Mission Clay Products Corp.

National Labor Relations Board - Board DecisionsOct 4, 1973

206 N.L.R.B. 280 (N.L.R.B. 1973)

280 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mission Clay Products Corporation and Line Drivers, Local Union No. 468, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America . Cases 20-CA-7843 and 20-CA-7760 October 4, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On June 25, 1973, Administrative Law Judge Henry S. Sahm issued the attached Decision in this proceed- ing. Thereafter, the General Counsel 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 I 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 the complaint herein be, and it hereby is, dismissed. 1 While we adopt his ultimate conclusions that Respondent did not violate Sec. 8(a)(1) or (3), we do not adopt all of his rationale or subsidiary findings in support thereof. In particular, we do not adopt the following: (1) His fording that the fact that other drivers kept cash discounts and were not discharged is immaterial and irrelevant to the issue of whether Antonio Alarcon was discnniinatroily discharged; (2) His crediting of Garrett's denial of Alarcon's testimony on the grounds that the vice president of this size company, having the responsibilities he had, and "evidently" familiar with what he could tell an employee, and after having gone through another Board election 18 months before ; would be so "incredibly naive" as to senselessly compromise his company by such admittedly crude and damaging questions and threats to Alarcon-suck"naivete" is not uncommon; and (3) Employ- ing as a test for whether the interrogation was coercive the absence of-evi- dence that employees were actually coerced, as corroborated by the fact that the Union won the election-it is too long and well established for citation that Sec 8(a)(1) coercion is that which tends to coerce as measured by objective and not subjective appraisal, and does not turn on whether the coercion succeeds or fails in an ensuing election. I DECISION HENRY S. SAHM, Administrative Law Judge: Upon charges filed by the aforementioned Union, the General Counsel issued a consolidated complaint on November 16, 1972, alleging violations of Section 8(a)(1), (3), and (4) of the Act. Respondent denied the commission of anyunfair labor practices, and a hearing was held on December 14 and 15, 1972.1 Upon the entire record, including observation of the demeanor of witnesses and after due consideration of briefs filed on January 22, 1973, there are made the following: FINDINGS OF FACT Respondent is a California corporation engaged in Fre- mont, California, in the manufacture and distribution of sewer pipes.' Respondent's interstate sales and purchases respectively exceed $50,000 annually and it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. The Alleged Unfair Labor Practices An election in a unit comprising the Respondent's truck- drivers and mechanics at Fremont, who were unrepresented until 1972, was held on May 26,197 1, by the National Labor Relations Board, which the Union lost. A petition for a second election was filed by the Union on August 25, 1972, in Case 20-RC-10914, and a direction of election issued on October 16, for a unit of truckdrivers, mechanics, helpers, and dispatchers employed at Fremont, California. An elec- tion was conducted on November 10, which the Union won, and a certification of representation issued on November 20. - Walter Garrett, Respondent's vice-president, had a con- versation about the Union in his office on September 6, with Salvador Ramirez who drives a truck for the Company? Garrett stated that employers as well as employees have rights, citing that employees have the right to sign union cards. Garrett continued that he was not interested in who gave Ramirez the union card but he did inquire of him what his "feelings" were toward the Union. Ramirez replied that the union wage scale, health and dental benefits did appeal to him to which Garrett's rejoinder was that it was expensive and the Company could not afford it. Garrett added that the Company was contemplating the establishment of a pension plan. Garrett suggested that the truckdrivers ,and mechanics should be patient and wait a little longer. Garrett told him, testified Ramirez, that the present operation and maintenance costs of their trucks was so high that they were considering using subhaulers. Garrett's version of this con- versation is that he told Ramirez that if the Union won the election, ,they would probably make demands, in order to keep their promises made to the employees during the course of the organizational campaign and "we may not be able to afford those promises." W. O. Plumley (brother-in-law of Antonio Alarcon, the alleged discriminatee,) who has been employed by Respon- 1 All dates are 1972 unless otherwise indicated. 2 On or about September 5, Ramirez volunteered the information to Poel- stra, Respondent's supervisor, that he had signed a union card. Poelstra, according to Ramirez , told him that if the Company could not afford to pay union scale wages, "the trucks might be sold..... An isolated remark such as this was not a threat but a prediction. Surprenant Manufacturing Co v. N.L AB., 341 F.2d 756, 759 (CA. 6, 1965). 206 NLRB No. 81 MISSION CITY PRODUCTS CORP. dent for 8 years, testified that sometime in September, Gar- rett told him he "fe[lt] about the Union now, the way [he] felt a year and a half ago," when the Union lost a Board election held on May 26, 1971. Frank Alarcon (a cousin of Antonio Alarcon, the alleged discriminatee in this case), has been employed as a truckdri- ver by the Company for over 8 years. In a discussion with Garrett sometime in September, the latter told Alarcon that he did not want the Union, to which Alarcon replied that he didn't either, but there was nothing he could do about it as he had to go along with what the majority of the employees wanted. Garrett also mentioned'that other com- panies had left the San Francisco Bay area because they were unable to pay the high wages. Antonio Alarcon, Respondent's truckdriver for 10 years, is alleged to have been discriminatorily terminated on Octo- ber 4. Alarcon testified that while in Garrett's office on September 15 or 16, Garrett asked him if he signed a union card. Alarcon continued that he answered in the affirmative whereupon Garrett asked who gave him the card, and then changed his mind and told Alarcon he did not want to know the name of the person. Alarcon testified that sometime before the first union election in May 1971, Garrett not only threatened he would sell their trucks and subcontract the hauling to independent truckers, but also he would fire all the truckdrivers if they should join the Union. Garrett denied these charges of Alarcon. He testified that he told Alarcon that the Company did not want the Union as they could not afford the Union's demands and if the Union remained adamant, "We had other alternatives .. . to hire somebody else to do ' it...." Antonio Alarcon was fired on October 4, for allegedly accepting "kickbacks" for diesel fuel which he purchased on a company credit card. The General Counsel's representa- tive asserts that this dishonesty reason given by the Respon- dent is not only incredible but a pretext, as the real reason for Alarcon's discharge approximately 5 weeks before the Board election of November 10 was his union activities. The letter of termination given Alarcon on October 4 reads, inter alia, as follows: It has now come to our attention that you have been receiving a five cent per gallon kickback on diesel fuel purchased with a company credit card at Holden's Truck Center in Bakersfield. Personnel at Holden's -Truck 'Center have confessed this fact to us. An em- ployee causing excessive charges to be incurred against his employer in order that he may receive a cash rebate is morally and legally wrong, and we can neither con- done nor allow such practices. An offense of this nature cannot be overlooked. We must, therefore, terminate your services. You are hereby so notified. Alarcon's peculations, which amounted to $943 stand un- contradicted in this record. Nevertheless, the General Counsel contends Alarcon was fired for his union activities, stating that the motivation for getting rid of Alarcon was Respondent "saw a golden opportunity to scare the wits out of the other prospective voters" and accordingly "moved quickly to take advantage of a superficially valid reason for discharging Alarcon." The General Counsel concludes that "several facts, both singly and collectively, demonstrate that Respondent's asserted reason for the discharge of Tony 281 Alarcon is indeed a pretext ..: clearly incredible ... [and] since the asserted reasons for Alarcon's discharge does not withstand scrutiny, it is proper to infer that the real reason for discharging him was an unlawful one." Discussion and Concluding Findings Section 8(a)(3) Antonio Alarcon's union activity consisted of his, signing a union authorization card in August and giving cards to Ramirez, his fellow truckdriver. However, the Act does not circumscribe an employer's right to discharge an employee for reasons not forbidden by the Act, even though the em- ployee may be an active union adherent or advocate. The' employer can fire at will, so long as his action is not based on union membership or intent to interfere with the purpos- es of the Act. Where a just ground for discharge appears, it is ordinarily a mere matter of speculation to say that the discharge was because of union membership .3 Therefore, the 8(a)(3) issue turns on the determination of the Company's motive in discharging Alarcon, which is essen- tially a question of fact; namely, the test is whether the business reason or the protected union activity is the mov- ing cause behind the discharge. In applying this test, the total setting in which the discharge occurred is to be consid- ered.4 In defending against the charge that Alarcon was termi- nated because of his activities on behalf of the Union, Re- spondent introduced evidence to show that the sole reason for his discharge was his theft of over $900. Alarcon' s taking and keeping these cash discounts in connection with his purchases on company credit cards of diesel fuel stands uncontroverted in the record. It is true that diesel fuel purchases were also made by Frank Alarcon and Plumley during this same period of time and that they kept cash discounts in the amounts of $323.25 and $22.50, respectively, but were not fired. Little weight is given that factor.5 It is believed that such evidence is not material with respect to proving that Antonio Alarcon was discriminatorily discharged within the meaning of Section 8(a)(3). Such evidence is not only res inter alios acta, but also irrelevant, inasmuch as it has not been shown that these three truckdrivers were each privy to the acts of the other's defalcations inter sese. Moreover, the fact that Respondent did not discharge Frank Alarcon and Plumley does not establish that Respondent's motive in discharging Antonio Alarcon was discriminatory, in the context of the para- mount consideration that his retaining over $900 in cash discounts was the reason for his discharge .6 Contrary to the contention of the General Counsel, no discriminatory moti- vation is found in the actions of the Respondent vis-a-vis Antonio Alarcon, as the reason for his discharge was based on valid business considerations. Moreover, the General Counsel has failed to show that Respondent was aware, at the time it discharged Antonio 3 N.L R B v. Jones & Laughlin Steel Co, 301 U.S 1; N L.R.B v. Ace Comb Co, 342 F.2d 841, 847 (C.A. 8, 1965). 4 N.L.R B v. Ayer Lar Sanitarium, 436 F.2d 45, 50 (C A. 9, 1970), Santa Fe Drilling Company, v. N L.R B., 416 F 2d 725, 730 (C.A. 9, 1969). 5 Ramirez, who solicited fellow employees to sign union cards, was not discharged. 6 See Nachman Corp v. N.L RB, 337 F 2d 421, 423, 424 (C.A. 7, 1964). 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alarcon on October 4, that any cash discounts were re- tained by Plumley and Frank Alarcon. In fact, the evidence is otherwise, revealing that it was not until December, fol- lowing Antonio Alarcon's discharge on October 4, that Re- spondent learned Frank Alarcon and Plumley also had retained cash discounts. Furthermore, the Board and the courts, in other cases where it has been found that a respondent has committed unfair, labor practices, have considered a respondent's ani- mus or hostility toward union and/or protected activities. Evenhanded justice would require that where there is not sufficient evidence produced by the General Counsel to show such union bias, that this factor should be considered in evaluating whether the Respondent in this proceeding has committed any unfair labor practices. The evidence produced by the General Counsel fails to raise even a suspi- cion that Respondent was motivated by other than legiti- mate business reasons in discharging Alarcon for his dishonesty.7 Pertinent in this regard is the fact that a consid= erable number of the Company's employees were union members. Even assuming that Respondent's reasons for ter- minating Alarcon are suspect, it is not the Respondent's burden to prove that it discharged him for just cause. The burden is on the General Counsel to establish' a discrimina- tory motive for the termination by a preponderance of the evidence if a violation is to be found. This the General Counsel has failed to do.8 Consequently, it shall be recom- mended that the 8(a)(3) allegations in the complaint be dismissed.9 Section 8(a)(1) The evidence delineated above are the incidents alleged by the General Counsel to be violations of Section 8(a)(1) of the Act. The cited incidents are Garrett, the Respondent's vice president, in an amicable conversation with Ramirez, a truckdriver, inquiring what his " feelings" were toward the Union and Ramirez' reply that the Union's wage scale, health and dental benefits appealed to him, whereupon Garrett stated that the Company was unable to afford it. During the course of this friendly conversation, Garrett also told Ramirez that the present operation and maintenance costs of their trucks was so expensive that they were considering contracting out their hauling operations to an independent trucker. Garrett added that the Company was considering a pension plan for the truckdrivers and they should be patient and wait a while. Frank Alarcon testified that Garrett told him he did not want the Union to which comment Alarcon stated he didn't either but he had to go along with what his fellow truckdri- vers wanted. During this conversation, Garrett also men- tioned that other companies had left the Bay Area because they were unable to pay the high wages. Plumley testified that Garrett said in September 1972, he felt the same way about the Union as he felt a year and a half ago when the Union lost a Board-conducted election held in May 1971. Antonio Alarcon testified that Garrett asked him around, September 15, 1972, if he had signed a union card and when he answered he had, Garrett asked him who had given him the card and then withdrew the question, telling Alarcon he did not care to know who it was. Garrett, according to Alarcon, asked him if he had voted for the Union in 1971, and he replied he had. Also, testified Alarcon, Garrett threatened not only to sell- the trucks, thereby putting them out of their jobs, but also to fire all the truckdrivers if they should join the Union. However, these alleged statements were made before the first election of May 26, 1971.10 Gar- rett denied that any of these incidents testified to by Anto- nio Alarcon ever occurred. The General Counsel alleges that the above incidents constitute threats, promises of benefits, and interrogation by Garrett for the purpose of defeating the Union in the impending election. Antonio Alarcon's testimony that Garrett interrogated, intimidated, and threatened him, in the blatant manner he described above, must be evaluated in the light of the evi- dence in this record, and by an analysis of the realities of the situation. Such evaluation leads to the conclusion that Garrett's denial that these incidents ever occurred is cred- ited. It strains one's credulity to believe that the vice presi- dent of this size company such as this one, having the responsibilities Garrett had, and evidently familiar with what he could and could not tell an employee, after having gone through another Board election himself with the Union herein 18 months before, would be so incredibly naive as to senselessly compromise his company by these admittedly crude and damaging questions and threats." Accordingly, not only are Garrett's denials credited, but also, these alleged statements were made in May 1971, and are, therefore, barred by the statute of limitations. Even in cases where the background circumstances sur- rounding a discharge may create the suspicion that the dis- charge was illegally motivated, which is not the situation here, the General Counsel still has the burden of showing (1) that the Company had knowledge of the employee's union activity; and (2) that the employee was discriminato- rily chosen to be discharged because of his union activity which requires the General Counsel to show that the em- ployee would have been treated differently in the absence of union activity.12 The General Counsel failed to show these indicia by a preponderance of the evidence. Moreover, as stated above, the Company has not been shown to harbor union animus. The question remains as to whether Respondent coercive- ly interrogated these employees within the meaning of Sec- tion 8(a)(1). In determining this, the following factors must be considered: The background in which the conversation 10 Alarcon was confused as he failed to distinguish between what he claimed Garrett told him before the 1971 election and the 1972 election. 11 Garrett was also advised by his attorney what he could and could not say to his employees during the course of the Union's campaign. In answer 7 This is corroborated by Ramirez' testimony with respect to what Poelstra to a question whether he asked Ramirez if he signed a card, he testified: "I told him on October 5, the day after Alarcon's discharge, as to the fuel do not ask any employees whether or not they signed a card I've been better discount situation. educated to do such a thing." 8 G. W. Davis Corp, 202 NLRB No 35. 12 N.L.R.B. v. Materials Transportation Co, 412 F.2d 1074, 1078 (C.A. 5, 9 Noggle Co. v. N.L R.B., 478 F.2d 1144 (C.A. 8, 1973) 1969) MISSION CITY PRODUCTS CORP. took place, the time and manner under which it was made, and all of the surrounding circumstances necessary to con- clude whether such incidents and conversations had the coercive characteristics proscribed by Section 8(a)(1) of the Act.13 Interrogation of employees by their. employer about union matters is not per se a violation of the Act. Whether it tends to interfere with, restrain, or coerce employees in their organizational rights depends upon the facts of each case, but the Board and the courts have delineated certain factors which should be considered. In Bonnie Bourne, an individual d/b/a Bourne Co. v. N.LR.B., 332 F.2d 47, 48 (C.A. 2, 1964), the Court set forth five factors to be consid- ered in weighing the lawfulness of company interrogation of employees: (1) The background, i.e., is there a history of employer hostility and discrimination? (2) The nature of the information sought, e.g., did the interrogator appear to be seeking information on which to base taking action against individual employees? (3) The identity of the questioner, i.e., how high was he in the company hierarchy? (4) Place and method of interrogation, e.g., was em- ployee called from work to the boss's office? Was there an atmosphere of `unnatural formality'? (5) Truthfulness of the reply. Judge Waterman of the Court of Appeals for the Second Circuit commented on the Bourne decision, stating that: "Under our decisions [referring particularly to Bourne] in- terrogation, not itself threatening, is not held to be an unfair labor practice unless it meets certain fairly severe standards .... At the same time, these decisions have looked also to the rank of the interrogator in the company hierarchy and to the setting in which the questioning took place." He concluded, "In view of the apparent brevity and amicable atmosphere of the questioning, we hold that the `fairly se- vere standards' required for a finding of coercive interroga- tion have not been met." 14 Based on these indicia, and assuming arguendo that Garrett did interrogate employees, although many of the questions were rhetorical and not asked in order to seek information for retaliation, it would appear that the alleged interrogation in this case was not coercive and does not amount to interference, restraint, or coercion within the meaning of Section 8( a)(1).15 Before inquiries as to union membership and statements by employers can be held to be unfair labor practices, they must be shown to have some relation to the coercion or restraint of the employees in their right of self-organization. Infrequent, isolated, sporadic and innocuous inquiries of a few employees, as here, standing alone, do not constitute interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act.t6 Moreover, there is no evidence in the record of illegal hostility to unions by the Company. 13 United Fireworks Co., Inc., v. N.L R B, 252 F.2d 428, 430 (C.A. 6).14 N.L R.B. v. I Posner, Inc., 342 F.2d 826, 828 (C.A 2, 1965), reversing 145 NLRB 1190. is See Clermont's, Inc., 154 NLRB 1397, 1401.16 N.L.R.B. v. Armour & Co, 213 F.2d 625 (C.A. 5); Burke Gold Equipment Corp. v. N.LR.B., 384 F.2d 943 (C.A. 6). 283 Furthermore; the conversations of Garrett, With the em- ployees named above, were no more than impersonal, in- consequential, and casual conversations.17 As was said as early as 1954 in Blue Flash Express, Inc., 109 NLRB 591, 597. There are, of course, instances of interrogation which can be properly regarded as isolated, casual, and too inconsequential in their impact to constitute a violation of the Act or to warrant a Board remedy. The impact of these alleged interrogations on the employees determine its legality and there is nothing in the record to show, or from which it might be inferred, that these inci- dents were interpreted by these various employees as being coercive within the meaning of Section 8(a)(1). Cogently corroborative of this conclusion is the fact that the Union won the election. Moreover, these incidents were neither threatening nor conducted otherwise than in a friendly, per- functory and casual manner. Furthermore, the record is devoid of any evidence that it had the slightest effect in actually preventing or discouraging membership in the Union. Finally, the testimony with respect to employee interroga- tions detailed above, were de minimis and did not interfere with, restrain, or coerce these employees within the meaning of Section 8(a)(1) of the Act. Applying these concepts to the alleged interrogations incidents, it is found that these inci- dents did not violate Section 8(a)(l) or that the issuance of a remedial order, under the circumstances here present, would effectuate the policies of the Act, as these queries do not seem injurious to the employees' untrammeled rights to organize, as guaranteed by Section 7 of the Act.18 The re- sults of the election appear to corroborate this conclusion. The allegations in the complaint that Respondent threat- ened reprisals against employees for engaging in union ac- tivities or for being union adherents and that it promised them increased benefits or that it would not bargain with the Union if they selected it as their representative, have not been shown affirmatively by a preponderance of the evi- dence. Nor does the record support the allegations of the complaint with respect to these alleged unfair labor practic- es, either by direct proof or reasonable inferences, as isolat- ed instances cannot be drawn upon to establish a violation where the totality of the Respondent's conduct conforms not only to the dictates of the statute but does not violate the employees' statutory rights.19 Nor do the statements made by Garrett reasonably lend themselves to an interpre- tation, considering the entire record, that they contain any warning, threat of reprisal, or promise of reward within the meaning of Section 8(a)(1). In fact, the tenor of the testimo- ny indicates affirmatively that not only were the employees free to voice their support of the Union, but that the em- 17 See Johnnie's Poultry Co., 146 NLRB 770, 775; The Regulation of Cam- paign Tactics, 78 Harv. L. Rev. 38, 107 Professor Bok states at p. 111 of his article that "one may well be reluctant to find that an [employer] has broken the law on the basis of inadvertent or uncalculatmg behavior which has created no more than a speculative risk of intimidating employees `and that in cases of that sort' one may justly question whether much can be done by faulting the employer long after the conduct in question has occurred." 18 See Commercial Printing Company, 99 NLRB 469; Silver Knit Hosiery Mills, Inc., 99 NLRB 422,424,425; West Texas Utilities Company, 85 NLRB 1396, 1400 19 See N L.R B v. Popeil Brothers, Inc, 216 F.2d 66, 68 (C. A. 7). 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees even initiated conversations themselves with Gar- rett and Poelstra in some instances , regarding their union feelings with no apparent fear of reprisal on the part of the Respondent . It is found therefore , that there is an insuffi- ciency of evidence showing any reprisals, promises of in- creased benefits or threats not to bargain with the 'Union. The record , therefore, fails to sustain these 8(a)(1) allega- tions of the complaint. In sum, the essence of the evidence with 'respect to the alleged violations of Section 8(a)(1) is reduced to the Gener- al Counsel picking out a few random, minimal, and isolated incidents . It is not too unreasonable to characterize these incidents as such because the record does not reveal a pat- tern of flagrant conduct on Respondent's part. Under such circumstances, the incidents were isolated.20 CONCLUSIONS OF LAW 1. The Mission Clay Products Corporation is engaged in commerce within the meaning of the Act. 20Armco Steel Corp . v. N.L.R.B., 344 F.2d 621 , 625 (C.A. 6, 1966) 2. Respondent is a labor organization within the meaning- of Section 2(5) of the Act. 3. The Respondent has not committed unfair labor prac- tices within the meaning of Sections 8(a)(1), 8(a)(3) and 8(a)(4) of the Act.21 In view of the foregoing conclusions, and upon the entire record, it is found that the evidence warrants no finding that the Respondent committed unfair labor practices within the meaning of Section 8(a)(1), (3), and (4) of the Act.22, It will, therefore, be recommended that an Order issue, dismissing the complaint in its entirety.23 21 Not a scintilla of evidence was elicited by the General Counsel with respect to the 8 (a)(4) allegation in the complaint that Antonio Alarcon was discharged because he gave testimony to an agent of the Board. 22 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 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. 23 N.L.R.B. v. Great Dane Trailers, Inc, 388 U.S. 26, 33-34; Austen & Wolf Refrigeration Co., 202 NLRB 272.