Tennessee Handbags, Inc.Download PDFNational Labor Relations Board - Board DecisionsMar 27, 1969175 N.L.R.B. 136 (N.L.R.B. 1969) Copy Citation 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tennessee Handbags , Inc. and International Leather Goods, Plastics & Novelty Workers' Union, AFL-CIO. Case l0-CA-7397 March 27, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On * November 8, 1968, Trial Examiner A Norman Somers issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Charging Party filed exceptions, with briefs in support thereof, to 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 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, and the exceptions and briefs in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent they are consistent herewith. On March 7, 1968, during the period of the Union's preelection organizing campaign, an advertisement appeared in a weekly newspaper having substantial distribution in and around Dandridge, Tennessee, the location of the Respondent's plant. The advertisement was in the form of an open letter to the Respondent's employees, and was signed by 70 individuals who represented themselves as friends and business associates of the employees. It is clear from the contents, and the Respondent admits, that the advertisement threatened the employees with economic reprisals and closure of the Respondent's plant if the Union was successful in its organizational campaign. The Trial Examiner found, however, that when the Respondent disclaimed responsibility for the advertisement, it had no corollary duty to disavow its threatening contents We do not agree. The Respondent specifically called the attention of its employees to the advertisement on two separate occasions. On March 10, the Respondent's president posted a notice at the plant in which he denied that the company had anything to do with the publication of the advertisement, and further advised the employees that: While I do not know all of the people who signed the letter, I'm sure they were standing up for their own convictions. On March 19 the Respondent's president, in the context of antiunion speeches intended to persuade the employees to reject the Union, stated: First, many of our friends here in the community wrote an open letter to you in the newspaper, giving you reasons why you should not get a union in here. As I stated before in a bulletin board notice, this company in no way had anything to do with that letter, regardless of what the union tries to tell you. While I do appreciate the concern of the people in the community, I know this is my battle and I will win or lose it, based on what you think of me as a person. In recommending dismissal of the complaint, the Trial Examiner distinguished our prior decision in Colonial Corporation of America' on the grounds that in Colonial, unlike here, the employer had engaged in other violations of the Act, that plant closure had been threatened in the past at the employer's other plants, and that the employer's suggestion in Colonial that the citizens were performing a "civic duty" was in some measure more adoptive of the threats than in the instant case. Although the existence of past or contemporaneous unfair labor practices might very well add to the impact on the employees of current threats of retribution and reprisal, their absence, in the context of this case, cannot serve to justify the Respondent's failure to disavow and his tacit adoption of threats of economic reprisal and plant closure. Moreover, we find no factual basis for distinguishing the employer's comments in the Colonial case from the Respondent's references to the advertisement here, in which it (1) characterized the authors of the threats as "our friends" who had given reasons why the employees should reject the Union, (2) acknowledged that the authors were standing up for their own convictions, and (3) expressed appreciation for the concern of the people of the community. Accordingly, we find that while the Respondent denied its responsibility for the publication of the advertisement, it did not in any measure disavow the threats contained therein. On the contrary, considering the references made to the advertisement by the Respondent's president on two separate occasions, the Respondent tacitly, if not avowedly, acknowledged that the threats had a basis in fact which should be considered by the employees in selecting or rejecting a collective-bargaining agent. In so doing, we find, the Respondent violated Section 8(a)(l) of the Act. 'Colonial Corporation ojAmenca, 171 NLRB No 185 175NLRB No. 22 TENNESSEE HANDBAGS, INC. 137 THE REMEDY Having found that the Respondent has engaged in unfair labor practices, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Tennessee Handbags, Inc., Dandridge, Tennessee, its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Threatening employees with economic reprisals and plant closure to discourage their affiliation with or support of any labor organizations. (b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist International Leather Goods, Plastics & Novelty Workers' Union, AFL-CIO, or any other labor organization, 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 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post at its plant in Dandridge, Tennessee, copies of the attached notice marked "Appendix."Z Copies of said notice, on forms provided by the Regional Director for Region 10, Atlanta, Georgia, shall, after being duly signed by the Respondent, be posted by the Respondent 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the aforesaid Regional Director for Region 10, in writing, within 10 days from the date of this Order, what steps have been taken in compliance. WE WILL NOT threaten economic reprisals and plant closure to discourage your affiliation with or support of any labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of your rights to self-organization, to form any labor organization, to join or assist International Leather Goods, Plastics & Novelty Workers' Union, AFL-CIO, or any other union, to bargain through representatives of your 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 and all such activities. TENNESSEE HANDBAGS, INC (Employer) Dated By (Representative) (Title) 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, 730 Peachtree Street, NE, Atlanta, Georgia 30308, Telephone 404-526-5760. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE A. NORMAN SOMERS, Trial Examiner: The issue arises on motions filed respectively by the General Counsel and Respondent for summary judgment. The dispute is over whether Respondent's failure to disavow coercive statements Ina paid letter published by individuals in the community and addressed to Respondent's employees violated Section 8(a)(1) of the Act. The complaint was issued by the General Counsel on July 17, 1968, on charges filed by the Union on June 1.i The Respondent's answer admitted all the facts alleged in the complaint but denied they constituted a violation The General Counsel filed a Motion for Summary Judgment, on which an Order to Show Cause was issued, and the hearing was indefinitely postponed pending disposition of the motion. The Union filed a response supporting the Motion, and Respondent filed a response opposing the General Counsel's Motion and filing a Motion for Summary Judgment in its own favor (to which the General Counsel filed a response in opposition). On the pleadings, opposing motions and contentions, and the entire record, I hereby make the following 'In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order" APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Decision and Order 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: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent, a Tennessee corporation, located in Dandridge, Tennessee, makes ladies' handbags, in the course of which it annually sells and ships at least $50,000 worth of its products out of the State. It is agreed and hereby found that Respondent is engaged in interstate commerce within the meaning of the Act The year is 1968 in every instance except where otherwise indicated 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11. THE LABOR ORGANIZATION INVOLVED The Charging Party, International Leather Goods, Plastics & Novelty Workers' Union, AFL-CIO (hereafter the Union), is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE 1. The admitted allegations in the complaint On March 7, a paid advertisement, in the form of a notice or letter addressed to the employees of Respondent, appeared in the Jefferson City, Tennessee, Standard Banner . It is a weekly newspaper having a substantial distribution in and around Dandridge, Tennessee. The letter (reproduced as an appendix to the complaint) was in the name of 70 individuals in the Dandridge community, purporting to be friends and business associates of employees of the Company. The letter urged the employees to vote against the Union in the Board-conducted election, which was to be held on March 21. The publication, in substance, stated that until Respondent was founded 17 years before, many people in this community had to commute far to find steady work but that the community had thrived since the Company located in the area. It added that under the Company the employees had enjoyed steady work and received many fringe benefits "without unionization." It further stated that when the Company began in this area , "it did so with confidence in you and confidence in us" and that "it was never believed or anticipated that organized labor would ever become a problem," and that "you, on election day, will have an opportunity to reward the confidence of your employer by voting against the union ." It went on to say, "It is our further opinion that you have much to lose by unionization ," and among these would be the following: And your unionization may well mean that your employer will decide to operate in a territory or place where there is no union . If your employer decides to do that, the plant at Dandridge may well be used for storage, your employment at the plant will cease and this community will suffer a great loss. In that event, what will your economic condition be? It can well be imagined! On March 10, Respondent, by Fred E. Rimmer, its president, posted a notice at the plant, stating: TO ALL EMPLOYEES: THE PURPOSE OF THIS NOTICE IS TO LET YOU KNOW THAT TENNESSEE HANDBAGS HAD NOTHING TO DO WITH THE RECENT NEWSPAPER LETTER WRITTEN BY THE TOWNSPEOPLE IN THE STANDARD BANNER TO YOU. WE WERE ALSO SURPRISED WHEN THE LETTER APPEARED. WHILE I DO NOT KNOW ALL OF THE PEOPLE WHO SIGNED THE LETTER, I'M SURE THEY WERE STANDING UP FOR THEIR OWN CONVICTIONS. On March 19, President Rimmer, in speeches to groups of employees stated, among other things: As you know, several unusual things have happened the last several weeks which we should talk about for a moment. First, many of our friends here in the community wrote an open letter to you in the newspaper, giving you reasons why you should not get a union in here . As I stated before in a bulletin board notice, this company in no way had anything to do with that letter, regardless of what the union tried to tell you. While I do appreciate the concern of the people in the community, I know this is my battle and I will win or lose it, based on what you think of me as a person. 2. The election in the representation proceeding and its outcome The Union lost the election and filed objections on the •basis of conduct affecting its results.' The Regional Director, under the power delegated to him by the Board, passed upon these objections in a Supplemental Decision issued May 28. The only ground of objection the Director sustained was the advertisement of March 7 and Respondent's comments thereon to the employees on March 10 and 19. The ruling was that: . . . the advertisement clearly reflects a threat of reprisal and plant removal if the Petitioner [the Union] should be successful in the election. The employer failed to specifically disavow these threats and, in fact, by its failure enjoyed the benefits of the outsiders' actions. Therefore, Objection K raises material and substantial issues affecting the results of the election. The Director ordered the election set aside and directed a second election, which so far as appears has not been held. The charge which initiated the instant unfair labor proceeding was filed, as earlier indicated, on June 1, a few days after the decision setting aside the election. B. The Opposing Contentions The General Counsel's position is that by failing to disavow , Respondent " thereby admitted" the threats in the advertisement and thus violated Section 8 (a)(1) of the Act. The Respondent ' s position is that its failure to disavow is "without significance since the complaint alleges no facts placing Respondent under a duty to disavow or repudiate them." C. Discussion There is no allegation, nor is it claimed, that those who inserted the advertisement were agents of Respondent, or that Respondent otherwise had a hand in preparing or placing the ad. Respondent accordingly relies on the general proposition that an employer is not responsible for conduct which would have constituted an unfair labor practice, had it been that of the employer or his agent, if an agency is not established or ratification, express or implied, has not been proved.' Respondent, at the same time that it bases its position on the Monroe Auto and Marshfield Steel cases, recognizes and indeed calls attention to decisions in which the outsiders' conduct was held to entail legal consequences, but it distinguishes them. First is where as a result of the outsiders' conduct the election is set aside. There the result hinges on whether the conduct prevented a fair election, but this can occur even where the employer 'Official notice is taken of the formal documents in Case 10-RC-7319. (The Union in its response to the Order to Show Cause in the instant unfair labor practice case, cites certain aspects of that representation proceeding . The undersigned , on notice to all parties , requested and received from the Regional Director the copies of the formal papers in the representation proceeding for the purpose of taking official notice.) 'Monroe Auto Equipment Co., 159 NLRB 613, 617 (citing Byrds Mfg. Corp., 140 NLRB 147, 155; Monarch Rubber Co., 121 NLRB 81, 83); Marshfield Steel Co., 140 NLRB 985 (enfd. on other issues 324 F.2d 333 (C.A 8)). TENNESSEE HANDBAGS, INC. 139 bears no responsibility for the conduct of the outsiders that hampered the employees' free choice' Second is where there has been a ratification by the employer after the publication As to this, it was held in Byrds Mfg (supra, fn 3) and reaffirmed in Monroe (ibid) that "it is not sufficient (to establish the employer's responsibility) to show that the employer enjoys the benefits of the outsider's action " (While that concept was invoked by the Regional Director in setting aside the election, the General Counsel, in the complaint and his Motion for Judgment, invokes instead the concept that the Respondent tacitly "admitted" the threats in the publication ) Third, there is the situation, exemplified by Hamburg Shirt as enforced in Amalgamated Clothing.' which the Board followed in Henry I Siegel, Inc , 165 NLRB No 56 There the employer was held obligated to disavow a community group's statements under a combination of two circumstances, These were. (a) "a symbiotic [economic] relationship between town and company" under which without the Company there would be not much left of the town, and (b) the employer conducted an anti-union campaign which "paralleled" that of the townleaders that published the statement. The result of the two in combination is that the employees, as there held, would reasonably believe that the townleaders speak for the employer in the kind of situation here involved. This has an element of ostensible agency, a concept invoked in the Colson Corporation case,' which is cited in the Amalgamated [Hamburg] and the Siegel cases. The Court in Amalgamated, though it cited Colson with approval, indicated that the result in such a situation "does not depend on rigid application of principles of respondeat superior" and suggested a "kind of joint venture [between town and company] rooted in an overlap of financial interests" where "in this context the Company' s silence is expressive " The Respondent distinguishes these cases on the ground that the townleaders there also played some role in the employer's labor relations and the employer's own antiunion conduct reflected the view expressed in the publication The General Counsel claims the cases relied on by Respondent to be "inapposite " Nor does he claim support in the cases above discussed which the Respondent has undertaken to distinguish instead, he relies on still another basis of distinction, which he states in his Motion for Judgment, as follows: Counsel for the General Counsel submits that Respondent's failure at the time it called attention to the advertisement by the notice and by the speeches, to disavow the threats contained in the advertisement conveyed clearly to its employees that the threats contained in the advertisement represented the view of the Respondent It is therefore submitted that Respondent violated Section 8(a)(1) of the Act as alleged. (Colonial Corp of America, 171 NLRB No. 185 (see particularly TXD).] Neither the point he makes nor the Colonial case is developed any further except the statement in his response to the Respondent's Motion for Judgment The General Counsel there states "that the cases cited by Respondent in support of its Motion are inapposite to the issue at bar and the authority heretofore cited in counsel for the General Counsel's Motion for Summary Judgment is controlling in the circumstances of this case." The difference would seem to be this: that whereas in the cases on which Respondent relies (supra, fn 3), the employer was silent altogether, here the employer commented on the publication and that what he said made expressive what he omitted to say The Colonial case does indeed have such an element in it There the employer, in commenting on a community group's publication, denied having had a part on that publication but did not repudiate its contents and was thereby held to have "tacitly" admitted them However, in Colonial, there were these additional facts. Prior to the publication (which was a handbill prepared and circulated by a citizens' committee), the employer engaged in conduct on its own in violation of Section 8(a)(3) and (I) The employer embarked on these violations hard on the union's beginning its organizing campaign Its vice-president made speeches to the employees in opposition to the union, -laid off and discharged employees, and temporarily suspended operations. The handbill told of the company's actions in plants in other areas as demonstrating the company's "nonunion" policy that this community must endorse if the plant there was to reopen. The handbill stated It is common knowledge since the beginning of Colonial that this is a nonunion company and they would not attempt to operate under a union. This policy has been tested at Spring City, Altamont and Erin. At Spring City and Altamont, the plants were closed and remained closed for several months and were reopened only after demonstrations in force of the earnest desire on the part of the community to go back to work on the basis of Colonial policy At Erin, where in excess of 360 were working, an election was held and after seventeen months no contract has been signed - employment is now 54. In view of these demonstrated facts, we believe that Colonial will continue its stated policy and the Woodbury plant will stay closed unless the employees reject the imported agitators. Common sense tells us that now is the time to pull together as a community to keep the shirt factory open.' After the handbill was circulated, the Company's vice president issued a press statement saying that it "is not responsible for this Committee's activities, publication and views" but that "it is the right of every citizen interested in community affairs to freely express himself in such matters " The Board stated. The Trial Examiner found that Friedman's [the vice president's] failure to deny the Fact Sheet's [the handbill's] representations, coupled with his suggestion that the Committee was merely performing a civic duty when it issued the Fact Sheet amounted to a tacit acknowledgment that the allegations of the Fact Sheet were true As is to be noted, the main thrust of the nondisavowals for which the employer was found culpable was the representations concerning the "nonunion" policy this employer exacted in other areas as bearing on the policy this community would have to endorse to get the plant 'Automotive Controls Corp, 165 NLRB No 43 (TXD, part IV, and cases cited ) ' An added fillip was the Board's finding in another case that in the Erin `Hamburg Shirt Corp, 156 NLRB 511, enfd Amalgamated Clothing community, a wholly owned subsidiary, acting through the same vice Workers Y N L R B, 371 F 2d 40 (C A D C ) president, had engaged in mass layoffs after a union came in Barnwell 347 F 2d 128, 137 (C A 8) enfg 148 NLRB 827, cert denied 382 U S Garment Co . 163 NLRB No 8, modified (by decree subsequent to the 904 Board's decision in Colonial) 398 F 2d 777 (C A 6) 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reopened The Trial Examiner, on whose rationale the General Counsel here apparently places specific reliance, expressed it in the following manner When A publishes an allegation that B is a chronic lawbreaker and B publishes a reply in which he fails to take issue with such allegation, and in effect, condones the dissemination thereof, the inference which will normally be drawn therefore is that B admits the truth of the allegation Thus, although the "fact sheet," in effect imputed to Colonial a policy of locking out its employees to avoid collective bargaining, which policy would constitute flagrant defiance of an Act of Congress, Friedman not only did not see fit to deny the imputation but took the position that in ascribing to Colonial such a policy and predicting that it would be employed at Woodbury, the Committee was merely performing a civic duty (Emphasis supplied ) In addition, and this was the main emphasis by the Board itself, the handbill and the company's response occurred in a context of statutory violations on the employer's own part both in the community involved and in the other communities Though the Board does not there mention the Amalgamated [Hamburg] and Henry I Siegel cases, the Colonial case has one of the elements which were found to be a basis there for the employer's duty to disavow, - antiunion conduct on the employer's part, which "paralleled" (an understatement in the Colonial case) that of the townsmen As opposed to Colonial, the instant case has the stark feature of simply this difference between it and the Monroe Auto line of cases (supra, In. 3) relied on by Respondent - namely, total silence in those cases and speaking up in the instant case Unless those cases are to be deemed as overruled, then the statement that they are "inapposite" would at least have called for some explanation of what makes the difference. If a nondisavowal through total silence concerning the publication is not an offense, as the cases hold, then what makes such nondisavowal in connection with a denial by the employer that he had anything to do with the publication bad It may be that the Monroe line of cases reflects the outermost fringe of employer immunity for community threats in single plant areas For the result, as noted in the Monroe decision itself, is to create a vacuum: the community's publication prevents the holding of a free election, and though the employer knows about it, no one can be brought to book, and a rerun of the election would involve the same futility. However, the Monroe doctrine still prevails, and unless some explanation appears for what makes the difference between total silence on the one hand and a comment in disclaimer of having had a part in the publication on the other, it would be that decision rather than Colonial which controls. In the Amalgamated [Hamburg] and Colson Corporation cases, the employer too commented in denial of having had anything to do with the townsmen's publication without disavowing the coercive part. However, there the fact that the employer came forward to deny it had any part in the publication was not thereby held to make the failure to disavow its contents bad. To the contrary, the disclaimer, while perhaps good as far as it went, was held to be not good enough in the light of other factors creating the obligation of the employer to disavow the coercive content. The only additional element here is Respondent's comment that accompanied the denial, - in the first instance that the signers of the ad "were standing for their own convictions" and in the later one that Respondent "appreciate[d] the concern of the people in the community." Insofar as this is sought to be equated with the praise the employer in Colonial bestowed on the citizen's committee's handbill as the fulfillment of a "civic duty," the answer is that they are not equal in content or in context. The net of the foregoing is that this case is not controlled by Colonial Corporation, the only authority on which the General Counsel relies, or by the Hamburg or Siegel cases, which he neither cites nor otherwise seeks to rely on, and is controlled by Monroe Auto and Marshfield Steel, supra, fn 3. Accordingly, on the basis of all of the foregoing and the entire record, I hereby state the following: CONCLUSIONS OF LAW I Respondent in disclaiming responsibility for the publication of the advertisement in the local newspaper did not thereby obligate itself to disavow its contents 2. Respondent did not by failing to disavow its content interfere with, restrain or coerce employees within the meaning of the Act. RECOMMENDED ORDER On the basis of all the foregoing and the entire record, the motion of the General Counsel for Summary Judgment is denied and that of the Respondent granted, and the complaint is dismissed. Copy with citationCopy as parenthetical citation