Combustion Engineering, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1971

189 N.L.R.B. 496 (N.L.R.B. 1971)

496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. E. Glass, Division of Combustion Engineering,
Inc. and United Glass and Ceramic Workers of
North America, AFL-CIO-CLC, Petitioner. Case
12-RC-3524
March 31, 1971
DECISION ON REVIEW AND
CERTIFICATION OF RESULTS
BY CHARIMAN MILLER AND MEMBERS
FANNING AND BROWN
On August 19, 1970,1 the Regional Director for
Region 12 issued a Supplemental Decision on
Objections, Order, and Direction of Second Election
in the above-entitled proceeding, in which he sus-
tained the Petitioner's Objections 4 and 9, set aside
the election conducted on May 21, and directed that a
second election be held.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board Rules and Regula-
tions, Series 8, as amended, the Employer filed a
timely request for review of the Regional Director's
Supplemental Decision on the grounds that he erred
in sustaining Objections 4 and 9. The Petitioner filed a
statement in support of the Regional Director's
Supplemental Decision.
By telegraphic order dated September 15, the
National Labor Relations Board granted the request
for review and stayed the second election pending
decision on review.
The Board 2 had considered the entire record in this
case with respect to the issues under review, and
makes the following findings:
The election herein was conducted on May 21 in the
bargaining unit found appropriate as set forth in the
Regional Director's Decision and Direction of
Election.3
The tally of ballots showed that of approximately 34
eligible voters, 34 cast ballots, 17 of which were cast
for, and 17 against, the Petitioner. There were no
challenged ballots.
Objection 4 alleged that the night foreman, Jerry
Newton, on May 4, threatened two employees that if
the Union didn't win several leaders of the Union
would be discharged.
Objection 9 alleged that on the day of the election
the Company issued a circular which plainly implied
that there would be growth and expansion of the
Company if the Union were voted down, that the
certification of the Union would be a wedge forever
I All dates hereinafter are 1970
2 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
3 The appropriate unit is "all production and maintenance employees,
between the Company and the employee, and a vote
for the Union was a demonstration of an unfriendly
attitude toward the Company.
In support of Objection 4, the Union submitted two
witnesses who testified that on or about May 13
Supervisor Jerry Newton told them that if the Union
didn't get in, two employees would get fired. One of
the witnesses reported that Newton referred to the
two employees by their nickname or first name; the
other witness could not recall if names were men-
tioned. The Employer denied on information that
Newton made the remark attributed to him by the
Union. Newton, however, was not available for
interview during the Regional Director's investiga-
tion. The Regional Director sustained the objection,
finding that the Employer, through the remarks of its
agent, Newton, undenied except "on information,"
interfered with and disturbed the laboratory condi-
tions requisite for the holding of a National Labor
Relations Board election.
The Employer, in its request for review, while not
admitting that the statement was made, takes the
position that even if it were made, it was made to two
employees who were apparently union adherents and,
far from being an antiunion coercive remark, was in
fact strongly prounion, tending to induce employees
who heard it to vote union "if only to protect the
Union's in-plant leadership"; furthermore, the Em-
ployer argues that this statement by a minor supervi-
sor was isolated and could not have materially
affected the outcome of the election.
We agree with the Employer that the remark, if
made, would tend to promote a prounion vote. In
effect the Petitioner objects to it on the ground that it,
somehow, contributed to Petitioner's not winning a
majority vote. The Regional Director viewed the
remark as interfering with and disturbing the requisite
laboratory conditions for a Board-conducted election,
without analyzing it from the standpoint of coercion.
No doubt there are various ways that employees
might have interpreted the night foreman's remark,
but hardly as implying a penalty to them or their
leaders in the event the Union won the election. Thus,
compared with innumerable cases where elections
have been set aside for threatened discrimination, this
remark was not coercive in the accepted sense. In
addition the remark is not the sort of conduct which
would cause us, without more, to find that laboratory
conditions for a Board election had been impaired.
Objection 9 concerns a speech by the Employer's
vice president, Hordis, distributed to the employees
including truckdrivers , inspectors, and plant clerical employees employed
by Employer at its Miami, Florida , plant , but excluding office clerical
employees , professional employees , guards, and supervisors as defined in
the Act
189 NLRB No. 74
C E GLASS 497
on May 21. The Regional Director excerpted certain
parts of the speech, as follows:
Now, I am concerned. We see a wedge being
driven between us and our employees. A wedge
that will separate us forever-the union wedge. I
am here to ask you not to let this wedge come
between us.
Hordis [original name of Employer] has ground
next door sufficient to double the size of this
present building. We don't buy groundjust for the
sake of owning land. It is planned to expand still
further. The quality and loyalty of the workers in
Miami has encouraged us to place the Miami plant
high on our list for future expansion. It is too soon
to say what these plans are as we don't want our
competition to know.[Emphasis supplied.]
When these plans are instituted it will mean
more promotions, and morejobs.
*
Referring back to employee loyalty for a minute
-in a union shopyou don ' t have a feeling of loyalty
between an employee and a [sic] employer because
the employer feels that you have chosen the union
over him . In a non -union shop-however-em-
ployers and employees feel like a family-and
every effort is made to see that all employees get a
full weeks pay-and when there are promotions
they are given to the employee rather than
bringing in outsiders . Just look at your bosses now
and you will see this is a fact. [Emphasis supplied.]
By voting NO in this coming election you can
prove to Combustion Engineering that you are for
the company, for its growth and prosperity. They
are watching this election very carefully.
It appeared to the Regional Director that Hordis
equated "faith-fulness" and "loyalty" with expansion
and growth. He concluded that the Employer con-
veyed the idea that without loyalty there could be no
progress or expansion, and that the speech contained
a subtle threat that there could be a stagnation or
worse. The Regional Director also found an implied
promise to the effect that without a union there would
be full employment and promotions, but if employees
voted for the Union, then the Company would make
no effort to see that employees got a full week's pay
and promotions would be given to outsiders. Accord-
ingly, the Regional Director sustained Objection 9 on
the ground that the expressions conveyed implied, but
unmistakeable, threats of possible reprisal to the
employees and tended to interfere with their free
choice in the election.
We do not believe that the employees could
reasonably draw inferences of threats of reprisal or
promises of benefit from the Employer's speech taken
on a whole.
The speech in question, which was apparently
distributed with the paychecks on the day of the
election, recounted the history of the Employer's
operations since 1939, from a small, family business
trying to dealjustly and fairly with its employees-and
now threatened by a union wedge-to a division,
since 1969, of a large company that was supplying
additional financial backing while guaranteeing that
the original owners would continue in the business. It
noted that the same men were still running the plant;
that the purchasing company had agreed that the
policy of "yearly wages, improvements in fringe
benefits and fair treatment to all" must be continued;
that in past years wages had been "kept equal" to
local competing unionized plants; and that the
company would continue to do this-so why pay
union dues?
It went on to state that the Company's history
proves that "established workers" are secure "with
us"; that every effort is made to protect loyal workers
from layoff even though business may be slow; that
the present work force is an experienced nucleus; and
that it is from this group of well-trained and faithful
employees that expansion would occur.
The speech went on to compare the Employer's
plant equipment with that of a new plant in the area,
unionized, which had added no additional oven;
Employer, by contrast, has more than doubled its
capacity with a second oven, hence provided more job
opportunities. It spoke of having acquired adjoining
real property for further plant expansion and stated
that "the quality and loyalty of the workers in Miami"
had encouraged the Company to place the Miami
plant on the list for future expansion, which would
mean more promotions and morejobs.
Next the speech reverted to "employee-loyalty" and
an employer's feeling that he does not have employee
loyalty in a union shop, but that in a nonunion shop
the situation is like that of a family where every effort
is made to give employees a full week's pay and
promotions, when available, rather than giving
promotions to outsiders. It referred to shop stewards
and suggested that a union vote is actually a vote for
another boss, with grievances being handled formally
and union red tape sometimes resulting in 6 months to
settle a grievance, as compared with the existing setup
of informality and fair dealing.
The speech then emphasized that job security,
better working conditions, increased pay, and oppor-
tunities were obtained not through a union but by
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
doing a good job "for yourself and for your compa-
ny." It is pledged the Company's best efforts to
improve profits "which will in turn allow us to
improve working conditions, increase your wages and
see that you receive promotions when they occur."
It ended by saying "Vote No" and prove to the
Employer that you are for the Company. "They are
watching this election very carefully." It added: "Put
your trust in the managers' that you have known for
years. Show us that you are 100% behind them."
In total context the Employer, we believe, presented
his partisan views in a noncoercive manner. Isolating
certain portions, as the Regional Director did,
certainly emphasizes that, without a union, expansion
can be anticipated, but we see nothing which
threatens that expansion and unionization are neces-
sarily incompatible, or that the Employer will not
bargain if the Union wins.4
Accordingly, we conclude, contrary to the Regional
Director, that the Employer's conduct during the
election compaign did not raise substantial and
material issues affecting the election results. There-
fore, we hereby overrule Objections 4 and 9. As the
tally of ballots shows that the Petitioner has not
received a majority of the valid votes cast, we shall
certify the results of the election.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
votes has not been cast for United Glass and Ceramic
Workers of North America , AFL-CIO-CLC, and
that the said labor organization is not the exclusive
representative of the employees in the appropriate
unit , within the meaning of Section 9 (a) of the
National Labor Relations Act, as amended.
MEMBER BROWN , dissenting:
My colleagues find nothing more than an expres-
sion of protected views in Hordis ' remarks distributed
to the employees just before the election. The
Regional Director who investigated the case finds
threats of reprisal therein which interfered with the
employees' free choice in the election. I agree with the
Regional Director.
Hordis' message, quoted in pertinent part in the
majority opinion, reads like this to me: The Employer
has expansion plans which will mean more promo-
tions and more jobs. It is the "quality and loyalty" of
the employees that encourages the Employer to
proceed with such plans. But if the employees choose
the union over the Employer this felling of loyalty by
the Employer would not exist. However, a "NO" vote
in the election will prove "you are for the company,
for its growth and prosperity," and we are watching
this election very carefully.
In cases like this, which pose the issue of whether an
employer is guilty of coercive speech, the "assessment
of the precise scope of employer expression, of course,
must be made in the context of its labor relations
setting." N. L. R. B. v. Gissell Packing Co., 395 U.S. 575,
617. The resolution of the issue, according to the
Supreme Court, "must take into account the econom-
ic dependence of the employees on their employers,
and the necessary tendency of the former, because of
that relationship, to pick up intended implications of
the latter that might be more readily dismissed by a
more disinterested ear" (id.). "If there is any implica-
tion," the Court further stated, "that an employer may
or may not take action solely on his own initiative for
reasons unrelated to economic necessities and known
only to him, the statement is no longer a reasonable
prediction based on available facts but a threat of
retaliation based on misrepresentation and coercion,
and as such without the protection of the First
Amendment" (ibid., p. 618).
Clearly, within these principles, the impact of the
Employer's message in the present case was to equate
expansion and other employee benefits with a "NO"
vote in the election. This was coercive. Like the
Regional Director, therefore, I would set aside the
election and give the employees an opportunity for a
fair, uncoerced election.
4 TRW Electronic Component Division, TRW, Inc, 169 NLRB No 6