Monroe Tube Company, Inc.

302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Monroe Tube Company, Inc. and Local 445 , Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 2-CA-13128 and 2-RC-16262 September 15, 1975 PROPOSED DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS FANNING, JENKINS, AND PENELLO On May 16, 1974, Administrative Law Judge Wal- ter H. Maloney, Jr., issued his Decision in this pro- ceeding.' Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief. On December 10, 1974, the National Labor Rela- tions Board issued an order in this proceeding in which it directed that a hearing de novo be held on the merits of the complaint before a different Admin- istrative Law Judge. Thereafter, the Respondent filed a motion to stay the Board's Order and a motion to quash the com- plaint. The General Counsel filed a motion in oppo- sition to Respondent's motion to quash the com- plaint and a motion for reconsideration. The General Counsel joined the Respondent in requesting a stay of the Board's Order. The Charging Party filed a let- ter in which it joined the motions of the General Counsel. Finally, the Respondent filed a motion in opposition to General Counsel's motion for reconsid- eration. Respondent's position is that the Board should quash the complaint and dismiss the charge. The General Counsel and Charging Party request that the Board reconsider the case and adopt the Decision and recommended Order of Administrative Law Judge Maloney. Having duly considered all the motions before it and the positions of all the parties, the Board grants the motions to stay its Order of December 10, 1974. The Board notes that all parties, despite their ob- vious differences as to what the resolution of this case should be, appear to agree that a hearing de novo should not be held. Accordingly, to the extent that its Order of December 10, 1974, directs that a hearing de novo be held, the Board vacates the Order. In light of both the Board's previous rejection of the Administrative Law Judge's credibility resolu- i Complaint issued on December 19, 1973, based on a charge filed by the Union on October 23, 1973 On August 16, 1973, the Union filed a petition seeking an election at Respondent's facility. Thereafter, the Union withdrew that petition on September 5, 1973, and filed a petition in Case 2-RC-16262 on September 6, 1973. tions and the positions of the parties as stated to the Board, we must decide how best to now resolve this case in a manner fair and equitable to all the liti- gants.' Having addressed ourselves to this issue, we find that this case will best be resolved and the pur- poses of the National Labor Relations Act, as amended, best effectuated by the Board's reviewing this entire proceeding and, based on weight of the evidence in the record before us, rendering an appro- priate decision. 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, having considered the briefs and ex- ceptions, and the entire record in this case, makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The complaint alleges, the answer admits, and we find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and we find that the Union is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. Background Respondent operates a small factory which has about 50 employees and is engaged in the manufac- ture of metal tubing. In early August 1973, the Union began an organizing drive at Respondent's facility. On August 16, 1973, the Union filed a representation petition. On September 5, 1973, the Union withdrew that petition, and filed a new petition on September 6, 1973. Case 2-RC-16262: Pursuant to a Stipulation for Certification Upon Consent Election,3 an election was held on October 12, 1973, at Respondent's facili- 2 No party to this case has made a claim that the hearing itself was con- ducted in other than ajudicious manner. Since each party had full opportu- nity to present its case and make its arguments , we conclude that we can make a proper decision in this case based on the record before us. J The stipulated unit was described as follows- All full-time and regular part-time production and maintenance employees of the Employer at its plant at Route 208, Monroe , New York, excluding office clerical employees, foremen, professional employees, guards, watchmen , and supervisors as de- fined in the Act 220 NLRB No. 48 MONROE TUBE COMPANY 303 ty, and the tally of ballots showed 15 for, and 22 against, Petitioner, with 7 challenged ballots. The complaint alleged that Respondent violated Section 8(a)(1) in that it (1) in late August 1973, through its supervisors, Verbert and Romer, encouraged and as- sisted employees to withdraw authorization cards; (2) in late August 1973, through its supervisors, Ver- bert and Romer, interrogated employees concerning their union activities and sentiments ; (3) in early Oc- tober 1973, through President Grout and Supervisor Hegedus, threatened to close the plant if the Union won the election. General Counsel also alleged that the Union represented a majority of the employees in the appropriate unit on all material dates and re- quested that a bargaining order issue as part of the remedy. Since some of the allegations involve alleged mis- conduct by Verbert, we must first examine General Counsel's contention, opposed by Respondent, that Verbert is a supervisor within the meaning of the Act. It is not disputed that Grout, Romer, and Hege- dus are supervisors within the meaning of the Act. B. The Supervisory Status of Verbert Plant Superintendent Monks testified that Verbert, as "night foreman," is "responsible for 8 people" i.e., the night shift). Frequently during the night shift, no one higher in rank than Verbert is present. Verbert allocates work to employees and, according to Monks' estimates, spends no more than 50 percent of his time doing the physical work that the other em- ployees do. As to the employees' work, Verbert is to "keep a check on it," and he can move people from one job to another if necessary . Verbert is salaried (earning 30 percent more than other night-shift em- ployees), but the 8 other night-shift employees are hourly. Various night-shift employees, including No- wak and Willard, testified that Verbert was their su- pervisor. Based on the above, we find that Verbert is a supervisor within the meaning of the Act. C. Encouraging and Assisting Employees To Withdraw Authorization Cards Employee Nowak testified that Verbert asked him to sign a form in which he would request the Union to return his authorization card. Nowak testified that Verbert "made it clear he wanted me to sign." No- wak told Verbert that he wished to draft his own letter. Nowak eventually did sign the form presented him by Verbert, but he asked Verbert not to turn it in to the office . Later, however, Plant Manager Romer came back to Nowak with the form and asked No- wak to fill in the Company's name. Nowak told Romer that he wished to draft his own letter, and he refused to fill in the form with the Company' s name. Nowak testified that Romer became flustered and then left. Nowak never sent a letter requesting the re- turn of his authorization card. Employee Willard testified Verbert "was trying to get me to get it [the authorization card] back ...." At Verbert's request, Willard signed the form letter requesting the return of his card. Willard testified that Verbert had asked him a couple of times to sign the form letter. Employee Rosenstock testified that Verbert asked him if he wanted to get his card back and told him that he would give him the Union's address. Rosen- stock wrote his own letter, gave it to Verbert, and later received a copy from the Respondent. Employee Sinsabaugh testified that Romer gave him the address of the Union so he could request the return of his card. Also, Romer gave Sinsabaugh a batch of slips with the Union's address and told him to give the slips to anyone interested in getting his card back. The testimony of the various employees is uncon- tradicted. Respondent called neither Verbert nor Romer to testify, and the failure of Respondent to call them gives rise to a presumption that their testi- mony would have been unfavorable to Respondent. Accordingly, we find that Respondent did encourage and assist employees to withdraw authorization cards in violation of Section 8(a)(1) of the Act. D. Interrogating Employees Concerning Their Union Activities and Union Sentiments Employee Willard testified that Verbert, in addi- tion to urging him to seek the return of his authoriza- tion card, questioned him as to what other employees had signed cards. Employee Rosenstock testified that Verbert asked him whether or not he signed an authorization card. The above testimony is uncontradicted, as Re- spondent called neither Verbert nor Romer to testify as to this issue. We conclude that Respondent, in violation of Section 8(a)(1), interrogated employees concerning their union activities and union senti- ments. E. Alleged Threats To Close the Plant The issue here is whether or not Respondent's president, Grout, or Respondent's production engi- neer, Hegedus, made threats to close the plant if the Union won the election. Three incidents are dis- cussed below: 1. Grout's speech to day-shift employees 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Grout's speech to night-shift employees 3. Hegedus' conversation with two other employ- ees The election was held on October 12, 1973. Grout spoke to massed assemblies of employees on October 10, 1973 (the night shift), and October 11, 1973 (the day shift). At both meetings, Monks first explained voting procedures to employees and then Grout addressed them. Grout did not speak from a prepared text but did glance at notes he had prepared. Grout admittedly was making his final pitch to en- courage his employees to reject the Union. He told them that it was quite difficult for Respondent to compete with other companies, that Respondent had extra costs, primarily freight and transportation costs, which were a result of its geographical loca- tion. Grout further explained that 2 years earlier he had negotiated about selling Monroe Tube but had eventually rejected the offer and decided to keep the Company in Monroe. He told the employees that it would cost them about $600 in union dues over a 3-year contract peri- od, and that having a union did not guarantee them a union pension plan, a union medical plan, or in- creased wages. While Grout admittedly discussed the above-men- tioned topics, there is dispute over whether or not, near the end of the speech, he threatened to close the plant if the Union won the election. 1. The day-shift speech Employee Cochran testified that Grout told em- ployees that he had several offers to buy the Compa- ny and move it out of the area . According to Co- chran, Grout stated that he wanted to keep the Company in Monroe but , "however, I leave it to your imagination what would happen if the Union was voted in." Employee Cordero testified that Grout told em- ployees he could have sold the plant to businessmen who would have moved the Company elsewhere. Grout mentioned Monroe Tube's lack of modern equipment and high transportation costs and told employees, "I can sell this place come Monday morning." Cordero also testified that, either during a speech or in company literature, Grout "said he will bargain fairly , something like that." Cordero testified that he did not recall Grout saying "anything about imagination." Employee Olin testified that Grout told employees he could have sold the plant 2 years ago. Olin testi- fied that Grout told employees that "no matter which way the union goes, come Monday morning if he wants he could put a lock on the door." Employee Hotaling testified that Grout said some- thing about the sale of the Company and his high transportation costs . Hotaling testified that Grout said he wanted to keep the plant in Monroe but that he could do as he chose to do . After the speech, Ho- taling sought out Grout and asked him if his speech meant he would close the plant if the Union won the election . Grout told Hotaling, "no, that's not what I mean at all." Employees Lyons, Ulatoski, and Wagner testified that they did not remember Grout saying anything about closing the doors of the plant or anything about "imagination." However, these three witnesses all indicated that they did not have a clear memory of Grout's speech. Grout admitted discussing a past offer to buy the Company, high transportation costs, and the cost of union dues . Grout denied making any threat to close the plant and denied saying anything about leaving it to employees' imagination what might happen. Grout testified that he emphasized to employees that despite his opposition to the Union he would bargain in good faith if the employees chose the Union. 2. The night-shift speech Employee Mendoza testified that Grout told em- ployees that he had high transportation costs and found it difficult to compete with companies located in the Midwest. Mendoza testified that Grout stated that he would like to keep the Company in Monroe but if the Union came in he would have "to close the doors." Employee Nowak testified that Grout told em- ployees that his transportation costs were high and that he had had offers to buy the Company. In re- sponse to a question about what, if anything, Grout said might happen to the Company after the election, Nowak answered, "only the fact that it might be moved." Employee Willard testified that Grout said some- thing about selling the plant but also said that he wanted to keep it in Monroe . Willard testified that he did not remember Grout saying he would close the doors if the Union came in. Employee Rosenstock testified that Grout discussed his high transportation costs and how Midwest companies did not have the same costs. Rosenstock testified that Grout told em- ployees that he had opportunities to sell the Compa- ny but he did not want to sell. Rosenstock testified that Grout did not say he would close the doors if the Union got in. Grout testified his speeches to the night shift and the day shift were about the same . He denied making MONROE TUBE COMPANY any threats to lock the doors or close the plant. Grout testified he told night-shift employees he would bargain in good faith if the Union won. 3. Hegedus' conversation Employee Mendoza testified that Hegedus had al- ways been a friendly person and that they (Mendoza and Vittum) were kidding him that the Union would. win the election. Then, according to Mendoza, Hege- dus said, "I got to tell you if the Union wins those doors will be closed the next day. So, you will win the fight but lose the battle." Employee Vittum testified that he and Mendoza were kidding Hegedus about the Union winning the election. Hegedus replied that the Company could not afford raises for the whole plant. Hegedus said the Company "can't afford the Union coming in so it would have to shut the doors if the Union did get in." Production Engineer Hegedus denied telling Men- doza and Vittum that the plant would close if the Union won the election. Hegedus testified that he told the employees that any wage increases were "really up to the negotiations." Hegedus told the em- ployees, "I know the Company wouldn't be able to pay." Hegedus testified that he told them that the $5-an-hour rate being discussed by the employees was "out of the question." IV. CONCLUSIONS AS TO ALLEGED THREATS TO CLOSE THE PLANT We are confronted with the difficult problem of weighing and assessing the evidence without the ben- efit of having observed the demeanor of the witness- es. Having carefully examined the record before us, we conclude that General Counsel has not proved by a preponderance of the relevant evidence that Re- spondent threatened to close the plant. As there is sharp conflict in the testimony of the various witness- es and as the testimony of General Counsel's witness- es does contain certain inconsistencies, we are forced, on the basis of the record, to conclude that the weight of the evidence does not preponderate in favor of finding that Respondent threatened to close the plant. Accordingly, we shall dismiss the allega- tions of the complaint alleging that Respondent, through either Grout or Hegedus, threatened to close the plant if the Union won the election .4 Inasmuch as we have dismissed the allegations of the complaints regard- ing plant closure, we need not consider the Union's majority status While the 8(a)(1) violations found herein are serious , we conclude that, assuming the Union's majority status, the violations are not sufficiently pervasive to require the issuance of a bargaining order as part of the remedy V. THE REPRESENTATION CASE 305 The following objection filed by the Union was consolidated for hearing with the complaint case: The Employer interfered, restrained and coerced the employees in their rights by threats to em- ployees including but not limited to threats to close the plant made in speeches and literature. Having found herein that Respondent did not threat- en to close the plant, we overrule this objection. However, the question remains as to whether the election should be set aside on the basis of the 8(a)(1) violations that we have found herein. In accordance with Dawson Metal Products, Inc., 183 NLRB 191 (1970), we find that matters litigated in a complaint case which is consolidated with a representation case can form a basis for setting aside the election even though those matters were not raised by the objec- tions.' Here, the conduct found violative of Section 8(a)(1), including assisting and encouraging with- drawal of authorization cards, and interrogations as to union activities and sentiments, is conduct which interferes with the exercise of a free and untram- meled choice in an election. Further, although the Board normally looks to the date of the filing of the petition resulting in the elec- tion to determine the beginning of the critical period, we find that the critical period in this case began on August 16, 1973, and extended until the election date of October 12, 1973. The Union filed its first petition on August 16, 1973, but later withdrew that petition on September 5, 1973, and refiled a second petition on September 6, 1973. Although the exact dates of the 8(a)(1) misconduct found herein were not pin- pointed, it is clear that the unlawful conduct took place within a week or two after August 16, 1973. In cases like R. Dakin & Company, 191 NLRB 343 (1971), the Board has refused to evaluate conduct that occurred prior to the filing of the petition which resulted in the election. However, in that case, it is significant that no petition was on file at the time when the alleged misconduct occurred. In this case, where the first petition was filed a short time prior to the filing of the second petition and a petition was on file at the time that unlawful conduct took place, we deem it proper to begin the critical period at the fil- ing of the first petition and to evaluate conduct oc- curring from that date until the election. We find that Respondent's 8(a)(1) violations occurred during the critical period and were of a nature as to preclude the laboratory conditions needed for fair election. Ac- s Member Penello, while agreeing that the 8(a)(l) violations found herein would require setting aside the election had such matters been alleged in the objections, would not set aside the election based on matters outside the scope of the objections 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cordingly, we shall set aside the election in Case 2- RC-16262, sever the representation proceeding, and remand it to the Regional Director for appropriate action. THE REMEDY Having found that Respondent has engaged in un- fair labor practices, we shall order it to cease and desist therefrom and take certain affirmative action that we find necessary to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Respondent is an Employer engaged in com- merce 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 encouraging and assisting employees to withdraw their union authorization cards and by in- terrogating employees concerning their union activi- ties and union sentiments, the Respondent herein violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. ORDER6 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Monroe Tube Company, Inc., Monroe, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Encouraging and assisting employees to with- draw their union authorization cards and interrogat- ing employees concerning their union sentiments or union activities. (b) In any like or related 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 necessary to effectuate the policies of the Act: (a) Post at its Monroe, New York, facility copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by Respondent's representative, shall be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 2, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herein. IT IS FURTHER ORDERED that the Board's Order of December 10, 1974, be, and it hereby is, vacated to the extent that it directed a hearing de novo be held. IT IS FURTHER ORDERED that the election conducted in Case 2-RC-16262 on October 12, 1973, be, and it hereby is, set aside, and that said case be, and it here- by is, remanded to the Regional Director for Region 2 to conduct a new election when he deems the cir- cumstances permit a free choice of a bargaining rep- resentative. [Direction of Second Election and Excelsior foot- note omitted from publication.] 6 Any party may, within 20 days from the date hereof, file with the Board in Washington, D.C., eight copies of a statement setting forth exceptions to this Proposed Decision, Order, and Direction of Second Election, together with seven copies of a brief in support of said exceptions and, immediately upon such filing, serve copies thereof on each of the other parties. 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 7In the event that this 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 aoard" 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 interrogate employees concern- ing their union sentiments or union activities. WE WILL NOT solicit employees to withdraw their union authorization cards and WE WILL NOT assist them in withdrawing their authorization cards. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the Act. MONROE TUBE COMPANY, INC.