Schwarzenbach Huber Co.Download PDFNational Labor Relations Board - Board DecisionsSep 19, 194985 N.L.R.B. 1490 (N.L.R.B. 1949) Copy Citation In the Matter Of SCHWARZENBACH HUBER COMPANY,' EMPLOYER and TEXTILE WORKERS UNION OF AMERICA, CIO, PETITIONER Case No. 6-RC-,033 SUPPLEMENTAL DECISION AND ORDER September 19,1949 Pursuant to a Stipulation for Certification Upon Consent Election executed by the Employer and the Petitioner on September 30, 1948, an election by secret ballot was conducted on October 7, 1948, under the direction and supervision of the Regional Director for the Sixth Region. At the close of the election, the parties were furnished a Tally of Ballots which showed that there were approximately 252 eligible voters, and that 243 ballots were cast, of which 105 were for the Pe- titioner, 131 were against the Petitioner, 4 were challenged, and 3 were void. No other labor organization was on the ballot. On October 14, 1948, the Petitioner filed Objections to conduct af- fecting the results of the election. Following an investigation, the Regional Director issued and duly served upon the parties his Report on Objections, wherein he recommended setting aside the election. Thereafter, the Employer filed timely Exceptions to the Regional Director's Report.2 Upon notice duly served, a hearing on the Objections was held be- fore Erwin Lerten, hearing officer of the National Labor Relations Board, on May 11 and 12, 1949. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : The Petitioner requests the Board to set aside the election of October 7, 1948, because of certain conduct of the Employer's plant superin- 1 The present proceeding involves the Employer ' s Juniata plant in Altoona, Pennsylvania. 2 The Board ' s Decision and Order of April 8 , 1949, adopting the Regional Director's recommendations in view of the apparent untimeliness of the Exceptions, was vacated on April 15, 1949, when it was found that the Exceptions were in fact timely filed. 85 N. L. R. B., No. 229. 1490 SCHWARZENBACH HUBER COMPANY 1491 tendent, Carl S. Schott. The Petitioner asserts, among other things, that immediately before the election Schott made statements contain- ing *threats and promises calculated to influence the employees to vote against the Petitioner and that therefore the results of the election do not represent the free choice of the employees. The Employer contends that the remarks made by Schott were mere statements of fact or expressions of opinion protected under the Act. The record reveals that on October 6 and 7, 1948, Schott addressed the employees on each of the last three shifts preceding the scheduled hour of the election. In his speeches he frankly indicated that the Employer did not want the Petitioner in the Juniata plant and, among other things, spoke of a pension plan and of closing the plant. Statement concerning a pension plan Schott admittedly announced to the employees that the Employer was "considering" a pension plan. We must determine whether this announcement constituted improper interference with the election. The subject of pensions was one in which the Juniata employees were intensely interested, as a large proportion of them were older workers who had been in the Employer' s service for many yea.rs.3 Schott's announcement that the Employer was considering a pension plan constituted the first notice the employees had received of a new and important development in management policy on the subject, insofar as the Juniata employees were involved. - The undoubted concern of the employees in the subject matter of the announcement, its timing immediately preceding the election, and the antiunion context in which it was made are highly significant. They convince us that the Employer's purpose in suddenly making the announcement about possible benefits in the form of pensions was to thwart the self-organization of its employees.4 The Employer argues, however, that in announcing that it was considering a pension plan it was only making truthful statements in 3In a letter to its employees, dated October 4, 1948, the Employer stated that "THE AVERAGE EMPLOYEE IN THE MILL HAS BEEN WITH US OVER THIRTEEN AND ONE-HALF YEARS. Approximately one-half have been steadily employed for ten years or more . Fifty of our employees have been with us for twenty-five years or more. Some of them have been with the Company close to fifty years." Schott in his speeches also referred to the long service of some of the employees. ' See Hudson Hosiery Company , 72 N. L. R. B. 1434, where the Board found that the "Employer ' s granting or announcing [ of] benefits . . . for the purpose of causing the employees to accept or reject a representative for collective bargaining ," was violative of the Act . See also Marshalltown Trowel Company, 81 N. L. R. B. 1050; Macon Textiles, Inc., 80 N . L. R. B. 1525; Minnesota Mining & Manufacturing Company, 81 N. L. R. B. 557 ; Lancaster Garment Company, 78 N. L. R. B. 935. 857829-50-vol. 85-95 1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an attempt to combat false propaganda disseminated by the Peti- tioner. While an employer may reply to and contradict false state- ments about its labor record and policy, the Employer here.has wholly failed to demonstrate that Schott's announcement of management's consideration of a pension plan constituted such a reply. The only evidence of "false propaganda" on which the Employer relies consists of portions of statements concerning pensions made in the Petitioner's campaign circulars.' Neither in Schott's speeches to the employees, nor at the hearing, did the Employer undertake to show that any of these statements, expressing the Petitioner's hopes as to what it might accomplish by negotiations, were false. Under the circumstances of this case, we 6 are persuaded that the Employer's statement that it was considering a pension plan exceeded the mere expression of an opinion and constituted an inducement and a promise of benefit to the employees.' The announcement of a new development in company policy on the subject of vital concern to the employees, on the eve of a representation election, made for the pur- pose of winning away votes from the campaigning Union, clearly implied a promise of gain. It furnished the employees with a reason- able basis for believing that the benefit suggested might be forthcom- ing. The free speech privilege, as defined in the Virginia Electric and Hudson Hosiery cases, and as codified in Section 8 (c) of the Act,8 does not apply to this statement. These excerpts read as follows : Has he ever offered you a pension plan? No. 0 0 0 i 0 0 0 The Union recognizes an urgent need for a Pension Plan in your mill, therefore we will negotiate as part of our Contract negotiations, a Pension Plan for the Workers. PROTECT YOURSELF WHEN YOU ARE NO LONGER ABLE TO WORK! YOUR VOTE FOR THE UNION WILL MEAN A VOTE FOR A PENSION PLAN! 0 0 0 t 0 • t Our contract [at the Employer's Columbia, Pennsylvania, plant] GUARANTEES us paid holidays, paid vacations, life insurance, hospitalization, sick and accident benefits. AND NEGOTIATIONS ARE BEGINNING FOR A PENSION PLAN FOR ALL WORKERS IN OUR SHOP!!!!! [the Columbia plant]. Members Reynolds and Gray do not concur in this conclusion and would find that the pension plan statement does not constitute a promise of gain or benefit and hence was not coercive. Consequently, in setting the election aside, they would do so solely upon the threat to close the plant which is hereinafter found to have been made by Schott on the eve of the election. 7 The Employer contends that the announcement concerning pensions cannot be regarded as a promise of benefit because Schott did not state, or imply, that the prospect of a pension plan was conditioned upon the Petitioner's losing the election. The absence of such a condition, however, is immaterial. See Gaylord Products Inc., 74 N. L. R. B. 496; Hudson Hosiery Company, supra; Macon Textiles, Inc., supra. 8 N. L. R. B. v. Virginia Electric & Power Company, 314 U. S. 469; Hudson Hosiery Company, supra.. Section 8 (c) provides: "The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit." [Emphasis added.] SCHWARZENBACH. HUBER COMPANY 1493 Statement concerning closing the plant In the course of his three preelection speeches Schott also spoke of closing the plant. Some employees testified that they heard the plant superintendent say that the plant "would," "could," or "might" close down or move away if the Petitioner won the election. According to one employee, Schott also said that Mr. Schwarzenbach, vice presi- dent of the Company, did not have to operate the Juniata plant, and that if he shut it down, the employees "would crawl up to him on our hands and knees and starve to death." Schott denied making such statements. However, he admitted saying just before the election, that about 3 or 4 years before, the Employer had made a definite decision to close down the plant, but had revoked it due to the em- ployees' "response and increased performance." On the basis of Schott's own version of his statement we find that it did not constitute a relevant expression of opinion. No satisfactory explanation is offered by the Employer as to. why, on the very eve of the election, there should have been any reference made to an earlier plan to shut down the plant.9 The inference to be drawn by employees from the statement-a threat that the plant might be closed down if the Peti- tioner won-was all too plain.10 Accordingly, we find that by its election-eve pension plan announce- ment and threat to close the plant, the Employer engaged in conduct which interfered with the exercise by the employees of a free choice of bargaining representative." We shall therefore set the election aside, and shall direct a new election at such time as the Regional Director advises us that circumstances permit a free choice of bar- gaining representative among these employees. ORDER IT IS HEREBY ORDERED that the election held on October 7, 1948, among employees of Schwarzenbach Huber Company, Altoona, Penn- sylvania, be and it hereby is, set aside. 0 Schott admitted on cross-examination that he also mentioned that the earlier decision not to move the plant was another reason why the employees ought to vote against the union. 10 See Artcraft Hosiery Company, 78 N. L. R. B. 333 ; Wadesboro Full-Fashioned Hosiery' Mills, Incorporated, 72 N. L. R. B. 10¢4 ; N. L. R. B. v. American Furnace Co., 158 F. (2d) 376 (C. A. 7) enforcing 65 N. L. R. B. 247. Cf. Hinde of Dauch Paper Co., 171 F. (2d) 240 (C. A. 4). 11 The Petitioner asserts as an additional reason for setting aside the election a series of preelection wage announcements of the Employer, and the interrogation of some em-, ployees by the Employer as to union activity . In view of our determination concerning Schott's statement about the pension plan and about closing the plant, we find it unneces- sary to resolve these questions. Copy with citationCopy as parenthetical citation