Gibson Greeting Cards, Inc.

GIBSON GREETING CARDS Gibson Greeting Cards, Inc. and Janet Middlebrooks. Case 9-CA-7390 August 3, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On April 30, 1973, Administrative Law Judge Paul Bisgyer issued the attached Decision in this proceed- ing. Thereafter, General Counsel filed exceptions and a supporting brief, and Respondent filed cross-excep- tions and a brief in support thereof and in answer to the General Counsel's exceptions. 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 at- tached 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 Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. DECISION STATEMENT OF THE CASE PAUL BISGYER, Administrative Law Judge: This proceed- ing, with all the parties represented, was heard on February 8, 1973, in Cincinnati, Ohio, on the complaint of the Gener- al Counsel issued on December 19, 1972,1 and the answer of Gibson Greeting Cards, Inc., herein called the Respon- dent or Company. In issue is the question whether the Re- spondent interfered with, restrained, or coerced employees in the exercise of their self-organizational rights in violation of Section 8(a)(1) of the National Labor Relations Act, as amended .2 At the close of the hearing, the parties waived 1 The complaint is based on original and amended charges filed by Janet Middlebrooks on October 30 and December 11, 1972, respectively, copies of which were duly served on the Respondent by registered mail on November 3 and December 13, 1972, respectively 2 Section 8(a)(1) of the Act makes it an unfair labor practice for an employ- er "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7" Insofar as pertinent, Section 7 provides Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities 239 oral argument but subsequently the General Counsel and the Respondent filed briefs in support of their respective positions. Upon the entire record, and from my observation of the demeanor of the witnesses, and with due consideration being given to the arguments advanced by the parties, I make the following: FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE RESPONDENT The Respondent, a Delaware corporation, is engaged in the manufacture of greeting cards and other items at its principal place of business in Cincinnati, Ohio. It annually ships directly from its plant manufactured products valued in excess of $50,000 to its customers located outside of Ohio. It is conceded, and I find, that the Respondent is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that International Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence 1. Advent of the Union; questions presented On or about September 7, 1972,3 the Union initiated a drive to organize the Respondent's employees with the dis- tribution of handbills in front of the plant 4 A second distri- bution occurred shortly before October 24. It is the General Counsel's position that two supervisors, Ronald Hartman and Hugh L. Sweeney, unlawfully interfered with the Union's organizational efforts on four occasions. To sup- port his case, the General Counsel presented the testimony of employees Robert Crisp, Gene Paytes, and Thomas Sta- cy, all of whom solicited employees to sign union cards and attended union meetings. The Respondent denies the com- mission of any unfair labor practices and the supervisory status of Hartman and argues that, in any event, the effects of the conduct in question were neutralized by the Respondent's notice to employees posted on November 28. We turn to the evidence which doubtlessly is far from over- whelming. 2. Assistant Supervisor Hartman's remarks to employee Crisp Crisp, a machine adjuster in the packaging department, for the purpose of collective bargaining or other mutual aid or protection 3 All dates refer to 1972 4 There is some evidence of an earlier abortive organizational effort by an unidentified union. 205 NLRB No. 50 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has been in the Respondent's employ for some 5 years. On the morning of September 8, the day following the Union's appearance at the plant , Assistant Supervisor Hartman 5 came to Crisp's machine, as he customarily did, with orders for the "day's run." Crisp, who was on friendly terms with Hartman and had known him from high school days, raised the subject of the Union's appearance at the plant.' There is a conflict in the testimony as to what was said in the ensuing conversation. According to Crisp, the following transpired : He asked Hartman "what about this union out front last night?" Hartman replied , "Boy, you will get fired mentioning that around here ." Cnsp thereupon stated that the union cards which were distributed the night before indicated that the employees were protected by Federal law. To this, Hartman remarked that "they can use any excuses they want to fire you, they don't have to mention union." Under cross-examination, Crisp testified that Hartman told him that he (Crisp) would be fired if he got involved in union activities but that Hartman did not identify who would do the firing. Crisp further testified that he did not regard Hartman's statements as a threat 7 but interpreted them "[a]s a conversation." According to Hartman's account, Crisp asked him if he had received "a passout" upon leaving the plant the night before and he gave an affirmative answer , adding that he did not want "to have anything to do with it; that you could possibly lose your job over it"; and that he had thrown his "paper" in the garbage. Hartman also testified that Crisp made no response . In addition, Hartman categorically de- nied that he ever told Crisp, in substance, that the Company could find a way to fire him. It is thus clear from both versions of the conversation that it was Hartman who raised the specter of an employee's discharge for supporting the Union. I find Crisp's further testimony plausible that Hartman also indicated that the Company could utilize a pretextual reason to justify such a discharge. As later discussed, employee Paytes credibly tes- tified that Hartman made a similar statement to him. Ac- cordingly, I credit Crisp's testimony concerning his September 8 conversation with Hartman. 3. The Union's second distribution of handbills; the Respondent's announced opposition to the Union and other events on October 24 Nothing of significance seems to have occurred from Sep- tember 9 until shortly before October 24, when the Union again appeared outside the plant and distributed leaflets. On the latter date, the Respondent had the manager of each department read to employees under his supervision a pre- pared statement of the Company's opposition to the Union. The written statement was not put in evidence and no claim 5 As later found, Hartman is a supervisor within the statutory definition 6 According to Crisp's uncontradicted and credited testimony, he and Hartman had conversations in the past concerning union, although "union" is "dirty word" not mentioned in the plant It further appears that both of them also had frequent conversations on other subjects in which they "agitat- ed each other" It appears from Crisp's testimony that during the investigation of the charges herein a Board agent explained to him the coercive implications of Hartman's remarks is made that it exceeded permissible limits of privileged speech. Crisp credibly testified, without contradiction, that, after Karl Sipple, manager of the assembly operations, read the statement to the employees in Crisp's area, Crisp was unable to secure a copy of the statement to show the union representatives, although the Company was willing to have Sipple reread it to him if there was anything in it that he did not understand. On the same day, while employees Stacy and Paytes were at the latter's machine discussing the statement Sipple had read to the employees, Assistant Supervisor Hartman ap- proached and ordered them not to huddle. Stacy thereupon left. There is an irreconcilable dispute whether, after Stacy's departure , Paytes engaged Hartman in a conversation. Paytes testified that the following occurred: He asked Hart- man why he told them not to huddle. Hartman answered "because they will think you are talking union." When Paytes retorted that employees "have a right to talk union," Hartman responded, "Yes you do but they will find rea- sons to get rid of you." At one point, Hartman also stated that he knew who the organizers were but would not tell Paytes. Paytes further testified that he did not believe that Hartman, whom he considered a friend, was threatening him. Contradicting Paytes, Hartman denied that such a conversation ever occurred and specifically disclaimed making the statements attributed to him. Paytes impressed me as a candid and honest witness and not one who would contrive a story to involve a friend, such as Hartman was. Moreover, as an employee of the Respon- dent for 5 years working under Hartman's supervision, it is highly unlikely that Paytes would bear false testimony against him.8 Nor do I find that Paytes' willingness to give the foregoing testimony to help the Charging Party, who claimed that she was being subjected by the Company to disciplinary action because of her union activity," impugns Paytes' credibility, as the Respondent argues. I, according- ly, accept Paytes' account of his conversation with Hart- man. Another incident alleged to violate employees' self-orga- nizational rights occurred on the same day (October 24) and involved Hugh L. Sweeney, supervisor of the packaging department and employee Stacy who worked under him. Here, too, there is a serious conflict in testimony . The fol- lowing is Stacy's account: While walking by Sweeney's desk, Sweeney stopped him and advised him to "watch" with whom he runs around. Stacy inquired whether Swee- ney meant Wes Devord,10 another employee. Sweeney an- swered that he did not and asked whether he was a friend of Bob Crisp. In reply, Stacy said that they were "not real big friends" but he knew Crisp and inquired what Sweeney was talking about. Sweeney responded that, if Stacy didn't 8 Georgia Rug Mill, 131 NLRB 1304, 1305, In 2 9 The original unfair labor practice charge filed by Janet Middlebrooks on October 30 alleges that "[o]n or about October 4, 1972 and thereafter [the Respondent] has harassed Janet Middlebrooks because of her activities on behalf of the [the Union] " No such allegation, however, was included in the complaint 10 It appears that at an earlier date Devord was charged with assault and battery on a policeman For this reason, Sweeney had spoken to Stacy many times and advised him not to associate with Devord Although Stacy conced- ed that Sweeney was good intentioned when he spoke to him about Devord, he thought his associations should not be discussed on company time. GIBSON GREETING CARDS 241 know, he was "in pretty bad shape ." When Stacy repeated his inquiry, Sweeney answered that he could not "say the word but you should know what I mean." This evoked Stacy's remark that "[t]here is only one word around here that is mean and nasty and I am not going to say it either." On this note, the conversation ended . Stacy testified that the word he was referring to was the union . According to Stacy, Crisp was more actively involved in soliciting employee signatures to union cards than any other employee. Sweeney, who it appears had some personal interest in Stacy's progress in the plant , testified that in his conversa- tion with Stacy on October 24, he was referring to Devord but deliberately refrained from identifying Devord by name because he feared for his safety at the hands of Devord if Stacy reported the conversation to Devord . Specifically, Sweeney testified that, after seeing Stacy speaking to De- vord on three or four occasions on October 24 away from their work areas, he approached Stacy and told him that he was "bumming with the wrong people again , [and] if you keep it up you are going to get in trouble ." Although Swee- ney testified that that was the extent of the conversation and that Stacy did not ask him what was he driving at, he did subsequently admit that Stacy made that inquiry and that he (Sweeney) told Stacy that he thought that Stacy knew to whom he (Sweeney) was referring. Sweeney also testified that he could not recall whether he mentioned "the word" in the conversation but, when shown his pretrial affidavit which he had previously given to a Board agent , he agreed that he did use that term . He further testified that he used that term to describe Devord and, as indicated above, he did so in order to avoid bodily harm should Stacy relate his remarks to Devord. However , Sweeney admitted that in prior conversations with Stacy after Devord had been charged with assault and battery on a policeman, he told Stacy that, in associating with Devord, "he was not bum- ming with the right kind of people." It strains one's credulity to believe Sweeney's testimony that he feared that Stacy would inform on him to Devord if he told Stacy not to associate with Devord by name but that he was not apprehensive if he referred to Devord in his conversation by clear implication . It is even more difficult to accept Sweeney's testimony in view of his admission that on many prior occasions he was not reluctant to identify Devord by name when he advised Stacy not to associate with him . Indeed, there is no evidence that on those occa- sions Stacy reported Sweeney's remarks to Devord or that Sweeney, as a consequence , suffered injury at the hands of Devord . On the other hand, I find Stacy a very convincing witness who, I doubt, would testify falsely and thus incur his supervisor's displeasure . Accordingly, I credit his testimony. 4. November 8 episode The complaint alleges that on or about November 8 Su- pervisor Sweeney threatened "employees with discriminato- ry disciplinary action if they were seen talking to other employees outside their work areas, in an attempt to impede the Union's organizational campaign . ..." As there is no substantial evidence of improper motivation on Sweeney's part with respect to this incident, it is unnecessary to make detailed findings or credibility resolutions. Employee Crisp testified that on November 8, Sweeney approached him at his machine and angrily told him that he was not to leave his area or talk to anyone, although he had not been previously restricted to his work area. However, it appears that Crisp actually was not prohibited from leaving the area to secure supplies or for other business reasons but, if he left for such reasons, he was required to inform his supervisor or his coworkers where he was going so that he could be located when needed . Crisp further testified that a day or two later he ignored Sweeney's admonition and left his work area without permission to make a personal tele- phone call; that on his way back he met Sweeney who asked him whether he had reported to anyone that he was leaving his work area to make the call ; that he told Sweeney that he had not ; and that Sweeney shook his head in disgust and walked away. Crisp also testified that he was surprised that he was not given a written disciplinary notice for this infrac- tion. According to Sweeney, his reprimand of Crisp originated in an incident that occurred earlier in the day on November 8. Hartman and Sweeney testified , without contradiction, that before noon of that day, Crisp left his work area to make a telephone call; that, in his absence, a machine broke down and Hartman was unable to locate him to fix it be- cause Crisp failed to inform anyone where he was going; that when he returned Crisp admitted to Hartman that he did not have permission to make the call and expressed his regret ; and that Hartman then reported the incident to Sweeney. Concerning the reprimand , Sweeney testified, as follows: In the afternoon he was informed that Crisp was again using the telephone . He thereupon went to the "break area," where the telephone was located , and saw Crisp still on the telephone . When Crisp finished his call, Sweeney repri- manded him for using the telephone without permission; mentioned that Crisp had done the same thing in the morn- ing; and warned Crisp that he would receive a written disci- plinary notice if he repeated this offense. As indicated above, regardless of whose version is cred- ited, no violation is established. The record is devoid of any evidence indicating that the Sweeney's instructions and warning to Crisp were dictated by Crisp's union activities. 5. The Respondent's disavowal notice to employees Felix S. Gora, the Respondent's plant manager, testified that, after the original unfair labor practice charge in this case was filed on October 30, he became aware that a con- tention was being made that certain supervisors were unlaw- fully restricting discussions of unions. As a result, Gora testified, the document, quoted below, signed by Personnel Director Jim Johnson was posted on November 28 on bulle- tin boards located throughout the building . This document read, as follows: NOTICE It recently came to my attention that some weeks ago a statement was made to a Gibson employee which 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD might be taken as warning that disciplinary action could result from lawful activities such as discussions of unions. This, of course, is not Gibson policy. Discus- sions of any matters have always been permissible as long as they do not interfere with the performance of job responsibilities. /Jim Johnson There is no evidence, nor is it contended, that this notice did not come to the attention of the employees. 6. Hartman's supervisory authority Since 1969 Hartman has been an assistant supervisor in the packaging department working under Supervisor Swee- ney. The packaging department employs some 79 employ- ees. Hartman is immediately responsible for several sections in that department, directing the work of 23 to 30 employees and sometimes as many as 40. In Sweeney's absence and when Sweeney takes his 5-week vacation, Hartman is in charge of the entire packaging department. Like Sweeney, who concededly is a supervisor under the Act, Hartman is hourly paid.) i Hartman receives from Sweeney work orders which origi- nate in the production control department. Hartman, in turn, distributes these orders among the machine operators and is responsible for their proper execution. When a T.O. (temporary out of line) order is received by him, he sees that, in accordance with established procedures , it is given priori- ty over other orders in process. He helps employees solve problems they may encounter in their work and, when there is a shortage of stock handlers, he may temporarily assist in such duties. As part of his responsibilities, Hartman de- termines what machines to operate and transfers employees from one machine to another.12 In addition, Hartman sees that employees return to work on time after having their lunch and that they do not leave their work areas unnecessarily. He also may grant an employee's request for time off during the day, although Hartman testified he first speaks to Sweeney about the re- quest. In Sweeney's absence, Hartman approves employees' timecards. It is undisputed that Hartman does not have the authority to hire, promote, discharge, or suspend employees or grant merit increases. However, with respect to merit increases, Sweeney has "occasionally" spoken to Hartman concerning the performance of an employee under consid- eration. Moreover, Hartman has issued to employees verbal and written warnings with respect to "questions of a lesser nature," such as consistently returning late to work from lunch or leaving the employee's work area without notifica- tion to him or Sweeney.13 There is also undisputed testimo- ny by employee Crisp that he was given a disciplinary notice for insubordination toward Hartman. Finally, to assure that it Hartman testified that he earns more than the employees he supervises except 9 of the 13 men 12 I do not credit Hartman's testimony that he exercises that authority only after consulting Sweeney In his pretrial affidavit, Hartman did not qualify his authority to transfer employees 13 Although Hartman testified that before issuing a warning , he consults with Sweeney or, in his absence with Karl Sipple, Sweeney's superior, his pretrial affidavit does not contain this qualification I do not credit Hartman's testimony in this respect employees did not overlook his supervisory status, Hartman questioned Crisp and Stacy whether they knew who their immediate supervisor was and approved their responses acknowledging that it was Hartman. In view of the foregoing, I find, contrary to the Respondent's contention, that Hartman responsibly directs employees in the sections assigned to him in more than routine fashion and that, in performing his duties, he exer- cises independent judgment sufficient to constitute him a supervisor within the statutory definition.14 B. Concluding Findings As indicated above, the General Counsel relies on four incidents to establish that the Respondent interfered with, restrained, and coerced employees in the exercise of their self-organizational rights, in violation of Section 8(a)(1) of the Act. One of these incidents involves Supervisor Sweeney's November 8 limitation placed on employee Cusp's departures from his work area. I have found no evidence that this restriction was improperly motivated by a desire to impede the union campaign, as alleged in the complaint, rather than by legitimate production consider- ations and I therefore conclude that the Act was not violat- ed in this respect. The other three instances of alleged misconduct concern the separate responses of Assistant Su- pervisor Hartman, at best a minor functionary, to inquiries made of him by employees Crisp and Paytes, and an admo- nition given by Supervisor Sweeney to employee Stacy. I am not persuaded that, under the special circumstances of the case, that Hartman's remarks and Sweeney's admonition had such a coercive impact on the employees as to consti- tute an infringement of their statutory rights. Without repeating the details, Hartman on September 8, in reply to Crisp's question what he thought of the Union's appearance at the plant the day before, stated that employ- ees could be fired for mentioning the Union "around here" and that the Company could find nonunion reasons tojusti- fy the discharge. A similar statement was made by Hartman to Paytes more than 6 weeks later when Paytes asked Hart- man why he previously told Stacy and him not "to huddle." Specifically, Hartman answered that the Company would think they were "talking union" and that, although Hart- man acknowledged that employees had the right to talk about unions, he added that the Company, however, could find reasons "to get rid of you." Hartman also indicated that he was aware of the identity of union organizers. Mani- festly, Hartman's remarks were not part of a deliberate antiunion campaign undertaken by him or the Respondent to dissuade employees from joining or supporting the Union but appear to be an expression of his personal opinion elicited by inquiries of two employees, Crisp and Paytes, with whom Hartman was on friendly terms. In fact, Crisp frequently engaged in conversations with Hartman con- 14 Section 2(11) of the Act defines the term "supervisor" as meaning- any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, re- ward, or discipline other employees, 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 GIBSON GREETING CARDS cerning various subjects, including unions. Viewing Hartman's statements in the context in which they were made and the friendly relationship of the parties to the conversations, I have no reason to believe that Crisp or Paytes thought that Hartman on the occasions in question did more than conjecture about the Respondent's possible reaction to the union movement. Indeed, it is probably be- cause Crisp and Paytes did not regard Hartman's remarks as reflecting company policy that they candidly admitted that they did not feel threatened, although, to be sure, a threat need not be effective to constitute unlawful restraint upon employee rights.15 Moreover, if there were any doubt that Hartman's statements did not represent company poli- cy, the Respondent's posted notice to employees should have dispelled it. Thus, the notice unequivocally declared that it was not the Company's policy "that disciplinary ac- tion could result from lawful activities such as discussions of unions" but, on the contrary, the notice added that "[d]iscussions of any matters have always been permissible as long as they do not interfere with the performance of job responsibilities." All things being considered, including the friendly rela- tionship existing between Hartman and employees Crisp and Paytes, the fact that only two out of several hundred employees in the plant were involved in the alleged instan- ces of unlawful interference, the Respondent's voluntary announcement of the Company's nondiscriminatory policy concerning union activities, the absence of evidence of a company history of prior funfair labor practices, and the fact that, except for Sweeney's admonition discussed below, no other supervisor, much less a high management official, 15 See, for example, N L R B v Illinois Tool Works, 153 F 2d 811, 814 (C A 7), where the court observed that "the test of interference, restraint and coercion under S 8(I) does not turn on the employer's motive or whether the coercion succeeded or failed [citations omitted] The test is whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act" 243 engaged in antiunion conduct, I find that effectuation of the policies of the Act does not require that a finding be made that Hartman's remarks constituted an infringement of em- ployee rights under Section 8(a)(1) of the Act or that an order be entered based thereon. As for Sweeney's conduct, I have found that he admon- ished Stacy, an employee in whom Sweeney had taken a personal interest, not to associate with Crisp, implying, as the reason, Crisp's involvement in union activity. I find Sweeney's statements too ambiguous to support an 8(a)(1) finding of a veiled threat of reprisal for Stacy's union activi- ty, as alleged in the complaint. Accordingly, I recommend dismissal of the complaint in its entirety. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in the unfair labor practices alleged in the complaint. ORDER i6 Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, as amended, it is ordered that the complaint issued herein against the Respondent, Gibson Greeting Cards, Inc., be, and it hereby is, dismissed. 16 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, recommendations, 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