GTI Corp.

252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Clover Industries Division of GTI Corporation and TRIAL EXAMINER'S DECISION Textile Workers Union of America, AFL-CIO. Cases 3-CA-3724 and 3-CA-3805 January 29, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On September 21, 1970, Trial Examiner Max Ro- senberg issued his Decision in the above-entitled pro- ceeding, finding that Respondent did not engage in certain unfair labor practices and recommending that the complaint be dismissed in its entirety. Thereafter, the Charging Party filed exceptions to the Trial Examiner's Decision and a supporting brief, and Re- spondent filed an answering 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 preju- dicial error was committed. The 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 recommendations of the Trial Examiner. ORDER STATEMENT OF THE CASE MAX ROSENBERG, Trial Examiner : With all parties repre- sented, this consolidated proceeding was tried[before me in Buffalo, New York, on August 17 and 18, 1970, on an amended complaint of the General Counsel of the National Labor Relations Board and an amended answer filed there- to by Clover Industries Division of GTI Corporation, herein called the Respondent.' Joined with the complaint are ob- jections to an election conducted by the Board in Case 3-RM-421 among an appropriate unit of Respondent's em- ployees on March 7, 1969, which were lodged by Textile Workers Union of America, AFL-CIO, herein called the Union, and which the Regional Director for Region 3 con- solidated for hearing with Cases 3-CA-3724 and 3-CA- 3805? At issue is whether Respondent violated Section 8(axl), (3), and (5) of the National Labor Relations Act, as amended, by certain conduct to be detailed hereinafter. All parties were afforded full opportunity to present evidence, to examine and cross-examine witnesses, to argue orally at the close of the hearing, and to file briefs. Briefs have been received from the Respondent and the Charging Party, which have been duly considered. On consideration of the entire record, including the briefs filed with me, and on my observation of the demeanor of each witness while testifying, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS I THE BUSINESS OF THE EMPLOYER Respondent, a corporation duly organized and existing under the laws of the State of Rhode Island, maintains its principal office and place of business in Meadville, Pennsyl- vania. It also maintains and operates facilities in other States, including a plant located in Tonawanda, New York, which is the only facility involved in this proceeding and which is engaged in the manufacture, sale, and distribution of molded plastic products and formed metal enclosures. During the annual period material to this proceeding, Res- pondent in the course and conduct of its business operations manufactured, sold,, and distributed at the Tonawanda plant products valued in excess of $100,000, of which prod- ucts valued in excess of $50,000 were shipped from said Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. ' The Charging Party excepts to the Trial Examiner's severance of a related objections case, 3-RM-421, which had been consolidated with these cases by the Regional Director. Though the Charging Party had, as the Trial Examiner noted, disclaimed any interest in another election , it would have been better practice for the Trial Examiner to permit the litigation of the objections in the consolidated proceeding , because a bargaining order could have been issued only if the election had been set aside upon meritorious objections. See Irving Air Chute Co, Inc, Marathon Division, 149 NLRB 627. However, no prejudice resulted to the Charging Party, as we find herein, in agreement with the Trial Examiner, that the evidence fails to establish that Respondent has violated any section of the Act upon which a bargaining order could be predicated. We also note that the Board has this day issued its Decision and Certification of Results of Election in Case 3-RM-421 (not published in NLRB volumes) adopting the Regional Director's recommenda- tion that the objections be overruled. In view of the above circumstances, we find no meet in the Charging Party's exception i The amended complaint, which issued on June 10, 1970, is based on charges and amended charges filed and served in Case 3-CA-3724 on March 12, 21, and 29, 1969, and charges in Case 3-CA-3805 which were filed and served on June 18, 1%9. 2 Unless otherwise indicated, all dates herein fall in 1969. 3 On January 27, the Union requested that Respondent recognize the former as the exclusive representative of all production and maintenance employees, including toolroom and stockroom employees , at its plant in Tonawanda, New York. On January 30, Respondent filed its petition in Case 3-RM-421 seeking an election in that unit. Thereafter, on February 18, the parties entered into a Stipulation for Certification Upon Consent Election. The election was conducted on March 7, and the Union lost by a vote of 38 to 30. On March 11 , the Union filed a series of objections to the conduct of this election which were consolidated for hearing by the Regional Director with the charges in Cases 3-CA-3724 and 3-CA--3805 on June 10, 1970. At the hearing, the Union stated that it had no desire to proceed to another election in the immediate future even were Ito sustain the objections, set the election aside, and order a new balloting . The Union thereupon acquiesced in the undersigned Trial Examiner's suggestion that, for administrative con- venience, Case 3-RM-421 should therefore be severed and remanded to the Regional Director's docket for such further action as he might deem advisa- ble. The Trial Examiner having ordered such severence , the issues raised by the objections are no longer before him in this proceeding. 188 NLRB No. 36 CLOVER INDUSTRIES DIV. OF GTI 253 plant directly to States of the United States other than the State of New York. The complaint alleges, the answer ad- mits, and I find, that the Respondent is an employer en- aged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED It is undisputed and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Contentions The complaint alleges that, during the first week in Feb- ruary, Respondent, by its Foreman Edward Kasprzak, cre- ated the impression' among its employees that it was keeping under surveillance their union activities , and stated to its employees that they must remove union buttons and other insignia from their clothing, all in violation of Section 8(a)(1) of the Act. The coin laint further charges that, be- tween February 20 and March 15, Respondent violated Section 8(a)(3) by discriminating against part-time employ- ees Martha Felton, Rita Trybuszkiewicz, Donna Gierke, and Marie Stenzel in that they were provided with less employment than they normally would have received had they not joined or assisted the Union. Finally, the complaint alleges that Respondent refused to bargain with the Union since January 27 in violation of Section 8(aX5). For its part, Respondent denies the commission of any labor practices proscribed by the Statute. B. The Alleged Violations of Section 8(a)(1) Alice Pietrowski worked for the Respondent for approxi- mately 4 years prior to the termination of her employment in June 1970. She testified that, in early February, she was employed as a punch press operator under the supervision of Foreman Kasprzak and at some previous date had execu- ted a union authorization card. Pietrowski declared that she had been a life-long friend of Kasprzak's and that they had frequently conversed and joked while at work. On an occa- sion during the first or second week in February, Pietrowski broached the subject of "blue cards" which had reference to the union authorization designations. In a jocular vein, Kasprzak told Pietrowski that the company had the blue cards in their possession," and that "he heard some of the Is were going back in and asking for their cards back." Pietrowski informed Kasprzak that she disbelieved him and the matter was dropped. During the same period, Pietrowski and her fellow em- ployees wore two Union buttons while at work, one large and one small. Kasprzak approached Pietrowski at her work station where she was operating the punch press and ad- vised her to remove the larger insignia which measured some 3 inches in diameter. According to Pietrowski, this advisory was prompted by the circumstance that this button "was pretty bid" and Kasprzak "told me to take it off for safety reasons. Pietrowski further testified that she had no objection to the removal of the large insignia, and that she and her coworkers continued to display the smaller buttons on their persons without interference by the foreman. In his testimony, Kasprzak readily admitted that he in- structed Pietrowski to remove the large button. In his words, "I just asked her to remove it and it seems to me as though it would be dangerous around the machines because they operated punchpresses which have air guards in the front of them. It appeared to be at the time that it could be caught in the air guard. So I don't know if I explained all that to her at the time, but I did mention it was a safety factor." Kasprzak further testified that he similarly advised other employees who worked on the same equipment , but permit- ted them, as well as Pietrowski, to continue to wear the smaller insignia. On the record before me, I find and conclude that what- ever passed between Pietrowski and Kasprzak in early Feb- ruary regarding the "blue cards" did not tend to coerce her or her fellow employees in the exercise of their rights under Section 7 of the Act. Pietrowski and Kasprzak were very close friends who frequently spoke to each other at work and joked about various matters . Pietrowski conceded that Kasprzak's reference to Respondent's possession of the un- ion authorization cards was made in jest and that she did not actually believe that this was so . Accordingly, I shall dismiss this allegation from the complaint .4 Nor am I convinced that Respondent offended the prov- isions of Section 8(axl) by Kasprzak's instruction to Piet- rowski to remove the large union button which she was wearing while operating the punch press. The evidence is conclusive that the directive stemmed from Kasprzak's con- cern that Pietrowski might inure herself by wearing this insignia on her work attire, and that Pietrowski was allowed to adorn herself with a smaller button . To be sure, employ- ees possess the Statutory right to wear union insignia during working time as a legitimate union activity, and an employyer's interference with this right is generally unwar- ranted.5 However, where it is established by probative evi- dence that the curtailment of this prerogative is necessitated by the exigencies of plant discipline or safety, the right lawfully must yield to the directive.6 I therefore find and conclude that Respondent did not violate Section 8(axl) by Kasprzak's instructions to Pietrowski to remove the union button from her person. C. The Alleged Violations of Section 8(a)(3) Marie Stenzel had worked for Respondent as a part-time employee for approximately 8 years . In this capacity, she was employed on a "call-in basis," by which is meant that she was summoned by Respondent whenever her services were needed . On January 21, Stenzel signed a union author- ization card. She testified that, in February, while she was employed on a part-time basis as a gasket assembler, her hours of work were reduced without prior notice, and that she had never previously experienced such a reduction. On cross-examination, Stenzel was asked again whether the hours of work had ever fluctuated for part-time workers, to which she then replied, "I guess so. I really-I don't recall." Moreover, she could not recall whether any official of Res- pondent informed her that her working Hours would be reduced commencing in February, or whether any official assigned a reason to her therefor. When uestioned as to whether Respondent told her that she would suffer a reduc- tion of hours because she had joined the Union , the witness responded, "No, definitely not." The parties stipulated that, if Martha Felton, Rita Trybuszkiewicz, and Donna Gierke were called to the stand to testimonially report on this issue, their testimony would parallel that rendered by Stenzel. Richard Bailey is the general manager for Respondent. 4 See Bauer Aluminum Company, 152 NLRB 1360, 1364-66. 3 See Republic Aviation Corp v. N LR B., 324 U. S. 793, 801-03. 6 See Fabra-tek, Inc v. NLR. B., 352 F. 2d 577, 585. 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He testified that, beginning in the Fall of 1967, his gasket assembly contractors proved unable to supply Respondent with the needed products, in consequence of which it was determined that Respondent would fabricate these items in its plant. Inasmuch as this work was sporadic , with volume constantly fluctuating, a decision was made to hire house- wives on a limited or part-time basis . Initially, 13 women were placed on the employment rolls but, by early 1969, the number was deescalated to five or six. Beginning on or about February 22, Respondent experienced a shortage in customer orders and this happenstance caused Bailey to cut down the number of hours worked by the part -time gasket assemblers. Toward the end of March , business picked up and the part-time assembly work resumed at its former pace. Bailey further testified that Respondent 's part-time employees had experienced a reduction of work hours on other occasions in the plant . Bailey's testimony stands es- sentially uncontradicted and I find the facts as he related them. The General Counsel asserts in his complaint that Res- ndent reduced the hours of work of part-time employees Menzel, Felton, Trybuszkiewcz, and Gierke because they joined or assisted the Union or otherwise engaged in pro- tected, concerted activities. All that the General Counsel has established is that Stenzel, and by virtue of the stipula- tion, Felton, Trybuszkiewcz, and Gierke, signed union de- signations on January 21. However , the record is totally devoid of any evidence that the Respondent was even re- motely aware that these women had cast their lot with the Union. Proof of discriminatory motivation must be made of sterner stuff. Accordingly, I find that, although Respondent shortened the hours of part-time work for these individuals during the period from February 22 to the end of March, this alteration in their working conditions was not prompted by statutorily proscribed considerations. I therefore con- clude that Respondent did not violate Section 8 (a)(3) by the foregoing conduct, and I shall dismiss this aspect of the complaint. D. The Alleged Violation of Section 8(a)(5) Sometime prior to January 27, Respondent embarked on an organizational campaign to enlist the collective support of all production and maintenance employees, including toolroom and stockroom personnel, at Respondent's plant in Tonawanda, New York. As heretofore chronicled, on the above date the Union demanded that Respondent accord that labor organization recognition as the exclusive bargain- ing agent for the unit employees. This demand was count- ered by the filing of Respondent's representation petition with the Board in Case 3-RM-42 1. In the resultant election held on March 7, the Union was defeated by a vote of 38 to 30. At the hearing herein, the General Counsel sought leave to authenticate the authorization cards signed by more than 50 employees in order to demonstrate that the Union in fact represented a majority of the employees prior to the election and that, because of Respondent's engagement in a series of unfair labor practices which occurred -before the ballot- ing, Respondent dissipated the Union's majority and so coerced and intimidated the voters that their unfettered electoral sentiments could not be expressed in another elec- tion. This foray was designed to extract from the under- signed Trial Examiner an affirmative order by which Respondent would be required to bargain collectively with the Union without recourse to the conduct of another vote, with the General Counsel placing reliance for such an order on the Supreme Court's decision in N.L.R.B. v. Gissell Pack- ing Company.7 In that case, the Court observed that the Board possessed the power to issue a bargaining order to redress unfair labor practices which were ' so coercive that, even in the absence of a Section 8(a)(5) violation, a bargain- ing order would have been necessary to repair the unlawful effect" of them. The Court also noted that a bargaining order would also be warranted "in less extraordinary cases marked by less pervasive practices which nonetheless still have a tendency to undermine majority strength and im- pede the election processes."s Pursuant to the General Counsel's responses to a pretrial motion for bill of particulars filed by Respondent, it became manifest at the hearing that the only 'pervasive" unfair labor practices on which the General Counsel intended to rely were bottomed on Kasprzak's single alleged act of cre- ating the impression that Respondent had surveilled the union activities of its employees when he spoke to Pietrow- ski in early February about "blue cards ;" Kasprzak's single instruction to Pietrowski advising her to remove the large union button from her person; and, Respondent 's allegedly discriminatory reduction in the working hours of four part- time gasket assemblers between February 22 and the end of March. Convinced as I was that, under the teachings of Gissell, the General Counsel's pleadings , even if deemed proven by the evidence , would not warrant issuance of an affirmative bargaining order, I foreclosed the submission into evidence of the above-mentioned union designations. This action was predicated on my view that Respondent's activities fell within "a third category of minor or Tess exten- sive unfair labor practices, which because of their minimal impact on the election machinery will not sustain a bargain- ing order." Accordingly, I adhere to my ruling made at the hearing and conclude that, assuming that Respondent com- mitted the violations set forth in the General Counsel's com- plaint, they were not broad enough in scale to sustain the issuance of a bargaining order under Section 8(a)(5).1° Inasmuch as I have heretofore found that Respondent did not engage in the violations of Section 8(a)(1) and (3) of the Act as alleged in the complaint, I find and conclude on this alternate ground that Respondent did not violate Section 8(a)(5) of the Statute. I shall therefore recommend that the complaint be dismissed in its entirety." CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in and is not engaging in violations of Section 8(a)l), (3), and (5) of the Act. RECOMMENDED ORDER It is hereby ordered that the complaint herein be, and it hereby is, dismissed in its entirety. 7395 US 575. s 395 US. 575, 615. 9lbid at p. 614. 10 Central Soya of Canton , Inc., 180 NLRB No. 86. 11 At the hearing, and again in its brief, Respondent moved to dismiss the alleged violation of Section 8(ax5) for the reason that the General Counsel indulged in "procedural irregularities" regarding the processing of the charges in Case 3-CA-3805. In view of my findings and conclusions herein made on substantive grounds that Respondent did not violate this Section, I deem it unnecessary to pass on this motion.