Pennysaver and Ampress, Inc.

National Labor Relations Board - Board DecisionsOct 19, 1973

206 N.L.R.B. 497 (N.L.R.B. 1973)

PENNYSAVER AND AMPRESS, INC. Adco Advertising, Inc. d/b/a Pennysaver and Ampress, Incorporated and Graphic Arts International Union Local 262, AFL-CIO. Case 21-CA-i 1763 , October 19, 1973 DECISION AND ORDER By MEMBERS JENKINS, KENNEDY, AND PENELLO Upon a charge duly filed on April 30, 1973, by Graphic Arts International Union Local 262, AFL- CIO, hereinafter called the Union, the General Coun- sel of the National Labor Relations Board, by the Regional Director for Region 21, issued a complaint and notice of hearing on June 6, 1973, against Adco Advertising, Inc. d/b/a Pennysaver and Ampress, In- corporated, hereinafter called Respondent. The com- plaint alleged that Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(1) of the National Labor Re- lations Act, as amended, by distributing to its employ- ees a letter which threatened that Respondent would refuse to meaningfully bargain in good faith with the Union and which also threatened employees with loss of employment if they did not refrain from becoming or remaining members of the Union or giving any assistance or support to it. On June 8, 1973, Respon- dent filed an answer denying the commission of any unfair labor practices. On June 29, 1973, the parties executed a stipulation of facts by which the parties waived a hearing before an administrative law judge and the issuance of an administrative law judge's decision and recommend- ed order, and agreed to submit the case to the Board for findings of fact, conclusions of law, and an order, based upon a record consisting of the stipulation of facts, and exhibits, together with the charge, the com- plaint, and the answer. On July 2, 1973, the Regional Director for Region 21 referred the stipulation to the Board for decision. On July 9, 1973, the Board approved the stipulation of the parties and ordered the case transferred to the Board, granting permission for the filing of briefs. Thereafter, both the General Counsel and the Re- spondent filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the basis of the stipulation, the briefs, and the entire record in this case, the Board makes the follow- ing: FINDINGS OF FACT 1. JURISDICTION 497 Adco Advertising, Inc. d/b/a Pennysaver and Am- press, Incorporated, is, and has been at all times mate- rial herein, a corporation with a plant located at- Laguana Niguel, California. Respondent is engaged in the publication and printing of an advertising newspaper. In the normal course and conduct of its business operations, Respondent annually sells and ships goods, products, and services valued in excess of $50,000 to customers located within the State of Cali- fornia, each of whom annually sells and ships goods, products, and services valued in excess of $50,000 directly to customers located outside the State of Cali- fornia. Respondent admitted, and we find, that Adco Ad- vertising, Inc. d/b/a Pennysaver and Ampress, Incor- porated, is, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED The Respondent admitted, and we find, that Graphic Arts International Union Local 262, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Facts In or about February 1973, the Union commenced an organizational campaign at Respondent's place of business but, as of the date of the stipulation of facts, had not filed a petition for an election nor made any demand for recognition. On or about May 1, 1973, the Respondent distributed to its employees a letter dated May 1, 1973, bearing the signature of Herbert W. Sutton, president of Respondent, which contained, inter alia, the following passages: We want you to know exactly how we feel about the effort of the Graphic Arts International Union to organize you. Let there be no doubt about it-we firmly believe that you don't need any union to represent you and that our treatment of our employees over the past years is the best proof of that. What is more, we are convinced that a union representing our production and maintenance em- ployees would permanently destroy our good rela- tionship with you. 206 NLRB No. 58 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Graphic Arts Union invariably insists on a union shop which requires that all employees must be members of the union. If we were to agree to a union shop we would have to fire any- one who refused to become a member of the union and pay dues or initiation fees. Would you want us to force any of our employees, present and future, to join this union against their wishes in order to earn a living? We think not. We be- lieve that we do not have the moral right to force our people to join a union in order to work here. The letter further points out to the employees that, although they have the right to decide for themselves whether they want the Union to represent them, the `final decision of what is good for the company" rests with Respondent, and "no union can force us to sign any contract that is not acceptable to us after we have bargained in good faith and have failed to reach agree- ment, should you vote the union in." The letter then continues: At that point the only way the union can enforce its demands is by asking you to go out on a strike. Remember that there can be no strikes if there is no union; there can be no loss of income because of strikes, or loss of income because of payment of dues if there is no union. On the other hand, if you go out on a strike for higher wages and benefits, you will get absolutely no benefits from the union while you are on strike. What is more, if there is a strike we would not close down our operation for even one day. ^We would expect that most of our employees would continue working but in any event we would hire employes permanently to replace our present employees who strike. This is our right under the law. We tell you this not as any threat, but to make sure you are well informed before you bring this union in and it is too late. B. Contentions of the Parties The General Counsel contends that by informing employees that the Union invariably insists on a union shop and that Respondent does not have a moral right to agree to such a provision, Respondent has conveyed to its employees a sense of futility con- cerning collective bargaining as well as an anticipato- ry refusal to meaningfully consider the subject of a union-shop agreement. Furthermore, the General Counsel asserts that Respondent misstated the law when it explained that a union shop requires that all employees must be members of the Union and that, if agreed to, Respondent would have to fire anyone who refused to become a member. In addition, the General Counsel argues that Respondent implied that the Union would have to strike in order to achieve its demands and that Respondent would hire employees to permanently replace the present employees. In view of Respondent's alleged anticipatory refusal to consider the subject of a union shop, the General Counsel states that such a strike would actually be an unfair labor practice strike and that the inaccurate statement regarding strike replacements conveys to employees the impression that they would lose their jobs. In these circumstances, the General Counsel contends that the letter as a whole threatens and coerces employees in violation of Section 8(a)(1) of the Act. Respondent argues that the May 1, 1973, letter con-, stitutes expression protected by Section 8(c) of the Act. It contends that the letter was an appropriate response to the extensive union campaigning; that there is no claim here of any recurring or continuing antiunion activity; that Respondent merely related its position with respect to a union-shop provision, un- like the employer in N.L.R.B. v. Tommy's Spanish Foods, Inc.;' that, as to a possible strike, the Respon- dent merely offered advice with respect to a hypothet- ical circumstance, and coupled its remark with the "reassurance" that it intended no threat; and that Respondent did not disavow any intention to bargain with the Union in good faith. C. Analysis and Conclusions It is well settled that the topic of a union-shop pro- vision is a mandatory subject of bargaining, and that an adamant refusal to even negotiate such a provi- sion, since it conveys to employees a sense of futility regarding bargaining, violates the Act. For example, in N.L.R.B. v. Tommy's Spanish Foods, Inc.,2 a month before the election, the president of the company told her employees in a meeting that the union would un- doubtedly ask for a union shop, that she was opposed to a union shop, and that she could not, "as a matter of principle, agree to any union condition. Two days before the election, she held meetings with groups of employees and stated that the company "would never agree to any union demand to which "we were op- posed as a matter of principle. This latter reference was primarily to the union shop." Finally, the next day she delivered a letter to the employees which stated that the company would "flatly reject" any '463 F.21 116 (C.A 9, 1972), enfg. in pertinent part 187 NLRB 235 2 Ibid PENNYSAVER AND AMPRESS, INC. 499 demands which the company did not believe were in its best interests or those of its employees. The Board agreed with the finding of its Trial Examiner that such statements violated Section 8(a)(i) of the Act, stating that those communications, especially in light of other 8(a)(1) conduct found in the case, constituted an "an- ticipatory and unreasoned threat to refuse to mean- ingfully consider the , important subject of a union-security agreement." Similarly, the Board has held that statements such as an employer's adamant insistence that it would never, under any circumstanc- es, agree to any form of union security violated Sec- tion 8(a)(1) I because they convey a sense of futility to employees about future bargaining and, in doing so, restrain employees' freedom of choice. In contrast, whereas the employer in Tommy's Spanish Foods, in essence, repeated on three occasions that she would never agree to a union shop, Respon- dent herein merely explained to its employees its posi- tion on this issue. Certainly Respondent's letter does not contain the type of adamant refusal to even con- sider a union shop as was explicit in the other cases cited above. Furthermore, we believe that neither the tone of the entire letter nor the words used constitute anything more than the type of campaign rhetoric which accompanies many representation elections 4 With respect to Respondent's statements about the consequences of a strike, the General Counsel's argu- ment is premised on a finding that such a strike would be an unfair labor practice strike by virtue of Respondent's refusal to negotiate union security. Such was the case in Tommy's Spanish Foods,'where the employer stated that if a strike occurred perma- nent replacements would be hired. The Board held that the thrust of the employer's remarks reflected the employer's "game plan . . . calculated to make em- ployees look upon collective bargaining as a one-way street leading to unemployment."5 Since the employer had stressed the futility of bargaining on union securi- ty, the Board found that such a strike would be, an unfair labor practice strike, and that the company's threat of making permanent replacements in such a situation violated Section 8(a)(1) of the Act. In our view, the present case is readily distinguisha- ble from Tommy's. To begin with, the premise upon which the General Counsel's argument is based falls here'because we do not view Respondent's statements about union security to be coercive, and, therefore, we do not have any basis for stating that such a strike would be caused by Respondent's unfair labor prac- tices. In addition, it must be noted that Respondent did not disavow any intention to bargain with the Union, but merely predicted possible consequences if a strike occurred. In short, we find that Respondent's letter did not contain a threat of loss of employment if the employees supported the Union. Accordingly, as we find nothing in the entire letter which exceeds the permissible limits of free speech protected by Section 8(c) of the Act, we shall order that the complaint be dismissed. ORDER 3 M. F. A. Milling Company, 170 NLRB 1079, 1088, enfd. 463 F.2d 953 (C.A.D.C., 1972). 4 We also find that Respondent's statement of the law about a union shop, while legally inaccurate , does not, in the context of this case, constitute a violation of the Act. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board orders that the complaint herein be, and it hereby is, dismissed in its entirety. s Supra, 235.