Huyck Corp.

National Labor Relations Board - Board Decisions

Sep 1, 1966

160 N.L.R.B. 835 (N.L.R.B. 1966)

FORMEX COMPANY 835
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office , Fourth
Floor, The 120 Building , 120 Delaware Avenue, Buffalo, New York 14202, Tele-
phone 842-3112.
Formex Company , Division of Huyck Corp . and United Textile
Workers of America, AFL-CIO. Cases 10-CA.-6421 and 10-RC-
6492. September 1, 1966
DECISION, ORDER, AND CERTIFICATION OF
RESULTS OF ELECTION
On June 13, 1966, Trial Examiner Sidney Sherman issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had not engaged in the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed in its entirety, as
set forth in the attached Trial Examiner's Decision. In addition, the
Trial Examiner found no merit in the objection to the election filed
in Case 10-RC-6492 and recommended that the objection be over-
ruled. Thereafter, the General Counsel filed exceptions to the Trial
Examiner's Decision and a supporting brief, and the Respondent filed
a brief in opposition 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 powers in connection with this consolidated case to a
three-member panel [Chairman McCulloch and Members Fanning
and Jenkins].
The Board has considered the Trial Examiner's Decision, the excep-
tions and briefs, and the entire record in this consolidated case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner.
[The Board dismissed the complaint in its entirety and ordered
that the objection filed in Case 10-RC-6492 be overruled.]
[The Board certified that a, majority of the valid votes was not cast
for United Textile Workers of America, AFL-CIO, and said organi-
zation is not the exclusive representative of the Employer's employees
in the unit heretofore found appropriate.]
TRIAL EXAMINER'S DECISION ON MOTIONS FOR JUDGMENT
ON THE PLEADINGS AND TO DISMISS
In Case 10-RC-6492, the Union on October 4, 1965, filed a petition for an elec-
tion, which was held on December 14, 1965. Thirty ballots were cast against, and 11
for, the Union . There were no challenged ballots. On December 21, the Union filed
a timely objection to the election, and, on December 28, filed the charges in Case
160 NLRB No. 67.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
10-CA-6421. On March 17, 1966, the Regional Director issued a complaint in that
case. On March 21, he issued a supplemental decision in the representation case, in
which he found merit in the Union's objection to the election insofar as it was based
on the distribution by Respondent to the employees of a letter dated December 9,
1965, and ordered a hearing to resolve the issues raised with respect to that letter.
Also, on March 21, the Regional Director issued an order consolidating the instant
cases for purposes of hearing. On March 25, Respondent filed an answer to the
foregoing complaint. On April 29, the General Counsel filed a motion for judgment
on the pleadings, and for an order setting aside the election and directing a new
election. On May 5, Respondent filed a memorandum opposing that motion, and
moved therein that the Trial Examiner either grant It an oral hearing in the con-
solidated proceeding or dismiss the complaint and overrule the objection to the
election, without a hearing. On May 10, Trial Examiner Kessel ordered that
Respondent show cause on or before May 23, 1966, why the motion for judgment
on the pleadings should not be granted. On May 23, Respondent filed a response
to said order, which (1) set forth grounds for denying the General Counsel's
motion, and (2) renewed its motion to dismiss the complaint and to overrule the
objection to the election.' The consolidated proceeding was 'subsequently assigned
to Trial Examiner Sidney Sherman for disposition of the foregoing motions.
Upon the entire record, I adopt the following findings and conclusions:
I. RESPONDENT'S BUSINESS
The complaint alleges, and the answer admits, that Formex Company, Division
of Huyck Corp., herein called Respondent, is a New York corporation with an
office and place of business in Greeneville, Tennessee, where it is engaged in the
manufacture and sale of paper machine fabrics. It is also admitted that Respondent
annually ships to out-of-State points goods valued in excess of $50,000.
Respondent is engaged in commerce under the Act.
H. THE LABOR ORGANIZATION INVOLVED
United Textile Workers of America, AFL-CIO , herein called the Union, is a
labor organization under the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The only issues raised by the pleadings in the complaint case and reserved by the
Regional Director in the representation case were whether a letter admittedly sent
by Respondent to its employees on December 9, 1965, (a) violated Section 8(a)(1)
of the Act, and (b) constituted such interference with the election as to warrant
setting it aside.
The letter, which is attached to the complaint, and incorporated therein, is signed
by Respondent's vice president and reads as follows:
With the NLRB election scheduled for next Tuesday, I want to discuss with
you an important matter related to your job. Having a union in Formex Com-
pany here in Greeneville could be very damaging to your job security. This
may sound a bit strange in view of the fact that many large companies are
successful despite unions and strikes in their plants.
The presence of a union and its accompanying threat to continuous production
could hurt us badly with our customers. Please consider this fact:
FORMEX COMPANY IN GREENEVILLE IS THE ONLY
MANUFACTURER OF ENDLESS FORMING FABRICS IN
THE UNITED STATES.
So what does that mean? Simply, it means that they must buy and use wires
if we are unable to supply fabrics. If that happens, we would lose' business-
this means fewer jobs. After once returning to wire, our customers might not
be willing to use our fabrics again for a long time, especially if they had
bought a stock of wires. With out past experience, it is hard enough to con-
vince our customers that we are a fully reliable supplier without having the
threats to production which go with a union. -
I know you will consider this very serious matter in making your decision
about a union, and, Vote "No" on Tuesday.
'On May 31, the General Counsel filed a memorandum with regard to certain matters
contained In Respondent's May 5 memorandum.
FORMEX COMPANY 837
The General Counsel contends that the foregoing letter is coercive under the
authority of Texas Industries, Inc., 139 NLRB 365, 368.2 However, there the perti-
nent language found by the Board to violate Section 8(a)(1) consisted of: (1)
a statement to the effect that the respondent did not have to grant the union's
demands, and that the union could enforce its demands only by striking, which
meant loss of wages and the possibility of permanent replacement of the strikers;
and (2) an assertion, in effect, that had the respondent's employees been represented
by a union during the previous year, respondent would not have been able to offer
them continuous, full-time employment.3
With regard to the following statements, a majority of the Board panel4
concluded:
We find that the Respondents, by these statements, indicated to their employ-
ees that the designation of a union representative would inevitably lead to
strikes, lower wages, and loss of jobs, as well as the discontinuance of full-
time employment. Such threats of economic loss, should the union win the
election, clearly constituted interference, restraint, and coercion of employees
in the exercise of the rights guaranteed by Section 7, in violation of Section
8(a)(1) of the Act. [Emphasis supplied.]
Relying on the foregoing ruling, a Trial Examiner, in Texas Boot Manufacturing
Company, Inc.,5 found unlawful a statement by the respondent to its employees,
during an organizational campaign, to the effect that, if the union made unreason-
able demands, it would have to strike to enforce them, in which case the respondent
would hire permanent replacements for the strikers. However a panel of the Board 6
reversed the Trial Examiner, and Chairman McCulloch, in explaining his reason
for not deeming Texas Industries controlling, stated in part:
There, in a context of other unfair labor practices, the Respondent indicated
that union representation was bound to lead to less continuous employment and
lower pay . . In contrast, the Respondent in the instant case made it clear
that only if the union made "unreasonable" demands would there be a strike
and consequent loss of jobs. [143 NLRB at 265.] 7
It is thus clear from the language of the Board majority in Texas Industries, itself,
as well as the foregoing gloss placed thereon by Chairman McCulloch, that Texas
Industries stands only for the proposition that an employer may not depict strikes
or loss of jobs or earnings as the inevitable result of union representation.
Here, Respondent's appeal to its employees seems to develop two themes, which
may be paraphrased as follows:
(1) The designation of a union to represent Respondent's employees could
alienate Respondent's customers, because of the danger of interruption of production
by a strike and the need of such customers for a reliable source of supply.
(2) Since Respondent is the sole source of supply for its product (fabrics),
should it be unable to supply its customers (due to a strike), they would have to
resort to a substitute product (wires), and might for some time be unable or unwill-
ing to revert to Respondent's product, in which case there would be less work for
Respondent's employees.
Whether read separately or together, neither (1) nor (2) implies that loss of
patronage or jobs will be the inevitable result of union representation or strikes, nor
that strikes are the inevitable result of unionization. All that was stated in (1) was
that loss of patronage was a possibility, should the employees choose union repre-
sentation; and in (2) Respondent informed the employees only in effect that, if
there was a strike and it was unable to supply its customers as a result of the strike,
they might, for reasons peculiar to the nature of Respondent's product, not find it
feasible to resume the use of such product for some time after the termination of
the strike.
2 The Board holding in that case, on which the General Counsel relies, n as reversed by
the court in Texas Industries , Inc. v. N L.R.B., 336 F 2d 128, 130-131 (C A 5)
3 For the context in which these statements appeared, see Texas Industries, Inc. V.
N.L.R B., supra, page 130.
i Chairman McCulloch and Member Brown. Member Leedom dissented on this point.
6143 NLRB 264.
6 Chairman McCulloch and Members Leedom and Rodgers.
7 See also, Coors Porcelain Company, 158 NLRB 1108 (Member Brown dissenting)
American Greetings Corporation, 146 NLRB 1440; Universal Electric Company, 156
NLRB 1101.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Even a statement by an employer that , in the event that a union's strike threat
materialized , the plant would be permanently closed , because , the employer's cus-
tomers would withdraw their patronage , was deemed by the Board to be privileged .&
And, in Mayfair Midwest, Inc.,9 it was held not to be unlawful for the respondent
to publicize to its employees the following statement:
Unions cause strikes , and strikes hurt everyone . A strike here would be
extremely harmful because it could cause us to lose our major customer,
National Homes . National Homes demands one day service , and if we fail to
meet their needs, I'm sure they would not hesitate to find another supplier.
[Emphasis supplied ]
The Board majority said of the foregoing quoted language:
The statement in effect expresses the Respondent 's opinion as to possible loss
of work in the event of a strike ; it does not expressly or impliedly threaten
that the Respondent will take action inevitably leading to job loss in reprisal
for the employees ' union activity.
There seems even more reason in the case at bar to regard the pertinent language
in the December 9 letter as merely an "expression of opinion as to possible loss of
work in the event of a strike ," and as therefore privileged.10
Accordingly , I conclude that the December 9 letter affords insufficient basis for
finding that Respondent violated the Act or interfered with freedom of choice in
the election. I will, therefore , deny the General Counsel 's motion for judgment on
the pleadings and, as it appears that General Counsel is relying solely on that letter
to establish the allegations of the complaint and the Union 's objection to the elec-
tion , I will grant Respondent 's motion to dismiss the complaint and to overrule the
objection to the election.
RECOMMENDED ORDER
Upon the entire record in this proceeding , it is ordered that the complaint in Case
10-CA-6421 be, and it hereby is, dismissed and that the objection to the election
filed in Case 10-RC-6492 and referred to me be, and it hereby is, overruled.
8 Poray, Inc., 143 NLRB 617 , 620-621 (Member Brown dissenting).
8148 NLRB 1602 , 1603 ( Member Brown dissenting).
10 Cf Aeronca Manufacturing Corporation , 118 NLRB 461 ; Haynes StelZite Company,
Division of Union Carbide Corporation, 136 NLRB 95 ; The William J. Burns International
Detective Agency, Inc , 148 NLRB 1267 . There the Board found to be unlawful or coercive
employer statements , which , unlike the instant letter , portrayed loss of patronage as the
inevitable result of the employees ' selection of a union Moreover , in all those cases the
Board stressed various factors not here involved , such as constant reiteration of the theme
of adverse customer reaction to organization of the employees by a union , misrepresenta-
tion of material facts as to such reaction , and (in Aeronca ) independent , coercive acts by
the employer.
Transway, Inc. and General Truckdrivers , Chauffeurs, Ware-
housemen and Helpers Local 270, affiliated with International
Brotherhood of Teamsters , Chauffeurs, Warehousemen & Help-
ers of America, Ind. Case 15-CA-2675. September 2, 1966
DECISION' AND ORDER
On May 18, 1966, Trial Examiner George Turitz issued his Deci-
sion in the above-entitled proceedings, finding that Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
160 NLRB No. 58.