W A Krueger Co.Download PDFNational Labor Relations Board - Board DecisionsJun 17, 1976224 N.L.R.B. 1066 (N.L.R.B. 1976) Copy Citation 1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD W A Krueger Co and Graphic Arts International Union, AFL-CIO, Petitioner Case 26-RC-5060 June 17, 1976 DECISION , ORDER, AND DIRECTION OF SECOND ELECTION By CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS Pursuant to a Stipulation for Certification Upon Consent Election executed on August 12, 1975, an election by secret ballot was conducted on Septem- ber 5, 1975, under the direction and supervision of the Regional Director for Region 26, among the em- ployees in the stipulated unit At the conclusion of the election the parties were furnished a tally of bal- lots which showed that of approximately 133 eligible voters 129 cast valid ballots, of which 39 were cast for the Petitioner, 88 were cast against the Petitioner, and 2 ballots were challenged The challenged ballots were not sufficient in number to affect the results of the election Thereafter, the Petitioner filed timely objections to the election In accordance with Section 102 69 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director conducted an investigation and on October 17, 1975, issued and duly served on the parties his Report on Objections, in which he recommended that the objections be overruled in their entirety, and that certification of results of election issue Thereafter, the Petitioner filed timely exceptions to all of the Regional Direc- tor's recommendations except with regard to Objec- tion 5 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 The Board has considered the Regional Director's report, the Petitioner's exceptions thereto, and the entire record in this case, and makes the following findings 1 The Employer is engaged in commerce within the meaning of the Act and it will effectuate the pur- poses of the Act to assert jurisdiction herein 2 The Petitioner is a labor organization which claims to represent certain employees of the Em- ployer 3 A question affecting commerce exists concern- ing the representation of certain employees of the Employer, within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act 4 The following unit, as stipulated by the parties, constitutes a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act All production and maintenance employees employed by W A Krueger Co at its Senato- bia, Mississippi, location, but excluding all other employees including casual part-time employ- ees, office clerical employees, guards, and super- visors as defined in the Act 5 The Regional Director found no merit in Peti- tioner's objections and recommended that the results of the election be certified With regard to Objection 1, the Regional Director found that the Employer's preelection statements, oral and written, did not ex- ceed the bounds of permissible campaign propa- ganda, as alleged In support of its objection the Peti- tioner (also called the Union) offered a letter sent to all employees by Employer's general manager, Cal- vin Seaquist, and the texts of four speeches given by Seaquist to assembled groups of employees during the 6 weeks preceding the September 5, 1975, elec- tion The record shows that on July 22, 1975, a week after the instant representation petition was filed, General Manager Seaquist delivered a speech to all employees during working time In the course of his speech, Seaquist stated At this time, however, I want you to know how your company feels about Union represen- tation of its employees I also want you to know that your management will strongly resist, with every legal means possible, this attempt by out- siders to put themselves between you and your company in matters dealing with your employ- ment The time has come for straight talk to help you realize just what is involved in this kind of situation The plain facts are that no union can do anything for you to make this a better place to work Later, Seaquist added If you were to appoint this union as your rep- resentati,,e, your company would not have to agree to anything the union proposes We would not agree to anything we feel is not right for you and the company If we couldn't agree, the only recourse the union would have would be to get you to strike And if you would strike, we would have every legal right to replace you in order to continue our operations A union can only guar- antee to collect dues and provide a constant source of agitation between the employees and the plant management which could ultimately [a]ffect the continued growth and success of the Senatobia Plant and the employees involved 224 NLRB No 148 W A KRUEGER CO Finally, in response to his own question, "why are we against union involvement in our employee-man- agement relationship," Seaquist alluded to an earlier speech, on June 6, and reminded the employees that "hundreds of people have lost jobs because of lost business and plant closings [at several named em- ployers] " Seaquist then added All of these plants, totally union, were unable to successfully compete in the industry any lon- ger We don't want that to happen here, to hap- pen to you, and I am going to do everything I can to prevent it I don't know of a single plant where more jobs have been created by union in- volvement I don't know a single customer that will give us business because of union involve- ment The truth is, only the company can pro- vide jobs, only the company can give you securi- ty, and only the company can provide the necessary dollars for growth to create more jobs and advancement opportunities for its Senato- bia employees In his next speech to these employees during work- ing time on July 31, Seaquist stated I want you to know how union representation can seriously affect you personally, your job, and the future of this plant I also want you to know that your management will strongly resist, with every legal means possible, this attempt by outsiders to put themselves between you and your Company No union can do anything for you that the Company has not already done or will do for you as you develop your skills and the plant becomes successful The general manager then told the employees that "I have worked in union plants and have tried to deal reasonably with unions It just can't be done' Sea- quist also remarked that he was "extremely disap- point[ed]" to learn that a sufficient number of em- ployees had signed union authorization cards "to allow the Union to ask for a representative election " Seaquist then added Now, in the middle of trying to make this op- eration successful-to give an excellent opportu- nity to all of you and others-we have to spend a lot of time and money trying to prevent an internal disaster Do you know why it would be a disaster? Because having a Union in the plant will make it difficult, if not impossible, for this operation to be successful That is why it could be a disaster I am seeing some of it here already in the way it is affecting relationships between employees Finally, after again emphasizing that plant closings 1067 and job losses were attributable to "restrictive union contracts" and the Union's unsuccessful "effort to deliver" promised benefits, Seaquist stated Don't be misled by false promises or false hopes The Company is going to continue to manage this business to insure success and growth for both the plant operation and the em- ployees involved, not in accordance with any union dictates, regardless of what we can do and how we can do it That won't work In fact, a union won't work in this plant In a speech on August 14, Seaquist traced the ori- gins of the Senatobia plant Thus, as Seaquist ex- plained, following a 14-week strike at the Employer's Wisconsin plants, the Employer "realized that manu- facturing at plants where unions had a foothold was no longer a safe idea [and] the Company had to plan for its growth in other places," including Sena- tobia After mentioning financial losses which the Employer had encountered since opening the Senato- bia plant in 1973, Seaquist stated Today as we work hard to do the job we must do, we have to divert our effort to fight the union organizers and everything we have been trying to achieve What are you doing9 Are you trying to throw away the thousands of dollars of education and training that you have received9 Are you going to throw away all the anguish and trials you went through to learn your jobs Are you going to throw away the future prosperity that you are earning for yourselves? Are you going to destroy one of Mississippi's biggest chances to show the rest of the country what it can do? Where do you want to be next year and five years from now? Do you want to be work- ing at a good paying job in a nice place as good or better than your neighbor's? Do you want to buy the things you want for your children Do you want to feel proud of the type of prod- uct you're working on, and/or feel like you've accomplished something" Do you want to pro- vide a place where your children might want to works Think on September 5th-Is this what you want to throw away? After itemizing the "petty gripes" and "individual problems" of employees who would vote for the Peti- tioner, Seaquist mentioned, but not by name, four former employees who "started this CANCER" and vol- untarily quit rather than face "what they knew was going to be a Hassle, a Struggle, a Mess " Finally, Seaquist said "I would leave too-if I had started something I couldn't control, couldn't stop, and knew it was going to hurt not only my friends, but hundreds of people in this area " 1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On August 28 and 29, Seaquist delivered his last speech to all employees before the election In his opening remarks, Seaquist advised employees of the Employer's duty, as "required by law," to substanti- ate certain "facts " Thus, in response to the rhetorical question, "What really happens if the [Petitioner] is voted in on September 5th and is certified by the N L R B ," Seaquist answered, "All benefits and wages will be frozen " Later, Seaquist elaborated [W]e know from our past experience, that [the Petitioner] would either then or in the future, start to make unreasonable demands which we could not agree to There probably would be many meetings to discuss the Union demands, demands on your time and our time to discuss exactly all the things you now have Remember "Negotiations start from Ground Zero " AGREEMENT Remember-when we are all attending nego- tiating meetings we are not solving your prob- lems We must define everything We possibly could reach agreement with the union, but from past experiences I doubt it Every agreement re- quires submission to the International that would demand the same work restricting rules and regulations they have forced on other com- panies-Example Williams Press and Western Publishing in Hannibal, which are now closed plants IMPASSE Maybe we couldn't agree Could not negotiate a contract The union would have two choices a) Continue negotiating indefinitely or b) Strike The National Labor Relations Act says "no changes to anything while negotiations are in process" even if at impasse I This could be indef- initely At Holiday Press a year went by, then a strike, then 55 out of 58 people were replaced If the Union members strike, everyone is im- mediately [a]ffected-You, Your family, Your job, Your friends, and Your Company You may have no choice but to be in the middle I'll tell you right now our customers will not stand for any type of work stoppage We will continue to operate with all those who wish to continue employment The others obviously quit, and will be replaced TO THE COMMUNITY 1 Friendships can be lost 2 Brothers and sisters and family relation- ships will be damaged 3 Business may become concerned about charging items to you or loaning you money for cars, homes, and bills They know Unions mean work stoppages, strikes, layoffs, plant closing- basically-a real chance they may not be paid or repaid The Union's only leverage for getting their de- mands is to strike, and use force Don't be fooled by a Union organizer's promise that their Union doesn't strike a) GAIU does believe in strike, they struck over 50 plants during the last three years and paid out $20 million dollars in strike benefits during the last 15 years Seaquist then offered several "examples" of strikes, including one "close to home Western Pub- lishing in Hannibal Mo," which was marked by vio- lence and the use of guns, pipes, and dynamite Sea- quist ended this portion of his speech with the exhortation, THE ONLY WAY TO PREVENT ALL THIS FROM HAPPENING IS TO VOTE NO" and the statement WE WOULD OPERATE WITHOUT A CONTRACT Toward the close of his final speech Seaquist again discussed shutdowns at some 21 printing plants dur- ing 1972-75 which were organized and the "hun- dreds" of employees thrown out of jobs Seaquist concluded with an appeal to reject the Petitioner at the election and "avoid all the potential hassle and heartache I've just described " Finally, in a letter sent to employees on August 28, Seaquist, under the heading "WHAT COULD HAPPEN," wrote We should all be concerned that if the GAIU were to be voted into Modular, the result could be disastrous for you, the Company and the Community Union demands during negotia- tions can lead to many undesireable conse- quences One such consequence is a strike, which is the basic weapon of the Union, or, in the extreme, a plant shut-down which is the ulti- mate result when an employer yields to unrea- sonable demands The GAIU, like all printing industry unions, considers the strike a very strong weapon in their arsenal when they sit to negotiate a contract Strikes are nasty, wretching and often violent affairs, which, in small com- munities like Senatobia, can leave permanent scars in the community as well as among the employees involved, no matter what the out- come Plant closings, on the other hand, are a much more damaging consequence which can W A KRUEGER CO 1069 occur when an employer can no longer continue to operate a competitive plant When the plant loses its competitiveness, due to unreasonable union contract settlements, it loses customers, becomes unprofitable, and finally, in too many well documented cases, the business is forced to shut down Such a consequence of having a Union in the plant is always a possibility I am concerned that it could happen here and you should be too I have a strong concern that the disruptive in- fluence of the GAIU in our plant could make it impossible for Modular to be strong enough and capable enough to survive, and you should be too Our competitors, mostly non-union, would be only too glad to see the GAIU put a Union millstone around our necks I am unwilling to believe that such a future is really the hope of our employees and the people of this community, however, I must again tell you that I am very much concerned, and you should be too In assessing the reasonable impact of the foregoing statements, we are mindful of the Employer's right to discuss freely and frankly its views concerning unions, strikes, collective bargaining, plant closure, and any other topics it considers important But it is equally clear that employees have the statutory right to associate freely and to express their desires in an atmosphere free from fear and futility It is the Board's duty to balance these rights and to provide the laboratory conditions, as nearly ideal as possible, to determine the uninhibited desires of employees In this regard it is important to take into account the economic dependence of employees on their employ- er "and the necessary tendency of the former, be- cause of that relationship, to pick up intended impli- cations of the latter that might be more readily dismissed by a more disinterested ear " N L R B v Gissel Packing Co, Inc, 395 U S 575, 617 (1969) Applying these standards to the instant case, we find, contrary to the Regional Director, that the fore- going statements exceeded the bounds of permissible campaign propaganda It is clear that the overall ef- fect of this preelection campaign propaganda was to drive home the warning that "a union won't work in this plant," to establish an atmosphere of fear and futility in selecting a bargaining agent that prevented the employees from exercising a free choice in the election, and to convey to the employees a thinly veiled threat of plant closure should the Union win the election See Kellwood Company, 206 NLRB 665, 672-673 (1973), and cases cited therein See also Amerace Corporation, EGNA Division, 217 NLRB 850 (1975), and Thomas Products Co, Division of Thomas Industries Inc, 167 NLRB 732 (1967) From the beginning, the Employer, through Gen- eral Manager Seaquist, noted its "extreme disap- point[ment]" with those employees who, in the exer- cise of statutory rights, had signed authorization cards in support of the Union's petition for an elec- tion In a recurring theme, Seaquist explained that the Employer would "strongly resist," albeit lawfully, the Union's campaign with "a lot of time and mon- ey," and would "fight the union organizers" and their adherents who created this "internal disaster " While Seaquist did not conceal his displeasure with employee union adherents in general, he held the Union's earliest followers in special contempt be- cause they had "started this CANCER," "a Hassle, a Struggle, a Mess," which they "couldn't control, couldn't stop" and which could "destroy" the Em- ployer, the employees, and the community in which they lived Seaquist warned of a number of adverse conse- quences flowing from a union victory in the election for example, employees could experience difficulty in obtaining loans or credit from local business con- cerns "for cars, homes, and bills [because] [t]hey know Unions mean work stoppages, strikes, layoffs, plant closings-basically-a real chance they may not be paid or repaid" And the Employer warned employees that within the plant the Union, "a con- stant source of agitation" and a "disruptive influ- ence," could make it "difficult, if not impossible, for this operation to be successful " Seaquist asserted further, and incorrectly if meant as a requirement of law, and amounting to a threat if meant to describe the Employer's own future conduct, that if the Union were certified, "all benefits and wages will be fro- zen " Furthermore, the Employer predicted that follow- ing certification the Union would not be successful in collective bargaining because the Employer was the sole source of all benefits Thus, emphasizing the im- potence of the Union, Seaquist stated that the "plain facts are that no union can do anything for you to make this a better place to work" and "[n]o union can do anything for you that the Company has not already done " Seaquist further underscored the fu- tility of collective bargaining by driving home the point that the parties would simply be discussing "ex- actly all the things you now have `Negotiations start from Ground Zero "' Speaking from "our past experience," Seaquist predicted that the Union's de- mands would be "unreasonable" and would inevit- ably lead to a strike, which would fail because "WE 1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WOULD OPERATE WITHOUT A CONTRACT " Clearly such talk was not mere campaign bravado, for as Seaquist warned I have worked in union plants and have tried to deal reasonably with unions It can't be done and We could possibly reach agreement with the Union, but from past experience I doubt it and, finally, In fact, a union won't work in this plant To counter the Employer's predicted intransi- gence, and the likelihood that no agreement would be reached, the Union's "only recourse" would be to strike And Seaquist used several examples of "nasty, wretching and often violent" strikes, including "one close to home" and the Employer's past experience with such "disasters " Thus, Seaquist made it clear that because of its unfortunate experience the Em- ployer "realized that manufacturing at plants where unions had a foothold was no longer a safe idea" For this reason, as Seaquist explained, the Employer had moved from Wisconsin to Senatobia in order to escape an area of union strength This, coupled with repeated references to plant closings after employees had chosen a union, including two in nearby Hanni- bal, Missouri, could hardly fail to convey to the em- ployees the thought that this Employer would or might close this plant or move it again to escape the Union I The intended implication of these statements is clear Based on past experience the Employer pre- dicted with some measure of certainty that the em- ployees who supported the election petition threat- ened to bring about a disaster because, if certified, the Union, which could do nothing "that the Compa- i As shown the Employer s overwhelming preoccupation with strikes and strike related violence permeated all of its campaign utterances Indeed the Employer concluded its campaign with a showing of the film And Women Must Weep The showing of this film is the subject of another objection Therefore it is unnecessary to make any finding in this regard ny has not already done," would certainly meet the Employer's pledge to freeze wages and benefits (or bargain from "Ground Zero") with "unreasonable" demands with the result that collective bargaining would revert to a test of wills during a bitter strike at the end of which the Employer, having made no con- cessions (WE WILL OPERATE WITHOUT A CONTRACT ) might close or, as in the past, simply relocate its plant elsewhere to the lasting detriment of the employees and their community To underscore the inevitability of such a "disaster" employees were told that THE ONLY WAY TO PREVENT ALL THIS FROM HAPPENING IS TO VOTE NO"i It is true that this propaganda contains no express unqualified rejection of the collective-bargaining principle Yet it is also true that some of its state- ments came perilously close to doing so and, when coupled with the Employer's preoccupation with strikes, shutdowns, plant relocation, violence, job losses , and economic deprivation, could reasonably create in the minds of these employees the impres- sion that theirs was a choice between no union or striking See Boaz Spinning Company, Inc, 177 NLRB 788, 789 (1969) Thus, against this back- ground, it is clear that the employees did not have an opportunity to express their uninhibited desires Therefore, we find merit in Objection 1, and we shall set aside the election and direct a second elec- tion In these circumstances, we find it unnecessary to decide matters raised in the Petitioner' s remaining objections ORDER It is hereby ordered that the election previously conducted herein on September 5, 1975, be, and it hereby is, set aside [Direction of Second Election and Excelsior foot- note omitted from publication ] CHAIRMAN MURPHY, concurring I concur in the decision to set aside the election herein under the facts of this 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