Crown Cork & Seal Co.

National Labor Relations Board - Board Decisions

Aug 31, 1992

308 N.L.R.B. 445 (N.L.R.B. 1992)

445
308 NLRB No. 68
CROWN CORK & SEAL CO.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility findings unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing the findings.
2 We modify the judge’s recommended conclusions of law to con-
form to his findings.
3 The judge found that, in the course of the union campaign, the
Respondent repeatedly threatened its employees with layoffs and job
loss if the Respondent’s end press and can handling equipment were
not installed at the Vineland plant. The Respondent based its ‘‘pre-
dictions’’ on Vineland’s alleged lack of competitiveness, vis-a-vis its
sister plants, if the Union won the election. In adopting the judge’s
findings in this regard, we emphasize the Respondent’s failure to
substantiate its claims with any objective supporting evidence, such
as wage scales, benefits, and total costs and efficiency of the plants
where the Steelworkers’ contract was not in effect. This
anticompetitiveness theme in its campaign literature and speeches
thus was not ‘‘carefully phrased on the basis of objective fact to
convey [the Respondent’s] belief as to demonstrably probable con-
sequences beyond [no] control.’’ NLRB v. Gissel Packing Co., 395
U.S. 575, 618 (1969). ‘‘It is,’’ as stated succinctly by the judge,
‘‘merely the Respondent’s ipsi dixit.’’ 4 219 NLRB 298 (1975).
Crown Cork & Seal Company, Inc. and United
Steelworkers of America, AFL–CIO–CLC.
Cases 4–CA–18732, 4–CA–18892, and 4–RC–
17299
August 31, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On September 23, 1991, Administrative Law Judge
Robert W. Leiner issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed cross-exceptions and a support-
ing brief, and both the Respondent and the General
Counsel filed reply briefs.
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,1 and con-
clusions as modified,2 and to adopt the recommended
Order as modified.
The judge found, inter alia, that, as of February 22,
1990, the Union had valid authorization cards signed
by 18 of the 31 employees in the unit. He also found
that the Respondent embarked on its course of unfair
labor practices on that date, and that the nature and
pervasiveness of the Respondent’s unfair labor prac-
tices at its Vineland, New Jersey plant render a fair
rerun election unlikely and that a bargaining order is
warranted under these circumstances. We agree.3
We disagree, however, with the judge’s issuance of
a bargaining order that is retroactive to the date of the
election, May 3, 1990, rather than to February 22,
1990, when the Respondent commenced its unlawful
conduct. As the judge recognized, in Trading Port,4 in
which the Board first issued a retroactive remedial bar-
gaining order, the employer’s bargaining obligation at-
tached on the date the union demanded recognition and
bargaining, not the earlier date when the employer had
embarked on its course of unlawful conduct. The judge
further correctly observed that here, according to a
clause in the master agreement between the Union and
the Respondent covering production and maintenance
employees at 12 other of the Respondent’s plants, the
Respondent was required to apply the contract to any
newly recognized or certified unit, including the Vine-
land plant unit. In the absence of a demand for rec-
ognition and bargaining and because of operation of
this ‘‘automatic recognition’’ clause, the judge rec-
ommended against dating the Employer’s bargaining
obligation from February 22. Retroactive application,
he concluded, would result in a ‘‘windfall’’ to the
Union in obtaining substantial contract benefits. The
judge found that May 3, when the election was held,
was the more appropriate date for fixing the Respond-
ent’s bargaining obligation. The judge reasoned that
the May 3 date would avoid the ‘‘windfall,’’ would
comport with the expectations of the parties, and
would avoid the appearance of having punitive ele-
ments in the remedy. We reverse.
In Peaker Run Coal Co., 228 NLRB 93 (1977), the
Board rejected the argument that a retroactive bargain-
ing order is inappropriate in the absence of a demand
for recognition and bargaining. That is, such a bargain-
ing order can be an appropriate remedy for unfair labor
practices even in the absence of an 8(a)(5) violation
for failing to recognize a majority representative on de-
mand. Further, the Board said that the bargaining order
would attach on the date when the union had achieved
majority status and the employer had begun its unlaw-
ful campaign. In that way, any subsequent change, not
otherwise unlawful and remediable, would be subject
to the bargaining obligation. The Board distinguished
Trading Port, a case where the bargaining order was
dated as of the Union’s demand for recognition rather
than the earlier date of Trading Port’s unfair labor
practices. In that case, all conduct prior to the demand
for recognition had been individually remedied by the
Board’s order and thus there was no need to subject
such conduct to the bargaining obligation.
In the instant case, the Union had achieved majority
status, and the Respondent began its unlawful cam-
paign on February 22. Further, the contract between
the parties (covering other locations) provides that if
the Union becomes the representative at a new location
the contract benefits will apply at that location. Thus,
446 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 See, e.g., Bighorn Beverage, 236 NLRB 736 (1978), enfd. 614
F.2d 1238 (9th Cir. 1980).
there is a remedial purpose to be served by dating the
bargaining obligation from February 22.
Contrary to the judge, neither the expectations of the
parties nor the avoidance of a punitive remedial order
warrants a departure from the well-established rule of
Peaker Run which requires that the bargaining order be
retroactive to the Respondent’s February 22 unfair
labor practices. Compliance shall offset differences in
wage and benefit relief provided under the master
agreement against noncontractual wages and benefits
that the Respondent has paid since its bargaining obli-
gation attached. The judge’s concern that an unwar-
ranted ‘‘windfall’’ of benefits will be bestowed on the
Union is therefore unfounded.
Further, the date of the election is an arbitrary event
by which to fix the Respondent’s bargaining violation:
not even the filing of a representation petition—much
less the parties’ proceeding to a Board election—is a
necessary predicate to the grant of a retroactive Gissel
bargaining order.5 Accordingly, we shall order the Re-
spondent to bargain with the Union as of February 22,
1990, the date on which the Respondent’s unfair labor
practices began, by which date the Union had also
achieved majority status.
AMENDED CONCLUSIONS OF LAW
Insert the following as paragraphs 7 and 8 and re-
number subsequent paragraphs.
‘‘7. About April 25, 1990, the Respondent, by
James Toomey, its supervisor and agent, violated Sec-
tion 8(a)(1) of the Act by threatening job loss by unit
employees if they selected the Union as their collec-
tive-bargaining representative in the Board-conducted
election on May 3, 1990.’’
‘‘8. About May 1, 1990, the Respondent, by John
Bugnitz, its supervisor and agent, violated Section
8(a)(1) of the Act by coercively interrogating an em-
ployee regarding his union activities.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Crown Cork & Seal Com-
pany, Inc., Vineland, New Jersey, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified.
1. Substitute the following for paragraph 2(b).
‘‘(b) Make whole Vineland unit employees for the
period commencing February 22, 1990, for any loss of
earnings and benefits they may have sustained by vir-
tue of the Respondent’s failure to apply the terms of
the master agreement to them, and make whole the
Union for any master agreement contributions the Re-
spondent failed to make to it commencing February
22, 1990.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT coercively interrogate our employees,
threaten them with loss of benefits or plant shutdown
or layoffs, or tell them that if the Union gets in they,
or any of them, would be responsible for loss of jobs
because of their support for or membership in the
United Steelworkers of America, AFL–CIO–CLC, the
Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights to self-organization, to form, join, or as-
sist any labor organization, to bargain collectively
through representatives of their own choosing, or to
engage in concerted activities for the purposes of col-
lective bargaining or other mutual aid or protection, or
to refrain from any and all such activities.
WE WILL recognize and, on request, bargain collec-
tively with the Union, as the exclusive representative
of the employees in the following unit, by applying the
terms of the master agreement, and any applicable
amendment or successor thereof, to the Vineland unit
employees and the Union, retroactive to February 22,
1990, and thereafter continue to recognize and bargain
with the Union with respect to rates of pay, hours, and
other terms and conditions of employment in the fol-
lowing unit:
All full-time and regular part-time production and
maintenance employees, employed by the Re-
spondent at its 502 West Elmer Road, Vineland,
New Jersey facility, but excluding office clerical
employees, guards and supervisors as defined in
the Act.
WE WILL make whole Vineland unit employees for
the period commencing February 22, 1990, for any
loss of earnings and benefits they may have sustained
by virtue of our failure to apply the terms of the mas-
ter agreement to them, and make whole the Union for
447CROWN CORK & SEAL CO.
1 The name of Respondent was corrected at the hearing. Respond-
ent, in a stock purchase of July 15, 1990, acquired the Food Packag-
ing Division of Continental Can Company. The alleged unfair labor
practices appearing here as well as the Board-conducted election, to-
gether with the supporting papers, all are in the name of Respond-
ent’s predecessor, Continental Can Company, Inc., Continental Food
Packaging Division. Respondent concedes, however, that it has con-
tinued as the employing entity and that it is the successor of the
Continental Can Company (Tr. 28). At the hearing, Respondent also
admitted that it was on notice of Continental Can’s obligation to
remedy the alleged unfair labor practices (Tr. 28; G.C. Exhs. 1(u)
and (b)). The General Counsel argues, and I agree, that Respondent
is liable for remedying the unfair labor practices in the instant case,
Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973).
2 The underlying unfair labor practice charge, filed by United Steel
Workers of America, AFL–CIO–CLC (the Union) in Case 4–CA–
18732 on March 15, 1990, was served on March 19, 1990. The
charge in Case 4–CA–18892 was filed on May 8, 1990, and served
on Respondent on May 10, 1990.
3 Respondent also admitted, in its answer and at the hearing, that
its plant manager, John Bugnitz, and its corporate manager of em-
ployee relations, Lynne Krueser (through August 3, 1990), have
been, at all material times, its supervisors within the meaning of Sec.
2(11) of the Act. Bugnitz is the chief supervisor in the plant over
31 employees. Kruqeser, as will be seen, spoke for, and with the ap-
probation of, Bugnitz to the plant employees. Contrary to Respond-
ent’s denial, I conclude that both were Respondent’s agents, acting
with apparent authority in their statements and actions toward Vine-
land employees, within Sec. 2(13) of the Act. House Calls, Inc., 304
NLRB 311 (1991), and cases cited.
any master agreement contributions we failed to make
commencing February 22, 1990.
CROWN CORK & SEAL COMPANY, INC.
Timothy J. Brown, Esq., for the General Counsel.
Howard L. Bernstein, Esq. (Katten, Muchin & Zavis), of Chi-
cago, Illinois, for the Respondent.
Carol Burkett, Esq., of Pittsburgh, Pennsylvania, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge. This con-
solidated matter1 was heard between April 3 and 5, 1991, in
Philadelphia, Pennsylvania, on the issues raised by the Gen-
eral Counsel’s February 14, 1991 amended consolidated
complaint and notice of hearing (as further amended at the
hearing) and the Regional Director’s (Region 4) Report on
Objections to Election, dated July 26, 1990, and Respond-
ent’s timely answers thereto.2 The allegations of the com-
plaint and the Report on Objections, in substance, allege acts
of Respondent in violation of Section 8(a)(1) of the Act and
its engaging in conduct, legally objectionable, to set aside the
Board-conducted election in the above-captioned representa-
tion case. The complaint allegations of violation of Section
8(a)(1) of the Act parallel, in part, the conduct found objec-
tionable by the Regional Director in his Report on Objec-
tions. The complaint, as further amended at the hearing, al-
leges that Respondent, through its various supervisors and
agents, unlawfully interrogated employees, threatened to dis-
continue an employee thrift plan, and threatened employees
with layoff if they selected the Union as their bargaining rep-
resentative, all in violation of Section 8(a)(1) of the Act. The
complaint specifically requests the issuance of a bargaining
order in lieu of other traditional Board remedies in order to
remedy the unfair labor practices.
The Regional Director’s Report on Objections to the Elec-
tion, issued July 26, 1990, observes that the Union’s objec-
tions relate to only three matters: alleged unlawful interroga-
tion and threats of layoffs by Respondent’s plant manager,
John Bugnitz, and Respondent’s threats to take away benefits
if the Union won the election.
At the hearing, all parties were represented by counsel,
were given full opportunity to call and examine witnesses,
submit oral and written evidence, and argue on the record.
At the close of the hearing, counsel and the parties waived
final argument and reserved the right to submit posthearing
briefs. Posthearing briefs were presented by all parties and
have been duly considered in the light of the record as a
whole.
On the entire record, including the briefs, and from my
particular observation of the demeanor of the witnesses as
they testified, I make the following
FINDINGS OF FACT
I. RESPONDENT AS STATUTORY EMPLOYER
Respondent concedes, and I find, that at all material times,
it has been and is a Pennsylvania corporation engaged in the
manufacture of food containers at its plant located in Vine-
land, New Jersey, where, in the year prior to the issuance of
the complaint, in the course and conduct of its business oper-
ations at the Vineland plant, Respondent purchased and re-
ceived goods valued in excess of $50,000 directly from
points outside the State of New Jersey. Consistent with Re-
spondent’s further concession, I find that Respondent, at all
material times, has been and is an employer engaged in com-
merce with the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE UNION AS STATUTORY LABOR ORGANIZATION
I find, as Respondent admits, that at all material times
United Steelworkers of America, AFL–CIO–CLC (the
Union) has been and is a labor organization within the mean-
ing of Section 2(5) of the Act.3
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent manufactures food packaging devices, includ-
ing metal food and beverage cans, in a number of plants
throughout the nation, including the Vineland, New Jersey
plant which is the subject of this case. As Respondent ob-
serves (R. Br. 8), at the time of the May 3, 1990 election
which is the subject of objections in Case 4–RC–17299, con-
solidated here, Respondent operated 32 such plants through-
out the country employing approximately 3200 employees.
Of these 32 plants, apparently 30 were organized by labor
unions, 12 of which were organized by the Union here, the
United Steelworkers. The production and maintenance em-
ployees in these 12 plants were subject to a master agree-
448 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 All the signed authorization cards, in evidence, are ‘‘single pur-
pose’’ cards: ‘‘I hereby authorize the United Steelworkers of Amer-
ica, AFL–CIO–CLC to represent me in collective bargaining.’’ Such
‘‘single purpose’’ cards may be used as a basis for determining ma-
jority sentiment among unit employees as a predicate for the
issuance of a bargaining order as a remedy for an employer’s unfair
labor practices. The cards, the Supreme Court held, became a more
reliable indicator of employee desires than the results of a Board-
conducted election, set aside because of an employer’s unfair labor
practices. Under certain circumstances, the employer’s unfair labor
practices render unsatisfactory the preferred resolution of the ques-
tion concerning representation, i.e., an election. NLRB v. Gissel
Packing Co., 395 U.S. 575, 606–608 (1969). The Supreme Court, in
Gissel, adopted the Board’s Cumberland rule (Cumberland Shoe
Corp., 144 NLRB 1268 (1963)) relating to the efficacy of single
purpose cards as a predicate for determining employee majority sen-
timent for the purpose of issuing a bargaining order. See Somerset
Welding & Steel, 304 NLRB 32 (1991).
5 In order to set aside an election based on an employer mis-
conduct, the misconduct must occur in the ‘‘critical period,’’ i.e., be-
tween the March 1, 1990 filing of the election petition and the date
of the Board-conducted election (May 3, 1990). See Ideal Electric
Co., 134 NLRB 1275 (1961).
6 Merkt is the most senior employee. He was elected by the unit
employees as the ‘‘plant representative,’’ a spokesman for other em-
ployees, who discussed with management employee problems of
lateness or absenteeism. He did not discuss topics such as job secu-
rity or work assignments. Bugnitz also named him as one of three
employees as a ‘‘steering committee’’ which discussed work-related
problems with management (Tr. 771).
ment between the Steelworkers Union and Respondent. The
master agreement (G.C. Exh. 3(a)), in existence in some
form for approximately 40 years, now extended for the 3-
year period ending February 21, 1993, provides for a single,
multiplant bargaining unit with uniform terms and conditions
of employment. The only unorganized plants were in Hous-
ton and the Vineland plant.
The parties agree that the master agreement automatically
applies to any unit of Respondent’s metal can manufacturing
employees, as here, where the Union is either certified in that
unit or Respondent grants recognition therein (G.C. Exh. 6,
art. 2.1).
The Vineland plant, at all material times, had a stable
work force of 31 employees working three shifts. Respond-
ent’s answer admits that the following unit of Vineland em-
ployees constitutes a unit appropriate for collective bargain-
ing within the meaning of Section 9(b) of the Act:
All full-time and regular part-time production and
maintenance employees, employed by the Respondent
at its 502 West Elmer Road, Vineland, New Jersey fa-
cility, but excluding office clerical employees, guards
and supervisors as defined in the Act.
B. Union Organization and Respondent’s Reaction
Some time in January 1990, the Union began organizing
the Vineland production and maintenance employees and ob-
tained signed authorization cards from 18 of the 31 employ-
ees in the unit.4
On March 1, 1990, the Union filed a petition for certifi-
cation in the above-captioned representation case. Thereafter,
based on the parties’ March 30, 1990 Stipulated Election
Agreement, an election by secret ballot was conducted on
May 3, 1990, in the above unit. Of 31 eligible voters, 16 em-
ployees voted against the Union and 13 voted for the Union.
On May 8, 1990, the Union filed timely objections to con-
duct affecting the results of the election. Meanwhile, as early
as March 15, 1990, the Union filed the original unfair labor
practice charge relating to Respondent’s conduct in or about
February 22, 1990, before the filing and service of the peti-
tion for certification.5 Thereafter, along with the objections
to the election, an additional charge was filed on May 8,
1990, in Case 4–CA–18892. It is the allegations in the com-
plaint based on this latter charge, which substantially track
the Union’s objections to the election, on which the consoli-
dation of cases was ordered.
On or about February 20, 1990, a letter was sent to each
unit Vineland employee on the letterhead of the United Steel-
workers of America, AFL–CIO, District Nine, by ‘‘the com-
mittee for union representation,’’ inviting each of the unit
employees to a meeting at a nearby motel on Sunday, Feb-
ruary 25, 1990.
As Plant Manager Bugnitz was coming to work on Thurs-
day morning, February 22, 1990, employee Sal Calabrese
gave him a copy of the committee’s letter. By 11 a.m. of that
morning, after employee Carl Merkt6 had entered the outer
office area and discussed a production problem with his su-
pervisor (Dominick Ciuffetelli), the supervisor told him that
Bugnitz wanted to see him in the inner office. There, Bugnitz
asked him if he knew anything about the Union’s letter.
Merkt answered that he did. Bugnitz then asked Merkt if he
knew what the letter contained and Merkt answered that he
did and that he had written the letter (Tr. 132). When
Bugnitz asked Merkt: ‘‘Why didn’t you come to me first?’’
Merkt told him that he felt that ‘‘we had exhausted all of
our opportunities to discuss the problems that we had and I
felt that . . . we needed some outside help’’ (Tr. 132–133).
Bugnitz, appearing upset to Merkt, then said: ‘‘This letter is
signed, The Committee for Union Representation.’’ When
Merkt answered, ‘‘yes,’’ Bugnitz asked: ‘‘who’s on the com-
mittee?’’ Merkt answered: ‘‘I will not tell you that.’’ Merkt
responded: ‘‘It’s not important’’ (Tr. 133). Bugnitz asked
again: ‘‘Why didn’t you come to me first, I thought we had
a better relationship than that.’’ Merkt said that it was not
a ‘‘personal thing’’ between them; rather, it was ‘‘an eco-
nomic situation and that numbers of us had discussed this sit-
uation at the plant over a period of time, and we came to
the conclusion that we needed to seek outside representa-
tion.’’
Bugnitz answered: ‘‘This is a direct reflection on my man-
agerial ability’’ (Tr. 133). Merkt repeated that there was
nothing personal and purely ‘‘an economic situation’’ (Tr.
133). Merkt then listed the reasons he wanted union rep-
resentation: wages, benefits, and pension. Merkt said that he
was one of the original employees to form the committee to
seek union representation. Merkt recalled that Bugnitz re-
peated his being ‘‘upset’’ with the employees’ failing to
come to him concerning their problems. The Merkt-Bugnitz’
meeting in Bugnitz’ office lasted for about 30 minutes, from
about 11 to 11:30 a.m. (Tr. 134).
449CROWN CORK & SEAL CO.
7 Because this conversation occurred prior to the filing of the
March 1, 1990 petition, it is outside the ‘‘critical period’’ and may
not therefore support a lawful objection for the purpose of getting
aside the election. Ideal Electric Co., 134 NLRB 1275, 1278 (1961).
Paragraph 5(a) of the amended complaint alleges that
Bugnitz coercively interrogated Merkt in the morning of Feb-
ruary 22 in violation of Section 8(a)(1) of the Act. Paragraph
5(b) of the complaint alleges another Bugnitz’ coercive inter-
rogation on or about February 22, 1990. Although Bugnitz
denied the testimony of night-shift employee Gary Miller, I
find that about 10:45 p.m., before the start of the night shift,
several hours after Bugnitz had interrogated Merkt, Bugnitz
followed Miller into the bathroom. Bugnitz did not use the
facilities. Bugnitz asked him if he had received the letter
from the Union. When Miller said that he had, Bugnitz asked
him what he ‘‘thought of the union coming in.’’ Miller said
he wasn’t sure.
I credit Miller because I observed Bugnitz to be an emo-
tional, talkative individual, obviously concerned about this
action of his employees which he believed reflected on his
managerial function and upset him. In addition, later Miller’s
testimony of further Bugnitz’ interrogation, largely admitted
by Bugnitz, supports this earlier Miller recollection. Miller
later told Bugnitz that he felt harassed by Bugnitz and other
inquiries into his position concerning the Union.
Further alleged acts of coercive interrogation, according to
paragraphs 5(g) and (h) of the complaint, occurred in late
April 1990. Bugnitz here admits to having had two, one-on-
one conversations in the storeroom with Gary Miller
(Tr.749). These conversations, according to Bugnitz, were
initiated by Bugnitz and took place about a week before the
May 3, 1990 election (Tr. 750). Bugnitz testified that he told
Miller that if he had ‘‘any questions or concerns that he
needed answers to regarding the organizing drive, ‘‘he
should see either [Supervisor] Dominick Ciuffetelli or John
Julian, and specifically John Julian, because [Miller] had
worked with John Julian for a long period of time, and John
Julian had done him some favors, and he could trust John
Julian’’ (Tr. 750). Miller told Bugnitz that he would talk to
Julian. Miller does not dispute Bugnitz’ testimony except that
Miller amplified Bugnitz’ description of Supervisor Julian as
Miller’s ‘‘good friend.’’ He testified that Bugnitz reminded
him that Julian had helped Miller in August 1989 by going
down to Maryland to pick up Miller and his wife because
Miller’s car had broken down. Bugnitz told Miller that ‘‘not
too many friends would do that’’ (Tr. 305).
Miller testified that a couple of days later, a few days be-
fore the election (Tr. 306; 750), Bugnitz again spoke to Mil-
ler in an office near the main plant entrance. Bugnitz asked
Miller if he had talked with Julian. According to Bugnitz,
Miller answered by saying only that ‘‘he wanted to be left
alone’’ and that Miller and Bugnitz then merely walked away
from each other (Tr. 751).
Miller’s version (Tr. 307), denied in part by Bugnitz (Tr.
751), was that he told Bugnitz not only that he wanted to
be ‘‘left alone’’ but that he was ‘‘tired of being harassed, not
being questioned every time about what I’m going to do
about the Union’’ (Tr. 307). Miller also told him that he had
removed his union button because he had had his ‘‘fill of ev-
erything.’’ And that he ‘‘just didn’t want to be bothered’’
(Tr. 307).
C. Discussion and Conclusions; Interrogation
1. Bugnitz coercively interrogates Merkt on
February 22, 19907
The parties appear in agreement that the Board’s test for
the lawfulness of interrogation is that it must be ‘‘coercive’’
considering all the circumstances of the conversation.
Rossmore House, 269 NLRB 1176 (1984); Sunnyvale Medi-
cal Center, 277 NLRB 1217 (1985): whether the interroga-
tion reasonably tends to restrain, coerce, or interfere with
employees’ rights guaranteed by the Act, including the back-
ground, the nature of the information sought, the identity of
the questioner, and the place and method of interrogation.
Whether the employee was an open and active union sup-
porter is also a relevant factor. Kellwood Co., 299 NLRB
1026 (1990).
In assessing the coercive nature of Bugnitz’ February 22
interrogation of Merkt, it must be recalled that Bugnitz, the
highest plant supervisor, called Merkt into his private office,
the plant locus of authority. It was a one-on-one interroga-
tion, initiated by the supervisor, of an employee not known
as an open and active union supporter. Kellwood Co., supra.
Regardless of the tendency to coerce Merkt by the question
of whether he knew anything about the letter and what the
letter contained, when Merkt told Bugnitz that Merkt, him-
self had written a letter, there is no question that Bugnitz
learned by this very interrogation that Merkt was a prominent
union advocate because he revealed that he was the author
of the letter. This is far different from resolving the question
of ‘‘coerciveness’’ where an employee’s own prior activities
in support of the union have been open and notorious. Com-
pare Sunnyvale Medical Center, 277 NLRB 1217 (1985),
with Springs Motel., 280 NLRB 284 fn. 2 (1986). Especially
where, as here, Bugnitz, the highest plant official, advises the
employees how personally and professionally upset he is
with Merkt’s conduct in not coming to him first, the interro-
gation must be considered hostile because Merkt is contem-
poraneously advised that Bugnitz regards Merkt’s action as
having an adverse effect on Bugnitz’ ‘‘managerial ability.’’
Bugnitz then asked Merkt, who was on the ‘‘committee
for union presentation’’ (Tr. 133). Merkt answered: ‘‘I won’t
tell you that’’ (Tr. 133). It was only then that Bugnitz told
him that it was not important. When Bugnitz again asked
Merkt why the employees had not come to him first, and
stated that he thought that he had had a better relationship
with the employees than to have them go to the Union,
Merkt told Bugnitz that it was not a ‘‘personal thing’’ but
more an ‘‘economic situation’’ (Tr. 133).
Bugnitz’ question concerning who was on the committee
was clearly unlawful and coercive. It went well beyond the
question of Merkt’s own union activities and was an attempt
to seek out information concerning how widespread union
support was. It is a question designed to have Merkt divulge
the extent of organization of the employees, particularly the
effectiveness of the Union’s organizational campaign. The
Act is designed so that employees are permitted to keep such
information to themselves, NLRB v. Laredo Cocoa Cola Bot-
450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tling Co., 613 F.2d 1338 (5th Cir. 1980), cert. denied 105
LRRM 2658 (1980).
After Merkt refused to divulge the names of members of
the union committee, it was only then that Bugnitz told him
that it was ‘‘not important.’’ This is not the equivalent of
Bugnitz repudiating his question. Passavant Memorial Hos-
pital, 237 NLRB 138 (1978); it was merely an attempted as-
surance that Bugnitz would not insist on probing further into
that area.
In short, a hostile interrogation of an employee, not pre-
viously known to be a union supporter, concerning not only
his own union activities but the activities of other employees
is ‘‘coerced’’ within the meaning of Section 8(a)(1) of the
Act. Furthermore, in view of Bugnitz’ admitted continuing
and increasing personal upset at the actions of the employees
in going to the Union (Tr. 132 et. seq.), his admitted dis-
appointment in believing that he had a better relationship
with the employees (Tr. 133), and particularly his statement
to Merkt that the action of employees in going to the Union
was ‘‘a direct reflection upon my managerial ability’’ (Tr.
133), I do not credit Bugnitz’ statement, nor did Merkt be-
lieve, the names of the other employees on the committee for
union representation were ‘‘not important’’ to Bugnitz (Tr.
133). It was those employees whose leadership action was
‘‘a direct reflection upon my managerial ability’’ (Tr. 133).
Respondent defends on various grounds. To the extent that
Respondent analogizes the Bugnitz-Merkt conversation to
that in Sunnyvale Medical Center, supra, as ‘‘friendly’’ and
‘‘casual,’’ that analogy does not fit. This conversation, with
the recriminatory tone because the employees did not first
come to Bugnitz, having disappointed Bugnitz because he
thought there was a better relationship between him and the
employees, and his regarding the employees’ action as an at-
tack on his managerial ability, together with his desire to
know the composition of the leadership group, does not
make this ‘‘friendly’’ or ‘‘casual’’ interrogation. Further-
more, in Sunnyvale Medical Center, supra, the employee vol-
untarily walked into the personnel director’s office. In the in-
stant case, Bugnitz summoned Merkt into his office to in-
quire about the union letter. Thus, under the ‘‘totality of cir-
cumstances’’ test in Sunnyvale and Rossmore House, supra,
the relevant factors demonstrate an unlawful, coercive inter-
rogation.
To the extent Respondent defends (Br. 79) on the ground
that Bugnitz and Merkt enjoyed a unique relationship which
militated against a coercive atmosphere, Respondent cites
Morgan Services, 284 NLRB 862 (1987). In that case, Re-
spondent observes that the Board distinguished otherwise un-
lawful interrogations from a lawful interview in the produc-
tion manager’s office of the shop steward (Rice). Respondent
notes that the Board stressed that the shop steward had vis-
ited the manager’s office in the past in her capacity as shop
steward and therefore the interview with him concerning the
Union was not ‘‘an unusual event creating an atmosphere of
unnatural formality,’’ a basis on which the Board found in-
terrogation of other employees to be unlawful. Morgan Serv-
ices, supra at 863. Yet Morgan Services, supra, is readily dis-
tinguishable on its facts. In the instant case, Bugnitz learned
of Merkt’s particular support of the Union only through un-
lawful interrogation whereas in Morgan Services, the shop
steward admitted to management her open adherence to the
Union. Whereas in Morgan Services, the production manager
assured the shop steward that there would be ‘‘no major
changes if the union was voted out [in a decertification pro-
ceeding],’’ in the instant case, Bugnitz’ tone concerning the
employees’ union activities was hostile. Lastly, the shop
steward in Morgan Services was regularly in the production
manager’s office to discuss union business.
In the instant case, although Merkt may have often been
in Bugnitz’ office to discuss employee problems, Merkt’s
and other employees’ union activities were never discussed.
Under Section 7 of the Act, an employee’s own union activi-
ties, and, a fortiori, his knowledge of the activities of his co-
employees, may be kept from the employer. Bugnitz’ ques-
tions, addressed to an employee with unknown union sym-
pathies summoned to his private office, were delivered in a
hostile atmosphere without any assurance against retaliation,
necessarily violate Section 8(a)(1) as alleged. NLRB v. La-
redo Cocoa-Cola Bottling Co., 613 F.2d 1338 (1980), cert.
denied 105 LRRM 2658 (1980). Whatever else Bugnitz’ in-
terrogation of Merkt constituted, it was not merely ‘‘a ques-
tion of concerned interest,’’ Specialty Steel Treating, 279
NLRB 670, 672 (1986), nor was it merely Bugnitz’ ‘‘harm-
less curiosity’’ concerning the union activities of Bugnitz’
coemployees on the committee for union representation.
Springs Motel, 280 NLRB 284 fn. 2 (1986). Even if Bugnitz’
interrogation was ‘‘friendly’’ and low-keyed, instead of hos-
tile and personal, it was designed to discover both the extent
of union organization and Merkt’s sympathies and was un-
lawful. Quemetco, Inc., 223 NLRB 470 (1976).
Merkt’s status as the most senior employee, the elected
‘‘plant representative’’, and member of the employee steering
committee of employees (which did not discuss topics such
as job security and work assignments) are irrelevant to the
issue of coercive inquiry into union activities. Under Section
7 of the Act, Merkt had the right to keep his own and the
committee’s union activities, as opposed to work-related
problems, confidential. Employer knowledge of employee
union sympathy, gained by hostile inquiry, tends to prevent
its free exercise. Quemetco, Inc., supra.
Lastly, to the extent Respondent relies on language in
Pony Express Courier Corp., 283 NLRB 868 (1987), that a
supervisor’s single question to the employee concerning
whether she had been approached regarding the union ‘‘made
it unlikely that [the employee] would have left the conversa-
tion feeling coerced’’ (Pony Express Courier Corp., supra,
283 NLRB at 868), such reliance is unavailing in the context,
here, of a hostile inquiry. I regard the quoted statement, in
any event, focusing on whether the employee felt coerced, to
be an incorrect statement of the law. For the Board has spe-
cifically held, El Rancho Market, 235 NLRB 468, 471 fn. 11
(1978):
[It] is clear that the lawfulness of an employer’s con-
duct does not turn on whether or not a particular em-
ployee feels that the conduct complained of has inter-
fered with, restrained or coerced him in the exercise of
its Section 7 rights.
Rather, the Board held, that the illegality of an employer’s
conduct is determined by whether the conduct may reason-
ably be said to have a tendency to interfere with the free ex-
ercise of an employee’s rights under the Act, El Rancho
Market, supra, 235 NLRB at 471. Thus to the extent Re-
451CROWN CORK & SEAL CO.
spondent appears to defend on Merkt’s personal feelings of
coercion because of the interrogation, such a defense is un-
supported by Board and court rulings. See PRC Recording
Co., 280 NLRB 615 fn. 2 (1986), enfd. 836 F.2d 289 (7th
Cir. 1987); citing Operating Engineers Local 542 v. NLRB,
322 F.2d 850, 852–853 (3d Cir. 1964), cert. denied 379 U.S.
826 (1964) (emphasizing that whether anyone was in fact co-
erced is irrelevant); NLRB v. Illinois-American Water Co.,
933 F.2d 1368, 1374 (7th Cir. 1982), cited on the point in
NLRB v. Overnite Transportation Co., 138 LRRM 2018 fn.
5 (7th Cir. 1991).
I therefore conclude that the February 22, 1990 Bugnitz
interrogation of Merkt in Bugnitz’ office was coercive within
the meaning of Section 8(a)(1) of the Act, as alleged. In
view of this finding and conclusion, I further conclude that
it is unnecessary for me to reach or decide whether Bugnitz
in or about February 20 to 22 unlawfully and coercively in-
terrogated Garry Miller in Respondent’s restroom (complaint
par. 5(b)). Such a finding would be cumulative and would
not affect the remedy for coercive interrogation in view of
my finding with regard to the Merkt-Bugnitz conversation of
on or about the same day. I do, however, find that Bugnitz
did speak to Miller about the Union in the restroom at that
time.
2. Bugnitz coercively interrogates Miller in early May
before the election
On the other hand, I feel obliged to pass on a further alle-
gation of unlawful and coercive interrogation (par. 5(g)) with
regard to Bugnitz’ alleged interrogation of Gary Miller a few
days before the May 3, 1990 election. I do so because, un-
like the Bugnitz’ interrogation of Merkt in February, this al-
legation of interrogation was a basis for the Union’s objec-
tion to the election and was one of the objections made sub-
ject to the instant hearing, Regional Director’s Report on Ob-
jections (G.C. Exh. 1(j)).
A few days before the May 3 election, in the supply room,
Bugnitz approached Miller and told him that he ‘‘ought to
be thinking what [he is doing]’’ (Tr. 350); and that if he had
any questions or concerns regarding the Union’s organizing
drive for which he needed answers, he should see Supervisor
Dominick Ciuffetelli or John Julian. Bugnitz told Miller that
Miller had worked with Julian for a long period of time, that
Julian had done him favors, and that he could ‘‘trust’’ Julian
(Tr. 750). In this 30-second conversation, Miller told Bugnitz
that he would talk to Supervisor Julian. A few days later, in
one of the side offices off the main entrance, Bugnitz again
approached Miller and asked him if he had spoken with Ju-
lian (Tr. 751). Whereas Bugnitz testified that Miller never
answered the question and ‘‘basically’’ said that he ‘‘wanted
to be left alone’’ (Tr. 751), Miller testified that he told
Bugnitz that he was ‘‘tired of being asked what I was going
to do about the Union vote and wanted to be left alone’’ (Tr.
354). Miller further testified that although he told Bugnitz
that he did not want to be harassed and had taken off his
union button, Miller admitted that Bugnitz had not asked him
about the Union in this conversation or how he was going
to vote. Other people had asked him these things (Tr. 357).
Bugnitz, on these occasions, urged Miller to seek to coun-
sel of a supervisor to answer any questions that Miller may
have had regarding the Union. Although Bugnitz’ first sug-
gestion, a few days before the election, may have been law-
ful in order to persuade Miller to seek Supervisor Julian’s
presumably antiunion views, the issue is whether his desire
to discover whether Miller actually spoke with Julian was
coercive. That Bugnitz did not use the word ‘‘union’’ and
solicit an answer to the question of how Miller was going
to vote in the election is not dispositive of whether there was
coercive interrogation. Rather, it is whether Bugnitz’ re-
peated questioning of Miller to determine whether he had
followed Bugnitz’ suggestion and direction to seek from Su-
pervisor Julian a presumably procompany and antiunion posi-
tion violates Section 8(a)(1) as being coercive interrogation.
In Springs Motel, supra, the Board held that a supervisor’s
repeated questioning of an employee who attended an
antiunion meeting (‘‘how did it go’’) despite assurances that
‘‘everything would be all right’’ violated Section 8(a)(1) as
coercive interrogation. Here, Miller was not a known union
supporter. Bugnitz’ later inquiry as to whether Miller had, in-
deed, spoken to Supervisor Julian (especially if Miller were
to reveal that he had not done so) constituted an implicit in-
vitation to disclose his attitude toward the Union, his union
sympathies, and the effectiveness of Respondent’s antiunion
campaign which had been going on since at least February
22, 1990, culminating in the imminent May 3, 1990 election.
Thus, it is not Miller’s impatient and heated response to
Bugnitz’ question (whether he had spoken to Supervisor Ju-
lian) that is significant, including that he was tired of being
harassed about the Union and had taken off his union button.
Although Bugnitz had spoken to Miller about the Union on
two prior occasions, Miller’s emotional response on this oc-
casion may have resulted from inquiries by other persons
rather than Bugnitz. Rather it is Bugnitz’ second and re-
peated question as to whether Miller, to satisfy any uncer-
tainties, had spoken to Supervisor Julian that constitutes the
coerciveness in the interrogation. As in Springs Motel, supra,
where the Board held, despite the supervisor’s assurance that
‘‘everything would be all right’’ and that an employee was
‘‘to feel free to speak,’’ a supervisor’s repeated question to
employees as to ‘‘how did it go?’’ after a company-spon-
sored antiunion meeting, was coercive. Such repeated ques-
tioning of a person, not known to be a union supporter, con-
stituted ‘‘repeated implicit invitations to disclose union sym-
pathies, antiunion feelings and the effectiveness of the Re-
spondent’s anti-union campaign.’’ As in Springs Motel, the
supervisor’s question ‘‘how did it go,’’ referring to the em-
ployees’ view on the Company’s antiunion meeting, was not
‘‘harmless curiosity.’’ Bugnitz wanted both to estimate the
effectiveness of his suggestion to Miller and to know wheth-
er Miller, consistent with Bugnitz’ suggestion and direction,
had received the presumably antiunion message from the su-
pervisor. These questions, as I have noted, constitute an im-
plicit invitation to disclose how Respondent’s antiunion cam-
paign had affected Miller. Under such circumstances, the
questions were unlawful and coercive within the meaning of
Springs Motel, supra, and a violation of Section 8(a)(1) of
the Act as alleged, and a fortiori, on such a basis, objection-
able conduct which interfered with the results of the election.
Dal-Tex Optical Co., 137 NLRB 1782, 1786 (1962). It is just
such a position that Miller was entitled to keep to himself.
As the Board specified in Quemetco, Inc., 223 NLRB 470:
A more serious error lies in the premise that a
‘‘friendly’’ interrogation does not interfere with an em-
452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 To the extent Respondent suggests that Merkt’s three affidavits
omit reference to this conversation (R. Br. 30), there were actually
only two pertinent statements. His first statement, given before May
2, 1990, could not have contained any reference to this conversation.
ployee’s Section 7 rights. An employee is entitled to
keep from his employer his view concerning unions, so
that the employee may exercise a full and free choice
on the point, uninfluenced by the employer’s knowl-
edge or suspicion about those views and the possible
reaction toward the employee that his views may stimu-
late in the employer. That the interrogation may be
suave, courteous, and low-keyed instead of boistrous,
rude, and profane does not alter the case. It is the effort
to ascertain the individual employee sympathies by the
employer, which necessarily interfered or inhibits the
expression by the individual of free choice guaranteed
him by the Act. [Emphasis added.]
3. Alleged Bugnitz threats in violation of Section
8(a)(1) of the Act
(a) Threat to Merkt, May 2, 1990
By virtue of the General Counsel’s further amendment of
the amended complaint, subparagraph 5(k), the General
Counsel alleges that Bugnitz on or about May 2, 1990, told
an employee (Carl Merkt) that if Respondent ‘‘goes union,’’
the employee will be responsible for the loss of a lot of jobs.
The parties agree that a short exchange occurred between
Merkt and Bugnitz in the morning of May 2, the day before
the election, at Merkt’s work station in a noisy area (Tr. 147,
762). While other employees were apparently in the work
area, there was no suggestion that any of them overheard the
conversation.
Merkt testified that Bugnitz approached him while he was
working and told him that: ‘‘If the Union gets in, you’re
going to be responsible for a lot of people losing their jobs’’
(Tr. 148–149). Merkt testified, and Bugnitz agreed, that he
angrily yelled at Bugnitz: ‘‘That’s not true’’ (Tr. 149–150).
Bugnitz testified that he told Merkt: ‘‘The difference be-
tween you and I is that I care about the junior people in the
plant, and I don’t think you do’’ (Tr. 763). Bugnitz testified
that after Merkt’s angry response (‘‘that’s not true’’) he and
Merkt then walked away from each other. Bugnitz specifi-
cally denies Merkt’s version of the conversation (Tr. 763).
On my observation of the witnesses as they testified, and
as the testimony of the witnesses showed and, indeed, as
Bugnitz admitted, Bugnitz becomes emotional with regard to
discussions of the Union and the employees’ participation in
union activities. I observed Merkt to be a more placid per-
sonality. Although it is true that even Bugnitz’ version of the
conversation might evoke in Merkt an angry reaction, which
admittedly occurred, I conclude that Merkt’s version would
inspire a more violent reaction than Bugnitz’ version of the
conversation.
On the other hand, Respondent correctly notes that
Merkt’s prior sworn statements to the NLRB do not mention
this incident.8
Yet it is not unknown that remarks by witnesses are not
included in Board affidavits where the purpose of the affida-
vit is directed at other subject matter, rather than the particu-
lar threat itself. Thus Merkt’s testimony was not contradict-
ing his affidavits; the affidavits merely contained no ref-
erence to the alleged threat and may have been omitted by
the taker.
On the whole, I was more impressed with Merkt’s testi-
mony, notwithstanding the omissions in the affidavits, rather
than Bugnitz’ testimony. As I have observed, Bugnitz, being
the more emotional of the two, was more likely to have used
the slightly more inflammatory language which Merkt de-
scribed rather than Bugnitz’ version. I credit Merkt over
Bugnitz and find that Bugnitz told him that if the Union got
in, he was going to be responsible for a lot of people losing
their jobs (Tr. 148–149).
Respondent defends on two grounds: the first is that as a
matter of credibility, Bugnitz should be credited over Merkt.
I have concluded to the contrary and find that Merkt’s ver-
sion should be credited.
Second, Respondent appears to defend on the ground that
even crediting Merkt’s version, the statement that Merkt
‘‘would be responsible for a lot of people losing their jobs’’
cannot be construed as a threat of job loss against Merkt as
alleged in the complaint (R. Br. 73). I agree, especially be-
cause Merkt is the most senior employee. To the extent,
however, that Respondent urges that remark did not imply
animus against the Union, Respondent is clearly in error.
Furthermore, it is irrelevant that Bugnitz’ statement would
not instill fear in Merkt that he was going to be laid off.
Rather, Bugnitz’ utterance directly states or necessarily im-
plies that because of Merkt’s union activities, if the Union
got in, other employees would be laid off. For Bugnitz, the
plant manager, to suggest, and indeed unequivocally state
that Merkt’s statutorily protected union activities would
cause the layoff of his coemployees necessarily is a state-
ment of retaliation, not against Merkt, but against the em-
ployees because of Merkt’s union activities. Nothing in
Bugnitz’ statement tied the consequence of layoff to anything
other than union success in the upcoming election. That there
may have been a background of objective economic argu-
ment in favor of keeping the Union out does not bear on this
retaliatory statement that Bugnitz made to Merkt on the day
before the election. That statement, neither on its face nor by
implication, carries any baggage of economic argument along
with it. It is a plain, old-fashioned statement of retaliation
against employees because of Merkt’s protected union activi-
ties. I conclude that Bugnitz’ May 2, 1990 statement to
Merkt on the production line was an unlawful threat of retal-
iation against employees because of Merkt’s union activities,
in violation of Section 8(a)(1) of the Act as alleged.
This May 2, 1990 incident, first offered as an amendment
to the complaint at the opening of the hearing on April 3,
1991, of course, was not included in the Regional Director’s
earlier Report on Objections (dated July 26, 1990). The find-
ing of a violation of Section 8(a)(1) may nevertheless con-
stitute a basis for objectionable conduct, which it is, because
it was litigated in an unfair labor practice case consolidated
with a representation case. Monroe Tube Co., 220 NLRB
302, 305 (1975).
(b) Bugnitz’ alleged April 27, 1990 threat to lay
off 11 employees
The complaint (subpar. 5(f)) alleges that Bugnitz, on or
about April 27, 1990, threatened to layoff 11 employees if
453CROWN CORK & SEAL CO.
the employees selected the Union as their bargaining rep-
resentative. This also is alleged as objectionable conduct.
There is no dispute that on April 27, 1990, a conversation
occurred among Bugnitz, the Union’s organizer, Andrew
Charnick, an employee of Respondent (Henderson) and a
union business agent representing employees at the nearby
Progresso Plant, Larry Wright. At about 3 p.m., while
Charnick was about to distribute leaflets to Respondent’s
day-shift employees, he was joined by Union Agent Wright
and employee Henderson. Bugnitz approached the group, in-
troduced himself to Charnick and Wright, and told them he
was there to make sure that they were not crossing the prop-
erty line, thereby trespassing on Respondent’s property in
order to solicit Respondent’s employees for the Union.
According to Charnick, when Bugnitz told the group that
he had been a member of the Union while working at Re-
spondent’s Baltimore plant, Charnick asked Bugnitz why he
was fighting so hard to keep the Union out of the Vineland
plant. Bugnitz said that he could not afford the Union and
that he was already 11 men overstaffed since the past No-
vember. Bugnitz then turned to employee Henderson and
asked him if that were not so, but Charnick directed Hender-
son not to answer the question. When Bugnitz told them that
Respondent’s Vineland plant was the highest paying plant in
the county, Charnick told him that Progressive Foods, next
door, paid more than Respondent and that Respondent had
made a lot of money at the Vineland plant. Bugnitz re-
sponded that Respondent had a ‘‘2-piece line they were put-
ting in, which cost a lot of money’’ (Tr. 58). Charnick told
him that he felt that a small part of Respondent’s profit at
the Vineland plant should go to the employees under a mas-
ter agreement with the Steelworkers’ Union (Tr. 58–59). Ac-
cording to Charnick, Bugnitz repeated to him that he was
‘‘11 men over’’ (Tr. 59). Charnick insisted that Bugnitz said
that he could not afford the Steelworkers’ contract; that
Charnick replied that other Respondent plants had the Steel-
workers’ master agreement and that even in areas of the
country where the cost of living was much less than where
the Vineland plant was located, the employees under the
master agreement were making more money than Respondent
was paying the Vineland employees (Tr. 60). Whereas
Charnick particularly denied that Bugnitz’ statement (of
being 11 employees overstaffed) also included that he would
lay off 11 employees, Henderson testified (Tr. 369) that
Bugnitz said that he could not afford the Union and, if the
Union gets in, he would have to lay off at least 11 people
because he was overstaffed. Bugnitz specifically denied mak-
ing any statement regarding the layoff of employees (Tr.
738).
Bugnitz testified, in substance, that he told the Progresso
union agent in discussing the Steelworkers’ aim of job secu-
rity: ‘‘Well, the people in this facility have job security, that
is why we have been carrying 10 to 12 extra people for the
last 3 or 4 months’’ (Tr. 737). Respondent therefore defends
(R. Br. 71) on the ground that Bugnitz, under the credible
evidence, made no reference to layoffs during this conversa-
tion and that employee Henderson’s assertion that Bugnitz
threatened to lay off at least 11 employees contradicted
Charnick’s express denial that such a statement was made.
Thus, if Charnick’s version is credited and Bugnitz denied
making any reference to laying off employees, what is left
is merely a statement that Respondent’s employees at Vine-
land have job security which is proven by Respondent’s car-
rying 10 to 12 extra people for the last 3 or 4 months. In-
spection of that testimony demonstrates no implication of a
threat to lay off. I credit Charnick and Bugnitz rather than
Henderson. In light of this finding, I need not reach Re-
spondent’s further positions and explanations of this event. I
therefore recommend that paragraph 5(f) be dismissed on the
ground that the General Counsel failed to prove that Bugnitz
threatened to lay off any employees for any reason.
(c) Bugnitz’ alleged postelection statement regarding
laying off employees if the Union won the election
Employee Gary Miller testified that within about an hour
after he voted in the May 3, 1990 election, and therefore
sometime after 11:30 p.m., from a distance of 10 feet, he
saw and heard Bugnitz and two employees in the office (Tr.
312). Miller testified that Bugnitz said that the Union
‘‘would have done him a favor by coming in because he
would have been able to—he would have laid off so many
people, laid off those people without no regrets’’ (Tr. 312).
He recalls nothing further in the conversation and could not
recall whether any of the employees said anything (Tr. 313).
He recognized the persons with Bugnitz as employees with
whom he worked on a regular basis (Tr. 335), but he testi-
fied that he could not recall who they were.
Bugnitz denied any such conversation and denied the ex-
istence of any employees in the office area following the bal-
lot counting (Tr. 765). The only postelection conversation he
had was a telephone call to his immediate superior informing
him of the results of the election about 15 minutes after the
11:30 p.m. ballot count after which he left the building (Tr.
764).
D. Discussion and Conclusions
Bugnitz denied any such conversation. Miller testified that
he recognized the persons to whom Bugnitz allegedly made
his remarks as ‘‘people [he] worked with on a regular basis
at the plant known to [him] as Continental Can Employees’’
(Tr. 335). I conclude that either the conversation never oc-
curred as Miller described or that Miller, for reasons un-
known on this record, was protecting the identity of the em-
ployees in the office with Bugnitz. He could not have recog-
nized them as coemployees with whom he regularly worked,
standing 10 feet away, and reasonably not be able to recall
who they were. If his recollection is so poor with regard to
the identity of the two employees whom he recognized as his
fellow employees, regularly working with him at the plant,
I do not believe his recollection of the conversation merits
crediting.
I therefore recommend that paragraph 5(j) of the complaint
which encompasses this alleged conversation be dismissed as
unproven.
1. The alleged Bugnitz threats of layoff in the February
22, 1990 shift meetings—background
The Vineland plant, prior to the union organizing drive,
had two production lines (line 1 and line 2). Both were ‘‘3-
piece’’ lines. The three pieces, fabricated into a can, consist
of the can cylinder with separate top and bottom ends or
‘‘lids.’’ The production process required a total complement
of 31 employees on three shifts. As above noted, about 85
454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Due to a high employee attrition rate at its Baltimore plant, Re-
spondent planned to move a large end press from the Baltimore
plant to the Hurlock plant. In order for the Hurlock plant to receive
the Baltimore end press, the Hurlock plant was obliged to move its
own end press to make room for it. With the movement of the Balti-
more end press to Hurlock, the Hurlock end press had to be moved
to another plant. Both the Baltimore plant and the Hurlock plant are
covered by the Steelworkers’ master agreement (R. Br. 22; Tr. 749).
percent of the can production at Vineland went to the adjoin-
ing Progresso Foods plant connected to the Vineland Plant
by a conveyor belt (Tr. 670).
Sometime prior to around November 1989, a technological
change permitted the replacement of one three-piece can line
by a two-piece line (requiring a single top and no bottom
lid). As a result, in or about late December 1989, Respondent
disassembled one of its three-piece lines (line ‘‘two’’) to
make way for the anticipated introduction of a two-piece
line. The new two-piece Vineland line would manufacture
cans only for the primary customer, Progresso Foods. The
new two-piece line would not become operational until
March 1990 but the December 1989 removal of one of the
two three-piece lines cut in half the number of employees
needed for existing production in the Vineland plant. Thus,
at the end of 1989 and the beginning of 1990, there were
production employees without a production function among
the 31 unit employees.
Respondent also planned to remove the remaining three-
piece line (line 1) as soon as the new two-piece line became
operational in March 1990. Respondent contemplated that the
two-piece line, after the removal of the remaining three-piece
line, would be the only piece of equipment running at the
Vineland plant. In that eventuality, Respondent would have
work for only 17 of the 31 employees at the plant (R. Br.
17; Tr. 718). Respondent intended, nevertheless, to continue
in operation both the anticipated new, two-piece line and the
remaining three-piece line in the period March through June
1990. In order to operate those two lines in that particular
3-month period, Respondent would not need 31 employees;
it would need about 24 (Tr. 718–720). I conclude, therefore,
that in late 1989, Respondent anticipated, in any case, that
by June 1990, a period 6 months thereafter, it would lay off
at least 7 of its 31 employees, with a total of 14 to be laid
off when the two-piece line became the sole production line
shortly thereafter.
Respondent, however, had hopes for new work for its em-
ployees to take the place of work lost to the new technology.
In no case, however, did Respondent want to lose its skilled
employees whose services might well be needed at least in
the short term.
With the removal of line 2 in December 1989 and line 1
remaining in operation, Respondent, in January 1990, laid off
its two most junior employees. Consistent with its then hav-
ing an excess of production employees, Bugnitz successfully
sought out short-term projects to keep the remaining employ-
ees occupied. During the period January through March
1990, Bugnitz succeeded in having the disconnected line 2
equipment overhauled, cleaned, and painted in the Vineland
plant using unit employees rather than the equipment under-
going such rehabilitation in a sister plant (Tr. 671). In addi-
tion, Bugnitz sought and received from another Respondent
plant an overhaul project which would require 6 to 9 weeks
of work, paid for by the sister plant, yet keeping Respond-
ent’s Vineland employees occupied. Furthermore, the Vine-
land employees painted the entire Vineland plant, revamped
the office area, and sent some of its employees to sister
plants to conduct classes, perform repair work for them, and
have the other plants ultimately absorb Respondent’s payroll
costs for those employees (Tr. 672–673).
In the period 3 to 5 months prior to the February 1990
union organizational drive, Bugnitz had been holding meet-
ings with employees stressing the subject of ‘‘job security’’
and ‘‘cost’’ (Tr. 172). In fact, these subjects had been dis-
cussed by management with employees for many years. In
particular, Bugnitz mentioned, in the context of the antici-
pated removal of the second of the two three-piece lines, the
effect on plant jobs: that there would be less work and that
there would be fewer jobs (Tr. 173). Indeed, he spoke about
a layoff procedure in those meetings (Tr. 173–174). Ever
since Bugnitz became plant manager on January 1, 1989 (Tr.
659), he regularly told the employees of his concerns about
cost and job security, all before the Union’s organizational
drive in February 1990. With the dismantling of line 2, he
reminded them that, short of the plant’s obtaining new work,
there were 10 or 12 employees who were being kept busy
on work other than regular production jobs; that to save
those jobs, the Vineland plant would have to get more busi-
ness (Tr. 380). With respect to ‘‘more business,’’ the two
sources mentioned were (1) a ‘‘can handling system’’ from
Progresso; and (2) an ‘‘end press’’ from Respondent’s
Hurlock, Maryland plant. Bugnitz, and other Respondent
agents, both before and after the Union’s February 1990 or-
ganizing drive, stressed in employee meetings that to avoid
layoff of 10 to 12 employees, both new sources of work had
to be established in the Vineland plant (R. Br. 26).
2. The end press
An end press makes the tops and/or bottoms (‘‘lids’’) for
a can (Tr. 741). It is not a can producing line (Tr. 741).9 Just
as ‘‘cost,’’ according to the testimony of General Counsel
witness Merkt, had been the subject of discussion at the
Vineland plant for many years, Respondent’s transfer of end
press equipment into the Vineland plant had been ‘‘kicking
around’’ for 10 years: the Baltimore plant was going to close
and maybe Vineland was going to get the Hurlock end press
equipment (Tr. 376–377). In the 3- to 4-month period prior
to the Union’s organizing drive, Bugnitz told the employee
that it was ‘‘possible’’ that they would get the end press
equipment (Tr. 377–378). After the Union appeared, Bugnitz
and other supervisors at first told them it was all but certain
(Tr. 136; 703) but later said it might have to be reviewed
(Tr. 363) and, finally, that it had been put on hold (Tr. 773).
In its April 17 letter to employees (G.C. Exh. 8), Respondent
resolved all prior ambiguity. See infra.
3. The can handling system
The metal cans used by Progresso and produced, in large
part, by Respondent’s Vineland plant are stored on pallets.
Progresso can handling equipment removes cans from the
pallets and sweeps them onto a conveyor and then directly
into the production lines (Tr. 617). Progresso had several lo-
cations of depalletizing can handling equipment and, by the
mid-1980s, decided to centralize the system, perhaps con-
tracting out its can handling work to Respondent in the Vine-
455CROWN CORK & SEAL CO.
10 Henderson mistakenly placed the meeting in March whereas it
was on February 22, 1990 (Tr. 362).
land plant. By September 1988, Progresso entered into a 7-
year can supply agreement with Respondent which men-
tioned the can handling system and the possibility of placing
it on Respondent’s premises to be operated by Respondent’s
employees, rather than by Progresso’s, notwithstanding that
Progresso would continue to own the equipment. Respondent
demanded a price of $2.50 per 1000 cans handled, but
Progresso forced Respondent to settle for $2 per 1000 (Tr.
592). Apparently all the costs of operating the can handling
system would be labor cost (Tr. 626–627).
On the other hand, as the General Counsel observes (G.C.
Br. 22) the can supply agreement between Progresso and Re-
spondent (R. Exh. 5, pars. 7(b) and (c)) provides for a ‘‘pass
through’’ of increased costs, including labor costs. Respond-
ent concedes the existence of the automatic ‘‘pass through’’
of labor cost (R. Br. 21) but contends that Progresso contin-
ued to have the option of not paying the increased labor cost
by electing to place the can handling system on its own
premises, thus foreclosing use of Respondent’s employees.
In June or July 1989, 7 months before the Union’s orga-
nizing drive, Progresso ordered the new can handling equip-
ment (Tr. 624). Engineers of the can handling manufacturer
had been at the Vineland plant to inspect the premises for
placement in Vineland. Though it was ordered almost a year
before anticipated delivery in or about June or July 1990 (Tr.
623), it would arrive in a condition to be installed either at
Progresso or at Respondent’s Vineland facility at Progresso’s
option (Tr. 629).
E. Bugnitz’ Speeches to Employees at Meetings on
February 22 and 23, 1990
Bugnitz’ late morning unlawful interrogation of Carl
Merkt on February 22, above-described, ended about noon
(Tr. 134). About 2:30 p.m., on the same day, Merkt was on
the production line. Supervisor Ciuffetelli told him that there
would be a meeting in the cafeteria at 2:30 or 3 p.m. that
day (Tr. 135). Present at the meeting was the entire day shift
of about 10 employees, the office personnel, and 3 or 4 su-
pervisors, about 15 or 16 persons altogether (Tr. 135). John
Bugnitz was the only speaker. He mentioned the Union’s let-
ter concerning the forthcoming union meeting at the nearby
motel; he said he hoped that they would not go, but if they
did, and if the Union got into the plant, the cost factor would
affect their relationship with Progresso. He told them that
end press and can handling equipment were to be coming
into the plant, but if the Union got into the plant, the cost
factor would make some of these things ‘‘maybe not even
come’’ (Tr. 136). At this point, according to Merkt, Bugnitz
looked down at a piece of paper on the table in front of him
and said that, as he looked at the seniority list, he did not
see ‘‘anyone past number 16 remaining in the plant’’ (Tr.
137). Merkt recalled that although the meeting started with
Bugnitz’ being calm, during the meeting, as he explained the
Company’s position, he became excited (Tr. 142). This meet-
ing was for the day-shift employees who worked 7 a.m. to
3 p.m. One-half hour later, about 3 p.m., the second-shift
employees (3 to 11 p.m.) attended a similar meeting. The
third-shift employees (11 p.m. to 7 a.m.) were at a similar
meeting at 7 a.m. on the next day, February 23.
Employee Joseph Greene, also at the first-shift meeting
with Merkt, confirmed the presence of the three supervisors
and that Bugnitz appeared to be upset and spoke in a loud
voice. Greene recalls that Bugnitz told the assembled first-
shift employees that he took a ‘‘personal view’’ of the union
drive and that he ‘‘took it as a reflection upon himself’’ (Tr.
424). Bugnitz said he was upset because the employees did
not come to him (with their problems) before going to the
Union. Corroborating Merkt’s testimony in large part, Greene
testified that Bugnitz said that he could ‘‘look down the em-
ployee list and see only 16 people being employed’’ (Tr.
424). Greene also testified that ‘‘they [Respondent] would
have to take a look at the can handling system and the end
press coming into the plant’’ and that ‘‘the can handling sys-
tem might be put [into] the Progresso plant’’ (Tr. 424–425).
He also recalls that Bugnitz stated that the reason that Re-
spondent would have to review the transfer of the end press
equipment and the installation of the Progresso can handling
equipment was because of the high cost of the union contract
benefit package in the Union’s master agreement (Tr. 434).
He recalled that this higher cost caused the Progresso plant
manager to be ‘‘scared shitless.’’ This latter expression may
have been used by Bugnitz in later employee meetings rather
than at the February 22–23 meetings.
Robert Henderson, a machine operator at Vineland for
about 15-1/2 years, is a second-shift employee working 3 to
11 p.m. He attended the meeting of second-shift employees
in the cafeteria about a half-hour after Bugnitz addressed the
first-shift employees. About 10 or 11 employees on the sec-
ond shift attended the meeting.10
Henderson recalls that Bugnitz told the second-shift em-
ployees that he was upset because he had received a copy
of the union letter relating to a future meeting; that it was
not ‘‘fair’’ because none of the employees had mentioned the
Union to him and that ‘‘this was all done behind his back’’
(Tr. 362). Henderson also recalled that Bugnitz said that if
the Union got into the plant, ‘‘we wouldn’t get the end
presses because it would go to a plant that would make [the
‘lids’] cheaper’’ (Tr. 363, 382–393). He also recalled that
Bugnitz said: ‘‘We can’t afford a union, we’d have to let
some people go’’ (Tr. 383).
Gary Miller, along with seven other third-shift employees,
attended the third meeting addressed by Bugnitz at 7 a.m. on
Friday, February 23 (Tr. 282–283). Miller, corroborating
Merkt and Henderson, recalls that Bugnitz told them that he
was upset because the employees had gone behind his back
to get a union in and that although employees were working
in spite of the removal of one of the two three-piece lines
(Tr. 284), ‘‘if the union came in that he’d have to lay off
people’’ (Tr. 285). Miller recalls that Bugnitz told the third-
shift employees that Respondent was keeping employees em-
ployed notwithstanding that they were not doing their regular
jobs and that Respondent was losing money by keeping the
employees employed ‘‘all that time’’ (Tr. 285); that because
Respondent was losing money every week, if the Union
came in they would probably have to lay off employees (Tr.
288).
F. The Testimony of John Bugnitz Relating to the
February 22–23, 1990 Meetings with Employees
Bugnitz testified that on showing the assembled employees
at the first shift a copy of the letter relating to the forthcom-
456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing union meeting, he told them that he was very upset be-
cause none of the employees trusted him enough to bring the
issues to him and permit him to address those issues to his
superiors (Tr. 700–701). With regard to the letter raising the
subject of job security, he told the employees of his experi-
ences with the Union and the high costs involved in Steel-
workers’ arrangements. He told them that he had been a
steelworker and a supervisor in plants working under the
Union’s master agreement for over 20 years; that in his expe-
rience at the Respondent’s St. Louis facility, there were 780
employees there when he was both an hourly employee and
a supervisor; and that there were presently slightly over 200
employees employed there. Again, when he was a supervisor
at the Baltimore plant in 1977, there were well over 200 em-
ployees in the plant, and when he left there were only 100.
Similarly, he said that while he was acting plant manager at
Respondent’s Lancaster facility, the Union’s master contract
was applied there. The resulting costs made the plant uncom-
petitive and he had the ‘‘unfortunate duty of shutting down
the plant where 87 people lost their jobs’’ (Tr. 702). He ad-
mitted that he was excited and that his voice rose (Tr. 702).
Bugnitz then told the employees that this (the union orga-
nizational drive) could not come at a worse time because
‘‘we have two projects on the drawing board that are going
to affect the employment level of [the Vineland] plant’’ (Tr.
702–703). Bugnitz testified that he told the employees (Tr.
703):
Basically, in other words, we have 10 or 12 extra on
the manning right now, we need the can handling sys-
tem and the [end press] project come into that plant to
utilize the people that are over and above our required
manning. [I] also told them that those projects were
based on cost, and that basically the only way we could
probably lose those projects was to increase our cost
and become uncompetitive with our other plants.
Although Bugnitz denied specifically referring to the con-
tract between Progresso and Respondent, he told the employ-
ees at all the meetings that the Progresso can handling sys-
tem was based on a cost of $2 per 1000 and that was a key
factor in the can handling system (Tr. 704).
Although Bugnitz admitted at the hearing that foreign
competition and newer and better machinery caused layoffs
as well as labor costs, he did not mention these items in his
speeches (Tr. 707). Bugnitz’ testimony was contradictory on
whether he told the employees that it was the increased labor
costs associated with the Steelworkers’ master agreement that
caused the layoffs. Ultimately, Bugnitz denied having told
the employees at that, or any other meeting, that it was the
Union’s master agreement costs that caused the layoffs (Tr.
709). He insisted that he referred only to ‘‘costs’’ and that
the increase in costs ‘‘could jeopardize two projects that was
[sic] slated for [the Vineland plant] which were very nec-
essary to keep the 10 or 12 extra people that we had been
carrying for 3 months employed in the Vineland facility’’
(Tr. 710). He then appeared to agree that he said it was the
higher labor costs of the master agreement that could jeop-
ardize the two projects closing into the plant (Tr. 711; 715).
He denied referring to any seniority list and saying that he
could see the names of 16 employees that were going to be
laid off (Tr. 715–716).
When it was then specifically called to his attention
whether he ever mentioned the master contract at the Feb-
ruary 22 and 23 meetings, he said that he did not mention
the master agreement; rather he spoke only of ‘‘cost’’ (Tr.
730; 771–772). His prior testimony (Tr. 706) was to the con-
trary.
In late March 1990, Bugnitz told the employees that the
decision on the end press had been put on hold (Tr. 773).
It was not until sometime in May or June, after the May 3
election, that he told the employees that the end press was
not coming into the Vineland facility and that one of the rea-
sons was that the attrition rate at the Baltimore plant had
slowed (Tr. 774).
Bugnitz testified (Tr. 758) that his superiors in Respondent
told him in March 1990 that the end press installation at
Vineland had been ‘‘put on hold,’’ that he told the employ-
ees at about the same time that the end press had been put
on hold because if the employees came under the master
agreement of the Steelworkers, there would be no cost ad-
vantage in placing the end press in the Vineland plant (Tr.
759). This, of course was different from Respondent’s post-
election reason for noninstallation of the Hurlock end press:
that the Baltimore employee attrition rate had slowed (Tr.
774).
G. Discussion and Conclusions—Bugnitz’ Speeches to
Employees on February 22 and 23, 1990, violate
Section 8(a)(1) of the Act
Complaint paragraph 5(c) alleges violation of Section
8(a)(1) of the Act in that Bugnitz’ February 22, 1990 speech-
es to employees stated (i) that he was angry that the employ-
ees were trying to get the Union in and was upset that the
employees had gone behind his back, and (ii) threatened em-
ployees with layoff if they selected the Union as their bar-
gaining representative. These allegations, if supported, indeed
constitute violation of Section 8(a)(1) of the Act but, in view
of the date of their occurrence, before the filing of the March
1, 1990 petition for certification, these alleged unfair labor
practices may not form the basis of objections for the pur-
pose of setting aside the election. Such conduct falls outside
the critical period between the filing of the petition on March
1, 1990, and the holding of the election on May 3, 1990.
Ideal Electric Co., 134 NLRB 1275 (1961).
With regard to the first allegations of violation of Section
8(a)(1), I have discovered no use of the word ‘‘angry’’ in de-
scribing what Plant Manager Bugnitz actually said. He ad-
mitted (Tr. 701) that in his speeches to the three shifts of
employees on February 22–23, all of which were sub-
stantively the same, he was ‘‘very upset, and the reason was
that . . . nobody trusted [me] enough to bring the issues to
me and give me a shot at taking them . . . to my superiors
to resolve whatever issues that they had.’’ In addition, there
can be no question, as Bugnitz himself admitted, and the
General Counsel’s witnesses confirmed, that as Merkt testi-
fied Bugnitz became excited, becoming caught up in what he
was saying. Employee Henderson recalled that Bugnitz said
it was not fair to him that the employees had gone to the
Union and that it was ‘‘all done behind his back’’ (Tr. 362).
In Bugnitz’ morning unlawful interrogation of employee
Carl Merkt, he repeatedly asked Merkt why Merkt had not
come to him first, stating that he had thought they had a bet-
ter relationship. After Merkt reassured him that it was not
457CROWN CORK & SEAL CO.
‘‘personal’’ and that it was ‘‘an economic situation’’ that re-
quired outside representation,’’ Bugnitz responded that the
employees’ action was a ‘‘direct reflection upon my manage-
rial ability’’ (Tr. 133). He then repeatedly told Merkt that he
was ‘‘upset with the fact that you didn’t come to me’’ (Tr.
134). Such statements are consistent with Bugnitz’ own ad-
missions of being upset and go advising the employees at the
February 22 meeting and employee Henderson’s recollection
that Bugnitz said that the employees had ‘‘gone behind his
back.’’ I am constrained to find, as alleged by the General
Counsel, that the statements in the meeting, alone, commu-
nicated to the employees that their protected conduct was
viewed by Bugnitz as disloyal. I further agree that the con-
text of the statements on February 22–23 included an asser-
tion that Bugnitz had kept the employees on the payroll in
spite of line 2 having been removed and, if the Union came
in, Respondent would have to lay off employees (Tr. 284–
285). Indeed he told them that Respondent was maintaining
the employment of these employees who were not engaged
in production work notwithstanding that Respondent was los-
ing money by keeping these people employed all that time.
The suggestion of layoff was in a context of employee in-
gratitude, particularly that the employees went behind
Bugnitz’ back to get a union in when Respondent was keep-
ing otherwise unemployable employees on the payroll (Tr.
286).
Bugnitz’ statement to all the employees that they had gone
behind his back in getting the Union and their ingratitude in
doing so inspite of the fact that Respondent kept in employ-
ment employees who would otherwise be laid off, conveyed
to the employees the message that Respondent equated en-
gaging in union activity, a protected statutory right, with em-
ployee disloyalty. Such a statement, though made during
emotional circumstances, tends to interfere with, restrain, or
coerce employees in the exercise of their Section 7 rights in
violation of Section 8(a)(1) of the Act. Oscar Enterprises,
214 NLRB 823 (1974).
Respondent defends on the grounds that Bugnitz was
merely restating the employees’ long understood work short-
age problem together with the necessity that costs must be
kept under control to attract the two projects (can handling
system and end press equipment) necessary to keep them em-
ployed and to avoid layoffs. Respondent urges that in the
speeches, Bugnitz ‘‘gave no indication of anti-union animus
or possible retaliation against the employees’’ (R. Br. 69–
70). The preponderance of credible evidence, including
Bugnitz’ admissions of being upset over the employee ac-
tions, leads me to conclude that counsel misreads the evi-
dence in ascribing to Bugnitz no unlawful union animus and
threat of retaliation. In short, with regard to the first allega-
tion of the complaint, Bugnitz’ speeches to the employees on
February 22–23, with unmistakable accusations of employee
disloyalty, violate Section 8(a)(1) of the Act as alleged.
(b) Paragraph 5(c) of the complaint also alleges violation
due to Bugnitz’ alleged retaliatory threats to the employees
that they would be laid off if they selected the Union as their
bargaining representative.
The issue is whether Bugnitz’ statements constituted un-
lawful threats of layoff in retaliation for employees’ union
activities or were lawful predictions of the economic con-
sequences of the high cost of unionization.
The distinction between permissible employer predictions
of the consequences of unionization under Section 8(c) of the
Act and unlawful employer threats under Section 8(a)(1) of
the Act was established in NLRB v. Gissel Packing Co., 395
U.S. 575 (1969). Under Gissel, an employer may tell its em-
ployees its views about a particular union or its general
views about unionism but may not issue threats of reprisals
or promises of benefit. The employer may even make a pre-
diction as to the precise effects he believes unionization will
have on his operation but, under Gissel, the prediction must
be carefully phrased on the basis of objective fact to convey
an employer’s belief as to demonstrably probable con-
sequences beyond his control. NLRB v. Gissel, supra, 395
U.S. at 618.
The actual application of the Gissel requirement that the
employer’s prediction of adverse job consequences (whether
the closedown of the plant or the layoff of the employees)
be based on ‘‘reasons beyond its control’’ often presents
close and difficult questions. On the one hand, the Board has
held, Benjamin Coal Co., 294 NLRB 572 (1989), that an em-
ployer may lawfully predict a shutdown because of its own
precarious economic condition confronted by the Union’s ad-
amant economic demands. On the other hand, the employer’s
demonstration of ‘‘probable consequences of unionization for
reasons beyond its control,’’ Auto Workers v. NLRB, 127
LRRM 2060, 2063 (9th Cir. 1987), citing Zim’s Foodliner v.
NLRB, 495 F.2d 1131, 1137, cert. denied 419 U.S. 838
(1974), did not meet the Gissel requirement for such a dem-
onstration where there was merely a good faith concern for
higher labor cost and an inability to compete coupled with
a threat to shut down. In that case, there was an insufficient
objective basis on which the threat was made. In particular,
the Zim’s Foodliner court, 85 LRRM at 3023 stressed the
Gissel requirement that the ‘‘demonstrably probable con-
sequences’’ be ‘‘beyond his control.’’ The burden is on the
employer to justify his prediction of closedown (or, as here,
layoff), with objective evidence, Zim’s Foodliner, supra at
3023, citing cases. In Harrison Steel Castings, 293 NLRB
1158 (1989), the Board stated that in the presence of ‘‘mani-
fested overt hostility to the union activists in its work force,’’
an employer could not ‘‘suggest the loss of jobs as a result
of loss of business [to competitors] without demonstrating to
employees that such a chain of causation would be brought
about through forces beyond [the employer’s] control.’’ See
Somerset Welding & Steel, 304 NLRB 32 (1991).
Further, as above noted, Bugnitz’ February 22–23 speech-
es to the employees as well as Respondent’s other commu-
nications to the employees, occurring both in writing and in
its weekly meetings with employees, commencing in the
week following Bugnitz’ February 22 speeches until the elec-
tion, are surrounded by the aura of Bugnitz’ union animus.
I have found that his February 22 speech, accusing the em-
ployees of ‘‘going behind his back’’ as an act of employee
disloyalty, violates Section 8(a)(1) of the Act. Moreover,
antiunion animus is no less antiunion animus simply because
it springs from serious economic considerations such as cost.
Indeed, in the majority of cases where employers commit un-
fair labor practices and thereby impede the election process,
the employers break the law primarily out of concern for
their economic welfare. NLRB v. C.J.R. Transfer, 936 F.2d
279 (6th Cir. 1991), enfg. 298 NLRB 579 (1990).
458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In the instant case, I accept Respondent’s statements (R.
Br. 68–69) that Bugnitz, in the preunion organization period,
held meetings with unit employees stressing the importance
of keeping costs down in order to attract new business which
would, in the face of the existing work shortage in the Vine-
land plant, protect the employees’ jobs. In particular, both
the preunion meetings, Bugnitz’ speeches, and Respondent’s
other communications with its employees before the election
focus on obtaining new work to protect the employees’ jobs.
I further agree that Bugnitz (and other Respondent commu-
nications to its employees) stressed the need for Respondent
to maintain a competitive cost position in order to attract the
new work which would, in turn, protect the employees’ jobs
and insure them against layoffs. In particular, the new work
which Respondent intended to bring into the Vineland plant
to insure against layoffs were Progresso’s can handling
equipment and the transfer of ‘‘end press’’ equipment from
the Hurlock plant as the other necessary additional new
work. Respondent asserts:
[t]he discussion [by Bugnitz at the February 22–23
meetings with employees] was simply a continuation of
the employee meetings that Bugnitz had conducted
months before the Union became an issue. These pre-
organizing drive meetings stressed the importance of
keeping cost down in order to attract the can handling
and end press project, and warned that these projects
would be essential to preserve job security at the plant.
Once the labor costs of the Master Agreement became
an issue, the Company also focused on explaining how
the Agreement’s terms would apply automatically to the
employees, pointing out the impact that the unavoidable
30–35% increase in labor cost would have on the Com-
pany’s ability to compete for new projects. The objec-
tive, economic basis for these predictions, as described
in the statements themselves, demonstrates that these
explanations were entirely lawful descriptions of the de-
monstrably probable consequences of electing the
Union, consequences that fell entirely outside the Com-
pany’s control.
Again, Respondent stresses that the importance of the ac-
quisition of both of these projects was repeatedly discussed
with the employees by Respondent. In the same vein, em-
ployee Merkt testified that at the February 22 shift meeting
he attended, Bugnitz warned that the cost factor associated
with the Steelworkers getting into the plant might prevent
Respondent from obtaining the end press and the can han-
dling system (Tr. 136). Similarly, in Respondent’s written
communication to its employees of April 17, 1990 (G.C.
Exh. 8), Respondent warned its employees:
THIS IS A CRITICAL TIME AT VINELAND. Much is on the
line, and much is up in the air. To protect jobs it will
be necessary to move an end press to Vineland and as-
sume all of Progresso’s can handling work.
Lastly, Respondent particularizes Bugnitz’ warning at the
February 22–23 meeting to Respondent’s employees ‘‘of the
need to attract the can handling system and press equipment
in the plant. The employees were already aware of the im-
portance of these projects.’’ (Emphasis added; R. Br. 69.)
Bugnitz told the employees that the ‘‘two projects were . . .
very necessary to keep the 10 or 12 extra people . . . em-
ployed.’’ (Tr. 710.)
In short, therefore, I find and conclude that Respondent,
at all material times, warned its employees that if they did
not receive both the end press equipment and the Progresso
can handling equipment, there would be layoffs. It therefore
follows that, if Respondent failed to attract only one of the
two ‘‘new work’’ elements, then there would be layoffs in
the plant. In other words, both elements of new work were
necessary in order to preserve jobs under Respondent’s con-
sistent warnings in this case.
On the basis of this conclusion, I find it unnecessary to
reach or decide the effect of Respondent’s ‘‘prediction’’ or
‘‘threat’’ of the effect of the Union’s high cost contract,
automatically to be applied to the Vineland unit on union
certification or recognition, with regard to the Progresso can
handling system. Rather, I conclude that if the prediction of
layoff on the failure of the Vineland plant to receive only the
‘‘end press’’ equipment amounts to an unlawful ‘‘threat,’’
violating Section 8(a)(1) of the Act, then Bugnitz’ entire
February 22–23 speeches to the employees were tainted by
inclusion merely of the unlawful threat of layoff based on the
failure to obtain the end press equipment. This would be true
regardless whether the companion prediction of layoff based
on failure to receive the Progresso can handling equipment
may also have been an unlawful threat.
The issue of whether the Vineland plant would receive the
end press equipment, due to the transfers of such equipment
from Respondent’s other plants, had been ‘‘kicking around’’
for 10 years. The credible evidence shows that the ‘‘possibil-
ity’’ of that transfer had been long discussed and debated.
The possibility of the transfer was historically based on the
high attrition rate of employees at Respondent’s Baltimore
plant; the transfer of certain end press equipment from the
Baltimore plant to the Hurlock plant; and the resulting trans-
fer of the Hurlock end press equipment to the Vineland
plant. As employee Merkt recalled, Bugnitz warned, in the
February 22–23 speech to the first shift, that the high cost
of the union contract might prevent the Vineland plant from
receiving the end press equipment from Respondent’s sister
plant. Bugnitz says that he told the employee that:
those projects [the end press equipment and can han-
dling equipment] were based on cost, and that basically
the only way we could probably lose those projects was
to increase our cost and become uncompetitive with our
other plants. [Tr. 703.]
In fact, as early as the preunion period, Bugnitz told the
Vineland employees in late 1989 (Tr. 746–747) that there
was a tentative decision to bring the end press into the Vine-
land facility because the Vineland plant was the cheapest
place to manufacture the ‘‘ends,’’ produced by the end press.
In the February 22–23 speech to employees, Bugnitz told the
employees that with the advent of the Union and the auto-
matic application of the Steelworkers’ high cost master con-
tract, the Vineland plant would probably lose both projects
because the increased costs would make Respondent’s Vine-
land plant ‘‘uncompetitive with our other plants’’ (Tr. 703).
In short, Bugnitz did not tell the employees at the Feb-
ruary 22–23 meetings that the increased costs under the auto-
matic application of the union contract would definitely
459CROWN CORK & SEAL CO.
11 Six weeks later, as will be seen infra, in the discussion concern-
ing Bugnitz’ April 17 letter (G.C. Exh. 8) to all employees, Re-
spondent ‘‘took off the gloves.’’ No longer was it presenting em-
ployees with the possibility of losing the end press and the can han-
dling installations. Rather, equating the advent of the Union as creat-
ing an inefficient and uneconomical operation which would nec-
essarily make Vineland uncompetitive, Respondent now directly
states that it will not transfer the end press into the plant:
THIS IS A CRITICAL TIME AT VINELAND. Much is on the line,
and much is up in the air. To protect jobs it will be necessary
to move an end press to Vineland and assume all of Progresso’s
can handling work. But, those things can only occur IF we can
carry out those operations efficiently and economically. IF NOT,
THAT WORK WILL NOT BE DONE IN OUR VINELAND PLANT. IT
WILL ONLY BE DONE HERE IF WE CAN MAINTAIN OUR COMPETI-
TIVE ADVANTAGE. WE WILL not bring work into this plant—and
our customer will seek other alternatives—if that work can’t be
done at a reasonable cost, a cost that allows both of us to make
a fair return on our investment.
Where Respondent here insists on a ‘‘fair return on our investment’’
as a condition for ultimately not laying off the employees if they se-
lect the Union, the Board has held that a mine owner’s speech dur-
ing an organizing campaign, as here, stating: ‘‘if we could not sell
coal at a profit we would not sell coal,’’ was an unlawful implied
threat to close the mine if the union won the election. Superior Coal
Co., 295 NLRB 439 (1989). Here, ‘‘we will not bring work into this
plant—and our customer will seek other alternatives—if that work
cannot be done at a reasonable cost, a cost that allows both of us
to make a fair return on our investment.’’
12 This violation of Sec. 8(a)(1) of the Act occurring before filing
of the petition does not operate as an objection to the election.
cause them to lose the end press installation in the Vineland
plant; rather, he told them that Respondent would have to re-
consider any decision to place the end press equipment in the
Vineland plant because the increase costs associated with the
Union’s success would make the Vineland plant ‘‘uncompeti-
tive with our other plants’’ (Tr. 703). A clearer statement of
Respondent retaining the discretion to provide work for the
Vineland unit employees, or to withhold same, could not be
made.11 If it remains in Respondent’s discretion, it cannot be
said to be an economic result ‘‘beyond Respondent’s con-
trol.’’
Where an employer tells its employees that a contemplated
consolidation of tool and die work in the plant, which would
mean plant expansion and more jobs for the employees,
would have to be reconsidered in the event of a union vic-
tory, this statement constituted an implied threat to withhold
this benefit if the employees selected the Union. Threats to
cancel plans for plant expansion because of the advent of the
Union, or as here, to prevent new work from coming into the
plant to increase jobs, are violations of Section 8(a)(1) of the
Act. Maremont Corp., 294 NLRB 11 (1989); Lion Uniform,
259 NLRB 1141, 1143 (1982). Respondent’s conditioning of
this threat of withholding the transfer of the end press equip-
ment, based on the increase cost due to the Steelworkers’
contract, which would make the Vineland pant ‘‘uncompeti-
tive with our other plants’’ (Tr. 703) is merely Respondent
exercising its own discretion: evaluating the wisdom of con-
tinuing in its decision to place the end press in Vineland in
the face of increased costs due to the automatic application
of the Steelworkers’ contract. The fact that Respondent’s
threat to its Vineland employees, that they would be laid off
if the end press equipment was not installed, is based on a
‘‘concern for [its] economic welfare,’’ NLRB v. C.J.R. Trans-
fer, supra, is merely a statement that Respondent would have
to utilize its discretion in evaluating the wisdom of transfer-
ring the equipment into the Vineland plant.
Unlike Benjamin Coal Co., 294 NLRB 572 (1989), where
the lawful threat of job loss (shutdown) was predicated on
the employer’s undisputed precarious financial condition and
the union’s undisputed, known economic demands, here, Re-
spondent threatens layoff solely because of the automatic ap-
plication of the known high cost Steelworkers’ contract
which, because of a judgment on diminished profitability,
will cause it not to transfer the end press. This latter discre-
tionary act is not based on the workings of outside competi-
tive forces; rather, it is based, on this record, on the Vineland
plant’s alleged resulting lack of competitiveness with Re-
spondent’s own unorganized sister plants. But there is noth-
ing in the facts here to demonstrate what the wage scales,
benefits, total costs, and efficiency of those unorganized sis-
ter plants consist of. On this record, Vineland’s alleged re-
sulting lack of competitiveness is not compared to facts from
other plants. It is merely Respondent’s ipse dixit. In short,
Respondent’s threat to cause Vineland layoffs (if the employ-
ees select the Union as their bargaining representative) by
choosing not to transfer the end press because of Vineland’s
alleged resulting noncompetitive status is not a ‘‘prediction
. . . phrased on the basis of objective fact to convey [Re-
spondent’s] belief as to demonstrably probable consequences
beyond his control,’’ NLRB v. Gissel, supra, 395 U.S. 575
at 618: (a) Respondent alludes only to the high cost master
agreement but has provided no objective facts supporting
Vineland’s uncompetitive status compared to its sister plants;
and (b) the uncompetitive Vineland status, if any, is not a
matter of objective forces but is substantially subject to the
exercise of Respondent’s own discretion and even possible
manipulation of the wages, benefits, costs, etc. in the sister
plants.
Especially where, as here, Respondent has ‘‘manifested
overt hostility to the union activists in its work force’’ (the
treachery of employees of seeking union support, going be-
hind Bugnitz’ back, and adversely affecting his managerial
status), it may not then ‘‘lawfully go on to suggest the loss
of jobs as a result of loss of business to the competition [a
fortiori, loss of business to its own sister plants] without
demonstrating to employees that such a chain of causation
would be brought about through forces beyond [its] control,’’
Harrison Steel Castings, 293 NLRB 1158 (1989); Somerset
Welding & Steel, 304 NLRB 32 (1991). As such, Bugnitz’
speeches are unlawful threats rather than lawful predictions
and fail to meet the standards established in NLRB v. Gissel
Packing Co., 395 U.S. 575 (1969). Bugnitz was making
these unlawful threats to the entire unit thereby violated Sec-
tion 8(a)(1) of the Act.12 Compare Member Oviatt dissenting
in Somerset Welding, supra.
H. Respondent’s Meetings with Employees After
February 22–23
About 2 or 3 weeks after Bugnitz’ February 22–23 speech-
es to the unit employees, he convened about eight weekly
meetings up through the time of the election (Tr. 143). At
each of these meetings, where the Respondent’s health pack-
age, thrift plan, or other subject was mentioned, Bugnitz al-
460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ways discussed the jeopardy to the installation of the end
press (and can handling system) in the event the Union be-
came successful as the collective-bargaining representative
(Tr. 143–144). Any such repetition after March 1 would nec-
essarily violate Section 8(a)(1) and constitute objectionable
conduct. In March 1990 (presumably after the March 1, 1990
filing of the petition for certification), Bugnitz told the em-
ployees that his superiors in Respondent, Jim Toomey and
Tom Riker, told him that the installation of the end press in
the Vineland plant was ‘‘being put on hold’’; that the reason
the end press had been destined for installation in the plant
was because the Vineland plant had a cost advantage over
Respondent’s sister plants; and that if the employees came
under the Union’s master agreement that cost advantage
would make the installation of the end press in the Vineland
plant uneconomical (Tr. 759). On the above discussion, these
March and April 1990 Bugnitz’ statements at meetings of
employees violate Section 8(a)(1) of the Act and are objec-
tionable conduct (G.C. Exh. 1(j)). The failure of such instal-
lation, as above noted, would cause layoff of almost half the
unit.
I. Respondent’s April 17, 1990 Letter to its
Vineland Employees
Bugnitz distributed a letter (G.C. Exh. 8) to its unit em-
ployees on or about April 17 relating to job security and lay-
offs. Paragraph 5(e) of the complaint alleges that Respond-
ent’s letter violated Section 8(a)(1) by threatening employee
layoff if employees selected the Union.
The letter, over Bugnitz’ signature, contains the following
warnings and admonitions:
1. In the forthcoming May 3 election, each employee will
decide whether he will turn over control of his future to the
Union and to (unionized) people at other Continental Can
plants.
2. The letter urges the employees to vote against the
Union, one of the most important reasons for which is job
security (emphasis in the original).
3. The letter notes that job security is a very important
issue in the plant at that time because of the technological
changes taking place: the change to the two-piece line the
potential of gaining the Progresso can handling system, and
the possibility of obtaining the end press. The letter asks:
WHAT WILL HAPPEN TO your JOB? (Capitalization and empha-
sis in the original.)
4. The letter declares: NO UNION CAN GUARANTEE YOUR
JOB SECURITY. (Capitalization in the original.)
5. The letter declares that job security comes only from
Respondent’s customers; the ability of the Vineland plant to
provide a high quality product, on time, at a price Progresso
is willing to pay.
6. The letter declares that, to protect jobs, it will be nec-
essary to move an end press to Vineland and assume all
Progresso’s can handling work. Those operations will come
to the Vineland plant only if the Vineland Plant can carry
out those operations ‘‘efficiently and economically.’’ ‘‘IF
NOT, THAT WORK WILL not BE DONE IN OUR VINELAND
PLANT. IT WILL ONLY BE DONE HERE IF WE CAN MAINTAIN
OUR COMPETITIVE ADVANTAGE. WE WILL NOT BRING WORK
INTO THIS PLANT—AND OUR CUSTOMERS WILL SEEK OTHER
ALTERNATIVES—IF THAT WORK CAN’T BE DONE AT A REA-
SONABLE COST . . . THAT ALLOWS BOTH OF US TO MAKE A
FAIR RETURN ON OUR INVESTMENT’’ (emphasis and capital-
ization in original).
1. Discussion
Respondent, in this letter, it seems to me, is vividly repeat-
ing its prior threats to its employees that if they bring the
Union in with its associated high contract cost, they will get
neither the Progresso can handling equipment nor the end
press, both of which are necessary for employee job security,
i.e., if they bring the Union in with the high cost contract,
the employees will face layoff because there’s not enough
work for them without the installation of both mechanical
devices. The Bugnitz April 17 letter, however (G.C. Exh. 8),
adds something new to what he told the employees in his
February 22–23 speeches: the high labor costs of the Steel-
workers’ master agreement, brought into the Vineland plant,
no longer will merely jeopardize the possibility of the two
devices coming into the plant; they are no longer ‘‘on hold’’;
they are now not coming into the plant if the Steelworkers’
contract comes in. Thus, employee jobs are in jeopardy (Tr.
711), pivoting on employees bringing in the Union with its
contract.
On this latter point, Respondent not only cannot be ac-
cused of obscurity, but it adds an additional implied threat.
At page 2 of the April 17 letter, Bugnitz tells employees that
their jobs are not secure; that if Respondent does not do the
work, others will come in and take the work away from
them. Bugnitz then lists the Steelworkers’ record not only on
job security but on plant closings:
FACT NO. 1: In 1970, the Steel Workers Union rep-
resented Continental Can Employees under their master
agreement at 45 locations. Today there are only 12 lo-
cations. Nearly 75% of the locations have been closed.
That’s 50 plant closings in total. Those locations that
exist today have been cut way back.
FACT NO. 2: In 1970 there were approximately
17,500 Continental Can employees working under the
Steel Workers master agreement. More than 1600 of
those Continental Can employees (former U.S.W. mem-
bers) have lost their jobs.
Bugnitz, in his testimony, admitted that in the packaging
industry, in his 26 years of experience, layoffs and shut-
downs are caused by reasons other than high cost of labor;
admitted that foreign competition is a problem in the packag-
ing industry although probably not in cans directly; and that
competition from other producers who have better machinery
and are closer to markets may also account for shutdowns
and layoffs. In particular, Bugnitz admitted that labor costs
may be a cause but not the only cause of layoffs and shut-
downs in the canning industry (Tr. 705–706).
2. Discussion
Again, Respondent’s April 17 letter must be measured by
the test in NLRB v. Gissel Packing Co., 395 U.S. 575, 618
(1969):
The Employer may even make a prediction as to the
precise effects he believes unionization would have on
his company. In such case, however, the prediction
must be carefully phrased on the basis of objective fact
461CROWN CORK & SEAL CO.
13 NLRB v. Overnite Transportation Co., 938 F.2d 815 (7th Cir.
1991): ‘‘Coercive threats may be implied rather than stated ex-
pressly.’’ National By-Products v. NLRB, 931 F.2d 445, 451 (7th
Cir. 1991). We must be sensitive, moreover, to the ‘‘economic de-
pendence of the employees on their employers, and the necessary
tendency of the former, because of that relationship, to pick up in-
tended implications of the latter that might be more readily dis-
missed by a more disinterested ear.’’ NLRB v. Gissel Packing, supra,
395 U.S. at 617.
to convey an employer’s belief as to demonstrably
probable consequences beyond his control.
In his April 17 letter to employees, as in his February 22–
23 speeches to the same employees, Bugnitz’ message, re-
gardless of what else it contains, associates membership in
the Steelworkers’ Union and its master agreement with plant
closings and layoffs. It states that there had been 50 plant
closings in Continental Can due to the advent of the master
agreement. It goes further and states that since 1970, there
was a loss of 16,000 out of 17,500 jobs because of the mas-
ter agreement. This message, on the basis of Bugnitz’ admis-
sions of substantial other reasons for the closedown of plants
and the loss of jobs (foreign competition, proximity to mar-
kets, new and advanced machinery, etc.) is therefore factu-
ally unbalanced. It does not advise the employees that their
jobs may lack security for reasons other than the advent of
the master agreement. The only reason he gives for plant
closings and layoffs is the master agreement. In the instant
case, again, that agreement is automatically applied if the
Union becomes the unit bargaining representative.
Insofar as this record goes, as Bugnitz himself testified,
the worst employment case he foresaw would be that the use
of the new two-piece line, together with the expected close-
down of the second three-piece line, would cause the layoff
of approximately 7–10 employees. That would leave a bal-
ance of more than 20 employees on the 3 shifts. Respond-
ent’s April 17 letter, however, does not speak only in terms
of layoff of employees but of repeated closing of plants
where the master agreement became effective. That would
mean that all the employees would lose their jobs if the mas-
ter agreement came into effect. The threat of plant closing,
as opposed to mere partial layoff, is unmistakable13 in the
April 17 letter. It discloses that of 45 locations in which the
master agreement applied, there are only 12 locations left. It
explicitly states: ‘‘Nearly 75 percent of the locations have
been closed.’’ It repeats: ‘‘That’s 50 plant closing in total.’’
On this record, Bugnitz knew, however, that there was no
anticipated plant closing at the time he gave both the Feb-
ruary 22 speeches and at the time of his April 17 letter; rath-
er, he knew, under the worst case scenario, that 7 to 10 (14?)
jobs might be lost (Tr. 654, 671) if neither the can handling
equipment nor the end press equipment found a way into the
Vineland plant. Contrary to the Gissel admonition, above,
there is no basis whatever, much less an objective basis, on
which Bugnitz could threaten the closedown of the Vineland
plant. Thus, the April 17 letter contains a retaliatory threat
of ‘‘close down’’ where there are no facts on this record to
support the closing of the plant. Such a threat, wholly outside
any consequences flowing from failure to receive the end
press or the can handling equipment, violates Section 8(a)(1)
of the Act as being retaliatory on the advent of the Union
rather than the application of the master agreement based on
costs.
Finally, Respondent’s April 17 letter declares for the first
time that its threats of layoff and closedown are bottomed,
not on extravagant union demands that will force it to the
wall, Benjamin Coal Co., 294 NLRB 572 (1989), but on ob-
taining ‘‘a fair return on our investment’’ (G.C. Exh. 8). Al-
though there is nothing unlawful in such a financial expecta-
tion, it demonstrates that the decision to not install the end
press was discretionary—to be determined wholly by Re-
spondent’s estimate of a ‘‘fair return.’’ An ensuing layoff or
closedown, resting on such a foundation, would hardly be be-
yond Respondent’s control, hardly an objective standard. A
‘‘fair return’’ is a measure of Respondent’s subjective de-
sires.
For all the above reasons, I conclude that Respondent, in
its April 17 letter to the employees (G.C. Exh. 8), threatened
them with plant closedown and layoff because, in the exer-
cise of its discretion, it would refuse to install, inter alia, the
end press equipment in the plant if they chose the Union as
their collective-bargaining representative. Especially when
measured against the background of Bugnitz’ clear union
animus, as expressed in his February 22–23 speeches,
Bugnitz’ April 17 letter tended to cause employees to believe
that they would be laid off or that the plant would be shut
down if they selected the Union as their bargaining rep-
resentative, Harrison Steel Castings, 293 NLRB 1158 (1989).
The fact that these expressions of union animus would de-
rive from serious economic considerations does not save Re-
spondent from having made an unlawful threat of retaliation
in violation of Section 8(a)(1) of the Act. Compare
Maremont Corp., 294 NLRB 11 (1989), with Benjamin Coal
Co., 294 NLRB 572 (1989); see NLRB v. C.J.R. Transfer,
936 F.2d 279 (6th Cir. 1991), enfg. 298 NLRB 579 (1990).
J. The April 25 Speeches of Donald Bireley and James
Toomey to the Unit Employees
Bireley and Toomey spoke to unit employees, at least to
the first and second shifts, on April 25, 1990. The complaint
fails to allege that any remarks they made to the employees
at that time were unlawful (Tr. 794, 795). The General
Counsel conceded that Toomey said nothing unlawful at the
meeting (Tr. 793). As I stated at the hearing, I refuse to
make a finding, despite extensive testimony in the record, on
what was said by Toomey or Bireley at that meeting. Indeed,
I precluded Respondent from inquiring as to what was said
at the meeting by Toomey (Tr. 798). Under these cir-
cumstances, I continue in my decision to not decide the un-
lawfulness of any Toomey’s or Bireley’s remarks at the
April 25 meeting other than that which was placed in evi-
dence by Respondent, at Respondent’s insistence (Tr. 792 to
796). What Toomey told the employees was read to them
from a prepared text (R. Exh. 8; Tr. 792, 797–798).
In the document which Toomey read to the employees on
or about April 25, 1990, 10 days before the election of May
3, 1990, and therefore within the ‘‘critical period,’’ Toomey
reminded the employees that Respondent invested $3.6 mil-
lion in Vineland technology, in the new two-piece line, be-
cause the Vineland plant was ‘‘nonunion with competitive
rates.’’ Respondent then stated: ‘‘I can assure you that if the
cost of manufacture were higher, this project [the new tech-
nology] would be sitting on someone’s desk collecting dust.’’
462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Toomey speech from the prepared text then states
(emphasis in the original):
What does tomorrow hold for the Vineland plant—
the two projects which you are aware of, the end press
and can center (which has been approved) are on hold
pending the outcome of this election and will be, re-
evaluated because they are very sensitive to increased
costs. Both these projects were based upon a wage
structure that was not calculated based on master agree-
ment rates of pay and benefits. It appears your decision
will have a significant impact on your future, not only
for these projects but others as well. Let there be no
mistake about it, you could be putting your jobs on the
line. The increased cost of the master—which was not
part of the calculation, would probably be the ‘‘death
knell’’ to one or both of these projects. As we’ve said,
this election isn’t just about money . . . . It’s about
jobs, your jobs.
. . . .
Don’t price yourself out of the market, and out of a
job! Who should you entrust your job security to?—
yourself or the USWA?—I think you’ve done an excel-
lent job without them. Why risk the future, that work
is yours . . . . It should be yours. You’ve earned it.
Don’t throw it away.
The same employees who heard these remarks, who re-
ceived the April 17 letter, above, and who heard Bugnitz’
February 22 and 23 speeches, all of which, under the Gissel
rule, may be considered concerning what the employees un-
derstood in this April 25, 1990 speech, repeats to the em-
ployees that their jobs are on the line if they choose the
Union. Again, though couched in terms of increased costs,
in this speech, Respondent assured the employees not only
that Respondent invested its capital in the Vineland plant be-
cause it was nonunion, but also tells the employees that it
made a decision in the early 1970s to get out of high cost
and inefficient unionized plants (only 12 of 45 master agree-
ment plants have not been shutdown: G.C. Exh. 8, April 17,
1990) and to open new competitive plants that were non-
union. It further tells the employees that it makes invest-
ments to secure jobs in nonunion plants because they are
‘‘competitive.’’ Indeed, it tells the employees that it trans-
ferred business ‘‘from other plants’’ to keep ‘‘your employ-
ment fairly level when Progresso was slow.’’ It further
states: ‘‘I think you get the picture.’’ Lastly, and signifi-
cantly, it admonishes the employees that, with regard to the
investment of capital in a plant to keep job security, not only
the end press and the can center will be reevaluated if the
employees choose the Union, but it assures the employees
that if they select the Union, ‘‘the choice . . . will have a
significant impact on your future, not only for these projects
but others as well.’’ In no uncertain terms, Respondent tells
the employees that if they choose the Union, Respondent will
no longer invest in the Vineland plant and this will cause
layoffs:
It appears your decision will have a significant impact
on your future, not only for these projects but others
as well. Let there be no mistake about it, you could be
putting your jobs on the line.
Again, without Respondent demonstrating that its other
nonunion plants are cost (or otherwise) ‘‘competitive,’’ Re-
spondent here threatens, on the basis of lack of ‘‘competi-
tiveness,’’ not only to avoid installing the end press and can
handling equipment, but to not further invest in the Vineland
plant in the future causing layoffs if the employees choose
the Union. Respondent’s message was that capital investment
means job security. Choose the Union and you are ipso facto
not ‘‘competitive’’ and therefore no further capital invest-
ment. There is no basis—objective or otherwise—on this
record, showing that Respondent’s nonunion and non-Steel-
workers’ plants are ‘‘competitive’’ because they are not
under the master agreement. I therefore find this to be a
threat of job loss similar to the threat in the April 17 letter,
a violation of Section 8(a)(1) of the Act, and a threat of re-
taliation which forms the basis of an objection to the elec-
tion.
With regard both to this April 25 matter (R. Exh. 8) and
the April 17 letter (G.C. Exh. 8), Respondent, at the time of
the election and at the time of these speeches and letters, op-
erated only 2 plants that were nonunion, 18 plants with other
unions, and 12 plants with the instant United Steelworkers.
At no point on this record did Respondent show, or even al-
lege, that its operations at the 12 Steelworkers’ plants were
not competitive with the industry or were losing economic
propositions. Indeed, the record shows that Progresso was
buying lids from a plant subject to the master agreement. At
least in the 12 Steelworkers’ plants, there is no present sug-
gestion that their operations were so unsuccessful that Re-
spondent was going to close them down.
To the extent Respondent argues that Respondent deliv-
ered its message on costs and the problems of competitive-
ness in a ‘‘non-threatening manner,’’ both the substance of
the communications and Bugnitz’ prior remarks obviate such
an argument (R. Br. 70). Respondent’s union animus, wheth-
er orally delivered by Bugnitz or in Toomey’s speech or
Bugnitz’ letter, is palpable.
K. Respondent’s Prediction or Threat to Discontinue
the Employees’ Thrift Plan—Paragraph 6 of
the Complaint
Although employee Henderson’s testimony with regard to
the dates of occurrence was not a model of clarity, he testi-
fied that at one meeting at which Bugnitz spoke to employ-
ees, perhaps in March 1990, Bugnitz told the employees that
if the employees chose the Union, the Vineland employees
would probably lose their thrift plan (Tr. 367–368; 389). He
recalled Bugnitz saying, in substance, that Vineland employ-
ees would ‘‘probably loose the thrift plan because its not in
the other union plants or something to that effect’’ (Tr. 391).
Henderson did not recall that Bugnitz linked the loss of the
thrift plan with the Steelworkers’ master contract (Tr. 391).
In any event, as part of Respondent’s campaign effort,
prior to the May 3 election, to warn of the effect of a union
victory on the Vineland employees, especially the effect of
the automatic application of the Steelworkers’ master agree-
ment to their terms of employment, Respondent held a meet-
ing of its employees on April 5, 1990. The meeting was led
by Lynne Krueser (human resources manager from Respond-
ent’s Rochelle Park offices) and assisted by Bugnitz. Krueser
made a slide presentation to the employees demonstrating the
advantages of Respondent’s total retirement package, includ-
463CROWN CORK & SEAL CO.
14 The complaint, par. 6, alleges that at the April 5, 1990 meeting,
the Respondent, through Lynne Krueser, threatened the employees
with the discontinuance of the ‘‘thrift plan’’ if the employees se-
lected the Union as their collective-bargaining representative.
ing its pension and its retirement thrift plan (RTP) over the
pension provided by the Union’s master agreement. At the
meeting, a document, ‘‘Understanding Your Retirement
Thrift Plan’’ (G.C. Exh. 6), was distributed to each employee
(Tr. 113) and each page was projected in the slide show (Tr.
194).14 Comparing nonunion and Steelworkers’ benefits, the
document matches employees in various Respondent pay po-
sitions and years of service with various combinations of
benefits. In the first example, employees in the same job
classification (job class 13), each with 25 years’ service, re-
ceive a pension distribution under the nonunion Vineland
pension arrangement of $520 per month. A similar employee
covered by the Union, again with 25 years’ service, receives
a pension under the master agreement of $595 per month.
The document shows that there is no RTP under the union
contract but, in the Vineland plant, an employee with 25
years’ service at age 62 with certain conditions having been
met regarding years of RTP participation (15 years) and
other options would receive an additional RTP distribution of
$384 per month. That particular comparison, therefore, shows
that the Vineland employee covered by both nonunion pen-
sion and RTP receives a total retirement distribution of $904
per month whereas the similar employee covered by the
Union’s master agreement receives only his pension of $595
per month.
A further comparison relates to employees of 30 years’
service in the same job classification (class 13) where the
Vineland, nonunion employee has 25 years of RTP participa-
tion. The nonunion employee receives a pension at Vineland
of $624 per month whereas the similar employee covered by
the master agreement receives $714 per month. With 25
years of RTP participation, however, the nonunion employee
receives an additional $714 per month. The chart dem-
onstrates that the nonunion Vineland employee would receive
a monthly total of $1338 ($624 per month from the nonunion
pension; $714 per month from RTP) compared to a similarly
situated employee covered by the master agreement who re-
ceived a total pension of $714 per month.
The handout further describes other comparisons of em-
ployees in the same job classification (job class 13) with 30
years’ service. Using similar figures, the handout shows non-
union employees receiving $2162 per month when RTP is
added to a 30-year Respondent pension compared to a total
of $714 per month as the Union’s pension. Lastly, the docu-
ment also shows a nonunionized employee receiving a 30-
year pension of $624 per month with an RTP distribution of
$3210 per month, totaling $3834 per month at Vineland. The
similar union employee receives a total of $714 per month
in retirement.
The Respondent document (G.C. Exh. 6) ends with the
statement that in the event the Union were to be successful
in the organizing drive, future employee participation in the
RTP would be discontinued immediately; there would be no
additional employee or company matched contributions.
Krueser then told the employees that if the Union’s master
agreement were applied, Respondent would follow the proce-
dure that it followed at other plants, repeating the matter
which appears at the end of the document: future participa-
tion in the RTP would be discontinued immediately with no
additional employee or matching company contributions.
When an employee asked whether the RTP would be lost if
the Union were selected, Bugnitz said: ‘‘yes, you would lose
it.’’ Krueser said, ‘‘[A]bsolutely, and this is the reason
why.’’ Krueser then told the employees that because the RTP
was not part of the master agreement’s benefit package, it
would be lost if the Union were elected. Krueser, independ-
ent of Bugnitz, told the employees of the automatic loss of
the RTP (Tr. 195; 734).
Apparently in April 1990, at or about the time that
Krueser was addressing the employees, Respondent distrib-
uted a memo (‘‘Q & A’’) to all employees which explained
the effect of the master agreement on the RTP (G.C. Exh.
7). This memorandum appears to answer a question from an
employee wherein the employee quotes the Union as having
said that if the Vineland employees chose the Union, they
cannot lose existing benefits. In addition, the employee alleg-
edly was told by the Union that if the Vineland employees
had something ‘‘better than the Steelworker[s’] agreement,’’
they can get to keep it plus whatever else is in the agree-
ment. The anonymous employee asked whether this was true.
Respondent’s answer is:
Absolutely not. If the union wins the election, you
would get exactly what is in the agreement, no more!
If you have something that is not in the agreement, you
lose it. IF YOU NOW HAVE SOMETHING THAT IS better
THAN THE AGREEMENT, IT GETS REDUCED TO WHAT IS
IN THE AGREEMENT.
That’s exactly what happened at Lancaster in 1986
when the employees voted in the Steelworkers. The
Lancaster employees Lost the right to participate in the
Company’s Retirement Thrift Plan, and they lost their
Performance Bonus. [Of course, they lost much more
when that plan closed in 1987.]
1. Discussion
As in the resolution of other complaint allegations, regard-
ing ‘‘predictions’’ or ‘‘threats,’’ the question whether Re-
spondent’s repeated assertion that a union election victory,
coupled with the automatic application of the master agree-
ment, would mean the loss of the retirement thrift plan con-
stitutes a violation of Section 8(a)(1) of the Act, is to be
measured under the Gissel rule, above. The question is
whether Section 8(a)(1) of the Act is violated, because Re-
spondent told the employees that union victory and the appli-
cation of the master agreement would automatically cost
them the retirement thrift plan. Again, Gissel requires an em-
ployer’s lawful prediction of the demonstrably probable con-
sequences be (a) beyond his control and (b) carefully phrased
on the basis of objective fact.
There is no question, it seems to me, that as a prima facie
matter, when the Respondent told its employees that a con-
sequence of union victory would be immediate loss of the
Vineland retirement thrift plan because of the automatic ap-
plication, in turn, of the master agreement, it was making a
‘‘threat’’ of retaliation based on the automatic application of
the master agreement. Thus, the interposition of the auto-
matic application of the master agreement is necessarily a de-
fense to the assertion that the ‘‘prediction’’ is not an unlaw-
464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 The parties agree, as above noted, that, by virtue of the master
agreement (G.C. Exh. 3(a), sec. 2.1) Respondent’s canning plant em-
ployees who vote in the Union are automatically covered by the
master agreement.
ful ‘‘threat’’ within the meaning of Section 8(a)(1) of the
Act. Respondent is saying that it is the automatic application
of the master agreement that is causing the loss of the RTP
rather than the employees choosing the Union. In other
words, I find that Respondent’s repeated statements of loss
of the retirement thrift plan does constitute an unlawful
‘‘threat’’ unless excused by a defense established in the
record.
Respondent’s defense, as I understand it, rests on (a) the
language of the master agreement (now extended to February
21, 1993, G.C. Exh. 3(b)) which would be automatically ap-
plied in case of a union election victory and (b) the interpre-
tation of that language as manifested by the past applications
of the master agreement by the Union and Respondent in
various situations over a period of years.
With regard to (a), above, the language of the master
agreement,15 it is article 4 of the master agreement which
generally covers the survival of Local agreements, customs,
and practices.
By paragraph 4.1, the instant master agreement
supercedes written local agreements (and supplements exe-
cuted under prior master agreements). Paragraph 4.1 applies
to written local agreements. It thus would eliminate conflict-
ing written agreements. To the extent that the Vineland pen-
sion agreement is a written agreement, it would be automati-
cally superceded by the master agreement pension plan.
Paragraph 4.2 provides: ‘‘Presently effective local cus-
toms or practices, written or oral, which are not specifically
covered by provisions of this Agreement and which are not
in conflict with its provisions shall remain in effect during
the term of this Agreement.’’
Paragraph 4.3 provides: ‘‘Presently effective local cus-
toms or practices, written or oral, which provide benefits in
excess of the specific benefits provided for through the pro-
visions of this Agreement shall be continued for the term of
this Agreement unless eliminated by mutual agreement.’’
Thus under article 4.2 local customs or practices, includ-
ing oral customs or practices, which are (1) not specifically
covered by the master agreement; and (2) which are not in
conflict with the master agreement, remain in effect during
the term of the master agreement. Under article 4.3, a local
custom or practice, including an oral custom or practice,
which provides benefits in excess of the specific benefits
under the master agreement, shall be continued for the term
of the agreement unless eliminated by mutual consent.
Respondent’s first argument, derived from the language of
the master agreement, asserts that under article 4.2, the mas-
ter agreement provides for the continuation only of local cus-
toms and practices, but (R. Br. 54):
conspicuously omits any reference to other benefits that
may be in place locally but are not specifically provided
for in the Master Agreement.
Certainly, these provisions taken together leave no
room to speculate over the parties’ intent. The clear and
unequivocal wording of the agreement, itself, dem-
onstrates that benefits (like the Thrift Plan) that were
not specifically provided for in the Master Agreement
do not survive. [Emphasis in the original.]
Although it is true that article 4.2 relates to the continu-
ation of local customs or practices not in the master agree-
ment and not in conflict with them, and also omits any ref-
erence to benefits, the reference to ‘‘benefits’’ appears in the
next subsection, article 4.3.
Article 4.3 relates to the continuation of benefits. Contrary
to Respondent’s argument, above, it provides that a local
custom or practice which grants ‘‘benefits in excess of the
specific benefits provided for through . . . this Agreement’’
survives.
In short, article 4.2 provides for the continuation of local
customs and practices which are neither specifically covered
by the agreement nor in conflict with it. Section 4.3, how-
ever, addresses the specific existence of ‘‘benefits in excess
of the specific benefits’’ provided for in the master agree-
ment. Those excess specific benefits are to be continued dur-
ing the life of the master agreement unless eliminated by mu-
tual consent.
Thus, accepting, arguendo, Respondent’s distinction be-
tween, on the one hand, ‘‘local customs and practices’’ and,
on the other hand, local customs or practices which provide
additional specific benefits, we are met, in the instant case,
with the Union’s master agreement providing a particular
benefit called a ‘‘pension.’’ The Vineland unit employees, at
all material times, have enjoyed not only a company pension
but also a company retirement thrift plant (RTP) (G.C. Exh.
6). Article 4.3 of the master agreement, automatically applied
here, would therefore appear to replace the Vineland employ-
ees’ conflicting pension plan with the pension plan specified
in the master agreement. The master agreement, however, is
silent on any benefit relating to an employee-employer fund-
ed investment or ‘‘Retirement Thrift Plan.’’ The Vineland
employees’ RTP appears to me to be, if not a not-provided-
for, nonconflicting local custom or practice within article 4.2,
at least a ‘‘specified benefit’’ (as defined in art. 4.3), which
‘‘shall be continued for the term of this agreement unless
eliminated by mutual agreement.’’ Thus, it is only the two
opposing pension plans which, under section 4.2, are in con-
flict. The master agreement, as I read it, would replace the
Vineland pension plan with the conflicting master agreement
pension plan. Again, because the master agreement is silent
on the existence of any benefit remotely resembling the re-
tirement thrift plan, and because such a plan exists at the
Vineland plant, it seems that, under the master agreement
(art. 4.3), the thrift plan is a ‘‘specific benefit’’ which sur-
vives.
I therefore reject Respondent’s argument (R. Br. 54) that
because the RTP is not specifically provided for in the mas-
ter agreement, it does not survive. Respondent concentrates,
in its brief (R. Br. 54), on the undoubted fact that article 4.2
does not refer to benefits. But, article 4.3 does refer to the
survival of benefits which are in excess of the specific bene-
fits provided for in the master agreement. Furthermore, I find
that the master agreement is clear and unambiguous on this
point. I reject the defense (R. Br. 53) that article 4 of the
master agreement is an express waiver of the survival of the
RTP. The only way that the RTP could be deemed as not
having survived is to define it as something other than a non-
covered, nonconflicting ‘‘benefit,’’ or to assume that the
465CROWN CORK & SEAL CO.
16 Respondent has not argued that, in any event, its ‘‘threat’’ of
loss of the RTP is not unlawful because, under Gissel, it had a good-
faith belief, from the Union’s failure to act in other eliminations of
the RTP on application of the master agreement, that Vineland em-
ployees would lose the RTP. In the absence of Respondent having
failed to make the argument, I shall refrain from doing so. In any
case, Respondent did not tell its employees that they would probably
lose the RTP; it said it was automatic (i.e., derived from the contract
rather, than from the union’s prior failures to act).
master agreement pension plan entirely exhausts the retire-
ment position of employees in newly certified units. This, I
refuse to do.
Respondent further argues that if, read together, sections
4.2 and 4.3 of article 4 are deemed ambiguous, then, under
the bargaining history, past practice, and surrounding cir-
cumstances, the RTP would not be deemed a benefit which
survived the automatic application of the Union’s master
agreement (R. Br. 54).
I have found, however, above, that the language of the
master agreement is not ambiguous. Respondent, however,
argues that if the surrounding circumstances, including bar-
gaining history and prior positions of the parties are taken
into account, then the conclusion follows that the Union
impliedly waived any claim that the RTP survived the auto-
matic application of the master agreement.
Respondent, were we to reach the prior practice and his-
tory of the parties, points to three recent occasions where the
Union won elections where the Respondent’s retirement thrift
plan had been in effect, where the master agreement was
then applied, and the RTP was immediately discontinued.
Respondent asserts that on none of these occasions did the
Union (‘‘a sophisticated international union knowledgeable
about protecting employees’ rights,’’ R. Br. 55) file either
unfair labor practices or grievances protesting the loss of the
RTP. Furthermore, Respondent notes that at one of the plants
where the master agreement applied, the Union did file
grievances regarding other matters but did not file grievances
on Respondent’s elimination of the RTP. Ultimately Re-
spondent argues that the Union knew that it was the intent
of the parties that newly unionized employees received what
was specifically provided for in the master agreement, noth-
ing more, nothing less (R. Br. 55).
The short of the matter, however, is that I do not know
what the Union ‘‘knew’’ or why, in particular cases, it re-
frained from filing charges or grievances with regard to the
loss of the retirement thrift plan at other plants under other
bargaining circumstances. I do not know what financial, bar-
gaining-strength, or other interest-guided union tactics. As
Respondent notes, perhaps the Union thought that action at
those times with regard to the loss of the RTP would have
been futile, whether because of its own economic and bar-
gaining condition or otherwise. Cf. Boland Marine & Mfg.
Co., 225 NLRB 824, 829–830 (1976).
Lastly, as above noted, Respondent appears to argue that
because the master agreement contains a detailed pension
plan, the entire subject of retirement benefits has been bar-
gained out. Therefore, the omission of the retirement thrift
plan should indicate that the omission in the master agree-
ment was specific and intentional; and that it is no longer a
subject appropriate for mandatory bargaining because it has
already been bargained out. The answer to this argument, as
above, is that the face of the master agreement shows that
what has been bargained out is not the entire subject of ‘‘re-
tirement benefits’’ but the specifics of the pension plan ap-
pearing in the master agreement. Indeed, the master agree-
ment refers specifically to pensions (G.C. Exh. 3(a); art. 23)
and to other wage-type benefits including a supplemental un-
employment benefit plan (art. 24, G.C. Exh. 3(a)). There is
no master agreement reference to ‘‘retirement benefits’’ or to
an employee-employer supplemental retirement plan. Thus, I
continue in my conclusion that, especially relating to em-
ployees in newly certified units, the subject of a ‘‘Retirement
Thrift Plan,’’ not appearing in the master agreement, is a
noncovered, nonconflicting ‘‘benefit in excess of the specific
benefits [i.e., the master agreement pension] provided for
through the provisions of [the master agreement]’’ which
continues under the provisions of article 4.3 of the master
agreement.
I further conclude that the face of the master agreement’s
provisions in articles 4.2 and 4.3, above, are sufficiently
clear that no recourse is needed, on a theory of ambiguity,
to the parties’ prior bargaining history and actions at other
plants. Although the Supreme Court has reminded the Board
that it is neither the sole nor the primary source of authority
in the interpretation of collective-bargaining agreements, Lit-
ton Business Systems v. NLRB, 111 S. Ct. 2215, 2223 (1991),
the Board, as the Court observes, nevertheless must continue
to interpret collective-bargaining agreements in the context of
alleged unfair labor practice adjudication, NLRB v. C & C
Plywood Corp., 385 U.S. 421 (1967). Within that limited
framework, I conclude that the master agreement contains no
express or implied waiver of the Union’s right to demand
bargaining on the termination of the existing benefit, the re-
tirement thrift plan, and mandatory subject of bargaining.
I further conclude, therefore, that Respondent, in March
and April 1990, unlawfully threatened the Vineland unit em-
ployees with loss of their RTP if they brought the Union in
as their collective-bargaining representative, because the mas-
ter agreement provided for such automatic loss. I conclude,
on construction of the agreement, above, that application of
the master agreement does not automatically provide for loss
of the RTP; and that by threatening the employees with the
loss of the RTP, it was making the ‘‘threat’’ without an ob-
jective basis on which the probable consequence of its loss
would occur, a loss not beyond Respondent’s control. I there-
fore conclude that Respondent threatened, as a consequence
of unionization, an economic reprisal against its employees
in violation of Section 8(a)(1) of the Act. See NLRB v.
Gissel Packing Co., 395 U.S. 575, 618–619.16
2. Unit and the Union’s majority status
The complaint alleges and Respondent admits that, pursu-
ant to Section 9(b) of the Act, the following employee unit
is a unit appropriate for collective bargaining:
All full-time and regular part-time production and
maintenance employees, employed by the Respondent
at its 502 West Elmer Road, Vineland, New Jersey fa-
cility, but excluding office clerical employees, guards
and supervisors as defined in the Act.
Respondent denies that, commencing January 19, 1990, a
majority of unit employees designated the Union as their col-
lective-bargaining representative and denies that since on or
466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 Although automatic application occurs, under the terms of art.
2.1 of the master agreement (G.C. Exh. 3(a)), on certification or vol-
untary recognition, I believe that a Board order may also require
automatic application where, as here, Respondent has interfered with
and effectively eliminated the certification route.
18 A recent gloss on the Gissel rule is found in International Door,
303 NLRB 582 fn. 2 (1991), where the Board said:
In Gissel, the Court identified two categories of cases in
which a bargaining order would be appropriate. . . . The second
category involves ‘‘less extraordinary cases marked by less per-
vasive practices which nonetheless still have the tendency to un-
dermine majority strength and impede the election processes.’’
The Court stated that in the latter situation a bargaining order
should issue where the Board finds that ‘‘the possibility of eras-
ing the effects of past practices and of ensuring a fair election
(or a fair rerun) by the use of traditional remedies, though
present, is slight and that employee sentiment once expressed
through cards would, on balance, be better protected by a bar-
gaining order.’’
about February 9, 1990, pursuant to Section 9(a) of the Act,
the Union has been the exclusive representative of the above
unit employees for the purposes of collective bargaining.
The record shows no less than 18, ‘‘single purpose’’ union
authorization cards in evidence (G.C. Exhs. 4(a)–4(r)), all
dated prior to May 3, 1990. The parties further stipulated that
at all material times up through the May 3, 1990 election,
there were 31 employees employed in the unit. There appears
to be no dispute, and I find, that since 18 of 31 employees
signed ‘‘single purpose’’ union cards, a majority of the unit
employees designated the Union as their collective-bargain-
ing representative prior to the May 3, 1990 election. The par-
ties further stipulate that the Union has not made a demand
for recognition on Respondent.
As above noted, in the May 3, 1990 election, of the 31
eligible voters, 13 voted for the Union but 16 voted against.
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. On or about February 22, 1990, Respondent, by John
Bugnitz, its supervisor and agent, violated Section 8(a)(1) of
the Act by coercively interrogating an employee with regard
to his and other employees’ union activities.
4. On and after February 22, 1990 meetings with Respond-
ent’s unit employees, and in meetings in March and April
1990, Respondent violated Section 8(a)(1) of the Act,
through its supervisor and agent John Bugnitz, by telling
them that he was upset that the employees had gone behind
his back in trying to get the Union in and had not come to
him first to solve their problems; by telling them that he con-
sidered such action as a personal reflection on his managerial
ability; and by threatening them with layoffs if they selected
the Union as their collective-bargaining representative.
5. On or about April 5, 1990, and thereafter in April 1990,
Respondent violated Section 8(a)(1) of the Act by threaten-
ing to discontinue its retirement thrift plan if the employees
selected the Union as their collective-bargaining representa-
tive.
6. On or about April 17, 1990, in a letter to its employees,
Respondent violated Section 8(a)(1) of the Act by threaten-
ing employees with layoffs and plant shutdown if they se-
lected the Union as their collective-bargaining representative
in the Board-conducted election on May 3, 1990.
7. On or about May 2, 1990, Respondent, through John
Bugnitz, a supervisor and agent, violated Section 8(a)(1) of
the Act, by telling an employee that if the plant became
unionized, the employee would be responsible for the loss of
a lot of jobs.
8. The following employees of the Respondent constitute
a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time production and
maintenance employees, employed by the Respondent
at its 502 West Elmer Road, Vineland, New Jersey fa-
cility, but excluding office clerical employees, guards
and supervisors as defined in the Act.
9. Since February 9, 1990, and at all material times there-
after, the Union has been, as is, by virtue of Section 9(a) of
the Act, the exclusive representative of Respondent’s em-
ployees in the unit, defined above here, for the purposes of
collective bargaining.
10. Respondent, by committing the above unfair labor
practices occurring in March, April, and May 1990, after the
March 1, 1990 filing of the petition for certification, and be-
fore the May 3, 1990 Board-conducted election, engaged in
objectionable conduct which interfered with employee free
choice in, and affected the results of, the election.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act, it is rec-
ommended that Respondent be ordered to cease and desist
therefrom and to take the following affirmative action which
is designed to effectuate the policies of the Act.
The General Counsel, because of Respondent’s serious un-
fair labor practices, in the presence of a card majority of unit
employees, requests, and Respondent resists, a bargaining
order as a remedy for the unfair labor practices, under the
Gissel ‘‘category two’’ theory. See Somerset Welding &
Steel, 304 NLRB 32 (1991); BI-LO, 303 NLRB 749 (1991),
and International Door, 303 NLRB 582 fn. 2 (1991). Re-
spondent notes that under current Board law, Trading Port,
219 NLRB 298 (1975), the General Counsel seeks retro-
activity in the application of the master agreement,17 i.e., the
retirement thrift plan, and the other terms of the master
agreement, back to February 1990 when Respondent set out
on its course of serious unfair labor practices. Respondent
urges that its conduct does not merit a bargaining order be-
cause of circumstances changing since the election, the
unique circumstances of this case, and the absence of any
lingering effect of Respondent’s prior unlawful conduct.
The Union and the General Counsel, citing the progeny of
NLRB v. Gissel Packing Co.,18 395 U.S. 575 (1969), urge
that a bargaining order should issue, noting the types of
8(a)(1) misconduct (threats of layoff and plant closure; loss
of RTP) and their effect on the election process. Koons Ford
of Annapolis, 282 NLRB 506 (1986); Long-Airdox Co., 277
NLRB 1157 (1985).
Respondent argues that the essential issue is not the com-
mission of serious unfair labor practices but, under Gissel,
467CROWN CORK & SEAL CO.
whether there has been a showing that the unfair labor prac-
tices have destroyed the likelihood of a fair rerun election
(actually, that the likelihood of a fair rerun election is
‘‘slight,’’ Member Oviatt, dissenting, Somerset Welding) so
that a bargaining order is necessary to effectuate the policies
of the Act (R. Br. 90). In support of Respondent’s argument
that there be no bargaining order, it cites the fact that its eco-
nomic concerns, which form the basis of the unlawful threats
here, were mentioned to employees before the initiation of
the organizing drive and were a serious economic problem
regardless of whether Respondent stepped over the line and
committed unfair labor practices in impressing on its em-
ployees the seriousness of these economic considerations. In
addition, Respondent suggests there is no evidence of any
lingering Respondent hostility toward the employees or the
Union, and that the record shows no adverse action against
any union supporter or a threat of reprisal against even the
center of union activity, employee Carl Merkt.
Respondent further argues, conceding that threats of job
loss and threats of lost benefits are generally the type of vio-
lations that might warrant a bargaining order (R. Br. 91), that
these unfair labor practices do not have their genesis in union
animus or hostility or toward the principle of unionization.
With regard to the loss of the RTP, Respondent observes that
its threat was not a ‘‘gutter level’’ threat (Br. 91). In support
of that position, it cites its long history of contracts and bar-
gaining with unions in general and with the Steelworkers
Union, in particular. I have noted, however, NLRB v. C.J.R.
Transfer, 936 F.2d 279 (6th Cir. 1991), enfg. 298 NLRB 579
(1990), that union animus is no less union animus simply be-
cause it springs from serious economic considerations). With
Respondent having only 2 nonunionized plants out of a total
of 32 plants I conclude that Respondent unlawfully dem-
onstrated an extraordinary desire to keep the Union out of a
plant with only 31 of its 3200 employees. Whether this de-
rived from hatred of unions or from the desire to keep at
least a couple of plants nonunion and to derive possible eco-
nomic and flexibility benefits therefrom is a matter of legal
indifference.
Respondent is quite correct in asserting that the type of
violations in the instant case, in the presence of preexisting
card majority, regardless of a bargaining demand, often merit
the inclusion of a bargaining order as a remedy. See cases
above cited in this remedy section.
Each case of ‘‘hallmark’’ threats before an election seems
to raise the question of the imposition of a remedial bargain-
ing order. The countervailing policy arguments, i.e., the pref-
erence of an election by secret ballot to resolve employee de-
sires; the questionable use of ‘‘cards’’ as a reliable indicator
of employee desires; whether a fair election could be held in
light of the unfair labor practices, have recently been col-
lected (in a case not altogether distinguishable) and rejected
when measured against the particular threat, from high offi-
cials, of layoff or plant closing, Somerset Welding & Steel,
304 NLRB 32 (1991). This particular ‘‘hallmark’’ violation
seems to catch the Board’s attention as ‘‘among the most fla-
grant.’’ Somerset Welding, supra. Eddyleon Chocolate Co.,
301 NLRB 887 (1991) (‘‘the most pernicious’’—such threats
are ‘‘more likely to destroy election conditions for a longer
period of time’’). In the instant case, not only was Bugnitz
the highest supervisor in the plant, but Respondent went out
of its way to bring in corporate officials to threaten the em-
ployees with layoff and, in the April 17 letter to all employ-
ees, to imply plant closing as well. In particular, the General
Counsel cites Ed Chandler Ford, 254 NLRB 851 (1981),
where the board sustained a bargaining order noting that the
threats emanated not from a minor supervisor but from Re-
spondent’s sales manager. The sales manager told the em-
ployees that their support of the Union was incompatible
with their continued employment, as in the instant case,
where there were threats of layoff and plant closing. He fur-
ther threatened them with loss of existing benefits if the
Union got in.
Although the matter is not entirely free from doubt, I am
guided by the facts and the Board’s conclusions in the recent
decision in BI-LO, 303 NLRB 749 (1991). In that case, Ad-
ministrative Law Judge Ries recommended the issuance of a
bargaining order where, as here, the employer repeatedly em-
phasized the closing of its other plants on the advent of the
union. In this regard I was particularly impressed, as above
noted, with the effect on employees of Respondent’s widely
distributed memorandum of April 17, 1990 (G.C. Exh. 8).
Referring the employees to the Union’s record on job secu-
rity, Respondent emphasized the fact that of 45 locations in
1970 where the Steelworkers Union was present with its
master agreement, there were only 12 plants still open imme-
diately prior to the May 3 election. As Respondent specifi-
cally reminded the employees in the Vineland unit, where
other plants were intermediately opened and closed, ‘‘that’s
50 plant closings in total. Those locations that exist today
have even been cut way back.’’ Judge Ries observed that the
Third Circuit in Midland-Ross Corp. v. NLRB, 617 F.2d 977,
987, noted that:
[a] closing of the plant is the ultimate threat for an em-
ployee, and its psychological effect is at least as likely
not to dissipate as other unfair labor practices we have
held to justify a Gissel II Order.
The Board, noting other violations, agreed that a bargain-
ing order was appropriate but stated that it would not pass
on the judge’s finding that a bargaining order would be justi-
fied merely on the threat of plant closure standing alone. BI-
LO, supra at fn. 5. The Board, citing the court in Midland-
Ross, emphasizes the effect of such disseminated threats
from high officials, particularly where they originate with the
advent of the Union. Somerset Welding, supra, fn. 6.
In the instant case, the threat of layoff and plant closure
does not stand alone. As in BI-LO, supra, there are additional
violations. Although I do not believe that the solitary in-
stances of interrogation and Bugnitz’ single emotional threat
of May 2 to Carl Merkt are supportive of a bargaining order,
yet Respondent’s repeated additional threat of the employees’
losing their thrift retirement plan; its bringing in the super-
visors from Rochelle Park to reinforce that conclusion in
their slide show of April 5, 1990, it seems to me, is rather
heavy medicine and would have a lasting effect on the em-
ployees’ recollections. It was not merely Plant Manager
Bugnitz; it was the corporate-level managers.
In short, I believe that the slide shows and written dis-
tributions, along with the weekly employee meetings held
after February 22 and up to the time of the election, stressing
Bugnitz’ and corporate hostility to the Union, the treachery
of the employees going behind Bugnitz’ back, the threat of
468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 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.
loss of benefits and the threats of layoff and plant closure
militate in favor of the bargaining order as an appropriate
remedy. In reaching this conclusion, I find that, under Gissel,
a bargaining order based on a majority showing of authoriza-
tion cards is a more reliable indication of employee choice
because it seems likely that the employer’s unfair labor prac-
tices have made the likelihood of a fair election slight, even
with the imposition of the Board’s traditional cease-and-de-
sist order. A rerun election would not solve fairness prob-
lems created by Respondent’s unfair labor practices. The em-
ployees presently enjoy the can handling system which on
the record, in part, was the guarantor of their job security.
The end press transfer, the other part of their job security,
is either still on hold or is frozen (Tr. 758–762). The Union’s
position is pretty well undermined. In a rerun election, the
employees might reasonably ask themselves: Who needs the
Union now?
To the extent that Respondent argues that changed cir-
cumstances weigh against a bargaining order (line 1 will not
be removed, therefore the threat of job loss has subsided;
transfer of Toomey; Krueser and Bireley are gone, etc.) are
singularly unimpressive. Bugnitz remains. The employees
have their can handling system, a promised element of job
security. The end press installation is conditioned on attrition
at the Baltimore plant (i.e., within Respondent’s discretion).
The argument that a bargaining order will merge the Vine-
land employees into a multiplant unit of 1200 employees
which will nullify their decertification rights is sophistry. In
the first place, each time that Respondent, under the master
agreement, voluntarily recognizes a unit in the metal indus-
try, it merges the smaller unit into the overall unit—even
without an election. Second, Respondent’s solicitude for em-
ployee election rights after seriously interfering in the elec-
tion process cannot obscure the crocodile tears.
The matter does not end there. The parties have agreed
that a bargaining order brings with it the application of the
master agreement at the Vineland unit. I agree. But the date
of retroactivity remains outstanding. Respondent’s argument
that Trading Port, 219 NLRB 298 (1975), retroactivity will
impose a serious economic hardship is also not a convincing
position: it is the product of its own unfair labor practices.
I do observe, however, that in the particular facts of this
case, and guided by Trading Port (where retroactivity was
invoked to the later date of the Union’s recognition demand,
not the prior date of the employer’s embarking on its course
of unfair labor practices), that there was no preelection union
recognition demand even in the presence of a card majority.
Rather, the Union, despite its filing of unfair labor practice
charges, pursued the election process in the hope of securing
certification. Here, had the Union been successful in an un-
tainted election process, a supportable bargaining request no
earlier than the date of the election (May 3, 1990) could
have been perfected.
In short, absent a union request for recognition, as here,
and the Union’s dependence in the first instance on the re-
sults of the election on which to base majority status and an
ensuing bargaining request, it would be a clear windfall to
the Union and the unit employees to gain substantial contract
benefits retroactive to Respondent’s February 22 unfair labor
practices. The Union, had it been successful in the election,
under the terms of the master agreement (art. 2, sec. 2.1,
G.C. Exh. 3(a)), could expect inclusion of the unit no earlier
than May 3. To order Respondent’s bargaining obligation
(and the application of the terms of the master agreement)
retroactive to the date of the May 3 election is: (a) consistent
with the agreement of the parties in the master agreement;
(b) consistent with the expectations of the parties had there
been no seriously unlawful interference with the Board’s
election process; (c) designed to avoid a ‘‘windfall’’ to the
unit employees which would occur if the retroactivity was
ordered back to the start of Respondent’s February 22 unfair
labor practices, a time at which, absent an intermediate bar-
gaining request, there was no union desire or expectation of
then receiving master agreement benefits; and (d) to avoid
the appearance of punitive elements in the remedy.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended19
ORDER
The Respondent, Crown Cork & Seal Company, Inc.,
Vineland, New Jersey, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Coercively interrogating its employees, threatening its
employees with loss of benefits, threatening its employees
with layoffs or plant shutdown, and telling employees that if
the Union got in, they, or any of them, would be responsible
for loss of jobs, because of their support for or membership
in United Steelworkers of America, AFL–CIO–CLC.
(b) In any other like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights to self-organization, to form, join, or assist any labor
organization, to bargain collectively through representatives
of their own choosing, or to engage in concerted activities
for the purposes of collective bargaining or other mutual aid
and protection, or to refrain from any and all such activities.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize and, on request, bargain collectively with
the Union, as the exclusive representative of the employees
in the appropriate unit set forth above, by applying the terms
of the master agreement, and any applicable amendment or
successor thereto, to the Vineland unit employees (defined
here in Conclusion of Law 8) and the Union retroactive to
May 3, 1990, and thereafter, continue to recognize and bar-
gain with the Union with respect to rates of pay, hours, and
other terms and conditions of employment.
(b) Make whole Vineland unit employees for the period
commencing May 3, 1990, for any loss of earnings and bene-
fits they may have sustained by virtue of Respondent’s fail-
ure to apply the terms of the master agreement to them, and
make whole the Union for any master agreement contribu-
tions Respondent failed to make to it commencing May 3,
1990.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
469CROWN CORK & SEAL CO.
20 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.’’
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its factory in Vineland, New Jersey, copies of
the attached notice marked ‘‘Appendix.’’20 Copies of the no-
tice, on forms provided by the Regional Director for Region
4, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees 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.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the Union’s objections to the
election in Case 4–RC–17299 are sustained, the election of
May 3, 1990, is set aside, and the petition there is dismissed.