Globe-Union, Inc.

80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Globe-Union, Inc. andInternational Union, United Au- tomobile, Aerospace & Agricultural Implement Workers of America (UAW). Case 16-CA-4629 FINDINGS OF FACT I JURISDICTION September 14, 1972 DECISION AND ORDER BY MEMBERS JENKINS , KENNEDY, AND PENELLO On July 19, 1972, Administrative Law Judge I Benjamin K. Blackburn issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER 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 Administrative Law Judge and hereby orders that Globe-Union, Inc., Garland, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order. 1 The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN , Trial Examiner: The charge in this case was filed on January 26, 1972, and amended on March 30. The complaint was issued on March 30. The hearing was held on May 16 in Dallas, Texas. The issues litigated were whether Respondent violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, by changing its policy with respect to free automobile bat- teries for its employees and Section 8(a)(1) by interrogating and threatening employees. For the reasons set forth below, I find Respondent violated Section 8(a)(1) but not Section 8(a)(3) of the Act. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of briefs filed by the General Counsel and the Charging Party, I make the following: Respondent, a Delaware corporation, manufactures automobile batteries at plants in various locations. The one involved in this case is in Garland, Texas. During the year prior to the issuance of the complaint herein, it received goods and materials valued in excess of $50,000 directly from suppliers located outside the State of Texas. Respon- dent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Charging Party is a labor organization within the meaning of Section 2(5) of the Act. II THE UNFAIR LABOR PRACTICES A. Free Batteries 1. Facts The events involved in this case took place in the context of an effort by the Charging Party to organize the employees at Respondent's Garland plant, apparently the latest in a series of-such efforts since the plant opened in 1956. The campaign began in July 1971 with the circulation of authorization cards among the employees. The Charging Party filed a petition for an election in Globe-Union, Inc., Case 16-RC-5845, on November 8, 1971. The Regional Director's Decision and Direction of Election issued on December 20. The election was held on January 13, 1972. The Charging Party won, 106-95. Respondent filed objec- tions on January 18. On June 28 the Board ordered a second election. Respondent has a national policy of giving each em- ployee one free battery a year. R. P. Shaner, who has man- aged the Garland plant since it opened and who is now approaching retirement, has a much more liberal policy. He, apparently, has given employees free batteries whenever they asked for them. (The record does not reveal precisely the greatest number of batteries Shaner has given to any one employee in any one year. In a response to a question about his local policy, Shaner testified, "Well, up to five and at times over five batteries a year.") Around 1969, when the number of employees in the plant began to grow, Shaner began paying lip service to the national policy by telling employees they were only supposed to get one a year. How- ever, he continued to give employees batteries whenever they asked for them. Arvil Shreves, a longtime employee of Respondent, took an active role in the 1971 organizing campaign, as he had in those which preceded it. In early August 1971, Shan- er asked Shreves what he had done to Shreves that Shreves wanted to bring a union into the plant. Shreves said Shaner had not done anything but there were three foremen he and the other men were unhappy with. Shaner said, "Well, I'll tell you what. I'll get off your back if you'll let this thing slow down some." Shreves said, "OK, I'll slow the union down if you'll get the foremen off my back." Some 3 weeks later, Shaner said to Shreves, "I thought you said you was going to slow this thing down." Shreves said, "Well, I thought you'd get the foremen off 199 NLRB No. 13 GLOBE-UNION, INC. my back. You didn't get the foremen off my back ; well, I didn't stop campaigning for the union." Clifford Jones asked for and received a battery in No- vember 1971 . Three months later, in February 1972, he got a second one. Around the first of December 1971, Shreves went to Shaner and said, "Mr. Shaner, are you going to give me a battery for my old car?" Shaner said, "No, I won't give you a battery." The next day, Shreves asked Shaner if Shaner would sell him a battery , as he had done on a prior occasion. Shaner said, "Hell, no, I won't sell you a battery." (I do not credit Shaner's testimony that this incident took place in midsummer 1971 and that Shreves asked only to buy a battery.) In December 1971, Larry Reed asked for and received a battery as he had done- previously on some 8 or 10 occa- sions since he was hired in September 1969. When he made his request to Foreman John Strickland , Strickland told him he had better get it then because, if the Union was voted in, the employees would not get any more free batteries. (I do not credit Strickland's denial that he made this statement.) Howard Griffin, who was hired in the summer of 1971, got his first free battery in November . A couple of days after the election held on January 13, 1972, he asked Shaner for another one and got it. Shaner said, "I'm going to give you this one. If you trade cars five times you better get that same battery, because there won't be anymore , just one a year from now on . You guys kicked me in the teeth when you run the damned union in on me. There's going to be a whole lot of things cut out around here." (I credit Griffin over Shaner as to this incident. Shaner testified that it occurred a few days before the election rather than after . He confirmed that he told Griffin free batteries would be limited to one a year in future. He denied mentioning the Union.) A week or two after the election , Allen Padgett had a conversation with Shaner which began when Shaner asked Padgett if he was having trouble sleeping, puzzling Padgett. A few minutes later Padgett concluded that Shaner had been referring to the election . He went up to Shaner, said he realized what Shaner had meant, and told Shaner that he had voted for the Union . Shaner reminded Padgett that he had advanced the employees $3,000 on their pay before Christmas. (Pay advances before Christmas are apparently customary.) He said the men had shown their gratitude by stabbing him in the back by voting for the Union. Padgett said his vote was nothing personal against Shaner, when Shaner retired the- Union would probably come into the plant. Shaner said, "Well, I don't want the union in here, and you guys could wait until I leave." 2. Analysis and conclusions The 8(a)(3) portion of the complaint reads, "On or about December 8, 1971, Respondent, by its supervisor and agent, Russell Shaner, withheld from its employees benefits previously enjoyed by terminating its practice of giving em- ployees batteries without charge ... because said employees joined or assisted the [Charging Party] or engaged in other Union activity or concerted activities for the purpose of collective bargaining or other mutual aid or protection." 81 During the hearing, counsel for the General Counsel con- ceded that this pleading was too broadly drawn for the evidence he had and took the position that the 8(a)(3) viola- tion for which he was really contending was that Respon- dent had discriminated against Arvil Shreves when R. P. Shaner refused to give him a battery. On either theory, the General Counsel must fail. The fact that Jones, Reed, and Griffin have all received free batteries since Shreves was denied one precludes a finding that Respondent has changed its policy of one free battery per year per employee. The fact that Jones has received two batteries in 3 months and Griffin has received two in 2 precludes a finding that Shaner has changed his more liberal policy. As to Shreves, a finding of a violation would require a finding that Shaner's refusal to give or sell him a battery was motivated by antiunion animus. I am unwilling to draw such an inference on this sparse record. While the two con- versations between Shaner and Shreves in August about Shreves' union activities clearly establish Shaner's knowl- edge of those activities, they do not clearly demonstrate strong personal animus against Shreves. In view of the long period of time between August and Shaner's refusal to give Shreves a battery, they have little weight as evidence of a discriminatory motive in December. While Shaner was op- posed to organization of his plant, as evidenced by his pos- telection conversation with Padgett, his treatment of other employees who asked for free batteries indicates that he did not try to take his feelings out on his employees. The fact that he did commit verbal 8(a)(l) does not, I think, supply the weight of evidence lacking in his August conversations with Shreves. I find, therefore, that the General Counsel has failed to prove by a preponderance of the evidence either that Respondent has changed its policy with respect to free batteries for employees or that, in the person of Shaner, it was discriminatorily motivated when Shaner refused to give one to Shreves in December 1971. Respondent has not vio- lated Section 8(a)(3) and (1) of the Act in either respect. It has, however, committed independent violations of Section 8(a)(1) by its conduct in connection with free batter- ies. It threatened employees with reprisals for engaging in union activities when Strickland told Reed in December 1971 employees would not get any more free batteries if the Union was voted in and when Shaner told Griffin around January 15, 1972, a whole lot of things were going to be cut out around the plant because the employees had done so. B. Free Gloves Respondent provides free gloves for its employees. A couple of days before the election, Reed asked Strickland for a pair of gloves. As he gave the gloves to Reed, Strick- land said that, if the Union was voted in, employees would probably have to pay for them in the future. (I do not credit Strickland's denial that he made this statement. I find that Reed and Padgett testified about the same incident. My finding as to what Strickland said on this occasion is a paraphrase of their testimony. Reed testified Strickland said "if the union got voted in we'd probably have to pay at least a dollar a pair for them." Padgett testified Strickland said "he [i.e., the employee who was asking for gloves] better get them now, because that would be the last free pair he got 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD if the union got in.") Once again, in this incident, Respon- dent threated employees with reprisals for engaging in un- ion activities in violation of Section 8(a)(1) of the Act. C. Interrogation In early August 1971 Jones was carrying authorization cards in his shirt pocket when Strickland asked him what that was in his pocket. Jones said, "What does it look like?" Strickland said, "It looks like a UAW card." Jones said, "That's what it is." Strickland said, "Are you trying to push this union?" Jones said, "Yes." Strickland said, "Don't let R. P. [Shaner] see that card." Jones said, "Why?" Strickland said, "It's been nice knowing you." (I do not credit Strickland's denial of this conversation or one with Reed under similar circumstances in early January 1972. Reed testified that cards in his shirt pocket led to Strickland's saying, "Well, Mr. Shaner is going to start finng people that's passing out those union cards on company time and carrying them in their pockets." I make no finding of a violation on the basis of the Reed conversation. Coun- sel for the General Counsel offered Reed's testimony in support of paragraph 7(a) of the complaint. Paragraph 7(a) only alleges interrogation of employees by Strickland on or about August 6, 1971.) I find that Respondent interrogated employees in vio- lation of Section 8(a)(1) of the Act when Strickland spoke to Jones in this vein in August 1971. Upon the foregoing findings of fact, and upon the en- tire record in this case, I make the following: CONCLUSIONS OF LAW 1. Globe-Union, Inc., is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW), is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening in December 1971 to change its poli- cy with respect to free batteries for employees, by threaten- ing on or about January 11, 1972, to change its policy with respect to free gloves for employees, and by threatening on or about January 15, 1972, to take other reprisals against employees for engaging in union activities, as well as by interrogating an employee in August 1971 about his union activities, Respondent has violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. The allegation of the complaint that Respondent violated Section 8(a)(3) and (1) of the Act on or about December 8, 1971, by terminating its practice of giving employees batteries without charge has not been sustained. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:' ORDER Globe-Union, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening to change its policy with respect to free batteries for employees in reprisal for their union activities. (b) Threatening to change its policy with respect to free gloves for employees in reprisal for their union activities. (c) Threatening to take other reprisals against employ- ees for engaging in union activities. (d) Interrogating employees about their union activi- ties. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act.: (a) Post at its plant in Garland, Texas, copies of the attached notice marked "Appendix."2 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent's authorized repre- sentative, 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. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other mate- rial. (b) Notify the Regional Director for Region 16, in writ- ing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.3 IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges Respondent violated Section 8(a)(3) and (1) of the Act on or about December 8, 1971, by terminating its practice of giving employees batteries without charge. 1 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, 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 2 In the event that the Board's Order is enforced by a Judgment of a United State 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 " 3 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 16, in wasting, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a GLOBE-UNION, INC trial, that we violated Federal law by threatening and inter- rogating you, we hereby inform you that: The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all of these things. WE WILL NOT threaten to change our policy with respect to free batteries for employees in reprisal for your union activities. WE WILL NOT threaten to change our policy with respect to free gloves for employees in reprisal for your union activities. WE WILL NOT threaten to take other reprisals against you for engaging in union activities. WE WILL NOT interrogate you about your union ac- tivities. WE WILL NOT in any like or related manner interfere 83 with you or attempt to restrain or coerce you in the exercise of the above rights. All our employees are free, if they choose, to join Inter- national Union, United Automobile, Aerospace & Agri- cultural Implement Workers of America (UAW), or any other labor organization. Dated By GLOBE-UNION, INC (Employer) (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, Federal Office Building, Room 8-A-24, 819 Taylor Street, Fort Worth, Texas 76102 , Telephone 817-334-2941.