Anaconda Co.Download PDFNational Labor Relations Board - Board DecisionsApr 23, 1979241 N.L.R.B. 1091 (N.L.R.B. 1979) Copy Citation A NA('ON I Anaconda Co.-Wire and Cable Div. and Chauffeurs, Teamsters and Helpers Local Union No. 391, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case II CA 7587 April 23. 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JNKINS ANI) PENI.I.o() On January 26. 1979, Administrative Law Judge Robert C. Batson issued the attached Decision in this proceeding. Thereafter. Respondent filed exceptions 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 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 brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.2 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 Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, Anaconda Co.-Wire and Cable Division, Eden, North Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. The Board I Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dro Wall Products. Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. Respondent has also excepted to the Administrative Law Judge's ruling at the hearing to grant General Counsel's request to amend the complaint to include the allegations involving Sandra Mabes. Respondent contends that the amendment prejudiced Respondent's preparation of its defense. After carefully considering the matter. we find that Respondent was not prejudiced by the amendment to the complaint. In this connection, we note the Admin- istrative Law Judge offered Respondent additional time to investigate the allegations of' the amendment but Respondent chose to proceed with the hearing. On March 26. 1979. the Board issued an Order severing Case II RC 4485 from Case II CA 7587, granting the Petitioner's motion to withdraw its objections filed in Case I I RC 4485, and certifying the results of the election held on April 13. 1978. Accordingly, we find it unnecessary to pass on the Administrative aw Judge's comment and findings concerning the representation case, including the alleged impact of the unfair labor practices upon the outcome of the representation election. or to adopt his recommen- dations In this respect 1091 modifies the recommended Order by deleting the final paragraph. DEC'ISION SIAtI MEN I ()F 111 ('ASI ROBERI C. BrsoN. Administrative Law Judge: This consolidated proceeding under the National Labor Rela- tions Act, as amended. 29 U.S.C. §151, seq. (herein called the Act), was heard before me on October 2 and 3. 1978,1 at Winston-Salem, North Carolina, based on a complaint and notice of hearing in Case I I-CA 7587. issued by the Acting Regional Director lor Region II (Winston-Salem, North Carolina) on June 2 1, growing out of a charge filed on April 20, as amended on June 12. by Chauffeurs. Teamsters and Helpers Local Union No. 391, International Brotherhood of Teamsters. Chauffeurs, Warehousemen and Helpers of America, herein called the Union or Petitioner, alleging that Anaconda Co. Wire and Cable Div., herein called the Respondent, violated Section 8(aX I) of the Act. On February 14, the Union filed a petition for certifica- tion of representative with the Board in Case I RC 4485 seeking to represent an appropriate unit of employees of Respondent. The Regional Director for Region I issued a Decision and Direction of Election in an appropriate unit' on March 17. On April 13, an election was conducted among the employees in the appropriate unit under the su- pervision of said Regional Director, which resulted in a tally of ballots reflecting that of approximately 125 eligible voters; 57 cast valid ballots for, and 64 cast valid ballots against, the Petitioner. There were no challenged or void ballots. On April 20. the Petitioner filed timely objections to conduct affecting the results of the election. On June 23, the said Regional Director issued a Supplemental Decision, Di- rection, and Order Consolidating Cases, wherein he over- ruled certain of Petitioner's objections and concluded that Objection 5 was coextensive with the allegations of the complaint theretofore issued in Case II -CA-7585 and or- dered that objection consolidated for hearing with the un- fair labor practice case. B telegraphic order dated August 10, the Board denied Respondent's request for review of that order. The complaint as amended at the hearing' alleges four separate instances of unlawful interrogation, all of which are alleged to have occurred between February 14, the date of the filing of the petition, and April 13, the date of the election, and are coextensive with the subject matter of Pe- titioner's Objection 5. The Respondent's duly filed Answer. as amended at the hearing, denies the commission of any I All relevant events In this case occurred during the calendar year 1978. and unless otherwise indicated all months and dates referred to hereafter are in 1978. 2 he unit found to be appropriate is: All production and maintenance employees at the Employer's Eden. North Carolina, plant, excluding office clerical employees. supervisory trainees, managerial employees, salaried employees, guards and supervi- sors as defined in the Act At the hearing the counsel for the General Counsel's motion to amend the complaint by adding two additional allegations of coercive interrogation ssas granted A similar motion to delete from the original complaint the allegation of a threat of reprisal for voting for the tUniion was also granted 241 NLRB No. 187 DI)L CISIONS OF NATIONAL. LABOR RELATIONS BOARD unfair labor practices and that it has engaged in any objec- tionahle conduct in the representation proceeding which would warrant the setting aside of the election. All issues were ull ' liligated at he hearing: all parties iaritilr;llced thruolghLo ut b coLinIsel ;Ln1t were a;ltrded lull oppor ttltlitt tIo present evidence ' and a rguments, to mllke oral argument, and to ile post-hearing briefs. The counsel for the General ('ounsel and the Respondent waived tile filing ot post-hearing briels and made oral argument on the record.' Upon the entire record, including consideration of oral arguments, and my observations of the testimonial demea- nor of the witnesses testifying under oath, and upon sub- stantial reliable evidence I make the following: FININ(;S () FA( I I. II1 BI SINISS 01 RESPONDENT The Respondent-Employer is, and has been at all times material herein, a Delaware corporation with an office and place of business located at Eden. North Carolina, where it is engaged in the manufacture of plastic communications cables. During the 12-month period preceding the issuance of the complaint herein, which is a representative period, Respondent purchased and received goods and materials valued in excess of $50.000 directly from points located out- side the State of North Carolina. During the same period of time, Respondent shipped products valued in excess of $50,000 directly to points located outside the State of North Carolina. Accordingly, I find and conclude, as alleged in the complaint and admitted by the Respondent, that at all times material herein the Respondent was, and is, an em- ployer as defined in Section 2(2) of the Act, engaged in commerce and in operations affecting commerce as defined in Section 2(6) and (7) of the Act. II. THiE LABOR ORGANIZATION INVOLVED The Union, Chauffeurs, Teamsters and Helpers Local Union No. 391, International Brotherhood of Teamsters. Chauffeurs, Warehousemen and Helpers of America, is, and has been at all times material herein, a labor organiza- tion within the meaning of Section 2(5) of the Act. Ill. THE AI.LEGED UNFAIR LABOR PRACTICES AND OBJE('TIONS TO ELECTION The complaint alleges that on or about April 9, 1978. Supervisor Jim Pursell "[i]nterrogated an employee by ask- ing said employee what the union button meant that said employee was wearing." In support of this allegation, em- ployee Paul Ashe testified that for about 3 days at some 4 No representative appeared at the hearing on behalf of the Union-Peti- tioner. However. the failure of the Union-Petitioner to cause a representative to be present at the hearing does not afford a basis for dismissing the objec- tions t'i the election, since evidence in support of the objections and the complaint are cextensive. The Respondent's motion to dismiss the objections for failure of the Petitioner to appear at the hearing is denied. The Respondent's oral motion to dismiss the complaint on the grounds that the allegations, even if true. are de minimis and do not warrant a remedial order is disposed of herein. point prior to the election he wore a "patch" displayed on his shirt bearing the legend "The Teamsters are coming." According to Ashe, on one of the days he was wearing the patch, his supervisor, Jim Pursell, came to his work station and asked him what the patch meant. Ashe responded by telling Pursell that the Teamsters were coming.' In his pre- trial alidavit. which he reahlirmled at the trial, Ashe stated that he told Pursell on this occasion, "You might as well tace it. that the 'Ieamsters are coming." Pursell testified that about 2 weeks before the election he had a conversation with Ashe when Ashe was wearing a patch but that he did not remember asking him anything about the patch. Pursell testified the conversation involved personal matters, but did not elaborate. Pursell's testimony that he did not remember any refer- ence to the patch in his conversation with Ashe is uncon- vincing. Therefore, I credit Ashe's version of the conversa- tion, that Pursell asked him, in effect, what the patch meant. The complaint alleges that on or about March 24, 1978, Supervisor Junior McDaniel "interrogated an employee re- garding said employee's reasons for desiring union repre- sentation." Debora Moore. who was employed as a roustabout on the second shift, testified that on March 24 her foreman, Junior McDaniel, came to her work station and said "Deb- ora, just between you and myself I want to know why you want union representation." Moore replied that there were things going on that she didn't like and alluded to too much "favoritism" as one of the reasons she wanted representa- tion. McDaniel stated, "Well, I just wanted to know." He then walked away. McDaniel came back to Moore later that day and told her that he didn't want her to take him wrong and that he was not trying to be funny, but that he just wanted to know. Moore testified that on either that occasion or a later one McDaniel observed a note pad upon which she had written some questions she planned to ask at a company meeting involving the Union. McDaniel asked if he could read the questions, and Moore gave him permis- sion to do so, after which she asked him if he could answer them. McDaniel replied that he could not but that he thought they were good questions and she should ask them at the company meeting.7 McDaniel testified that at the time of the hearing he did not remember asking Moore why she wanted union repre- sentation or any question to that effect. However. he admit- ted that on one occasion he observed a list of questions lying on top of Moore's machine and asked her if he could read them. Moore agreed. and when McDaniel had finished reading the questions Moore asked what he thought about them. McDaniel told her they were good questions, and Moore asked if he could answer them. McDaniel told her he was not in a position to answer questions, but that she I At the hearing Ashe testified that he did not wear a patch for about a month before the election. This incident occurred on a day Ashe was wear- ing the patch. In an affidavit given a Board agent on April 25, Ashe placed the date of this incident on April 9. 7 The complaint does not specifically allege, nor, apparently, does the General Counsel argue, that McDaniel's request to lead the questions Moore had prepared to ask at the company meeting constitutes a violation of the Act. 1092 ANACONDA CO. should bring them up at the meeting it' she wanted an hon- est answer. Moore testified in a straightforward and convincing man- ner. particularrl with respect to McDaniel's interrogation of her concerning the reasons she wanted union representa- tion. On the other hand. McDaniel's equivocal denial ap- peared to he less than candid. In response to the question of whether he recalled making such an inquiry of Moore. Mc- Daniel replied, "No, sir. At this time I don't recall saying that." Accordingly. I credit Moore's testimony in this re- gard. The complaint, as amended at the hearing, alleges that on or about the first of April 1978, supervisor Junior Mc- Daniel "interrogated an employee by asking said employee what she thought about the Union" and that on or about April 12, 1978, Supervisor Bob Smith "interrogated an em- ployee by asking said employee what she thought the Union could do for her." In support of these allegations, counsel for the General Counsel elicited testimony from a former employee. Sandra Mahes. Mabes testified that during the union campaign she wore two union insignia indicating her support for the Union. One of the insignia bore the legend. "A woman's place is in the Union" and the other, "Teamsters are beau- tiful." About the first of April, McDaniel approached her in the shipping department and asked her what she thought about the union. Mabes apparently told McDaniel that she supported the Union, as was indicated by the insignia she was wearing. McDaniel then asked her what she thought the Union could do for her. She testified that she told Mc- Daniel what she thought the Union could do for her, but the record does not reveal what she told him. McDaniel acknowledges a conversation about the Union with Mabes about the first part of April in the shipping department. In this regard. McDaniel testified, "[F]irst we started talking about the management people; that she didn't feel free to talk to them the way she used to," to which McDaniel responded that the company had. and had always had, an open door policy and told Mabes that no one would know how she felt unless she told them. McDan- iel testified that they then talked about current benefits the employees had, which led to Mabes' inquiring of him about how he felt about the Union. McDaniel then told Mabes that if she thought the Union would benefit her it was en- tirely up to her. I am convinced that Mabes' version of the conversation is the more accurate. The discussion concern- ing management and Mabes' feeling that she was not free to talk with them was prompted by her response to McDan- iel's inquiry as to what she thought the Union could do for her. McDaniel testified that Mabes first brought up the sub- ject of management people not being as receptive as they used to be. Thus, I find that McDaniel asked Mabes what she thought about the Union and followed up by asking her what she thought the Union could do for her. Mabes further testified that Inspection Supervisor Bob Smith came to her in the shipping department on April 12. the day before the election, and told her. "Sandra, every- body has told me that you were for the Union. but I didn't believe them.... I thought you had more sense than that." Mabes replied that she thought she had a lot of sense, at which time Smith asked her what she thought the Union could do for her. Mahes told Smith that the Union was like an insurance policy. it would be there if she needed it. Smith then told Mahes that he had worked in unionized plants and there wasn't much difference between them and the Eden plant. Smith testified that he talked with Mabes on a couple of occasions but could not recall the conversation to which Mabes testified. Mabes testified in a straightforward and convincing manner and impressed me as speaking truth- fully. On the other hand. Smith did not categorically deny Mabes' testimony concerning the April 12 incident but merely stated that he could not "recall" or "remember." I credit Mabes that Smith inquired of her as to what she thought the Union could do for her. Analysis and Conclusions At the hearing the Respondent moved to dismiss the complaint and the objections to the election on the grounds that the conduct asserted by the General Counsel's wit- nesses, if found to be true, was so isolated in a unit exceed- ing 12() employees that a remedial Order was not warranted and as a matter of law are insufficient to overturn the elec- tion. All the allegations of the complaint, with which the ob- jections are coextensive, are based upon discussions be- tween company representatives and known union adher- ents. Some Board precedent holds that questioning of employees who have openly declared their union advocacy concerning their reasons for wanting the Union to represent them does not per se constitute a violation of the Act. 8 All the allegations herein involve such questioning, including the question concerning what the prounion insignia the em- ployee wore meant. The prounion insignia worn by the em- ployee here was clear, "The Teamsters are coming"; a ques- tion as to what it meant could only be construed by the employee to call for a defense of his adherence to the Union. Although not couched in terms of "What do you think the Union can do for you?" or "Why do you want union representation?" the clearly expected response is tan- tamount to the same thing. Thus, this case boils down to the question of whether four separate instances of interro- gation of three employees by three supervisors as to their reasons for supporting the Union amounts to conduct which would tend to interfere with the employee's Section 7 rights and, afortiori, the conduct of the election. In making a determination as to whether such interroga- tion of employees is coercive, some Board precedent ap- pears to require a consideration of certain elements of the surrounding circumstances, i.e., the personal relationship between the employee and the supervisor-whether on a first-name basis, whether a casual, informal conversation in an amicable atmosphere. and whether the information sought appeared to form a basis for taking reprisals against the employee.9 However, in more recent cases it appears that the Board does not find consideration of such factors to See Flight Sqfety. Inc, 197 NLRB 223 (1972), and Federal Paper Board Co., Inc., 206 NLRB 681, 683 (1973). ' See Pepsi-Cola Botling Co. of Los Angeles, 211 NLRB 870. 872 (1974). 10(93 I).(ISIONS OF NATIONAL LABOR REI.A1TINS BOARD be controlling. In T17T Automotive Electrical Products Divi- sion, 231 N.RB 347 (1977), the Board, Member Walther dissenting, reversed the Administrative Law Judge's conclu- sion that inquiries by two supervisors of two employees as to why they were wearing union buttons did not constitute unlawful interrogation. The Board majority concluded that although the two employees had openly declared that they were union adherents, the Respondent was not free to probe directly or indirectly into their reasons for supporting the Union. The Board majority stated, "[I]n our view, such probing tends to have a coercive effect upon employees, whether or not the employees have openly declared their support for the Union." In Paceco. a Division of Fruehauf Corporation, 237 NLRB 399 (1978). the Board again re- versed the Administrative Law Judge's conclusion that in- quiries by supervisors as to why an employee had changed his mind and was supporting the Union was not coercive, since such inquiries were not accompanied by threats or promises. The Board concluded that "an interrogation of an employee's union sympathies or his reasons for support- ing a union need not be uttered in a context of threats or promises in order to be coercive. The probing of such views, even addressed to employees who have openly declared their prounion sympathies, reasonably tends to interfere with employee rights under the Act, and, consequently. is coercive." The Board further held, "An inquiry into an em- ployee's views toward a union or unionization in general, even ostensibly questioned 'out of curiosity' and in the con- text of assurances against reprisals, reasonably tends to in- terfere with the free exercise of an employee's Section 7 rights. regardless of the employee's subjective state of' mind." In view of the foregoing precedents, by which I am bound, I find and conclude that the questioning of known union adherents as set forth above, directly or indirectly probing their reasons for wanting union representation, tends to have a coercive effect upon the employees and, therefore, violates Section 8(a)(1) of the Act. In so conclud- ing I have considered the following factors: There is no other evidence in the record demonstrating employer hostil- ity or discrimination toward those supporting the Union. The questioning was conducted by firstline supervisors who were on a first-name basis with the employees and occurred in casual informal discussions at the employees' work sta- tions. There is no evidence that the questions were asked to obtain information for the purpose of reprisals by the com- pany or that the employees believed such to be the case in view of their apparently truthful and freely given answers. Notwithstanding these findings with respect to the circum- stances surrounding the interrogations concerning employ- ees' reasons for desiring union representation. I find, in ac- cordance with ITT and Paceco, supra, that such interrogation of employees is inherently coercive and, there- fore, interferes with the exercise of their Section 7 rights. Such questioning of employees implicitly calls upon them to defend their right to support a union, which right is guar- anteed by Section 7 of the Act. The only purposes for such questioning of employees are: (I) to ascertain their reasons for union support so that the employer may argue the lack of merit for their reasons or (2) to determine their reasons so that he may take corrective action, which is in itself an unlawful promise of benefits to refrain from supporting the Union. Accordingly. by such conduct the Respondent has violated Section 7 of the Act. IV. Ill I F( I' OF SU(H (ONDI)('I IUPON lit II ,F('IION As heretofore noted, all the complaint allegations are co- extensive with Petitioner's Objection No. 5, which is con- solidated with the complaint case. It is well settled that any unfair labor practices occurring during the critical period"' do not necessarily require the election be set aside. The conduct must be such that it would reasonably tend to have an impact upon the results of the election. The Board has traditionally held that misconduct of the foregoing type has a tendency to impair employees' freedom of choice in repre- sentation elections and thus requires the holding of another election. However, in some cases the Board has concluded that certain objectionable conduct was too isolated in refer- ence to the total circumstances to warrant an inference that it affected the election results. In making this determina- tion, the Board considers the proximity of the conduct to the date of the election as well as the margin of votes dis- closed by the tally of ballots. The conduct here occurred during the 2 weeks before the election, some the day before, and was directly aimed at three employees by three supervi- sors. While there were 125 eligible employees, the Union lost the election by only seven votes. Thus, the impact of the misconduct is the same as if the entire unit consisted of; at most, seven employees." Accordingly, Petitioner's Objec- tion 5 has been sustained, and I shall set the election aside and direct a new one. CONCILUSIONS OF LAW I. Jurisdiction is properly asserted in these proceedings. 2. By coercively interrogating its employees concerning their reasons for desiring union representation and what they thought the Union could do for them, Respondent has engaged in unfair labor practices within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. 3. Respondent has not otherwise violated the National Labor Relations Act. 4. The conduct of Respondent as set forth in Conclusion of Law 2, above, occurring as it did during the pendency of the representation election in Case I -RC 4485, such con- duct being violative of Section 8(a)( 1 ) of the Act and coex- tensive with the Union's Objection 5. it follows that the election conducted on April 13, 1978, in Case I RC 4485 must be set aside and said case be remanded to the Re- gional Director for Region II with direction to conduct a new election at an appropriate time. TIE REMEDY Inasmuch as Respondent has been found guilty of viola- tions of Section 8(a)( I1) of the Act, which conduct interfered is Only conduct occurring between the date of the filing of the petition and the date of the election may be considered as conduct warranting the setting aside of the election. ' See Standard Knirtting Mills Inc., 172 NI.RB 1122 (1968). 1094 ANACONDA CO. with, restrained, and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act, I conclude from the totality of such unlawful conduct that Respondent should be required to cease and desist from any like or related conduct and to take certain affirmative action to effectuate the policies of the Act. Such affirmative action of Respondent shall be that it post the usual infor- mational notice. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 2 The Respondent, Anaconda Co.-Wire and Cable Div., Eden, North Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating its employees concerning their union activities, including, but not limited to, the rea- sons they desire union representation. (b) In any like or related manner interfering with, re- straining, and coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Post at its Eden, North Carolina, plant copies of the attached notice marked "Appendix."' Copies of said no- tice, on forms duly provided by the Regional Director for Region I 1, after being duly signed by Respondent's repre- sentative, shall be posted by Respondent immediately upon 12 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, 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. 13 In the event that this Order is enforced by ajudgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." receipt thereof, and be maintained for a period of 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region II. in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the election conducted on April 13, 1978, in Case I I -RC-4485 be, and the same is, set aside, and said case is remanded to the aforesaid Regional Director to conduct a new election at such time as he deems that the circumstances permit the employees to exercise their free choice regarding the selection of a collective-bar- gaining representative. APPENDIX NOTI(E To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, or assist unions of their choosing To bargain collectively through representatives of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any and all of these things. WE WILL NOT interrogate our employees concerning their union activities, including, but not limited to, the reasons they desire union representation. WE WILL NOT in any like or related manner interfere with, restrain, and coerce our employees in the exercise of their rights guaranteed by Section 7 of the Act. ANA(CONIA Co.-WIRE AND CABLE DIV. 1095 Copy with citationCopy as parenthetical citation