Pottsville Bleaching And Dyeing Co.

988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pottsville Bleaching and Dyeing Company and Teamsters Union, Local No. 115, affiliated with International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America. Cases 4-CA-14808-3 and 4-CA-14917 6 December 1985 DECISION AND ORDER BY MEMBERS DENNIS, JOHANSEN, AND BABSON On 25 July 1985 Administrative Law Judge Thomas A. Ricci issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a cross-exception, a supporting brief, and an answering brief to the ex- ceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions as modified and to adopt the recom- mended Order. The Respondent and the General Counsel ex- cepted to the judge's failure to make specific find- ings of fact and conclusions of law regarding the specific allegations of the consolidated complaint. We find merit in these exceptions and, accordingly, will discuss each complaint allegation and amend the Conclusion of Law section of the judge's deci- sion. Paragraphs 5(a)-(e) of the consolidated com- plaint alleges that the Respondent, acting through Plant Manager Richard Horton, threatened its em- ployees on five separate occasions with closing the plant if the employees selected the Union as their collective-bargaining representative. We find that Horton made such threats on four of the dates al- leged in the consolidated complaint. Specifically, an employee testified, and Horton did not explicitly deny, that in early October 1984 Horton held a meeting with day-shift employees at ' The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings The judge inadvertently found that a meeting at which the Respondent informed the employees of layoffs occurred in November 1984 rather than late October 1984. Member Babson finds it unnecessary to decide whether the Acting Re- gional Director properly consolidated the two charges here, because all of the complaint allegations are timely from the date of the second charge which he said he did not want any labor problems2 from outside, "or we'll lock the doors." We find that this statement was a threat to close the plant if the employees selected the Union as their collec- tive-bargaining agent. Accordingly, we find that the Respondent violated Section 8(a)(1) of the Act, as alleged in paragraph 5(a) of the consolidated complaint. Other employees testified that Horton held a meeting with third-shift employees in the middle of October 1984 at which Horton said if there were any labor problems the doors would be locked. Then, according to the witnesses, Horton looked at employee Ron Downey, an active union adherent, and said, "Do you understand that, Ron?" In view of Horton's failure specifically to deny this testimo- ny, we find that the Respondent violated Section 8(a)(1) of the Act as alleged in paragraph 5(b) of the consolidated complaint. In late October 1984, according to Horton's testi- mony, Horton spoke at an employee meeting at which another management official had announced earlier that there would be layoffs. Horton said, "We cannot have labor problems," and "if we don't work together and we don't get the job [done] and we don't eliminate reworks . . . we can kiss it goodbye and we will have the doors closed." We find that this statement was an unlaw- ful threat to close the plant in violation of Section 8(a)(1) of the Act, as alleged in paragraph 5(c) of the consolidated complaint. The General Counsel also alleged in paragraph 5(d) of the complaint that in December 1984 Horton unlawfully threatened to close the plant. Employee witnesses testified that, at a meeting with employees, Horton said if there were any labor problems he would tell the Respondent's president "to put the lock on the door." Horton and another official of the Respondent, however, denied that Horton spoke to the employees at that meeting. The judge failed to resolve the credibility dispute, and we therefore cannot determine the merits of this allegation. We find it unnecessary to pass on this allegation because the finding of such an additional violation in any event merely would be cumulative and could not materially affect the Order. The final allegation involving Horton is that about 18 February 1985 he unlawfully threatened to close the plant. Employee witnesses testified that at a meeting with employees held on that date Horton said the plant would close if there were 2 We adopt the judge's finding that by referring to "labor problems," Horton meant organizational activities on behalf of the Union rather than efficiency or productivity 277 NLRB No. 106 POTTSVILLE BLEACHING CO. labor problems. Inasmuch as Horton specifically did not deny this testimony, we find that the Re- spondent violated Section 8(a)(1) of the Act as al- leged in paragraph 5(e) of the consolidated com- plaint. In addition to the allegations involving Horton, the consolidated complaint alleged that on 28 Feb- ruary 1985 the Respondent , acting through its president Jack Miller, threatened its employees with plant closing if they selected the Union as their collective-bargaining representative. The record shows that periodically Miller gave a "state of the company" speech to employees describing the financial condition of the Company and the Company's goals. About 28 February Miller gave such a speech in which he informed the employees of, inter alia, severe financial problems including the loss of major customers and possible loss of credit from banks. Miller then described four op- tions for the Company's future: improve sales, place both plants up for sale and review the best offer, phase out part of the business, or phase out production to the best facility. No reference was made in the speech to "labor problems," the Union, or the organizing campaign.3 We cannot find, based on this evidence, that the Respondent, acting through Miller, violated Sec- tion 8(a)(1) of the Act as alleged in paragraph 6 of the consolidated complaint.4 Miller's discussion of the Company's future was phrased concretely, and based on objective facts not contested by the Gen- eral Counsel. In addition, nothing in Miller's speech linked his comments to the organizing cam- paign or to any of the employees' protected activi- ties. We therefore shall dismiss this allegation of the consolidated complaint. AMENDED CONCLUSIONS OF LAW 1. By threatening to close its plant in retaliation for its employees ' union activities around early Oc- tober 1984, mid-October 1984, late October 1984, and mid-February 1985, the Respondent has violat- ed Section 8(a)(1) of the Act. 2. The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Pottsville Bleaching and Dyeing Company, Port Carbon, 3 The record does not support the judge's contrary finding. 4 Member Dennis finds it unnecessary to pass on the complaint allega- tion because the finding of such an additional violation would be cumula- tive and would not affect the Order 989 Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Barbara C. Joseph, Esq., for the General Counsel. Barry R. Elson, Esq. (Cohen, Shapiro, Polisher, Shiekman & Cohen), of Philadelphia, Pennsylvania, for the Re- spondent. Norton A. Brainard II, 'Esq., of Philadelphia, Pennsylva- nia, for the Charging Party. DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge. A hear- ing in this proceeding was held at Pottsville, Pennsylva- nia, on 22 and 23 May 1985, on complaint of the General Counsel against Pottsville Bleaching and Dyeing Compa- ny (the Respondent or the Company). The complaint issued on 29 March 1985, on a charge filed on 25 Janu- ary 1985, by Teamsters Union, Local No. 115, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America (the Charging Party or the Union). The only issue presented is whether management representatives in fact told the employees that the Respondent would close the plant in which they worked if they persisted in their prounion ac- tivities. Briefs were filed by the General Counsel and the Respondent after the close of the hearing. On the entire record,' and from my observation of the witnesses, I make the following FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, a corporation existing under the laws of the Commonwealth of Pennsylvania, is engaged in bleaching and dyeing of tubular fabrics at its Port Carbon, Pennsylvania plant. During the year preceding issuance of the complaint, it received more than $50,000 for work performed on goods of, and returning the goods to, customers located outside the Commonwealth of Pennsylvania. I find that the Respondent is an em- ployer within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that Teamsters Union, Local No. 115, affiliated with International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES This is a very simple case . Just one question is present- ed, based on undisputed facts. When an employer tells the employees, during an organizational campaign about to lead to an election everybody knows about, that if the employees persist in causing "labor problems" the Com- I A motion by the General Counsel, unopposed, to correct certain in. advertent errors in the record transcript, is granted 990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany will close the plant where they work, is he threat- ening economic retaliation for protected union activities? The employee witnesses, to whom the threat was alleg- edly addressed many times, said that is how they under- stood it. The principal defense witness, the plant manag- er, said what he meant by the critical phrase was em- ployees "not performing their work correctly, making too many mistakes, not working fast enough." It is too late in the day for such a play on words to serve as a defense to the clearest unfair labor practice imaginable. I find that what the company officers were telling the employees was that if they persisted once again-as they had been doing for 4 consecutive years without results-in trying to establish the Union as bar- gaining agent via a Board-conducted election, they would close the plant and continue doing business only with another plant the Company also operates in a nearby city. This Company operates two plants doing the same kind of work, one called the Independence plant and one called the Port Carbon plant, 7 miles away. The employ- ees at Independence have for some years been represent- ed by a union, the Port Carbon employees have not. There are over 100 employees at each plant. All the talk- ing, during which the unfair labor practices are said to have taken place, was at Port Carbon. In late 1984 and early 1985 the Company held meetings with the employ- ees a number of times, sometimes with each group in the three shifts separately, at times with all the employees of that plant together. A major subject of concern, which the various supervisors brought to the attention of the employees, was the economic condition of the moment. It has long been the Respondent's practice to hold such informational meetings with its employees. Some meet- ings were referred to as the state of the company meet- ings, others as profit-sharing meetings, etc. During the period in question many of the meetings were devoted to explaining to the employees that the Company was un- dergoing financial stress and that some customers were lessening their work orders. In fact, in November 1984 one meeting was held to inform the employees of a com- pany layoff that was to take place because there was not enough work for the whole complement, and a number of employees were in fact laid off then. The speakers also told the employees a number of times that they were not working properly, and that they were neglecting their responsibilities as paid workmen. A bone of contention was "re-work," meaning that at times too many mistakes were made and work had to be done over again, with a loss to the Company. Often the speak- ers prepared charts illustrating the ups and downs of the business, both of the total amount of work performed and the amount of re-work that had to be done. There is no allegation of any impropriety in the Company holding these meetings, and telling the employees of the econom- ic problems, or of the worsening of its total amount of work available. Sometimes the employees were even complimented on their work performance. Indeed, at one of the meetings profit-sharing checks were distributed to all, as also had been done in the past. The sole question raised by the complaint in this entire case is: "Did the speakers also threaten that if the employees kept bringing "labor problems" to the Port Carbon city plant it would be closed in retaliation?" Six employees, testifying for the General Counsel, quoted three agents of the Company-Richard Horton, Avon Fuller, and Jack Miller-as having said at various of the many meetings held, that "labor problems" would result in plant closure. In the light of the admissions by the Respondent's witnesses and documentary evidence, there is no point in repeating in detail the minutia of the Government witnesses. Fuller, the Company's vice president, said he delivered a prepared talk to the employees of both plants in mid- October 1984. To prove what he said, he offered into evidence a document said to show exactly what he said. The statement starts with complimenting the employees at both plants for their 1984 performance. Then came the following, from the document in evidence: "The progress of this plant could have been even better if we could have avoided the labor problems at the beginning of the year." The party stipulated that on 26 and 27 January 1984, an election was held by the Board on a petition filed by the Charging Party here. The Union lost. There is no criticism in Fuller's talk to the employees in October of their work performance at all. What "labor problems" was he talking about? It had to be the organizational campaign that had led to that election "at the beginning of the year." There is no escaping that conclusion. Fur- ther, Fuller gave a talk to the Independence plant em- ployees at the same time, and he placed into evidence the prepared statement he said he used there. While in other respects the two documents are substantially the same, there is no reference to "labor problems" in the In- dependence talk. I find that the Respondent's vice presi- dent that day intended that the employees should under- stand that by the phrase "labor problems" he meant or- ganizational activity on behalf of Local 115, the Charg- ing Union here. Again, the parties stipulated that on 16 January 1985, the Union filed another petition with the Board for an election, which in fact was held on 7 and 8 March. Of course the authorization cards necessary for that petition were solicited and obtained before 16 January. On 7 Jan- uary Horton, the plant manager, posted a notice to all employees of the Port Carbon plant. It contains the fol- lowing statements: As you know, we had union cards being handed out today. I believe that many of you felt the same as I did about that, "not again." With our company struggling to keep our head above water, we do not need potential labor prob- lems which tells our customers to consider another source. Please give it your utmost consideration before signing any cards. Think of what has been accom- plished in just the last year. This was the plant manager himself, in the face of his contrary contention later at the hearing, explicitly saying that the signing of union cards was the precise equivalent POTTSVILLE BLEACHING CO. of "labor problems" to the Company. There therefore is no need to belabor the point further here. When Horton spoke of "labor problems" to the employees at any meet- ing he meant prounion activities and nothing else. Finally, again from Horton's testimony: Q. He's asking you what was said at that meeting A. THE WITNESS: Okay. Was that we have to eliminate re-works, that we cannot have labor prob- lems in order to survive. And if we were going to survive, we have to work together as a team and get the job done. We cannot have labor problems. Horton also admitted that when speaking to the em- ployees and explaining what he wanted of them, he did say shat unless they did as he asked, "we can kiss it goodbye and we will have the doors closed. I have said that many times. Not `kiss it goodbye,' but the doors will close if we don't do our job. And I always continued with that saying and I'm in the same boat as all of you." Again from his testimony: Q. Now, I believe you testified that you have used the word-words, "labor problems," in various speeches to employees; is that correct? A. Yes. Q. Mr. Horton, I believe you said first that you had used the term, "kiss it goodbye," and then you said you hadn't used the term "kiss it goodbye." Can you tell me whether or not you did in fact use that in conjunction with labor problems? A. I said in reference to the meeting that was held down in the cold room that I did say that. I didn't say that in other meetings. I said it then. There is diversified testimony about what was said by this or that supervisor at this or that meeting. There were many meetings and the employee witnesses admit- ted they could not really remember precisely everything that was said at each and every meeting. But, with the supervisors admitting they talked about labor problems and the possibility of closing the plant, the slight var- iances in their stories are therefore of no significant moment. Based on the admissions of the Respondent's witnesses, the violations of Section 8(a)(1) fo the Act are clear, and I so find. Two of the six employee witnesses specifically recalled ]Fuller saying "outside labor problems" at two of the meetings. Five of them recalled Horton also using the word "outside" when mentioning labor problems, some of them at more than one meeting. Fuller and Horton denied using that word. I do not credit their denials. As already explained, they were referring to the union activ- ity, normally referred to as activities outside the working place. It is logical to believe they would refer to it as "outside" of the Company's interest, since the speakers intended the employees to understand, however oblique the words they used, that they meant outside activities, I must credit the employees on this minor question. But this precise question, much litigated at the hearing and long argued in the briefs, is really not an important 991 issue in the case. One of the employee witnesses, Bu- chinski, even quoted Horton as saying„ at,a mid-October meeting, that he wanted no "outside union labor prob- lems." Horton denied ever using the word "union" in any of his many talks about labor problems. It,is quite possible he did not, for the record as a whole shows clearly the technique used by the Company was to threaten the employees with plant closure but in such a way as to make it sound as though it were not an unfair labor practice. It is not necessary to resolve such infini- tesimal questions in a case of this kind. The threat to close was there, repeated time and time again, especially during the very days before the election. The unfair labor practice is clear and it must cease. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor problems burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAw 1. By threatening to close its plant in retaliation for the employees' union activities, the Respondent had violated and is violating Section 8(a)(1) of the Act. 2. The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 ORDER The Respondent, Pottsville Bleaching and Dyeing Company, Port Carbon, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening to close its plant in retaliation for the employees' union activities, directly or indirectly. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise and their rights to self-organization, to form, join or assist Teamsters Union, Local No. 115, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehou- semen and Helpers of America, or any other labor orga- nization, to bargain collectively through representatives of their own choosing, and to engage in concerted activi- ties for the purposes of collective bargaining or other mutual aid or protection as guaranted in Section 7 of the Act, or to refrain from any and all such activities. 2 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions , and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its place of business in Port Carbon, Penn- sylvania, copies of the attached notice marked "Appen- dix."3 Copies of the notice, on forms provided by the Regional Director for Region 4, 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 cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, 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 Re- spondent has taken to comply. 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 or- dered us to post and abide by this notice. WE WILL NOT threaten, directly or indirectly, to close our Port Carbon city plant in order to coerce our em- ployees away from protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization guaranteed in Section 7 of the Act. a 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 Nation- al 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 " POTTSVILLE BLEACHING AND DYEING COMPANY