Precision Clutch, Inc.

National Labor Relations Board - Board DecisionsJun 6, 1975

218 N.L.R.B. 306 (N.L.R.B. 1975)

306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Precision Clutch, Inc. and International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America (UAW). Cases 7-CA- 11355 and 7-RC-12530 June 6, 1975 1 The General Counsel 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 are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION, ORDER, AND, CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND KENNEDY On January 6, 1975, Administrative Law Judge Ralph Winkler issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions and a supporting brief, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent Precision Clutch, Inc., Detroit, Michigan, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order. Further, as we adopt the Administrative Law Judge's conclusions with respect to the objections to the election conducted on August 6, 1974, in which one vote was cast for Petitioner and four against, with no challenged ballots, we shall certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), and that said labor' organization is not the exclusive represent- ative of all the employees, in the unit herein involved, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. 218 NLRB No. 55 DECISION STATEMENT OF THE CASE RALPH WINKLER, Administrative Law Judge: Hearing in this consolidated matter was held in Detroit, Michigan, on November 14, 1974. The unfair labor practices case was initiated by a charge filed by the UAW (the Union herein) upon which the General Counsel issued a complaint on October 17, 1974, alleging violations of Section 8(a)(1) and (3) of the Act. Respondent filed an answer denying the violations alleged. The representation phase of this proceeding is based on a petition filed by the Union on July 1, 1974, pursuant to which a consent election was conducted on August 6, 1974. The tally of ballots shows that in a unit of approximately 19 eligible voters, one ballot was cast for the Union, four ballots were cast against the Union, and no ballots were challenged. The Union filed objections to conduct affecting the election and then withdrew some of the objections, and on October 17, 1974, the Regional Director directed that the remaining objections be consolidated for hearing with the instant complaint case. Upon the entire record, including my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT EMPLOYER Precision Clutch, Inc., a Detroit corporation, has its principal office and place of business in Detroit, Michigan, where it is engaged in the manufacture and sale of rebuilt clutches, water pumps, brake disc pads, and related products. I find, as the parties agree, that Respondent meets the Board's jurisdictional standards and that Respondent is engaged in commerce within Section 2(6) and (7) of the Act. U. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), herein called the Union, is a labor organization within Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES AND OBJECTIONS All dates are in 1974 unless otherwise stated. The complaint alleges that Respondent (a) unlawfully discharged Michael Johnson and Marcus Gray on May 20; (b) coercively interrogated employees on May 20 and implied that their union activities were being kept under surveillance; and (c) created the impression that it would be futile to select the Union as bargaining representative PRECISION CLUTCH, INC. 307 and threatened employees with loss of jobs if the Union won the upcoming election. The objections are substantial- ly the same as the unfair labor practice allegations described in preceding (c). The other alleged unfair labor practices antedate the representation petition of July 1 and are therefore beyond the purview of objections in this case. The Meal Electric and Manufacturing Company, 134 NLRB 1275, 1378 (1961). Johnson and Gray were hired in November 1973 and January 1974, respectively. Whatever organizational activi- ties there were began with the receipt by Johnson of a number of union authorization cards on May 13 or 14; he gave some to Gray and each signed a card on May 16. Johnson and Gray testified that they solicited signatures of other employees on union cards during lunch period on May 17 (Friday) at a local eating establishment regularly patronized by employees and located about a quarter mile from Respondent's plant. Glenn Chambers was present at the time and Johnson testified that Chambers observed him distributing cards on this occasion. Glenn Chambers is an employee of Respondent and the son of Hyrum Chambers, the Respondent's president and owner. The General Counsel does not claim that Glenn Chambers is a representative or agent of Respondent or that he is other than a rank-and-file employee. The following Monday morning (May 20), Plant Manag- er Robert Greene discharged Johnson and Gray. Later that same day, Johnson and Gray turned in the union cards signed by them and other employees to Union Representa- tive Forest Hudson. Johnson testified that Greene told him on the discharge occasion that he was being terminated because Respon- dent President Chambers had learned of Johnson's union activity and was "angry" about the matter but "officiall y, it would be because of excessive tardiness and absence." Greene's credible version of the discharge is that as he informed Johnson that Respondent would have to let Johnson go, Johnson interjected that "it's because of my union activity, isn't it?" Greene then explained to Johnson that "actually, you were told you were going to be dismissed the next time you came in late" and Greene also mentioned other contributing reasons for the discharge. Johnson thereupon told Greene that he (Johnson) had signed a union petition and would be "a pain in Mr. Chambers' side as long as he could" and that employee Mrs. Evelyn Allen was also involved in the union matter. Johnson and Greene shook hands at the meeting's end, and Greene asked Johnson to send in Gray. Johnson accordingly notified Gray and also mentioned that he thought Gray was "getting fired." As Gray then entered the office, Greene said, "you know why you're here," and Gray indicated by nodding that he knew he was being terminated. Gray testified that he did not ask the reason for the discharge and that he left without saying anything at all. Later in the morning of the Johnson-Gray discharges, Greene called Mrs. Evelyn Allen to the office.' (As stated above, Johnson had mentioned to Greene that Mrs. Allen was involved in union activities. The extent of her activities, so far as the record shows, is that she signed a 1 Although Allen testified that this meeting with Greene took place union card in her car on May 17, away from the plant premises.) Mrs. Allen testified that Greene thereupon asked her to go home until Chambers could talk with her, and that Greene called her at home early that afternoon and asked her to return to the plant to see Chambers, which she did that day. Testifying to an ensuing conversa- tion with Chambers, Allen stated that Chambers asked whether she had anything "to do with getting a union in the place" and that he would "have to let me go" if she had. Allen disclaimed to Chambers that she had participat- ed in such activity, according to her testimony, and she testified that Chambers believed her and said she could return to work. She did not return, however, until 2 days later. Greene testified that he spoke with Allen after discharg- ing Johnson and Gray earlier that day. According to Greene's credible account, he mentioned to Allen that Johnson "was telling me about a union" and he asked whether Allen knew anything about it. Allen replied, according to Greene, that she had heard of the Union. Allen meanwhile told Greene that her brother-in-law had just died, and Greene testified that Allen seemed "very nervous" and that he suggested that she go home for such reason. Mrs. Allen corroborated the fact of her"nervous- ness" that day and she testified she was upset "all week long" because of the bereavement. Greene testified that he informed Chambers of the discharges and of Johnson's statement about the Union and that Johnson had indicated Allen's involvement. Chambers told Greene that he "could not understand why they would want a union in there, especially Evelyn, you know" and that he "would like to talk to her." Greene called Allen and asked her to come to the plant to see Chambers and he also testified to having mentioned to Mrs. Allen that Chambers "was upset at the news that she was involved with the Union." Upon Mrs. Allen's return to the plant that afternoon Chambers asked her ' why she wanted a union, that he "couldn't understand it, because of all the benefits that we had already given. I didn't know what else I could give. I said, `why do you want it? I don't understand it.' As indicated above, the Union filed a representation petition on July 1, and the election, was conducted on August 6. At an employee meeting called by Respondent during this preelection period, Chambers told the employ- ees, according to his credible testimony and in substantial accord with Allen's, "I cannot promise you anything, all I can tell you is actual facts." He went on to tell the employees that concurrently with Respondent's past growth, Respondent had "voluntarily" given them addi- tional benefits - insurance, uniforms, holiday pay - and "everything that we possibly could" and that he "didn't know what the Union could do for them more than what I had already done as president of the corporation." Mrs. Allen also testified and Chambers credibly denied that before the discharges, I am satisfied and find that it occurred afterward. 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chambers further said that the Union "would close the place down." 2 More about the Discharges Denying that it unlawfully discharged Johnson and Gray, Respondent claims that the reason for terminating them was their employment record, with particular reference to attendance delinquencies. Respondent con- cedes, through the testimony of Respondent President Chambers, that Johnson and Gray were "very capable people." Chambers testified without challenge that by approxi- mately January 1974 Respondent began suffering a steady decline in business and a consequent loss of earnings, and that such adverse conditions brought about a reduction in the employee complement. In January 1974 Respondent had approximately 30-35 employees; the tally of ballots in the August 6 election showed a voting unit of approximate- ly 19 employees. New employees serve a 90-day probationary period, and Respondent has had a policy, admittedly "pliable," of terminating probationers who either are "late 3 days" or have "three unexcused absences." With business worsen- ing, according to Chambers, Respondent "had to tighten up in everything" including a stricter enforcement as to attendance of all employees. The record shows that, apart from the cases of Johnson and Gray, Respondent dis- charged three probationers and two regular employees for tardiness or absences or both during the period from December 6, 1973, until June 14, 1974. It is against this background that Respondent asserts that it discharged Gray and Johnson on May 20 primarily for being late after warnings. Johnson testified that he had a "definite problem" with tardiness during •the period of January-March 1974. He further admitted that he had been absent on several occasions, that he was among a group of nine employees reprimanded by Chambers about returning late from lunch, that Greene and Chambers had warned and reprimanded him on several occasions concerning his attendance delinquencies, that Chambers had specifically warned him in February or March that he would be discharged if he were late again, that Greene also told him about a month before his discharge that Chambers had complained to Greene that Johnson was spending too much time in another of Respondents buildings, and that all of these foregoing warnings and reprimands antedated any union activity. Johnson testified on direct examination that he was not late or absent on the day of his discharge and that he did not recall having been late or absent3 the preceding week. He later testified, however, that he was "late again" on his discharge date, and the record further shows that he also reported late on Friday (May 17) and that he left work early a few days before. During less than 7 months' employment, Johnson reported late for work approximate- ly 39 times, returned late after lunch approximately 15 times, left early about 8 times, and had unexcused absences on 3 days. Gray testified that he was among the group of employees whom Chambers had reprimanded about tardiness, that he thereafter received a 2-day suspension for an unexcused absence within a month of his discharge, and that he was tardy on five subsequent occasions . The record shows that he was late on Friday (May 17) and had left work early 2 days before. In less than 5 months employment Gray reported late for work 18 times, returned late from lunch approximately 17 times, left early approximately 9 times, and had 2 days unexcused absences. No . showing or claim was made that Respondent retained other employees with attendance records compa- rable to or even approximating Gray's and Johnson's in the respects stated above. Chambers and Greene testified that they had previously discussed the employment records of Johnson and Gray and that Chambers had decided to, discharge Johnson and Gray should they be tardy once more. And Greene testified that he accordingly discharged Johnson and Gray upon learning on May 20 that they had been late again. Both Chambers and Greene testified they had no prior knowledge of any union activities and that it was not until Johnson mentioned the subject at his exit interview that they even heard of such activity. Conclusions The discharges of Johnson and Gray on Monday following their distribution of union cards on Friday is a suspicious circumstance. Nevertheless, I am convinced upon consideration of this record and my demeanor observations of all witnesses that this timing is coincidental rather than causal. I find, in accordance with the credible testimony of Greene and Chambers concerning the discharge events as well as the matters concerning Mrs. Allen, that Respondent had no knowledge or suspicion of Johnson's and Gray's or any other union activities until Johnson mentioned a union "petition" on the occasion of his discharge. Indeed, one might speculate, if such were permitted, whether Johnson's and Gray's interest in a union stemmed from their respective employment records. Speculations aside, however, I fmd' that Respondent discharged them because of their continued delinquencies and not for any union considerations. See Bayliner Marine Corporation, 215 NLRB No. 11 (1974). Greene and Chambers did unlawfully interrogate Mrs. Allen concerning the Union and they engaged in further restraint and 'coercion by summoning Allen to see Chambers and telling her that Chambers was "upset" at her union involvement. I also fnd that Chamber's preelection speech did not involve any illegality or constitute basis for setting aside the August 6 election. An employer is entitled to tell his employees of past benefits granted them without a union and that he doesn't know what more a union could do for them. This is neither threat nor promise of benefit, and clearly within an employer's 2 Mrs. Allen testified that Greene once asked her whether she had do not allege this to have occurred after the filing of the representation, anything to do with the Union. The record does not show and the objections petition. 3 The record is hereby corrected to show that Johnson replied, "Not that I recall," when asked whether he was late the week before (p. 19, 1.24) PRECISION CLUTCH, INC. 309 right of expression in an organizing context . N.L.R.B. v. posted by Respondent immediately upon receipt thereof, Virginia Electric Power Co., 314 U.S. 469, 477 (1942). and be maintained for 60 consecutive days thereafter, in CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3 Respondent has violated Section 8(a)(1) of the Act by coercively interrogating Allen concerning union matters and by otherwise restraining and coercing her concerning her union activities. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. 5. Respondent has not violated that Act in any other respects alleged in the complaint. 6. Objections 3, 4, and 5 in Case 7-RC-12530 have not been established. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices violative of Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and post appropriate notices in order to effectuate the policies of the Act. I shall also recommend that the objections be overruled in Case 7-RC-12530 and that an appropriate certificate be issued on the basis of the August 6, 1974, election. 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 4. Respondent, Precision Clutch, Inc., Detroit, Michigan, its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Coercively interrogating employees or otherwise restraining or coercing them concerning union sentiments or activities. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Post at its plant in Detroit, Michigan, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent, shall be 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 7, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. IT IS FURTHER RECOMMENDED that an appropriate certificate be issued on the basis of the results of the August 16, 1974, election. 4 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, 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. 5 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The Act gives all employees these rights: To engage in self-organization To form, join or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain' from any and all of these things. WE WILL NOT do anything to interfere with these rights. More specifically, WE WILL NOT interrogate or otherwise restrain or coerce employees concerning their union sentiments and activities. Our employees are free to join or assist or to refrain from joining or assisting International Union, United Automo- bile, Aerospace and Agricultural Implement Workers of America (UAW), or any other union. PRECISION CLUTCH, INC.