Leggett and Platt, Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1977

230 N.L.R.B. 463 (N.L.R.B. 1977)

LEGGElT AND PLATT, INC.
Leggett and Platt, Inc. and General Drivers, Sales
Drivers, Warehousemen and Helpers Local No.
245, affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Cases 17-CA-7180 and 17-
RC-7994
June 24, 1977
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On February 24, 1977, Administrative Law Judge
Abraham Frank issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
While we agree with the Administrative Law
Judge's finding that many of the statements con-
tained in Respondent's letters, and in Tate's preelec-
tion speech exceeded the bounds of permissible
campaign propaganda and violated Section 8(a)(1) of
the Act, we disagree with two of his findings. Thus,
we disagree with the Administrative Law Judge's
finding that Respondent violated Section 8(aXl) and
engaged in objectionable preelection conduct by
asking its employees to campaign against the Union,
by soliciting them to vote "No," and by requesting
that they solicit other employees to vote "No." Since
these requests and solicitations were generally made
to all employees through the indirect and rather
impersonal medium of a form letter, rather than
directly to selected employees by their supervisors,
we find that they were no more than customary
campaign statements and did not reasonably tend to
coerce the employees or interfere with their free
choice in the election. We also disagree with the
Administrative Law Judge's finding that Respon-
dent, by its June 11 letter, unlawfully implied that it
would close the plant if the employees selected the
Union to represent them. As more fully set forth in
the Administrative Law Judge's Decision, the June
11 letter merely decried the fighting between employ-
ees caused by the union campaign and noted that as
230 NLRB No. 68
a result of such fighting production had declined. It
warned that if production continued in that trend,
while costs remained up, the plant could close for
that reason. It also warned that "fight we will, if the
majority vote ... Teamsters Union in here and they
try to dictate wages, hours and working conditions."
These statements, in our view, fall short of an implied
threat to close the plant if the employees select the
Union to represent them. At most, the letter
indicated that Respondent could close the plant if
production declined while costs remained high and
that Respondent intended to "fight" if the Union
tried "to dictate" to Respondent rather than negoti-
ate with it the wages, hours, and working conditions
the employees would receive.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified herein, and hereby orders that the Respon-
dent, Leggett and Platt, Inc., Springfield, Missouri,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order,
as modified below:
1. Delete paragraphs l(b) and (h) and reletter the
subsequent paragraphs accordingly.
2. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the election in Case
17-RC-7994 be, and it hereby is, set aside, and that a
second election be conducted by the Regional
Director for Region 17 pursuant to the following:
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
CHAIRMAN FANNING, concurring and dissenting:
I would affirm the Administrative Law Judge's
Decision in its entirety.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten to refuse to bargain in
good faith and to take legal steps through an
463
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attorney to reduce wages and benefits if a union
wins a Board election.
WE WILL NOT threaten to refuse to sign a
contract with a union under present conditions.
WE WILL NOT promise employees that if they
vote against a union in a Board election we will
make beneficial changes in their conditions of
employment within 1 year.
WE WILL NOT promise employees a better
chance of obtaining benefits without the presence
of a union in the plant.
WE WILL NOT promise employees a raise if they
vote "NO" in a Board election.
WE WILL NOT interrogate employees as to how
they intend to vote in a Board election by asking
them to report to management that they intend to
vote "NO."
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed in Section
7 of the Act.
All our employees are free to become or remain
members of General Drivers, Sales Drivers, Ware-
housemen and Helpers, Local No. 245, affiliated with
the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or
any other labor organization.
LEGGETT AND PLATT,
INC.
DECISION
ABRAHAM FRANK, Administrative Law Judge: The
charge in this consolidated case was filed on June 23,
1976,1 and the complaint, alleging violations of Section
8(a)(1) of the Act, issued on August 9. The hearing was
held on October 14 at Springfield, Missouri. The General
Counsel and the Respondent have filed briefs, which have
been considered.
The Respondent, a Missouri corporation, is engaged in
the manufacture of wood products at its facility located at
4654 W. Maple, Springfield, Missouri. In the course and
conduct of its business the Respondent annually purchases
goods and services valued in excess of $50,000 directly
from sources located outside the State of Missouri and
annually sells goods and services valued in excess of
$50,000 directly to customers outside the State. The
Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
The Charging Party, hereinafter called the Union, is a
labor organization within the meaning of the Act.
The complaint alleges that in letters to its employees,
dated May 10 and June 11, respectively, prior to the
election of June 17, the Respondent interrogated its
employees concerning their union sympathies, threatened
employees with loss of benefits if the Union won the
election, and promised additional benefits if the employees
rejected the Union. The same conduct formed the basis of
the Union's Objection to the Conduct of the Election. The
two cases were consolidated by the Regional Director for
purpose of hearing on August 11.
The Union's petition was filed on April 7. On May 10
Respondent sent the first of two letters to its employees in
the proposed bargaining unit on the letterhead of Leggett
and Platt and over the signature of Plant Manager Ivan
Holdren. The letters, which follow, had been discussed
with Respondent's attorney, John Tate, and certain
changes were made in accordance with his legal advice:
May 10, 1976
FELLOW EMPLOYEES:
While I am Manager of the Plant I am willing to
listen and give real consideration to any gripe and
complaint of any employee in the company. Really it is
in this way I learn what we need to do to improve. But I
will tell you something else. If anyone or any union
tries to tell me what I have got to do, then they can go
jump! If that happens I will turn all union dealings over
to our attorney to negotiate. We will see then who can
do the best job.
I will tell the government, the labor union, you or
anybody else that I will obey the law but no one is
going to force me to agree to anything I figure is not in
the best interest of this company. I have been here
awhile. I remember the cases of McBee with its long
union troubles and finally shutting down and its
workers losing all of their seniority and, in fact, their
jobs and had to start all over again, just like they did at
the Ramey Supermarket grocery chain.
It is unfortunate in those cases that it was not the
union leaders who suffered. It was the poor people who
believed the promises of the union leaders. Obviously, I
cannot perdict what would happen in negotiations at
this company, but I do think all employees need to be
reminded that in spite of what the Teamsters say and in
spite of what they did somewhere else in some other
town, I would not negotiate. Our lawyer would do that
and in negotiations he has the legal power to take away
wages or reduce pay, holidays and benefits. No one can
predict what the results would be or, indeed, if a
contract would be signed at all. Of course, you nor
anyone else has to stay here so when the Teamsters
strike, if they ever did, you could just quit, but that
seems to be a poor choice for most of us who need to
work. Most of us know that I am new in this job. I want
and I'm asking for a year to show what I can do. I have
a number of ideas for changes but you know that with
the union elections scheduled for June 17th I cannot
tell you what those plans are or make any changes or
promises. They say that would be illegal.
I do want your support. I am asking you to vote
"NO"- to tell me you are going to vote "NO" - to tell
your friends and coworkers you are going to vote
"NO." It is up to you, but I do hope you will do what
I All dates are in 1976 unless otherwise indicated.
464
LEGGElT AND PLATT, INC.
you can to get everyone to vote "NO" to the Teamsters
so we can all join hands (not fight) and work together
to make the changes we feel we can and should make.
I am seeking your outward and affirmative support
from now on for at least a year.
Thanks - and we will continue to stay in touch with
you."
Sincerely,
LEGGETI AND PLATE, INC.
Ivan Holdren
Manager
You also have my word that no one will be fired
because he signed a union card or worked for the
union. I want to prove to those people also that joining
a union was unnecessary - again thanks.
On June 11 Respondent sent its second letter to the
employees in the proposed bargaining unit:
June 11, 1976
FELLOW WORKERS AND FAMILIES:
I know I am not the smartest guy in the world but it
just doesn't make sense to have us fighting each other
even in a campaign. You can see what has happened to
our production. It has been on a steady decline the past
few weeks and our costs have remained high. You and I
both know that if production gets too low, the plant is
closed for that reason.
A good part of our working hours are spent together
and it is not right that we have little groups fighting
each other in the plant, while outsiders stand back to
watch the fun.
But fight we will, if the majority vote, what I believe
is recognized as the crime infested Teamster's Union in
here and they try to dictate wages, hours and working
conditions. NO WAY! Everyone can strike but no one
can force me or our negotiator to act contrary to what
we consider lawfully good business judgment. The
Union tried that with Royal McBee and Ramey's
Market, didn't they?
Some of you signed cards before you understood all
the facts. I can understand that. That will not be held
against anyone. No one has to be afraid of their job
because they signed a card. The NLRB protects you
against that and they are as near as your telephone to
Kansas City, Missouri.
Since Jim has been promoted into Sales and I have
taken over this job, I could not legally make any
changes at all in wages, hours or working conditions,
but when the majority of you vote NO UNION on
June 17th, I can go to bat for the changes I would like
to make.
A few of you have indicated you do not have much
interest either way. I believe all of you should, and if
you want to stop the Teamsters from being able to call
the whole plant out on strike, you had better do your
best to see that the people with whom you work, join
you in voting NO UNION.
If things have not changed, to suit you in a year, you
can vote in the Woodworker's Union, the Teamsters
Union or whoever you want, but I do not think I am
being unreasonable for myself or you to suggest that
starting right now, you do all you can to get everybody
to vote NO UNION next Thursday.
Sincerely,
LEGGETT AND PLATT, INC.
Ivan Holdren
Plant Manager
During the course of the hearing additional evidence was
adduced with respect to the Respondent's conduct immedi-
ately prior to the election. While the complaint does not
allege such conduct to be unlawful, it was fully litigated
and is closely related to the allegations of the complaint. I
have therefore considered such evidence on its merits.
On June 16 about 9 or 9:30 a.m. Respondent held a
meeting to offer its views on the election scheduled for 11 I
or 11:30 the next morning. Employees were required to
attend and were paid at an hourly rate for their time. The
meeting lasted about one-half hour. Holdren, James
Lindsay, the personnel manager, and Tate were present.
Tate held Respondent's letters of May 10 and June 11 up in
his hand and asked if everyone had received copies. Tate
spoke for the Respondent as an expert in labor relations.
He made it clear that he was highly skilled in negotiations
of this type and that he would negotiate for the Respon-
dent in the event the Teamsters won the election. He
reminded them that in negotiations the parties did not start
from the status quo. The employees would not necessarily
keep their current salaries; their salaries could go lower or
higher. In answer to a question as to how long negotiations
lasted, he said that he had been in one negotiation for 10
years, but usually they didn't take that long. Without
stating that he would close the Respondent's plant in
Springfield, Tate told the employees that he was the
management negotiator for two plants that had closed after
the advent of a union. One plant was a steel mill in
Missouri and the other a Leggett and Platt plant in
Hominy, Oklahoma. In those cases Tate had counseled
management not to lay the employees off because business
was slow, but to wait until the Union called a strike, which
it did, and then the plant closed. (At the time of the hearing
the Leggett and Platt plant had since reopened and was
functioning.) Tate told the employees that if they wanted
benefits the better approach was to ask Holdren or
someone in authority rather than having the Teamsters in
the plant. Graphically illustrating how the Respondent
viewed bargaining with the Teamsters, Tate grabbed an
465
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee and said, "Give me a cup of sugar, you son-of-a-
bitch."2 Tate told the employees, in effect, that he would
not sign a contract with the Teamsters Union under
present conditions. 3
At or about 5:30 p.m. on June 16 Lindsay approached
employee Roger Lee Gully at the spindle sander near the
office in the plant and told him that if the election was
voted no that the employees would get a raise; that it had
been the practice in the past that they would get a raise in
September, but because of the election they could not give
it to the employees until the Union was voted down.
Lindsay did not recall having such a conversation, but
agreed that he could have talked to Gully on that
afternoon. I credit Gully.
About an hour before the election commenced on June
17 Lindsay and employee Higdon removed Respondent's
anti-Teamsters campaign material from the bulletin board.
I find no violation of the Act with respect to this conduct.
Conclusions
The issue here is the familiar one of an initial attempt by
a union to organize an unrepresented plant. The employer,
of course, under Section 8(c) of the Act and the first
amendment has a right to speak his mind on this subject,
but he must refrain from impinging on the right of his
employees to join or assist a union without coercion from
their employer. In striking a balance between these
sometimes conflicting rights the Board and the courts have
established recognizable guidelines for employer conduct
in the context of a nascent union organizational drive. An
employer may decide to go out of business entirely even if
motivated by union considerations, 4 but he cannot tell his
employees that he will do so unless, improbably, it is a
proven statement of fact.5 He may make a prediction of
economic consequences due to unionization, but if he does
he must exercise extraordinary care to avoid the implica-
tion that he himself will make the prediction come true. "If
there is any implication that an employer may or may not
take action solely on his own initiative for reasons
unrelated to economic necessities and known only to him,
the statement is no longer a reasonable prediction based on
available facts but a threat of retaliation based on
misrepresentation and coercion, and as such without the
protection of the First Amendment." [Emphasis supplied.]6
It is the responsibility of the Board to examine the specific
statements alleged to be unlawful and the context in which
the statements were made. "The question is not only what
the employer intended to imply, but also what the
employees could reasonably have inferred."7 Any balanc-
ing of rights must take into consideration the fact that
employees are economically dependent on their employer
2 Holdren testified he wasn't "sure" that the incident did not occur at a
prior meeting. However, I credit the testimony of employees Luna and
Gully that the incident occurred at the meeting of June 16.
3 Holdren testified that Tate said he would negotiate in good faith for
anybody but that nobody was going to force him to make or sign contracts
that were not economically sound for the Company. Employees Luna and
Gully both testified that Tate had said he would not sign a contract. Luna
subsequently modified his testimony as indicated above. In view of my
findings below with respect to the letters of May 10 and June 11, which were
written with the assistance of Tate, I find that Tate created the impression,
which the employees received, that Respondent would not sign a contract
and would be alert to hear intended implications in an
employer's statement that might be lost to others.8
"Employees, whose jobs are at stake, are particularly
sensitive to rumors of plant closure and any hint by their
employer that the plant might close as a result of
unionization is viewed not as an honest prediction but as a
coercive threat." [Emphasis supplied.]
From the above, I conclude that the burden is on an
employer to see to it that his employees cannot reasonably
infer from his statements and conduct during an organiza-
tional campaign a threat of reprisal or promise of benefit.
In such circumstances the employer acts at his peril. He
cannot walk between the raindrops. He cannot proclaim
his right to free speech while garnering at the same time the
benefit of his employees' induced concern that disaster
would befall them and their families if they voted for the
Union.
In the instant case the employees could reasonably infer
from the letters of May 10 and June 11 and the Tate speech
of June 16 that it would be futile to vote for the Teamsters
Union, but that if they voted "No Union" Respondent
would make beneficial changes in wages, hours, and
working conditions.
I find that the Respondent violated Section 8(a)(l) of the
Act by the following conduct: (I) Telling employees in the
May 10 letter that Holdren would listen to an individual
employee, but that a union could "go jump" if it tried to
tell him what to do; that he would not negotiate except
through an attorney who had "the legalpower to take away
wages or reduce pay, holidays and benefits," with the
implication that Respondent would not bargain in good
faith, but would take legal steps through an attorney to
reduce employees' wages and benefits if the Teamsters won
the election. (2) Telling employees in the May 10 letter that
Holdren had a number of ideas for changes and asking for
a year "to show what I can do" to make changes that
should be made and telling the employees in the June 11
letter that Holdren could go to bat for changes when the
majority voted "No Union" and that if "things have not
changed to suit you" the employees could vote for a union
in a year, with the implication that Respondent would
make beneficial changes within a year if the employees
voted against the Teamsters. (3) Asking employees in the
May 10 letter to try to get everyone to vote "No" to the
Teamsters, and telling employees in the June II letter to do
their best to see to it that the people with whom they
worked joined them in voting "No Union" and suggesting
that they do all they could to get everybody to vote "No
and Luna's modified testimony is a closer approximation of Tate's actual
words.
4 Textile Workers Union v. Darlington Manufacturing Co., 380 U.S. 263,
273-274 (1965).
s N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618-619 (1969).
6 Id at 618.
7 N.LRB. v. Kaiser Agricultural Chemicals, 473 F.2d 374, 381 (C.A. 5,
1973), and cases cited therein.
8 Gissel Packing Co., supra, 617.
9 Id. at 619-620.
466
LEGGEIT AND PLATr, INC.
Union," a solicitation of employees to solicit other
employees to vote against the Union.' 0 (4) Asking each
employee in the May 10 letter to tell Holdren that the
employee intended to vote "No," with the implication that
each employee should report to Holdren that he intended
to vote "No." (5) Telling employees in the June 11 letter
that production was low due to fighting; that the plant
could close for that reason; nevertheless "fight we will" if
the majority voted for the Teamsters and the latter tried to
"dictate" terms of employment, with the implication that
the plant would close if the employees voted for the
Teamsters. (6) Telling employees in the June 16 speech that
if they wanted benefits the better approach was to go to
Holdren or someone in authority rather than have the
Teamsters in the plant and illustrating Respondent's view
of bargaining with the Teamsters by seizing an employee
and saying, "Give me a cup of sugar, you son-of-a-bitch,"
with the implication that employees had a better chance of
obtaining benefits without the presence of the Teamsters in
the plant. (7) Telling the employees in the June 16 speech,
in effect, that Respondent would not sign a contract with
the Teamsters Union under present conditions, with the
implication that Respondent would not sign a contract
with the Teamsters. (8) Lindsay's statement to Gully at
5:30 p.m. on June 16 that if the election was voted "No"
the employees would get a raise, a promise of benefit.
Upon the foregoing findings of fact and conclusions of
Law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER "
The Respondent, Leggett and Platt, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening to refuse to bargain in good faith and to
take legal steps through an attorney to reduce wages and
benefits if the Teamsters won the election.
(b) Threatening that the plant would close if the
employees voted for the Teamsters.
10 Civic Center Sports Inc., 206 NLRB 428, 434 (1973); Alberts, Inc., 213
NLRB 686, 691 (1974).
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
(c) Threatening not to sign a contract with the Teamsters
under present conditions.
(d) Promising the employees that if they voted against
the Teamsters Respondent would make beneficial changes
in a year.
(e) Promising employees a better chance of obtaining
benefits without the presence of the Teamsters in the plant.
(f) Promising that the employees would receive a raise if
the election were voted "No."
(g) Interrogating employees as to how they intended to
vote in the election by asking them to report to Respondent
that they intended to vote no.
(h) Soliciting employees to solicit other employees to
vote no in the election.
(i) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its place of business in Springfield, Missouri,
copies of the attached notice marked "Appendix." 1 2
Copies of said notice, on forms provided by the Regional
Director for Region 17, after being duly signed by
Respondent's representative, shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
IT IS FURTHER RECOMMENDED in Case 17-RC-9774 that
the Board sustain the Union's objection to the conduct of
the Respondent affecting the results of the election of June
17; that the election be set aside and, upon the Union's
request, a new election be held, after severance of Case 17-
RC-7994 from this consolidated proceeding.
12 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals the words in the notice reading 'Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
467