NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,410, DOMINION ENGINEERED TEXTILES, INC. and UNITED RUBBER, CORK, LINOLEUM & PLASTICS WORKERS OF AMERICA, AFL-CIO, CLC., (July 28, 1994), National Labor Relations Board, (Jul 28, 1994)

DOMINION ENGINEERED TEXTILES, INC. and UNITED RUBBER, CORK, LINOLEUM & PLASTICS WORKERS OF AMERICA, AFL-CIO, CLC.

314 NLRB No. 98.Case No. 10-RC-14231. July 28, 1994 Amended August 18, 1994..

Before Devaney, Browning and Cohen.

Elections--Rerun--Pervasive Interference.--The NLRB ordered a rerun election after an employer’s victory in a union representation election because the employer impliedly threatened plant closure or dire consequences if the union succeeded in its organizing efforts. The statement did not constitute a permissible prediction by the employer because it failed to affirmatively establish that adverse economic consequences would result from circumstances beyond the employer’s control. Section 9(c).

Back reference: ¶2790.034.

From Text of Board’s Decision

The National Labor Relations Board, by a three-member panel, has considered objections to an election held May 1, 1992, and the attached Acting Regional Director’s report recommending disposition of them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 385 for and 597 against the Petitioner, with 11 challenged ballots and 2 void ballots, an insufficient number to affect the results.

The Board has reviewed the record in light of the exceptions and briefs [1] , has adopted the Acting Regional Director’s findings [2] and recommendations, and finds that the election must be set aside and a new election held.

We agree with the Acting Regional Director’s finding that the Petitioner’s Objection 1, which involves threats of plant closure, has merit, and we shall set aside the election on that basis. In so finding, the Acting Regional Director correctly cited and applied the test the Supreme Court fashioned in NLRB v. Gissel Packing Co., [60 LC ¶10,150] 395 U.S. 575 (1969). As the Court stated, an employer’s prediction of dire economic effects stemming from union organization must not contain “any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities known only to him.” Id. at 618. If such a prediction is made, it must be supported “on the basis of objective fact to convey an employer’s belief as to demonstrably probably consequences beyond his control.” Id.

Here, the Employer suggested that plant closure may be precipitated by “[t]he mere fact of having to bargain” with the Union. Specifically, the Employer stated that the bargaining obligation that would flow from a union election victory could be “devastating” because the Union would be “a major distraction” consuming the Employer’s time and energies that could otherwise be devoted to solving its problems. Under the Gissel test, such a statement must be construed as an objectionable threat rather than a permissible prediction, because the Employer has failed to affirmatively establish that the adverse economic consequences would result from circumstances beyond the Employer’s control. See also Douglas & Lomason Co.. [1991-92 CCH NLRB ¶16,827] 304 NLRB 322, 327 (1991). [3]

Dissent

Member Cohen, dissenting: I agree with my colleagues that the Acting Regional Director correctly overruled the Petitioner’s Objection 2. I did not agree, however, that the Acting Regional Director was correct in sustaining the Petitioner’s Objection 1, alleging that the Employer had threatened to close the plant if the Union won the election.

The Employer’s conduct was clearly protected under NLRB v. Gissel, 395 U.S. 575, 618 (1969). In that case, the Supreme Court said:

[An employer] 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 demonstrably probable consequences beyond his control.

In the instant case, the Employer set forth its views as to the economic consequences that would occur if the Union won the election. The Employer carefully described the following chain of economic reasoning: (1) other companies have faced difficult economic conditions; (2) the Union nonetheless took unreasonable bargaining positions vis-a-vis these companies; (3) as a result, thsee companies were forced to close; (4) similarly, the Employer faces difficult economic conditions; (5) it can be reasonably anticipated that the Union’s bargaining position, vis-a-vis the Employer, will not be markedly different from that taken vis-a-vis other companies; and (6) if the union does take such a bargaining position, the Employer may be forced to close for economic reasons.

In light of this Employer message, the employees would reasonably understand that the Employer was simply giving its views about the economic consequences of unionization, rather than threatening to close in retaliation for unionization. [4]

My colleagues focus on one of the Employer’s statements concerning bargaining with the union. Employer’s statements in this regard cannot be read in isolation. They are inextricably intertwined with the Employer’s other statements concerning its economic plight. The Employer’s expressed opinion was that hard bargaining and industrial strife would be the predictable consequence of the clash between the Employer’s economic conditions and the union’s anticipated bargaining position. This consequence is beyond the Employer’s control, and can be a further distraction from the Employer’s goal of remaining economically viable. Thus, this aspect of the Employer’s message was simply part of its overall prediction of the economic consequences of unionization. Accordingly, the Employer’s statements are a lawful prediction, rather than a threat to punish employees for unionizing.

Because the Employer’s conduct is expressly sanctioned by Gissel, I would overrule this objection. [5]