AP Automotive Systems

National Labor Relations Board - Board Decisions

Mar 13, 2001

333 N.L.R.B. 581 (N.L.R.B. 2001)

AP AUTOMOTIVE SYSTEMS 581
AP Automotive Systems, Inc. and International Un-
ion, United Automobile, Aerospace and Agricul-
tural implement Workers of America, UAW,
AFL–CIO, Petitioner. Case 9–RC–17421
March 13, 2001
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held on August 2, 2000, and the hearing officer’s report
recommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agreement.
The tally of ballots shows 90 for, and 100 against, the
Petitioner, with 8 challenged ballots, an insufficient
number to affect the results.
The Board has reviewed the record in light of the ex-
ceptions and briefs, has adopted the hearing officer’s
findings and recommendations,1 and finds that the elec-
tion must be set aside and a new election held.
For the reasons fully set forth in the attached portion of
the hearing officer’s report, as an appendix, we find that
the Employer’s captive audience speech to employees 2
days before the election contained an objectionable threat
of plant closure and a prediction of the futility of union
representation. The statement at issue, read by the Em-
ployer’s vice president, was that

[t]he union may give you a lot of promises but they
have to come to Faurecia [the Employer’s parent] to
deliver them to you. However, Faurecia will not agree
to anything that will hurt the Troy plant’s competitive
position. We would rather see the plant closed by a
strike now than slowly die because we agree to some-
thing that will eventually put this plant in financial
trouble. Faurecia won’t do it with a union and it won’t
do it without a union.

It is true, as our dissenting colleague states, that the
Employer is not obligated to agree to demands that
would adversely effect its financial or competitive posi-
tion. The Employer is obligated by the Act, however, to
make statements to employees about their union organ-
izational activities that are “carefully phrased on the ba-
sis of ‘objective fact to convey [its] belief as to demon-
strably probable consequences beyond [its] control.’”
Gissel Packing Co., 395 U.S. 575, 618 (1969). The Em-
ployer failed to do this in this instance. Instead, the sce-
nario conveyed to employees was that, if they chose un-
ion representation, the Petitioner would inevitably make
exorbitant demands, which would “hurt the Troy Plant’s
competitive position,” the Employer would not agree to
these demands, a strike would ensue, and the plant would
close.

1 In the absence of exceptions, we adopt pro forma the hearing offi-
cer’s recommendation to dismiss Petitioner’s Objections 1 and 3.
The Employer’s speech made no reference to objective
facts indicating that this scenario constituted the likely
outcome of bargaining. Similarly, the speech made no
reference to other possible outcomes and gave no indica-
tion of the Employer’s willingness to bargain in good
faith with the Petitioner. Quite simply, the employees
who heard this speech would reasonably understand the
Employer’s message to be that they could not get any-
thing more from collective bargaining than they could
get without it and that, if they risked choosing the Peti-
tioner to represent them, they would inevitably face a
strike, plant closure, and job loss. This message created
an “obvious potential for interference with employee free
choice.” Unitec Industries, 180 NLRB 51, 52 (1969)
(speech by Vice President Campbell). Accordingly, we
will set the election aside and direct a second election.
[Direction of Second Election omitted from publica-
tion.]

MEMBER HURTGEN, dissenting.
I do not agree that the Employer made a threat to close
or a prediction that bargaining would be futile.
The Employer’s remarks were as follows:

The union may give you a lot of promises but they
have to come to Faurecia [parent] to deliver them to
you. However, Faurecia will not agree to anything that
will hurt the Troy plant’s competitive position. We
would rather see the plant closed by a strike now than
slowly die because we agree to something that will
eventually put this plant in financial trouble. Faurecia
won’t do it with a union and it won’t do it without a un-
ion.

Thus, the Employer was simply saying that it would
not “agree to anything that will hurt the Troy plant’s
competitive position.” Clearly, the Employer is not re-
quired to so agree, and the Employer is privileged to
state this legal truism. The Employer goes on to say that
it would rather take a strike than so agree, because such
an agreement would “put this plant in financial trouble.”
Again, an employer is free to take that position in bar-
gaining, and the Employer is privileged to state that legal
truism.
My colleagues read far more into the Employer’s
statements than can be gleaned from the actual language
that the Employer used. The Employer did not say that
333 NLRB No. 68
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 582
the Union would “inevitably” make exorbitant demands
and that a strike and plant closure would follow. Rather,
the Employer said that it would not agree to “anything
that will hurt the Troy plant’s competitive position.”
Clearly, if the Union makes no demands of that charac-
ter, then no strike or closure will follow. Further, my
colleagues suggest that the Employer must affirmatively
state that it would bargain in good faith. I know of no
requirement that the employer must so state, and no case
is cited for this proposition. The Employer here did state
that it would not agree to demands that harmed its posi-
tion. This statement is fully supported by the precise
language of Section 8(d).
Accordingly, there is no retaliatory threat, and there is
no prediction of futility. There is simply the statement
that the Employer will not agree to economically injuri-
ous terms.

APPENDIX
HEARING OFFICER’S REPORT ON OBJECTIONS TO
ELECTION AND RECOMMENDATIONS TO THE BOARD
Pursuant to the provisions of a Stipulated Election Agree-
ment (the Agreement) approved by the Regional Director on
June 29, 2000, an election by secret ballot was conducted
among certain employees1 of the Employer to determine
whether such employees desired to by represented by the Peti-
tioner for the purposes of collective bargaining.
Upon the conclusion of the election, a tally of ballots was
made available to the parties in conformity with the Rules and
Regulations of the National Labor Relations Board (the Rules
and the Board), respectively, which disclosed the following
results:

Approximate number of eligible voters ............... 204
Number of void ballots............................................. 0
Number of votes cast for Petitioner ....................... 90
Number of votes cast against participating
labor organization ........................................ 100
Number of valid votes counted............................ 190
Number of challenged ballots .................................. 8
Number of valid votes counted plus challenged
Ballots .......................................................... 198

The challenged ballots are not sufficient in number to affect
the results of the election.
On August 9, 2000, the Petitioner filed timely Objections to
Conduct Affecting the Results of the Election (the objections)
which were duly served on the Employer in conformity with
the Rules.

1 The appropriate bargaining unit (the unit) as set forth in the
Agreement, is: “All full-time and regular part-time production and
maintenance employees employed by the Employer at its Troy, Ohio
facility, but excluding line leaders, maintenance technicians, office
clerical employees, and all professional employees, guards and supervi-
sors as defined in the Act.”
Pursuant to the provisions of Section 102.69 of the Rules, an
investigation of the issues raised by the objections was con-
ducted under the direction and supervision of the Regional
Director. On August 23, 2000, the Regional Director issued
and served on all the parties his Report on Objections to Elec-
tion, Order Directing Hearing and Notice of Hearing. In his
report, he recommends that a hearing be held to resolve the
issues raised by Objections 1, 2, and 3. It was further recom-
mended that the hearing officer designated for the purpose of
conducting the above-referenced hearing prepare and cause to
be served on the parties a report containing resolutions of the
credibility of witnesses, findings of fact, and recommendations
to the Board as to the disposition of the objections.
Pursuant to the foregoing Report on Objections to Election,
Order Directing Hearing and Notice of Hearing, a hearing was
held on August 29, 2000, at Troy, Ohio, before me, the duly
designated hearing officer. All parties were given full opportu-
nity to participate, to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues.
Upon the entire record of the hearing, I make the following
findings, conclusions, and recommendations with respect to the
objections.2
The Objections
The objections allege, verbatim, that:
During the course of the Union’s organizing drive, the Em-
ployer and its agents:
1. Threatened employees with physical harm if they sup-
ported the UAW.
2. Threatened employees with loss of work if they selected
the UAW as their bargaining representative.
3. Engaged in “electioneering” near the polls.
Objection 2: In support of Objection 2, the Petitioner called
Eldridge “Chip” James as a witness. James is a welder on Line
11. He was a member of the Petitioner’s voluntary organizing
committee. Each year the Employer shuts down the plant
around the first 2 weeks of July. James recalled attending a
mandatory company campaign meeting sometime after the
shutdown, but before the NLRB election, which was held on
Wednesday, August 2, 2000. James recalls the meeting occur-
ring on the Monday before the election—or 2 days before—the
2 The facts are based on the record as a whole, including a full re-
view of the testimony, records, and exhibits with due regard to the
demeanor of each witness as he testified and the logical consistency
and inherent probability of the evidence presented. Although I have
addressed the credibility of specific witnesses with regard to certain
matters more fully as set forth in my report, the absence of a statement
of resolution of a conflict in specific testimony or of an analysis of such
testimony does not mean that such did not occur. See Walker’s, 159
NLRB 1159 (1966); Trumbull Asphalt Co. of Delaware v. NLRB, 314
F.2d 382, 383, cert. denied 374 U.S. 808 (1963) citing as authority U.S.
v. Pierce Auto Lines, 327 U.S. 515, 529 (1946), and ABC Specialty
Foods, 234 NLRB 475 (1978). The Board has long held that the fail-
ure of the trier of fact to detail completely all conflicts in the evidence
does not mean that this conflicting evidence was not considered and the
hearing officer is not compelled to annotate each such finding.
Walker’s, supra; Borman, Inc., 273 NLRB 312 (1984). To the extent
that the particular testimony of a witness does not conform to the facts
recounted such testimony is discredited and found unreliable.
AP AUTOMOTIVE SYSTEMS 583
election. In the meeting, the Employer’s vice president, Patrick
Szaroletta, spoke to employees on James’ shift. The shift em-
ployees were divided into two groups of employees. James
attended the second meeting for his shift. His wife, who is also
an employee, attended the first meeting for the shift. Line
Leader (Supervisor) Tim Hebb notified James he should attend.
In attendance at the meeting in the lunchroom or break room
was half the shift but James did not give a number of those in
attendance.
James recalls Szaroletta saying he would “rather see the
company go out on strike now and die slowly than to—uh, give
up competitiveness by having the UAW in there.” James testi-
fied that he took this as a threat to close.
Patrick Szaroletta, vice president of manufacturing for North
America, testified for the Employer on Objection 2. He stated
that he gave a speech to employees “on the Monday before the
election” or July 31, 2000. The speech was given to three dif-
ferent groups of employees at various times to cover the differ-
ent shifts. It was a prepared speech, typed out and Szaroletta
testified he read it word-for-word as it was written. The entire
speech was entered into evidence at the hearing. It is the first
full paragraph of page 4 which the Petitioner claims is objec-
tionable. This paragraph reads as follows:

The union may give you a lot of promises but they have to
come to Faurecia to deliver them to you. However, Faurecia
will not agree to anything that will hurt the Troy plant's com-
petitive position. We would rather see the plant closed by a
strike now than slowly die because we agree to something that
will eventually put this plant in financial trouble. Faurecia
won't do it with a union and it won't do it without a union.

The Petitioner contends that in this paragraph there is a
threat to close the facility if there is a strike. The Employer, in
its brief, argues that management has the right to express its
views or opinions so long as the expression of those views con-
tain no threat of reprisal or force. The Employer clearly ap-
pears to argue in its brief that it is permissible for an employer
in an NLRB election campaign to predict possible conse-
quences of economic positions or actions. In support of this
view it cites Novi American, Inc., 309 NLRB 544 (1992), in
which the Board considered a speech given by an employer in
an election campaign which stated that if the company denied a
union’s demands a union could either agree or put pressure on
the company and the only way the union could pressure the
company was to call a strike. In that same speech, the president
of the employer went on to tell employees that striking employ-
ees could be replaced by permanent replacements and that they
may not have jobs when the strike was over.
In Novi American the speech was not found to be objection-
able. The Employer also argues that Szaroletta in his com-
ments did not say or imply that either a strike or plant closing
was inevitable if employees voted for the Union.
After consideration of the matter and the positions of the par-
ties, I find that I fundamentally disagree with the arguments set
forth by the Employer in its brief.
Certainly, it is permissible for an employer in an NLRB elec-
tion campaign speech to set forth possible consequences of
economic actions taken by either side. Thus, it is permissible to
lay out truthful scenarios as to what might happen if there is a
strike. But I feel the comments contained in the paragraph in
question go much further than laying out possible conse-
quences. In my opinion the comments do have a feeling of
inevitability attached to them. Thus, the comments do not set
out various consequences of the action. There is only one con-
sequence. The first sentence refers to the Union making prom-
ises that they will have to come to the Employer to make good
on. This is obviously a reference to demands that the Union
will make at the bargaining table if it wins the election. In the
next sentence, Szaroletta reading the speech, states that the
Employer “will not agree to anything that will hurt the Troy
plant’s competitive position.” This is not a statement which
sets out possible consequences of the Union’s demands at the
bargaining table. It sets forth one response only and that is that
the Employer will not agree to anything that will hurt the com-
pany’s competitive position.
Moreover, there is no definition of the point at which the
Employer’s competitive position is hurt. This is obviously
something to be decided subjectively by the Company. There-
fore, the Employer is drawing a line in the sand and stating in
effect “there is a point beyond which we consider the demands
of the Union would be excessive and would hurt our competi-
tive position. We are not defining what that line is, but there is
a line, and if the Union crosses that line, certain things will
happen.”
Up to this point in the speech, the Employer does not lay out
what things would happen if the Union makes demands that the
company considers will hurt their competitive position. But in
the next sentence the Employer makes clear where it thinks the
Union’s demands will lead. The speech states, “We would
rather see the plant close by a strike now, than slowly die be-
cause we agree to something that will eventually put this plant
in financial trouble.” That sentence indicates a strike will lead
to the plant closing.
Moreover, the Employer does not lay out any of the other
possible economic consequences of what it considers to be the
Union’s “excessive demands” and there are many. If the par-
ties cannot reach agreement on the terms of a contract at the
bargaining table, the Employer does not have to agree to the
Union’s terms. (It can unilaterally implement its last offer on
the table, if it can establish an impasse has been reached in the
negotiations implementing its last offer if there has been an
impasse reached.) Thus, it can back away from the negotia-
tions until the Union presents evidence that it is willing to
change its position in some regard or there is some effort to
break the impasse, although it cannot refuse to negotiate if the
impasse is broken. An employer, under some circumstances, if
an impasse is achieved, can lock out its employees before a
union can strike. Also, an employer can continue to bargain
with the union on other matters or come up with new ideas to
break the impasse while employees continue to work under the
existing conditions and do not go on strike. These are all op-
tions other than a strike.
Then, in the event a strike does occur, there are many more
scenarios that can take place. A strike can lead to the hiring of
replacements and the continuation of the business of the com-
pany while the strike is ongoing. A strike can fail and then the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 584
strike is abandoned by the union, with the striking employees
agreeing to return to work and a weakened union agreeing to
accept the employer’s position on contract issues. During the
course of a strike, a Federal mediator can be called in to try and
resolve the issues and get the parties back to work. In addition
to temporary replacements being hired, permanent replace-
ments can be hired or nonbargaining unit employees, manage-
ment and salaried employees can continue to operate the busi-
ness.
All of these many consequences of a possible demand by a
union which the Employer considers will hurt its competitive
position, or of a strike, could have been explained in the speech
if the Employer was trying to predict possible scenarios of eco-
nomic consequences. However, I do not believe this was the
Employer’s intent.
As the paragraph was read to employees there were no way
out from the carefully constructed formula that the Employer
has composed in this paragraph. In the event that the Union
makes demands that the Employer subjectively determines will
hurt its competitive position, whatever ever that means, the
company would rather close the plant during a strike than
slowly die. The “rather than slowly die” obviously refers to
continued operation of the plant during a strike. Yet, many
companies continue to operate a plant during a strike. Plant
closure is seldom the outcome of a strike. As noted above, an
employer can continue to operate by using temporary replace-
ments, permanent replacements or by using supervisory and
managerial personnel to man the plant.
Any logical person who read this statement or in the case of
the Petitioner’s witness, who heard the statement read to them,
could only conclude as the Petitioner’s witness James con-
cluded, that this was a threat to close the plant if the Union
went on strike.
Considering the timing of the speech just 2 days before the
election and the fact that it was given to almost all employees
on three shifts, the use of the phrase “plant closed” could only
be intended to improperly threaten the employees with job loss
in order to influence their votes in the election. The Board has
stated that conduct that creates an atmosphere which interferes
with the voters’ choice will warrant invalidating an election.
General Shoe Corp., 77 NLRB 124 (1948). Certainly, threaten-
ing employees with plant closure or job loss if the union is
selected as their representative and negotiations do not go the
way the company wants, is a violation. See Bardon Enter-
prises, 326 NLRB 469 (1998). The situation in Objection 2
goes far beyond predictions based on circumstances beyond the
Employer’s control such as in Honeywel,l Inc., 225 NLRB 617
(1976). The Employer made no attempt to predict all possible
consequences of the Union's demands or a subsequent strike. If
it had listed plant closing as one possible consequence and
listed other scenarios, then it would have been a fair and lawful
statement in keeping with the reasoning in Honeywell. But in
this case the Employer did not list any more than one economic
consequence resulting from union representation. It simply
jumped to the idea that the Union might make unreasonable
demands (as defined subjectively by the Employer) that would
make it “uncompetitive” (as defined subjectively by the Em-
ployer) and that the inevitable strike that would accompany it
would lead to the plant closing. There were no other options
given once a strike took place. This statement clearly conveys
the idea once a strike takes place if the strike is over demands
which the Employer sees as unreasonable and which the Em-
ployer considers would make it uncompetitive, the Employer
will close the plant. The Employer mentions it had the other
option of staying open during a strike but it then ruled out this
option by stating it would “rather close the plant than die a slow
death.” Presumably by staying open and operating during a
strike, it would “die a slow death” or even if it agreed to the
Union’s demands, even though the strike ended, these demands
would be so unreasonable granting them would inevitably force
the Employer to become “uncompetitive” and then “die a slow
death.” These are not reasonable predictions of economic con-
sequences.
In fact, Szaroletta further testified at the hearing that the Em-
ployer has two other union-represented plants in the Midwest.
Presumably, these plants did not lose their competitive position
once the Union got in, and they were able to achieve contracts
with the Union. This gives more credence to the idea that the
argument that the plant would eventually lose its competitive-
ness through excessive union demands or a strike so that it
would be forced to close, was simply a smokescreen so that the
Employer could link the words “strike” with “plant closed.” In
addition, it must be noted that this speech was given only 2
days before the election so that the timing of the speech is sus-
pect. Threats such as this one given in campaigns have been
held to interfere with an election. See Harbor Cruises, 319
NLRB 822 (1995), in which the employer representative told
employees that the employer would go out of business if the
union made certain demands for health benefits and vacation
dates. See Eldorado Tool, 325 NLRB 222 (1997).
In conclusion, after carefully considering the testimony con-
cerning this objection and the arguments of the parties in their
briefs, I find that this paragraph of the speech in question,
which the Employer admits was read to large groups of em-
ployees, constituted a threat to close the plant if the Union went
on strike, as well as a prediction of the futility of attempting to
reach agreement on bargaining proposals on any contract nego-
tiations if a union should be selected as the representative of the
employees. Therefore, I feel that these comments interfered
with the election and warrant an order setting aside the election
and I so recommend.
RECOMMENDATIONS
In conclusion, I recommend that Objections 1 and 3 be over-
ruled and that Objection 2 be sustained. I further recommend
that the election be set aside and that a second election be
scheduled for the reasons stated herein. Within 14 days from
the date of issuance of this report, any party may file with the
Board’s Executive Secretary at 1099 14th Street, N.W., Wash-
ington, D.C. 20570 an original and 7 copies of exceptions
thereto. Immediately upon the filing of such exceptions the
party filing same shall serve a copy thereof upon each of the
other parties.