Berk-Tek, Inc.

300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Berk-Tek Inc. and United Steelworkers of America, AFL-CIO-CLC. Case 4-CA-15962 10 August 1987 DECISION AND ORDER By MEMBERS JOHANSEN, BABSON, AND STEPHENS On 24 March 1987 Administrative Law Judge David S. Davidson issued the attached decision. The Respondent filed exceptions and a supporting brief and the General Counsel filed a brief in re- sponse to the Respondent's exceptions. 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 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, Berk-Tek, Inc., Reading and New Holland, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Order, except that the at- tached notice is substituted for that of the adminis- trative law judge. ' 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 To choose not to engage in any of these protected concerted activities. WE WILL NOT create the impression that we are keeping your activities under surveillance. - WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the -exer- cise of the rights guaranteed you by Section 7 of the Act. BERK-TEK, INC. Bruce G. Conley, Esq., for the General Counsel. Neal Haber, Esq. (Moss and Boris), of New York, New York, for the Respondent. DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Administrative Law Judge. United Steelworkers of America, AFL-CIO-CLC (Union) filed the charge in this case on 15 July 1986.1 The complaint issued on 28 August. The case was heard at Philadelphia, Pennsylvania, on 12 January 1987. The issues are whether Berk-Tek, Inc. (Respondent) violated Section 8(a)(1) of the National Labor Relations Act by creating an impression of surveillance of union activities, telling an employee to stop distributing union materials, telling an employee that the Union could cause "trou- ble," threatening plant closure and loss of jobs if the em- ployees chose union representation, soliciting employee complaints and grievances, interrogating an employee, and threatening reprisals.2 On the entire record, including my observation of the witnesses, and after consideration of the briefs filed by the parties,3 I make the following FINDINGS OF FACT 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 ordered 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 representa- tives of their own choice To act together for other mutual aid or pro- tection 1. JURISDICTION Respondent manufactures and distributes insulated wire products. It has facilities at new Holland and Read- ing, Pennsylvania, from which it sells and ships goods valued in excess of $50,000 directly to points outside Pennsylvania. Respondent admits, and I find, that Re- spondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. i All dates which follow are in 1986 unless otherwise indicated 2 In its answer, Respondent alleged as an affirmative defense that the charge was inadequate to support the allegations of the complaint After the answer was filed, the Union filed an amended charge based on the events that are alleged in the complaint Respondent has not pressed its affirmative defense further 3 Following the close of the hearing counsel for the General Counsel also filed a motion to correct transcript, which has not been opposed As the corrections sought are warranted, the motion is granted, and the cor- rections are made 285 NLRB No. 43 BERK-TEK, INC iI. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The resolution of the issues in this case depends large- ly on the resolution of the credibility issues raised by the testimony All the allegations are based on the testimony of one witness for the General Counsel, Robert Reber, concerning two conversations with Respondent's Read- ing plant manager, John Gibson. Gibson, supported by Reading Manufacturing Manager Tom Anater, testified to a substantially different version of the first of the con- versations. Gibson denied that the second conversation occurred. With the exceptions noted below, I find Reber's testimony too flawed for reliance and have cred- ited Gibson. One cannot expect Reber to have remembered the en- tirety of a 20- to 30-minute conversation with Gibson, but his memory was shown to be particularly poor. What he testified to could have been only a small por- tion of the conversation. His testimony about details con- cerning the shift he was working on at the time of the conversation, the circumstances under which he was so- licited by another employee and signed a union card, and his own union activities was characterized by vacillation and inconsistency. Even after being shown his timecard and having his recollection probed, his memory re- mained notably weak. Gibson's testimony, however, was also not entirely convincing. Thus, it was inconsistent in one material re- spect with his affidavit, was accompanied by consider- able self-serving explanation, and was not supported in all respects by Anater's version. Nevertheless, it was on the whole more persuasive than Reber' s. Bearing in mind that the burden is on the General Counsel to establish the allegations of the complaint by a preponderance of the credible evidence, I have in the main resolved credi- bility conflicts against the General Counsel's witness. In early June an organizing campaign had started at Respondent's Reading plant It culminated in the filing of a petition on 23 June seeking representation for a unit of employees at Respondent's New Holland and Reading plants. On 10 June, at the request of a fellow employee, Reber signed a union authorization card and agreed to hand out union materials to other employees. On 13 June, Anater asked Reber to accompany him to Gibson's office to talk with Gibson. Gibson told Reber that he had information that Reber was handing out union cards at the plant 4 Reber asked 4 Reber so testified According to Gibson, he called Reber into his office because Reber was in danger of losing his job due to poor attend- ance, because Reber had shown a negative attitude at a group meeting the previous week, and because Gibson received reports from Production Supervisor Schrader and Anater that Reber had harassed another em- ployee about the Union while she was at work Anater testified that the meeting was called because of Reber's attendance and the employee's complaint of harassment According to Anater, Gibson opened the meet- ing by stating that he had received a complaint that a second-shift em- ployee was being harassed about joining the Union According to Gibson, he told Reber that he wanted to discuss his attendance problem, his attitude demonstrated at the recent meeting , and the complaint he had received that he had harassed an employee about union activity On cross-examination, Gibson conceded that in an affidavit he gave during the investigation of this case, he stated, "I told him I was aware he had been discussing the pros and cons of the union with coworkers," 301 if Gibson was accusing him of anything. Gibson replied that they were not accusing him but wanted to speak to him about it. Reber said that his only discussions about the Union were general and not on company time. Gibson said that Reber had the right during breaktimes to discuss the Union and hand out literature in the cafe- teria and parking lot, but that it was against company policy for him to do it on company time Gibson said that he had hoped Respondent could work with employ- ees and solve its internal problems without a third party. Gibson asked Reber if he was having any problems.5 Reber said that he felt that the employees should get more money Gibson replied that if the Union came in everything would be negotiable and there would be no guarantees. Gibson also said that the Union would defi- nitely want monthly dues. Gibson then told Reber that after he became manager they had initiated a successful incentive system in the array department that allowed productive employees to increase their wages. Gibson said that they were working on an incentive system for the braiding department where Reber worked. Gibson pointed out that it would give Reber an opportunity to increase his wages but that there would be no guaranteed increase since it would depend on his productivity. Gibson asked Reber if there were other reasons why he had a negative attitude, Reber replied that he felt communications were very poor between management and the workers. Gibson said that he felt communica- tions had gotten much better since he became plant man- ager, pointing to increased meetings with employees. Gibson also told Reber that he felt he had made a mis- take in trying to consolidate the second and third shifts, which he had announced about a week before at a team meeting where Reber had exhibited displeasure Gibson said that because of increased orders they would have to go back to a three-shift operation, and added that if he had known how badly the change would upset the em- ployes he would not have suggested it. Gibson also discussed overtime and said that with busi- ness picking up he hoped Reber would be more recep- tive to requests to work overtime. Reber said he really did not want to and that it was a little too much for him. and that it did not say that he told Reber he had received a complaint about harassment Although Respondent argues in support of Gibson's complaint, I find the portion of Reber's testimony relied on at worst am- biguous and not contradictory of his initial testimony I find further that the conflict between Gibson's testimony and his affidavit is material and significant It is highly unlikely that his testimonial version is more accu- rate than his earlier affidavit Accordingly, I credit neither Gibson nor Anater in this regard but credit Reber whom the affidavit in substance corroborates 5 Reber testified that a discussion of wage increases was introduced by this question from Gibson Gibson testified that Reber introduced the topic after Gibson stated his hope that they could resolve problems with- ough a third party However, later Gibson testified that he asked Reber "if there were other reasons why he had what I felt to be a negative atti- tude, that would also cause attendance problems," suggesting that the dis- cussion of wages was also mtiated by a question from Gibson On cross- examination , Gibson conceded that after his third-party statement, he asked Reber for his input on what the problems would be, adding "with regard to his attendance and attitude problems " I find that Gibson's question initiated the discussion, as Reber testified, and even if Gibson re- lated the question to Reber's attitude, this was the first mention of a neg- ative attitude in a conversation that until then was concerned solely with Reber's union activity I have credited Reber in this regard 302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Anater reminded Reber that at an earlier meeting with all the braider operators he asked all of them to work more overtime. Anater said that Reber was reneging from a promise that he made then. Gibson then said that the financial condition of the Company was looking very good and that they had made a good recovery in the quarter that had ended in March. Gibson said that he had a particular management style that meant dealing with people one on one, Reber could communicate with anyone in management, and Gibson had seen a change in the people above him as well. With reference to Respondent's owner, Gibson said that he had been through hard times before but that Gibson felt that he really cared for- the employees because he was wealthy and could have closed or sold the business. Gibson asserted that he was continuing the business be- cause he truly cared for the people working there. Finally, Gibson referred to Reber's attendance record and told Reber that under a point system in effect no one had accumulated points as quickly or had as many points as he. Gibson encouraged him to turn around his attend- ance because they needed him there to help meet cus- tomer demands. Reber nodded affirmatively, and the meeting ended. According to Reber, in mid-June Gibson came to his work station and asked him if he was handing out any more of that "stuff," Reber answered negatively, and Gibson said that was good because it would just get him in trouble. He testified that Gibson then asked him if he wanted to work,any more overtime. Reber volunteered to come in 2 hours early, and Gibson agreed. Gibson denied that any such conversation occurred. In addition to the reasons discussed above for discrediting Reber generally, Respondent contends that this testimony should be discredited because the noise level in the plant made it impossible for this conversation to have occurred in normal tones as described by Reber. I have not cred- ited Reber for' these reasons and the additional reason that this testimony portrays the second conversation as a sequel to Reber's version of the first conversation, which I have largely discredited. B. Concluding Findings The General Counsel contends that Gibson's statement he had information that he was handing out union au- thorization cards created the impression that Reber's union activities wee under surveillance. I agree. Gibson did not disclose his source or how he received the infor- mation he referred to. Although Gibson had been told that an employee complained about being solicited by Reber during working time, there is no evidence that Reber carried on union activities in the plant in plain view or otherwise openly engaged in union activities. Indeed, there is no evidence that there was any open campaigning for the Union at this time. Respondent's defense to this allegation rests on the as- sumption that Gibson would be credited that he opened the conversation by referring to the employee complaint about Reber's conduct. As I have not credited that por- tion of Gibson's testimony, I find that Respondent violat- ed Section 8(a)(1) of the Act by creating the impression that Reber's activities were under surveillance. California Dental Care, 272 NLRB 1153, 1165 (1984). The General Counsel contends that Respondent also violated the Act by telling Reber to stop distributing union cards and materials completely. However, the credited testimony establishes that Gibson did no more than describe the prohibition on union activity during working time contained in Respondent's no-solicitation rule. The rule itself is not challenged by the complaint, and I find that Gibson's statements concerning Reber's rights to solicit in the plant did not violate Section 8(a)(1) of the Act. Similarly, as I have credited Gibson's denial that he told Reber the Union could cause trouble for the employees or threatened that the plant might close and employees lose their jobs, I find no violation of the Act based on those allegations of the complaint. The final allegation of the complaint based on the 13 June meeting is that Respondent violated the Act by so- liciting Reber's grievances and complaints thereby prom- ising him increased benefits and improved terms and con- ditions of employment. I agree that Gibson solicited Reber's grievances and complaints. Although Gibson sought to relate this solici- tation to what he described as a negative attitude demon- strated by Reber at a group meeting a week earlier, An- ater's testimony makes no reference to that demonstra- tion as a reason for the 13 June meeting, and I find that Gibson spoke only generally of Reber's attitude without relating it to the group meeting dealing with shift changes. I find that in the context of the reference to Reber's union activities at the opening of the meeting and Gibson's statement that he believed Respondent could solve its problems without a third party, it was reasonable for Reber to infer that the attitude referred to by Gibson was support for the Union. However, I do not find that Gibson in response to Reber promised any benefits that had not already been announced to employ- ees. The General Counsel contends that when Reber ex- pressed a desire for more money and for better commu- nication between management and employees, Gibson promised to implement an incentive pay system in Reber's department and to improve communications. As to the incentive plan for the braiding department, the evidence is in dispute whether Reber had been present at a group meeting when the matter had been discussed previously, but the evidence is uncontradicted that before the 13 June meeting in Gibson's office the matter had been discussed at group meetings and in in- formal discussion with employees. Whether Reber was personally aware of Respondent's plans to extend the in- centive system to the braiding department, Respondent had planned to do so, had instructed Anater to develop a plan for instituting an incentive system in that depart- ment, and had made its intentions known to employees. With respect to communications, the evidence is again uncontradicted that after Gibson became plant manager, he instituted team meetings between members of manage- ment and employees at unfixed, but frequent, intervals for the purpose of discussing business activity, the cli- BERK-TEK, INC mate, needs, and problems individuals were having.6 When Gibson responded to Reber, he referred to the changes that had already occurred, stating that commu- nications had improved and were continuing to improve. Whether solicitation of employee grievances during a union campaign violates the Act, depends on whether the solicitation is accompanied by direct or implied promises to remedy grievances expressed in response to the solicitation.' When an employer merely refers to changes already made or improvements previously an- nounced or promised, there is no violation of the Act. Here in discussing wages Gibson merely referred to plans already generally made known to employees to de- velop and implement an incentive plan for the braiding department similar to the plan in effect in the array de- partment. Gibson made no promise to guarantee that Reber would earn more and made no promise that went beyond what had already been discussed. In discussing communications, Gibson similarly re- ferred to changes that he had already placed in effect. The only question is whether in stating that communica- tions would continue to improve Gibson went beyond a description of the changes that had already occurred. I find that he did not. Gibson gave no specifics about any- thing he planned to introduce to improve communication other than what was already in progress. Rather than a promise of new initiatives, I find that Gibson's statement is reasonably understood to mean over the long term continuing to improve communication between manage- ment and employees. Accordingly, I find that Gibson's solicitation of Reber's grievances was not accompanied by express or implied promises to institute action to remedy them and that Gibson's statements in this regard did not violate the Act. As I have not credited Reber's testimony concerning the alleged second conversation between him and Gibson, I find no violation of the Act based on it. CONCLUSIONS OF LAW 1. Respondent Berk-Tek, Inc. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By creating the impression that the union activity of an employee was being kept under surveillance, Re- spondent engaged in unfair labor practices affecting com- 9 Gibson, Anater, and Schrader all so testified While Reber testified that he attended only one such meeting, their testimony as to occurrence and increasing frequency of team meetings after Gibson became plant manager is unchallenged 7 Cartridge Actuated Devices, 282 NLRB 426 (1986) 303 merce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the National Labor Relations Act. THE REMEDY Having found that the Respondent engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Although the General Counsel has requested that the Order include a visitatorial clause, under the circum- stances of this case I find that a visitatorial clause is not needed . See, e.g., H. Treffinger Repair Services, 281 NLRB 516 ( 1986). On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed" ORDER The Respondent, Berk-Tek, Inc., Reading, Pennsylva- nia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Creating the impression that the union activities of employees are being kept under surveillance. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of 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 Reading, Pennsylvania facility, copies of the attached notice marked "Appendix."9 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive 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. 8 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 9 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 "