API Industries

National Labor Relations Board - Board Decisions

Aug 12, 1994

314 N.L.R.B. 706 (N.L.R.B. 1994)

706
314 NLRB No. 118
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent argues that it did not violate Sec. 8(a)(1) of the
Act because the allegedly unlawful statements in the July 10 and 13,
1993 documents that were passed out to its Spanish-speaking em-
ployees were caused by ‘‘a shoddy translation service,’’ and because
it did not intend to violate the Act. In addition to those reasons
given by the judge for rejecting these arguments, we find under the
doctrine of apparent authority that the Respondent is responsible for
the translation of its speeches supplied to the employees. As the
Board has indicated, ‘‘[e]ven if the conduct of another was contrary
to an employer’s express instruction, the employer will be held re-
sponsible for that conduct if employees could reasonably believe that
the acts were authorized.’’ Toyota of Berkeley, 306 NLRB 893, 912
(1992). Such a situation applies here where the Respondent hired the
translation service specifically to translate its speeches and then dis-
tributed the Spanish language translations after the English language
speeches were given. Given these circumstances and the wording of
the translations themselves, the employees would ‘‘reasonably be-
lieve’’ that the translations were authorized and the Respondent is
thus legally responsible for them.
1 All dates refer to 1993 unless otherwise specified.
Aluf Plastics, A Division of API Industries, Inc. and
International Ladies’ Garment Workers’
Union, AFL–CIO/CLC. Case 2–CA–26698
August 12, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On February 3, 1994, Administrative Law Judge D.
Barry Morris issued the attached decision. The Re-
spondent filed exceptions and a supporting brief and
the General Counsel filed the brief earlier filed with
the judge.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Aluf Plastics, A Division
of API Industries, Inc., Orangeburg, New York, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Order.
Stephanie LaTour, Esq. and David Leach, Esq., for the Gen-
eral Counsel.
Elliot J. Mandel, Esq. (Kaufman, Naness, Schneider &
Rosensweig), of Melville, New York, for the Respondent.
Brent Garren, Esq., of New York, New York, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case
was heard before me in New York, New York, on December
21, 1993.1 Upon a charge filed on July 14, a complaint was
issued on August 26, alleging that Aluf Plastics, a Division
of API Industries, Inc. (Respondent) violated Section 8(a)(1)
of the National Labor Relations Act (Act). Respondent filed
an answer denying the commission of the alleged unfair
labor practices.
The parties were given full opportunity to participate,
produce evidence, examine and cross-examine witnesses,
argue orally, and file briefs. Briefs were filed by the General
Counsel and by the Respondent.
On the entire record of the case, including my observation
of the demeanor of the one witness who testified, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation with an office and
place of business in Orangeburg, New York, has been en-
gaged in the extrusion of polyethylene stock and related ma-
terials. It annually purchases and receives at its New York
facility goods valued in excess of $50,000 directly from
sources located outside the State of New York. Respondent
admits, and I so find, that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act. In addition, it has been admitted, and I find, that Inter-
national Ladies’ Garment Workers’ Union, AFL–CIO/CLC
(Union) is a labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
An election was scheduled to be held among Respondent’s
employees in the appropriate bargaining unit on July 15. Ap-
proximately 30 percent of those employees are Spanish
speaking. On July 10 and 13 Respondent distributed to the
employees two documents written in Spanish. The July 10
document stated, in pertinent part:
I have come to realize that some of you wish to vote
that day for ILGWU, believing that it will get you bet-
ter benefits. I would like to explain to you how this
works: If ILGWU should win, they will have to sit with
me and my lawyers to negotiate a new contract and all
the benefits you have, you will lose. The negotiations
of a contract with a new Union may take a long time
(months and years). During this time I have no right to
give you an increase or any other benefits and if I
want, we will never reach an agreement.
If ILGWU proposed an increase in some of the bene-
fits that you now have, I would immediately propose to
reduce all the benefits that you have now, be aware that
right now no business is leaving big gains, for this rea-
son if ILGWU makes too many demands, my lawyers
707API INDUSTRIES
2 For example, the July 10 speech asserts that the ILGWU has lost
‘‘80%’’ of its members in the last 20 years. The Spanish document,
however, as translated, states that the Union lost ‘‘200,000 mem-
bers’’ over the last 20 years. It is most improbable that the trans-
lation service would have made this change.
and myself will present our proposals, but there is
something very important, if ILGWU wins, the health
insurance that you now have with Local 17–18 will be
cancelled immediately. . . . I am not against all
Unions, but I am against Unions such as ILGWU since
they try to put companies out of business by making
absurd and excessive salary demands, and you may also
lose your job. . . . If you really know me, the response
is a simple one, protect yourself, the daily work and in
that way you may have better benefits with your Local
17–18, then next Thursday, July 15, vote against
ILGWU so that you will always have work at Aluf
Plastics.
The July 13 document stated, in pertinent part:
I don’t mind telling you that we have prospered be-
cause Local 17–18 has helped us. They have struggled
together with us so that our business would grow. I
don’t think that it is necessary to change the Union, be-
cause with I.L.G.W.U. we would go back to the past,
I know that they have promised you many things. I will
tell you something very clear, that I will not do any-
thing for you if in the remote case you decide to vote
for I.L.G.W.U. . . . . I am not saying that we’ll go into
bankruptcy, but if you ever get confused and vote for
the false promises that the I.L.G.W.U. is offering and
all those big absurd demands that that Union is requir-
ing, I can assure you that the only thing left for me is
to go into bankruptcy which would be the same as clos-
ing the company.
B. Discussion and Conclusions
1. Respondent’s contentions
The complaint alleges that through the above-quoted docu-
ments, Respondent threatened employees with loss of bene-
fits and loss of jobs if they selected the Union as their bar-
gaining representative; promised employees continued em-
ployment if they did not select the Union; informed employ-
ees that it would be futile for them to select the Union; and
threatened to close the facility if the employees selected the
Union. Respondent maintains that the documents were trans-
lations of speeches originally given in English. Respondent
argues that the original English speeches did not contain ob-
jectionable material but that Respondent hired a translation
service which prepared the Spanish documents and
mistranslated the English speeches. The record contains cop-
ies of both the original English speeches and translations of
the Spanish documents. A comparison of the two shows that
the contention that the translation service misinterpreted the
speeches is highly implausible. The Spanish documents con-
tain phrases which do not appear in the English speeches, de-
lete sentences and make other changes.2 It is highly unlikely
that a professional, independent translation service would
make these changes on its own.
In addition, Respondent is arguing that it did not intend
to distribute information which contained statements violative
of the Act. However, as the Board stated in American
Freightways Co., 124 NLRB 146, 147 (1959):
It is well settled that the test of interference, re-
straint, and coercion under Section 8(a)(1) of the Act
does not turn on the employer’s motive or on whether
the coercion succeeded or failed. The test is whether
the employer engaged in conduct, which, it may reason-
ably be said, tends to interfere with the free exercise of
employee rights under the Act.
See also El Rancho Market, 235 NLRB 468, 471 (1978).
Citing 15th Avenue Iron Works, 279 NLRB 643 (1986),
Respondent argues that there is no evidence that the Spanish-
speaking employees read the documents and therefore no
violation can be found. In that case the complaint alleged
that respondent threatened a union official with bodily harm.
The administrative law judge found that the threat was made
to the official in Italian and no showing was made that the
employees who were present understood Italian (id. at 654).
In the instant proceeding it was stipulated that 30 percent of
the bargaining unit employees are Spanish speaking and that
the two documents, written in Spanish, were distributed to
them. I believe that 15th Avenue Iron Works, supra, is clearly
distinguishable.
2. Threatened loss of benefits and promise of
continued employment
The July 10 document stated that ‘‘if ILGWU should win,
they will have to sit with me and my lawyers to negotiate
a new contract and all the benefits you have, you will lose.’’
The document further stated, ‘‘if ILGWU proposed an in-
crease in some of the benefits that you now have, I would
immediately propose to reduce all the benefits that you now
have.’’ The document concluded, ‘‘next Thursday, July 15,
vote against ILGWU so that you will always have work at
Aluf Plastics.’’ The statements, ‘‘all the benefits you have,
you will lose’’ and ‘‘I would immediately propose to reduce
all the benefits you have now’’ were not based on any objec-
tive factual basis that could have made the statements per-
missible under Section 8(a)(1) of the Act. See Laidlaw Tran-
sit, 297 NLRB 742 (1990). I find these to be threats violative
of Section 8(a)(1) of the Act. See Shaw’s Supermarkets, 289
NLRB 844, 848 (1988). In addition, the statement ‘‘vote
against ILGWU so that you will always have work at Aluf
Plastics’’ violated Section 8(a)(1) of the Act because it prom-
ised benefits to the employees to dissuade them from seeking
union representation. See Sewell-Allen Big Star, 294 NLRB
312, 315 (1989); Columbus Mills, 303 NLRB 223, 230
(1991).
3. Futility of choosing Union
The complaint alleges that Respondent informed employ-
ees that it would be futile for them to select the Union as
their bargaining representative. In the July 10 document Re-
spondent stated, ‘‘if I want, we will never reach an agree-
ment.’’ I find that this statement was intended to convey to
the employees the view that it would be futile for them to
choose the Union to be their bargaining representative, in
violation of Section 8(a)(1) of the Act. See Jones Plumbing
708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
4 If 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Co., 277 NLRB 437, 440 (1985); Jennie-O Foods, 301
NLRB 305, 330 (1991).
4. Threat of loss of jobs
The July 10 document stated, ‘‘I am against Unions such
as the ILGWU since they try to put companies out of busi-
ness by making absurd and excessive salary demands, and
you may also lose your job.’’ It is well settled that an em-
ployer violates Section 8(a)(1) of the Act when it threatens
employees with discharge or job loss because of their union
activities. See Jasta Mfg. Co., 246 NLRB 48 (1979). I find
that by its statement ‘‘you may also lose your job,’’ Re-
spondent threatened employees with loss of jobs if they se-
lected the Union as their bargaining representative, in viola-
tion of Section 8(a)(1) of the Act. See Columbus Mills,
supra, 303 NLRB at 232. In 299 Lincoln Street, Inc., 292
NLRB 172, 173 (1988), the Board held that a statement
which informed unit employees that their jobs could be lost
violated the Act. The Board pointed out (at 173), ‘‘Respond-
ent’s predictions are not accompanied by any objective facts
that would tend to establish any substantial likelihood of
their occurrence.’’
5. Threat to close facility
In the July 13 document Respondent stated, ‘‘if you ever
get confused and vote for the false promises that the
I.L.G.W.U. is offering and all those big absurd demands that
the Union is requiring, I can assure you that the only thing
left for me is to go into bankruptcy which would be the same
as closing the company.’’ Respondent gave no factual basis
for its prediction that it might go into bankruptcy and would
therefore close the company. I find that the statement, ‘‘the
only thing left for me is to go into bankruptcy which would
be the same as closing the company’’ violated Section
8(a)(1) of the Act by threatening employees that it would
close its facility if they voted for the Union. See Tomco Car-
buretor Co., 275 NLRB 1, 4 (1985); Quality Aluminum
Products, 278 NLRB 338 (1986), enfd. 813 F.2d 795 (6th
Cir. 1987); Columbus Mills, supra, 303 NLRB at 235.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By threatening employees with loss of benefits and loss
of jobs if they selected the Union as their bargaining rep-
resentative; by promising employees continued employment
if they did not select the Union; by informing employees that
it would be futile for them to select the Union as their bar-
gaining representative; and by threatening to close the facil-
ity if the employees selected the Union, Respondent has en-
gaged in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I find it necessary to order Respondent
to cease and desist therefrom and to take certain action de-
signed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Aluf Plastics, a Division of API Indus-
tries, Inc., Orangeburg, New York, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with loss of benefits and loss
of jobs if they select the Union as their bargaining represent-
ative, promising employees continued employment if they do
not select the Union, informing employees that it would be
futile for them to select the Union and threatening to close
the facility if the employees selected the Union as their bar-
gaining representative.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its facility in Orangeburg, New York, copies of
the attached notice marked ‘‘Appendix.’’4 Copies of the no-
tice on forms provided by the Regional Director for Region
2, after being duly signed by Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and be maintained for 60 consecutive days in
conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties were afforded the oppor-
tunity to present evidence it has been found that we violated
the National Labor Relations Act in certain respects and we
have been ordered to post this notice.
WE WILL NOT threaten employees with loss of benefits or
loss of jobs if they select the Union as their bargaining rep-
resentative, promise employees continued employment if they
do not select the Union, inform employees that it would be
709API INDUSTRIES
futile for them to select the Union and threaten to close the
facility if the employees select the Union as their bargaining
representative.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
ALUF PLASTICS, A DIVISION OF API INDUS-
TRIES, INC.