323 N.L.R.B. 601 (N.L.R.B. 1997)

Gibraltar Steel Corp.

National Labor Relations Board - Board DecisionsApr 30, 1997

323 N.L.R.B. 601 (N.L.R.B. 1997)

GIBRALTAR STEEL CORP. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 323 NLRB No. 100 Gibraltar Steel Corporation of Tennessee and International Brotherhood of Teamsters, Local Union 515, Petitioner. Case 10-RC-14722 APRIL 30, 1997 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS The National Labor Relations Board has considered an objection to an election held August 8, 1996, and the hearing officer's report recommending disposition of it. (The hearing officer's report is attached as an Appendix.) The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 13 votes for, and 5 against, the Petitioner, with no challenged ballots. The Board has reviewed the record in light of the exceptions and brief, has adopted the hearing officer's findings\1\ and recommendations, and finds that a certification of representative should be issued. --------------------------------------------------------------------------- \1\The Employer has excepted to some of the hearing officer's credibility findings. The Board's established policy is not to overrule a hearing officer's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis for reversing the findings. The Employer asserts that the hearing officer's credibility findings demonstrate bias. On careful examination of the hearing officer's report and the entire record, we are satisfied that this contention is without merit. --------------------------------------------------------------------------- CERTIFICATION OF REPRESENTATIVE It is certified that a majority of the valid ballots have been cast for International Brotherhood of Teamsters, Local Union 515, and that it is the exclusive collective-bargaining representative of the employees in the following appropriate unit: All production, maintenance, shipping and receiving employees employed by the Employer at its Chattanooga, Tennessee facility, but excluding all production control/set-up employees, office clerical employees, (inside and outside) customer sales employees, professional employees, guards and supervisors as defined in the Act. Dated, Washington, D.C. April 30, 1997 ____________________________________ William B. Gould IV, Chairman ____________________________________ Sarah M. Fox, Member ____________________________________ John E. Higgins, Jr., Member (seal) National Labor Relations Board APPENDIX HEARING OFFICER'S REPORT AND RECOMMENDATIONS ON OBJECTION The petition in the above-referenced proceeding was filed on July 1, 1996. Pursuant to a Stipulated Election Agreement approved on July 17, 1996, an election by secret ballot was conducted on August 8, 1996, among the employees in the stipulated appropriate unit to determine the question concerning representation.\1\ On conclusion of the balloting, the parties were furnished a tally of ballots which showed that of approximately 18 eligible voters, 13 cast valid votes for and 5 cast valid votes against the Union. There were no challenged ballots and no void ballots. On August 16, 1996, the Employer filed timely objections\2\ to the conduct of the election, and a copy thereof was duly served on the Petitioner. --------------------------------------------------------------------------- \1\The stipulated appropriate unit is: All production, maintenance, shipping and receiving employees employed by the Employer at its Chattanooga, Tennessee facility, but excluding all production control/set-up employees, office clerical employees, (inside and outside) customer sales employees, professional employees, guards and supervisors as defined in the Act. \2\The Employer withdrew Objections 2 and 3 prior to the Order Directing Hearing on Objections and Notice of Hearing. --------------------------------------------------------------------------- Pursuant to Section 102.69 of the Board's Rules and Regulations, Series 8, as amended, the Acting Regional Director, on August 30, 1996, issued and served on the parties here his Order Directing Hearing on Objections and Notice of Hearing to resolve the issues raised by the aforementioned objection. Pursuant to the Acting Regional Director's Order Directing Hearing, a hearing was held on September 16, 1996, before the hearing officer duly designated for that purpose. At that time and place, the Petitioner and Employer appeared and participated. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues. A brief was received from the Employer and has been duly considered.\3\ On the entire record in the case and on the hearing officer's observation of the witnesses, and after examination of all exhibits, the hearing officer makes the following report and recommendations to the Board.\4\ --------------------------------------------------------------------------- \3\Briefs were due on September 23, 1996, and the Employer's brief was received on September 24, 1996. After the close of the hearing the Employer contacted a representative of the Regional Office to request an extension of time. Although the request was not properly made to me, it appears that the Employer believed, in good faith, that the requested extension of time had been granted, and I have decided on this basis to consider the brief. \4\In determining the relative credibility of the witnesses, the hearing officer has considered their general demeanor, appearance, partisan interest, candor or lack thereof, answers to leading questions on direct examination, general memory for detail, guarded and indirect answers, confusing and conflicting testimony, recall and self-serving answers. When deemed necessary here, I shall note my specific findings and reasons therefor. Testimony judged patently incredible or unworthy of belief may not be discussed or subjected to comment. Accordingly, any failure to detail all conflicts in evidence does not mean that such conflicting evidence was not considered. --------------------------------------------------------------------------- FINDING OF FACTS OBJECTION 1 In early July, 1996, the Union advised Gibraltar's employees that it would engage in industrial sabotage, unlawful slowdowns, and/or other actions in the event that the Union was unsuccessful in negotiating a contract. The only evidence in support of this objection is from the testimony of employee Shadrick Blackman. Blackman testified that sometime in June 1996, he attended a union meeting at the Local 515 union hall. It was, he understood, the first group meeting held by the Union. Present were Frank Logan and John Talley, representatives of Local 515, and approximately 14 bargaining unit employees of the Employer. Blackman stated that the purpose of the meeting was to find out information about the Union and its position on various topics. Blackman stated that during the meeting someone asked what would happen if the Company did not want to agree on a contract. Blackman testified that Frank Logan responded by stating, ``[I]f I was an employee at a company and the company did not want to agree upon a contract, that [sic] the production could slow down or if I was an operator on a machine, my machine could just break down one day.''\5\ --------------------------------------------------------------------------- \5\Blackman testified that about 10 employees, including himself, signed union cards at the union meeting, and that these cards were signed after Frank Logan made his remarks about sabotage and slowdown. --------------------------------------------------------------------------- Blackman was asked on direct examination how he reacted on hearing these comments. Blackman stated that later on, in the plant one day, he was talking with some other employees and he suggested that if the contract was ``drug out'' he could tear up his machine to the point that no one would be able to use it. The Employer's counsel specifically asked Blackman if his remarks were made ``at some point in time after the meeting had concluded'' and Blackman confirmed, ``Right.''\6\ --------------------------------------------------------------------------- \6\The date Blackman made this remark was not adduced during the hearing. --------------------------------------------------------------------------- Blackman further testified that prior to the hearing Danny Gilliland, union steward, had told him that the Union was going to bring charges against Blackman. Blackman tempered this allegation by stating that Gilliland may have meant that the Union would ask him questions. Blackman testified that this had caused him some anxiety in connection with his appearance at the hearing, in view of comments his father had made to him about retaliation by unions against individuals who stood up against the Union. On cross-examination, Blackman was asked whether he stated during the June 25, 1996 meeting held at the union hall that he could tear up his machine to the point where they could never fix it, and he replied, ``Not in the meeting, no.'' He was also asked whether Frank Logan had stated during the meeting, ``[We can hurt the Company from the inside worse than we can hurt them from the outside.'' Blackman replied that he did not ``recall'' the statement. Blackman testified on cross- examination that after the meeting in which Logan made his statement about slowdowns and sabotage, there was ``talk'' about ``People just saying different things that could happen.'' Blackman did not provide any specific statements or dates and, as directed by the Employer's counsel, did not name any employees or other witnesses to these remarks.\7\ --------------------------------------------------------------------------- \7\Had Blackman named employees or witnesses who had heard these remarks, Blackman's testimony, if true, could have been corroborated. Blackman was obviously a reluctant witness, and I did not find him to be truthful. Throughout his testimony he sat with his arms crossed in front of him in a protective fashion. He admitted, on cross-examination, that he had consulted his attorney about not wanting to appear at the hearing. I have not credited Blackman except where his testimony is corroborated by a credible witness. --------------------------------------------------------------------------- The Petitioner presented four employee witnesses in rebuttal to the testimony of Shadrick Blackman. The Petitioner's first witness was Danny Gilliland, union steward, who stated that he attended eight or nine of the Union's organizing meetings with employees. Frank Logan, president of Local 515, served as the Employer's representative at the hearing. On direct examination, Gilliland agreed to the question of whether Frank Logan had made the statement that employees could hurt a company from the inside worse than they could from the outside. Gilliland placed this remark during the first or second union meeting. He stated that Logan was asked whether he meant slowdowns, sabotage, or activities of that nature. Gilliland testified that Logan had answered ``no'' and that he had explained to the group of employees that they could benefit themselves and do more good inside by watching for safety violations in the plant, OSHA regulations, making sure rules were not being implemented because of the Union's drive, and by writing down any violations they observed. Gilliland testified that Logan never said anything about using slowdowns or sabotage against the Company, but that employee Shadrick Blackman had stated during this same meeting, ``I can tear the machine up where nobody can run it.'' Gilliland testified that Logan had told Blackman, ``[N]o, we couldn't do that.'' Gilliland also testified that about 1-1/2 weeks after the meeting at issue, Blackman again told him at the plant, in the presence of Melvin Walker, who was not identified in the record, that he could tear up his machine to the point that no one could run it. In response, according to Gilliland, he and Walker had told Blackman, ``[N]o, we can't be getting into that'' or words to that effect. Gilliland denied that he had ever threatened Shadrick Blackman with bringing charges against him as asserted by Blackman. Gilliland stated that he had told Blackman prior to the hearing that Blackman's own remarks during the meeting would come out during the hearing, but that he was Blackman's friend and would stand up with him if Blackman was threatened by anyone.\8\ --------------------------------------------------------------------------- \8\I found Danny Gilliland to be a credible witness. He was composed and self-assured, and would think before he answered. It was no surprise that he had been elected union steward by his fellow employees. Overall, he was a good witness. --------------------------------------------------------------------------- The Union's second witness was employee Steven Roberson. Roberson stated that during the union campaign he remained neutral and supported neither the Employer nor the Union, although he attended union meetings. Roberson was asked whether he heard Frank Logan state that employees could hurt the Company from the inside worse than they could from the outside. Roberson stated that he was the employee who asked Logan, immediately after his statement, ``[A]re you talking about like slow downs and, you know, delaying orders and things like that.'' According to Roberson, Logan immediately said ``no,'' and that he was talking about the Company abiding by their own rules and regulations, OSHA standards, and similar things. Roberson testified that he had never heard Frank Logan or other union representatives state that the Union would use sabotage or work slowdowns against the Company.\9\ On cross- examination, Roberson testified that employee John McGonagil made ``a passing comment'' about using slowdowns to deal with the Employer during contract negotiations.\10\ --------------------------------------------------------------------------- \9\Roberson was a credible witness. He testified on cross- examination about prehearing discussions concerning his and other witnesses' testimony without being defensive. \10\Inasmuch as the Employer did not elicit testimony regarding the date of this alleged statement, it has not been shown to have occurred within the critical period. This was incumbent on the Employer. --------------------------------------------------------------------------- The Union's third witness was employee William (Bill) Davis Jr. Davis testified that employee John McGonagil, rather than Frank Logan, made the statement about hurting the Company worse from the inside than the outside. Davis recalled Shadrick Blackman's statement that there were things he could do to his machine to keep it from running. Davis did not recall how Frank Logan respondled except that he ``more or less squashed the conversation about sabotage.''\11\ --------------------------------------------------------------------------- \11\Davis was a nervous witness and his memory lapsed during the hearing. I credit his testimony only where it is consistent with the testimony of Danny Gilliland. --------------------------------------------------------------------------- The Union's fourth witness was employee Steven L. Boleman.\12\ Boleman attened eight or nine union organizing meetings. Boleman responded on direct examination that he had heard Frank Logan make the statement they could hurt the Company from the inside worse than they could from the outside. Boleman recalled that he had asked Logan what he meant by this statement, and that employee Steve Roberson asked Logan if he was referring to slowdowns or sabotage. Boleman testified that Logan replied that he was talking about OSHA violations and other things. Boleman testified that he had suggested the wearing of hard hats should be checked. Boleman also testified that he never heard Logan or other representatives of the Union state that the Union would use sabotage, work slowdowns, or similar actions against the Company. Boleman recalled that during this discussion, which he believed was the first or second union meeting that was held, Shad Blackman had stated that he could sabotage his machine to where nobody could fix it. Boleman stated that McGonagil had made remarks to the effect that he was suggesting the use of a slowdown as a means of dealing with the Employer. Boleman further stated that Frank Logan corrected McGonagil and said this was not what they were trying to do. --------------------------------------------------------------------------- \12\Boleman was an honest witness, and he was responsive during close cross-examination concerning a statement made by John McGonagil. I have credited Boleman. --------------------------------------------------------------------------- The Employer's and the Petitioner's witnesses all testified that there had been no slowdowns or sabotage in the plant. During the course of the hearing there were several references to the date of the union meeting at issue. Although the objection itself refers to ``early July, 1996,'' all statements at the hearing, by both the Petitioner and the Employer, referred to the meeting in June 1996. There was no attempt to place the date of the alleged objectionable conduct any later than June 1996. The Employer's own witness, Shadrick Blackman, stated on direct examination that the meeting ``was sometime in June'' (emphasis added) and responded affirmatively to a question on cross-examination that the meeting concluded in June 1996. The Employer's counsel subsequently asked Blackman, ``At the close of the meeting held at Local 515's Union Hall in June of 1996, were any Union cards circulated for signature?'' and Blackman's answer, ``Yes, there were.'' The Union on cross-examination of the Employer's witness reconfirmed Blackman's statement that ``this allegedly happened in June?'' and specifically placed the date of the meeting on ``June 25, 1996 at the Union hall.'' The date was approximated by the Petitioner's witness, Danny Gilliland, when he testified, ``[T]hose meetings would have been approximately two and a half months ago.'' Finally, in its brief the Employer referred to ``the June 25, 1996 meeting at the union hall,'' and ``at the June 25th union hall meeting.'' Further, in order for the Petitioner to have filed the petition for election on July 1, 1996, it is presumable that the cards would have been signed prior to this date. CONCLUSIONS AND RECOMMENDATIONS The critical period begins with the date that the petition is filed. Ideal Electric & Mfg. Co., 134 NLRB 1275 (1961). It is incumbent on the Employer to establish that the alleged objectinable conduct occurred within the critical period, and it has not done so. Therefore, the Employer's Objection 1 is without merit. Further, I have credited the testimony of the Petitioner's witnesses, Danny Gilliland, Steven Roberson, Steven Boleman, and in part William Davis, with regard to the alleged remarks made by Teamsters Representative Frank Logan. I find that Logan did not make the statements Blackman attributed to him, i.e., that there would be unlawful slowdowns or industrial sabotage or other unlawful actions and on this basis as well find that Objection 1 is without merit. Based on the foregoing findings, I recommend to the Board that Objection 1 be overruled in its entirety and that a Certification of Representative be issued. As provided in Section 102.69 of the Board's Rules and Regulations, Series 8, as amended, any party desiring to file exceptions to this report may, within 14 days from the issuance of this report, file with the Board in Washington, D.C., an original and eight (8) copies of its exceptions hereto. Immediately on filing of such exceptions, the party filing the same shall serve copies thereof on the other parties, and shall file a copy with the Regional Director for Region 10, Atlanta, Georgia. If no exceptions are filed, the Board shall adopt the recommendations of the hearing officer.