Colson Equipment, Inc.

COLSON EQUIPMENT 871 Colson Equipment, Inc. and International Union, United Automobile, Aerospace and Argicultural Implement Workers of America (UAW). Case 14-CA-20197 September 27, 1990 DECISION AND ORDER BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT Upon a charge filed July 14, 1989, by the Union, the General Counsel of the National Labor Rela- tions Board by the Acting Regional Director for Region 14 issued a complaint and notice of hearing dated August 28, 1989, alleging that the Respond- ent engaged in certain unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Na- tional Labor Relations Act On January 2, 1990, the Respondent, the Charg- ing Party, and the General Counsel entered into a stipulation of facts and jointly petitioned to transfer this proceeding directly to the Board for findings of fact, conclusions of law, and the issuance of a Decision and Order The parties agreed that the charge, the answer as modified by the stipulated record, and the stipulated record constitute the entire record in this case, and that no oral testimo- ny was necessary or desired by any of the parties 1 The parties waived a hearing before an administra- tive law judge, and the issuance of an administra- tive law judge's decision On Apnl 5, 1990, the Board issued its order ap- proving the stipulation and transferring the pro- ceeding to the Board Thereafter, the General Counsel, the Charging Party, and the Respondent filed briefs The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the entire record as stipulated by the parties, as well as the briefs, and makes the following FINDINGS OF FACT I JURISDICTION Colson Equipment, Inc, the Respondent, is a Delaware corporation with an office and place of business in the city of Caruthersville, Missouri, and has at all material tames been engaged in the manu- facture and nonretail sale of wheelchairs and relat- ed hospital equipment During the 12-month period ending June 30, 1989,...the Respondent in the course of its operations sold and shipped from it Caruth- The stipulation was read Into the record before Administrative Law Judge Robert W Leiner on October 25, 1989 ersville, Missouri facility products, goods, and ma- terials valued in excess of $50,000, directly to points located outside the State of Missouri The parties stipulate, and we find, that the Respondent is now, and at all material times has been, an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act The parties stipulated, and we find, that the Umon is now, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act The parties also stipulated that the Respondent's general manager, Brad Enslm, is a su- pervisor within the meaning of Section 2(11) of the Act II ALLEGED UNFAIR LABOR PRACTICES A Facts On April 13, 1989, 2 the Union filed a representa- tion petition seeking to represent a unit of all pro- duction and maintenance employees employed by the Respondent at its Caruthersville, Missouri facil- ity, excluding office and production control clerical employees, professional employees, guards, and su- pervisors as defined in the Act This unit was stipu- lated by the parties to be an appropriate unit On May 8, a Stipulated Election Agreement was ap- proved by the Regional Director of Region 14 and a representation election was held at the Respond- ent's facility on June 1 After receiving a majority of the ballots cast, the Union was certified on June 12 as the exclusive bargaining representative of the unit employees Since then the Union has been, and is, the exclusive bargaining representative of the unit employees for purposes of collective bargain- ing with respect to rates of pay, wages, hours of employment, and other terms and conditions of em- ployment About June 6, at least one bargaining unit em- ployee approached General Manager Enslin and asked if there was a "right to work" law in the city of Caruthersville, Missoun Enslm replied that he did not know, but he would check On June 8, Enslm posted an ordinance entitled, "An Ordi- nance Adopting a Procedure Relative to Human Rights and Employment Practices" Certain por- tions of the ordinance were highlighted Also posted was a memorandum from the Respondent stating "[P]lease note that I was asked today whether there is a Right to Work law in Caruthers- ville This ordinance e, city law) does exist and is 'on the books' Please note I've posted it below for your information" The ordinance in pertinent part states 2 All dates are 1989 unless otherwise stated 299 NLRB No 115 872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD SECTION 2 PUBLIC POLICY—It is hereby declared to be the public policy of the City of Caruthersville in order to maxi- mize individual freedom of choice in the pur- suit of employment and to encourage an em- ployment climate conducive to economic growth, that the right to work shall not be subject to undue restraint or coercion The nght to work shall not be infringed or restrict- ed in any way based on membership in, affili- ation with, or financial support of a labor or- ganization or on refusal to join, affiliate with, or financially or otherwise support a labor or- ganization SECTION 4 PENALTY—Any person who violates any provision of the city of Car- uthersville Human Rights Employment Prac- tices Ordinance shall be subject to a fine of $10000 per day, such fines to be assessed on a daily basis until the person ceases the viola- tion In addition [t]he City of Caruthers- vine attorney is authorized to seek injunctive relief against any and all violators of the Ordinance SECTION 5 CERTAIN AGREEMENTS OF LAW ILLEGAL—Any agreement, un- derstanding or practice, written or oral, im- plied or expressed, between any labor organi- zation and employer which violates the rights of employees as guaranteed by the provisions of the [Ordinance] is hereby declared unlaw- ful, null and void, and of no legal effect Any strike, picketing, boycott, or other action by a labor organization for the sole purpose of in- ducing or attempting to induce an employer to enter into any agreement as prohibited by [the Ordinance] is hereby declared to be for an ille- gal purpose SECTION 6 INTIMIDATION—It shall be unlawful for any person, labor organization, or officer, agent or member thereof, or employer, or officer or agent thereof, by any threatened or actual intimidation of any employee or pro- spective employee to compel or attempt to compel such employee to join, affiliate with, or financially support a labor organiza- tion or to refrain from doing so, or to other- wise forfeit his rights as guaranteed by [the Ordinance] SECTION 7 CIVIL REMEDIES—Any person, employee injured as a result of any violation or threatened violation of [the Ordi- nance] shall be entitled to injunctive relief and may also recover any and all damages of any character resulting from such violation or threatened violation On June 9, employee Betty McCann, the chair- person of the Union's organizing campaign and ne- gotiating team, spoke with Enshn regarding the posted ordinance McCann asked Enslm, in front of the bulletin board where the ordinance and memo- randum were posted, if he knew that the ordinance was against the law and that it could not overrule state law Enslm replied that the ordmance was on the books and as long as it is on the books it is a law Enslm also stated that McCann could go to the city hall and get a copy of the ordinance her- self, and that the ordinance was the law now and a way to challenge it was to take the city to court McCann subsequently secured a copy of the or- dinance from city hall and sent it to the Union On July 14, Morns J Levin; the Union's attorney, filed the instant unfair labor practice charge on behalf of the Union against the Respondent and forwarded a copy of the charge to Enslm On July 17, Levin sent Enslm a letter advising him that he had ne- glected to mclude in his previous letter copies of two opmions of the attorney general of the State of Missouri, rendered on July 28, 1986, and March 11, 1987, respectively, addressing the issue of whether cities could enact "right to work" laws, and that he was enclosing the opinions 3 The State's attorney general's 1986 opinion dealt with the question of whether statutory class cities and noncharter counties, including, mter aim, the city of Caruthersville, could enact "right to work" ordinances prohibiting employee discrimination based on support or membership in a union The opinion concluded that local "right to work" ordi- nances were preempted by the National Labor Re- lations Act if the employer's business related to interstate commerce The opinion stated that al- though Congress allowed for varying policies relat- ing to union-security agreements at the state level, this did not permit the State's political subdivisions to legislate m the field because it affects interstate commerce The opinion further stated that statuto- ry class cities and noncharter counties have only those powers expressly granted to them and those powers essential to the municipality Because there is no Missouri state law authonzmg statutory class cities and noncharter counties to enact "right to work" laws, ordinances relating to these issues may not be enacted by these local bodies The 1987 opinion dealing with the charter form of government, basically explored the same issue 3 The 1986 opinion was sent to Patrick Hickney, a state representative in Bridgetown, Missouri The 1987 opinion was unofficial because it was sent to a former Missouri representative no longer in office COLSON EQUIPMENT 873 and expanded the rationale for the conclusion that local governmental bodies may not enact "right to work" ordinances The opinion noted that Missouri has no "nght to work" law and discusses a Missou- ri State Supreme Court decision, Independent Stave Co v Higdon, 572 S W 2d 424 (Mo 1978) (en bane), holdmg that article 1 of the Missouri Consti- tution was not a "right to work" law This opinion stated, as did the 1986 opinion, that Congress pro- vided that union-security provisions were valid unless the State has a law prohibiting such agree- ments The opinion noted that after the Independent Stave decision the Missouri voters defeated a pro- posed "nght to work" bill It concluded that be- cause Missouri has no "right to work" law and be- cause Congress has foreclosed all but States from passing such legislation, a local municipality cannot pass a "right to work" law if it deals with an em- ployer engaged in interstate commerce The Respondent admitted receiving the Union's letter containing the two opinions of the State's at- torney general The Respondent has continued to post a copy of the ordinance and memorandum on the bulletin board About June 25, the employees posted on the em- ployee bulletin board a copy of a newspaper article entitled "RTWers trying to pull a fast one in Boothel " The article stated that the ordinance was illegal and mentioned the 1986 opinion of the State's attorney general discussed above The arti- cle also stated that the Union's attorney had coun- seled the Union that bargaining should proceed as usual including an effort to get a union shop The parties stipulated that there are other em- ployers within the city of Caruthersville which have collective-bargaining agreements with unions containing union-security agreements providing for union membership on or after their 30th day of em- ployment, or on the effective date of the collective- bargaining agreement as provided in Section 8(a)(3) of the National Labor Relations Act These collec- tive-bargaining agreements containing union-securi- ty clauses have been in effect at all times since the passage of the ordinance by the city of Caruthers- yule No injunctive relief or other civil remedies have been brought against these employers or labor organizations as a result of their having union-secu- rity clauses in their contracts The Respondent has not expressly advised the Union that it would not negotiate a collective-bar- gaining agreement containing a union-security clause, and the Respondent has stated during nego- tiations that union security is a mandatory subject of bargaining and is negotiable The Respondent and the Union commenced negotiations on August 22 On that date the Union made its proposal in- cludmg, inter aim a union-security provision On October 17, the Respondent's counterproposal on this subject was that employees were free to become or not to become members of a union The parties, as of the date of the stipulation, were con- tinuing to bargain, but had not agreed to a collec- tive-bargaining agreement The parties stipulated that they are not aware of any judicial decision in the State of Missouri deal- ing with the validity or constitutionality of a local- ly passed "right to work" ordinance B Discussion The issue here is whether the Respondent by posting the city ordinance and the memorandum on its bulletin board, as well as by the conversation between Enslm and McCann, engaged in an antici- patory refusal to bargain in good faith with the Union regarding union security in violation of Sec- tion 8(a)(1) and (5) The General Counsel contends that the posting of the ordinance and memorandum, as well as ad- vising the Union that the Respondent would abide by the ordinance, constitutes an anticipatory refusal to bargain in good faith regardmg union security The General Counsel argues that the Respondent continued to unlawfully post the ordinance even after being advised by employee McCann that the ordinance was invalid and after receiving the opin- ions of the State's attorney general Although the General Counsel concedes that the Respondent is under no obligation to agree to union security, he urges that the Respondents posting of an ordinance known to be invalid, and then cloaking itself with that ordinance to prevent meaningful bargaining, demonstrates the Respondent's bad-faith conduct The Charging Party, in agreement with the Gener- al Counsel, argues that the ordinance is illegal be- cause Congress has foreclosed and preempted all except the States from enacting "right to work" legislation The Respondent, on the other hand, contends that the Act does not prohibit the posting of a valid law in response to a question by an em- ployee regarding the existence of such a law, that the Respondent never relied on the existence of the ordinance during negotiations, and that there was no evidence that the Respondent was not willing to bargain in good faith regarding union security We agree with the Respondent The Board has found that employer statements away from the bargaining table indicating that the employer is not willing to negotiate either at all or regarding specific proposals may amount to an urn- lawful anticipatory refusal to bargain For example, in El Rancho Market, 235 NLRB 468, 472 (1978), the Board found unlawful as an anticipatory refusal 874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to bargain a statement by the employer that if the unions were successful in the elections, the employ- er would not reach or execute collective-bargain- ing agreements with them The Board stated Although the Act does not compel an em- ployer to agree to any specific proposals made by a bargaining agent, and an employer is free to so inform employees, an employer's an- nouncement to employees of its disinclination in advance to agree to any bargaining propos- als or to reach any overall agreement with the bargaining agent stands on an entirely different footing The Board has long recognized that statements of this latter kind amount to an an- ticipatory refusal to bargain and inculcate in employees a sense of futility about the exercise of free choice in selecting a representative for collective bargaining We find that the circumstances here do not war- rant a finding that the Respondent's actions reflect- ed an unwillingness to engage in good-faith bar- gaining regarding union security The ordinance was posted in response to a question by an employ- ee The memorandum accompanying the ordinance did nothing more than inform the employees that the ordinance did exist and that it was being posted in response to an inquiry There was no comment on the contents of the ordinance or suggestion that the Respondent was in any way relying on the or- dinance in support of its bargaining stance regard- ing union security These postings are thus insuffi- cient to constitute a message to the employees that the Respondent would not bargain in a good-faith effort to reach agreement regarding union security We also find McCann's conversation with Enslm insufficient to suggest that the contents of the ordi- nance would guide the Respondent's actions at ne- gotiations In response to McCann's comment that the ordinance was illegal, Enslm merely stated that the ordinance is on the books, is a law, and the way to challenge it was to take the city to court Enslm did not state that the Respondent was gomg to abide by the ordinance and did not comment on whether the ordinance was valid We also find that the Respondent was not obli- gated to remove the notice because of the views rendered by the State's attorney general These opinions constitute no more than advisory opinions and do not resolve the controversy regarding the legality of the ordinance Moreover, the fact that the Respondent informed the employees of the or- dinance's existence did not oblige the Respondent to then become involved in a debate over the va- lidity of the ordinance If the Union wanted to inform the employees of the existence of these opinions, it was not precluded from presenting and making the opinions accessible to the employees Indeed, the Union did post on the employee bullet- mg board on June 25 a copy of a newspaper article which stated the Union's position regarding the le- gality of the ordinance and the views set forth in the State's attorney general's opinion Finally, there is no evidence that at the time the parties commenced negotiations the Respondent in- tended to rely on the contents of the ordinance To the contrary, the parties had commenced negotia- tions on the subject of union security and the Re- spondent had told the Union that it was aware that union security was a mandatory subject of bargain- ing and was negotiable The fact that in negotia- tions the Respondent opposed a union-security clause is insufficient to establish an unlawful refusal to bargain Parties may not be compelled to agree to specific proposals or to reach agreement Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984) Fur- thermore, even when the Respondent presented its proposal regarding union security, it did not invoke the ordinance or any of its provisions 4 Under all the circumstances, we find that the Re- spondent did not engage in an anticipatory refusal to bargain Accordingly, for all the reasons stated above, we find that the Respondent has not violat- ed Section 8(a)(1) and (5) of the Act and we, there- fore, shall order that the complaint be dismissed CONCLUSIONS OF LAW The Respondent did not violate Section 8(a)(1) and (5) of the Act ORDER The complaint is dismissed 4 The facts here are distinguishable from those cases where the Board has found employer conduct to be m derogation of the duty to bargain in good faith In El Rancho Marker, supra at 472, the employer clearly stated that if the unions won the election, the employer would not reach or execute a collective-bargaining agreement In 01411eld Tire Sales, 221 NLRB 1275, 1276-1277 (1975), the Board found that the employer, in ad- dition to committing numerous 8(aX1) violations, failed to bargain in good faith, relying on an employer statement made several weeks after the initial bargaining session that he thought a stnke would result because he did not Intend to recognize the union or negotiate with It There the Board found that the statement shed "considerable light on Re- spondent's attitude toward both bargaining and his prospective relation- ship with the Union" Similarity, In Hedeya Bins, 277 NLRB 942, 945 (1985), the Board found an employer bargained in bad faith based in part on statements by the employer that it would close rather than deal with the union and that it was not going to sign a contract with the union