Richardson Brothers, Inc.Download PDFNational Labor Relations Board - Board DecisionsMay 28, 1970182 N.L.R.B. 922 (N.L.R.B. 1970) Copy Citation 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Richardson Brothers , l,Inc and Local 800, United Furniture Workers of America , AFL-CIO Cases 30-RC-1 124 and 30-CA-1121 May 28, 1970 DECISION, ORDER AND DIRECTION OF SECOND ELECTION By MEMBERS FANNING, BROWN, AND JENKINS On March 6, 1970, Trial Examiner Thomas A Ricci issued his Decision in the above entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached`Trial Examiner's Decision He further found that certain conduct by the Respondent interfered with and affected the results of the election of October 16, 1969, in Case 30-RC-1124, and recom- mended that the election be set aside and that a second election be directed Thereafter, the Respondent filed exceptions and a supporting 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 powers in con- nection with this case to a three-member panel The Board has reviewed the rulings of the Trial Exam- iner made at the hearing and finds that no prejudicial error was committed The rulings are hereby affirmed I The Board has considered the Trial Examiner's Decision, the exceptions brief, and entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner as modified herein 2 ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner, as modified below, and hereby orders that the Respondent, Richardson Brothers, Sheboygen, Falls, Wis , its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order, as herein modified I Add the words "threatening employees with dis- charge if they engage in union activity," to paragraph 1(a) of the Trial Examiner's recommended Order after the words "interrogating employees concerning their union activities," 2 Insert the following paragraph after the first para- graph of the Appendix WE WILL NOT threaten employees with discharge if they engage in union activity Ir IS FURTHER ORDERED that the election conducted on September 15,1969, in Case 30-RC-1124 be and it hereby is, set aside, and that Case 30-RC-1124 be, and it hereby is, remanded to the Regional Director for Region 30 for the purpose of conducting a new election at such time as he deems that circumstances permit the free choice of a bargaining representative [Direction of Second Election3 omitted from publication ] 9 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc 156 NLRB 1236 N L R B v Wyman Gordon Company 394 U S 759 Accordingly it is hereby directed that an election eligibility list containing the names and addresses of all the eligible voters must be filed by the Employer with the Regional Director for Region 30 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed TRIAL EXAMINER ' S DECISION STATEMENT OF THE CASE THOMAS A Ricci , Trial Examiner A hearing in the above-entitled proceeding was held before the duly desig- nated Trial Examiner on January 20, 1970 , at Sheboygan Falls, Wisconsin , on complaint (Case 30-CA-1121) of the General Counsel against Richardson Brothers, Inc , herein called the Respondent or the Company, and on objections filed by Local 800, United Furniture Workers of America , AFL-CIO, herein called the Union, in a representation proceeding (Case 30-RC-1124) The charge was filed on October 21, and the complaint issued on December 16, 1969 The issues are whether the Respondent violated Section 8(a)(1) of the Statute, and whether its conduct warrants an order setting aside the results of a Board conducted election Briefs were filed after the close of the hearing by all parties Upon the entire record and from my observation of the witnesses , I make the following i FINDINGS OF FACT ' The Respondent s request for oral argument is hereby denied because the record exceptions and brief adequately present the issues and the positions of the Respondent 4 As the Respondent points out in his exceptions and brief the Trial Examiner erroneously states that Ten Pas told the three young men that no union shop employed part timers The record is clear that Ten Pas told the three that only one union shop employed part timers and the others had discontinued the practice However we are of the opinion that this factual error does not affect the Trial Examiners finding that this statement within the context of the total conversations is cle irly an implied threat of retaliation for union activi ties I THE BUSINESS OF THE RESPONDENT Richardson Brothers, Inc , a Wisconsin corporation, has its principal office and plant at Sheboygan Falls, Wisconsin, where it is engaged in the manufacture and sale of wood furniture and related products During ' In the absence of any opposit ion a motion by the General Counsel to correct the transcript in minor detail is hereby granted 182 NLRB No 134 RICHARDSON BROTHERS , INC. ' 923 the past calendar year, a representative period, it pur- chased and received in interstate commerce goods and materials valued in excess of $50,000 from points outside the State of Wisconsin. During the same period, it sold and shipped goods valued in excess of $50,000 from its plant to points located outside the State of Wisconsin. I find that the Employer is engaged in com- merce within the meaning of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES On August 29, 1969, the Union, active in ,organizing the approximately 130 production and maintenance employees, filed its petition for a Board election. The parties signed a stipulation for certification upon consent election on September 15 and the election, duly publi- cized, was held on October 10. Fifty-four employees voted in favor and sixty-one against union representation. Notices detailing the time and the place for the balloting had been posted on the plant bulletin boards. The'activi- ties by supervisors, now said to have improperly inter- fered with the election, and to have constituted coercive conduct in violation of Section 8(a)(1) of the Act, occurred for the most part a day or two before the election. Five young people were at work during the night shift starting about 4:30 p.m., on October, 9. Robert Ten Pas, assistant plant superintendent, came back to the plant and spoke to each one of them about • the imminent election. Wesley Huibregtse, a college student part-timer working alone in a department, testified that in this conversation Ten Pas told him that the Company had favored him by finding' work for him to do when it could have laid him off instead, that he, therefore owed a loyalty to the Company, and that by inquiring about other employers in the area the Respondent had learned that of five companies, all having unions, only one employed part-time employees, and that as part- timers here were permitted to vote, Huibregtse should do so. In another department, on another floor, Ten Pas spoke to John Littman and David Thill, high school students who were also part-timers. Littman testified the superintendent told them there was an election com- ing, it would be close, most people did not want the election, they should be sure to vote, and a vote in favor of the Company was equal to two for the Union. Still according to Littman, Ten Pas continued that he was not trying to force the boys to vote for the Company, that the problem must have been poor "communications between the management and the employees," and that in the future something would be done about this. He then asked did the boys have any questions, because if there was anything he could do for them in 'their work, if their foreman could not do it, he would. Littman said he would like to have a radio, which Dulmes, the superintendent, would not permit. He also told Ten Pas he would like to purchase a set of chairs wholesale, whereupon the assistant superintendent answered he would see what he could do about this. Thill also testified that 'Ten Pas advised, them of the Company's inquiry of other employers and having learned that in the union- ized plants only one had part-time employees. And finally, Ten Pas also said there would be a 10-cent raise across-the-board the following January 1. There was talk of the Company's 'profits being very small. The Union had distributed leaflets saying the Company did business in the millions and must have great profits. Earlier that 'same day, at 3 p.m., Vice President Richardson had assembled the employees in the plant to deliver his last of several talks about 'the Union and the next day's election. With a large circular graph he illustrated how small a percentage of profits there had been in the past year; the purpose of the talk was to rebut the Union's propaganda and to persuade the employees to reject the Union when they voted. Somewhere along the conversation Ten Pas was having with the part-timers in'the evening, Littman asked was it true the Company's profits were only 3 percent, and Ten Pas answered it was more like I percent, and then Littman commented that in' such circumstances the Union. "could hardly -give us any benefits," and it was really not worth while voting in its favor. It was at this point that Ten Pas added things were expected to pick up, the Company knew it was "behind in raises," and that there would be a' 10-cent raise across-the-board the following January 1.2 1 As Thill recalled, the assistant superintendent told them "he would appreciate it if we would vote for the Company." Thill also testified that somewhere during the talk-Ten Pas said it lasted "twenty minutes to a half hour"-the boys asked why two certain employees had been laid off; as to one Ten Pas answered because there was no work for him, but as to the other, Gary Schorendroch, he "was seen talking to Union representa- tives on the property." And finally, still according, to Thill, at one point Ten Pas said ". . . they would go out of business and have to close down because the Union's demands couldn't be' met by the company with the small profit they make." ' That night Ten Pas also visited with two women who were working in the lunchroom to inform them, as he said, of the election the next day. In his testimony he denied saying the Company would go out of business' because of union demands or eliminate the night shift because of increased costs. His explanation for all this was that he often, returned to the plant and that he did so this time because Huibregtse had been having trouble with certain steam bending work. And it is true the young man had for some time had difficulties f ' The record indicates there had 'been an earlier commitment by the Respondent to grant this raise the following year The complaint does not allege the statement to have Been improper, and no contention to that effect is made in the General Counsel's brief 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with that process, whatever it was, and the assistant superintendent did discuss it with him that night. Ten Pas also conceded, however, that there are times when he only goes to the plant at night once a month and then added an additional reason for his visit on October 9 was to inform all these employees of the time and place of the scheduled election. ". . . I realized that they didn't, have an opportunity to hear the speech in the afternoon and I didn't even know whether they knew where the voting was going to take place. So, I went up to explain to them where it was." "Q. Were you up there to tell them about the speech or tell them about the election? A. No, to tell them where it was going to be. This is my main purpose for going up, where it is going to be held. I don't believe they understood where it was going to be held." As to the business of }other plants, union shops, having or not having part-time employees, Ten Pas' story is that it was the employees-all three of the young men-who asked him what other employers were doing with part- timers. In the face of his repeated state- ment that one of his reasons for speaking to them was because they had not had opportunity to hear Vice President Richardson that afternoon, he said it was the employees who asked what the company profits were, not he who informed them. I do not credit Ten Pas. The clearest thing on this record is that Richardson's "talk to the employees that day was for the purpose of defeating the self-organiza- tional campaign. In Richardson's own words at the hearing: "I certainly did"-advise them to vote against the Union. This was the speech the night shift employees had not heard and which'Ten Pas said he wanted them to know about. But if the takeoff of Richardson' s antiun- ion talk was the meager profit margin, and if Ten Pas' intent was to be sure the rest of the, employees got the point , it is precisely the matter.. of profits that he would talk to them about. Littman asked about the profit margin, and, as Ten Pas would have it, the boy wanted to know "whether it was true" the Company earned only 1 percent. If this is the way Littman phrased it, he was repeating the thought put into the minds of all the employees by the vice president. And the assistant superintendent simply pursued the idea intended to be implanted by Richardson, that between small profits and union demands the Company might not continue the business at all. Nor is there logic to the assistant superintendent's further insistence that the part-timers- all of them and separately-should have wanted to know whether other, unrelated companies hired part-time employees. Most revealing of all, on this question of credibility between Ten Pas and the employees, is the superintend- ent's clear statement, not once but several times, that in his talk, which Ten Pas heard in its entirety, Richard- son did not urge the employees to vote against the Union, indeed that he never referred to the election at all. "Trial Examiner: Did he give his opinion about the union, whether he thought it was a good thing or bad thing? The Witness: No. Trial Examiner: Nothing at all? The Witness: No, not that I know of." "Q. Did he ask them to vote for the company? A. Not that I know of." "Trial Examiner: Now, you recall before that he [Richardson] also said tomorrow there is an election, right, he did say that? The Witness: I don't know. Trial Examiner: Don't you recall his talking about the election at all during the speech? The Witness: All I remember is his making the statement about the profits." Accordingly I find: (1) Ten Pas told Huibregtse the Company had been good to him and could have laid him off, and he told all three young men that the union shops do not have part-timers. In the context of his total talk, these were clearly implied threats of retaliation for union activities and therefore violations of Section 8(a)(1) of the Act. (2) He told Littman and Thill they should bring any requests for improved condi- tions to their foreman, or to him, and he would attempt to satisfy them. He also promised Littman he would look into the possibility of letting him have company products at a wholesale price. These were promises of benefits in return for voting against the Union and therefore amounted to coercion prohibited by the statute. And it is immaterial that Littman may first have asked the favor, before the superintendent agreed to oblige him.3 (3) Ten Pas spoke to these employees of the measure of company profits and then threatened the plant could be closed if the Union prevailed in the election. The indirect technique of voicing the threat does not remove it from the ambit of unfair labor practices under Section 8(a)(1).4 (4) He told Littman and Thill one employee had been laid off because he had been seen talking to a union representative; the statement constituted direct coercion in violation of Section 8(a)(1) of the Act. Littman also testified about a somewhat similar con- versation while he was at work the night before, on October 8, with Glenn Dulmes, the plant superintendent. Generally, there is a like conflict in testimony on just about the same subject matter. According to the employ- ee, the superintendent started by complimenting him on his work, saying he liked to see him earn money, but then added the Company had inquired of other companies where there were unions and found none but one used part-timers. Dulmes then also said there was no intention here of eliminating part-time help, but with a union in the picture there might be added costs such as to make it economically advisable to have a full-time employee in place of two part-timers. Littman is a schoolboy who worked nights. Like Ten Pas, Dulmes' story was that the employees had asked him, a week before the election, "what other companies do in part-time work, how they handle this part-time help," that he asked Richardson to find out, and that all he reported back was that there were two companies, one having part-time help and one having discontinued it. He said he passed this word around to four employees. He also admitted that in talking to them he did say Medo Photo Corp v N L R.B., 321 U S 678 Amalgamated Clothing Workers v N L R B ., 424 F 2d 818 (CADC) RICHARDSON BROTHERS , INC. i 925 other plants were union shops. Dulmes did not contradict the testimony of Wayne Reimes, a former supervisor with the Respondent, that 2 weeks before the election Dulmes told him he had been requested to talk to those employees he felt might be opposed to the Union and to attempt to prevail on them to persuade others to their view. I credit Littman. This was the same approach used by Ten Pas the next day, and Dulmes' assurance to Littman, and, it must be supposed, to others also, that the Respondent had no present intention to release part- timers, could not remove from his total remarks the suggestion things might be different if the shop went union. I find he effectively, albeit obliquely, threatened an economic disadvantage if the employees should vote in favor of the Union and therefore violated Section 8(a)(1). There is also evidence of illegal interrogation by two other supervisors. Huibregtse testified that at the start of his shift, early in the evening of October 9, Leroy Schuricht, his supervisor, asked had he decided how to vote the next day, and when the employee said no Schuricht said "the answer better be no." Schuricht said he only asked whether the man would be in the next day and that he should vote before starting to work. The balloting was scheduled to begin at 4 p.m. on the 10th. Schuricht denied asking how the man intend- ed to vote or threatening him in any way. Shirley Debeck- er testified that her supervisor, Reimes, asked during the morning of election day how she felt about the afternoon election. She answered she was indifferent, and Reimes then added, as she recalled, "why don't you vote against the Union and talk to your other fellow members and see if you can get them to vote against it too. . . ." Reimes said at the hearing he was inquisitive, and that he did ask Debecker how she felt about the Union and added he would appreciate it if she voted for the Company. Despite Schuricht 's denial , I must credit this testimony by Huibregtse and Debecker, in which they quoted minor foremen, for it comports, in kind, with the activi- ties of the superintendents aimed at defeating the organi- zational campaign. This was interrogation without objec- tive justification or the protective safeguards of which the Board decisions speak. Struksnes Construction Co., 165 NLRB 1062. 1 find that by questioning these two employees, and by Schuricht's threat that Huibregtse had better vote no, the supervisors violated Section 8(a)(1) of the Act. The Objections The real burden of this consolidated case-a single hearing on both objections to an election and complaint of 8(a)(1) violations-is that the election should be set aside, a new one held, and the Employer enjoined from again engaging in the unlawful coercive activities that were carried on before the last one. I find there is merit to the objections, for clearly the unfair labor practices committed by management representatives dur- ing the period immediately preceding the afternoon of October 10 precluded a fair election and effectively denied the employees their statutory right freely to express their views. I shall therefore recommend that the results of the election be set aside and a new one held. The Respondent must also be ordered to cease and desist from hereafter engaging in this kind of unlawful conduct and not to interfere with the'employees' attempt to establish collective bargaining through a union if that be their desire. An incident took place on October 21, after the elec- tion, during which, according to; an allegation added to the complaint at the start of the hearing, another illegal threat was voiced. Bertha Cook, a lady who has two daughters and a son also working in this plant, was moved, during the workday, from one assignment to another. She was doing piecework and was placed on other duties 'paid at day rate, which brings less money per hour. The General Counsel contends that Aubrey Reichert, her foreman, knew Mrs. Cook's daugh- ters had distributed union literature at the gate before the election and in fact shifted her at that moment to lower paying work because he believed she had favored the Union. The lady objected to the foreman's order; she was doing certain chair sanding, for which she said she had been hired, and protested this was her work. Reichert told her to 'do something else- cleaning of some sort-and gave the piecework sanding to. one Loretta Destrote. There seems to have been quite a discussion, and at one point the foreman told Cook if she did not care to do what daywork he had for her she could go home for the rest of the day and come back in the morning. She chose to stay, never lost any time, and was still employed at the time of the hearing. In her recital of the incident, Cook said that at one point as she protested Reichert said to her "you voted for the Union now take the consequences." The foreman denied saying anything like that or having any knowledge of union activities by Mrs. Cook or any of her children. There is not sufficient reason for believing Cook's testi- mony putting these words into Reichert's mouth. There was no way he could know how anyone had voted in the election and there is no evidence Mrs. Cook engaged in union activities at all. At best the foreman's conviction that she was union minded would have to rest on knowlege, which he disputed, that her daughters had assisted the union campaign. Mrs. Cook was an angry witness. She argued that she had been hired to do the sanding, the more desirable work, and this is what she kept telling the foreman that day. And it is true she was tested, before starting with the Company, to see whether she could perform that chore. But the evidence also shows, and she did not question the fact, that there are other employees, senior to her, who also do this work and that she was told at the initial hiring she was to do it when there was more than the other girls could do. Destrote, who was put on sanding the day in question, was one of the senior sanders. Moreover, it has always been a normal aspect of Cook's employment that she goes 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from one assignment to another during the day, some- times doing piecework and sometimes daywork. This went on all the time before October 21 and -continues regularly now. I am convinced all that happened was a little spat between the lady and the foreman, not an uncommon thing when more desirable and less desir- able work must be distributed, within a department. I credit Reichert's critical denial. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE f The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate , and substantial relation to trade , traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. Upon the basis of the foregoing findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the mean- ing of the Act. 3. By interrogating employees concerning their union activities , by threatening to discontinue part-time employment and to close the plant entirely in retaliation for union activities , and by promising better consider- ation of economic demands to discourage union activi- ties, the Respondent has interfered with the rights of its employees to self -organization and to bargain through representatives of their own choosing , within the mean- ing of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act it is hereby ordered that Richardson Brothers, Inc., Sheboygan Falls, Wisconsin, its agents , officers, successors, and assigns , shall: 1. Cease and desist from: Coercively, interrogating employees concerning their union activities, threatening to discontinue part -time em- ployment and to close the plant in retaliation for union activities, promising better consideration of employees' economic demands , or in any like or related manner interfering with, restraining , or coercing employees in the exercise of their right to engage in or to refrain from engaging in any and all activities specified in Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Post at its place of business in Sheboygan Falls, Wisconsin, copies of the attached ' notice marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for Region 30, after being signed by the Respondent 's representative , shall be post- ed by Respondent immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 30, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with." IT IS HEREBY FURTHER RECOMMENDED that the Union's objections to the election held by the Board in Case 30-RC-1124 be sustained and a new election held with the discretion of the Regional Director. 5 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 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 " '' In the event that this recommended Order is adopted by the Board, this provision shall be modified to read : "Notify the Regional Director for Region 30, in writing , within 10 days from the date of this Order what steps Respondent has taken to comply herewith " 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 employ- ees concerning their union activities. WE WILL NOT threaten to discontinue part-time employment or to close the plant in retaliation for the union activities of our employees or to discourage such activities on their part. WE WILL NOT promise to give better consider- ation to our employees ' demands for improved conditions of employment in order to discourage their union activities. 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 Local 800, United Furniture Workers of America, AFL-CIO , or any other labor organization , to bar- gain collectively through representatives of their own choosing , and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from engaging in any or all such activities , except to the extent RICHARDSON BROTHERS , INC 927 that such a right may be affected by an agreement This is an official notice and must not be defaced requiring membership in a labor organization as by anyone a condition of employment in conformity with Sec- This notice must remain posted for 60 consecutive tion 8(a)(3) of the Act, as amended f d t b It drt Dated By no e a e edays from the date o posting an mus RICHARDSON BROTHERS, defaced, or covered by any other material INC Any questions concerning this notice or compliance (Employer) with its provisions may be directed to the Board's Office, Second Floor, Commerce Building , 744 North Fourth Street, Milwaukee, Wisconsin 53203 Telephone (Representative) (Title) 414-272-8600, Extension 3861 Copy with citationCopy as parenthetical citation