Emr Photoelectric

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 256 (N.L.R.B. 1984)

256 DECISIONS OF 'NATIONAL LABOR 'RELATIONS BOARD
EMR Photoelectric, a Division of Sangamo Weston
Inc. and International Union of Electrical,
Radio & Machine Workers, AFL-CIO-CLC.
Case 22-CA-8121
14 December 198-4
SUPPLEMENTAL DECISION AND
ORDER -
By CHAIRMAN DOTSON AND MEMBERS
- HUNTER AND DENNIS
.0n 27 August 1980 the National Labor Relations
Board issued • a Decision and Order in the above-
entitled proceed-14. i; On 26 January 1981 the
,Board ' issued- an unpublished Order _Denying
Motion and Amending Decision and Order, in
which it amended footnote 1 of the original Deci-
sion and Order-to clarify the basis on which it af-
firmed the administrative law judge's credibility
findings, 2. but denied the Respondent's, motion for
reconsideration in all other respects.
Thereafter, the Respondent filed a petition for
review of the Board's Decision and Order in the
United States Court of Appeals , for the Seventh
Circuit, and the Board filed a cross-application for
enforcement. Subsequently, the Board filed a
Motion in 'the Seventh Circuit Court -of Appeals re-
questing permission to withdraw the record so that
it could- reconsider its Decision and Order:in light
of that court's decision in Red Oaks Nursing Home
v. NLRB, .633 F.2d 503 (1980), and its order in
Edward A. Utlaut Foundation v. NLRB, 657 F.2d
272 (No. 80-1903 May 27, 1981), and to address
certain other matters. On 9 November 1981 the
court granted the Board's motion, and by letter
dated 30 November 1981 the Board invited the par-
ties to submit statements of position. The Respond-
251 NLRB 1597
2 Although the unpublished Order directed that the initial Decision
and Order be printed as amended, the amendment was omitted from the
Board volume in which the Decision and Order subsequently was print-
ed Therefore, we hereby publish the footnote to be substituted for fn 1
"The Respondent has exceptd to certain credibility findings made by the
judge Administrative Law Judge John F Corbley died 7 November
1978, after the heanng in the instant case had closed before him, but
before the issuance of a decision Thereafter Chief Administrative Law
Judge Thomas N Kessel designated Administrative Law Judge Sidney J
Barban to prepare and Issue a decision based on the record made before
Judge Corbley It is the Board's established policy to attach great weight
to an administrative law judge's credibility findings insofar as they are
based on demeanor However, in contested cases the Act commits to the
Board itself the power and responsibility of determining the facts as re-
vealed by a preponderance of the evidence, and the Board is not bound
by the administrative law judge's findings of facts, but bases its findings
on a de novo review of the entire record Standard Dry Wall Products, 91
NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) Judge Barban's
credibility findings are based on factors other than demeanor, and, in
consonance with the Board's policy set forth in Standard Dry Wall Prod-
ucts, supra, we have Independently examined the record in this case We
find that there is no basis on the record in this proceeding for reversing
his credibility determinations or his findings of fact based thereon •'
273 NLRB No. 32
ent filed a statement of position and a motion to
reopen the record.
The National Labor Relations Board has delegat-
'ed its authority in this proceeding to a three-
member panel.
The Board has considered the record as a whole
in light of the Respondent's statement of position,
its motion to reopen the record, 3 and the applica-
ble decisions of the Seventh Circuit Court of Ap-
peals and makes the following findings.
As fully set forth in the judge's decision; which
the' Board adopted in its initial Decision and Order,
the 'Union began an organizational campaign
among the Respondent's employees in May 1977.
By 18 May the Union had obtained at least 30 valid
authorization cards among the 47 employees in the
unit found appropriate. On that date the Union re-
quested recognition from the Respondent and filed
a petition with the Board for a representation , elec-
tion.,By 6 June the Union had obtained and submit-
ted- to the Respondent a petition signed by 46 unit
employees requesting the Respondent to recognize
the Union as their bargaining representative. The
elebtion was held 5 August and resulted in 13 votes
for 'and 31 'against the Union. Between 22 June and
the date of the election both the Respondent and
the . Union engaged in certain misconduct.
The, Board found that the Respondent's miscon-
duct constituted unfair labor practices which were
so serious as to warrant the issuance of a bargain-
ing order. It also found that the Union's miscon-
duct did not affect the propriety of a bargaining
order. On further consideration we are persuaded
that some of the unfair labor practice findings were
erroneous and that the remedial bargaining order
was improvidently granted.
1. The Board affirmed the judge's finding that
through a series of letters and oral statements to
employees the Respondent engaged in "thinly
veiled threats that because of unionization the Re-
spondent would take action [consisting of plant clo-
sure, job, loss, and other reprisals] to the detriment
of the workers' employment." 251 NLRB at 1608.
The theme of the letters was that the Union had a
record of strikes and violence and, could make no
positive contribution to the employees or the Com-
pany. Although emphasizing the possibility of
strikes and their doleful consequences at other
plants, the Respondent's letters frankly admitted
that despite the Union's past participation in strikes
the Company did not know whether the Union
would strike at this plant. In depicting the results
of strikes at other companies, the Respondent cited
3 Because of our reconsideration of the existing record below, we find
it unnecessary to conduct a further hearing
SANGAMO WESTON INC 257
instances in which the strikes ended with little or
no economic gain to the employees and other -in7
stances in which the plants closed or production
lines moved to other locations. However, reasons
other than unionization or strikes were presented to
explain the loss of jobs. Thus, the judge credited
testimony that Executive Vice President Lee told
employees that a sister company had moved to
Puerto Rico after a strike which had resulted in the
company's loss of government contracts. He told
employees that he hoped such a loss of government
contracts would not make the Respondent move to
Texas.
We are often called on to . determine whether
statements warning employees of the adverse con-
sequences of unionization are lawful predictions or
unlawful threats.. The statements made here were
by and large neither. They were factual statements
showing that ,there were possible harmful results
from unionzation to be weighed against the possi-
ble benefits to employees. The Respondent in-
formed the employees that the Union had taken
employees out on strike at other companies and
that certain adverse consequences had ensued; that
strikers received no pay or benefits during a strike
and could be permanently replaced; and that
should the Union win the election and make Unrea-
sonable bargaining demands it would either have to
drop those demands or strike. The Respondent did
not tell employees if they selected the Union it
would close the plant or take other reprisals. In-
stead, the Respondent specifically reassured em-
ployees it would bargain in good faith with the
Union if it won the election and would take no re-
prisals in that event. We therefore find that in its
overall preelection campaign the Respondent prop-
erly avoided threatening reprisals. See J. J. Cassone
Bakery, 247 NLRB 220, 221-222 (1980).
However, the Respondent departed from the
overall pattern in one instance - and communicated
to some employees what they reasonablY might
have regarded as a threat. This occurred when
Production Manager Autera told employees that if
the Union came in and a strike ensued the Re-
spondent might move to Texas. These comments
crossed the line of permissible persuasion as to the
consequences, of unionization because they were
unaccompanied by any statement of objective facts
that conveyed the Respondent's belief that such
consequences were beyond its control. Ann's Laun-
dry & Dry Cleaners, 268 NLRB 1013, 1016 (1984).4
4 Chairman Dotson would not view Autera's statements in isolation
from the general tenor of the Respondent's message to employees—the
truthful information that adverse consequences such as a plant relocation
could follow a strike Therefore, he would not find that Autera's com-
ments constituted a thrat See NLRB v Shenanigans, 723 F 2d 1360,
1367-1368 (7th Or 1983)
Respondent also unlawfully solicited employees'
grievances, promised them that without the Union
their problems would be rectified within 9 months,
and coerciyely interrogated two employees. These
few 8(a)(1) violations, however, do not warrant im-
posing a bargaining order in the circumstances pre-
sented here.
The question which must be faced here, as in all
cases in which an employer has rejected a union's
valid majority showing by way of authorization
cards and committed unfair labor •practices, is
whether "the possibility of erasing the effects of
past practices and of ensuring a fair election (or . a
fair rerun) by the use of traditional remedies,
though present, is_ slight and that employee senti-
ment once expressed through cards would, on bal-
ance, be better protected by a bargaining , order."
NLRB v. Gissel Packing' Co., 395 U.S. 575, 614,-615
(1969). This question must be answered in light of
the facts of each case and with due regard for the
principle that generally a secret-ballot Board-con-
ducted election is the preferred method of ascer-
taining employee choice. Id. at 602. Therefore, we
look not only to the seriousness of the unfair labor
practices, but also to their extensiveness "in terms
of 'their past effect on election conditions and the
likelihood of their recurrence in. the future." Id. at
614.5
Here, ascertainment of the causal relationship be-
tween the Respondent's unfair labor practices and
the Union's election loss is difficult. For the pree-
lection campaign was characterized not only by
certain coercive statements by the Respondent but
also by an extensive lawful campaign by the Re-
spondent and by a countervailing . campaign by the
Union that included both permissible and impermis-
sible tactics. The Union's misconduct consisted of
the following . threats to employees: (1) that if the
Union lost the election it would file charges and
hold up the proceedings indefinitely, impliedly
with the aid of Members of this Board and Con-
gressmen whom it "could control"; (2) that "noth-
ing would get across" a union picket line and any
male employee who attempted to cross might
never see his wife again; (3) that if certain employ-
ees campaigned for the Respondent "there will be
no holds barred" and "when the [Union] got in,
positive, [those employees] were gone"; and '(4)
that another employee who said he would not vote
5 Although the Board's concern at the time It withdrew this case from
the Seventh Circuit was the inadequacy of its articulated analysis of the
need for a bargaining order under that court's holdings in Red Oak Nurs-
ing Home and Utlaut Foundation, supra, we cannot fall to take cognizance
of the Seventh Circuit's recent decision in NLRB v Shenanigans, 723
F 2d 1360 at 1370-1372, in which it vigorously reaffirmed those princi-
ples cited in the text above that dictate caution against too freely dispens-
ing with elections
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the Union would find it difficult to continue
working for the Respondent no matter how the
vote went and the Union would 'blacklist him and
had other "ways of dealing" with him. These
threats could have backfired on the Union and
caused employees to want to have nothing further
to do with it. 6 To the extent that employees were
not adversely influenced by the Union's miscon-
duct, they' may have been influenced by the Re-
spondent's legitimate arguments' concerning the
possible -adverse effects of voting the Union in as
bargaining representative. With all these factors 'Op-
erating on the employees' choice, it would be little
more than speculation to conclude that the Re-
spondent's unfair labor practices were the factor
that decisively tipped the scales.7
The unfair labor practices were not extensive
when considered as part of the general preelection
atmosphere created in part by the parties' cam-
paigning. Their precise effect on the election -being
uncertain, still less confidently could we predict
from the nature of the violation that they 'are likely
to recur. 8 -The interrogations and the single implied
threat of plant relocation were committed -by indi-
viduals relatively low, in the Respondent's manage-
ment hierarchy. 6 Although their conduct is imputa-
ble to the Respondent in that employees reasonably
may have believed that it was authorized by man-
agement, there is no evidence that what they did
or said had specific authorization 'from higher
levels. Those involved in unlawfully soliciting
grievances- and promising benefits were high- man-
agement officials, the Respondent's vice president
an-d an executive vice president of Sangamo
Weston Inc.; of which the Respondent is- a division. -
Thus, their conduct niay be presumed to be a cal-
culated company tactic. However, neither the Re-
spondent nor Sangamo. Weston Inc. (which has
• Chairman Dotson would find that the Union's outrageous conduct
was far more serious than that allegedly engaged in by the Respondent
and in and of itself precludes granting a bargaining order
7 On objections 'filed by the Union, the Regional Director set aside the
diction and the Board affirmed his findings and recommendations direct-
ing a second election However, the Regional Director dismissed the pe-
tition in the representation proceeding on Issuance of the complaint in the
instant case Our observations concerning the actual effect of the unfair
labor -practices on the election outcome do not contradict the Board's
finding-in the representation case that the Company's conduct reasonably
tended td interfere with the employees' freedom of choice in the election
• 8 We attempt to ascertain the likelihood of 'recurrence from the cir-
cumstances surrounding the original unfair labor practices and such other
events as may have probative value The Respondent's restraint from ad-
ditional unfair labor practices during the pendency of this case tells us
little about its likelihood to commit new unfair labor practices in the
future
° Ronald Klukososkl, a leadman in the Respondent's employ who in-
terrogated two employees, was not found to be a supervisor but to be an
agent with apparent authority to speak for management Production Man-
ager Tony Autera, who made the remarks' about possibly moving to
Texas, was a subordinate to the general manager of the plant Involved
here His supervisory status after January 1978 is in doubt '
been involved in many union organizing campaigns.
and in' collective bargaining) . has been found to -
have committed any unfair labor. practices other
than in the instant case. Given its history of appar-
ent willingness to abide by the requirements Of the
Act although presented with opportunities • to do
otherwise, we see no indication 'that the Company
will become a recidivist.
Finally, we' note that the Respondent committed
but one "hallmark" violation (Production Manager
Autera's threat of plant removal to some employ-
ees) and relatively few "non-hallmark" violations
(soliciting grievances, promise of benefit, and- coer-
cive interrogations). See NLRB v. Jamaica Towing,
632 F.2d 208, 212-213 (2d Cir. 1980). Accordingly,
and for all of the above reasons, we find that the
General Counsel has failed to establish that the Re-
spondent unlawfully refused to recognize and bar-
gain with the Union.' We further find that the Gen-
eral Counsel has failed to establish that the Board's
traditional remedies are inadequate to erase the ef-
fects of the Respondent's few unfair labor practices
and ensure'a fair election." For similar reasons we
find that the Respondent's unfair labor practices do
not warrant a broad cease-and-desist order. Hick-
mott Foods, 242 NLRB 1357 (1979): -Accordingly,
we shall reseind our previous Order and- substitute
one that conforms to the findings and - conclusions
set forth above:
ORDER .
. The National Labor Relations Board orders that
the Respondent, EMR Photoelectric, a Division of
Sangamo Weston Inc.; Princeton Junction, New
Jersey, its officers, agents, successors, and , assigns,
shall
1. Cease and desist from
(a) Threatening to move its operations because
its employees engage in activities on behalf of a
labor organization or support a labor organization.
(b) Directly or indirectly promising employees
benefits or improvement in their working condi-
tions for the purpose of inducing employees not to
join, remain members of, or otherwise support a
labor organization.
(c) Soliciting employee grievances or complaints
with an implied promise of in proving employee
working conditions or granting benefits for , the
purpose of , inducing employees not to join, remain
We therefore find it unnecessary to reach the Respondent's conten-
tions that a bargaining order should be denied due to employee turnover
and changes in managment, and we deny the Respondent's motion to
reopen the record as moot See fn 3, above
In concurring in the denial of the bargaining order remedy, Member
Dennis relies solely on the reasoning set forth in the paragraph to which
this footnote is appended and not on any reasons set forth earlier in this
decision
SANGAMO WESTON INC 259
members of, or otherwise supPort a labor organiza-
tion.
(d) Coercively interrogating employees concern--
ing their union membership, sympathies, or activi-
ties or those of other employees.
(e) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of their rights to self-organization, to form,
join, or assist the Union, or any other labor organi-
zation, to bargain collectively through representa-
tives of their own choosing, and to engage in con-
certed activities for the purposes of collective bar-
gaining or other mutual aid or protection, or to re-
frain from any or all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act.
(a) Post at its operations in Princeton Junction,
New Jersey, copies of the attached notice marked
"Appendix."" Copies of the notice, on forms pro-
vided by the Regional Director for Region 22,
after being signed by the Respondent's authorized
representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60
consecutive days in conspicuous places including
all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is
dismissed as to alleged violations of the Act not
found hereinabove in this decision.
" If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT threaten to move our operations
because our employees , engage in activities on
behalf of or support International Union of Electri-
cal, Radio & Machine Workers, AFL-CIO-CLC,
or any other labor organization.
WE WILL NOT directly or indirectly promise em-
ployees benefits or improvement of working condi-
tions for the purpose of inducing employees not to
join, remain members of, -or otherwise support a
labor organization.
WE WILL NOT solicit employee grievances or
complaints with an implied promise of improving
working conditions or grant benefits for the pur-
pose of inducing employees not to join, remain
members of, or otherwise support a labor organiza-
tion.
WE WILL NOT coercively interrogate employees
concerning their union membership, symfiathies, or
activities or those of other employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7
of the National Labor Relations Act.
EMR PHOTOELECTRIC, A DIVISION
OF SANGAMO WESTON INC.