Frymaster Corp.

FRYMASTER CORPORATION Frymaster Corporation and Harold Williams. Case 15-CA-6203 November 18, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On July 13, 1977, Administrative Law Judge Thomas E. Bracken issued the attached Decision in this proceeding. Thereafter, 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 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 Respondent, Frymaster Corporation, Shreveport, Louisiana, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. Contrary to the position taken by the Respondent in its brief, we are not faced in this case with a situation where an employer, as a general policy matter, has devised and instituted an improved wage plan in order to maintain high benefits for the purpose of "encouraging its employees not to seek union representation in the future." Rather, here the Respondent. in response to a specific, immediate threat of union activity among its unorganized employees, devised an improved wage plan primarily for the purpose of discouraging such activity and then instituted that wage plan which included increased wages after union organizational activity among its employees had begun. In view of these circumstances, we agree with the Administrative Law Judge that the Respondent violated Sec. 8(a)() of the Act by instituting its new classification and pay scale on May 12, 1976. DECISION STATEMENT OF THE CASE THOMAS E. BRACKEN, Administrative Law Judge: This case came to hearing at Shreveport, Louisiana, on January 4, 1977. The charge was filed by Harold Williams, an individual, on September 3, 1976,1 and the complaint was issued on November 29, and amended at the hearing. The I All dates are in 1976 unless otherwise stated. 2 Official notice is taken of the record in the representation proceeding, Beaird-Poulan Division, Emerson Electric Company, Case 1 5-RC-5892. as the term "record" is defined in Secs. 106.68 and 102.69(g) of the Board's Rules and Regulations. Series 8. as amended. See LTV Electrosystems, Inc. 166 NLRB 938 (1967), enfd. 388 F. 2d 683 (C.A. 4. 1968). Also see Beaird-Poulan 233 NLRB No. 90 primary issues are whether Frymaster Corporation (herein Respondent or Company) unlawfully interrogated its employees, created an impression of surveillance, and instituted a wage increase in order to discourage union membership, in violation of Section 8(aX )) of the National Labor Relations Act, as amended. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Company, I make the following: FINDINGS OF FACT 1. JURISDICTION The Company, a Louisiana corporation, is engaged in the manufacture and sale of commercial cooking equip- ment at its plant in Shreveport, Louisiana, where it annually purchases and receives goods and materials valued in excess of $50,000 directly from points and places outside the State of Louisiana. The Company admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Although not alleged in the complaint, official notice is taken that International Union, United Automobile, Aerospace and Agricultural Implement Workers is a labor organization within the meaning of Section 2(5) of the Act.2 II. THE ALLEGED UNFAIR LABOR PRACTICES A. Interference, Restraint, and Coercion Early in 1976, International Union, United Automobile, Aerospace and Agricultural Implement Workers (herein Union or UAW) began a campaign to organize the employees of various industrial plants in the Shreveport area. This culminated in an election conducted by the Board on Friday, April 30, among the employees of Beaird-Poulan Division of Emerson Electric Company (herein B-P), upon the Union's petition for certification. The Union secured a majority of the votes, and on that evening held a victory party at the Ramada Inn. Among the people attending the party were Meredith Johnson, a tester employee of Respondent, and his wife, who was an employee of B-P. At the party Johnson discussed with Union Agent Carlton Homer the possibility of organizing Respondent's employees. On Monday, May 3, the first working day after the victory party, Johnson had a discussion at the Company's loading dock with production line worker Harold Williams, and some other employees about the possibility of organizing the employees of Respondent. Johnson advised the employees that his wife knew the man who was the union organizer and that he would contact him to set up a meeting.3 The General Counsel contends that, immediately following, a series of events occurred which violated Section 8(aXl)(1) of the Act. These are: Division, Emerson Electric Company, 229 NLRB 988 (1977), in which International Union. United Automobile. Aerospace and Agricultural Implement Workers of America, UAW, was the charging party. 3 The evidence shows that 2 days later the Union held a meeting at the Ramada Inn, attended by UAW Agent Horner, Johnson, Williams, and (Continued) 619 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Meredith Johnson testified that on May 4 he was approached in his work area by Ed Shands, a foreman and admitted supervisor, who stated there was a rumor going around the plant "that I was the headman to organize the union." Johnson replied that he did not know about being the headman, that he was just trying to benefit himself and the employees. Johnson further testified that on May 6 or 7, while working on the oven assembly line, he was approached by Shands and General Foreman Richard L. Flemming, also an admitted supervisor, and that "Mr. Flemming stated that I had some influence with the employees at the Company and that I should tell them that they did not need a union."4 Although not mentioned during his direct examination, Johnson testified on cross- examination that during a conference with Flemming in the early part of May, when the latter was explaining the new job evaluation and pay raise plan, hereinafter discussed at length, that Flemming stated that the Compa- ny was ready to institute a pay raise and job schedule, but was unable to do so at the time because of the union activity. The testimony of Johnson is flatly contradicted by that of Shands and Flemming. Shands denied that he ever told Johnson that the latter was the leader of the movement to organize the employees. According to Shands, he arranged to have his supervisor, Flemming, accompany him to talk to Johnson about Johnson's practice of keeping flamma- bles in his work area. Shands testified that he reprimanded Johnson about this on prior occasions, but that Johnson persisted in this activity, and that he felt that a reprimand from Flemming might be more effective. According to Shands, when he and Flemming approached Johnson saying they wished to talk to him, Johnson said, "You guys know that I'm the one that brought the union in." Shands testified that he replied, "Meredith, we are not concerned or talking about that. I want to know about this flammable liquid." However, Johnson insisted on telling them of his support for the Union and his reasons therefor; that among the things Johnson complained of was that the pay was bad, and that Flemming responded to this by stating that the Company had the matter of pay under consideration, and the pay would get better, but he was not at liberty to say when, where, or how much. Shands denied that Flemming made any statement to the effect that Johnson had influence over the employees and should tell them that a union was not needed. Flemming also denied that he told Johnson that a wage increase would be granted, but that it could not be granted at the time because of the union activity. Flemming corroborates Shands that they went into the plant to talk to Johnson about his practice of leaving flammables about, and that it was Johnson who raised the subject of the Union, which they told him they did not wish to discuss. However, when Johnson stated that the pay was inade- quate, Flemming testified that he said, "Well, Meredith, we approximately 13 other production and maintenance employees of Respon- dent. A second meeting was held the following week with about 10 employees present. Johnson and Williams signed union cards on May 6. ' On direct examination Johnson attrbuted this statement to Shands. On cross-examination he testified that the statement was made by Flemming. that Shands said nothing, just listened. I find it unnecessary to make any finding regarding this discrepancy. are working on a wage increase program, quite an extensive program, but I was informed by Frank Moore and Mr. Schermerhorn not to talk about the wage increase at this time." (b) Employee Harold Williams testified that on the morning of May 6, prior to 7 a.m., Supervisor Shands came to him on the electric line "and told me to go with him to Mr. Dunkleman's office because I was passing out Union cards." Shands, Supervisor Leftridge, and Williams pro- ceeded to Dunkleman's office where Shands told him to wait for Dunkleman to come in "to see what he was going to do about me passing out the cards." At 7 a.m., Dunkleman not having arrived, Shands returned and told Williams to go to work. Williams stated that he clocked in at 7 a.m., and proceeded to work. Williams additionally testified that he had two other conversations with Supervisor Leftridge concerning the Union. The first such conversation according to Williams occurred on May 7 when Leftridge came to his workplace on the assembly line and said, "I'm a company man. The union is no good for the workers. Why do you want a union on the job? If you want a union on the job go find you another job that already has a union." The second such conversation according to Williams occurred on May 10, at his work area, when Leftridge asked, "Have you guys had another union meeting." Williams replied, "No," and Leftridge left. Shands testified that on the morning of May 6 he received information that Williams was passing out union literature in the area of the timeclock, and that, as his watch5 showed it to be 3 minutes after the 7 a.m. starting time, he directed Leftridge to bring Williams to the office. After Williams arrived, Shands called his boss (not otherwise identified), who inquired if worktime had started and if the whistle had blown. Shands was sure that the other employees had started to work, but was not sure that the whistle had blown. He then told Williams that he knew everybody else was working and that he knew it was after 7 a.m., and directed Williams to return to work. Shands testified that while talking to Williams the words "Union" or "union cards" were not mentioned. Leftridge admitted that at Shands' direction he took Williams to the office, but he denied that he or Shands then made any statement to Williams about the Union. Although he admitted that he spoke with Williams almost daily, Leftridge denied that he ever asked Williams whether there had been a union meeting, or if the employees planned to have a meeting. Leftridge did admit that he had a conversation with Williams during which he did state, in effect, that if a man was not satisfied with his job he should look for another one, but testified that this conversation took place some 10 days before April 29, the date he became a supervisor.6 Williams also testified that on May 4 Company President Moore, in a speech to the assembled employees, made s An Elgin, digital, battery-operated wristwatch, about I year old, which the witness contended was accurate to the minute. 6 Respondent in its answer admitted that Leftrindge was "at all times material" a supervisor within the meaning of the Act. However, at the heanng, I allowed Respondent to amend its answer so as to admit that Leftrdge became a supervisor on April 29. No evidence was introduced to establish Leftndge's supervisory status prior to that date. 620 FRYMASTER CORPORATION reference to the fact that union organizers were operating in the area, and would probably be talking to employees, and that employees helping to organize a union would be handled by the Company. Although this speech was made to all the employees, approximately 175 in number, no other employee (not even Johnson who testified as a witness for the General Counsel, and who attended the meeting) corroborated Williams in this area. Moore admitted making a speech on May 4, but flatly denied the statement Williams attributed to him, or any other statement that could be so construed. B. Credibility Resolutions Testifying before me, neither Johnson nor Williams impressed me as witnesses in whose testimony I could have confidence as to its accuracy and reliability.7 Rather, I received the impression that they were determined in some manner to involve Respondent in the commission of an unfair labor practice. On the other hand, witnesses Flemming, Shands, Leftridge, and Moore in this area all impressed me as straightforward, sincere witnesses who honestly sought to give the facts as they remembered them. In all instances, therefore, where there is a conflict in the testimony between Johnson and Williams on the one hand, and Flemming, Shands, Leftridge, and Moore on the other, I credit the testimony of the latter group. The effect of this is, of course, that the General Counsel has failed to prove by a preponderance of the evidence the allegations of paragraphs 6, 7, and 8 of the complaint, and said paragraphs must be dismissed. I shall so recommend. C. The Wage Increase The complaint, as amended at the hearing, alleges that on May 12 Respondent orally instituted a wage increase in an effort to discourage union membership.8 Respondent admits that the wage increases were given, but denies that the purpose was to discourage union membership. The evidence shows that Respondent has operated in the Shreveport area for about 40 years. Lewis F. Moore has served as president of this Company for over 10 years. Historically, the Company had compensated its employees on a "merit" system, granting increased compensation to employees on an individual basis, whenever it thought the increase had been earned. Moore admits that the last wage increase, prior to May 12, was in October 1975, when an average increase of 5 percent was given, generally amount- ing to no more than 15 to 20 cents an hour per employee. Moore also admitted that in early February he became aware that unions were organizing in the Shreveport area, and he recognized that this organizational activity might carry over into Respondent's plant. On February 19, Respondent held a meeting attended by Moore, Vice Presidents Travis Schermerhorn and Bob Dunkleman, Plant Superintendent Flemming, Executive Bill Parks, and its labor counsel, John M. Bee. As Moore testified, attorney Bee regularly met with officials of the Company 7 For example, as I have previously set forth, Johnson on direct examination attributed a particular statement to Supervisor Flemming, and on cross-examination attributed that statement to Shands. 8 At the hearing this allegation of the complaint was amended to allege and informed them of union activity in the area; and that one of the reasons for retaining Bee was the fact that Respondent wanted to remain nonunion and felt that Bee could suggest ways of doing so. Largely upon the advice given by its labor counsel at the February meeting, Respondent set out to develop a job classification system calculated to equalize and make uniform the method of compensating employees for like work. Moore admits that during this meeting, the activities of unions were very much on his mind; so much so that notes he made at the meeting read as follows: U activities strong in '76. Teamsters active. 50-50 strike. Odd-different from all others. Stolen p - e - r - s records. Item 3. UAW. GMC most likely. Biggest threat to metal working industry. Hovering over Reilley - Beard. At Gould. Want a base here. Tough and militant. Following the meeting of February 19, Respondent obtained and studied job rating material and wage surveys from several sources, including the National Metal Trades Association and the Shreveport Chamber of Commerce, with the purpose of devising a classification grade system based on various job factors. A number of meetings were held by Respondent's executive personnel and labor counsel to review these classifications and factors. Moore conceded that by the end of April its wage study and classification study was completed, and that the plan which was ultimately adopted by April 20 was about 95 percent finalized. Moore denied knowledge of any union activity at the Respondent's plant as of April 30, but testified that he became aware of the fact that the Union had won the election at B-P, shortly after that event. Moore also admitted that he learned of union activity at the Respon- dent's plant on or about May 3. There is, of course, no doubt that he knew of it on May 4, because in his speech to the assembled employees he spoke of the Union and its activities. On May 12, Moore again addressed the employees in a group, announcing the institution of the job classification system, and the pay raise. The president told the employees that they would receive an immediate increase 9 of 40 cents an hour, and a like increase each 6 months thereafter, but not to exceed the top of the established grade. He further advised them that supervisors would interview the employ- ees promptly, with the view of placing each employee in the appropriate grade. Moore admitted that on May I , he and other officials of the Respondent had met with attorney Bee, and that among the matters they discussed was the possibility that announcement of the wage increase the following day might be an unfair labor practice. However, Bee took the position that since they had been working on the plan for about 3 months, and some of the employees had been interviewed as to their job content, it might be an unfair labor practice not to grant it. that a second increase, given in November, also violated Sec, 8(aX I) of the Act. 9 The exact date of this raise is not shown by the record 621 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The 40-cent-an-hour wage increase announced by Moore on May 12 became effective that date, and was reflected in the paychecks of May 14. A similar increase was granted in November, however, not exceeding the amount necessary to bring an employee to the top of his pay scale. D. Discussion and Conclusions There can be no doubt that an employer's grant of economic benefits to his employees for the purpose of deterring them from engaging in their union organizational activity is in violation of Section 8(a)(1) of the Act. The Supreme Court cogently stated in N.LR.B. v. Exchange Parts Company, 375 U.S. 405, 406 (1964), that the Act, and particularly Section 8(a)(1): . . . prohibits not only intrusive threats and promises but also conduct immediately favorable to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect .... The danger inherent in well-timed in- creases in benefits is the suggestion of a fist inside the velvet glove. Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged. Respondent in its brief recognizes this rule, but argues that, because its wage plan was conceived and was in the process of formulation for a period of some 2-1/2 months before its employees commenced their activities on behalf of the Union, the normal rule does not apply. I find this argument without merit. The fallacy of Respondent's contention is rooted in the fact that on the evidence detailed above it is clear, and I therefore find, that the wage plan herein involved was conceived, promoted, and effectuated for the purpose of inducing its employees to reject the efforts of a union to organize them, efforts which Respondent admittedly expected would be made in the very near future. While such purpose would normally be difficult to prove, Moore's testimony in that regard was plainly an admission that such was Respondent's purpose in devising the wage plan involved herein. This being the case, it follows that Respondent's granting of the wage increase on May 12 interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act, and hence violated Section 8(a)(1) of the Act.io The fact that Respondent may have had another, albeit lawful, motive in doing what it admittedly did, as Moore testified was the case, is immaterial. If part of the motivation for granting a wage increase is to undermine the Union, the conduct is unlawful. Emery Air Freight Corporation, 207 NLRB 572, 576 (1973). Upon the foregoing findings of fact, and the entire record in this case, I state the following: 10 The General Counsel argues that the wage increase given in November was given for the same reason and had the same purpose. and therefore was independently violative of the Act. I find it unnecessary to consider that contention, because whether the November increase violated the Act or not the order to be entered herein would be the same. " In the event no exceptions are filed as provided by Sec. 102.46 of the CONCLUSIONS OF LAW I. Respondent is an employer within the meaning of Section 2(2) of the Act, and is 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 instituting the classification and pay plans on May 12, and on that date granting the wage increase to employees under the circumstances and for the purpose herein found, Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them by Section 7 of the Act, and thereby engaged in, and is engaging in, unfair labor practices proscribed by Section 7 of the Act. 4. The aforesaid unfair labor practices herein found are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. The General Counsel has failed to establish by a preponderance of the evidence that Respondent engaged in any unfair labor practices alleged in paragraphs 6, 7, and 8 of the complaint herein, and said complaint to that extent should be dismissed. REMEDY Having found that Respondent interfered with, re- strained, and coerced its employees in the exercise of their Section 7 rights, it is recommended that it be required to cease and desist therefrom and take the affirmative action set forth below, designed and found necessary to effectuate the policies of the Act. Said unfair labor practices being of a character which go to the very heart of the Act, it will be recommended that Respondent be required to cease and desist from in any other manner infringing upon the exercise of employees' rights. N.L.R.B. v. Entwistle Manu- facturing Co. 120 F.2d 532 (C.A. 4, 1941); California Lingerie, Inc., 129 NLRB 912, 915 (1960). Upon the foregoing findings of fact and conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER "i The Respondent, Frymaster Corporation, Shreveport, Louisiana, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Instituting or establishing plans for increasing the wages or other benefits for the employees for the purpose of inducing its employees not to support, or to withdraw their support from a labor organization; provided, how- ever, that nothing in this Order shall be construed as authorizing or requiring the Respondent to withdraw or eliminate any wage increase or other benefits in the terms 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 waived for all purposes. 622 FRYMASTER CORPORATION and conditions of employment presently enjoyed by Respondent's employees. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self- organization, to bargain collectively through representa- tives 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 and all such activities. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the Act: (a) Post at its plant in Shreveport, Louisiana, copies of the attached notice marked "Appendix."' 2 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent's authorized representative, shall be posted by the Respon- dent 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 ensure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. 12 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall 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 grant wage increases, or other benefits, for the purpose of interfering with self-organizational efforts of our employees, or for the purpose of interfering with their activities on behalf of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights under the National Labor Relations Act. FRYMASTER CORPORATION 623