Unpublished Disposition, 865 F.2d 1271 (9th Cir. 1985)

MEMORANDUM^*** 

In this application for enforcement of an order of the National Labor Relations Board, we are to decide if substantial evidence supports the Board's finding that SDC Investment, Inc. ["the Company"] violated Section 8(a) (1) of the National Labor Relations Act by threatening employees with loss of pay, loss of benefits, and plant closure if they selected union representation. We must also decide whether summary affirmance should be granted the Board's determination that the SDC Investment, Inc., violated Section 8(a) (1) by promising employees wage increases for the purpose of inducing them not to vote for the Butcher's Union Local 498 and by threatening to withhold from employees wage benefits because of the Union. We will enforce the order in full.

The Company operates a lamb slaughtering plant in Dixon, California. In May, 1981, Butcher's Union Local 498 filed a petition to represent a unit of the Company's production and maintenance employees. A representation election was conducted but the Board subsequently overturned that election because of objectional conduct by the union, and scheduled a second election for April 12, 1985.

We are satisfied with the findings of fact in these proceedings. On April 10 & 11, 1985, several anti-union signs appeared on Company premises. One was just outside the breakroom, an area used by the employees; another was in the breakroom; a third near an exit. The administrative law judge found that no agent of the company admitted posting the signs, but determined, nevertheless, that " [r]espondent has constructively used these postings as a means of threatening loss of pay, jobs, benefits and a plant in which to work should the Union be voted in." ALJ decision at 5:25-27. Upon consideration of the ALJ's decision, the Board disagreed with the finding of a constructive posting and stated that "the record indicates that Breen, the Respondent's president, admitted that the Respondent prepared the plant closure and loss of benefits signs." Board decision at 1 n. 2. We find that this issue was properly before the Board; the Board simply adopted the ALJ's finding of a violation, noting an alternative basis for that determination.

The ALJ also considered a speech by the Company's president at a meeting for all employees. Company president Dennis Breen spoke from a short text prepared by labor counsel for the company. Because many of the employees are Spanish-speaking, the speech had been translated into a Spanish version, and prior to the meeting Breen and assistant quality control manager Sanchez, who was to translate, practiced together using English and Spanish texts. At the hearing before the ALJ, there was a question whether the Spanish rendition of the speech was totally accurate. At the meeting, Breen would say a few paragraphs in English and Sanchez would translate them into Spanish. The English version of the speech emphasized what employees "may," "will," or "could" lose if they voted to have a collective bargaining agreement. The Spanish version allegedly spoke of what the employees "would" lose rather than what they "could" lose.

When the issue was raised at the hearing, the Company moved to put the Spanish text into evidence because of the alleged discrepancy. The ALJ ruled, and we think not improperly, that the issue was not what was written in the Spanish text, but what Sanchez actually said. Witness Pena testified that the spoken utterances he heard from Sanchez meant that the employees "would" lose benefits. The Company did not present evidence rebutting this testimony. We find no error by the Board on this issue.

Another issue concerns a conversation between a supervisor and an employee. Before and after the election, Pena had spoken with assistant foreman, Vesperman, a supervisor. Pena testified that Vesperman told him that the employees would get normal raises only if the union lost the election. The ALJ found Pena's testimony credible, and Vesperman's statement unlawful. The Board properly upheld that finding.

We need no citation to state that the National Labor Relations Act guarantees employees the right to self-organization, to form, join, or assist labor organizations and to bargain collectively through representatives of their own choosing and that the Act implements this guarantee by making it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of guaranteed rights. There need not be proof of actual restraint; the Board may find a violation where it reasonably infers that an employer's conduct has the tendency to interfere with the employee's statutory rights. Penasquitos Village, Inc., v. NLRB, 565 F.2d 1074, 1080 (9th Cir. 1971). An employer's threat to close its doors in the event employees choose the union is "one of the most potent instruments of employer interference with the right of employees to organize under the National Labor Relations Act." Chemvet Laboratory Inc., v. NLRB, 497 F.2d 445, 448 (8th Cir. 1974). Similarly, threats of reduced wages or benefits in the event the employees support the union violate the Act. L'Eggs Products, Inc., v. NLRB, 619 F.2d 1337, 1347 (9th Cir. 1980). We have carefully considered the matters presented by the parties before us and conclude that there was substantial evidence in the record as a whole to support the Board's determination that there was a violation of Section 8(a) (1) of the Act.

ORDER ENFORCED.