Fontaine Truck Equipment Co., Inc.

576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fontaine Truck Equipment Company, Inc. and Shopmen's Local Union 702 of the International Association of Bridge , Structural and Ornamental Iron Workers, AFL-CIO. Cases 15-CA-2894 and 15-RC-3412 June 30, 1967 DECISION, ORDER , AND DIRECTION OF SECOND ELECTION [Text of Direction of Second Election , omitted from publication.] An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 15 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director The Regional Director shall make the list available to all parties to the election No ex- tension of time to tile this list shall be granted by the Regional Director ex- cept in extraordinary circumstances Failure to comply with this require- ment shall be grounds for setting aside the election whenever proper ob- jections are filed EX(ehlorUnderiear Inc , 156 N LRB 1236 BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On April 12, 1967, Trial Examiner Lloyd Buchanan issued his Decision in the above-entitled consolidated proceeding , finding that Respondent had engaged in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action . as set forth in the attached Trial Examiner's Decision In addi- tion, the Trial Examiner found merit in certain of the objections to conduct affecting the election results and recommended that the election held on August 5, 1966, in Case 15-RC-3412. be set aside, and that a second election be conducted. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision , with a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act , as amended , the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed The rulings are hereby affirmed . The Board has considered the Trial Examiner's Decision , the exceptions and brief, and the entire record in this case, and hereby adopts the Trial Examiner 's findings, conclusions, and recommendations. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, Fontaine Truck Equip- ment Company, Inc., its officers. agents. succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. IT IS FURTHER ORDERED that the complaint, in- sofar as it alleges that the Respondent violated the Act by conduct other than that found to be violative herein, be, and it hereby is. dismissed IT IS FURTHER ORDERED that the election held on August 5. 1966. among the employees in the stipu- lated unit be, and it hereby is, set aside. TRIAL EXAMINER'S DECISION LLOYD BUCHANAN, Trial Examiner: The complaint herein (issued January 19, 1967; charges filed August 9 and 15, 1966), alleges that the Company has violated Sec- tion 8(a)(1) of the National Labor Relations Act, as amended, 73 Stat. 519, by interrogating groups of em- ployees concerning their own and other employees' union activities and desires , promising benefits by telling an em- ployee that he would make more money if the Union did not come in: threatening that if the Union were voted in the Company would give all employees a classification test and that some would probably fail and have to take a pay cut, that there would then also be a possibility of the plant being closed because the owner , forced to pay union wages, could get bodies built as cheaply in Birmingham, that the employees would lose their holidays or really have to earn them , that production standards would be raised beyond the employees ' capacity , with discharge for those who did not meet the standards , and that after the election was over none of the troublemakers would be working on a given line, telling an employee that he was going to be another Hoffa and wind up in the "pen" if he did not leave the Union alone; warning an employee that if a prospective employer found out about his union ac- tivities they would go against him and he would not be hired , and by asking an employee whether he was still determined to declare war on the Company . The answer denies the allegations of violation. Consolidated with the hearing on the above issues was a hearing with respect to issues raised by certain objec- tions by the Union to conduct affecting the results of a Board-conducted election . The Union agreed at the hear- ing that for support of its objections 3 and 5, of interroga- tion and threats , respectively, it relies on the proof sub- mitted to sustain the corresponding allegations of viola- tion. The other objections before us are that promises of wage increases beyond that allegation of violation were made to employees shortly before the election , that regu- lar overtime was discontinued because of the employees' union activities ; and that on the date of the election the Company withheld $4.25 from each employee's pay, issu- ing a separate check and describing the deductions as union dues The General Counsel specifically disclaimed any violation which might be indicated by the Union's proof in connection with its additional objections to the election A hearing was held before me at Collins , Mississippi, on February 23 and 24, 1967. Pursuant to leave granted to all parties , briefs have been filed by the General Coun- sel and the Company, the time to do so having been ex- tended 166 NLRB No 50 FONTAINE TRUCK EQUIPMENT CO. 577 Upon the entire record in the case and from my obser- vation of the witnesses, I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) AND CONCLUSIONS OF LAW 1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZA- TION INVOLVED The facts concerning the Company's status as an Alabama corporation, the nature and extent of its busi- ness, and its engagement in commerce within the meaning of the Act are admitted; I find and conclude accordingly. I also find and conclude that, as admitted, the Union is a labor organization within the meaning of the Act. II. THE ALLEGED VIOLATION OF SECTION 8(a)(l) Various alleged violations are charged to more than one supervisor, and more than one witness testified to the same or similar violations. A representation petition was filed by the Union on June 13, 1966, and a copy was received by the Company on June 18 or 19. A consent election was held on August 5 with a tally of 23 votes for and 40 against the Union. On August 9 the Union filed timely objections, numbered 1 through 9; it thereafter withdrew objections 4, 6, 7, and 9. It was stipulated that on June 7 the Company received a telegram in which the Union recited that 10 employees composed an Organizing Committee. Of the seven wit- nesses called by the General Counsel, all except Mosley were among those named in the telegram. Remarks un- certainly placed by employee W. C. Mooney about the last of May or first of June and offered by the General Counsel as background outside the issues here suggest company knowledge of the Organizing Committee before the telegram; but we do not even know how long before the date of the telegram the committee was formed. W. C. Mooney, who apparently was and was regarded by the Company as the leader among the employees in the union campaign, testified that about June 1 (later, per- haps June 22, but certainly not about July 22 as alleged), Supervisor Lee asked him whether he was going to be another Hoffa and then, Supervisor Stapleton agreeing, warned that Mooney would wind up in the pen if he didn't leave the Union alone. Denying only that he had ever heard of Hoffa up to that time, Stapleton did not deny that he had joined in the warning. Lee made no denial of any of this. I find and conclude that both Lee and Stapleton unlawfully interfered by this warning and threat of im- prisonment because of union activities. After that earliest in point of time, Mooney testified that about the first of July (not the middle of the month as alleged), Lee asked him' whether a painter, McGee, was going to vote for the Union, and when Mooney replied that he didn't know, Lee would have to ask McGee, Lee replied that he had already done so and that McGee had answered in the negative. Lee was not asked about this; Stapleton was, and testified that he did not remember. Here were unlawful interrogation and admission of more, and I so find and conclude. More of this occurred later that day or the next, when Stapleton asked Mooney how he thought the Union would benefit the employees, Mooney replying that it would through representation and bargaining. Other instances occurred about the middle of June (not July). when according to Mooney's uncon- tradicted testimony Stapleton asked him how much money he was getting from the Union for his activities; and about the beginning of July, when Stapleton asked whether the Union was going to get in. Stapleton did deny that he had told Mooney that employee and commit- teeman Lott had turned but, whatever the violation, this was not alleged. Returning to Lee, Mooney testified that Lee told him that, because of the Union, he could not receive a 10-cent raise which was due him; this was neither alleged nor litigated. But Mooney later did testify, as alleged, that Lee told him that he would get a raise if the Union did not get in. I credit Lee's testimony that, in response to Mooney's question why the Company could not give him a raise, he replied only that its attorney had advised that no pay adjustments were to be made between the filing of the petition and the election; and I find no violation in that statement. On the other hand, Mooney's cousin, J. D. Mooney, testified without contradiction that Lee, while declaring that he could not promise him a raise, told him that he would make more money if the Union did not come in; and this promise I find and conclude was viola- tive. (I have not "overlooked" another statement, not al- leged as violative.) Not to miss any of the bases (at least to this point), ad- ditional interrogation is to be found in J. D. Mooney's un- contradicted testimony that a week or two before the election Lee asked him whether he was going to vote for the Union. Lee appeared to support employee Mosley's testimony that Lee had asked him how he thought the Union was going or doing; but on further questioning, Lee denied it. Whether or not Lee misunderstood is not clear; I make no finding on this. I am prepared to credit Plant Superintendent Higgin- botham's denial that he questioned employee Shoemake, and his version of the circumstances leading to their con- versation. But without detailing further and cumulative testimony, the violative interrogation already noted is clear, as is Plant Manager Craven's interrogation in the light of his uncertain recollection of his reference to "war" on the Company. In the face of Supervisor Brooks' denial, I make no credibility finding as to whether he asked employee Jones, a few weeks before the election, who "started" the Union. The threat alleged with respect to classification tests, failure to pass, and a consequent pay cut, was testified to by six employees for the General Counsel and three su- pervisors for the Company. I credit Lee's explanation that the references were to the Union making classifica- tions which would call for testing. These were not threats or warnings of action to be instituted by the Company. What appeared to be an admission by Stapleton and a failure to deny was explained and denied by him under further and persistent questioning. Brooks denied that he spoke to either Jones or J. D. Mooney concerning tests or classification beyond replying to questions and ex- plaining that at the Company's Birmingham plant a man must pass a test given by the Company in order to be clas- sified as a welder; that classification is based on skill, again the concern being classification under a union con- Here and elsewhere the interrogation was not of "groups of em- ployees " 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tract. I find and conclude that references to tests and possible failure and loss of pay occurred during conversa- tions concerning action by the Union and were not threats of company action. I credit employee Graham's testimony that Lee told him that the plant would probably be closed if the Union got in since it would be cheaper to make bodies in Bir- mingham than to ship the bodies there if union wages had to be paid at the Collins plant. I do not credit Lee's testimony that Graham merely asked whether the plant would ever amount to anything or be shut down and that he replied in the negative. Here was a further violative threat. "Union wages" are not fixed and would not neces- sarily be the same in Collins as in Birmingham so that the eventuality threatened would not necessarily, and cer- tainly not automatically, follow a union victory in the election. However we evaluate Stapleton's testimony that he merely explained that, when a strike was called in Houston in a plant where he was a member of an inde- pendent union, paid holidays and other benefits were lost, he did not even deny W. C. Mooney's testimony that Stapleton had warned that, if the Union came in, produc- tion standards would be set so high that they could not be met. Only where practice or experience is needed would it serve any useful purpose to continue to detail the allega- tions of threats and to analyze the testimony pro and con. The remedy cannot be seriously affected; nor should we encourage fragmentation or cumulation of allegations and proof. III. THE OBJECTIONS TO THE ELECTION The findings herein of interrogation and threats support objections 3 and 5 to conduct affecting the results of the election. By way of rendering full if unnecessary measure, brief reference will be made to the evidence concerning the other objections before us. In support of objection 1, several employees testified that on the day before the election Craven came around with a list of employees. From that point the testimony differed. According to W. C. Mooney, Craven promised him a raise if the U nion were voted down. Lott and Jones testified that Craven said that the Company could not promise a raise until the union business was settled, or that at that time there would be a raise, Aside from any question whether the latter statements, not contingent on defeat of the Union, would constitute interference with the election, employees Shoemake and Graham testified that there was no promise of increase and that Craven said that the Company would appreciate a confidential vote. I credit Craven's testimony that he did not speak to W. C. Mooney, that he told others that he wanted all to vote, and that, while he could not tell them how to vote, he would like them to vote in favor of the Company. The records show that there was a marked reduction in overtime throughout the plant in the week ending June 2,2 prior to the first showing, by a telegram from the Union, of company knowledge of union activities; and that dur- ing the pay period beginning 10 days after the telegram and thereafter, except for 1 or 2 weeks in the following month, the reduction in overtime was even greater, and that this continued after the election. The Company ex- plained that overtime was reduced because the backlog of work did not require it and also, as several of the General Counsel's witnesses testified that they were told at the time, because of a shortage of material. W. C. Mooney told us that, with that explanation, he was transferred to another line. It does not appear that overtime was stopped, as claimed, or reduced because of the union acti- vities.3 On the day of and shortly before the election, each em- ployee received his pay, from which $4.25 was deducted, together with a separate check in that amount and the fol- lowing notice: THIS CHECK REPRESENTS $4.25 OF YOUR MONEY. THIS IS THE ESTIMATED AMOUNT YOUR UNION WOULD LIKE TO TAKE OUT OF YOUR PAY CHECK EVERY MONTH, TO BE TURNED OVER TO THEM . . . THE UNION ! The amount of money in this envelope does not in- clude fines, assessments and other charges that the Union may desire you to pay. We have given these separate checks to you today so that you can more fully appreciate one of the issues involved in this election ... that Unions want money and they ex- pect to be paid by the employees. This Union cannot help our business. VOTE TO KEEP ALL THE MONEY YOU EARN FOR YOURSELVES AND YOUR FAMILIES. VOTE "NO" If we are inclined to ignore the fact that the objection filed is to the deduction and issuance of a separate check, and to consider the objection as addressed to the state- ment issued by the Company, we must at least note what the Company said. The Union urges that the statement was incorrect and misleading. We must first ask whether a statement of "the esti- mated amount" which the Union "would like to take" monthly is such a misstatement as would affect the out- come of the election even if there were no basis for the $4.25 figure. Rigby, the Union's International representa- tive, told us that only one local in his district, in Meridian, has monthly dues of $4.25; he does not know the dues paid in Birmingham; the dues are $3.75 in a local in New Orleans and one in Baton Rouge, both in his jurisdiction; and it was stipulated that the dues in Birmingham to which frequent reference was made in the plant, as we were told throughout the hearing, are $4.25 per month, except for June, when they were $5. Rigby was less than reliable when he testified that the $4.25 dues paid in his Meridian local are excessive. Under such circumstances I would not charge the Com- pany with misrepresentation when it declares that the ' Testimony elicited by the Union, which ignored the earlier drop in overtime and sought to connect it with the June 7 telegram served but to reflect on the credibility of several of the General Counsel's witnesses ' Lee's and Stapleton's position with the Company is not such that their alleged predictions concerning the amount of overtime after the election can be regarded as admissions of discriminatory reduction, nor were these alleged as violative FONTAINE TRUCK EQUIPMENT CO. 579 Union would like $4.25 monthly. In fact , if this local's dues are significantly lower, Rigby did not tell us that. He advised the employees at meetings and in a handbill dis- tributed on August 5 before the election and before4 the Company's notice and separate checks were distributed that, after being told of the International's per capita tax, they would fix their own dues. Neither with respect to the amount nor with respect to the Union's desire for dues in that amount do we have "material misrepresentations " or even "[e]xaggerations, inaccuracies, partial truths , namecalling, and false- hoods." 5 The reasonably accurate statement that the Union would like to take $4.25 out of the employees' check each month does not mention or imply that an em- ployee could be required to join the Union in Mississippi, a "right-to-work" State ; and it harmonizes completely with the fact that the Union could enforce a dues-paying requirement regardless of actual membership. That several employees were asked and testified that they are customarily charged 10 cents for each check cashed and that the second check on August 5 thus cost them 10 cents suggests that this is claimed to be a serious factor, or seriously claimed to be a factor affecting the election. As for future income, it is clear that diminution would be in the amount of the dues , without further deduction for a separate check , which the employees would not receive . It is hardly likely that the 10-cent ex- pense, where incurred, turned the employees against the Union or prejudiced them against the Company, which caused such expense; or that the conditions for a free choice were thereby impaired . The Company cites the Caressas case in support of its position. Without un- dertaking to compare the cases , I rely on the analysis above for decision on this objection. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Company , Fontaine Truck Equip- ment Company, Inc., its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing em- ployees by interrogation , threats, or promises of benefit in connection with union activities. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its place of business in Collins, Mississippi, copies of the attached notice marked "Appendix."7 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by the Company's representative, shall be posted by the Com- pany immediately upon receipt thereof , and be main- tained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 15, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.8 I FURTHER RECOMMEND that objections 3 and 5 to con- duct affecting the results of the election be sustained; that objections 1, 2, and 8 be overruled ; and that the election of August 5, 1966, be set aside and, upon request by the Union within 30 days immediately following compliance herewith by the Company , a new election be conducted in the appropriate unit here found, with application of the Excelsior Underwear8 and other relevant rules. 4 I would venture to assume , were that necessary , that the checks and the Company's notice were prepared on advice of counsel before the Union's handbill came to the Company 's attention. 5 The Trane Company (Clarksville Manufacturing Division), 137 NLRB 1506, 1508-09, cited by the General Counsel as "the case most analogous." 6 Caressa , Inc, 158 NLRB 1745 7 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 15 , in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " 9 Excelsior Underwear Inc., 156 NLRB 1236 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL NOT interfere with , restrain or coerce employees by interrogation, threats, or promises of benefit in connection with union activities. WE WILL NOT in any like or related manner inter- fere with , restrain, or coerce employees in the exer- cise of the right to self-organization, to form labor or- ganizations, to join or assist Shopmen's Local Union 702 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, or any other labor organization to bar- gain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mu- tual aid or protection, or to refrain from any or all such activities. All of our employees are free to become or remain, or to refrain from becoming or remaining , members of Shop- men's Local Union 702 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, or any other labor organization. FONTAINE TRUCK EQUIP- MENT COMPANY, INC. (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD If employees have any question concerning this notice Building (Loyola), 701 Loyola Avenue , New Orleans, or compliance with its provisions, they may communicate Louisiana 70113, Telephone 527-6361. directly with the Board's Regional Office , T6024 Federal