National Labor Relations Board v. Harrison Steel Castings Company

728 F.2d 831

• Court: Court of Appeals for the Seventh Circuit
• Decided: April 19, 1984
• Docket: 82-2866
• Status: Published

Opinions

CELEBREZZE, Senior Circuit Judge.

The National Labor Relations Board (Board) seeks enforcement of its order against Harrison Steel Castings Company (Company) pursuant to 29 U.S.C. Sec. 160(e). The Board’s order, which is reported at 262 NLRB 59 (1982), requires the company to remedy several unfair labor practices, to cease and desist from any further unfair labor practices, and to post an appropriate notice in its plant. It also requires a second representation election to be held. Although the Board found that the Company committed multiple violations of the National Labor Relations Act, 29 U.S.C. Sec. 151 et seq., the Company challenges only a portion of the Board’s order. Consequently, we relate only those facts which are necessary for discussion of the issues briefed by the Company.

The Company is a manufacturer of steel castings which is located in Attica, Indiana; its principal customer is Caterpillar Tractor, which purchases nearly 85 percent of the Company’s output. The Company employs approximately 1,000 workers in its operations.

On March 7, 1979, the United Automobile, Aerospace and Agricultural Implement Workers of America (Union) notified the Company that the Union was attempting to organize the Company’s production and maintenance employees. The Union filed a petition for a representation election with the Board on April 6, 1979, and conducted its first organizational meeting. In the month preceding the election, the Union and the Company presented actively their respective positions on unionization. The Company conducted, during working hours, several “captive audience” meetings for groups of employees. The Company also published a special election edition of the plant newsletter which detailed the Company’s anti-union position. In this newsletter, the Company made the following assertions:

If you would be called out on strike by the Union during contract negotiations, such a strike is called an economic strike and all employees not reporting to work can be permanently replaced. A company cannot fire employees for striking but it can permanently replace them. Permanent replacements hired for strikers are allowed by law to keep the striker’s job even after the strike ends. Thus, employees who go on strike and are replaced have no job to return to when the strike ends.

Some of the Harrison Steel Castings Company’s competitors are non-union and some are located in the Southern part of the United States where wage rates are traditionally lower, and if we become union the Company may become non-competitive with a resulting loss of business and jobs. This loss of business could come about through increased cost of operation, not due to wage or benefit increases to employees but rather due to the inherent increased cost in operating a union plant. At union companies much time is spent on grievance processing, contract negotiations, and dealing with the Union, which add to the cost of operation, but do not put any benefits in the employee’s pocket.

* * * * * #

In a union company there is the ever present possibility of a strike. Our customers rely upon dependable delivery of goods and services, and the risk of a strike may force our customers into looking for alternative suppliers, which could lead to a loss of jobs at our plant. When you consider your vote for or against a union examine that choice in terms of your own personal best interests rather than what is good for the employer.

In addition to presenting its views on unionization, the Company also engaged in several instances of anti-union conduct which the Board found to be illegal.¹ On two occasions, the Company prohibited employees from distributing pro-union literature in public areas near the plant; distribution of pro-union materials was also prohibited during non-work periods in non-work areas of the plant. Company foremen also interrogated and threatened pro-union employees. Employees wearing pro-union buttons were denied regularly scheduled overtime and at least one active supporter of the Union was transferred from the day shift to the night shift in retaliation for supporting the Union. This employee eventually was discharged because of her unwillingness to work the night shift.²

The Company also discharged three other employees: Debra Tornquist, Inez Torn-quist, and Dan Watkins. The Tornquists were office employees who worked in the payroll department, and were not members of the proposed bargaining unit. On May 8, 1979, a “company appreciation” rally was conducted by employees who opposed the Union. One of the organizers, Sue Ward, canvassed the clerical employees to determine whether they planned to attend the rally. On Monday, May 7, 1979, she asked the Tornquists whether they would be attending; both Inez and Debra indicated that they would not attend because they had personal matters to attend to on Tuesday afternoon, when the rally was scheduled. The Tornquists worked the remainder of Monday morning, but did not return to work Monday afternoon. The Tornquists had informed Tom Gossett, their superior, that they would not be returning on Monday afternoon. They did not, however, inform the head of their department, Robert Blickenstaff, that they would not be returning in the afternoon. At approximately 4:30 p.m. on Monday afternoon, Blicken-staff called Inez Tornquist and indicated that she and Debra had been discharged.³

Dan Watkins was employed by Harrison Steel as an electrician. Watkins was one of the leaders of the Union organizing effort, was a Union observer at the representation election,⁴ and was involved in filing objections to the election with the Board. Watkins worked on the 11:00 p.m. to 7:00 a.m. shift as a maintenance man. He was responsible for repairing any equipment breakdowns; according to Watkins’ foreman, Watkins and his co-worker, Grant Campbell, were free to leave the maintenance work area, if no breakdowns occurred, so long as they informed someone where they could be contacted.

On September 17, 1979, Watkins arrived for work at approximately 9:30 p.m.⁵ On his way into the plant, he stopped to speak with the plant guard, Lillian Sexton. According to the credited testimony, Watkins punched his timecard at 9:42 p.m., when he saw his co-worker Campbell arrive. Within minutes, he also punched a card for Campbell and gave it to Campbell as he passed by the guardhouse. Watkins testified that he informed Campbell that he was available for work and could be contacted at the guardhouse if equipment repairs were necessary. Watkins apparently left the guardhouse at about 10:30 p.m.; he and Campbell were not needed for repairs until approximately 11:00 p.m.

Watkins was ill for several days, and did not report for work again until September 20, 1979. At the end of his shift, he was called into the office of the company president, Kenneth Freed; at that meeting, Watkins admitted that he had clocked in at the guardhouse rather than the maintenance department and that he had stayed at the guardhouse and talked with the guard for nearly an hour after he had punched his card. Later that day, Watkins was discharged.

The Union lost the election by a vote of 418 to 390. The Union filed objections to the conduct of the election, as well as several unfair labor practice charges. The Board’s administrative law judge found that the Company was guilty of several unfair labor practices; specifically, it found that the statements made by the Company concerning the effects of unionization were unduly coercive, that the discharges of the Tornquists were the result of their refusal to attend the pro-company rally, and that the discharge of Watkins was the result of his pro-union activities. The Board accepted these conclusions, although it rejected the ALJ’s rationale for finding the Company’s public statements to be unduly coercive. The Company does not challenge, in this court, the remainder of the Board’s order; it only challenges the Board’s conclusions that the discharges of the Torn-quists and Watkins and the Company statements regarding the effects of unionization were unfair labor practices.

A company violates Sec. 8(a)(1) and Sec. 8(a)(3) when it discharges an employee for engaging in activity protected by Sec. 7 of the Act. E.g., NLRB v. Berger Transfer & Storage Co., 678 F.2d 679, 691 (7th Cir.1982) (“The critical issue in a Sec. 8(a)(3) claim is whether the employer’s actions are motivated by anti-union considerations.”); Justak Brothers and Co. Inc. v. NLRB, 664 F.2d 1074 (7th Cir.1981). In this case, the Board found that the Tornquists’ refusal to attend a pro-company rally⁶ and Watkins’ pro-union activity were substantial motivating factors in the Company’s discharge decisions. Consequently, the Board concluded that the Company violated Sec. 8(a)(1) and Sec. 8(a)(3) by discharging Inez Tornquist, Debra Tornquist, and Dan Watkins. We must enforce the Board’s order if its findings are supported by substantial evidence on the record as a whole.⁷ E.g., NLRB v. Adam & Eve Cosmetics, Inc., 567 F.2d 723 (7th Cir.1977).

In our view, substantial evidence supports the Board’s finding that the Tornquists’ refusal to attend the pro-company rally was a substantial motivating factor in the Company’s discharge decision. Inez Tornquist testified that Robert Blicken-staff, the Company’s Office Manager, telephoned her and stated:

“... I hate to be the one to have to tell you this, but you and Debbie have been separated.... Freed and Rusty Harrison, the Company’s Secretary-Treasurer, did not see your names on the list to attend the Company rally and Freed did not like it ... and he ordered me to call you and tell you that you’d been fired and said (sic) you had poor attitudes because you didn’t support the Company and attend the Rally.”

Blickenstaff admitted that he telephoned Inez Tornquist and informed her of the Company’s discharge decision, but denied having made any statement concerning the Tornquists’ refusal to attend the pro-company rally. The administrative law judge credited Inez Tornquist’s testimony. Clearly, if Inez Tornquist’s testimony was properly credited, then substantial evidence supports the Board’s finding that the Torn-quists’ refusal to attend the pro-company rally was a substantial motivating factor in the Company’s discharge decision.⁸ After reviewing the record, we believe that the Board properly credited Inez Tornquist’s testimony,⁹ and thus, we believe that the Board correctly concluded that the Company violated Sec. 8(a)(1) and Sec. 8(a)(3) by discharging the Tornquists.

We also believe that substantial evidence supports the Board’s finding that Dan Watkins’ pro-union activity was a substantial motivating factor in the Company’s decision to discharge him. From the start of the Union’s organizing campaign, Watkins was the most visible Union supporter: he solicited Union authorization cards, distributed Union literature, attended union meetings, and often discussed the merit of union representation with his supervisors. In late April, Watkins arranged a meeting with Company President Freed to inform Freed that he and other employees had become disenchanted with the Union and to elicit the Company’s views about the coming election. A few days later, however, Watkins apparently experienced another “change in heart” and accepted a position as a member on a Union organizing committee. Thereafter, Watkins remained a pro-union supporter; he served as a Union observer for the May 10th election and his name appeared on several election objections filed by the Union.

Before the Board, the Company argued that Watkins was discharged because he punched the wrong time clock at 9:42 p.m. on September 17th and because he allegedly failed to inform the appropriate supervisor of his whereabouts until 10:30 p.m. According to the Company, this misconduct amounted to “cheating” and “dishonesty”. The Board, however, found that these reasons for discharging Watkins were pretex-tual and that Watkins was discharged because he betrayed the Company by supporting the Union. We believe that sufficient circumstantial evidence supports the Board’s findings in this regard. The testimony of foreman Jones supports the Board’s finding that Watkins’ misconduct was no more than a minor and technical departure from shop rules.¹⁰ Further, Watkins testified that Freed referred to Watkins’ pro-union activities during the pre-dis-charge meeting: Freed was upset because Watkins had breached a prior understanding that he would not actively campaign for the Union.¹¹ We believe that the relatively minor nature of Watkins’ misconduct, Freed’s dismay with Watkins’ pro-union activities and the Company’s general anti-union animus¹² all support the Board’s conclusion that the Company violated Sec. 8(a)(1) and Sec. 8(a)(3) by discharging Watkins.

Next, we consider the lawfulness of the three written statements made by the Company prior to the May 10th election.¹³ Section 8(a)(1) of the Act prohibits an employer from making statements that “interfere with, restrain, or coerce” its employees’ right to engage in protected activity. An employer, therefore, violates the Act when he threatens to punish employees for engaging in protected activity. E.g., NLRB v. Berger Transfer & Storage Company, 678 F.2d 679, 690 (7th Cir.1982); NLRB v. Lucy Ellen Candy Division of F. & F. Laboratories, Inc., 517 F.2d 551 (7th Cir.1975). When, however, an employer’s pre-election predictions regarding matters beyond the employer’s control have a substantial factual basis, they contain “no threat of reprisal or force or promise of benefits” and are protected by Sec. 8(c) of the Act. NLRB v. Gissel Packing Co., 395 U.S. 575, 618, 89 S.Ct. 1918, 1942, 23 L.Ed.2d 547 (1969). “The Board has the primary responsibility for determining whether statements are to be construed as threats or mere expressions of opinion” and the Board’s decision in this regard will not be disturbed on appeal if “the record as a whole reveals substantial evidence in support of the finding.” NLRB v. Lucy Ellen Candy Div. of F. & F. Lab., Inc., 517 F.2d 551, 537 (7th Cir.1975). Consistent with this authority, we review the Board’s conclusion that each of the Company’s statements were a violation of Sec. 8(a)(1) of the Act.

The first employer statement at issue concerns the replacement of economic strikers. Essentially, the Company stated that it could not discharge employees for striking, but that employees who participate in an economic strike may be “permanently replaced” and that replaced strikers “have no job to return to when the strike ends.” The administrative law judge drew a distinction, apparently adopted by the Board, between the Company’s statement that strikers could be “permanently replaced” and the Company’s statement that replaced strikers “have no job to return to when the strike ends.” According to the Board, an employer may lawfully inform its employees that during an economic strike the Company has an “absolute right to permanently replace each and every striker”, Care Inn, Collierville, 202 NLRB 1065 (1973), but an employer may not state that permanently replaced employees “have no job to return to when the strike ends” unless it also provides the employees with a full explanation of the rights of a permanently replaced employee. We need not express an opinion regarding the merit of this distinction. Instead, we need only decide whether the Company’s statement that “employees who go on strike and are replaced have no job to return to when the strike ends” was unduly coercive in light of the facts and circumstances of this case.

In determining whether an employer’s statement is unduly coercive, the Board must evaluate the speaker’s intent and the listener’s understanding. NLRB v. Gissel Packing Co., 395 U.S. 575, 619, 89 S.Ct. 1918, 1942-1943, 23 L.Ed.2d 547 (1969). Thus, an employer’s statement cannot be viewed in isolation; it must be considered in conjunction with those factors which might affect reasonably the listener’s perception. The same statement may be lawful in one context and unlawful in another. See Corrie Corp. of Charleston v. NLRB, 375 F.2d 149, 153 (4th Cir.1967) (“The difference between permitted and coercive language often lies in an analysis of the ‘total background of facts and circumstances.’ ”). In this instance, the Company’s statement that “employees who go on strike and are replaced have no job to return to when the strike ends” must be considered in the context of an organizational campaign replete with unfair labor practices: the Board determined that the Company prohibited illegally the distribution of pro-union literature in public areas near the plant and that the Company prohibited illegally the distribution of pro-union literature during non-work periods in non-work areas of the plant. Furthermore, the Board found that the Company discriminatorily punished three Union adherents, discriminatorily discharged four employees, and coercively threatened, by interrogation and by groundless statements of job loss, a number of other employees. The majority of these unfair labor practices occurred prior to the May 10th election. In light of the Company’s evident anti-union animus, we believe that the employees could have interpreted reasonably the Company’s statement as an implied threat of discharge.¹⁴ See, e.g., NLRB v. Gold Standard Enterprises, Inc., 679 F.2d 673, 676 (7th Cir.1982) (“An employer’s statements violate Sec. 8(a)(1) not only when they actually produce a coercive effect, but also when they have the tendency to do so.”); Jay’s Foods Inc. v. NLRB, 573 F.2d 438, 444 (7th Cir.), cert. denied, 439 U.S. 859, 99 S.Ct. 176, 58 L.Ed.2d 167 (1978) (In determining coercive effect, courts must consider the position of the economically-dependent employees.). Because substantial evidence supports the Board’s finding that the employees could have interpreted reasonably the Company’s statement as an implied threat of discharge, we believe that the Board concluded properly that the Company’s statement was a violation of See. 8(a)(1) of the Act.

The two remaining employer statements in dispute concern the Company’s predictions of job loss. Generally, Sec. 8(c), 29 U.S.C. Sec. 158(c) permits an employer to inform his employees of the advantages and disadvantages of union representation. Because a statement concerning job loss tends to discourage concerted activity, however, courts have construed narrowly an employer’s section 8(c) rights in this context. See e.g., NLRB v. Gissel Packing Co., 395 U.S. 575, 579, 618, 89 S.Ct. 1918, 1922, 1942, 23 L.Ed.2d 547 (1969). Thus, an employer may not predict that unionization may result in a loss of jobs unless the prediction is “carefully phrased on the basis of objective fact.” Id. The employer bears the burden of proving that his predictions of job loss have a substantial factual basis. Id.; Zim’s v. Foodliner, Inc. v. NLRB, 495 F.2d 1131, 1137 (7th Cir.1974). In this instance, the Board found that the objective evidence offered by the Company failed to support its predictions of job loss and concluded that the employer violated Sec. 8(a)(1) by making two job loss predictions.

In the Company’s first job loss statement, it asserted that unionization would increase its labor costs. From this premise, the Company reasoned that an increase in labor costs and the attendant price increases would affect adversely its competitive market position which, in turn, would result in a loss of jobs. We agree with the Board that the Company had established a “realistic foundation” to support its premise, by identifying additional labor costs which might reasonably increase its overall operating expenses. The Company, however, failed to demonstrate the causal connection between a projected increase in labor costs and a loss of jobs. The evidence indicates that the Company was profitable, that it operated at more than full capacity, and that its employees regularly worked overtime hours. The reasonable inference which can be drawn from these facts is that only a substantial increase in operating costs would affect the Company’s competitive position. The Company, however, failed to produce objective evidence that any increase in labor costs would affect materially the Company’s competitive position. Moreover, the Company failed to introduce evidence to support its assertion that a change in its competitive position would affect adversely its labor force. The question is not whether unionization would affect adversely the Company’s labor costs and prices; rather, the question is whether incremental additional costs would result in a worsened competitive position and, consequently, in a loss of jobs. Because the Company failed to produce evidence explaining the connection between increased labor costs and job loss, we believe that substantial evidence supports the Board’s conclusion that the Company failed to establish a sufficient factual basis for its job loss prediction.¹⁵

The Company’s second job loss statement was similarly defective; the Company offered objective evidence that unionization would result in a decrease in its sales to Caterpillar, its primary customer, but it failed to establish the necessary causal connection between the projected loss of business and a loss of jobs. The evidence supports the conclusion that unionization would affect the Company’s relationship with Caterpillar; if the Company became a union company, then Caterpillar’s union-supplier policy would not permit the Company to run Caterpillar’s patterns on an exclusive basis.¹⁶ Thus, unionization would mean that the Company would lose some business. Caterpillar would place some duplicate patterns with another union-supplier who would be entitled to approximately 10-25% of Caterpillar’s total production requirement for that pattern.¹⁷ We believe that this evidence establishes a substantial factual basis for the Company’s prediction that unionization would result in the loss of business. A decrease in the amount of the Company’s production devoted to Caterpillar, however, does not mean that unionization would result necessarily in a loss of jobs. The Company failed to establish whether the production loss contemplated here would necessitate layoffs.

In summary, the absence of such evidence coupled with the Company’s evident anti-union animus is sufficient to support the Board’s conclusion that the Company’s predictions of job loss were not innocent statements based on objective fact, but rather, implied threats which had a tendency of coercing employees to vote against the union.¹⁸ Accordingly, we hold that the Board’s challenged findings are supported by substantial evidence.¹⁹ The Board’s order is enforced.

Entered By Order Of The Court

1 . Because the Company does not challenge the Board’s findings in this regard, these instances of apparent misconduct must be considered to have actually occurred as the Board found.

2 . The Board found that this discharge was the result of the employee’s pro-union conduct and, thus, an unfair labor practice. The Company does not contest this finding.

3 . The substance of this conversation was hotly disputed before the Board. See text accompanying note 7, infra.

4 . Apparently, Watkins had doubts regarding his decision to support the union; he expressed those doubts to the Company’s management on at least one occasion. See text accompanying notes 8-9, infra.

5 . Watkins and Grant Campbell regularly arrived early for their shift in order to receive overtime pay. Thus, the Company does not assert that Watkins was discharged because he improperly clocked in early.

6 . The Company argues that the Tornquists are not entitled to the Act’s protection in this instance because they did not engage in protected activity. We disagree. Although the Torn-quists are not employees within the appropriate bargaining unit, and may not have intended to support the Union, they are entitled to the Act’s protection; an employer cannot lawfully discharge any employee because the employer believes, even mistakenly, that the employee has decided to either support or refrain from supporting the union’s cause. Such action is designed to coerce employees into taking either a pro-union or anti-union stand and, thus, is a violation of the Act. See NLRB v. Gold Standard Enterprises, Inc., 679 F.2d 673 (7th Cir. 1982).

7 . The Company asserts that the Board improperly allocated the burden of proof with regard to the Company’s alleged discriminatory discharges. The Company’s argument in this regard has been recently considered and expressly rejected by the Supreme Court. NLRB v. Transportation Management Corp., — U.S. —, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983).

8 . The Company argued that it was not aware of the Tornquists’ intention not to attend the pro-company rally until after they were discharged. The testimony credited by the Board, however, supports its conclusion that Ward, an office receptionist, informed Blickenstaff on May 7, 1979 of the Tornquists’ intention not to attend the rally.

9 . The Board’s reason for accepting Inez Tom-quist’s testimony was based, in part, on its belief that the testimony of the Company’s witnesses was incredible. A reviewing court must accept the Board’s credibility findings unless the party challenging the credibility determination establishes “exceptional circumstances.” E.g. Medline Industries, Inc. v. NLRB, 593 F.2d 788, 795 (7th Cir.1979) (“We do not overturn findings based on credibility determinations because, ‘absent exceptional circumstances, credibility resolutions are within the province of the trier of fact.’ ”), quoting Electri-FIex Co. v. NLRB, 570 F.2d 1327, 1331-32 (7th Cir.), cert. denied, 439 U.S. 911, 99 S.Ct. 280, 58 L.Ed.2d 256 (1978). The Company points to no exceptional circumstances in this instance, and, thus, we accept the Board’s decision to credit Inez Tornquist’s testimony.

10 . See text accompanying note 5, supra.

11 . The Board chose to credit Watkins’ testimony in this regard because it was corroborated, in part, by Freed. Freed testified that he felt “conned” because Watkins decided to support the Union two days after Watkins had informed Freed that he and other employees would not support the Union. Again, the Company has failed to establish “exceptional circumstances” which would justify discounting the Board’s credibility determination. See note 8, supra.

12 . The Board properly considered the wide variety of unfair labor practices that the Company had engaged in as some evidence that Watkins’ pro-union activity was a substantial motivating factor in the Company’s discharge decision. See NLRB v. Berger Transfer & Storage Co., 678 F.2d 679, 692 (7th Cir.1982).

13 . By letter dated May 1, 1979, the Company also made the following statements:

“We have heard some talk about strikes where there is a union in a plant. Everyone who reads the papers knows that unions frequently have strikes. The purpose of a strike is to cause production to stop with the result that employees get no paychecks and the customers get no shipments or products. You know that on many of the things we ship to Caterpillar we are Caterpillar’s sole source for the casting. Obviously, if a union struck Harrison Steel, our relationship with Caterpillar would suffer. No customer is going to stand by and continue to give exclusive source orders to a supplier who has strikes. You should give thought to the likelihood of a strike if a union gets in. You should also give thought to the effect of a strike upon our relationship with Caterpillar. If we lost Caterpillar business because we were an unreliable source of supply, employees would lose jobs and the Company and the whole community would suffer.”

Because these statements paraphrase the employer’s third statement, we need not consider this letter separately.

14 . The dissent challenges the Board’s conclusion that the Company’s statement that “employees who go on strike and are replaced have no job to return to when the strike ends” violates Sec. 8(a)(1) of the Act. According to the dissent, no reasonable employee would have interpreted the Company’s statement as an implied threat of discharge because the Company stated expressly: “A company cannot fire employees for striking but it can permanently replace them.” We agree with the dissent that employees are capable generally of assessing misleading campaign propaganda. We doubt seriously, however, that most employees are aware of the legal distinction between “discharge” and “permanent replacement”. In our view, employee confusion is the likely result of these statements; the prudent employee, knowing that the Company punishes consistently other employees for their union sentiments, would resolve any ambiguity by discounting the Company’s statement that it would not discharge economic strikers.

15 . The dissent relies on NLRB v. Intertherm, Inc., 596 F.2d 267 (8th Cir.1979). In Intert-herm, the challenged pre-election statements were as follows:

“I have dealt with a number of unions in which I have had to shut down plants, or move them elsewhere. I’ve sat at the bargaining table and told an international union that you’ll either have to agree with the company’s position or we’ll shut the plant down. These are not threats, these are simply facts showing what I think all of you really understand.” Id. at 277-78.

The court held that the employer “was careful to state that his remarks were not threats but simply his view of the possible economic consequences of a union victory.” Id. at 278 (emphasis added). The dissent argues that “the remarks of Harrison’s management were more restrained and reasoned as well as milder in tone, and had a stronger economic foundation than the statements approved ... in Intert-herm.” We believe that the Eighth Circuit’s holding in Intertherm is, at least in part, inconsistent with the Supreme Court’s decision in NLRB v. Gissel Packing Co., 395 U.S. 575, 579, 89 S.Ct. 1918, 1922, 23 L.Ed.2d 547 (1969).

In our view, a company may not prohibit illegally the distribution of pro-union literature, interrogate and threaten illegally pro-union employees, deny illegally regularly scheduled overtime hours to employees wearing pro-union buttons, punish illegally employees for their pro-union sentiments, discharge illegally employees for exercising rights guaranteed by federal law and speculate as to the “possible” loss of jobs which may result from unionization. Accordingly, although a number of the Company’s predictions were framed as possible consequences of unionization, we agree with the Board that a Company’s statement that jobs “might” be lost or that it “might" close the plant down does not lessen the statements’ coercive potential. See NLRB v. Gissel Packing Co., 395 U.S. 575, 579, 619-20, 89 S.Ct. 1918, 1922, 1942, 1943, 23 L.Ed.2d 547 (1969) (Wherein the Supreme Court recognized that employees are “particularly sensitive” to employers’ statements of job loss); Jay’s Foods, Inc. v. NLRB, 673 F.2d 438, 444 (7th Cir.), cert. denied, 439 U.S. 859, 99 S.Ct. 176, 58 L.Ed.2d 167 (1978) (In determining coercive effect, courts must consider the position of the economically dependent employees.). But see, J. Getman, S. Goldberg & J. Herman, Union Representation Elections: Law and Reality, (1981). (employers’ statements have little influence on employees).

16 . Caterpillar owns the patterns and issues these patterns to its suppliers. Approximately two-thirds of the patterns that the Company runs for Caterpillar are exclusive.

17 . Evidence also established that, as a result of unionization, Caterpillar would require that the Company stockpile three months worth of orders during the six month period prior to the expiration of any collective bargaining agreement. Apparently, the Company assumes that a loss of jobs would result because the stockpiling requirement would place the Company three months ahead of their normal production schedule. Testimony indicates that the vast majority of Caterpillar’s union-suppliers have three-year collective bargaining agreements. We do not believe that a Company can base a job loss prediction on a three year estimate of its future labor demand. Such evidence is far too speculative to establish a substantial factual basis for the Company’s job loss prediction.

18 . This court’s recent decision in NLRB v. Village IX, Inc., d/b/a Shenanigans, 723 F.2d 1360 (7th Cir. 1983) does not require a contrary result. In Shenanigans, particular emphasis was placed on evidence concerning the unique and highly competitive nature of the restaurant business in Decatur, Illinois. Indeed, this court relied specifically on the Company’s evidence that “only one restaurant in Decatur was unionized and it was doing badly.” Id. Although we express no opinion regarding the advisability of an analysis based on the success rate of “union” companies, the evidence in this case establishes clearly that the vast majority of the Company’s competitors were unionized. Further, the Company failed to prove that “union” competitors were unable to compete effectively.

19 . We share the dissent’s concern that “excessive union demands, along with other factors, has not only caused many firms in the midwest to lose business to foreign and ‘sun-belt’ competitors, but also to shut down and lose plants to states located in the ‘sun-belt’ region”, and its concern that “[millions of dollars of business has been lost annually to foreign markets in part due to labor costs.” A federal court, however, should not broaden an employer’s free speech rights pursuant to Sec. 8(c) based upon its independent evaluation of the economic climate in the northern part of the United States. It must enforce the Board’s findings when supported by substantial evidence. E.g., Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Mosey Manufacturing Company, Inc. v. NLRB, 701 F.2d 610 (7th Cir.1983).