Continental Industries, Inc.

National Labor Relations Board - Board Decisions

May 13, 1986

279 N.L.R.B. 920 (N.L.R.B. 1986)

920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Continental Industries, Inc. and Shopmen 's Local
Union No. 620 of the International Association
of Bridge, Structural and Ornamental Iron
Workers . Case 16-CA-9027
13 May 1986
DECISION AND ORDER
BY MEMBERS DENNIS , BABSON, AND
STEPHENS
On 12 March 1981 Administrative Law Judge
James J. Jenson 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 only to the extent consistent with this
Decision and Order.
The judge found that the Respondent violated
Section 8(a)(1) of the Act by interrogating employ-
ee Floyd Cox. We do not agree.
On 31 January 19801 the Respondent received
the Union's letter stating that the Union was en-
gaged in organizing activities. On 5 February the
Union informed the Respondent that a majority of
the production and maintenance employees had
designated the Union as their collective-bargaining
representative and that a representation petition
had been filed with the Board. Floyd Cox, at the
time a nonsupervisory leadman , testified that he
was the chief organizer among the employees and
that he had handed out both authorization cards
and union literature. Cox further testified that Plant
Production Manager Couch and Day Shift Super-
visor Jackson had seen him engaged in his union
organizing activities. Two weeks after the organiz-
ing started, Couch called Cox into his office. Cox's
unrebutted testimony revealed the following con-
versation:
He [Couch] asked me [Cox] what I thought
the union could do for me or the people. He
said tell me a little bit about this union. Then,
he asked me why couldn't management help
us and we told him we was tired of the same
things over and over. Then he replied every-
body has their own opinion and I asked him,
then I asked him why he had called me in and
he said he had seen me collecting cards . . . .
Then at that time he asked me how things
were going with my work and I said fine and
that was that.
' All dates are in 1980 unless otherwise indicated
On cross-examination , Cox testified that Couch
"asked me about this union. He said tell me a little
bit about this union and he said don't you think we
can help. And I said, `no."'
The judge, relying on PPG Industries, 251 NLRB
1146 (1980), found that the Respondent violated
Section 8(a)(1) by interrogating leading union ad-
herent Cox.
In our decision in Rossmore House, 269 NLRB
1176 (1984), we overruled PPG Industries, supra, to
the extent it found that "an employer's questioning
open and active union supporters about their union
sentiments , in the absence of threats or promises,
necessarily interferes with, restrains , or coerces em-
ployees in violation of Section 8(a)(1) of the Act."2
In the instant case , Cox was an open and active
union supporter. Considering all the circumstances,
we find the Respondent's questioning of Cox to be
noncoercive, and therefore we shall dismiss the
complaint in its entirety.
ORDER
The complaint is dismissed.
2 Rossmore House, supra at 1177-1178
Martha Kinard, for the General
Stephen L. Andrew, of Tulsa,
spondent.
Gerald William,
Party.
Counsel.
Oklahoma, for the Re-
of Tulsa, Oklahoma, for the Charging
DECISION
STATEMENT OF THE CASE
JAMES J. JENSON, Administrative Law Judge. This
case was heard in Tulsa, Oklahoma, on September 23,
1980.1 The complaint, which issued on April 11, pursu-
ant to a charge and first amended charge filed on March
18 and April 8, respectively, alleges that the Respondent
interrogated an employee regarding his union activities
and unilaterally changed working conditions by prohibit-
ing employees from talking to other employees as a
result of their union activities , in violation of Section
8(a)(1) of the Act, and imposed more onerous working
conditions on Floyd Cox by assigning him to specific
jobs which were more arduous, dirtier, and less agree-
able because of his support for the Union in violation of
Section 8(a)(3) of the Act. All parties were afforded full
opportunity to appear; to introduce evidence, to examine
and cross-examine witnesses , to argue orally , and to file
briefs. The General Counsel argued orally and the Re-
spondent filed a brief, both of which have been carefully
considered.
On the entire record in the case, and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
' All dates here are in 1980 unless stated otherwise
279 NLRB No. 130
CONTINENTAL INDUSTRIES 921
FINDINGS OF FACT
I. JURISDICTION
Continental Industries , Inc. (Respondent ) is engaged in
the manufacture of gas distribution products in Tulsa,
Oklahoma . In the past 12 months , the Respondent sold
and shipped from its Tulsa facility goods and materials
valued in excess of $50,000 directly to points outside the
State of Oklahoma . Respondent admits, and it is found,
that it is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
It is admitted and found that Shopmen's Local Union
No. 620 of the International Association of Bridge,
Structural and Ornamental Iron Workers is a labor orga-
nization within the meaning of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
Facts and Discussions
Floyd Cox has been employed by the Respondent for
7 years. At the time of the trial, he was the leadman over
7 to 10 general helpers. He described his job duties as
"check parts, make setups, make adjustments, and make
sure that all of the [general helpers] are working correct-
ly." Phil Couch was Respondent's plant production man-
ager until the first week in September, when he left for a
job in Cincinnati. Eldon Morain is Respondent's director
of engineering and manufacturing. Don Jackson is the
day-shift supervisor of the machine shop. He is Cox's su-
pervisor. Sylvia McNaris is the deburr leadperson, a po-
sition equivalent to that of Cox.
On April 10, 1978, Cox was made a "set-up" man, en-
titling him to uniforms without charge. Effective Sep-
tember 8, 1978, he became a night-shift foreman, a super-
visory position. In March 1979, he transferred from the
second to the day shift as a foreman. Effective July 1,
1979, Cox was reduced from a supervisory job to an
automatic operator A job, with a pay reduction from
$8.19 to $8 per hour. Cox had requested the reduction
because the strain of being a supervisor was too much
and was affecting his personal life. Monan testified, with-
out contradiction, "We agreed at that point in time that
he could be reduced to an automatic operator A and be
removed from the pressures that are involved with our
foremen . . . . That he would be assigned to various and
special duties on that floor. He may be involved in auto-
matics . . . in the general machine shop setups, but I
would use Floyd as a general all around man on the
floor." Explaining that Cox was "a very valuable em-
ployee," he testified further: "I made the agreement with
Floyd at that point in time that we would train him to
do general machine setups . I would use him on the auto-
matics to help [setup] on those."2 Cox later became lead-
2 The record shows the Respondent employed four automatic screw
machine operators to operate seven machines, but that with the high ab-
sentee rate , only two or three operators showed up for work regularly
man over the general helpers, a nonsupervisory position.
Cox acknowledged that one of his duties was to set up
automatic screw machines and that he had in fact per-
formed this function prior to February 1980.
On January 31 the Respondent received the Union's
letter dated January 25, advising that the production and
maintenance employees were engaged in organizing ac-
tivities. On February 5 the Respondent received the
Union's letter dated January 30, advising that a majority
of the Respondent's employees had designated the Union
as their collective-bargaining representative, and that the
Union had filed a representation petition with the Board
Cox testified that union organizing activities com-
menced in early February, that he was the chief organiz-
er, having handed out both authorization cards and
union literature in the plant. He claimed that both Couch
and Jackson had seen him passing out cards. He ac-
knowledged that other employees had been active on
behalf of the Union and had passed out cards also. An
election , conducted by the Board pursuant to a consent
election agreement, was held on April 10 and was won
by the Union by a substantial majority, and the Union
was certified.
Paragraph 7(a) alleges that about the third week in
February, Couch interrogated an employee about his
union activities, membership, and desires. Cox, who was
the General Counsel's only witness, testified on direct
examination that about 2 weeks after the organizing
started, Couch called him into the office and:
He asked me what I thought the union could do for
me or the people. He said tell me a little bit about
this union. Then, he asked me why couldn't man-
agement help us and we told him we was tired of
the same things over and over. Then he replied ev-
erybody had their own opinion and I asked him,
then I asked him why he had called me in and he
said he had seen me collecting cards. It was not
secret that I had been collecting cards or passing
out literature Then at that time he asked me how
things were going with my work and I said fine and
that was that.
On cross-examination he testified regarding Couch, "He
asked me about this union He said tell me a little bit
about this union and he said don't you think we can
help. And I said, no."
As noted earlier, Couch had left Respondent's employ
prior to the hearing and was working in another State.
Thus, Cox's testimony is not refuted.
Citing Bargain Town of Ponce, 200 NLRB 1085 (1972),
the Respondent contends it "should be found not to have
violated Section 8(a)(1) by this isolated conversation." In
view of the fact that the interrogation occurred approxi-
mately 2 months prior to the election which the Union
won decisively, and which had ripened into a certifica-
tion and, as will be seen hereafter, the Respondent did
not engage in any other unlawful conduct, nor is there
any evidence of antiunion animus, I entertain some doubt
whether at this time an order remedying the interroga-
tion really effectuates the policies of the Act. I am mind-
ful of the fact that former Board Member Pennello fre-
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quently observed that the Board is best advised not to
concern itself with "trivia" and "trifles," a position
which has received support from several courts of ap-
peals. His position, however, has not been adopted by
the Board majority and I am bound, nevertheless, by
Board precedent . In PPG Industries, 251 NLRB 1146
(1980), the Board, in discussing Stumpf Motor Co., 208
NLRB 431 (1974), and B.F. Goodrich Footwear Co., 201
NLRB 353 (1973), stated:
Those cases found questions concerning employees'
union sympathies to be not coercive in view of the
employees' open and active support for the union
and the absence of other threats in the conversa-
tions. We have recently held, however, that inquir-
ies of this nature constitute probing into employees'
union sentiments which, even when addressed to
employees who have openly declared their union
adherence, reasonably tend to coerce employees in
the exercise of their Section 7 rights.5 We have fur-
ther found such probing to be coercive even in the
absence of threats of reprisals or promises of bene-
fits.6 The type of questioning at issue conveys an
employer's displeasure with employees' union actiti-
vity and thereby discourages such activity in the
future. The coercive impact of these questions is not
diminished by the employees' open union support or
by the absence of attendant threats. Accordingly,
we hereby overrule Stumpf and B.F. Goodrich to
the extent they hold that an employer may lawfully
initiate questioning about employees ' union senti-
ments when the employees are open and known
union supporters and the inquiries are unaccompa-
nied by threats or promises.
5 ITT Automotive Electrical Products Division , 231 NLRB 878
(1977), Raceco, a Division of Fruehauf Corporation, 237 NLRB 399
(1978), Anaconda Co-Wire and Cable Div, 241 NLRB 1091
(1979) See also Essex Wire Corporation, 188 NLRB 397 (1971)
6 Paceco and Anaconda Co, supra
In PPG Industries, an employee had been asked what she
thought the union would do for employees and her
thoughts about what the union would accomplish. An-
other employee was asked why she was for the union.
The Board found that such questioning violated Section
8(a)(1) of the Act. In light of the foregoing authority, I
find that Couch unlawfully interrogated Cox as alleged
in paragraph 7(a) of the complaint.
Paragraph 7(b) alleges that in the second week of
March, Respondent, by Jackson, "unilaterally changed
the working conditions of its employees by prohibiting
them from talking to other employees as a result of their
union activities." Cox testified that he was called to
Jackson's office in the first part of March and was told
"to quit talking to anyone over on the south side, which
would be the stockroom side." Cox's response was, "You
would not be doing this if the union was not trying to go
through." Cox interpreted Jackson's statement to mean
"that they was following me and thinking everytime I
was getting issued a part or getting a part that I was
talking union." Cox was "positive" Jackson's admonition
was prompted by his union activities. He acknowledged,
however, that he had stopped to talk to some employees
that day
Paragraph VII of the Respondent 's policy manual, en-
titled "Permission To Leave Work Area," reads:
Your supervisor has the responsibility for account-
ing for personnel in his department at all times. If
you must leave your work area during work hours,
you must notify your supervisor.
Jackson testified that on March 13, he received three
complaints from Sylvia McNaris, the leadperson in
deburr, that Cox was in the deburr area bothering her
people, that she had asked him to leave, and "would I
get him out of her area."3 Jackson testified that after the
last call, he went over to the deburr area and "Floyd
was talking to one of the girls over there and when I
walked up he left and the girl starting leaving. I said, did
Floyd need something and she didn't respond or any-
thing. Just walked off." After returning to his office,
Jackson called Cox in and told him that "they were hol-
lenng at me about bothering their people . . . . And
would he stay on our side and leave those people alone
over there. Would he let them take care of their business
and we would take care of ours." Jackson made note of
the "verbal warning " on an employee warning notice
form, in accordance with Respondent's disciplinary
system, which consists of first, a written notation of a
verbal warning (as here); second, an employee signs the
warning notice, third, a 3-day suspension; and, fourth,
termination. The thrust of the warning was not prohibit-
ing employees "from talking to other employees," as is
alleged in the complaint, but for Cox to stay in his own
area and stop bothering people in another area. There is
no evidence on which to base a finding that there was a
unilateral change in a working condition or that Cox was
issued a verbal warning as a result of his union activities.
Accordingly, I conclude the General Counsel has failed
to prove by a preponderance of the evidence that the
Respondent violated the Act as alleged in paragraph 7(b)
of the complaint, and therefore recommended its dismis-
sal.
Paragraph 8 alleges that in February, Jackson "im-
posed more onerous working conditions" on Cox "by as-
signing specific jobs which were more arduous, dirtier
and less agreeable," because of his union interest. Cox
testified that for 2 or 3 weeks in February, he was called
on at least twice a week to set up an automatic screw
machine, which took up a "good percentage" of the day
on each occasion, in addition to checking on his crew of
general helpers.' Although he testified his current work
assignment was to "check parts , make setups, make ad-
justments and make sure that all of them [the general
workers] are working correctly," he nevertheless felt
that he was being discriminated against because of his
union activities, by being required to do both, make
setups and check on his crew of workers. There is no
Cox did not deny that McNans had asked him to leave the deburr
area
4 "Setting up" a screw machine entails tearing it down , retooling it,
putting on new parts , and checking it out
CONTINENTAL INDUSTRIES
evidence, however, that the setups be performed in Feb-
ruary were "more arduous, dirtier and less agreeable"
than any other of the setups he was ever required to
make. In this regard, doing setups was not foreign to
Cox. On April 10, 1978, he was made a "set-up man,"
and, in conjunction with that job, furnished uniforms by
his Employer. As of the date of the hearing, the Re-
spondent was still furnishing his uniforms in conjunction
with his setup man duties. It is not denied that in July
1979, when Cox was demoted at his own request from a
supervisory job to that of automatic operator A, that it
was agreed that he would be assigned to various and spe-
cial duties and that he would be used as a general all
around man and would be trained to do general machine
setups. Further, Cox acknowledged that one of his duties
was to set up the automatic screw machines. Morain ex-
plained that in February the operation was trying to
catch up on back orders and, as a consequence, the
setups would only run in some instances for I day,
whereas a normal run lasted 4 or 5 days. It was further
explained that with only four automatic operators to op-
erate seven machines , and with the high absentee rate
among the operators, it was impossible for the operators
to make the number of setups required. Consequently,
because Cox was capable of performing setups on the
automatic screw machines, he was called upon to do so.
Most of the time someone else would take over his other
923
duties. Although Cox testified he had to look after the
general helpers while he was doing the setups , Morain
testified he and Jackson each did a part of Cox's regular
work. Noting an absence of evidence that the Respond-
ent displayed any animus toward the employees' union
activities, and in light of the foregoing facts, I am con-
vinced that Cox's reaction to being assigned setup duties
in February is a result of his hypersensitivity, with per-
haps a trace of paranoia, and that the Respondent did not
impose on him more onerous working conditions as al-
leged in paragraph 8 of the complaint. Accordingly, I
recommended its dismissal.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interrogating an employee concerning the
Union , the Respondent has engaged in an unfair labor
practice affecting commece within the meaning of Sec-
tion 8(a)(1) of the Act.
4. The Respondent did not violate the Act as alleged
in paragraphs 7(b) and 8 of the complaint.
[Recommended Order omitted from publication.]