Omni Spectra, Inc.

OMNI SPECTRA, INC. Omni Spectra, Inc. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW). Case 7-CA-6811 May 26, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS AND ZAGORIA On December 23, 1968, Trial Examiner Abraham H. Mailer issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, but recommending that the complaint be dismissed. He also found that the Respondent had not engaged in certain other unfair labor practices. Thereafter, the General Counsel filed limited exceptions to the Trial Examiner's Decision and a supporting brief,' and the Respondent filed cross-exceptions and an answering brief. Pursuant to the provisions of Section 3(b) of the Act, 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, the exceptions and briefs, and the entire record in this case, and with the limited exception noted herein, adopts the findings, 2 conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and orders that the complaint be, and it hereby is, dismissed. The General Counsel excepts only to the Trial Examiner's refusal to issue a remedial order for the violation he found of Section 8(axl). 'The Respondent excepts only to the finding of this single 8(a)(l) violation . As we agree with the Trial Examiner that, in any event, the violation found would be too isolated to warrant the issuance of a remedial order, we feel that no purpose would be served by passing on the correctness of his finding . We therefore decline to pass on or adopt it. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ABRAHAM H. MALLER, Trial Examiner: On June 18, 1968, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), herein called the Respondent . Upon said charge, the 165 Regional Director for Region 7 of the National Labor Relations Board, herein called the Board, on August 29, 1968, issued on behalf of the General Counsel, a complaint against the Respondent, alleging violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.) herein called the Act. Briefly, the complaint alleged that the Respondent interfered with, restrained and coerced its employees by threatening them with termination of their employment if they persisted in union activity, informed employees that increases in pay would not be granted to them because of their activities on behalf of the Union, threatened employees with termination of employment if they engaged in any conversations about the Union at any time on company premises, and discriminated against its employees in regard to hire or tenure or terms or conditions of employment by threatening a union adherent with discharge, by refusing her an increment in pay, and continuously thereafter restricting her movement and isolating her during nonworking time on company premises, and by isolating another union adherent during working hours in a place of work away from other employees. In its duly filed answer, Respondent denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held before me at Detroit, Michigan, on October 28, and 29, 1968. The General Counsel, the Respondent, and the Charging Party were represented and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs with me. A brief was filed only by the Respondent. Upon consideration of the entire record and the brief, and upon my observation of each of the witnesses, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of Michigan. At all times material herein, the Respondent has maintained an office, manufacturing plant, and place of business at 24600 Hallwood Ct., in the City of Farmington, and State of Michigan. Respondent is and has been at all times material herein, engaged in the manufacture, sale, and distribution of micro wave components, connecters, subsystems, and related products at its Farmington, Michigan, plant, which is the only facility involved in this proceeding. During the calendar year 1967, which period is representative of its operations during all times material herein, the Respondent, in the course and conduct of its business operations, purchased and caused to be transported and delivered at its Farmington, Michigan, plant, goods and material valued in excess of $50,000, which were transported and delivered to its plant in Farmington, Michigan, directly from points located outside the State of Michigan. During the same period, the Respondent, in the course and conduct of its business operations, manufactured, sold, and distributed at its Farmington, Michigan, plant, products valued in excess of $50,000, which were shipped from said plant directly to points located outside the State of Michigan. Accordingly, I find and conclude that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act for the Board to assert jurisdiction here. 176 NLRB No. 24 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) is a labor organization within the meaning of Section 2(5) of the Act. III. THE ISSUES 1. Whether Respondent interfered with , restrained, and coerced its employees, in violation of Section 8(a)(1) of the Act. 2. Whether the Respondent discriminated against Stella Maki and Ruby Faye Tucker in regard to terms or conditions of employment because of their membership in and/or activities on behalf of the Union, in violation of Section 8(a)(3) and (1) of the Act. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Background It was stipulated as follows: On April 10, 1967, the Union filed a petition in Case 7-RC-7990. On May 18, 1967, an election was held in the aforesaid proceeding, resulting in a certification that no representative was chosen. On April 25, 1968, the Union filed a petition in Case 7-RC-8930. On May 29, 1968, an election was held, resulting in a vote of 57 to 47 in favor of the Union. Thereafter, on June 6, 1968, the employer filed timely objections to the election. On August 2, the Acting Regional Director issued his report,and recommendation as to the employer's objections, and recommended that they be overruled. On October 25, the Board issued its decision and certification of representatives, certifying the Union as the collective bargaining representative in an appropriate unit consisting basically of production and maintenance employees. B. Sequence of Events' The alleged violations were testified to by two employees of the Respondent, Stella Maki and Ruby Faye Tucker. Stella Maki had been employed by the Respondent since May 9, 1966. She was active in the Union's organizational campaign, was a member of the organizing committee, set up meetings of employees, and got union cards signed. She had received two raises since being employed by the Respondent, the first 3 months after she was hired and the second 9 months after she was hired. She has received no raise since. According to Maki, she was interviewed by her foreman, Richard Hanby, in August 1967, and was told that he was recommending her for a raise. The next day he told her that his recommendation had been rejected because she had caused a lot of trouble - was an instigator, and that no raise was in sight for her. In September 1967, she had another conversation with Foreman Hanby, in which he told her that she was causing too much trouble with the people and that this would hold back her raise. Again in September, she had another conversation with Foreman Hanby in which she pointed out to him that she was teaching the work to two girls who were drawing more pay than she 'The statements set forth m the ensuing section do not constitute my findings, but is a summary of the testimony of the witnesses for the General Counsel as to the alleged violations. My findings are set forth Infra under the heading "Concluding Findings." was and again requested a raise. Foreman Hanby rejected her request because she was mixed up "in this thing." On December 22, 1967, the last workday before Christmas, the employees worked a short day. At lunchtime, in the lunchroom, another employee handed Maki some envelopes which bore the printed name and address of the Regional Director of the Union. Hanby who allegedly was standing about 6 feet away from her, asked Maki what the employee had given her. Maki replied, "Nothing." Thereupon, Hanby, allegedly told her in effect that if it was some of those cards and if he caught her with those cards, she would be fired. In the latter part of April 1968, Maki again spoke to Foreman Hanby about her raise. According to Maki, Hanby replied that she had been making a lot of trouble, but he didn't think she was going to have to wait much longer for a raise. In May, Foreman Hanby allegedly told Maki that he didn't want her to talk to the employees at any time in the plant; that she was getting them all stirred up. In the early part of June, Maki went on vacation. Before she did so, she obtained some yellow membership cards (as distinguished from the green authorization cards) and turned them over to employee Ruby Faye Tucker, who was also active in the Union's campaign, to get them signed. Tucker distributed them to other employees to obtain the signatures. One of the employees to whom she gave cards was Shirley Foster. When Maki returned from her vacation, around June 14, she went to Foster at 7 a.m., and asked for the signed cards. Foster did not give her the cards and said nothing. At break at 9 a.m., Maki again asked Foster for the cards, but did not receive them. That afternoon, between 2 and 3:30 p.m., on company time, Foster gave the cards back to the signers thereof. Foster's actions apparently angered Tucker whose work station was next to that of Foster. Tucker admittedly "told Shirley Foster off" on company time. Foster thereupon apparently became upset, and she and another employee, Ellen Powell, complained to Foreman Barsanti. The latter transmitted the complaint to Supervisor Peter Hegg. Maki and Tucker were separately called into the office of Gary Petersen, personnel and industrial relations manager of Respondent. Supervisor Hegg was present at each conference. According to Maki, Petersen told her that she was an instigator and was not to be caught talking to anyone in the plant either on her lunch hour or during the break periods. Supervisor Hegg told her to stay in her car on those occasions. According to Tucker, Supervisor Hegg told her, "This is a one-way conversation. You are on a one-way road, and there is no turning back. We know of your union activities . . . and you can do that on your break or anytime you want to." Either Hegg or Petersen allegedly told her that if she was brought into the office one more time, she would be fired. Supervisor Hegg also told her that she would be moved to another bench and they would see how that worked out. The next day, Tucker was transferred to a work area some 20 feet away from that of Foster. In August 1968, Maki, while working, broke a drill, part of which entered her thumb. According to Maki, she asked Foreman Hanby to send her to a doctor, but Hanby replied that she had missed so much work and advised her to get another girl to help her. Maki thereupon went to the ladies room and pulled out the portion of the drill with a tweezer and went back to work. She later went to her own physician on her own time. In September 1968, OMNI SPECTRA, INC. 167 Maki accidentally cut her thumb while working. Her thumb bled profusely and she went to the restroom and ran cold water over it. Another employee reported the incident to Personnel Manager Wallet who immediately delegated another employee to take Maki to a doctor. Maki admittedly was paid for the time she lost in going to the doctor. C. Concluding Findings 1. The failure to grant Maki a wage increase Maki' s testimony detailed above with regard to her several attempts to obtain a wage increase must be considered in relation to the testimony of Personnel and Industrial Relations Manager Petersen and Foreman Hanby. Petersen testified credibly that when he assumed that position in April 1967 , the Respondent had no overall policy on granting raises ; rather, this was handled by individual departments most of which granted merit raises to employees on the basis of reviews after 3 months, 9 months, and annually thereafter . In June 1967, Petersen standardized the periods for all departments on the above basis . In addition , he introduced a performance evaluation form which was to be completed by the foreman on each scheduled performance review. Maki' s performance review was originally scheduled for February 1968, but was postponed to April, because she had been absent from work approximately 6 weeks between June and August 1967, because of an automobile accident. In April, the performance review was again rescheduled, this time until June 1968 , because Maki had been away from work approximately 9 weeks between February and April, due to illness and surgery. Postponement of performance reviews where an employee had been absent for a considerable period was in accordance with company policy and had been applied to salaried employees, as well. Foreman Richard Hanby testified credibly that in August 1967 , he had conferences with each of the employees under his supervision , including Maki, to familiarize them with the new performance review form. During these interviews, he went through the process of rating the employees to demonstrate how the new rating process worked . He told Maki that she rated as an average employee . Maki's interview was not for the purpose of determining whether she was then entitled to a merit increase . Such a review in her case was not due until February 1968. Hanby admitted having only one conversation with Maki in September 1967, wherein Maki pointed out to him that the two girls she was instructing were receiving more pay than she was . He testified credibly that he did not discuss the matter with her , but told his then immediate superior, Bert Hanson , about Maki's complaint. Hanby heard no more about it. According to Hanby's credited testimony, he did review Maki's performance rating in June 1968, recommended her for an increase although he rated her attendance as being below average. He transmitted this recommendation to Superintendent Hegg who rejected the recommendation. I have credited the testimony of Petersen and Hanby, both of whom testified in a straighforward manner, over the testimony of Maki. Furthermore, the circumstances support their version as against that of Maki. Thus, Maki was not due for a merit increase in August 1967 , when she claimed that she was given her performance review by Hanby and was told by him that her union activities would keep her from getting a raise. As indicated above, the conference in August 1967 was not, in fact, a performance review for the purpose of a merit increase, but was a conference merely to acquaint Maki, and the other employees, with the new performance rating sheet. In these circumstances, the facts negate Maki's testimony that in August 1967, Hanby told her that he had recommended her for a raise and, again , the following day, that his recommendation had been turned down because she caused a lot of trouble , etc., and that there was no raise in sight for her. The extentions of her review periods, first from February 1968 to April , and then from April to June, because of Maki's long absences appear to be pursuant to company policy . Such extentions were applied in the cases of other employees as well, and do not appear to have been prompted by any union activity on the part of Maki . Moreover, this is partially corroborated by Maki's admission on cross-examination that in April 1968, Foreman Hanby had told her that she had been missing work . This admission by Maki is inconsistent with her other testimony to the effect that Foreman Hanby told her that she had been making a lot of trouble, but he didn't think that she would have to wait much longer for a raise. In fact, the testimony is, in itself, contradictory. For, if Hanby thought that Maki was making a lot of trouble (and this, as Maki contends, was holding up her raise), why would Hanby assure her that she wouldn't have to wait much longer for a raise? In view of all the foregoing, I find and conclude that the Respondent did not threaten Maki that she would not get an increase in pay nor did it refuse to grant her a wage increase because of her membership in and/or activity on behalf of the Union. Accordingly, the complaint should be dismissed in this regard. 2. Threats to fire Maki Maki's testimony regarding the incident of December 22, 1967, to the effect that she was handed some authorization cards and envelopes by another employee, was observed receiving them by Foreman Hanby , and was admonished by him that if he caught her with those cards, she would be fired, was not corroborated and was vague in several respects. Thus , she did not identify the person who allegedly handed her the cards. With regard to what Hanby told her, Maki testified on cross-examination: "He said, `If I catch you collecting cards at any time or discussing anything in this plant you will be fired.' Something like that." (Emphasis supplied .) Also, with regard to the time that the incident occurred , Maki twice testified that the incident occurred during lunch. On cross-examination, when it was suggested to her that Hanby had gone on vacation that day, she changed her testimony to state that the incident could have occurred during the break period at 9 o 'clock, and then later corrected her testimony to state that the break on that day came at 10 o'clock. Foreman Hanby denied that the incident occurred. He testified that he was due to start his vacation on that day, but came to the plant in the morning to do some paper work, and left at 9 o'clock. On the other hand, employee Richard Harmon testified on rebuttal that he saw Foreman Hanby in the cafeteria at the 10 o'clock break, that he, employee Glenn Barnstable , and Hanby were sitting at a table , that Barnstable asked Hanby why he was at the plant when he was supposed to be on vacation, 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that Hanby replied something to the effect that he did not have anything to do "because my wife kicked me out of the house." It is apparent from the foregoing that the credibility of both witnesses is in this instance open to attack. However, the General Counsel had the burden of proof, and I find Maki's testimony to be too equivocal to form the basis for a finding of violation. Accordingly, I recommend that the complaint be dismissed in this regard. According to Maki, another incident occurred in the early part of May 1968. She testified that she was standing in the aisle (presumably during a break ) talking to employees Richard Harmon, Barbara Kowalski, and Tucker. When she looked up, she noted that Supervisor Hegg and Foreman Hanby were watching them. She thereupon suggested to the other employees that they have coffee, and they did so. When she came back from her break, Foreman Hanby allegedly told her that he did not want to see her talking to any of the employees at any time in the plant; that she was getting them all stirred up; and that if she were caught again she would be fired, or "something like that." It does not appear from Maki's testimony whether Kowalski, Tucker, and Harmon were with her when Hanby spoke to her. In any event, Kowalski was not called upon to corroborate Maki, and although Tucker and Harmon later testified, neither attempted to corroborate Maki's testimony. Foreman Hanby denied that the incident occurred. There is a circumstance which supports Hanby's denial, viz, on May 9, 1968, Respondent posted on its bulletin board a "Special Notice" in which it stated: Your Employee Handbook contains rules with respect to solicitations and distribution of literature on Company premises by employees. These rules are not intended to restrict the rights of employees to engage in activities for or against any labor organization as provided by law. Employees may engage in activities for or against any labor organization on Company premises during their non-working periods, provided they do not interfere with the work of other employees or neglect their own work. Literature may also be passed out under the same conditions so long as it is not strewn about the premises and creates no housekeeping problem. In sum , I do not credit the testimony of Maki in this respect, and I do not find that Respondent violated the Act. Accordingly, I recommend that the complaint be dismissed in this regard. 3. The alleged discrimination with regard to Maki's injuries Maki's testimony that Foreman Hanby refused to let her go to the doctor after she had accidentally driven part of a drill into her thumb was denied by him. I find it difficult to believe Maki's testimony to the effect that Hanby told her to return to work because she had missed so much time and suggested to her that another employee help her. Such action by Hanby would have been contrary to Respondent's instructions to its employees in the Hourly Employee Handbook which admonishes employees: "In case of injury or illness, immediately notify your supervisor. Do not try to treat your own or another employees's injury." It is unrealistic to believe that Hanby's interest in production would be served by having an employee with an injured thumb continue to do production work. Moreover, if Hanby did, in fact, refuse to send Maki to a doctor, it is somewhat surprising that Maki did not appeal to Hanby's superior. The second instance in which Maki was injured while working demonstrates that Respondent's policy of having injured employees treated by a doctor was fully carried out. Accordingly, I find and conclude that the Respondent did not discriminate against Maki in the drill incident because of her union membership and/or activities. The complaint should therefore be dismissed in this regard. 4. Respondent' s meetings with Tucker and Maki As noted above, on or about June 14, 1968, Tucker admittedly "told off" Foster on working time about the latter's conduct in refusing to turn over to Maki the membership cards which Foster had solicited and returning those cards to the signers thereof. Foreman Barsanti observed that Foster and another employee, Ellen Powell, were emotionally upset and so informed Superintendent Hegg. Superintendent Hegg interviewed Powell and Foster separately, and both informed him that they were being harassed by Maki and Tucker. Superintendent Hegg then conferred with Personnel Manager Petersen, and they decided to talk to Maki and Tucker. Tucker was then summoned to Petersen's office. According to Tucker, Superintendent Hegg told her: "This is a one-way conversation. You are on a one-way road, and there is no turning back. We know of your union activities, and ... you can do that on your break or any time you want to." She was also told that if she was brought into the office one more time, she would be fired. Hegg also told her that they would move her work station to another bench and see how that worked out. Petersen's and Hegg's versions are substantially different. They testified as follows: When Tucker arrived at the office, she inquired whether or not she was going to get a chance to speak on her own behalf. Superintendent Hegg replied that this was a one-way conversation, that they were going to do the talking and she was going to do the listening . Tucker was informed that fellow employees had complained that she was harassing them about the membership cards. Both Petersen and Hegg told her that she could carry on her union activities in any way during the lunch period, break time, and before or after work, but whatever she did during those periods had to be done in such a manner that it didn't "bubble over" into the working time and have an adverse effect upon other employees. They did admit telling her that her work station would be moved. Maki was then summoned into Peterson's office. Before going in , Maki indicated that she wanted a witness, but her request was refused. According to Maki, Peterson had told her that she had been causing much trouble, was an instigator, and had better not be caught talking to anybody in the plant at any time. Maki replied that she seldom spoke to anybody in the plant, because she and others went out to lunch every day. Superintendent Hegg then told her, "I wouldn't go out any more. I would stay on the premises and eat in my car." Here, again, Petersen's and Hegg's versions are substantially different. According to their testimony, Maki was told substantially the same thing that Tucker was told with regard to union activities, viz., that she could carry them on before and after work, during the lunch period, and during rest periods, that she should so conduct such activities that they would not "bubble over" into working time. Both Petersen and Hegg denied that there was any OMNI SPECTRA, INC. conversation concerning Maki's taking her lunch period and rest periods in her car . In this connection, Foreman Hanby testified that Maki had asked him whether she could take her break in her car , and he replied that he would check with Superintendent Hegg , and that Hegg replied that he did not care where she took her break, if it was in the car, or in the cafeteria , but that if she left the company premises , she would have to punch out and punch back in.' Superintendent Hegg corroborated Foreman Hanby's testimony in this regard. Maki testified that thereafter she and several other employees went with her to have their lunch in her car. About a month later , Foreman Hanby told her not to got out to her car anymore. According to Foreman Hanby, sometime in June or July , he noticed that the employees that were taking their break in Maki ' s car were coming back 2 or 3 minutes late from their break , and he told them that if this trend continued he would ask them to take their breaks in the plant. From my observation of the demeanor of Petersen and Hegg while they were testifying , I credit their version of what occurred at these conferences . Conversely, I did not find Maki's and Tucker's testimony convincing. Furthermore, Petersen's and Hegg's statements to these employees regarding their right to engage in union activity on nonworking time was in accord with a special notice dated May 9, 1968 , which Respondent had posted on its bulletin board . However, it should be noted that the statements made to Maki and Tucker during these conferences contained a special condition , viz., that they should so conduct their nonworking time union activities in such a manner that such activities did not "bubble over" into working time . This was an improper restriction on their activities, for it was a warning to the employees that they should tone down their union activities during their free time , and in effect made them responsible for the aftereffects which their activities might have upon the other employees . Yet the Board has long recognized that the exercise of rights protected by the Act frequently produces "some irritation to employees, or unrest in a plant. . . ." (Stuart F. Cooper Co., 136 NLRB 142, 144.) Absent special circumstances, such incidental effects do The parking lot was considered to be part of the company premises 169 not justify any restriction on the activities of the employees during nonworking time. To the extent that such admonition constituted a restriction on the union activities of these employees during nonworking time, it was violative of the Act. With regard to Maki's taking her lunch and break periods in her automobile, I again credit the testimony of Petersen and Hegg to the effect that no such condition was imposed upon Maki, and I also credit the testimony of Foreman Hanby to the effect that it was Maki who requested this privilege which was granted by Hanby after consultation with Superintendent Hegg. I therefore find and conclude that Maki was in no way restricted by the Respondent as to where she could spend her lunch and break periods. The complaint should therefore be dismissed in this regard. With respect to the transfer of Tucker's work station, I find that the Respondent did not thereby discriminate against her because of her union membership and/or activities. Since the incident between Tucker and Foster had admittedly occurred on working time, it was not inappropriate for the Respondent to move Tucker from a work station immediately beside that of Foster to a distance of about 20 feet away. Nor was Tucker placed in isolation as she contends. The work stations of other employees were in the same row as that of Tucker's new work station, although not immediately beside her. To the extent that the complaint alleges that Tucker was by the foregoing conduct discriminated against because of her union membership and/or activities, the complaint should be dismissed. Inasmuch as the only violation which I find that the Respondent has committed was an admonition that Tucker and Maki should keep their union activities from "bubbling over" into working time, I conclude that it is too isolated to warrant the issuance of a remedial order. Allied Chemical Corp., National Aniline Division, 143 NLRB 260, and cases cited at page 263. My Recommended Order will, therefore, provide for the dismissal of the complaint. RECOMMENDED ORDER The complaint herein should be, and hereby is, dismissed.