Complas Industries, Inc.

National Labor Relations Board - Board Decisions

May 11, 1981

255 N.L.R.B. 1416 (N.L.R.B. 1981)

1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Complas Industries, Inc. and Michael Allen Duns-
worth. Case 25-CA-11249
May 11, 1981
DECISION AND ORDER
On February 3, 1981, Administrative Law Judge
Abraham Frank issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed an answering brief in support of the
Administrative Law Judge's Decision.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge, as modified herein.
The Administrative Law Judge dismissed the al-
legation that the questioning of employee Greg
Doran violated Section 8(a)(l) of the Act, finding
that it was isolated and noncoercive, and that the
safeguards set forth in Johnnie's Poultry Co. and
John Bishop Poultry Co., Successor,3 are applicable
only to questioning by attorneys. The General
Counsel excepts, contending that the interrogation
was coercive and that the standards of Johnnie's
Poultry also apply to questioning of employees by
management officials. We find merit in this excep-
tion.
Dunsworth named Doran in his charge as the
person who he believed had informed management
of his activities on behalf of the Union. Stuart con-
cededly questioned Doran about the allegations in
the charge, asking him about Dunsworth's work
performance and union activity in the plant. Ac-
cording to Stuart, Doran "was evasive .... He
pretended or stated that he didn't know anything
about any Union." Stuart did not give Doran any
assurances against reprisals or inform him that he
was free to refuse to answer the questions.
Initially, we find that the questioning was neither
isolated nor innocuous. Stuart concededly spoke to
Doran on more than one occasion about the sub-
ject of the charge. When questioned, Doran was
"evasive," and denied having knowledge of the
I The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility 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 re-
versing his findings.
2 We are unable to agree with the Administrative Law Judge's finding
that the size of the plant herein precludes application of the small-plant
doctrine. Nevertheless we agree with his conclusion that, under all of the
circumstances, the General Counsel has failed to establish by a prepon-
derance of the evidence that Dunsworth was discharged for his union ac-
tivity.
3 146 NLRB 770 (1964).
255 NLRB No. 186
union activity of which he was well aware. Under
similar circumstances, the Board has found ques-
tioning by a high management official to be coer-
cive. 0 & H Rest., Inc., trading as the Backstage
Restaurant, 232 NLRB 1082, 1088 (1977).
Secondly, neither Johnnie's Poultry, itself, nor
later cases have limited the requirements of that
case strictly to attorneys. 4 Where management has
legitimate needs to obtain information from em-
ployees it may do so if the stringent safeguards set
forth in Johnnie's Poultry are observed. In this case,
Respondent clearly ignored those requirements.
Accordingly, we find that the questioning of
Doran violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent Complas Industries, Inc., is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. By coercively interrogating employee Doran,
Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(l) of the Act.
3. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that Respondent engaged in, and is
engaging in, unfair labor practices in violation of
Section 8(a)(1) of the Act, we shall order Respond-
ent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the
purposes of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Complas Industries, Inc., Evansville, Indiana, its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their
or other employees' union membership, affiliation,
views, sympathies, activities, or other protected
concerted activities in interference with, restraint,
or coercion of their exercise of any right under the
National Labor Relations Act, as amended.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them under Section
7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
4 See, e.g., Roadway Express. Inc., 239 NLRB 653, 664-666 (1978).
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COMPLAS INDUSTRIES, INC. 1417
(a) Post at its plant in Evansville, Indiana, copies
of the attached notice marked "Appendix."5
Copies of said notice, on forms provided by the
Regional Director for Region 25, after being duly
signed by Respondent's representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, 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 25,
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
herein be, and it hereby is, dismissed insofar as it
alleges violations not found herein.
a In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant 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 sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act, as amended, gives all employees the
following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT question you in violation of
the Act concerning your union membership,
affiliation, views, sympathies, activities, or
other rights guaranteed you under the Nation-
al Labor Relations Act, as amended.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Sec-
tion 7 of the Act.
COMPLAS INDUSTRIES, INC.
DECISION
STATEMENT OF THE CASE
ABRAHAM FRANK, Administrative Law Judge: The
charge in this case was filed on August 23, 1979,1 and
the complaint, alleging a violation of Section 8(a)(l) and
(3) of the National Labor Relations Act, as amended,
was issued on October 18. The hearing was held on
April 4, 1980, at Evansville, Indiana. All briefs filed have
been considered. 2
At issue in this case is whether Complas Industries,
Inc., hereinafter Respondent, violated Section 8(a)(1) and
(3) of the Act by discharging a single employee.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. PRELIMINARY FINDINGS AND CONCLUSIONS
Respondent, with its principal office and place of busi-
ness in Evansville, Indiana, is engaged in the business of
manufacturing, selling, and distributing plastic molding
compounds and related products. Respondent admits,
and I find, that it is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
Aluminum Workers International Union, AFL-CIO,
Local Union 142, hereinafter the Union, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
II. THE FACTS
Respondent's plant operates in three shifts: The first
shift-7 a.m. to 3 p.m.; the second shift-3 p.m. to 11
p.m.; and the third shift II p.m. to 7 a.m. There are 4
employees in the mixing department and I I employees in
the production or extrusion department. At times materi-
al herein Jerry Duckworth and Rick Painter were fore-
man and leadman, respectively, on the first shift; Jack
Spaulding and Jerry Campbell were foremen and lead-
man, respectively, on the second shift; and Russell or
Mark McIntosh and Cliff Gary were foreman and lead-
man, respectively, on the third shift. James Stuart is the
vice president of production and Jerry Clark is the plant
superintendent.
Micheal Allen Dunsworth, the Charging Party, was
employed by Respondent in July 1978, and assigned to
the mixing department on the second shift. In September
1978 he was transferred to the third shift and in Febru-
ary, at his request, he was transferred to the production
department under the supervision of Foreman McIntosh
on the third shift.
On April 24 McIntosh evaluated Dunsworth's per-
formance essentially as fair, but added the following
comment:
I All dates are in 1979 unless otherwise indicated.
2 Respondent's motion to correct transcript errors is granted.
COMPLAS INDUSTRIES, INC.
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Does not know how to run a machine; does not try
to find out what is causing the problem with the
machine. Has a hard time in getting job done. Very
sloppy in cleaning area. He causes so many prob-
lems for himself has no time to help anybody else.
McIntosh noted as a postscript, "Asking myself as fore-
man, he should have stayed in mixing or take a job as a
bander." McIntosh called Dunsworth into the office and
in the presence of leadman Gary told Dunsworth that
the evaluation was not very good and that Dunsworth
would have to improve. Clark also spoke to Dunsworth
at this time. 3 Clark told Dunsworth that Dunsworth
would have to improve or be terminated. Dunsworth left
angry. About a week later Dunsworth asked to transfer
to another shift. Thereafter, Dunsworth was transferred
to the second shift under the supervision of Jack Spauld-
ing.
On June 4 Spaulding evaluated Dunsworth's work es-
sentially as fair with no adverse comments. In a conver-
sation with Spaulding and Clark relating to the June 4
evaluation, Clark asked Dunsworth if there had been a
personality conflict between Dunsworth and McIntosh.
Dunsworth answered, "Yes." Spaulding told Dunsworth
that he was doing a good job and Clark said that he had
had no complaints from anyone other than McIntosh and
for Dunsworth to keep working good.
About May or June complaints among the employees
about forced vacations, forced overtime, and safety haz-
ards prompted Dunsworth and another employee, Steve
Eden, to contact a lawyer for the purpose of establishing
a union at Respondent's plant. Thereafter, Dunsworth
spoke to a few of the employees and it was concluded
that this approach would be too expensive. Very late in
June or early in July Dunsworth called Kenneth Palmer,
an officer of the Union, and asked for Palmer's help in
securing representative status for the Union at the plant.
Palmer said that he and other union officials would be
tied up for a few weeks, but that he would turn the
matter over to the proper people at the International's
convention.
Following his conversation with Palmer, Dunsworth
spoke to about 17 employees, asking their opinion of the
Aluminum Workers International and whether, if it came
to a vote, they would vote for the Union. Greg Doran, a
brother of Stuart's sister-in-law, was among the employ-
ees contacted by Dunsworth during the first week of
July. Doran told Dunsworth that Doran was Stuart's
brother-in-law and that Doran did not want to get into
trouble because of the Union. Doran indicated that he
was not opposed to a union, but that he did not want to
help bring it into the plant. Doran testified without con-
tradiction that Dunsworth said that he wanted a union
because he knew his job was on the line.
Doran spoke to three or four other employees and
asked them whether Dunsworth had talked to them
about the Union.
During June and July Dunsworth worked under the
supervision of leadman Jerry Campbell. Campbell ob-
served that Dunsworth violated company rules by shut-
s Dunsworth denied having a conversation with Clark as to this evalu-
ation. I credit Clark on this point.
ting his machine down because he was thirsty and for
cleanup purposes. Campbell also noted that Dunsworth
was not paying proper attention to his machine, poking
his hopper for longer periods of time than necessary.
Campbell did not recall complaining specifically about
Dunsworth, a friend of Campbell's. However, Clark tes-
tified that Campbell told Clark on July 10 or II that
Campbell could not get Dunsworth to work. Clark told
Campbell to evaluate all the employees on his shift.
Campbell's evaluation of Dunsworth, dated July 11, gave
Dunsworth an essentially poor job performance rating.
Campbell added the following comment:
Is very slow. Doesn't watch machine. Will shut ma-
chine off to get refreshment or clean up. Will argue
with supervisors if told to change tem. for one
reason or another. Sight may be problem but is
slow to react and can't see very well. Request that
he be put in mixing or packaging.
Sometime between 3 and 4 p.m. on July 12 Clark and
Stuart discussed Dunsworth's past performance and
reached the decision to discharge him. Stuart called
Dunsworth into the office at or about 4 p.m. and asked
Dunsworth if he had seen all of his evaluations and
whether the comments on the bottom of the evaluations
were correct. Dunsworth admitted seeing his evalua-
tions, but said that he had shut the machine down to
poke the hopper so that the material would feed proper-
ly and that he had also shut the machine down to clean
up the scrap for the next shift. Dunsworth said that he
was doing his job and asked to be transferred back to
mixing. Stuart said that there were no openings at the
time. Stuart told Dunsworth that the Company could not
permit an employee to arbitrarily shut his machine down
and argue with the shift foreman about what he was sup-
posed to do. Stuart suggested that Dunsworth give the
Company 2 weeks' notice and look for another job.
Dunsworth refused the offer. Stuart then suggested that
the best the Company could do was to allow Dunsworth
to finish out the week. However, Clark, who was pres-
ent, interposed that if Dunsworth was to be discharged
he should leave the plant immediately. At that point
Dunsworth was discharged.
In addition to Dunsworth, Campbell evaluated 11
other employees on his shift for the month of June. Al-
though the performance ratings of these employees
ranged from moderately poor to good, none was as poor
as that of Dunsworth and no employee other than Duns-
worth received adverse comments on the evaluation
form.
Respondent is strongly opposed to the unionization of
its employees.
Dunsworth's charge included the following statement:
"I think Greg Doran was the one who told them I was
talking to everyone about a union." Upon receipt of
Dunsworth's charge, Stuart asked Doran about his opin-
ion of Dunsworth's job performance and if there was
union activity going on.
At the hearing the General Counsel amended the com-
plaint to allege that Respondent violated Section 8(a)(1)
of the Act by the above interrogation of Doran.
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COMPLAS INDUSTRIES, INC. 1419
III. ANALYSIS AND FINAL CONCLUSIONS OF LAW
I conclude that Respondent did not violate Section
8(a)(1) and (3) of the Act by discharging Michael Allen
Dunsworth on July 12.
I have considered the evidence adduced by the Gener-
al Counsel that Dunsworth was discharged, at least in
part, because of his union activity. Thus, the timing of
his discharge, within days after he had called Palmer, the
alacrity with which it was accomplished, the absence of
any written warning, and Respondent's strongly held an-
tiunion views all point to a decision by Respondent to
rid itself of a determined union activist.
Nevertheless, the General Counsel has failed to prove
an essential element of his prima facie case; i.e., that Re-
spondent had knowledge on or before July 12 that Duns-
worth or, indeed, any of its employees was engaged in
union and protected concerted activity.
Contrary to the General Counsel, the fact that Doran
referred to himself as Stuart's "brother-in-law" and asked
other employees their views about the Union is not suffi-
cient in and of itself to warrant the inference that Doran
informed Stuart of Dunsworth's union activity. While
urging that this inference be drawn, the General Counsel
argues at the same time that Stuart unlawfully interrogat-
ed Doran following receipt of Dunsworth's charge in
August. The General Counsel cannot have his cake and
eat it too. If Stuart knew in July that Dunsworth and
other employees were engaged in union activity, why
would Stuart find it necessary to question Doran on this
subject in August?
Nor, in my opinion, is the inference warranted that
Respondent learned of Dunsworth's union activity by ap-
plication of the small-plant doctrine. Respondent em-
ploys 50 employees, including packaging employees, in 3
shifts, a group not so small and intimate that knowledge
may be inferred on that basis alone. The fact of the
matter is that Dunsworth was not a good employee. In
April he was evaluated essentially as fair with adverse
comments. In June he had improved. In July his evalua-
tion dropped to poor and he was discharged. Apparent-
ly, Dunsworth was quite aware of his tenuous status and
this was a reason, if not the most important one, that he
enlisted the aid of a union. In these circumstances the
evidence of unlawful motivation, though raising a suspi-
cion of an unlawful discharge, does no more than that.
Suspicion is not a substitute for a preponderance of the
evidence, which is the General Counsel's burden. I
cannot infer on the record evidence that Respondent
somehow learned of Dunsworth's union activity and dis-
charged him for that reason.
I find further that Respondent did not violate Section
8(a)(l) of the Act by Stuart's interrogation of Doran fol-
lowing Respondent's receipt of Dunsworth's charge.
This isolated instance of interrogation, admitted by
Stuart, was not coercive in and of itself or in the context
of coercive conduct. It was an isolated act prompted by
the notation on Dunsworth's charge that Doran may
have informed Respondent of Dunsworth's union activi-
ty. Despite Respondent's opposition to unions and its
campaign against a union prior to a scheduled Board
election in 1978, there is no history of unfair labor prac-
tices against this Respondent. Noncoercive interrogation
under noncoercive circumstances is not unlawful. Flint
Provision Co., 219 NLRB 523 (1975).
Johnnie's Poultry Co. and John Bishop Poultry Co., Suc-
cessor, 146 NLRB 770 (1964), upon which the General
Counsel relies, is inapposite. In that case and its progeny
the Board considered standards applicable to the ques-
tioning of employees by attorneys in preparation for
trial. Stuart's casual, noncoercive questioning of Doran
does not fall into that category.
[Recommended Order for dismissal omitted from pub-
lication.]
COMPLAS INDUSTIS. INC.