Schurpack, Inc.

188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Schurpack, Inc. and Douglas Seiter. Case 17-CA- 12854 11 March 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 23 September 1986 Administrative Law Judge Irwin H. Socoloff issued the attached deci- sion. The General Counsel 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' 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, Schurpack, Inc., St. Joseph, Missouri, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Order. i We adopt the judge's conclusion that the Respondent did not violate Sec. 8(a)(3) and (1) of the Act by not considering employee Seater for, and refusing to promote him to, a leadman position. In so doing, we find that the General Counsel has established a prima facie showing that Setter's union activity was a motivating factor in the Respondent's deci- sion We, however, further find, based on the judge's crediting of the as- serted business reason for the decision by the Respondent's owner, Har- ding, that the Respondent has demonstrated that it would have denied Setter a promotion to a leadman position even absent his union activity. See Wright Line, 251 NLRB 1083 (1980). 8 The General Counsel's exceptions urge modification of the recom- mended Order to include a provision for a visitatorial clause authorizing the Board, for compliance purposes, to obtain discovery from the Re- spondent pursuant to the Federal Rules of Civil Procedure under the su- pervision of the United States court of appeals enforcing the Order. Under the circumstances of this case, we find it unnecessary to include such a clause Constance Traylor, Esq., for the General Counsel. William G. Haynes, Esq., Topeka, Kansas, for the Re- spondent. DECISION STATEMENT OF THE CASE IRWIN H. SOCOLOFF, Administrative Law Judge. On a charge filed on 21 January 1986, by Douglas Seiter, an individual, against Schurpack, Inc. (the Respondent), the General Counsel of the National Labor Relations Board, by the Regional Director for Region 17 issued a com- plaint dated 4 March 1986, alleging violations by Re- spondent of Section 8(a)(3) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended (the Act). Respondent, by its answer, denied the commission of any unfair labor practices. Pursuant to notice, trial was held before me in St. Joseph, Missouri, on 7 April 1986, at which the General Counsel and the Respondent were represented by coun- sel and were afforded full opportunity to be heard, to ex- amine and cross-examine witnesses,' and to introduce evi- dence. Thereafter, the parties filed briefs which have been duly considered. On the entire record in this case, and from my obser- vations of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, a Delaware corporation, is -engaged, at its St. Joseph, Missouri, facility, in the manufacture of plas- tic film and sheeting. Annually, Respondent, in the course and conduct of its business operations within the State of Missouri, sells goods and services valued in excess of $50,000 directly to customers located outside the State of Missouri. I fmd that Respondent is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION Teamsters Local 460, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union), is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Respondent opened its facility in 1983, utilizing some 14 production employees. At present; _ there are 17 or 18 such individuals working at the plant, including 5 of the original workers. On 2 September 1984, Soren Harding became Re- spondent's president. That month, he instituted lead posi- tions, nonsupervisory in nature, and designated two pro- duction workers as leadmen. Thereafter, two additional positions were created and one of the original appointees left Respondent's employ. Accordingly, Respondent ap- pointed leadmen on 12 December 1984, 4 February 1985, and 17 December 1985. In the instant case, the General Counsel contends that Respondent violated Section 8(a)(3) of the Act by refus- ing to promote Charging Party Douglas Seiter to a lead position, in late December 1985, because of his activities on behalf of the Union. Respondent urges that Seiter was not considered for the position for lawful reasons, namely, his earlier use of illegal drugs while working at the plant. Also at issue is whether Respondent violated Section 8(a)(1) of the Act by informing its leadman, Steve Housewirth, in mid-December 1985, that he must forego union activity in order to continue in his duties as a leadman and whether, Respondent, in early January 1986, violated Section 8(a)(1) of the Act by telling Seiter 283 NLRB No. 35 SCHURPACK, INC 189 that he must forego union activity in order to obtain pro- motion to the leadman position. B. Facts Douglas Seiter has been employed by Respondent, as an extruder operator, since the day the plant opened in the middle of 1983. Seiter, testified that, in September 1984, shortly after Soren Harding became Respondent's president, Harding met with Seiter in the presence of the plant production manager, Douglas Carver. Harding told Seiter that several employees had reported that Seiter was smoking marijuana in the plant. Harding, according to Seiter's testimony, further stated that he, Harding, had initially decided to fire Seiter but, instead, would give him another chance because he was a valuable employee. Harding told Seiter that he could keep his job if he be- haved himself, straightened up, and did a good job. Seiter denied that he had smoked marijuana while at work. Several days later, Seiter testified, he met with Carver. Carver asked the employee to confess to having smoked marijuana at work and Seiter said that he had nothing to confess. Carver said that four or five employees had stated that they did not like to work with Seiter because he was always high. Carver further said that Seiter would not be considered for appointment to future lead positions unless he confessed to smoking marijuana in the plant. Shortly thereafter, -Seiter confessed. A few weeks later, in October, 1984, Seiter and an- other employee contacted the Serial Workers Union for purposes of organization. They obtained authorization cards from that union and Seiter solicited the signatures of his fellow employees, at the plant, in the break room and in the parking lot. In all, some five or six' employees signed cards at Seiter's behest. Seiter testified that, early in October, Carver asked him "when is the vote." Seiter asked "what vote" and Carver replied, "the union vote." Carver, according to Seiter, asked "who started this" and Seiter stated that that did not matter- as it was al- ready started. The employee told Carver that the work- ers wanted to meet with Harding. The next day, Carver placed a telephone call to Seiter and talked about setting up a meeting with Harding. Seiter stated that a meeting was needed as the employees were upset about the way they were getting pushed around and threatened. When Carver asked if a meeting would do any good, Seiter said that if the employees got what, they wanted from the meeting, there probably would not be a union. Carver stated that he' would see what he could do and warned Seiter that if the employ- ees signed union cards, they were subject to layoff or discharge. Later in October, the employees ceased their organiza- tional efforts on' behalf of the Serial Workers Union and, instead, sought representation by Teamsters Local 460. On ll October, the Union filed a representation petition with the Board and an election was conducted on 6 No- vember 1984. Following a hearing on the Employer's ob- jections to conduct affecting the results of the election, the 'Union was certified on 27 June 1985. During the course of the' representation proceedings, Seiter was twice subpoenaed to testify and he showed the subpoe- nas to Carver. The employee did, in fact, testify on behalf of the Union at the hearing on objections. After the Union was certified, it met with Respond- ent's officials, for purposes of collective bargaining, during a period of 6 to 7 months and an agreement was concluded on 1 March 1986. During, negotiations, the Union's business agent, McMillan, was assisted by Seiter and employee Steve Housewirth, a leadman. On the day the contract was signed, the employees elected Housewirth as their shop steward and Seiter as assistant steward. On 17 December 1985, Respondent decided to appoint employee Carey Williams to a lead position. Thereafter, early in January 1986, Seiter met with Carver and asked why he, Seiter, had not been awarded the position. Ac- cording to Seiter's testimony, Carver stated that, as he had told employee Housewirth, "you can't be a leadman and a union steward at the same time." Seiner pointed out that he had not, at that time, been designated a stew- ard and he asked Carver if the matter had anything to do with his union activities. Carver, Seiter testified, stated that Seiter should "take it for what it's worth" and added that "besides, I can work better with 'Carey Wil- liams than I can with you." Seiter further testified that, on a prior occasion, Carver had told him that he had no chance for a lead position because he had smoked man- juana in the plant. Steve Housewirth, like Seiter, has been employed by Respondent since the 1983 opening of the plant. In De- cember 1984, he was appointed to a leadman position and, as noted, he served on the Union's negotiating com- mittee,, beginning in September 1985. Housewirth testi- fied that he met with Carver in the middle of December 1985, at which time Carver told him, "By the way, Steve, if and when the Union does get in, you're going to have to make a choice. You either will have to be a leadman or shop steward. You can't be both." Housewirth responded, stating that the stewards had not yet been selected. Carver said that Housewirth would have to think about'it. Housewirth further testified that, on 1 March 1986, the day he was elected Steward, he met with Harding and Carver' and asked if this would cause any 'problems. Both Harding and Carver stated that there would not be a problem. Carver testified that, at the time Harding assumed the presidency, in September 1984, Respondent was experi- encing low productivity and running an inordinate amount of scrap. Shortly afterHarding arrived, he told Carver that he had caught employees "smoking some- thing" in the plant and that Seiter was involved. Carver denied Seiter's account of their early January 1986, conversation. According to Carver, when Seiter asked why Williams had been chosen as leadman, Carver pointed to Williams' educational background and his ex- perience as a tool and dye maker. Seiter asked if the fact that he, Seiter, had not been selected had anything to do with his union activities and Carver said, no. With respect to the December 1985 meeting of Carver and Housewirth, Carver testified that, at that time, Housewirth asked if working as a leadman and, at the same time, serving on the Union's negotiating committee, 190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD created a conflict of interest . Housewirth also stated that he feared that his union activities would prove detrimen- tal to future advancement with the Company . Carver stated that he did not make decisions regarding promo- tions and he asked Housewirth why he felt there was a conflict. Carver further testified that, at the 1 March 1986 meeting, attended by Harding, Carver, and Housewirth, Housewirth spoke about his impending se- lection as steward and voiced the fear that there would be a conflict of interest in light of his leadman position. Harding said tht he saw no difficulty whatever and he assured Housewirth that the Company would work with him. Harding, too, testified about the productivity and qual- ity problems faced by Respondent at the time he as- sumed the presidency on 2 September 1984. He further testified that, in mid-September, he walked into the plant and believes he saw Seiter smoking marijuana . The next day, two employees reported to Harding that Seiter had, in fact, been smoking marijuana in the plant.' At that time, Harding decided to institute the lead positions "so that we didn't have the guys do things like that while they were supposed to work." Harding appointed -the first two leadmen on 17 September , and he conducted an employee meeting at that time to announce the appoint- ments. He also told the employees that Respondent would not stand for drug use in the plant and that, there- after, individuals so involved would be discharged. Finally, Harding testified that he had not given consid- eration to Seiter when he selected the leadmen . Thus, he testified, Seiter was the reason that the leadman positions were instituted in the first place , to prevent drug abuse in the plant following Seiter's activities in that regard. C. Conclusions Seiter and, particularly, Housewirth, impressed me as honest and forthright witnesses in possession of clear recollections of their December 1985 and January 1986 conversations, with Carver. Carver did not impress me as a witness attempting truthfully to relate the facts. His testimony concerning the conversations with Seiter and Housewirth was more vague than the testimony of those employees and Carver, generally, exhibited a selective memory of the details of events. In light of these factors, I credit the testimony of Seiter and Housewirth and, based thereon, find and conclude that Respondent, in December 1985 and- January 1986, violated Section 8(a)(1) of the Act by informing employees that they must forego union activity in order to attain or retain the posi- tion of leadman, a unit position. I found Respondent's president, Soren Harding, to be an honest and believable witness. His testimony was in harmony with the general flow of events and it con- tained the ring of truth. Harding's testimony establishes that, in September 1984, Respondent formed the belief that Seiter had engaged in serious misconduct . Thereaf- ter, and during the periods both preceeding and follow- ing Seiter's union activities, Respondent did not give consideration to Seiter for leadman positions because of its belief that Seiter had engaged in misconduct. Thus, ' Harding later learned of Seiter's confession to Carver Respondent has shown that, even if Seiter had not en- gaged in protected activities following the September 1984 drug incident, it would have denied to him designa- tion as leadman. I find and conclude that Respondent did not violate the Act in that regard. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practice conduct in violation of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to ' take certain affirma- tive action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Respondent, Schurpack, Inc., is an employer en- gaged in commerce, and in operations affecting com- merce, within the meaning of Section 2(2), (6), and (7) of the Act. 2. Teamsters Local 460, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By informing employees that they must forego union activity in order to attain or retain the position of leadman, Respondent has engaged in unfair labor prac- tice conduct within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 ORDER The Respondent, Schurpack, Inc., St. Joseph, Missou- ri, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Informing employees that they must forego union activity in order to attain or retain the position of lead- man. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. 2 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. SCHURPACK, INC. (a) Post at its St. Joseph, Missouri, facility, copies of the attached notice marked "Appendix."3 Copies of the notice, on forms provided by the Regional Director for Region 17, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (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. 3 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 Nation- al 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 191 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 inform employees that they must forego union activity in order to obtain or retain the position of leadman. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. SCHURPACK, INC.