The Armstrong Rubber Co.

ARMSTRONG RUBBER CO. - 233 The Armstrong Rubber Company, Pacific Coast Di- vision and United Rubber, Cork, Linoleum and Plastic Workers of America, Local No. 703, AFL-CIO-CLC. Case 32-CA-5876-5 13 December 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER, On 20 June 1984 Administrative Law Judge Rus- sell L. Stevens issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the judge's decision. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions 2 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, The Arm- strong Rubber Company, Pacific Coast Division, Hanford, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order. In adopting the judge's finding that the Respondent violated Sec 8(a)(1) by threatening, disparaging, and harassing Shop Steward Tesor- 'ere because of his activity on behalf of the Union, Chairman Dotson and Member Hunter do not rely on any of Supervisor Homen's comments to Tesonere during August 1983 Further, Member Hunter does not rely on the confrontation between Homen and Tesonere on 17 September 1983 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 In adopting the judge's conclusion that by various statements and ac- tions of Supervisor Homen directed toWard employee Tesonere the Re- spondent violated Sec 8(a)(1) of the Act, we do not rely on that portion of the judge's analysis, in III of his decision, which discusses Homen's motivation and asserts that once an antiunion motivation on the part of Homen was shown the burden shifted to the Respondent to show either that the incidents did not occur or that if they occurred they were unre- lated to Tesonere's union activity We note that the test for finding a vio- lation of Sec 8(a)(1) such as that alleged here is whether the employer's actions reasonably tended to Interfere with, restrain, or coerce the free exercise of employees' statutory rights American Freightways Co. 124 NLRB 146 (1959) DECISION .,„ STATEMENT OF THE CASE RUSSELL L. STEVENS, Administrative Law Judge. This case was tried in Fresno, California on April 26, 1984.1 The complaint, issued November 30, is based on an origi- nal charge filed September 16 by United Rubber, Cork, Linoleum and Plastic , Workers of America, Local No. 703, AFL-CIO-CLC (Union);' a first amended charge filed by the Union on September 30; and a second amended charge filed by the Union on November 21. The complaint, as amended at trial, alleges that The Armstrong Rubber Company, Pacific Coast Division (Respondent), violated Section 8(a)(1) of the National Labor Relations Act (Act). All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue• orally, and- to file briefs. Briefs, which have been carefully considered, were filed on behalf of counsel for General Counsel and counsel for Respondent. On the entire record; and from my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I. JURISDICTION At all times material Respondent; a Connecticut cor- poration with an office and place of business in Hanford, California, has been engaged in the manufacture and nonretail sale of automobile, truck, and tractor tires and tubes. During the past 12 months, in the course and con- duct of its business operations, Respondent purchased and received goods or services valued in excess of S50,000 directly from suppliers located outside the State of California. I find that Respondent is, and at all times material has been, an employer engaged in commerce within the ,meaning of Section 2(2), ,(6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Rubber, Cork, Linoleum and Plastic Workers of America, Local No. 703, AFL-CIO-CLC is, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Background' - Anthony Tesonere, a member of the Union, has been employed by Respondent approximately -17 years as an industrial mechanic. He has held several offices in' the Union, and at all times material has beeri the union shop steward for Respondent's maintenance department. Since approximately 7 years ago, and at all times material, Te- sonere's immediate supervisor was Bill Homen, Re- 1 All dates are within 1983, unless otherwise stated 2 This background summary is based on credited testimony and evi- dence not in dispute 273 NLRB No. 37 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent's maintenance foreman, 3 who supervised 10 to 16 employees. Under the collective-bargaining agreement between Respondent and the Union, the first step of gnevances in Homen's department often were discussed by Homen and Tesonere Those two persons attempted to settle grievances, but written grievances are not seen by Homen—they are filed with Respondent's mainte- nance superintendent: During the past year Tesoriere filed approximately 30 grievances for the 80 employees of the maintenance department, of which approximately 12 grievances -involved HOmen. 1. The incidents involved Tesoriere testified that Homen has threatened and har- assed him on several occasions, as follows: • a. On August 29 he discussed a grievance with Homen concerning movement of molds by mechanics, which movement he contended was improper. A. Well, I first told him about moving these molds and why the mechanics were doing the job instead of the mold repairmen He got upset when I started talking to him, -and he accused me of just standing there wasting time and ordered me to get back to work, get back, to my area and go back to work. Q. Did he say anything else? A. Other than accusing me of wasting time, no, he just told me to get back to' work. Q. Did he indicate that he would correct the situ- ation or not correct it? A He did say he wouldn't do anything about it He said ,the mechanics were moving molds and that was it. He couldn't do, any further than that b. On August 30 he was called by Homen to the office of Tom Driver, Respondent's maintenance superintend- ent, to represent an employee, John Smith, who was being investigated. As he left the .Office, Homen, was standing just outside the door, Homen stated to him, "You were in there long enough. Let's get back to work." c On August 26 again he was called by Homen to Driver's office to represent employee Bob Clay, who was being investigated by Respondent Again Homen was just outside the door when Tesonere left Driver's office. Homen said "I'd been in there long enough with Bob Clay and to go back to work." d. On August 16 Tesonere filed a grievance on behalf of employee Al Palomo,. and on that day Homen called Tesonere to Driver's office for an investigatory inter- view of Palomo by Driver The meeting was attended by Palomo, Driver, Romen, and Tesonere. Palomo later left, and a second grievance hearing then was held for employee Les Davis, ' with the same people present. As everyone was leaving after the meeting, Homen ap- proached Tesoriere outside the office, and appeared angry. Homen "told me we'd been in there long enough again, and it was time to get back to work." - 3 Homen's supervisory status is not in dispute e. On September 15 a mechanic named John Borba told Tesonere he wanted to file a written grievance against Homen because Homen had taken tools from Borba's toolbox and was using them Tesoriere said he first would like to discuss the matter with Homen Later that afternoon Tesonere approached Homen. A. I stopped Bill Homen in the same area, in the maintenance shop by the battery area, and I said to Bill, "Just a minute, Bill, I'd like to speak to you for a minute" And he stopped, he was on his bicycle, and, he stopped. And I said, "I understand you've been using tools out of a mechanic's tool box and I'd like you to stop it." And at first he denied it: He said, "No, I wasn't working. I wasn't using anyone's tools." And he paused for a minute, and then - he Just came unglued and he called, he said to me, "You little mother-fucker, I'll get you, I'll get you, if it's the last thing I .do. I'll get you." And'he was screaming and waving his arms when he said it. And we weren't but a few feet apart. He jumped on his bicycle and he rode off in the direction of the plant. f. On September 17 Tesoriere talked with Homen: A. Well, I was standing at the tool crib, at the counter there, and -Bill Homen came riding up on his bicycle, stopped and just started shouting and screaming right in my face, and we were nose-to- nose, wasn't a foot apart. He said, "You little son- of-a-bitch, there you are Just the other day you wanted to write a grievance against me and now here you are standing here" And he was just—he was waving his arms, he was very—I thought lie was going to hit me at one point, because he was just moving his arms and had a fist in front of my face. And then he jumped on his bicycle, and I said all I was trying to do was first-step grievance, and I don't even know if he heard me. He jumped on his bicycle and he took off and he went back towards the shop or the curing area. g On Monday, October 17 he talked with Homen before going to work late, at 11 a m He was late because he had been attending to union business as a trustee, with an absence excuse from management A. Well, I'd gone upstairs to change clothes, get into my work clothes to go to work. And Homen came up there and he stood down the edge of the aisleway and he said, "So, there you are!" He said, "You're off all day Friday, and you're off half a day today on union business, and this shit has got to stop." And that was it. He turned around and he left and he left the locker roomi Tesonere had been absent the preceding Friday on union business as a trustee, with an absence excuse from man- agement. h. On October 18, shortly after 8 am • ARMSTRONG RUBBER CO 235 • A. Well, Homed approached me that morning, cleaning his bicycle, and he had a can- of—a spray bottle in his hand, of eye-glass cleaning solution. He come over to me with it, and he sprayed thew .all around my head and shoulders , with it, it got in my coffee, I was holding a cup of coffee, it got into my coffee, and he just started to chuckle, he said, "All right, get to work." • He got this stuff all over me, all around me, and in my coffee. I just took my coffee cup and I threw it in the waste basket that was there and I just left the area and went into work. Homen testified relative to Borba: A. I remember. he had—Tony had 'stopped me that day, that morning, and he said he wa g going to have to turn a grievance in or I'd been using tools, and I said—I denied it, no. And I said, "I'll talk to you about it later." And I rode off. • Homen denied that he ever talked, or had a confronta- tion, with Tesonere while cleaning his bicycle. He also denied spraying Tesoriere with cleaning fluid Discussion Generally speaking, Tesonere was a more convincing witness than Homen. He seemed sincere, straightfor- ward, and candid in his testimony. His version - of events is credited. Homen not only was not cOnvincing—he 'did not deny most of Tesonere's testimony. His denials principally in-. volved only the Borba incident and the matter of spray- ing the cleaning fluid. Prima facie, in view of the number of incidents in- volved and the single theme of those incidents, i.e., all of them occurred directly or indirectly in relation with Te- sonere's activity on behalf of the Union, Homen was mo- tivated by a desire to restrain, interfere with or coerce Tesonere in his union activity. It then became Respond- ent's burden to prove that the incidents did not occur, or that, if they did occur, they were not related to Tesor- iere's union activity. That burden was not met There is no evidence that Tesonere and Homen were engaged in a personal feud, or that Tesonere had been goofing off and needed to be prodded to get him to work, or that Homen's actions against Tesonere were motivated by anything other than a dislike of the latter's union activi- ty. No reason was shown for such a dislike, but that fact is irrelevant. It is found that Homen's actions in all inci- dents were dictated by his desire to restrain, interfere with, or coerce Tesonere in his union activity. Possibly one or more of the incidents Tesonere related would not constitute violations of the Act, if they were considered in a vacuum For instance, Homen's direction to Tesonere to get back to work because he had been in with Driver and fellow employees long enough, possibly would not, in the absence of anything else, be a violation of the Act. However, that is not this case It is apparent that Homen seized every opportunity to threaten or harass Tesoriere because the latter was acting in behalf of grieving employees. There is a pattern of conduct, not just one or two isolated incidents. Whatever may have been Homen's reason to be annoyed by Tesoriere's activ- ity, it is clear that the reason was related to the Union. Homen supervised Tesonere all day every day, yet there is no evidence that his- comments discussed above ever were related to any activity other than union activity. , • Homen made plain to Tesoriere his views of the lat- ter's union activity. It is not necessary to dwell on impli- cations. On August 16 Homen told Tesonere, after wait- ing outside during an interview, that Tesoriere had been in Driver's office long enough with a grievant—that he should get back to work. On August 26 he repeated that -action—he waited outside the- office for Tesonere to finish the grievance interview, and again told him to get back to work. On August 30, Homen• again waited out- 'side the office until a grievance interview was over, and then told Tesonere that he had been in the interview long enough, and to get back to work On September 15, angered- by a grievance, Homen threatened Tesoriere get you . if it's the last thing I do. I'll get you." On September 17 Homen swore at Tesoriere because the latter had been involved with a grievance. On October 17, Homen objected to Tesoriere's being off work on union business, and threatened that "this shit has got to stop" On October 18, Homen assaulted Tesoriere with cleaner spray. That assault, standing alone, possibly Would be ambiguous. However, it does not stand alone— it followed an earlier threat by Homen to "get" Tesor- iere, 1 and a threat the day before concerning Tesoriere's Union activity, "this shit has got to' stop." Those ' actions by Homen clearly were coerciVe, and constituted threats and harassment in violation of the Act, as alleged in the complaint.4 On the basis of the foregoing findings of fact and on the entire record, I make the following CONCLUSIONS OF LAW 1 Respondent The Armstrong Rubber Company, Pa- cific Coast Division is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2 United Rubber, Cork, Linoleum and Plastic Work- ers of America, Local No 703, AFL-CIO-CLC is a labor organization within the meaning of Section 2(5) of the Act. 3 Respondent violated Section 8(a)(1) of the Act by threatening, disparaging, and harassing a union shop steward because of the steward's activity on behalf of the Union. THE REMEDY Having found that Respondent has engaged in unfair labor practices, it is recommended that Respondent be ordered to cease and desist therefrom, and to take certain affirmative action designed to effectuate the policies of the Act. 4 Davis Coal Ca, 266 NLRB 1072 (1983), Chrysler Corp, 245 NLRB 554 (1979), Grane Trucking Co, 241 NLRB 133 (1979), Westinghouse Electric Corp, 237 NLRB 578 (1978) 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed ORDER The Respondent The Armstrong' Rubber • Company, Pacific Coast Division, Hanford, California, its officers, agents, successors, and assigns, shall - 1. Cease and desist from (a) Violating Section 8(a)(1) of the Act by threatening, disparaging and harassing a union shop stewaid because of the of the steward's activity -on behalf of the Union. (b) In any like or related manner interfering with, re- straining or coercing employees in the exercise of rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act. (a) Post at its facility copies- of the attached notice marked "Appendix." 6 Copies of the notice, on forms provided by the Regional 'Director for Region 32, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediately 5 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 6 If 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board" upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent'has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT violate Section 8(a)(1) of the Act by threatening, disparaging, and harassing a union shop steward because of the steward's activity on behalf of the Union. WE WILL NOT in any like or related manner interfere with, restrain, or' coerce employees in the exercise of rights guaranteed them in Section 7 of the Act THE ARMSTRONG RUBBER .COMPANY, PA-'. CIFIC COAST DIVISION