ON APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD (Board Nos. 22-CA-7821 and 22-RC-7163)
Before Gibbons, Weis and Sloviter, Circuit Judges.
This case comes before us on the petition of the National Labor Relations Board, pursuant to section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e) (1976), seeking enforcement of its bargaining order against Garry Manufacturing Company.
Although the facts are hotly disputed, it appears that three Garry employees first decided in April of 1977 that a union would be beneficial to them and their co-workers and spoke to representatives of District 65, an affiliate of the Distributive Workers of America, concerning the possibility of an organizational drive at Garry. When on May 17 the Union allegedly had received signed authorization cards from a majority of Garry's 130 production and maintenance employees, a representative of the Union met with Rudolph Koppel, Garry's President, and his son, Harry, the executive vice president, and requested recognition. When the Koppels refused, the Union filed a petition with the Board for a representation election, which election was set for June 29.
Both sides conducted a vigorous campaign. Leaflets and answering leaflets centered on the issues of job security, wages, benefits, and the advantages or dangers of unionizing. The Board found that the Company's literature contained threats of reprisals and promises of benefits, both impermissible under section 8(a)(1) of the Act. During this same time, Rudolph Koppel suffered a phlebitis attack. He set up a telephone communications system to answer questions about the Union or the election and to hear employees' grievances, ostensibly because his illness prevented normal personal contacts. The Board found that this was a solicitation of grievances and an implied promise of benefit which violated section 8(a)(1).
On June 20, 1977, near the end of the campaign, the Company undertook a major transfer of machinery from the plant. The Company argued that the transfer was one of seven occurring at fairly regular intervals throughout 1977 and that the purpose of the transfer was to move idle machinery and create room for greater productive capacity. However, the Board found that, in the context of the campaign and the job security theme of the Company's leaflets, this movement of machinery was intended to create the impression that the Company could and would retaliate if the Union won the election. Therefore the Board found that this transfer also violated section 8(a)(1) of the Act.
Moreover, on June 26, 1977, three days before the election and on a day on which the Union had planned to hold its final rally, the Company sponsored an outing at Great Adventure. The Company argued that it had decided to sponsor the outing in December 1976 but had delayed announcing it and had considered cancelling it while awaiting the advice of counsel concerning whether holding the outing would be an impermissible benefit. The Board found that the outing was in fact a benefit and an implied promise of future benefits which violated section 8(a)(1).
Furthermore during the final week prior to the election, one of the Company's supervisors discussed past and possibly future wage increases with one or two of the employees. Again, the facts are hotly disputed, but the Board found that the supervisor promised two employees a wage increase if the Union lost the election, which was also a violation of section 8(a)(1).
Finally, during the election campaign, a supervisor issued written disciplinary notices to two of the union organizers, when admittedly in the past the practice had been to give oral warnings. The Company argued that these employees had begun so to abuse break time and tardiness privileges that the Company's informal discipline system was becoming ineffective. The Board found, however, that the change in discipline was directed almost solely at Union supporters and therefore constituted a violation of section 8(a)(3).
The Union lost the election by a vote of 67 to 46 and filed timely objections to the election and unfair labor practice charges against the Company. The Board, in addition to the findings outlined in the preceding paragraphs, found that the Company obstructed the Board's investigation of the Union's charges in violation of section 8(a)(1). Coupled with its other findings of section 8(a) (1) and section 8(a)(3) violations, the Board determined that the election must be set aside and that a free and fair election in the future was extremely unlikely. It therefore ordered the Company to cease and desist, to expunge the disciplinary reprimands, and to recognize and bargain with the Union upon request. The Board petitions for the enforcement of this order.
In reviewing an enforcement petition, the standard to be applied is whether substantial evidence in the record as a whole supports the Board's findings of fact and whether these findings are sufficient to support, in turn, the Board's conclusion that the Company committed an unfair labor practice. Universal Camera Corp. v. NLRB, 340 U.S. 474, 491, 71 S. Ct. 456, 466, 95 L. Ed. 456 (1951). The Supreme Court has defined substantial evidence as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolo v. Federal Maritime Comm'n., 383 U.S. 607, 619-20, 86 S. Ct. 1018, 1026, 16 L. Ed. 2d 131 (1966), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 216, 83 L. Ed. 126 (1938). Moreover, this court should not "displace the Board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo." Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S. Ct. 456, 465, 95 L. Ed. 456 (1951).
Section 7 of the Act guarantees to employees the right to self-organization, to form, join, or assist labor organizations . . . for the purposes of collective bargaining or other mutual aid or protection(.)
29 U.S.C. § 157. In order to make effective this guarantee, section 8(a)(1) of the Act makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section (7)." Id. § 158(a)(1). The appropriate standard to be applied in reviewing the Board's finding of a section 8(a)(1) violation is
whether the misconduct is such that, under the circumstances existing, it may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act.
Local 542 v. NLRB, 328 F.2d 850, 852-53 (3d Cir.), cert. denied, 379 U.S. 826, 85 S. Ct. 52, 13 L. Ed. 2d 35 (1964). Accord, NLRB v. Armcor Indus., Inc., 535 F.2d 239, 242 (3d Cir. 1976); NLRB v. Triangle Publications, Inc., 500 F.2d 597, 598 (3d Cir. 1974) (per curiam). Section 8(a)(3) provides that it shall be an unfair labor practice to "encourage or discourage membership in any labor organization" by discriminating "in regard to hire or tenure of employment or any term or condition of employment." 29 U.S.C. § 158(a)(3). The appropriate standard for reviewing the Board's finding of a section 8(a)(3) violation is whether the employer intended to discourage union activity. NLRB v. Armcor Indus., Inc., 535 F.2d at 243. Section 8(c) of the Act guarantees to employers the right to communicate their opinions and facts about unions during an organizational campaign. That section provides that
(t)he expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.
29 U.S.C. § 158(c) (emphasis added).
In NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S. Ct. 1918, 23 L. Ed. 2d 547 (1969), the Supreme Court held that, in the course of an organizational campaign, an employer may freely communicate to his employees his views on unions in general or on the union they propose to join in particular as long as he does not violate the command of section 8(c) by including threats or promises. With respect to predictions as to the effect of unionization, the Court held that whether such predictions violate section 8(a)(1) will depend upon two factors: the extent to which the prediction is based on demonstrable probabilities; and the extent to which the adverse consequences warned of are within the employer's control. Id. at 618, 89 S. Ct. at 1942; see Mon River Towing, Inc. v. NLRB, 421 F.2d 1, 9-11 (3d Cir. 1969) (deference to Board expertise on whether threat implied; Gissel not limited to organizational campaign context). The question before this court is whether the statements made in this organizational campaign constituted threats of adverse consequences prohibited by section 8(a)(1) of the Act. There need be no proof of any actual interference with employees' rights; there need only be a finding that the statements or acts of the employer would tend to coerce a reasonable employee. We have held that the courts should defer to Board expertise, particularly where, as here, the employees may be especially sensitive to implied threats. Mon River Towing, Inc. v. NLRB, 421 F.2d 1, 9 (3d Cir. 1969). With these standards in mind, we turn to a review of the several violations of section 8(a)(1) found by the Board.
The Board found that the Company had violated section 8(a)(1) by including both threats of reprisals or adverse consequences and promises of benefit in the Company's campaign literature, implying reprisals through its movement of machinery out of the plant, soliciting employee grievances, promising wage increases, and sponsoring an outing for the employees and their families. We find that substantial evidence in the record as a whole supports each of these findings.
A. Threats of Reprisals in The Campaign Literature
The record contains numerous leaflets distributed to the employees and speeches read to them by the Company in the course of the election campaign which the Board found contained threats of reprisals or adverse consequences in violation of section 8(a)(1). These materials contain offending statements falling roughly into two categories: statements concerning the possible adverse consequences of unionism per se; and statements concerning possible effects of unionism on the plant. Summarizing these leaflets and speeches, the Board found:
(the) Respondent repeatedly drove home the message that, on the one hand, unionization would threaten continued employment and job security and inevitably result in strikes and violence while, on the other hand, rejection of unionization would result in improved benefits and working conditions.
242 N.L.R.B. No. 94, slip op. at 3 (1979). The Company made several types of statements alluding to the possible adverse consequences of unionizing: the possibility of strikes and violence; the imposition of dues; and the limited bargaining rights of unions in general. The Board focused on the threat of strikes to support its implied threat analysis.
In Gissel the Supreme Court held that an employer may communicate his views of unions either in general or in particular and may make predictions of strikes and plant closure. Such statements are not threats in violation of section 8(a)(1) if the prediction is based on objective facts and the event warned of is based on factors not within the employer's sole control. Id. at 618, 89 S. Ct. at 1942. The line between an objective fact beyond the employer's control and a threat is never easy to define. In this case, the employer made clear that he expected that the Union's demands would be unreasonable and would force him into a position in which he would be unable to compete. Objectively viewed, that statement is not unreasonable. Although no demands had been presented, the Union's literature consistently compared Garry's wages to those of Revlon, another local employer, but one engaged in an industry in which wages were generally significantly higher. Moreover, the distribution of newspaper articles concerning District 65's history of strikes also appears to ground his statement on objective fact. However, the employer's underlying message was that he firmly believed that wages were already as high as could be expected and that he would not agree to any increases greater than those granted in the past. Although he stated that he would bargain in good faith, he also made clear that the Union could only succeed by resort to economic coercion, which he would resist. Under the Gissel test, then, although the comments concerning the possibility or even likelihood of a strike were perhaps based on objective fact, the employer evidenced a willingness to force the union to strike, thus making the threatened consequence more or less within his control.*fn1
The Company also made several types of statements concerning the possible adverse effects of unionism on the Company: loss of job security; loss of competitive position; loss of flexibility; and possible closure. The Company stated that job security can only be guaranteed by the employer and that the only power that the Union would have in this regard would be its bald right to negotiate.*fn2 In a speech given shortly before the election Harry Koppel said that the Union could insist upon demands which, if forced upon the Company, would make the Company unable to compete.*fn3 Koppel also stated to the employees that the Union would cause the loss of flexibility at the plant. This flexibility, Koppel stated, made possible both the acceptance of small orders, which ensured full employment, and the completion of such orders, which kept the Company ahead of its competitors. Loss of that flexibility, he implied, would result in layoffs and loss of competitive advantage.
Finally the Company threatened plant closure. In an Open Letter to the employees, for example, the Management stated:
Be wise when voting on Wednesday. Remember the fate of the employees of Mack Truck, the Textile Mills and many others that were located in the past in the New Brunswick area.
When you are thinking about whether or not to vote for a union, ask yourself these questions:
Are you organizing your plant out of a competitive position ?
Are you organizing yourself out of regular employment and ...