Sil-Base Co.

National Labor Relations Board - Board DecisionsSep 21, 1988

290 N.L.R.B. 1179 (N.L.R.B. 1988)

SIL-BASE CO Sil-Base Company and Aluminum, Brick and Glass Workers International Union , AFL-CIO-CLC, Petitioner. Case 6-RC-9899 September 21, 1988 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFr The National Labor Relations Board , by a three- member panel, has considered objections to an election held September 14, 1987 , and the hearing officer's report recommending disposition of them The election was conducted pursuant to a Stipulat- ed Election Agreement The tally of ballots shows 13 for and 2 against the Petitioner, with 3 chal- lenged ballots , an insufficient number to affect the results On September 28, 1987, the Employer filed timely objections and on October 9 , 1987, the Acting Regional Director for Region 6 issued an order directing hearing on objections and notice of hearing A hearing was held on October 28 and November 2, 1987 On December 11, 1987, the hearing officer filed his report recommending that the objections be overruled and that a certification of representative be issued The Employer filed ex- ceptions and a supporting brief and the Petitioner filed a beef in opposition to the Employer 's excep- tions The Board has reviewed the record in light of the exceptions and beefs , has adopted the hearing officer's findings i and recommendations, as modi- fied, and finds that a certification of representative should be issued In his report, the hearing officer erred by stating that DiPerna's union activity was limited to attend- ing organizational meetings 2 The testimony shows that DiPerna also made proumon statements at the meetings 3 Even assuming that DiPerna is a super- visor, however, his prounion conduct does not warrant setting aside the election There are three situations in which a supervisor's proumon conduct may warrant setting aside an election The first is when the employer takes no stand contrary to the supervisor 's prounion con- i The Employer has excepted to some of the hearing officer's credibil- ity findings The Board's established policy is not to overrule a hearing officer's credibility resolutions unless the clear preponderance of all the rele.'ant evidence convinces us that they are incorrect Stretch -Tex Co, 118 NLRB 1359 , 1361 (1957) We find no basis for reversing the findings ' The testimony shows there were approximately six meetings and that DiPerna attended approximately four of the six ' Additionally , employee Wall stated DiPerna was one of the most active union supporters He also stated , however, that DiPerna was not a leader of the union movement DiPerna also admitted that he had offered employee VanNatta a ride to one of the union meetings 1179 duct, and employees may be led to believe the em- ployer favors the union 4 The second involves the possibility that a supervisor 's proumon conduct could coerce employees into supporting the union out of fear of future retaliation by that supervisor ti The third is similar to the second situation except that instead of coercion by fear of retaliation the employees could be coerced out of a hope of reward by the supervisor 6 In assessing whether a supervisor's conduct could reasonably tend to coerce employees in the exercise of their Section 7 rights the Board evaluates "the ability of a supervi- sor both to reward and retaliate against employ- ees'17 and the extent of the supervisor 's proumon conduct The Employer claims that DiPerna 's prounion conduct, combined with his alleged ability to disci- pline employees and assign employees to the unde- sirable work of fiberglassmg, coerced the employ- ees into supporting the Union 8 We disagree The Employer's argument that DiPerna exer- cised authority over the entire unit by virtue of his ability to transfer employees into the departments 9 he allegedly supervised' Â° is without foundation "I *There is no such allegation in this case ' Cal-Western Transport , 283 NLRB 453 (1987) " Ibid 7 Ibid ' The Employer also asserts that DiPerna had the authority to effec- tively recommend hiring That is not proved DiPerna denied he had this authority and stated that he merely showed applicants around the pattern department and, on instructions from owner Suey, had applicants cut a pattern to see how comfortable they were performing the cutting Di- Perna stated he gave his opinion as to which applicant was most comfort- able cutting the pattern only on being asked by Suey He also testified that he did not recommend the hiring of any particular employee Given DiPerna 's position as the only employee in the pattern shop and as the employee with the experience at pattern cutting, DiPerna 's role in the hiring process, like his role in the shop generally, could just as well have derived from his experiences and skills as it could from any supervisory authority that might have been granted to him by the Employer In short, a finding that he is a leadman is as tenable as one that he is a super- visor, based on the evidence here 9 The Employer clauns that DiPerna was a supervisor in both its pat- tern and quality control departments DiPerna denied that he was a su- pervisor in either department Again, it appears that any authority he may have exercised in the pattern department could have stemmed from his position as the longest serving employee in that department-which consisted of one or two permanently assigned employees (including Di- Perna) See mfrs, fn 14 Even if we assume that DiPerna was the super- visor of the employees permanently assigned to both the pattern and quality control departments , however, DiPerna still would have had su- pervisory authority over, at most , two employees out of an approximate- ly 16-employee unit In this regard , we note that many of the Employer's examples of DiPerna's exercise of supervisory authority involve employ- ees who, at the time DiPerna is alleged to have exercised his supervisory authority, were assigned permanently to the pattern department io Shop Supervisor Holmes testified that approximately six or seven employees had helped DiPerna in the pattern department during the pre- vious year ii Although evidence that DiPerna could transfer employees into the departments he allegedly supervised would show a greater potential for coercion by him, it would not be determinative in this case, given DiPer- na's limited prounion conduct See infra, 7-9 290 NLRB No 157 1180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD It appears that on occasion employees are trans- ferred into the department in which DiPerna worked to assist DiPerna. However, the testimony indicates that one of the other departmental super- visors-not DiPerna-selected the employee who would assist DiPerna.12 Also, DiPerna credibly denied that he had veto power over the employees chosen to help him.13 Consequently, DiPerna's in- ability to select the employees he might want to reward or punish diminishes any coercive impact his alleged supervisory authority might otherwise have had. Regarding the assignment of fiberglassing work, while DiPerna stated he had the authority to assign employees to fiberglassing or patternmaking,14 he also testified that he rarely was given help for any- thing other than fiberglassing. The record reveals that fiberglassing requires only 5 minutes of train- ing, whereas patternmaking requires greater skill. Because DiPerna was given help only to speed up production, as a practical matter he had virtually no discretion to assign work in order to retaliate against or reward employees based on their union views. Regarding discipline, the Employer does not claim that DiPerna can take disciplinary action himself but instead asserts that DiPerna can recom- mend discipline.15 In this regard the only example cited by the Employer is Holmes' testimony that DiPerna recommended that employee Flohr be fired. DiPerna denied having such authority and explained his purported recommendation to have Flohr fired as nothing more than a description of Flohr's work, from which he himself drew no con- clusions concerning Flohr's retention.16 Moreover, 12 DiPerna testified that if management pressed him to get a job done he would ask for help Sometimes he got help , sometimes he did not He also stated that even when he received help the other departmental su- pervisors could recall their employees from the pattern department even though the employees had not completed their work in that department 13 DiPerna explained the one example of this alleged veto power cited by the Employer by noting that he merely had asked employee Boyers' supervisor, after Beyers had been selected to help DiPerna , to tell Beyers about the mistake he had made while fiberglassing during an earlier stint in the pattern department Beyers subsequently has helped DiPerna in the pattern department 14 DiPerna attributed this authority to his experience in the pattern de- partment 15 Plant Supervisor Holmes did state that DiPerna could take discipli- nary action on his own "for something real serious " Holmes also testi- fied, however, that no "real serious" incidents occurred in which Di- Perna used this purported authority 19 DiPerna specifically denied recommending that Flohr (who at the time was assigned permanently to the pattern department) be fired Di- Perna stated that Holmes asked him how Flohr was doing and that Di- Perna told Holmes that Flohr did a pretty good job on some things and that he was lacking in others. DiPerna denied saying anything to Holmes about whether Flohr should continue to work in the department Holmes' questioning of DiPerna about Flohr, again , can be attributed to DiPerna's experience in the pattern department and that he was the only other em- ployee in the department The hearing officer did not discuss this evi- dence We note, however, that the hearing officer found DiPerna "to be a truthful and forthright witness " Supervisor Holmes stated that he would review any disciplinary recommendation made by DiPerna "to make sure everything was fair." Consequently, even examining the evidence in the light most fa- vorable to the Employer, we find that the limited number of employees DiPerna controlled because of his inability to select employees for transfer, his lack of real choice in assigning work, and his lack of independent authority to punish employees di- minish the coercive impact of whatever superviso- ry authority DiPerna held. Nor does it appear that DiPerna had any signifi- cant authority to reward employees, which in turn might coerce them into voting for the Union to seek favor with DiPerna. Thus, the employees' wage rates were set by Owner Suey and remained the same when employees transferred among de- partments.17 Further, the one example the Em- ployer cited of DiPerna's authority to send em- ployees home early was denied by DiPerna.18 Moreover, Plant Supervisor Holmes stated that su- pervisors usually cleared an "early out" with him before letting an employee go home. The Employ- er also stated that although DiPerna could not grant overtime he could effectively recommend it. Again, DiPerna denies this; in any event, Holmes stated that the recommendation had to be cleared through Suey. Thus, it appears that to the extent DiPerna had authority to reward employees, that authority could be exercised only in circumstances that would effectively minimize any hope on the part of an employee of unmerited reward. Even if it is true that DiPerna had the superviso- ry authority ascribed to him by the Employer, in order for that authority to reasonably create fear of retaliation or hope of reward, the employees would have to be aware that DiPerna had that authority. As the hearing officer found, however, there is no indication that the employees had been advised of such authority.1 a Further, even if we assume that DiPerna had su- pervisory authority and that the employees were aware of his authority, DiPerna's prounion actions have not been "so marked or inordinate as to lead 17 In this regard, Plant Supervisor Holmes stated that DiPerna could recommend pay raises He also stated that DiPerna had evaluated Flohr-citing the same incident he used to demonstrate DiPerna's alleged authority to recommend discipline of employees (see fn 16 above). Holmes further stated , however, that he was not sure if DiPerna had ever been told he was supposed to evaluate employees 18 Holmes stated that DiPerna had requested that employee Vitale (who at the time was assigned permanently to the pattern department) be allowed to leave work early because his father was dying . According to DiPerna 's version , however, DiPerna merely informed Holmes that Vitale was leaving because of his father's health status DiPerna denied ever telling Vitale that he could go home early 19 Employee Wall testified that DiPerna 's job was to build patterns and that he was unaware of DiPerna ever disciplining or hiring employ- ees. SIL-BASE CO the employees to fear possible retribution at [Di- Perna's] hands in the event that they reject the Union "20 The testimony shows that DiPerna's statements2 i made at union meetings were in re- sponse to employee questions asking what DiPerna thought of the organizing effort DiPerna stated that the employees were interested in his opinion on this matter because he had worked for the Em- ployer longer than any other employee In these circumstances, the prounion statements are nothing more than personal opinions that were expressed without any hint of retaliation or reward 22 Nor so Stevenson Equipment Co, 174 NLRB 865, 866 (1969) 21 DiPerna 's testimony regarding the statements he made is as follows Q Did you make statements in favor of the union to people who worked at Sil-Base' A Yes Q Okay What did you tell them A I just told them, I says, hey , you know, they were-see, they asked me because I had the most time in, they just says , you know, what do you think I says, hey, just , you know , look how long I've been here and we don't have much to go on I mean, we should be making more than what we are as far as wages and, you know Ev- erybody feels the same way, you know , that's all there is to it Q Well, did you tell them anything else? A No That's, you know, basically Q Did you give them any other reasons why they should join the union A No Q You just left it with A The only thing-I just said, hey, if, you know,-they came to me and said they were starting , okay, and I just-I says find, I'll show up at meeting And I went and then , like I said, they were asking me and I just says I've been there a long time and it's just what I saw And they all felt that-the way they feel about their wage and everything , that's their own opinion, I Q I am asking you what you said' A I just told them the only thing is make sure, if you want this, that everybody sticks together Q Did you tell them why not-why they had to stick together' A No I just says because if you don't stick together then it's not going to go through If you start it and don't finish it, then nothing's ever going to get accomplished Q Okay, Now, did you do anything else in support of the umon9 A No 28 See NLRB v Hawaiian Flour Mill, 792 F 2d 1459, 1464 (9th Or 1986), enfg 274 NLRB 1108 (1985) See also Fall River Savings Bank, 246 1181 does the assessment of employee Wall, given in re- sponse to a leading question , that DiPerna was one of the most active employees supporting the Union require us to set aside the election Despite that as- sessment, Wall's testimony indicates only that Di- Perna attended union meetings and made the state- ments described at length in footnote 21, supra Fi- nally, DiPerna's offer to give a fellow employee a ride to one of the union meetings is not the type of activity that requires invalidating the election CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid bal- lots have been cast for Aluminum , Brick and Glass Workers International Union, AFL-CIO-CLC and that it is the exclusive collective-bargaining repre- sentative of the employees in the following appro- priate unit All full-time and regular part-time production and maintenance employees employed by Sil- Base Company at its Juniper Street , McKees- port, Pennsylvania facility, who were em- ployed during the payroll period ending August 14, 1987, excluding all office clerical employees, salespersons and guards , profes- sional employees and supervisors as defined in the Act NLRB 831, 832 (1979) ("Speculation is not to be substituted for evidence of coercion or fear in finding an improper effect on an election 'l, enfd 649 F 2d 50 (1st Or 1981 ) Compare Sheraton Motor Inn, 194 NLRB 733 (1971) (Board set aside election where supervisor, inter alia, was union's "contact man" during the organizational campaign and told employees that management intended to cut wages if employees did not vote for the union), Delchamps, Inc, 210 NLRB 179 (1974) (Board vacated election when supervisors, inter aba, solicited employees under their control to join the union, sat on the petitioner 's organizing committee, and urged employees to attend union meetings and vote for the petitioner )