Westek Fabricating, Inc

WESTEK FABRICATING Westek Fabricating, Inc and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) Cases 4-CA-16672 and 4-RC-16561 April 28, 1989 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On October 18, 1988 , Administrative Law Judge David S Davidson issued the attached decision The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief to the Respondent's exceptions, and the Union filed a brief in support of the judge's decision and in op- position 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, I and conclusions2 and to adopt the recommended Order ORDER That National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Westek Fab ricating, Inc, Philadelphia, Pennsylvania, its offi- i The Respondent has excepted to some of the judge s credibility find rags 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 In adopting the judge s decision we note that at sec II B par 7 based on employee Washington s credited testimony the judge found that it was Kuehnle not Washington who raised the possibility of an associa tion as an alternative to the Union 2 The Respondent contends that the single violation of Sec 8(a)(1) here was de muiimis and does not warrant setting aside the election It is well settled that conduct violative of Sec 8(a)(1) interferes with an elec tion unless the violations are such that it is virtually impossible to con elude that they could have affected the results of the election Enola Super Thrift 233 NLRB 409 (1977) The 8(a)(1) violation here involved a statement by a high level official of the Respondent Vice President Wes Kuehnle that was heard by a number of unit employees Kuehnle en couraged the employees to abandon their union activities and form their own association to bargain with the Respondent a matter that on its face was directed at affecting the results of the election i e at encourag mg the employees to vote no on the petitioner union that the Respondent opposed and to form their own association which the Respondent would not oppose but would bargain with By the very nature of this violation we are unable to find that it is virtually impossible to conclude that [it] could have affected the results of the election Moreover we note that an employee association such as Kuehnle encouraged subsequently was formed and indeed received a majority of the votes cast in the subject election This latter development although necessary neither to finding the violation nor to applying the above described test for determining in terference with an election speaks for itself 879 cers, agents, successors, and assigns, shall take the action set forth in the Order [Direction of Second Election omitted from pub lication ] Susan Stahl Esq, for the General Counsel Howard I Hatoff and Robert Haas Esqs (Blank Rome Comisky & McCauley), of Philadelphia, Pennsylvania, for the Respondent Stephen Richman and Regina Hertzig Esqs (Markowitz & Richman), of Philadelphia, Pennsylvania, for the Charging Party Charles L Mitchell Esq (Robert P Snyder & Associates), of Philadelphia, Pennsylvania, for the Intervenor DECISION STATEMENT OF THE CASE DAVID S DAVIDSON Administrative Law Judge These consolidated cases were tried at Philadelphia, Pennsylvania, on March 15 1988 In Case 4-CA-16672 International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (Union) filed the charge which was twice amended, on June 26 1987 The complaint issued on September 30 1987, with an order consolidating the representation case with it for purposes of hearing and decision A further consolidated complaint issued on October 27, 1987 1 The issues raised by the complaint are whether Re spondent created an impression of surveillance of union activities, interrogated an employee about union activi ties, directly and indirectly promised employees more benefits without a union, solicited employees to form a committee, indirectly threatened reprisals for attending union meetings, asked employees to solicit others to revoke union authorization cards and threatened to close its facility if the employees selected a union to represent them On May 14 1987, the Union filed the petition in the representation case 2 On July 10, an election was held which resulted in 33 votes for the Petitioner Union 43 votes for the Intervenor, Westek Employees Association (Association) 1 vote against any labor organization 2 void ballots and 12 challenged ballots Following the election the Union filed timely objections to conduct of fecting the results of the election On September 25, the Acting Regional Director issued his Supplemental Deci sion on Objections to Election and Challenged Ballots in which he sustained the challenges to four ballots and found that the remaining challenges were no longer de terminative of the election He found further that the ob jections raised the same issues as the complaint and therefore consolidated the cases On the entire record including my observation of the demeanor of the witnesses and after consideration of the briefs filed by the parties I make the following i At that time these cases were consolidated with Case 4-CA-16768 based on a charge filed by Linda Thinna Before the hearing opened the parties entered into an informal settlement of Case 4-CA-16768 and that case was severed from the two remaining cases 9 All dates are in 1987 unless otherwise indicated 293 NLRB No 107 880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I JURISDICTION The Respondent, a Pennsylvania corporation, fabri cates metal parts for automobiles at its Philadelphia plant It receives materials annually valued at more than $50,000 directly from places outside of Pennsylvania I find that Respondent is an employer engaged in com merce within the meaning of Section 2(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 II THE ALLEGED UNFAIR LABOR PRACTICES A Background In response to a telephone call from an employee of Respondent, the Union began an organizing campaign among its employees in late March 1987 During the last week in March Union Representative Al Heffelfinger and two other organizers distributed union literature at the employee entrance to the plant Additional distribu tions were made periodically in April, May June and July During the first week of April, the Union held a meeting for employees near the plant As indicated above, the Union filed a representation petition on May 14 and the election was held on July 10 The allegations of the complaint are based on state ments attributed to Respondents vice president, Wes Kuehnle, and its assistant production foreman, James Motley The General Counsels case depends on the tes timony of a single witness, Melvin Washington, corrobo rated only in part by the testimony of Linda Thinna and contradicted by the Respondents witnesses Resolution of the credibility issues will substantially determine the meets of the complaint B The Conduct Attributed to Wes Kuehnle On May 21 or 22 Washington twice met with Kuehnle in his office At the first meeting in the morning no one else was present According to Washington, the entire conversation, which he initiated related to the union organizing campaign He testified that in the course of it Kuehnle asked Washington why the em ployees needed a union asked Washington if he had signed a union authorization card, told him that the em ployees would be better off with an association than with a union, promised that he would give employees a day s vacation after a year of service and would talk to them about other benefits if they chose an association told Washington that if he decided to hire a guard Washing ton could be the guard, asked Washington to go out on the floor to poll the employees whether they wanted the Union or an association to represent them, and asked him to return that afternoon to tell him the results of the poll Kuehnle denied everything that Washington attributed to him He testified that the only mention of the Union came when Washington told him that a lot of employees wanted to get out of the authorization cards they had signed According to Kuehnle, he responded by suggest ing that perhaps they could form some kind of a commit tee get a petition signed, and send it to the NLRB or the Union to rescind their authorization cards Although no one else was present at the morning meeting, others were present at the afternoon meeting that Washington testified was basically the same as the first Yet none of the other witnesses at that meeting including Thinna who testified for the General Counsel corroborated Washington except with respect to the mention of an association at that meeting To the con trary, those witnesses, including Thinna, testified that Kuehnle said that he could not promise them anything because there was going to be an election There are other weaknesses in his testimony as well Washington testified that at the end of the morning meeting he left Kuehnle s office went to visit a doctor returned to the plant polled 90 employees and returned to Kuehnle s office with 3 other employees Washington s testimony as to polling 90 employees is again uncorroborated Thinna testified only that Washington spoke to some employees about whether they preferred an association or a union before the afternoon meeting, and no other employees testified about the alleged poll In addition, the likelihood that Washington could have done all he claims to have done in the time between the two meetings is slight The absence of corroboration when corroboration was possible and the contradiction of Washington s testimony by Thinna as well as others lead me to conclude that his testimony about both the morning and afternoon meet ings must be largely discredited Specifically, I do not credit Washington that Kuehnle told him that he knew employees had gone to union meetings, asked him why the employees needed a union asked him if he had signed a union authorization card solicited grievances from him, solicited him to poll other employees prom ised specified increased benefits if the employees chose an association rather than a union, or promised Washing ton a guard s job in return for his withdrawal of support from the Union These credibility findings dispose of the allegations in paragraphs 5 and 6(a)-(d) of the complaint Paragraph 6(f) also fails for lack of any supporting evidence The allegations set forth in paragraph 6(e), however, have more substance Paragraph 6(e) alleges that Kuehnle solicited the employees to form a Committee to deal with Respondent concerning terms and condi tions of employment According to Kuehnle, the only mention of a committee came in response to Washing ton's statement in the morning that a lot of employees would like to get out of the Union He testified that at that time he suggested that perhaps the employees could form a committee and get a petition signed to rescind their authorization cards Kuehnle later characterized his suggestion as a response to a question Kuehnle denied that an association was mentioned at either meeting However, Rudd, who clearly was not hostile to Re spondent's interests in this proceeding, testified that in the afternoon questions came up about an association and union authorization cards and that she said that Kuehnle could not talk to employees about it because it was ille gal Thus, her testimony contradicts Kuehnle s claim that an association was not mentioned Furthermore both WESTEK FABRICATING Washington and Kuehnle testified that in the morning they discussed a second meeting to take place that after noon Although I have not credited Washington that Kuehnle asked him to poll all employees about their preferences, Kuehnle s version of their discussion of a committee or association is no more satisfactory In his version there is no satisfactory explanation of the occa sion for a second meeting, and there is no explanation for his statements at the beginning of the second meeting about the legality of the selection of the committee ac companying Washington It is evident that more was said at the first meeting about a committee than Kuehnle re vealed in his testimony Although I do not credit Wash ington that Kuehnle promised specific benefits for em ployees if they formed an association, I credit him that the possibility of an association as an alternative to the Union was raised by Kuehnle at the morning meeting and that the second meeting was arranged as a sequel to that discussion I also find Thinna s testimony as to what was said about the Association at the afternoon meeting most be lievable Rudd s testimony establishes that the Associa tion was mentioned, but her testimony that she cut off discussion of an association by saying that it was illegal for Kuehnle to talk about it is difficult to believe There is no indication that Rudd, an employee with no experi ence with union organization, had any basis for her claimed assertion Based on Thinna s testimony, I find that at the afternoon meeting Washington told Kuehnle that he had to go out and tell the people something to which Kuehnle replied that he was not supposed to talk to them because it was illegal and that he could not promise them anything because there was going to be an election However Kuehnle then mentioned the Associa tion representing employees at Spalding which shared the premises, and told the employees it would be better for them to have an association than a union because the union would take their money Kuehnle added that an association would be formed of people from each depart ment and that they would have to sit down and negoti ate with him after it was all over with, but until then he could do nothing Although I have not credited Washington s testimony that Kuehnle directly promised benefits to employees if they formed an association, the very suggestion that it be formed, the discussion of its structure, and the descrip tion of how negotiations would proceed in the context of Washington s request for something to tell the employees implied that the employees would better achieve their objectives with an association than the Union I find that by his suggestions, Kuehnle encouraged the employees to abandon their activities in support of the Union and to form their own association to bargain with Respondent in violation of Section 8(a)(1) of the Act Wheelco Co, 260 NLRB 867, 880 (1982), St Francis Hospital 249 NLRB 180 188 (1980), Valley Iron & Steel Co, 224 NLRB 866, 875 (1976) The remaining allegation in paragraph 6(g) of the com plaint is that Respondent asked employees to solicit other employees to revoke their union authorization cards The only evidence presented to support this allegation was 881 Thinna s testimony that after Kuehnle spoke about an as sociation he said that his hands were tied until he got the green cards employees had signed for the Union From her testimony and Rudd s it appears that the authoriza tion cards were mentioned at the afternoon meeting but only Kuehnle himself testified to any discussion of em ployee action to rescind the green cards, and he attrib uted that discussion to a question raised by Washington at the morning meeting Although I have doubts, as indi cated above, as to Kuehnle s version of the discussion of a committee, I find the affirmative evidence insufficient to conclude that Kuehnle asked employees to solicit others to rescind their union authorization cards at either meeting I find that the General Counsel has not sus tained this allegation of the complaint C The Alleged Threats Attributed to James Motley Washington testified initially that several times be tween June 1 and 10, while he was at his work station talking about the Union with other employees, Assistant Production Foreman James Motley heard him and told him, I shouldn t be saying stuff like that because it s not good for a small business like that, that they d close down ' He later added that he had other conversations with Motley on the bus or stuff like that" when Motley told him that unions wasn't good for small businesses like that and Kuehnle would close the place down adding that Washington should know that because Kuehnle was supposed to be building another plant in Doyletown On cross examination, Washington described seven similar conversations over a period starting in mid May until June 10 the day before he was discharged On three of these occasions Washington testified that a number of other employees were present In an affidavit given by Washington during the investi gation of the case he stated that during the week of June 1 Motley told him about four times that it was no good and that if they tried to get a union in, Kuehnle would close down In it Washington also stated that he was not sure if anyone else heard Motley say this When asked whether the incidents were spread out as he testified or all in 1 week as stated in his affidavit Washington testi feed that he would agree with whatever was in the affi davit, adding I really can t recall, you know When asked if the affidavit was true and his testimony was not Washington replied Yes it s all the same thing I said the same thing to you He testified further that there were just four specific times that he remembered when he gave his affidavit but that he was now positive there were like seven times " On redirect, he testified that Motley's statements to him occured over an extended period of time from the beginning or middle of May until June 10, the day before he was terminated Motley testified that he had no conversations with Kuehnle or Washington about the plant closing down and that when he met Washington on the street and spoke with him they spoke only about Washington s job performance or nonwork related things Motley denied telling any employee that the plant would close or talk mg to Washington about another facility 882 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD To corroborate Washington Union Organizer Al Hef felfinger testified that every time he handed out literature on the sidewalk outside the main entrance to plant Motley came out and stood next to him or one of the other organizers who was helping him If employees took literature, Motley would take it right out of their hands, crumple it up, and tell them, You don t need this shit Unions are only here to close the plant Wes don t need a union He added that some times Motley would just tear leaflets up and throw them around the sidewalk and that after the organizers left, the street looked like the leaflets had been dropped out of an air plane Motley denied tearing literature out of employees hands, throwing it to the ground, or telling Heffelfinger that if the Union came in, they would close the plant I do not credit Washington as to the threats he attnb uted to Motley Despite the fact that Washington testi feed that a number of other employees were present on some occasions when Motley made the threats no other employee was called to corroborate Washington about these threats The variance between Washington s testi mony and his affidavit as to the number and timing of threats weakens his testimony, and the increased detail in his testimony in contrast to his affidavit runs contrary to the normal expectation that memories fade rather than improve with time Heffelfinger s uncorroborated rebut tal testimony proves too much, for if credited it would establish additional violations of the Act never charged See Southland Knitwear, 260 NLRB 642, 650 (1982), Restaurant Hortkawa,' 260 NLRB 197 209 (1982) In a case in which the Union filed charges twice amended them, and also filed objections to the election, it would be surprising, at the very least, if the conduct which Hef felfinger attributed to Motley occurred and was never mentioned in the charges or objections Absent corrobo ration I do not credit Washington or Heffelfinger s testi mony relating to Motley I find that the General Counsel has failed to establish that Motley threatened plant closure and thereby violat ed Section 8(a)(1) of the Act In sum I have found that Respondent violated the Act as alleged in paragraph 6(e) of the complaint and that the General Counsel has failed to establish the remaining al legations of the complaint III THE OBJECTIONS The Union s objections to the election raise the same issues as the allegations of the complaint and no inde pendent evidence was offered in support of the objec tions The findings above that Kuehnle s conduct encour aged the formation for an association and violated Sec tion 8(a)(1) of the Act support a finding that the Union s Objection 4 has merit 3 Accordingly, I shall recommend that Objection 4 be sustained and the remaining objec tions be overruled 3 During the course of investigat on the Union withdrew the portion of that objection which relates to improperly permitting employees to solicit authorization cards on behalf of a rival labor organization THE REMEDY Having found that Respondent engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act I further recom mend that the election held on July 10, 1987, be set aside and that Case 4-RC-16561 be remanded to the Regional Director for Region 4 for the purpose of conducting a new election at such time as he deems that circumstances permit a free choice of bargaining representative CONCLUSIONS OF LAW 1 Westek Fabricating, Inc is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) is a labor organization within the meaning of Section 2(5) of the Act 3 By encouraging or suggesting to employees that they abandon their union activities and form their own association to bargain with Respondent, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and 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 ed4 ORDER The Respondent, Westek Fabricating, Inc, Philadel phia, Pennsylvania, its officers, agents, successors and assigns, shall 1 Cease and desist from (a) Encouraging or suggesting to employees that they abandon their union activity and form their own associa tion to bargain with Respondent (b) 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 which is nee essary to effectuate the policies of the Act (a) Post at its Philadelphia Pennsylvania place of busi ness copies of the attached notice marked Appendix 5 Copies of the notice on forms provided by the Regional Director for Region 4, after being signed by the Re spondent s authorized representative, shall be posted by the Respondent immediately 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 Respond 4 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 5 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 WESTEK FABRICATING ent to ensure that the notices are not altered , defaced, or covered by any other material (b) Notify the Regional Director in wasting 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 883 WE WILL NOT encourage or suggest to our employees that they abandon their union activity and form their own association to bargain with us 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 WESTEK FABRICATING, INC 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