Thermalloy Corp.

National Labor Relations Board - Board Decisions

Aug 30, 1974

213 N.L.R.B. 129 (N.L.R.B. 1974)

THERMALLOY CORPORATION 129
Thermalloy Corporation and Local 819 , International
Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America . Cases 29-CA-3620
and 29-RC-2348
August 30, 1974
DECISION, ORDER AND CERTIFICATION
OF RESULTS OF ELECTION
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Local 819, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, and that said labor
organization is not the exclusive representative of all
the employees, in the unit herein involved, within the
meaning of Section 9(a) of the National Labor Rela-
tions Act, as amended.
BY CHAIRMAN MILLER AND MEMBERS
JENKINS AND KENNEDY
On May 13, 1974, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent filed
a brief in support of the Administrative Law Judge's
Decision and in answer to exceptions filed by the
General Counsel.
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' 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 be, and it hereby is, dis-
missed in its entirety.
IT IS FURTHER ORDERED that the objections in Case
29-RC-2348 be, and they hereby are, overruled and
the results of the election certified.
' 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 credibili-
ty 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.
2 Contrary to his colleagues, Member Jenkins does not adopt the Adminis-
trative Law Judge's recommendation that Respondent 's violation of Sec.
8(ax1) should be permitted to go unremedied . In Member Jenkins ' view there
is nothing "minor" about a supervisor's interrogation of an employee con-
cerning the union adherence and activity of that employee and other employ-
ees in the unit. Moreover, and even assuming arguendo that the violation
found here could be construed as "minor," a refusal to remedy the violation
would not be warranted. St. Regis Paper Company, 192 NLRB 661 (1971).
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge: This is a
consolidated proceeding joining a complaint case 29-
CA-3620-with a representation case 29-RC-2348. Upon
a charge filed on November 5, 1973, by Local 819, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein called the Union, a
complaint issued on January 31, 1973, against Thermalloy
Corporation, herein called the Respondent or the Compa-
ny. In the representation case a petition for an election was
filed by the Union and a Board-conducted election was held
on November 2, 1973; the Board thereafter ordered a hear-
ing upon the Union's objection to the Company's conduct
allegedly affecting the result of the election. The two cases
were joined for single hearing, which was held on April 2,
and 3, 1974 at Freeport, New York. The issues are whether
the Respondent violated Section 8(a)(1) of the Act, and
whether it improperly interfered with the conduct of the
election.
Upon the entire record and from my observation of the
witnesses I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Thermalloy Corporation is engaged in the manufacture,
sale and distribution of tubular heating elements and relat-
ed products, with its principal place of business in the City
of Freeport, New York State. During the past year, a repre-
sentative period, the Respondent purchased and caused to
be delivered to its Freeport plant, steel, metal rods, and
other goods and materials valued in excess of $50,000, of
which an amount valued in excess of $50,000 was transport-
ed and delivered to that location from out-of-state sources.
I find that the Respondent is engaged in commerce within
the meaning of the Act and that it will effectuate the policies
of the Act to exercise jurisdiction herein.
11. THE LABOR ORGANIZATION INVOLVED
I find the Local 819, International Brotherhood of Team-
sters , Chauffeurs, Warehousemen and Helpers of America,
is a labor organization within the meaning of Section 2(5)
of the Act.
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
At the end of August 1973, some few of the Company's
approximately 20 rank-and-file employees signed cards in
favor of the Union, and, on September 6, the Union filed
its petition requgsting a Board election. With the Company
consenting , the election was held on November 2; only 4 of
the 18 valid votes counted were cast in favor of the Union.
Three days later, on the 5th, the Union filed both objections
to the election and a charge alleging the Respondent had
restrained and coerced the employees before the election in
violation of Section 8(a)(1) of the Act. It is virtually the
same conduct charged to management representatives that
is said to constitute both interference with the election and
unfair labor practices.
The complaint, as originally issued , is limited to three
incidents in each of which the Respondent is said to have
unlawfully coerced its employees. (1) John Horod, an ad-
mitted supervisor , interrogated employees concerning their
union activities . (2) Sidney Kleinman , the Company presi-
dent, Horod, and David Prager, plant manager, surveyed
the Union meetings and other union activities of the em-
ployees after the election results had been announced. (3)
Kleinman promised paid health insurance to the employees
as an inducement for them to vote against the Union in the
November 2 election. After completion of his case-in-chief
at the hearing, the General Counsel amended the complaint
to add, (4) that at the end of August, before the filing of the
representation petition , Prager told assembled employees
the Respondent would close the plant, move it to the south,
if the employees elected to be represented by a union. The
Respondent denies all of these allegations.
1. There is no testimony by any witnesses about survey-
ance of the part of company representatives. In a response
by the General Counsel to the Respondent's pretrial motion
for a bill of particulars, there appears the statement that the
company "created the impression of surveyance" by a
phrase in a letter to the employees put in their hands shortly
before the election. In telling the employees they were free
to vote as they wished, the letter also said: "No matter what
the union says, the large majority of your fellow workers did
not sign the union card." The General Counsel suggests that
from this one phrase the thought would arise in the minds
of the employee that management had been spying on their
union activities. Kleinman testified he had heard rumors the
union agent had urged employees to sign cards on the
ground that many others, or even a majority, had already
done so. It was not unreasonable of him to believe this. It
is also a relevant fact that the Union did not demand recog-
nition , in itself an indication a majority had not signed. Both
before the day of the hearing, and at the start of the hearing,
there was a big to do between the General Counsel and
counsel for the Respondent over the fact the complaint lists
the name of one Theodore Phillips, as an agent of the Re-
spondent somehow involved in the unfair labor practices. It
was the position of the General Counsel that Phillips was an
actor in the surveyance activity, and he objected to "ex-
punging" his name from the proceeding . Except for an em-
ployee saying that Phillips had once been her foreman, there
is no further mention of this man throughout the record.
The allegation of surveyance, or creating the impression
of surveyance as set out in the complaint, must be dis-
missed.'
2. There is a direct conflict in the testimony on the ques-
tion whether Manager Prager did in fact threaten plant
closure . The incident occurred on about August 28, 1973;
the precise date is not clear, but two union cards signed that
day, and the collective recollections of several witnesses,
place it pretty clearly on that day. There was a flurry of card
solicitation by union agents at the end of the lunch period
and as the employees were returning to their machines and
starting to work. The union officials were talking through
the windows and standing in the doorway to the building,
the employees were somewhat confused, there were union
pamphlets on the floor, and in consequence of the excite-
ment Prager, the manager, called all the employees into his
office for what at the hearing he called a calming talk. His
testimony is that he told them they had a right to join the
Union, but that he also took the opportunity to list the
various benefits they were enjoying with the Company as it
was. Perhaps half of the 20 or so employees speak only
Spanish and did not really understand him; there was no
interpreter present.
Linda Seabrook, an employee who speaks English, testi-
fied that Prager also said that day: ". . . the Company was
not making any money and they did not want the union in
telling them when to give the people raises and he said that
if the union came in that they were going to move down
south. Their competitors have already moved down south
and that is what they would do if the union came in." Prager
directly contradicted her story; he insisted he said nothing
about moving south, or closing the plant, or that any other
companies had gone south to avoid the Union. I credit his
testimony.
Ernest Robinson, another English speaking employee
who was present, was also called by the General Counsel,
and said nothing of Prager voicing any threats. The General
Counsel also called Alajandrina Goris, who only speaks
Spanish. It seems the English speaking employees kept tell-
ing the others what Prager was saying. She testified Prager
reminded them of raises the Company used to give every 3
months , and said they should think of this. Goris also said
Prager did not mention the Union at all. Of course, Goris
might not have been told everything Prager said, but if she
could be used in support of the complaint as to this inci-
dent, it is only fair to appraise it also to the extent it aids
the defense, however little weight it may have.
There is a greater weakness in Seabrook's testimony. She
also quoted Prager as saying that day ". . . he wouldn't fire
anybody but he thought it was best if they did not vote for
the union." It is highly unlikely the manager would simulta-
neously say nobody would lose their jobs over this union
business and that he would move the shop to the south. But
more important, Seabrook admitted she had never, before
the moment she appeared on this witness stand, mentioned
the alleged threat to anyone. Her earlier affidavit, dated
November 14 and therefore much closer to the event, says
nothing about any threat. She looked sharp enough to me
at the hearing; had she really heard Prager make that threat,
Cf. Forenta, Inc., 165 NLRB 641.
THERMALLOY CORPORATION 131
she would have told the Board agent about it before the
hearing.
I will dismiss this allegation of the complaint also.
3. A major portion of the testimony on both sides of the
case goes to the question whether the company president,
Kleinman, promised company-paid health insurance, or
other improvements in working conditions, as an induce-
ment for the employees to vote against the union. On Octo-
ber 31, 2 days before the election, he called a voluntary
meeting of the employees after work for the purpose of
telling them they were well off without the Union and
should not vote in favor of it. For about 15 minutes he gave
a prepared speech; this was followed by a question and
answer period. This time there was an interpreter present
for the benefit of the Spanish speaking employees.
There is something wanting in the testimony of the em-
ployee witnesses as a whole, particularly those who testified
through an interpreter. Many evidenced an understandable
timidity, their recollections were poor despite clear indica-
tions of an intent to speak honestly, and some seemed disad-
vantaged even in their native English. A result of all of this
is that much of what came from them was drawn by leading
questions, both by the General Counsel on direct and by
counsel for the Respondent on cross-examination. Testimo-
ny of this kind is ordinarily not quite as persuasive as that
which emanates in the first instance out of the mouth of the
witness. I am convinced, nevertheless, that fair appraisal of
the totality of their testimony permits of a correct finding
as to what message Kleinman passed on to them both at the
critical meeting of October 31, and earlier.
The conclusion that the General Counsel wants drawn
from the record is that Kleinman made a definite promise
of free health insurance that day, and conditioned it upon
rejection of the Union by the employees 2 days later. Klein-
man did have occasion to talk about this insurance then,
indeed he even talked about other economic benefits that
might materialize in the future. But an employer has a right
to refer to what he has been giving his employees; he may
even speak of future prospects with his company without of
necessity exceeding the proper limits of freedom of speech
guaranteed by Section 10(c) of the Act. The question there-
fore is whether it has been proved he clearly associated new
benefits with rejection of the Union, and whether it has been
proved he left no doubt but that once the Union was elimi-
nated, the employees for sure would reap rewards.
I find neither allegation supported by the record as a
whole. In his direct talk before the question period, Klein-
man reminded the employees of how he had given periodic
raises all the time, and he said this would continue in the
future. And it is true the Respondent had an established
practice of giving periodic wage increases , however small
they may have been. Both employee and company represen-
tative witnesses flatly told the story of the past. As to
Kleinman's statement that he would adhere to the estab-
lished practice, again no fault can be found with such asser-
tions. From Mario Diciero's, a witness for the General
Counsel "... I remember him [Kleinman] saying that he
would keep on giving raises that he had been giving." If an
employer departs from past practice, even in the heat of an
election campaign, and refuses to give or consider periodic
raises, he commits an unfair labor practice. Dotson IGA
Foodliner, 164 NLRB 192. There can be no finding that by
telling employees he would do what Board law says he must
do, any employer violates this statute.
The subject of health insurance came up because when
the employees started asking questions one asked about sick
leave. Kleinman answered that the Company had been
thinking about health and hospitalization insurance, and
was inclined to obtain it for the employees, but had not
done so in the past because it could not afford the cost. He
added he would continue to think about it and that if at
some uncertain day in the future the Company's financial
condition improved, he would obtain it. He testified un-
equivocally that he gave no definite date as to when the
benefit would materialize, that he in no sense made any
promise, and that he did not relate the question of health
insurance to the outcome of the imminent election. His
story was corroborated by three other company representa-
tives who were present-Prager, Horod and Mollie Klein,
the secretary. The testimony of the General Counsel's wit-
nesses is substantially in accord.
Robinson:
Q: Now, Mr. Kleinman did not say when he would
give you this hospitalization plan at the meeting where
he spoke to the employees, did he?
A. No.
i i f A
Q: He did not say that if the Union won the election
he would give you the hospitalization plan. Did he?
A: Right.
s
JUDGE Ricci: Did he say if I give you the Red Cross
it depends on if the union wins or if the union loses, did
he say anything like that?
A: No, he did not say that.
Diciero:
A: He said the company was young and as it grows
he would be able to give them more benefits, hospitali-
zation and whatever, he would be able to give and he
said he'll keep on giving the raises that he always has
given and he asked the people not to vote for the union
and that is about the main thing that I can remember.
Q: Now, when the question of hospitalization was
raised didn 't Mr. Kleinman respond by saying that the
company was a young company and was not profit-
able?
A: Yes.
Q: Didn't he say that therefore he couldn't make
any promises to you?
A: Yes.
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q: Did Mr. Kleinman on this occasion or any other
occasion say to you that whether or not you got hospi-
talization was dependent upon whether the union won
or lost the election, did he ever say that to you?
A: No.
Florentina Palacios:
A: What he said was that there was going to be an
election and all of those who wanted to vote could vote
because he cannot stop us from voting.
Q: Did he say anything else?
A: Yes, we should remember that we always got
increases that he gave us and that is all he could give
because the factory was very small and while the com-
pany is growing he would be able to give us more
money.
A: Did he say anything about a medical plan:
A: Yes.
Q: What did he say about it?
A: He said he was planning to implant a medical
plan for the workers but that nothing was done yet. He
wasn't sure about it.
Q: Did he say when he would implant this medical
plan?
A: No, he did not.
Q: Did he say anything about promises. Did he
mention the word "promises" at the meeting?
A: No.
Q: At the meeting in Mr. Kleinman's office did Mr.
Kleinman say that he would only give you the medical
plan if the union lost the election?
A: No, he said nothing. He said no such thing.
Goris:
A: He said we always have increases every 3
months. Something to the effect that the company
didn't have enough money to afford a union because
it was a very young company and didn't have much
money.
Q: Did he say anything else that you recall?
A: A long time before all this I heard from other
girls that Mr. Kleinman had said he was going to give
us some Blue Cross insurance but he didn't say when.
He always said that at the meeting.
Q: What did he say at the meeting?
A: The same thing.
A: He said that he would try to get us Blue Cross or
life insurance but he didn't say when.
11
A: No.
Dablanca Sanchez:
A: He said he was going to give us Blue Cross and
that we would get an increase.
Q: Did he say when you would get those things?
A: No, he did not.
Q: Did he mention the word "promises" at that
meeting?
A: No.
Q: He didn't say that the medical plan, he didn't say
whether or not the employees got a medical plan de-
pended upon whether the union lost or won the elec-
tion?
A: No.
With this the recollection of the employees themselves, I
must credit Kleinman when he said he kept talking about
"profitability," and the fact the Company was young.
What he was really telling these people was that if they
wanted more money, at least more than what the periodic
raises amounted to, the Company's profits first had to be-
come greater. This was another way of saying they would
have to work harder, or faster, or produce more on the job,
before the purse strings would be loosened. It would be
difficult to find that words of this kind are a form of coer-
cion to keep employees out of a union. What's more,
Kleinman had been saying this same thing to his employ-
ees long before any union activities started, that he wanted
to provide health insurance but simply could not afford it.
4. There remains the testimony of Robinson, that Fore-
man Horod once asked him had he signed a union card and
also to inquire whether another employee, Charlie, had
signed one . Robinson vacillated a great deal while answer-
ing questions, particularly as to when this or other incidents
happened, but he was clear and definite that Horod did ask
him both about himself and the other man. Horod denied
any interrogation of any kind, but I credit Robinson on that
score. There is no reason for not believing him, and between
the two witnesses the employee's demeanor was more con-
vincing than that of the foreman.2
The question of when this interrogation took place is
important in this case because there is the matter of the
Union's objections to be considered. The petition was filed
on September 6, and therefore the cutoff period for investi-
gation of relevant objections is that day; anything that hap-
pened before may not be considered under established
Board practice. Robinson was confused as to the date, and
I believe the totality of his answers must lead to a finding
that whatever happened came before the filing of the peti-
tion . Organizational activities, or obtaining employee signa-
tures to union cards, started late in August; Robinson
Q: (By Mr. Davis) At the meeting with Mr. Klein-
man in October, did he mention the word "promises"
to you?
2 The offensive and unethical insinuation at the hearing by counsel for the
Respondent that the Board's agent put words into the witness' mouth while
investigating the case and taking the affidavit, is completely unsupported and
totally unwarranted.
THERMALLOY CORPORATION 133
recalled the talk by Manager Prager given the employees on
August 28 , timed with the card signing . He started by saying
Horod had questioned him 3 days before Prager 's meeting.
Asked again to try to recall the date , he then answered:
. . it was about 3 weeks before the union he came and
asked me did Charlie sign a card ." At another point the
General Counsel inserted another date in his question and
the witness agreed . "Q: As you said , it was a couple of days
before the first meeting in October ? A: Right ." But the
witness had not mentioned October himself at all, and, in
the light of his difficulties recalling the dates of other inci-
dents he testified about , mere agreement with a date first
stated by the General Counsel cannot be given preemptive
weight.
The foreman 's interrogation of Robinson was a violation
of Section 8(a)(1). It is the only incident of misconduct
proved on this record , and is of so minor a nature as not to
warrant either a formal unfair labor practice finding or
issuance of a formal cease-and-desist order. I will therefore
recommend the dismissal of the entire complaint.
The Objections
The record as a whole does not support the objections
filed by the Union . Whatever interrogation took place by
Horod of employee Robinson , took place before the filing
of the petition . Therefore , whatever may be said about that
incident, it could not support the objections . I will there-
fore recommend that the objections be overruled.
ORDER
It is hereby recommended that the complaint be, and it
hereby is, dismissed.