General Dynamics Corp.

National Labor Relations Board - Board Decisions

Jul 18, 1980

250 N.L.R.B. 719 (N.L.R.B. 1980)

(;IENI-RAI I)YNAMICS CO()RI()RA I I()N
General Dynamics Corporation and International
Union of Electrical, Radio and Machine Work-
ers, AFI.-CIO, CLC, Petitioner. Case 26-RC-
5896
July 18, 1980
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS JENKINS, PENELI O, AND
TRUESDALE
Pursuant to a Stipulation for Certification Upon
Consent Election approved by the Regional Direc-
tor for Region 26 on December 20, 1978, an elec-
tion by secret ballot was conducted on January 26,
1979, under the direction and supervision of said
Regional Director, among the employees in the
stipulated unit. At the conclusion of the election,
the parties were furnished a tally of ballots which
showed that, of approximately 510 eligible voters,
475 cast valid ballots, of which 203 were cast for
the Petitioner, and 272 were cast against the Peti-
tioner. There were no challenged ballots. Thereaf-
ter, the Petitioner filed timely objections to the
election.
After an investigation, the Regional Director on
March 22, 1979, issued his Report on Objections
wherein he recommended in this case, and hereby
adopts the Hearing Officer's findings' and recom-
mendations, but only to the extent consistent here-
with.
The Hearing Officer found that the Employer's
preelection campaign literature, posters, and cap-
tive audience speeches did not create an atmos-
phere of coercion, did not threaten employees with
loss of benefits and other reprisals, and did not
create the impression that the collective-bargaining
process would be futile. We agree. In our view, the
Employer's campaign propaganda, considered in its
totality, tended to interfere substantially with the
ability of the employees to make a free and rational
choice in the election. Thus, we shall, for the rea-
sons set forth below, order the election set aside
and direct that a second election by held.
Employer Campaign Literature
The Employer conducted a vigorous campaign
against the Petitioner, consisting of speeches and
distributions of campaign literature. In a November
I The Petitioner has excepted to certain credibility resolutions of Ih
Hearing Officer. It is the established policy of the Board not to overrule
a hearing offllicer's credibility resolutions unless the clear preponderrance
or all olf Ihe relevanlt eridence convinces us Ihat the resolutions are incor-
rect Thecw CiwCollu Roilrig Compnpani J Mem phis, 132 NLRB 481. 48.
(1961): Strrcnh-l h. Co. 118 NL Ri 1359. I 361 (1957) We find no suffi-
cient hasis for dislurhinlg Ihe Heairing ()fficer's credihilil) re,olulio1ls in
this case
28, 1978, letter to employees notifying them that
the Petitioner had filed a petition and that the Em-
ployer would demand a secret-ballot election, Plant
Manager Fred Lee referred to the Petitioner as
"the union that presided the Board that the Peti-
tioner's Objections 1, 4, and 5 and other objectional
conduct be overruled and that a hearing, pursuant
to Section 102.69 of the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
he held to resolve issues raised by the Petitioner's
Objections 2, 3, and 6. On April 4, 1979, the Em-
ployer filed exceptions to the Regional Director's
report and a supporting brief. Thereafter, on April
11, 1979, the Petitioner filed a brief in support of
the Regional Director's report. Subsequently, the
Board adopted the Regional Director's findings
and recommendations in their entirety and, on
April 23, 1979, issued an order directing a hearing
with respect to the Petitioner's Objections 2, 3, and
6.
On May 22 and 23, 1979, a hearing was conduct-
ed in which all parties participated. On August 9,
1979, the Hearing Officer issued his "Report and
Recommendations on Objections to Election"
wherein he recommended that the Petitioner's Ob-
jections 2, 3, and 6 be overruled and that a certifi-
cation of results of election issue.
Thereafter, the Petitioner filed exceptions to the
Hearing Officer's report and a supporting memo-
randum, and the Employer filed a brief in answer
to the Petitioner's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board had considered the Hearing Officer's
report, the Petitioner's exceptions thereto, the Em-
ployer's answer, and the over the virtual close-
down of Stromberg-Carlson's Rochester facility."
(Stromberg-Carlson is a division of General Dy-
namics.)
In early January 1979, the Employer began plac-
ing "Vote No" posters throughout the production
area of the plant every few days until an entire
series of eight posters were exhibited. One of the
posters stated:
IUE'S TRACK RECORD IS POOR
Here's Their Record in General Dynamics
Elections Lost
Elections Won
Strikes
Plant Closings
11
3
2
2
250 NLRB No, 96
71')
D)ECISIONS ()F NATIONAL LABO)R RELATIONS BOARD
Don't Vote for a Loser!
Even considered outside the context of the Em-
ployer's other campaign tactics, which we consider
below, we find that the displaying of this poster
constituted objectionable conduct. While the poster
stated that the Petitioner lost 11 elections, the ref-
erence in the poster to the Petitioner as a "loser"
reasonably could be interpreted to refer to the Peti-
tioner's connection to the plant closings. The mes-
sage conveyed to employees through this poster
was that the Employer had closed two out of its
three plants where the Petitioner won representa-
tion elections, and that, the same thing could
happen at Camden.
As part of its preelection campaign, the Employ-
er distributed several antiunion handouts to em-
ployees, including one explaining that jobs had
moved to the Camden plant from other locations
after the Petitioner won elections at those loca-
tions, and that some plants where employees were
represented by the Petitioner have closed. The
handbill stated that, "In fourteen elections held at
General Dynamic's facilities, the IUE had been
successful in only three. And, look how they have
guaranteed job security to the employees who
voted for them." The handbill then went on to ex-
plain that there were 2,700 employees at the Em-
ployer's Stromberg-Carlson plant in Rochester,
New York, when the Petitioner won an election in
1964, but that currently there were only 138 em-
ployees left there, with the other approximately
2,560 jobs having been moved to several non-union
plants of the Employer, including Camden, or
"have been lost forever."
The handbill also mentioned that the Employer's
plant in Newark, New York, closed within a year
after the Petitioner won an election to represent
about 250 employees there, with the jobs moving
to other plants. In addition, the handbill referred to
the history of the Employer's San Antonio, Texas,
plant in the following manner:
In 1969, approximately 130 employees voted in
favor of the IUE; in February, 1972-after
years of litigation; the Company signed an
agreement with the IUE-in January, 1973,
the facility closed. The jobs were moved to
Fort Worth, Texas, or have been lost forever.
The handbill then declared that "the mere fact of
a Union being elected will not cause this or any
other Facility to close," and that the Camden fa-
cility "will continue to operate so long as it is able
to build a quality product at a competitive cost,
with or without the IUE."
At the bottom of the handbill appeared the fol-
lowing:
THEN WHAT'S THE POINT OF ALL
THE CLOSINGS
OF IUE-REPRESENTED FACILITIES?
Quite simple-only the Company can GUAR-
ANTEE job security and General Dynamics
has demonstrated it at Camden. The IUE can
talk about it, and they should-but not to you.
They should be explaining it to the former em-
ployees at Stromberg-Carlson/Rochester, Gen-
eral Dynamics/Newark, and General Dynam-
ics/San Antonio.
In addition, the Employer displayed a poster
titled: "IUE STRIKE .... Violence, Threats and
Costly Unemployment . . . Read about it." Be-
neath this heading there appeared several newspa-
per accounts of violence in connection with strikes
by the Petitioner.
Employer Campaign Speeches
The Employer's preelection speeches were pre-
sented during the course of about 14 meetings with
different groups of approximately 40 employees.
On January 17 and 18, 1979, John Coons, the Em-
ployer's industrial relations manager, gave a speech
in connection with the showing of a videotape of a
television feature about the violence visited upon a
construction contractor in Pennsylvania who insist-
ed on remaining nonunion. Coon's speech to em-
ployees after the film included the following re-
marks:
We won't see violence here in Camden. How-
ever, violence within General Dynamics, the
experience that G.D. has had with unions, es-
pecially unions that are on strike, had been
overwhelming. Significantly, the most recent
example is the Pomona, California, strike. And
how close to home can we get? Pomona, Cali-
fornia, moving an operation into Camden; as a
matter of fact, some of these jobs that are here
are because that they were moved out during
the strike.... As a matter of fact, it got so
bad out there during that 13-week strike that
the United States Federal Court issued an in-
junction against the union to keep them from
harassing their own members and employees
of G.D. Pomona Division.
It did little good, because female employees
continued to receive obscene phone calls
throughout the night, cars were firebombed,
tires were slashed, nails were thrown in the
parking lot, children were threatened, homes
were attacked, and people, employees, were
beaten as they attempted to cross the picket
line .. .. And I don't want to imply that if a
721)
(GI:NERAL DYNAMICS CORP()RATI)ON
union is successful in organizing this plant, that
we're going to see violence or strikes, because
there are many companies that have never
seen violence or strikes. But I want to point
out that there is always that possibility when
there is a union present.
Coon's speech also contained comments regard-
ing the necessity for price competitiveness and the
way in which unions make a company uncompeti-
tive.
Plant Manager Fred Lce delivered speeches to
employees on January 19 and 22, 1979. A substan-
tial part of Lee's prepared speech consisted of his
recounting three "experiences" he said he had with
employees involved in union activities. The first
"experience" he cited occurred at the Convair Di-
vision of General Dynamics in the early 1970's
when the majority of 1,200 engineers voted for
union representation. After remarking that substan-
tive bargaining on a contract did not begin until
the lawyers from both sides spent 18 months talk-
ing merely "about how they would negotiate," Lee
stated:
During that 18 months there were no wage in-
creases, there were no benefit changes, be-
cause all the employees in that bargaining unit
were locked in, subject to negotiations which
hadn't started yet. They finally reached negoti-
ations after 18 months and sat down at the
table. One year later they had failed to negoti-
ate. So, after 2-1/2 years, there had been no
wage increases, no benefit increases for those
1,200 employees.
The second "experience" related by Lee was a 7-
week strike in 1975 by employees represented by
the International Association of Machinists at Gen-
eral Dynamics' Pomona, California, facility. Re-
garding this strike, Lee commented:
At the end, what was gained? The union set-
tled for exactly what was on the table seven
weeks earlier. There was not one penny gained
by the employees during that seven weeks of
time, except they lost seven weeks of pay.
Turning to his third "experience," Lee told the
employees:
Okay, three years later roughly, this last
September, the same union decided to go out
on strike again. . .. This time the strike lasted
until December 18th-13 weeks. During that
time there was a lot more violence. There was
people who were injured, there were cars
damaged. One of the Inspectors who worked
for me had four brand new steel belted radials
slashed in the parking lot. Another car was
fire bombed. The personal threats to people,
the obscene phone calls was [sic] very intense
.... .At the end of the strike, 450 people did
not come back to work because there were no
jobs. Those jobs had been filled with people
who had come in off the street....
The union agreed and signed for the pack-
age, to the best of my knowledge, that was on
the table 13 weeks earlier. Not one penny was
gained in economic benefit by the 13 week
strike except the people who returned are now
adversaries .... Friends have turned against
friends.
The Employer's labor counsel, David Perez, also
gave speeches to groups of employees on January
19 and 22, 1979. Early in his remarks, Perez said,
"Let me make it clear-General Dynamics has 99
collective bargaining agreements. Many of those
agreements work out extremely well, without
strikes, without rancor. The fact of life is that some
will go well and some go badly. But what we're
going to look at now is what are the risks." Perez
then reminded the employees that, although the
Union "can promise everything in the world," it
"can't deliver a thing until the company says
'yes."' Perez added:
The law does not require employers to
agree to any specific demand of the union
which the employer doesn't believe is in its
best interests. The law does not require that
the benefits and wages go up. They can go
down, or they can stay the same. It's a "give
and take" relationship.... It becomes a busi-
ness transaction. General Dynamics would
deal with the IUE in good faith, we would
bargain with them in good faith. But we'll bar-
gain with them as businessmen....
Let's assume arguendo, heaven forbid, that
the union is elected. Have to go into the first
bargaining session. When would this take
place? Nobody knows. We've seen that the
Convair situation was approximately one year
and one-half. The last election the IUE won
for General Dynamics employees was in ap-
proximately 1969 at the San Antonio facility in
the Fort Worth Division. In that case it took
approximately 2-1/2 years to reach agreement.
And why after that election comes in, every-
thing is frozen, wages are frozen, benefits are
frozen. As a matter of law we cannot change
any terms and conditions of employment for
the better or negative. . . It is frozen until if
we reach an agreement. . .Wages-let's
assume that we get down to the bargaining.
what's going to be on the table? I have abso-
721
I)lITCISI()NS ()1: NA I()NAI. I.AB()R R:.LATI()NS B()ARI)
lutely no idea from the union side, except two
things. I'm almost positive we're gonna see
what you call "dues checkoff." We'll also see
superseniority, probably. I've seen one where
that didn't happen; only one. Will the compa-
ny give them? I have no idea. I do know one
thing; it doesn't cost us anything to give it and
we know the union wants it. So it almost
comes down to the people on the company
side looking across the table and saying, "You
want those two things, what are you going to
give us? " We've had cases where we've been
able to get the benefits back. . .
You're in the collective bargaining session,
you've got three basic options-Number one,
we can reach agreement; Number two, we can
continue bargaining. And remember, in the
first negotiations there's no time limit. It's not
like ongoing negotiations; it can go on ad in-
finitum. Normally, companies are in no hurry;
everything is status quo.
Considering the total content of the speeches
given by officials of the Employer, Coons, Lee,
and Perez, buttressed by the posters and handbill
discussed above, we find that the Employer went
beyond the bounds of permissible campaign speech.
The Employer's numerous references to strikes,
violence, loss of business loss of jobs, and loss of
benefits amounted to veiled threats and created an
atmosphere of fear. 2 In the context of these specif-
ic threats, the Employer's repeated statements asso-
ciating the Petitioner with strikes, plant closures,
and job loss had a coercive impact on the employ-
ees.
Specifically, the Employer continually linked the
closing of two of its other facilities-in Newark,
New York, and San Antonio, Texas-to the pres-
ence of the Petitioner as the bargaining representa-
tive there. In addition, the Camden employees
were reminded several times that jobs were re-
duced by more than 90 percent within a short time
after employees at the Rochester, New York, plant
voted to be represented by the Petitioner.
Further, this implicit threat of job loss or plant
closure was underscored by the Employer, in
effect, telling the employees that much of the work
of the Camden plant had been moved there as the
result of labor discord at the Employer's Pomona,
California, plant which was entirely the fault of the
union there; the implication being clear that hun-
dreds of employees covered by a union contract
lost their jobs because work was moved from the
unionized Pomona plant to the Camden facility.
The Employer also repeatedly stressed the ways a
I Set. e.g. A,nerace Corporution. ESN Division. 217 NLRB 850
(1975): and BRoz Spinning Compuny. Inc.. 177 NLR H 788 (1969).
union allegedly makes a company uncompetitive
and stated that its Camden facility would continue
to operate only so long as it was able to build a
quality product at a competitive cost.
In addition to establishing an atmosphere of fear
and coercion by its repeated references to strikes
and job loss, the Employer also created the impres-
sion that collective bargaining would be futile
through statements that the Employer already paid
its employees the maximum under the Federal
wage price guidelines, that the Employer intended
to engage in hard bargaining, and that there might
well be long delays inherent in reaching agreement
with wages and benefits frozen in the interim. As
outlined by an employer official, Perez, the bar-
gaining process was not likely to begin in earnest
until the Employer wished it to, and then bargain-
ing would primarily consist in the Petitioner asking
for concessions aimed at strengthening its own po-
sition (such as superseniority for union stewards
and dues checkoff) in return for compromises with
respect to wages and benefits. The message deliv-
ered to employees by Perez was that their interests
probably would be sacrificed in this trade-off be-
tween the Employer and the Petitioner, and that
there was a strong possibility that the employees
actually could end up in a worse position as an out-
come of the bargaining process.3 The Employer's
statements, through Perez, that the Petitioner
would almost inevitably put in danger the employ-
ees' existing wages and benefits, created an atmos-
phere of fear sufficient to destroy employee free
choice.
Further, we find that the Employer's statements
regarding the consequences of bargaining, such as
strikes and long delays entailing frozen wages and
benefits, were objectionable and implied threats in-
asmuch as these statements were intertwined with
graphic descriptions of long and violent strikes at
other plants of the Employer.
As indicated by the excerpts from the various
speeches and the handbill, quoted above, the Em-
ployer's campaign did contain qualifying or dis-
claiming statements. Thus, after showing a film and
making remarks focusing on the violence encoun-
tered by those attempting to resist unionization, the
employer official, Coons, sought to reassure em-
ployees by saying, "I don't want to imply that if a
union is successful in organizing this plant, that
we're going to see violence or strikes." Neverthe-
less, that clearly was the implication intended to be
conveyed to the employees, as Coons quickly fol-
lowed his attempted disclaimer with the comment
:' See, cg l holav Productr Co.. Divtm,,m of !homnua Indu lruiv, I1c.,
167 NL.RB 732 (1967)
722
G(iENRAI. I)YNAMICS C()RI()RA'I I)N
that, "But I want to point out that there is always
that possibility [strikes and violence] when there is
a union present."
Similarly, prior to setting out for employees
some of the "risks" of bringing in a union, Perez
noted that many of the Employer's 99 collective-
bargaining agreements work out "without strikes,
without rancor." So, too, the same handbill which
warned that jobs had been lost or plants had been
closed at several locations where the Petitioner
represented General Dynamics' employees also
stated that the Camden facility would not be closed
merely if the Petitioner won the election there.
We conclude, however, that these disclaimers do
not negate the fears of plant closure, jobs loss, and
frozen or reduced wages and benefits generated by
the statements accompanying those disclaimers. As
the Board has observed on numerous occasions,
employees are particularly sensitive to suggestions
of plant closure and job loss made by their employ-
er, and employees will discount general expressions
of the employer's willingness to accommodate the
union in the context of such suggestions.
In the instant case, from the very outset of its
campaign, the Employer repeatedly emphasized un-
employment and plant closings, the Petitioner's
connection to such plant closings, and the Employ-
er's ability to shuffle work and jobs among its nu-
merous plants throughout the United States. The
Employer's assurances that it would bargain in
good faith and that strikes and plant closure were
not anticipated in Camden do not insulate the Em-
ployer from responsibility for the coercive effect of
its campaign considered as a whole. As the Su-
preme Court stated in N.L.R.B. v. Gissel Packing
Co.. Inc.,' any balancing of an employer's right to
speech and employees' right to associate "must
take into account the economic dependence of the
employees on their employers, and the necessary
tendency of the former, because of that relation-
ship, to pick up intended implications of the latter
that might be more readily dismissed by a more
disinterested ear."
Thus, we find that the Employer's overall cam-
paign created a coercive atmosphere and tended to
create the impression that strikes, plant closure,
jobs loss, and other adverse consequences would
flow from unionization. This finding regarding the
cumlative effect of the campaign tactics is in addi-
tion to our conclusion that the Employer's display-
ing of the "Don't Vote for a Loser" poster, previ-
ously discussed, requires setting aside the election.
Accordingly, we find merit to the Petitioner's Ob-
jections 2 and 3 and conclude that a second elec-
tion should be directed.
ORDER
It is hereby ordered that the election previously
conducted herein on January 26, 1979, be, and it
hereby is, set aside.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
' 395 U S 575. 617 (1q)h4)
723.