Hedstrom Co.

National Labor Relations Board - Board Decisions

Apr 28, 1978

235 N.L.R.B. 1193 (N.L.R.B. 1978)

HEDSTROM COMPANY
Hedstrom Company, a subsidiary of Brown Group,
Inc. and International Association of Machinists
and Aerospace Workers, District No. 98, AFL-
CIO. Cases 6-CA-7619 and 6-RC-6762
April 28, 1978
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On May 12, 1976, the National Labor Relations
Board issued its Decision and Order I in this proceed-
ing. The Board, in agreement with the Administra-
tive Law Judge, found that Respondent had violated
Section 8(a)(1) of the Act by expressly and impliedly
threatening to close its plant in the event the Union
won the election; by threatening employees with
other reprisals if they selected the Union; by interro-
gating employees about their union activities, mem-
bership, and desires; by promising employees various
benefits and granting them benefits if they refrained
from selecting the Union; by soliciting grievances;
and by creating the impression of surveillance of
employees' union activities.
In addition, the Board, unlike the Administrative
Law Judge, found that Respondent further violated
Section 8(a)(l) of the Act by its president, Ketcham,
threatening employee Norman Anderson with dis-
charge. 2 It also found that the Union attained
majority status by February 15, 1974, set aside the
election held on March 28, 1974, and concluded that
because of Respondent's unfair labor practices a
second and fair election had little or no likelihood of
being conducted. Accordingly, the Board concluded
that the circumstances of the case warranted an
order directing Respondent to recognize and bargain
with the Union, and found that Respondent violated
Section 8 (a)(5) of the Act by refusing to do so.3
Thereafter, on July 5, 1977, the United States
Court of Appeals for the Third Circuit issued a
decision 4 in which it granted enforcement of the
Board's Order relating to the violations of Section
8(a)(1) found by the Administrative Law Judge,
reversed the Board's finding of an 8(a)(1) violation in
Respondent president's statements to employee Nor-
man Anderson, and reversed the Board's finding of
an 8(a)(5) violation. The court vacated the Board's
bargaining order, noting that the Order must be
evaluated in light of the Supreme Court's decision in
N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575
(1969), which indicated that a bargaining order
223 NLRB 1409.
2 Then-Chairman Murphy dissented from this additional finding.
3 In this regard, the Board concluded that the Administrative Law Judge
235 NLRB No. 166
without requiring an election would be appropriate
in either of two situations: first, in those "exceptional
cases" in which the unlawful conduct is so "outra-
geous" and "pervasive" that traditional remedies
cannot eliminate their coercive effects; and, second,
in those "less extraordinary cases" in which there are
less pervasive practices, but where there is a showing
that the union at some point had a card majority,
and where the Board concludes that the extensive-
ness of the unlawful conduct has a "tendency to
undermine majority strength and impede the election
processes." 395 U.S. at 613-614. The court further
noted that it had pointed out in N.LRB. v. Armcor
Industries, Inc., 535 F.2d 239, 244 (1976), that the
Board is required to "clearly explicate its reasons for
issuing a bargaining order and include findings as to
why a fair election cannot be held." The court found
that the Board has not met this requirement in the
instant case, and that it has instead made the
conclusory findings that the unfair labor practices
were numerous and extensive, and that the case
therefore fell within the second Gissel category,
requiring a bargaining order. Accordingly, the court
remanded the matter to the Board to make "specific
findings" with respect to the impact of the unlawful
conduct on the election process, and to give "a
detailed analysis" of the lingering effect of said
conduct and the likelihood of a fair rerun election. In
so doing, the court stated the following additional
reasons for requiring a remand: first, the Board must
evaluate the effect of the reversal of its findings of a
violation of Section 8(a)(5) and of one of Respon-
dent's allegedly more flagrant violations of Section
8(a)(1), second, the Board failed to assess the impact
of the Bedford Gazette's front page editorial on the
election and the chances for a fair rerun election;
and third, the Board has not considered what effect
the passage of 3 years would have on the possibility
of having a second and fair election.
The Board, having accepted the remand, respect-
fully recognizes the above-mentioned court opinion
as binding upon it for the purpose of deciding this
case.
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 as a whole
and the decision of the United States Court of
Appeals for the Third Circuit remanding the pro-
ceedings and, for the reasons set forth below, has
decided to reaffirm that part of its initial Order
had erred in not permitting the complaint to be amended to include a
violation of that section of the Act. -
4 558 F.2d 1137
1193
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which requires Respondent to bargain with the
Union upon request.
The record evidence as found by the Board and the
reviewing court establishes that the Union's cam-
paign formally began on February 5, 1974,5 when an
organizational meeting of some 35 company employ-
ees was held at a Holiday Inn. The following day,
Supervisor Rheault coercively interrogated employee
Wambaugh about the February 5 meeting. On
February 9, Foreman Will gave employee Hilmer the
impression that the February 5 meeting had been
under company surveillance.
Thereafter, Respondent conducted a vigorous cam-
paign against the Union which continued unabated
until the eve of the election. The campaign was
conducted by 11 supervisors, including Plant Manag-
er Griffiths and Respondent's president, Ketcham.
Griffiths engaged in unlawful conduct with 18
employees who worked in various departments in the
plant. His conduct consisted of interrogation regard-
ing employees' union sympathies, the solicitation of
grievances, and the promise and granting of benefits.
Thus, for example, Griffiths asked employee Figard
what he thought about the Union. After Figard said
he had not made up his mind, Griffiths asked him if
he had any problems. Figard answered that he
needed a jog button on his press and that he would
prefer not to have his rate of pay changed when he
was occasionally shifted to another job. Griffiths said
he would see about these problems. The next day
Figard was placed on straight pay. A jog button was
installed on his press 3 days later.
On another occasion, Griffiths stopped by the
station where employee Imler was assembling wheels
and asked Imler, who was wearing a union button,
how he thought the election would turn out. After
Imler said he was not sure, Griffiths asked if he had
any complaints. Imler said he thought that service-
men were overworked and underpaid. Griffiths said
Respondent was working on establishing an incen-
tive plan for servicemen.
About a week before the election, Griffiths ap-
proached employee Deremer, a laborer, at his work
station and told him that things would be better next
year because Respondent was bringing in more
machines and creating more jobs in Deremer's
department. Griffiths added that the Union would
not help employees at that time because Respondent
would have to continue to go by seniority.
Griffiths also asked employee Brant, a wheel
hanger, what he thought about the Union. When
Brant said he had not made up his mind, Griffiths
said the building would not be worth much without
I All dates are in 1974 unless otherwise indicated.
6 The court of appeals. apparently inadvertently, substituted the name of
Whetstone for that of Rheault in its decision. 558 F.2d at 1144.
Respondent, thus implying that the plant would close
in the event the Union won the election.
Nine of Respondent's lower level supervisors en-
gaged in conduct similar to Griffiths' by interrogat-
ing employees and soliciting grievances. In addition,
Supervisors Rheault, Logue, Beland, A. Diehl, and
Spriggs conveyed to a number of employees the
threat that the employees would lose their benefits or
suffer more onerous working conditions if the Union
were selected. The following are representative exam-
ples:
Supervisor Rheault had been a union steward at
Respondent's plant in Fitchburg, Massachusetts,
which had closed due to unionization. He told
employee Whetstone that the Union had stifled
Respondent's growth in Fitchburg and that, if the
Union won the Bedford election, it would cause the
Company to lose contracts from its customers.6
Rheault asked employee Ickes how he felt about a
union. After Ickes said he could not really judge,
Rheault said that, if the Union got in, benefits might
have to be renegotiated.
Supervisor Logue, the payroll manager, told em-
ployee Lewis that she thought he had been given a
break by Respondent and that he ought to give
Griffiths and Ketcham a chance. She added, "You
don't want to be standing out in a picket line half of
the winter." She later told employee Hilmer that
something had to be done about the men wanting a
union in the plant. She said, "If they bring the union
in here, it's only going to cause trouble and they will
be the ones to suffer in the end. They pay for it, no
matter how you look at it."
Respondent's campaign ended with a speech by
Company President Ketcham on the eve of the
election. In his speech, Ketcham pointed out that this
was the third representation election there in 7-1/2
years. After discussing Respondent's present fringe
benefits, wages, and working conditions, he gave six
reasons why Respondent did not want the Union to
win the election. In the fifth reason Ketcham said:
This Company has already had experience with a
union-in Fitchburg. It was an unhappy experi-
ence for us, and we honestly think it was for our
hourly employees also. Unions aren't always what
they are cracked up to be.
The Board found that it was common knowledge in
the town of Bedford that Respondent had closed its
plant in Fitchburg to escape the consequences of
unionization.
Ketcham's speech, containing the threat of plant
closure, was given to the second shift around 10 p.m.
1194
HEDSTROM COMPANY
on March 26 and to the first shift on the morning of
March 27. On the morning of March 28, the Bedford
Gazette printed an editorial on its front page entitled
"Hedstrom Employees to Vote Today on Unioniza-
tion." The article contained the following statements:
Hedstrom, which was sold to Brown Group,
Inc., of St. Louis two years ago, has its headquar-
ters in Bedford. Hedstrom's largest production
facility is in Dothan, Ala. The headquarters shift
from Fitchburg, Mass., to Bedford, was made to
escape what management felt was an untenable
union relationship. "A bitter experience," one
said. The Hedstroms left Fitchburg-and the
union-behind.
The real issue in the election may be the
company's expansion plans. Company officials
confirm that the parent corporation, Brown
Group, has approved a $1 million addition to the
massive plant along Sunnyside Road ...
Hedstrom President E. Lee (Jack) Ketcham
told Bedford Rotary a month ago that "It's
Bedford's turn to grow." Ketcham said most of
the growth in recent years had been at the
Dothan, Ala. plant, which is not unionized.
When-or if-the expansion will be made
could hinge on the union situation, but company
officials wouldn't say that. One officer said,
"We've all been too busy on this election to think
about it."
The polls opened at 3 p.m. on the same day the
article appeared.
With respect to the seriousness of Respondent's
unfair labor practices and the impact one might
reasonably expect them to have had on employees,
we note at the outset that the possibility of plant
closure in the face of unionization was an issue which
loomed large in the election campaign. The Board
has long held that the threat of job loss through plant
closure has a seriously coercive effect on employees'
freedom of choice in the election of a collective-
bargaining representative. Thus the Board has stat-
ed:
Threats of loss of work and income are a type of
threat likely to have the most substantial impact
upon employee attitudes and reactions. By their
? Cohen Bros. Fruit Company, 166 NLRB 88, 90 (1967). See also General
Stencils, Inc., 195 NLRB 1109(1972).
a N.L.R.B. v. Gissel Packing Co., 395 U.S. at 61 , fn. 31.
Our conclusion herein, however, would remain the same even in the
absence of such an article.
nature they may justifiably be regarded as serious
violations of the Act.7
Further, in Gissel, supra, the Supreme Court recog-
nized the serious impact of such threats when it made
reference to a study which showed that threats to
close or transfer plant operations were more effective
in destroying election conditions for a longer period
of time than were other types of unfair labor
practices. 8
Respondent's employees were exposed to the threat
of plant closure throughout the campaign. The entire
Bedford community was aware that Respondent had
recently closed the Fitchburg plant due to the
presence of a union. As discussed earlier, both high-
and low-level supervisors unlawfully raised the Fitch-
burg example to employees during the campaign,
and impliedly threatened Bedford employees with
the same fate in the event that they selected the
Union. Indeed, Respondent's president, Ketcham,
ended the campaign with a speech to all employees
which raised the spectre of the "unhappy experience"
at Fitchburg.
As to the newspaper article which the court has
instructed us to consider, it appeared on the morning
of the election and recounted the Fitchburg experi-
ence and suggested that the Company's expansion
plans might be adversely affected by the presence of
a union on the scene. Thus, the fears engendered by
the implied threats of company officials and supervi-
sors were articulated in an article published by an
independent source. This article would tend to
reinforce the employees' belief that Respondent's
threats were not merely campaign rhetoric, but
serious admonitions regarding the consequences of
unionization.9
In addition, the Company's intensive antiunion
campaign included approximately 40 unfair labor
practices, demonstrating the Company's willingness
to exceed the limits of the law in its attempt to
prevent unionization. It may reasonably be inferred
that the total effect of the threats of closure, and the
numerous other unfair labor practices against the
background of the general awareness of the Fitch-
burg experience was to instill in employees a strong
fear of loss of employment that would continue to be
operative even in the event of a second election. This
fear could only have been exacerbated by the
publication of the newspaper editorial.1 0
We find that "the possibility of erasing the effects
of past practices and of ensuring a fair election (or a
fair rerun) by the use of traditional remedies, though
iO See Universal Manufacturing Corporation of Mississippi, 156 NLRB
1459 (1966).
1195
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
present, is slight and that employee sentiment once
expressed through cards would, on balance, be better
protected by a bargaining order . ." 11 This
conclusion is not significantly affected by the review-
ing court's reversal of our finding that President
Ketcham violated Section 8(a)(l) by threatening to
fire an employee. The reversal does not disturb any
of the findings concerning the threats of plant
closure, or the overall context in which those threats
occurred, which form the basis for our conclusion
that a bargaining order is warranted.' 2
The court of appeals, in remanding this matter to
us, directed that we should consider what effect the
passage of more than 3 years would have on the
possibility of a fair second election. Although in our
view the validity of a bargaining order in this case
and in similar cases should properly rest upon our
analysis of the seriousness and pervasiveness of the
unlawful conduct at the time that conduct was first
presented for our scrutiny,' 3 in conformity with the
court's instructions we have carefully considered this
question. For the reasons stated below, we find that
the passage of time has not increased the likelihood
that a fair second election can be held.
As noted above, the effect of Respondent's threats
of plant closure and its extensive unfair labor
practices during the course of the campaign was to
instill in employees the fear that they would lose their
jobs through plant closure if the Union won the
election. There is nothing to indicate that this fear
has been erased during the past 3 years. To the
contrary, recent events indicate that Respondent's
vigorous opposition to the Union continues to result
in unfair labor practices, thereby sustaining, reinforc-
ing, or increasing the fear that the Company might
still carry out its earlier threat to close operations if
the Union prevails. Thus, in a case issued this day,' 4
we find that Respondent violated Section 8(a)(3) and
(1) of the Act by terminating employee Ritchey, a
union member who participated in and actively
11 N.L.R.B. v. Gissel Packing Co., 395 U.S. at 614-615.
IZ General Stencils, 195 NLRB at 1110, where the Board stated, with
respect to threats of plant closure:
Such threats may, of course, be presumed to have had a severe
initial impact on the employees. But initial impact is not the focus of
our inquiry. Under Gissel we must attempt to measure the impact over
time and, also, to assess the likelihood that any lasting impact can be
mitigated by remedies short of an order to bargain. Mathematical
precision of analysis is not to be expected in such a task. Merely
requiring the Employer to refrain from repeating such threats will not,
of course, erase the threat from the employees' memory. The impact of
the threat lingers long after the utterances have been abated. Moreover,
the standard remedy for less severe violations-the posting of a notice
informing employees that the employer will not repeat his unlawful
conduct-often prolongs that impact by insuring that each and every
employee is reminded that such a threat was made. Aware that the
employer has once threatened him with discharge or plant closure, an
employee is likely to find little security in a promise that the threat will
not be reiterated.
supported the Union's strike against Respondent, at
a time when she had been neither provided with an
adequate offer of reinstatement nor permanently
replaced after the strike ended. In addition, Respon-
dent was found to have violated Section 8(a)(l)
through Plant Manager Griffiths' interrogation and
solicitation of grievances of an employee, and
through Foreman Ferguson's threat that an employ-
ee had no job and that the strike was futile because
the Union would never get a contract. Finally, we
found that Respondent through President Ketcham
violated Section 8(a)(1) by threatening employee
England with more onerous work conditions as a
result of her participation in the strike.' 5 In these
circumstances, we find that a bargaining order is still
necessary despite the passage of time from the date
of Respondent's earlier unlawful conduct.
As a final reason for remanding the case to us, the
court of appeals noted that it had reversed our
finding that Respondent violated Section 8(a)(5) by
refusing to recognize and bargain with the Union.
The court's conclusion with respect to the violation
was based upon the fact that the Union demanded
recognition 3 days before it achieved majority sta-
tus16 and made no further demand after achieving
such status. In the circumstances of the case, the
court found the initial request for recognition did not
constitute a "continuing demand," and that a viola-
tion of Section 8(a)(5) had therefore not been
established. As a result of the court's finding, we are
presented with a case where no effective demand for
recognition was made and where a bargaining order
is nevertheless required to remedy the effects of
Respondent's unfair labor practices. We shall there-
fore issue an order in accordance with our establish-
ed practice in such cases.'7 We note that, while
Respondent's unfair labor practices began on Febru-
ary 6, the Union did not achieve majority status until
February 15. We shall therefore require that Respon-
dent bargain with the Union as of February 15, the
13 To conclude otherwise is "to put a premium upon continued litigation
by the employer." N.LRB. v. L B. Foster Company, 418 F.2d 1, 4-5 (C.A. 9,
1969). See also Gibson Products Company of Washington Parish, La, Inc., 185
NLRB 362 (1970).
14 Hedstrom Company, a subsidiary of Brown Group, Inc., 235 NLRB 1198
(1978). Respondent conceded that it refused to comply with the Board's
Order in Hedstrom Company, a subsidiary of Brown Group, Inc., 223 NLRB
1409 (1976), pending the outcome of enforcement proceedings in the Third
Circuit Court of Appeals. The Union called a strike in response to
Respondent's refusal to comply with the Board's Order, and the above-cited
case concerns Respondent's conduct during and after the strike. Some of
Respondent's actions therein were found to be violations of the Act only as
a result of its unlawful refusal to bargain with the Union; others were found
to be independently violative of the Act. The unfair labor practices relied on
herein as supporting the bargaining order are in the latter category.
15 In the absence of exceptions thereto, Member Penello adopts the
Administrative Law Judge's dismissal of this allegation.
Is The request for recognition was made on February 12, 1974. The
Union achieved majority status by February 15, 1974.
i" See Beasley Energy, Inc., d/b/a Peaker Run Coal Company, Ohio
Division #1, 228 NLRB 93 (1977).
1196
HEDSTROM COMPANY
date on which the Union attained majority status
and on which Respondent's unlawful course of
conduct continued.
Based on the foregoing, and the entire record in
this case, the National Labor Relations Board hereby
affirms its Order issued in this proceeding on May
12, 1976, as modified below.1 8
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board reaffirms, except as modified below,
its Order issued in this proceeding on May 12, 1976
(reported at 223 NLRB 1409), and hereby orders that
the Respondent, Hedstrom Company, a subsidiary of
Brown Group, Inc., Bedford, Pennsylvania, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said Order, as so modified:
1. Delete paragraph 1(h) under paragraph I of
our Order and reletter the subsequent paragraph
accordingly.
2. Substitute the attached notice for that attached
to our Decision of May 12, 1976.
is The court of appeals' reversal of the finding of a violation of Sec.
(a)(5) and (I) requires the modification of our original Order. No further
modification is required by the court's reversal of our finding that
Respondent violated Sec. 8(aXI) by President Ketcham's threat to employee
Norman Anderson inasmuch as there were other threats of retaliation which
were found by the Board and enforced by the court.
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 of these things.
WE WILL NOT threaten to close this plant if you
select International Association of Machinists
and Aerospace Workers, District No. 98, AFL-
CIO, hereinafter District No. 98, or any other
labor organization, as your collective-bargaining
representative. We have no intention of closing
this plant at any time for any reason which is
prohibited by law.
WE WILL NOT threaten you with any other
reprisals if you select District No. 98, or any other
labor organization, as your collective-bargaining
representative.
WE WILL NOT promise you benefits if you
refrain from selecting District No. 98, or any
other labor organization, as your collective-bar-
gaining representative.
WE WILL NOT grant you benefits if you refrain
from selecting District No. 98, or any other labor
organization, as your collective-bargaining repre-
sentative.
WE WILL NOT solicit grievances from you in
order to deter you from selecting District No. 98,
or any other labor organization, as your collec-
tive-bargaining representative.
WE WILL NOT interrogate you about your union
activities, membership, and desires.
WE WILL NOT create an impression that we
have your union activities under surveillance.
WE WILL NOT in any other manner interfere
with you or attempt to restrain or coerce you in
the exercise of the above rights.
WE WILL, upon request, bargain collectively
with District No. 98 with respect to wages, hours,
and other terms and conditions of employment of
the employees in the following appropriate unit:
All production and maintenance employ-
ees, including group leaders, at the Bedford,
Pennsylvania, plant of Hedstrom Company;
excluding office clerical employees and
guards, professional employees, and supervi-
sors as defined in the Act.
All our employees are free, if they choose, to join
District No. 98, or any other labor organization.
HEDSTROM COMPANY, A
SUBSIDIARY OF BROWN
GROUP, INC.
1197