Tommy's Spanish Foods, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1970

187 N.L.R.B. 235 (N.L.R.B. 1970)

TOMMY'S SPANISH FOODS
Tommy's Spanish Foods, Inc. and Butchers Union
Local 551 , Amalgamated Meat Cutters and Butcher
Workmen of North America , AFL-CIO. Cases
21-CA-8758 and 21-CA-8891
December 14, 1970
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On April 22, 1970, Trial Examiner E. Don Wilson
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter,
Respondent filed exceptions to the Decision and a
supporting brief, and the Charging Party filed
memoranda in support of the 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, the exceptions, the briefs, and the entire
record in this case, and hereby adopts only those
findings, conclusions, and recommendations of the
Trial Examiner which are consistent with the follow-
ing modifications:
The Trial Examiner found that Respondent violated
Section 8(a)(1) of the Act by certain remarks and
other conduct designed to prevent the Union from
successfully organizing the employees of Respon-
dent's firm. We agree with the Trial Examiner in some
respects and disagree in others, as particularized
below.
1. We think the Trial Examiner properly conclud-
ed that the statements by Respondent's president, on
July 22 and again on August 20, that, as a matter of
principle, she would never agree in collective bargain-
ing to a union-security arrangement-a provision
which, to her stated knowledge, this Union invariably
insisted upon-constituted restraint and coercion of
the employees within the meaning of Section 8(a)(1).
We have held that such an adamant avowal of
intention to refuse to negotiate a lawful union-
security provision tends to convey to employees a
sense of futility about the value of prospective
collective bargaining and, in consequence, improperly
restrains their freedom of choice in regard to
collective representation. M. F. A. Milling Company,
170 NLRB No. 111. When considered together with
187 NLRB No. 31
235
the other violations of Section 8(a)(1) hereinafter
found, we have no doubt that this anticipatory and
unreasoned threat to refuse to meaningfully consider
the important subject of a union-security agreement
abridged employee rights guaranteed by Section
8(a)(1). Wigwam Mills, Inc., 149 NLRB 1601, enfd.
351 F.2d 591 (C.A. 7).
2. We also agree with the Trial Examiner that the
Respondent's references, in its letter of July 21, to a
potential strike and the resultant permanent replace-
ment of strikers were, in context, violative of the Act.
In that letter, Respondent first noted, "[s]o there will
be absolutely no misunderstanding," that it was
"strongly opposed" to the unionization of its employ-
ees. The letter went on to state that if the Union were
voted in, and Respondent thereafter refused to meet
its demands, the only alternative available to the
Union would be to call a strike. "If that happens," the
letter continued, "we won't close our doors even for
one day . . . and we will permanently replace those
who go on strike. The law permits us to do that and we
Will. . .."
The Trial Examiner found that these statements,
considered in conjunction with Respondent's warning
in a speech the next day that Respondent would never
agree to a union-shop provision, a provision purport-
edly always insisted upon by this Union, had the
cumulative effect of telling employees that:
... the Union would inevitably call an unfair
labor practice strike because of Respondent's bad
faith anticipated refusal to bargain about union
security, if the Union should seek such security,
and that it would permanently replace or dis-
charge unfair labor practice strikers.
We agree with this analysis. The thrust of the
Respondent's remarks surely tended to put the
employees in fear that the conflict between the
Union's assumed demand and the Respondent's
declared response could only be resolved by a strike
which would lead to the expeditious replacement of
the strikers. In our view, this forecast was more than a
discussion of the possible consequences of collective
bargaining or of the legitimate rights of an employer;
it was the announcement of a game plan, to be played
by unlawful rules , calculated to make employees look
upon collective bargaining as a one-way street leading
to unemployment. The baldly stated proposition to be
derived from the July 21 letter and the July 22
speech-that Respondent could and would perma-
nently replace even those employees who might strike
in protest of Respondent's unlawful refusal to bargain
about union security-must be considered a frustrat-
ing and inhibiting encroachment upon employee
rights. Here again, Respondent stressed the futility of
union representation, but this time in the more
exacerbated framework of spelling out a scenario in
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which a strike , certain to be caused by Respondent's
threatened unfair labor practice , would result in
permanent replacement of the strikers . Respondent
could not lawfully make permanent replacements in
the projected situation , and it had no right under
Section 8 (c) to threaten to do so . Cf. Maxville Stone
Company, 166 NLRB 888; Reed& Prince Manufactur-
ing Co., 96 NLRB 850, enfd . 205 F.2d 131 (C.A. 1).
3. The Trial Examiner found that Respondent
violated Section 8 (a)(1) of the Act, on or about July
22, by denying economic benefits to its employees
because of union-related considerations ; by impliedly
promising , on the same date, to grant such benefits if
the employees would reject the Union in a forthcom-
ing election ; and by thereafter granting the promised
benefits.
In our view , the evidence does not support the
finding that , on July 22, Respondent "refused" to
grant an increase in insurance coverage to its
employees . At best, the evidence, as fully described by
the Trial Examiner , indicates that Respondent had,
by July 22, looked into the question of improving such
coverage . There is no clear showing , however , that by
July 22 Respondent was in a position to grant-and,
accordingly , to refuse to grant-the rather compre-
hensive set of modifications of the program eventually
announced in late October , some 2 months after the
August election.
We do , however , agree with the Trial Examiner's
conclusion that the reference to proposed insurance
improvements made in the July 22 speech by
Respondent 's president was unlawfully designed to
influence the employees in the election by promising
them increased benefits in the future . We note that the
enlarged benefits had not previously been mentioned
by the Respondent to the employees , and there is
nothing in the record to support a finding that the
expanded insurance program had , by July 22, been so
definitively approved as to permit its characterization
as an existing benefit . A promise of new benefits in the
context of an antiunion speech , especially one as
forceful as that under consideration , inevitably and
improperly reminds employees of the fact that the
employer is the ultimate source of all benefits, and
further reminds them of the necessity for not
incurring the displeasure of the dispenser of such
benefits. N. L. R. B. v. Exchange Parts Co., 375 U. S.
405. We agree also with the Trial Examiner 's finding
that the actual grant of the increased benefits in
October , while union objections were pending to the
first election, was purposefully timed to further
display Respondent's power to affect the economic
well-being of its employees , and, in the circumstances,
violated Section 8 (a)(1).
4. Finally, we have concluded, after careful
deliberation of the problems presented in each
instance, that the Trial Examiner's findings of other
violations of Section 8(a)(l) should not be affirmed.
To begin with, we do not find, as the Trial Examiner
did, that Respondent's statement in its August 20
letter to employees-"We need your help-not the
tension, bitterness and possible loss of wages through
strikes that a union can bring"-constitutes a separa-
ble threat by Respondent to cause tension and
bitterness in the wake of a union victory.
In the same letter, Respondent referred to the
possibility that a strike could "break" a company, in
which case, according to Respondent, the Union
would simply look for a new company to organize
"and you look for a new job." Based on his earlier
finding that the Respondent had threatened that it
would cause a strike to be inevitable, the Trial
Examiner concluded that the quoted reference to the
necessity for seeking new jobs was an independent
violation of the Act. In context, however, we do not
consider the statement to be unlawful. The remark
about the need for new jobs is premised on the
speculated possibility that a strike could "break" the
Respondent; we presume that the employees would
understand that the Respondent did not desire and
would not actively promote such a turn of events.
Respondent also stated in this letter, "The worse
thing that could happen to you would be if you were
working for a company which was losing money,
because then you would have no job security
whatsoever." The Trial Examiner deemed this to be a
threat of loss of employment if the Union were
selected as bargaining representative. However, again
looking at the immediate context in which this
particular statement was made, we find that Respon-
dent was addressing itself to a situation in which it
might be forced to grant unreasonable increases in
wages and benefits . Against this frame of reference,
the remark about job security becomes, we think, a
lawful comment on the basic economics of running a
business.
Finally, the letter of August 20 stated that the Union
could do nothing for the employees that they could
not do for themselves or that the Respondent was not
prepared to do for them in the future. The Trial
Examiner found that this statement emphasized the
futility of joining the Union and was coercive within
the sense of Section 8(a)(1). While we recognize that
the statement may be read to imply that the
Respondent had already determined that collective
bargaining would avail the employees nothing, we
think that the language lends itself as well to the
lawful construction that Respondent had done, and
would continue to do, as much as it reasonably could
for the employees. We do not find this generalized
appeal to be separately violative of the Act.
TOMMY'S SPANISH FOODS 237
THE REMEDY
Respondent has requested that the Notice to
Employees proposed by the Trial Examiner be
modified; the Charging Party has requested that
Respondent be ordered to post such notices in both
Spanish and English. Neither request has been
opposed, both seem appropriate, and we shall grant
them both. It should be noted that the requirement in
our Order, below, that Respondent shall cease and
desist from unlawfully giving benefits to its employees
operates prospectively and does not imply that
Respondent must withdraw the increased insurance
coverage found unlawful above.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Tommy's Spanish Foods, Inc., Fullerton, California,
its agents, officers, successors, and assigns, shall:
1. Cease and desist from unlawfully promising
benefits or unlawfully giving benefits to its employ-
ees; anticipatorily refusing to bargain about union
security or other mandatory subjects of collective
bargaining; threatening permanent replacement of
any unfair labor practice strikers; telling its employ-
ees that if they select a union as their collective-
bargaining representative, a strike and loss of jobs is
inevitable; or in any like manner interfering with,
restraining, or coercing its employees in the exercise
of their rights under Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its plant, in Fullerton, California, in both
Spanish and English, copies of the attached notice
marked "Appendix."' Copies of said notice, on forms
provided by the Regional Director for Region 21,
after being duly signed by Respondent's authorized
representative, shall be posted by Respondent imme-
diately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees 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 21, in
writing, within 10 days from the date of this Order,
what steps Respondent has taken to comply herewith.
CHAIRMAN MILLER, concurring in part and dissenting
in part:
While I agree with my colleagues' dismissal of
certain of the 8(a)(1) violations found by the Trial
Examiner, my evaluation of the evidence also per-
suades me that the remainder of Respondent's actions
here found unlawful by my colleagues fall well within
the bounds of permissible conduct.
While Section 8(a)(1) broadly prohibits employer
coercion, restraint, or interference with the exercise of
Section 7 rights, Section 8(c), with equivalent breadth,
sanctions the expression of employer views, argu-
ment, or opinion, if such employer statements do not
amount to threats or promises. I cannot find that any
of the remarks condemned by my colleagues fall into
the latter categories.
The Respondent's president told employees that she
did not intend to agree to any demands which she felt
were not in their best interests , or which she opposed
as a matter of principle, and she singled out for
specific mention a union-security arrangement which,
she indicated, this Union had always sought from
other employers. The majority decision, agreeing with
the Trial Examiner, finds these statements violative of
Section 8(a)(1) as an "adamant avowal of intention to
refuse to negotiate a lawful union-security provision."
I consider such statements no more legally offensive
than a union's promise to employees that it will not
settle for less than a $1-an-hour raise. In neither case
are the respective parties declaring an intention to
refuse to bargain, as such, about the mandatory
subject; and in both cases it is evident to all concerned
that the announced positions are, inevitably, subject
to the give-and-take of the bargaining process and to
the realities of the economic framework in which the
parties will be negotiating. This is, I think, simply
lawful rhetoric, which the Act does not forbid.
The Respondent's other remarks about the possible
consequences of unionization here found
unlawful-that the Union might call a strike if its
demands were not met, and that the Respondent
legally could, and would, permanently replace those
employees who went on strike-seem to me to be
equally privileged. An employer is entitled to point
out to employees that strikes may and do occur and he
may describe the legal implications of such work
stoppages. Even were I to find that the Respondent's
July 22 statement of its position on the negotiation of
a union-security agreement was violative of Section
8(a)(1), which I do not, I would have great conceptual
difficulty in linking that statement with the Respon-
dent's references of the preceding day to the possibili-
ty of strikes and replacements, and finding, as my
colleagues do, that the Respondent effectively threat-
ened to permanently replace unfair labor practice
strikers. In view of the general context and nature of
the Respondent's remarks, and considering them
I In the event that this Order is enforced by a Judgment of a United changed to read "POSTED PURSUANT TO A JUDGMENT OF THE
States Court of Appeals, the words in the notice reading "POSTED BY UNITED STATES COURT OF APPEALS ENFORCING AN ORDER
ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be OF THE NATIONAL LABOR RELATIONS BOARD."
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
together with Respondent's stated commitment to
bargain in good faith as the law requires, I cannot find
in any of this a threat to force a strike in order to bring
about a loss of employment.
Finally, I would find that Respondent's actions with
respect to the insurance increase mentioned to
employees on July 22 and granted to them in October
were entirely proper. The evidence is undisputed that,
about a month before the petition for an election was
filed, Respondent's president had begun to explore
the possibility of expanding the employees' insurance
coverage and had contacted two insurance brokers
for this purpose. After the petition was filed, she
discussed with her employees their present level of
benefits and, in doing so, told them that she had been
preparing, prior to the advent of the Union, to
improve their insurance program. It seems clear to me
that Respondent had a perfect right to inform
employees of this fact. Just as an employer is free to
rehearse for employees the benefits which they have
previously received from the employer without a
union, in order that they may evaluate the employer's
past performance, so should an employer be permit-
ted to notify employees of efforts in progress to
improve the lot of the employees. Since it is uncon-
tradicted that the Respondent's initial effort in the
matter of increasing insurance predated the Union's
appearance on the scene and, accordingly, cannot be
characterized as simply a stratagem in response to the
threat of unionism, I would find that Respondent's
announcement of the contemplated insurance in-
crease was permitted under Section 8(c). The facts
presented in this case do not give rise to the inference
of unlawful intent drawn by the Court in N. L. R. B. v.
Exchange Parts Co., supra.
Similarly, I disagree with the conclusion of the
majority that the implementation of the insurance
increase in October constituted a further violation of
Section 8(a)(1). From all that appears, and as
discussed above, the Respondent investigated the
possibility of instituting expansion of its employee
insurance program at a time when union considera-
tions could not have played a part in that decision,
and then, 2 months after the Union lost the election,
and seemingly in the normal course of events, put into
effect the new program which it had selected. The
conception of the program having been legitimate, the
Respondent was entitled, at the end of the gestation
period, to effect a normal delivery. The General
Counsel has submitted no evidence to demonstrate
that a Caesarean section was performed in order to
influence a possible second election, as the Trial
Examiner speculated, and I would find that the
Respondent acted within its rights in implementing
the program.
In accordance with the above discussion, I would
dismiss the entire complaint.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
All our employees have the right to join or assist or
not to join or assist Butchers Union Local 551,
Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO, herein the Union. You
are free to join or not to join any union of your choice.
We do not have the right to interfere with or restrain
or coerce you in your choice and will not do so.
WE WILL NOT tell you that as a matter of
principle we will not enter into a union-security
agreement with the Union if it is certified as your
collective-bargaining agent.
WE WILL NOT tell you that if the Union wins a
future election, a strike is inevitable and that
strikers will be permanently replaced, particularly
in regard to those strikers who may strike because
of our possible unfair labor practices. We have the
duty, under the National Labor Relations Act, to
bargain in good faith with the Union about union
security and other matters, if a majority of you
select the Union as your exclusive bargaining
agent.
WE WILL NOT promise or grant you benefits to
increase the probability that you will vote against
the Union.
TOMMY'S SPANISH
FOODS, INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Eastern Columbia Building, 849 South Broad-
way, Los Angeles, California 90014, Telephone
213-688-5200.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
E. DON WILSON, Trial Examiner : Pursuant to due notice,
a hearing in this consolidated matter, was held before me
TOMMY'S SPANISH FOODS 239
on January 20, 1970 , at Los Angeles , California . The parties
fully participated . Upon charges filed by Butchers Union
Local 551 , Amalgamated Meat Cutters and Butcher
Workmen of North America , AFL-CIO, herein the Union,
on August 29, 1969 , the General Counsel of the National
Labor Relations Board , herein the Board , issued a
complaint on October 15, 1969 , alleging that Tommy's
Spanish Foods , Inc., herein Respondent , violated Section
8(a)(1) of the National Labor Relations Act, herein the Act,
and on December 3, 1969 , issued another complaint and
order consolidating cases and notice of hearing upon
another charge filed by the Union on November 5, 1969,
alleging that Respondent had further violated Section
8(a)(1) of the Act.
All parties appeared and have filed briefs which have
been considered.
Upon the entire record in the consolidated cases,
including the briefs of the parties, I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent is a California corporation engaged in the
processing, distribution, and sale of frozen foods, with its
principal office and place of business located in Fullerton,
California.
During the past calendar year in the course and conduct
of its business , it sold and shipped goods valued in excess of
$50,000, directly to customers located outside the State of
California. At all material times, it has been an employer
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION
At all material times the Union has been a labor
organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
Did Respondent by threats and promises and by the
granting of benefits shortly before resolution of objections
by the Union to an election which is pending before the
Board , violate Section 8(a)(1) of the Act? 1
B. The Facts
The record is essentially stipulated. It consists of various
letters admittedly distributed to Respondent's employees,2
by Respondent's presiden Manville, and an affidavit of
nine pages signed by Respondent's president, Katherin
Manville, on September 25, 1969,3 and it was stipulated
that if called to the stand she would testify under oath
"precisely as is contained in her affidavit." 4
I The Union seeks a bargaining order. General Counsel has not. There
is no evidence as to majority status of the Union, etc., and , particularly
because of General Counsel's silence on the matter , I find no occasion for
recommending an order for Respondent to bargain with the Union.
2 Approximately 30.
3 Hereinafter , all dates refer to 1969, unless otherwise specified.
1. Statements by Respondent that it would not
agree to any form of union security if the Union
won the election
An election was held at Respondent's plant on August
21.5 The Union lost and on August 26 filed timely
objections. On October 23, the Regional Director issued a
report, recommending that the election be set aside and
directed the holding of a second election.
On company time , on or about July 22, Manville held a
meeting with all Respondent's employees in the administra-
tive section of the office building.
Among other things, Manville said to the employees,
according to her affidavit, "I emphasized that the Union
would undoubtedly ask for a union shop if it won the
election, which would compel every employee to become a
member and continue paying dues in order to work at
Tommy's Spanish Foods, Inc. I strongly emphasized that I
was opposed to a union shop and that belonging or not
belonging to the Union should be a free choice at all times. I
told the employees that I could not, as a matter of principle,
agree to any union shop condition and that to my knowledge,
this Union invariably insisted on the union shop. It was in
connection with this specific point that I commented about the
possibility of a strike and my reaction to it in the event one was
called. " (Emphasis supplied.)
In the same affidavit, Manville admits that about 2 days
before the election she held meetings in her office with
groups of about four or five employees at a time. She told
them, among other things that Respondent would never
agree to any union demand to which, "we were opposed as
a matter of principle. This latter reference was primarily to
the union shop."
In an August 20 letter delivered to all employees,
Manville stated Respondent would "flatly reject" any
demands of the Union which Respondent did not believe
were in the best interests of Respondent or its employees.
(This obviously included union security.) She continued,
saying there was no obligation under the law to sign "any
contract which does not suit our purpe.e." She added that
all the Union's contracts have the union shop in them
which "makes it an absolute must" that every employee
join the Union. She added, "we do not intend to agree to
any contract where any employee of ours must join and pay
dues in order to work here."
Union security is a mandatory subject of collective
bargaining. The above recited facts demonstrate that
Respondent engaged in an unlawful anticipatory refusal to
bargain. Respondent told each of its employees it would
refuse to bargain with the Union with respect to union
security even if the Union were selected by the employees
as their collective-bargaining representative. I conclude
Respondent was conveying to its employees that its mind
was closed on this issue .6 The above recited facts establish a
violation of Section 8(a)(1) of the Act by Respondent. As
will be hereinafter found, Respondent told its employees
4 I consider her admissions against interest as contained in that affidavit
as binding on Respondent. I make no such finding as to self-serving
statements or explications which are not corroborated.
5 The Union's petition for an election was filed on July 15.
6 Cf. Duro Fittings Company, 121 NLRB 377
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the only way the Union could try to enforce its
bargaining demands was by a strike, and added that all
strikers would be permanently replaced.
2. Threat of loss of employment
On July 21, Respondent delivered a letter to each of its
employees stating, inter alia, "So there will be absolutely no
misunderstanding, we are strongly opposed to the union
organization of our employees . . . . If you vote this union
in you know that the only alternative available to the
Union, if we refuse to meet its demands,? is to pull you out
on strike. If that happens, we won't close our doors even for
one day and will run it with those of you who want to stay
and we will permanently replace those who go on strike. The
law permits us to do that and we will ...." (Emphasis
supplied.)
I conclude that Respondent conveyed to each of its
employees that the Union always insisted on union
security,8 and told them that Respondent had a closed
mind on such subject and would never agree to union
security and a strike was the only way the Union could
enforce its demands of any kind. I find that Respondent
conveyed to its employees that the Union would inevitably
call an unfair labor practice strike because of Respondent's
bad-faith anticipated refusal to bargain about union
security, if the Union should seek such security, and that it
would permanently replace or discharge unfair labor
practice strikers .9 It was a violation of Section 8(a)(1) of the
Act for Respondent to threaten to discharge employees
who might engage in an unfair labor practice strike,
particularly because Respondent implied such a strike was
inevitable .10 What Respondent did was to convey to its
employees that it was futile to vote for the Union because
Respondent would unlawfully refuse to bargain about
union security, and a favorable vote for the Union would
only result in an unfair labor practice strike with unlawful
discharges of striking employees resulting therefrom. This is
my conclusion. This was violative of Section 8(a)(1) of the
Act. It was a violation of Section 8(a)(1) of the Act for
Respondent to create the impression on its employees that a
favorable vote for the Union would inevitably result in a
strike with permanent replacement of even unfair labor
practice strikers. Strikes are not inevitable. Good-faith
bargaining by management and labor can make them
unlikely.ii
It is significant in my finding of an 8(a)(l) violation as
above, in this section, that in its August 20 letter to each
employee, Respondent said, "But how many times have
you heard of strikes in a non-union shop? Strikes are
unions' prime weapon. Have you ever been caught in a
strike and lost days, weeks, or months of pay, while some
union tried to bend an employer to its will? 12 The union
r Note sec . 111, B, 1, above, where it is found Respondent told the
employees that the Union always sought union security and that as a
matter of "principle" Respondent would refuse such demand
9 There is no evidence that this is so
9 There is no objective evidence that the Umon would call any kind of
strike . Respondent did not say this but implied it Respondent , without
objective evidence, implied to its employees that the Union would
inevitably strike for union security as to which Respondent had a closed
mind.
officials don't suffer-their paychecks continue, and if a
strike action breaks a company 13 they couldn' t care less.
They just look for a new company to organize andyou look
for a new job." This is an obvious implication that the
"inevitable" strike which Respondent said would take place
would result in the fact that the striking employees would
look for new jobs, i.e., they would cease to be employees of
Respondent. Aside from the fact that there is no objective
evidence of the inevitability of a strike if the Umon won the
election, neither is there any objective evidence that a
possible strike would "break the company," or that the
strikers would cease to be employees of Respondent not
subject to reinstatement upon request. Respondent told its
employees that the above "is certainly an important point
to consider in deciding how to vote." Respondent likewise
violated Section 8(a)(1) of the Act by stating in this letter,
"We need your help-not the tension , bitterness and
possible loss of wages through strikes, that a union can
bring." This was a plain statement that should the Union
win the election there would be "tension and bitterness"
between Respondent and the employees. This is certainly
not an inevitable result of a union representing an
employer's employees. Respondent indicated to its employ-
ees that the only consequences of a strike, besides
"breaking" the Respondent, would be that the striking
employees would have to look for new jobs. Such is an
unlawful threat, particularly insofar as Respondent told
them the Union would call them out on strike because
Respondent would refuse "flatly," to agree to a union-
security agreement which the Union would predictably, but
not necessarily, seek. Respondent' s self-serving statement
that its obvious threat "is not meant as a threat," merely
emphasizes that its statements were intended as a
predetermined course of unlawful action.
While discussing the employees' possible selection of a
union and as part of its threats, as hereinabove noted,
Respondent, in the same letter, told its employees, "The
worst thing that could happen to you would be if you were
working for a company which was losing money, because
then you would have no job security whatsoever."
Respondent, in violation of Section 8(a)(1) of the Act,
conveyed to its employees that if they selected the Union in
the election, Respondent would lose money, and they
would have no job security. Respondent made threats of
loss of employment "which are designed to create and
instill in their [the employees'] minds a fear of economic
suffering if they [selected] the Union." This violated
Section 8(a)(1) of the Act.14
That Respondent, not content with letters and general
speeches, threatened small groups of employees with
refusal to bargain and inevitable strikes emphasizes its
actions in threatening employees with loss of employment,
should they select the Union. Manville clearly attempted
io No objective evidence that this was so, even if Respondent
committed unfair labor practices
11 There is no credible evidence here that the Union would not bargain
in good faith.
12 There is no evidence here that the Union would have done anything
but try to have mutual good-faith bargaining.
13 Plainly implying that that was what the "inevitable" strike would do.
14 Brownwood Manufacturing Co, 149 NLRB 921.
TOMMY'S SPANISH FOODS 241
unlawfully to dominate the employees' exercise of Section 7
rights. The Respondent clearly told its employees that they
could not exercise all their Section 7 rights through
selection of the Union as bargaining representative and that
they would be permanently replaced if they exercised their
right to strike even because of Respondent's predicted
unfair labor practices. This was a violation of Section
8(a)(1) of the Act.
3. Unlawful promises of benefits and threats of
losses of benefits
It was not until July 22 that Respondent advised its
employees that it was considering and revising its employee
insurance program. Respondent said it had been doing this
when the Union filed its petition for an election. However,
though allegedly it had been formulating these plans before
the Union's petition, Respondent told the employees it
could not grant such benefits while the petition was
pending. In its letter of July 21, Respondent indicated,
contrary to fact, that the filing of the petition was an
abnormal course of events. The letter clearly indicated and
said that if the petition had not been filed and the election
had not been pending, the employees would have received
advantageous increases in vacation and hospitalization
plans. This was the same letter that advised the employees
that, if they voted for the Union, the only alternative
available to the Union, if Respondent refused to meet its
demands, was to pull the employees out on strike with
resulting loss of jobs for strikers. On July 22, at a meeting,
Manville told all the employees that she would do
something to improve Respondent's hospitalization plan.
Manville admitted that it was not until after the petition
was filed, and at this meeting, that she first spoke to the
employees "openly" regarding improvement of Respon-
dent's insurance programs.15 She told the employees that
because of the pendency of the petition or election,
Respondent could not grant the fringe benefits although
she also indicated that, before the filing of the petition,
Respondent had conferred with several insurance brokers,
consistent with its policy "to provide the best benefits we
could afford." She said that before the petition was filed,
"something was in the process of being done."
Respondent, on August 20, told its employees that the
Union could do nothing for them that they could not do for
themselves or that Respondent was not prepared to do for
them in the future. Obviously this pointed out the futility of
joining the Union for the purposes of collective bargaining
in violation of Section 8(a)(1) of the Act.16
I find, based on the entire record, that Respondent's
refusal , on or about July 22, to grant an increase in fringe
benefits was based on "union considerations." This
violated Section 8(a)(1) of the Act. There was a more than
implied promise of benefits if the employees would reject
the Union as bargaining representative. (See Sherman
Distributing Company, Inc., 171 NLRB No. 194.) Respon-
dent, here, made it plain to each of its employees that, if the
15 1 disregard her "feelings" that it was common knowledge in the plant
that the employees, prior to this time, were aware of an intention of
Respondent to increase fringe benefits This is not objective or substantial
or probative evidence
16 Respondent engaged in conscious overstatements forbidden by the
Union were not in the picture, they would receive an
increase in fringe benefits . Thus, Respondent , in violation
of Section 8(a)(1) of the Act, denied economic benefits to its
employees because of the presence of the Union, and
impliedly promised such benefits if the employees would
reject the Union. Under all the circumstances of this case,
including representation by an outstanding labor attorney,
Mr. Nagel, I find no good-faith belief that it would have
been an unfair labor practice to grant such allegedly
preplanned benefits at that time, and I find the benefits
were withheld because the Union was "in the picture." Such
decision in the circumstances of this case, should be made
without regard to whether a union is or is not "in the
picture." Respondent's decision to withhold benefits was
prompted by the Union's presence. Similarly, Respondent
impliedly promised such benefits should the employees
reject the Union. These actions were violative of Section
8(a)(1) of the Act.17
4. Respondent's increase in benefits while a
question of representation was pending
As noted, the Union lost the election on August 21, and
filed objections, timely, on August 26.
It is clear from Manville's affidavit that by interviewing
and coercing groups of four or five employees at a time, in
her office, before the election, the Respondent knew or
should have known with most able counsel, that there was
more than a possibility that it violated at least General Shoe
Corporation, 97 NLRB 499, and that a new election might
be directed.
With full knowledge that the Union's objections might
well be sustained and the election be set aside, Respondent
after the election, lost by the Union, and before the
objections were ruled on, chose to put into effect
substantial increased insurance benefits for all its employ-
ees.
Knowing that a second election was a possibility, if not a
probability, it was a violation of Section 8(a)(1) of the Act
for Respondent to grant these increased benefits immedi-
ately before a second election was directed. The insurance
increases were to be effective as of October 1.
I find that where Respondent had knowledge that
objections to an election had been filed, and Respondent
had reason to believe they might be sustained, and there
was an unresolved question concerning representation,
granting of increased benefits to employees by Respondent,
during such time, violated Section 8(a)(1) of the Act.18
I find Respondent increased the insurance benefits as a
reward for the employees voting against the Union and as
an inducement to a favorable vote in a probably directed
second election. I have considered that this Respondent
committed many unfair labor practices before direction of
the second election.19
I find no economic necessity evidenced by Respondent,
or the record, that the increase in economic benefits in the
form of increased insurance was required at that time.
Act See N LR B v. Dowel! Division of the Dow Chemical Company, 420
F 2d 480 (C.A 5).
11 American Technical Machinery Corporation, 173 NLRB No 210.
19 See 20th Century Glove Company Inc, 165 NLRB No 122
19 See Ambox Incorporated 146 NLRB 1520, 1571.
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This Respondent plainly restrained , threatened, and
coerced its employees in the exercise of their rights as
protected by Section (7) of the Act.20
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent's activities set forth in section III, above,
occurring in connection with the operations of Respondent
described in section I, above , have a close , intimate, and
substantial relation 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. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and from any other invasions of its
employees' rights under Section 7 of the Act, and take
certain affirmative action designed to effectuate the policies
of the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The Union is a labor organization within the
meaning of the Act.
3. By interfering with, restraining , and coercing its
employees in the exercise of rights guaranteed them by
Section 7 of the Act, as found above, Respondent has
engaged in , and is engaging in, unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
4. These unfair labor practices affect commerce within
the meaning of the Act.
[Recommended Order omitted from publication.]
20 See N L.R.B v C J Pearson Co, 420 F 2d 695 (C.A 1)