Walker Manufacturing Co.

722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that its announcement on January 17 with respect to that plan was intended by Respondent, and was so understood by the Union's representatives, as a proposal for the future disposition of the accumulated surplus and that the Union acquiesced in that disposition of the fund. My conclusion is buttressed by the fact that though the proposal was not to become effective until the following February 1, the Union, which apparently meets constantly with company representatives per- taining to employer-employee relations and problems, made no alternative sug- gestion pertaining to the Major Medical plan or indicated any need or desire for further negotiation with respect thereto. A union aware, as this Union was, of its right to bargain collectively with respect to all changes and conditions and terms of employment of its members, should not be allowed to sit idly by following an employer's announcement of an anticipated change of such terms and con- ditions and then subsequently claim that the announcement, per se, constituted unilateral action and an unfair labor practice.12 CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7 ) of the Act. 2. Respondent has not engaged in the unfair labor practices alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that the complaint be dismissed in its entirety. 12 In view of the findings entered immediately above, I find it unnecessary to consider Respondent's alternative defense tnat "the premium suspension was an administrative act taken under an existing plan." Walker Manufacturing Company and Local 85, International Union, United Automobile , Aerospace and Agricultural Imple- ment Workers of America, AFL-CIO. Case 30-CA-345. No- vember 11 1966 DECISION AND ORDER On July 20, 1966, Trial Examiner Paul E. Weil issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had engaged in only one of the unfair labor practices alleged in the complaint. He concluded this did not warrant the issuance of a reme- dial. order, and, therefore, recommended that the complaint be dis- missed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Respond- ent filed cross-exceptions and an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The 161 NLRB No. 60. WALKER MANUFACTURING COMPANY 723 rulings are hereby affirmed.. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner only to the extent consistent herewith. The Trial Examiner found that a protest by Celeste, the com- plainant, and other employees, against working on snow-covered mufflers because of the safety hazard, was a protected concerted activ- ity. He also found that the transfer of Celeste the following day was motivated in part by Foreman Lebean's resentment of this activity, and that the transfer was therefore a violation of Section S(a) (1) of the Act. On the ground that this was "an isolated instance of a violation," he recommended that no remedial order be issued. We do not agree with the Trial Examiner that the transfer was violative of Section 8(a) (1) for the reasons set forth below. Celeste was transferred from the muffler wrapping machine to the firing line. The record shows that the Respondent had planned, about a month before Celeste's transfer, to train an additional Iran to per- form the wrapping machine work as only two of the three men who worked on the machine knew flow to perform setups, which were nec- essary to adapt the machine to the various sized mufflers, and both of these had 4-week vacations coming clue shortly. The Respondent had decided that Celeste, one of the two men who knew how to perform setups would be transferred. As indicated in the Trial Examiner's Decision, Lebeau told Celeste, when he notified Celeste of the trans- fer, that "in case of absenteeism, I have to break somebody in." The Respondent informed Iiirkorian, president of the Charging Union, with which the Respondent has a collective-bargaining agree- ment, of the transfer on the day it was scheduled to be made. Kir- korian did not object to the transfer, but suggested to Strolle, the superintendent of the department, that it might look better if the transfer were made a few days later. The Respondent, however, made the transfer as scheduled. The transfer involved no change in Celeste's wage rate, and both jobs fall under the same classification in the collective-bargaining agreement. Moreover, Celeste, who was recovering from surgery, could sit down during part of the firing line operation. The Trail Examiner points out in his Decision that "there is no evi- dence that any member of management above Lebeau was motivated in the move of Celeste to another job by any considerations other than normal operations of the plant," but he concludes that Lebeau was motivated by animosity against Celeste. We find that the record does not establish that Lebeau caused Celeste to be transferred be- cause of resentment of his protected concerted activity. Accordingly, 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we find, on the basis of the foregoing and of the entire record, that Celeste's transfer was made in the normal course of business, and we shall therefore dismiss the complaint. [The Board adopted the Trial Examiner's Recommended Order and dismissed the complaint.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed on February 7, 1966, by Local 85, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, herein called the Union, and an amended charge filed by the Union on March 22, 1966, the General Counsel of the National Labor Relations Board, herein called the Board, issued a complaint on March 24, 1966, alleging that Walker Manufacturing Company, herein called Respondent, violated Section 8(a) (1) of the National Labor Relations Act, as amended, herein called the Act. The complaint was thereafter amended immediately prior to the hearing on May 4, 1966. Pursuant to due notice the hearing in this matter was held before Trial Examiner Paul E. Weil at Racine, Wisconsin, on May 5 and 6, 1966. All parties were present and participated fully in the hearing. Briefs were received from Respondent and and the General Counsel and have been duly considered. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE BUSINESS OF THE RESPONDENT Walker Manufacturing Company, Respondent herein, is a Delaware corporation engaged in its plant in Racine, Wisconsin , in the manufacture of automotive parts and equipment. During the past calendar year Respondent sold and shipped products in interstate commerce valued in excess of $50,000 from its Racine, Wisconsin, plant directly to points outside the State of Wisconsin. It is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. IT. THE LABOR ORGANIZATION INVOLVED The Union is and at all times relevant hereto has been a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The issues The complaint alleges and Respondent denies that Respondent violated Section 8(a)(1) by transfering an employee, Ernest Celeste, to a less desirable job because he had engaged in protected, concerted activities and by thereafter unlawfully interviewing and interrogating him and subjecting him to vulgar and abusive language. In addition, Respondent contends that it is an abuse of process for the Board to consider the allegations herein because the Union should have taken the matter to arbitration rather than filing a charge,' that the case is moot by reason of Celeste's voluntary transfer to a higher classified job in another division of the 1 "[T]he Board has never shunned jurisdiction merely because a party had the con- tractual right to go to arbitration but has never exercised the option " Trial Examiner Dialler in Aerodex, Inc, 149 NLRB 192, 199 In view of my recommendation I find it unnecessary to speak to Respondent's contention, with which I do not agree WALKER MANUFACTURING COMPANY 725 employer,2 and that Respondent was denied due process with respect to the amend- ment to the complaint and my refusal to continue the trial to the next week .3 B. Background Among the products manufactured by Respondent at its Racine plant are mufflers and tailpipes for automobiles. Part of the manufacturing process takes place in what is known as the ceramic department, where mufflers and tailpipes are coated with a ceramic compound, baked in a firing oven and wrapped with a sheet of asbestos covered by a sheet of steel. The wrapping machine is operated by a three-man crew, two of whom load the wrapping machine with the ceramic coated muffler and with the sheet of steel and the sheet of asbestos. The third sizes the muffler and loads it on a. skid.4 Their work comes to them on skids which usually hold 136 mufflers. A. normal day's work appears to be from 9 to 11 such skids. The three men operating. the wrapping machine and sizer rotate with each skid load so that each of the three men does each of the three operations. For the year and a half preceding, the hearing the wrapping crew consisted of three men Ernest Celeste, Albert Hartog, and Henry Milford. Celeste had been employed for 41/2 years on the wrapping machine out of the last 24 years during which he had worked for the employer. Hartog, with 23 years employment with Respondent, had been employed on the wrapping machine about 31/2 years and Milford with approximately 20 years experience with Respondent had been on the wrapping machine for about 3 years. The three apparently had worked together as a team, however, only for the last year and a half. The skids which contain the mufflers which are to be wrapped are generally kept on the floor in the plant, however, when there are too many such skids some of them are kept out of doors in an area known as the patio. On Febru- ary 2, 1966, a heavy fall of snow occurred in the vicinity of Racine, Wisconsin. This resulted in a condition described as 1 to 2 feet of snow and ice on the mufflers in the patio waiting to be wrapped. That morning the forklift operator found that there were only two skids of the type of muffler then being wrapped within the plant and realized that it would be necessary to bring in the snow- covered mufflers. He brought in a load and was directed by Foreman Lebeau, to set them up at the wrapping machine. Lebeau said that he would have the 2 Respondent contends that the matter is moot because the affected employee, Celeste, has since the hearing successfully bid for and won a promotion to a higher paying job; Respondent moves to reopen the record to receive an affidavit of Director of Personnel Savas to that effect. General Counsel opposes the motion on the ground that the evidence is irrelevant, and should properly be considered at the compliance stage of the proceeding. In view of my disposition of the complaint, I deem the proffered evidence immaterial, and deny the motion. 3 Respondent vigorously contends that it was denied due process by the amendment of the complaint by the Regional Director on the day preceding the hearing to allege the interrogation of Celeste by Respondent's counsel. The conduct alleged in the amendment was closely related to the issues alleged in the charge, and the statute specifically permits such amendment. Section 10(b), NLRA; see Cadre Industries Corporation, 124 NLRL'. 278. Respondent further contends it was denied due process by my refusal to grant a continu- ance; arguing that such continuance was necessitated by the fact that the complaint bad been amended. It should be noted that the information necessary to defend against the amended allegation was peculiarly in the possession of Respondent's trial counsel ; in fact it was his act in large part that formed the basis of the allegation. Respondent contends that the continuance should have been granted because of the convenience of counsel, since if the complaint would not have been amended there would have been only 1 day of hear- ing. This is an overstatement. Not more than 50 pages of transcript were concerned with the new material, yet the second clay of the hearing consumed 119 pages. I find it some- what surprising that counsel had allotted only 1 day to the trial of the matter. In any event, there is no issue remaining in view of my disposition of the allegation. Nevertheless, a formal hearing before this agency requires the same attention and respect as any other litigation ; Respondent shows no prejudice by reason of my rulings. See Russell-Newman Mfg. Co., Inc., 153 NLRB 1312. 4 The sizing operation is described as placing the muffler on a machine which sizes up the holes at either end of the muffler to the proper dimensions. 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wrapping crew sweep off the snow and ice. The forklift operator Corona said that sweeping would not do the job, but Lebeau said that he would try it.5 By the time the men working the wrapper had finished the dry loads that had been in the plant before they came on shift, the ice and snow had melted to a depth of 6 to 8 inches . Celeste and Hartog went over to look at the snow- covered mufflers and agreed between themselves that they could not "run" the mufflers and that they were not going to. They called Corona, who is also the union shop steward in the ceramic department , and told him to call the foreman, Lebeau. Lebeau came over to the machine and Corona told him in the presence of the wrapping crew that in his opinion the men could not be expected to work on the snow -covered load pointing out that it is "below working conditions," it presented a safety hazard because the machine was operated by electricity and also one of the men operating the machine had to stand on a platform which if covered with ice would become slippery, finally pointing out that if the wrappers attempted to wrap the binding with ice on the mufflers the binding would be loose . To this Lebeau answered , "I can see where that would happen." At that, Celeste told Lebeau that he would not work on the snow-covered load and Lebeau answered , "Now isn't that too bad." Hartog called for the inspector who gave as his opinion that the mufflers should not be wrapped in that condition and called for his supervisor, Chief Inspector Larson, who came and looked at the mufflers and said, "Don't run them ." Lebeau then told the crew to run a different size muffler, a stock of which was available inside the plant. The next day, February 3, Foreman Lebeau came to the wrapping machine and told Celeste "I'm taking you off the wrapping machine." Celeste asked why. Lebeau answered , "Well, in case of absenteeism , I have to break somebody in." Celeste answered , "Who are you breaking in?" Lebeau said, Bethge. Celeste pointed out that Bethge had worked on the machine for a couple of years plus 2 months that Celeste had been sick and questioned whether Bethge had not learned to do the job in that time . Lebeau simply answered , "Go to work on the line." Celeste did so and continued to work on the line until the time of the hearing.6 During the last 2 months of 1965, Celeste had been in the hospital recovering from heart surgery. He returned to work immediately after the first of the year. He was given a release by his doctor and testified without contradiction that he was told by his doctor that he was fit to return to his work and that he would be able to do a normal day 's work at his job. Celeste testified that he had some difficulty for the first few weeks on the job, but that he was able to do it. How- ever, after his transfer he testified he experienced greater difficulty because of the necessity in some of the jobs out on the line of reaching , stooping, and stretching. Celeste had told Foreman Lebeau a day or two after his return in January what operation he had had . He did not thereafter mention the operation or make any complaint to management concerning the difficulties he may have had as a result of the operation . The only time his physical condition was mentioned was on or about January 15 , when Lebeau asked Celeste how he was feeling. Celeste answered that he was fine except that he was sore and Lebeau said, "Well, production has dropped off on the job." Celeste suggested , "Do you feel I am the fault of the production dropping off the job? If that's the case take me off." Lebeau answered , "Oh, no, you are doing fine for what you went through." On April 28, Respondent's Personnel Manager Savas and Attorney Biggert went into the plant to view the ceramic department in preparation for the trial of this matter. Savas spoke to Celeste who was working on the line and asked him how he felt and commenced a conversation about his operation . It was noisy and according to Savas, because they had difficulty hearing one another, he suggested that they go into his office. The three proceeded into Lebeau's office where Celeste told Savas the details of his operation . According to Celeste's version of the conversation Biggert asked him about the different jobs on the line, and whether they bothered him and he said that they did. At this point, Savas said, 5 Corona and each of the members of the wrapping crew, all of whom testified, agreed that under normal circumstances, when mufflers were brought in from the patio either covered with snow or wet from rain they were left either over a drain or under a space heater to dry before they were handled by the wrapping machine crew. 'The "line" refers to the ceramic coating and firing operation. WALKER MANUFACTURING COMPANY 727 according to Celeste, "you son-of-a-bitch, on account of you we have to go to court next week." Then according to Celeste, Savas turned to Biggert and said, "this is the fellow that's going to represent us." Biggert asked a question and Celeste put his head down without answering, whereupon Savas said, "You don't have to answer the questions if you don't want to" and the conversation ended. Savas' testimony about the conversation is substantially the same except that he denied calling Celeste a "son-of-a-bitch" or stating that on his account the employer had to go to court. Savas and Celeste. agreed that at the close of the meeting Celeste suggested that he be given a bench Job and Savas said that maybe something could be arranged when this is all over. Biggert also took the witness stand to corroborate Savas' testimony? Biggert testified in general that Savas' testimony with regard to the meeting and con- versation with Celeste was "substantially as he recalled it," and testified particularly that Savas did not say "you son-of-a-bitch, on account of you we have to go to court next week." He testified that he did not recall Savas directing profanity at Celeste and he did not recall Savas specifically using the term "son-of-a-bitch." In addition Biggert testified that when the three men walked into Lebeau's office, Savas introduced him as the company attorney; he said, "How do you do? We rep- resent the Company in this National Labor Relations Board case involving you. I am here for the purpose of investigating it and we would like to talk with you, but you don't have to speak with us if you don't want to." Savas does not cor- roborate this testimony of Biggert. Celeste denies it took place at that time, although he states that Biggert made a statement to that effect in the conversation after his explanation of his operation. As to this conversation, I credit Savas' denial that he made the statement attributed to him, at least in the context in which Celeste placed it. Celeste attributes it to Savas in no relation whatsoever, during an otherwise fairly dispassionate and obviously arms-length conversation. I do not question that Savas might have used the expression "son-of-a-bitch"; I am not unaware of what the Board has referred to as the facts of industrial life and it is clear from the testimony of everyone employed at the plant that pro- fanity was not unusual in and around the plant. On the other hand, I do credit Celeste that Biggert's mission was not explained to him until after his discussion with Savas concerning his operation. I consider that Savas' testimony corroborates Celeste in this regard and I am convinced that Biggert is mistaken in his recollection. Discussion and Conclusion The General Counsel, relying chiefly on the Board's Decision in Johnnie's Poultry Co., 146 NLRB 770, 775, contends that the interrogation of Celeste on April 28, by Attorney Biggert and Personnel Manager Savas was coercive within the meaning of Section 8(a)(1). I do not agree. It is clear that the only conver- sation that took place with Celeste, before he was informed of Biggert's pur- pose in the interview, concerned Celeste's operation and whatever disability resulted therefrom. There was at best a peripheral issue in the case .8 It is clear that before attempting to interrogate Celeste as to the events of February 2 and 3, Respondent advised him of his right not to answer and in fact he did not answer. General Counsel contends that the outburst by Savas calling Celeste a "son-of-a- bitch" and blaming him for the necessity of the hearing is illustrative of Respond- ent's hostility toward Celeste and the Union. While I find that the outburst did not take place as Celeste recounted it, if I had found that it took place I could not find therefrom that it is a demonstration of employer hostility to union organization such as the Board was concerned with in Johnnie's Poultry and the cases there cited. I find no context of employer hostility to union organization. I find nothing intrinsically coercive in the questioning and I find that the questions did not in any regard exceed the necessities of the legitimate purpose of preparing Attorney 1.?iggert represented the employer throughout the hearing except for the inter- rogation of Savas and himself which was conducted by another attorney from the same firm. 8 In fact, the General Counsel at one point objected to interrogation concerning Celeste's disability on the ground that it was irrelevant to the issues herein. 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's case for trial by prying into other union matters, eliciting information concerning the employees' subjective state of mind or otherwise interfering with the statutory rights of employees. In short, under what General Counsel refers to as the guide line set forth in Johnnie's Poultry, I find no violation in the interrogation of Celeste. With regard to the transfer of Celeste from the wrapping machine to the firing line, I find that Superintendent Strolle had advised Foreman Lebeau to train addi- tional men to operate the wrapping process. While Strolle's testimony is not supported by Lebeau who was apparently available to the employer, but was not called to testify, I find no reason to discredit Strolle. In fact, considering the fact that Celeste had just returned from a somewhat lengthy period of sick leave and in view of the fact that only three men on the day shift were trained to run the machine and to perform the setups on the machine,9 his testimony is corroborated by the reasonableness of the orders he gave. However, I find that Lebeau did not immediately follow the orders of his superior and assign one of the experienced men to other work so as to bring a new man onto the wrapping machine. Only after the incident of the snow on February 2, I am convinced and I find, Lebeau because of his irritation with Celeste in raising the incident and in part because Celeste had brought the union shop steward into the discussion determined to rid himself of Celeste and followed his superior's orders, transferring Celeste to a job on the line and replacing him with Bethge. I believe and find that Lebeau was motivated in part by animosity which obviously existed between him and Celeste and partly by Celeste's concerted activity in refusing to do the work which Lebeau had indicated he was to do, voicing the agreement of the other members of the wrapping crew in so doing. This transfer thus, is violative of Section 8(a)(1) of the Act. However, I question whether it can or should be attributed to Respondent. There is no evidence that the employer, generally speaking, is engaged in a campaign to interfere with the employees statutory rights, or is otherwise motivated by antiunion considerations. Further, there is no evidence that any member of management above Lebeau was motivated in the move of Celeste to another job by any consideration other than normal operation of the plant. I find Lebeau's action was at best an isolated instance of a violation and. does not warrant a cease-and-desist order in the circumstances of this case.19 CONCLUSIONS OF LAW 1. Walker Manufacturing Company is at all times relevant hereto an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 85, International Union, United Automobile, Aerospace and Agri- cultural Implement Workers of America, AFL-CIO, is and at all times material herein has been a labor organization within the meaning of Section 2(5) of the Act. 3. The General Counsel has failed to establish that the Respondent has engaged in or is engaging in unfair labor practices, warranting a cease-and-desist order, within the meaning of Section 8(a)(1) of the Act. RECOMMENDED ORDER Upon the basis of the findings of fact and conclusions of law and upon the entire record in this case, it is recommended that the Board dismiss the complaint in its entirety. e Much to-do was made by the employer and by the General Counsel in contending how difficult the setups were and how long a time it takes to learn to do it. I credit the testi- mony of employee Hartog that a normal person under normal circumstances would be competent to do setup work after a few months of employment. This is corroborated by the undisputed testimony that the turnover of men operating the wrapping machine on the night force is great so that apparently no one has worked for it period of years on the wrapping machine. Nevertheless, the setup work on the night shift is done by the night force. 10 See William Eaborn, d/b/a Eaborn Trucking Service, 156 NLRB 1370.