Boyle-Midway, Inc.

National Labor Relations Board - Board Decisions

Feb 5, 1980

247 N.L.R.B. 851 (N.L.R.B. 1980)

BOYLE-MIDWAY, INC.
Boyle-Midway, Inc., Division of American Home
Products Corp. and Highway Drivers, Dockmen,
Spotters, Rampmen, Meat Packing House and
Allied Products Drivers and Helpers, Office Work-
ers and Miscellaneous Employees, Chicago, Vicini-
ty, Local 710, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America. Cases 13-CA-18632 and 13-RC-14973
February 5, 1980
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On November 13, 1979, Administrative Law Judge
Robert A. Giannasi issued the attached Decision in
this proceeding. Thereafter, the Charging Party filed
exceptions and a supporting brief, and Respondent
filed a brief in response to the Charging Party's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions2 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
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Boyle-Midway, Inc.,
Division of American Home Products Corp., Chicago,
Illinois, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommended
Order.
IT IS FURTHER ORDERED that the election conduct-
ed on March 21, 1979, be, and it hereby is, set aside,
and Case 13-RC-14973 is hereby severed and re-
manded to the Regional Director for Region 13 for the
purpose of conducting a new election at such time as
he deems the circumstances permit the free choice of a
bargaining representative.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
I The Charging Party 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 credibility
247 NLRB No. 124
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 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
:The election herein was conducted on March 21. 1979. pursuant to a
Stipulation for Certification Upon Consent Election. The tally of ballots was:
I votes for the Petitioner (Charging Party); I I votes for Oil, Chemical and
Atomic Workers International Union, AFL-CIO. Local 7-348. and 16 votes
against participating labor organizations; there were 4 challenged ballots, a
number sufficient to affect the election results. Thereafter, the Petitioner filed
objections to the conduct of the election. During the hearing, the parties
stipulated that the challenge to Delores Jackson's ballot should be sustained as
she was a confidential employee. The Petitioner then withdrew the remaining
challenges. The Administrative Law Judge subsequently concluded that
during the critical preelection period Respondent had engaged in unfair labor
practices which interfered with the employees' free choice in the election and.
thus, set aside the election and ordered that a new election be held. There are
no exceptions to these findings and recommendations.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge: This
case was heard on August 22 and 23, 1979, in Chicago,
Illinois. The complaint in Case 13-CA-18632, as amended,
alleges that Respondent violated Section 8(a)(1) of the
National Labor Relations Act, herein called the Act, by
interrogating employees and making coercive statements to
them and Section 8(a)(3) and (1) of the Act by not
processing previously scheduled raises for employees be-
cause of a union campaign.' Case 13-RC-14973 is a
representation case wherein the Charging Party Union
petitioned for an election and filed challenges and objections
to the results.' The two cases were consolidated for hearing.
The election results were as follows: 11 votes for Charging
Party Union, 11 votes for the other union on the ballot, Oil,
Chemical and Atomic Workers, Local 7-348 (hereafter
OCAW), 16 votes against both unions and 4 challenged
ballots. At the hearing, the parties agreed that the challenge
to the ballot of Delores Jackson should be sustained since
she was a confidential employee. The Charging Party Union
withdrew the remaining challenges. Some of the objections
involved conduct which was also alleged as unfair labor
practices. Evidence was also submitted on other objections,
which, in view of my disposition of the case, I do not
consider in this Decision.
The parties submitted brief, the last of which was received
by me on October 1, 1979.
Based on the entire record in this case, including the
testimony of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, which is a Delaware corporation engaged in
the manufacture of polishes and sanitation goods, operates a
plant at 5151 West 73d Street, Chicago, Illinois, the facility
At the end of the presentation of her case. counsel for the General Counsel
withdrew two allegations from the complaint. One other allegation was
dismissed for lack of evidence.
: The election petition was filed on January 25. 1979, and the election was
held on March 21. 1979.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
involved herein. During the last calendar year, Respondent
purchased and received goods, at its Chicago plant, valued
in excess of $50,000 directly from points outside the State of
Illinois. Accordingly, I find, as Respondent admits, that it is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
The Charging Party Union (hereafter the Union) is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
About 500 to 600 employees work at Respondent's 73d
Street facility. Respondent's plant employees are represented
by OCAW. The election unit involved in this case is
comprised of approximately 44 office clerical employees.
In January, 1979, two organizers from the Union met with
some of Respondent's clerical employees and collected
authorization cards. On January 23, 1979, Union Organizer
Sam Bongiovanni and another union official went to
Respondent's plant in an attempt to talk to the plant
manager, Thomas Cabanski, about recognizing the Union.
Cabanski was not in, so, after talking to the receptionist and
waiting for about a half hour for Cabanski to return,
Bongiovanni and his partner left without talking to any
management official. The same day, the Union filed an
election petition in Case 13-RC-14973.
B. The Interrogations
On January 25, 1979, Neal Mattes, the office manager,
had a conversation with employee Pat Urbaitis in his office.
He asked why she wanted a union. He said he thought that
the employees and management were "one big happy
family" and that Respondent tried to be fair with the
employees so he could not understand why the employees
wanted a union. Urbaitis, who had talked to a union official
a few days before, when she heard that Mattes was calling
employees into his office to ask about the Union, said she
preferred not to answer any questions about the Union.
Mattes then denied he was interrogating her and said she
had her legal rights, but "went on talking." No one else was
present and this was one of the few times in 15 years of
employment that Urbaitis had been called in to Mattes'
office; the other times involved work-related matters.
Four other employees testified that they were each called
individually into Mattes' office at or about this time and
asked why they wanted a union.
On January 29, Supervisor Bill Van Meter spoke to
Urbaitis in the production manager's office. They were
alone. Van Meter said that he understood that Mattes had
spoken to each of his department's employees individually
and asked why they wanted a union. Van Meter said that he
felt that this should have been done by him because he was
the acting supervisor. According to Urbaitis, Van Meter
I An AHT is an authorization form provided by the treasurer's office of the
parent company for an expenditure. It is prepared at the local level and goes
to the home office in New York for final approval.
spoke to the employees individually "to ask us about the
union." He wanted to know if the Union would mean
"changes in his department." Urbaitis refused to discuss the
matter.
Other employees testified that they were called into an
office individually by Van Meter and asked why they wanted
or needed a union.
Neither Mattes nor Van Meter was called as a witness.
The above interrogations were systematic: all employees
were called individually into the office of management
officials, one of whom, Mattes, the office manager, can be
described as a high level official, and questioned as to why
they needed a union. Some refused to answer. The testimony
indicates that the employees were rarely called into Mattes'
office and then only for work-related matters. The systemat-
ic questioning was done twice, by a different management
official each time. No reason for the questioning was given
and no assurances against reprisals were made. The ques-
tioning took place shortly after the election petition was
filed. Respondent readily admits that it was opposed to
union representation for its clerical employees. Such interro-
gation, particularly where, as here, it is done systematically,
with individual employees, in the locus of authority, and the
purpose for the questioning is not revealed and no assurance
against reprisals are made, has the natural tendency to
coerce employees. Accordingly, I find such interrogation to
be violative of Section 8(a)(1) of the Act. See Struksnes
Construction Co., Inc., 165 NLRB 1062 (1967).
In addition, since the unlawful interrogation touched all
of the employees in the election unit, it was sufficiently
serious as to have interfered with the election results.
Indeed, similar conduct, even where it does not rise to the
level of an unfair labor practice, may require the holding of a
new election. See Montgomery Ward & Co., 225 NLRB 112,
119 (1976); cf. NVFCompany, Hartwell Division, 210 NLRB
663 (1974).
C. Other Alleged Unlawful Conduct
Deborah O'Hara, who has been employed by Respondent
in a full-time position since October 1977, is classified as a
clerk. In July 1978, Supervisor Bill Van Meter told O'Hara
that Respondent was hiring some new key tape operators,
which would mean a pay raise and a title change for her. She
said she was interested. In September 1978, she began "key
taping." She subsequently asked Neal Mattes, the office
manager, about her pay raise and title change. Mattes said
that the Chicago plant had submitted an AHT to the home
office in New York but the home office had denied it because
all of the new key tape operators had already been hired and
there were no further openings.' Mattes asked her to wait
until December when allowances would be made in the
normal yearend raise. In December 1978, O'Hara once again
talked to Mattes about a raise and title change. Mattes
indicated that they would not be reflected in the yearend
raise but that "hopefully the Christmas raise would be
enough to satisfy me until March when he would definitely
put through the A.H.T. for an additional pay raise and title
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BOYLE-MIDWAY, INC.
change. I said I would wait then." In December 1978 she
was raised from $4.35 per hour to $4.55 per hour.
O'Hara's personnel records indicate that she began her
full-time employment in October 1977 as a billing clerk and
she was given a raise of $65 per month and a title change to
clerk A, effective January 1, 1979. Her December 1978
evaluation rated her "outstanding," but mentioned nothing
about an additional raise beyond that which she would be
receiving at year's end and said nothing about her being a
key tape operator. The raise O'Hara received in January
1979 was the largest percentage raise of any employee in her
department.
On March 7, 1979, OHara spoke with Van Meter about
her raise and title change. He said "due to union activity
they were not allowing any A.H.T.'s to go through."
Karen Washington has been employed for 5 years. Since
September 1978 she was a keypunch operator. At that point
she was promoted from a clerk's job and raised $50 per
month. On January 1, 1979, she received another $55 per
month raise. Washington claimed that, when she was
promoted in September 1978, Van Meter told her he "would
try to get me more money in December." In a subsequent
conversation, Van Meter told her that she would get another
raise in March. She did not receive a raise in March and did
not talk to Van Meter about it.
In May 1979, O'Hara and Washington spoke to Mattes
about their pay raises and mentioned that they heard
another employee had gotten a pay raise and title change.
Mattes said that this was not true, that the other employee
had not gotten a raise, and that "union activities were not
allowing any A.H.T.'s to go through." Washington, who
was also present at this meeting, testified that, when O'Hara
asked Mattes about the title change and raise Van Meter had
promised her, Mattes said he would "get back to her."
Washington also asked Mattes about the wage increase Van
Meter had promised her in March and Mattes said, "as far
as I'm concerned you received it and Bill Van Meter had no
right to promise you anything."
In several meetings Respondent's officials held with
employees after the election petition was filed, management
officials told employees that they could not make promises
with respect to raises or benefits because of the union
campaign.
There are two types of increases for clerical employees.
One is a merit review conducted on an annual basis for all
employees and which may result in a raise effective January
I of each year. The other is a promotional increase due to an
upgrade to a vacant or new position. Each of these increases
are effectuated by an AHT which is generated by the local
plant manager. Merit wage increases for clericals are
processed only at the end of the year, usually from October
through February. Promotional increases are granted at
other times of the year. It is unusual, according to Plant
Manager Cabanski, that a merit wage increase would be
processed in February or March because it is so soon after
the annual wage increase. Since January 1, 1979, Plant
Manager Cabanski had not spoken to any of his supervisors
' I hereby grant the General Counsel's post-hearing motion to admit into
evidence G.C. Exh. 12(a)-12(d) supplied by Respondent pursuant to a
subpena after the hearing was completed. These documents do not establish
that O'Hara and Washington had previously been promised or scheduled
wage increases. And to the extent that they suggest that some AHTs were
about a raise for either Karen Washington or Deborah
O'Hara.
I reject the General Counsel's contention that Respondent
withheld previously scheduled wage increases from Wash-
ington and O'Hara because of their union activity or because
of union activity in general. The testimony concerning
whether the raises were previously scheduled is ambiguous
at best. In Washington's case it is clear that, even if
Supervisor Van Meter "promised" her more money, it was
not within his authority to do so. Mattes clearly told her this
in their May 1979 conversation. She had been promoted in
September 1978 and received raises amounting to $105 per
month by January 1979. Considering that wage increases
normally come only once yearly and Washington's job title
and duties did not change, it is highly unlikely that another
raise was scheduled for her. Even giving Washington's
testimony its most liberal interpretation, I can only conclude
that Van Meter simply said he would try to get her more
money. The testimony does not establish that a wage
increase was scheduled and due to Washington.
O'Hara's allegedly promised and scheduled raise and title
change is likewise not established. O'Hara testified that she
felt that her January 1979 raise was the normal yearend
raise, but that it was not sufficient to bring her to the level of
a key tape operator, a job she said she was promised and
was, in her view, performing. She said she did the "exact
same" job as the two key tape operators in the office. The
two other operators, however, each had over 14 years'
experience. It would be preposterous to believe that O'Hara
was promised or scheduled a wage increase which would
have entitled her to earn as much as these employees.
Moreover, O'Hara by her own admission only performed
key tape work 3 hours per day; the remainder of her day was
spent doing miscellaneous clerical work. The two key tape
operators perform key tape work all day. Thus, it is likely
that O'Hara's testimony was imbued more with her expecta-
tions rather than what realistically was promised or sched-
uled for her by her employer.
O'Hara clearly was not promoted to keypunch operator
and her job did not entail doing keypunch work for more
than 3 hours per day. She was promoted to a clerk A
position and despite ambiguous testimony which, at best,
suggests that her supervisors were considering more money
for her, there was no scheduled raise or job title change for
O'Hara. Certainly no specific amount of raise was consid-
ered and, in view of the fact that she was not a full-time
keypunch operator, no definite scheduled job promotion was
promised or contemplated.'
I turn now to the allegations that Respondent violated
Section 8(a)(l) of the Act when Mattes and Van Meter told
employees O'Hara and Washington that raises and job
changes would not be processed because of "union activity."
Frankly, I have some reservations as to whether Washington
and O'Hara were testifying to the precise words used by
Mattes and Van Meter or were testifying, subjectively, as to
what they understood was said. The Respondent had made
clear in preelection speeches that it could not promise raises
being processed for promotions during the spring of 1979, the evidence tends
to weaken the General Counsel's case even further. For there is no evidence
that O'Hara and Washington were prominent union adherents or that
Respondent harbored a specific union animus directed toward them. Thus,
they were not singled out for discriminatory treatment.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or benefits during the election campaign. The thrust of the
testimony of Washington and O'Hara was that two of
Respondent's officials also said there would be no raises
granted. In the absence of other testimony, I must accept the
testimony of Washington and O'Hara. Their testimony was
not impeached, and they appeared to be honest witnesses. In
this respect, I find that Van Meter told O'Hara that there
would be no raises granted because of the "union activity"
and that Mattes made the same statement in a May 1979
meeting with her and Washington. When an employer tells
employees that he cannot give raises because of union
activity, he violates Section 8(a)(1) of the Act for the
employer is obligated under the Act to take a neutral stance.
He may not change existing policies on raises or promotions
because of union activities.' According to uncontradicted
testimony, Respondent told employees that it was not
granting a raise, not because of existing policies, but because
of union activities. This was unlawful for it tends to suggest
to employees that removing "union activities" from the
office or plant environment will result in raises or benefits.
D. The Election Objections
As I have indicated, I have found that Van Meter and
Mattes unlawfully and systematically interrogated employ-
ees concerning their need for a union. I have also found that
Respondent told employees that raises would not be pro-
cessed because of union activities. This conduct was violative
of Section 8(a)(1) of the Act. The interrogations and one of
the statements concerning the withholding of wage increases
occurred prior to the election of March 21, 1979. This
conduct was sufficiently coercive and widespread so as to
interfere with the employees' free choice in the election and
to require the election to be set aside. I therefore recommend
that the election of March 21, 1979, be set aside and a new
election be held when the Regional Director determines the
time to be appropriate.'
CONCLUSIONS OF LAW
1. Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
2. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
3. Respondent has not violated the Act by withholding
previously scheduled wage increases from employees O'Hara
and Washington.
THE REMEDY
Since I have found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act, I
will recommend that Respondent cease and desist therefrom
and take certain affirmative action designed to effectuate the
policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDER'
The Respondent, Boyle-Midway, Inc., Division of Ameri-
can Home Products Corp., Chicago, Illinois, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their union mem-
bership, sympathies, or desires.
(b) Telling employees that raises or other benefits would
be withheld from employees because of union activities or
the pendency of a union campaign.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Post at its Chicago, Illinois, facility copies of the
attached notice marked "Appendix."' Copies of said notices.
on forms provided by the Regional Director for Region 13,
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able 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 13, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges unfair labor practices not found herein.
IT IS FURTHER ORDERED that the election conducted in
Case 13-RC-14973 on March 21, 1979, be set aside and that
the case be remanded to the Regional Director for Region 13
to conduct another election at such time as he deems
appropriate.
The Gates Rubber Co.. 182 NLRB 95 (1970).
I do not reach the issue of whether the additional objections to the
election, which were not also alleged as unfair labor practices. were
independently or collectively sufficient to require the overturning of the
election.
' 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.
' In the event that this Order is enforced by a Judgement of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Boards" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportunity to
present evidence, the National Labor Relations Board has
854
BOYLE-MIDWAY. INC.
found that we violated the National Labor Relations Act,
and has ordered us to post this notice.
WE WIlL NOT question employees about their union
membership, sympathies or desires.
WE WIIl.. NOT tell employees that raises or other
benefits will be withheld from employees because of
union activities or the pendency of a union campaign.
WE WILL NOT, in any like or related manner,
interfere with, restrain, or coerce employees in the
exercise of their rights under Section 7 of the Act.
BOYLE-MIDWAY, INC., DIVISION OF AMERICAN
HOME PRODUCTS CORP.
855