Lead Opinion
CLAY, J., dеlivered the opinion of the court, in which DAUGHTREY, J., joined. KENNEDY, J. (pp. 392-394), delivered a separate opinion concurring in part and dissenting in part.
OPINION
Petitioner ITT Automotive (“ITT”) seeks review and Cross-Petitioner Nation- ,. al Labor Relations Board (“NLRB”) seeks enforcement of an order entered by the NLRB on September 30,1997, finding that ITT engaged in unfair labor practices in violation of § 8(a)(1), (3) of the National Labor Relations Act, 29 U.S.C. § 158 (1998), in connection with a union representation election held at its facilities. For the reasons set forth below, we ENFORCE IN PART the order of the NLRB
I.
ITT manufactures automotive parts in plants located throughout the United States, Canada and Mexico. On February 11, 1994, the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (“UAW” or “Union”) filed with the NLRB a Petition for Certification of Representative to represent certain employees at the Oscoda, Tawas, and East Tawas, Michigan facilities of ITT, which together employ over nine hundred workers. The NLRB scheduled a representation election for March 30, 1995.
A. PRE-ELECTION CONDUCT
In the months preceding the election, ITT campaigned against union representation and engaged in activities which numerous employees viewed as a calculated effort to threaten the loss of jobs if the union prevailed in the election. For example, two months prior to the election, employees discovered that ITT had wrapped several pieces of equipment at the Oscoda facility with plastic sheeting, placed them in the employee parking lot, and labeled them with notices saying, “Mexico Transfer Job Per Schedule This Job will Trasns-fer [sic] when Bank is Complete.”
At the Tawas City facility, employee Karen Richardson saw ITT supervisor Gary Simmons drive his pickup truck to thе employee parking lot and park near the main entrance used by hourly employees. She saw Simmons load three portable work stations called “boards” onto the truck, and saw Simmons stand by and watch passing employees.
ITT Automotive is not going to give in to unreasonable demands. The only thing that [the Union] can do about it is to go on strike.... [T]he Company would bargain in good faith. But we would bargain very hard! You have no guarantee that you would end up with as good a wage package as you have now!
(J.A. at 24, 479.) At the Oscoda plant, employees saw signs posted in the windows of managerial offices and in the company’s enclosed, locked bulletin board near the employee lunchroom that said, “Don’t want it — UAW—don’t need it — I NEED MY JOB!” (J.A. at 1110-12.)
ITT, through its managers, also made speeches urging employees to vote against the Union before the election. At the East Tawas facility, Robert Davies, Manager of the Fluid Handling Systems division, told employees that although ITT would bargain, it would bargain hard. At the Osco-da facility, Davies told employees that if a third party such as the Union entered the plant and the plant became unprofitable, ITT would shut down the plant. Davies did not explicitly state that the plants would close if the Union was elected its employees’ representative. George Treg-lown, Manager of Human Resources at ITT, told. Oscoda employees that if the Union won, breakdowns in negotiations might occur. Treglown did not expressly state that the plant would close just because the Union won the election, but told employees that if the Union won, they:
would probably have to go to Detroit to negotiate a contract. That during this time that we [on the negotiating committee] would not be receiving any pay from the company or the union ... That we would get up there and the company would bargain hard thаt we would get frustrated because we were getting no pay and things would disintegrate.... That the company would negotiate real hard with us and that everything would just bog down and we would all get frustrated and it would just disintegrate.
(J.A. at 856-57, 977.)
Finally, Ralph lorio, President of the Fluid Handling Systems division, gave speeches at the Oscoda, East Tawas, and Tawas City facilities on March 28, 1995, just two days before the election. Iorio discussed ITT’s need to stay globally competitive, and told employees that ITT would perform assembly functions at those plants where it was most efficient to do so. He said that in his experience, “wherever there has been a union, sooner or later there were problems.” (J.A. at 252.) He stated that he did not know what UAW would do when ITT said “ ‘no’ to demands which we consider unreasonable.” (J.A. at 252.) Finally, lorio stated:
In other cases we have moved the work and closed the plant especially where light assembly or manual work was being done and the work was easily transferred. You know what has happened at some ITT plants where there were strikes. Don’t let it happen here. I can’t think of one example where a union has made a plant more productive, more efficient, or more secure.... [W]henever there are unions, there can be strikes.... Don’t let the UAW create problems for all of us.
(J.A. at 253.)
Employee Theresa Whalen testified that on March 29, 1995, the day before the election, her shift supervisor offered her a “vote no” button. Although Whalen stated at first that she wore the button, she later said that she placed the button on the ledge where she worked. Employee Beni
The tabulation of election results revealed that 503 employees voted against representation, while 32f voted for representation by the Union, On the morning after the election, Pardonnet, an active and vocal supporter of the Union throughout the campaign, approached ITT General Supervisor Richard Karbowski to offer congratulations. According to Pardonnet, Karbowski shook his finger at her and said, “Lady, this is Round 11; the company goes 15,” and “Where are your goddamn UAW protection now [sic]?”
B. POST-ELECTION, PRE-HEARING CONDUCT
On April 19, 1995, the Union timely filed eight objections to conduct on the part of Petitioner, claiming Petitioner thereby unlawfully affected the results of the election.
C. SUSPENSION OF PRO-UNION EMPLOYEE
Just over one month after her meeting with counsel for ITT, on June 20, 1995, Pardonnet was processing airplane parts with employee Dorothy Gapuz. With a quota of fifty parts per person per hour, Pardonnet and Gapuz were required to produce 400 parts each by the end of their eight-hour shift. Under ITT policy, they
Sharp called Pardonnet into his office later that afternoon and told her that ITT was suspending her indefinitely pending an investigation into the falsification of her time card. Pardonnet did not return to work until June 27, 1995, when she met with Sharp, Karbowski, and Wilson. Par-donnet could not give any explanation for the erroneous count. Sharp said that although he believed her miscount was intentional, he would allow her to return to work. Under standard ITT policy, ITT may terminate an employee for an offense such as theft or falsification of records. However, because ITT did not find that her conduct was intentional, Sharp gave Pardonnet the “benefit of the doubt” and allowed her to return to work. (J.A. at 880-81.) Pardonnet signed her suspension notice “under protest.” (J.A. at 50.) ITT had previously suspended Pardonnet on April 5, 1990 for having too many no-fault absences, on March 13, 1992 for leaving without punching out, and on January 24, 1994 for producing too many bad parts.
D. PROCEDURAL HISTORY
On October 10, 1995, the General Counsel issued a Complaint and an Amended Complaint on the consolidated Objections and unfair labor рractice charges. An administrative law judge (“ALJ”) conducted a hearing in Tawas City, Michigan from February 21, 1996 to February 23, 1996 concerning the allegations. On July 17, 1996, the ALJ issued a decision concluding that ITT had engaged in coercive and intimidating behavior, unlawfully interrogated an employee, and created an impression of bargaining futility during the pre-election period that had interfered with the right of the employees to make a free choice about representation. The ALJ further recommended that the NLRB set aside the results of the March 30, 1995 election and that a new election be held.
ITT filed exceptions to the ALJ’s decision with the NLRB. The General Counsel also filed an-exception to the failure of the ALJ to find that ITT violated § 8(a)(1) by unlawfully interrogating Pardonnet in preparation for the unfair labor practices hearing in this case. On September 30, 1997, the NLRB issued a Decision and Order affirming the ALJ’s findings and conclusions, and granting the General Counsel’s exception that an additional unfair labor practice had occurred. Specifically, the NLRB found (1) ITT violated § 8(а)(1) of the NLRA by predicting the loss of jobs as a result of union representation, coercively interrogating employees about their willingness to wear anti-union buttons, giving the impression that bargaining would be futile, and threatening an employee in retaliation for her support of the union; (2) ITT violated § 8(a)(1) by exceeding the legitimate scope of inquiry while interviewing Pardonnet in preparation for an unfair labor practice hearing; and (3) ITT violated §§ 8(a)(1), (3) by suspending Pardonnet in retaliation for her known union activities. As a practical matter, the NLRB’s order requires ITT to cease and desist from the unfair labor practices identified by the NLRB and from coercing or interfering with employees in the exercise of their rights under the
II.
This Court reviews the NLRB’s factual determinations, аnd its application of the law to a particular set of facts, for substantial evidence. See Universal Camera Corp. v. NLRB,
III.
ITT challenges on appeal three conclusions of the NLRB. First, ITT argues that substantial evidence does not support the finding that ITT interfered with, restrained, or coerced employees in the exercise of their right to vote in a representation election, on the grounds that ITT had a right to express its anti-union views. Second, ITT argues that substantial evidence does not support the finding that ITT discriminated against an employee because of her affiliation with and advocacy on behalf of the union. Third, ITT argues that substantial evidence does not support the finding that its attorneys unlawfully interrogated an employee during its preparation for the NLRB hearing in this case. For the reasons set forth below, we conclude that while substantial evidence supports the finding that ITT unlawfully interfered with the right of employees to vote in a representation election and unlawfully discriminated against an employee for her support of the union, substantial evidence does not support the finding that counsel for ITT unlawfully coerced an employee when preparing for a hearing before the NLRB.
A.
Section 8(a)(1) of the NLRA prohibits employers from interfering with, restraining, or coercing employees in the exercise of rights guaranteed them by § 7 of the NLRA. See 29 U.S.C. § 158(a)(1) (1998). Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations ... and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157 (1998). Courts may find a violation of § 8(a)(1) even where the evidence does not show that employees were actually intimidated or coerced by an employer’s conduct. See NLRB v. Dickinson Press Inc.,
Among other things, the ALJ concluded that ITT created a coercive atmo
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 sub-chapter, if such expression contains no threat of reprisal or force or promise of benefit.
29 U.S.C. § 158(c) (1998). In balancing the employer’s above delineated right to free expression against the employee’s right to free association, the Supreme Court has observed that:
[A]n employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union.... He may even make a prediction as to the precise effects he believes unionization will have on his company. In such a case however, the prediction must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control.... If there is any implication that an employer may or may not tаke action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a prediction based on available facts but a threat of retaliation based on misrepresentation and coercion.
Gissel Packing,
Although ITT argues forcefully that statements made by its supervisors deserved the protection of § 8(c), we conclude that substantial evidence supported the conclusion of both the ALJ and the NLRB that ITT’s statements did not merit § 8(c) protection because they reasonably tended to coerce' employees. Although the leaflets presented objective facts about strikes that had taken place at other companies and at ITT itself, the leaflets also warned that although ITT would bargain in good faith, ITT would bargain “very hard” and as a consequence that employees may not “end up with as good a wage and benefit package as [they] have now!” (J.A. at 479.) Moreover, while the speeches of ITT supervisors reflected economic predictions that after unionization the plants might close if they became unprofitable or that strikes might occur as a result of ITT’s refusal to give in to union demands, the ALJ properly found that these predictions were not supported by objective facts. Additionally, ITT’s statements did not refer to matters over which ITT exercised no control. Cf. Pentre Elec.,
Indeed, ITT has not demonstrated any objective facts that suggest that UAW would make unreasonable demands, that unionizatiоn would cause the plants to become unprofitable, or that ITT would be unable to control the consequences of
Moreover, while neither the spoken nor written statements of ITT expressly threatened employee jobs upon unionization, substantial evidence exists to support the finding that, taken together with ITT’s conduct during the pre-election period, ITT interfered with the right of employees to vote freely in the representation election. The ALJ concluded that ITT drove home the suggestion that jobs were at stake by acting so as to cause employees to believe ITT might transfer their jobs to ITT’s Mexico plant. The ALJ credited the testimony of employees who saw signs indicating the transfer of equipment to Mexico, and of employees in Oscoda and in Tawas City who saw ITT move equipment onto trailers and trucks located in employee parking lots where the employees could easily see them. Additionally, the ALJ credited the testimony of an employеe who saw “I NEED MY JOB!” signs posted in the windows of management offices and in ITT’s locked employee bulletin board. Although ITT points to the conflicting testimony of its supervisors who said they did not see signs saying “I NEED MY JOB!” or suggesting the transfer of equipment to Mexico, this Court may not “normally substitute [its] judgment for that of the [NLRB] or administrative law judge who has observed the demeanor of the witnesses.” Universal Camera,
Additional evidence, even beyond that of ITT’s “loss of jobs” campaign, supports the NLRB’s finding that ITT coerced or restrained its employees’ right to vote for representation by the union. Indeed, the ALJ credited the testimony of employees who saw ITT supervisors offering anti-union buttons to employees. As the NLRB has held, such behavior pressures employees to make a choice in public about whether to acknowledge their union sentiments and “effectively рut[s] employees in
The ALJ also concluded, on the basis of employee testimony deemed credible by the ALJ, that ITT supervisors had engaged in coercive behavior by positioning themselves in the center of the building and near the intersection of aisles through which employees had to pass in order to vote. The NLRB has held that such conduct interferes with an employee’s freedom of choice in an election. See Performance Measurements Co.,
ITT has argued, in essence, that the conduct we have described above did not stem from bad faith, and that benign explanations for the conduct of its supervisors might exist. However, we must view the NLRB’s decision in light of the fact that the balancing of the rights of the employer and employee “must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear.” Gissel Packing,
B. SUSPENSION OF PRO-UNION EMPLOYEE
Under § 8(a)(3) of the NLRA, an employer commits an unfair labor practice “by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.” 29 U.S.C. § 158(a)(3) (1998). In the present case, the ALJ and the NLRB found that ITT violated both § 8(a)(3) and § 8(a)(1) by suspending Benita Pardonnet for five days because of her support for the union. Specifically, the ALJ found that ITT knew Pardonnet to be an active union supporter, and that by suspending Pardonnet, ITT responded to the allegation that Pardonnet .had misrepresented her production amounts in a manner that departed from its usual practices. We believe substantial evidence supports that conclusion, despite ITT’s claim that it was entitled to suspend Pardonnet for misconduct.
As this Court has observed, § 8(a)(3) violations consist of two elеments: anti-union animus, and the occurrence of a covered employment action. See NLRB v. Fluor Daniel, Inc.,
Considering all of the circumstances, we observe as a preliminary matter, in accordance with our conclusion that ITT conducted a campaign agаinst election of union representation, that anti-union animus existed generally at the time ITT suspended Pardonnet, and that ITT was aware of Pardonnet’s activities in support of the union. Moreover, the evidence discloses that ITT deviated from its usual practices in its response to the charge that Pardon-net had falsified her production report. While Plant Manager Sharp promised Par-donnet that ITT would investigate the accusation that she intentionally lied about her production amount, Wilson, Pardon-net’s supervisor, admitted that she never investigated the matter and that Pardon-net never got to tell her side of the story. Moreover, Pardonnet never admitted to lying about the production amount and went so far as to sign her suspension notice “in protest.” As a net result, ITT never discovered whether Pardonnet in fact falsified her production amount. Nevertheless, ITT suspended her, even though the only other employee suspended for a first offense of falsifying production amounts confessed her misrepresentation to Karbowski.
Additionally, Pardonnet’s suspension notice revealed that Pardonnet did not have a violation on her record for the previous twelve months and marked her alleged violation in this case as a first violation that would merit a “first written warning.” To the contrary, her employee progress review stated that she was “a good, hard worker who is very willing to do new jobs & help work the ‘bugs’ out of them” and told her to “[k]eep up the good work.” (J.A. at 49.) Finally, when Wilson first made a written report of the incident, she did not believe that Pardonnet had intentionally falsified her production amount and considered not even writing her up. These undisputed circumstances support a showing that ITT’s action against Pardon-net deviated from prior practices and that it was motivated at least in part by an improper animus.
Although ITT claims that it would have suspended Pardonnet in any event and that other employees at ITT received similar suspensions for such conduct, we agree with the NLRB that ITT has failed to carry its burden of showing that it would have suspended Pardonnet were it not for her union sympathies. ITT failed to show thаt it treated other similarly accused employees the same way by, for example, suspending them without conducting any investigation. ITT’s allegation that it had written Pardonnet up for various violations in the past falls short of proving that ITT would have suspended Pardonnet in any event. For example, while the record contains evidence of a progressive disciplinary system that takes into account only disciplinary actions occurring within the last twelve months of a new violation, ITT failed to show that Pardonnet’s previous infractions occurred within twelve months of the one alleged in this case. ITT has failed to show that it would have suspended her on that basis, instead of following the progressive disciplinary program. Moreover, we note that as with Karbowski, the ALJ discredited the testimony of Wilson, who impressed the ALJ “as being a witness who was willing to give any testi
C.
As this Court has long recognized, an employer has the right to interview employees in order to discover facts relevant to the issues raised in an unfair labor practices complaint. See NLRB v. Winn-Dixie Stores, Inc.,
Nevertheless, even after an employer gives Johnnie’s Poultry warnings, an interview may violate § 8(a)(1) if “under all the circumstances the interrogation reasonably tends to restrain, coerce, or interfere with rights guaranteed by” the NLRA. See Dayton Typographic Serv. v. NLRB,
Moreover, in determining the legality of a particular interrogation, we must bear in mind that the privilege of interviewing employees to discover relevant facts is a narrow one, and is “limited to the purpose of preparing the case for trial.” Surprenant Mfg. Co. v. NLRB,
does not include the right to pry into matters of union membership, to discuss the nature or extent of union activity or to dissuade employees from joining or remaining members of a union. The cases recognize that the rule calls for a delicate'balance between the legitimate interest of the employer in preparing its case for trial, and the interest of the employee in. being free from unwarranted interrogation.
Id. аt 763. Thus, an employer may not question an employee regarding matters which fall outside the scope of a complaint but must limit its interrogation to “questions relevant to the charges of unfair labor practice and of sufficient probative value to justify the risk of intimidation which interrogation as to union matters necessarily entails.... ” Winn-Dixie,
In this case, the NLRB, in response to the General Counsel’s exception to the ALJ’s Decision, found that ITT violated § 8(a)(1) when its attorneys coer-cively interrogated Benita Pardonnet in preparation for the unfair labor practices hearing in the instant case. While observing that ITT’s counsel gave Pardonnet the requisite Johnnie’s Poultry warnings, the NLRB found fault with the inquiries as to whether employees truly agreed with the sentiments expressed by the pro-union or anti-union buttons they wore, whether employees had discussed certain election-related issues at union meetings, and why employees were unhappy and felt they needed a union. The NLRB held that these were “impermissible inquiries aimed at eliciting information concerning employees’ union sentiments” and were “unrelated to the charges and objections at issue.” (J.A. at 60.)
In applying the principles we have identified regarding the legality of employer interrogations, we find it is not so clear that the above referenced questions were irrelevant and impermissibly sought to elicit information concerning employee sentiments about the union. While at first blush it appears that the questions about whether employees discussed the election at union meetings and about pro-union sentiment exceeded the bounds of the complaint, counsel for ITT likely sought to gather information that it could use to impeach the testimony of employee witnesses at the unfair labor practices hearing. We observe that although the NLRB concluded that ITT sought to gather information about the pro-union sentiments of ITT employees, Pardonnet testified that counsel for ITT did not ask which employees in particular wore “vote no” buttons while actually supporting the union, and
Moreover, while we must consider the relevance and probative value of an employer’s inquiry, to hold an employer liable under § 8(a)(1) we must ultimately determine whether under all the circumstances, including the identity of the questioner and the place and method of interrogation, the interview reasonably tended to restrain, coerce, or interfere with the employee’s rights. See Dayton Typographic,
We believe that while counsel for ITT may have posited some general questions that fell outside the bounds of the complaint, substantial evidence did not support the NLRB’s determination that the interview of Pardonnet conducted by ITT’s counsel reasonably tended to coerce her ability to exercise her rights. A review of the record reveals that counsel for ITT interviewed Pardonnet, and informed her that she was free to leave, that she was free not to talk, and that she was free not to answer the questions. The record indicates that Pardonnet did not in fact feel coerced in any way during the meeting, which took place in a conference room at the plant. Indeed, Pardonnet gave answers, without hesitation, even to the questions the NLRB found objectionable. Counsel permitted Pardonnet to take a short break during the interview, which lasted approximately three hours. At the end of the interview, counsel for ITT summarized her statements in a written affidavit, and asked her to sign. When Pardon-net wanted to include more information in the affidavit, counsel added her supplemental statements to the affidavit. Par-donnet willingly signed and gave the affidavit to ITT’s attorneys. Under these facts and circumstances, we conclude substantial evidence does not support the NLRB’s finding that the interview reasonably tended to coerce Pardonnet in the exercise of rights guaranteed her by § 7 of the NLRA.
IV.
We conclude that although substantial evidence supports the findings that ITT unlawfully interfered with the right of employees to vote in a representation election and that ITT unlawfully discriminated against an employee for her support of the union, substantial evidence does not support the finding that counsel for ITT unlawfully interrogated an employee while preparing for a hearing before the NLRB. Accordingly, we GRANT, in part, ITT’s petition for review, and ENFORCE, in part, the order of the NLRB.
Notes
. This was the second scheduled election at the ITT plants. The first election in 1994 resulted in unfair labor practice charges against ITT. ITT settled that matter by agreeing to post a notice promising that ITT management would no longer engage in coercive tactics.
. ITT’s facility in Guaymas, Mexico performed work similar to the work performed in ITT’s Oscoda plant. Occasionally, ITT transferred work from its Oscoda facility to its Mexico plant. A “bank” is a supply of inventory that must accumulate before the company can relocate a manufacturing process to another plant.
. The employees who testified about having seen the wrapped equipment did not know whether ITT actually sent the equipment to Mexico.
. A “board” is a work station weighing between fifty and one hundred pounds that contains testing equipment and compartments for spare parts and material such as glue and tape.
. Karbowski maintains that he told Pardonnet that "[t]his is a fifteen round bout. We knocked you out in the tenth round, we still got five more rounds to go yet.” (J.A. at 1244.) He asserts that he attempted to use a sports metaphor to illustrate that although there had been a long battle, there was still a long way to go.
. The Union later withdrew two of these Objections.
.The Union alleged that ITT unlawfully removed pro-union literature from an employee lunchroom, recorded the names of employees who did not accept election paraphernalia from the company, interrogated an employee who was not wearing a "vote no” button, and threatened employees with the loss of jobs, plant closings, inevitability of strikes, and futility of bargaining.
. It is important to note that in Pentre Electric, this Court held that an employer is not required to “produce evidence to corroborate predictions about the effect of unionization to invoke the protection of seсtion 8(c).” Pentre Elec.,
. The dissent suggests that our use of the word "must” here "rewrites the law of this Circuit,” on the grounds that this Circuit has "not adopted the NLRB's position that the Johnnie’s Poultry warnings ‘must’ be given to ensure the legality of the interrogation.” However, while employing a case-by-case approach to the issue of employer interrogations, this Circuit has never gone so far as to reject the holding of Johnnie’s Poultry, in which the NLRB stated that "the employer must communicate to the employee the purpose of the questioning, assure him that no reprisal will take place, and obtain his participation on a voluntary basis.... ”
The dissent takes great liberty in its interpretation of Dayton Typographic, in which this Court merely stated that "the NLRB considers” the factors outlined by the Johnnie’s Poultry warnings when evaluating the coercivenеss of the questioning of employees.
. In analyzing the legality of employer interrogations, some courts have considered eight factors characterized as the Bourne criteria. See, e.g., Cooper Tire & Rubber,
Concurrence Opinion
concurring in part and dissenting in part.
I agree that substantial evidence supports the Administrative Law Judge’s (“ALJ”) finding, adopted by the Board that Pardonnet was suspended because of her union activities. I also agree that substantial evidеnce did not support the Board’s determination that the interview of Pardonnet conducted by ITT’s counsel tended to coerce her ability to exercise her rights. I join in the Court’s opinion on that issue except for the statement that the employer “must” give an employee the Johnnie’s Poultry warnings. That holding is inconsistent with Dayton Typographic Service, Inc. v. NLRB,
While I agree with the Majority that substantial evidence supports some of the findings that ITT coerced its employees, there are some which I do not believe are supported by substantial evidence. The ALJ found that the removal during the election period of equipment out of building 5 for the two days it took to resurface the floor was done to coerce the employees by showing them how easy it would be to remove the machinery to another plant.
The ALJ noted additional conduct that supported his decision that the company’s actions were coercive. This conduct included the display of wrapped equipment labeled “MEXICO TRANSFER JOBS” and the video taping of an operation for use by employees at the company’s plants in Mexico. A finding that this conduct was coercive is not supported by substantial evidence. At various times prior to the instant organization drive, ITT had transferred certain work to Mexico. It also had added new equipment and jobs in Michigan. During the election campaign, it hired additional employees and retained the old employees.
Its Mexico plant performed some of the same operations as the Michigan plant. The video taping was to train Mexican workers presumably to improve their performance. The Board’s conclusion that it was made to frighten employees into believing that jobs would be lost to Mexico
Finally, I believe that the ALJ’s finding that Mr. Iоrio’s speech to employees on March 28 (two days before the election) threatening employees with strikes, plant closings and bargaining futility, coerced employees in violation of Section 8(c) of the Act is not supported by substantial evidence. The ALJ specifically found “President Iorio’s lengthy speech does not contain any explicit threats to the employees’ jobs at the Company’s Oscoda, Tawas City and East Tawas plants if the employees selected the Union to represent them.” He then found “that this speech about the ‘viability’ .of the three plants — particularly in the context of the Company’s other speeches, literature, and conduct — was a veiled prediction of job losses from strikes, job transfers, or plant closure.” He did not find that any other speech or literature contained an unlawful threat. What he found was that literature distributed by the company consisting of newspaper articles about strikes at other ITT plants suggested that if the union won the election there could be strikes at the three Michigan plants.
The employer did not say the union would call a strike or that it would refuse to bargain. Rather, lorio stated the company would bargain but bargain hard. While ITT noted that jobs had been transferred to Mexico in the past, it also noted that these three plants had expanded and would continue to expand. While plant closures were mentioned by Bob Dawles, it was in the context that ITT would close plants if they became unprofitable and had closed plants that became unprofitable. Finally, the ALJ found that ITT’s statement in a four-page flyer (J.A. 478) that it would not give in to unreasonable demands and, “the only thing [the union] could do about it is strike,” was coercive. The flyer also stated the company would bargain in good faith but it would bargain very hard and that there was no guarantee that the employees would end up with as good a wage and benefit package if they voted for the union. The ALJ found that these statements constituted a threat that the company might regard any proposed improvement in the benefit package to be an unreаsonable demand. The company did not say that. As we stated in NLRB v. Pentre Electric, Inc.,
Because “the only effective way of arguing against the union is for the company to point out to the workers the adverse consequences of unionization, ... it is often difficult in practice to distinguish between lawful advocacy and threats of retaliation.” NLRB v. Village IX, Inc.,723 F.2d 1360 , 1367 (7th Cir.1983). In Gissel Packing,395 U.S. at 616-20 ,89 S.Ct. at 1941-43 , the Supreme Court examined the scope of section 8(c)’s protection and the interplay of that section with section (1) in an attempt to draw the line between lawful and unlawful employer speech more clearly. The court noted that “[a]n employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a ‘threat of reprisal or force or promise of benefit.’ ” Id. at 618,89 S.Ct. at 1942 . Moreover,' the court stated that an employer “may even make a prediction as to the precise effects he believes unionization will have on his company.” Id.
ITT did not predict thаt the union would make unreasonable demands but only pointed out a possible consequence, i.e., strike, if it did. It could point out that any contract with the union might be no better than the employees’ present wages and benefits. There is no “threat of reprisal” by predicting an uncertain future. This was nothing more than predictions of possible consequences. There was no threat to close the plant if the union won the election or desire to punish employees for a pro-union vote. There was no “threat of reprisal.”
Because there are other statements and conduct that do support the Board’s conclusion, I would remand the matter to the Board to determine whether the remaining statement and conduct was sufficiently coercive to warrant the remedy of a second election.
. While a single employee drew this conclusion, she thought all the presses were removed. The four large presses had not been moved just as they had not been moved in prior years.