Alpha Cellulose Corporation

National Labor Relations Board - Board Decisions

Oct 21, 1982

265 N.L.R.B. 177 (N.L.R.B. 1982)

ALPHA CELLULOSE CORPORATION
Alpha Cellulose Corporation and United Paper-
workers International Union, AFL-CIO-CLC.
Cases 11-CA-8761 and 11-RC-4770
October 21, 1982
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
An election by secret ballot was conducted in
Case 1I -RC-4770 on November 7, 1979, under the
direction and supervision of the Regional Director
for Region 11. At the conclusion of the election, a
tally of ballots showed that 53 ballots were cast, of
which 24 were for, and 29 were against, United Pa-
perworkers International Union, AFL-CIO-CLC,
herein the Union. The Union thereafter filed timely
objections to the election.
Upon a charge duly filed on November 20, 1979,
by the Union, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 11, on January 4, 1980, issued a com-
plaint and notice of hearing against Respondent.
The complaint alleged that Respondent had en-
gaged in, and was engaging in, certain unfair labor
practices affecting commerce within the meaning
of Section 8(a)(1) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Copies
of the charge and of the complaint and notice of
hearing were duly served on the parties.
Thereafter, on January 8, 1980, the Regional Di-
rector issued a Report on Objections, Direction,
and Order Consolidating Cases in which he recom-
mended that certain of the objections in Case 11-
RC-4770 be overruled and that others be set for
hearing. As the evidence in support of the objec-
tions warranting a hearing was similar to that of-
fered in support of the unfair labor practices, he
further consolidated Case 11-RC-4770 with Case
I 1-CA-8761 for the purpose of hearing, ruling, and
decision by an administrative law judge. The Board
adopted that report on February 1, 1980.
Subsequently, on March 4, 1981, the parties and
the General Counsel entered into a stipulation in
Cases 11-CA-8761 and 11-RC-4770 and agreed
that the stipulation and exhibits attached thereto
would constitute the entire record in this proceed-
ing. The parties waived a hearing before, and the
making of findings of fact and conclusions of law
by, an administrative law judge and indicated their
desire to submit the case directly to the Board for
decision. On April 22, 1981, the Board issued its
order approving the stipulation, transferring the
proceeding to the Board, and setting a date for
265 NLRB No. 10
filing briefs. Thereafter, Respondent and the Gen-
eral Counsel filed briefs.
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 stipulation, includ-
ing exhibits, briefs, and the entire record in this
proceeding and hereby makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Alpha Cellulose Corporation is an Ohio corpora-
tion with a plant located in Lumberton, North
Carolina, where it is engaged in the production of
cotton linter paper pulp. During the preceding 12-
month period ending February 19, 1981, Respond-
ent in the course and conduct of its business re-
ceived at its Lumberton, North Carolina, plant
goods and raw materials directly from points out-
side the State of North Carolina valued in excess of
$50,000 and, during the same period of time, Re-
spondent shipped directly to points outside the
State of North Carolina products valued in excess
of $50,000.
The complaint alleges, Respondent admits, and
we find that Alpha Cellulose Corporation is, and
has been, engaged in commerce within the meaning
of Section 2(6) and (7) of the Act. We find that it
would effectuate the purposes of the Act to assert
jurisdiction herein.
I1. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admits, and
we find that United Paperworkers International
Union, AFL-CIO-CLC, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
On October 11, 1979, the Union mailed a letter
to all employees in the bargaining unit which dis-
cussed the procedure for calling a strike, dues, as-
sessments, and the benefits of unionism. On Octo-
ber 16, October 23, and October 30, 1979, allegedly
in response to the Union's letter, Respondent
mailed letters to its employees. Certain of the state-
ments in those letters are alleged as objectionable,
and as unfair labor practices.
1. The October 16 letter from Respondent out-
lined the collective-bargaining process, and stated,
inter alia, that "[n]egotiation is a long, drawn-out
process that can take many months, and in the
meantime all wages and benefits are frozen. There
can be no wage increase or any benefits improved by
177
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company' during this period of negotiation."
(Emphasis in original.)
Respondent argues that the letter merely recited
the realities of collective bargaining in response to
the Union's earlier letter which "misrepresented"
that unionization necessarily meant better wages
and benefits for the employees. Respondent asserts
that there is no indication in the letter that employ-
ees would lose wages and benefits during negotia-
tions or that it would not bargain in good faith.
And Respondent claims that, in fact, during negoti-
ations an employer cannot unilaterally implement a
benefit without bargaining with the union and the
letter apprises the employees of the fact.
We agree with the General Counsel, however,
that Respondent violated Section 8(a)(1) of the Act
by declaring that wages and benefits would be
frozen during the period of contract negotiations.
The letter, in fact, not only misinformed the em-
ployees as to the law by stating that the negotia-
tions prevented employee wage increases,' it also
implied that a rejection of the Union would free
the Company to grant raises and other benefits.
The employees were thereby led to conclude that a
penalty was attached to the exercise of their rights
in choosing a bargaining representative. 2 We thus
find that the portions of the letter discussed above
violated Section 8(a)(1) of the Act and were objec-
tionable statements.
2. In the October 23 and October 30 letters, Re-
spondent discussed the possibility of a strike and
what it could mean to the employees. In the Octo-
ber 23 letter, it stated, inter alia:
Strikers can lose their jobs! . . . Could you
afford to lose your job if you were permanently
replaced during a strike? Could you afford to
let your seniority at Alpha, your steady pay,
and your benefits package go down the drain?
If you were a replaced striker do you think you
could find another job in the Lumberton area?
The October 30 letter declared:
You should think seriously about whether you
would want to risk being permanently replaced
on your job. What kind of job security does a
replaced striker have? Do you want to risk
i Under Board law, it is axiomatic that it is an employer's general duty
to proceed as it would have in the absence of a union. Russell Stover Can-
dies Inc., 221 NLRB 441 (1975). Thus, even during collective-bargaining
negotiations, an employer may lawfully implement benefits which have
become conditions of employment by virtue of prior commitment or
practice. Charles Manufacturing Co., 245 NLRB 39 (1979); see also La
Marche Manufacturing Company, 238 NLRB 1470, 1481 (1978).
2 See Baker Brush Co., Inc., 233 NLRB 561 (1977). Therein, the Board
held that an employer violated Sec. 8(aXl) by suggesting that employees
did not need a union in order to obtain wage increases and by conveying
the impression that the union stood in the way of the employees' prompt
receipt of a higher wage.
your paycheck, your medical insurance or
your bonuses going down tie drain? If you
were a replaced striker do you think you could
get another job in the Lumberton area?
The General Counsel alleges first that in these
two letters Respondent mischaracterized the appli-
cable law governing the rights of strikers and that
this resulted in a threat of loss of jobs if employees
engaged in protected concerted activities. Respond-
ent, however, contends that it has only informed
employees of the fact that the Union could call a
strike, which could result in the hiring of replace-
ments for the strikers, with the unfavorable eco-
nomic consequences to replaced strikers which
could follow from the Union's action.
It is undisputed that an employer may perma-
nently replace employees who are engaging in an
economic strike. However, replaced employees
retain their employee status and are entitled to re-
instatement to their former or equivalent jobs,
when their replacements leave or those jobs
become available. The Laidlaw Corporation, 171
NLRB 1366, 1369-70, 414 F.2d 99 (7th Cir. 1969),
cert. denied 397 U.S. 920 (1970). See also Fire Alert
Company, 207 NLRB 885 (1973). In addition, eco-
nomic strikers also retain their accumulated senior-
ity while engaged in a strike.3
Here in its October 23 letter, Respondent indicat-
ed to employees not only that, if they struck, they
could be permanently replaced, as Laidlaw permits,
but that they could lose their job as a result of
striking. The Board has long held that such clear
threats to sever employment relationships in the
event that employees engage in an economic strike
amount to threats of job loss in violation of Section
8(a)(1) of the Act.4 This misstatement was also ob-
jectionable conduct affecting the results of the No-
vember 7 election and interfered with the rights of
employees to choose a collective-bargaining repre-
sentative. Edward A. Utlaut Memorial Hospital and
Fair Oaks Nursing Home, 249 NLRB 1153, 1157
(1980).
For similar reasons, we also find the October 30
letter to constitute an 8(a)(1) violation and basis for
a valid objection to the election. When read in
light of the October 23 letter, the October 30 letter
confirmed to employees that an exercise of the
right to strike would, as a matter of course, lead to
3 See MCC Paciflc Valves, a unit of Mark Controls Corporation, 244
NLRB 931, 935, fn. 19 (1979), and cases cited therein (1979).
4 See, e.g., Leonardo Truck Lines, Inc., 237 NLRB 1221, 1229, 1232
(1978); George Webel d/b/a Webel Feed Mills & Pike Transit Company,
217 NLRB 815, 818 (1975); Hicks-Ponder Co. A Division of Blue Bell.
Inc., 186 NLRB 712, 725 (1970); cf. Mississippi Extended Care Center,
Inc., d/b/a Care Inn, Collierville and d/b/a Care Inn. Memphis, 202
NLRB 1065 (1973).
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ALPHA CELLULOSE CORPORATION
a permanent loss of their jobs and accompanying
benefits. 5
3. Finally, the General Counsel contends that in
the October 23 and October 30 letters Respondent
violated Section 8(a)(1) of the Act by threatening
its employees that they would be unable to find
employment elsewhere in the Lumberton area if
they went on strike. He contends Respondent
stated no objective basis for its opinion which was
clearly calculated to coerce its employees, give the
impression of collusion against strikers on the part
of area employers, and restrain the employees from
joining the Union.
In this regard, Respondent counters that its state-
ment merely conveyed to employees the difficul-
ties-in a local area with a high unemployment
rate-of obtaining another job. Respondent also
argues that its statements refer only to possibili-
ties-not absolutes. Accordingly, Respondent con-
tends that its statements regarding out-of-work
strikers were not threatening, were based on con-
crete evidence, and were protected by Sec. 8(c) of
the Act.
We agree with the position of the General Coun-
sel. Contrary to Respondent, its statements were
not limited to lawful predictions of the conse-
quences of unionization.6 Rather, Respondent's
message contained a not-so-subtle threat that em-
a Contrary to his colleagues, Member Zimmerman finds that Respond-
ent did not threaten job loss in the October 30 letter as it did in its earlier
letter. See Mississippi Extended Care Center, Inc, supra. He would not
find its comments on this issue in the October 30 letter to constitute a
violation of the Act or objectionable conduct.
While the General Counsel also claims that both letters violate Sec.
8(aXI) because they fail to differentiate the rights to reinstatement of
unfair labor practice and economic strikers, we are satisfied that Re-
spondent's letter fairly speaks of a situation involving an economic strike.
6 As set forth by the Supreme Court in Gissel Packing Ca, Inc. v.
N.LR.B., 395 U.S. 575, 618 (1969):
Thus, an employer is free to communicate to his employees any of
his general views about . a particular union, so long as the com-
munications do not contain a "threat of reprisal or force or promise
of benefit." He may even make a prediction as to the precise effect
he believes unionization will have on his company. In such a case,
however, the prediction must be carefully phrated on the basis of
objective fact to convey an employer's belief as to demonstrably
probable consequences beyond his control or to convey a manage-
ment decision already arrived at to close the plant in case of union-
ization. See Textile Workers v. Darlington Mf. Ca, 380 U.S. 263,
274, n. 20 (1965). If there is any implication that an employer may or
may not take action solely on his 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 "[fconveyance of the employer's belief,
even though sincere, that unionization will or may result in the clos-
ing of the plant is not a statement of fact unless, which is most prob-
able, the eventuality of closing is capable of proof." [N.LR.B. v.
Sinclair Co.,] 397 F.2d 157, 160. list Cir 1968]. As stated elsewhere,
an employer is free only to tell "what he reasonably believes will be
the likely economic consequences of unionization that are outside his
control," and not "threats of economic reprisal to be taken solely on
his own volition." N.LR.B v. River Togs, Inc., 382 F.2d 198, 202 (2d
Cir. 1967).
ployees who engaged in protected concerted activ-
ities would be blacklisted by Respondent and
would, for discriminatory reasons, be denied em-
ployment by other employers. 7 Respondent's let-
ters made no mention of area unemployment nor
did they speak to the general problem of unem-
ployed persons gaining employment. Instead, they
suggested that a "replaced striker" (i.e., one who
exercised Section 7 rights) would not be hired by
other employers.
Under these circumstances, the effect of these
statements was to impress upon the employees the
folly and futility of electing the union, for if the
union was voted in and a strike was called, the em-
ployees would not only be permanently replaced
by Respondent, but the doors of employment to
other plants in the Lumberton area would be shut
as well.
Viewed in this overall context and coupled with
Respondent's threats of permanent replacement, s it
seems clear, and we find, that the statements that
the employees would not be able to find other em-
ployment in the area also restrained and coerced
employees in violation of Section 8(a)(1) of the
Act."
In light of the above we shall also sustain the
Union's objections, set aside the election, and direct
a second election.
CONCLUSIONS OF LAW
1. Alpha Cellulose Corporation is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
I See Brownsboro Hills Nursing Homn Inc., 244 NLRB 269, 272-273
(1979); Richard Tischler, et al d/b/a Devon Gables Nursing Home, 237
NLRB 775, 783-784 (1978), enfd. 615 F.2d 508 (9th Cir. 1980); The Coca-
Cola Bottling Company of Son Mateo, 188 NLRB 590, 596 (1971).
Cases cited by Respondent, such as Industrial First, Inc, 197 NLRB
714 (1972), and Primadonna Hotel Inc., d/b/a Primadonna Club, 165
NLRB 111 (1967), do not require a contrary result. In those cas, the
evidence was insufficient to establish that employer remarks about em-
ployees finding other employment constituted threats to blacklist. Here,
Respondent's statement, considered in context of its strong antiunion mes-
sage, must be considered an implied threat to blacklist employees on ac-
count of their protected activities. See Devon Gables Nursing Home,
supra.
Member Zimmerman does not join his colleagues in finding that Re-
spondent's comments, in its October 23 and October 30 letters about
strikers' ability to secure employment elsewhere in the event they were
permanently replaced, constitute either an unfair labor practice or objec-
tionable conduct. He finds the majority to be engaged in pure specula-
tion, unsupported by the record, in concluding that Respondent intended
by these comments a threat to blacklist employees, and he finds the cases
cited at fn. 8, supra, inapposite to the instant case. Rather, Member Zim-
merman deems these comments legitimate campaign rhetoric and views it
as permissible for an employer to ask its employees to consider their em-
ployment possibilities elsewhere in the event they went on strike and
were permanently replaced. He reaches this conclusion with regard to
the comments in the October 23 letter, although he joins in finding that
another portion of that letter contained impermissible comments. That
finding does not, in his view, taint the remainder of the letter, or warrant
the finding of an additional violation.
179
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. United Paperworkers International Union,
AFL-CIO-CLC, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By announcing to its employees that wages
and benefits would be frozen during the collective-
bargaining negotiations, Respondent interfered with
employees' exercise of Section 7 rights in violation
of Section 8(a)(l) of the Act.
4. By threatening the employment rights of eco-
nomic strikers and stating that they would be
unable to obtain employment with other employers
as well if they engaged in a strike, Respondent vio-
lated Section 8(a)(l) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Alpha Cellulose Corporation, Lumberton, North
Carolina, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Declaring that all wages and benefits would
be frozen during the period of contract negotia-
tions.
(b) Threatening employees with permanent loss
of employment and reinstatement rights should
they engage in an economic strike.
(c) Threatening its employees that they will be
unable to find employment elsewhere in the Lum-
berton area if they go on strike.
(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the purposes and policies of the
Act:
(a) Post at its Lumberton, North Carolina, facili-
ties, in all buildings, copies of the attached notice
marked "Appendix."1 0 Copies of said notice, on
forms provided by the Regional Director for
Region 11, after being duly signed by a representa-
tive of Respondent, shall be posted by Respondent
immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in
"o 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
conspicuous places, including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to ensure
that said notices are not altered, defaced, or cov-
ered by any other material.
(b) Notify the Regional Director for Region 11,
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 election held
on November 7, 1979, in Case 1I -RC-4770 be, and
it hereby is, set aside and that the case is hereby
remanded to the Regional Director for Region 11
for the purpose of scheduling and conducting an-
other election at such time that he deems circum-
stances permit a free choice on the issue of repre-
sentation.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT declare that if the Union wins
the election all wages and benefits will be
frozen during the period of contract negotia-
tions.
WE WILL NOT threaten employees with per-
manent loss of employment and reinstatement
rights should they engage in an economic
strike.
WE WILL NOT threaten employees that they
will not be able to find employment elsewhere
in the Lumberton area if they go on strike.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their right to engage in
or to refrain from engaging in any or all the
activities specified in Section 7 of the Act.
These activities include the right to self-orga-
nization, to bargain collectively through repre-
sentatives of their own choosing, and to
engage in other concerted activities for the
purpose of collective bargaining, or other
mutual aid or protection.
ALPHA CELLULOSE CORPORATION
180