and asking for a year "to show what I can do" to make changes that should be made and telling the employees in the June 11 letter that Holdren could go to bat for changes when the majority voted "No Union" and that if "things have not changed to suit you" the employees could vote for a union in a year, with the implication that Respondent would make beneficial changes within a year if the employees voted against the Teamsters. (3) Asking employees in the May 10 letter to try to get everyone to vote "No" to the Teamsters, and telling employees in the June II letter to do their best to see to it that the people with whom they worked joined them in voting "No Union" and suggesting that they do all they could to get everybody to vote "No and Luna's modified testimony is a closer approximation of Tate's actual words. 4 Textile Workers Union v. Darlington Manufacturing Co., 380 U.S. 263, 273-274 (1965). s N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618-619 (1969). 6 Id at 618. 7 N.LRB. v. Kaiser Agricultural Chemicals, 473 F.2d 374, 381 (C.A. 5, 1973), and cases cited therein. 8 Gissel Packing Co., supra, 617. 9 Id. at 619-620. 466 LEGGEIT AND PLATr, INC. Union," a solicitation of employees to solicit other employees to vote against the Union.' 0 (4) Asking each employee in the May 10 letter to tell Holdren that the employee intended to vote "No," with the implication that each employee should report to Holdren that he intended to vote "No." (5) Telling employees in the June 11 letter that production was low due to fighting; that the plant could close for that reason; nevertheless "fight we will" if the majority voted for the Teamsters and the latter tried to "dictate" terms of employment, with the implication that the plant would close if the employees voted for the Teamsters. (6) Telling employees in the June 16 speech that if they wanted benefits the better approach was to go to Holdren or someone in authority rather than have the Teamsters in the plant and illustrating Respondent's view of bargaining with the Teamsters by seizing an employee and saying, "Give me a cup of sugar, you son-of-a-bitch," with the implication that employees had a better chance of obtaining benefits without the presence of the Teamsters in the plant. (7) Telling the employees in the June 16 speech, in effect, that Respondent would not sign a contract with the Teamsters Union under present conditions, with the implication that Respondent would not sign a contract with the Teamsters. (8) Lindsay's statement to Gully at 5:30 p.m. on June 16 that if the election was voted "No" the employees would get a raise, a promise of benefit. Upon the foregoing findings of fact and conclusions of Law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER " The Respondent, Leggett and Platt, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening to refuse to bargain in good faith and to take legal steps through an attorney to reduce wages and benefits if the Teamsters won the election. (b) Threatening that the plant would close if the employees voted for the Teamsters. 10 Civic Center Sports Inc., 206 NLRB 428, 434 (1973); Alberts, Inc., 213 NLRB 686, 691 (1974). " 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 findings, 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. (c) Threatening not to sign a contract with the Teamsters under present conditions. (d) Promising the employees that if they voted against the Teamsters Respondent would make beneficial changes in a year. (e) Promising employees a better chance of obtaining benefits without the presence of the Teamsters in the plant. (f) Promising that the employees would receive a raise if the election were voted "No." (g) Interrogating employees as to how they intended to vote in the election by asking them to report to Respondent that they intended to vote no. (h) Soliciting employees to solicit other employees to vote no in the election. (i) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its place of business in Springfield, Missouri, copies of the attached notice marked "Appendix." 1 2 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by Respondent's representative, shall be posted by Respon- dent 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. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED in Case 17-RC-9774 that the Board sustain the Union's objection to the conduct of the Respondent affecting the results of the election of June 17; that the election be set aside and, upon the Union's request, a new election be held, after severance of Case 17- RC-7994 from this consolidated proceeding. 12 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." 467