Thomas Industries, Inc.

National Labor Relations Board - Board Decisions

Oct 12, 1967

167 N.L.R.B. 732 (N.L.R.B. 1967)

732 DECISIONS OF NATIONAL
Thomas Products Co. Division of Thomas Industries,
Inc. and United Steelworkers of America,
AFL, CIO, Petitioner . Case I O-RC-6990 '
October 12, 1967
DECISION, ORDER , AND DIRECTION OF
SECOND ELECTION
By CHAIRMAN MCCULLOCH AND MEMBERS
BROWN ANDJENKINS
Pursuant to a Stipulation for Certification upon
Consent Election executed on March 6, 1967, an
election by secret ballot was conducted on March
31, 1967, under the direction and supervision of the
Regional Director for Region 10, among the em-
ployees in the stipulated unit. At the conclusion of
the election, the parties were furnished with a tally
of ballots which showed that of approximately 90
eligible voters, 88 cast ballots, of which 44 were for,
and 43 were against, the Petitioner. There was I
challenged ballot. The challenged ballot is sufficient
in number to affect the results of the election.
Thereafter, the Petitioner filed timely objections to
conduct affecting the results of the election.
In accordance with National Labor Relations
Board Rules and Regulations and Statements of
Procedure, Series 8, as amended, the Regional
Director conducted an investigation and, on May
12, 1967, issued and duly served upon the parties
his Report on Challenged Ballot and Objections, in
which he recommended that the challenge to the
ballot be overruled, that the ballot be opened and
counted, and that the objections be overruled in
their entirety. Thereafter, the Petitioner filed timely
exceptions to the Regional Director's recommenda-
tions as to the disposition of the objections and the
challenged ballot.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the pol-
icies of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists con-
cerning the representation of the employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate
I Section 102 69 (e), National Labor Relations Board Rules and Regula-
tions and Statements of Procedure , Series 8, as amended.
LABOR RELATIONS BOARD
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees at
the Employer's Johnson City, Tennessee,
plant, but excluding office clerical employees,
technical employees, salesmen, professional
employees, guards, and supervisors, as defined
in the Act.
5. The Regional Director found that unit em-
ployee John J. Mackley, Jr., challenged by the Peti-
tioner as being a supervisor, possessed none of the
statutory indicia of supervisory status and was ac-
cordingly eligible to vote in the election. While the
Petitioner has excepted to this finding, it has alleged
no facts which would tend to controvert the Re-
gional Director's conclusion. Since Petitioner's ex-
ceptions in this regard raise neither "substantial and
material factual issues"' nor substantial legal is-
sues, we will adopt the Regional Director's recom-
mendation that Mackley's challenged ballot be
opened and counted.
6. The Regional Director further recommended
that the 10 objections filed by the Petitioner to con-
duct affecting the election be overruled. He con-
cluded that the conduct to which Petitioner ob-
jected - primarily, a series of letters, notices, and
speeches by the Employer - amounted to nothing
more than legitimate campaign utterances which did
not exceed the permissible bounds of electioneer-
ing. In our view, the Employer's campaign, con-
sidered in its totality, substantially tended to inter-
fere with the ability of the employees to make a free
and rational choice in the election. For the reasons
discussed below, we shall order the election set
aside, if necessary, and direct that a second election
beheld.
I n the course of the week prior to the election, the
Employer mailed to each of its employees five let-
ters, posted several notices, and addressed the em-
ployees on two occasions. The five letters stressed
three themes: The likelihood of strikes and loss of
jobs if the Union should be elected; the impotence
of the Union to do anything but call a strike; and the
Employer's resolve to deal no more generously with
a union than with its employees individually. Two
of the posted notices again dealt with strikes and
loss of jobs. The two speeches embellished and ex-
panded upon these subjects. One speech was
delivered 4 days before the election by John Beam,
president of Thomas Industries, Inc., the parent
company of the Employer. This speech was mainly
addressed to the probable results of any bargaining
session in which the Employer might be forced to
engage. After Mr. Beam properly advised the em-
ployees that the Employer was not compelled by
law to agree to any benefits the Union may have
promised the employees, he went on to describe the
167 NLRB No. 106
THOMAS PRODUCTS ( O. 733
course that bargaining would likely take. In so do-
ing, he depicted a "horse trading" process in which
the Union would begin by asking for concessions
which would strengthen the position of the Union,
such as dues-checkoff agreement, a bulletin board,
and access to the plant. The Employer might be
willing to agree to such terms, Beam said, but the
nature of "horse trading" required that the Union
would then have to offer some consideration in
exchange. Beam stated, "Now, ask yourselves the
question, 'What has the Union got that they can
give us'?' The answer is that they can only give us
something you already have." Beam went on at
some length to embroider this approach - that he
was perfectly willing to exact from the Union, in
trade for security arrangements that it would
probably demand, a diminution in presently existing
employee benefits.
Coupled with the similar messages conveyed in
the barrage of letters currently being mailed by the
Employer (e.g., March 27 - "This company is
never going to give anything to an outsider that we
won't give to our employees"; March 28 -
"Anything you get you must get for yourself. All
[the Petitioner] can do is tell you to go on strike."),
this description of the kind of bargaining that the
Employer intended to engage in carried a clear im-
plication that selection of a union would be a futile
- and perhaps dangerous - act.
The repeated references to strikes in the letters
and speeches served to reinforce the Employer's
explicit position that the employees would gain
nothing by organizing . In outlining the advantages
and disadvantages of unionization, an employer is
not prohibited from pointing out that the strike is a
union's chief economic lever, and that strike action
might entail certain consequences. But the more the
employer persists in referring to strikes and what
they might entail - replacement, violence, unem-
ployment, walking picket lines, unpaid bills - the
more the employee is likely to believe that the em-
ployer has already determined to adopt an in-
transigent bargaining stance which will force em-
ployees to strike in order to gain any benefits. An
employer who campaigns on the theory that a strike
is an inevitable result of unionization leaves himself
open to the construction that he does not intend to
bargain in any meaningful sense. When the em-
ployer additionally warns that he will never grant to
the union benefits that he would not grant without
a union, and, indeed, that he stands ready to de-
mand a reduction in employee benefits in exchange
for security measures which the union might
request, the employees can well believe that the em-
ployer has decided in advance to refuse to accord to
the union in bargaining the good faith and open
mind that the law requires.
The Employer's campaign was not, however,
restricted to repeated allusions to strikes and to a
concept of bargaining which might even result in a
decrease in existing employee benefits. Other cam-
paign utterances put the employees on notice that
selection of the Union might well jeopardize the
existence of their jobs and of the plant which pro-
vided those jobs. In his speech of March 27,
4 days before the election, Beam , the president
of Thomas Industries, Inc., told the employees of
Thomas Products Co., that the operations of the
division had "not been successful" and that he had
brought in General Manager Snyder to "save" the
plant. Beam was "frankly" disappointed in the
results of the past year, but he wanted the plant to
succeed. He then pointed out to the employees that
there "have been plants in Thomas Industries that
have not succeeded." Beam gave an account of
three such plants at which he was forced to ter-
minate operations, one of which was closed after
operating the plant "through one union turmoil after
another." Finally, he cautioned employees that "I
am a business man and I have to make business
decisions."
Power can persuade, and substantial power can
persuade substantially. When an employer who
controls a multiplant operation stands before em-
ployees and verbally juggles the factories, blithely
reminding them of his ability to close this, that, or
the other one, it is a display of enormous economic
power, calculated to put the fear of unemployment
in the minds of employees. Such a demonstration is
unnecessary to a reasoned discussion of the pros
and cons of unionism and can only tend to make
employees believe that, should they incur the em-
ployer's displeasure, he could easily find a formida-
ble way to express his dissatisfaction. The speech
given by General Manager Snyder on the day be-
fore the election rang changes on this same theme.
He addressed himself more specifically to the
possiblity of strikes and the consequent loss of
customers, and related a "fairy tale" of a once "hap-
py" plant in Pennsylvania which now stood empty
because of the advent of the union. When com-
ments such as these are delivered by men in posi-
tions to affect permanently the lives of the listeners,
they are not lightly received. There may have been
no direct, unqualified threats to close the plant. We
believe that expressions of a willingness to do so, if
necessary, and prophecies that the necessity might
well arise, constitute coercion sufficient to pollute
the atmosphere of an election and to render the em-
ployees incapable of making a free choice.
We conclude that the Employer's campaign,
keyed to threats that it would refuse to bargain in
good faith, that it might bargain so as to decrease
employee benefits, that the only real result of the
election would be a strike and that the strike might
well cause the closing of the plant, materially inter-
fered with the election.2
We therefore sustain objections I through 7 and
d Dal-Tex Optical Company, Inc , 137 NLRB 1782
734 DECISIONS OF NATIONAL
10. As we have also sustained the Regional
Director's ruling on the challenged ballot, we shall
order the Regional Director to open and count the
ballot and prepare a revised tally. In the event that
the revised tally shows that the Petitioner has not
received a majority of the ballots cast, the election
will be set aside, and a second election held.
ORDER
It is hereby ordered that, as part of the in-
vestigation to ascertain representatives for the pur-
poses of collective bargaining among employees of
Thomas Products Co. Division of Thomas Indus-
tries, Inc., Johnson City, Tennessee, in the unit set
8 An election eligibility list, containing the names and addresses of all
the eligible voters, must be filed by the Employer with the Regional
Director for Region 10 within 7 days after the date of issuance of the
Notice of Second Election by the Regional Director . The Regional
Director shall make the list available to all parties to the election No ex-
LABOR RELATIONS BOARD
forth in the Stipulation for Certification upon Con-
sent Election, the Regional Director shall, within 10
days from the date of this Order, open and count the
ballot of John J. Mackley, Jr., prepare and cause to
be served upon the parties a revised tally of ballots,
and issue a Certification of Representative or con-
duct a new election, as may be appropriate pursuant
to this Decision and according to the results shown
by the revised tally.
IT IS HEREBY FURTHER ORDERED that, insofar as
required by the procedure described in this Order,
the election of March 31, 1967, among the unit of
employees hereinbefore set out, be, and it hereby is,
set aside.
[Direction of Second Election 3 omitted from
publication. ]
tension of time to file this list shall be granted by the Regional Director ex-
cept in extraordinary circumstances Failure to comply with this require-
ment shall be grounds for setting aside the election whenever proper ob-
jections are filed. Excelsior Underwear Inc., 156 N LRB 1236