Tyson & Van, Inc.

TYSON & VAN, INC. Tyson & Van, Inc . and Sheet Metal Workers' International Association, AFL-CIO. Case I I-CA-3634 May 23, 1969 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On December 9, 1968, Trial Examiner Lloyd Buchanan issued his Decision in the above-entitled proceeding, 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. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that such allegations be dismissed. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Respondent filed cross-exceptions and a supporting brief. 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 connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision and the entire record in this case, including the exceptions, cross-exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified below. We agree that the Respondent violated Section 8(a)(1) of the Act in the m anner found by the Trial Examiner in his Decision. However, we find, contrary to the Trial Examiner, that the Respondent additionally violated Section 8(axl) through the following conduct of Supervisor Robertson which began shortly after the Union started organizing the Respondent's plant around May l:' (I) Robertson's interrogation of employee Roberts on May 6 and on other occasions between May 1 and 27 concerning what he thought of the Union; (2) Robertson's interrogation of employee Suggs at various times during May as to whether or not he was still for the Union and whether or not the Union was still going on; (3) Robertson 's admitted statement to a small group of employees around May 20 that if they wanted a 25 cent pay raise suggested by an 'All dates are 1968. 141 employee they should let him (Robertson) know and he would see what he could do about it: (4) Robertson's statement to several employees around May 24 that top salesman Bost, upon whose sales it was realized by the employees that the continuance of the Respondent's business depended,' stated he would quit if the Union got in. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order, the Recommended Order of the Trial Examiner, as herein modified, and orders that the Respondent, Tyson & Van, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Section l(a) of the Recommended Order shall be modified to read as follows: "(a) Interrogating employees in a manner constituting interference, restraint, or coercion, and threatening employees with respect to union activities and promising and suggesting benefits to induce employees to reject the Union." 2. The first indented paragraph of the notice shall be modified to read as follows: WE WILL NOT interrogate employees in a manner constituting interference, restraint, or coercion, or threaten employees with respect to union activities and promise and suggest benefits to induce employees to reject the Union. 'We find it unnecessary to pass upon the General Counsel's exception that Robertson on May 27 violated Section 8 (a)(1) in asking Roberts to tell him who the Union leaders were. There is an unresolved credibility issue as to whether or not the question was asked , and, in any event, a finding of a violation here would be at best cumulative TRIAL EXAMINER'S DECISION LLOYD BUCHANAN, Trial Examiner: The complaint herein (issued July 29, 1968; charge filed May 29, 1968) alleges that the Company has violated Section 8(a)(3) of the National Labor Relations Act, as amended, 73 Stat. 519, by discharging James W. Suggs and Steve Warren on May 27, 1968, because of their union and other protected concerted activities; and Section 8(a)(1) of the Act by said acts and by interrogation, threats, informing employees that it did not have to bargain with the Union and that they could get a raise after they dropped the Union and, to persuade employees to do so, impliedly promising benefits. The answer admits the discharges but alleges that they were for just cause , and denies the allegations of violation. The case was tried before me at Myrtle Beach, South Carolina, on September 24 and 25, 1968. General Counsel was heard in oral argument at the conclusion of the trial. Pursuant to leave granted to all parties, a brief has been filed by the Company, the time to do so having been extended. Upon the entire record in the case and from my observation of the witnesses, I make the following: 176 NLRB No. 19 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT (WITH REASONS THEREFOR) AND CONCLUSIONS OF LAW 1. THE COMPANY S BUSINESS AND THE LABOR ORGANIZATION INVOLVED The facts concerning the Company 's status as a South Carolina corporation, the nature and extent of its business, and its engagement in commerce within the meaning of the Act are admitted ; I find and conclude accordingly . I also find and conclude that, as admitted, the Union is a labor organization within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES A. The Alleged Independent Violation of Section 8(aXI) The Union's organizational campaign began about May 1. Employee Wright was chosen to be chairman of the organizing committee , and Suggs and Warren were designated cochairmen . All three were included in a letter sent to the Company by the Union on May 4 and received the next day, and which declared a union majority, requested collective bargaining, and listed the names of 18 employees as union committeemen. Employee Roberts testified that on May 6 and several times between May I and 27 Supervisor Robertson asked him what he thought of the Union. Since context of interference or of opposition to organization of the plant has been declared necessary to a finding that interrogation tended' to interfere with protected activities, Robertson's further statement that the men should have a union if they wanted it would bar such a tendency. We note that Roberts' name was included in the May 4 list of union supporters. I find no violation here. Leading to the preparation of a list of employee demands considered below , Robertson allegedly asked Roberts on May 27 who the employee leaders were. Robertson denied this. Whatever the findings with respect to what followed, there being separate allegations, I find no violation by Robertson in this connection . We shall note that, aside from the list of union supporters submitted to it, the Company had knowledge that Suggs and Warren actively participated in organization of the plant. Nor was there any reluctance thereafter to indicate union support and leadership. Suggs testified that for 3 or 4 weeks after May I, and specifically on May 8, Robertson asked him, sometimes in the presence of Warren or Roberts, whether he was still for the Union and whether the Union was still going on. Under the circumstances, these questions appeared to be taunts, but hardly serious and not violative. They do bear on the question of company knowledge, of which there can be no question , as indicated below. Suggs testified further that, about the middle of May, Robertson told him that he had told employee Ward that the. Company did not have to bargain with the Union because of the State's right-to-work law . Robertson's version is that he told Suggs that the right-to-work law would permit the Company to bring in other help if there were a strike. Whatever Robertson's misconception of the law, the offense here would lie in an unwarranted declaration that the Company would not or did not have 'Were we concerned with actual effect (cf. Neck's Inc.. 172 NLRB No. 255, and occulonal findings in other cues), there is no evidence of such. to bargain. Beyond the claim made in the May 4 letter, we do not have facts concerning such a possible obligation certainly neither the obligation nor a refusal is alleged. I would not make a supervisor and therefore his employer responsible for a misstatement of the law, if there was one here, in this hypothetical situation. I find and conclude that there was no violation here. Another separate allegation, although also connected with the list, which we shall next consider, is Robertson's alleged statement that Warren might be able to get a 10-cent raise and his vacation when he wanted it if he would drop all union activities. According to Robertson, Roberts, in the presence of Warren and Suggs, suggested a 25-cent raise; and he replied that, if they wanted that, they should let him know and he would see what he could do. He denied that he spoke of their dropping the Union. Whether a possible increase asked for by the employees was conditioned on dropping the Union need not be determined. There is greater and sufficient basis for a credibility finding in connection with a list of increased benefits, to which we now turn, the overall finding in that respect covering what appears to have been a single conversation and its followup - this without a multiplicity of allegations and findings. I credit Robertson's denial of Warren's testimony that about May 20 the former told him and Suggs that they were doing good work; they should keep it up and they would receive a raise after the Union was dropped. Roberts testified that on May 27 Robertson suggested that he get from the union leaders in writing what it would take to get them to drop the Union; and that he thereupon put the matter to Suggs and Warren. Whether or not Robertson suggested that a list of demands or requests be prepared (we recall that he denied that he spoke of dropping the Union), he authorized Roberts to proceed, and what the latter did in that connection was reasonably within the authorization. Admittedly Warren thereafter drafted a statement which contained several proposed additional benefits. Whether or not he had prepared another list first, which listed other benefits and was mysteriously lost, might reflect on credibility. But that Robertson had suggested that Roberts let him know concerning a desired wage increase and thereafter received and rejected a, list of desired benefits is clear. (This is a credibility finding.) This was more than a response to an employee's request. It constituted discussion leading to and receipt of a joint proposal to undermine the Union, which had 'made a claim of majority representation, and to make bargaining with the Union unnecessary. I find and conclude that this was in violation of Section 8(a)(1), as alleged . Lest an additional violation be claimed on the basis of Warren's testimony that Robertson told him that the men would not benefit by having a union, it may be noted that this was neither included in the detailed allegations in the complaint nor fully litigated. Wright, whose testimony in some respects favored the General Counsel, reflecting his earlier leadership in union activities, and in others the Company, told us that he had marly conversations concerning the Union with Robertson in May and that, as alleged, the latter told him about the middle of May and several other times that the Union would never get into the plant; the Company would close the door, quit selling signs, and cut the hours. I credit this testimony in the face of Robertson's uncertain denial about closing the door and his version that he merely connected increased wages with increased prices and consequent inability to meet competition so that hours would be cut to cut expenses. How shortened hours would TYSON & VAN, INC. 143 cut expenses and enable the Company better to meet competition was not explained , and certainly not to Wright. This was a violative threat, and I so find and conclude. Related but different is the allegation of threat by Braden, the general manager of the Company's electrical division . He denied Roberts' testimony that he had threatened that the neon department would close if the Union got in. Braden testified credibly that in,response to Roberts' inquiry concerning the Company's position with respect to the Union, he explained only that a radical change in cost affects the selling price and could price products out of range and force the Company out of business. This was not violative. About May 24 Robertson told several employees that Bost, the Company's top salesman, would quit if the Union got in, it being recognized that Bost had so told him. This latter fact is in marked contrast to the situation in the Neco case,' where it was finally agreed that what might otherwise be a valid prediction of indicated fact, as here, was without evidentiary support and therefore a violative threat . Robertson's report concerning Bost was supported by the testimony that Bost had said it to Robertson . In contrast to my, finding in Neco, ultimately sustained , I find and conclude that Robertson's statement was not a violative threat. - B. The Alleged Violation of Section 8(aX3) Although 16 others were listed with them in the Union's letter of May 4, there is basis in the record for finding that Suggs and Warren were most active and were, in this small plant, known by the Company to be so. Roberts testified that, when he gave Robertson the list of desired benefits, the latter asked whether Suggs and Warren were the leaders. Both Suggs and Warren told us that on Friday, May 24, Robertson saw employee Holt reading a union pamphlet and remarked that it looked "like some of Warren's doings." More significant than their talk concerning the Union and their efforts in connection with union meetings and authorization cards is the fact that earlier on May 24 Suggs and Warren had distributed union literature in the company parking lot; this was done before the workday began and during the lunch period . There is no denial of knowledge that these two were especially active in behalf of the Union. The defense is that they were discharged for violation of company policy and for insubordination. Warren and Suggs were apprentices and worked together, the former helping the latter. On May 24 Suggs, with his electric welder , accidentally burned a hole in the facing of a sign on which he was working. Although he testified that the hole was approximately three-fourths of an inch in size , it proved by actual measurement to be 'Neco Electrical Products Corporation, 124 NLRB 481 , 482, 487, as modified by unreported Order of the Board dated April 13, 1%1, after remand sub nom. International Union of Electrical. Radio and Machine Workers. AFL-CIO v.N.L.R. B.. 289 F.ld 757 (C.A.D.C.). Even if it was there not recognized until late in the history of the case, the point in Neco was that the employer had expressed no more than a baseless feeling that its customer would sever their connection . Because the distinction between threat and prediction is not always recognized , I emphasize that in the instant case the source and basis for the prediction was clearly identified and proved , by Robertson's direct testimony . (This last reference is here noted to avoid another failure to find what appears in the transcript; page citations for this and other items can be submitted .) This footnote may clarify a point which has more than once been misunderstood or incorrectly viewed and on which split decisions have issued. 1-11/16 by 1-1/2 inches. Aluminum panel patches can be used to cover such holes: It was testified without contradiction, although detailed reference was made to another sign, which we shall note, that a panel patch is used to repair signs already erected or to be remodeled, not on new signs. Subsequent developments, as reconstructed from the credited testimony of the various witnesses, were as follows: Informed by Suggs of the hole which he had burned, Robertson told him to put a patch on it, then inspected it and according to Suggs and Warren termed it OK. Robertson testified that he told Suggs to try a patch and see whether it would pass, and that he immediately told Braden about it and asked him to check and tell him what he thought about it. Braden explained that Robertson reported the damage to him and said that he would like to repair it and see whether it would be OK; a patch was considered because they were in the busy season and despite the practice to deliver new signs without flaws. Here a discrepancy (at least with respect to the time when Thompson, the Company' s art director, was told about the sign) intruded a§ B1'aden told us that it was late Friday afternoon when Rortson reported the damage to Thompson, who looked at it, while Thompson testified that it was on Monday, May 27, that Robertson asked him to check the sign, as he bad done on other occasions. Robertson's version is that he told Braden on Friday, and that on Monday the latter said that he had checked the sign and that it could not go out; and that Robertson then asked Thompson, who had come into the office, where Vice President Worrell and Bost were, in Braden's words, "for different reasons," to look at the damaged panel. With several thus present in the office, on May 27, the group was referred to by the General Counsel as a "meeting." There is no basis, in the face of Braden's testimony, for adopting any implication that Worrell and Bost had discussed these employees. I have not overlooked Robertson's examination of the sign with its 2-5/8-inch patch and his statement to Suggs and Warren that it was OK, as the latter two testified. But Thompson, after Robertson asked him to look at the sign, examined it himself and decided that it was not passable. Had he been willing to make an exception to the rule that a new sign does not go out with a patch, he testified that he had never seen a larger hole damage in a new sign and that concern for the Company's reputation did not permit him to pass the work. Considerable time was spent at the hearing in reference to and comparison with a Yogi Bear's sign, which had been erected early in May although it contained two holes, Thompson declared that these holes are not visible since they are behind a channel letter which protrudes approximately 2 inches from the face of the sign. At the request of and 'accompanied by counsel for both parties, I inspected the Yogi Bear's sign as erected. Before such inspection I noted on the record that people driving'by would be less apt to notice a patch than would I while standing there and looking for it. This, of course, applies also to the Sea Squires sign in issue ; but with the general rule agaittst patches on new signs, it explains acceptance by the Yogi Bear's signs purchaser, who was anxious for early delivery of several such signs and approved them after visual inspection. At the Yogi Bear's site I read to counsel what I had noted . There were no suggestions or requests for correction, modification, or addition to my findings, and they were thereafter stated on the record. I did not, from 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD my own observation, see evidence of repair. After the location of the repairs was pointed out to me, I did perceive two discs apparently 1-1/2 inches in diameter, one-third of each covered by the block letter "I" in "Yogi." I declared at the site my doubt that, had my attention not been called to them , I would have noted the patches had I examined the sign for minutes. Beyond the greater size , exposure, and observability of the patch on the Sea Squires sign , the fact is that a new shield was constructed and the damaged one not used. There is no basis for a finding other than that this was done in the valid exercise of the Company's business judgment . I would not undertake to question the Company's judgment, and there is no sufficient basis for finding that rejection of the panel was a pretext for discharging Suggs and Warren. It may be argued that Robertson 's order that the work be redone after his alleged earlier OK of the patch reflected knowledge of the leaflet distribution by Suggs and Warren before work and during the lunch period on May 24. But aside from the testimony concerning patches on new signs generally and the prominence of the patch on this one, not only is knowledge of their earlier union activities attributable to the Company as we have seen, but they had distributed union literature before the hole was burned and of course before there could be any question of approval which might later be withdrawn. If we attribute knowledge of union activities, we cannot ignore that same or similar knowledge and infer that it was later acquired when no change in knowledge is indicated. With the need to redo the panel established, Robertson told Suggs and Warren that they would have to do the work on their own time. Both refused to work on their own time . When Robertson pointed out that this was company policy, they denied it. Each testified that he had never heard of such a policy. Employee knowledge of policy may bear on credibility with respect to existence of such policy; alleged knowledge or lack of knowledge neither proves nor negates the policy. Lest it be deemed "overlooked," I note here that whether or not Suggs or Warren, or both, attached profanity to their refusal or challenged Robertson to fire them is immaterial since such statements, if made, are not claimed to have prompted the discharges. On the other hand, no great point beyond the issue of policy was made at the trial with respect to Warren's responsibility for redoing the job . He and Suggs worked together as a team , and it cannot be found that it was discriminatory to hold that, whatever the responsibility to complete the job, it was joint. The issue here is whether it was company policy to require that the work be done on the employees' time, or whether insistence on that was now discriminatory. On behalf of the Company, it was testified that at least since February 1967 (from Wright's testimony, apparently for at least the 5 years that he had been there; from Thompson's, for 6 or 7 years) it was company policy to dismiss an employee guilty of repeated negligent mistakes; where mistakes are not frequent, the employee is permitted to correct them on his own time, the Company furnishing the material; and where he refuses so to correct, dismissal is "automatic." Wright, called by the General Counsel, testified that he had been told many times that it was company policy that a man repair damage on his own time ; no such rule was ever given to him in writing ; "it is just company policy," and it had been "enforced upon" him when he made a mistake. He also told us that Worrell had once told him that another employee would be fired if he did not make a repair on his own time. Without citing other specific instances or suggesting that any which he had cited were connected with union activities , Wright declared generally that "it depends on what type of sign, how quick it has got to go out, who the party is." Asked to name employees who had been paid while making repairs, he named only Holt, who had patched the Yogi Bear's sign noted above. Again without reference to union activities, Wright stated his impression that the rule or policy was not equally enforced. The evidence here indicates the type of sign and the clear unacceptability, as I could observe it, of a patch . Suggs himself testified that , although he had never heard of such a rule, another employee told him that he had redone some work on his own time. With respect to the Yogi Bear' s sign, it is clear that such patches take a very few minutes, and the Company permits that; replacement of the Sea Squires panel took approximately 4-1/2 hours. Roberts testified that he never heard of the alleged policy but that he had once been compelled to redo a job on his own time. The evidence indicates the existence of a policy as described particularly by Braden. Nor does it appear that any rule or practice was discriminatorily applied against Suggs and Warren. While it is also clear that there had been no formal announcement and that they had not been told about it, it had been followed and they knew of it. The issue at this point is not the fairness of such a policy, but whether the Company acted differently with respect to Suggs and Warren and discriminated against them; and if so, because of union activities. Discrimination has not been shown. Exception made where repair (not redoing) takes a few minutes, as distinguished from half a day, is minimal and reasonable , and does not negate the existence of the policy described. It certainly is not so unreasonable as to warrant a finding of pretext' and absence of the claimed policy. Even were it suspected and inferred that the Company welcomed the termination of these two employees, we could not, and I do not, find that their union activity contributed to or affected the decision to discharge them; nor, more specifically, that but for such activity the Company would not have discharged them on their refusal to redo the sign on their own time. There is no basis for questioning Robertson's decision that the damage resulted from negligence. While such negligence was not Warren's, he and Suggs worked as a team; as a -team they would redo the job, and Suggs would be as liable for it had Warren been the negligent one. Both now refused, and it does not appear that Warren (or the General Counsel) claimed that he was less liable or questioned his responsibility for redoing the work beyond the issue whether he should be paid for the time spent. It would appear from Suggs' uncertain denial that he did challenge Robertson to fire him. Whether or not union activities had thus emboldened him, I find and conclude that it was the refusal to redo the work, not company discrimination, which caused these discharges. It may indeed be that the Union and their own activity imbued Suggs and Warren with an excess of valor and a minimum of discretion; this we/need not decide. Evidence of other insubordination appears in Suggs' working a while on Saturday, May 4, and then leaving without informing Robertson or receiving permission to leave. But this was 'Cf. Century Broadcasting Corporation. 171 NLRB No 78. TYSON & VAN, INC. not referred to on May 27 or declared to have contributed to the decision to discharge. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law , and upon the entire record in the case, I recommend that the Company, Tyson & Van, Inc., Myrtle Beach , South Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with respect to union activities and suggesting benefits to induce employees to reject the Union: (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act. (a) Post at its place of business in Myrtle Beach, South Carolina, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 11, shall be posted by the Company, after being duly signed by its representative, immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 11, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.' I further recommend that the complaint be dismissed insofar as it alleges violation of Section 8(a)(3) of the Act. 'In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice . In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order " shall be substituted for the words "a Decision and Order." 'In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify the Regional Director for Region 11, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." 145 APPENDIX NOTICE To ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT interfere with, restrain, or coerce employees by threats or unlawful suggestion of benefits. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Sheet Metal Workers' International Association, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. All our employees are free to become or remain, or refrain from becoming or remaining, members of Sheet Metal Workers' International Association, AFL-CIO, or any other labor organization. Dated By TYSON & VAN, INC. (Employer) (Representative) (Title) 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 16th Floor, Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 919-723-2300.