Cooper Industries, Inc.

National Labor Relations Board - Board Decisions

Mar 25, 1987

283 N.L.R.B. 323 (N.L.R.B. 1987)

COOPER INDUSTRIES 323
Wagner, a Division of Cooper Industries, Inc. and
United Steelworkers of America, AFL-CIO-
CLC. Case 26-CA-11690
25 March 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 2 December 1986 Administrative Law Judge
Richard J. Linton issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering 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 briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions2 and to adopt the recommended
Order.
lations Board through the Regional Director for Region
26 of the Board. The complaint is based on a charge,
subsequently amended, filed 3 July 1986 by United Steel-
workers of America, AFL-CIO, CLC (Union or Steel-
workers) against Wagner, a Division of Cooper Indus-
tries, Inc. (Respondent or Wagner).'
In the complaint the General Counsel alleges that Re-
spondent violated Section 8(a)(1) of the Act when An-
thony L. Sutton, warehouse supervisor, second shift, in-
terrogated one employee (Stephen R. Walls) on 202 and
273 February, and again in May4 when Sutton interro-
gated a second employee (Jeffrey W. Cunningham) and,
during the conversation, "conditioned a permanent job
for the employee upon a promise by the employee not to
engage in union activities," and "threatened to discharge
employees who talked about the Union."'
By its answer Respondent admits certain factual mat-
ters but denies violating the Act.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and Respondent,
I make the following
FINDINGS OF FACT
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Wagner, a
Division of Cooper 'Industries, Inc., Tullahoma,
Tennessee, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
i 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 Cit. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2 In agreeing with the judge that the Respondent violated Sec. 8(a)(1)
of the Act by coercively interrogating employee Walls, we note that his
conclusions are in accordance with the principles set forth in Rosrmore
House, 269 NLRB 1176 (1984), affd. 760 F.2d 1006 (9th Cir. 1985). See
a.iso Sunnyvale Medical Clinic, 277 NLRB 1217 (1985).
Jane Goldman, Esq., for the General Counsel.
David 'R. ,Shell, Esq., of Houston, Texas, for the Respond-
ent.
Michael Wilson, of Chattanooga, Tennessee, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge.
Questions and statements purportedly made in three con-
versations are alleged here as unlawful in three para-
graphs of the Government's complaint. I find merit to
the first two allegations, and I dismiss the third.
I heard this case in Manchester, Tennessee, on 17 Sep-
tember 1986 pursuant to the 5 August 1986 complaint
issued by the General Counsel of the National Labor Re-
I. JURISDICTION
A corporation with a place of business in Tullahoma,
Tennessee, the facility herein, Respondent packages and
distributes automotive parts. During the 12 months
ending 31 July Respondent sold and shipped from its fa-
cility products and materials valued in excess of $50,000
directly to points outside the State of Tennessee. Re-
spondent admits, and I find, that it is an employer within
the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION INVOLVED
The parties stipulated that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act
(1:6).s
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Howard K. Tucker is the manager of employee rela-
tions at Respondent's Tullahoma facility (1:63). Tucker
testified that the facility serves as the distribution center
for Wagner. It replenishes the inventories of Wagner's
zone warehouses throughout the country. In addition to
its large warehousing operation at Tullahoma, Wagner
has a customer service function there plus a planning
office. Respondent employs some 250 employees at the
facility, with about 150 being classified as hourly and the
other 100 as salaried (1:63-64).
' All dates are for 1986 unless otherwise indicated.
2 Complaint par. 7(a)
a Complaint par. 7(b). This subparagraph also alleges that Sutton or-
dered the employee (Walls) to report on the union activities of other em-
ployees.
4 Complaint par. 7(c)
5 References to the one-volume transcript of testimony are by volume
and page.
283 NLRB No. 50
324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
As Tucker described, in addition to its own employ-
ees, Wagner uses' a number of employees whom it ob-
tains under a contract with N. R. Temps, a firm which
refers temporary workers. Tucker testified that such
workers are employees of N. R. Temps and not employ-
ees of Wagner (1:65-66; R. Exh. 1). During the relevant
time, Respondent paid N. R. Temps for the services of
some 8 to 12 workers (1:73).
At the hearing the General Counsel called two wit-
nesses: Stephen R. Walls and Jeffrey Wayne Cun-
ningham. The Union called no witnesses. Wagner called
two witnesses: Manager of Employee Relations Howard
K. Tucker and Warehouse Supervisor Anthony L.
Sutton. -
Formerly employed in the warehousing operation
under the supervision of Sutton, Walls worked at
Wagner from November 1984 to mid-August (1:9, 20).
Although Cunningham worked in the warehouse under
Sutton from 10 February to his layoff around 1 June,
Cunningham at all times was an employee of N. R.
Temps (1:38-40, 45-48).
Sutton concedes that he spoke twice with Walls about
the Union,6 but he contends it was Walls who ap-
proached him and volunteered information. Sutton gave
similar testimony regarding the alleged May 1986 con-
versation between himself and Cunningham.
Cunningham had difficulty with the timing of the al-
leged conversation, first placing it the day before his
layoff (1:43), but later testifying he could be mistaken
and that it could have been a couple of weeks earlier
(1:54), and finally conceding that in his pretrial affidavit
he placed the event as a month before his layoff-a time-
frame he 'then rejected (1:58-59). Respondent introduced
certain evidence bearing adversely on Cunningham's
credibility (R., Exhs. 1 and 2). Because I fmd Cun-
ningham to be an unreliable witness, I shall dismiss com-
plaint paragraph 7(c).
B. The Two Conversations Between Stephen Walls and
Supervisor Sutton
1. The conversation in the men's restroom
As he was working in the warehouse one day in late
February, Stephen R. Walls testified, Supervisor Sutton
approached and engaged him in conversation (1:10, 24-
25). Expressing the opinion that he thought they were
friends, Sutton said he wanted to ask Walls something as
a friend.? Sutton'then asked if Walls was aware of any
union ' activity. Although Walls had attended a union
meeting a few days earlier (1:25), he replied that he
knew nothing of any union activity (1:11, 25). Walls
never wore any union insignia and never gave any' out-
ward expression of support for the Union (1:33). He and
6 The Union made an earlier organizing effort in' September-October
1984 (1:100). The record is unclear whether either the 1984 or 1986 ef-
forts reached the election stage. Whatever stage they reached,'the orga-
nizing `efforts apparently were unsuccessful.
7 Although Walls and Sutton had discussed horses on previous occa-
sions, they did not socialize outside work (1:19-20, 76-77, 99) Walls
came to the second shift about the same time , April 1985, that Sutton was
promoted from a quality inspector to second-shift supervisor (1:74-76).
Sutton had never previously talked about a union or
about organizing (1:26).
Sutton stated that attendees at a management meeting
had learned of recent union activity, and that Walls had
been named as one of the leaders along with employees
Paul Crabtree, Lynn Byrum, Danny Brewer, Ricky
Tawwater, and Nancy Ahnacher (1:11, 24). Sutton asked
whether any of the employees he named were involved
in union activity, and Walls replied that he did not know
of any such activity by them (1:11, 24). Walls testified
that some of those named by Sutton had not been at the
union meeting (1:27).
As Sutton prepared to leave, he asked Walls -to -assure
him one more time that Walls had nothing to do with
the union, "and you'll-be taken care of I'll assure the
management, if a meeting occurs again, that you don't
have anything to do with it." Walls so assured him
(1:12-13, 26-27).
This conversation is the subject of complaint para-
graph 7(a).
Sutton's version is quite ' different. Sutton testified that
about early March, as he made one of his rounds by
Walls' work station, Walls said he needed to speak to
Sutton in private. Sutton suggested his office, but Walls
wanted to meet in the restroom.8 About 5 minutes later
they met in the men's restroom (1:78-81).
According to Sutton, Walls reported that ,the name of
Walls had been mentioned as being involved, in some
union meetings which were being held. "Before we, go
any further," Sutton interposed, "why don't you _go to
Bruce [Bruce Nemec, director of distribution] or to
Howard [Howard K. Tucker, manager of employee rela-
tions]?"
"No," replied Walls, "I just want you, as being part of
management, to let them know that I'm not involved, be-
cause I don't want ... my name [mentioned as] being
involved in any kind of union attempt, to- my mother."
(1:82, 84) It is Sutton's understanding that Walls' mother,
a clerk in the CDC department, is opposed to the Union
(1:82-83).9
Testifying further, Sutton asserts that Walls confided
that he had attended one union meeting out of curiosity.
When Sutton again said Walls needed to discuss this
matter with someone else, Walls replied that he wanted
to tell him and for Sutton to notify management that
Walls was not involved in any union activity. Sutton said
he would do so, and that concluded the restroom con-
versation. Sutton denies that, he, Sutton, listed the names
of several employees during the conversation '(1:84).
Sutton testified that he thinks he gave Walls the im-
pression, during their conversation, that Sutton did not
believe Walls, for Walls produced a blank union card
and said, "Hey, here it is, it's here." (1:87-88) According
to Sutton, rumors of union organizing are rather' frequent
(1:88), and in fact there was a previous organizing cam-
Sutton's office is enclosed by walls of clear glass (1:80).
Although I overruled the General Counsel's objection to Sutton's
"understanding" of the mother's views (1:83), I consider Sutton's "under-
standing," possibly based on hearsay, as simply his explanation of why he
thought Walls would not want his mother hearing that the son was sup-
porting a union.
COOPER ,INDUSTRIES 325
paign (unsuccessful, apparently) in September-October
1984 (1:100). At that time Sutton was a nonsupervisory
employee who actively opposed the Union (1:100).
2. The conversation in Henninger's office
Walls testified that about 2 to 3 weeks after the rest-
room conversation Sutton came to him at his work sta-
tion (on the second shift) and asked him to go to the
office of Richard E. Henninger (1:14). As the pleadings
and testimony establish, Henninger is a zone manager
(1:14, 85).10 Presumably this was after the office staff
had departed for the day. In any event, Walls testified
that only he and 'Sutton were present in Henninger's
office (1:14).
In the office," Walls testified, Sutton informed Walls
that management had held another meeting regarding a
union, that Walls' name had been mentioned again, and
he again asked whether Walls had anything to do with a
union. When Walls denied any, involvement, Sutton said
that he had heard Walls' name listed as one of the union
ringleaders along with 8 or 10 others, including Paul
Crabtree, Lynn Byrum, Sue' England, Tom England,
Nancy Almacher, Ricky Tawwater, and David York
(1:14-15).
Replied Walls, "No, I don't have anything to do with
it; I don't know what they have to do with it." Sutton
kept asking if there was any union activity Walls could
tell him about, that he would appreciate any information.
He asked ' Walls to inform him if Walls heard of any
union activity, saying he would appreciate Walls' telling
him.13 Sutton finished by asking whether Walls was sure
he had nothing to do with the union activity,-and Walls
answered that he did not have anything to do with it
(1:15).13 Walls testified that after this conversation
Sutton seemed to avoid him, and that 3 to 4 weeks
'would pass before Sutton would even speak to him
(1:20).
Sutton's, version, as with the restroom conversation, is
significantly different. According to Sutton, when he
was making one of his normal rounds of the warehouse a
couple of.' days after the restroom conversation, Walls
asked whether Sutton had "taken care of that," and
Sutton answered yes. Walls' asserted that he really
needed to talk with Sutton again. This time Sutton sug-
gested the men's -room. Walls vetoed' that location, but
agreed to Sutton's next suggestion of Henninger's office
(1:85). Sutton went ahead and a few minutes later Walls
joined hi there.
Inside Henninger's office, Walls, who appeared "dis-
traught," began by reporting, "Somebody dropped a
bunch of union cards off -at my house." Walls said he
was going to return them, but "I can tell you who it is."
10 Sutton testified that he currently reports to Henninger (1:5). It is
unclear whether he reported to someone else during February-March
1986
11 The conversation in Henninger 's office is the subject of complaint
par 7(b)
12 Complaint par. 7(b) alleges both an interrogation and that Sutton
"ordered" Walls "to report on the union activities of other employees."
It is clear that Sutton requested rather than ordered.
13 Although Walls, at the hearing , reported that his answer to Sutton
was "No," his overall testimony makes clear that the sense of his answer
was as I have summarized.
"Steve, I don't want to know," Sutton responded. Nev-
ertheless, Walls said he could tell him, and he named
Paul Crabtree as the employee who delivered the cards
(1:87).
Having named Crabtree, Walls offered to name all
those attending the union meetings. Sutton replied that
he really did not need to know, but if it would make
Walls feel better, he could do so; although "I really
don't need to know this." (1:87)
"Before I could stop him," Sutton testified, Walls
began listing the names, reported they were meeting
every 2 weeks, and gave the number of votes they had
(1:87). Sutton stated that he had already told his boss
that Walls had insisted he was not involved. Sutton told
Walls not to worry about the matter. "I don't need to
know all this other junk you're trying to run by me,"
Sutton advised Walls, and the meeting ended (1:89).
Sutton denies asking Walls to report to him about
union events, and he insists that on the two occasions he
and Walls talked about union matters, Walls volunteered
the information (1:89-90).
Conclusions
Walls testified with a favorable demeanor and I credit
him and his version of the two occasions when Sutton
interrogated him.
Walls was not an open supporter of the Union, and
Sutton's questions were probing and' asked in a coercive
context and in a coercive manner. I find that Respond-
ent, by Sutton's conduct, violated Section 8(a)(1) of the
Act as alleged. 14
CONCLUSIONS OF LAW
1. Respondent Wagner is an employer within the
meaning of Section 2(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. Respondent violated Section ' 8(a)(1) of the Act
when Supervisor Anthony L. Sutton about late February
to early March 1986 twice coercively interrogated em-
ployee Stephen R. Walls about his union activities and
those of other employees, and when Supervisor Sutton,
during the second interrogation, requested employee
Walls to report the union activities of other employees.
4. Respondent did not, as alleged in complaint para-
graph 7(c), violate Section 8(a)(l) of the Act in May
1986 by, nor engage in the conduct of, coercively inter-
rogating contract employee Jeffrey Wayne Cunningham,
by promising him a permanent job conditioned on un-
lawful considerations, or by illegally, threatening to dis-
charge 'employees.
5. The unfair labor practices found affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to
14 As earlier noted, Sutton requested, not ordered, Walls to report
back on any union activity he learned about. The distinction is without
any material difference as far as the nature of the violation.
326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cease and to take certain action designed to effectuate
the policies of the Act.
On these findings of fact, conclusions of law, and the
entire record, I issue the following recommended15
ORDER
The Respondent,, Wagner, a Division of Cooper Indus-
tries, Inc., Tullahoma, Tennessee, its officers, agents, suc-
cessors, an d assigns, shall
1. Cease and desist from
(a) Coercively interrogating any employee about union
support or union activities.
(b) Requesting any employee to report to super-
vision/management about union activity by other em-
ployees.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its Tullahoma, Tennessee facility copies of
the attached notice marked "Appendix."16 Copies of the
notice, on forms provided by the Regional Director for
Region 26, after being signed by Respondent's authorized
representative, shall be posted by Respondent immediate-
ly 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 the notices
is 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
16 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 Nation-
al 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 "
are not altered, defaced, or covered by any other materi-
al.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
IT IS FURTHER, RECOMMENDED that complaint para-
graph 7(c) is dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act 'and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain, collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these, protect-
ed concerted activities.
WE WILL NOT coercively question you about your
union support or activities.
WE WILL NOT request you to report to super-
vision/management on the union activities of your fellow
employees. -
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WAGNER, A DIVISION OF COOPER INDUS-
TRIES, INC.