Arrow-Hart, Inc.

National Labor Relations Board - Board DecisionsApr 30, 1973

203 N.L.R.B. 403 (N.L.R.B. 1973)

ARROW-HART, INCORPORATED 403 Arrow-Hart, Incorporated and International Union of Electrical , Radio and Machine Workers of America, AFL-CIO-CLC. Cases 1-CA-8296 and 1-RC- 11824 April 30, 1973 DECISION , ORDER , AND CERTIFICATION OF RESULTS BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On January 26, 1973, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this consolidated proceeding. Thereafter, General Coun- sel filed exceptions and a supporting brief, and Charg- ing Party filed a statement adopting the exceptions of the General Counsel. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER ing, Case I-RC-11824. On the basis of a charge filed April 20, 1972, by International Union of Electrical, Radio and Machine Workers of America, AFL-CIO-CLC, herein called the Union, the General Counsel on August 24, 1972, issued a complaint against Arrow-Hart, Incorporated, here- in called the Respondent or the Company, alleging viola- tions of Section 8 (a)(1) of the Act . In the representation case an election was held on February 23, 1972, and a runoff election was held on February 23, 1972, and a runoff elec- tion was held on April 13, 1972, and the Union, which in both instances lost, filed objections to conduct affecting the result of the second election . The Regional Director investi- gated the objections and on July 27, 1972, issued his Report on Objections, in which he directed a hearing on a certain objection. The hearing on the complaint and the objection was held on December 11, 1972, at Lewiston, Maine. Briefs were filed by the General Counsel and the Respondent. Upon the entire record and from my observation of the witnesses , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Arrow-Hart, Incorporated, is a Connecticut corporation having a place of business in Lewiston , Maine , where it is engaged in the manufacture , sale, and distribution of elec- trical control and related products. Annually it receives goods at this location valued in excess of $50 ,000 from points located outside the State of Maine and ships goods to points outside the State valued in excess of $50 ,000. I find that the Company is engaged in commerce within the mean- ing of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots has not been cast for International Union of Electrical, Radio and Machine Workers of America, AFL-CIO-CLC, and that said organization is not the exclusive representative of all the employees in the unit herein involved within the meaning of Section 9(a) of the National Labor Relations Act, as amend- ed. DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge : This is a consolidated proceeding joining for single hearing a com- plaint case , Case 1-CA-8296, and a representation proceed- I1 THE LABOR ORGANIZATION INVOLVED I find that International Union of Electrical, Radio and Machine Workers of America, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES The sole question presented in this case is whether repre- sentatives of the Company unlawfully interfered with the right of its employees freely to engage in self-organizational activities, and thereby violated Section 8(a)(1) of the Act, by unduly restricting the privilege of two employees-Daniel Cote and Albert Doyon-to discuss the Union with their coworkers, presumably to encourage others to join the Union, and by coercively surveilling-that is, spying upon- its employees ' activities in the matter . Four specific instan- ces of illegal conduct are alleged , two before the first elec- tion and two before the second one. Early in November 1971 Norman Blais, a production supervisor, told Cote, the shipping clerk, to cease leaving his work area when he needed packaging supplies, customer addresses, and such things, but to remain in his assigned place of work while the necessary data and materials were brought to him at his request. It is said that in consequence of this "restriction" upon Cote the Respondent `limited his 203 NLRB No. 68 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contact" with the employees and thereby interfered with his right to solicit the others to join the Union. Later the same month, or early in December, the same supervisor also told Doyon, a setup and machine maintenance man working throughout the first floor assembly department , no longer to move from one machine to another at the direct request of this or that assembly worker but to wait for successive work assignments from the supervisor himself , who would personally relay the requests for assistance from the workers to him . This too, according to the complaint , imposed a limitation upon Doyon's previous freedom to move about among the employees, while all of them were at work, and to talk with them about anything and everything, including the union campaign. As to the other two alleged unfair labor practices, the first is a decision, also by Supervisor Norm.an Blais , that Doyon should take his 10-minute morning coffeebreak from 8:30 to 8:40 instead of from 8:45 to 8:55, as he had been doing. Doyon testified that whereas under the earlier coffee sched- ule he used to sit with 15 other employees or so, now he had but 4 to keep him company, 3 newly hired persons who were ineligible to vote in the coming runoff election , and I who was opposed to having a union in the company anyway. Here the Respondent is accused of interfering with Doyon's right to engage in union activity on his own time , albeit on company property, whereas in the first two cases the charge is that the Company interfered with the employees' right to solicit others to join while everybody-solicitors and solici- tees-were on the clock and supposedly at work. As to the last charge of improper conduct-called illegal in the complaint and interference with the election in the objection-it is that "since ... March 27, 1972, the Re- spondent, through [four supervisors] . . . engaged in sur- veillance among the employees ...... If the complaint phrasing be taken at face value the Company continued to do this to the day the complaint issued on August 24. The testimony offered in support only partially clarifies the mat- ter. It seems to say the act of surveillance occurred only once, on the morning of the election on April 13, 1972, when both parties, Company and Union, put their best foot for- ward towards ingratiating themselves in the minds of the prospective voters . The Union's witnesses also seemed to be saying, with encouragement by the General Counsel, that the interference , by prohibited spying , was a continuing thing for a week before the election, starting the Friday before the balloting, which came on a Thursday. Clearly there is no indication of any activity along these lines, legal or illegal, after the election was over and lost by the Union. The Respondent first heard of the Union when it received a letter dated November 2 advising it that six employees, including Cote and Doyon by name , were members of its organizing committee . The six were called to a meeting with certain supervisors and told, according to Cote: ". . . that we wouldn't be able to campaign on company time. The only time we could campaign was during our breaks, before work, outside of the building and whenever. And that if we were caught campaigning during company time we would be treated severally." According to Doyon: ". . . that we were an organizing committee to organize the union in the shop and that he knew about the laws and if we were caught organizing on company time we would be dealt with se- verely." At the hearing the General Counsel expressly con- ceded this was a proper no -solicitation rule for management to promulgate , and of course there is no charge it was in any way illegal. It follows the Respondent had no less a right to see to it that the rule was not violated. The new work orders issued to Cote and Doyon resulted in their having less occasion , while at work, to socialize with other employees . If the word "interfere" is at all relevant to these situations , it means only interference with quicker shipment by Cote and faster service on the assembly ma- chines by Doyon; some of their paid worktime was wasted on occasion . I shall therefore dismiss these two allegations of the complaint. The Company defended Blais' actions on the ground that a management consulting firm survey of the expanding op- erations required that the roving employees be held to one location for a while and that Doyon had complained of too burdensome a life with employees crowding him with their requests for assistance . The General Counsel disputes the first assertion and Doyon , as a witness , denied having com- plained to the supervisor. On the total record I credit the defense witnesses , but these are inconsequential matters. The principal contention made in support of the complaint is that the Respondent picked on these two men because of their union activities . The argument is grounded upon very poor reasoning . Announcement of a lawful no-solicitation rule means it can be effectively enforced ; it means the em- ployees have no right, protected by statute, to violate the rule while at work. But if what the Company did to Cote and Doyon was in no sense an encroachment upon their protect- ed rights , the fact it chose them for treatment-even as- suming they were the sole outstanding union protagonists-could never change the nature and character of the treatment the Respondent accorded them. It may well be management felt it could not rely on these two people to comply with the rule and wanted to remove temptation from their paths. Cote was discharged only a week after he was told to stick to his knitting and Doyon quit the job on the very day the Union lost the second election . Could it be Cote could not hold still in his union fervor and that Doyon felt with him it had to be a union or no work at all? The complaint calls both of them "ardent union supporters." The fallacy in reasoning continues in the General Counsel's brief, which says the evidence shows the two were outstanding unioneers . It shows nothing of the kind. When Blais spoke to Cote on November 8, the Company had been advised by the Union, in writing, of 12 named employees constituting the organizing committee and, by the time he changed Doyon's method of assignment, it had been put on notice by the Union-assumably to lay the foundation for any later claims to pinpointed discrimination-that there were 29 employees on the organizing committee , each again named individually . There is no evidence at all indicating the Company had reason to believe Cote or Doyon was any different from all of the others in their prounion enthusiasm. It should be unnecessary to explain why, as a matter of logic, the absence of any evidence as to the activities of 27 persons does not suffice to prove affirmatively that they were any less ardent than the 2. On April 7 , a week before the second election , there was a change in the schedule for morning and afternoon coffee- ARROW-HART, INCORPORATED 405 break periods and for the lunch hour; the change was occa- sioned by the continuing increase in personnel, progressing from about 50 or 60 persons in 1971 to about 100 in 1972. The lunchroom, also used as a coffeebreak area, was be- coming too crowded. Instead of a single lunch period for all, two such periods were established and the entire group di- vided. The 10-minute coffeebreaks for all employees were rearranged. In the downstairs assembly production area alone, where 50 or 60 assembly people worked, about 20 persons had their coffee period changed; among them was Doyon. From among all the employees so affected, the complaint picks Doyon and says that, because he ended up with only four others having coffee with him and because he was prounion, it follows that in his case there was an ulterior motive in making the change-i.e., to curb his talk in favor of the Union. The record does not warrant the inference . There is no evidence of union animus , either against the employees as a whole or against Cote and Doy- on individually.' If an inference of illegal motive arises, it must arise from the fact that Doyon's coffeebreak was changed and from that one fact alone. This is a circuitous argument and must fall. Again, he was only I of 29 persons said to have favored the Union; on this record, so far as the Company can be charged with a knowledge, it knew him as one among many and nothing else. Moreover, there is plau- sible explanation of his change, supported by evidence out of his own mouth. There were two setup maintenance men in the department at the time , and Supervisor Blais testified he had to have one on duty at all times and therefore changed the hour of one. Doyon admitted he was training the other man, but he belittled Blais' explanation on the ground that the second man was not competent to take care of machines in his absence. The new man could hardly have been incompetent, for the Respondent was able to do with- out Doyon's services only a week later when he quit the Company. I shall recommend dismissal of this complaint allegation also. During the last week before the election both sides elec- tioneered enthusiastically. Everyday, from Friday to the following Thursday April 13, union agents distributed leaf- lets at the door of the plant as the employees arrived, from about 6 a.m. to 7 a.m. On three of these mornings, but not on election day itself, one or two supervisors stood 15 feet inside the entrance door-toward the end of a short corri- dor-and handed out countervailing literature to the em- ployees to influence the election, "to create goodwill among the employees ," as company witnesses admitted. Bruce Beeler, the plant manager, was also there almost everyday, most of the time sitting at a desk at the end of the corridor and to the right, where he could not be seen from outside the glass door through which the employees entered the building. He normally does not do this, for he usually ar- rives at the 7 a.m. work starting time; he said his purpose on this special occasion was to "greet" the people. On the day of the election before 7 o'clock, Frederick Walters, the personnel administrator, arrived contrary to his custom. He 1 In keeping with the tenor of the prosecution case as a whole , the General Counsel had Doyon say at the hearing that he was once reminded of the no-solicitation rule and told not to campaign on company time In the Gov- ernment brief this is called proof of union animus explained at the hearing this happens on occasion when his wife uses the family car, but the story is thin in view of his further statement of what he did that morning . He said he only came 5 or 10 minutes before 7 and spent almost 5 minutes at the door, holding it open for successive employ- ees to enter-"to be a gentleman ," "it makes good employee relations ." And throughout the 7-day period there was, placed a foot or two inside the door, what seems, from a photograph in evidence , to be a new and perfectly clean large garbage pail , of the kind ordinarily found in anyone's backyard . On it was attached a large and clear sign reading: "IUE TRASH." The charge is spying , devious and clandestine ferreting out of the ardent unioneers as against the lukewarm . Arthur Lebel and Charles Klaris , IUE organizers, told of what they saw from the sidewalk , looking through the glass door into the darkened corridor inside . They testified the two supervi- sors, Norman and his brother Gerald Blais, were not only standing inside the door at the inner end of the hall, but were also "grouped" there , where , according to the General Counsel , they were "visibly noticeable ." They added the company people not only saw what was going on outside but also came to the door to "look" and see . Lebel said Walters stood at the door acting as host for about 40 min- utes ; Klans made it only 20 to 25 minutes; Walters reduced it to 5 minutes . The truth is somewhere in the riddle of all this. But that the personnel administrator 's purpose was to influence the employees in favor of the Company in the election which started at 10 a .m. that same morning cannot be doubted . Apart from an implied message that can be said to have arisen from the suggestively placed garbage pail, there is no evidence that the company representatives said anything untoward to any of the employees at anytime. They did say "good morning" and "how do you do," but that is all . I do not think Lebel's further testimony that he saw Walter's "lips move" can support any further finding. And Dianne Cote, the only employee who testified about these events , said that when Walters held the door open for her he said nothing and pointed to nothing . Lebel also said that when Walters held the door open , with his right hand on the doorknob , he kind of waived his left arm about, not actually pointing with his finger , but in a vague and subtle fashion making the employees aware of the pail . Walters insisted he did nothing of the sort . He did not have to, for the invitation could not have been clearer in the physical circumstances. It is a common practice for these supervisors to stop at the desk at the end of this hall every morning when they arrive to check on any message received by the janitor about employees who call to say they will not come to work. They do it again just before 7 a.m. to verify anew . This is also the place where in ordinary circumstances members of the clan-all management agents-will at least for the moment greet one another in the morning . There is also some ambiguity in the union witnesses ' testimony as to who and how many of the supervisors were standing or grouped there on any given morning . On 3 of the 6 days before the elec- tion , the two Blais brothers did distribute company litera- ture in the hall while the IUE men were doing the same outside . They did not do so on Thursday. In handing out the literature they had to walk back and forth from the rear 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the front door, because some of the employees punched a clock in the back and went to work on the first floor, and others turned right in the corridor immediately inside the entrance door to punch a separate clock and go right up- stairs to the second floor . If, as they approached the front door to reach some of the employees , the supervisors also looked out the door-after all, it is made of glass-and saw their counterparts giving out their election material, it was something that could hardly be avoided in any event. It would be childish to call this spying , for if there is one thing everybody knew all the time it is that the IUE was distribut- ing outside and the Company inside. The play is over ; the Union lost two elections, winning 37 out of 91 votes in the first and only 25 out of 87 in the second . Now the Board is asked to make a retroactive ap- praisal of choreography . Empowered by congressional fiat as arbiter of the correct arrangement and setting of the competing actors on the preelection stage, as well as of the words and props dictated by the authors , it must explain its opinion as to: (1) the numerical balance between perform- ing groups-five management representatives congregating 15 feet inside the corridor against only three union organiz- ers gathered outside the gate ; (2) the proper distancing, at certain moments , of the general manager and two fore- men-too far up stage near the entrance portal , perhaps, or sufficently close to the supervisory offices and clothing racks at the darkened back curtain ; (3) the artistic nuance, and the consequent message , suggested in Walters' gracious gestures in cavalierly holding the door for the arriving cho- rus of employees ; (4) the movement of his lips as viewed from the sidewalk-a sort of orchestra pit or up -front seat, as it were ; and (5) the indelicate propriety of equating a constitutional right of free speech-" In my opinion the union is trash"-with disparagement of campaign literature as proper contents for the garbage pail. One is reminded of recent observations by Mr . Miller , the Chairman of the Board , in Bill 's Institutional Commissary Corporation, 200 NLRB No . 154: ". . . belabored examination of minutiae . ... to purist a view of what parties may be permitted to say in election campaigns . . . microscopic examination of alleged campaign impurities...." An employer has the right to distribute election campaign material of its own . It has a right to express its opinion of union literature , even calling it trash-in writing as well as orally . And it has a right to do these things at the very moment the union is trying to persuade the employees to a contrary view-certainly anywhere on its premises, in the inner reaches of the plant or at the front door , even if the door is made of looking-through glass . What the General Counsel's argument really amounts to here is that the Re- spondent may not do what it legally is permitted to do. With apologies for having perhaps "belabored the minutiae," I shall dismiss this allegation and also , with it the whole com- plaint. RECOMMENDED ORDER Upon the entire record , it is hereby recommended that the complaint be, and it is hereby is , dismissed. Case 1-RC-11824 I hereby recommend that the objections to the election in Case 1-RC-11824 be overruled.