Visador Co.

National Labor Relations Board - Board Decisions

Sep 27, 1979

245 N.L.R.B. 508 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Visador Co. and UBC, Mid-Atlantic Industrial Coun-
cil, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO. Cases 5-CA 9693 and 5-
CA -9945
September 27, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
Upon a charge filed on July 27, 1978, by UBC,
Mid-Atlantic Industrial Council, United Brotherhood
of Carpenters and Joiners of America, AFL-CIO,
herein called the Union, and duly served on Visador
Co., herein called Respondent, the General Counsel
of the National Labor Relations Board, by the Re-
gional Director for Region 5, issued a complaint and
notice of hearing on September 8, 1978, on certain
allegations arising out of the charge filed in Case 5-
CA-9693 alleging violations of Section 8(a)(1) and
(3), which charge was duly served on Respondent by
registered mail on the same date. This complaint was
superseded on December 13, 1978, by an amended
complaint and notice of hearing alleging in pertinent
part that Respondent has engaged in and is engaging
in certain unfair labor practices affecting commerce
within the meaning of Section 8(a)(l) and (5) and
Section 2(6) of the National Labor Relations Act, as
amended. Thereafter, on December 14, 1978, the Re-
gional Director issued an order consolidating cases.
Subsequently, Respondent filed an answer, an
amended answer, and a second amended answer, ad-
mitting in part and denying in part the allegations of
the complaint and amended complaint, submitting
defenses asserting, inter alia, that the complaint and
amended complaint fail to state a claim upon which
relief can be granted, and requesting that the com-
plaint and the amended complaint be dismissed.
On March 2, 1979, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on March 8, 1979, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment should
not be granted. Respondent thereafter filed "Respon-
dent's Memorandum in Opposition to the Counsel for
the General Counsel's Motion for the Summary Judg-
ment."
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 au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and its opposition to
the Motion for Summary Judgment, besides refusing
to admit filing and service of the charge, as an affir-
mative defense claims only that the complaints' alle-
gations fail to state a claim upon which relief can be
granted.'
Review of the record herein reveals that, from late
July or early August to September 1978, two of Re-
spondent's admitted supervisors, William Foster and
Charles Neitch, delivered a series of four speeches to
employees. It is alleged that these speeches con-
tained: an implied threat of plant closure, the threat
of reduced wages, and an open solicitation of griev-
ances, all in violation of Section 8(a)(1) of the Act.
The four speeches which contain the alleged 8(a)(l)
violations are attached to the motion as Exhibits A
through D. In a speech delivered on several occasions
by William Foster between July 24 to July 27, 1978
(attached to the complaint in Case 5-CA-9693 as
Exh. A), Foster told the employees that he was aware
of the ongoing union campaign and then went on to
describe how the Employer had closed one of its
plants in Logan, Ohio, because of the union trouble
there and opened the Marion plant because of the
nonunion work force in the area. Inasmuch as Re-
spondent gave no objective facts which would other-
wise justify the closing of its Logan plant beyond the
unionization of the employees there, it is clear that
such comments were intended to convey and did con-
vey the message that similar consequences would re-
sult at the Marion plant should the employees select
the Union as their bargaining representative. Such
comments constitute a thinly veiled threat to close the
plant if the employees chose the Union and therefore
constitute a violation of Section 8(a)(l) of the Act.
The complaint also alleges that after this speech
Foster went on to specifically request that employees
come to him with their problems should they have
any, stating, "Whatever problems we've got, we don't
need a union to solve them. If you work with me I
promise to be fair and to listen to suggestions for im-
proving our plant." Without more in the record we
are unable to say that such comments constitute a
solicitation of grievances in violation of Section
8(a)(1). To listen to suggestions does not in and of
itself imply that the suggestions will be acted on and,
in the absence of any evidence that Respondent was
deviating from past practice, we shall dismiss this al-
legation.
I In light of the following discussion, we deny the General Co)unsel's "Mo-
tion to Strike Respondent's Memorandum in Opposition to the Motion for
Summary Judgment."
245 NLRB No. 71
508
less, saying that it would therefore offer lower wages
in the course of bargaining with the Union, but also
stated that lower wages "will happen ... if the union
comes in" and that things will become substantially
worse if the Union is elected as their representative.3
By telling its employees that lower wages and wors-
ened working conditions would result from selection
of the Union, not merely that such things could result
from bargaining, Respondent was clearly threatening
its employees in violation of Section 8(a)(1) of the
Act.
In response to a Motion for Summary Judgment,
an adverse party may not rest on denials in the plead-
ings, but must present specific facts which demon-
strate that there are material facts at issue which re-
quire a hearing. 4 Respondent in the instant case
presented no material facts at issue which require a
hearing,5 as all such facts have either been admitted
or previously determined.
Respondent has admitted that there are no mate-
rial issues of fact to be litigated in this proceeding,
nor does it allege that any special circumstances exist
herein which would require a hearing.6 We therefore
find that Respondent has not raised any issue which
is properly litigable in this unfair labor practice pro-
ceeding. Accordingly, we grant the Motion for Sum-
mary Judgment, to the extent indicated above.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Texas corporation engaged in the
manufacture of stairs and stair parts at its Marion,
Virginia, facility. During the preceding 12 months, a
representative period, Respondent sold and shipped,
in interstate commerce, products valued in excess of
$50,000 to points located outside the Commonwealth
of Virginia.
3 Contrary to Member Penello's partial dissent, Respondent's statements
did not merely compare wages at other plants in the area and set forth the
position Respondent would take in bargaining with the Union. Thus, in one
of the speeches to employees, Respondent's agents stated, in regard to wages,
that "Visador would insist on paying no more than the other employers in
this area are paying." (Emphasis supplied.) Such a statement goes beyond
setting forth a bargaining position and conveys to employees a clear message
that unionization will result in lower wages and worsened working condi-
tions.
Western Electric Company, Hawthorne Works 198 NLRB 623 (1972).
Further, we consider it unnecessary to adopt the Acting Regional Director's
recommendation that this proceeding be consolidated with Case 5-CA-9693,
9945, for purposes of decision. Cf. Little Lake Industries, Inc., 233 NLRB
1049 (1977).
5See Pittsburgh Plate Glass Co. v. N.LRB., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
6 Respondent's refusal to admit filing and service of the charge does not
raise any such issue since the affidavits of service and post office receipts
attached to the motion are adequate proof of these matters. Beck Corpora-
tion, d/b/a Jesse Beck's Riverside Hotel and Casino, 231 NLRB 907 (1977).
The complaint also alleges that in three speeches
given by Charles Neitch during September 1978 (at-
tached to the complaint in Case 5-CA-9945 as Exhs.
A, B, and C) the Employer delivered to employees the
threats that selection of the Union would result in
lower wages; working conditions would be worsened;
and the inevitable result of unionism would be no
contract, a strike, and the loss of their jobs. In addi-
tion, Neitch pointed to a strike by the Teamsters
Union at its Jasper, Texas, plant which lasted over 6
months and resulted in the strikers being permanently
replaced, with no improvements in wages, benefits, or
working conditions and no union contract.
With respect to the allegation that the above
speeches constitute unlawful statments that it would
be futile to select the Union as bargaining representa-
tive, Respondent contends that these comments were
merely statements of its bargaining position and as
such do not constitute unlawful threats.
As these statements allegedly conveying the futility
of selecting the Union appear on this record, we can-
not find that, without more, they are sufficient to sus-
tain this allegation. Although we have previously
found that Respondent threatened employees with
plant closure and, as discussed infra, we agree with
the General Counsel's contention that Respondent
violated Section 8 (a)(1) of the Act by threatening
lower wages and poorer working conditions if the em-
ployees selected the Union, we believe that such evi-
dence standing alone is insufficient to establish that
Respondent would not bargain with the Union.2 In
all other respects Respondent's message to the em-
ployees was that union representation would not
guarantee higher wages or benefits and that Respon-
dent's bargaining position would be to pay wages and
benefits competitive with those in the area. Neither of
these latter statements may be deemed to be unlaw-
ful. Accordingly, we shall dismiss that portion of the
complaint. However, with respect to the allegations
that selection of the Union would inevitably result in
lower wages and worsened working conditions, Re-
spondent not only compared the wages at Marion to
other plants in the area that were allegedly paying
2 Chairman Fanning would find that Respondent conveyed to employees
that selecting the Union as its bargaining representative would be futile. In
the Chairman's view, this conclusion must follow from the majority's finding.
ifra, that Respondent threatened to reduce wages and impose poorer work-
ing conditions. Certainly, wages and working conditions are of primary con-
cern to employees, and a threat to "insist" on on worsening those wages and
working conditions-if unionization occurs-can only emphasize to employ-
ees that unionization would be futile. Respondent's threats, which are clearly
outside the protection of Sec. 8(c) of the Act, are not redeemed because
Respondent, in other portions of its speeches, stated it would bargain in good
faith if the Union was successful. Accordingly. Chairman Fanruning would
find, as alleged in the complaint, that Respondent unlawfully emphasized to
employees the futility of unionization. See Montgomery Ward & Co., Inc,
222 NLRB 965 (1976); Leggett and Platt, Inc., 230 NLRB 463 (1977).
VISADOR CO. 509
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find, on the basis of the foregoing, that Respon-
dent is, and has been at all times material herein, an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act, and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
At all times material herein, the Union is and has
been a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
As set forth above, the actions of Respondent's rep-
resentatives, Foster and Neitch, in giving a series of
speeches to the employees during which employees
were threatened with plant closure, reduced wages,
and worsened working conditions, constitute interfer-
ence, restraint, and coercion of its employees in the
exercise of the rights guaranteed them in Section 7 of
the Act.
Accordingly, we find that such actions are unfair
labor practices within the meaning of Section 8(a)(1)
of the Act.
IV. THE EFFECT OF THE LABOR PRACTICES UPON
COMMERCE
The activities of 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 com-
merce 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 and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act, we shall order that it
cease and desist therefrom.
CONCLUSIONS OF LAW
1. Visador Co. is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. By threatening employees with plant closure, re-
duced wages, and worsened working conditions, Re-
spondent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing, em-
ployees in the exercise of the rights guaranteed them
in Section 7 of the Act, and thereby has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(l) of the Act.
3. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act; as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Visa-
dor Co., Marion, Virginia, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, and coercing em-
ployees in the exercise of the rights guaranteed them
in Section 7 of the Act by threatening to close the
plant, to reduce wages, and to worsen working condi-
tions if the employees chose the Union as their exclu-
sive bargaining representative.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Post at its Marion, Virginia, facility copies of
the attached notice marked "Appendix." 7 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 5, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges that the
comments of William Foster requesting employees to
come to him with their problems violated Section
8(a)(I) of the Act.
MEMBER PENELLO, dissenting in part:
I disagree with my colleagues' finding that Respon-
dent violated Section 8(a)(1) by threatening its em-
ployees with lower wages and worsened working con-
7 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
510
VISADOR CO.
ditions. In support thereof, the majority relies on an
incomplete extraction from a speech delivered by Re-
spondent. A more complete quotation from that
speech shows the following:
There's been some talk of a dollar per hour raise
if the Union comes in our plant. Let me make
the Company's position very clear on what will
happen... if the Union comes in.8
First, let's look at how your wages at Visador
compare to the average wages in this part of Vir-
ginia. The State of Virginia has released the most
recent wage and benefit survey for our type of
plant. I had this chart made so you can see with
your own eyes where you stand compared to
other workers around here.
Let's look at the pay employees get from other
plants for doing the same work you do at Visa-
dor. As you can see from these official figures,
Visador employees earn a lot more than average
for this part of the country. If the Union [is]
voted in at Marion, the Company will take the
position in bargaining that our wages should be
comparable to the average wage for comparable
jobs. We will bargain in good faith, and we will
obey the law. But just like the Company in this
court case, we will propose that wages at Visador
8 The emphasized words represent the quotation in the majority opinion.
be brought into line with our competitors in this
area.
When the extraction from Respondent's speech re-
lied on by the majority is considered in context, it is
plainly not a threat that lower wages "will happen...
if the Union comes in," but instead is merely a com-
parison of wages at Respondent to other plants in the
area and the position that Respondent will take in
bargaining. I would, therefore, dismiss this allegation
of the complaint.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees that we will
close the plant, reduce their wages, or worsen
their working conditions if they choose UBC,
Mid-Atlantic Industrial Council, United Broth-
erhood of Carpenters and Joiners of America,
AFL-CIO, or any other labor organization, as
their exclusive bargaining representative.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
VISADOR Co.
511