U.S. Industries, Inc.

466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Con-Plex Division of U.S. Industries, Inc. and Charles R. Morrison. Case 16-CA-4572 November 24, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY On June 1, 1972, Administrative Law Judge' James T. Rasbury issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respon- dent filed a brief in answer to the General Counsel's exceptions and also a brief in support of its cross- exception. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. i The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES T. RASBURY, Trial Examiner: This proceeding was heard before me in Fort Worth, Texas, on March 2 and 3, 1972, upon the complaint of General Counsel and the answer of Con-Plex Division of U.S. Industries, Inc., hereinafter referred to as Respondent.' The complaint alleges violations of Section 8(a)(1) of the Labor Manage- ment Relations Act, hereinafter referred to as the Act, on the part of the Respondent. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine ' The original charge was filed December 1, 1971, by Charles Morrison on behalf of himself and 21 named individuals, and complaint issued January 17, 1972 The name of the Respondent was incorrectly set forth in the original complaint and following a motion to dismiss or correct filed by Respondent, a new charge was filed on February 2, 1972, and complaint issued February 3, 1972 All dates hereinafter are 1971 except where otherwise indicated witnesses, to argue orally and to file briefs. The parties filed briefs and they have been carefully considered.2 Upon the entire record of the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Delaware corporation maintaining plants in several States of the United States, including the facility involved in this proceeding which is located on Highway 67 in Midlothian, Texas. Respondent is engaged in the construction of concrete light standards for the Dallas-Fort Worth Regional Airport Authority. During the past year, Respondent in the course and conduct of its business operations, purchased, transferred, and delivered to its Midlothian, Texas, plant goods and materials valued in excess of $50,000, which goods and materials were transferred to the plant from States of the United States other than the State of Texas. On these admitted facts, I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The issues involved herein might be stated in the form of two questions : ( 1) Did Respondent, in violation of Section 8(a)(1) of the Act, interrogate its employees , create an impression of illegal surveillance of the employees' union activity, and/or threaten to close its plant if the Union got in? (2) Did Respondent discharge a number of employees on November 30 and/or allegedly refuse to reinstate them on December 1, because of their participation in protected concerted activities and, thus, violate Section 8(a)(1) of the Act? B. Background Facts Respondent's plant involved in this proceeding is an open area of some 28 acres located adjacent to Highway 67 in Midlothian, Texas, where Respondent is engaged in the manufacturing of concrete light standards that will be utilized by the Dallas-Fort Worth Regional Airport Authority. All work is performed out in the open and the only buildings are of temporary construction. The work area is laid out in three production lines-one line is fascia, one columns, and one beams-all performing essentially the same kind of work. All the employees involved herein worked on the column line. The total daylight work force numbered 220 employees. The men worked in crews of four or five men each. The principal issue in the instant case centers around the conduct, on November 30 and December 1, of four crews along with their crew leaders-a total of 22 employees-and manage- 2 Following the receipt of briefs from the parties , a motion to strike a portion of the General Counsel's brief or reopen the hearing was filed by the Respondent's counsel General Counsel responded by indicating he did not oppose the motion to strike Therefore , it is ordered that the words commencing, "It is submitted," at 1 24, p 14 and continuing thereafter through the words "Counsel's theory" in the fourth line on p 15 of the General Counsel's brief shall be and hereby are stricken 200 NLRB No. 78 CON-PLEX DIV OF US INDUSTRIES merit's response thereto in addition to some alleged unlawful coercive and interfering comments by supervi- sors More specifically the work involved the building or preparation of a form about 30 feet long and 2 or 3 feet wide into which was placed electrical conduit and then concrete was poured into the form. After a certain steam drying process, the forms would be removed, the columns subjected to further "heat treat" curing, and then the light standard would be sandblasted or finished off to specifica- tions. The color specifications were particularly rigid, and management contended this was a major concern because each column or standard had a value of $1,600 and was subject to (and sometimes incurred) rejection because of failure to meet the required architectural color specifica- tions (See Resp Exh. No. 5). The job started in May and was scheduled for completion in mid-December, although it had not been fully completed at the time of this hearing-March 1972. According to the testimony of Charles Morrison, the Charging Party herein, he had been hired in September as a crew leader. Shortly after Morrison started to work, a number of employees complained about the working conditions and when other efforts to contact a union organizer or business agent failed, he (Morrison) made arrangements through his former mother-in-law (a former union representative) to contact a union representative3 Thereafter, an initial meeting with a machinist union representative occurred on or about October 26 There was considerable discussion on the job relative to the pluses and minuses of a union. According to the testimony of Floyd Burns, a crew leader, sometime around November 1, Clyde Steil, the foreman, called Burns off to one side away from the production line and asked, "What's this about a union?" Burns replied that there had been a meeting, and then Steil asked, "Well, what was the results?" Burns then expressed his opinion in favor of the union to which Steil responded, according to Burns, that he was personally opposed to the Union and the Company was against the Union. Burns further testified that around November 15, Steil again called Burns off to one side of the production line and inquired as to how the union was going. Burns replied, "Well, it doesn't look too good. We haven't been able to sign up enough men to help us." Sometime around November 3 or 4, according to Morrison's testimony, he was sitting in the toolshed eating his lunch with Steil when Steil questioned him about the union meeting--where it was held and how many had turned out Following this they discussed or argued the merits of unionism, with Steil expressing himself in opposition to unions and Morrison disagreeing. Steil was unable to recall any specific conversations with either Burns or Morrison although he acknowledged that the Union was discussed rather freely and openly on the job. Steil denied ever having said the Company was opposed to d Employee interest in the Union was apparently minimal and we are not herein concerned with organizational misconduct or legal problems other than the alleged 8(a)(I) remarks that will be discussed hereinafter As General Counsel accurately noted in his brief, "inspite of the efforts of some of the employees, the Union campaign never really got off the ground" 467 unions. He testified that the Company had unions at other locations. Morrison testified that sometime around November 10, Tom Wilson, who was the plant superintendent, walked by where Mornson and Howard Hanna were working and while looking at them said, "Well, now I know who the business agent is, and I know his assistant, William Howard." According to Mornson, this comment was not acknowledged in any way by either Morrison or Hanna and nothing further was said by Wilson. According to the testimony of Morrison, he had frequent conversations with VanDevender-the project engineer who served as acting foreman in place of Stell from November 22 until about December 15 The conversations were of a general nature regarding many subjects including unions, but Morrison testified that VanDevender told him "the Company would never go for a umon, that they would close the plant down first." VanDevender acknowledged having had many conversations on a great variety of topics with Mornson and acknowledged that he might have said something like the Company would never go for a union and would close the plant down first, during his many exchanges with Morrison. However, VanDevender testified that he attended the management seminar (held by Respondent on November 12), at which time he was advised concerning the "dos" and "don'ts" toward unions and that Mr. Ashley, the area manager, specifically instructed him not to talk with employees about unions. VanDevender testified he followed the instructions. (In which event, his union conversations did not occur during the period of time he served as an acting foreman.) C. The Events of November 30 and December 1 The weather was undoubtedly uncomfortably cool on the morning of November 30. Management's records indicate it ranged between 42 and 44 degrees. Bums and Morrison testified it was rainy on November 30. The Company records only indicated it was cloudy. Morrison testified that the men in his crew and others working alongside him (totaling about 12 employees) complained of the cold and about 9 a.m. he asked Billy VanDevender if it would be permissible to build a fire. VanDevender replied in the negative, but indicated he would make a further inquiry. A short time later, VanDevender advised Morrison that Tom Wilson had said there could not be any fires on the job. Later in the morning, about 10 or 10:30 a.m., the weather was still disagreeable and according to Morrison after he had checked with the crew leaders, Peter Griggs, William Griggs, and Floyd Burns, the men in those three crews, plus his own, were ready to go home "if we couldn't have fires." This was reported to VanDevender who asked the men to hold off until he could talk to Wilson again. When the answer remained "no fires," some 20 employees left the job.4 4 The record is less than crystal clear as to the exact number of employees involved The complaint sets forth the names of 22 employees, including Armando Gutierrez and Ralph Johnson The General Counsel was apparently satisfied from the testimony that Armando Gutierrez was not present on November 30 and was incorrectly named in the complaint (Continued) 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Apparently it was necessary for the men to go to the toolroom before leaving the job and there VanDevender again tried to encourage the men to remain and indicated to them that they would be "quitting" if they left thejob Burns testified he said they (meaning all the men who were walking off) were not quitting, "We'll he back in the morning, ready to go to work." The men met in the parking lot and all agreed to come back to work the next morning. The following morning, at the regular starting time, most of the men who had walked off on November 30 were in the toolroom.s Just what occurred in the toolroom on December 1 is in direct conflict General Counsel's witnesses testified that VanDevender made some comment to the effect, "what are you fellows doing here, you quit, we are not hiring." Tom Wilson is reported to have said, "What are you doing here? We presumed you quit yesterday. You walked off the job Turn in your hard hats, and get off the premises." According to Respondent's evidence, VanDevender, Wilson, and Ashley all walked into the toolroom at the same time, having proceeded there from the office where VanDevender had parked his company pickup truck. On the way walking down to the toolshed, it had been decided that Tom Wilson would act as the company spokesman. According to Wilson, he asked Peter Griggs what they were doing there and Griggs said, "We're ready to go to work." Wilson then asked, "Are you ready to go to work without fires?" To which Griggs responded, "No, if we go to work today we are going to have to have fires." To which Wilson responded, "Well, we won't permit fires on this lot. We didn't allow them yesterday and we won't allow them today." Griggs then commented that other construction companies allowed fires. The testimony of Ashley and VanDevender corroborated Wilson's testimo- ny A number of the men turned in their hard hats and left the job. After gathering on the parking lot, the group decided to go to a cafe in Cedar Hill There they decided to go to the Labor Board to see what could be done about getting their jobs back After going to Dallas and being instructed that the Regional National Labor Relations Board office was in Fort Worth, the group authorized Morrison, Burns, Bowman, and Knowles to go to Fort Worth and file charges on their behalf. D Analysis and Legal Conclusions All of the interrogation or coercive comments that are alleged to have occurred took place between supervisors and there is no proof in this record that it was overheard by rank-and-file employees, or in any way interfered with, restrained, or coerced employees in the exercise of their rights as guaranteed by Section 7 of the Act Morrison, In his brief, he moved to have Armando Gutierrez' name deleted from the complaint Ralph Johnson's name was included in the complaint VanDevender credibly testified that Ralph Johnson was attending his aunt's funeral on November 30 and the daily timesheet for November 30 (Resp Exh No 6) indicated Johnson's absence for the entire day Peter Griggs testified that Armando Gutierrez, Efrain Martinez. Reynaldo Trevino, and Juan Rodriquez were late in arriving and that he saw their car entering the parking lot as he was leaving None of these individuals came forward as witnesses to testify Evidence that these men ever offered to return to work is lacking General Counsel explained at the Burns, and Peter Griggs had titles of leadmen, but each was responsible for the work performance of his respective crew. Morrison testified that he told his crew what to do and he helped them do it. Burns was more candid when he acknowledged, "I had pretty good responsibility." He testified that he directed the efforts of his crew in building the forms and that he had the authority to report to Mr Steil if a man "didn't do what he was supposed to, or didn't do what I told him, just to come tell him [Steil]." In response to the question, "And then what would he [Steil ] do')" Burns responded, "He told me he'd get rid of him." While it is clear that Morrison, Burns, and Griggs were working supervisors it is equally clear they had the authority to make recommendations that would effect the employer-employee status of the men in their respective crews.6 The testimony indicates that their responsibility in directing the efforts of their respective crews was more than routine or clerical in nature and I so find. The crew leader received a higher rate of pay than the other members of his crew and had skills not possessed by the rank-and-file employees (i.e. ability to read blueprints). The evidence as to the statement alleged to have been made by Tom Wilson relating to the identity of the business agent and assistant business agent is too vague and ambiguous to have any real meaning, if indeed the remark was made Morrison's testimony was inaccurate as to the employees who left work on November 30, as to the employees who were present and departed on December 1 and he acknowledged a misrepresentation in his applica- tion for employment. For these reasons, I am not able to credit the testimony of Morrison. The alleged conversations between Steil and Morrison, and Steil and Burns , assuming they did occur, were of a most casual and innocuous nature and can hardly be said to have interfered with, restrained, or coerced the employ- ees The only possible statement made that might be violative of the Act was VanDevender's statement to Morrison relating to the closing of the job in the event of a union. Based on the testimony of VanDevender, I find this statement was made when VanDevender was the quality control engineer at a time when he was totally without supervisory authority and the remark could not be attributable to the Respondent. Such a statement made by a naive young engineer in his firstjob following graduation could not possibly have had a "chilling" effect on Morrison. For the reasons indicated above, I will recom- mend dismissal of the alleged interrogation, threats, and remarks tending to create an impression of surveillance. The action of the employees on the morning of November 30 in leaving the job was clearly protected concerted activity. N L R.B v. Washington Aluminum Co., 370 U.S 9 (1962) The weather was uncomfortably cool hearing that despite his efforts he had been unsuccessful in reaching any of the employees involved herein except the three that testified-Peter Griggs, Floyd Burns, and Charles Morrison 6 Sec 2( 11) defines a supervisor The term "supervisor" means any individual having authority, in the interest of the employer, to hire , transfer, suspend, lay off, recall , promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment CON-PLEX DIV OF US INDUSTRIES and the employees had a protected right to concertedly protest the Respondent's refusal to allow open fires.7 In support of this right they walked off the job and became economic strikers There is no proof in the record that they had been discharged or had been replaced as of 7 a.m. on December 1 when they returned to works This case turns on the truth of what occurred at the toolshed on December 1. While neither Burns or Morrison testified to any mention of fires by management, the testimony of Peter Griggs tends to support the testimony of Tom Wilson who was, of course, corroborated by Ashley and VanDevender. It seems more logical that Griggs would not have found it necessary to comment about the practice of other compa- nies allowing fires, if the employees had presented themselves for work without reservations or conditions attached to their return to work. Weatherwise, December 1 was a day very similar to November 30 and it seems logical that Respondent would have inquired concerning the willingness of the employees to work under the same conditions as had prevailed the day before. I credit Tom Wilson's version of the conversation that transpired on December 1 and in so doing, find that the employees involved failed to make an unconditional offer to return to work. I find it totally incongruous with the facts of the r While this case does not turn on the motivation of the Respondent in its course of conduct, the record is abundantly clear that the rule against open fires was reasonable and was uniformly enforced H The General Counsel contends the employees were discharged and analogizes the instant situation to Tonkawa Refining Company, 184 NLRB No 6, enfd sub nom N L R B v Tonkawa Refining Company, 434 F 2d 1318 (C A 10) In Tonkawa the employees were told not once, but several times, by the plant manager that they were regarded as "quits " In Tonkawa, at a meeting of the striking employees called by Respondent, the Respondent's counsel told the employees they would be considered as having quit their jobs if they failed to show up for work the next morning I cannot regard the casual comment by an acting foreman, as in the instant case, as having the same authoritative effect as the comments by the plant manager and attorney in the Tonkawa case Obviously the employees involved herein did not regard VanDevender s comment as meaningful, because they returned 469 business world that Respondent would have denied these employees their jobs-absent special concession demands -when the employees were experienced and badly needed to complete a project that was already beginning to be behind schedule. In summary, I find that convincing evidence is lacking to sustain the allegations of unfair labor practices on the part of Respondent. Accordingly, I shall recommend the dismissal of the complaint 9 CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(6) and (7) of the Act. 2. Respondent has not engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act. 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: 10 ORDER The complaint is dismissed in its entirety the next morning as they said they would 9 Respondent urged in its brief that Respondent be reimbursed costs and expenses in accord with Tndee Products, Inc. 194 NLRB No 198 The motion is denied While the Trial Examiner has recommended dismissal of the complaint in its entirety, the decision is on the basis of resolving credibility in favor of Respondent's witnesses vis-a-vis the witnesses appearing for General Counsel and not because the complaint was either frivolous or clearly unwarranted 10 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec 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