Components, Inc., 163 (1972)
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COMPONENTS, INC. 163Components, Inc. and Local Union No. 387, International Brotherhood of Electrical Workers. Cases 28-CA-2350 and 28-RC-2176 May 26, 1972 DECISION, ORDER, AND. DIRECTION BY MEMBERS FANNING, JENKINS, AND KENNEDY On January 20, 1972, Trial Examiner James T. Barker issued the attached Decision in this consolidated proceeding. Thereafter, the Respondent filed exceptions, a supporting brief, and an answering brief. General Counsel filed cross-exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order,' except as modified below. 1. We agree with the Trial Examiner that Respondent violated Section 8(a)(1) of the Act by interrogating employees Field and McFadden as to their union preferences and sympathies, by requesting employees Luna, Janowicz, and Lamb to remove union insignia from their clothing, and by threatening employee Hurst with the loss of certain employee benefits in the event of unionization. 2. The Trial Examiner also found that statements made by various management officials to a number of employees regarding the possibility of plant closure and the loss of employee benefits in the event of unionization did not violate Section 8(a)(1) of the Act. The General Counsel excepted to this finding. We find merit in the exception. During the month prior to the Board-supervised election held among the employees in two of the four buildings comprising Respondent's operations in Phoenix, Arizona, management officials spoke to employees individually in the attempt to persuade them to reject the Union. In these conversations management repeatedly raised the spectre of plant closing and loss of employee benefits in the event of unionization. The conversations in question are as follows. Two days prior to the election, Hank Lambermont, a products manager, initiated a conversation with employee Hurst. After informing her that he would instruct her when she could vote on the day of the election, he commented that the 'east building,' one of the two the Union was attempting to organize, was losing $2,000 a day. He went on to say that a union would force the Company to pay higher wages, and that if it did the plant would be closed down by the end of the year. He then listed several employee benefits and stated that the employees would 'probably' lose these if the Union came in. The following day, Lambermont sp -)ke with employee Harrison. He told her that the Company would not pay higher wages even if the employees had a union because the Company could not afford them. He then noted that if the employees selected a union and the Company had to pay higher wages it would close because it was already losing $2,000 a day. About 2 weeks before the election, William Hagan, a line supervisor, told employee Kellough that she should vote in the election, and then stated that the Company was losing $2,000 a day and was doing employees 'a favor' by staying open. Contrary to the suggestions by these officials that Respondent was in desperate financial condition, about a week prior to the election, Jerry Belverud, a department manager, told employee Bowen that while Respondent had been prosperous, it could 'only do so much' for its employees, and that if employee demands on Respondent were any greater it might have to close its doors. These comments were preceded by his observation that Respondent had been forced to close a unionized plant in another area, and that he for one would not like to stand in an unemployment line. About 1 week before the election, William Robertson, a products manager, told employee Kellough that if the Company were unionized, he Robertson, would not have a job within 6 months, that 'maybe' the Company could not be as lenient with its employees as it previously had been, and that 'maybe' some privileges would be taken away from them. An employer may speak freely to his employees regarding issues arising in connection with a union organizational campaign, so long as his statements do not contain a threat of reprisal or force or promise of benefit. However, the Supreme Court in Gissel Packing Co. v. N. L. R. B., 395 U.S. 575, 616-619 (1969), articulated rigorous standards to which an employer's statements, when they constitute predictions of the effect unionization will have on the employees, must conform in order not to be found threatening. Those standards and the reasons underlying them are worth repeating. [T]he question raised here most often arises in the 1 Subsequent to the issuance of the Trial Examiner's Decision, the Union expedite the holding of a second election , Respondent opposed the motion. filed a motion to sever and withdraw the representation petition in order to In view of our decision herein, the motion is hereby denied 197 NLRB No. 25 context of a nascent union organizational drive, where employers must be careful in waging their antiunion campaigns. . . . Any assessment of the precise scope of employer expression, of course, must be made in the context of its labor relations setting. Thus, an employer's rights cannot outweigh the equal rights of the employees to associate freely . . . . And any balancing of those rights must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear... . [W ]hat is basically at stake is the establishment of a non-permanent, limited relationship between the employer, his economically dependent employee and his union agent, not the election of legislators or the enactment of legislation whereby that relationship is ultimately defined and where the independent voter may be freer to listen more objectively and employers as a class freer to talk. . . . Thus, an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a `threat of reprisal or force or promise of benefit.' He may even make a prediction as to the precise effects he believes, unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to the demonstrably probable consequences beyond his control or to convey a, management decision already arrived at to close the plant in case of unionization. If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion, and as such without the protection of the First Amendment. We therefore agree with the court below that 'conveyance of the employer's belief, even though sincere, that unionization will or may result in the closing of the plant is not a statement of fact unless, which is most improbable, the eventuality of closing is capable of proof.' [Emphasis supplied.] 2 This was especially necessary because statements by another management official implied that the alleged loss was either partially or wholly untrue Jerry Belverud, a department manager, told employee Bowen that the Company had been prosperous during the year prior to the election 3 Lambermont in effect stated that Respondent would shut down if it had to pay increased wages, no matter how small the increase 4 Specifically, Objection 5 which encompasses the same conduct found In light of these standards, it is evident that the statements by Lambermont, Hagan, Belverud, and Robertson were not protected expressions of opinion but threats of retaliation in violation of the Act's Section 8(a)(1). The statements by Belverud and Robertson do not meet the Gissel standards because neither contains objective facts. Moreover, both statements contain not so subtle threats. By linking Respondent's closure of other plants after they were unionized with the comment that he would not like to stand in an unemployment line, Belverud implied that the plant might be shut down simply because it was unionized. Robertson's similar statement that he would not have a job within 6 months of the plant's being unionized, linked with his suggestion that Respondent might deal with employees more severely after they were unionized and might take some privileges from them, implied the likelihood of retaliation by Respondent if its employees chose a union. Thus, the statements by Belverud and Robertson both violated the Act's Section 8 (a)(1). Lambermont's statements fail to meet the Gissel standards because Respondent introduced no evidence to prove that the statements were based on fact, or that the eventuality of plant closing was a demonstrably probable consequence of such fact. Lambermont's statements were phrased on the basis of an, alleged fact-that one of the four buildings Respondent operated in Phoenix was losing $2,000 a day-but Respondent made no attempt to show that this was actually true,2 or that, if it was, any3 successfully enforced demand by the Union for higher wages would, for reasons beyond Respondent's control, probably result in the closure of the affected plants. While Hagan's statement to employee Kellough contains no prediction as to the effects of unionization, it must be evaluated in the context of the totality of Respondent's antiunion campaign. In that context, his statement appears as part of Respondent's effort to instill in its employees the...
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