Emr Photoelectric

256 DECISIONS OF 'NATIONAL LABOR 'RELATIONS BOARD EMR Photoelectric, a Division of Sangamo Weston Inc. and International Union of Electrical, Radio & Machine Workers, AFL-CIO-CLC. Case 22-CA-8121 14 December 198-4 SUPPLEMENTAL DECISION AND ORDER - By CHAIRMAN DOTSON AND MEMBERS - HUNTER AND DENNIS .0n 27 August 1980 the National Labor Relations Board issued • a Decision and Order in the above- entitled proceed-14. i; On 26 January 1981 the ,Board ' issued- an unpublished Order _Denying Motion and Amending Decision and Order, in which it amended footnote 1 of the original Deci- sion and Order-to clarify the basis on which it af- firmed the administrative law judge's credibility findings, 2. but denied the Respondent's, motion for reconsideration in all other respects. Thereafter, the Respondent filed a petition for review of the Board's Decision and Order in the United States Court of Appeals , for the Seventh Circuit, and the Board filed a cross-application for enforcement. Subsequently, the Board filed a Motion in 'the Seventh Circuit Court -of Appeals re- questing permission to withdraw the record so that it could- reconsider its Decision and Order:in light of that court's decision in Red Oaks Nursing Home v. NLRB, .633 F.2d 503 (1980), and its order in Edward A. Utlaut Foundation v. NLRB, 657 F.2d 272 (No. 80-1903 May 27, 1981), and to address certain other matters. On 9 November 1981 the court granted the Board's motion, and by letter dated 30 November 1981 the Board invited the par- ties to submit statements of position. The Respond- 251 NLRB 1597 2 Although the unpublished Order directed that the initial Decision and Order be printed as amended, the amendment was omitted from the Board volume in which the Decision and Order subsequently was print- ed Therefore, we hereby publish the footnote to be substituted for fn 1 "The Respondent has exceptd to certain credibility findings made by the judge Administrative Law Judge John F Corbley died 7 November 1978, after the heanng in the instant case had closed before him, but before the issuance of a decision Thereafter Chief Administrative Law Judge Thomas N Kessel designated Administrative Law Judge Sidney J Barban to prepare and Issue a decision based on the record made before Judge Corbley It is the Board's established policy to attach great weight to an administrative law judge's credibility findings insofar as they are based on demeanor However, in contested cases the Act commits to the Board itself the power and responsibility of determining the facts as re- vealed by a preponderance of the evidence, and the Board is not bound by the administrative law judge's findings of facts, but bases its findings on a de novo review of the entire record Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) Judge Barban's credibility findings are based on factors other than demeanor, and, in consonance with the Board's policy set forth in Standard Dry Wall Prod- ucts, supra, we have Independently examined the record in this case We find that there is no basis on the record in this proceeding for reversing his credibility determinations or his findings of fact based thereon •' 273 NLRB No. 32 ent filed a statement of position and a motion to reopen the record. The National Labor Relations Board has delegat- 'ed its authority in this proceeding to a three- member panel. The Board has considered the record as a whole in light of the Respondent's statement of position, its motion to reopen the record, 3 and the applica- ble decisions of the Seventh Circuit Court of Ap- peals and makes the following findings. As fully set forth in the judge's decision; which the' Board adopted in its initial Decision and Order, the 'Union began an organizational campaign among the Respondent's employees in May 1977. By 18 May the Union had obtained at least 30 valid authorization cards among the 47 employees in the unit found appropriate. On that date the Union re- quested recognition from the Respondent and filed a petition with the Board for a representation ,elec- tion.,By 6 June the Union had obtained and submit- ted- to the Respondent a petition signed by 46 unit employees requesting the Respondent to recognize the Union as their bargaining representative. The elebtion was held 5 August and resulted in 13 votes for 'and 31 'against the Union. Between 22 June and the date of the election both the Respondent and the .Union engaged in certain misconduct. The, Board found that the Respondent's miscon- duct constituted unfair labor practices which were so serious as to warrant the issuance of a bargain- ing order. It also found that the Union's miscon- duct did not affect the propriety of a bargaining order. On further consideration we are persuaded that some of the unfair labor practice findings were erroneous and that the remedial bargaining order was improvidently granted. 1. The Board affirmed the judge's finding that through a series of letters and oral statements to employees the Respondent engaged in "thinly veiled threats that because of unionization the Re- spondent would take action [consisting of plant clo- sure, job, loss, and other reprisals] to the detriment of the workers' employment." 251 NLRB at 1608. The theme of the letters was that the Union had a record of strikes and violence and, could make no positive contribution to the employees or the Com- pany. Although emphasizing the possibility of strikes and their doleful consequences at other plants, the Respondent's letters frankly admitted that despite the Union's past participation in strikes the Company did not know whether the Union would strike at this plant. In depicting the results of strikes at other companies, the Respondent cited 3 Because of our reconsideration of the existing record below, we find it unnecessary to conduct a further hearing SANGAMO WESTON INC 257 instances in which the strikes ended with little or no economic gain to the employees and other -in7 stances in which the plants closed or production lines moved to other locations. However, reasons other than unionization or strikes were presented to explain the loss of jobs. Thus, the judge credited testimony that Executive Vice President Lee told employees that a sister company had moved to Puerto Rico after a strike which had resulted in the company's loss of government contracts. He told employees that he hoped such a loss of government contracts would not make the Respondent move to Texas. We are often called on to .determine whether statements warning employees of the adverse con- sequences of unionization are lawful predictions or unlawful threats.. The statements made here were by and large neither. They were factual statements showing that ,there were possible harmful results from unionzation to be weighed against the possi- ble benefits to employees. The Respondent in- formed the employees that the Union had taken employees out on strike at other companies and that certain adverse consequences had ensued; that strikers received no pay or benefits during a strike and could be permanently replaced; and that should the Union win the election and make Unrea- sonable bargaining demands it would either have to drop those demands or strike. The Respondent did not tell employees if they selected the Union it would close the plant or take other reprisals. In- stead, the Respondent specifically reassured em- ployees it would bargain in good faith with the Union if it won the election and would take no re- prisals in that event. We therefore find that in its overall preelection campaign the Respondent prop- erly avoided threatening reprisals. See J. J. Cassone Bakery, 247 NLRB 220, 221-222 (1980). However, the Respondent departed from the overall pattern in one instance - and communicated to some employees what they reasonablY might have regarded as a threat. This occurred when Production Manager Autera told employees that if the Union came in and a strike ensued the Re- spondent might move to Texas. These comments crossed the line of permissible persuasion as to the consequences, of unionization because they were unaccompanied by any statement of objective facts that conveyed the Respondent's belief that such consequences were beyond its control. Ann's Laun- dry & Dry Cleaners, 268 NLRB 1013, 1016 (1984).4 4 Chairman Dotson would not view Autera's statements in isolation from the general tenor of the Respondent's message to employees—the truthful information that adverse consequences such as a plant relocation could follow a strike Therefore, he would not find that Autera's com- ments constituted a thrat See NLRB v Shenanigans, 723 F 2d 1360, 1367-1368 (7th Or 1983) Respondent also unlawfully solicited employees' grievances, promised them that without the Union their problems would be rectified within 9 months, and coerciyely interrogated two employees. These few 8(a)(1) violations, however, do not warrant im- posing a bargaining order in the circumstances pre- sented here. The question which must be faced here, as in all cases in which an employer has rejected a union's valid majority showing by way of authorization cards and committed unfair labor •practices, is whether "the possibility of erasing the effects of past practices and of ensuring a fair election (or . a fair rerun) by the use of traditional remedies, though present, is_ slight and that employee senti- ment once expressed through cards would, on bal- ance, be better protected by a bargaining , order." NLRB v. Gissel Packing' Co., 395 U.S. 575, 614,-615 (1969). This question must be answered in light of the facts of each case and with due regard for the principle that generally a secret-ballot Board-con- ducted election is the preferred method of ascer- taining employee choice. Id. at 602. Therefore, we look not only to the seriousness of the unfair labor practices, but also to their extensiveness "in terms of 'their past effect on election conditions and the likelihood of their recurrence in. the future." Id. at 614.5 Here, ascertainment of the causal relationship be- tween the Respondent's unfair labor practices and the Union's election loss is difficult. For the pree- lection campaign was characterized not only by certain coercive statements by the Respondent but also by an extensive lawful campaign by the Re- spondent and by a countervailing . campaign by the Union that included both permissible and impermis- sible tactics. The Union's misconduct consisted of the following .threats to employees: (1) that if the Union lost the election it would file charges and hold up the proceedings indefinitely, impliedly with the aid of Members of this Board and Con- gressmen whom it "could control"; (2) that "noth- ing would get across" a union picket line and any male employee who attempted to cross might never see his wife again; (3) that if certain employ- ees campaigned for the Respondent "there will be no holds barred" and "when the [Union] got in, positive, [those employees] were gone"; and '(4) that another employee who said he would not vote 5 Although the Board's concern at the time It withdrew this case from the Seventh Circuit was the inadequacy of its articulated analysis of the need for a bargaining order under that court's holdings in Red Oak Nurs- ing Home and Utlaut Foundation, supra, we cannot fall to take cognizance of the Seventh Circuit's recent decision in NLRB v Shenanigans, 723 F 2d 1360 at 1370-1372, in which it vigorously reaffirmed those princi- ples cited in the text above that dictate caution against too freely dispens- ing with elections 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the Union would find it difficult to continue working for the Respondent no matter how the vote went and the Union would 'blacklist him and had other "ways of dealing" with him. These threats could have backfired on the Union and caused employees to want to have nothing further to do with it. 6 To the extent that employees were not adversely influenced by the Union's miscon- duct, they' may have been influenced by the Re- spondent's legitimate arguments' concerning the possible -adverse effects of voting the Union in as bargaining representative. With all these factors 'Op- erating on the employees' choice, it would be little more than speculation to conclude that the Re- spondent's unfair labor practices were the factor that decisively tipped the scales.7 The unfair labor practices were not extensive when considered as part of the general preelection atmosphere created in part by the parties' cam- paigning. Their precise effect on the election -being uncertain, still less confidently could we predict from the nature of the violation that they 'are likely to recur. 8 -The interrogations and the single implied threat of plant relocation were committed -by indi- viduals relatively low, in the Respondent's manage- ment hierarchy. 6 Although their conduct is imputa- ble to the Respondent in that employees reasonably may have believed that it was authorized by man- agement, there is no evidence that what they did or said had specific authorization 'from higher levels. Those involved in unlawfully soliciting grievances- and promising benefits were high- man- agement officials, the Respondent's vice president an-d an executive vice president of Sangamo Weston Inc.; of which the Respondent is- a division. - Thus, their conduct niay be presumed to be a cal- culated company tactic. However, neither the Re- spondent nor Sangamo. Weston Inc. (which has • Chairman Dotson would find that the Union's outrageous conduct was far more serious than that allegedly engaged in by the Respondent and in and of itself precludes granting a bargaining order 7 On objections 'filed by the Union, the Regional Director set aside the diction and the Board affirmed his findings and recommendations direct- ing a second election However, the Regional Director dismissed the pe- tition in the representation proceeding on Issuance of the complaint in the instant case Our observations concerning the actual effect of the unfair labor -practices on the election outcome do not contradict the Board's finding-in the representation case that the Company's conduct reasonably tended td interfere with the employees' freedom of choice in the election • 8 We attempt to ascertain the likelihood of 'recurrence from the cir- cumstances surrounding the original unfair labor practices and such other events as may have probative value The Respondent's restraint from ad- ditional unfair labor practices during the pendency of this case tells us little about its likelihood to commit new unfair labor practices in the future ° Ronald Klukososkl, a leadman in the Respondent's employ who in- terrogated two employees, was not found to be a supervisor but to be an agent with apparent authority to speak for management Production Man- ager Tony Autera, who made the remarks' about possibly moving to Texas, was a subordinate to the general manager of the plant Involved here His supervisory status after January 1978 is in doubt ' been involved in many union organizing campaigns. and in' collective bargaining) . has been found to - have committed any unfair labor. practices other than in the instant case. Given its history of appar- ent willingness to abide by the requirements Of the Act although presented with opportunities • to do otherwise, we see no indication 'that the Company will become a recidivist. Finally, we' note that the Respondent committed but one "hallmark" violation (Production Manager Autera's threat of plant removal to some employ- ees) and relatively few "non-hallmark" violations (soliciting grievances, promise of benefit, and- coer- cive interrogations). See NLRB v. Jamaica Towing, 632 F.2d 208, 212-213 (2d Cir. 1980). Accordingly, and for all of the above reasons, we find that the General Counsel has failed to establish that the Re- spondent unlawfully refused to recognize and bar- gain with the Union.' We further find that the Gen- eral Counsel has failed to establish that the Board's traditional remedies are inadequate to erase the ef- fects of the Respondent's few unfair labor practices and ensure'a fair election." For similar reasons we find that the Respondent's unfair labor practices do not warrant a broad cease-and-desist order. Hick- mott Foods, 242 NLRB 1357 (1979): -Accordingly, we shall reseind our previous Order and- substitute one that conforms to the findings and - conclusions set forth above: ORDER . . The National Labor Relations Board orders that the Respondent, EMR Photoelectric, a Division of Sangamo Weston Inc.; Princeton Junction, New Jersey, its officers, agents, successors, and , assigns, shall 1. Cease and desist from (a) Threatening to move its operations because its employees engage in activities on behalf of a labor organization or support a labor organization. (b) Directly or indirectly promising employees benefits or improvement in their working condi- tions for the purpose of inducing employees not to join, remain members of, or otherwise support a labor organization. (c) Soliciting employee grievances or complaints with an implied promise of in proving employee working conditions or granting benefits for , the purpose of ,inducing employees not to join, remain We therefore find it unnecessary to reach the Respondent's conten- tions that a bargaining order should be denied due to employee turnover and changes in managment, and we deny the Respondent's motion to reopen the record as moot See fn 3, above In concurring in the denial of the bargaining order remedy, Member Dennis relies solely on the reasoning set forth in the paragraph to which this footnote is appended and not on any reasons set forth earlier in this decision SANGAMO WESTON INC 259 members of, or otherwise supPort a labor organiza- tion. (d) Coercively interrogating employees concern-- ing their union membership, sympathies, or activi- ties or those of other employees. (e) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist the Union, or any other labor organi- zation, to bargain collectively through representa- tives of their own choosing, and to engage in con- certed activities for the purposes of collective bar- gaining or other mutual aid or protection, or to re- frain from any or all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act. (a) Post at its operations in Princeton Junction, New Jersey, copies of the attached notice marked "Appendix."" Copies of the notice, on forms pro- vided by the Regional Director for Region 22, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, 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 the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed as to alleged violations of the Act not found hereinabove in this decision. " If 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board" APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT threaten to move our operations because our employees , engage in activities on behalf of or support International Union of Electri- cal, Radio & Machine Workers, AFL-CIO-CLC, or any other labor organization. WE WILL NOT directly or indirectly promise em- ployees benefits or improvement of working condi- tions for the purpose of inducing employees not to join, remain members of, -or otherwise support a labor organization. WE WILL NOT solicit employee grievances or complaints with an implied promise of improving working conditions or grant benefits for the pur- pose of inducing employees not to join, remain members of, or otherwise support a labor organiza- tion. WE WILL NOT coercively interrogate employees concerning their union membership, symfiathies, or activities or those of other employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. EMR PHOTOELECTRIC, A DIVISION OF SANGAMO WESTON INC.