Certain Teed Corp.

National Labor Relations Board - Board Decisions

Mar 21, 1984

269 N.L.R.B. 293 (N.L.R.B. 1984)

CERTAIN TEED CORP.
Certain Teed Corporation and Glass, Pottery, Plas-
tics & Allied Workers International Union.
Case 10-CA-18724
21 March 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 15 July 1983 Administrative Law Judge J.
Pargen Robertson issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions' and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Certain
Teed Corporation, Athens, Georgia, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
' The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
Based on a credibility determination, the judge found that the Re-
spondent interrogated job applicant Griffith about his union activities in
violation of Sec. 8(a)(I) of the Act. In resolving the conflict in testimony
between Griffith and Personnel Supervisor Rachor, the judge noted that
the Respondent's supervisors had asked similar questions in the put (Cer-
tain-Teed Insulation Co., 251 NLRB 1561 (1980)), and that Rachor admit-
ted that the Respondent's employee handbook contained antiunion com-
ments somewhat similar to those Griffith attributed to her. The Board
finds it unnecessary to rely on these factors because the other reasons on
which the judge relied are sufficient to uphold his credibility finding.
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge.
This case was heard in Athens, Georgia, on April 12,
1983. The complaint which issued on December 27,
1982, and is predicated on a charge which was filed on
November 17, 1982, originally alleged that Respondent
engaged in several independent 8(a)(1) violations and in
violations of Section 8(a)(5) of the Act. Subsequently,
during the hearing, a settlement involving all of the par-
ties was approved as to all the 8(a)(5) allegations. As a
result all the 8(a)(5) allegations were amended out of the
complaint. The General Counsel alleges that Respondent
269 NLRB No. 51
engaged in Section 8(aXI) violations by interrogating an
employee on November 30, 1982, and an applicant for
employment on November 12, 1982, and by threatening
an employee with discharge on November 30, 1982.
On the entire record and from my observation of the
witnesses, and after due consideration of the briefs filed
by General Counsel, the Charging Party, and Respond-
ent, I make the following
FINDINGS OF FACT'
A. Alex Griffith
Alex Griffith testified that he applied for a job at Re-
spondent through the state employment security office
and that he was interviewed by Personnel Supervisor
Noreen Rachor on November 12, 1982. In regard to the
complaint allegations, Griffith testified that his interview
with Rachor included the following:
A. And we talked about my last job which was
at Owens of Georgia. She asked me did Owens
have a union. And my reply was yes and no be-
cause we had one and it got voted out.
And she asked me what did I feel about the
union what did I feel about the union. I said that I
was in support-a staunch supporter of the union.
And the conversation went on and finally-well,
a few minutes after that, it ended, and she said,
"Well, I'll get in touch with you." And I never
heard from her.
Q. Do you recall if she stated anything about the
union to you?
A. Well, yes. She explained to me that the Com-
pany had a union and the Company was unhappy
with the union and they wanted to eliminate the
union and they didn't want it there. And she began
to tell me-well, we didn't get into the problems
that the company and the union was having, but I
got the impression that-
Well, she told me that the company didn't want
the union there.
Noreen Rachor was called by Respondent. Rachor ad-
mitted that she conducted job interviews during Novem-
ber 1982. Rachor also testified that she recalled Alex
Griffith. However, according to Rachor, she did not spe-
cifically recall what was discussed during her interview
with Griffith. Rachor specifically denied that she made
any reference to the Union during her interview with
Griffith and she denied asking Griffith how he felt about
a union.
The complaint alleges, the answer admits, and I find that Respondent
is a corporation with an office and place of busines located in Athena,
Georgia, where it is engaged in the manufacture of insulation material
and is an employer engaged in commerce within the meaning of Sec. 2(6)
and (7) of the Act. The complaint also alleges, the answer admits, and I
find that Olass, Pottery, Plastics & Allied Workers International Union is
a labor organization within the meaning of Sec. 2(5) of the Act.
293
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Discussion
Respondent attacked Griffith's credibility by pointing
out confusion in Griffith's testimony regarding the se-
quence of subjects covered in his interview with Rachor.
Respondent is correct. Griffith's recollection as to the se-
quence of subjects covered in the interview differed at
the hearing from his testimony as to the sequence in his
December 13, 1982, affidavit to the Regional Office of
the NLRB. However, as to those differing versions, both
versions included interview subjects which are not in dis-
pute. Specifically, Griffith confused in his two versions
placement during the interview of an explanation by
Rachor of the available job and an explanation by Grif-
fith of his last employment.
Rachor admitted that she did not recall what was said
during Griffith's interview. But she testified that her
interviews with applicants routinely include questions as
to the applicant work history and an explanation by
Rachor of the available job.
Obviously, Griffith's confusion demonstrates that his
recollection of the interview has changed somewhat
since he gave an affidavit in December 1982. However,
the record does not show that his recollection has been
materially affected as to the substance of the interview.
In that regard his affidavit-which was received in evi-
dence-appears to corroborate his testimony at the hear-
ing.
Griffith testified with particularity as to the interview
whereas Rachor admittedly did not recall the particular
interview. Although Rachor denied that she interrogated
applicants about their union activities and stated that she
had been trained and instructed not to ask questions of
that type, I notice that similar questions have been asked
its employees by Respondent's supervisors in the past.
(See Certain-Teed Insulation Co., 251 NLRB 1561
(1980).) Additionally, Rachor admitted that Respondent's
handbook to employees contains antiunion comments
which are somewhat similar to those which Griffith at-
tributed to her. Rachor admitted that she knew of the
1980 union activities among Respondent's Athens em-
ployees. Finally Rachor admitted that on occasion when
applicants asked her about a union she told them, "We
do not currently have a union at Certain Teed,
Athens."2 In view of the above, the record as a whole,
and my observation of the demeanor of Griffith and
Rachor, I am persuaded that Griffith's testimony is more
reliable.
2. Finding
Griffith's testimony demonstrates that he was inter-
viewed in the Certain Teed offices under conditions
which would have a tendency to coerce. Griffith was ap-
plying for a job. He was interrogated about his union in-
volvement at his previous place of employment and
about his personal feelings about a union. Rachor pointed
out that Respondent was trying to rid itself of a union. I
find that the interview included interrogation in violation
2 The Union has been certified as representative of Respondent's
Athens employees. A test of that certification is now pending before the
U.S. I lth Circuit Court of Appeals.
of Section 8(a)(1) of the Act. (See, e.g., U.S. Industries,
258 NLRB 208 (1981), enfd. 701 F.2d 452 (5th Cir.
1983).)
B. William Deal
William Deal, who is currently employed by Respond-
ent as a grade 4 utility operator, testified that he bid and
received a downgrade from a grade 6 position on the
recommendation of his supervisor, David Smith. Follow-
ing Deal's downgrade he had a conversation with Super-
visor Smith around November 30, 1982, in a supervisor's
office:
A. Well, Mr Smith just wanted to know-that he
had overheard some fellow employees talking and
mention the fact that I was for the union and before
I had been against. And he just wanted to know
why-the reason that I had changed my mind.
And I indicated to Mr. Smith that I had been ap-
proached by some fellow employees that were for
the union. And Mr. Smith had been on the job and
observed my performance and he had thought that
my performance was such-the Grade 6 Operator's
job that is-that I should down-bid or-he already
given me a verbal warning and a written warning
on the job performance. And the next step would
be termination if my performance did not improve.
And according to Mr. Smith, my performance did
not improve. So, he advised me to down-bid-
down-grade. And also, he said, "Ed,-
Q. Did Mr. Smith say anything to you about-
A. Well, he mentioned-I was going to mention
the fact that he would like to offer his reasons why
someone employed at the Certain Teed plant should
not be for the union, that he thought that it would
be in my best interest to be against the union and
that he would want to know the reasons and he
would just like to give me his rebuttal for that.
Q. Did you say anything to him about the union,
whether you supported it or not?
A. I mentioned that I was not-I thought it was
in my best interest to be for the union. And I gave
no other reasons for that, but Mr. Smith also stated
that he thought he was doing me a favor, which
I'm sure he probably did, to allow me to down-bid.
And he thought that the union had been in actual
operation or in effect at the company at that time
that I would surely have been terminated.
Q. Was that a statement he made to you?
A. Yes.
Supervisor David Smith, who was called by Respond-
ent, testified:
Q. After he had downbid-you have heard Mr.
Deal's testimony here today of the conversation
you had with him?
A. Yes.
Q. Did you come to have a conversation with
him?
A. Yes, sir.
Q. In which the union was mentioned?
294
CERTAIN TEED CORP.
A. Yes, sir.
Q. Do you recall Mr. Deal testified that it oc-
curred, I believe, on the 30th of November? Do
you recall when the conversation occurred?
A. Not the date, exactly, no. I recall some of the
conversation.
Q. Where was the conversation?
A. It was in my office.
Q. Was there anyone else present?
A. No, sir.
Q. Could you tell us what was said in that con-
versation, please?
A. I heard out on the floor that he was for the
union and I was concerned about bringing him
down to see why and to give me a chance to rectify
his decision before he made a definite decision to
hear my side and the company's. I also asked him to
go back out on the floor, to think up any questions
or anything that he wanted to think about and to
come back and let me see if I could answer them
before he made his final decision of what he was
for, the union or the company.
Q. Did Mr. Deal say anything in response to
your discussion?
A. He was not very responsive-yes or no-or
he'd nod his head in that form. We spent about ten
minutes in my office and it was mostly a one-sided
conversation with me.
Q. What do you mean by one-sided conversation?
A. Well, I was doing all the talking trying to get
the reason for the way he felt and trying to give my
reasons just why I thought he should listen to me
before he made up his decision as far as the union
or the company-to give me a chance.
Q. What, if anything, was said about termination?
A. That was-if I recall correctly, there was
something about termination.
Q. What was said, as you recall?
A. If he did not improve-we're talking abut the
Grade 6. The grade 4, the conversation on that-if
we had a union, he probably would not have a job.
I didn't say he'd be terminated. I didn't threaten
him, I don't think. It was just like a conversation
you would have with one of your friends, I think.
Q. Do you recall particularly what was said?
A. Verbatim, no sir, I can't.
Q. Did you ask him, "Do you realize that if we
had a union, you would probably have been termi-
nated?"
A. I might have said something like that.
1. Discussion
In view of Smith's admissions, I shall credit his and
William Deal's testimony.
2. Finding
David Smith's testimony that Deal "was not very re-
sponsive" "it was mostly a onesided conversation with
me" illustrates the reluctance of Deal to be involved in a
conversation regarding his union feelings. I am persuad-
ed that Deal was interrogated and threatened with loss
of his job, in a manner which had a tendency to coerce.
Therefore I find that Respondent violated Section
8(aX1). (See US. Industries supra.)
CONCLUSIONS OF LAW
1. Respondent, Certain Teed Corporation, is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. Glass, Pottery, Plastics & Allied Workers Interna-
tional Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interrogating its employees concerning their
union activities and threatening its employee with loss of
his job if he supported the Union, Respondent has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(Xl1) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices I shall recommend that it be ordered to
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and
on the entire record I issue the following recommendedS
ORDER
The Respondent, Certain Teed Corporation, Athens,
Georgia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interfering with, restraining, and coercing its em-
ployees in the exercise of rights guaranteed them in Sec-
tion 7 of the Act in violation of Section 8(a)(1) of the
Act by interrogating its employees regarding their union
activities and by threatening its employees with loss of
jobs if they engage in union activities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act.
(a) Post at its Athens, Georgia facility copies of the at-
tached notice marked "Appendix." 4 Copies of the notice,
on forms provided by the Regional Director for Region
10, after being signed by Respondent's authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to ensure that notices are not al-
tered, defaced, or covered by any other material.
a If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
4 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
295
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Workers International Union, or any other labor organi-
zation.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees with respect to
their exercise of rights guaranteed them by Section 7 of
the National Labor Relations Act.
CERTAIN TEED CORPORATION
WE WILL NOT interrogate our employees concerning
their union activities.
WE WILL NOT threaten our employees with loss of
jobs if they support Glass, Pottery, Plastics & Allied
296