Larson Tool And Stamping Co.

LARSON TOOL & STAMPING CO. 895 Larson Tool and Stamping Co. and Amalgamated Clothing and Textile Workers Union, AFL- CIO, Petitioner. Case 1-RC-19111 September 29, 1989 DECISION AND DIRECTION OF SECOND ELECTION BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS The National Labor Relations Board, by a three- member panel, has considered objections to an election held August 25, 1988, and the hearing offi- cer's report recommending disposition of them. The election was conducted pursuant to a Stipulat- ed Election Agreement. The tally of ballots shows 53 for and 61 against the Petitioner, with 4 chal- lenged ballots, an insufficient number to affect the results. The Board has reviewed the record in light of the exceptions and briefs filed by both the Employ- er and the Petitioner, and has adopted the hearing officer's findings' and recommendations, and finds that the election must be set aside and a new elec- tion held. Contrary to our dissenting colleague , we agree with the hearing officer that the Employer's pree- lection literature contained impermissible threats of job loss in the event of a strike. That literature in- cluded an August 18, 19882 letter from the Em- ployer's president that stated in pertinent part One of the things . . . [the union organizers] don't want you to know about is the horrible strike record of the Clothing and Textile Workers Union. If this union called you out on an economic strike, you stand to lose a lot. During an eco- nomic strike, you would receive: No wages No unemployment benefits No company paid insurance coverage PLEASE READ THE ENCLOSED NEWS- PAPER ARTICLES. These articles show the truth about this union and its history of strikes. We would never want to see a strike at Larson and we would do everything we could to avoid one. But the truth is that an economic strike is a possibility with this union. During The Petitioner has excepted to some of the hearing officer's credibil- ity findings. The Board's established policy is not to overrule a hearing officer's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Stretch-Tex Co., 118 NLRB 1359, 1361 ( 1957). We find no basis for reversing the findings 2 All dates are 1988 unless otherwise indicated such a strike, you could LOSE YOUR JOB TO A PERMANENT REPLACEMENT. The only way you can be sure that there will be no strike at Larson is to vote NO on Thurs- day, August 25th. We agree with the hearing officer that the state- ment in the August 18 letter that during an eco- nomic strike "you could LOSE YOUR JOB TO A PERMANENT REPLACEMENT" ... may be "fairly understood as a threat of reprisal" within the meaning of Eagle Com- tronics, 263 NLRB at 515-1516 [(1982)]. A ref- erence to loss of employment is not consistent with Laidlaw [Corp., 171 NLRB 1366 ( 1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1969)], which guarantees perma- nently replaced strikers, who have made un- conditional offers to return to work, the right to full reinstatement when positions become available, and to be placed on a preferential hiring list if positions are not available. The employer's right to permanently replace eco- nomic strikers does not "entail an absolute loss of employment for those striking employees who are replaced." Gino Morena, d/b/a Gino Morena Enterprises, 287 NLRB 1327, 1328 (1988). The statement at issue goes significantly beyond statements found in such cases as Eagle Comtronics, supra, and John W. Galbreath & Co., 288 NLRB 876, 877 ( 1988). In those cases, the respective em- ployers did not tell employees , without any expla- nation, that they would lose their jobs as a conse- quence of a strike or permanent replacement.3 But that is expressly and unambiguously what the Em- ployer has done here. The Board's legitimate concern with protecting an employer's right to discuss potentially unfavor- able aspects of unionization does not extend so far as to sanction propaganda that overtly raises the prospect of job loss and leaves employees on their own to divine that the "loss" is somehow less than total because it is conditioned by a right to return to work after the replacement 's departure. Rather, ' In Eagle Comtromcs the Employer told employees only that they could be replaced by applicants on file The Board specifically distin- guished cases where the employers "went beyond informing the employ- ees of the risk of being permanently replaced by telling them they would permanently lose their jobs." (Emphasis in original .) 263 NLRB at 516 fn 8. In Galbreath, the employer spoke in terms of job loss through perma- nent replacement, but added the critical qualification that employees are "not discharged, technically speaking, [b]ut they're not working." 288 NLRB 876, 877. Member Cracraft agrees that the statement goes beyond the statement in Galbreath. However, she does not pass on whether she would have found a violation on that basis in Galbreath. See Galbreath, 288 NLRB 876 fn. 5. 296 NLRB No. 112 896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD our statutory duty to protect employees' free choice in a representation election requires finding that the Employer's unqualified statement about job loss "may fairly be understood as a threat of reprisal."4 As such, it amounts to objectionable conduct that both violates Section 8 (a)(1) of the Act and requires that the election be set aside. [Direction of Section Election omitted from pub- lication.] CHAIRMAN STEPHENS, dissenting. I disagree that Eagle Comtronics, supra, supports setting aside the election and directing that another be held. The Board, in Eagle Comtronics, observed the established legal principle that economic strik- ers are subject to permanent replacement and that an employer's truthful statement informing employ- ees of this consequence of striking has also long been held to be acceptable . The Board drew a basic distinction between a truthful , although in- complete, statement regarding an employer's right to replace economic strikers and statements that may be fairly understood as threats of reprisal, or that are explicitly coupled with such threats. In particular, in that case the Board distinguished the employer's permissible statement from statements that go "beyond informing employees of the risk of being permanently replaced by telling them they would permanently lose their jobs." (Emphasis added and emphasis in original .) Id. at 516, fn. 8. In cases subsequent to Eagle Comtronics, the Board has had to resolve close questions of when an employer may have made such a threat of retali- atory job loss in the context of explaining its re- sponse to possible strike activity . In Gino Morena Enterprises, supra, the Board found that an employ- er made what "may be fairly understood as a threat of reprisal" by combining a reference to the futility of striking with a statement that the employees would not only be out of a job, but would prob- ably lose their jobs if they struck . On the other hand, in John W. Galbreath , supra, the Board made it clear that not all statements about job loss in the event of an economic strike would be declared im- permissible. In that case, the Board found it to be a lawful, incomplete statement of Laidlaw rights for an employer to state to employees that they could lose their jobs as a result of an economic strike. The Board examined the context of this statement (i.e., that the employer had additionally stated that the employees are not discharged, "technically speaking") and found that this context was suffi- cient to dispel any impression that such employees would be absolutely terminated for striking. The precedent is thus clear that only statements about job loss that may be reasonably construed as mean- ing that the loss is absolute will be found to be im- permissible. In the instant case, the Employer informed its employees not that they could lose their jobs in the event of an economic strike, but rather that they risked loss of their jobs "to permanent replace- ments." (Emphasis added.) Because the statement in the Employer's August 18 letter specifically ties job loss to permanent replacements , it falls short of a declaration of absolute job loss or a threat to punish employees for striking. Such a statement is not inconsistent with Laidlaw rights to the extent that replaced economic strikers, in fact, do not have employment rights superior to that of their replacements." Thus I find that the Employer's statement amounts to nothing more than a short- hand explanation of the consequences of an eco- nomic strike and, as such, does not represent objec- tionable conduct. I would therefore certify the re- sults of the election. ' In addition, the Employer did not indicate that an economic strike 4 Eagle Comtronics, supra at 515- 1516. See also Hajoca Corp, 291 and consequent replacement were inevitable Rather , the Employer clear- NLRB 104, 106 (1988). ly stated that "we would do everything we could to avoid" a strike