Lehigh Portland Cement Co.

582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lehigh Portland Cement Company and William Tol- bert. Case 25-CA-3745 February 18, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN , AND JENKINS On October 22, 1970, Trial Examiner Bernard J. Seff issued his Decision on the above-entitled pro- ceeding, finding that 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 at- tached Trial Examiner's Decision. The Trial Examin- er also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended dismissal of certain of those allegations. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision to- gether with a supporting brief, and Respondent filed a reply 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 benefits and that as of the time of the hearing herein , Tolbert had not responded to such offers . As to (2), concerning the change in the basis of payment to the clerical employees, the subsequently executed collective- bargaining agreement classifies and rates such employees as hourly employ- ees Inasmuch as the bargaining representative has acquiesced in such change, there seems little basis for concluding such change was violative of the Act. As to (3), the language used by the Trial Examiner in rejecting Tolbert's testimony constitutes in our view a credibility resolution that such interrogation and promise of benefit were not in fact made to Tolbert As such determination is not contrary to the clear preponderance of all relevant evidence, it will be affirmed See Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F.2d 362 (C.A. 3) In agreeing with the Trial Examiner's conclusion that Respondent did not violate the Act by terminating Tolbert, we find it unnecessary to rely on the provisions of the collective-bargaining agreement which was executed and became effective subsequent to Tolbert's termination 2 In footnote 4 of the Trial Examiner's Decision substitute "20" for "10" days TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BERNARD J . SEFF, Trial Examiner : Upon a charge of unfair labor practices filed by William Tolbert, an individual, on April 17, 1970, and served on Respondent by registered mail on or about April 20, 1970,1 against Lehigh Portland Ce- ment Company, herein called Respondent or Employer, the General Counsel of the National Labor Relations Board issued a complaint and notice of hearing on June 26 in which he alleged that Respondent had en gaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein called the Act. Respondent's answer admitted certain allegations of the complaint but denied the commission of any unfair labor practices. A hearing was held before me in Bedford, Indiana, on August 4 and 5 , at which all parties were repre- sented. Subsequent to the hearing, Respondent and General Counsel filed briefs which have been carefully considered. Upon the entire record in the case and from my observa- tion of the witnesses, I make the following: FINDINGS OF FACT Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner as modified below and hereby orders that Respondent, Lehigh Portland Ce- ment Company, Mitchell, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified.2 IT IS FURTHER ORDERED that the complaint be dis- missed insofar as it alleges violations of the Act not found herein. 1 The General Counsel has excepted to the Trial Examiner's failure to find that Respondent violated the Act by ( 1) failing to pay termination benefits to employee Tolbert, (2) changing the basis of payment to clerical employees from salaried to hourly; and (3) interrogating and making promises of bene- fits to Tolbert As to (1), the record discloses that Respondent offered Tolbert several options concerning the acceptance of termination benefits or alternative I RESPONDENTS BUSINESS Respondent has maintained its principal office at Allen- town, Pennsylvania, and a place of business at Mitchell, Indiana, herein called the Mitchell facility. The instant case involves only the Mitchell facility . During the 12-month period prior to the issuance of the complaint, Respondent manufactured and shipped products valued in excess of $50,000 from its Mitchell facility to States other than the State of Indiana. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED United Cement, Lime and Gypsum Workers Internation- al Union, AFL-CIO, and its Local No. 30 , herein referred to as the Unions, each are, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. 1 All dates are in 1970 unless otherwise indicated 188 NLRB No. 93 LEHIGH PORTLAND CEMENT COMPANY 583 III THE ALLEGED UNFAIR LABOR PRACTICES A. Respondent's Violations of 8(a)(1) The Respondent candidly admits in its brief that it en- gaged in a campaign to urge its employees not to vote for the Union in the clerical unit of eight employees at its Mit- chell, Indiana, facility. The Company stated that this was not due to animus on its part because Respondent has en- joyed amicable relations with the same International Union in all 10 of its plants covering production and maintenance employees. The Company engaged in this campaign be- cause the Union, for the first time, was seeking to represent clerical employees. It was also pointed out that when the election in the clerical unit resulted in a 5 to 3 vote in favor of the Union Respondent bargained with the Union and entered into contractual relations with the Union. The campaign against the Union took the following form: All eight of the employees were individually interviewed by Respondent's supervisors about 2 or 3 days before the NLRB election. Company representatives included the manager of labor relations, the head of the industrial rela- tions department (both of whom were sent to Mitchell, Indi- ana, from Respondent's home office in Allentown, Pennsylvania), the plant manager at Mitchell, and the su- pervisor of the clerical department. The company representatives engaged in conversations and, by prearrangement, followed the same approach. Plant Manager Bensinger spoke to each of the employees along the following lines: Five employees, Elliott, Conley, Con- nell, Bales, and Tolbert, were individually queued as to why they were interested in the Union; each of these employees said in virtually the same language they felt they needed job security. Their feeling of anxiety about their jobs stemmed from the fact that two former employees, James Grissom and John Dorsett, were terminated some time ago without any apparent reason known to the clerical employees. Both Grissom and Dorsett had worked for the Company for more than 20 years. Each of the five employees felt that they too had been employed more than 20 years and if Grissom and Dorsett could be fired the same thing could happen to them. There was unanimity that the motivation for union mem- bership stemmed directly from the discharges of Grissom and Dorsett which represented to the employees a threat to their job security. The Company's supervisors in each case pointed out that the men had certain advantages from remaining salaried employees and what would be lost if they voted to be repre- sentedyby the Union. The employees were told the monetary value of their insurance would drop together with the loss of the accident policy which was included under the salaried employees plan. The retirement plan would change to their disadvantage. Further "if we lost any time from work, of course, we would not be paid for it, and as salaried employ- ees, if we had to be off for a few hours, the Company did go ahead and pay us for that time." Lost time was described as due to "going downtown, going to the doctor or the dentist, something of that nature, or any other reason, as long as the plant manager felt it was-you know you had a good reason to be off." Also if an employee would be sick for a few days they would not lose pay. All that would be changed. The General Counsel contended that company supervi- sors asked the employees how they expected to vote. There is no support in the record to prove this contention. General Counsel also argued that the Company fired Tolbert be- cause he had been a foreman for 10 years before he trans- ferred to the clerical group and Respondent knew he had voted for the Union. It was contended that Respondent resented the fact that one of its former supervisors would vote for the Union. In the course of Tolbert's testimony he allegedly replied to Respondent-when queried as to whether he was in favor of the Union-"No comment." This argument, too, is not supported by the record consid- ered as a whole. However, the reasonable inference to be drawn from those facts which the Company admitted is that, if the Union were voted in, the special privileges enu- merated above would,be discontinued. In the context of the events that did occur and keeping in mind that Respondent saw fit to underscore its opposition to a unionized clerical unit by dispatching certain top officials from Allentown, Pennsylvania, the comments made by Respondent's offi- cials and plant supervisors were made to discourage the affected employees from their efforts to become unionized. The implied threats of loss of certain benefits constitute violations of Section 8(axl) and I so find. B. The Discharge of William Tolbert Tolbert was hired on January 21, 1952, as a lab tester and in 1953 became a mill laborer. He became assistant time- keeper in the clerical department on October 1, 1957. From Apn16, 1959, until April 28, 1969, Tolbert was a yard fore- man. He transferred back to the clerical department on the latter date. On July 22, 1970, Local No. 30, clerical unit, and the Respondent executed a collective-bargainin g agreement covering the Company's clerical employees. Article XII- Job Status-Permanent Conditions, which contains the fol- lowing provision, is identical with the provision concerning the same subject matter that has been in effect for many years with the same Union covering production and mainte- nance employees. The provision reads as follows: Whenever an employee's job is eliminated and his employment is terminated, he may make written a ppli- cation within five (5) days after receiving notice os termination for employment in the maintenance and production unit of Local # 30 of the Virgil I. Grissom plant Mitchell, Indiana. An application for employment into the mainte- nance and production unit shall be kept on file for a period of one year from the date of an employee's termination. If during the one-year period the employ- ee is hired he shall retain his previously accumulated pension, S.U.B., insurance and vacation eligibility. His seniority rights in the clerical unit shall terminate upon his establishment of seniority rights in the maintenance and production unit.[Emphasis supplied.] The above contractual language appears in the contract covering the maintenance and production unit. Tolbert was the last man hired in the clerical unit. In accordance with the above contract he was, therefore, the first man to be terminated when the Respondent inaugurat- ed a program to cut costs throughout all its operations. The institution of this program was described in the record by John E. L. Kratzer, manager of industrial relations for Re- spondent, as follows: . we were trying to reduce their costs by decreasing manpower and, for your information, during this peri- od of time from January 1st, 1968 up until recent months, we have curtailed the clerical forces in our ten cement plants by 24 employees and this curtailment was as the result of either termination, death, retire- ment or what have you. These employees who were dropped from the rolls were not replaced-24 of them since January 1st, 1968. 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V THE REMEDY The Alsen, New York facility, decreased the staff in this period of time by four clerical employees; Bir- mingham, Alabama facility decreased the staff during this period of time byl clencal employee; Buffalo, New York facility decreased the staff by 5 employees during this period of time; our Fogelsville, Pennsylvania oper- ation decreased the staff by 2 during this period of time; Iola, Kansas decreased the staff by 5 during this period of time; Mason City, Iowa operation decreased the staff by 1 during this period of time; our Metalline Falls, Washington had no reduction in their clerical staff during this period of time; Miami, Florida opera- tion had 1 clerk taken from the staff during this period ... since a reply has been received from Miami ... there has been an additional employee removed from that staff. I will skip the Mitchell report because that is what we have been talking about and our Union Bridge, Maryland has been decreased by 1 employee during this time. * * * * * . I can relate to a specific case in which I was directly involved that occurred at the Folgelsville plant. It oc- curred in the year 1968. A utility clerk who was the junior employee in the clerical staff but he was not the junior employee in terms of plant seniority, was re- moved from the clerical staff. The situation was identi- cal to Mr. Tolbert's .... The man had the least amount of seniority in the unit ... when you move from one category to the other, you do not carry your seniority with you. You start as a junior employee on the basis of seniority. You do carry your credit of service with you for the basis of determining your insurance, your pen- sion benefits, your vacations and things of that sort. [Emphasis su plied.] In other words fpnnge benefits are measured by plantwide seniority. Bumping rights for Tolbert of jobs are meas- ured by departmental seniority.Tolbert was the last employ- ee hired in the clerical unit. Therefore in accordance with both the labor contract and past practice when it became necessary to decrease the clerical unit by one employee he was selected. It is clear that Respondent regarded Tolbert as a good employee and so stated on the record. In view of the fact that his termination came about only as the result of a contraction in staff in order to reduce costs he was released from his employment for economic reasons which had nothing whatever to do with union activity. I therefore recommend that the allegation in the complaint that his termination was a violation of Section 8(a)(3) be dismissed. The General Counsel filed a motion to amend the com- plaint. In his brief General Counsel moved to correct the record concerning some inadvertent errors. Both motions are hereby granted. IV 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 Respondent's oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. Having found that the Respondent violated Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondent did not discriminatorily discharge William Tolbert, I shall recommend that this 8(a)(3) allegation in the complaint be dismissed. Upon the basis of the above findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Lehigh Portland Cement Company is an employer en- gaged gaged in commerce within the meaning of Section 2 (2), 6 , and (7) of the Act. 2. United Cement, Lime and Gypsum Workers Interna- tional Union, AFL-CIO, and its Local No. 30 are labor organizations within the meaning of Section 2(5) of the Act. 3. By interrogating certain of its employees and expressly or impliedly threatening them with loss of certain benefits, Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1). RECOMMENDED ORDER2 Upon the basis of the above findings of fact , conclusions of law, and the entire record in the case , and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that Respondent Lehigh Portland Cement Company, its officers , agents, successors , and as- signs, shall: 1. Cease and desist from: (a) Threatening employees with loss of existing benefits. (b) Interrogating employees to ascertain why the employ- ees were interested in the Union. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self- organization , to form labor organizations , to join or assist the United Cement, Lime and Gypsum Workers Interna- tional Union, Local No. 30, AFL-CIO, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities. 2. Take the following affirmative action which is neces- sar to effectuate the policies of the Act: a) Post at its Mitchell, Indiana, place of business copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 25 , after being duly signed by Respondent 's author- ized representative, shall be posted by it 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 . Reason- 2 In the event no exceptions are filed as provided by Section 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 Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes 3 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 National Labor Relations Board." LEHIOH PORTLAND CEMENT COMPANY 585 able steps shall be taken by Respondent to ihsure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 25, in writ- ing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith 4 P FURTHER RECOMMEND that the allegation in the complaint that William Tolbert was laid off in violation of Section 8(a)(3) of the Act be dismissed. APPENDIX NOTICE TO EEMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate any of our employees con- cerning their interest in or membership in United Ce- ment, Lime and Gypsum Workers International Un- ion, Local No. 30, AFL-CIO, or any other labor organ- isation. WE WILL NOT directly or indirectly threaten our em- ployees with loss of existing benefits because of their union activities. 4 In the event that this Recommended Order is adopted by the Board, this provision shall be mbdified to read . "Notify said Regional director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." WE WILL NOT in any other manner interfere with, re- strain, or coerce our employees in the exercise of their rights to self-organization , to form labor organizations, to join or assist United Cement, Lime and Gypsum Workers International Union, Local No. 30, AFL- CIO, or any other labor organization, to bargain through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. LEHIGH PORTLAND CEMENT COMPANY (Employer) Dated By (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, 614 ISTA Center, 150 West Market Street, Indianapolis, Indi- ana 46204, Telephone 317-633-8921. k