Jacob Brenner Co., Inc.

National Labor Relations Board - Board Decisions

Jul 11, 1966

160 N.L.R.B. 131 (N.L.R.B. 1966)

JACOB BRENNER COMPANY, INC. 131
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT interrogate employees about employees' union or other pro-
tected concerted activities in a manner constituting interference, restraint, and
coercion in violation of Section 8(a)(1) of the Act.
WE WILL NOT threaten our employees with discharge for engaging in union
or other protected concerted activity.
WE WILL NOT discourage membership in any union by discharging or other-
wise discriminating in regard to hire or tenure of employment of any
employee.
WE WILL NOT m any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-examination, to form, loin, or
assist labor organizations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to refrain from
any or all such activities.
WE WILL offer Kenneth J. Smith immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority
or other privileges, and make him whole for any loss of pay he may have
suffered by reason of his discharge together with interest at the rate of 6
percent.
All our employees are free to become or remain members of any labor
organization.
TAKIN BROS . FREIGHT LINE, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Itepreseutative) (Title)
NOTE.-We will notify Kenneth J. Smith if serving in the Armed Forces of the
United States of his right to full reinstatement upon application in accordance
with the Selective Service Act, and the Universal Military Training and Service
Act, as amended, after discharge from the Armed Forces.
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, 881
U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago,
Illinois 60604, Telephone 828-7597.
Jacob Brenner Company, Inc. and Local 565, Sheet Metal Work-
ers International Association, AFL-CIO. Case 3O-CA-2e2.
July 11, 1966
DECISION AND ORDER
On April 13, 1966, Trial Examiner Leo F. Lightner issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in unfair labor practices as alleged in the com-
plaint, and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision.
160 NLRB No. 11.
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, the General Counsel filed exceptions to the Trial Exam-
iner's Decision and a supporting brief, and the Respondent filed a
brief in support of the Trial Examiner's Decision.
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 case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has reviewed.the rulings of the Trial Examiner made
at the hearing and finds that. no' prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the General Counsel's exceptions and brief,
the Respondent's brief, and the entire record in the case, and
hereby adopts the Trial Examiner's findings, conclusions, and
recommendations.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Leo F. Lightner.in Fond du
Lac, Wisconsin,•on December,13, 1965, on the complaint of General Counsel, and
the answer of Jacob Brenner Company, Inc., herein called the Respondent.'
The complaint alleges violations of Sections 8(a)(1) and 2(6) and (7) of the
Labor Management Relations Act, 1947, as amended, -61 Stat. 136, herein called
the Act. The parties waived oral argument and briefs filed by the General Coun-
sel and Respondent had been carefully considered. During 'the hearing I reserved
rulings on several motions, including Respondent's motions to dismiss the complaint.
These motions are disposed of in accordance with the findings and conclusions
herein set forth.
Upon the entire record,2 I make the following:
FINDINGS-AND CONCLUSIONS
1. BUSINESS OF THE RESPONDENT
Respondent is a Wisconsin corporation maintaining its principal office and place
of business in the city of Fond du Lac, Wisconsin, where it is engaged in the busi-
ness of manufacturing bulk-milk pickup trucks. During the year immediately pre-
ceding the issuance of the complaint, a representative period, Respondent purchased
and received goods and services, in interstate commerce, from points outside the
State of Wisconsin, in an amount that is in excess of $600,000. During the same
period, Respondent sold goods and services, in interstate commerce, to customers
outside the State of Wisconsin, in an amount in excess of $1 million. The com-
plaint alleges, the answer admits, and I find that Respondent is an employer, as
defined in Section 2(2) of the Act, engaged in commerce and in operations affect-
ing commerce, as defined in Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 565,, Sheet Metal Workers International Association , AFL-CIO, herein
called the Union, is a labor organization within the meaning of Section 2(5) of
the Act. •
1 The charge herein was filed on August 118, 1965, an amended charge was filed on Octo-
ber 6, 1965, a second amended charge was filed on October 13, 1965, a third amended
charge was filed on October 20, 1965. The complaint issued on October 22, 1965.
2 The record contains stipulations relative to certain documents ; no witnesses were
called to testify.
JACOB BRENNER COMPANY, IN C. 133
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and sequence of events
1. Issues
The principal issues raised by the complaint, and answers thereto, and litigated
at the hearing are whether the Respondent interfered with, restrained, and coerced
its employees by, the conduct of T. P. Brenner, Sr., issuing a series of letters on
July 21, 23, 27, 29, and 30, 1965, which allegedly (a) contained threats of loss of
jobs, or plant shutdown; or, (b) contained threats of loss of existing benefits; or,
(c) identified unionism with violence to employees and their property; or, (d) sug-
gested to employees that they select the Jacob Brenner Shop Committee as their
bargaining representative ; in violation of the provisions of Section 8(a) (1) of the
Act. Respondent by answer, denied the commission of any unfair labor practice,
and asserted that the communications were- privileged communications under the
Constitution of the United States and the provisions of Section 8(c) of the Act.
2. Supervisory personnel
It is undisputed that T. P. Brenner, Sr., president of Respondent, is a super-
visor within the meaning of Section 2(11) of the Act.
3. Background
There is no dispute as to the background facts herein set forth. On an unspeci-
fied date, in the summer of 1964, the Union began an organizing campaign at
Respondent's plant. Subsequently, on May 11, 1965, the Union filed a Petition
for Election, identified as Case 30-RC-256. On July 6, 1965, a Decision and
Direction of Election was issued. The unit, as described in the petition and the
decision, is: All production and maintenance and truckdriver employees located in
the employer's manufacturing plants in Fond du Lac, Wisconsin, but excluding all
office and clerical employees, guards, professional employees, and supervisors as
defined in the Act. An election was held on August 3, 1965. A tally of ballots
indicated: 61 eligible voters; 19 votes for the Union; 34 against the Union and 4
challenged ballots. No timely objections to the conduct of the election were filed?
B. Interference, restraint, and coercion
The five letters which are alleged to be violative of Section 8(a)(1) of the Act
were admittedly dispatched to Respondent's employees on the dates indicated
between July 21 and 30, 1965.4 They are 13 pages in length, plus 1 page of pictures.
I do not find it necessary to set them forth at length, to preclude considering por-
tions out of context.
The flavor of the issue presented is characterized by the assertions of the parties
in their briefs. General Counsel asserts: Although carefully worded and subtly
phrased, the inevitable effect of the letters was to permeate the employee's minds
with fear that Respondent would engage in acts of economic retaliation if they
voted the Union into the plant. These threats were coupled with the promise that
if the employees voted against the Union, the "existing easy relationship" could
continue and the existing level of benefits would be maintained. Moreover, the
Respondent promised future benefits and job security if the employees voted against
the Union.5 Respondent, in essence, asserts that the letters constituted preelection
3 Charging Party's contention that the remedy herein should Include an order vacating
and setting aside the election Is rejected Sections 102.69(b) and 102.67(f) of the Board's
Rules and 'Regulations, Series 8, as amended.
4A letter from Respondent to its employees, dated February 16, 1965, was received as
background Since the charge herein was filed on August 18, 1965, the distribution of this
letter was beyond the 10(b) period
As the Supreme Court has said, In Local Lodge No. 1424, 1AM (Bryan Mfg Co ] v
N L R B , 362 US 411, 416, earlier events may be utilized to shed light on the true charac-
ter of matters occurring within the limitations period , and for that purpose Section 10(b)
ordinarily does not bar such evidentiary use of anterior events
8 Respondent correctly asserts that there is no allegation in the complaint relative to
promises of benefits. Accordingly, since this issue was not raised by the pleadings it is not
considered.
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
propaganda which should be viewed in the context of the give-and-take of the
preelection campaign , and that the letters are protected by Section 8(c) of the Act
and the First Amendment of the Constitution of the United States.
While asserting me letters "individually and in their totality contain express and
implied threats," General Counsel made particular reference to the portions he con-
tends are violative. These are next set forth:
July 21, page 2, paragraphs 2, 4, and 5;
The statement "Union negotiators are schooled on all phases of bargaining"
is probably the understatement of the year. You possibly remember some of
the violence in strikes in this area-including the union goons who trampled a
nonstriker to death in a tavein near Kohler, paint bombs, dynamiting of cars,
etc.-and hard feelings during the Quic-frez strike and eventual closing of the
Quic-frez plant. They-are really schooled in all phases of bargaining!
* * *
Possibly you read in THE COMMONWEALTH REPORTER last winter
about the "Bankrupt Auction" that took place February 26, 1965 to sell the
assets of the BANKRUPT Knott Sheet Metal Company. This company had a
union labor contract with this same Sheet Metal Union. This was the company
that followed us in the sheet metal business on Third Street after this same
union went out on strike against the Jacob Brenner Company following pre-
viously made uneconomic demands on the Company that could not be met.
Knowing this background of trouble and hard feelings between this same Steel
Metal Union and your Company and what these union organizers apparently
think of Brenner management and how we feel about them, do you really think
we could live together in the long run without serious "trouble." And you know
how these "troubles" end-strikes and the disastrous consequences for all con-
cerned except the union big shots who go back to Chicago or Madison and
stay on the Union Pay Roll with their fat salaries built up from your dues
money.
July 23, omitting first and last paragraph;
The Union professionals would have you believe that all you have to do to
be on easy street is to vote for this Union. It would be nice if it were that easy,
but even if the Company decided to go along, our customers would have
something to say about what wages and benefits you as an employee of this
Company will receive. It is the customer who makes our jobs possible. If the
price of our tanks is too high, or we cannot deliver because of a strike, there
are competitors right here in Wisconsin that would be happy to take over our
work.
What the Union does not tell you is that as a result of unions pricing their
members' work too high, employers are constantly looking for ways to elim-
inate jobs. When the price of something you want or need is too high, you go
without it or find a substitute. Unless a company can make a profit, there is
no point in being in business.
Another thing the Union does not mention is the money you would lose if
you were called out on strike to enforce excessive demands. Strikes are rarely
considered bargain basement affairs, but you have seen that strikes and union
go hand in hand together.
The fact remains that there is no such thing as something for nothing. Our
customers, who provide us with jobs, buy from us because we give them a
quality product at a competitive price. If our product is poor or our price is too
high, there are others who will gladly take over the work we are now doing.
The Union cannot control our customers.
So look over these bargain basement claims carefully. Remember, a fancy
union contract is worth nothing unless you have a job to go with it. A union
cannot force this Company to employ you if there is no work to do.
Many employees mistakenly assume that if they vote a union in, they are
bound to get a wage increase and other improvements. Nothing could be fur-
ther from the truth. Under the law, the employer is not obligated to continue
in effect its existing benefits if this Union becomes bargaining agent. What the
wages and conditions will be if the Union gets in depends upon the results of
the negotiations between the Union and the employer. The law does not require
the employer to agree to increase wages or improve benefits. The Union can
obtain in negotiations only what an employer is willing to agree to give.
JACOB BRENNER COMPANY, INC. 135
July 27, page 1, paragraph 3, in part;
We sincerely believe that a union will result in an atmosphere which most
of us would prefer to avoid. As you well know, a union often brings with it
an atmosphere of discord, distrust, and dissension... .
July 27, page 2, paragraph 2, in part;
The Union has tried to get you to believe that giving the Union the power
it seeks is the best way of assuring job security. A fancy union contract does
not guarantee job security; in fact, it often results in excessive costs and
inefficiency, which causes losses of both customers and jobs. . . The employ-
ees and management at Brenner have not been concerned with dividing up a
decreasing amount of work, but have cooperated to create a situation which
has resulted in greater job opportunities each year. How many plants have
gone bankrupt or moved south because of excessive union demands? . .
Some of you well remember that this same Union forced this Company out of
the sheet metal business in 1962.
July 27, page 3, last paragraph, in part;
So, turning your job affairs over to Union professionals is not all pie in
the sky. You have to give up something too, and what you have to give up
may be much more important than the dues the Union will want you to
pay....
The July 29 letter, individually addressed, contains as an attachment four pic-
tures of individuals, one picture of a automobile, and the following, in toto:
The Union says they will have trained Union Negotiators schooled in all
phases of bargaining . Are these photos, taken at the main gate, your idea of
"trained negotiators"?
These are outsiders who have been soliciting your vote. Note brand new
1965 Oldsmobile with out-of-state Illinois license plate.
In 1964 and this year up to July 1st you received $329.31 for overtime
work alone. Do you think these "trained negotiators" are interested in keeping
your overtime, or are they more interested in eliminating overtime so they
can have more dues paying members?
July 30, page 2, paragraph 2;
You may be told that this Union will force the Company to grant higher
wages and greater benefits. As to that, we assure you that we will continue to
do those things which, in our judgment, good business practice requires. Even
a strike will not force this management to abandon is responsibility for the
success of this business . If this business does not succeed and grow, none of
us will have jobs.
July 30, page 3, paragraph 1;
However, just because such demands are made does not mean that they will
be granted. If this Union should get in, you may be called out on strike to
force you and the other employees to pay Union dues. Strikes are rarely a
pleasant or profitable experience. But, if you read the newspapers, you know
that they are part and parcel of a union setup. Ask the employees who used
to work at the 3rd Street Sheet Metal Plant about strikes. Rueping Leather
and Quic-Frez are also examples of what can happen when employees hand
control over their jobs to Union professionals. We have a number of employ-
ees working here at the present time, mainly due to the Kohler Strike.
Contentions of the Parties and Concluding Findings
a. Alleged threats of loss of jobs and plant shutdown
During the hearing, Respondent offered, as exhibits, union campaign distributions
dated February 15, February 22, May 6, July 14, July 29, and August 2, 1965, as
background, to explain the statements in Respondent's letters, on which the com-
plaint is predicated. These exhibits, in the rejected exhibit file, are now received.
The Board has stated, as General Counsel contends, that where the employer's
comments clearly contain improper threats and promises, the union's statements are
irrelevant to the issue before the Board. However, the Board also stated, there are
cases, of course, where the statements of a party cannot be properly evaluated
except in the context of statements of the other party or parties.6
9 Oak Manufacturing Company, 141 NLRB 1323, 1324, and footnote 6 (citing Arch
Beverage Corporation, 140 NLRB 1385) ; Decorated Products, Inc, 140 NLRB 1383.
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is well settled that the test for interference, restraint, and coercion, turns not
on motive for conduct, but on its reasonable effect on the employees. "The test is
whether the employer engaged in conduct which, it may reasonably be said, tends
to interfere with the free exercise of the employee rights under the Act." Russell-
Newman Mfg. Co., Inc., 153 NLRB 1312, 1315.7
General Counsel asserts that Respondent's letter, to its employees, of Feb-
ruary 16, 1965, evidences strong hostility and animus toward the Union. General
Counsel calls attention, in support of his assertion, to the following which appears
on page 2, at paragraph 7:
The reason all the Brenners are all so violently opposed-make no mistake,
we are that opposed-to the Union is because this is the same Union that ran
us out of business at our Third Street plant. They called a strike that eventually
resulted in our locking the doors and all the men lost their jobs. The building
is still partially empty and has had a "For Sale" sign in the front windows for
years. We want to stay in this business and work and live here in Fond du Lac
and not have to lock the doors again because of union troubles and strikes. We
hope you feel this way too.
Respondent asserts that the material complained of constituted predictions, as
distinguished from threats, and were privileged statements. Respondent asserts that
there is no threat, direct or implied, to close the plant, that while the employer here
made reference to the possibility of strikes, restrictive union practices and employee
dissension which "could" affect Respondent 's ability to serve its customers and, thus,
reduce the number of orders, that was no prediction that the plant would close or
that there would be fewer jobs "merely because the employees voted for the union."
Respondent contends that the portions of the July 21 letter, page 2, paragraphs 2
and 4, the July 27 letter, page 2, paragraph 2, and the July 30 letter, page 2, para-
graph 2 and page 3, paragraph 1, supra, when viewed together reveal that Respond-
ent refers to undesirable results which have followed union organization in other
instances . Respondent characterizes as "the fatal stroke" to General Counsel's con-
tentions, respecting these items and the allegation that they contain a threat of
plant shutdown, the fact that the items clearly and plainly do not suggest that such
results will be brought about through the exercise of Respondent's influence and/or
economic power if the Union won the election.
General Counsel correctly urges that the test the Board uses in weighing the
employer's preelection statements centers on their "inevitable effect." The Board has
stated that where letters implied that strikes and the loss of customers were inevitable
if the employees selected the Union, the letters tended to restrain and coerce the
employees in the exercise of their statutory rights Bernardin, Inc., 153 NLRB 939.8
In the Wilson case, supra, the Board found that Respondent created the impres-
sion of the inevitability of a strike if the employees selected the union as their
bargaining agent, and warned of the dire consequences of such a strike as to job
tenure. Wilson's warning to the employees that selection of the union would result
in "cold" and "hard" bargaining, coupled with references to an economic strike
which could cause a shutdown of the plant, were found to have effectively aroused
the employees' fear of losing their jobs if they unionized, and thus to have con-
stituted more than a prediction of future events.
In the Trent Tube case,9 the Board reaffirmed that it will not restrict the right of
any party to inform employees of "the advantages and disadvantages of unions and
of joining them" as long as such information is imparted to employees in a non-
coercive manner. (Citations omitted.)
In the Trent Tube case, supra, the Board found the content of employer's letters
to be that: they emphasized the employer's opposition to unionization; stressed the
benefits the employees were enjoying without unionization, including steady employ-
ment and job stability, without the possibility of strikes which occurred in orga-
nized plants; present benefits would not necessarily continue under a union contract
and that "bargaining starts from scratch"; a vote for the union is not necessarily a
7 Citing, Exchange Parts Company, 131 NLRB 806, 812. affil 375 U S. 405
a See also • S N C Manufacturing Co., Inc, 147 NLRB 809, 810, and footnote 1 ; Herman
Wilson Lumber Company, 149 NLRB 673, 678 ; Brownwood Manufacturing Company. 149
NLRB 921, 923-924; Stuttgart Shoe Corporation, 149 NLRB 663, 668; Surprenant Mfg
Co., 144 NLRB 507. and footnote 2
8Trent Tube Company, Subsidiary of Crucible Steel Company of America, 147 NLRB
538, 541.
JACOB BRENNER COMPANY, INC. 137
guarantee that there would be wage increases and other improvements, but that the
level of benefits in effect and in the future would be subject to negotiations; that
the employer could pay no more than its competitive position warranted; that the
union's weapon to force unwarranted concessions would be a strike, with resulting
hardship and loss of wages. Three days before the election, by letter, the employer
reemphasized the stability of working conditions and the benefits the employees had
obtained without unionization, the employees were urged to discount "unfounded
rumors" and "off-hand remarks" being made by the petitioner. Finding the petitioner
had an opportunity to, and did, respond to the letters and that the pertinent, enu-
merated, issues were brought to the attention of the employees, the Board found
the letters could clearly be evaluated by the employees as partisan electioneering.
The Board overruled petitioner's objections to conduct affecting the results of the
election.
Herein, Respondent's last letter was dispatched on Friday, July 30, 1965, the
Union's last response was on August 2, 1965, and the election was the following day.
It is patent that the Union had the opportunity to, and did, answer Respondent's
contentions, and the employees had an opportunity to evaluate the partisan elec-
tioneering. Respondent called attention to previously having gone out of business, by
reason of asserted uneconomic demands of the same Union. The Union responded
to these assertions. There is no claim of a misrepresentation of facts in Respondent's
letters.
Unlike the Wilson case, supra, in which the Board found the creation of an
impression of the inevitability of a strike, the Respondent advised the employees, on
July 30,
Even a strike will not force this management to abandon its responsi-
bility for the success of this business. If this business does not succeed and
grow, none of us will have jobs.
However, just because such demands are made does not mean that they will
be granted. If this Union should get in, you may be called out on -strike to
force you and other employees to pay Union dues. Strikes are rarely a pleasant
or profitable experience. But, if you read the newspapers, you know that they
are part and parcel of a union setup. . . .
It would appear, and I find, when Respondent's letters are read in context, they
called attention to Respondent having previously gone out of business, by reason of
the asserted uneconomic demands of the same Union, and the possibility that a
repetition of this condition could lead to a strike. This falls far short of the creation
of an impression that the inevitable effect of unionization would be a strike, or plant
closure. In the Trent case, supra, the Board found similar statements insufficient to
warrant setting aside an election.
In the Lester case ,10 while finding other conduct violative of the Act, the Board
found a.speech , on September 10, 1962, containing language similar to that used
by Respondent herein, was not violative of Section 8(a)(1).
Unlike the S.N.C. case, supra, and other cases cited in the same footnote, there
is no evidence herein of other conduct by this Respondent which was violative of
the Act.
Accordingly , finding no evidence to support the allegations of paragraph 5(a) of
the complaint. that the letters contained threats, or implied threats , of loss of jobs
or plant shutdown , I will recommend dismissal of those allegations.ii
b. Alleged threats of loss of existing benefits
General Counsel calls attention to the last paragraph of the July 23 letter, set
forth supra, in which Respondent stated: "Under the law, the employer is not obli-
gated to continue in effect its existing benefits if this union becomes bargaining
10 Lester Brothers . Incorporated, 142 NLRB 992 , and Appendix B.
u General Counsel asserts. in his brief, that the inclusion of pictures, of union repre-
sentatives distributing handbills at Respondent's gate , in Respondent 's letter of Tuly 29.
constituted a threat of surveillance interfering with the employees 'Section 7 rights No
allegation relative to surveillance appears in the complaint, nor can it be said this matter
was litigated at the bearing.
General Counsel asserts, In his brief, that Respondent's letters contain express and
implied promises of benefit. No allegation relative to promises of benefit appear in the
complaint, nor can It be said this matter was litigated at the hearing
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agent." This is followed by a statement that wages and conditions will depend on
the results of negotiations, and that the law does not require the employer to agree
to increased wages or improved benefits.
On July 29, in asserted response, the Union advised the employees:
The Company is compelled to retain all existing benefits, and if the Union is
granted bargaining rights, the Company is compelled to bargain in good faith
on Union Proposals, or be guilty of Unfair Labor Practices.
General Counsel asserts the inevitable effect of this statement was to inform the
employees that Respondent would so conduct negotiations that the employees
would derive no benefit from union representation, thereby indicating the futility
of its selection.
Respondent asserts that the statement is restricted to a statement of the Respond-
ent's concept of its legal obligations if the employees should select unionization,
and as an answer to the Union's preelection campaign promises to the employees.
In Trent Tube, supra, the Board found a statement that present benefits would not
necessarily continue under a union contract, and that "bargaining starts from
scratch," insufficient to warrant setting aside an election. As the Board stated
therein, these statements could clearly be evaluated by the employees as partisan
electioneering.
Certainly if such statements are insufficient to warrant setting aside an election,
a fortiori, they are insufficient to support a finding that they constituted a threat,
and as such were coercive.
Accordingly , for the reasons stated , I will recommend dismissal of the allega-
tions of paragraph 5(b) of the complaint.12
c. Identification of unionism with violence to employees and their property
General Counsel asserts that portions of Respondent 's letters equate the Union
with strikes and imply that if the employees vote for the Union , they will be forced
to strike to achieve their bargaining demands. In support , attention is directed to:
the last paragraph of Respondent 's February 16 letter ; 13 July 21, page 2, para-
graphs 2 and 5; July 23, 3d quoted paragraph; and July 30, page 3, paragraph 1,
set forth supra.
General Counsel contends that while the Respondent did not specifically state
that it would not bargain with the Union , if it won the election , the overriding
theme of its letters created the firm impression that Respondent would so conduct
its negotiations that a strike would inevitably result . General Counsel urges Re-
spondent equated unionization with violence, plant shutdown, and inevitable trou-
ble," "discord ," and "dissension ." General Counsel places emphasis on the portion
of the July 21 letter which states:
Knowing this background of trouble and hard feelings between this same
Sheet Metal Union and your Company and what these union organizers ap-
parently think of Brenner management and how we feel about them, do you
really think we could live together in the long run without serious "trouble."
And you know how these troubles end-strikes and the disastrous consequences
for all concerned ... .
Respondent asserts this, and other portions of this and other letters, were a
response to union propaganda, particularly those of February 22 and May 6,
including in the latter:
The Union has many years of experience in dealing with "Hot Tempered
Employers" and we can and will do it here at Brenner's for you.
Respondent urges the reference to "troubles" is not an assertion of fact drawn
from thin air, but is a remark licensed by the expressions and characterizations
"General Counsel asserts in his brief that Respondent's letters threaten the proscrip-
tion of an employee benefit, "the right to individually present grievances if they vote for
the Union " This right concededly arises by reason of the provisions of Section 9 (a) of
the Act This matter was not alleged in the complaint, nor litigated at the hearing. How-
ever, cf.: Skirvin Hotel, 142 NLRB 761, 763.
13 In pertinent part : "It would seem as though we have had enough of unions and their
aftermath of strikes in this area after the experiences at our Third Street Shop, Quic-frez,
Kohler and Reupings."
JACOB BRENNER COMPANY, INC. 139
uttered by the Union. Respondent also urges that Respondent's remarks did not
suggest that the stated results would be brought about by the exercise of Respond-
ent's power if the Union won the election.
General Counsel asserts the Board has repeatedly held similar statements vio-
lative of Section 8(a)(1).14 In the Boot-Ster case, a Joy Silk violation, coupled
with 19 instances of threats, promises, and interrogation, was found. Therein, at
page 939, as in the instant case, it was asserted that respondent made constant
references in speeches to strikes, with no reference to the possibility of peaceful
collective bargaining, and offered as much in benefits without a union as with one,
thus showing the futility of choosing a union. The speeches were found violative
only because they were considered in context with other statements found to con-
stitute threats. In the Ideal Baking case, supra, the Board found that while respond-
ent did not state specifically that it would not bargain with the union should
the union win the election, an analysis of respondent's entire antiunion campaign
reveals an implicit warning that in dealing with the union the respondent would
so conduct the negotiations that a strike would result. Thus, there was but one
theme: the inevitability of a strike if the employees selected the union as their
bargaining representative, and the dire consequencies of such a strike, namely, ensu-
ing violence and the loss of jobs by strikers.
In the Texas Boot case 15 the Board found respondent did no more than tell
employees that if the union made "unreasonable demands," it would be necessary
for the union to strike to enforce these demands, in which case the respondent
could exercise its lawful right permanently to replace the strikers and then the
strikers would have lost their jobs The Board found these statements did not
exceed the bounds of free speech.
Finding that Respondent's letters were not couched in terms of the inevitability
of a strike or resulting violence, but in the terms of what might occur if the Union
was selected and made unreasonable demands, conduct Respondent contends the
Union had previously engaged in , and that the Union, in fact , responded to these
assertions , I find that Respondent did not exceed the bounds of free speech.
Accordingly , for the reasons stated , I will recommend dismissal of the allega-
tions of paragraph 5(c) of the complaint.
d. Suggestion to employees that they select the Jacob Brenner Shop
Committee as their bargaining representative
General Counsel urges that Respondent's letter of February 16, in which it
called attention to pending negotiations with a shop committee and advised the
shop committee had obtained improvements in wages and other conditions of
employment, was coupled with a warning that Respondent's future would be
jeopardized, if the employees abandoned support of the shop committee in favor
of the Union. This letter is patently beyond the 10(b) period, and can be con-
sidered only to explain events within the period.
General Counsel calls attention to the portions of Respondent's letter of
July 27, which states:
If a majority of you vote for this Union, the existing easy relation-
ship between you, the Shop Committee, and your Company can not longer
exist ... . We sincerely believe that a union will result in an atmosphere
which most of us would prefer to avoid. As you well know, a union often
brings with it an atmosphere of discord, distrust, and dissension ... .
General Counsel did not specify the first portion of the quoted material when
requested to enumerate the objectionable material, at the hearing. Respondent cor-
rectly notes, in its brief, General Counsel's failure to specify what portions of
the exhibits either directly or indirectly suggested to employees that they select
the shop committee.
The shop committe did not appear on the ballot as an alternative choice.
Accordingly, Respondent's urgings can be considered only as suggesting a "no"
vote , as distinguished from those cases in which an employer indicates a preference
between two unions appearing on a ballot. While the amended charges of Octo-
14 Citing Boot-Ster Manufacturing Company, Inc, 149 NLRB 933; Herman Wilson
Lumber Company, 149 NLRB 673, Stuttgart Shoe Corporation, 149 NLRB 663, Ideal
Baking Company of Tennessee, Inc., 143 NLRB 546.
16 Texas Boot Manufacturing Company, Inc, 143 NLRB 264, 265.
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her 6 and 13 , 1965 , alleged assistance to and interference in the formation of the
shop committee , as violative of Section 8(a)(2), no such allegation appears in
the complaint.
General Counsel cites the S.N.C. case , supra, and Northwest Engineering Com-
pany, 148 NLRB 1136 , in support of his contention that Respondent 's conduct
constituted interference , restraint , and coercion . I find these cases inapposite.16
I find the statement complained of did not contain a misrepresentation of fact,
threat , or promise of benefit , but was a statement of opinion , and as such, was
protected by the provisions of Section 8(c) of the Act . Accordingly , I will recom-
mend dismissal of the allegations of paragraph 5(d) of the complaint.
Upon the foregoing findings of fact , and upon the entire record in this case, I
make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Sec-
tion 2 (6) and (7) of the Act.
2. Local 565 , Sheet Metal - Workers International Association , AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
3. Respondent has not engaged in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, I recom-
mend the complaint be dismissed in its entirety.
18In S N.C. the Board found Respondent urged the formation of a shop committee, as
an alternative to a union , and other conduct, to constitute violations of Section 8(a)(2)
and (1 ) of the Act . In Northwest Engineering the Board found respondent had meetings
with an ad hoc, self-appointed insurance committee , resulting in a new insurance program.
The violation of Section 8(a) (1) was based on a withholding of announcement of the new
plan for over a month , until a time when it would have the greatest impact on the election
The Board also found Respondent selected'ad hoc groups of employee representatives to
treat with alleged grievances , resulting in changed working conditions , as part of a unified
plan of granting or holding out the promise of benefits , in order to influence the employees
in the exercise of their rights guaranteed in Section 7 of the Act.
Supreme, Victory and Deluxe Cab Companies and Local 5, Trans-
portation Services and Allied Workers of Seafarers Interna-
tional Union , AFL-CIO affiliated with Seafarers International
Union of North America , Atlantic Gulf , Lakes and Inland
Waters District , AFL-CIO, Petitioner. Case l4-RC-530.9.
July 11, 1966
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, as amended, a hearing was held before Hearing
Officer Harold D. Kessler. The Hearing Officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Thereafter, the Petitioner filed a brief.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Jenkins and Zagoria].
160 NLRB No. 12.