A. O. Smith Corp.

National Labor Relations Board - Board Decisions

Jun 29, 1967

166 N.L.R.B. 266 (N.L.R.B. 1967)

266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clark Control Division of A. O. Smith Corporation
and International Brotherhood of Electrical Wor-
kers, AFL-CIO, CLC. Cases 11-CA-3095 and
11-RM-127
June 29, 1967
DECISION, ORDER, AND CERTIFICATION
OF RESULTS OF ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On February 21, 19677, Trial Examiner Alba B.
Martin issued his Decision in the above-entitled
proceeding, finding that Respondent had not en-
gaged in unfair labor practices as alleged in the com-
plaint and recommending that the complaint be
dismissed and the objections to the election be
overruled, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, the Union filed ex-
ceptions to the Trial Examiner's Decision and a
supporting brief.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
brief, and the entire record in these cases, and
hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that the complaint herein be, and it hereby is
dismissed.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
votes cast in the election has not been cast for Inter-
national Brotherhood of Electrical Workers,
AFL-CIO, CLC, and that said labor organization
is not the exclusive bargaining representative in the
unit found appropriate within the meaning of Sec-
tion 9(a) of the Act, as amended.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE PROCEEDING
ALBA B. MARTIN, Trial Examiner: This consolidated
proceeding, with all parties represented, was heard before
me in Lancaster, South Carolina, on October 24 and 25,
1966. The proceeding involves alleged violations of Sec-
tion 8(a)(1) of the National Labor Relations Act, as
amended, 29 U.S.C. Sec. 151, et seq. (herein called
the Act), during April and May 1966, and also objections
to alleged conduct affecting the results of a consent elec-
tion held June 17, 1966. The issues in the CA case and
the RM case overlap considerably. After the hearing the
Union and the Company filed briefs which have been
carefully considered.
Upon the entire record and my observation of the wit-
nesses, I hereby make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT COMPANY
Clark Control Division of A. O. Smith Corporation,
herein called Respondent and the Company, is a Wiscon-
sin corporation with a plant located in Lancaster, South
Carolina, the only plant involved herein , where it is en-
gaged in the manufacture of electrical controls. During
the 12 months prior to the issuance of the complaint in
late September 1966, a representative period , Respon-
dent shipped from outside the State of South Carolina
directly into its plant at Lancaster, South Carolina, raw
materials valued in excess of $50,000, and during the
same period shipped directly from its plant at Lancaster,
South Carolina, to points directly outside the State of
South Carolina finished products having a value in excess
of $50,000. Respondent is now and has been at all times
material herein engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers,
AFL-CIO, CLC, is and has been at all times material
herein a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES AND THE
ALLEGED CONDUCT AFFECTING THE RESULTS OF THE
ELECTION
A. Background
From the Board's records I take official notice that the
petition in Case 11-RM-127 was filed by Respondent on
May 17, 1966. On June 3, the Board's Regional Director
approved a stipulation for certification upon consent elec-
tion. At the election, held June 17, of 157 valid and
unchallenged votes counted, 70 employees voted for the
Union and 87 employees voted against the Union. There
were no challenged ballots. To have won the Union
needed 79 votes; thus it lost the election by 9 votes.
The alleged acts complained of herein occurred on
April 1, May 11, 16, 17, and 19, and on election day,
June 17. (All events herein occurred in 1966.)
166 NLRB No. 55
CLARK CONTROL DIVISION 267
B. Respondent's Lawful Opposition Toward the Union
and Its Assistance to Employees in Revoking Authoriza-
tion Cards
In a speech to employees on June 1 and in three letters
to employees between January 2 and the June 17 elec-
tion, Respondent, through its plant manager, Richard E.
Canter, expressed firm opposition to the Union and urged
its employees not to sign union cards and not to vote for
the Union at the election. Canter's oral and written ex-
pressions contained no threats of reprisal or promises of
benefit and were views, arguments, and opinions per-
mitted under Section 8(c) of the Act.
Beginning in March and continuing in May Respondent
assisted some eight employees in revoking their union
authorization cards: Effie Mahaffey in or about the third
week in March, Bonnie Robinson on May It, Jerry
Pressley on May 16, Barbara Faulkenberry and Jerry
Huffstickler on May 17, Frances Robinson on May 18,
and Jimmie Belk and Ruth Williams on May 19.
Respondent assisted these employees by supplying
them with paper and envelopes and addresses, telling
them what words to write, telling them to send one revo-
cation letter to the Union and one to the Board's Regional
Office, and in some cases supplying the stamps and mail-
ing the letters. The message on all the letters was the
same: That the sender wished to revoke his authorization
card to the Union which he had earlier signed, and that he
did not wish the Union to represent him for anything.
In the case of seven of these employees, all but Faul-
kenberry, the employee himself asked Respondent's
assistance and Respondent acted pursuant to the em-
ployee's request. In the interviews sought by the em-
ployees, Respondent explained to the employees that
they had a right to vote as they wished in the election and
undertook to discover if the employee had been pressured
or coerced or was acting of his own free will.' During
these interviews Respondent put no pressure on the em-
ployees to continue in their course of action and the em-
ployees were free to change it at any time. On the entire
record I conclude that the employees initiated and ex-
ecuted their revocations of their own free will.
In the case of Faulkenberry, on May 16 General
Foreman Lanzilotta suggested to her that she could
probably revoke her union card if she wished to. He told
her this in answer to her statement that she was confused
and worried about having signed a union card.2 The fol-
lowing day, May 17, she told him she wanted to revoke
her card and he assisted her. Respondent did not threaten
or coerce her or promise her any benefit, and she acted of
her own free will and was free to change her course of ac-
tion at any time.
The record showed that some of these employees
discussed among themselves the idea of revoking and that
some of them indicated to Respondent that they wished
to revoke rather than have their card counted towards
union recognition without an election whereas they had
originally signed in order to help get an election. Prior to
the first revocation, according to the credited testimony
of Plant Manager Canter, a number of employees had told
management that they wished to get their union cards
back but were unable to. One employee who "knew" she
1 As they were more credible witnesses than Belk, I credit the
testimony of Personnel Manager Cassidy and General Foreman Lanzilot-
ta that they did not, as alleged by Belk, talk to him about the disadvantages
of the Union.
could not get her card back, and did not want to get "in-
volved," quit. Respondent's attitude was demonstrated
by Canter. He learned in March from Mahaffey that
another employee, Linda Lucas, wanted to revoke, but no
member of management ever attempted to get her to
revoke even though Canter had in writing lawfully at-
tempted to persuade her and the other employees not to
sign a union card initially. As the record was lacking in
convincing proof that any of those who revoked were
pressured into doing it by Respondent, as each employee
was free to change his course of action toward revoking
at any time, and as Respondent was not and had not been
engaging in an unlawful antiunion campaign, I hold that
Respondent's assistance to the eight employees was not
unlawful interference in the rights guaranteed in Section
7 of the Act, and was not a violation of Section 8(a)(1) or
an adequate reason to set aside the election. Cf. Martin
Theatres of Georgia, Inc., dlb/a WTVC, 126 NLRB
1054, 1058; Cumberland Shoe Company, 160 NLRB
1256; Perkins Machine Company, 141 NLRB 697; TMT
Trailer Ferry, Inc., 152 NLRB 1495; Quality Markets,
Inc., 160 NLRB 44.
C. Alleged Promise of a Better Job to Employee Press-
ley ifHe Would Revoke His Union Authorization Card
The General Counsel alleged and undertook unsuc-
cessfully to prove that on April 1 Personnel Manager
Duane Cassidy promised employee Jerry Pressley con-
sideration for a setup job coming open in the machine
shop. Employee Sammie Lee McGriff testified for the
General Counsel that on April 1 he overheard Cassidy
tell Pressley that he would be considered for one of two
setup jobs coming open in the machine shop if Pressley
would get his union card back. This would have meant a
promotion for Pressley . Cassidy allegedly prefaced this
remark with the statement that several persons had come
to him and informed him that Pressley's name had been
"used in reference to get them to sign union cards." Mc-
Griff testified further that as soon as Cassidy left Pressley
came over to McGriff, said that he wanted his card back,
and that McGriff had been using Pressley's name to get
other people to sign union cards. McGriff allegedly
replied , among other things, that he could not get Press-
ley's card back for him.
Cassidy and Pressley both denied this alleged conver-
sation, although admitting that on that day they did have
a conversation at Pressley ' s work station . According to
them they talked about the softball league , on which they
"played together ," and about getting Pressley's wife
covered under the Company 's group insurance plan.
Pressley testified he decided about the middle of March
to try to revoke his card . The fact that after April 1 Press-
ley several times asked McGriff and Hornback, who
were employee promoters of the Union, for his card back,
might suggest that he was motivated to do so by Cassidy's
alleged offer for consideration for a promotion and that in
fact the offer was made. However Pressley did not write
his revocation letter until May 16 . If in fact Cassidy made
the alleged offer on April 1, it seems to me that Pressley
would have followed up and contacted Cassidy and
revoked prior to May 16 . Surely it would have occurred
' In this conversation Lanzilotta told Faulkenberry that he thought she,
or "a number of us," were sick because of what she was doing to herself,
nodding to her union badge. This was not a threat and was a view of
opinion protected by Section 8(c)
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to him to contact Cassidy if in fact Cassidy had offered an
inducement for revoking. In fact another employee sug-
gested he contact Cassidy to revoke, and on May 16 he
did so. Although this employee, Clark, worked in an of-
fice, it was not the same office where Cassidy worked,
and there was no proof that Cassidy or any member of
management put him up to it. In fact Clark indicated to
Pressley that he had learned from two employee friends
of Pressley's that Pressley wanted to revoke. Further, if
in fact Cassidy had offered the alleged promotion on
April 1 and there was such a job to be filled, no reason ap-
pears why Cassidy would not have followed up the offer
and contacted Pressley again about it prior to May 16,
some 6 weeks later. The fact that Cassidy did not follow
up and did not contact Pressley further suggests to me
that Cassidy did not make the alleged offer in the first
place.
In fact there were no setup jobs open or coming open
in the machine shop on April 1. In March the Company
had eliminated a setup job in the machine shop and as-
signed the incumbent to a lesser paying job. Under com-
pany practice, as set forth in a handbook, the latter had
rights to that job or any other setup job in the machine
shop ahead of anybody else. The fact that there were no
setup jobs coming open is weighty proof that Cassidy did
not make the alleged offer to Pressley.
After revoking on May 16, Pressley was not promoted
to the setup job and there was no proof that he ever fol-
lowed up and undertook to get the allegedly offered
promotion. These facts weigh against the General Coun-
sel's view of the facts.
Shortly before April 1, in about the third week in
March, when employee Effie Mahaffey contacted
management and asked assistance to withdraw from the
Union, Cassidy telephoned Respondent's attorney and
was instructed that the Company could assist those to
withdraw who sought assistance from it, who had not
been pressured by anybody from the Company, and who
were acting of their own free will. He was instructed also
that management was to tell any such employees their
rights under the Act and let them know they could change
their minds at any moment before mailing the revocation.
The entire record shows that the Respondent undertook
to abide by these instructions from its attorney. With
these instructions so fresh in his ears it seems unlikely to
me that. a few days later Cassidy would have made the al-
leged offer to Pressley.
In view of the above facts and considerations, and as
by their demeanor Cassidy impressed me as a more credi-
ble witness than McGriff, I credit Cassidy's testimony
and find that he did not make the alleged offer to Pressley,
that Respondent did not thereby violate the Act, and that
the election should not be set aside for this alleged reason.
D. Alleged Interrogation of an Employee
The General Counsel alleged and undertook unsuc-
cessfully to prove that Respondent's manager of manu-
facturing at the Lancaster plant, Thomas Gouger, inter-
rogated employee Jimmy Belk concerning his union ac-
tivities. Gouger knew Belk not only as an employee but
also as a fellow member of the Lancaster Jaycees. On
May 11, as Gouger was passing Belk's work area he
noticed Belk wearing a union badge. Gouger testified he
believed it was a committeeman's or member-of-the-or-
ganizing-committee badge. Gouger told Belk he was sur-
prised and a little shocked, referring to the badge, and that
sometime when they had time he would like to talk to
Belk about his thinking. No member of management, in-
cluding Gouger, had any further conversation with Belk
concerning his badge or his thinking.
Gouger's remark was an expression of his own reaction
at seeing the badge on Belk, plus the expression of a hope
that they could have a further conversation concerning
Belk's thinking about the Union. It was not coercive, con-
tained no threat or promise, and was not an effort to pry
into Belk's union activities. It was not a question but was
the expression of a hope that sometime later they could
discuss what thinking led Belk up to the apparent point of
assisting the Union. This was not interrogation within
meaning of the Act. This was a "view" protected under
Section 8(c) of the Act.
In its brief the Union sought to make more of Gouger's
May 11 remark than it added up to because on May 15 or
16 Belk talked with Ray Plyler and on May 21 Belk took
the initiative and revoked his union affiliation. Plyler was
a college boy working for Respondent in the office during
the summer. He testified that "my job went ... from the
labeling department to the cafeteria area, I was in the
maintenance department and my job covered all of that
area, entire area." I conclude on the entire record that he
was an office boy. Certainly he was not and was not
claimed to be a supervisor. The record does not contain
the substance of the conversation between Plyler and
Belk. Pursuant to a leading question Belk testified "yes,"
that as a result of this conversation with Plyler he took
the initiative and revoked his union affiliation on May 21.
On this state of the record, the fact that Plyler worked in
the office is not conclusive proof that Respondent put him
up to seeking Belk's revocation or that Gouger had
anything to do with it; and it does not change any of my
findings and holdings herein.
E. Alleged Creating Impression of Surveillance
The General Counsel alleged and with the Union un-
dertook unsuccessfully to prove that Respondent created
the impression of surveillance through the activity of Per-
sonnel Assistant Kennington with a clipboard. Kenning-
ton was a supervisor within the meaning of the Act. In the
course of his duties, at irregular intervals at random he
went into the different departments of the plant observing
the safety practices of employees and recording on a
chart, which was on a clipboard, the number of safety
mistakes and the number of safe acts he observed depart-
ment by department. This was under a safety sampling
procedure developed by Respondent's corporate director
of safety which had been in effect at the Lancaster plant
since January 1966. The record contains all of the safety
sampling records kept by Kennington during 1966 and
these records show that Kennington took no safety
samplings on election day, June 17. Kennington credibly
testified that he took no samplings that day and credibly
testified that he was not in the plant on election day with
a clipboard. The clipboard he uses is bright orange-red
and he has no other clipboard. In making the safety
samplings he never calls out a name. He just looks at em-
ployees performing their duties and records whether their
practices are safe or unsafe. In view of these facts I do
not credit the testimony of General Counsel-Union wit-
ness Stewart that on election day Kennington was in the
plant with a brown clipboard pausing in front of only em-
CLARK CONTROL DIVISION
ployees wearing union insignia, mentioning their names,
and making a mark on his clipboard. In addition Kenning-
ton was a more credible witness than Stewart and he de-
nied stopping on election day in front of employees and
calling their names and he denied ever checking only
union people. Further Stewart initially testified that the
alleged election day clipboard incident occurred after the
election; and later, when recalled to the witness stand,
testified it occurred shortly before the election. Stewart
did not impress me as a reliable witness.
Two other General Counsel witnesses, Belk and Horn-
back, vaguely placing the date as sometime in May,
testified that they saw Kennington walking around in the
plant writing something on a clipboard. Hornback
testified that he stopped only in front of those employees
wearing union buttons and not others. Contrariwise Belk
testified Kennington stopped at "no certain place." Horn-
back testified that one day he saw Kennington in three de-
partments: wiring, pushbutton, and starter line. Respond-
ent's records of all safety samplings made in 1966 show
that the only dates when Kennington made safety
samplings in those three departments were on April 6 and
July 25. On the entire record I do not believe that
Kennington ever used the "cover" of safety sampling to
give the impression of spying upon the employees' union
insignia or union activities. The employees openly wore
their union insignia for weeks prior to the election and
Respondent never prevented it or made any mention of
it,3 except for Gouger's remark to Belk and Lanzilotta's
remark to Faulkenberry considered above. Further,
Respondent had a no-solicitation rule barring solicitations
on working time, but took no action against working-time
union activity reported to it because production was not
being interfered with. Thus Respondent took a broad
view of its own rule and permitted a limited amount of
union activity on company time rather than a narrow view
and consequent discipline against union affiliates. This is
another indication that Respondent, while opposed to the
Union, undertook with success to hold its opposition
within lawful bounds.
F. Alleged "Solicitation of and Permitting Others To
Solicit Antiunion Votes in Plant During Working Hours
While Forbidding Union To Carry on Its
Campaign" - Objection
During their lunch period on election day, from 11:15
to 11:45 a.m., Sue Hardin and Vera Hunter, who worked
in the labeling department, ink stamped on some small
yellow cards the sentiment "Clarks 100%." Their regular
duties were to make labels upon orders from the office or
from the various departments. In making labels they
customarily used a small yellow card. The Union's
testimony as to how many were made up was very self-
contradictory. These "Clarks 100%" cards are hereafter
referred to as the yellow badges.
As has been mentioned before, Respondent had in ef-
fect a no-solicitation rule barring solicitations during
working time. In its objection 4 in the representation
case, couched in the language quoted in the caption
above, and in its evidence, the Union claimed in effect
that Respondent knew about and condoned the making
and distribution of the yellow badges while enforcing the
no-solicitation rule against the Union.
3 Cf Precision Products & Controls, Inc., 160 NLRB 1119.
269
As has been stated above the Respondent did not
strictly enforce the no-solicitation rule against the Union.
It was reported to Personnel Manager Cassidy that "Jean
Sowell was taking notes during the work day, that Don
Homback had given a union badge to someone during
working time, that something ... had been posted in the
washroom during company time, that there were conver-
sations being conducted during working time." Cassidy
took no action against the Union or any persons based
upon what he heard. This testimony and the entire record
shows that the Union failed to establish enforcement of
the rule against it, which was the necessary foundation for
showing discriminatory application of the rule.
The Union also failed to prove discriminatory treat-
ment in favor of those who made and distributed the yel-
low badges. Not many were distributed. Several people
picked up cards from the labeling area. Employee Bill
Sumner passed out as many as possibly 25. It was not
shown convincingly that management saw the making or
distributing of the yellow badges, although the Union
sought to show not only knowledge but also approval.
Ruth Ann Stewart testified that, while the yellow
badges were being prepared, Personnel Assistant
Kennington was present in the labeling department
laughing and talking with Hardin and Hunter and em-
ployees Blackmon, Plyler, and Vincent were also there.
She also testified that Foreman Stephens saw them being
prepared. Jean Sowell testified that Kennington was
present in the labeling area when Hardin handed Bill
Sumner some cards, but that Plyler and Vincent were not
there. Sowell quoted Kennington as approving Hunter's
pinning a yellow badge on herself with the words, "I
guess that will outshine the IBEW's T-shirts." Sowell
testified General Foreman Lanzilotta was present when
Hardin asked another employee if she wanted one of the
yellow badges.
Kennington, Stephens, Lanzilotta, Hardin, Hunter,
Blackmon, Plyler, and Vincent, testifying for Respon-
dent, effectively and credibly denied and refuted the
testimony of Stewart and Sowell. On the entire record
and by their demeanor, Stewart and Sowell impressed me
as less credible witnesses than these brought forward by
Respondent. The credible testimony proved that
Kennington toured the plant early on election day and
was not in or near the labeling department thereafter. He
knew nothing about the yellow badges until he saw one on
an employee in an aisle far away from the labeling depart-
ment shortly before the election. The election was held
between 2:45 and 3:45 p.m. and the preelection con-
ference, which was attended by Kennington, at 2:15.
Foreman Stephens credibly testified that he did not
know the yellow badges were being made in the labeling
department, which was under his responsibility, and did
not see any being passed out. He testified he did not say_
anything to people wearing union badges or to those
wearing the yellow badges, that he considered that they
all had the privilege of wearing what badges they wished
to wear.
Lanzilotta credibly testified that he knew nothing about
the yellow badges until shortly before the election when
he met, an employee in the aisle who was wearing one.
Lanzilotta warned this employee, Bill Sumner, that if
Sumner were caught passing the badges out during work-
ing hours he could be discharged for it. Sumner cor-
roborated this testimony. Sumner was sufficiently
chastised that he immediately removed his yellow badge
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and put it in his pocket. This testimony runs counter to
the union thesis that Respondent approved and condoned
the making and distributing of the yellow badges.'
Upon the above facts and considerations, upon all the
credible testimony in the record, and upon the preponde-
rance of the testimony in the entire record, I find and hold
that Respondent did not see or approve of the yellow
badges being made, did not approve or condone the
passing out of any of them on company time, if any of
4 Although the labeling area could be seen from the foremen's office,
which was over the restrooms, there was no proof that any foreman saw
or approved the making of the yellow badges.
them were, and did not discriminatorily apply its no-sol-
icitation rule in favor of those who made and passed out
the badges . It follows that Respondent did not on this
count violate the Act or interfere with the election.
RECOMMENDED ORDER
As has been seen throughout this Decision, the prepon-
derance of the evidence established that Respondent suc-
cessfully held its opposition to the Union within lawful
bounds. Under these circumstances I recommend that
the complaint be dismissed and that the objections to the
election be overruled.