Okidata Corp.

144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Okidata Corporation and United Electrical, Radio & Machine Workers of America Local 1421. Cases 31-CA-4619 and 31-RC-2806 DECISION STATEMENT OF THE CASE September 8, 1975 DECISION, ORDER AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On May 23, 1975, Administrative Law Judge Mar- tin S. Bennett issued the attached Decision in this proceeding. Thereafter, counsel for General Counsel filed exceptions and a supporting brief, and Respon- dent filed a response in opposition to 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. As Petitioner has not received a majority of the valid votes cast in the election conducted in Case 31-RC-2806, we shall certify the results of the elec- tion. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations 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. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots has not been cast for United Electrical, Radio & Machine Workers of America Local 1421, and that said labor organization is not the exclusive represen- tative of all the employees, in the unit herein in- volved, within the meaning of Section 9(a) of the Na- tional Labor Relations Act, as amended. ' The counsel for General Counsel has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's estab- lished 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 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his find- ings. MARTIN S. BENNETT, Administrative Law Judge: This consolidated matter was heard at Santa Barbara, Califor- nia, on February 18, 1975. The unfair labor practice com- plaint, issued November 22 and based on charges filed July 29 and November 7, 1974, by United Electrical, Radio & Machine Workers of America Local 1421, herein the Union, alleges that Respondent, Okidata Corporation, has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. Briefs have been duly submitted by the parties. Consolidated with the foregoing were objections to an election conducted in a unit of production and mainte- nance employees of Respondent at Goleta, California, on July 25, 1974, pursuant to a petition filed June 3 by the Union in Case 31-RC-2806; the Union lost this election by a vote of eight to nine. The conduct attacked in the representation case is a captive meeting and interrogation of employees. Upon the entire record in the case, and from my obser- vation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Okidata Corporation, a New Jersey corporation with its principal place of business at Moorestown, New Jersey, operates a plant at Goleta, California, where it manufac- tures electronic components. Respondent annually sells and ships products valued in excess of $50,000 from this plant directly to customers located outside the State of Cal- ifornia. I find that its operations affect commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED United Electrical, Radio & Machine Workers of Ameri- ca Local 1421 is a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction; The Issues The unfair labor practice complaint, as amended at the hearing, alleges that Respondent transferred Michael Gal- loway from the position of chassis assembler to shipping clerk because of his union activities; it granted employee Diannha Oakes increased wage benefits because it felt she would vote against the Union; that General Manager Bill Henrikson granted a cost-of-living increase to employees to persuade them to refrain from supporting the Union; Henrikson interrogated employees concerning their union 220 NLRB No. 28 OKIDATA CORPORATION sentiments ; Henrikson told employees that job applicants would be screened concerning their union sentiments; Pro- duction Manager Lloyd Francis questioned employees concerning their union sentiments; Francis conditioned the receipt of wage increases on the union sentiments of em- ployees; and President David Nettleton threatened em- ployees with reprisals if they supported the Union. B. Sequence of Events In an organizational context, the complaint of the Gen- eral Counsel seeks to make much out of a relatively mild and lawful reaction by Respondent which, in essence, falls within the protective cloak of Section 8(c) of the Act or reflects employer action not falling afoul of Section 8(a)(3) and (1) thereof. The Union commenced an organizational campaign among Respondent's previously unorganized employees in May 1974, and a representation petition was filed in Case 31-RC-2806 on June 3, 1974, this leading to a Board elec- tion on July 25 wherein, of 20 eligibles, 18 ballots were cast with 8 in favor of the Union, 9 opposed, and I challenged. Objections to the election were filed, these ultimately re- duced to an allegation that Respondent "threatened and scared workers by captive meetings and individual interro- gations." On or about Thursday, May 9, Lloyd Francis, then Respondent's production manager, received an employee petition for a cost-of-living wage increase. General Manag- er William Henrikson returned to the plant on the follow- ing day from an out-of-town trip. They conferred and de- cided not to grant this. On Monday, May 13, Francis advised a group of employees on the production floor that it would not grant it, but would consider the requests on an individual basis. There was an immediate adverse reaction on the part of the work force, and various members thereof promptly advised Francis of their displeasure because of the high cost of living in the Santa Barbara area. Henrikson and Francis conferred at length on this prob- lem; according to both, they were not aware of any union activities at the time, and Henrikson testified that he first heard of organizational activities by the Union on May 20. On the evening of May 14, they formulated a plan to raise the minimum wage and also to grant employees a cost-of- living wage increase. While it would seem reasonable that an employer generally learns very early in the game of union organizational activities, this does not constitute evi- dence that Respondent did so. The General Counsel next attacks the alleged unlawful interrogation of Engineering Aide Pat Kotz. Kotz and Henrikson were friendly and it was common for Kotz to enter the office of Henrikson and talk with him. According to Kotz, he did so on or about May 18, ascertained that Henrikson had some time to spare, and the following talk ensued. Kotz initially testified that Henrikson asked him how the employees felt about "the Union," why was one needed, and how a labor organization could help the em- ployees. Kotz responded that if working conditions were improved there would be no need for a labor organization. Kotz later testified that this was a general philosophic discussion about labor organizations, what they might do 145 for the employees, and "maybe my personal feelings to- wards unions in general." According to Kotz, no specific labor organization was mentioned and he was not queried as to which employees were for or against union represen- tation. Henrikson allegedly did ask in this conversation how Kotz "personally felt about unions." According to Henrikson, he learned on or about May 20 of the organiza- tional activities; he promptly telephoned Respondent's counsel in Philadelphia, Pennsylvania, for instructions and received, shortly thereafter, a letter as to what Respondent could and could not do in this area. Employee Diannha Oakes, received a merit pay increase of 10 cents per hour in May 1974, because Respondent allegedly opined that she would vote against the Union. This was less than the 15- to 25-cent-per-hour merit in- crease normally granted to employees. According to Re- spondent, this lower increase reflected her poor work atti- tude and it was discussed with her on May 2. Oakes promptly complained to Production Manager Lloyd Fran- cis Who assured her that, if her attitude improved, she would be reevaluated. Late in June, Oakes' work perfor- mance and attitude had improved and she was awarded the remainder of the merit increase not previously given her. Thus, on or about July 1, Oakes was given an addition- al 10-cent-per-hour increase. The General Counsel also contends that Oakes was un- lawfully interrogated by Henrikson. The record discloses that Oakes, from time to time, appeared at the office of Henrikson and volunteered information about the union activities of her coworkers. Henrikson uncontrovertedly testified, and I so find, that he never requested that she disclose this information because he understood that such a request would constitute an unfair labor practice. Tied in with the foregoing is the fact that Supervisor Delores Irwin, on one occasion, interrogated three employ- ees concerning their union sympathies. Henrikson learned thereof; reprimanded Irwin; convened a meeting of em- ployees, according to Oakes; advised them that this was a mistake; and stated that the incident would not be repeat- ed. As is readily apparent, he specifically repudiated this conduct on the part of Irwin. Oakes conceded herein that shortly after this incident she volunteered to Henrikson that she was "pro-company" and would ascertain who was for or against the Union. Henrikson, according to Oakes, and I so find, flatly directed her not to do so. Shortly before the election, Respondent's president, Da- vid Nettleton, addressed his employees in three separate groups of six to eight and made the same speech to each; all of these meetings were attended by Henrikson. He and Nettleton were concerned over the fact that employees were milling about, not performing their respective duties, and that production had dropped accordingly. In response to a question, Nettleton stated the premise that production had dropped and that productivity was the key to advance- ment with Respondent. Here as well, I see little to support to the position of the General Counsel. About 1 week before the election, employee Michael Galloway, according to Francis, approached Francis and asked if they could discuss a wage increase. Francis re- sponded that an increase was not scheduled at the time and that Respondent might run afoul of an unfair labor prac- 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tice charge if one were given, which might well be the case. Indeed, a letter from Respondent's counsel in Philadelphia, Pennsylvania, advised Francis that no wage increases or other inducements should be provided or offered unless they were "part of an established pattern known to the employees." Francis did not interview Galloway concerning his union views or whether he wanted a union in the shop. He denied ever suggesting to Galloway that he quit the employ of Respondent. There is evidence that, shortly before the election, Galloway asked Francis if he should quit the em- ploy of Respondent and Francis replied only that Respon- dent would work with Galloway on any problems he had. According to the Charging Party, Francis unsuccessfully tried occasionally to discuss the Union with Galloway. The record is devoid of any evidence that this took place. In- deed, about 2 weeks before the election, in response to a complaint by Galloway about a missing part, Francis face- tiously suggested that a "shop steward" might assist Gallo- way; this is the only evidence in this area. The General Counsel contends that on or about August 1, 1974, Henrikson summoned Galloway to his office. Ac- cording to Henrikson, and I so find, Galloway had claimed that he was a leadman and should be paid on that scale. Reference was made to an employer-sponsored "pizza par- ty," after the loss of the election by the Union , wherein Respondent's representatives told the assemblage that the pizza party was in appreciation of those employees who voted against union representation . Henrikson also testi- fied, and I find, that he advised the employees during the pizza party that there would be no reprisals as a result of their votes in the election. Henrikson flatly contradicted Galloway, and I so find, denying that he told Galloway that Respondent would screen job applicants concerning their union sentiments. The General Counsel next attacks the transfer of Gallo- way from the position of chassis assembler to that of ship- ping clerk. The person enjoying the latter position had quit and, in the judgment of Francis, Galloway was the most qualified person for the post which carried the same rate of pay. According to Francis, he intended to retain Galloway in that position only until a suitable and qualified replace- ment was found. The shipping clerk position, and this is not in issue, makes a cursory inspection of the produced unit and then, absent evidence of product deficiency, pack- ages the unit for shipment to the customer. Simply stated, according to Respondent and I agree, the position of ship- ping clerk entails a high degree of responsibility. Last relied on by the General Counsel is certain conduct attributed to Randall Jewell, a production supervisor. He was instructed, when hired, that a representation election had been decided in favor of Respondent by a narrow mar- gin, was furnished with the letter from Respondent 's attor- ney described above, and was told that he would be held responsible for what he said, particularly to known union adherents and specifically including Galloway. Jewell testified, and I agree, that he flatly refused there- after to discuss the Union with Galloway. He also denied telling Galloway that Galloway was talking too much about the Union, that he was unpopular with Respondent, and that he would not be around 6 months thereafter. It is interesting to note, as Respondent points out, that in No- vember or December 1974, Galloway asked Jewell to be transferred to the position of inspector, in mid-December the request was granted, and Galloway then rejected the transfer. The record further discloses that, by January 1975, the performance of Galloway as a shipping clerk had deterio- rated to a point where, because of attitude or otherwise, his replacement was a matter of the first urgency. He was duly replaced by one considered the most qualified applicant for the post ; moreover, his replacement was highly recom- mended by a supervisory employee of Respondent. In view of the foregoing considerations, I find that the evidence does not preponderate in favor of the General Counsel and recommend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. Okidata Corporation is an employer whose opera- tions affect commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Electrical, Radio & Machine Workers of America (UE) Local 1421, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(3) and (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: ORDER' The complaint is dismissed in its entirety. I FURTHER RECOMMEND that the objections to the election in Case 31-RC-2806 be overruled and that the results thereof be duly certified. 1 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