Benner Glass Co.

686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Benner Glass Co. and Allied Services Division, Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, AFL-CIO. Case 12-CA-6013 March 13, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On November 29, 1973, Administrative Law Judge Bernard Ness issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its 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 brief and has decided to affirm the rulings, findings,' and conclusions 2 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 Respondent, Benner Glass Co., Jacksonville, Florida, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge it is the Board 's established policy not to overrule an Administrative Law Judge 's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C.A 3. 1951) We have carefully examined the record and find no basis for reversing his findings. 2 Unlike the Administrative Law Judge , Chairman Miller would find that a remark made by Supervisor Thompson to employee Anderson, during the course of a telephone conversation between them , did not constitute a threat of plant closure When Anderson raised the subject of possible union wage demands, Thompson told Anderson in effect that Respondent's president, Benner, could not meet their demands and would have to close the plant down before he could pay that kind of salary. In this context, the Chairman views Thompson's statement as being no more than a statement of opinion that the business economically could not meet the Union's wage demands DECISION STATEMENT OF THE CASE BERNARD NESS, Administrative Law Judge: This pro- ceeding was heard at Jacksonville, Florida, on October 18, 1973. The charge and the first, second, and third amended charges were filed on April 19, April 25, August 10, and September 19, 1973, respectively, by Allied Services Division, Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, AFL-CIO, herein called the Union.' The complaint issued on September 27 and alleged that Respondent engaged in unfair labor practices in violation of Section 8(a)(1) of the Act. The Respondent's answer denied the commission of unfair labor practices. The unlawful conduct is alleged to have occurred on February 14. In substance the complaint alleges that ( I) Louise Thompson, an admitted supervisor, threatened employees with discharge if they mentioned the Union in the plant, warned employees not to join the Union or discuss the Union, threatened employees with plant closure if they attempted to organize, and instructed an employee to inform Cleve Garner, the plant superintendent, about the organizational activities of the employees, and (2) Plant Superintendent Garner engaged in surveillance of employees engaged in the distribution of union authorization cards in the plant on nonwork time in a nonwork area and disrupted their distribution . At the hearing, the General Counsel was permitted to amend the complaint to include the additional allegation that on February 14 Garner also unlawfully interrogated an employee concerning union activities at the plant. At the hearing, Respondent moved to dismiss the complaint on the ground that the allegations contained therein were time-barred by Section 10(b) of the Act. This motion was denied and is discussed below. Upon the entire record, and from my observation of the witnesses, and after due consideration of the oral argument of the parties and the brief filed by the General Counsel,2 I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT I find, as the complaint alleges and the answer admits, that the Respondent, a Florida corporation, operates a glass products factory in Jacksonville, Florida; that during the past calendar year it purchased materials and supplies valued in excess of $50,000 which were transported to its Jacksonville, Florida, plant directly from States other than the State of 'Florida; that during the same period, it sold and shipped from its Jacksonville, Florida, plant products valued in excess of $50,000, directly to customers outside I Unless otherwise indicated, all dates hereinafter refer to 1973. 2 After the close of the hearing I received a communication from Respondent's counsel informing me he had decided not to file a brief Copies were sent to the other parties to the proceeding . Respondent's counsel reported that the Board, on October 23, had directed a hearing on one of the Employer's objections to conduct affecting the results of a Board conducted election held in Case 12-RC-4298 The petition was filed by the Charging Party herein on February 20 and an election was held on April 6. Of approximately 50 eligible voters. 49 cast ballots, of which 26 were for and 21 against Petitioner. The challenged ballots were insufficient to affect the results 209 NLRB No. 111 BENNER GLASS CO. the State of Florida. Based on the foregoing, I find that Respondent is engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZArION INVOLVED I find, as the complaint alleges and the answer admits, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. APPLICATION OF SECTION 10(B) TO rHE INSIAN-T PROCEEDING Respondent urges that the complaint be dismissed because the allegations encompassed therein are predicat- ed upon the allegations contained in the third amended charge which should be considered as a new charge. Respondent argues that the 8(a)(1) allegations in the complaint are totally unrelated to the original, first, or second amended charges. Apart from the printed catchall language in the charge form which would be the subject of at least a Section 8(a)(1) violation, the original, first, and second amended charges allege only the discriminatory discharges of named employees in April 1973. The alleged discriminatory discharges were not included in the third amended charge. This latest amended charge alleges only unlawful threats and interference on February 14 in violation of Section 8(a)(1) of the Act. Respondent contends that because the third amended charge was filed on September 19 and the alleged unlawful conduct occurred on February 14, more than 6 months earlier, the provisions of Section 10(b) apply and the complaint should be dismissed. I am satisfied that Respondent's motion to dismiss the complaint based upon Section 10(b) considerations was properly denied at the hearing. I am convinced the original charge properly formed the basis for the specific Section 8(a)(1) allegations in the complaint. The Board has held that the printed catchall language in the charge form is adequate and sufficient to support the particularized allegations of interference, restraint, and coercion con- tained in the complaint.3 IV. THE UNFA[R LABOR PRACTICES A. The Conduct of Plant Superintendent Cleve Garner For some undisclosed short period of time prior to February 14, attempts were being made to bring in a union a Sam Klain and Sons, 127 NLRB 776, Star Expansion Industries Corporation, 164 NLRB 563, ITS Corp. (Division of Hikco), 184 NLRB 787. See also Texas Industries, Inc v. N.LR.B, 336 F.2d 128 (C.A. 5, 1964), where the court agreed with the Board on this very point. Respondent's reliance on Indiana Metal Products Corporation v. N LRB, 202 F 2d 613 (CA. 7), modifying and enforcing 100 NLRB 1040, appears to have been misplaced . In that i ase the original and amended charges alleged discriminatory discharges in violation of Sec 8(a)(3) and contained a "by these and other acts" allegation. The court there agreed with the Board that certain conduct occurringprior to but within 6 months of the original charge to be violative of Sec 8(a)(1) and not barred by Sec. 10(b). 4 The top of the card named Hotel, Motel, Restaurant Employees and Bartenders Union, followed by the statement, "I desire to be represented by a Union which is part of the AFL-CIO and I hereby designate the 687 to represent Respondent's employees. Union authorization cards appeared in the plant for the first time on February 14.4 Patricia Brown, an employee in the fabricating department under Louise Thompson, the admitted depart- ment supervisor, was in possession of a quantity of cards that moming.5 Before the morning break,6 Mary Carter, also employed in the fabricating department, told her to give Patricia Anderson some cards during the break for Anderson to pass on to employees in her own department. When the buzzer rang for the morning break, Brown got the cards from her locker and went to the lunchroom where the employees spend their break time and sat down at a table. She put an envelope containing the cards inside an Avon Products order book and towards the end of the break she placed the book in front of Anderson who was sitting at another table. As Brown walked away, Plant Superintendent Garner went directly to Anderson.? He asked Anderson for the book and when she gave it to him he took out the union cards. Anderson asked him if she should punch out. Garner replied she should not and added he hoped she would have better sense than to sign a card. He left with the cards. About 30 minutes later Gamer returned the cards to Anderson and commented she should not worry, she should use her judgment what to do with the cards.8 Sometime after the morning break, Delores Turlington, an employee in the fabricating department, mentioned to Louise Thompson there was union activity going on .9 After this conversation, Turlington went to see Garner. Her uncontradicted and credited testimony is quoted below: And, I said, `Cleve, I'd like to have a talk with you.' He said, `About what?' I said, `Well, the union and a raise.' He said, `Let's go to my office.' From the shipping department, there's a supply office and then his office. We went there. It took us-you know just a few minutes. And, so, he said, `What can I do for you?' I said, `Well, I've heard talk that they are going to form a union.' He said that he knowed (sic) about that about two weeks ago. I mean, it wasn't a surprise to him. Now, whether I asked for a raise or not-I was more flabbergasted that he already knowed about the union, which I didn't know too much about it, and I didn't want to get involved. He asked me did I know who started it. I said, `No, sir, I did not.' AFL-CIO and/or its appropriate affiliates as my Bargaining Agent in matters of wages, hours and other conditions of employment " Brown was later terminated on Apn1 16. 6 The employees receive two 10-minute breaks-at 10 a m and 2 p.m. r During the entire break period. Garner was standing at the doorway leading into the lunchroom where he could observe the entire room. The uncontradicted testimony revealed Garner never spends any time in the lunchroom during the employees' break period nor in the past did he stand in the doorway 8 Garner did not testify. The above facts are based upon the mutually corroborated testimony of Brown, Anderson and employee Jeanette Pickett. 9 The details of this conversation will be discussed in the following sec. B. 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD And, Joan, the secretary there-I think she's a secretary or a receptionist-she came in with some papers and asked him a question. She went back out and that was the end of the conversation, because one of the employees-or a foreman-come in, to the best of my knowledge. B. The Conduct of Louise Thompson I have briefly mentioned supra a conversation between employee Turlington and Thompson which immediately preceded Turlington's approach to Garner. The record shows that Turlington, who is still employed by Respon- dent, initiated the conversation by volunteering to Thomp- son there was union activity going around. In testifying concerning her conversation with Thompson, she stated she requested permission to talk to Garner regarding the union activity and a raise. She did not testify concerning any interrogation by Thompson during this conversation. Thompson was not asked in her direct testimony about her conversation with Turlington. On cross-examination by the General Counsel, she initially said she did not ask Turlington who was passing out union cards. When confronted with her sworn statement given to a Board agent on May 16, she confirmed as being accurate that part of her sworn statement reading as follows: Delores Turlington told me one morning that there were some union cards going around. She didn't tell me who they were. I think I asked her and she told me, `The girls on the line.' On this day, there were about six girls on the line: Mary Carter; Wilma Hale; Delores Turlington; also, I believe that Pat Brown was on the line, but I can't be sure. She asked me what I thought she should do and I told her I thought she should talk to Cleve Garner about it, and let her go with permission to see Cleve Garner, which she did at that time. I credit Thompson's version of the conversation as related above and find she asked Turlington who was passing out union cards and told Turlington to tell Plant Superintendent Garner about the union activity.10 The General Counsel also adduced testimony concerning alleged threats to employees. According to Patricia Brown, she was at a table working at a conveyor belt in the fabrication department after the 10 a.m. break. Also working at the table were employees Carter, Pickett, Strickland, and Smith. The employees were discussing the Union when Thompson came up to the table. Thompson apparently had been listening because she then announced to the employees at the table that anyone who mentioned the Union would be fired.11 Thompson, in response to leading questions on direct examination by Respondent's counsel, denied mentioning or ever telling employees they would be fired for mentioning or talking about the Union. 10 The complaint does not allege unlawful interrogation by Thompson. At no time after Thompson testified did the General Counsel move to amend the complaint to allege the interrogation as unlawful conduct i therefore will not make any findings of illegality based thereon. 11 Carter and Pickett, both still employed by Respondent, also testified this threat was made by Thompson Strickland and Smith did not testify. 12 There is no contention that a company rule or policy exists which Initially on cross-examination, she testified the subject of the Union never came up in conversations with employees. Later in cross-examination, she admitted the conversation with Turlington discussed supra. I find the testimony of Brown, Carter, and Pickett more convincing and find therefore that Thompson threatened employees with discharge if they mentioned the Union.12 On the evening of February 14, Thompson telephoned Patricia Anderson at home.13 Thompson told Anderson not to worry about being caught by Gamer that day with the union cards. In the course of the conversation, without any preliminary discussion of any union wage demands, Thompson spoke of plant closure by Benner, Respondent's president. According to Anderson, Thompson said, "Mr. Benner would close the plant. down before he would pay that kind of salary." 14 Thompson testified she had heard the Union would be asking for $3 an hour for the employees. Her testimony is unclear whether she referred to any specific amount that the Union would demand. She admitted she told Anderson, " Mr. Benner couldn't do that; he'd have to close down the plant before he did it." I find no substantial variance in either version. I doubt whether any specific union demand was mentioned in the conversa- tion but it seems clear that both parties to the conversation understood the reference was to possible union wage demands. I find that Thompson's statement, reasonably construed, tended to convey to Anderson the threat that Benner would shut down the plant if the employees were to become represented by a labor organization. Concluded Findings Violations of Section 8(a)(1) of the Act are found as follows, all having occurred on February 14: (1) Plant Superintendent Garner engaged in unlawful surveillance of employees engaged in distribution of union authorization cards in a nonwork area during breaktime and disrupted the distribution of the cards.15 In this connection, I have noted that Garner at no time had ever stood in the entrance way to the lunchroom during breaktime, Garner had told Turlington he was already aware of union activity for 2 weeks, and as soon as Brown had given the cards to Anderson, Garner accosted Anderson and directed her to give him the book containing the cards; (2) interrogation by Garner of Turlington as to who initiated the union activity.16 Although Turlington initiated the conversation, there does not appear to have been any legitimate reason for Garner to have asked her to disclose who initiated the union activity; (3) the threat by Department Supervisor Thompson to a group of employees to discharge anyone who mentioned the Union; IT (4) the threat to Anderson by Thompson that Respondent would close down the plant if the employees brought in a union;18 (5) the instruction by prohibits conversations among employees while working. 13 Both testified they were good friends. 14 Anderson testified no specific amount was mentioned. 15 Par. 5(e) of the complaint. 16 Par. 5(f) 17 Par 5(a) and (c). 1s Par. 5(d) BENNER GLASS CO. Thompson to Turlington to report to Garner what she knew about the union activities.ls V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section IV, above, occurring in connection with the operations of Respondent described in section 1, above, have a close, intimate, and substantial relation to trade, traffic and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. 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. By engaging in surveillance of the union activities of its employees, by coercively interrogating its employees concerning union activities, by threatening employees with discharge if they talked about a union or union activities, by threatening plant closure if the employees organized, and by soliciting employees to report union activities, the Respondent did interfere with, restrain, and coerce its employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) of the Act. 4. The foregoing unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices within the meaning of Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby recommend the following: ORDER20 Benner Glass Co., Respondent herein, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating any of its employees con- cerning union activities or threatening its employees with discharge or other reprisals for engaging in such activities. (b) Engaging in surveillance of the union activities of its employees. (c) Threatening plant closure if a union becomes the bargaining representative of its employees. (b) Soliciting employees to report the union activities of its employees. (e) In any other manner interfering with, restraining or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is 689 necessary and appropriate to effectuate the policies of the Act: (a) Post at its plant in Jacksonville, Florida, copies of the notice attached hereto marked "Appendix." 21 Copies of said notice, on forms to be provided by the Regional Director for Region 12, shall, after being duly signed by Respondent's representative, be posted by it immediately upon receipt thereof, and maintained by it for a period of at least 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. (b) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 19 Par. 5(b). 20 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 21 In the event the Board's Order is enforced by a Judgment of the United States 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT engage in surveillance of the union activities of our employees. WE WILL NOT solicit employees to report the union activities of the employees. WE WILL NOT threaten our employees with discharge or other reprisals for engaging in union activity. WE WILL NOT threaten our employees with closing of the plant if a union becomes the bargaining representa- tive of our employees. WE WILL NOT unlawfully interrogate our employees concerning the union activities of our employees. WE WILL NOT in any other manner interfere with, restrain or coerce our employees in the exercise of the right to self-organization, to form, join or assist Allied Services Division, Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, AFL-CIO, or any other labor organization, to bargain collectively through represent- atives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. BENNER GLASS Co. (Employer) Dated By (Representative) (Title) 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This is an official notice and must not be defaced by Any questions concerning this notice or compliance with anyone. its provisions may be directed to the Board's Office, Room This notice must remain posted for 60 consecutive days 706, Federal Office Building, 500 Zack Street-P.O. Box from the date of posting and must not be altered , defaced, 3322, Tampa, Florida 33602, Telephone 813-228-2641. or covered by any other material.