Van Leer Containers, Inc.

National Labor Relations Board - Board Decisions

May 18, 1990

298 N.L.R.B. 600 (N.L.R.B. 1990)

600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Van Leer Containers , Inc. and United Steelworkers
of America , AFL-CIO. Case 15-CA-9720
May 18, 1990
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On August 21, 1989, Administrative Law Judge
George F. Mclnerny issued the attached supple-
mental decision. The Respondent filed exceptions
and a supporting brief. The Union filed a brief in
opposition to the Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Van Leer
' The Respondent has excepted to some of the judge's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd . 188 F 2d 362 (3d Cir. 1951)
We have carefully examined the record and find no basis for reversing
the findings
The judge found that the Respondent inspired a newspaper article, that
this article was designed to intimidate voters, and that the Respondent
supplied information for the article beyond the quoted portions. Al-
though we agree with the judge 's conclusion that the Union's letter of
November 30, 1984, was prompted by this article , we do not rely on his
finding that the article was itself instigated by the Respondent
2 We affirm the judge 's conclusion that the Respondent's Objection 2 is
without merit , on the basis that the evidence presented at the hearing
fails to support the Respondent 's contention that Union Representative
Coker engaged in coercive conduct First, we have affirmed the judge's
crediting of Coker's testimony establishing that he did not make the state-
ments the Respondent claims were made at a preelection union meeting.
We also affirm the judge's conclusion that the Union 's November 30,
1984 letter was not coercive . In doing so , as noted above , we do not rely
on his finding that the Respondent instigated the newspaper article which
prompted this letter Further, we do not rely on his discussion of the
effect of the letter on employees , because "the subjective reactions of em-
ployees are irrelevant to the question of whether or not there was objec-
tionable conduct " Picoma Industries, 296 NLRB 498 , 499 (1989). We rely
instead on our conclusion that the letter, read as a whole, provides an
unambiguous explanation of the Union 's legal obligation to represent only
employees who have selected it as their representative-an explanation
given, not gratuitously , but in response to questions raised by communi-
cations to employees from sources other than the Union . Finally, in view
of our affirmance of the judge 's crediting Coker's testimony concerning
his statements at the preelection meeting and our conclusion with respect
to the Union 's November 30 letter, we find the circumstances here distin-
guishable from those in A. Rebello Excavating Contractors, 219 NLRB 329
(1975), United Broadcasting Co. of New York, 248 NLRB 403 (1980), and
Willey's Express, 275 NLRB 631 (1985), on which the Respondent primar-
ily relies.
Containers, Inc., Canton, Mississippi, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Charlotte N. White, Esq., for the General Counsel.
Robert P. Casey, Esq. (Murphy, Smith & Polk), of Chica-
go, Illinois, for the Respondent Employer.
Frank G. Shuler, Jr., Esq. (Cooper, Mitch, Crawford, Kuv-
kendall & Whatley), of Birmingham, Alabama, for the
Charging Party Petitioner.
SUPPLEMENTAL DECISION ON REMAND
I. BACKGROUND: THE REPRESENTATION CASE
GEORGE F. MCINERNY, Administrative Law Judge.
Van Leer Containers, Inc. (the Respondent or the Em-
ployer) is a Delaware corporation which maintains a
plant in Canton, Mississippi, where it is engaged in the
manufacture of steel cans and containers.' This plant had
been owned by Inland Steel Container Co. (Inland). The
latter company also maintained a plant in New Orleans,
Louisiana. In 1983, the Regional Director for Region 15
(Regional Director) issued a complaint against Inland al-
leging refusals to bargain contrary to the provisions of
the National Labor Relations Act (the Act), including
transfer of work to the Canton, Mississippi facility with-
out proper bargaining with the United Steelworkers of
America (the Union).2 After the issuance of the com-
plaint, and before any decision on the complaint was en-
tered by an administrative law judge or the Board, the
Canton plant was sold by Inland to the Employer here,
Van Leer Containers, Inc.3
Later, on October 10, 1984, and while the case was
still pending, the International Union filed a petition in
Case 15-RC-7126, attempting to obtain an election for a
unit of employees in a unit described as follows:
All production and maintenance employees em-
ployed by the Employer at its Canton, Mississippi
location including truck driver.
Excluded: Office clerical,' technical and profes-
sional employees, guards, watchmen, group leaders
and supervisors as defined in the Act.4
An election was conducted among the employees in
this unit by Region 15 on December 4, 1984, which re-
sulted in 52 votes for the Union and 34 votes against the
Union. The Employer filed a number of objections to
conduct affecting the results of the election, including, as
i All of this background material is taken from the record in this case
and consists of undisputed facts or citations from opinions of the National
Labor Relations Board (the Board), or the United States Court of Ap-
peals for the Seventh Circuit (the Court).
2 Case l5-CA-8983. The Union in that case is a local, No. 2179, of the
Union in this case, the International. I will refer to both as "the Union"
here.
a There were no allegations by the Regional Director that this sale vio-
lated the Act, or that Van Leer was related to Inland as an alter ego, or
a single employer, single-integrated enterprise, successor employer, or
otherwise. The Inland Steel case eventually was dismissed by the Board
Inland Steel Container Co., 275 NLRB 929 (1985), affil. 822 F.2d 559 (5th
Cir 1987)
fl There has been no question about the appropriateness of this unit
298 NLRB No. 82
VAN LEER CONTAINERS
Objection 2, the allegation that "During the critical
period, agents and representatives of the Union threat-
ened and coerced employees by letters and statements
that the Union would continue its efforts on behalf of an-
other group of employees represented employees at the
Employer's plant unless the Employer's employees se-
lected the Union as their bargaining representative."
In a report on objections dated January 16, 1985, the
Regional Director described the basis for the Employer's
Objection 2 as "that Petitioner threatened the Employ-
er's employees that if it lost the election at the Employ-
er's facility in Canton, Mississippi Petitioner would at-
tempt, through the unfair labor practice charge in Inland
Steel Container Co., Case 15-CA-8983, to either have
the employees' jobs in Canton transferred back to New
Orleans [where the Inland Steel plant was shut down] or
in the alternative, utilize its efforts to have laid-off em-
ployees in New Orleans replace those at the Employer's
facility in Canton, as part of the remedy in Case 15-CA-
8983. The Employer contends that it was the Petitioner
who referred employees to this unfair labor practice
charge, and theorizes that this alleged conduct by Peti-
tioner amounts to a coercive threat of job loss unless the
Canton employees select Petitioner as their representa-
tive, and thereby obtain Petitioner's support and efforts
on their behalf."
The Employer submitted several affidavits from em-
ployees and a letter from union representative Hubert
Coker dated November 30, 1984, in support of its posi-
tion on this objection.
On the basis of this evidence, together with an affida-
vit from Coker and an analysis of campaign materials
distributed by the Employer, as well as Coker's Novem-
ber 30 letter, the Regional Director found "no substantial
or material issues raised by Employer's Objection No.
2," and overruled the objection. Noting that the Employ-
er had not specifically requested a hearing in this matter,
the ;Regional Director recommended that there was no
basis for the conduct of a hearing on these objections.
The Regional Director's recommendations were adopt-
ed by the Board in an unpublished decision dated June
21, 1985, ands the Union was certified as the statutory
bargaining representative of the employees in the above-
described unit.
III. BACKGROUND: THE UNFAIR LABOR
PRACTICE CASE
Having thus been certified by the Board , the Union re-
quested the Employer to bargain collectively in regard
to wages and other terms and conditions of employment.
The Employer refused , whereupon the Union filed the
charge in the instant case, 15-CA-9720, on July 18, 1985.
On August 1, 1985 , the Acting Regional Director issued
a complaint in the case, alleging an unlawful refusal to
bargain . The Employer, now also the Respondent, filed a
timely answer, in which it admitted that it refused to
"bargain with the Union in order to obtain judicial
review of the certification dated June 15, 1985."
5 One member would have directed a hearing on Objection 2 I note
that the Employer's exceptions to the Regional Director's report and ac-
companying brief, are not included in the record of this case
601
On August 27, 1985, the General Counsel filed with
the Board a Motion to Transfer and Continue the Case
before the Board, and Motion for Summary Judgment.
On September 18, 1985, the Board ordered that the case
be transferred to and continued before it in Washington,
D.C.
The Respondent then, on October 15, 1985, filed with
the Board a response to the General Counsel's Motion
for Summary Judgment. The Board in a decision dated
April 30, 1986,6 found no merit in the Respondent's con-
tention that, in the representation case, the Board im-
properly relied on the Regional Director's ex parte in-
vestigation of the Employer's objections to conduct of-,
fecting the results of the election. The Board response to
this was that, "in evaluating the objections, the Regional
Director assumed the truth of the Company's evidence
offered in support of its objections rather than relying on
his 'own evaluation of controverted facts gathered from
the investigation. Accordingly, he properly denied a
hearing on the objections. Cf. Anchor Inns v. NLRB, 644
F.2D 292 (3rd Cir. 1981)." The Board granted the Gen-
eral Counsel's Motion for Summary Judgment, and or-
dered Respondent to bargain with the Union.
III. THE REMAND
As it had stated was its intention, the Respondent
sought judicial review of the Board's decision in the
United States Court of Appeals for the Seventh Circuit.
This court concluded7 that the allegations by the Em-
ployer (referred to in the Court's decision as Van Leer)
raised substantial and material factual issues; that Van
Leer had proffered a prima face case of coercion based
on statements attributed to a union official8 which
would, if accepted as true, would warrant setting aside
the election; and that Van Leer was entitled to an evi-
dentiary hearing on Objection 2. The matter thereupon
was remanded to the Board for such evidentiary hearing.
FINDINGS OF FACT
The case was further remanded by the Board to the
Regional Director to arrange and issue notice of a hear-
ing directed to be held before an administrative law
judge designated by the chief administrative law judge,
for the limited purpose stated in the court's opinion. The
judge was ordered, on the conclusion of the hearing, to
prepare acid serve on the parties a decision containing
findings of fact, conclusions of law, and recommenda-
tions.
Pursuant to this order, I was selected to hear this
matter. A hearing was arranged by the Regional Direc-
tor for February 1, 1989, in Canton, Mississippi, at which
all parties were represented by counsel, and had the op-
portunity to present testimony and documentary evi-
6 279 NLRB 675 (1986).
7 841 F.2d 779 (7th Car 1988).
9 Based on affidavits stating that Industrial Union Department Repre-
sentative Hubert Coker had told employees in a letter dated November
30, 1984, and at a union meeting, that if the Union lost the election at
Canton, the Union would support the New Orleans workers involved in
the Inland Steel Container case, thereby endangering the jobs of Canton
employees
602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dence, to examine and cross-examine witnesses, to make
motions and requests, and to argue orally. At the conclu-
sion of the hearing, the Union and the Company filed
briefs, which have been carefully considered.
Based on the entire record, and on my observations of
the witnesses, and their demeanor, I make the following
findings of fact.
As I indicated at the hearing, I infer and find that the
question of the status of the New Orleans case, and the
possibility that, as a result of that case, the former em-
ployees of the Inland Steel Container plant in New Orle-
ans would becoming to Canton, Mississippi, to take the
jobs of the Canton employees, was a matter of concern
to those Canton employees in the period before the elec-
tion on December 4, 1984.
The next question is, how did this concern arise? The
witnesses presented by the Company indicate that they
were concerned because of Hubert Coker's response to a
question at a Union meeting before the election9 and/or
Coker's letter of November 30.10 Coker himself testified,
I believe candidly and credibly, that he, as a representa-
tive of the Industrial Union Department of the AFL-
CIO, was concerned primarily with organizing. Howev-
er, employees had come to him with copies of docu-
ments posted in the plant. These were copies of charges
in the Inland Steel Container case (see above, 15-CA-
8983), the complaint issued in that case, and excerpts
from the General Counsel's brief to the administrative
law judge in that case. This last document bears a date
received stamp from the Company's former law firm.11
Early in that last week before the election, at a Union
meeting on November 27, Coker was asked by an em-
ployee if people from New Orleans could be transferred
"up here." According to employee Robert Earl Wil-
liams , called as a witness by the Company, Coker replied
that if the Canton employees "did not vote for the
Union, or whatever that they would be sole-bound, obli-
gated, to the peoples out of New Orleans-and then the
people could come to Canton-." I had some problems
with Williams' memory, since he also identified Coker's
November 30 letter as saying the same thing. Coker him-
self denied that he told the employees at that meeting
that the New Orleans workers could get the Canton em-
ployees' jobs if they wanted. Rather, Coker said he told
the meeting on the 27th that the New Orleans employees
had already been asked and they had declined. Only one
employee from New Orleans had come up to Canton but
he had looked around and returned to New Orleans,
having decided he did not want to come up to Canton.
This response is consistent with later testimony about the
New Orleans employees. I credit Coker's account of this
9 Testimony of Robert Earl Williams.
'o Testimony of Roger Dewitt Ray, Cleveland Blount, and Donald W.
Nall
11 There was no objection to the testimony of Coker describing the
manner of his receiving the documents, or to the receipt of the docu-
ments themselves . Coker said he was given the documents sometime in
November. Employee Leon Abslom McElroy, a witness for the Compa-
ny, testified that he had seen copies of the complaint and brief on the
bulletin board at the plant, but was equivocal about when he saw them.
On the basis of this evidence, I find that the documents were posted by
the Company in the plant sometime before the last week before the elec-
tion, the week of November 26.
meeting over that of Williams which I found vague as
well as uncorroborated.
I do think that the fact that this question was raised at
that meeting on the 27th shows that at least one person
was aware before the meeting of this real or imagined
threat that the New Orleans workers might, as a result of
their case against Inland Steel Container, come up to
take the jobs of the Canton employees.12 There being no
evidence that the question had come up before this time,
and since the only evidence concerning the fact that the
problem existed at all was the posting of documents by
the Company on at least one bulletin board in the plant,
I can only assume and find that the question and the con-
cern it engendered, was raised by the Company.
This finding is consistent with and supported by the
next incident concerning the New Orleans problem. On
November 29, an article in the Madison County
Herald13 discussed in some detail the possible impact of
the New Orleans case on the Company's Canton oper-
ations.14 It is evident from a reading of this article that
the information contained therein came from "Walt
Reilly, vice president, Human Relations, for" Van Leer
Containers, Inc. of Chicago, IL." Describing the Inland
Steel Container case discussed above, the article states,
inter alia. "It is a possibility that the Canton operation
could be shut down completely or that the 45 local plant
workers could be replaced by workers from New Orle-
ans." "The National Labor Relations Board, an agent
[sic] of the U.S Government, is asking the judge to order
Inland Steel to restore operations at the New Orleans lo-
cation or to give jobs to the New Orleans workers in the
Canton plant, according to Mr. Reilly.... If the judge
rules . . . them he could demand that Van Leer remedy
the situation that Inland created. He could instruct this
be done by reopening the New Orleans plant or by
hiring some 45 workers from New Orleans at the Canton
plant, according to Reilly.... According to Mr. Reilly,
Van Leer would not need more than one drum plant in
the southern district, which serve states from Texas to
Florida, and the Canton facility could not afford to add
45 more workers to its present operations.
The reporter concluded this article by asking "How
would a vote by the Canton workers to join the game
labor union affect their job in Canton would they be
guaranteed a job here? or, if the plant moved to New
Orleans would they be offered a job in New Orleans?
The judges [sic] decision can be one that will not only
affect the former Inland Steel workers in New Orleans,
but now some 55 Canton employees."
It seems clear to me that this article was prompted by
the Company with "facts" supplied by 10' company's,
and included in an edition of a county newspaper only 5
days before the election. The information in the article
even beyond the quotes from Walt Reilly, must have
come from Reilly or some other company source. If ever
a statement was designed to produce fear and uncertain-
12 After the meeting, of course, all of these attending would had been
aware of some kind of problem.
12 Canton is the county seat of Madison County
14 This newspaper article was offered and received as a company ex-
hibit.
VAN LEER CONTAINERS 603
ty in the minds of voters , whether simple or sophisticat-
ed, it was this one.
Faced with this article , Coker decided he had to coun-
teract it . He prepared and sent out a letter , dated No-
vember 30, to all employees in which he attempted to
analyze the various facets of the situations facing the
voters in Canton, in the light of the pending New Orle-
ans decision . The critical paragraph in this letter, the
fifth, reads as follows:
If a majority of the employees vote No on Decem-
ber 4, then we will not be legally bound by law to
represent the employees in Canton , Mississippi.
Therefore , our sole obligation will be to the Union
members in New Orleans should the Judge rule in
the Steelworkers favor.
I stated at the hearing that I found this paragraph
somewhat equivocal. Certainly several employees did as
well. Robert Earl Williams said it was the same as
Coker's answer to the question at the union meeting on
the November 27, but then Williams did not remember
whether he saw this letter before or after the election.
Marion Freemen and Cleatonia Washington were vague
about whether or not they read the paragraph, but they
were convinced that they could lose their jobs if they
voted "yes" for the Union. Cleveland Blount was con-
cerned about the letter, but he did not think that people
from New Orleans were coming in to take their jobs at
Canton. Donald W. Nall and Roger Dewitt Ray each
read the letter, and considered paragraph five a threat
that if the Union lost the election it would try to bring
up New Orleans workers to fill their jobs.
Coker did not feel that the letter was a threat. He
stated that he was trying to help workers organize and
try to "provide the law" as best he could. "And that's
exactly what I tried to do, make the law, lay the law out
there, plain as it could be laid out."
Beyond this, Coker testified that he arranged to have
three of the former Inland Steel Container workers from
New Orleans come up to a "fish fry" on Saturday, De-
cember 1, to meet with Canton employees and to assure
them that the New Orleans workers did not want their
jobs.15
To conclude, if the Company had, on the basis of
Coker's November 30 letter, together with affidavits of
witnesses, established a prima facie case that the Union
had coerced employees in the December 4, 1984 elec-
tion, that prima facie case is, in my opinion rebutted by
the following facts. First,' I have found that the question
of the loss of jobs by the Canton employees to former
15 The only company witness who attended the fish fry was Williams,
and he corroborated Coker's account of what the New Orleans people
had told the Canton workers The New Orleans workers were quoted as
saying that they were not coming to Canton to take the jobs of Canton
employees.
Inland Steel employees from New Orleans was initiated
by the Company in its posting- of materials concerning
the New Orleans case on a company bulletin board,16
and compounded by the company-inspired and clearly
threatening article in the Madison County Herald on No-
vember 29, 6 days before the election.
Second, I find that the credible testimony of Coker
rebuts any inference that he threatened employees at the
union meeting on November 27.
Third, I find that, while the fifth paragraph of the No-
vember 30 letter was equivocal, it had very little demon-
strated effect on employees. Out of seven witnesses pre-
sented by the Company, only two, Ray and Nall, testi-
fied that they viewed the paragraph as a threat. Two
other employees got -the opposite impression. Freeman
and Washington said that they were concerned about
losing their jobs if they voted "yes." Williams was con-
fused about the letter and the November 27 meeting,
McElory didn't get the letter, and Blount didn't care
what it said. Thus, I find that the letter was not either
intended as a threat, based on Coker's testimony, not
viewed as a threat even by those witnesses called by the
Company in its presentation at this hearing. A. Rebello
Excavating Contractors, 219 NLRB 329 (1975); Armour
Food Co., 288 NLRB 1 (1988).
Thus, I find that the Union has not engaged in coer-
cive conduct during this election campaign, and I will
recommend that Objection 2 be overruled.
CONCLUSIONS OF LAW
1. Van Leer Containers, Inc. is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. United Steelworkers of America, AFL-CIO is a
labor organization within the meaning of Section 2(5) of
the Act.
3. The Union has not coerced or restrained employees
in the free exercise of their choice in an election con-
ducted on December 4, 1984, in Case 15-RC-7126.
Based on the entire record in this case, and pursuant to
the provision of Section 10(e) of the Act, I issue the fol-
lowing recommended 17
ORDER
I recommend that Objection 2 filed by the Company
in Case 15-RC-7126 be overruled, and that the Order of
the Board previously entered in Case 15-CA-9720 on
April 30, 1986, 279 NLRB 675, be adopted by the Board.
18I might say that any employee , or company official, would have to
be quite sophisticated , and conversant with Board procedure, to figure
out what those materials meant.
17 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Order shall, as provided in Sec 102 .48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.