Ethyl Corp.

National Labor Relations Board - Board Decisions

Aug 16, 1977

231 N.L.R.B. 431 (N.L.R.B. 1977)

ETHYL CORPORATION
Ethyl Corporation and United Rubber, Cork, Linole-
um and Plastic Workers of America, AFL-CIO-
CLC. Case 26-CA-5959
August 16, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On September 24, 1976, Administrative Law Judge
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief and Respon-
dent filed cross-exceptions and a supporting brief
and a brief in answer to the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
The Administrative Law Judge found, and we
agree, that Respondent violated Section 8(a)(l) of the
Act by soliciting employee grievances and by
interrogating certain employees about their union
sympathies and desires. However, he further con-
cluded, inter alia, that Respondent did not violate
Section 8(a)(I) when Division President Ray Wilkins
indicated during Respondent's preelection campaign
that there was a possibility of a layoff if the
employees selected the Charging Party as their
bargaining representative. The Administrative Law
Judge also concluded that the layoff that, in fact, did
occur later did not violate Section 8(a)(3). We
disagree with these conclusions, as well as several
additional findings of the Administrative Law Judge
as specified below.
Background
Two of Respondent's plants are involved in the
instant case: (I) the 50-employee Tiptonville, Ten-
nessee, plant that the Charging Party was attempting
to organize, and (2) the already unionized 2,000-
employee Baton Rouge, Louisiana, plant. The
Tiptonville plant produces only polyvinyl chloride
compounds (PVC), while Baton Rouge manufactures
other compounds. Although the Baton Rouge plant
I As noted, it would take 60 to 90 days for the line to become
operational.
2 The Baton Rouge line was operational at that time.
:' As there was no immediate need for additional production, the Baton
Rouge startup necessitated the Tiptonville layoff
231 NLRB No. 40
also has the capability to produce PVC, it was not
producing the compound when the union campaign
took place at Tiptonville. During the organizational
campaign at Tiptonville, Respondent sent its repre-
sentatives to Tiptonville to convince the employees
that they did not need a union.
8(a)(1) Threat and 8(a)(3) Layoff
During the course of the organizing campaign at
Tiptonville, Respondent's representatives spoke to
groups of Tiptonville employees between Monday,
October 13, and Wednesday, October 15, 1975. At
these sessions, Wilkins, the president of the division,
repeatedly stated that, if the Tiptonville plant went
union, Respondent would reopen the PVC produc-
tion line at Baton Rouge to avoid being placed in a
position where a strike at Tiptonville could cost it all
of its PVC production. Despite the objections of
employees that they did not want or plan to strike,
Wilkins maintained that the mere presence of a
union at the plant provided a sufficient justification
for preparing for a strike at sometime in the future.
Wilkins specifically stated that he had no intention of
punishing the employees if they selected a union, but
that if employees selected the Charging Party it
would be necessary to start up the Baton Rouge line
because it would take between 60 and 90 days to
activate the PVC line at the latter plant. He indicated
that he hoped sales would also justify opening the
Baton Rouge line at that time, but he was not
optimistic and, if Respondent could not use such a
level of production, production would be cut at
Tiptonville. The comments by Wilkins are the basis
for the 8(a)(l) allegation.
Upon leaving Tiptonville, but before the election,
Wilkins realized that the employees would in all
probability select the Charging Party, so, in late
October 1975, he ordered Baton Rouge to start up
the PVC line at that time.' In early November 1975,
the Union won the election, 42 to 6. On January 12,
1976,2 Respondent laid off the nine least senior
production employees at Tiptonville by changing
from a 7-day-a-week, 24-hour-a-day operation (with
one guaranteed shift of overtime each week for one
of the shifts) to a 5-day-a-week, 24-hour-a-day
operation. 3 The layoff, which gave rise to the 8(a)(3)
allegation, lasted until April 1976, when sales
required that Tiptonville resume production at full
capacity and the laid-off employees were offered
reemployment. 4
In dismissing the 8(a)(3) allegation, the Adminis-
trative Law Judge attempted to apply the criteria
4 It should be noted that at the time Wilkins spoke to the employees in
October 1975 he had already projected figures for 1976 and, based thereon,
had decided that the Baton Rouge plant would have to be reopened at some
(Continued)
431
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
established by the Supreme Court in Gissel Packing
Co.,5 and found that the likelihood of strikes at
unionized plants were "objective fact"; that Wilkins'
sole motive for opening the Baton Rouge line when
he did was his concern that a Tiptonville strike would
leave Respondent without any PVC production; that
Respondent's action was not "inherently destructive
of employee interest" as construed by the Supreme
Court in Great Dane Trailers,6 but rather any harm
which the employees suffered was "comparatively
slight," and since a substantial business end was
thereby served the Administrative Law Judge con-
cluded that Respondent's action was no violation of
Section 8(a)(3) and Respondent's prior announce-
ment of that action was not an 8(a)(1) violation. We
disagree with the Administrative Law Judge's analy-
sis of the record evidence and with his application of
relevant principles of law thereto.
Without attempting to unscramble entirely the
Administrative Law Judge's tangled reasoning,
which we have here only summarized, it is evident
that the Administrative Law Judge's reading and
application of the Supreme Court's Gissel and Great
Dane decisions is faulty and his own decision
contains many contradictions and inconsistencies.
In the first place, the Administrative Law Judge is
plainly wrong in concluding that fear of the possible
economic impact of unionization-here Wilkins'
asserted concern that if Tiptonville employees
selected the Union they would sooner or later engage
in a strike-is at once an "objective fact" and a
"substantial and legitimate business reason" for
threatening to take steps, and actually taking steps,
that would inevitably end in the loss of work and in
layoffs. Obviously, the unionization of its employees
will have some economic impact on an employer.
However, were we to adopt the Administrative Law
Judge's reasoning that the fear of such potential
impact justifies an employer in announcing to
employees that if they select the union it will take
action that will lead to the loss of their work and to
layoffs, we will have gone a long way toward
undercutting, if not eliminating, the rights guaran-
teed employees under Section 7 of the Act. We can
think of no more potent threat of retaliation
available to an employer than a threat of loss of work
and of layoffs if employees choose the union.
The Administrative Law Judge's analysis would
also rule out, for all practical purposes, any applica-
tion of the unfair labor practice sections of the
statute in the context of an employer's response to
the organizational activities of its employees. Indeed,
one may safely assume that at the heart of every
point in 1976 but had not determined precisely when. He was then thinking
of a January I. 1976. startup with the plant being operational 60 to 90 days
later. He did not inform the employees of his decision (regardless of the
Union) to open up the Baton Rouge line at some point in 1976.
antiunion campaign which previously this Board has
found unlawful there existed employer fear of the
economic impact of unionization. To suggest that the
existence of such a "fear" immunizes the employer
from the application of the Board's processes, in
effect would render Section 8(a)(1) and (3) of the Act
meaningless. Such a result is, of course, contrary to
Great Dane, to the runaway plant cases (of which this
is a variety), and to numerous other decisions of the
Board.
Turning to the specifics of this case, we are satisfied
that the record warrants finding a violation of
Section 8(a)(1) predicated on Wilkins' October 1975
statements to Tiptonville employees and a violation
of Section 8(a)(3) based on his decision to implement
the reopening of the Baton Rouge line immediately
on his return from the Tiptonville plant.
As for the Administrative Law Judge's reading of
Gissel and his conclusion therefrom that Wilkins'
statements about reopening the Baton Rouge line
were predictions based on objective fact, the Admin-
istrative Law Judge conceded that "a strike at
Tiptonville was not even a cloud on the horizon no
larger than a man's hand .... " Moreover, as found
specifically by the Adminstrative Law Judge, at the
time Wilkins told employees that if they selected the
Union he would reopen the Baton Rouge line he
knew, based on Respondent's own sales predictions,
that the Baton Rouge line would have to be reopened
at sometime in 1976, union or no union. By coupling
the reopening of the Baton Rouge line and the
consequent likelihood of layoffs at Tiptonville with a
union victory, Wilkins could only have intended to
convey to his Tiptonville employees a threat of
economic retaliation if they voted for the Union. The
testimony of his employees makes it clear that he
succeeded in conveying the message.
As for the question of motivation behind Wilkins'
decision to reopen Baton Rouge immediately on his
return from the Tiptonville trip, it is essential to note
the Administrative Law Judge's finding that the
decision was triggered by what Wilkins saw at
Tiptonville, i.e., a plant "irretrievably lost" to the
Union. In fact, as the Administrative Law Judge
admits, had Wilkins acted on the basis of business
considerations (sales), "he might well have post-
poned the decision to reopen Baton Rouge ....
Instead, he reopened the Baton Rouge line at a time
when there was no need for additional PVC produc-
tion. Thus, Wilkins intentionally set the stage for the
Tiptonville layoffs which even the Administrative
Law Judge concedes need never have happened but
for the untimely and unwarranted decision to open
5 N L. R.B. v. Gissel Packing Co., Inc., 395 U.S. 575(1969).
6 N. L. R.B. v. Great Dane Trailers, Inc., 388 U.S. 26 (1967).
432
ETHYL CORPORATION
Baton Rouge immediately. Wilkins also demon-
strated to employees, as one supervisor pointed out,
that he was "a man of his word." 7
The Administrative Law Judge's rationale for
concluding that Respondent's action in reopening
the Baton Rouge line was neither discriminatory nor
injurious, to any substantial extent, to employee
rights is also mistaken. Although at best the
Administrative Law Judge's reasoning is convoluted,
he appears to be arguing that his conclusions
necessarily follow from the absence of evidence that
Respondent selected known union adherents for
layoff at Tiptonville, but rather followed seniority,
"the ultimate in nondiscriminatory standards."
For the reasons expressed previously herein, it is
plain that Respondent's decision to reopen the Baton
Rouge line and the Tiptonville layoffs resulting
therefrom were, by Respondent's own admission,8
caused by the advent of the Union and Respondent's
hostility to it, and therefore violated Section 8(a)(3)
of the Act. That Respondent did not choose to
compound the wrong by picking out union adherents
for layoff at Tiptonville can hardly cure the unlawful
nature of Respondent's initial decision causing the
layoffs. Taking the Administrative Law Judge's
position to its logical conclusion, one might as well
contend that if an employer decides to eliminate an
incipient union movement "root and stem" by
discharging the entire employee complement his
decision to do so is not discriminatory. See, in this
regard, Rea Trucking Company, Inc., 176 NLRB 520
(1969).
Our dissenting colleague has, we think, failed to
take account of record facts and has relied on the
wrong legal principles. In the first place, this is not a
case in which evidence of Respondent's unlawful
motive is lacking. On the contrary, and although our
colleague would have it otherwise, the record
establishes that the Company responded to its
employees organizational activities with an antiunion
campaign orchestrated by the highest levels of its
management,9 including admissions by the Company
that it would close the plant to avoid having the
employees represented by a union, and that this was
the purpose of starting PVC production at Baton
Rouge. Most importantly, the application of relevant
legal principles to the record plainly demonstrates
the coercive and unlawful nature of statements made
7 The Administrative Law Judge found that Wilkins stated at a
supervisors' meeting, "Those sons-of-bitches think I'm kidding. It's not a
threat. it's a promise. I will shut down one line if the Union comes in."
However, based on his prior analysis of the legal consequences of Wilkins'
similar statements to employees, the Administrative Law Judge concluded
that a supervisor who repeated the above quote to employees did not
thereby violate Sec. 8(aX 1) of the Act. We disagree with the Administrative
Law Judge's substantive finding and with his apparent refusal and failure to
consider Wilkins' comments to supervisors as background which further
illustrates the unlawful nature of Wilkins' statements to employees.
by Respondent's division president and by its
supervisory personnel concerning the opening of the
additional PVC production line and the probable
loss of work at Tiptonville.
It would appear that our colleague's difficulty with
this aspect of the case lies in his inability or
unwillingness to distinguish between a lawful predic-
tion, based on "objective fact," of consequences
beyond the employer's control and a thinly veiled
threat of economic retaliation against employees who
persist in their organizational activities. As we have
noted previously herein, any contention that this
Respondent's purported "fear" of the possible or
potential effect of unionization-the supposition of a
greater likelihood of strikes-constitutes "objective
fact" within the meaning of the Supreme Court's
Gissel decision is without support in logic or in law.
And our colleague concedes as much by admitting
the obvious-that no strike was anticipated, let alone
imminent, at the Tiptonville plant.
Accordingly, for all the foregoing reasons, we
conclude that Respondent violated Section 8(a)(1)
and (3) of the Act, as alleged.
B. Other Violations Alleged
1. The Administrative Law Judge concluded that
Supervisor Nunnery did not violate Section 8(a)(l)
when, in relaying to several employees the comments
of Wilkins at a supervisors' meeting regarding the
possibility of a reduction in plant production if the
Union came in, he quoted Wilkins as having
remarked that, "Those sons-of-bitches think I'm
kidding. It's not a threat, it's a promise. I will shut
one line down if the Union comes in." We find merit
in the General Counsel's exception to the Adminis-
trative Law Judge's dismissal of this allegation as we
have noted in fn. 7, supra, and, accordingly, we find
that by Nunnery's statements Respondent violated
Section 8(a)(l).
2. The Administrative Law Judge found that
Respondent's representative, Baker, did not violate
Section 8(a)(1) during an exchange with employees
Brewer and Bargery while he walked through the
plant one evening. After observing their union
buttons, Baker asked Bargery, "Why are you wearing
the buttons anyway?" Bargery laughed and respond-
ed, "I don't know. I'm wearing them because
See, inter alia, fn. 7, supra.
9 We should not have thought it necessary to remind our colleague that,
although direct evidence of unlawful intent (such as an admission by the
employer as to his actual state of mind) necessary to establish a violation of
Sec. 8(a)(3) is rarely available, we are fully warranted in considering all the
facts and circumstances of a case and in drawing therefrom any and all
reasonable inferences going to the matter of motive. See Darlington
Manufacturing Company, 165 NLRB 1074 (1967); Shattuck Denn Mining
Corporation v. N. LR.B., 362 F.2d 466 (C.A. 9, 1966).
433
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
everybody else is." Baker responded, "I'll be damned
if ya'll can't . . . up a wet dream." The employees
laughed and Baker departed. The Administrative
Law Judge dismissed the 8(a)(1) allegation by
concluding that the exchange was a joke that did not
rise to the level of 8(a)(l) coercion. Contrary to the
Administrative Law Judge, we find that Baker's
comments violated Section 8(a)(l). It is well estab-
lished that the coercive and unlawful effect of a
statement is not blunted merely because interroga-
tions of, warnings to, or disparaging statements
about union adherents are accompanied by laughter
or made in an offhand humorous way. to
3. The Administrative Law Judge found that
Plant Manager Birch did not violate Section 8(a)(l)
during a conversation with employee Moore in the
foreman's office. During the conversation Birch
asked Moore how he felt about the Union. Before
Moore responded, Birch said, "Well, I don't want to
put you on a spot. I don't know how you're going to
vote and I don't want to know." Moore said he was
still undecided. The Administrative Law Judge, in
dismissing the charge on the basis of Birch's
disclaimer, rejected the General Counsel's contention
that the exchange was coercive. We disagree with the
Administrative Law Judge. Although Birch did
include a disclaimer-that he did not want to put
Moore on the spot and that Moore did not have to
answer-by then Birch had already confronted
Moore and, if Moore did not answer, his silence
could be construed as support for the Union.
Accordingly, we find that Birch violated Section
8(a)(1) by coercing Moore in the exercise of his
Section 7 rights.
4. The Administrative Law Judge found that
Respondent's employee relations representative,
Darryl LeBlanc, did not violate Section 8(a)(1) by
indicating to employees that Wilkins was a "man of
his word." This comment arose after some employees
inquired about the seriousness of Wilkins' projection
that production would be reduced if the Union won.
LeBlanc then said that he could not comment about
what Wilkins had said because he was not present at
the time, however, Wilkins was a "man of his word."
The Administrative Law Judge had relied on his
dismissal of the 8(a)(1) violation concerning Wilkins'
actual statement to dispose of the LeBlanc statement.
"' See, e.g.. Lucy Ellen Candy Division of F & F Laboratories, Inc., 204
NLRB 121 (1973).
i" While a majority of the panel would affirm the Administrative Law
Judge, Member Jenkins would reverse his finding that Plant Manager Birch
did not violate Sec. 8(aKI) dunng a conversation with employee Cranford
after one of the meetings with the employees. At that time, Birch
approached Cranford in the laboratory and inquired about the impression
Wilkins had made during the meeting. After Cranford ascertained that
Birch was serious, Cranford responded, "Well, I think he ... and fell back
in it." Birch then said. "What do you mean by that?" Cranford answered.
"Well, as it was standing, in my opinion. 50 percent of the men that was in
Since the LeBlanc statement is so closely con-
nected to the actual statement by Wilkins, and since
we have found that statement to be violative of the
Act, we conclude, unlike the Administrative Law
Judge, that the LeBlanc statement is also violative of
Section 8(a)(1).
5. With respect to the General Counsel's excep-
tions to the Administrative Law Judge's finding that
Respondent's representatives-Wilkins, Gyan, and
Baker-did not violate Section 8(a)(I) when they
solicited grievances from the Tiptonville employees
during the plant meetings on October 13 and 14, we
find it unnecessary to pass on this issue inasmuch as
an additional finding thereon would be cumulative."
AMENDED CONCLUSIONS OF LAW
Add the following as Conclusions of Law 7 and 8:
"7. By threatening employees that if they select a
union production will be reduced and jobs will be
lost, Respondent engaged in, and is engaging in,
unfair labor practices within the meaning of Sections
8 (aXl) and 2(6) and (7) of the Act.
"8. By reducing production, laying off employees,
and reducing overtime because its employees might
select a union to represent them for collective
bargaining, Respondent engaged in, and is engaging
in, unfair labor practices within the meaning of
Sections 8(a)(3) and (1) and 2(6) and (7) of the Act."
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices violative of Section 8(a)(1) and
(3) of the Act, we shall order that it cease and desist
therefrom and that it take certain affirmative action,
including making whole all employees who were laid
off and who were denied overtime as a result of the
reduction in PVC production. All backpay computa-
tions shall be in accordance with F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962). The attached
order and notice shall be substituted for that of the
Administrative Law Judge.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
the meeting would have voted against the Union. But then he came in and
acted the way he did, and they'll vote for it now. I know I will." Birch then
said, "Are you going to vote for it because you're mad, or did he change
your mind?" The Administrative Law Judge reasoned that Birch did not
initially attempt to ascertain how Cranford felt about the Union; rather,
Cranford volunteered that information and Birch's words would not have
restrained or coerced any employee. Member Jenkins would find that,
although the initial exchange between Birch and Cranford was relatively
innocuous, when Birch questioned Cranford about his motive in supporting
the Union, the incident reached the level of a violation because it would
tend to coerce the employee in exercising his Sec. 7 rights.
434
ETHYL CORPORATION
Relations Board hereby orders that the Respondent,
Ethyl Corporation, Tiptonville, Tennessee, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees that if they select a
union production will be reduced and jobs will be
lost.
(b) Reducing production, laying off employees,
and reducing overtime because the employees may
select a union to represent them for collective
bargaining.
(c) Soliciting employee grievances.
(d) Interrogating employees about their union
sympathies and desires.
(e) In any other manner interfering with employees
or attempting to restrain or coerce employees in the
exercise of their Section 7 rights.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Make whole laid-off employees Thomas J. Dial,
John D. Moore, Grant V. Nichols, Roger W.
Norquist, Jr., Jackie L. Brewer, J. W. Ashmore,
James F. Tolley, Jr., Mark E. Rhodes, and Charles E.
Archie, and all other employees, for any loss of
earnings or other monetary losses suffered by them
in the manner set forth in the section of this Decision
entitled "The Remedy." 1 2
(b) Post at its plant in Tiptonville, Tennessee,
copies of the attached notice marked "Appendix." 1'3
Copies of said notice, on forms provided by the
Regional Director for Region 26, after being duly
signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon
receipt thereof, and be 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
MEMBER WALTHER, dissenting:
Unlike my colleagues, I would dismiss the 8(a)(1)
and (3) allegations of the complaint against Respon-
dent which stemmed from the layoff of nine
employees at the Tiptonville plant. I believe, as did
12 The record indicates and the Administrative Law Judge found that
Respondent reemployed seven of the nine laid-off employees in April 1976.
To the extent that this action occurred and to the extent that the remaining
two employees failed to express interest in resuming their jobs, these are
factors that can properly be considered at the compliance stage of this
proceeding.
':' In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a
the Administrative Law Judge, that Respondent
predicated its action on sound and legitimate
business considerations and that the harm that
resulted to the employees was "comparatively
slight." I find also that not only does the record
evidence fail to support the majority's conclusions to
the contrary but that, in their zeal to find violations,
the majority misconstrued the Supreme Court's
pronouncements in Great Dane Trailers,'4 and failed
to consider the Supreme Court's decisions in Brown
Food Store'5 and American Ship Building Co. 16
The facts in this case are basically uncontested.
The Charging Party conducted an organizational
campaign at Respondent's Tiptonville, Tennessee,
plant in the fall of 1975. Respondent engineered its
own campaign, during the course of which it
informed the employees that, if the Charging Party
won, it would be forced to reopen an inactive PVC
line in Baton Rouge, Louisiana, as a hedge against a
strike at Tiptonville which could render it incapable
of producing any PVC compounds.17 Respondent
informed the employees that, should the Union win
and the Baton Rouge production line be reopened, it
could well result in a production cutback at Tipton-
ville. Thereafter, sensing the likelihood of a union
victory, Respondent began production of the PVC
compound at Baton Rouge. As a result of this new
source of production, Respondent, some 3 months
later, laid off nine Tiptonville employees. These
employees were later offered reemployment when an
increase in demand for PVC justified full production
at both Tiptonville and Baton Rouge. On the basis of
Respondent's layoff and its prior statements about
the possibility of that layoff, my colleagues find that
Respondent violated the Act.
Resolution of this case, in my view, requires that
the needs of Respondent in effectively operating a
business in a competitive industry and the protec-
tions that the Act furnishes employees in the exercise
of their Section 7 rights be placed in their proper
perspective. In other words, the dilemma in this case
is resolved by balancing conflicting rights. The
Administrative Law Judge recognized this and did a
thorough job of sifting through the various compet-
ing interests here. His analysis of the factual and
legal issues involved merits reiteration.
In essence, the Administrative Law Judge found
that whether Respondent's reason for reopening the
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
4 N LR. B. v. Great Dane Trailers, Inc., 388 U.S. 26(1967).
is N.LR.B. v. John Brown, d/b/a Brown Food Stores, 380 U.S. 278 (1965).
is American Ship Building Co. v. N.L R.B. 380 U.S. 300 (1965).
'7 At this time all of Respondent's PVC compounds were being
manufactured at Tiptonville. In the event of a strike at Tiptonville,
Respondent would need a 60- to 90-day leadtime before production could
begin at Baton Rouge.
435
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Baton Rouge line was discriminatory, as defined in
the Act, was to be determined in accordance with the
standard set down in the Supreme Court's Great
Dane Trailers decision. There, the Court noted that
the 8(a)(3) proscription against "discrimination . . .
to . . . discourage" union membership meant that
the violation would turn on whether the discrimina-
tion was motivated by an antiunion purpose. It is
true that certain actions were deemed by the Court to
be so "inherently destructive of employee interests"
that they were generally proscribed irrespective of
motivation. These actions, the Court noted, carried
their own indicia of illegal intent. Other employer
actions, however, the Court added, might result in
"comparatively slight" harm to employee rights while
at the same time serving a legitimate business
purpose. In such circumstances, the employer's
conduct is prima facie lawful and affirmative evi-
dence of illegal intent must be shown to make out a
violation. The Administrative Law Judge set out
these principles noted by the Court and, applying
them, found Respondent's action in reopening the
Baton Rouge line was not "inherently destructive" of
employee rights. He noted that the term "inherently
destructive" generally involved situations of dispar-
ate treatment of prounion employees and that such
had not occurred here. Rather, the Administrative
Law Judge found that, in a legal sense, the harm to
the Tiptonville employees was comparatively slight.
He noted, for example, that no prounion employee
had been singled out for layoff; that the number of
employees laid off was kept to a bare minimum; and
that all laid-off employees were called back as soon
as possible. The Administrative Law Judge also
found that the reopening of the Baton Rouge
production line served a substantial business need in
protecting against the possibility of Respondent's
suffering a complete inability to produce the PVC
compound for a lengthy period of time should a
strike occur at Tiptonville. Accordingly, the Admin-
istrative Law Judge concluded that in the absence of
countervailing evidence of illegal intent Respon-
dent's action was lawful.
My colleagues categorize the Administrative Law
Judge's analysis as "convoluted." While they may
deem it such, the Supreme Court asks nothing less.
Indeed, in its place, my colleagues substitute simplis-
tic reasoning which, as is noted further below, the
Supreme Court has rejected on numerous occasions.
My colleagues incorrectly assume that, because an
action such as the reopening of the Baton Rouge
production line may tend to discourage union
activities, the action was meant, in fact, to discourage
those activities in contravention of the Act.
t" Brown Food Store, supra at 286.
19 But see American Ship Building Co., supra at 312, for a possibly
Three elements must be present to establish a
violation of Section 8(a)(3). As the Supreme Court
has indicated, "under that section both discrimina-
tion and a resulting discouragement of union
membership are necessary, but the added element of
unlawful intent is also required."1 8 Here, to the
extent that Respondent took certain action in
response to the union activities of the Tiptonville
work force, it may be said that it "discriminated"
against them.19 And to the extent that its action may
have dissuaded some of the employees from support-
ing the Union, it may also have discouraged union
membership. But such conclusions prove nothing. In
Brown Food Store, supra at 286, the Supreme Court
noted that:
Under that section [Section 8(a)(3)] both discrim-
ination and a resulting discouragement of union
membership are necessary, but the added element
of unlawful intent is also required. In Buffalo
Linen [another case the Supreme Court decided]
itself the employers treated the locked-out em-
ployees less favorably because of their union
membership, and this may have tended to
discourage continued membership, but we reject-
ed the notion that the use of the lockout violated
the statute. The discriminatory act is not by itself
unlawful unless intended to prejudice the employ-
ees' position because of their membership in the
union; some element of antiunion animus is
necessary. [Emphasis supplied.]
My colleagues have failed to prove that critical third
element of an 8(a)(3) finding emphasized above.
To the extent my colleagues do attempt to prove
that element, their attempts fail. First, they attempt
to belittle Wilkins' fear of a strike at Tiptonville by
noting that the possibility of such a strike was in no
way imminent. However, my colleagues have failed
to consider Respondent's unique situation in which it
took a 60- to 90-day startup period before a PVC
production line could be operational at any location.
While the possibility of a strike at Tiptonville might
not have been an objective fact on the day Wilkins
spoke his words, the possibility of a strike at some
point at a unionized plant is clearly, as the Adminis-
trative Law Judge held, an objective fact. Equally
clear is the fact that it was this more generalized
situation which Wilkins had in mind, that a union
victory was a certainty, when Respondent started up
the Baton Rouge line. The practical result of my
colleagues' view is to supply the Union with
significant leverage at the bargaining table; i.e., the
knowledge that, since it would take 60 to 90 days for
contrary view. In any event, I will assume arguendo that Respondent
"discriminated" here.
436
ETHYL CORPORATION
any PVC startup operation at another facility to
become effective, Respondent would be vulnerable
to a strike which would effectively preclude Respon-
dent from producing any PVC compound anywhere.
I find nothing in either the letter or spirit of our Act
which precludes Respondent from counteracting this
leverage through protective measures taken for
strictly business purposes.2 0
My colleagues raise basically the same complaint
that they do about the absence of an imminent strike
when they ascribe a sinister motive to the fact that
the Baton Rouge startup occurred at a time when
there was no need for additional PVC production.
However, such a fact also proves nothing. Again, it
was Respondent's unwillingness to be caught in a 2-
to 3-month period in which a strike would shut down
its entire capacity to produce an entire product line
that resulted in its decision to open up the Baton
Rouge line. The fact that there was no immediate
market for the additional PVC to be produced at that
time does not indicate that that decision was
motivated by antiunion-as opposed to legitimate
business-considerations.
My colleagues also note that Wilkins failed to tell
the employees that the Baton Rouge line was going
to open at some point in 1976, "union or no union."
They then indicate that by Wilkins' "coupling the
reopening of the Baton Rouge line and the conse-
quent likelihood of layoffs at Tiptonville with a
union victory" he meant to convey a threat of
economic retaliation if the Union won. My col-
leagues thus state that Respondent's coupling the
likelihood of layoffs only with the Union evidences
an intent to retaliate against the employees for their
union activities. My colleagues' conclusion is pure
speculation unless they are able to show that
Respondent anticipated laying off Tiptonville em-
ployees in any event when Baton Rouge opened up.
Absent such evidence-of which there is none-I
find nothing sinister in Respondent's failure to
mention the projected 1976 Baton Rouge startup to
the employees in 1975.2 1
20 In a context where a union has already been selected as the employees'
bargaining representative, the Supreme Court, in Brown Food Store, supra at
283. stated. "Even the Board concedes that an employer may legitimately
blunt the effectiveness of an anticipated stnke by stockpiling inventories,
readjusting contract schedules, or transferring work from one plant to another,
even if he thereby makes himself 'virtually strikeproof.' " (Emphasis
supplied.) The situation here is not appreciably different from that quoted.
21 My colleagues also find fault with the Administrative Law Judge's
failure to consider Supervisor Nunnery's comments with respect to what
Wilkins allegedly told the supervisors as evidence of the unlawful nature of
Wilkins' statements to the employees. To the extent my colleagues rely on
Nunnery's statements as evidencing Wilkins' intent, they are, in essence,
relying on hearsay testimony. While I agree that Nunnery's statements
violate Sec. 8(a)( 1), I do so purely on the basis that they differ from Wilkins'
statements because thee were not qualified by any reference to business
considerations. Nunnery's statements, however, can hardly stand as proof of
what Wilkins, in fact, said and, accordingly. what his intent was in this
proceeding.
In essence, my colleagues have failed to establish
the antiunion motive necessary for an 8(a)(3)
violation. However, they apparently also conclude
that, irrespective of Wilkins' intent, Respondent's
action was "inherently destructive of employee
interest." In fact, I think this is the bottom line of
their decision. Yet, to support such a conclusion,
their analysis ultimately falls on the platitude that
any harm to employees which has a union-related
basis is violative of the Act. The simple answer to this
incorrect assumption is the admonition made by the
Supreme Court to the Board in American Ship
Building Co., supra at 312-313, to the effect that "the
existence of an arguable possibility that someone
may feel himself discouraged in his union member-
ship or discriminated against by reason of that
membership cannot suffice to label them violations
of § 8(aX3) absent some unlawful intent;on." My
colleagues have disregarded this language of the
Supreme Court in their decision here.
Further, I submit that the real issue in this
proceeding in whether Congress intended to vest this
Board with the authority to regulate the bargaining
power of each party2 2 or whether each party should
be afforded the opportunity to pursue those interests
which the Act allows to be protected. I think the
answer lies with the latter observation. In essence, I
believe that the changed circumstances associated
with the Union's arrival here at Tiptonville furnished
Respondent with a legitimate basis for reexamining
its production structure and reassigning work as it
did merely to protect23 itself from disastrous eco-
nomic consequences at sometime in the future should
the Tiptonville employees select the Union and
engage in a work stoppage. Moreover, the Board
must realize that when it finds a violation in a case
such as the instant one the result is merely to
encourage employers who must rearrange their
production to orchestrate such changes so that they
are camouflaged from Board review. Furthermore, it
is particularly noteworthy in discussing Respondent's
intent that it resumed operating the Tiptonville plant
at full capacity once it had sufficient orders. This
22 See, e.g., Brown Food Store, supra at 283, where the Court observed:
We begin with the proposition that the Act does not constitute the
Board as an "arbiter of the sort of economic weapons the parties can
use in seeking to gain acceptance of their bargaining demands" Labor
Board v. Insurance Agents, 361 U.S. 477, 497. In the absence of proof of
unlawful motivation, there are many economic weapons which an
employer may use that either interfere in some measure with concerted
employee activities, or which are in some degree discriminator) and
discourage union membership, and yet the use of such economic
weapons does not constitute conduct that is within the prohibition of
either I 8(aXI) or § 8(aX3).
23 I stress the word "protect" since any reduction in production that is
based on punishing the employees for selecting a union would constitute a
violation of the Act.
437
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demonstrates that Respondent did not harbor any
desire to penalize the employees for selecting the
Union.
Accordingly, because of the sound and legitimate
business reasons of Respondent and the compara-
tively slight harm the shift in production had on the
employees, I would affirm the Administrative Law
Judge's dismissal of the 8(a)(1) and (3) charges that
arose from the layoff at Tiptonville.2 4
24 With the exception of the Nunnery statement I have alluded to, supra.
I would affirm the remaining findings of the Administrative Law Judge for
the reasons he sets out. I must comment here, however, on the majority's
finding of a violation in Supervisor Birch's "questioning" of employee
Moore. My colleagues note that Birch asked Moore about his feelings on the
Union, but also note that, before Moore could even respond, Birch retracted
his question rather emphatically. Nevertheless, they find a violation based
on the incredible theory that nothwithstanding Birch's later comment to
Moore that he did not want an answer from Moore, that, if Moore did not
answer, his silence would be construed as support for the Union. My
colleagues' theory precludes any possibility that this or any other
respondent could effectively disavow a superficially illegal statement. I leave
it to a reviewing court to judge the validity of this ingenious approach to
labor relations that my colleagues are constructing.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all
employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other aid or protection
To refrain from any or all these things.
WE WILL NOT threaten employees that if they
select a union production will be reduced and
jobs will be lost.
WE WILL NOT reduce production, layoff em-
ployees, or reduce overtime because our employ-
ees may select a union to represent them for
collective bargaining.
WE WILL NOT solicit employee grievances.
WE WILL NOT interrogate employees about their
union sympathies and desires.
WE WILL NOT in any other manner interfere
with employees or attempt to restrain or coerce
employees in the exercise of the above rights.
WE WILL make whole Thomas J. Dial, John D.
Moore, Grant V. Nichols, Roger W. Norquist, Jr.,
Jackie L. Brewer, J. W. Ashmore, James F.
Tolley, Jr., Mark E. Rhodes, and Charles. E.
Archie, and all other employees, for any loss of
earnings or other monetary losses suffered by
them due to their loss of work because of the
unlawful layoff.
ETHYL CORPORATION
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Administrative Law Judge:
The charge was filed on January 15, 1976,1 and amended
on February 24. The complaint was issued on February 25.
The hearing was held in Dyersburg, Tennessee, on April 19
and in Tiptonville, Tennessee, on April 20, 21, and 22, and
May II and 12. The hearing was closed by telegraphic
order on June 18 after the Board, on interim appeal,
reversed my refusal to quash a subpena directed to the
Regional Director. The principal issue litigated was
whether Respondent's motive for reopening a shutdown
polyvinyl chloride (PVC) compounding line at its Baton
Rouge, Louisiana, complex, thereby causing a layoff and
an end to automatic overtime at its Tiptonville plant, was
discriminatory within the meaning of Section 8(a)(3) and
(1) of the National Labor Relations Act, as amended. (An
allegation that Respondent violated Section 8(a)(3) and (1)
of the Act by changing employee Ben Avery from straight
day shift to a rotating shift was dismissed at the conclusion
of the General Counsel's case in chief for failure of proof.)
For the reasons set forth below, I find that it was not.
Upon the entire record, 2 including my observation of the
demeanor of the witnesses, and after due consideration of
briefs, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Delaware corporation, owns and operates
chemical plants in various States. At its plant in Tipton-
ville, Tennessee, it manufactures PVC compounds. During
the 12 months just prior to issuance of the complaint in this
case, it received products valued in excess of $50,000 which
were shipped directly to the Tiptonville plant by suppliers
located outside the State of Tennessee, and it shipped
products valued in excess of $50,000 directly from the
August through December dates are 1975. January through June dates
are 1976 unless otherwise indicated.
The General Counsel's motion that the index page in volume VI of the
transcript be corrected to reflect the fact that Resp. Exh. I I was withdrawn
and that the exhibit be removed from the file of Respondent's exhibits which
have been received into evidence is hereby granted. Resp. Exh. II will be
placed in the rejected exhibits file. Respondent's motion to correct the
transcript is hereby granted.
438
ETHYL CORPORATION
Tiptonville plant to customers located outside the State of
Tennessee.
II. THE UNFAIR LABOR PRACTICES
A. Background
The only other Ethyl plant which figures in this case is
the one located at Baton Rouge, Louisiana. It is a large,
unionized complex containing various operations and
employing some 2,000 persons. For instance, the PVC
resins which are used in Tiptonville to make PVC
compounds are manufactured there. One PVC compound-
ing line is part of the Baton Rouge complex. As of August
1975, when the events of this case began, it had not been in
operation since early December of 1974. Respondent had
closed it down at that time because the national recession
and other factors had sharply reduced the demand for PVC
compounds. The Tiptonville plant produces PVC com-
pounds only. It has approximately 50 employees. Because
of the drop in PVC sales, it was cut back to a three-shift, 5-
day-a-week operation. However, by August the demand for
PVC compounds had risen to the point where its two lines
were running around the clock, 7 days a week. This
required 4 shifts of II men each. (The balance of the
employees at Tiptonville are maintenance men. They work
a straight day shift.) The shifts rotated in such a manner
that each week one was paid overtime for 1 day because it
worked on 6 days during the week.
Sometime during the second week in August two
Tiptonville employees approached Marvin Burkhardt, a
field representative for the Charging Party (variously
referred to herein as the Union, the Rubber Workers
Union, and URW), and asked his help in organizing the
plant. Burkhardt launched the Union's campaign at a
meeting held during the last week in August. He found the
overwhelming majority of the employees receptive to the
idea. He quickly obtained many authorization cards. He
petitioned for an election, which was ultimately held on
November 7 and 8. The Union won handily by a margin of
42 to 6 with I void ballot. Certification and bargaining for
an initial contract, still in progress at the time of the
hearing in this case, quickly followed.
The Union's organizing campaign was no secret to
Respondent from the beginning. On the evening of the day
the first meeting was announced, Leddy Hatley, an
employee, telephoned Wayne Birch, the plant manager, at
home and tipped him off. (Hatley did not tell Birch who
was calling, but Birch recognized his voice anyway.) Birch
thanked him and politely declined Hatley's offer to keep
him informed of further developments. There was no need
for the latter, as it turned out, for the campaign which was
launched at the first union meeting was conducted openly.
Most of the employees wore union buttons while at work.
Employees discussed the subject, among themselves and
with their supervisors when the occasion arose, while in the
plant. Those who were for the Union did not hesitate to
express their views, sometimes in strong terms, to their
supervisors. Respondent made no effort to restrict union
activities in the plant.
The morning after Hatley telephoned Birch, Birch
telephoned his superiors in Baton Rouge and informed
them that the Union was attempting to organize his plant.
The Tiptonville plant is part of Respondent's pipe and
polymer division. The news was immediately relayed to
.Ray Wilkins, president of that division. Wilkins decided
that the time had arrived for him really to visit the
Tiptonville plant for the first time in order to get
acquainted with its employees and to take a firsthand look
at its problems. (On at least one prior occasion when he
had planned such a junket he had been forced to cancel it
by the press of other business.) The visit was set for
Monday, October 13, through Wednesday, October 15.
Wilkins was accompanied by Joseph Gyan, manager of
employer relations for Respondent's plastics division, and
William Baker, manager of manufacturing for the pipe and
polymer division. (Baker was manager of the Tiptonville
plant from August 1970 until February 1975, when he was
promoted and moved to Baton Rouge. Birch, who had
been plant superintendent under Baker, succeeded him in
the top job at Tiptonville at that time.) Their visit was the
beginning of Respondent's forlorn preelection campaign.
B. The Layoff
I. Facts
Wilkins, Gyan, and Baker spoke to groups of employees
on five different occasions. They first met with the shift
that reported for work at I I p.m. on Monday, October 13.
The shift which was scheduled to go off duty at that time
worked overtime for more than an hour so that the three
exectuives could meet with the oncoming shift. At 7 a.m.
on Tuesday, October 14, they followed the same procedure
with the shift scheduled to begin work at that time. At 10
a.m. that day they met with the maintenance men. At 3
p.m. and II p.m. that day they met with the third and
fourth shifts.
Wilkins, Gyan, and Baker did not work from a script,
and their presentation was not identical in each session.
(These meetings are described in greater detail in the
section below which is devoted to other 8(a)(1) allegations
growing directly out of Respondent's preelection cam-
paign.) In each, however, Wilkins alerted the employees to
the likelihood of a layoff at Tiptonville in the event the
plant went union. Wilkins did not use exactly the same
words in each meeting. In none of them did he say
expressly that unionization would result in Respondent's
shutting down one of the two compounding lines in
Tiptonville. However, that is the way the employees
interpreted the words he did use. Consequently, in
discussing Wilkins' message after the meetings and in
testifying about it during the hearing, that is the way they
put it.
What Wilkins did say in each of his five meetings with
unit employees can be briefly summarized as follows: In
the context of a discussion about strikes in which
employees said they did not want or plan to strike and in
which the three executives said Respondent did not doubt
their sincerity and did not want a strike any more than they
did, Wilkins said that, in any union plant, the probability is
high that a strike will eventually occur. He pointed out that
the fact Respondent's only other PVC compounding line at
Baton Rouge was shut down placed Respondent in a
439
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
position where a strike at Tiptonville would cost it all of its
production. He said that Respondent could not run the risk
of losing its customers, either temporarily or permanently,
as a result of such a situation. He said that, if the
Tiptonville plant went union, he would be forced to reopen
the Baton Rouge line to avoid the possibility Respondent
could be placed in such a predicament. He assured the
employees that he had no intention of punishing them or
penalizing them for engaging in union activities for he
recognized their right to be represented by a union if they
so desired. He pointed out that, if they were in his position,
they would do the same thing for the same reason. He said
that he hoped sales would justify the running of all three
compounding lines simultaneously but that, in the immedi-
ate future, he was not optimistic that Respondent could
utilize such a high level of production. If it could not, he
said, production would have to be cut back at Tiptonville.
Wilkins had finalized his budget for calendar 1976 in
July 1975. At that time, he estimated his 1976 production
needs at 94 million pounds of PVC compounds. Tipton-
ville's capacity is 84 million pounds a year; Baton Rouge's
is 36 million. Wilkins' 1976 budget contemplated produc-
ing 70 million pounds at Tiptonville, 24 million at Baton
Rouge, the amount each plant would turn out if it operated
on a 5-day basis all year. Consequently, prior to visiting
Tiptonville in mid-October, Wilkins was aware that, if his
1976 projections proved accurate, in that event, he would
have to reopen the Baton Rouge line. The only decision he
had not yet reached was when. (Tentatively, he was
thinking in terms of January I.) What he observed in
Tiptonville triggered that decision.
As early as the end of the second meeting, the one which
started at 7 a.m. on October 14, Wilkins, Gyan, and Baker
concluded unionization was inevitable because the men
already had their minds made up and were not about to be
talked out of voting for the Union. Soon after his return to
Baton Rouge, sometime during the last 2 weeks in October,
Wilkins decided not to wait for the results of the election
scheduled for early November. He made up his mind to
start up the Baton Rouge line immediately. There was no
immediate need for additional production at Baton Rouge.
Wilkins was motivated by the concern he had expressed to
the employees in Tiptonville just a few days before. He
wanted to preclude the loss of all production in the event of
a strike at the Tiptonville plant.
Wilkins implemented his decision immediately. Since a
period of at least 60 days is required to start up a closed
PVC compounding plant, he ordered the production
manager in Baton Rouge to shoot for a January I start.
Production of 7042, a lead stabilized compound which
presents some problems involving health of employees and
contamination of other products, ceased immediately at
Tiptonville. As it turned out, production resumed in Baton
Rouge on December 29. The line began turning out
compound 7042, running 5 days a week, 24 hours a day.
Since Respondent had no immediate need for additional
production, the startup at Baton Rouge triggered a layoff
at Tiptonville.
3 While I am forbidden to make such a finding in the absence of record
testimony. I have no reason to doubt the following statement in Respon-
On January 5, Baker, the divisional manufacturing
manager, telephoned Birch, the Tiptonville plant manager.
He ordered Birch to cut back production and lay off
employees effective January 12. Birch notified the Union's
stewards on January 6. Shortly thereafter a notice was
posted in the plant notifying the nine least senior
production employees that they were laid off effective
January 12. They were Thomas J. Dial, John D. Moore,
Grant V. Nichols, Roger W. Norquist, Jr., Jackie L.
Brewer, J. W. Ashmore, James F. Tolley, Jr., Mark E.
Rhodes, and Charles E. Archie.
The cutback in production at Tiptonville was effected,
not by shutting one line down completely as the employees
had feared, but by going from a 7-day-a-week, 24-hour-a-
day operation to a 5-day-a-week, 24-hour-a-day operation.
This meant three shifts were required rather than four.
Only 9 men were laid off rather than the 11 which made up
a full shift at that time because an extra materials handler
was added to each of two shifts.
By April Respondent's sales had improved to the point
where it could use Tiptonville's full production as well as
the production of the Baton Rouge line. Consequently, in
the second week in April Birch was ordered to return to a
7-day-a-week, 24-hour-a-day operation. He sent recall
notices to all nine employees laid off on January 12. Seven
of the nine returned to work on April 26. Ashmore
declined. Norquist did not respond.
As of May 12, the last day of the hearing, the employees
at Tiptonville, who have been formed into a local of the
Charging Party, had authorized their local executive board
to call a strike against Respondent. Despite the fact that no
agreement had been reached in negotiations which began
soon after certification, the executive board had not done
so.3
2. Analysis and conclusions
Two unfair labor practice allegations are based on these
events. The first is that Respondent violated Section 8(aX1)
when Wilkins told employees "that if the Union was voted
in at Tiptonville he would have to consider shutting down
one production line there and reopening a line at
[Respondent's] Baton Rouge location." The other is that
Respondent violated Section 8(aX3) and (1) by laying off
employees on January 12 and by eliminating the regular
overtime built into its schedule when it utilized four shifts.
Both issues turn on the question which lies at the heart of
this case, i.e., did Respondent have a legal right to shift
production from Tiptonville to Baton Rouge to circumvent
being placed in a situation where a strike would shut down
its entire production of PVC?
Whether the words Wilkins spoke violated the Act turns
on the rule laid down by the Supreme Court in N.LRB. v.
Gissel Packing Co., Inc., 395 U.S. 575 (1969), thus:
An employer is free to communicate to his employees
any of his general views about unionism or any of his
specific views about a particular union, so long as the
communications do not contain a "threat of reprisal or
force or promise of benefit." He may even make a
dent's brief: "A contract, the terms of which were implemented by Ethyl
beginning in [sic] May 21, 1976, has been agreed to by the parties."
440
ETHYL CORPORATION
prediction as to the precise effect he believes unioniza-
tion will have on his company. In such a case, however,
the prediction must be carefully phrased on the basis of
objective fact to convey an employer's belief as to
demonstrably probable consequences beyond his con-
trol or to convey a management decision already
arrived at to close the plant in case of unionization. See
Textile Workers v. Darlington Mfg. Co., 380 U.S. 263,
274, n. 20 (1965). If there is any implication 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.
That strikes do occur in unionized plants is an objective
fact. The fact that Respondent would need Baton Rouge's
production in the event a strike ever occurred at Tipton-
ville makes the opening of Baton Rouge a demonstrably
probable consequence of such an occurrence beyond
Respondent's control in the sense in which that phrase is
used in Gissel. Therefore, whether the words Wilkins spoke
were a reasonable prediction based on available facts or a
threat of retaliation based on misrepresentation and
coercion turns on whether Wilkins was implying he would
act from economic necessity or for other, unrelated
reasons. If the possibility of an eventual strike at Tipton-
ville following its unionization, no matter how remote, was
an "economic necessity" in the sense in which the Supreme
Court has used that phrase, then Wilkins' message did not
violate Section 8(a)(1). Wilkins' motive for reopening the
Baton Rouge line, thereby causing a layoff and the end of
four-shift overtime at Tiptonville, was the motive he
articulated when he spoke to the employees. If it was a
discriminatory motive within the meaning of Section
8(a)(3) of the Act rather than "a substantial and legitimate
business end," it was not a motive based on "economic
necessity."
"A substantial and legitimate business end" is, of course,
a phrase taken from that part of the majority opinion in
N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26 (1967), in
which the Supreme Court lays down the principles for
determining whether the burden of proving a discriminato-
ry motive within the meaning of Section 8(a)(3) has been
met. Before I turn to the legitimacy of Wilkins' motive for
reopening Baton Rouge, a word about my finding as to
that motive is in order. At the hearing, the General Counsel
argued vigorously that Wilkins' stated reason was merely a
pretext masking his real motive of coercing the employees
into voting against the Union. I read his brief as dropping
that contention and agreeing with my finding here, i.e., that
Wilkins' sole reason for acting to reopen Baton Rouge
when he did was his conclusion that the Tiptonville plant
was about to go union. Since I may be mistaken as to the
General Counsel's position, I find explicitly that Wilkins'
stated reason is not a pretext. I credit the testimony of
Wilkins, not only as to what he said to the employees but
also as to what he did and what he thought both before and
after his visit to Tiptonville. In so doing, I do not discredit
the General Counsel's witnesses. As already indicated, the
discrepancy between their version of what Wilkins said to
them and the version of Wilkins and Respondent's other
witnesses is not a true credibility conflict. Rather, it is
another example of employees simplifying and modifying
the words actually used by an employer without in any way
altering the message the employer intended to convey, a
situation frequently encountered in the trial of unfair labor
practice cases.
By the same token, I reject Respondent's argument that
avoiding the consequences of a strike at Tiptonville was
only part of Wilkins' reason for ordering Baton Rouge
reopened shortly after his return from Tiptonville. Respon-
dent would add two other motives; i.e., production needs
for 1976 and hazards associated with production of lead
stabilized compounds at Tiptonville. As to the former, I
credit Wilkins' testimony that he was considering a
January 1, 1976, startup before he went to Tiptonville.
However, it is clear from his testimony taken as a whole
that he had reached no such decision before he was swayed
by his realization that Tiptonville was irretrievably lost and
the fear of a strike that followed the realization. Also, there
is no basis in the record for a finding that Baton Rouge had
to be started up precisely at the beginning of the year in
order to meet the figures which Wilkins put into his budget
in July 1975. In fact, as events turned out, Wilkins'
prediction to the employees that sales would probably not
be sufficient to justify continuing to run Tiptonville all out
proved right on target. If Wilkins had acted on the basis of
sales alone, he might well have postponed the decision to
reopen Baton Rouge until sales picked up, apparently
around the end of the first quarter of 1976, and triggered a
return to full production at Tiptonville. If the reopening of
Baton Rouge had been put off until that time, Wilkins
could still have met the production figures he originally
budgeted for 1976.
With respect to lead stabilized compounds, production of
7042 ceased in Tiptonville in October as part of Wilkins'
decision to reopen Baton Rouge and began in Baton
Rouge on December 29. (Respondent filled orders for 7042
in the interim from inventory.) Without going into the
intricacies of the testimony about the relative merits of
Tiptonville and Baton Rouge for producing 7042 when
twin dangers of the lead poisoning the employees who
dump it into the system and contaminating other products
being produced on an adjacent line are considered, I find
that Respondent had a legitimate business reason for
preferring to produce lead stabilized compounds at Baton
Rouge rather than Tiptonville. However, it does not follow
that Respondent would have reopened Baton Rouge when
it did if Wilkins had not drawn his conclusions about
unionization of the Tiptonville plant any more than the
record establishes he would have done so because of the
budget he drew up in July. But for Wilkins' fear of strikes,
Baton Rouge would not have reopened on December 29.
In summary, I repeat, I find that Wilkins' sole motive for
reopening Baton Rouge, thereby causing a layoff and the
end of four-shift overtime at Tiptonville, was his concern
that a strike at Tiptonville would leave Respondent with no
source of PVC production.
Whether Wilkins' reason for reopening Baton Rouge was
discriminatory within the meaning of the Act turns on the
441
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rule laid down by the Supreme Court in N.L.R.B. v. Great
Dane Trailers, Inc., 388 U.S. 26, thus:
Section 8(a)(3) . . . requires specifically that the Board
find a discrimination and a resulting discouragement of
union membership.
But inquiry under §8(a)(3) does not usually stop at this
point. The statutory language "discrimination . . . to
. . . discourage" means that the finding of a violation
normally turns on whether the discriminatory conduct
was motivated by an antiunion purpose. American Ship
Building Co. v. [N.L.R.B.], 380 U.S. 300 (1965). It was
upon the motivation element that the Court of Appeals
based its decision not to grant enforcement and it is to
that element which we now turn. In three recent
opinions we considered employer motivation in the
context of asserted §8(a)(3) violations. American Ship
Building Co. v. [N.L.R.B.], supra; [N.L.R.B.] v. John
Brown, let al. d/b/a Brown Food Stores, et al.], 380 U.S.
278 (1965); and [N.L.R.B.] v. Erie Resistor Corp., [373
U.S. 221 (1963)]. We noted in Erie Resistor, supra, at
227, that proof of an antiunion motivation may make
unlawful certain employer conduct which would in
other circumstances be lawful. Some conduct, however,
is so "inherently destructive of employee interest" that
it may be deemed proscribed without need for proof of
an underlying improper motive. [N.L.RB.] v. Brown,
supra, at 287; American Ship Building Co. v. [N.LR.B.],
supra, at 311. That is, some conduct carries with it
"unavoidable consequences which the employer not
only foresaw but which he must have intended" and
thus bears "its own indicia of intent." [N.LR.B.] v.
Erie Resistor Corp., supra, at 228, 231. If the conduct in
question falls within this "inherently destructive"
category, the employer has the burden of explaining
away, justifying or characterizing "his actions as
something different than they appear on their face,"
and if he fails, "an unfair labor practice charge is made
out." Id., at 228. And even if the employer does come
forward with counter explanations for his conduct in
this situation, the Board may nevertheless draw an
inference of improper motive from the conduct itself
and exercise its duty to strike the proper balance
between the asserted business justifications and the
invasion of employee rights in light of the Act and its
policy. Id., at 229. On the other hand, when "the
resulting harm to employee rights is ... comparatively
slight, and a substantial and legitimate business end is
served, the employers' conduct is prima facie lawful,"
and an affirmative showing of improper motivation
must be made. [N.L.R.B.] v. Brown, supra, at 289;
American Ship Building Co. v. [N.LR.B.], supra, at 311-
313.
The first question which arises is whether the reopening
of Baton Rouge was "inherently destructive of employee
interests" at Tiptonville. I think not. Cases in which that
element has been found generally involve disparate
treatment of prounion employees. In Great Dane itself, for
example, the employer withheld vacation benefits from
strikers while paying them to nonstrikers. In N.LR.B. v.
Erie Resistor, Corp., et al., 373 U.S. 221 (1963), the
employer granted superseniority to nonstrikers. American
Shipbuilding, supra, and Brown, supra, on the other hand,
are lockout cases where all employees were affected by the
step the employer took. No such element is present here.
Respondent did not put Baton Rouge on a 7-day, 24-hour
schedule in order to get maximum production there so that
it could make a maximum cutback at Tiptonville. It did not
make its selection for layoff at Tiptonville on the basis of
the union activities or sympathies of the affected employ-
ees. Rather, it began at Baton Rouge with the minimum
amount of production possible in an efficient continuous
line process and reduced production at Tiptonville the
minimum required efficiently to meet its current needs. It
selected employees for layoff at Tiptonville on the basis of
seniority, the ultimate in nondiscriminatory standards.
Only one element in the situation which Respondent
faced when Wilkins made his decision falls on the other
side of the scale. A strike was not imminent at that time. In
fact, it is not overstating the situation to say that a strike at
Tiptonville was not even a cloud on the horizon no larger
than a man's hand when Wilkins issued his order.
Therefore, it can be argued, the timing of the decision
alone is sufficient to prove Respondent's discriminatory
motive. However, when weighed against all the other
elements in the situation which support the conclusion,
already reached, that Respondent had only its legitimate
business interests in mind and not a desire to undermine its
employees' union activities, it is not enough. I find,
therefore, that Respondent's reopening of Baton Rouge on
December 29 was not inherently destructive of employee
interests. Cf. also Local 155 of the International Molders and
Allied Workers Union, AFL-CIO [United States Pipe and
Foundry Co.] v. N.LR.B., 442 F.2d 742 (CA.D.C., 1971).
Since timing alone is not enough here to justify an
inference of improper motive, the final step is to determine
the legitimacy of Respondent's actual motive by weighing
it against the invasion of the rights of the employees at
Tiptonville. Applying, once again, the rule laid down in
Great Dane, that turns on whether the harm, all things
considered, was "comparatively slight." I think, in a legal
sense, it was. Respondent did not attempt to single out
prounion employees to be laid off. It kept the number of
employees laid off to the irreducible minimum when it
eliminated one shift, even saving the jobs of two employees
by expanding the size of two other shifts. As soon as sales
permitted, all laid-off employees were recalled to work and
automatic overtime resumed with the return to four shifts.
Respondent might have avoided even that slight harm to a
unit of employees which voted overwhelmingly for union
representation if it had waited to see how its negotiations
with the Union went after certification. However, a finding
against Respondent on that basis would substitute hind-
sight for foresight, my decision for Wilkins'. Strikes are an
objective fact. Wilkins' fear may have been excessive, given
all the circumstances which existed when he made his
decision, but it was not illegal. I find, therefore, Respon-
dent served a substantial and legitimate business end when
it reopened its PVC compounding line at Baton Rouge in
442
r t
ETHYL CORPORATION
order to avoid being placed in a situation where a strike
would shut down its entire production of that product. It
follows that the layoff of nine employees on January 12
and the resulting elimination of the automatic overtime
implicit in a four-shift operation did not violate Section
8(a)3) and (1) of the Act. It also follows that Wilkins'
statement to employees that he was going to take that step
if the Tiptonville plant went union did not independently
violate Section 8(a)(1) of the Act. I so find. Cf. Spalding
Division of Questor Corporation, 225 NLRB 946 (1976),
where "the statement was not accompanied by any
explanation of economic necessity for laying off employ-
ees."
C. Other 8(a)(1) Allegations Growing Directly Out
of Respondent's Preelection Campaign
1. Facts
Each of the meetings Wilkins, Gyan, and Baker held
with employees in the plant lunchroom on October 13 and
14 lasted longer than an hour, less than 2 hours. The length
depended on the extent of the discussion the three
executives were able to arouse. At each Baker, who was
known to most of the employees on a first name basis from
his recent service as plant manager in Tiptonville, began by
introducing Wilkins. At the first three meetings Wilkins
then spoke about his reason for coming to Tiptonville. By
the afternoon of October 14, Wilkins voice was so worn
that he apologized to the employees and asked Baker to
open the last two meetings for him. With the exception of
this minor variation, all five meetings followed the same
pattern and covered, generally, the same ground.
Wilkins stated his reason for visiting the plant at that
particular time, i.e., a desire to get to know the plant, the
men, and their problems on a face-to-face basis. There was
no attempt to disguise the fact that the employees' union
activities had brought Wilkins at this time whereas
previously planned visits for the same purpose had been
canceled by him. By the same token, the thrust of Wilkins'
opening remarks was not that he had come because he saw
their union activities as a threat to Respondent. Wilkins (or
Baker, as the case may be) went into some detail about the
state of the polyvinyl chloride business (then in a slump
attributable, at least in part, to concern over whether PVC
was a safe material from which to make containers and
other consumer products) and Respondent's prospects over
the short and long term, especially as those prospects might
affect Tiptonville.
The emphasis, both in the opening remarks and in what
followed, was on finding out what the men had on their
minds and answering their questions. To that end, early in
each meeting, Wilkins, Gyan, and/or Baker invited the
employees to state areas about which they had questions or
concerns. They wrote a list of topics on a large pad
mounted on a tripod. Then the balance of the meetings was
devoted to a discussion of those topics, item by item. One
subject which was discussed was the effect of unionization.
In the course of that discussion Wilkins made the
statements about strikes and reopening the Baton Rouge
line already considered in the section entitled "The Layoff'
above. He also made the point that the Rubber Workers
Union, the Union the employees were signing up with, was
a poor choice for workers in the polyvinyl chloride industry
in view of the fact the International president of the Union
had recently stated, apropos of the polyvinyl chloride
hygiene issue then much in the news, that the world had
gotten along without PVC in the past and could in the
future if necessary. Other topics were wages, benefit plans
such as retirement and insurance, and the quality of
supervision in the plant. In these areas, Wilkins, Gyan,
and/or Baker (as the case may be, but principally Gyan or
Baker) attempted to explain the policies and plans and
answer the questions. In each instance, the speaker was
careful to point out that, under the circumstances, the three
executives could not promise to make any changes in the
current situation. At each meeting when the list of topics
raised by the employees had been exhausted, the meeting
ended and the men went to work.
As a result of the insights gained at these meetings,
Respondent decided to hold a series of additional meetings
to present information to the employees about their
benefits and about the Union. The first set was held I week
later. It was conducted by Darryl LeBlanc, an employee
relations representative under Gyan, who came to Tipton-
ville from Baton Rouge, and Richard Harding, a benefit
plans representative, who came to Tiptonville from
Respondent's home office in Richmond, Virginia. They
followed the pattern used by Wilkins, Gyan, and Baker the
week before in meeting with all five shifts separately
starting on Monday night, October 20, and finishing up on
Tuesday night, October 21. Once again, the meetings were
held in the plant lunchroom. LeBlanc and Harding used a
set of flip charts which had originally been used by
Harding at a similar presentation in Tiptonville in March
1974, updating the charts where necessary. They explained
Respondent's benefit plans and answered, to the best of
their ability, any questions raised by the employees. (No
allegations of unfair labor practices in the complaint are
based on what happened at these meetings.)
LeBlanc returned to Tiptonville twice more between
October 22 and the election, held on November 7 and 8.
Each time he met with each shift in the same manner. On
these occasions, however, because the lunchroom had
presented too many distractions when he was there with
Harding, he met with the employees in the plant manager's
office. In the first of these two sets of meetings, held on
October 27-28, his topic was Tiptonville's wages and
benefits as compared with the wages and benefits of other
plants in the area. In the second, held on November 3-4,
his topic was the strike history of the Rubber Workers
Union.
On each occasion LeBlanc used flip charts specially
prepared for the meetings. The employees at a Goodyear
Tire & Rubber Co. plant located in Union City, Tennessee,
some 30 miles from Tiptonville, are represented by the
Union. Early in the Union's campaign, Birch had become
aware that his employees were comparing their wages and
benefits with those of Goodyear employees. He and Baker
had visited the Goodyear plant sometime during the first
half of September and talked to the plant manager. The
information they obtained, both about wages and benefits
and about strikes at the Goodyear plant, had been
443
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forwarded to Baton Rouge. It formed an important part of
the information on the flip charts LeBlanc prepared for
these two sets of meetings.
The format of LeBlanc's meetings with the employees
was the same as Harding's. He presented the information
on his charts. He encouraged discussion with and among
the employees, getting numerous complaints in the process.
He answered their questions to the best of his ability. He
was careful to point out, where appropriate, that he could
not make any promises. However, in this context, he also
said that he would rather deal with the employees now than
come back later because, if he did come back later, it
would probably be to negotiate a contract rather than to
deal with their problems. He added that he would attempt
to return to Tiptonville on a periodic basis in the future
(something Respondent's executives had not done in the
past) regardless of the outcome of the election. Employees
also asked LeBlanc if Wilkins had meant what he had said
about cutting back production at Tiptonville. LeBlanc's
reply was that, while he could not comment on what
Wilkins had actually said because he had not been present
at the time, Wilkins was a man of his word.
As LeBlanc was leaving one of the November 3-4
meetings, Leddy Hatley spoke briefly to him in the
laboratory. Hatley said that the Union was coming into the
plant no matter what arguments LeBlanc made. LeBlanc
did not respond.4
The flip charts LeBlanc used on November 3-4 con-
tained 23 pages. Page 12 read:
The URW won an election at Custom Craft Manu-
facturing Co. in Halls, Tennessee in 1972. The URW
took the employees out on strike. The Company
permanently replaced every striking employee and
continued to operate its plant. The striking employees
lost their jobs and the URW never got a contract at
Custom Craft.
Employees told Burkhardt, the union organizer, about this
allegation. Burkhardt said it was untrue. On the afternoon
of November 5 an employee told LeBlanc the employees
were saying he had lied to them about the Custom Craft
situation. LeBlanc went to Halls (some 40 miles from
Tiptonville) that evening and checked with an official at
the Custom Craft plant. On November 6, the eve of the
election, he issued a letter and a six-page attachment
containing a list of questions and answers to the employees.
This document was essentially a rehash of the arguments
LeBlanc had made at his meetings with the employees
about why they should vote against the Union. The last
question in the attachment is "Both you and the Union
have told me so much, how do I know who to believe?"
LeBlanc's answer is:
I have tried in the limited time I have had to
document everything I have said in black and white. I
have shown you copies of all URW contracts which I
have compared with Ethyl's wages and benefits.
I have credited LeBlanc over Hatley as to this conversation, principally
on the basis of demeanor. According to Hatley, LeBlanc asked him what he
thought about the outcome of the election and then, in answer to Hatley's
response, said, "I can't understand why anyone would want to vote theirself
Anyone who wishes to see any documentation on
URW strike activity or URW contracts please see me.
Some of you have told me that the initial wage
increases at Pulaski Rubber after the last contract was
more than 20 cents per hour. We checked with officials
at RCA Rubber in Akron, Ohio, which owns Pulaski
and found that the increase in November, 1974, was 35
cents. The 20 cents which I quoted was the second
year's increase. Sorry, my error-I picked up the wrong
figures in the rush to get you the information. However,
keep in mind that this was won after a fifteen day strike
and even with this increase, their top wage of $3.35 per
hour is much less than yours. And the URW has been
there since 1961.
Some of you have asked me for details on the
Custom Craft strike. I drove over to Halls and talked to
Mr. Fowley, a member of local Custom Craft manage-
ment. He gave me these facts. In May, 1972, the URW
was voted in at Custom Craft. Some 201 employees
later went on strike. The company went to Court and
got an injunction against the Union to make it let
employees who wanted to work come into the plant.
(See me for a copy of the Court injunction). About 70
employees came back to work after the injunction. The
company began permanently replacing the 130 employ-
ees who stayed out. When the company started hiring
replacements, about 70 more striking employees came
back. The rest stayed out. In March of 1973, the URW
called off the strike and asked Custom Craft if it would
take back the rest of the strikers. The company in an
act of kindness agreed to offer certain strikers their jobs
back. Finally, in June, 1975, the employees at Custom
Craft voted the URW out by a two to one margin. The
URW never got a contract at Custom Craft.
The URW certainly did the employees at Custom
Craft no favor. Even those who came back after the
strike lost some five month's pay. Many lost their
homes, their cars, their boats, and were forced to move
away in search of a job. The URW kept the case tied up
in Court for three years and the company could not by
law give any wage increases during that time. The URW
cost everybody a lot of money, the employees who went
on strike and the employees who stayed in the plant
and worked. I appreciate your questioning me about
Custom Craft. I had no idea how badly the Union
treated those employees. Now we all know.
I have tried my best to be as honest with you as I
know how. Where you have come back to me and
questioned my facts, I have gone back and gotten you
the straight answers. This is the type of communication
between employees and management which I hope you
will let me bring to Tiptonville in the future.
The Union held a final meeting on the evening of
November 6. Many employees attended. Burkhardt was
given a copy of LeBlanc's letter and handout. He
commented on its statements about the Custom Craft
situation.
out of a job." LeBlanc's testimony was frank and forthright throughout.
Hatley, the informer, struck me as the sort of brash young man who would
have volunteered his views to a low-level executive.
444
ETHYL CORPORATION
2. Analysis and conclusions
Allegations in the complaint that Respondent violated
Section 8(a)(1) of the Act when LeBlanc interrogated an
employee and threatened him with job loss are based on
LeBlanc's brief exchange with Hatley. My finding that
LeBlanc spoke no such words on that occasion disposes of
them. Similarly, my finding that Wilkins' telling the
employees he would reopen Baton Rouge was not a threat
disposes of an allegation that Section 8(a)(X) was also
violated in the same manner when LeBlanc told the
employees Wilkins was a man of his word. However, two
other 8(a)(1) allegations growing out of LeBlanc's activities
pose more difficult problems. The first is that LeBlanc
"solicited employee complaints" in the course of his
meetings with employees. The second is that LeBlanc's
November 6 handout stated "that the Union had kept the
Custom Craft election tied up for three years and the
company could not by law give any wage increases during
that time." In addition, the complaint alleges that Wilkins,
Gyan, and Baker solicited employee complaints and that
Wilkins and Baker interrogated employees during the
October 13-14 meetings, all in violation of Section 8(a)(1)
of the Act.
I turn first to the allegations which involve solicitation of
grievances. The controlling principle has been set forth by
the Board in Uarco Incorporated, 216 NLRB 1 (1974), thus:
[I]t is not the solicitation of grievances itself that is
coercive and violative of Section 8(aXl1), but the
promise to correct grievances or a concurrent interroga-
tion or polling about union sympathies that is unlawful;
the solicitation of grievances merely raises an inference
that the employer is making such a promise, which
inference is rebuttable by the employer. [Footnote
omitted.]
Wilkins, Gyan, Baker, and LeBlanc all said in their
respective meetings that they could not promise the
employees anything in the context of asking them to state
and discuss their concerns. However, LeBlanc said some-
thing which Wilkins, Gyan, and Baker did not say. He said,
in effect, that he preferred returning to Tiptonville
periodically to deal with their problems himself rather than
returning for the purpose of dealing with the Union. This
statement was an implied promise to correct their grievanc-
es if they voted against the Union. I find, therefore,
Respondent violated Section 8(aX)( 1) of the Act by soliciting
employee grievances when LeBlanc made it.
In their meetings Wilkins, Gyan, and Baker said nothing
similar to LeBlanc's statement. Their explicit remarks to
the contrary effectively rebut any inference that they were
making such a promise. Since none of them either explicitly
or implicitly promised to correct the employees' grievances,
the question of whether they violated the Act by soliciting
grievances turns on whether there was, in the October 13-
14 meetings, "a concurrent interrogation ... about union
sympathies that [was] unlawful." Only two of the seven
witnesses called by the General Counsel to testify about
these meetings indicated that any part of the three
executives' presentation took the form of a question.
Wayne Cranford and David Alexander each said that,
early in the meeting he attended, a question was put as to
why the employees wanted a union. This, they testified,
was in the context of asking the employees to list their
problems so that they could be discussed. In that format,
those were clearly rhetorical questions only and not a
concurrent interrogation, coercive in and of itself, as that
phrase is used in Uarco, supra Neither of the cases cited by
the General Counsel in his brief in support of the opposite
view is apposite. In G. R 1. Corporation and Its Division,
216 NLRB 34 (1975), a supervisor harassed an employee
by telling her she could not give him one good reason why
the employer needed a union. In Gates Air Conditioning,
Inc., 199 NLRB 1101 (1972), a supervisor intended to elicit
information about an employee's union activities when he
told the employee two others had named him in a
conversation, thereby impelling the employee to deny any
union sympathies. (Both of these cases stand for the
proposition that coercive "interrogation" need not be
couched in question form. The proposition is a sound one.
It simply has no application here.) Since Wilkins, Gyan,
and Baker did not promise to correct the grievances they
solicited and did not coercively interrogate employees
during the October 13-14 meetings, I find Respondent did
not violate Section 8(aXI) in either manner on those
occasions.
The General Counsel contends that the following
sentence in the fourth paragraph of the excerpt from
LeBlanc's November 6 handout set forth above violates
Section 8(aXI) because it contains a clear misstatement of
the law:
The URW kept the case tied up in Court for threeyears
and the company could not by law give any wage
increases during that time. [Emphasis LeBlanc's.]
The effect, the General Counsel argues, was an impression
"that if for some reason the Union was selected by the
employees and the case became tied up in Court, as it did
in Custom Craft . . . the Employer would not be able by
law to grant any wage increases during the pendency of the
case." Respondent, on the other hand, argues the "state-
ment was truthful, and thereby non-threatening and
privileged under Section 8(c) of the NLRA and the First
Amendment to the Constitution. Alternatively, if the
statement was factually or legally incorrect, the law does
not per se make such a statement a violation of Section
8(aX l)."
The Union was selected as the bargaining agent of
Custom Craft's production and maintenance employees in
an election held in Case 26-RC-4210 on May 12, 1972.
The certification issued on September 18, 1972, concurrent
with the Board's decision adopting the Regional Director's
recommendation that Custom Craft's objections be over-
ruled. Custom Craft elected to test the certification.
Consequently, on July 9, 1973, in Case 26-CA-4505, the
Board granted the General Counsel's motion for summary
judgment and ordered Custom Craft to bargain with the
Union. The United States Court of Appeals for the Sixth
Circuit enforced the Board's order in the spring of 1974.
Shortly thereafter Custom Craft, by letter, asked the Union
to agree to an immediate raise for unit employees without
prejudice to either side in the upcoming negotiations. The
445
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union declined, except for raises required by an increase in
the Federal minimum wage. Bargaining began sometime
thereafter. No agreement was ever reached. In the spring of
1975 a decertification petition was filed in Case 26-RD-
287. The election was held on June 13, 1975. A majority of
unit employees voted to oust the Union. The certificate
issued on June 23, 1975. There is no evidence in the record,
other than the hearsay statements contained in LeBlanc's
November 6 handout, on which findings of fact about the
Custom Craft strike can be based.
Respondent's first defense can be quickly disposed of.
The statement was not factually true. Custom Craft's duty
to bargain with the Union was kept tied up in court, not for
3 years, but for something going on 2 years, not by the
URW, but by Custom Craft. The fact that, as the
negotiations developed, Custom Craft was prevented by
the law relating to changes in conditions during negotia-
tions, absent agreement or impasse, from granting wage
increases for the 3 years between election and decertifica-
tion does not prevent the overall statement from being
factually inaccurate. It does, however, preclude a finding
that it contained a misstatement of the law so egregious
that the General Counsel's per se approach is the proper
basis for resolving this issue.5 Rather, the question to be
decided is whether the statement taken in the context of the
handout in which it appears as well as the broader context
of the discussions which led up to the handout is so
misleading that it violated employees' Section 7 rights. I
think not.
Taken in context, the statement amounts to an assertion
the Union was at fault because Custom Craft employees
did not receive a raise during the 3 years which elapsed
between the vote which got the Union in at Custom Craft
and the vote that got it out. That those employees did not
get a raise is factually correct. Who was to blame, however,
is a matter of opinion. There is much to be said for
Respondent's assertion that the fault all belonged to the
Union. If it had agreed to Custom Craft's prenegotiations
proposal for an immediate raise, the employees would have
gotten a raise. On the other hand, faulting the Union at this
point for a bargaining stance it took under conditions not
revealed in this record is futile. At least part, and possibly
all, of the blame might well be placed at Custom Craft's
door if that issue were ever fully litigated. The answer to
that question does not matter here. What is important in
resolving the issue presented in this case is that the
question of fault was one about which reasonable men
might differ. Respondent expressed its opinion, albeit in a
sentence which gave the wrong impression about which
party had carried the duty to bargain issue to court. The
Union had an opportunity to respond after the statement
was made and before the employees went to the polls.
Burkhardt availed himself of that opportunity to express
the Union's contrary opinion in a meaningful way before a
significant number of Respondent's employees, thereby
I In any event, the cases cited by the General Counsel in support of his
argument-Sinclair & Rush, Inc., 185 NLRB 25 (1970); The May Department
Stores Compan) d/b/a Famous-Barr Company, 174 NLRB 770 (1969); and
Ring Metals Company, 198 NLRB 1020 (1972)-are clearly inapposite. They
stand for the proposition that it is a violation of Sec. 8(aX1) to announce a
withholding of benefits on the ground that unfair labor practice charges
have been filed. The Union did, in fact, file a number of charges against
nullifying the coercive effect, if any, of the statement. I
find, therefore, that the inclusion of the sentence com-
plained of by the General Counsel in the material which
Respondent distributed to its employees on November 6
did not violate Section 8(a)(l) of the Act.
D. Other 8(a)(1) Allegations
1. Joseph Gyan and William Baker
In addition to their role in the October 13-14 meetings
with employees already discussed above, Joseph Gyan and
William Baker are each charged in the complaint with
another 8(a)(l) violation. There is no dispute about what
happened in either incident.
Gyan walked through the plant and chatted with
employees on this visit to Tiptonville. In a conversation
with Danny Calton and David Alexander, he explained
that he was trying to talk to all of the men so that he could
find out if they had any complaints. Calton said the
foremen did not set a good example for the employees,
citing the case of a foreman who had come to work drunk.
Calton named the foreman. Gyan said he would pass the
information along to Wilkins. He subsequently did so.
Gyan's response to Calton's complaint contained an
implied promise that something would be done about it.
For the reasons already set forth with respect to the
meetings LeBlanc held with employees as contrasted with
those held by Wilkins, Gyan, and Baker, I find that Gyan's
response violated Section 8(aX)( I) of the Act.
Baker also walked around the plant one evening, greeting
his friends. He shook hands with Steve Bargery. Bargery
introduced him to Jackie Brewer, a new employee who had
not worked there when Baker was plant manager. Baker
glanced at the union buttons each was wearing and asked
Bargery, "Why are you wearing the buttons anyway?"
Bargery laughed and said, "I don't know. I'm wearing them
because everybody else is." Baker shook his head and said,
"I'll be damned if ya'1 can't fuck up a wet dream." Bargery
and Brewer laughed. Baker said he would see them and
walked away.
Baker's query, addressed to Bargery, is the basis of an
allegation that Baker interrogated an employee. I find no
violation. The whole exchange was a joke which did not
rise to the level of 8(aX I) coercion.
2. Wayne Birch
Wayne Birch, the plant manager, was not present when
Wilkins spoke to the employees on October 13-14. Shortly
after the session Wayne Cranford attended, Birch ap-
proached Cranford in the laboratory and asked Cranford
what he thought of Wilkins. Cranford asked Birch if he
really wanted to know, and Birch said yes. Cranford said,
"Well, I think he shit and fell back in it."6
Custom Craft in the 3-year period alluded to in the statement. However,
"tied up in Court" cannot be twisted into a reference to that aspect of
Custom Craft's stormy association with the Rubber Workers Union by any
semantic sleight of hand.
6 This is the only point as to which Birch's version differs from
Cranford's. Birch said that Cranford said Wilkins "ripped his pants." I
credit Cranford over Birch as to this unimportant detail.
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ETHYL CORPORATION
Birch said, "What do you mean by that?" Cranford said,
"Well, as it was standing, in my opinion, 50 percent of the
men that was in the meeting would have voted against the
Union. But then he come in and acted the way he did, and
they'll vote for it now. I know I will." Birch said, "Are you
going to vote for it because you're mad, or did he change
your mind?" Cranford said, "Well, a man in his position
should ought to know how to handle men better than
coming in and shouting and cussing and doing like he
done. I know I'll vote for it now just to spite him."
On another occasion Birch was in the foremen's office in
the plant with Billy Nunnery, a shift foreman, when John
Moore came in. During the course of a conversation about
other matters, Birch asked Moore how he felt about the
Union. Before Moore could reply, Birch said, "Well, I
don't want to put you on a spot. I don't know how you're
going to vote and I don't want to know." Moore said he
was still undecided.
Each of these incidents is alleged as an illegal interroga-
tion under Section 8(a)(l). I find neither to be a violation.
In the latter, any improper impression Birch may have
created by asking Moore how he felt was immediately
corrected by his hasty disavowal of any intention of
interrogating Moore. In the former, Birch's initial question
to Cranford was not an attempt to find out how Cranford
felt about the Union. Cranford turned the conversation in
that direction. The course which it took thereafter obvious-
ly did not restrain or coerce Cranford in any degree. More
importantly, applying the correct standard for judging the
legality of words spoken under Section 8(a)(1), I find that
what Birch said would not reasonably have restrained or
coerced any employee under the same circumstances.
3. Ed Williamson
Ed Williamson is plant superintendent at Tiptonville.
One evening shortly before the election, when William
Baker was in the plant, Williamson approached Danny
Calton and David Alexander where they were working. He
looked at their union buttons and commented that he
could see they were for the Union. He asked Calton and
Alexander what they thought the Union could do for them.
Alexander replied that he thought the Union could get
them better benefits and give them job security. William-
son said he just wanted to be sure the employees knew
what they were doing by voting the Union in.
At about this point Baker joined the group. Alexander
repeated for Baker's benefit his contention, based on
employees' past experiences first with Baker and then with
Birch as plant managers, that they had no say in what
benefits they were to receive. Baker said, "Some of the
ideas the guys have been telling me are kind of ridiculous.
One guy even said something about a dental plan. If Ethyl
had to pay you dental benefits, it would have to pay the
same thing to every Ethyl employee. That would run to
millions of dollars."
Alexander said, "Well, at some of my Union meetings I
understood that some of the Ethyl plants had paid
insurance, paid retirement. How come we don't have that?"
Baker said, "I don't know about the other Ethyl plants."
Wayne Cranford joined the group sometime during
Alexander's discussion of dental plans with Baker.
Williamson's contribution to this conversation is alleged
as an illegal interrogation. Williamson is a friendly
supervisor. His question to Calton and Alexander was
courteous and low keyed, not rude or profane. Neverthe-
less, it was an effort, initiated by Williamson, to ascertain
Calton's and Alexander's reasons for favoring the Union
thus necessarily interfering with their expression of the free
choice guaranteed them by the Act. I find, therefore,
Respondent violated Section 8(a)(X) by interrogating
employees when Williamson spoke to Calton and Alexan-
der on this occasion. Quemnetco, Inc., a subsidiary of RSR
Corporation, 223 NLRB 470 (1976).
4. Jack Greer
Jack Greer is production supervisor at Tiptonville.
Sometime in September he stopped at a press where Wayne
Cranford was working and said to Cranford, "Can I ask
you a question?" Cranford said, "Yes, sir." Greer said, "I
don't see a Union button on you. Does that mean that
you're for or against the Union?" Cranford said it was his
opinion that unions are all right in the North but no good
in the South because there union shops are barred by right-
to-work laws. He added, "I'm just not that strong for it."
Greer said, "All right," and walked away.
This conversation is also alleged as an illegal interroga-
tion. I so find, for the reason set forth above with respect to
Williamson's interrogation of Calton and Alexander.
Quemetco, supra.
5. Billy Nunnery
Soon after lunch on October 14, Wilkins met with all the
supervisors of the Tiptonville plant, from Birch through
Williamson and Greer down to and including the shift
foremen. Wilkins' message to the supervisors was twofold.
He pointed out that the plant would continue regardless of
the outcome of the election and instructed them to take a
hands-off attitude in the organizing campaign. He told
them he understood how the campaign was affecting
production adversely, assured them this would not be held
against them, and asked their best efforts to get the plant
back on the right track. In the course of a discussion about
Respondent's plans for the plant, including the possibility
of reopening Baton Rouge and the long term prospect for
enough business to keep three lines going, Billy Nunnery,
one of the shift foremen, asked Wilkins if he meant what he
had told the employees about a possible cutback at
Tiptonville in the event the Union came in. Wilkins' reply
was an emphatic yes.
What Nunnery said when he relayed this reply to
employees later that day is the basis for the last 8(aX)()
allegation in the complaint. Danny Calton and David
Alexander testified about a conversation in the foremen's
office. Nunnery could only recall a conversation with
Calton and Alexander among a group of employees which
took place during a beer party which started in one tavern
and ended in another. He did, he testified, tell employees
that Wilkins had meant what he had said. The employees
conceded that the beer party had taken place but insisted
on the conversation in the foremen's office also. The terms
in which Nunnery couched Wilkins' message are also a
447
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
matter of dispute. The testimony over this allegation
comprises the only other credibility conflict of any
significance in the record. In resolving it, I credit the
General Counsel's witnesses over Nunnery for two reasons.
Nunnery admitted that he had "tried to explain" to a group
of employees who asked to talk to him man to man about
the union situation at the plant "the same thing that Mr.
Wilkins had explained to me, why he would be forced to
open the Baton Rouge plant." Wilkins admitted that he
talked tough and used much profanity in all six of the
meetings he held on October 13-14.
Not long after their shift's meeting with Wilkins, Gyan,
and Baker, Calton and Alexander went into the foremen's
office to get some tools. Nunnery was there. Calton and
Alexander made some joking references to Wilkins'
statement about cutting down production at Tiptonville if
the Union came in. Nunnery, like the employees, had
translated the words Wilkins had actually used into a
statement that he would close down one line. Nunnery
indicated to Calton and Alexander that the subject they
were making light of was serious by telling them he had just
asked Wilkins in a supervisors' meeting if he had meant
what he had said to the employees. Wilkins' reply,
Nunnery tpld the two employees, had been, "Those sons-
of-bitches think I'm kidding. It's not a threat, it's a
promise. I will shut one line down if the Union comes in."
For the reasons already set forth in finding that Wilkins'
remarks directly to the employees about cutting back
production at Tiptonville in the event the Union came in
did not violate the Act, I find Respondent did not violate
Section 8(a)(1) of the Act by threatening employees with
loss of jobs if they voted for a union when Nunnerl spoke
these words on this occasion.
Upon the foregoing findings of fact and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
I. Ethyl Corporation is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. United Rubber, Cork, Linoleum and Plastic Workers
of America, AFL-CIO, CLC, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By soliciting employee grievances and by interrogat-
ing employees about their union sympathies and desires,
Respondent has violated Section 8(a)(l) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
5. The allegations of the complaint that Respondent
violated Section 8(aX3) of the Act have not been sustained.
6. The allegations of the complaint that Respondent
violated Section 8(aXI) of the Act by threatening employ-
ees, by the activities of Ray Wilkins, William Baker, and
Wayne Birch, by the activity of Darryl LeBlanc in
interrogating an employee about his union sympathies, and
by stating that the Union had kept the Custom Craft
election tied up for 3 years and the company could not by
law give any wage increases during that time have not been
sustained.
[Recommended Order omitted from publication.]
448