Chesterfield Chrome Co.

National Labor Relations Board - Board DecisionsApr 19, 1973

203 N.L.R.B. 36 (N.L.R.B. 1973)

36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chesterfield Chrome Co . and International Union, Al- lied Industrial Workers of America , AFL-CIO. Cases 7-CA-9645 and 7-RC-11214 April 19, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On December 13, 1972, Administrative Law Judge Lloyd Buchanan issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Counsel filed an answering brief. 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,' con- clusions, and recommendations 2 of the Administra- tive Law Judge and to adopt his recommended Order. The Administrative Law Judge found that Respondent's interrogations of active employees Ru- volvo, Thomas, and Paul, together with interrogation of laid-off employee Townsend, violated Section 8(a)(1) of the Act. In Townsend's case, the Adminis- trative Law Judge appears to have premised his con- clusion on a finding that at the time of the interrogations, which occurred during her layoff, Townsend had a reasonable expectancy of reemploy- ment. The Administrative Law Judge's finding was based on evidence that Townsend was not told that her layoff would be permanent, she attended union meetings during her layoff, she did not work else- where and collected unemployment compensation, and, upon her subsequent reemployment, she retained her accrued seniority. Respondent excepts, contend- ing that the evidence instead shows that Townsend, at the time, was without a reasonable expectancy of reemployment, relying on the decision in Thomas En- 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board 's established policy not to overrule an Administrative Law Judge 's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544, enfd . 188 F 2d 362 (C A. 3). We have carefully examined the record and find no basis for reversing his findings 2 We do not adopt or pass upon the Administrative Law Judge's rec- ommendations concerning the Respondent 's objection to conduct affecting the result of the consent election in Case 7-RC-11,214 in which the parties agreed that such questions be left to final determination by the Regional Director We adopt only that portion of his recommended Order severing that case and transferring it to the Regional Director gine Corp., 196 NLRB 706, where the Board held that certain laid-off employees were ineligible to vote in an election . We believe this issue worthy of comment. Assuming, without deciding that Townsend, as Re- spondent contends, does not meet our tests for eligi- bility to vote in an election, it does not follow that an employer may, with impunity, utilize such a laid-off employee as a target for interrogation or other con- duct designed as part of a pattern of unlawful interfer- ence with the organizational rights of its work force. Here, Townsend had been recently employed by the Employer and had been offered a different position with the Employer at the time of her layoff. She re- mained in close contact with former fellow employees as well as representatives of the Employer and partici- pated in union activities. Her effective and continued contact with Respondent's other employees is appar- ent. Thus, both to the extent that any improper con- duct threatened to interfere with her potential reemployment, and to the extent that her continuing contact with active employees made it likely that acts of unlawful interference toward her would be well known to the active employees, we conclude that the factual and legal effect of Respondent's conduct is as much within the prohibited area of 8(a)(1) as it would be if directed to one in active employment status. Were we to rule otherwise, we might be opening the door to coercive conduct with respect to laid-off em- ployees and thus invite subversion of the policies of the Act. This potential subversion, however, lies in quite a different area of exploration from the question of whether the laid-off employee has a sufficiently direct and immediate interest in the outcome of an election to be permitted to vote therein. We are, there- fore, not governed in our determination here by either the Administrative Law Judge's determination that Townsend had a reasonable expectancy of reemploy- ment , nor by Respondent's contention that the pre- cedent of Thomas Engine would indicate that she had no such expectancy of reemployment. What we do hold is that Respondent's inquiry into whether she had signed an authorization card, plus Respondent's further inquiry as to whether there had yet been a union meeting, both in a context making apparent Respondent's opposition to unions, was a part of a pattern of unlawful interrogation and inter- ference which further exhibited itself in like questions addressed to active employees Ruvolo, Thomas, and Paul. As Respondent's foreman, Wrobel, conceded at the hearing in the case of employee Paul, this ques- tioning was designed to put the employees "on the spot." We therefore have no hesitancy in accepting the Administrative Law Judge's findings that each such instance of interrogation, including the instances in- 203 NLRB No. 15 CHESTERFIELD CHROME CO. 37 volving laid-off employee Townsend, forms a proper basis for a finding of unlawful interference with em- ployee rights and the ineluctable conclusion that Re- spondent has violated Section 8(a)(1) of the Act. cordingly . I also find and conclude that , as admitted, the Union is a labor organization within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES AND THE OBJECTIONS TO ELECTION ORDER 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 Chesterfield Chrome Co., Mt. Clemens, Michigan, its officers, agents, successors , and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order. DECISION LOYD BUCHANAN , Administrative Law Judge : The com- plaint herein (issued August 10, 1972; charge filed June 28, 1972) alleges that the Company has violated Section 8(a)(1) of the National Labor Relations Act, as amended , 73 Stat. 519, by coercively interrogating employees concerning their own and other employees' union activities and sympathies. The answer denies the allegations of unfair labor practice. Consolidated with the trial of the above issues was a hearing with respect to certain objections to election in Case 7- RC-11214, for ruling and decision by a Trial Examiner (now Administrative Law Judge), the representation case thereafter to be severed and transferred to the Regional Director for further processing . The petition in the repre- sentation proceeding was filed on May 18, 1972; a consent election was held on June 15, the tally being 29 for the Union and 31 against , with 2 ballots challenged ; and objec- tions were filed by the Union on June 20. At the trial it was early noted that the proof in support of the objections to election would not go beyond the allega- tions in the complaint , which might "possibly" include some acts prior to the filing of the petition. The case was tried before me at Detroit, Michigan, on September 7 and 8, 1972 . The General Counsel and counsel for the Union were heard in brief oral argument at the conclusion of the trial. Pursuant to permission granted to all parties, a brief has been filed by the Company. Upon the entire record in the case and from my observa- tion of the witnesses , I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) AND CONCLUSIONS OF LAW 1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED The facts concerning the Company's status as a Michigan corporation , the nature and extent of its business in the anodizing and painting of automotive parts and rendering related services , and its engagement in commerce within the meaning of the Act are admitted ; I find and conclude ac- The problems to be resolved in these consolidated cases center almost wholly on the issue of credibility. The testimo- ny provides objective basis for resolution of that issue in favor of the General Counsel and the Union. Ruvolo, who quit the Company's employ on June 2, 1972, testified that about a month (he was manifestly unable to pinpoint the date or attendant circumstances) before he left, Plant Manager Wrobel asked him whether he knew anything about the Union trying to get into the shop; that he replied in the affirmative and, when Wrobel inquired how long, he said that he had known for 3 or 4 weeks. Ruvolo did not stretch his claim to include further interfer- ence although he was tested to do so on cross-examination. The Union's efforts to organize this plant apparently be- gan about February. Wrobel testified that he became aware of the Union's efforts on May 15, when he received a reg- istered letter from the Union requesting that the Company bargain with it. About a week later he received a registered letter from the Board requesting a meeting in connection with the representation issue; and on May 23 he met with his attorneys and was instructed to make sure that his super- visors did not speak to the employees concerning union activities . He testified that he immediately transmitted these instructions to his shift supervisor and his foremen , but did not to Goodnuff, the Company's production control super- visor, whose status will be considered below. Wrobel denied that he interrogated Ruvolo, or Paul or Thomas, two other employees who as we shall see testified to interrogation by him; and he made a blanket denial of interrogation of any production employees with respect to their union sympa- thies , activities , or desires, or concerning any union organi- zational attempts. Considering what he testified to and what he would not say, Ruvolo impressed me as a reliable witness and I find and conclude that , in the context of the pending campaign and the other events noted , Wrobel, in violation of Section 8(a)(1), interrogated him as alleged . On the other hand, I find that the testimony concerning this interrogation does not support the corresponding objection to election inas- much as it appears from Ruvolo's testimony that the inci- dent occurred well before the May 18 petition date. I have not overlooked the possibility that, with Wrobel' s insistence that he first learned of union activities on the 15th, his interrogation of Ruvolo may have occurred after the peti- tion was filed . But that possibility does not warrant a find- ing to sustain the objection. Townsend was employed by the Company in July 1970 and quit in January 1971; she returned to work in April 1971 and was laid off for lack of work on February 11, 1972, when she refused to accept a lower paying job; she was again reinstated when she filed a new application for any kind of work and accepted a lesser payingjob on August 18, shortly before this trial. Having been laid off in February, Townsend remained with a reasonable expectancy of reem- ployment, consistent with which she attended union meet- 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rags in May and June . Suggestive if not completely indicative of the continuing impression of her status, and more persuasive than the Company 's claim that she was not an employee while on layoff and its denial of a reasonable reemployment expectancy , is the fact that on her recall she continued with her accrued seniority . At the time of her layoff Wrobel told her that he did not know how long the layoff would last; he did not know how long her department would be on a one -shift basis. She was not told either that she would or would not be recalled . Townsend apparently did not work elsewhere during the interim ; she was receiv- ing unemployment compensation . While as noted the testi- mony indicates that Townsend continued as an employee, I make no formal finding in this connection, since, although fully litigated in connection with the issues before us, the challenge to her ballot has not been referred to me ; i.e., no formal finding beyond the requirements of the issues here. The alleged interference with Townsend was committed by Goodnuff, admittedly an agent of the Company and a supervisor within the meaning of the Act , but whose status was strenuously litigated . The evidence leaves little doubt that Goodnuff was a supervisor of stature and no basis for the Company 's claim that it is not responsible for what he said . Indeed the testimony offered by the Company with respect to his status reflects on the credibility of both Good- nuff and Wrobel , and itself points to resolutions of the credibility issue with respect to the allegations of interfer- ence with employees ' protected activities and with the elec- tion. Wrobel testified that Goodnuff directs three employees who also work under the shift foreman; he has no right to hire or fire despite the admission in the answer . Wrobel told us also that , when instructing his foremen , he did not tell Goodnuff not to talk with employees about the Union, explaining that he considered Goodnuff a clerical employ- ee, a claim which was belied even by the latter's appearance and manner on the stand. As we shall further note , Goodnuff proved himself to be thoroughly unreliable as a witness . But on the direct ques- tion of his authority as he also attempted to minimize it, he told us first that he makes no recommendations for pay increases but does for promotions; then , that he has recom- mended pay increases where promotions are granted. Fur- ther , he has issued reprimands to employees. When he recommends promotions for employees whom he considers deserving , this is done over his own signature with Wrobel's approval , not the foreman 's. Wrobel , knowledgeable but not altogether frank , had told us that "it would be probably the foreman" who recommends increases and promotions. Further on the issue of Goodnuff 's credibility , he testified that he first learned of the Union 's attempt to organize when he recognized the registered envelope from the Union about May 12. The significance of this was not in the least clarified when he testified that he saw the registered envelope with the Union's name on it at the time when it was brought into the office and that that is all that he did see . Similarly, while it is clear that he is well acquainted with Townsend's room- mate and has spoken to her over the telephone some 10 or 15 times, or more , Goodnuff told us that he does not recog- nize her voice on the telephone . This was to refute her testimony that she spoke with him when he telephoned on May 22 , in contradiction to his statement that he never telephoned or visited Townsend after May 5 and specifical- ly that he never telephoned and spoke with her roommate on May 22. Almost startling in view of the firm decision now assumed by the Company with respect to Goodnuff 's status was Wrobel 's reply when asked whether at an employee meeting he had said that he was number one man, Goodnuff was next in line, and then the foremen . Whether or not he re- called the incident , he would be expected to reply , in light of his earlier testimony , that he could not and certainly would not have made any such statement . His actual reply was, "I can't recall such an occasion ." Recalled as the trial closed , Wrobel now denied that he had ever said that Good- nuff was second in command. With these findings concerning authority and credibility, we come to the allegations of interference by Goodnuff. Spared what as suggested may have been more sordid de- tails , we were told that employee Townsend and Goodnuff had for some time maintained a personal relationship: They saw each other "on a social basis." We need not review nor make a finding as to which of them discontinued the rela- tionship : It would be stretching inference to hold , were it found as the evidence scarcely even suggests , that this is a case of a woman scorned , and that Townsend on that ac- count developed at least a bias which she then transferred to the Company and therefore fabricated her testimony against it . I credit Townsend 's testimony concerning several conversations between herself and Goodnuff concerning the Union. On May 7 or 8 Goodnuff inquired of Townsend whether she had heard about the Union , and when she replied in the affirmative , asked her who had started it. To the latter ques- tion she replied that she did not know and would not tell him if she did know . Antedating the election petition, the questions on this occasion do not support the objection to the election. On May 22 Goodnuff telephoned Townsend at home, asked whether she had signed a union card , and when she replied that she had not seen one , told her that if they got a union in the shop , it would not help her . He called again later that day and remarked that the Union would not do any good ; he had seen it happen before . He also asked whether there had been a union meeting yet, and to this Townsend replied in the negative. In all three conversations Goodnuff was guilty of viola- tive interrogation , and in the latter two of conduct which interfered with the election ; I so find and conclude. I also find and conclude that Goodnuff committed further inter- ference and violation in the two calls on May 22 when he indicated the futility of union activity . While not alleged, this last was litigated with Goodnuff 's denial of any such telephone calls. As for the fact that Townsend was not actually working at the time , the interference was certainly no less than had it been directed toward an applicant for employment ; and even were Townsend but a former em- ployee engaged in organizational activity at the plant with only a hope that she might return . Indeed the tendency of such interrogation and comment is to interfere with organi- CHESTERFIELD CHROME CO. zational activity of one potentially to be reinstated or even newly employed.' The pattern of interrogation continued on May 24 when Wrobel asked employee Thomas whether he had heard any union talk and added, after Thomas replied in the negative, that he did not believe him. The Company suggests that Thomas was biased because, after he had been promoted and served as foreman for about 6 months from the latter part of June to the early part of December 1971. he was demoted by Wrobel to his former rank-and-file job. Were we to indulge in any such assumption, we could as well assume Thomas' gratitude for his earlier promotion and, more important, that a hope for future advancement might now incline him to favor the Company in his testimony. Even if Townsend told Goodnuff that Thomas "hated his guts," there is no warrant for finding anticompany bias here (a comforting thought with respect to these witnesses who continue in the Company's employ). On the question of bias, now returning to Townsend, we are asked not only to assume, as I do not, antagonism on her part toward Goodnuff because he allegedly "dropped" her; but also because of Thomas' alleged antagonism to- ward the Company as suggested above. The connection between Thomas' alleged attitude and Townsend's is re- markably tenuous: Her roommate's sister had for a long time been dating Thomas! Employee Paul testified that about 2 weeks after she signed a union card on May 4, Wrobel asked her what she thought of the Union; that she replied with a question, "A union here? "; and that Wrobel then remarked that he had just wanted to put her "on the spot." She added that later that day Wrobel again asked what she thought of the Union and that she replied that she didn't think they needed one. With Wrobel's insistence that he first became aware of un- ion interest on receipt of the Union's letter on May 15, and that after receipt of the Board's letter about a week later he met with his attorneys on May 23, the finding is warranted that, now concerned with formal Board action and the pos- sibility of a requirement that the Company recognize and bargain with the Union, Wrobel questioned Paul when or about the time when he received the Board's letter. Further, bearing in mind that Paul had not been working for a week before the representation petition was filed , having been laid off from May 12 to May 22, I find that this interroga- tion occurred after the filing of the representation petition by the Union. In assessing the interrogation and other interference here and elsewhere in this case , we must consider that , occurring during an organizing campaign and shortly before a Board- conducted election, it does indeed, in Wrobel's words, put employees "on the spot." I find and conclude that Wrobel unlawfully interrogated Thomas and Paul in violation of the Act. Although such remarks as Wrobel's and Goodnuff's can hardly be regarded as accidental or incidental, and I find violations here, I do not suggest that the perpetrators were guilty of any fell intent. Wrobel, operating in what was i An existing employment relationship is not a sine qua non for a finding of interference . Cf the longstanding rule expressed in Phelps Dodge Corp v N L.R B.. 313 U.S 177, 185 (1941 ), where a broader finding of discrimination was made 39 apparently a normally decent atmosphere, may have in- quired without awareness or consideration of the tendency of such questions to interfere with employees' protected concerted activities. As much can be said for Goodnuff's questions in more intimate or friendly circumstances. But the questions are not to be condoned as necessary, and employee rights are not to be trampled. Insofar as the representation proceeding is concerned, the inquiries directed toward employees after the filing of the petition adversely affected and prevented those laboratory conditions which are to be maintained for the free expres- sion of employee desires . In reaching this conclusion I have considered the nature, the extent, and the timing of the interference found and the closeness of the election tally: Since we are concerned with a practical situation , lesser interference might be overlooked were the voting disparity relatively greater. Except for that testified to by Ruvolo, which was not shown to have occurred after the filing of the representation petition, and Goodnuff's questions to Townsend early in May, the interference found herein requires that the election be set aside. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended :2 ORDER Respondent, Chesterfield Chrome Co., Mt. Clemens, Michigan , its officers , agents , successors, and assigns , shall: 1. Cease and desist from: (a) Unlawfully interrogating employees concerning un- ion activities or sympathies. (b) Suggesting to employees the futility of engaging in union activities. (c) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Post at its place of business in Mt. Clemens, Michi- gan, copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 7, shall be posted by the Company, after being duly signed by its representative, immediately upon receipt thereof, and be maintained by it for 60 consec- utive days thereafter, in conspicuous places, including all places where notices to its employees are customarily post- ed. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered 2In the event no exceptions are filed as provided by Sec . 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and recommended Order herein shall, as provided in Sec . 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. I In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National 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" 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by any other material. (b) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. I FURTHER RECOMMEND that the objections to conduct af- fecting the results of the election be sustained and, severed pursuant to the Regional Director's order of consolidation, Case 7-RC-11214 be transferred to him. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT unlawfully interrogate employees con- cerning employee union activities or sympathies. WE WILL NOT suggest the futility of protected concert- ed activities. WE WILL NOT in any like or related manner interfere with , restrain , or coerce our employees in the exercise of their rights to self -organization, to form labor orga- nizations , to loin or assist International Union, Allied Industrial Workers of America , AFL-CIO, or any oth- er labor organization , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities , except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employ- ment , as authorized in Section 8(a)(3) of the Act. Dated By CHESTERFIELD CHROME CO (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 500 Book Building , 1249 Washington Boulevard, Detroit, Mich- igan 48226, Telephone 313-226-3200.