Pentre Electric

National Labor Relations Board - Board Decisions

Dec 19, 1991

305 N.L.R.B. 882 (N.L.R.B. 1991)

882
305 NLRB No. 130
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In the absence of exceptions, we adopt, pro forma, the judge’s
findings that the vice president’s speech to employees on June 13,
1990, and the alleged threats to employees by supervisors did not
violate the Act.
The Respondent argues that the judge improperly amended the
complaint and found a threat of plant closing that was neither al-
leged nor investigated. We find that this violation was within the
scope of the original complaint which alleged threats of layoff and
loss of work, was based on the Respondent’s witness’ direct testi-
mony, and was fully litigated.
1 Pentre admits that it is an employer engaged in commerce within
the meaning of Sec. 2(2), (6), and (7) of the National Labor Rela-
tions Act (the Act) and that the Union is a labor organization. The
bargaining unit: ‘‘All full-time and regular part-time journeymen, ap-
prentices, helpers and supply house employees, but excluding all of-
fice clerical employees, and all professional employees, guards and
supervisors as defined in the Act.’’
2 The charges in Cases 9–CA–27773–3 and 9–CA–27825 were
filed on August 20 and September 4, respectively. The consolidated
complaint issued on October 23. The order directing a hearing in
Case 9–RC–15721 and consolidating it with the unfair labor practice
hearing issued on December 3.
Pentre Electric, Inc. and International Brotherhood
of Electrical Workers Local 648, AFL–CIO.
Cases 9–CA–27773–3, 9–CA–27825, and 9–RC–
15721
December 19, 1991
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On April 22, 1991, Administrative Law Judge Ste-
phen J. Gross issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Pentre Electric, Inc., Ham-
ilton, Ohio, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not
specifically found.
IT IS FURTHER ORDERED that the election held in
Case 9–RC–15721 on August 20, 1990, is set aside
and the case is remanded to the Regional Director for
Region 9 for the purpose of conducting a second elec-
tion.
[Direction of Second Election omitted from publica-
tion.]
Eric A. Taylor, Esq., for the General Counsel.
Brett L. Thurman, Esq., of Dayton, Ohio, for the Respondent.
Mr. Richard C. Von Stein, of Hamilton, Ohio, for the Charg-
ing Party.
DECISION
STEPHEN J. GROSS, Administrative Law Judge. The Re-
spondent, Pentre Electric, Inc. (Pentre), is an electrical con-
tractor. The Charging Party, IBEW Local 648 (the Union),
conducted an election campaign among the 19 employees in
the bargaining unit at Pentre.1 But at the Board-run election
on August 20, 1990, a majority of the bargaining unit em-
ployees voted against the Union. (All the events I refer to
in this decision occurred in 1990, unless I indicate other-
wise.)
The General Counsel alleges that, in the months prior to
the election, Pentre supervisors made statements that violated
Section 8(a)(1) of the National Labor Relations Act (the Act)
in various respects.
The Union filed timely objections to the conduct of the
election and to conduct affecting the results of the election.
Some of the objections were overruled. The others raised the
same factual issues as the General Counsel’s unfair labor
practice allegations and, accordingly, the hearing on those
objections was consolidated with the hearing in the unfair
labor practice case.
I heard the matter in Cincinnati on January 29, 1991.2
A. Meehan’s Speech to Pentre Employees on June 13
On June 13 Pentre called all its personnel—supervisors as
well as employees—into a meeting in its warehouse. During
part of the meeting Pat Meehan addressed the employees.
Meehan is one of Pentre’s two coowners and is its vice
president. Meehan had heard that the Union was attempting
to organize Pentre. Meehan’s intent was to convince the em-
ployees that they would be better off without the Union.
The General Counsel claims that, in the course of
Meehan’s speech, he threatened Pentre’s employees with lay-
off if they voted in favor of the Union.
During his talk Meehan discussed, among other things, the
impact of union-imposed standards on the employees and the
effect of unionization on Pentre’s personnel practices.
As regards union standards, Meehan indicated that a num-
ber of Pentre’s employees might not meet the Union’s stand-
ards for journeymen electricians and that he doubted that all
of those who failed to qualify would want to undertake the
schooling necessary to become journeymen. He suggested
that that might mean that the Union would not allow those
employees to continue to work for Pentre.
As regards the impact of unionization on Pentre’s per-
sonnel practices, Meehan said that Pentre had always tried to
keep its employees employed year-round. A reason for that,
Meehan said, was that the Company did not have a pool of
electricians available to it for short term employment. With
unionization, Meehan continued, that would change. Union-
ized contractors tend to keep some top-notch electricians em-
ployed year-round. But since a pool of electricians is avail-
able (from the Union’s hiring hall), Meehan said, there is no
883PENTRE ELECTRIC
3 NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969).
incentive for a unionized employer to try to keep its entire
workforce employed on a permanent basis. That meant that
some Pentre employees who then worked for the Company
year-round might work for Pentre only sporadically. And,
said Meehan, as he understood the way union hiring halls
work, that could mean that the employees would spend half
the year unemployed.
Turning first to Meehan’s claims about the adverse impact
of the Union’s standards on some employees, it seems to me
that the subject of union-employee relationships is a fair tar-
get for attack by employers. For one thing, employer pre-
dictions of a decline in the well-being of employees due to
action by the Union cannot reasonably be considered threats
of action against the employees by the employer. Secondly,
unions are in a particularly good position to reply effectively
to those kinds of contentions by employers. Thus I conclude
that Meehan’s discussion of the impact on the employees of
the Union’s standards did not violate the Act whether or not
that discussion accurately reflected the facts.
Meehan’s prediction that unionization would result in
some of its employees spending half of every year unem-
ployed raises more difficult questions.
What Meehan said, essentially, was that if, on the one
hand, Pentre had to pay union wages and benefits to its em-
ployees and, on the other, Pentre had access to the Union’s
hiring hall, it would not make economic sense for Pentre to
attempt to keep as a permanent staff all of the electricians
it would need for all of the work it expected to have. And,
that being the case, Pentre would not make that attempt.
Rather, Pentre would look to the pool of electricians avail-
able at the union’s hiring hall for the Company’s job-by-job
needs. That, in turn, would eventuate in Pentre laying off
some of its employees under circumstances in which, if the
Company were not unionized, the employees would remain
employed. As to the employment opportunities of the laid-
off employees, that would depend on the hiring hall situation
which, Meehan believed, could mean employment only 6
months out of every 12.
One subissue is whether Meehan improperly assumed that
unionization would mean some specified level of wages and
benefits. See, in this regard, McDonald Land & Mining Co.,
301 NLRB 463 (1991). But in the course of his talk Meehan
did discuss what set of wages and benefits he thought the
Union would demand and, indeed, admitted to the employees
that such remuneration compared favorably to the employ-
ees’ current pay. (The testimony of union official Von Stein
agreed with Meehan’s statements to the employees regarding
what demands the Union would make on Pentre if the em-
ployees voted in favor of unionization.)
As to Meehan’s layoff predictions themselves, an em-
ployer, says Gissel,3
may even make a prediction as to the precise effects he
believes unionization will have on his company. In such
a case, however, the prediction must be carefully
phrased on the basis of objective fact to convey an em-
ployer’s belief as to demonstrably probable con-
sequences beyond his control.
In a sense, a switch in Pentre’s employment tactics stem-
ming from its work force becoming unionized was not ‘‘be-
yond its control.’’ Pentre could have, after all, continued to
try to keep its work force employed on a permanent basis
even had the employees voted in favor of unionization.
On the other hand, no employee could reasonably have
come away from the speech with the belief that the predicted
layoffs would be the product of union animus on the Com-
pany’s part.
Moreover the economics of the situation were indeed be-
yond Pentre’s control. Pentre’s existing employment tactics
were predicated on the fact that it paid less than scale. If the
Company began paying union level remuneration, the Com-
pany’s situation relative to its employees would change in a
variety of ways, one of which would be having access to the
pool of employees in the Union’s hiring hall. Pentre, said
Meehan, ‘‘would love to be able to just call up and say,
‘send me 200 guys.’’’ Under the circumstances, layoff from
Pentre upon unionization of the Company’s work force was
a likelihood for at least some of Pentre’s employees. Meehan
was speaking factually in that respect.
Meehan’s statement that some employees who worked out
of the Union’s hiring hall would work as little as 6 months
out of the year is another matter. The evidence in this pro-
ceeding suggests that he was wrong about that. But his alle-
gations in that respect were not about Pentre—they were not,
in Gissel’s words, ‘‘a prediction as to the precise effects he
believe[d] unionization [would] have on his company.’’
Rather, they were about the overall rate of employment of
electricians using the hiring hall to obtain work. Again, the
Union had the facts in that respect and could readily have
responded to Meehan’s claims.
I conclude that Meehan’s speech on June 13 did not vio-
late the Act in any respect. See generally Atlantic Forest
Products, 282 NLRB 855 (1987).
B. Supervisor Tim Kennedy’s Threats
Ed Farmer worked for Pentre, as a journeyman electrician,
until August 1990 (when he quit). Throughout the Union’s
campaign at Pentre, Farmer was demonstrably prounion; he
wore union insignia and overtly handed out authorization
cards.
Tim Kennedy is a Pentre foreman. The Company admits
that Kennedy is a supervisor within the meaning of the Act.
One of the companies that Pentre was providing services
to during the spring of 1990 was Boise Cascade. Farmer and
coemployee Thielman were part of Kennedy’s crew at the
Boise Cascade jobsite until sometime in May. Pentre then
switched the two employees to another jobsite. But about
June 11 the Company reassigned Farmer and Thielman to
Kennedy’s crew at Boise Cascade.
When Farmer and Thielman arrived at the Boise Cascade
jobsite on the first day of their reassignment, Kennedy turned
to them and said, ‘‘Haven’t they fired you clowns yet?’’
Farmer testified that he took that as a reference to his
prounion activities. Kennedy testified his remark had nothing
whatever to do with the Union; rather, it was his joking way
of acknowledging the return of the two employees to the job-
site and a dig at the employees for what he considered a de-
liberate failure on the employees’ part to complete their work
when they were last at the Boise Cascade jobsite.
Farmer testified that Kennedy repeated the remark on sub-
sequent days. But I credit Kennedy’s testimony that he ut-
tered the remark only once.
884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The complaint alleges, inter alia, that Adams told employees that
Pentre would not sign a contract with the Union. But the record fails
to sustain that allegation and on brief the General Counsel does not
know that Adams uttered any such threat.
Some of the employees on Kennedy’s crew were
antiunion. Farmer and some others were prounion. The two
sides spent a lot of time, on the job, discussing the upcoming
election. Productivity fell. On several occasions Kennedy re-
sponded by telling the employees (both prounion and
antiunion) to get back to work and that if they wanted to talk
about the Union they should do it on their own time, not the
Company’s. Finally, on June 18, when, once again, Ken-
nedy’s crew was debating unionization instead of working,
Kennedy told them something on the order of, ‘‘if you don’t
stop talking about the Union and go back to work I’m going
to run you off the job.’’ (Farmer testified that Kennedy’s
words were, ‘‘If you guys have any more union talk on the
job, I’m going to run you off before lunch.’’ It may well be
that that was what Kennedy said.)
Farmer, who was part of that crew, took that as a threat
that he would be fired if he did not stop speaking in favor
of the Union.
The General Counsel argues that by reason of Kennedy’s
‘‘haven’t they fired you clowns yet’’ remark and his threat
to run the employees off if they continued their ‘‘union
talk,’’ Pentre violated Section 8(a)(1) of the Act.
I recommend that those allegations of the complaint be
dismissed.
As for Kennedy’s ‘‘clowns’’ comment, a reasonable em-
ployee would have recognized that there was no basis for
connecting it to the employee’s prounion position.
As for Kennedy’s threats regarding the employees’ talking
about the Union, the employees were talking (pro and con)
about the Union, they were doing so during worktime, and
they were working less effectively than they should have
been because of that talking. Kennedy was entitled to deal
with that interference with work by threatening the employ-
ees with discipline.
C. Supervisor Jim Adams’ Threats
Charles Mendez began working at Pentre in November
1989 and immediately began trying to organize the Com-
pany’s work force on behalf of the Union. His efforts were
not covert. For instance, Mendez frequently wore union in-
signia.
Jim Adams is a Pentre foreman and an admitted super-
visor. During the course of the Union’s campaign Mendez
worked on Adams’ crew.
According to Mendez, Adams interrogated him about his
union sympathies and about whether he had signed an au-
thorization card. But Adams denied doing either and I credit
that denial.
Adams does not deny telling the employees in his crew
that unionization could be disasterous for the employees.
For one thing, Adams referred to the Union’s standards for
qualifying as a journeyman electrician and questioned wheth-
er the employees could qualify.
For another, Adams told the employees that as he under-
stood the Union’s rules, the Union would give job preference
to ‘‘them good old boys down there at the hall,’’ with the
result that ‘‘we [Adams himself as well as the employees he
was talking to] are going to be sitting at home.’’ In other
words, said Adams, if the Union came in, the electricians
currently working for Pentre would ‘‘be out of work’’ be-
cause of the Union’s own rules.
Meehan, in his June 13 speech, claimed that the Union’s
own rules would adversely effect Pentre’s employees if the
employees voted in favor of unionization. Adams’ statements
to the employees did not precisely track Meehan’s. But they
made the same point: the Union’s rules might cost the em-
ployees their jobs or, at least, months-long layoffs. I con-
clude that, for the reasons that Meehan’s speech did not vio-
late the Act, the allegations concerning Adams’ utterances
also should also be dismissed.4
D. Luff’s Speech to Employees
Phil Luff is a coowner of Pentre and is the Company’s
president. On July 24, he gave a speech to the Company’s
employees that was intended to dissuade Pentre’s employees
from voting in favor of unionization. According to the Gen-
eral Counsel, in the course of that speech Luff threatened the
employees with loss of work if they voted in favor of the
Union.
One of the main topics of Luff’s speech was the impact
of Pentre’s unionization on its ‘‘customer base.’’ What Luff
told the assembled employees was that (according to Luff’s
testimony) ‘‘our customers’’—whom he named—‘‘don’t use
union contractors.’’ Luff went on to say that, because of that
circumstance,
we would not have the same customer base if we went
union. I don’t know how we would go about getting
another customer base. I’m certain that Pat [Meehan]
and I would probably succeed—we’re too young to
quit, but . . . we would not have the jobs we have now
if we had been union [and] it would be very difficult
to get work if we were union.
The message Luff conveyed was that because of the cus-
tomers’ preference for nonunion contractors, Pentre in the
very least would suffer a serious decline in the volume of
its business. That, in turn, would reduce the number of em-
ployees Pentre needed. And a shutdown of the Company was
a possibility.
Nothing in the record confirms Luff’s claim that Pentre’s
customers did not use union contractors. (Meehan made the
same claim, as I will discuss in the next section of this deci-
sion. But that is hardly confirmation of Luff’s statements.)
I have no doubt that Luff firmly believed that what he said
about the nonunion preferences of Pentre’s customers was
the fact. And if Luff’s beliefs about his customers’ pref-
erences were accurate, information about those preferences
and their impact on future employment possibilities at Pentre
would be useful for the Pentre employees to have when they
voted on whether they wanted to be represented by the
Union. Additionally, Luff’s contentions should have been
easy for the Union to respond to—the Union’s officials sure-
ly are knowledgeable about which businesses in the area are
favorably disposed to unionized electrical contractors and
which are not.
On the other hand, it is all too easy for managers of non-
union companies to convince themselves that their customers
are willing to do business only with nonunion companies.
Moreover, depending upon the precise words (and intonation)
used when communicating to employees about customers’
885PENTRE ELECTRIC
5 Somewhat as Meehan did in his speech in June, Luff also spoke
about how the availability to Pentre of a union hiring hall, coupled
with union rules regarding referrals from its hiring hall, might mean
layoffs for some Pentre employees.
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
7 If 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.’’
nonunion preferences, that kind of contention can be the
equivalent of telling employees that they should reject union-
ization because of the customers’ union animus.
In any event, Board has held that when statements of the
kind uttered by Luff become the subject of an 8(a)(1) claim,
the company must present evidence confirming the accuracy
of such statements in order to avoid a finding that the com-
pany violated the Act. Long-Airdox Co., 277 NLRB 1157
(1985). Accord: Gupta Permold Corp., 289 NLRB 1234,
1252 (1989). Because the record contains no confirmation of
Luff’s claims about the unwillingness of Pentre’s customers
to do business with union contractors, I conclude that Luff’s
statements in that respect violated Section 8(a)(1) of the
Act.5
E. Meehan’s Talks to Employees in August
In the week before the election Meehan met with about 10
of Pentre’s employees in one-on-one conversations.
Meehan’s purpose was to convince the employees to vote
against unionization. One of the employees with whom Mee-
han spoke was Charles Mendez. The General Counsel alleges
that in the course of Meehan’s conversation with Mendez,
Meehan interrogated Mendez about the union activities and
sympathies of Mendez and his fellow employees.
Mendez did testify to that effect. But Meehan denied any
such conversations and I credit Meehan, not Mendez.
But it is clear that Meehan spoke to each of the 10 em-
ployees about how ‘‘all of [Pentre’s] large customers were
almost strictly open shop companies.’’ Meehan went on to
tell the employees that ‘‘some’’ of Pentre’s customers—
did do work with unions. That’s fine. That simply
means that they’re free enterprise and so am I. But for
the most part it was open shop and some of our very
good [customers] were very involved in the open shop
industry . . . associations and the like. So it would be
difficult to maintain those particular customers if we
were a union contractor, and then, if we were a union
contractor, we’d have to establish new customers.
I really don’t want to go through that again. That’s
exactly where I was seven years ago when we started
Pentre Electric . . . trying to knock on doors, [make]
cold calls, and establish the company, and I’m not pre-
pared to do that again.
Meehan’s utterances on the subject were thus similar to
Luff’s, but even more threatening to the employees. The ex-
acerbation stemmed from Meehan’s stated position that Mee-
han was ‘‘not prepared’’ to search for new customers when
Pentre’s existing customers ended their relationships with
Pentre because of the Company’s unionization. Unionization,
that is to say, would result in Pentre closing its doors.
While the complaint makes no allegations regarding this
facet of Meehan’s talks with employees in August, the matter
obviously was litigated. For the reasons discussed in connec-
tion with Luff’s speech, I conclude that Meehan’s talks in
August with Pentre employees violated Section 8(a)(1) of the
Act.
F. Recommended Disposition of the
Representation Case
Although there are exceptions to the rule, ‘‘the Board’s
general policy is to set aside an election whenever an unfair
labor practice occurs during the critical period.’’ Video Tape
Co., 288 NLRB 646 (1989).
The Union filed its election petition on June 22. The elec-
tion was conducted on August 20. Within that period Pentre
violated the Act in two respects—by reason of Luff’s speech
to Pentre’s assembled employees about the impact of union-
ization on Pentre’s customer base and of Meehan’s talks to
approximately 10 employees about the same subject.
I conclude that those unfair labor practices sufficiently
interfered with the employees’ freedom to select a bargaining
representative to require setting aside the election in Case 9–
RC–15721 and that the case should be remanded to the Re-
gional Director for Region 9 with directions to conduct a
new election at an appropriate time.
THE REMEDY
The accompanying recommended Order requires Pentre to
cease and desist from the commission of unfair labor prac-
tices of the kind that I have concluded Pentre committed and
to take certain affirmative action necessary to effectuate the
policies of the Act.
The recommended order also sets aside the election held
on August 20 and remands Case 9–RC–15721 to the Re-
gional Director for Region 9 for the purpose of conducting
a new election at such time as he deems that circumstances
permit a free choice of bargaining representative.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Pentre Electric, Inc., Hamilton, Ohio, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Conveying to employees that unionization will result in
the loss of the Company’s customers and loss of jobs.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its facility in Hamilton, Ohio, copies of the at-
tached notice marked ‘‘Appendix.’’7 Copies of the notice, on
forms provided by the Regional Director for Region 9, after
being signed by the Respondent’s authorized representative,
886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER RECOMMENDED that the complaint is dis-
missed insofar as it alleges violations of the Act not specifi-
cally found.
IT IS FURTHER RECOMMENDED that the election held in
Case 9–RC–15721 on August 20, 1990, be set aside and the
case remanded to the Regional Director for Region 9 for the
purpose of conducting a new election.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT convey to our employees that unionization
will result in the loss of the Company’s customers and loss
of jobs.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
PENTRE ELECTRIC, INC.