Ohio Sealer and Chemical Corp.

OHIO SEALER AND CHEMICAL CORP Ohio Sealer and Chemical Corporation and International Union , United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) Cases 9-CA-5219-2 and 9-CA-5263 April 30, 1970 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On December 30, 1969, Trial Examiner Fannie M Boyls issued her Decision in the above-entitled proceed- ing, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision She also found that the Respondent had not engaged in certain other unfair labor practices alleged in the com- plaint, and recommended the dismissal of such allega- tions Thereafter, the General Counsel filed limited exceptions to the Trial Examiner's Decision and a brief in support thereof 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 con- nection with this case to a three-member panel The Board has reviewed the rulings of the Trial Exam Iner 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 findings, conclusions, and recommendations of the Trial Examiner with the follow ing modifications The Trial Examiner found that the Respondent violat ed Section 8(a)(1) of the Act, as alleged in the amended complaint, when Supervisor Murray Tait told employee Ralph Strunks on October 3, 1969, that Strunks had not received a wage increase because of his "union activities in those meetings," namely his asking a particu- lar question of the Respondent's counsel who had appealed to the employees to vote against the Union No exception was filed to that finding The General Counsel excepted solely to the limited nature of the Trial Examiner's recommended remedy, which consisted only of a cease-and-desist order, including posting of a notice The General Counsel contends that Strunks should be made whole for any wage increase discrimina- torily denied him We find no merit in the General Counsel's exception As the Trial Examiner stated, the complaint, as amend ed, did not allege that Strunks was, in fact, discriminato rily denied a wage increase Moreover, the record fails to establish that he was denied an increase for the 245 reason given, and, in any event, the issue was not fully litigated We therefore find that the remedy recom- mended by the Trial Examiner, as modified herein, is appropriate for the only violation found, the making of a coercive statement ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and hereby orders that the Respondent, Ohio Sealer and Chemical Corporation, Dayton, Ohio, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as modified below I Delete from paragraph 1(a) the words "or in fact denying to any employee a wage increase for that rea- son " 2 Delete from the first indented paragraph of the notice the words "nor will we, in fact, deny a wage increase to any one for that reason " IT IS FURTHER ORDERED that those allegations of the complaint as to which no violations have been found be, and they hereby are, dismissed TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FANNIE M BOYLS, Trial Examiner This case, initiated by charges filed on June 11 and July 18, 1969, and a complaint issued on August 27, 1969, was tried before me in Dayton, Ohio, on October 13 and 14, 1969 The complaint alleges that Respondent violated Section 8(a)(1) and (3) of the Act It was amended during the course of the hearing to allege that Respondent had engaged in an additional violation of Section 8(a)(1) Respondent filed an answer to the complaint and to the amendment, denying that it had engaged in the unfair labor practices alleged Subsequent to the hearing counsel for the General Counsel and for Respondent filed helpful briefs, which have been carefully consid ered Upon the entire record in this case and from my observation of the demeanor of the witnesses as they testified, I make the following FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Respondent is an Ohio corporation, engaged at Day ton, Ohio, in the manufacture of asphalt and chemical sealers During the year preceding the issuance of the complaint, which is a representative period, Respondent sold and shipped directly from its Dayton plant to cus 182 NLRB No 36 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tomers outside the State of Ohio products valued in excess of $50,000. I find, upon these admitted facts, that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW (herein called the Union), is a labor organization within the meaning of Section 2(5) of the Act . 111. THE UNFAIR LABOR PRACTICES ALLEGED A. Setting and Issues On May 14, 1969, the Union filed a representation petition, seeking an election and certification as the bargaining representative of Respondent's employees. The Union won the election which was held on June 26 and was certified on July 7. During the preelection period, Respondent , through its attorney, William Trea- cy, made speeches to the employees in an attempt to persuade them to reject the Union at the polls. One of the issues presented is whether certain statements made by him were • privileged under Section 8(c) of the Act or were in violation of Section 8(a)(1) of the Act. Subsequent to the election one of the union leaders, Raybon Barrett, Sr., was discharged . As to him the issue is whether Respondent discriminated against him because of his prominence in the Union in assigning him duties not assigned to others and then discharged him for threatening to report the matter to the Union or whether , as Respondent contends , he was treated no differently than other employees in the assignment of duties and was discharged for threatening physical harm to Respondent's plant manager. Finally, there is presented the issue raised by the amendment to the complaint , whether Respondent violat- ed Section 8(a)(1) of the Act by telling employee Strunks, who was not in the bargaining unit but had supported the Union , that he was being denied a wage increase because of his union activities. B. The Alleged Coercive Statements Attributed to Respondent,'s Counsel Respondent's counsel, Treacy, came to the plant and addressed the employees upon several occasions shortly before the election. He told them in effect that his purpose in talking to them was to persuade them that the Union 'could be harmful to them and that they would be better off without the Union. The coercive statements charged to him were to the effect that (1) if the Union won the election, Respondent would start from the Federal minimum wage rate in bargaining with the Union, through Respondent's employees were already being paid substantially more than that, and (2) the employees could gain better working conditions by dealing individually with Respondent than the Union had been able to obtain in a contract with Protective Treatment, one of Respondent's competitors. With respect to the first allegation , Treacy credibly testified that his statements regarding the Federal mini- mum wage arose in the following manner: At one of the meetings an employee, Orville Graham, stated that he had heard from a union representative that if the Union won the election, Respondent could not legally insist on a contract which provided for less than the employees were getting before the election and therefore the employees would have nothing to lose by selecting the Union. The employee asked if this statement was true. Treacy replied that in his opinion it was not true because all the Employer was obligated to do as a matter of law was to start from the Federal minimum wage and that how high the wage figure got would depend on the relative strength of the parties. Treacy assured the employees, however, that no intelligent com- pany would consider lowering employees' wages because good help was too difficult to get and keep. He stated that as a result.of collective bargaining the employees might wind up with more than they had been receiving, they might wind up with about the same as they then had, or they might end up with less.' Treacy's version of his statements at the meeting on this subject are similar to those made by Respondent in a written state- ment of Respondent's position distributed to all employ- ees in the unit on June 24, 2 days before the election. I find nothing unlawfully coercive in the written state- ment and, even it be assumed that Treacy did not state Respondent's position as clearly at ' the meeting as it appears in the written statement and in his testimo- ny, the written statement would tend to assure the employees that Respondent had no intention of taking away from them any of the benefits they might have had merely because of their selection of the Union. I am not persuaded that Treacy's statements on this subject were unlawful. See TRW, Inc., 173 NLRB No. 223. A like conclusion is reached with respect to his state- ments regarding the contract with Respondent's competi- tor, Protective Treatment. According to employee Strunks, after Treacy had made the point that unions could break a company, employee Barrett mentioned that the employees of Protective Treatment were repre- sented by the Union and that that Company had not gone bankrupt or gone out of business. Treacy thereupon displayed what purported to be a copy of the Union's contract with Protective Treatment and started tearing it apart, item by item , and contending that Respondent's working conditions were better than those provided in the union contract. He stated that Respondent would be glad to do as well or better than Protective Treatment I The version of employees Strunks and Barrett regarding Treacy's statements on the subject of Respondent's bargaining obligations, though not given in the detail described above, were not inconsistent with Treacy's testimony They, too, testified that Treacy's statements were in response to an employee's question OHIO SEALER AND CHEMICAL CORP had done for its employees He told the employees that Respondent was not making any promises to them at that time because it could not legally do so, but asked the employees to have faith in Respondent's good intentions He stated that if the employees trusted Respondent, it would not be unfair to them Treacy's testimony regarding what he told the employees in com- paring their working conditions with those of employees of Protective Treatment is not substantially different from Strunks ' version Neither version , in my opinion, constitutes an invitation to the employees to deal directly with Respondent rather than through a union in order to obtain better bent;lts, as the General Counsel appar- ently contends In view of his analysis of the Protective Treatment contract which showed that Respondent was already doing as well or better for its employees than Protective Treatment, Treacy's statement that Respond- ent would be glad to do as well or better than Protective Treatment does not appear to constitute a promise of benefit hinging on the Union 's defeat at the polls I do not find Treacy 's statements taken in their context to be unlawfully coercive C The Alleged Discrimination Against Barrett Raybon Barrett , Sr, was hired by Respondent on November 14, 1968 , and worked as a mixer operator until his discharge on July 15, 1969 He was the most active union protagonist prior to the election and subse- quently was selected as a union committeeman Respond- ent acknowledges that it knew of his leading role in the Union at the time of his discharge Whether Respondent , on July 15, discriminated against Barrett by requiring him to adhere more strictly to shop policy in the performance of his duties than was required of other employees doing similar work and by discharging him for threatening to report the alleged discrimination to the Union , as the General Counsel contends , or whether, as Respondent contends , it treated Barrett no differently than the other employees and discharged him for threatening bodily harm to Plant Manager Durst , turns on issues of credibility I have no doubt that the version of Durst , rather than that of Barrett, regarding the events precipitating Barrett's discharge is the more accurate The mixer operation upon which Barrett worked was a two-man operation , with some free time afforded the operators between the running of the batches through the mixing machine Foreman Curtis was the immediate supervisor over the mixer operations but on July 15, he was filling in for the quality control man, who was on vacation , and was not physically in the area of the mixing machines Shortly after 4 p in on that day Plant Manager Durst walked through the area and observed that Barrett was not at his work station and that the floorman , Malone , instead, was assisting Bar- rett 's partner , Harbison, in operating the mixer Durst, after asking Harbison whether that was the normal way in which the machine was operated , went looking for Barrett but could not find him When Barrett did return to his work station, Durst asked where he had been 247 and Barrett replied that he had been to the newest building about 200 feet away Durst told him that Floor- man Malone should not have to help operate the mixer, that it was a two-man operation and that thereafter he wanted the man who sets up the batch to help the man on the mixing machine while the batch is being run and did not want Barrett to be off visiting Barrett denied that he had been visiting After Durst left , Barrett talked to the men on another mixer and ascertained from them that Durst had given them no instructions regarding the manner in which the mixer operation should be handled He decided that he had been singled out for special treatment and sent word to Durst that he wanted to talk to Durst When Durst arrived , Barrett was waiting for him near the water fountain , which is 8 or 10 feet from the outside door to the entrance hall which goes into the offices Barrett accused Durst of picking on him by singling him out to tell him how to run the mixer operation without giving the same instructions to the other operators Durst denied that he was picking on Barrett and stated that Barrett would have to perform his duties in the manner in which Durst had prescribed Barrett replied that he would not perform his work in that manner because the other men were not given similar instructions Durst, as he turned to leave , stated that Barrett would have to do as he was instructed to do or punch out and go home Barrett was very angry and his voice became increasingly louder as he told Durst that he would not follow instructions and would not punch out As Durst opened the door to the entrance hallway, Barrett told Durst, "I'd like to get you outside for 5 minutes and beat your brains out "2 Durst asked if that was a threat and Barrett replied , No That 's a promise But it doesn't make any difference You don 't have any witnesses "3 About a half hour later, Durst , after having consulted Respondent 's vice president , Pernush , and its counsel, prepared a discharge notice for Barrett and presented it to him in the presence of six other persons whom Durst had asked to accompany him The discharge notice was from Vice President Pernush and stated that Barrett was being discharged because of his "threat of bodily harm" to Plant Manager Durst On the basis of the above recited facts and the entire record, I have no doubt that Barrett was, indeed, dis 2 Barrett is about 6 feet 6 inches tall and weighs about 255 pounds Durst is shorter and weighs about 170 pounds 9 Except as to the threat described above there is no substantial dispute as to what took place on July 15 Barrett s version is that after Durst told him that he would have to follow instructions or punch out he replied that he would not punch out that Durst stated We II see about that that as Durst started opening the door Barrett said I in going to see my union man about this that Durst then asked if that was a threat and that Barrett replied No That s a promise I have credited Durst s testimony supported in substantial respects by the testimony of Gene B Tassie who was then working for Respondent as a chemist but at the time of the hearing was working elsewhere Roger Rhupert a laboratory technician and Claude Isenstem a chemist These three men who were h'svmg a conference in an office near the door had their attention arrested for loud voices outside the door and heard most of what was s ud after Durst opened the door 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charged because he had threatened bodily harm to Durst. Moreover, I find no basis for concluding that Durst was motivated by any antiunion considerations in instructing Barrett to stay on' the job and assist his partner throughout the time it was necessary to operate the mixing machine. Durst' on prior occasions had requested Supervisor Curtis to tell the men to stay on their jobs and Curtis had admonished employee Harbi- son to do so about a month prior to the incident here involved. The complaint must accordingly be dismissed insofar as it alleges any unlawful discrimination against Barrett. D. Respondent's Explanation to Employee Strunks That He Did Not Receive a Wage Increase Because of His I Union Activities Ralph Strunks, although paid on an hourly basis rather than on a salary basis as were other laboratory employ- ees, was classified by Respondent as a laboratory employee. He attended three union meetings and sought to vote in the election but his vote was challenged because his name was not on the voting eligibility list. The complaint was amended during the course of the hearing to include an allegation that Respondent had violated Section 8(a)(1) of the Act by telling Strunks on or about October 3, 1969 (subsequent to the issuance of the original complaint), that he had not received a wage increase because of his activities on behalf of the Union. The testimony leading to the amendment was opened up during the course of cross-examination of the witness as to whether he had any ill will toward the Company which had caused him voluntarily to give the National Labor Relations Board a statement regard- ing what Attorney Treacy had said in preelection speeches to the employees. It appeared from his testimo- ny that he did feel that he had not been treated right because of his failure to receive, a wage increase either at the time the employees in the bargaining unit received an increase or at the time the laboratory employees received one about 2 months earlier. Strunks had been asking for a wage increase about once a week for about 6 months, he testified. Most of the time his supervisor, Murray Tait, would tell him he could not do Strunks any good Once, in response to a question Strunks' addressed to Tait's superior, Joseph Greene, as to why he was not given a raise, Greene merely told him to keep his nose clean. On another occasion Tait told him that no adjustment in his wages could be made until after the completion of contract negotiations with the Union on the subject of wages so that Respondent would know what amount of money would be given generally. Finally, on October 3, a day or two after the union members had voted to approve a contract containing a provision for wage increases, Strunks, in the presence of Foreman Greene, again asked his supervisor, Murray Tait, why he had not been granted a wage ' increase since everyone else had received one. With respect to Tait's reply^on this occasion, Strunks s-credibly testified as follows: This is when he told me that it was because of my union activities in those meetings and the thing I had asked Mr. Treacy about if the Company broke the faith that he sold us on and we voted the Union out and the Company went against us would he come back and represent us since he had so much faith in them. and Murray [Tait] told me that it was a very rude and ignorant thing to have said to Mr. Treacy. And it made the Compa- ny very mad that I made that statement. That's the exact words he told me; it made the Company very mad. And if Murray Tait was here under oath he would tell 'ou that he said that. Neither Supervisor `Tait nor ' Foreman Greene, who was present when Tait allegedly made the statements above quoted, were called to'testify. I am convinced that Tait did make the statements attributed to him by Strunks. I credit Strunks, however, not only because his testimony is undenied but also because he impressed me as a sincere and honest person. Strunks' remarks addressed to Attorney Treacy in response to Treacy's appeals to the employees, in the preelection speeches, to have faith in the Company and vote against the Union were clearly union or concert- ed activities protected under Section 7 of the Act. Respondent's conduct was accordingly in violation of Section 8(a)(l) of the Act. CONCLUSIONS OF LAW 1. By telling an employee that he was being denied a wage increase given to other employees because of his activities in support of thet Union, Respondent inter- fered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1'). 2. The aforesaid unfair labor practice affects com- merce within the meaning of Section 2(6) and (7) of the Act. 3. A preponderance of the evidence does not support the allegations of the complaint that Respondent violated Section 8(a)(3) of the Act by discharging employee Bar- rett or violated Section 8(a)(1) of the Act except in the respect specifically found herein. THE REMEDY It having been found that Respondent engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act, my Recommended Order will require that it, cease and desist therefrom and take affirmative action normally required to remedy violations of the nature found. The question arises as to whether, in addition, Respondent should be required, under the order, to make employee Strunks whole for any wage increase which may have been discriminatorily denied him because of his union activities. I am not recommending that remedy for the following reasons: In the first place, the complaint does not allege that Strunks was in fact OHIO SEALER AND CHEMICAL CORP., discriminatorily denied a wage increase because of his union activities-conduct which would have been a viola- tion of Section 8(a)(3) as well as Section 8(a)(1)-but only that Strunks had been told that he was ;being denied an increase for that reason, in violation of Section 8(a)(1). In the second place, Supervisor Tait made the statement on or about October 3, only a day or two after the union members had voted to ratify the contract which their representatives had negotiated. The contract was not signed,until October 10-only 3 days, before the commencement of the hearing herein-and no evi- dence was adduced as to when the wage increases mentioned in the contract were to become effective. Despite what Strunks' immediate` supervisor told him, it is reasonable to expect, in view of the lack of any evidence of a general disposition by Respondent to engage in unfair' labor practices, that Respondent's top management and counsel will now see that Strunks does not suffer any financial loss because of his union activities. Finally, my Recommended Order will be sufficiently broad to preclude Respondent from continu- ing to deny Strunks a wage increase for discriminatory reasons, if it has in fact done so. On the basis of the foregoing findings of fact and conclusions of law and the entire record, there is issued, pursuant to 10(c) of the Act, the following: RECOMMENDED ORDER Respondent, Ohio Sealer and Chemical Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a), Telling any employee that he is being denied a wage increase because of his, -union activities or in fact denying to any employee a wage increase for that reason. (b) In any like or related manner interfering with, restraining , ' or coercing employees in the exercise of their rights guaranteed-under Section 7 of the Act. 2. Take the following affirmative' action necessary to effectuate the policies of the Act: (a) Post at its plant in Dayton, Ohio, copies of the attached notice marked "Appendix. "4 Copies of said notice, on forms provided by the • Regional -Director for Region 9, after being duly signed by Respondent's authorized representative, shall be posted by it immedi- ately 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 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings; conclusions,, recommendations, and Recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, 249 by Respondent to insure that,said notices, are not altered, defaced, or covered by any other material. (b) Notify said Regional Director, in' writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.5 Insofar as the complaint alleges violations of the statute not specifically found herein, it is'hereby dis- missed. i be adopted by the Board and become its findings; conclusions, and order; and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board " shall be changed to read "Posted Pursuant to a'Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director , in writing , within 10 days from the date of this Order what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT tell any:employee that he is being denied a wage increase because of his union activi- ties; nor will we, in fact, deny a wage increase to any one for that reason.: • WE WILL NOT in any like or related manner interfere with, restrain , or coerce our employees in the exercise of their right to engage in union .activities or other concerted activities for their mutual aid and protection. OHIO SEALER AND CHEMICAL CORPORATION Dated ' By (Employer) (Representative) , (Title) This is an official notice and must not be defaced by anyone ' 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. ' ' Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, Room 2407, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686.