Reliance Universal, Inc.

National Labor Relations Board - Board Decisions

Oct 2, 1973

206 N.L.R.B. 255 (N.L.R.B. 1973)

RELIANCE UNIVERSAL, INC. 255
Reliance Universal , Inc. and International Chemical
Workers Union, AFL-CIO . Case 5-CA-5763
October 2, 1973
DECISION AND ORDER
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the complaint 1 e, and it
hereby is, dismissed insofar as it alleges unfair labor
practices not found herein.
By CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On March 15, 1973, Administrative Law Judge Ivar
H. Peterson issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a supporting brief, and the Respondent filed
an answering brief in opposition to the General
Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge as mod-
ified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Reli-
ance Universal, Inc., Roanoke, Virginia, its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Coercively interrogating its employees with re-
gard to their union activities.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them under Section 7 of the
National Labor Relations Act, as amended.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its place of business in Roanoke, Virgin-
ia, copies of the attached notice marked "Appen-
dix." 2 Copies of said notice, on forms provided by the
Regional Director for Region 5, after being duly
signed by Respondent's authorized representative,
shall be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by it to insure that
said notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director for Region 5, in
i The General Counsel has excepted, inter aka, to the failure of the Admin-
istrative Law Judge to find certain 8 (a)(1) violations alleged in the complaint.
Based upon the uncontradicted evidence of record, we find the following to
constitute unlawful 8 (a)(1) interrogation: (1) At the end of June 1972, the
Respondent's supervisor, Tony Marsico, approached employee Roger Nip-
per, and asked him how he felt about the Union. Nipper replied that he could
see the reasons for the men in the plant wanting a union . Marsico did not
deny that this incident occurred but merely stated that he "may have been
hot when this conversation occurred because he was rushed at the time;" (2)
in late July or early August 1972, Marsico asked employee Jack Dent how
he [Dent] stood on the Union to which Dent replied that "if the Union didn't
get but one vote, that one vote would be mine." Marsico testified that he
didn't recall this particular conversation , but he did not deny that the fore-
going conversation occurred The Administrative Law Judge found that this
latter incident was isolated and de minimis. We disagree on both counts,
particularly since we have found another instance of unlawful interrogation
to have taken place . Thus, we find that this interrogation also violated Sec.
8(a)(l) of the Act.
2 In the event that this 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
WE WILL NOT coercively interrogate our em-
ployees with, regard to their union activities.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them under Sec-
tion 7 of the National Labor Relations Act.
RELIANCE UNIVERSAL, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive,
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
206 NLRB No. 45
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board 's Office, Federal Building, Room 1019 , Charles
Center, Baltimore , Maryland 21201, Telephone 301-
962-2738.
DECISION
STATEMENT OF THE CASE
IVAR H. PETERSON , Administrative Law Judge : I heard this
case in Roanoke, Virginia, on November 17, 1972, upon the
complaint issued by the Regional Director for Region 5 on
October 12 , based upon charges filed by International
Chemical Workers Union , AFL-CIO, on September 5.
Briefly stated, the complaint alleged that the Respondent
violated Section 8(a)(1) of the Act by the action of its super-
visor, Tony Marsico, in questioning the employees concern-
ing their membership in or activities on behalf of the Union,
creating the impression that the union activities of the em-
ployees were under surveillance , questioning an employee
about the authenticity of his union authorization card, and,
by the action of its president , William Crisp , in terminating
the employment of Jack Dent because of his union activities
and/or because he appeared at the hearing in a representa-
tion case on behalf of the Union (Case 5-RC-8184). In its
duly filed answer , the Respondent admitted certain jurisdic-
tional allegations in the complaint but denied the commis-
sion of any unfair labor practices.
Upon the entire record in the case and my observation of
the witnesses as they testified , and a careful consideration
of the brief filed by the Respondent on December 29, I
make the following:
FINDINGS OF FACT
I JURISDICTION
The Respondent, a Virginia corporation, has a place of
business in Roanoke, Virginia, where it is engaged in the
manufacture of paints,'varnishes, and coatings. It employs
approximately 55 employees, of whom 6 at the time here
material were truckdrivers. The Respondent admits and I
find that it sold and delivered products to points directly
outside the Commonwealth of Virginia valued in excess of
$50,000 during the 12 months preceding issuance of the
complaint and, during the same period, purchased and re-
ceived materials directly from outside the Commonwealth
of Virginia valued at in excess of $50,000. The Respondent
admits and I find that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act. I further find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In December 1970, pursuant to a petition for an election
filed by the Union, the Regional Director conducted an
election which the Union lost. In June 1972, Jack Dent, an
employee, telephoned Everett Coates, a representative of
the Union, located in Baltimore, stating that he believed the
plant employees were ready to organize and requested that
Coates send him some authorization cards. Coates did so
and Dent obtained signatures on some 27 authorization
cards. The Union filed a petition on July 24 and the parties
entered into a stipulation for a consent election on August
17. The election was held on October 6 and the Union lost
by a vote of 32 to 20. No objections were filed. In the
meantime, however, the Union on September 5 filed a
charge against the Respondent on behalf of Dent, alleging
that he had been unlawfully terminated. The Regional Di-
rector issued a complaint on October 12, alleging Dent had
been unlawfully terminated and that the Respondent had
also engaged in other conduct violative of Section 8(a)(1).
We will first consider the termination of Dent.
B. The Termination of Dent
Dent was first hired early in February 1963 as a helper in
the stain department. He resigned in the latter part of Janu-
ary 1964 and reapplied for employment as a stain depart-
ment helper late in November 1967, and was employed.
Late in May 1968 he resigned and early in October 1969 was
reemployed. Some time thereafter he was transferred to the
grinding department because he allegedly was having trou-
ble getting along with the employees in the stain depart-
ment.
It seems that Dent continued to have difficulties with
fellow employees in the grind department and he was dis-
charged on April 7, 1970, after he and a foreman named
Grey had engaged in a fight. The foreman was also dis-
charged. While management was investigating this situation
it discovered that Dent also had a fight in the stain depart-
ment with a fellow employee.
On September 24, 1970, Dent again applied for employ-
ment with the Respondent, stating that while he was willing
to take any kind of work, his preference was for a job in the
plant. However, President Crisp told him that he would not
be hired back into the plant because of his prior record, but
he did agree to hire him as a truckdriver. Sometime in July
1972, Dent met with Crisp and requested a transfer back
into the plant and, according to Respondent' s witnesses, for
the first time told Crisp of his diabetic condition and the use
of insulin by injection.] Crisp, being concerned about the
use of insulin , requested that Preston Perkins, plant superin-
tendent, and Tony Marsico, assistant plant superintendent,
investigate what effect the use of insulin had on an individu-
al driving a truck in interstate commerce. During the course
of this investigation, one Arnold Montgomery was hired as
a truckdriver on July 26 and Dent was assigned to train him
by showing him the truck route. Dent was also instructed
not to drive a truck until the investigation was completed.
Marsico, during the investigation, telephoned Dent's per-
sonal physician, who confirmed that Dent was in fact using
insulin for the treatment of his diabetic condition. Marsico
called a local trucking company and obtained a copy of the
regulations of the Department of Transportation relating to
drivers of vehicles engaged in interstate commerce. These
1 Dent testified he began taking insulin in September 1971, and that it was
his recollection that he advised Crisp of this in March 1972
RELIANCE UNIVERSAL, INC. 257
regulations disclosed that a diabetic person with an "estab-
hshed medical history or clinical diagnosis of diabetes melli-
tus currently requiring insulin for control," was not allowed
to drive a vehicle.
During the week of August 6, after having completed
their investigation of Dent's situation, Crisp, Marsico, and
Perkins met to determine what action should be taken. They
decided they had no choice but to terminate Dent as a
driver inasmuch as Department of Transportation regula-
tions prohibited his driving. Marsico mentioned that Dent
had expressed a desire to go back to work in the plant, but
Crisp stated that Dent could not go back to the plant be-
cause of his past record there. They concluded they had no
alternative but to terminate him.
The Respondent had been instructed by its labor consult-
ants, because of the current union campaign, to clear all
termination with them. The consultants did, later that week,
review the situation. However, Perkins had been informed
by Dent that he was going on sick leave on August 14 for
admission to the hospital for treatment of a stomach ail-
ment. Because of this, a decision was made not to terminate
Dent until he was out of the hospital and able to work. Dent
appeared at the representation hearing on August 17 as the
representative of the Union. On September 5 Dent came to
the plant ready to return to work. He was informed by Crisp
that inasmuch as he could no longer drive a truck because
of the Department of Transportation regulations and in
view of the fact that his previous plant record precluded his
being transferred to the plant, it was necessary to terminate
him.
C. Conclusion
deprive Dent of his hospitalization and sick leave benefits
the decision to terminate him would not be effectuated until
he returned to the plant ready and able to work. So far as
appears, the Respondent was not aware of his activity in
obtaining signed authorization cards. According to Crisp,
the first knowledge he had of Dent's union activity was
when Dent appeared at the representation hearing on Au-
gust 17. Sometime late in July or early August Dent had a
conversation with Marsico during which, according to
Dent, Marsico "asked me how I stood on the Union," to
which he replied that "if the Union didn't get but one vote,
that one vote would be mine." To this, so Dent testified,
Marsico stated that he could not understand why employees
"were so strong for it this time and being dead set against
it last time." When questioned about this conversation,
Marsico stated that he could not recall it.
Inasmuch as Dent's termination was lawful and the fore-
going remark of Marsico, even if considered a violation of
Section 8(a)(1), is isolated and borders on the de menimis, the
complaint will be dismissed in its entirety.
CONCLUSIONS OF LAW
1. The Respondent, Reliance Universal Inc., Roanoke,
Virginia, is an employer engaged in commerce within the
meaning Section 2(2), (6), and (7) of the Act.
2. International Chemical Workers Union, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of
the Act.
3. The Respondent has not engaged in any unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the Act.
In my view, the General Counsel hag not sustained the
burden of proving that Dent was terminated because of his
union membership and/or activity. I am persuaded that he
was terminated because, as a user of insulin he could no
longer drive a truck for the Company, and, because of his
prior record of fighting in the plant, he could not be re-
turned to the plant. President Crisp, having received the
Union's election petition some 2 weeks prior to the confer-
ence relating to Dent, had the Repondent's labor consult-
ants look into the matter. Moreover, Perkins was aware that
Dent was going on sick leave the following Monday, August
14, and it was accordingly determined that in order not to
ORDER2
On the basis of the foregoing findings of fact and conclu-
sions of law, and pursuant to Section 10(c) of the Act,
It is hereby ordered that the complaint herein be, and it
hereby is dismissed.
2 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Laobr 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.