Thomas Industries, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1969

175 N.L.R.B. 776 (N.L.R.B. 1969)

776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thomas Products Company, Division of Thomas
Industries , Inc. and United Steelworkers of
America , AFL-CIO. Cases 10-CA-6871,
10-CA-6960, l0-CA-7029, and 10-CA-6908
April 30, 1969
DECISION AND ORDER
By CHAIRMAN M'CCULLOCH AND MEMBERS
BROWN AND JENKINS
On January 15, 1969, Trial Examiner Lowell
Goerlich issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
certain unfair labor practices within the meaning of
the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial
Examiner also found that Respondent had not
engaged in certain other unfair labor practices
alleged in the complaint and recommended that such
allegations be dismissed. Thereafter, Respondent
filed exceptions to the Decision and a supporting
brief, and the General Counsel filed cross-exceptions'
to the Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
Act, 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, the exceptions,
cross-exceptions, briefs, and the entire record in this
case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Respondent, Thomas Products
Company, Division of Thomas Industries, Inc.,
Johnson City, Tennessee, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
'Respondent ' s motion to dismiss the General Counsel's cross-exceptions
is hereby denied as lacking in merit.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Trial Examiner : The charges in
Cases 10-CA-6908, 10-CA-6871, 10-CA-6960, and
10-CA-7029 were filed respectively on April 5, March 9,
May 22, and July 21, 1967. The complaint in Case
10-CA-6908 was issued on December 13, 1967, naming
Thomas Products Company, Division of Thomas
Industries , Inc., as the Respondent. On January 5, 1968,
an order consolidating cases, complaint and notice of
hearing was issued in Cases 10-CA-6871, 10-CA-6960,
10-CA-7029, and 10-CA-6908 also naming as Respondent,
Thomas Products Company, Division of Thomas
Industries, Inc. The complaint in Case 10-CA-6908.
alleged that the employer had violated Section 8( a)(1) and
(5) of the National Labor Relations Act, Series 8, as
amended, herein called the Act, and the complaint in
Cases 10-CA-6871, 10-CA-6960 , and 10-CA-7029 alleged
that the Respondent had engaged in unfair labor practices
in violation of Section 8(a)(1) and (3) of the Act. The
Respondent filed timely answers denying that it had
engaged in or was engaging in the unfair labor practices
alleged.
The cases came on for hearing on May 21, 22, 23, and
24, July 8, 9, and 10, October 3, and November 13, 1968,
at Johnson City, Tennessee. During the hearing, with the
approval of the Trial Examiner, the parties settled the
issues involved in Cases 10-CA-6871, 10-CA-6960, and
10-CA-7029 and the charges were withdrawn and the
complaint as to these cases was dismissed. Case
10-CA-6908 was submitted for decision. Each party was
afforded a full opportunity to be heard, to call, examine,
and cross-examine witnesses , to argue orally on the
record, and to submit proposed findings of fact and
conclusions of law, and to file briefs.'
The issue before the Trial Examiner involves the Bernel
Foam doctrine.'
Upon the whole record and upon his observation of the
witnesses , the Trial Examiner makes the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is and has been at all times material herein
a Tennessee corporation with its principal office and place
of business located at Johnson City, Tennessee , where it is
engaged in the manufacture and sale of paint rollers.
Respondent , during the past calendar year , which period is
representative of all times material herein, sold and
shipped finished products valued in excess of $50,000
directly to customers located outside the State of
Tennessee . The Trial Examiner finds , as is admitted by
the Respondent, that at all times material herein the
Respondent was an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO, the
Charging Party, is now and has been at all times material
herein a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
As violations of Section 8(a)(1) of the Act, the General
Counsel alleged in his complaint:
The only brief received by the Trial Examiner was from the counsel for
the General Counsel.
'Berne! Foam Products Co.. 146 NLRB 1277.
175 NLRB No. 126
THOMAS PRODUCTS COMPANY
Respondent, by its supervisors and agents, General
Manager Clifton Snyder, in letters mailed to its
employees dated March 24, 25, 27, 28 and 29, 1967, in
two bulletins posted in and about the vicinity of its
plant, on or about March 23, 1967, and in speeches to
its employees on or about March 30, 1967, in and
about the vicinity of its plant, and President John G.
Beam, in speeches to its employees on or about March
27, 1967, in and about the vicinity of its plant,
threatened its employees 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.
The sole evidence offered in support of these allegations
was the report on challenged ballots and objections filed
by the Regional Director, Region 10, in Case I0-RC-6990
to which was attached, as appendixes, the letters,
bulletins, and speeches referred to in the General
Counsel's complaint. The parties stipulated:
MR. WATSON: Mr. Batson, Mr. Clark and myself,
and Mr. Crawford,' discussed a stipulation of facts with
respect to General Counsel's Exhibit No 2, the exhibits
attached to the Regional Director's Report, which set
out the speeches made by Messrs Snyder & Beam, and
we would stipulate now that those were in fact the
speeches which were delivered by those two individuals.
And the facts as found in the report by the Regional
Director, we will stipulate to those facts And to the
appendices attached to his report.
The Board's Decision (167 NLRB No. 106) on the
Union's exceptions to the Regional Director's
Recommendations in Case 10-RC-6990 in which he
overruled the Union's objections to conduct affecting the
result of the election held on March 31, 1967, and the
Board's Decision (169 NLRB No 55) denying the
employer's motion for reconsideration were made a part
of the record.
In considering the Union's exceptions to the Regional
Director's report, the Board rejected the Regional
Director's recommendation that "the objections be
overruled in their entirety" and directed a second election.
The Board thoroughly analyzed the effect of the election
propaganda which was attached to the Regional Director's
report and which was the same and only evidence
submitted by the General Counsel in this hearing to
support the above noted allegations of violations of
Section 8(a)(1) of the Act. The Board viewed the
Respondent's election propaganda, referred to above (167
NLRB No. 106), in this light
In the course of the week prior to the election, the
Employer mailed to each of its employees five letters,
posted several notices, and addressed the employees 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 expanded 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
'Messrs Watson and Clark represented the Respondent , Mr Batson, the
General Counsel ; and Mr . Crawford , the Charging Party
777
session in which the Employer might be forced to
engage. After Mr. Beam properly advised the
employees 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 course that
bargaining would likely take. In so doing, 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 a 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 implication 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, unemployment, walking
picket lines, unpaid bills - the more the employee is
likely to believe that the employer has already
determined to adopt an intransigent bargaining stance
which will force employees 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 employer 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 demand a reduction in employee benefits in exchange
for security measures which the union might request,
the employees can well believe that the employer 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 campaign
utterances put the employees on notice that selection of
the Union might well jeopardize the existence of their
jobs and of the plant which provided 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
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 terminate 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 employees 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 employer's displeasure, he could easily find a
formidable way . to express his dissatisfaction. The
speech given by General Manager Snyder on the day
before the election rang changes on this same theme.
He addressed himself more specifically to the possibility
of strikes and the consequent loss of customers, and
related a "fairy tale" of a once "happy" plant in
Pennsylvania which now stood empty because of the
advent of the Union. When comments such as these are
delivered by men in positions 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
employees 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 interfered with the
election.'
'Dal-Tex Optical Company , Inc., 137 NLRB 1782.
In McEwen Manufacturing Company and Washington
Industries, Inc., 172 NLRB No. 99, the Board held that
the Trial Examiner erred "in considering himself bound
by, and relying upon , the Board's findings sustaining
objections in the prior representation proceeding" and in
concluding therefrom that an employer's remarks were
violative of Section 8(a)(1) of the Act. The Board opined
"[ilt is well settled that the Board ' s findings and
conclusions with respect to conduct alleged as
objectionable in a representation proceeding are not
binding upon the Trial Examiner in a subsequent hearing
where such conduct is alleged as an unfair labor practice,
since the issues are different in the two types of
proceedings." Mindful of the rule announced in the
McEwen case , the Trial Examiner has independently
examined and considered the communications of the
Respondent which were offered by the General Counsel in
this proceeding . Having considered such communications
together with the entire record in this case, the Trial
Examiner concurs with the Board in its analysis and
conclusions as to the import of these communications and
adopts them as the Trial Examiner 's findings of fact and
conclusions in respect to such communications. Based
upon these findings of fact and conclusions , the Trial
Examiner finds that the Employer 's campaign , keyed as it
was to threats that it would refuse to bargain in good
faith , that it might bargain so as to decrease employee
benefits , that the only result of the election would be a
strike , and that the strike might well cause a closing of
the plant , interfered with , restrained , and coerced
employees in their rights guaranteed by Section 7 of the
Act and constituted a violation of Section 8(a)(1) of the
Act.'
It is the further opinion of the Trial Examiner that the
Section 8(a)(1) violations herein found under Board
precedent are insufficient to support a violation of Section
8(a)(5) of the Act or to justify a bargaining order remedy.
See Hercules Packing Corporation , 163 NLRB No. 35;
Grafton Boat Co ., Inc., 173 NLRB No. 150. Cf.
N.L.R.B . v. Ben Duthler , Inc., 395 F.2d 28 (C.A. 6).
Accordingly , those allegations in the complaint charging a
violation of Section 8 (a)(5) of the Act are dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations
described in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. RECOMMENDED REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) of the Act, the Trial Examiner recommends that it
cease and desist therefrom and take the specific
affirmative action , described below , designed to effectuate
the policies of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing
employees in the exercise of their rights guaranteed by
Section 7 of the Act, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act.
4. The aforesaid unfair labor practices are unfair labor
'The Respondent filed a motion for reconsideration of the Board's
Decision, Order, and Direction of Second Election which the Board
considered, 169 NLRB No. 55; the Board said ". . . we can conceive of no
undeveloped facts or circumstances which could have substantially
mitigated the coercive thrust of the Employer 's propaganda , especially the
remarks made in speeches as discussed in our earlier Decision ." The Trial
Examiner has considered all the evidence offered by the Respondent in this
hearing.
'In view of his dismissal of the 8(aX5) allegations , the Trial Examiner
deems it unnecessary to pass on the issues related to the Union 's majority
status.
THOMAS PRODUCTS COMPANY
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case, it is
recommended that Respondent , Thomas Products
Company, Division of Thomas Industries , Inc., of
Johnson City , Tennessee , its officers , agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Threatening , in the event the employees choose the
Union as their bargaining representative , that it will refuse
to bargain in good faith , and might bargain so as to
decrease employee benefits ; that the only real result of an
election would be a strike ; and that a strike might well
cause the closing of the plant.
(b) In any like or related manner, interfering with,
restraining , or coercing its employees in the exercise of
their rights to self-organization , to form labor
organizations , to join or assist United Steelworkers of
America , AFL-CIO, or any other labor organization, to
bargain through representatives of their own choosing and
to engage in any other concerted activities for the purpose
of collective bargaining or other mutual aid or protection
or to refrain from any and all such activities.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Post at its Johnson City plant, copies of the
attached notice marked "Appendix."` Copies of said
notice , on forms provided by the Regional Director for
Region 10 , after being duly signed by the Respondent's
representative , shall be posted by it 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 for Region 10, in
writing , within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.'
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith."
779
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act other
than those found in this Decision.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner 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:
WE WILL NOT threaten, if the United Steelworkers of
America, AFL-CIO, or any other union becomes the
bargaining representative of our employees, that we will
refuse to bargain in good faith, or that we might
bargain so as to decrease employee benefits.
WE WILL NOT threaten that the only real result of an
election will be a strike, and that a strike might well
cause the closing of the plant.
The Act gives all employees these rights:
To organize themselves
To form and join or help unions
To bargain as a group through representatives they
choose
To act together for collective bargaining or other
mutual aid or protection
To refuse to do any or all of these things
WE WILL NOT do anything that interferes with these
rights.
All of you are free to become or remain , or refrain
from becoming or remaining , members of any labor
organization including the United Steelworkers of
America, AFL-CIO.
THOMAS PRODUCTS
COMPANY, DIVISION OF
THOMAS INDUSTRIES, 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., Room 701, Atlanta, Georgia 30308,
Telephone 404-526-5760.