Marine World USA

National Labor Relations Board - Board DecisionsAug 27, 1980

251 N.L.R.B. 1211 (N.L.R.B. 1980)

MARINE WORLD USA 1211 Marine World USA and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Marine World Employ- ees Union, Party in Interest. Case 20-CA- 11815 August 27, 1980 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDAIE On May 16, 1978, the National Labor Relations Board issued a Decision and Order in the above- entitled proceeding.' The Board found, inter aolia, that Respondent violated Section 8(a)(1) of the Act on the basis of certain written announcements issued by Respondent's president to the employees during an election campaign, and ordered Re- spondent to cease and desist from issuing the an- nouncements. 2 Thereafter, the Board filed an application for en- forcement of that portion of its Order relating to the 8(a)(l) finding in the United States Court of Appeals for the Ninth Circuit. On January 17, 1980, the court remanded the proceeding to the Board for consideration of whether the written an- nouncements distributed to the employees consti- tuted cononcoercive speech protected by Section 8(c) of the Act.3 On March 26, 1980, the Board acepted the court's remand and advised the parties that they could submit statements of position with respect to the issue raised by the remand. Thereafter, the General Counsel and Respondent filed statements of position. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. In our original Decision, we found that Re- spondent violated Section 8(a)(1) of the Act when, during the election campaign involving the incum- bent Union and the rival Union, it distributed two written announcements to the employees informing them that it could not grant an unscheduled wage increase because the incumbent Union had failed to give its consent. Specifically, in the first announce- ment, distributed on June 2, 1976, Respondent's president stated, "the only barrier to putting the 1 236 NLRB X84 2 The Board also found that the issuance of these announcements to the employee, constituted objectionable conduct and therefore e the election aside and directed a new one ]The Board dismissed the other al- legations of the complaint 3 611 F 2d 1274 (9th Cir I98()1 The portion of the Board's Order di- recting a second election on the basis of the announcements as not before the court and, therefore, Is nt n-olsed herein 251 NLRB No. 161 new wage into effect immediately was the failure of the Union to grant its consent." The second an- nouncement, distributed on August 2, 1976, again raised the issue by stating, inter alia, that the Union had "held up" a wage increase "for the apparent reason that the [Union] could not take full credit." We found that these announcements "were [not] merely designed to advise the employees truthfully that they had not received a wage increase because of the Union's failure to consent." Rather, in view of the timing and the nature of Respondent's an- nouncements, we found that they were "calculated to discredit the Union and to discourage member- ship therein. 4 We therefore concluded that by such announcements Respondent violated the Act. As noted above, the court remanded the pro- ceeding to the Board for consideration of whether Respondent's announcements constituted noncoer- cive speech protected by Section 8(c). In so doing, the court stated that speech which might otherwise be found coercive within the meaning of Section 8(a)(l) cannot in view of Section 8(c) be the basis of a violation unless the coercion found amounts to a "threat of reprisal or force or promise of bene- fits."5 Applying this standard to Respondent's an- nouncements, the court found that they contained no express threat of reprisal or force or promise of benefit and, therefore, were not unlawful on their face. The court, however, remanded this proceed- ing for consideration of whether a threat or prom- ise can be inferred from the surrounding circum- stances. Accepting the court's analysis and findings as the law of this case, we conclude, for the rea- sons stated below, that an implied threat or prom- ise cannot be inferred from the surrounding cir- cumstances. The surrounding circumstances show that during the election campaign between the incumbent Union and the rival Union Respondent sought to grant an unscheduled wage increase to its employ- ees without risking an unfair labor practice charge or an objection to the election. To accomplish this Respondent asked both Unions if thec would con- sent to the wage increase. The rival Union gave its consent. However, the incumbent Union refused, requesting instead to discuss the matter with Re- spondent. Respondent declined to do so because it believed that such discussions would constitute bar- gaining and that it could not lawfully bargain with the incumbent Union during the pendency of the representation proceeding. As previously indicated, on June 2 and August 5, Respondent proceeded to capitalize on the incumbent Union's request to dis- ' 236 Nt RB at O s 611 F.2d at 1276-77 MARINE WORLD USA 1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cuss the matter by announcing to the employees that they would not be receiving a wage increase because the incumbent Union withheld its consent. As we found in our original Decision, Respond- ent's announcements clearly were calculated to dis- parage the incumbent Union in the eyes of the unit employees and to discourage membership therein. However, even considering the announcements in the context of Respondent's overall campaign in which it openly favored the rival Union, the an- nouncements do not suggest, either expressly or impliedly, that Respondent would retaliate against the employees and deny them a wage increase if the incumbent Union won the election. Nor can the announcements be read to suggest that Re- spondent would reward the employees with in- creased benefits if they voted to defeat the incum- bent Union. Thus we find that, although the an- nouncements were critical of the incumbent Union, a threat of reprisal or force or promise of benefit by Respondent cannot be inferred from the sur- rounding circumstances. Given this, the announce- ments cannot be found unlawful under the analysis applied by the court. Accordingly, having accepted the court's approach as the law of this case, we conclude that Respondent's announcements to the employees did not violate Section 8(a)(1) of the Act and we shall dismiss the complaint in its entire- ty. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is hereby ordered that the complaint be, and it hereby is, dismissed in its entirety.