Paoli Chair Co., Inc.

National Labor Relations Board - Board Decisions

Aug 23, 1977

231 N.L.R.B. 539 (N.L.R.B. 1977)

PAOLI CHAIR COMPANY, INC.
Paoli Chair Company, Inc. and United Furniture
Workers of America, AFL-CIO, Petitioner. Case
25-RC6 123
August 23, 1977
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered objections to an
election conducted on December 12, 1975,1 and a
Hearing Officer's report [pertinent portion attached
hereto as an appendix] recommending disposition of
same. The Board has reviewed the record in light of
the exceptions and briefs and hereby adopts the
Hearing Officer's findings and recommendations to
the extent consistent herewith.
On the day before the election, the Employer's
president, Wulfman,2 delivered a speech to the
assembled employees, a transcript of which was
submitted by the Employer and Petitioner as part of
Joint Exhibit I in this proceeding. Wulfman opened
his remarks by noting that the Employer was "under
a Court Order to tell the truth and not lie or
exaggerate . . . ." The statement was designed, it
appears, to explain why Wulfman would read his
remarks from a written document. He, thereupon,
told the employees:
You people are spoiled, now, most of you at
least. You'd been spoiled for many years and
since we bought the plant, I guess, I spoiled you
too by giving you everything I could afford even
in a very bad year.
Wulfman proceeded, after discussing the state of
the industry, and steps management had taken in the
employees' interest, to "talk about unions." He told
the employees that the Union's statement that the
law prohibited an employer from closing or threaten-
ing to close the plant was
probably right technically, but again, it's a half-
truth, because I think there was a case where
somebody had a union voted in and they just shut
the plant down and they made them open it back
up. But after you have a union, my first job . . .
was at a plant . . . that had been shut down for
i The election was held pursuant to a Stipulation for Certification Upon
Consent Election. The tally was 97 for, and 105 against, the Petitioner; there
were 3 challenged ballots, an insufficient number to affect the results.
2 The name, inadvertently, appears as "Wolfman" in the Heanng
Officer's report.
231 NLRB No. 77
more than a year with a lot of union trouble and a
strike and later on when I was President of the
Huntingburg Furniture Company, we had a plant
that had so much strife . . . and the production
went down and we were losing money and we just
had to close the plant and the people lost their
jobs. So he's technically right but that just means
immediately after the election.
After discussing other "lies or half truths" the
Union had put out in the campaign, Wulfman stated:
The union can promise anything but only the
Company can deliver. If you vote for a union, and
eventually we have to negotiate, I will abide by
the law. The law says we have to bargain in good-
faith, and we will, but the law says that I do not
have to agree to anything that I do not feel is in
the best interest of the Company.... They're
[the union] not going to change one damn thing
other than they're going to bargain and I'm going
to bargain in good faith and I'm a tough damn
bargainer. I would not sit at the bargaining table.
We got our professional bargainers to do
that. ...
I'm not saying that a strike is inevitable. But
again, I say a strike is the only way a union can
try to force me to do something that I don't feel is
right for this Company ...
Without a union, our policy has been to pay
wages as high as we could afford. That's what
we've done. With a union we would pay as little
as we could bargain for and, I'm telling you
again, in bargaining the only club they have is to
strike ....
Wulfman closed his remarks with the following
observation:
If you can't see that you have a lot to lose and
nothing to gain by joining the union then you're
not as smart as I have been giving you credit for.
Thank you. That's it.
In our estimation, Wulfman's remarks exceeded
the bounds of permissible electioneering conduct.
Mere expressions of the intention to "abide by the
law" and "bargain in good faith" do not insulate an
employer's campaign statements from further scruti-
ny.3 Wulfman, by stating the Union's description of
the law relative to plant closure was a "half-truth"
and applied only in the immediate aftermath of an
election, clearly conveyed the message to the employ-
3 See. e.g., Georgia-Pacific Corporation, 181 NLRB 377 (1970), a case
presenting a quite similar campaign statement.
539
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees that a union victory could result in plant closure
at any other time. Moreover, by indicating, on two
occasions, that the Company already, as it always
had, paid its employees "all it could afford," he not
only underscored his own statement of the law
pertaining to plant closure or the threat of it, but
suggested to the employees that a vote for Petitioner
would represent an exercise in futility.
As Wulfman plainly stated, their choice was to vote
for the Union and get "a lot to lose and nothing to
gain" or to avoid that unappealing reality and
continue to enjoy all the company "could afford." It
was a choice dictated by the "fact" that the Union
was "not going to change one damn thing other than
they're going to bargain" and Wulfman was a "tough
damn bargainer," a characterization clearly related
to his reminder that he was the president of another
company that "just had to close . . . and the people
lost their jobs," because the Union "had people so
shook up and production went down."
"Employees are not likely to miss the inference that
the source of benefits now conferred is also the
source from which future benefits must flow."
N.L.R.B. v. Exchange Parts Co., 375 U.S. 405, 409
(1964). The inference to be drawn from Wulfman's
remarks about the law on plant closures was no less
likely to be missed, especially in light of his remarks
on the Employer's continuing policy of giving
employees all it could afford. 4 We find the state-
ments objectionable and shall, accordingly, direct a
second election. 5
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
MEMBER WALTHER, dissenting:
I agree with the Hearing Officer's assessment of
Wulfman's speech and, for those relevant reasons
noted by the Hearing Officer, which I append to this
dissent, I would find that Wulfman's speech consti-
tuted permissible campaign propaganda.
I See Boaz Spinning Company, Inc., 177 NLRB 788, 789 (196%9). See also
Textron, Inc. (Talon Division), 199 NLRB 131, 135, at fn. 14 (1972), and
accompanying text; Georgia-Pacific Corp., supra.
5 Member Penello agrees that the election should be set aside but does so
primarily because the Employer's speech conveyed the message to the
employees that a union victory could result in plant closure at any time
other than immediately after the election.
APPENDIX
Objections 1. C; 1. D; 1. E; and I. J
In these objections the Petitioner alleges that Employer
threatened to cause a strike, and threatened to close the
plant if the Union were voted in, and that the Employer
detracted from the campaign issues by undue emphasis on
strikes and plant shutdowns. Additionally it is alleged that
the Employer conveyed the impression that it would be
futile to elect the Petitioner as bargaining representative.
The Petitioner during the campaign apparently mailed a
letter to each of the employees. Wolfman directed a large
portion of his speech to answer a number of specific issues
or facts apparently set forth by the Petitioner in this letter.
Another significant issue raised by the letter was plant
closure. Apparently the letter stated that it is illegal for the
Employer to close the plant because the employees voted
for the Union. Wolfman, in elaborating on this issue stated,
that this was a half truth and technically "probably right"
and that he heard of a case where the Employer shut down
the facility after a Union was voted in, but then was forced
to open it again. He talked about his experience as
president of Huntington Furniture Company where "the
union had the people so shook-up and the production went
down and we were losing money and just had to close the
plant and all the people lost their jobs." He also mentioned
his first job in the furniture industry which involved the
reopening of a plant "that had been shut down for more
than a year with a lot of union trouble and a strike."
Wolfman's statements contained no threats. They related
to personal experiences Wolfman had and were clearly in
answer to issues raised by the Petitioner in its letter. While
these statements may direct the mind of the listener to the
possibility of a plant shutdown, they also point out that, if
an illegal shutdown should occur, the Employer will be
forced to resume operations. Bearing in mind that the issue
was raised by the Petitioner, I consider Wolfman's
statements as nothing more than a reasonable description
of incidents that have occurred and, for that reason, could
occur again.
Wolfman also told the employees that "the Union can
promise anything but only the Company can deliver, and if
the Union is voted in, the Employer will have to negotiate
with it." He emphasized that the Employer will abide by
the law and negotiate in good faith. He pointed out that
this does not mean that the Employer has to agree to
anything that is not in its best interest. He also told the
employees that, while he would bargain in good faith he
would, nevertheless, be a tough bargainer, and that the
only weapon the Petitioner has to enforce its demands
would be to strike. He emphasized that all the promises
made by the Petitioner are nothing but idle promises and
that "they can't deliver anything except maybe some funds
if you are on strike." He talked about Employers in the
Paoli area that had been involved in strikes. Referring to
Curry Veneer Company he stated that they had a ten week
strike and that, after being out for that time, the employees
went back to work, accepting the offer Curry Veneer had
made before the strike and that a year later, a few weeks
before the hearing in the instant case, they voted the union
out. Again he stated that the only way for a Union to
enforce its demands would be to strike. He cautioned the
employees that with this "[he was] not saying that a strike
is inevitable." Relating to his experience with a plant in
Texas where the Employer and the union could not reach
an agreement and the Union took the employees out on
strike, he stated that the Employer hired replacements and
the plant was back in full production within six months.
When the strike ended, after several months, the replace-
ments did not lose their jobs.
540
PAOLI CHAIR COMPANY, INC.
Wolfman pointed out that it has been the Employer's
policy, without a union, to pay wages as high as the
Employer could afford it, but with a union the Employer
would pay as little as it could bargain for, and that "the
only club" the union has is to strike. In this context he also
mentioned that usually a union will ask for the same
benefits and wages as it has in its organized plants in the
area and that it would be interesting to see where they
would start to bargain, since the Employer already is
paying higher wages and benefits as the employees in the
organized plants receive.
Wolfman then told the employees what could happen to
them if they went on strike: "No pay; union bosses pay
goes right on, not yours; no unemployment pay; picket line
duty; no insurance; all insurance is cancelled the minute
the strike happens; possible fines; possible violence;
economic strikers can be permanently replaced; savings
are used up, even if a strike results in a little higher wage, it
may take many years to get back what's lost during the
strike."
Evaluating the Employer's statement concerning the
possibility of a strike or of a plant closure, I find that they
do not go beyond remarks as to what has happened at
other facilities or plain statements of legal facts and
obligations. No prediction was made as to the effects which
a vote for the Union will have on the Employer's business,
nor did these remarks contain any threats of reprisals or
force or a promise of benefits. See N.LR.B. v. Gissel
Packing Co., 395 U.S. 575, 618, 619. There is no legal
requirement that the Employer has to grant all union
requests nor does the law demand that all current benefits
have to be retained. See Oxford Pickles, Division of John E.
Cain Co., 190 NLRB 109. In no way did Wolfman's
remarks convey the impression that a strike was inevitable
in order to gain concessions from the Employer. Amnerace
Corporation, ESNA Division, 217 NLRB 850; nor do the
references to the possibility of a strike or to "tough"
bargaining amount to a rejection of the collective bargain-
ing concept. See Jerry T. Driskill, Sr., 222 NLRB 522.
Wolfman's remarks and statements by themselves, and
more so, if they are considered in the context of the other
two speeches, in no way create an impression that it would
be futile to elect the Union. It should be noted that he
repeatedly made the promise that the Employer will abide
by the law and bargain in good faith, and that his
references to the fact that the Union cannot obtain
anything without the Employer's assent or the force of a
strike were not connected with any promises or the threat
of possible economic retributions, but were only qualified
by the statement that the Employer will not grant anything
that is not in its best interest. See Oxford Pickles, supra. I
therefore recommend that the Petitioner's Objection 1. C;
1. D; 1. E; and 1. J be dismissed.
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