Continental Industries, Inc.

920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Continental Industries, Inc. and Shopmen's Local Union No. 620 of the International Association of Bridge, Structural and Ornamental Iron Workers. Case 16-CA-9027 13 May 1986 DECISION AND ORDER BY MEMBERS DENNIS , BABSON, AND STEPHENS On 12 March 1981 Administrative Law Judge James J. Jenson issued the attached decision. The Respondent filed exceptions and a supporting brief. 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 brief and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The judge found that the Respondent violated Section 8(a)(1) of the Act by interrogating employ- ee Floyd Cox. We do not agree. On 31 January 19801 the Respondent received the Union's letter stating that the Union was en- gaged in organizing activities. On 5 February the Union informed the Respondent that a majority of the production and maintenance employees had designated the Union as their collective-bargaining representative and that a representation petition had been filed with the Board. Floyd Cox, at the time a nonsupervisory leadman, testified that he was the chief organizer among the employees and that he had handed out both authorization cards and union literature. Cox further testified that Plant Production Manager Couch and Day Shift Super- visor Jackson had seen him engaged in his union organizing activities. Two weeks after the organiz- ing started, Couch called Cox into his office. Cox's unrebutted testimony revealed the following con- versation: He [Couch] asked me [Cox] what I thought the union could do for me or the people. He said tell me a little bit about this union. Then, he asked me why couldn't management help us and we told him we was tired of the same things over and over. Then he replied every- body has their own opinion and I asked him, then I asked him why he had called me in and he said he had seen me collecting cards . . . . Then at that time he asked me how things were going with my work and I said fine and that was that. ' All dates are in 1980 unless otherwise indicated On cross-examination, Cox testified that Couch "asked me about this union. He said tell me a little bit about this union and he said don't you think we can help. And I said, `no."' The judge, relying on PPG Industries, 251 NLRB 1146 (1980), found that the Respondent violated Section 8(a)(1) by interrogating leading union ad- herent Cox. In our decision in Rossmore House, 269 NLRB 1176 (1984), we overruled PPG Industries, supra, to the extent it found that "an employer's questioning open and active union supporters about their union sentiments, in the absence of threats or promises, necessarily interferes with, restrains, or coerces em- ployees in violation of Section 8(a)(1) of the Act."2 In the instant case, Cox was an open and active union supporter. Considering all the circumstances, we find the Respondent's questioning of Cox to be noncoercive, and therefore we shall dismiss the complaint in its entirety. ORDER The complaint is dismissed. 2 Rossmore House, supra at 1177-1178 Martha Kinard, for the General Stephen L. Andrew, of Tulsa, spondent. Gerald William, Party. Counsel. Oklahoma, for the Re- of Tulsa, Oklahoma, for the Charging DECISION STATEMENT OF THE CASE JAMES J. JENSON, Administrative Law Judge. This case was heard in Tulsa, Oklahoma, on September 23, 1980.1 The complaint, which issued on April 11, pursu- ant to a charge and first amended charge filed on March 18 and April 8, respectively, alleges that the Respondent interrogated an employee regarding his union activities and unilaterally changed working conditions by prohibit- ing employees from talking to other employees as a result of their union activities, in violation of Section 8(a)(1) of the Act, and imposed more onerous working conditions on Floyd Cox by assigning him to specific jobs which were more arduous, dirtier, and less agree- able because of his support for the Union in violation of Section 8(a)(3) of the Act. All parties were afforded full opportunity to appear; to introduce evidence, to examine and cross-examine witnesses , to argue orally, and to file briefs. The General Counsel argued orally and the Re- spondent filed a brief, both of which have been carefully considered. On the entire record in the case, and from my observa- tion of the witnesses and their demeanor, I make the fol- lowing ' All dates here are in 1980 unless stated otherwise 279 NLRB No. 130 CONTINENTAL INDUSTRIES 921 FINDINGS OF FACT I. JURISDICTION Continental Industries, Inc. (Respondent) is engaged in the manufacture of gas distribution products in Tulsa, Oklahoma . In the past 12 months, the Respondent sold and shipped from its Tulsa facility goods and materials valued in excess of $50,000 directly to points outside the State of Oklahoma . Respondent admits, and it is found, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED It is admitted and found that Shopmen's Local Union No. 620 of the International Association of Bridge, Structural and Ornamental Iron Workers is a labor orga- nization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES Facts and Discussions Floyd Cox has been employed by the Respondent for 7 years. At the time of the trial, he was the leadman over 7 to 10 general helpers. He described his job duties as "check parts, make setups, make adjustments, and make sure that all of the [general helpers] are working correct- ly." Phil Couch was Respondent's plant production man- ager until the first week in September, when he left for a job in Cincinnati. Eldon Morain is Respondent's director of engineering and manufacturing. Don Jackson is the day-shift supervisor of the machine shop. He is Cox's su- pervisor. Sylvia McNaris is the deburr leadperson, a po- sition equivalent to that of Cox. On April 10, 1978, Cox was made a "set-up" man, en- titling him to uniforms without charge. Effective Sep- tember 8, 1978, he became a night-shift foreman, a super- visory position. In March 1979, he transferred from the second to the day shift as a foreman. Effective July 1, 1979, Cox was reduced from a supervisory job to an automatic operator A job, with a pay reduction from $8.19 to $8 per hour. Cox had requested the reduction because the strain of being a supervisor was too much and was affecting his personal life. Monan testified, with- out contradiction, "We agreed at that point in time that he could be reduced to an automatic operator A and be removed from the pressures that are involved with our foremen . . . . That he would be assigned to various and special duties on that floor. He may be involved in auto- matics . . . in the general machine shop setups, but I would use Floyd as a general all around man on the floor." Explaining that Cox was "a very valuable em- ployee," he testified further: "I made the agreement with Floyd at that point in time that we would train him to do general machine setups . I would use him on the auto- matics to help [setup] on those."2 Cox later became lead- 2 The record shows the Respondent employed four automatic screw machine operators to operate seven machines, but that with the high ab- sentee rate, only two or three operators showed up for work regularly man over the general helpers, a nonsupervisory position. Cox acknowledged that one of his duties was to set up automatic screw machines and that he had in fact per- formed this function prior to February 1980. On January 31 the Respondent received the Union's letter dated January 25, advising that the production and maintenance employees were engaged in organizing ac- tivities. On February 5 the Respondent received the Union's letter dated January 30, advising that a majority of the Respondent's employees had designated the Union as their collective-bargaining representative, and that the Union had filed a representation petition with the Board Cox testified that union organizing activities com- menced in early February, that he was the chief organiz- er, having handed out both authorization cards and union literature in the plant. He claimed that both Couch and Jackson had seen him passing out cards. He ac- knowledged that other employees had been active on behalf of the Union and had passed out cards also. An election, conducted by the Board pursuant to a consent election agreement, was held on April 10 and was won by the Union by a substantial majority, and the Union was certified. Paragraph 7(a) alleges that about the third week in February, Couch interrogated an employee about his union activities, membership, and desires. Cox, who was the General Counsel's only witness, testified on direct examination that about 2 weeks after the organizing started, Couch called him into the office and: He asked me what I thought the union could do for me or the people. He said tell me a little bit about this union. Then, he asked me why couldn't man- agement help us and we told him we was tired of the same things over and over. Then he replied ev- erybody had their own opinion and I asked him, then I asked him why he had called me in and he said he had seen me collecting cards. It was not secret that I had been collecting cards or passing out literature Then at that time he asked me how things were going with my work and I said fine and that was that. On cross-examination he testified regarding Couch, "He asked me about this union He said tell me a little bit about this union and he said don't you think we can help. And I said, no." As noted earlier, Couch had left Respondent's employ prior to the hearing and was working in another State. Thus, Cox's testimony is not refuted. Citing Bargain Town of Ponce, 200 NLRB 1085 (1972), the Respondent contends it "should be found not to have violated Section 8(a)(1) by this isolated conversation." In view of the fact that the interrogation occurred approxi- mately 2 months prior to the election which the Union won decisively, and which had ripened into a certifica- tion and, as will be seen hereafter, the Respondent did not engage in any other unlawful conduct, nor is there any evidence of antiunion animus, I entertain some doubt whether at this time an order remedying the interroga- tion really effectuates the policies of the Act. I am mind- ful of the fact that former Board Member Pennello fre- 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quently observed that the Board is best advised not to concern itself with "trivia" and "trifles," a position which has received support from several courts of ap- peals. His position, however, has not been adopted by the Board majority and I am bound, nevertheless, by Board precedent. In PPG Industries, 251 NLRB 1146 (1980), the Board, in discussing Stumpf Motor Co., 208 NLRB 431 (1974), and B.F. Goodrich Footwear Co., 201 NLRB 353 (1973), stated: Those cases found questions concerning employees' union sympathies to be not coercive in view of the employees' open and active support for the union and the absence of other threats in the conversa- tions. We have recently held, however, that inquir- ies of this nature constitute probing into employees' union sentiments which, even when addressed to employees who have openly declared their union adherence, reasonably tend to coerce employees in the exercise of their Section 7 rights.5 We have fur- ther found such probing to be coercive even in the absence of threats of reprisals or promises of bene- fits.6 The type of questioning at issue conveys an employer's displeasure with employees' union actiti- vity and thereby discourages such activity in the future. The coercive impact of these questions is not diminished by the employees' open union support or by the absence of attendant threats. Accordingly, we hereby overrule Stumpf and B.F. Goodrich to the extent they hold that an employer may lawfully initiate questioning about employees' union senti- ments when the employees are open and known union supporters and the inquiries are unaccompa- nied by threats or promises. 5 ITT Automotive Electrical Products Division , 231 NLRB 878 (1977), Raceco, a Division of Fruehauf Corporation, 237 NLRB 399 (1978), Anaconda Co-Wire and Cable Div, 241 NLRB 1091 (1979) See also Essex Wire Corporation, 188 NLRB 397 (1971) 6 Paceco and Anaconda Co, supra In PPG Industries, an employee had been asked what she thought the union would do for employees and her thoughts about what the union would accomplish. An- other employee was asked why she was for the union. The Board found that such questioning violated Section 8(a)(1) of the Act. In light of the foregoing authority, I find that Couch unlawfully interrogated Cox as alleged in paragraph 7(a) of the complaint. Paragraph 7(b) alleges that in the second week of March, Respondent, by Jackson, "unilaterally changed the working conditions of its employees by prohibiting them from talking to other employees as a result of their union activities." Cox testified that he was called to Jackson's office in the first part of March and was told "to quit talking to anyone over on the south side, which would be the stockroom side." Cox's response was, "You would not be doing this if the union was not trying to go through." Cox interpreted Jackson's statement to mean "that they was following me and thinking everytime I was getting issued a part or getting a part that I was talking union." Cox was "positive" Jackson's admonition was prompted by his union activities. He acknowledged, however, that he had stopped to talk to some employees that day Paragraph VII of the Respondent's policy manual, en- titled "Permission To Leave Work Area," reads: Your supervisor has the responsibility for account- ing for personnel in his department at all times. If you must leave your work area during work hours, you must notify your supervisor. Jackson testified that on March 13, he received three complaints from Sylvia McNaris, the leadperson in deburr, that Cox was in the deburr area bothering her people, that she had asked him to leave, and "would I get him out of her area."3 Jackson testified that after the last call, he went over to the deburr area and "Floyd was talking to one of the girls over there and when I walked up he left and the girl starting leaving. I said, did Floyd need something and she didn't respond or any- thing. Just walked off." After returning to his office, Jackson called Cox in and told him that "they were hol- lenng at me about bothering their people . . . . And would he stay on our side and leave those people alone over there. Would he let them take care of their business and we would take care of ours." Jackson made note of the "verbal warning " on an employee warning notice form, in accordance with Respondent's disciplinary system, which consists of first, a written notation of a verbal warning (as here); second, an employee signs the warning notice, third, a 3-day suspension; and, fourth, termination. The thrust of the warning was not prohibit- ing employees "from talking to other employees," as is alleged in the complaint, but for Cox to stay in his own area and stop bothering people in another area. There is no evidence on which to base a finding that there was a unilateral change in a working condition or that Cox was issued a verbal warning as a result of his union activities. Accordingly, I conclude the General Counsel has failed to prove by a preponderance of the evidence that the Respondent violated the Act as alleged in paragraph 7(b) of the complaint, and therefore recommended its dismis- sal. Paragraph 8 alleges that in February, Jackson "im- posed more onerous working conditions" on Cox "by as- signing specific jobs which were more arduous, dirtier and less agreeable," because of his union interest. Cox testified that for 2 or 3 weeks in February, he was called on at least twice a week to set up an automatic screw machine, which took up a "good percentage" of the day on each occasion, in addition to checking on his crew of general helpers.' Although he testified his current work assignment was to "check parts, make setups, make ad- justments and make sure that all of them [the general workers] are working correctly," he nevertheless felt that he was being discriminated against because of his union activities, by being required to do both, make setups and check on his crew of workers. There is no Cox did not deny that McNans had asked him to leave the deburr area 4 "Setting up" a screw machine entails tearing it down , retooling it, putting on new parts , and checking it out CONTINENTAL INDUSTRIES evidence, however, that the setups be performed in Feb- ruary were "more arduous, dirtier and less agreeable" than any other of the setups he was ever required to make. In this regard, doing setups was not foreign to Cox. On April 10, 1978, he was made a "set-up man," and, in conjunction with that job, furnished uniforms by his Employer. As of the date of the hearing, the Re- spondent was still furnishing his uniforms in conjunction with his setup man duties. It is not denied that in July 1979, when Cox was demoted at his own request from a supervisory job to that of automatic operator A, that it was agreed that he would be assigned to various and spe- cial duties and that he would be used as a general all around man and would be trained to do general machine setups. Further, Cox acknowledged that one of his duties was to set up the automatic screw machines. Morain ex- plained that in February the operation was trying to catch up on back orders and, as a consequence, the setups would only run in some instances for I day, whereas a normal run lasted 4 or 5 days. It was further explained that with only four automatic operators to op- erate seven machines, and with the high absentee rate among the operators, it was impossible for the operators to make the number of setups required. Consequently, because Cox was capable of performing setups on the automatic screw machines, he was called upon to do so. Most of the time someone else would take over his other 923 duties. Although Cox testified he had to look after the general helpers while he was doing the setups, Morain testified he and Jackson each did a part of Cox's regular work. Noting an absence of evidence that the Respond- ent displayed any animus toward the employees' union activities, and in light of the foregoing facts, I am con- vinced that Cox's reaction to being assigned setup duties in February is a result of his hypersensitivity, with per- haps a trace of paranoia, and that the Respondent did not impose on him more onerous working conditions as al- leged in paragraph 8 of the complaint. Accordingly, I recommended its dismissal. CONCLUSIONS OF LAW 1. The 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 mean- ing of Section 2(5) of the Act. 3. By interrogating an employee concerning the Union, the Respondent has engaged in an unfair labor practice affecting commece within the meaning of Sec- tion 8(a)(1) of the Act. 4. The Respondent did not violate the Act as alleged in paragraphs 7(b) and 8 of the complaint. [Recommended Order omitted from publication.]