C. J. Pearson Co.

National Labor Relations Board - Board Decisions

Jan 2, 1969

173 N.L.R.B. 1469 (N.L.R.B. 1969)

C. J. PEARSON COMPANY
C. J. Pearson Company and International Union of
District 50 , United Mine Workers of America. Case
1-CA-6289
January 2, 1969
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS , AND ZAGORIA
On August 28, 1968, Trial Examiner Abraham H.
Mailer issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices in
violation of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the Trial Examiner's Decision. He further
found that Respondent had not engaged in certain
other unfair labor practices alleged in the complaint.
Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief, the-
General Counsel filed a brief in support of the Trial
Examiner's Decision, and the Charging Party filed
cross-exceptions to the Trial Examiner's Decision and
a statement in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that Respondent, C. J. Pearson Company,
Bristol, Rhode Island, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as herein modified:
Substitute the Appendix attached hereto for the
one recommended by the Trial Examiner, and post it
in both the English and Portuguese languages.
I We find , as did the Trial Examiner , that the question of Respondent,
"Will the company be able to sign papers for your friends and relatives
to come over from Portugal ?", tends to create fear in the employee
1469
that, if the Union is elected , Respondent will discontinue its practice of
guaranteeing jobs upon the arrival of these immigrants , and is a coercive
threat of retaliation in violation of Section 8(a)(1) of the Act We do
not, however , find it necessary to adopt the Trial Examiner 's rationale
in finding this violation , and, therefore , do not pass upon his conclusion
that the matter is not a mandatory subject of bargaining
APPENDIX
NOTICE TO ALL EMPLOYEES
THIS NOTICE IS POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
After a trial at which all sides had the chance to
give evidence, the National Labor Relations Board
found that we, C. J. Pearson Company, violated the
National Labor Relations Act, as amended, and
ordered us to post this notice to inform our em-
ployees of their rights.
The Law gives you the right:
To organize yourselves;
To form, join, or help unions,
To choose a union to represent you in bargaining
with us,
To act together for your common interest or
protection; and
To refuse to do any or all of these things.
The Board has also ordered us to assure our
employees that:
WE WILL NOT interfere with your rights.
WE WILL NOT threaten to stop giving advances on
your pay if you select the International Union of
District 50, United Mine Workers of America, or
any other union to represent you.
WE WILL NOT tell you that you may not be able
to get long vacations to go to Portugal if you
choose the Union.
WE WILL NOT tell you that the Company may
not be able to sign papers for your friends and
relatives to come over from Portugal if you choose
the Union.
C J PEARSON
COMPANY
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice may be
directed to the Board's Regional Office, 20th Floor,
John F. Kennedy Federal Building, Cambridge & New
Sudbury Streets, Boston, Massachusetts 02203, Tele-
phone 617-223-3300.
173 NLRB No. 228
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
ABRAHAM H. MALLER, Trial Examiner On April 3, 1968,
International Union of District 50, United Mine Workers of
America, herein called the Union, filed a charge against C J.
Pearson Company, herein called the Respondent. Upon said
charge, the Regional Director for Region 1 of the National
Labor Relations Board, herein called the Board, on May 10,
1968, issued on behalf of the General Counsel a complaint
against the Respondent alleging violations of Section 8(a)(1) of
the National Labor Relations Act, as amended (29 U.S.C. Sec.
151, et seq ) herein called the Act In its duly filed answer,
Respondent denied the commission of any unfair labor
practices
Pursuant to notice, a hearing was held before me at Boston,
Massachusetts, on June 10, 1968 The General Counsel, the
Respondent, and the Charging Party were represented At the
hearing, the parties submitted the case on a Stipulation of
Facts Briefs were filed by the General Counsel and the
Respondent
Upon consideration of the entire record, including the
briefs of the parties, I make the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Rhode Island corporation maintaining its
principal office in Bristol, Rhode Island, where it is engaged in
the manufacture, sale, and distribution of marine vessels and
related products Respondent in the course and conduct of its
business operations during the 12-month period ended April 3,
1968, which period is representative of all times material hereto,
purchased materials consisting principally of fiberglass products
valued in excess of $50,000, from points outside the State of
Rhode Island. In view of the foregoing, I find and conclude
that Respondent is engaged in commerce within the meaning
of the Act and that it will effectuate the policies of the Act for
the Board to assert jurisdiction here
II. THE LABOR ORGANIZATION INVOLVED
International Union of District 50, United Mine Workers of
America, is, and has been at all times material herein, a labor
organization within the meaning of Section 2(5) of the Act
III THE ISSUE
Whether the Respondent interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed them
under Section 7 of the Act, in violation of Section 8(a)(1) of
the Act
IV THE ALLEGED UNFAIR LABOR PRACTICES
On or about February 8, 1968, while an election was
pending,' the Respondent sent all of its employees a letter in
I The election was held on February 14, 1968, and the Union was
defeated 1-RC-9851 Subsequently , the Regional Director sustained
Union objections to the election , based on portions of the letter which
are the subject matter of the complaint and ordered a new election to
be held While the foregoing facts are not specifically included in the
Stipulation of Facts, the objections to the election are alluded to in the
both the English and Portugusese languages . The English
version reads as follows
C J. PEARSON COMPANY
ONE CONSTITUTION STREET, BRISTOL, RHODE
ISLAND 401-253-8942
WHAT ARE YOU BUYING IF YOU VOTE FOR A UNION?
If you were buying a car, you would ask the dealer what
you were getting for your money You should ask the same
question about the union.
1 What does the union constitution say? Will you be
able to run your own affairs under it, or will outsiders
tell you what is good for you? Will the men who are
passing out the union papers be your bargaining repre-
sentative? How much does the president of the United
Mine Workers International receive as a salary, and how
much does he get for travelling expenses? How much
money do the union men who pass out the papers to you
make each week, and where does the money come from
to pay them?
2 If 51% of the men vote for a strike are you
required to go out on strike, even if you did not vote for
it? What happens to you under the union constitution if
you refuse to strike or walk a picket line? How much, if
anything, does the union pay you while you are on
strike, or do they give you food handouts after the
second or third week of strike?
3. Can you be expelled from the union? Can you be
blackballed from other lobs? If you are expelled from
the union, can you lose your job?
4 How do you get rid of a union if you decide you
have made a mistake? Can you refuse to pay dues? Can
you be disciplined by the union for advocating the
withdrawal of the local from the international? Can you
be expelled if you decide you made a mistake or talk
against the union?
5. Will the presence of a union destroy the informal
family nature of the company? Will you still be able to
get advances on your pay? Will you be able to ask for a
raise and get it before a labor contract is made up for the
whole company? Will you be able to take off for three
months in the Summer to go to Portugal as many people
have done in the past? Will the company be able to sign
papers for your friends and relatives to come over from
Portugal? Will you be able to change jobs within the
company?
6. Can the union guarantee you job security? Can the
union guarantee that you cannot be laid off if there are
no boats to build? Has the union been able to guarantee
any definite benefits, or are they offering vague rewards.
After you have asked and answered these questions, as to
what you are getting, ask yourself HOW MUCH DOES
THE UNION COST?
1. How much are the dues every month?
charge which is part of the Stipulation of Facts. Furthermore, both the
counsel for the General Counsel and the Respondent have referred to
and discussed the objections in their briefs to me. Of course, the
Regional Director 's findings and conclusions as to these objections are
not binding upon me. McEwen Manufacturing Company & Washington
Industries, Inc , 172 NLRB No. 99
C. J. PEARSON COMPANY
2 How much money do you lose if you have to go
out on strike for two weeks, or two months?
3. If the Company is not able to sell boats because of
a strike, will this affect you? Can the company be hurt
financially without hurting its employees9
I urge each of you to consider these questions, and vote NO
on election day, February 14th. Thanks for your help and
your loyal support in the past
CJP/nm
Sincerely,
/s/ Clint
Clinton J. Pearson
President
The Contentions of the Parties
Counsel for the General Counsel contends that the state-
ments contained in the letter constitute a not too thinly veiled
threat of withdrawal or at least loss of humanitarian policies,
as well as loss of livelihood with the Respondent or with other
employers, by the Respondent who is in a position to carry
out the threats. The Respondent contends that its statements,
taken in context, contain no threat of reprisal, but do no more
than point out the possible and likely consequences of
unionization.
Concluding Findings
1. The form of the notice
It is noted at the outset that Respondent's notice consists
of a series of questions as to the effect that the choice of the
Union as their bargaining representative might have upon the
employees The fact that the Respondent's statements were
put in the form of questions, rather than as positive assertions
as to what the Respondent might do if the Union were elected,
does not absolve the Respondent, if, in fact, the questions
implied that Respondent would take adverse action against the
employees if the Union were selected 2 And the Respondent in
its brief does not claim otherwise. Accordingly, it is the
substance of the questions posed which must be examined to
determine whether they imply possible adverse action by the
Respondent in violation of Section 8(a)(1) of the Act.
2. The implication of blackballing
Paragraph 3 of the letter reads as follows:
Can you be expelled from the union? Can you be black-
balled from other jobs? If you are expelled from the union,
can you lose your job?
The General Counsel seizes upon the term "blackballed"
and contends that it has "an evil connotation per se." While it
is true that a threat by an employer to blackball employees
would be violative of Section 8(a)(1), it is apparent that the
employer was not using that term in that connection. As read
in context, the Respondent is raising the question whether,
upon expulsion from the Union, the employees could be
2 Thus , it has been held that the use of a parable in an employer's
speech has been held to constitute a threat because it implied that dire
consequences and, in particular , a plant shutdown would follow if the
union was successful . Owens-Corning Fiberglas Corporation, 146
NLRB 1492, 1502-03. And, indeed , if one of the questions posed by
1471
blackballed by the Union from other jobs. That expulsion
from a union may prevent employees from obtaining work in
plants having a union shop contract with the Union is, of
ccurse, well known. See, e g , Archibald v Operating En-
gineers, Local 57, 52 CCH Labor Cases P 16, 516 (D. R. I.);
Falsetti v. Local Union No 2026, etc , 400 Pa 145, 161 A. 2d
882, 890 In sum, Respondent was discussing the effects of
unionism not in terms of what Respondent might or could do
but, rather, in terms of what the Union might do.
The propriety of comment as to what a union might do was
specifically upheld by the Board in The Babcock & Wilcox Co.,
77 NLRB 577, where a company official stated.
Also, in almost all cases, unions today ask that the company
agree to fire any man who joins the union and who has later
been put out of the union because he did not do what the
union wanted him to do It makes no difference, in such a
case, if you are satisfied with your job and the company is
entirely satisfied with your work So think this over
carefully - this is not a social organization Don't be fooled
that you can drop this union as easily as the last one that
was started here in 1938 and fold it up completely after
many of you have put in some of your money. (Id. at
585-586)
The Board held that the foregoing statement which is
strikingly similar to the one made by the Respondent herein
"does not contain any threat of reprisal or force or promise of
benefit and is therefore protected by the guaranty of the free
speech amendment." (Id at 578)
Read in context, as it must be, the reference to blackballing
is a prediction of harm to be expected from the Union, rather
than from the employer. As such, it is privileged under Section
8(c) of the Act Southwester Co , 111 NLRB 805, 806.
Especially is this true where the harm predicted is beyond the
ability of the employer to cause or prevent. Safeway Stores,
Inc , 122 NLRB 1369, 1373, Neco Electrical Products Corpo-
ration, 124 NLRB 481, 482 Accordingly, I find and conclude
that the foregoing quotation from Respondent's letter did not
constitute a violation of Section 8(a)(1) of the Act
3 The implication of termination of benefits
In paragraph 5 of the letter, there is set forth a series of
questions which the General Counsel contends was violative of
Section 8(a)(1) of the Act. The paragraph reads as follows
Will the presence of a union destroy the informal family
nature of the company? Will you still be able to get
advances on your pay? Will you be able to ask for a raise
and get it before a labor contract is made up for the whole
company? Will you be able to take off for 3 months in the
Summer to go to Portugal as many people have done in the
past? Will the company be able to sign papers for your
friends and relatives to come over from Portugal? Will you
be able to change jobs within the company?
The Respondent contends that none of the foregoing
constitutes a threat within the meaning of the Act. It argues
that the problems posed by the questions indicate the type of
contractural provisions which a union might insist upon and
that they constitute merely an observation that a contract
negotiated by a union might omit certain fringe benefits now
the Respondent were "Will the plant close down if the Union is
elected9 ", there could be no doubt that the employer was threatening a
possible shutdown of the plant, in violation of Section 8(a)(1) of the
Act
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enjoyed by the employees Thus, with regard to the 3-
months' leave to go to Portugal, the Respondent argues that
"[i] t is certainly not idle speculation to wonder whether a
union would tolerate extended vacations for some, but not all,
its members." (Brief p. 5)
It is not inconceivable, though perhaps unlikely, that a
union in negotiating for a contract and would seek to prohibit
extended time off or would take a position against the granting
of advances on employees' pay. These are terms and conditions
of employment, and, as such, mandatory subjects of bar-
gaining. But this does absolve the Respondent. The granting of
Respondent's contention requires as a premise a high degree of
sophistication on the part of the employees, together with
knowledge of labor law regarding bargainable issues. Absent
such sophistication and knowledge on their part, the em-
ployees would be more apt to read these questions as implying
that the Respondent, who in the past had granted these
benefits, might withdraw them if the Union became certified.
If it had been the intention of the Respondent to apprise
the employees of the fact that the Union might insist upon a
withdrawal of these benefits, it could have framed the
questions to make that clear Thus, it could have stated "Will
the Union require us to cease, etc." As drawn, however, the
questions do not place the onus of the cessation of benefits
upon the Union. None of the questions implies that the Uniun
could or might compel a cessation of these practices. All that is
mentioned in the first question is "the presence of a union "
This not equivalent to saying that the Union would compel
Respondent to terminate the benefits To the contrary, the
employees could reasonably interpret the questions to imply
that the certification of a union might cause the Respondent
to withdraw benefits now granted to employees. Indeed, it
appears that the questions were artfully drawn to give this
impression to the employees, while preserving unto the
Respondent the ability to argue to the Board that what was
really implied was that the Union might compel the termina-
tion of these benefits
Pertinent here is the observation of the Court of Appeals
for the Seventh Circuit in Wausau Steel Corp. v. N.L.R.B., 377
F.2d 369, where the Court said at p 372
While we do not doubt that Wallach proceeded carefully in
attempting to lunit his communications to his employees to
the legally permissable, his words must be judged by their
likely import to his employees.
See, also, N.L.R.B. v. Trojan Powder Co., 135 F.2d 337 (C.A.
3), where effect was given to the employer's statement as it
was "capable of being understood [by the employ-
ees] ... even though the words are chosen with a fine sense of
Victorian delicacy." (Id. at p. 339)
Indeed, any doubt as to Respondent's coercive intention is
dissipated by the question. "Will the company be able to sign
papers for your friends and relatives to come over from
Portugal?"
The question refers to a practice which the Respondent
appears to have engaged in of facilitating the immigration of
friends and relatives of employees by guaranteeing their jobs
on arrival. "This issue," the Respondent says (Brief, p. 6) "we
must assume, would be covered in a union contract." The
assumption is unwarranted. Whether the Respondent would
continue to guarantee jobs to friends and relatives of em-
ployees is not a term or condition of employment and,
therefore, would not be a matter of compulsory bargaining.
Consequently, the Union would be unable to prevent the
Respondent from guaranteeing jobs to certain immigrants And
this would be true even if the contract to be negotiated
provided for a union shop Thus, the most that the union
could attain under such an agreement would be "to require as
a condition of employment membership therein [the Union]
on or after the thirtieth day following the beginning of such
employment or the effective date of such agreement, which
ever is the later" (Section 8(a)(3)) Such an agreement could
not possibly prevent the employer from guaranteeing a job to
such an immigrant and, in fact, hiring such an immigrant. At
most, the immigrant so hired would have to join the union
within 30 days or lose his job. In view of the foregoing, the
Respondent cannot properly contend that any agreement
which it might enter into with the Union would prevent it
from signing papers for friends and relatives of its employees.
In sum, this is a matter completely within the control of the
Respondent, and when Respondent raises a question as to
whether the employees will continue to receive this benefit, it
is, in effect, raising a fear that if the Union is elected, it will
cease this practice. As such, it clearly constitutes a threat of
retaliation.
Accordingly, I find and conclude that by its questions in
paragraph 5 of its letter of February 8, 1968, the Respondent
interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed them under Section 7 of the Act,
in violation of Section 8(a)(1) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of C. J. Pearson Company, as set forth in
section IV, above, occurring in connection with the operations
of the Respondent set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow thereof
VI. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act, I shall recommend that it cease and desist therefrom and
that it take certain affirmative action designed to effectuate
the policies of the Act
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions
of law and upon the entire record in the case, I recommend
that the Respondent, its officers, agents, successors, and
assigns, shall
1 Cease and desist from.
(a) Threatening to withdraw benefits from the employees if
a majority of the employees selects International Union of
District 50, United Mine Workers of America, or any other
labor organization of its employees, to represent them.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
right to self-organization, to form, join, or assist any labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities,
C. J. PEARSON COMPANY 1473
except to the extent that such right is affected by the proviso
to Section 8(a)(3) of the Act.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act
(a) Post at its Bristol, Rhode Island, plant, copies of the
attached notice marked "Appendix .,,3 [Board's Appendix
substituted for Trial Examiner's Appendix ] Copies of said
notice, on forms provided by the Regional Director for Region
1, after being duly signed by an authorized representative of
the Respondent, shall be posted by the Respondent im-
mediately upon receipt thereof, and maintained by it for 60
consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director, in writing, within 20 days
from the receipt of this Decision, what steps Respondent has
taken to comply herewith 4
3 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order ," shall be substituted for the
words "the Recommended Order of a Trial Examiner " in the notice. In
the further event that the Board 's Order is enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United
States Court of Appeals enforcing an Order" shall be substituted for the
words "a Decision and Order "
4 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify the Regional
Director for Region 1, in writing , within 10 days from the date of this
Order, what steps the Respondent has taken to comply herewith."