L. F. Strassheim Co.

National Labor Relations Board - Board DecisionsNov 15, 1968

173 N.L.R.B. 846 (N.L.R.B. 1968)

846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD L. F. Strassheim Company and International Associa- tion of Machinists and Aerospace Workers, AFL- CIO. Case 9-CA-4476 November 15, 1968 so much of the findings and conclusions as is relevant and necessary to the resolution of the substantive issues herein, and amends the conclusions of law, order, and notice in L. F. Strassheim Company, 171 NLRB No. 132, in the following manner: SUPPLEMENTAL DECISION AND AMENDMENTS By CHAIRMAN MC CULLOCH AND MEMBERS FANNING AND ZAGORIA On June 3, 1968, the National Labor Relations Board issued a Decision and Order' in the above- entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and ordering that it cease and desist there- from and take certain affirmative action to effectuate the policies of the National Labor Relations Act, as amended. With respect to allegations of certain other unlawful conduct covered by the complaint and amendments thereto, as to which, without taking evidence thereon, Trial Examiner Lloyd Buchanan had either recommended dismissal without prejudice or made no specific recommendation for their disposi- tion, the Board ordered that they be severed, that the record in the above-entitled proceeding be reopened and that a further hearing be held before a Trial Examiner for the purpose of taking evidence on these allegations. On August 6, 1968, Trial Examiner Buchanan issued his Supplemental Decision, finding that Re- spondent had engaged in and was engaging in certain additional unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Supplemental Decision. The Trial Examiner further found that Respondent had not engaged in certain other unfair labor practices alleged and recommended that the complaint be dismissed with respect thereto. Thereafter, the Gen- eral Counsel and Respondent filed exceptions to the Supplemental Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Supplemental Decision, the exceptions and supporting briefs, and the entire record in this case and, without commenting on the Trial Examin- er's discussion of extraneous matters, hereby adopts 1 171 NLRB No. 132. ADDITIONAL CONCLUSIONS OF LAW 1. Delete the words "vice president" in the first line of paragraph 6 of the "Additional Conclusions of Law" in the Board's Decision and Order and substi- tute therefor the word "president." 2. Delete paragraph 7 from the "Additional Con- clusions of Law" in the Board's Decision and Order and add the following new paragraphs 7, 8, and 9: "7. By the conduct of its president on December 8, 1967, in telling a group of assembled employees that Respondent would prefer to avoid recognition of and negotiations with the Union by lengthy litigation rather than to defeat it in an election, thus conveying to employees the futility of union activity, Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act." "8. By the conduct of its superintendent in prom- ising an employee a loan to induce him to refrain from union activity, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act." "9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adds to its Order in L F Strassheim Company, 171 NLRB No. 132, the follow- ing, and hereby orders that Respondent, L. F. Strassheim Company, Bowling Green, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth as herein modified: 1. Renumber paragraph 1(e) as 1(g) and insert the following paragraphs to be numbered 1(e) and 1(f): "(e) Making any promises to employees to induce them to refrain from union activity." "(f) Telling employees that it prefers to avoid recognition of and negotiations with the Union through lengthy litigation rather than defeat the Union in an election." 2. Add the following paragraphs to the Appendix attached to 171 NLRB No. 132: WE WILL NOT make any promises to employees to induce them to refrain from union activity. WE WILL NOT tell employees that we prefer to avoid recognition of and negotiations with the Union 173 NLRB No. 125 L. F. STRASSHEIM CO. through lengthy litigation rather than defeat the Union in an election. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations not found herein. TRIAL EXAMINER'S SUPPLEMENTAL DECISION LLOYD BUCHANAN, Trial Examiner In a Decision and Order' issued on June 3, 1968, the Board modified my Trial Examiner's Decision of March 8 primarily by adding Section 8(a)(5) and (1) findings and conclusions to those which I had made, and although it issued a broad order proscribing any other interference, the Board remanded the proceeding for hearing of further 8(a)(1) allegations. A supplemental hearing was held before me at Bowling Green, Kentucky, on July 23, 1968, and counsel were heard in oral argument at the close of the trial. I proceed now to further findings and conclusions. But whatever has been accomplished by modification of my procedure as indicated in the earlier Trial Examiner's Decision but which did not persuade the Board, this second trial held 6 months after the first, leaves us with no additional remedy, as explained below. Upon the supplemental record in the case and from my observation of the witnesses, I make the following FURTHER FINDINGS OF FACT (WITH REASONS2 THEREFOR ) AND CONCLUSIONS OF LAW The Board in its decision of June 3, cited "subsequent conduct" in finding a refusal to bargain on October 3, 1967. I was willing to stand, and did not anticipate the Board's unwillingness, on the Regional Director's earlier determination; and I suggested a separate 8(a)(1) proceeding to avoid delay with respect to the refusal-to-bargain issue. As further noted in the margin herein, there was no suggestion that 8(a)(1) violation could not be considered in this proceeding. The question at the earlier hearing was one of proper or wise procedure, considering the nature of the allegations, the defense, and the history of the case; not whether a finding could be made, but rather whether it should be made where summary judgment could and normally is sought in the interest of speed and economy. Indeed, the Board noted that I had permitted an amendment to allege further interference, and I pointed out that, with the facts admitted, the Board could make findings as it later did should it reverse me on the issue of procedure. 1 171 NLRB No. 132. 2 Here as in all of my decisions , these are my reasons . On review, they may be deemed inadequate . But where violation is not found either because the evidence does not indicate violation or because I believe that it is procedurally unwise to find it, there is no warrant for setting up and then knocking down a strawman by a declaration as in this case that a finding is not "precluded " or that existance of summary judgment procedure does not "free " a respondent to commit other violations , particularly where the Trial Examiner 's Decision has indi- cated that an amendment was permitted, as the Board recognized, and that a finding of independent interference could be made should the Board prefer different procedure . I have elsewhere suggested that, where my reasons are ostensibly stated, the reasons declared by me be set forth and that what I have not said be not ascribed to me. I cannot anticipate and certainly not prevent inaccuracies on review . But I do suggest that , whatever the excuse where the record or the Trial 847 Thus it seemed to me preferable on the basis of my experience and for the reasons stated to proceed, as I did, to a speedy determination of the refusal-to-bargain issue Nor to this point has reason to the contrary been shown (although contrary action has been indicated and faithfully followed) to justify the procedure followed and its inherent delay both originally with scheduling of a hearing and thereafter in the severance (some time may have been saved at that point since it was unnecessary to hear, pass upon, and review some 8(axl) testimony) and further hearing after my acceptance and reliance on the determination in the representation proceeding, final under the Board's Rules and Regulations, without necessity to rely on "the additional 8(a)(5) allegations" now relied on by the Board. In any event, although the first hearing had been scheduled and held, the 8(a)(5) issue was more speedily determined without receipt of 8(a)(1) testimony, and if a new 8(a)(1) complaint has not been issued on the basis of my dismissal without prejudice, neither have new 8(a)(1) allegations been made since the Board's reversal of that dismissal-including allegations of 8(a)(1) violations which occurred after the prior hearing and which the General Counsel (and I in reliance on his statement) at that time could only anticipate as further reason for hearing 8(a)(l) allegations separately, all of which was explained in the first Trial Examiner's Decision. It would appear to be unnecessary or futile at this time to stress a suggestion for better procedure. Leaving the question of severance as contrasted with the dismissal without prejudice (whatever the procedural problem, a distinction without a practical difference here), we find that the additional interference which the General Counsel antici- pated and to which he referred at the first hearing has evidently not materialized. Although this supplemental hearing awaited the Board's decision (itself delayed by the scheduling of a hearing instead of use of the summary judgment procedure) and the Regional Director' s readiness to proceed thereafter, we have now evidence concerning only the evidence which had been previously alleged or which the General Counsel sought to add by amendment at the February 1 hearing. The poet did not have this situation in mind when he wrote of "one of the banish'd crew (with apologies to the Company) ... to raise new troubles." A first hearing alternative to the dismissal without prejudice and to leaving the parties to a new and separate proceeding, while minimizing the delay with respect to the refusal to bargain issue, would have been for me to permit, as the Board has done, amendment of the complaint to embrace new issues and then to sever the issues of interference. While the Board's Rules and Regulations3 provide for severance of proceedings, I Examiner 's Decision is lengthy , there is less where they are, as mine frequently are, brief . Aside from what should be an encouragement to succinctness, misstatements may lead to otherwise unnecessary and logomachous recitations submitted in a fatuous hope that emphasis on even the obvious may somehow prevent misstatement . Were one to regard any of this personally , he could feel flattered that modification depends on misstatement . But more important than personal considera- tions are the processes of government and the methods of justice, with which a Trial Examiner must concern himself. The responsibility at the trial and first decisional stage being peculiarly the Trial Examiner's, his efforts (particularly when supported by his experience and by expres- sions of policy which he accepts as issued in good faith ) are not "gratuitous and inappropriate " If I lack the Board's expertise with respect to substantive issues or matters of policy, I can cite long and apparently praiseworthy procedural experience. 3 Series 8, as amended, Section 102 33. 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD see no authority, to avoid delay or for any other reason, for an order on my part severing allegations in a single proceeding at the instance of the General Counsel or conceivably of a respondent 4 The Board has now severed the allegations and permitted amendment. Of course I do not question its procedure. By an early decision of the 8(a)(5) allegations, it did act, as I had at the hearing, for a speedy determination of that issue. But beyond rejection of the procedure followed by the Trial Examiner, what was accomplished which could not have been accomplished, while still obtaining a prompt refusal-to- bargain decision, by filing a new charge to cover the 8(a)(1) items, old and new, and any other 8(a)(5) violation is not apparent. Unless we recognize an unwillingness by the Board to stand on the determination in the representation proceed- mg, the situation possesses itself in mystery. Conceivably further proceedings will vouchsafe enlightenment ere these gyres come to rest. At the remand trial, we considered three allegations of interference: (1) Foreman Phelps on October 6, 1967, threat- ened two employees with discharge because of their union activities, (2) Superintendent Emanuel on January 12, 1968, conditioned a loan by the Company to an employee on his refraining from union activities; and (3) Company Vice President (actually President) McLean on December 1, 1967, told assembled employees that the Company would rather stall the Union in court for 3 years than win the election. Employee Poteet testified that on October 6, about a month and a half before the Board-conducted election of November 22, Phelps told him that the Company would have no mercy on any man who had the brass to wear a union button, one of which Poteet was wearing, that he would be fired if caught talking "or anything", and that Poteet would have to be on his toes. All of this was in connection with the display of the union button, but at the same time Phelps informed Poteet that one of two jobs which he had been performing would be taken from him and that he would be left with the one which he preferred. It is not clear why, as Poteet told us, Phelps allegedly disclaimed responsibility for the new assignment, which evidently pleased Poteet. According to employee Ward, Phelps on October 6 reproved him for some poor work and then also mentioning his brass in wearing a union button, warned that Ward would be watched, the Company would have no mercy on him, and he could be fired. There is no basis for finding violation in the new assignment to Poteet, even if the point was litigated. According to Phelps, he told Poteet that the latter had not been keeping up with his work and that he had made too many mistakes. Phelps demed that he had any conversation with Poteet, Ward, or any other employee concerning a union button except on one occasion, when someone asked him what he thought of it. The statements attributed to Phelps by Poteet and Ward were clearly violative if made. But there is no basis on the record or in the witnesses ' demeanor for a finding one way or the other in this Yes-No situation. I do not find that Phelps unlawfully interfered, restrained, or coerced. Employee McCutcheon, slow but quite reliable, testified that early in January, Emanuel, after approving another loan to him, told him that he did not want to see him wearing a union button or talking with Ward, a recognized union supporter, and added, "If you scratch my back, I'll scratch yours."' The mutual forbearance proposed in this "icky" if not itchy situation constituted an unlawful promise to induce McCutcheon to refrain from union activities; I so find and conclude. While the loan was not conditioned as alleged, the promise subsequent to the arrangement and in connection with it was fully litigated. According to Emanuel, McCutcheon volunteered that he would not have anything to do with the Union, and he replied that that was not his concern but added that he could do more for McCutcheon than many others could (a promise which exemplifies the lip service given to the hallowed admonition that we "ask not" what can be done for us, but rather that we ask what we can do). Although Emanuel testified on cross-examination that he did not tell Mc- Cutcheon to whom he was referring in the latter statement, and denied that he was referring to the Union, the statement was made in connection with a reference to the Union; and I find that Emanuel was indeed referring to the Union or at least that this was a reasonable inference so that his comment tended to interfere. Emanuel told us that he did not recall whether he said it before or after McCutcheon referred to the Union. The context or result being clear, the question was unnecessary if Emanuel's remark preceded McCutcheon's, the former tended to and did lead to the latter; if it followed, the connection and reference cannot be ignored. Poteet and Ward testified that, during the course of other remarks to the assembled employees in December,6 McLean declared that he would rather stall the Union for 3 years than to have won the election. (According to Ward, the term mentioned was 1 -36 to 2 years.) McLean testified that he spoke of several items7 and then pointed out that a union handbill distributed that morning and charging the Company with stalling was not true: he was concerned with the length of time necessary to decide an appeal and did not think it worth waiting and losing one to 3 years for an election as some people did. I find that, in adding to his alleged denial of any stalling the disturbing details concerning delay of one to 3 years which unidentified "others" might seek and which an appeal might entail, McLean was by indirection and in violation of the Act warning the employees of the futility of union activity. A statement that "some," but not he, might stall is sufficiently ominous and coercive in its tendency to persuade employees of such futility. Even his version is violative for its likely impression and effect on these employees. I find and conclude that McLean's remarks constituted unlawful interference. Inasmuch as the findings and conclusions herein are covered by the Board's broad8 Order of June 3, it would be presumptuous to recommend a Supplemental Order covering 4 Cf. Sheridan-Peter Pan Studios, Inc , TXD-412-1968 (July 1968) [174 NLRB No. 31, where Trial Examiner Arthur Goldberg severed a refusal-to-bargain proceeding from another proceeding, in which interference and discrimination were alleged , with which it had been consolidated . Cf. also Schneider Mills, Inc., 159 NLRB 982 and 161 NLRB 1135, where refusal -to-bargain and discrimination and interference proceedings, respectively , were separately brought before Trial Examiner Bott although set for hearing on the same date. 5 At this writing , the transcript has not yet been received. 6 The date was later fixed as December 8. 7 Poteet and Ward did not recall these other items, significant in themselves but not for their relationship to union activities . While they testified that other things were mentioned , thew attention was not called to these specifically. 8 Cf. N.L.R.B. v. Express Publishing Company, 312 U.S. 426. L. F. STRASSHEIM CO. the interference herein found.9 Since the notice attached to the Board's Order fails, however, to include a general provi- sion, broad or narrow, with respect to interference, I do recommend that the following paragraphs be inserted in the notice attached as Appendix to the Board's Decision of June 3: WE WILL NOT make any promises to employees to induce them to refrain from union activity. WE WILL NOT tell employees that we prefer to delay 9 Cf Greensboro Hosiery Mills, Inc , 162 NLRB No. 108, where findings of violation were deemed unnecessary in view of the broad order. In the instant case , these findings have been made, the remedy has been anticipated. 849 union activity or recognition. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, 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 membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act.