Amerace Corp.

National Labor Relations Board - Board Decisions

May 7, 1975

217 N.L.R.B. 850 (N.L.R.B. 1975)

850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Amerace Corporation , ESNA Division and Interna-
tional Association of Machinists & Aerospace
Workers, AFL-CIO, Petitioner . Case 26-RC-
4862
May 7, 1975
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
3. A question affecting commerce exists concerning
the representation of certain employees of the Em-
ployer, within the meaning of Sections 9(c)(1) and 2(6)
and (7) of the Act.
4. The following unit, as stipulated by the parties,
constitutes a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b) of
the Act:
BY MEMBERS FANNING, JENKINS, AND KENNEDY
Pursuant to a Stipulation for Certification Upon Con-
sent Election executed on September 5, 1974, an election
by secret ballot was conducted on October 11, 1974,
under the direction and supervision of the Regional
Director for Region 26, among the employees in the
stipulated unit. At the conclusion of the election, the
parties were furnished a tally of ballots which showed
that, of approximately 238 eligible voters, 209 cast
valid ballots, of which 67 were cast for the Petitioner,
142 were cast against the Petitioner, and 17 ballots
were challenged. The challenged ballots were not suffi-
cient in number to affect the results of the election.
Thereafter, the Petitioner filed timely objections to the
election.
In accordance with Section 102.69 of the National
Labor Relations Board Rules and Regulations, Series
8, as amended, the Regional Director conducted an
investigation and on December 2, 1974, issued and duly
served on the parties his Report on Objections, in
which he recommended that Objections 1, 5, 6, 7, and
8(A) be overruled, and that Objections 2, 4, 8(B), and
8(C) raise issues that could best be resolved by a hear-
ing. He also recommended that Objection 3 be sus-
tained and that the election be set aside and a second
election directed. He recommended that a hearing not
be held on Objections 2, 4, 8(B), and 8(C) in view of the
recommendation with respect to Objection 3. There-
after, the Employer filed timely exceptions to the Re-
gionad Director's recommendations that Objection 3 be
sustained.
Pursuant to the provisions of Section, 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the Regional Director's
report, the Employer's exceptions thereto, and the en-
tire record in this case, and makes the following find-
ings:
1. The Employer is engaged in commerce within the
meaning of the Act and it will effectuate the purposes
of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization which
claims to represent certain employees of the Employer.
All production and maintenance employees em-
ployed at Amerace Corporation, ESNA Division
Pocahontas, Arkansas, facility, but excluding all
office clerical employees, professional employees,
technical employees, guards, and supervisors as
defined in the Act,
5. The Board has considered the Regional Director's
report and the Employer's exceptions and brief, and
hereby adopts the Regional Director's findings and
recommendations with respect to Objection 3.
The Regional Director, recommended sustaining Ob-
jection 3 on a series of speeches made to assembled
groups of employees during working time in the critical
period prior to the election.
The testimony of seven witnesses is in agreement that
during the 2 or 3 weeks prior to the election speeches
were made to all employees by company officials
named Bradley, Wivell, and Woit. In addition, some of
the employee witnesses testified that Plant Superin-
tendent Massey also made speeches to employees dur-
ing the critical period.
The Employer admits that Bradley, Wivell, and
Woit delivered prepared speeches to employees in
"captive audience" meetings during the critical period
but denies that Plant Superintendent Massey did so.
Massey does admit that he talked with assembled
groups of employees on three occasions but asserts that
each occasion occurred prior to the filing of the petition
herein. He admits that he discussed the "Blue Book"
which is the Employer's booklet explaining company
policies and benefits. He denies the statement at-
tributed to him during these speeches that the em-
ployees would have to strike to obtain any concessions
from the Employer. In view of the fact that employees'
statements regarding Massey's remarks show that they
are similar to those admittedly made by the other three
employer officials and in view of the findings regarding
those speeches, the Regional Director found it unneces-
sary to resolve the conflict regarding speeches allegedly
made by Massey.
The Employer submitted copies of speeches deliv-
ered by A. J. Bradley, director of industrial relations on
September 20, 1974; by William E. Wivell, a corporate
official on October 1, 1974; and by Erik W. Woit,
president of ESNA on October 9 and 10, 1974.
217 NLRB No. 149
AMERACE CORP., ESNA DIV. 851
In the first speech Mr. Bradley stated that only 6of
21 plants of the Employer are represented by labor
unions. He said, "The majority of our employees have
put their confidence and futures in Amerace to provide
them with good wages, benefits and working conditions
without the fear of strikes and violence hanging over
their heads threatening their livelihoods." He then dis-
cussed his firsthand experience of living under the
threats of strikes and violence by describing a 50-day
strike which occurred at the Employer's plant in
Union, New Jersey. Bradley then told the employees
that a good relationship had existed at that plant in
New Jersey prior to the advent of the Union, Bradley
said, "The flavor of our old family relationship with
our employees has never been recaptured . Perhaps the
three strikes at Union has had something to do with it.
Perhaps the constant bickering over grievances
throughout the years has been a factor. Perhaps the fact
that we became no longer competitive in our industrial
nut line-now being made here at Pocahontas, was a
factor ." Bradley then stated:
You know that we had to make a judgment as
whether we would discontinue the industrial nut
business or try to become competitive by produc-
ing the product elsewhere. Fortunately for you
folks-and for us-the decision was made to relo-
cate in Pocahontas in an attempt to remain com-
petitive . Hundreds of employees in Union were
laid off as a result of this move-and I remind you
that they were covered under a union contract
with all its security clauses, and they no doubt felt
that they were secure and that such a thing could
not happen to them. However, ladies and gentle-
men, it did happen!
The antiunion employees distributed a leaflet which
posed the question, "Do you realize that this Company
can pick up and move as easily or more so than it did
in New Jersey?"
On October 1, Wivell in his speech stated:
I'm certain you'll appreciate that this has not
been an easy year. No matter how well you plan
and anticipate problems - something else can al-
ways go wrong. We have all grown together. We
have tried to solve these problems together. This
attitude of cooperation would not have been possi-
ble if a labor union had been inserted between
management and the employees.
Further in the text the following appears:
Another thing you have heard the Union talk
about is that you have nothing to lose and every-
thing to gain if the Union is voted in. Now let's
examine that statement for a minute . If the Union
should win the election, all it means is that the law
imposes a mutual obligation on the Company and
on the Union to bargain in good faith. This we will
do. But it means nothing more than, that.
The Union can make demands on the Company,
the Company also has the legal right to make
demands on the Union . All of the present existing
benefits that you have, every one of them, are as
much the subject of negotiation in that situation as
are any union - demands for additional benefits.
After further discussion of the possibility that the
Union will trade existing benefits for items such as
superseniority for job stewards, he concludes that para-
graph with the statement:
No one can predict what terms a union contract
will contain . No one can guarantee that with a
union the employees are going to get everything
they have now plus more. The Union makes all
sorts of promises. Their promise is that they can
only hope that the Company will make good. In
other words, they are promising for the Company.
Further, in the printed text of his speech, he referred
to wages, stating:
You should know that the Union positively cannot
force or compel Amerace, or any other employer,
to give unrealistic or uneconomic increases in
wages. The only thing they can do is to take the
employees out on strike, if the negotiations do not
produce the results of what they have already pro-
mised you.
Wivell stated from the text that IAM has one of-the
worst strike records of any union in the United States,
and then remarked, "Who's gonna pay-you pay and
you pay
Wivell next discussed strikes at two of the Em-
ployer's plants this year and concluded by saying:
Nobody's going to win in the case of a strike,
everybody loses. You're going to lose and the
Company's going to lose. Customers go some-
where else, a lot of them never come back.
Wivell concluded his remarks with the statement:
Remember , the only way you have to prevent
ever having to go out on strike and becoming in-
volved with violence will be to vote no union on
October 11.
Next, we consider the speech made by Mr. Woit on
October 9 and 10 , and on page 1 of his remarks appears
the following:
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Art and Bill [referring to the two previous
speeches] have explained to you why the Company
hopes you will vote "no." I, too, hope so, because
I feel that having a union here would hurt our
ability to get orders from the customers who make
all of our jobs possible and to keep them coming.
Carrying on the theme of the Employer's campaign
"You pay," Woit discussed dues , strikes , and violence,
concluding after each with the statement "You pay."
In regard to strikes the following appears:
Talking about paying, have you thought much
about strikes? Unions can't give their members
anything except the right to strike. Who pays
when there is a strike-union members pay which
means that
You Pay.
Another reason I urge you to vote "no" is that
I know what kind of violence strikes can cause. I
know what it is like, not only at the plant, but even
when it involves employees' homes. The fact of the
matter is-and this is important, is that you don't
have strikes if you don 't have a union.
The Employer also posted notices on the bulletin
boards during the campaign . The messages contained
in several of the exhibits are essentially restatements of
points made by the employer officials in one or more
of the three speeches . The obvious predominant theme
of the posters concerns strikes.
Considering the total content of the speeches given
by employer officials, buttressed by certain of the post-
ers, Ave find those campaign tactics went beyond per-
missible bounds of electioneering . The campaign tactics
had the effect of conveying to the employees the futility
of selecting Petitioner for the purpose of improving
their working conditions. The Employer, in effect, told
the employees the plant in Pocahontas had been estab-
lished as a result of labor discord at the Employer's
plant in New Jersey and the point was driven home that
hundreds of employees covered by a union contract lost
their jobs as a result of the move of the Employer's
product from that union plant to the new plant in
Pocahontas. The inference was clear , the same thing
would happen in Pocahontas if the union came in.
In arguing against unionism , an employer is free to
discuss rationally the potency of strikes as a weapon
and the effectiveness of the union seeking to represent
his employees . It is, however , a different matter when
the employer leads the employees to believe that they
must strike in order to get concessions . A major pre-
supposition of the concept of collective bargaining is
that minds can be changed by discussion , and that
skilled , rational , cogent argument can produce change
without the necessity for striking . When an employer
frames the issue of whether or not the employees
should vote for a union purely in terms of what a strike
might accomplish , he demonstrates an attitude of
predetermination that bargaining itself will accomplish
nothing . Employees should not be led to believe , before
voting that their choice is simply between no union or
striking . The whole message to the employees was to
instill in them a fear of the adverse effects of collective
bargaining , coupled with the admonition that the selec-
tion of the Petitioner as their bargaining representative
was an excursion into complete futility.
We find on the above facts that the thrust of the
Employer's campaign was to convince the employees of
the inevitability of a strike in order to obtain conces-
sions from the Employer and its emphasis on replace-
ment of strikers and loss of jobs, the possible dissension
created, and the loss of jobs through possible plant
closing . Therefore, we find that the Employer's cam-
paign remarks created an atmosphere of fear which
interfered with the employees' free choice in the elec-
tion . Accordingly, we agree with the Regional Direc-
tor's recommendation that Petitioner 's Objection 3 has
merit and we shall set aside the election.'
ORDER
It is hereby ordered that the election previously con-
ducted herein on October 11, 1974 , be, and it hereby is,
set aside.
[Direction of Second Election and Excelsior footnote
omitted from publication.]
MEMBER KENNEDY, dissenting:
I am not persuaded that the quoted remarks of the
employer in the majority decision interfered with the
election . I would direct a hearing on Objections 2, 3, 4,
8(B), and 8(c).
1 Boaz Spinning Company, Inc, 177 NLRB 788 (1969); Eiectro-voice,
Inc., 191 NLRB 425 (1971)