Sdc Investment, Inc.

SDC INVESTMENT 131 SDC Investment, Inc. and Butchers' Union Local No. 498, United Food & Commercial Workers International Union, AFL-CIO-CLC. 1 Cases 20-CA-19782 and 20-RC-15319 5 June 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 23 September 1986 Administrative Law Judge David G. Heilbrun issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed an an- swering brief. 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, 2 and conclusions and to adopt the recommended Order.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law The name of the Union appears as set forth in the complaint 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established pohcy 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 In adopting the judge's finding that the Respondent violated Sec 8(a)(1) of the Act by threats made in posted antiunion signs, we correct his erroneous finding that no agent of the Respondent claimed responsi- bility for the signs. Contrary to the judge's findings, the record indicates that Breen, the Respondent's presideni, admitted that the Respondent prepared the plant closure and loss of benefits signs In view of that admission and because the loss of jobs sign is merely cumulative to the threats made in the signs for which the Respondent has admitted responsibility, we find it unnecessary to pass on the judge's ra- tionale based on the Respondent's "constructive" use of signs The Respondent contends that the judge erroneously refused to admit the printed Spanish version of the speech on the grounds that it was im- proper to create a bilingual record. Assuming arguendo that exclusion on that ground would be an error, exclusion is proper because the Respond- ent neither presented testimony nor made an offer of proof that the Span- ish text contained exact translations of the critical words in the English language speech delivered by President Breen On the basis of the evi- dence of record, we find that the judge properly relied on Pena's cred- ited, uncontradicted testimony concerning the Spanish version of the speech delivered by Sanchez. Member Babson finds, regarding the evidentiary problems raised by the Respondent at the hearing and in its exceptions, that the alleged threats made in the speech are merely cumulative to the threats made in the signs and therefore it is unnecessary to pass on whether the Respond- ent's speech violated Sec. 8(a)(1) 3 In par. 1(d) of his recommended Order, the judge used the broad cease-and-desist language "in any other manner." However, we have considered this case in light of the standards set forth m Hicktnott Foods, 242 NLRB 1357 (1979), and have concluded that the narrow cease-and- desist language "in any like or related manner" is appropriate We shall modify the judge's recommended Order accordingly judge as modified below and orders that the Re- spondent, SDC Investment, Inc., Dixon, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following paragraph 1(d). "(d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the attached notice for that of the administrative law judge. 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT threaten you with loss of pay, benefits, and plant closure if Butchers' Union Local No. 498, United Food and Commercial Workers International Union, AFL-CIO-CLC becomes your collective-bargaining representative. WE WILL NOT promise you wage increases if you vote against the Union. WE WILL NOT threaten to withhold future wage increases from you because of the Union which, in the ordinary course of business, would have been granted at various future times. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. SDC INVESTMENT, INC. Jolane A. Findley, Esq., for the General Counsel. Charles E. Sykes and Roxella T Cavazos, Esqs. (Bruckner & Sykes), of Houston, Texas, for the Respondent. David A. Rosenfeld, Esq. (Van Bourg, Weinberg, Roger & Rosenfeld), of San Francisco, California, for the Charg- ing Party. 284 NLRB No. 14 132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge. These consolidated cases were tried at Sacramento, Cali- fornia, 15 July 1986. The charge was filed by Butchers' Union Local 498, United Food and Commercial Workers (the Union) 17 July 1985, and the complaint was issued 30 August 1985, with a later order consolidating cases and referring the representation case to the Board. The primary issues are whether SDC Investment, Inc. (Respondent) threatened, restrained, and coerced em- ployees concerning an ultimate plant closing and a cur- rent handling of wage increases if they should vote in the Union, thus violating Section 8(a)(1) of the Act and, relatedly, whether the Union's parallel objections to con- duct affecting outcome of a secret-ballot election held 12 April 1985 m regard to posted signs, utterances of super- visory agents, and promised wage increases are estab- lished from the evidence. On the entire record, 1 including my observation of the demeanor of witnesses, and after consideration of briefs filed by the General Counsel and the Employer, plus an oral summation made on behalf of the Union before con- cluding the hearing, I make the following FINDINGS OF FACT I. JURISDICTION Respondent is a California corporation with an office and place of business in Dixon, California, where it en- gages in wholesaling slaughtered sheep. In the course and conduct of such business operations, Respondent an- nually purchases and receives products, goods, and mate- rials at its Dixon, California facility valued in excess of $50,000 directly from points located outside California. On these admitted facts, I find that Respondent is, and at all material times has been, an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Basis of Analysis The Union originally filed a representation petition in 1981 covering this standard production and maintenance unit of the slaughterhouse industry. It resulted in an NLRB-supervised election in 1982 that was later set aside by the Board based on objectionable conduct by the Union. Pursuant to this action, a Decision and Direc- tion of Second Election dated 28 February 1985 led to the rerun on 12 April 1985 to which this consolidated case pertains.2 1 The numerous minor errors in the transcript of this case do not gen- erally distort essentil accuracy of what transpired at the hearing, either as an individual matt r or in the aggregate However, the importance of certain credibility resolutions is so vital to fundamental holdings in the case that I correct the transcript at one particular point on p. 175 by changing the second "now" to "no" in L 13 Also, unrelatedly, but to preclude an awkward ambiguity, I correct the transcript on p 197, L 6 by changing "Mr Rosenfeld" to "Mr Sykes" 2 All dates are in 1985 unless otherwise indicated On both 10 and 11 April certain signs were observed on plant premises. One by an exit showed an industrial building behind a chain link fence with accompanying words, "Vote for the Union—plant closed." A second sign posted just outside the breakroom used randomly by both employees and supervisors read, "Vote for the Union, lose your job." The third sign appeared on these dates inside the breakroom and read, "Vote for the Union, lose your benefits" plus an integral graphic. This depicted a company checkstub as torn into four pieces with labeling arrows naming each portion for endan- gered wages or common fringe benefits of employment. No agent of Respondent admitted to posting such signs, nor objecting to their removal by anyone of opposite sentiments. On the contrary, the posting of rebuttal signs was even authorized. In fact, a few signs in support of the Union had also appeared around the plant on 10 and 11 April, however, these disappeared quickly by means unknown. This contrasted with the antiunion signs that remained undisturbed for most of the 2 days. About midday on 11 April a first-line supervisor was seen car- rying away the large antiunion sign that had hung out- side the breakroom entrance. On 11 April, shortly before commencement of the 24- hour insulated period required under Peerless Plywood Co., 107 NLRB 427 (1953), Respondent's president, Dennis Breen, conducted a meeting with all employees. He was accompanied by Assistant Quality Control Man- ager Weldon Sanchez. Numerous employees were known to be Spanish speaking and Sanchez was present to interpret Breen's remarks. Breen spoke from a short text prepared by Respondent's labor counsel. This docu- ment had been translated into a Spanish version and prior to the meeting Breen and Sanchez practiced to- gether from their respective texts. At the actual meeting Breen spoke from memory of its contents, although there is contradictory testimony whether Sanchez did the same or used the Spanish version as an aid to his translation. The English-language version is an antiunion script, with principal emphasis on what employees "may," "will," or "could" lose if they voted to have a collective-bargain- ing representative. The potential losses were itemized as union dues outlays for sure, possible insurance costs, pos- sible wage cuts, or loss of benefits in bargaining, and, conceivably, loss of the whole paycheck because of strikes. Breen animated his remarks by thrice tearing a company paycheck and discarding the fragments to rep- resent union dues, insurance costs, bargaining givebacks, and strike losses, respectively. Breen's rehearsed remarks in English mirrored the text, and he segmented his talk to allow near-simultaneous translation into Spanish by Sanchez. Spanish-speaking former employee Randy Pena testified that the spoken utterances he heard from San- chez meant that employees would lose in the several ways alluded to by Breen and highlighted by his sequen- tial tearing away of the paycheck. On occasions both before and after the election Pena had spoken with Assistant Foreman Jim Vespermann, an admitted supervisor. Pena testified that shortly before 12 April he conversed in the foremen's office with Vesper- mann, who told him that employees would get normal SDC INVESTMENT 133 raises only if the Union lost the election. On Monday fol- lowing the election, Pena again spoke to Vespermann as the two sat together having coffee in the foremen's office. Pena testified that to his inquiry about raises Ve- spermann then said there was a chance they would not be given because of a waiting period after the election that could extend for months. B. Analysis 1. Language matters Many of Respondent's approximately 100 employees are only Spanish speaking. Sanchez has a lifetime fluency in both English and Spanish. After his several rehearsals of the 12 April speech with Breen he made minor hand- printed changes on the Spanish-language copy. Sanchez testified that he had actually held the Spanish-language text throughout this assembled meeting of employees and followed it without deviation in the course of conveying Breen's complete remarks by intermittent interpretation of each part. Pena is fluent in Spanish conversation, but can neither read nor write the language. He attended elementary and high schools in California, and considers English his "first language." Pena associates a competence in Span- ish to exclusive use of that language by his in-laws. Pena specifically asserted in his testimony that, although Breen mentioned plant closure and loss of benefits as possibili- ties that could happen, the separate translation by San- chez conveyed a meaning that these consequences would happen on advent of the Union. 2. Credibility For decisional purposes I credit Pena in critical re- gards over Respondent's several witnesses. I add that Pena did not impress me as being totally accurate in the various areas he was called on to recall. His description of the conversations with Vespermann was fuzzy as to precise words that would constitute either promising or withholding wage raises in terms of the Union. There were also indications of too glib, stilted, or coached a manner of testimony, as when Pena anticipated the in- complete question causing him to volunteer Vesper- mann's name. (Tr. 35.) I believe he is simply mistaken when claiming that Breen mentioned having worked at several now-closed meatpacking plants during the speech of 11 April and similarly so about whether Sanchez re- tained a prompting copy of his translation text on the same occasion. 3 Despite these infirmities, and admitted fatigue on the day of hearing, I am convinced that Pena, among the various witnesses, has most reliably recounted the truth where significant contradiction exists. Breen's testimony does not require a direct credibility assessment, nor does Sanchez', because Respondent de- 3 Conversely, I believe both Breen and Sanchez have falsely denied that Pena attempted to present questions immediately after the meeting ended on 11 April Pena's claim was Inherently sincere sounding, and I observe that, as the Union's known chief advocate, he would ordinarily have been looked to for immediate adversarial challenge. Pena was open and vocal enough to chant aloud while on duty in drumming up support for the Union, and this trait was most likely to manifest before such an audience and a.1 a last clear chance for electioneering dined the opportunity to advance his testimony of any meaning conveyed by his Spanish interpretation on 11 April in reference to the predictability of what employ- ees might lose by voting in the Union. Respondent's po- sition on the point is fully preserved in the record, it suf- ficing to note only the contention that its rejected Exhib- it 1 would show vindication. Concerning Vespermann, I simply discredit denials he made concerning the subject of wage increases as discussed between him and Pena during early April. Vespermann was quite biased, and al- though this factor alone does not automatically denote unreliability of testimony, I am persuaded from overall demeanor to reject his versions of allegedly unlawful re- marks. 3. Holding It is established that as a feature of Respondent's cam- paign against the Union, substantial portions of which were protected under Section 8(c), a principal theme concerned potential adversity were the employees to choose union representation. This manifested in showing employees a videotape to that effect and in general use of graphics as with a closed plant poster admittedly dis- played at the entrance to Respondent's facility. The signs described by Pena could not be directly associated to action by Respondent's agents nor were they immune from removal by anyone. However, the content and du- ration of posting was such that their existence was intrin- sically unlawful. The visibility of this placement and direct association of an election victory by the Union with unconditional job adversity required either some ef- fective action at suppression by the employer or an effec- tively communicated repudiation of the message. Having done neither, even in the face of Pena's requests about the situation, Respondent has constructively used these postings as a means of threatening loss of pay, jobs, bene- fits, and a plant in which to work should the Union be voted in. See Taylor-Dunn Mfg. Co., 252 NLRB 799 (1980). Cf. Frates, Inc., 230 NLRB 952 (1977). The configuration of Breen not understanding spoken Spanish, Sanchez not being called on to testify in English about the essential meaning of his interpreted utterances, and Pena having credibly testified that he is sufficiently capable of understanding ordinary Spanish-language con- versation that in this instance assured plant closure and loss of benefits for choosing the Union, leads necessarily to finding this as an independent violation of Section 8(a)(1) by Respondent. There is simply no contradiction to Pena's testimony. Respondent failed to appropriately present Sanchez' impliedly different version and there was no attempt to call any other Spanish-speaking person also present on 11 April during Breen's speech. Respond- ent's limited contention that the Government was obliged to provide a court interpreter for the hearing is fallacious because Sanchez himself is adequately fluent in English to have addressed the issue directly by his testi- mony. On the final allegation of the complaint, I find that Pena's credible version of what he was told by Vesper- mann constitutes unlawful promise of wage raises should the Union lose and unlawful statements that wage raises 134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD would be withheld into the future because it did lose. Kut Rate Kid & Shop Kwik, 246 NLRB 106 (1979). III. REPRESENTATION PROCEEDING The Union's objections to conduct affecting outcome of an election were ruled on in a Second Supplemental Decision and notice of hearing dated 21 May 1985. As later corrected, Objections 2, 6, 7, and 8 were ordered resolved by a hearing and the remainder were overruled. These surviving objections essentially parallel the 8(a)(1) conduct of which Respondent is accused. Because merit is completely found in such allegations, Objections 2, 6, 7, and 8 are sustained on the basis of probative evidence in the case taken as a whole. Dal-Tex Optical Co., 137 NLRB 1782 (1962). This is in accord with the Board's usual policy of directing a new election whenever unfair labor practices occur during the critical period because "[c]onduct violative of Section 8(a)(1) is, a fortiori, con- duct which interferes with the exercise of a free and un- trammeled choice in an election." Dal-Tex at 1786. The only recognized exception to this policy is discussed in Super Thrift Markets, 233 NLRB 409 (1977), when it is virtually impossible to conclude that such conduct could have affected results of the election based on a consider- ation of "the number of violations, their severity, the extent of dissemination, the size of the unit, and other relevant factors." Here the extended display of antiunion signs, coupled with Breen's speech to the entire assem- bled work force, ioth being instances that referred to the ultimate in employment adversity, clearly warrants set- ting aside the second election. CONCLUSIONS OF LAW4 1. The Respondent, SDC Investment, Inc., is an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Butchers' Union Local 498, United Food and Com- mercial Workers is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By threatening employees with loss of pay, benefits, and plant closure if the Union became their collective- bargaining representative, Respondent violated Section 8(a)(1). 4. By promising employees wage increases for the pur- pose of inducing them not to vote for the Union, Re- spondent violated Section 8(a)(1). 5.By threatening employees with a withholding of any future wage increases for an indefinite period because of the Union, Respondent violated Section 8(a)(1). 4 I do not rely on G C. Exh lc in any holding made This document was a charge against the Employer emanating from the office of its own labor counsel with an accompanying unequivocal statement that the charge was lodged only in tactical preservation of rights. I consider it evidence and not a mere pleading, but find that its claimed value as an admission has been fully neutralized both as a matter of content and con- text. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed5 ORDER The Respondent, SDC Investment, Inc., Dixon, Cali- fornia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees with loss of pay, benefits, and plant closure if the Union becomes their collective- bargaining representative, (b) Promising employees wage increases for the pur- pose of inducing them not to vote for the Union. (c) Threatening employees with a withholding of any future wage increases for an indefmite period because of the Union. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at Dixon, California facility, copies of the at- tached notice marked "Appendix." Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent's authorized representative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. ? Reasonable steps shall be taken by the Respondent to ensure that the 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 the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that the second election of 12 April 1985 be set aside and a new election conduct- ed at such time and under such circumstances as the Re- gional Director shall deem appropriate. 5 If no exceptions are filed as provided by See 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 tnem shall be deemed waived for all pur- poses 6 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" 7 In view of the number of Respondent's employees who are Spanish speaking, the notice to be posted shall be in Spanish as well as English. See Sun World, 271 NLRB 49 (1984) - r 600 )la. Cracraft (2) 610 S. Hodge 670 H. Moton 729 N. Come 1073 , , ,