Cooper Industries, Inc.

COOPER INDUSTRIES 323 Wagner, a Division of Cooper Industries, Inc. and United Steelworkers of America, AFL-CIO- CLC. Case 26-CA-11690 25 March 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 2 December 1986 Administrative Law Judge Richard J. Linton issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering 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 briefs and has decided to affirm the judge's rulings, findings, I and conclusions2 and to adopt the recommended Order. lations Board through the Regional Director for Region 26 of the Board. The complaint is based on a charge, subsequently amended, filed 3 July 1986 by United Steel- workers of America, AFL-CIO, CLC (Union or Steel- workers) against Wagner, a Division of Cooper Indus- tries, Inc. (Respondent or Wagner).' In the complaint the General Counsel alleges that Re- spondent violated Section 8(a)(1) of the Act when An- thony L. Sutton, warehouse supervisor, second shift, in- terrogated one employee (Stephen R. Walls) on 202 and 273 February, and again in May4 when Sutton interro- gated a second employee (Jeffrey W. Cunningham) and, during the conversation, "conditioned a permanent job for the employee upon a promise by the employee not to engage in union activities," and "threatened to discharge employees who talked about the Union."' By its answer Respondent admits certain factual mat- ters but denies violating the Act. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Wagner, a Division of Cooper 'Industries, Inc., Tullahoma, Tennessee, its officers, agents, successors, and as- signs, shall take the action set forth in the Order. i 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 Cit. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 In agreeing with the judge that the Respondent violated Sec. 8(a)(1) of the Act by coercively interrogating employee Walls, we note that his conclusions are in accordance with the principles set forth in Rosrmore House, 269 NLRB 1176 (1984), affd. 760 F.2d 1006 (9th Cir. 1985). See a.iso Sunnyvale Medical Clinic, 277 NLRB 1217 (1985). Jane Goldman, Esq., for the General Counsel. David 'R. ,Shell, Esq., of Houston, Texas, for the Respond- ent. Michael Wilson, of Chattanooga, Tennessee, for the Charging Party. DECISION STATEMENT OF THE CASE RICHARD J. LINTON, Administrative Law Judge. Questions and statements purportedly made in three con- versations are alleged here as unlawful in three para- graphs of the Government's complaint. I find merit to the first two allegations, and I dismiss the third. I heard this case in Manchester, Tennessee, on 17 Sep- tember 1986 pursuant to the 5 August 1986 complaint issued by the General Counsel of the National Labor Re- I. JURISDICTION A corporation with a place of business in Tullahoma, Tennessee, the facility herein, Respondent packages and distributes automotive parts. During the 12 months ending 31 July Respondent sold and shipped from its fa- cility products and materials valued in excess of $50,000 directly to points outside the State of Tennessee. Re- spondent admits, and I find, that it is an employer within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION INVOLVED The parties stipulated that the Union is a labor organi- zation within the meaning of Section 2(5) of the Act (1:6).s III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Howard K. Tucker is the manager of employee rela- tions at Respondent's Tullahoma facility (1:63). Tucker testified that the facility serves as the distribution center for Wagner. It replenishes the inventories of Wagner's zone warehouses throughout the country. In addition to its large warehousing operation at Tullahoma, Wagner has a customer service function there plus a planning office. Respondent employs some 250 employees at the facility, with about 150 being classified as hourly and the other 100 as salaried (1:63-64). ' All dates are for 1986 unless otherwise indicated. 2 Complaint par. 7(a) a Complaint par. 7(b). This subparagraph also alleges that Sutton or- dered the employee (Walls) to report on the union activities of other em- ployees. 4 Complaint par. 7(c) 5 References to the one-volume transcript of testimony are by volume and page. 283 NLRB No. 50 324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD As Tucker described, in addition to its own employ- ees, Wagner uses' a number of employees whom it ob- tains under a contract with N. R. Temps, a firm which refers temporary workers. Tucker testified that such workers are employees of N. R. Temps and not employ- ees of Wagner (1:65-66; R. Exh. 1). During the relevant time, Respondent paid N. R. Temps for the services of some 8 to 12 workers (1:73). At the hearing the General Counsel called two wit- nesses: Stephen R. Walls and Jeffrey Wayne Cun- ningham. The Union called no witnesses. Wagner called two witnesses: Manager of Employee Relations Howard K. Tucker and Warehouse Supervisor Anthony L. Sutton. - Formerly employed in the warehousing operation under the supervision of Sutton, Walls worked at Wagner from November 1984 to mid-August (1:9, 20). Although Cunningham worked in the warehouse under Sutton from 10 February to his layoff around 1 June, Cunningham at all times was an employee of N. R. Temps (1:38-40, 45-48). Sutton concedes that he spoke twice with Walls about the Union,6 but he contends it was Walls who ap- proached him and volunteered information. Sutton gave similar testimony regarding the alleged May 1986 con- versation between himself and Cunningham. Cunningham had difficulty with the timing of the al- leged conversation, first placing it the day before his layoff (1:43), but later testifying he could be mistaken and that it could have been a couple of weeks earlier (1:54), and finally conceding that in his pretrial affidavit he placed the event as a month before his layoff-a time- frame he 'then rejected (1:58-59). Respondent introduced certain evidence bearing adversely on Cunningham's credibility (R., Exhs. 1 and 2). Because I fmd Cun- ningham to be an unreliable witness, I shall dismiss com- plaint paragraph 7(c). B. The Two Conversations Between Stephen Walls and Supervisor Sutton 1. The conversation in the men's restroom As he was working in the warehouse one day in late February, Stephen R. Walls testified, Supervisor Sutton approached and engaged him in conversation (1:10, 24- 25). Expressing the opinion that he thought they were friends, Sutton said he wanted to ask Walls something as a friend.? Sutton'then asked if Walls was aware of any union ' activity. Although Walls had attended a union meeting a few days earlier (1:25), he replied that he knew nothing of any union activity (1:11, 25). Walls never wore any union insignia and never gave any' out- ward expression of support for the Union (1:33). He and 6 The Union made an earlier organizing effort in' September-October 1984 (1:100). The record is unclear whether either the 1984 or 1986 ef- forts reached the election stage. Whatever stage they reached,'the orga- nizing `efforts apparently were unsuccessful. 7 Although Walls and Sutton had discussed horses on previous occa- sions, they did not socialize outside work (1:19-20, 76-77, 99) Walls came to the second shift about the same time, April 1985, that Sutton was promoted from a quality inspector to second-shift supervisor (1:74-76). Sutton had never previously talked about a union or about organizing (1:26). Sutton stated that attendees at a management meeting had learned of recent union activity, and that Walls had been named as one of the leaders along with employees Paul Crabtree, Lynn Byrum, Danny Brewer, Ricky Tawwater, and Nancy Ahnacher (1:11, 24). Sutton asked whether any of the employees he named were involved in union activity, and Walls replied that he did not know of any such activity by them (1:11, 24). Walls testified that some of those named by Sutton had not been at the union meeting (1:27). As Sutton prepared to leave, he asked Walls -to -assure him one more time that Walls had nothing to do with the union, "and you'll-be taken care of I'll assure the management, if a meeting occurs again, that you don't have anything to do with it." Walls so assured him (1:12-13, 26-27). This conversation is the subject of complaint para- graph 7(a). Sutton's version is quite ' different. Sutton testified that about early March, as he made one of his rounds by Walls' work station, Walls said he needed to speak to Sutton in private. Sutton suggested his office, but Walls wanted to meet in the restroom.8 About 5 minutes later they met in the men's restroom (1:78-81). According to Sutton, Walls reported that ,the name of Walls had been mentioned as being involved, in some union meetings which were being held. "Before we, go any further," Sutton interposed, "why don't you _go to Bruce [Bruce Nemec, director of distribution] or to Howard [Howard K. Tucker, manager of employee rela- tions]?" "No," replied Walls, "I just want you, as being part of management, to let them know that I'm not involved, be- cause I don't want ... my name [mentioned as] being involved in any kind of union attempt, to- my mother." (1:82, 84) It is Sutton's understanding that Walls' mother, a clerk in the CDC department, is opposed to the Union (1:82-83).9 Testifying further, Sutton asserts that Walls confided that he had attended one union meeting out of curiosity. When Sutton again said Walls needed to discuss this matter with someone else, Walls replied that he wanted to tell him and for Sutton to notify management that Walls was not involved in any union activity. Sutton said he would do so, and that concluded the restroom con- versation. Sutton denies that, he, Sutton, listed the names of several employees during the conversation '(1:84). Sutton testified that he thinks he gave Walls the im- pression, during their conversation, that Sutton did not believe Walls, for Walls produced a blank union card and said, "Hey, here it is, it's here." (1:87-88) According to Sutton, rumors of union organizing are rather' frequent (1:88), and in fact there was a previous organizing cam- Sutton's office is enclosed by walls of clear glass (1:80). Although I overruled the General Counsel's objection to Sutton's "understanding" of the mother's views (1:83), I consider Sutton's "under- standing," possibly based on hearsay, as simply his explanation of why he thought Walls would not want his mother hearing that the son was sup- porting a union. COOPER ,INDUSTRIES 325 paign (unsuccessful, apparently) in September-October 1984 (1:100). At that time Sutton was a nonsupervisory employee who actively opposed the Union (1:100). 2. The conversation in Henninger's office Walls testified that about 2 to 3 weeks after the rest- room conversation Sutton came to him at his work sta- tion (on the second shift) and asked him to go to the office of Richard E. Henninger (1:14). As the pleadings and testimony establish, Henninger is a zone manager (1:14, 85).10 Presumably this was after the office staff had departed for the day. In any event, Walls testified that only he and 'Sutton were present in Henninger's office (1:14). In the office," Walls testified, Sutton informed Walls that management had held another meeting regarding a union, that Walls' name had been mentioned again, and he again asked whether Walls had anything to do with a union. When Walls denied any, involvement, Sutton said that he had heard Walls' name listed as one of the union ringleaders along with 8 or 10 others, including Paul Crabtree, Lynn Byrum, Sue' England, Tom England, Nancy Almacher, Ricky Tawwater, and David York (1:14-15). Replied Walls, "No, I don't have anything to do with it; I don't know what they have to do with it." Sutton kept asking if there was any union activity Walls could tell him about, that he would appreciate any information. He asked ' Walls to inform him if Walls heard of any union activity, saying he would appreciate Walls' telling him.13 Sutton finished by asking whether Walls was sure he had nothing to do with the union activity,-and Walls answered that he did not have anything to do with it (1:15).13 Walls testified that after this conversation Sutton seemed to avoid him, and that 3 to 4 weeks 'would pass before Sutton would even speak to him (1:20). Sutton's, version, as with the restroom conversation, is significantly different. According to Sutton, when he was making one of his normal rounds of the warehouse a couple of.' days after the restroom conversation, Walls asked whether Sutton had "taken care of that," and Sutton answered yes. Walls' asserted that he really needed to talk with Sutton again. This time Sutton sug- gested the men's -room. Walls vetoed' that location, but agreed to Sutton's next suggestion of Henninger's office (1:85). Sutton went ahead and a few minutes later Walls joined hi there. Inside Henninger's office, Walls, who appeared "dis- traught," began by reporting, "Somebody dropped a bunch of union cards off -at my house." Walls said he was going to return them, but "I can tell you who it is." 10 Sutton testified that he currently reports to Henninger (1:5). It is unclear whether he reported to someone else during February-March 1986 11 The conversation in Henninger's office is the subject of complaint par 7(b) 12 Complaint par. 7(b) alleges both an interrogation and that Sutton "ordered" Walls "to report on the union activities of other employees." It is clear that Sutton requested rather than ordered. 13 Although Walls, at the hearing, reported that his answer to Sutton was "No," his overall testimony makes clear that the sense of his answer was as I have summarized. "Steve, I don't want to know," Sutton responded. Nev- ertheless, Walls said he could tell him, and he named Paul Crabtree as the employee who delivered the cards (1:87). Having named Crabtree, Walls offered to name all those attending the union meetings. Sutton replied that he really did not need to know, but if it would make Walls feel better, he could do so; although "I really don't need to know this." (1:87) "Before I could stop him," Sutton testified, Walls began listing the names, reported they were meeting every 2 weeks, and gave the number of votes they had (1:87). Sutton stated that he had already told his boss that Walls had insisted he was not involved. Sutton told Walls not to worry about the matter. "I don't need to know all this other junk you're trying to run by me," Sutton advised Walls, and the meeting ended (1:89). Sutton denies asking Walls to report to him about union events, and he insists that on the two occasions he and Walls talked about union matters, Walls volunteered the information (1:89-90). Conclusions Walls testified with a favorable demeanor and I credit him and his version of the two occasions when Sutton interrogated him. Walls was not an open supporter of the Union, and Sutton's questions were probing and' asked in a coercive context and in a coercive manner. I find that Respond- ent, by Sutton's conduct, violated Section 8(a)(1) of the Act as alleged. 14 CONCLUSIONS OF LAW 1. Respondent Wagner is an employer within the meaning of Section 2(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. Respondent violated Section ' 8(a)(1) of the Act when Supervisor Anthony L. Sutton about late February to early March 1986 twice coercively interrogated em- ployee Stephen R. Walls about his union activities and those of other employees, and when Supervisor Sutton, during the second interrogation, requested employee Walls to report the union activities of other employees. 4. Respondent did not, as alleged in complaint para- graph 7(c), violate Section 8(a)(l) of the Act in May 1986 by, nor engage in the conduct of, coercively inter- rogating contract employee Jeffrey Wayne Cunningham, by promising him a permanent job conditioned on un- lawful considerations, or by illegally, threatening to dis- charge 'employees. 5. The unfair labor practices found affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order it to 14 As earlier noted, Sutton requested, not ordered, Walls to report back on any union activity he learned about. The distinction is without any material difference as far as the nature of the violation. 326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cease and to take certain action designed to effectuate the policies of the Act. On these findings of fact, conclusions of law, and the entire record, I issue the following recommended15 ORDER The Respondent,, Wagner, a Division of Cooper Indus- tries, Inc., Tullahoma, Tennessee, its officers, agents, suc- cessors, an d assigns, shall 1. Cease and desist from (a) Coercively interrogating any employee about union support or union activities. (b) Requesting any employee to report to super- vision/management about union activity by other em- ployees. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its Tullahoma, Tennessee facility copies of the attached notice marked "Appendix."16 Copies of the notice, on forms provided by the Regional Director for Region 26, after being signed by Respondent's authorized representative, shall be posted by Respondent immediate- ly 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 Respondent to ensure that the notices is 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 16 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 " 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 Respondent has taken to comply. IT IS FURTHER, RECOMMENDED that complaint para- graph 7(c) is dismissed. 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain, collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these, protect- ed concerted activities. WE WILL NOT coercively question you about your union support or activities. WE WILL NOT request you to report to super- vision/management on the union activities of your fellow employees. - WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WAGNER, A DIVISION OF COOPER INDUS- TRIES, INC.