Plasticoid Co.

PLASTICOID COMPANY Plasticoid Company and International Union of Dis- trict 50, United Mine Workers of America. Cases 5--CA-3688 and 5-RC-5806 November 8, 1967 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On June 13, 1967, Trial ExaminerJohn H. Eadie issued his Decision in the above-entitled con- solidated proceeding, finding that the Respondent had engaged in and was engaging 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 Deci- sion. The Trial Examiner also found that Respond- ent had not engaged in certain other unfair labor practices alleged in the complaint. In the represen- tation proceeding, the Trial Examiner found merit in certain objections filed by the Union. He there- fore recommended that the election be set aside and that another election be conducted. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief; the General Counsel filed cross- exceptions. 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, the cross-exceptions, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations2 of the Trial Ex- aminer, as modified below.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below and hereby orders that the Respondent, Plasticoid Company, Elkton, Maryland, its officers, agents, successors, and assigns, shall take the ac- tion set forth in the Trial Examiner's Recom- mended Order, as herein modified. Delete from paragraph 2(a) of the Trial Ex- aminer's Recommended Order that part thereof which reads "to be furnished" and substitute therefor "on forms provided...." IT IS FURTHER ORDERED that those portions of 168 NLRB No. 26 135 the complaint as to which no violations have been found are hereby dismissed. IT IS FURTHER ORDERED that the election con- ducted on January 26 and 27, 1967, in Case 5-RC-5806, be, and it hereby is, set aside. [Direction of Second Election4 omitted from publication. ] ' The Respondent excepts to many of the Trial Examiner 's credibility findings It is the Board's established policy, however , not to overrule a Trial Examiner's resolutions with respect to credibility unless, as is not the case here, the preponderance of all the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A 3) In the absence of exceptions thereto, we adopt pro forma the Trial Ex- aminer's findings that certain conduct committed by Respondent did not violate Section 8(a)(1) of the Act and that the Union's Objection 2 should be overruled 2 The General Counsel filed cross-exceptions to the Trial Examiner's failure to include in his Recommended Order and Notice to Employees "the broad language of prohibitions which normally accompanies the prohibition against specific acts and conduct " In our view, however, the Recommended Order is adequate relief for the unfair labor practices found 9 The Trial Examiner found that Foreman Roach's remark to employee Luebke, "I hear you are mixed up in union activity" was tantamount to in- terrogation and therefore violative of Section 8 (a)(1) of the Act Whether or not this remark is viewed as interrogation , we find that it was neverthe- less of such a character as to create an impression of surveillance, and we therefore adopt the Trial Examiner's conclusion that it was violative of 8(a)(1) 4 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 5 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 file 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 . Excelsior Underwear Inc, 156 NLRB 1236. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN H. EADIE, Trial Examiner : This proceeding was held before me in Elkton , Maryland , on April 27 and 28, 1967, on the complaint of the General Counsel and the answer of Plasticoid Company, herein called the Respondent.' The complaint alleges violation of Section 8(a)(1) of the Act. The Respondent 's answer admits the jurisdictional allegations of the complaint , but denies the commission of any unfair labor practices . After the con- clusion of the hearing the General Counsel and the Respondent filed briefs. Upon the entire record in the case and from my obser- vation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Maryland corporation . It is en- ' Charges in Case 5-CA-3688 were filed on January 25 and March 2, 1967 The complaint issued on March 15, 1967 By order dated March 31, 1967, the Regional Director for Region 5 consolidated Case 5-RC-5806 with Case 5-CA-3688 Z\ 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaged in the manufacture and sale of pharmaceutical rubber products at its plant located in Elkton, Maryland. During the year preceding the date of the complaint herein, the Respondent sold and shipped merchandise valued in excess of $50,000 directly to points and places outside the State of Maryland. During the same period of time it received at its Elkton plant goods valued in excess of $50,000 and shipped directly from points located out- side the State of Maryland. The complaint alleges, the Respondent's answer ad- mits, and I find that the Respondent is engaged in com- merce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED International Union of District 50, United Mine Work- ers of America, herein called the Union, is a labor or- ganization which admits to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES The Union filed with the Board a petition for certifica- tion on November 23, 1966. A hearing in the representa- tion matter was held in Elkton on or about December 20, 1966. Pursuant to a stipulation for certification upon con- sent election, approved December 22, 1966, an election was held among the Respondent's employees on January 26 and 27, 1967. Due to the filing by the Union of the original charge in Case 5-CA-3688 on January 25, 1967, the ballots were impounded and not counted until March 14, 1967. The tally of ballots shows that there were ap- proximately 135 eligible voters; that 51 employees cast their votes for the Union; and that 75 cast their votes against it. The Union held its first meeting for employees about the middle of October 1966, at the home of Reba Cassell, a former employee of the Respondent. Employee Donald Curfman attended the meeting. That same day after the meeting Foreman Ira Badgett spoke to Curfman. Badgett said, "Heard you had a union meeting today." When Curfman answered to the effect that he did not know what Badgett meant, Badgett said, "You know what I mean.... Curfman, just between me and you, you are getting yourself out on a limb."2 It is found that Badgett's statements constitute inter- ference, restraint, and coercion. Employee Perry Luebke worked on the shift from mid- night to 8 a.m. under Foreman James Roach. About the middle of November 1966, Roach called Luebke to his office. Roach referred to the union activity in the plant and advised Luebke "not to get mixed up into it" as it could "cause a loss of a job." Roach explained that several years before a union had tried to organize the plant and that employees lost their jobs by being replaced when that union called a strike. About 2 weeks before the election Roach had another conversation with Luebke. Roach said, "I hear you are mixed up in union activity; for your sake I hope it is not true as it could cost you your job. It could be costly to you." In this connection Roach explained that the Union would cost the employees "all the way around" because of dues and loss of wages in the event of a strike, and that employees had been replaced in their jobs during the prior strike.3 It is clear from Luebke's testimony that Roach did not threaten him with reprisals because of his union activity, and that Roach's remarks in this connection were con- fined to the possibility of a strike being called by the Union. However, I find that Roach's remark about Luebke's being "mixed up in union activity" is tan- tamount to interrogation4 and violative of Section 8(a)(1) of the Act. Employee Romie Joiner testified that on or about Sun- day, January 8, 1967, he attended a meeting of the Union at Cassell's home which was located about 2-1/2 miles from the center of Elkton; 10 or 12 employees, including Luebke and employee Robert Sizemore, went to the meeting in about five automobiles which were parked in front of Cassell's house; between I and 2 p.m. while the meeting was being held, Sizemore said, "There goes Badgett"; he and two or three others looked out of the window; he saw Badgett in a dark blue or green 1950 or 1951 Ford pickup truck, proceeding at the rate of about 25 or 30 miles per hour; Badgett looked toward the house as he passed; and Badgett returned about 30 minutes later and again looked in the direction of the house as he drove by. Badgett testified that he had a 1954 green Ford pickup truck; he had not used it for about 6 months prior to the hearing herein because it would not start; he also had a 1955 blue Chevrolet pickup truck; he did not drive that truck or any other truck past Cassell's home during January 1967; he did not know where Cassell lived; and he had not been on the road on which Cassell's home was located in more than a year. Russell Jones testified that he was a mechanic; he lived "across the road" from Badgett; Badgett had a 1954 green Ford pickup truck; the truck was "out of commission" for 5 or 6 months before the hearing herein; he and Badgett worked on the truck changing the motor and installing a new voltage system; and during this time the truck was parked in the driveway beside Badgett's home. As related above, Joiner testified that Luebke and Sizemore were present at this union meeting. Although both appeared as witnesses , neither gave testimony in this connection. The testimony of Jones, whom I credit, sup- 2 Curfman testified credibly to the above. Badgett denied the remarks attributed to him by Curfman His denial is not credited. 3 Luebke testified to the above conversations Roach denied talking to Luebke about the Union in his office or threatening him with loss of his job if he engaged in union activity. Concerning a conversation with Luebke about the Union, Roach testified as follows: I was over there working , and Perry come over to me, and he started helping me He said to me, "Quite a bit of activity going on around here." I said, "Yes, there is " He said, "Well, I hope this thing turns out okay, because I was mixed up in one before, at the America Stores, and I lost five weeks' time, and I hope it don't happen again, because at this time I am going to start to buy a house, and I couldn't afford it." I said, "Well, these things can be very costly." I also said to him, "I would like you to do me a favor, and that is to tell your wife to tell these people she has been telling gossip , as I call it, not to say I am over here trying to buy off anybody by offering them money not to vote for the union , because it isn't so, and I would like you to tell her that." Luebke admitted that during the conversation in January Roach men- tioned his wife's gossip. I credit the testimony of Luebke. 4 Luebke testified that he did not wear any union buttons on his work clothes PLASTICOID COMPANY 137 ports that of Badgett. Under the circumstances, I find that the General Counsel has failed to sustain the burden of proving surveillance by the Respondent. Joiner testified that during about December and Janua- ry "a couple of times ... seven, eight, nine, ten, .. . maybe more" Roach came to his place of work and asked him how the Union was "making out"; and that he replied that he did not know. Roach at first admitted that he had asked Joiner how the Union was "making out." He then testified to the effect that about 2 weeks after the election he asked Joiner if he knew "how the election turned out," and denied that he had questioned Joiner about the Union before the election. I credit the above testimony of Joiner and find that Roach's interrogation was violative of Section 8(a)(1) of the Act. Badgett was foreman over the shift from 4 p.m. to mid- night. The employees on this shift had a lunch period of 15 minutes, starting about 8 p.m, They ate in a group near the timeclock where there was a bench. Usually the em- ployees began their lunch period some few minutes be- fore 8 p.m. About 3 or 4 weeks before the election during the lunch period, employee Rufus Jewell, referring to a union pamphlet, said that he was not too good at reading and asked Sizemore to read it to him. About 10 or 12 em- ployees, including Badgett, were present at the time. As Sizemore started to read the pamphlet, Badgett said, "Put it away. You are on company time." Sizemore said, "Ain't this 15 minutes ours?" Badgett answered, "The company is paying for it, and it is company time."5 It is undisputed that both Roach and Badgett dis- tributed and explained to employees the Respondent's campaign literature during working time. Also, there is no evidence that the Respondent at any time objected to the practice of the employees in starting their lunch period before 8 p.m. In fact, it appears that the employees and their foreman have simply appropriated to themselves, with management's acquiescence, more nonworking time for the purpose of eating. There can be no question but that the employees had a right to engage in union activity during their free time. Other than the above testimony, there is no evidence that the Respondent had any rule against union solicitation or activity. However, assuming that the Respondent had such a rule and accepting Badgett's reason for not permitting the employees to read the union pamphlet before 8 p.m., then it would appear that the Respondent discriminatorily applied its rule. Under the circumstances, I find that Badgett's conduct was violative of Section 8(a)(1) of the Act. During or about the early part of January 1966, Badgett was talking to a group of about four employees. He said, "If the union did get in, as small as the plant was, we would probably work two or three months and probably close down and move away." Employee Larry Jones overheard the remark and said, "If they took all the machinery with them, they would have to take us with them." Badgett replied that this would not be so if the Respondent "moved across the Delaware line."6 It is found that Badgett's statement was violative of the Act since it threatened the employees with reprisal if they adhered to the Union. Shortly before the election Badgett had a conversation with Jones about production. He told Jones that the "mix- ers" were not "putting out enough" production; and that if the Union got in the plant, "production would be set" and the employees "would have to meet it."7 I find that Badgett's statement was violative of Section 8(a)(1) of the Act. Employee Ronald Hughes worked on the 4 to 12 shift under Badgett. Hughes wore a union badge before the election. Shortly after the election he had a conversation with Badgett. Badgett asked him why he wanted the Union in the plant. Hughes replied that he wanted the Union "for higher wages and job security." Badgett then said, "Job security? If the union were to come in, . . . if you made three mistakes over on the job, I could write you up for each one and you could be fired for it.. . . You could write me up like that if I put you on a job you weren't supposed to be on."8 Since Hughes was an open adherent of the Union, I do not believe or find that Badgett's interrogation was viola- tive of the Act. Further, taking Badgett's statement as a whole, I do not believe that it constitutes a threat of reprisal. IV. THE REPRESENTATION CASE The objections to conduct affecting the results of the election which were filed by the Union are: Objection 1 On various dates in October through November 1966, and on or about January 19, 1967, at company plant, Foreman Ira Badgett interrogated employees about their union activities and desires and threatened them with reprisals if they joined or supported the Union. Objection 2 On or about November 27, 1966, the said Foreman Ira Badgett engaged in surveillance of a meeting of em- ployees and union representatives held in or near Elkton, Maryland. 5 Curfman and Sizemore testified credibly to the above Badgett ad- mitted that he had told the employees "to put the pamphlet away " He de- nied saying that the 15 minutes was company time or telling the em- ployees that they could not read or pass out leaflets during that time He testified that the conversation took place about 7 56 p in., and that "95 percent of the time" the employees were in the habit of starting their lunch period from 5 to 9 minutes before 8 p.m. Badgett testified to the effect that it would have been "all right" to read the union pamphlet after 8 p.m. but not before 6 Curfman and Jones testified credibly to the above. Curfman testified to the effect that he was not present during the entire conversation but that as he approached the group he heard Badgett make the above statement about moving to employees Rufur Jewell and Marvin Osborne Badgett testified that Jewell started the conversation by asking him if the Respond- ent could "sell" its plant, and that he replied, "I couldn't tell you what they could do, whether they could sell or not, or move as far as I know they couldn't move " Badgett denied the statements attributed to him by Curfman and Jones His denials are not credited ' The above statement of Badgett is based upon the credited testimony of Jones. Badgett denied talking to Jones about the Union His denial is not credited. 8 Badgett did not deny the above statements attributed to him by Hughes 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Objection 3 On or about various dates in December 1966 and January 1967 , including but not limited to December 8, 1966, and January 12, 19, 23, 24, and 29 , 1967, at com- pany plant, Foreman Tommy Roach interrogated and threatened them with reprisals if they joined or supported the Union. Objection 4 From on or about October 6, 1966, until on or about January 19, 1967, the Company discriminatorily applied its no-solicitation rule by forbidding employees to discuss the Union on company property during nonworking time. It has been found above that during the period from November 23, 1966, through January 27, 1967, inclu- sive, Roach and Badgett engaged in conduct violative of the Act. Specifically, the findings involved interrogation of employees concerning their union sympathies and ac- tivity, threats of reprisal because of such activity, and prohibition of union activity on company property during the employees' free time. Accordingly, it will be recom- mended that the Union's Objections 1, 3, and 4, which cover the above conduct, be sustained; and that Objec- tion 2 be overruled. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respond- ent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 2. By interfering with, restraining , and coercing its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 4. Between November 23, 1966, and January 27, 1967, inclusive , the Respondent engaged in conduct in- terfering with its employees' freedom of choice in select- ing a bargaining representative , and such conduct war- rants setting aside the election. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclu- sions of law, and upon the entire record in the case, I recommend that the Respondent, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from interrogating its employees concerning their membership in or activities on behalf of the Union, making threats of reprisal because of such ac- tivity, and prohibiting its employees from engaging in union activity on company property during nonworking time. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Post at its plant in Elkton, Maryland, copies of the attached notice marked "Appendix."9 Copies of said notice, to be furnished by the Regional Director for Re- gion 5, after being duly signed by the Respondent or its authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 5, in writ- ing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. 10 Upon the basis of the applicable findings of fact and conclusions of law, and upon that part of the entire record pertinent to the objections in Case 5-RC-5806, it is recommended that Objections 1, 3, and 4 be sustained; that Objection 2 be overruled; that the election held on January 26 and 27, 1967, be set aside; and that another election be conducted. 9 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." 10 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Re- spondent has taken to comply herewith." 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 interrogate our employees concern- ing their membership in or activities on behalf of In- ternational Union of District 50, United Mine Work- ers of America, or of any other labor organization; make threats of reprisal because of such activity; or prohibit our employees from engaging in union ac- tivity on company property during nonworking time. All our employees are free to become, remain, or PLASTICOID COMPANY 139 refrain from becoming or remaining , members of any This notice must remain posted for 60 consecutive labor organization . days from the date of posting and must not be altered, defaced, or covered by any other material. PLASTICOID COMPANY, INC. If employees have any question concerning this notice (Employer) or compliance with its provisions, they may communicate directly with the Board's Regional Office , Sixth Floor, Dated By 707 North Calvert Street , Baltimore, Maryland 21202, (Representative) (Title) Telephone 752-8460, Extension 2100.