Engineered Steel Products, Inc.

298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Engineered Steel Products. Inc. and International Un- ion, United Automobile, Aerospace & Agricultural Implement Workers of America , UAW. Case 10- CA-8269-1 January 30, 1971 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On September 15, 1970, Trial Examiner Harry R. Hinkes issued his Decision in the above-entitled pro- ceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the Charging Party filed exceptions to the Trial Examiner's Decision and 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 preju- dicial 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 the case, and hereby adopts the findings,'conclusions, and recommendations of the Trial Examiner as modified below. We find, in agreement with the Trial Examiner, that Johnnie Womble was discharged for his excessive ab- senteeism and not because of his union activities. However, we do find, contrary to the Trial Examiner, the Shop Superintendent Love's interrogation of em- ployees Curtis Stewart and Lenoris Womble was coer- cive and did restrain and interfere with the employees in the exercise of their rights guaranteed by the Act. The Trial Examiner found that when Love first learned of the Union's organizational campaign and that employee Curtis Stewart was behind the union effort, Love admittedly asked Stewart "how he felt about the Union." Love also asked Lenoris Womble, another employee whose son Johnnie had been dis- charged for cause 2 days earlier, how he felt about the Union and if he signed a "Union card." However, the Trial Examiner found that the interrogation by Love i The Charging Party excepts to certain credibility findings made by the Trial Examiner. It is the Board's established policy, however, not to overrule a Trial Examiner's credibility findings unless a clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, Inc 91 N.RB 544, enfd. 188 F.2d 362 (C.A. 3). We find no basis for disturbing the Trial Examiner's credibility findings in this case occurred in a background free of employer hostility to union representation, was not systematically carried out, and, with respect to the questioning of Womble, Sr., about signing a card, contained no implied threat of reprisal. In sum, the Trial Examiner characterized Love's conduct as mere "requests for opinions and permissible under the Act." We disagree. Questioning selected employees about their union sympathies without any legitimate reason therefor and without any assurance against reprisal, by its very nature tends to inhibit employees in the exercise of their right to organize. Moreover, it can hardly be said that the interrogation of Stewart was a innocent or random as the Trail Examiner suggests. This interrogation followed closely the revelation that Stewart was the leader of the organizing campaign. In view of the foregoing, we find that the Respondent, by interrogating employees Stewart and Womble , inter- fered with the exercise of rights guaranteed to em- ployees in Section 7 of the Act and, accordingly, violated Section 8(a)(1) thereof. REMEDY Having found that the Respondent has engaged in certain conduct prohibited by Section 8(a)(1) of the Act, we shall order the Respondent to cease and desist therefrom and take certain affirmative action, as set forth below, designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce with- in 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. By interrogating its employees about their un- ion activities, the Respondent has violated Section 8(a)(1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Engi- neered Steel Products , Inc., Atlanta, Georgia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees about their union activities. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed to them by Section 7 of the Act. 188 NLRB No. 52 ENGINEERED STEEL PRODUCTS, INC. 299 2. Take the following affirmative action in order to effectuate the policies of the Act: (a) Post at its offices in Atlanta, Georgia, copies of the attached notice marked "Appendix."2 Copies of said notice, on forms provided by the Regional Direc- tor for Region 10, after being duly signed by the Respondent's representative, shall be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees 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 10, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that -the complaint be, and hereby is, dismissed insofar as it alleges violations of the Act not specifically found herein. 2 In the event that this 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." Board's Office, Peachtree Building, Room 701, 730 Peachtree Street, NE., Atlanta, Georgia 30308, Telephone 404-526-5760. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HARRY R. HINKES, Trial Examiner: The charge in this proceeding was filed on March 31, 1970, by International Union, United Automobile, Aerospace & Agricultural Im- plement Workers of America, UAW, hereafter referred to as the Union, and served on April 1, 1970, on Engineered Steel Products, Inc., hereafter referred to as the Respondent or Employer. Pursuant to this charge a complaint was issued on June 12, 1970, alleging that the Respondent had commit- ted unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act by discharging employee Johnnie Womble and by interrogating its employees concerning their union activities and threatening their discharge for such activities. By answer duly filed Respondent admitted the discharge of employee Womble but denied the commis- sion of any unfair Labor practices. A hearing was held before me in Atlanta, Georgia, on July 21, 1970, at which all parties were afforded full oppor- tunity to participate, examine witnesses , and adduce rele- vant evidence. Briefs have been filed by counsel for the General Counsel and counsel for the Respondent and have been given careful consideration. Upon the entire record in this proceeding, I make the following: APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate our employees about their union activities. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce our employees in the exercise of their rights guaranteed to them by Section 7 of the Act. ENGINEERED STEEL PRODUCTS, INC. Dated By (Employer) (Representative) (Title) FINDINGS OF FACT I JURISDICTION Respondent is, and has been at all times material herein, a Georgia corporation with its principal office and place of business located at Doraville , Georgia, where it is engaged in the manufacture and sale of steel components and assem- blies. During the calendar year preceding the issuance of the complaint, which period is representative of all times mate- rial herein, Respondent purchased and received products valued in excess of $50,000 directly from suppliers located outside the State of Georgia . The complaint alleges, Respondent's answer admits and I find that the Respondent is and has been at all times material herein engaged in commerce within the meaning of Section 2(6) and (7) of the Act. It THE LABOR ORGANIZATION The complaint alleges, Respondent's answer admits, and I find that the Union is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES 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 compli- ance with its provisions may be directed to the A. The Case for the General Counsel Employee Davis who had been injured at work on Feb- ruary 3, 1970, testified that 2 weeks before said injury, Shop Superintendent Love, an admitted supervisor of the Re- spondent, approached him and asked him whether he knew who was "pushing" the Union. Davis replied that he would rather not discuss it on the job. Instead he offered to call Love if Love would give him his telephone number. Love 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gave his telephone number and Davis called him that eve- ning. At that time Love again asked Davis if Davis knew who was pushing the Union , to which Davis asked if Love did not know. Love answered that he thought he knew and mentioned employee Stewart and "the little -boy who ran the saw," adding that he was going to have to release him and let him go "if he didn't let up." According to Davis, Johnnie Womble was the only one working on the saw at that time. He amended his answer however, admitting that more than one employee ran the saw. Johnnie Womble also testified that from time to time, other employees cut a piece on the saw. Employee Davis further testified that about 1 week later Shop Superintendent Love asked him how he felt about the Union, to which Davis replied that he would rather not discuss it on the job. Johnnie Womble was hired by the Respondent in August 1969. He was discharged on February 10, 1970. He testified that he signed a union card in January 1970, and spoke to the employees about the Union, telling them that he would vote for it. He did not, however, speak to any supervisors about the Union nor did any supervisors speak to him about the Union. He was not sure whether he attended any union meetings. Womble was absent from work on February 9, 1970. When he returned to work on February 10, 1970, Shop Superintendent Love called to him and told him that he (Love) was told to let Womble go. He added that Womble had absented himself the last three Mondays. Womble asked Love if his father, Lenoris Womble (hereinafter refer- red to as Womble, Sr.), had not reported his absence for him, to which Love replied that he had but that Womble had to call in in person . Womble could remember only two absences in February and was unable to remember other absences he had had. He also testified that he had never been warned about his absences. Womble, Sr., who had also been employed by the Re- spondent between June 1969 and May 1970, testified that he called in on the morning of February 9 and spoke to the secretary who answered the telephone . According to Wom- ble, Sr., he told the secretary that he and his son had been up all night and would not be in to work that day. On the following day, February 10, 1970, he and his son returned to work. Shortly after their arrival Johnnie Womble came to his father and told him he had been fired. Womble, Sr., then went to Superintendent Love and complained that his son had got a "dirty deal," relating that he had called in for both himself and his son the previous morning, to which Love replied "Johnnie is supposed to call in himself." Wom- ble, Sr., also testified that he spoke to McBurnie, Respondent's president, and Hudson, Respondent's general manager, about his son's discharge . They showed Womble, Sr., his son's absentee record with 10 absences during his period of employment. Womble , Sr., testified, however, that his son was not absent 10 times during said period, admit- ting to knowing of only 2 absences during the last 2 months of his employment. Womble, Sr., also testified that about a week before his son's discharge Superintendent Love asked him, "What is this about the Union," to which Womble, Sr., replied, "I signed a card just like everybody else." Love then told him Because you signed a card don t mean you have to vote for the Union." B. The Case for the Respondent Respondent General Manager Hudson testified that Johnnie Womble was discharged for excessive absenteeism. Timecards were received in evidence purporting to show a number of absences by that employee . In addition, absentee reports on said employee covering the period of November and December 1969 and January and February 1970, total- ling 10 in number, were received in evidence. Of these, nine were marked "without permission." Only one, covering an absence of January 5, 1970 , was noted as `with permission." Hudson further testified that he knew nothing of Johnnie Womble's union activity and, although Love had reported rumors of union activity previously, he first heard of the Union on February 12, when the Union demanded recogni lion. He also testified that on February 9 the secretary had reported that Womble, Sr., had reported absent but made no mention of Johnnie Womble. Shop Superintendent Love testified that Johnnie Womble was under his supervision and was absent some 10 to 12 times during that time. During January and February 1970 alone, Womble had absented himself without permission four times. He warned Womble of his absences in January and again on February 3 following an absence on February 2. Womble was the worst offender with respect to absentee- ism of all the employees . On February 9 when the secretary reported that Womble, Sr., had called in, he asked the secre- tary whether Johnnie had called in also or whether Womble, Sr., had called in for Johnnie as well. The secretary said "No." Following consultation with Hudson and McBurnie, it was decided to discharge Johnnie Womble because of his absences. Up until then no other employee had been dis- charged for absences but no one had been absent as much as Johnnie Womble. With respect to Love's conversation with employee Da- vis, Love testified that Davis asked him whether he knew about union activities at the plant and offered to call Love that evening. Love gave him his telephone number and Davis telephoned him that evening . He then told Love that there were some "union affiliations" going on in the shop and wondered if Love knew about it . Love replied that he had heard a couple of rumors to which Davis answered "they are not rumors, it's a fact." Love then asked Davis "who is more or less stirring it up?" Davis answered "Curtis Stewart I believe is the main man." Love denied that John- nie Womble's name was mentioned or that anything was said about "the little guy on the saw." Love also denied knowing anything about Johnnis Womble 's union activities and denied asking Davis how Davis felt about the Union. With respect to Love's conversation with Womble, Sr., Love admitted talking to him after February 12 and asking Womble, Sr., if he had signed a union card. He also admit- ted asking Curtis Stewart what he thought about the Union. Love also testified that different people worked on the saw in January 1970 because he had to switch personnel around to man the saw when Johnnie Womble was absent. One of the employees so transferred to the saw was employ- ee Larry Walls who is about the same height as Johnnie Womble. Walls would also work on the saw on occasions when Johnnie Womble was late in coming to work. C. Contentions and Conclusions Counsel for the General Counsel contends that the reason given by the Respondent for discharging Johnnie Womble, excessive absenteeism, was only pretextual. He attacks the record on which the decision to terminate Womble was made as "inconsistent and inaccurate." and argues that Johnnie Womble's discharge 2 weeks after Shop Superin- tendent Love told employee Davis that he would discharge "the little boy who ran the saw" as "merely the fulfillment of said threat." The timecards received in evidence are obviously inaccu- ENGINEERED STEEL PRODUCTS, INC. rate and misleading. Thus, the timecard for the week ending December 7, 1969, and commencing on Monday of that week is shown bearing the date of Monday November 31, where it should have shown December 1. The same error appears for the weeks ending December 14 and 28. Similar- ly, the timecard for the week ending January 25, 1970, shows each day of that week commencing with the date of the preceding day. A similar irregularity appears for the timecard covering the week ending February 1, 1970. For the above reasons I place little reliance upon the timecards received in evidence. I note, however, that these irregularities were explained by witnesses for the Respon- dent as having occurred when the plant was experiencing power failures which, in turn, caused the timeclock to run irregularly. Of more pertinence however, are the absentee reports which were also received in evidence . These reports execu- ted by Shop Superintendent Love or his foreman were made out on the day of an employee's absence and prove quite convincingly that Johnnie Womble was indeed absent 10 times between November 12, 1969, and February 9, 1970, 9 of which absences were marked as "without permission." These absentee reports are corroborated by the timecards for the particular dates involved . In addition, I credit the testimony of Shop Superintendent Love to the effect that he warned Johnnie Womble about his absences both in Janu- ary and on February 3, 1969. I cannot, therefore, agree with counsel for the General Counsel that Respondent s reason for discharging Johnnie Womble was merely pretextual. He argues , however, that Womble's union activity was the cause of his dismissal rather than his absenteeism . He cites the testimony of employee Davis to the effect that Love threatened to discharge the "little boy on the saw "-"if he didn't let up pushinthe Union." Love, however, denied knowing anything oho hnnie Womble's union activities. It appears that Womble was not very active in union affairs having merely signed a union card and talked to some of his fellow employees about the Union . There is no indication that he solicited on behalf of the Union or even attended union meetings. Even assuming, however, that Womble was active in the Union and that Love knew it , I am not con- vinced that Love threatened to fire Womble for "pushing the Union" when he spoke to employee Davis . For one thing, Johnnie Womble was not mentioned by name. Love denied saying anything about "a little boy on the saw," testifying that he would have no reason or occasion to use such language, knowing all of the employees by name. Moreover, if he had used such language, I cannot assume that he intended Johnnie Womble by that description inas- much as at least one other employee also matched that description and operated the saw at that time. The one employee who was mentioned in Love's conversation with Davis was Curtis Stewart who acted as observer for the Union in the election that took place later. Nonetheless, it does not appear that any disciplinary action was under- taken by the Respondent with respect to Stewart . Finally, if Respondent wanted to rid itselfpof Womble because he was "pushing" the Union as Love allegedly threatened to do in his conversation with Davis which occurred around Janu- ary 20., it could and would have done so on February 3 following Womble's unexcused absence on February 2. In- stead, Womble was merely given a final warning by Love. It was only after Womble absented himself again on Feb- ruary 9 that he was discharged. Nor is this a case of discriminatory treatment. Althou it is true that Womble was the first employee discharged for excessive absenteeism, it is also true that his absenteeism exceeded that of any other employee. There is, therefore, no 301 basis for concluding that the Respondent treated like cases differently, a necessary sine qua non for a finding of discrim- ination. Frosty Morn Meat Inc. v. N.L.R.B., 296 F.2d 617 (C.A. 5). I conclude that counsel for the General Counsel has not sustained his burden of proof to establish that Respondent's discharge of Johnnie Womble was because of his union activities and shall therefore recommend the dismissal of that allegation of the complaint. With respect to the complaint's allegations that Respon- dent violated Section 8 (a)(11) of the Act, the record in this proceeding centers about the conversations between Shop superintendent Love and employees Davis and Womble, Sr. According to Davis, Love asked him if he knew who was pushing the Union and when Davis asked "Don't you know?, ' Love identified employee Stewart and "the little boy who ran the Saw" and threatened to fire them, if they did not "let up." Love admitted asking Davis "who is more or less stirring it up," but that Davis identified Stewart and no one else. Otherwise they talked about generalities. Love also testified that he asked Womble, Sr., if he had signed a union card and what he thought of the Union . Similarly, he asked employee Stewart what he thought of the Union. I am inclined to credit Love's version o these conversations, finding his presentation of the events straightforward and candid even when his testimony was not particularly helpful to his point of view. Accordingly, I conclude and find that Shop Superintendent Love asked two different employees, Womble, Sr., and Stewart, how they felt about the Union. In addition, he asked Womble, Sr., if he had signed a union card. Finally, in response to a telephone call from employee Davis informing hun of union activities at the plant and asking him if he knew about it, Love asked Davis who was stirring it up. I am not convinced, however, that such behavior on the part of Superintendent Love was in violation of Section 8(a)(1) of the Act. The Board has held that: . interrogation of employees by an employer as to such matters as their union membership or union activ- ities, which, when viewed in the context in which the interrogation occurred, falls short of interference or coercion, is not unlawful. Blue Flash Express, 109 NLRB 591. In Blue Flash the Board noted, of course, that the Em- ployer had given the employees assurances that it would not resort to economic reprisals . This was not done here. The question, nevertheless, remains "whether under all the cir- cumstances the interrogation reasonably attempts to restrain or interfere with the employees and the exercise of rights guaranteed by the Act." Blue Flash Express supra . As in the Blue Flash case, I note that the questioning by Love occur- red in a background free of employer hostility to union organization . There were no other unfair labor practices committed by the Respondent. The interrogation, such as it was, was not systematic . The questioning of Womble, Sr., and Stewart concerning how they felt about the Union was not coercive and the Board has held that such inquiries are merely requests for opinions and permissible under the Act. HowardAero, 119 NLRB 1531 , 1533-34. The casual inquiry of Love as to whether Womble had signed a union card carried no implied threats of reprisal nor was his asking employee Davis who was stirring up the Union , after Davis had called him and had invited such an inquiry, coercive or repressive. Viewed in their entirety these instances of inter- rogation by Love under all the circumstances did not re- asonably lead the employees involved to believe that economic reprisals might be visited upon them by the Re- spondent. I, shall therefore, recommend that the allegations 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Section 8(axl) violations by Respondent be dismissed. CONCLUSIONS OF LAW 1. The General Counsel has not sustained his burden of toto establish that the Respondent violated Section 8(ax3) of the Act when it discharged Johnnie Womble. 2. The General Counsel has not sustained his burden of proof to establish that Respondent interfered with, re- strained, or coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act , in violation of Section 8(axl) of the Act. RECOMMENDED ORDER On the basis of the foregoing findings of fact and conclu- sions of law, I recommend that the complaint in this case be dismissed in its entirety.