Glasgow Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1973

204 N.L.R.B. 625 (N.L.R.B. 1973)

GLASGOW INDUSTRIES, INC. 625
Glasgow Industries, Inc., M . B. Manufacturing Co., P.
Sorenson Mfg. Co., Inc. and International Union,
United Automobile , Aerospace and Agricultural Im-
plement Workers of America , UAW. Cases 9-
CA-7296 and 9-RC-9651
June 28, 1973
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On February 28, 1973, Administrative Law Judge
Ralph Winkler issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting 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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
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 Respondent, Glasgow Industries, Inc.;
M. B. Manufacturing Co.; P. Sorenson Mfg. Co.,
Inc., Bowling Green, Kentucky, its officers, agents,
successors, and assigns, shall take the action set forth
in said recommended Order.
IT IS FURTHER ORDERED that the election conducted
on September 11, 1972, in Case 9-RC-9651, be and
it hereby is, set aside, and that Case 9-RC-9651 be,
and it hereby is, remanded to the Regional Director
for Region 9 for the purpose of conducting a new
election at such time as he deems the circumstances
permit the free choice of a bargaining representative.
[Direction of Section Election and Excelsior foot-
note omitted from publication.]
DECISION
STATEMENT OF THE CASE
RALPH WINKLER, Administrative Law Judge: This is a con-
solidated complaint and representation case. Upon charges
and amended charges filed by the Union on September 18
and November 2, 1972, the General Counsel issued a com-
plaint on November 21, 1972, against Respondent alleging
violations of Section 8(a)(1) of the Act. Respondent filed an
answer denying the violations alleged.
The representation portion of this case is based on a
petition filed on July 3, 1972, by the Union pursuant to
which a consent election was held on September 11, 1972.
The election results showed that of approximately 550 eligi-
ble votes, 248 votes were cast for the Union, 261 votes cast
against the Union, and 5 ballots were challenged. The
Union filed objections to the conduct of the election and the
Regional Director issued a report on November 29, 1972, in
which he concluded that certain of these objections raised
substantial and material issues which he recommended be
resolved in a consolidated proceeding with the aforemen-
tioned unfair labor practice case. By order of the Board
dated December 19, 1972, the Board directed a consolidated
hearing which was held in Bowling Green, Kentucky, on
January 18, 1972.
Upon the entire record in the case including my observa,
tion of the demeanor of witnesses, and upon consideration
of briefs, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT EMPLOYER
Glasgow Industries, Inc., M. B. Manufacturing Co., and
P. Sorenson Mfg. Co., Inc., are wholly owned subsidiaries
of Gulf and Western Systems Company, a Delaware corpo-
ration. These three concerns are a single integrated enter-
prise engaged in the manufacture and sale of electrical
connectors and automotive parts, with their principal office
and place of business in Glasgow, Kentucky. They are col-
lectively referred to herein as the Respondent or Employer.
All parties agree and I find that Respondent is engaged in
commerce under Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW, herein
called the Union, is a labor organization under Section 2(5)
of the Act.
III THE UNFAIR LABOR PRACTICES
AND OBJECTIONS
These consolidated cases present substantially similar is-
sues ; namely, whether Respondent threatened economic re-
prisal for union reasons, created the impression of
surveillance of union supporters, and coercively interrogat-
ed employees concerning union matters. The representation
petition having been filed on July 3, 1972, only conduct
subsequent to such date may be basis for setting aside the
election of September 11, 1972.' The cutoff date in the
unfair labor practices portion of the case is March 18, 1972,
under Section 10(b) of the Act.
1 All dates are in 1972 unless otherwise indicated
204 NLRB No. 107
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find, as the parties agree, that the following individuals
are supervisors within Section 2(11) of the Act: Vice Presi-
dent and General Manager Henry Egen; Personnel Direc-
tor Terry Hitchcock; Assistant to Personnel Director Carl
Smith; Warehouse Manager Art Higgins; and Foremen
Audley Britt, Ernie Ferrel, Neil Pendygraft, Glenn Richard-
son, James Wheat, and Gordon Wilson.
Employee Dennis Bullington spearheaded the organizing
campaign and obtained approximately 150 union card sig-
natures. According to Bullington's undenied and otherwise
credible testimony, Foreman Pendygraft approached Bull-
ington at work on March 30 and told Bullington he was
"disappointed" in Bullington, for he had heard that Bulling-
ton was working for the Union and "trying to push" union
cards. Pendygraft inquired why Bullington desired a union
and he asked that Bullington promise not to "spread the
Union around." (Pendygraft did not limit his request to
actual working time.) 2 Bullington then asked whether Pen-
dygraft was going to "fire" him or give him "dirty jobs" or
`chew jhim] out'; Pendygraft said he would not, and he has
not.
Bullington had heard a rumor that Respondent had list
of union organizers . Bullington testified that he asked Fore-
man Ferrel on August 25 whether Respondent did have
such list and whether he was on it and that Ferrel answered
"yes" to both questions. Ferrel's version of this conversation
was that Bullington had inquired about a list , but that his
response was that "if there was one, I hadn't [seen] it." The
General Counsel does not contend that Respondent initiat-
ed or circulated such rumor.
Bullington testified, without contradiction, concerning
another conversation with Ferrel on September 8. Bulling-
ton asked Ferrel on this occasion how the latter felt the
upcoming election would turn out. Ferrel replied that he
believed that the Union would lose, but that "you 're going
to lose either way it goes . . . [for] if the Union comes in,
the company will move out . . . [and) they can move out in
24 hours if they wanted to." At a general meeting held that
same day, Vice President Egen addressed the employees
concerning the Union . Bullington asked Egen at the meet-
ing whether the Company would move out if the Union
came in; Egen replied that he "couldn't answer that ques-
tion."
Employee Jose Zapata testified that Assistant Personnel
Director Smith came into Zapata's section on September 5
and began discussing the Union. Zapata testified without
contradiction that Smith asked Zapata and employee
Charles Smith why the employees wanted a union. Plant
Manager John Faynor visited Zapata's department on Sep-
tember 8, and also discussed the Union with him. It is also
undenied that Faynor inquired on that occasion why the
employees wanted a union. Zapata responded with com-
plaints about some foremen, whereupon Faynor told Zapa-
ta that he [Faynor] would get the foremen "straightened
Out.,, 3
2 Cf. N L R.B. v. Southern Electronics Co, 430 F 2d 1391, 1392 (C A 6,
1970); Republic Aluminum Co v N L R B, 394 F.2d 405, 407 (C A 5, 1968),
P R Mallory & Co. v. N L R B., 389 F.2d 704, 709 (C.A. 7, 1967).
3 Zapata also testified concerning a conversation with Foreman Richard-
son, but the testimony is too confusing to support any meaningful findings.
Employee Elsie Taylor credibly testified, with substantial
corroboration by employee Rubie Winchester, that Fore-
man Wilson told her during a conversation in August that
"if the Union comes in, the order would be cancelled and
you will have no work." Wilson did not testify. Also, ac-
cording to Taylor's and Winchester's credible testimony,
Foreman Britt stated on that or a related occasion that "if
you all vote this Union in, this plant could move to Mexi-
co." While testifying that he was unable to recall various
conversations, Britt denied having made the foregoing state-
ment ; however, he did remember telling Mrs. Taylor that
one of Respondent 's competitors had moved to Mexico
"due to high wages."
Employee Nancy Bullington is Dennis Bullmgton's
mother and a longtime friend or acquaintance of Foreman
Wheat. She was a union observer at the September 11 elec-
tion . On the morning of the election and while Dennis was
openly distributing union literature at the plant gate, Wheat
remarked to Mrs. Bullington, according to Mrs.
Bullington's testimony, "By the way, Nancy, what do your
son and you [expect] . . . to get out of working for the
Union." "I hope to get a lot," Mrs. Bullington replied, "and
I can't talk to you right now, I will talk to you later."
Employee Eva Duvall had a conversation on September
7 with Assistant Personnel Director Smith. Mrs. Duvall's
husband works for another employer where the Duvalls
have their medical insurance . On that day, according to
Mrs. Duvall, she asked Smith whether she could have her
insurance transferred to Respondent from her husband's
place of employment. Smith replied, according to Mrs. Du-
vall, that she should not transfer the insurance because, as
he explained, she and 40 percent of the employees would be
laid off should the Union "come in." The conversation end-
ed with Smith' s statement that "I did you a favor by hiring
you, I hope you will do me a favor by voting no." While
testifying that he didn't recall discussing the insurance mat-
ter with Mrs . Duvall, Smith denied telling her she would be
laid off if the Union came in. Smith testified further, howev-
er, that he did tell Mrs. Duvall that "in case the Union did
come in and there was a layoff, she could be one of the first
to be laid off because of her being the lowest or youngest
in seniority, at that time."
General Manager Egen testified that he prefers'not hav-
ing to deal with unions because they can cause strikes. He
went on to explain that many of Respondent's customers
use Respondent as a "single source"; i.e., Respondent has
their entire business . But where there is a risk factor in-
volved, Egen further stated, a customer may operate with
"dual sources" for their needs , and a supplier with a union
is a component of such risk factor. Egen testified that he
wanted to win the election but to run " a clean campaign
that was entirely within the law." He discussed these matters
at several meetings with the supervisory staff and gave them
a written "checklist" of "do's and dont's" to guide their
conduct accordingly. This list states in part as follows:
The transcript is corrected to read at p. 26, 1. 16 "` what he saw, but not
what he feels."
GLASGOW INDUSTRIES, INC. 627
What You Can't Do During an Organizational Drive
1. Ask employees for an expression of their thoughts
about a union or its officers.
2. Prevent employees from soliciting union member-
ships during their free time on company premises as
long as such does not interfere with work being per-
formed by others.
3. Threaten loss of jobs, reduction of income, dis-
continuance of any privileges or benefits presently en-
joyed, or use of any intimidating language which may
be designed to influence an employee in the exercise of
his right to belong to, or refrain from belonging to a
union.
4. Threaten or actually discharge, discipline, or lay
off an employee because of his permissible activities in
behalf of the union.
5. Ask employees whether they have or intend to
sign a card.
6. Discriminate against employees actively support-
ing the union by intentionally assigning undesirable
work to the union employee.
7. Conduct yourself in a way which would indicate
to the employees that you are watching them to de-
termine whether or not they are participating in union
activities. (Of course, you can and should keep your
eyes and ears open for any improper conduct.)
8. Promise employees a pay increase, promotion,
betterment, benefit, or special favor if they stay out of
the union or vote against it.
9. Make statements to the employees to the effect
that they will be discharged or disciplined if they are
active in behalf-of the union.
10. Urge employees to try to persuade others to op-
pose the union or stay out of it.
So far as the record discloses, Egen did not circulate the
"do's and dont's" to rank-and-file employees, nor did he
explain to them his aforesaid reasons for opposing the
Union.
Concluding Findings
Respondent would have avoided this proceeding had it
complied with the list of "don'ts" given the management
staff by General Manager Egen. In N.L.R.B. v. Roselyn
Bakeries, Inc., 471 F.2d 165 (C.A. 7, 1972), the court set
forth principles applicable to this case:
While it is well settled that an employer is free to
communicate to its employees any of its general views
about unionism or any of its specific views about a
particular union , N.L.R.B. v. Gissell Packing Co., 395
U.S. 575, 618 (1969), it is equally well established that
its communications must not contain a threat of coer-
cion or reprisal, express or implied. Gissell, supra, p.
618. If the employer expresses his views on the effect
that unionization may have on the future economic
health of the company, his projections must be very
carefully phrased on the basis of objective fact. Textile
Workers v. Darlington Mfg. Co., 380 U.S. 263, 274, n.
20 (1965). If there is any implication that employer may
or may not take action solely on his own initiative for
reasons unrelated to economic necessity and known
only to him, the statement is no longer a reasonable
prediction based on available facts, but is a threat of
retaliation based on misrepresentation and coercion
and, as such without the protection of the First Amend-
ment . Gissell, supra, p. 618. Any balancing of the rights
of the employees under § 7, as protected by § 8(a)(1)
and the proviso in § 8(c), must take into account the
economic dependence of the employees on the employ-
ers and the necessary tendency of the former, because
of that relationship, to be alerted to intended implica-
tions of the latter that might be more promptly dis-
missed by one who was entirely disinterested. Beyond
question, employees are particularly sensitive to ru-
mors of plant closing and view such rumors as coercive
threats, rather than honest forecasts.
Without further discussion I conclude that Respondent
unlawfully threatened reprisal against its employees for
union considerations by the following conduct:4 Foremen
Ferrel's "plant moving" statements to Bullington; Foreman
Wilson's statement to Winchester concerning "cancellation
of orders" and employees' "work loss"; Foreman Britts's
"plant removal" statement to Taylor and Winchester; As-
sistant Personnel Director Smith's "layoff" statement to
Duvall; and the implicit threat of a possible move for unex-
plained union reasons in Egen's answer to Bullington's
question (Roselyn Bakeries, supra). Given this coercive con-
text, I further conclude that Respondent engaged in the
following incidents of unlawful union interrogation: Fore-
man Pendygraft-Dennis Bullington; Assistant Personnel
Director Smith-Zapata; and Plant Manager Faynor-Zapa-
ta.s Respondent further violated the Act by Pendygraft re-
questing Bullington's promise to discontinue his
organizational activities, and by Faynor telling Zapata that
he would take corrective action on Zapata's complaint,
thereby, in effect, promising a benefit for the purpose of
inducing employees to vote against the Union. Aldon, Inc.,
201 NLRB No. 75.
Finally, there is the allegation of "creating the impression
of surveillance" respecting the Foreman Ferrel-Bullington
conversation about a rumored list of union organizers. As
indicated, there is no evidence or contention that Respon-
dent initiated or circulated such rumor. A "list" is synony-
mous with "information"; and, in my judgment, it is not
necessarily, if at all, improper for an employer to have infor-
mation concerning union matters, however innocently or
lawfully such information is acquired. Unless, where an
employer has such information, it be deemed improper for
an employer to acknowledge having this information upon
the initiating question of the Union's principal proponent.
I do not believe so, and, even on the basis of Bullington's
version of the incident, I therefore do not find the "impres-
sion of surveillance" allegation to be established.
4 Compare B F Goodrich Footware Corporation, 201 NLRB No. 46. Cf
N.L R B v . Kaiser Agricultural Chemicals, 473 F.2d 374 (C.A. 5, 1973); Mee-
han Truck Sales, Inc, 201 NLRB No 107.
The described circumstances of the Foreman Wheat-Mrs Bullington
exchange do not , in my opinion, warrant the opprobrium of an unfair labor
practice finding Compare Isaacson -Carrico Manufacturing Co, 200 NLRB
No 116
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent is an employer within Section 2(6) and (7)
of the Act.
2. The Union is a labor organization within Section 2(5)
of the Act.
3. Respondent has violated Section 8(a)(1) of the Act by
threatening employees with layoff and plant removal for
union reasons, by coercively interrogating employees con-
cerning union matters, by requesting employees to promise
discontinuing lawful organizational activities, and by soli-
citing and impliedly promising to remedy employee com-
plaints for the purpose of interfering with rights under
Section 7 of the Act.
4. The aforesaid unfair labor practices affect commerce
within Section 2(6) and (7) of the Act.
5. Objections 1, 3, and 6 are established in Case 9-
RC-9651 and such conduct 6 by Respondent (Employer in
the RC case) warrants setting aside the election of Septem-
ber 11, 1972.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(1) of the Act, I shall
recommend that it cease and desist therefrom and take
certain affirmative action in order to effectuate the policies
of the Act.
I shall also recommend in the representation case that the
election of September 11, 1972, be set aside and a second
election be conducted.
Upon the foregoing findings, conclusions and the entire
record and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER'
Glasgow Industries, Inc., M. B. Manufacturing Co., P.
Sorenson Mfg. Co., Inc., Bowling Green, Kentucky, their
officers, agents , successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with layoff, plant removal, or
other reprisals for union reasons.
(b) Coercively interrogating employees concerning
union or organizational matters.
(c) Requesting employees to promise to refrain from law-
ful organizational activities.
(d) Soliciting employees concerning their complaints and
promising to remedy such complaints for the purpose of
interfering with rights under Section 7 of the Act.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
under Section 7 of the Act.
2. Take the following affirmative action:
(a) Post at their premises at Bowling Green, Kentucky,
copies of the attached notice marked "Appendix." 8 Copies
of said notice, on forms provided by the Regional Director
for Region 9, after being duly signed by Respondent, shall
be posted by Respondent immediately upon receipt thereof,
and be maintained for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 9, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.
IT IS FURTHER RECOMMENDED that the election held on Sep-
tember 11, 1972, in Case 9-RC-965 1, be set aside, that such
matter be remanded to the Regional Director for Region 9
for the purpose of conducting a new election at such time
as he deems the circumstances permit the free choice of a
bargaining representative, and that the following be issued:
[Recommended Direction of Second Election and Excels-
ior footnote omitted from publication.]
6 No reliance is placed on the Pendygraft-Bullington incident of March 30,
it occurring before the filing date of the representation petition
7 In 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, recommendations, 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
s 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 be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
APPENDIX
NOTICE TO EEMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten to lay off employees, move our
plant, or take any other reprisal for union reasons.
WE WILL NOT interrogate employees concerning union
matters.
WE WILL NOT ask employees to promise to refrain
from joining or assisting unions or from otherwise par-
ticipating in union activities.
WE WILL NOT solicit employees concerning complaints
and then promise to correct these matters for the pur-
pose of interfering with rights under Section 7 of the
Act.
Our employees are free to join or assist International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, or any other union.
GLASGOW INDUSTRIES, INC
M. B. MANUFACTURING CO.
P. SORENSON MFG CO., INC
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
GLASGOW INDUSTRIES, INC. 629
anyone. this notice or compliance with its provisions may be direct-
This notice must remain posted for 60 consecutive days ed to the Board's Office , Federal Office Building, Room
from the date of posting and must not be altered, defaced, 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone
or covered by any other material . Any questions concerning 513-684-3686.