Hobart Corp.

National Labor Relations Board - Board Decisions

Mar 14, 1977

228 N.L.R.B. 648 (N.L.R.B. 1977)

648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hobart Corporation and International Ut:ion , Allied
Industrial Workers of America, AFL-CIO. Cases
8-CA-9844 and 8-RC-10267
March 14, 1977
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
received from the General Counsel and the Respondent on
September 27, and they have been carefully considered.
Upon the entire record in this case, and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
BY MEMBERS FANNING, PENELLO, AND
WALTHER
On October 28, 1976, Administrative Law Judge
John P. von Rohr issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent , Hobart Corpora-
tion , West Liberty, Ohio, its officers , agents, succes-
sors , and assigns , shall take the action set forth in the
said recommended Order.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
DECISION
STATEMENT OF THE CASE
JOHN P. voN ROHR, Administrative Law Judge: Upon a
charge filed on February 17, 1976, the General Counsel of
the National Labor Relations Board, for the Regional
Director for Region 8 (Cleveland, Ohio), issued a com-
plaint on June 15, 1976, against Hobart Corporation,
herein called the Respondent or the Company, alleging
that it had engaged in certain unfair labor practices
••iolative of Section 8(a)(l) of the National Labor Relations
Act, as amended. This case was consolidated with a
proceeding involving objections to conduct affecting the
result of an election. The Respondent filed an answer
denying the allegations of unlawful conduct alleged in the
complaint.
Pursuant to notice, a hearing was held before me in
Bellefontaine, Ohio, on August 24, 1976. Briefs were
The Respondent is an Ohio corporation with its principal
office and place of business located in Troy, Ohio, where it
is engaged in the production of gray-iron castings. The
Respondent annually ships products valued in excess of
$50,000 from its West Liberty, Ohio, facility, the only one
of its various facilities herein involved, to points and places
located outside the State of Ohio. The Respondent
concedes, and I find, that it is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union, Allied Industrial Workers of Amer-
ica, AFL-CIO, herein called the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Solely at issue herein is whether the Respondent, during
an organizational campaign which began in the middle of
January 1976 and culminated with an election held on
March 12, 1976, engaged in conduct independently
violative of Section 8(a)(1) of the Act. Except where
otherwise noted, the facts as set forth below are undisputed
or undenied.
Interference, Restraint, and Coercion
1. No-distribution incidents
Just before noon on February 16, 1976,1 employee Ben
Grimes, who was out on sick leave, came to the plant to
obtain insurance papers related to his illness . Since the
personnel employees were not in the office at this time,
Grimes went to the lunchroom and sat down at a table with
a number of other employees. Having brought with him
union leaflets , Grimes placed these on the table. The
leaflets were picked up by other employees and soon were
being generally distributed throughout the lunchroom. As
this was going on, Tony Kavalouskas, the plant superinten-
dent, entered the area. Observing union literature on the
table before Grimes, Kavalouskas told Grimes to "get the
stuff out of there or a lot of people are going to be in
trouble." Employee Charles Thompson protested, saying
"there is nothing wrong with us having this." The plant
superintendent replied, "I've got my orders," and with this
he left the room. However, he returned about 5 minutes
later and observed that the union literature had not been
removed. With this, Kavalouskas told Grimes to "get this
stuffgathered up and get it out of here now." When
Grimes replied that the employees had a right to read the
literature, Kavalouskas replied, "Not with the company
All dates hereinafter set forth refer to the year 1976.
228 NLRB No. 80
HOBART CORP. 649
you don't. I'm doing my job and you're doing yours. Now
get this stuff gathered up and get it out of here or I'm going
to call the guard and have you and your union junk
escorted out of here." With this, Grimes departed.
Respondent defends the conduct related above on the
ground that it subsequently permitted employees to
distribute union literature in nonworking areas inside the
plant and in the parking lot, and that it also permitted
union literature to be posted on the company bulletin
board. Although the record reflects that such indeed was
the case during the period between February 16 and the
election held on March 12, 1976, I still find thai the
conduct of the plant superintendent in prohibiting the
distribution of union literature in the lunchroom, and
coercively so, was violative of Section 8(a)(1) of the Act
and that an appropriate remedial order is warranted. In so
finding, I find it noteworthy that the Respondent admitted-
ly took no overt action thereafter to disavow the conduct of
the plant superintendent. Further, in analogous situations
involving unlawful no- solicitation rules , the Board has held
that subsequent modification of an unlawful rule "does not
have the retroactive effect of validating its initial promulga-
tion or preclude the Board from issuing an appropriate
cease and desist order." 2
Employee Charles Thompson was engaged in distrib-
uting union literature at the main gate to the Respondent's
plant in the late afternoon a few days prior to the election.
Because it was cold, Thompson asked a guard who was
stationed inside the guard shack at the gate if he could pass
out the literature through a window from within the shack.
The guard, a nonsupervisory employee, said that he could
and Thompson proceeded to do so. A short while later,
Edward Cahill, the personnel manager, appeared. Cahill
told Thompson that he was not allowed to pass out the
pamphlets from within the shack, but that he could do so at
the gate. Insofar as the foregoing is alleged to be a violation
of the Act, I recommend that the allegation be dismissed. I
do so on the premise that the guard shack quite obviously
is a working area and that the Respondent was within its
rights in refusing to permit the use of it for the distribution
of union literature.3
2. Interrogation
In the latter part of January, Personnel Manager Cahill
broached employee Jerry Adams and asked, "Where is
your card?" Adams thereupon pulled out his production
card but Cahill said, "No, I don't mean that card, I mean
your union card." When Adams responded that he had not
signed a card, Cahill asked if he would go to the meeting
and report back to him. To this, Adams responded that he
,.was not going to bite the hand that feeds me." Beyond the
foregoing, Cahill testified that he in fact d:J attend a
scheduled union meeting that night and that it was his clear
impression that Cahill's question related to it.
2 Levi Strauss & Co, 172 NLRB 732, 747 (1968).
s Employee Douglas Harnisch gave testimony to the effect that, whereas
his duties normally took him to all areas of the plant, he was restricted to
one certain area during the 10 days preceding the election. However, there is
no allegation in the complaint , nor does the General Counsel contend in his
brief, that this specifically involved a violation of the Act . In therefore not
A similar incident involving Cahill occurred on February
10 and involved employee Douglas Harnisch. Thus, on this
occasion Cahill asked Harnisch, a member of the union
organizing committee, if he was going to a union meeting.
Harnisch responded in the affirmative. Cahill thereupon
asked if he would report back to him. Harnisch replied that
he would do so.
The evidence further reflects that on January 29, the day
after a union meeting, Foreman Richard Harnish queried
employee Donald Moon as to why he was for the Union;
and that on February 5, the day following a scheduled
union meeting, the same foreman asked employee Jerry
Salyer if a union meeting had been held the preceding
evening.
Contrary to the Respondent's contention that the above
incidents were the result of "chance encounters" and that
the interrogations were "isolated and noncoercive," Ca-
hill's conduct in interrogating Adams and Harnisch
concerning their union activities and his requesting that
these employees report back to him after attending union
meetings were clearly violative of Section 8(a)(1) of the
Act. So, too, was Foreman Harnish's interrogation of
employees Moon and Salyer. I so find.
With further respect to alleged interrogation, employee
Charles Thompson testified that, on February 10, Foi;:man
Dale Snow asked ho . ' many union cards he had signed by
other employees. According to Thompson, during the same
conversation Snow mentioned a strike at another plant and
also told him that "if we got the union in, they could take
all of our benefits that we have now and start from
scratch." Emphatically denying that he ever interrogated
Thompson concerning union cards or the signing of them,
Snow testified that Thompson repeatedly brought up the
subject of unions and strikes and attempted to engage him
in conversations concerning these subjects. Snow also
denied ever telling Thompson that employee benefits
would be taken away if the Union got in, although he did
say on one occasion, when the subject of strikes came up,
that "when they went to the negotiating table, they started
negotiating from where they were at the time." Snow
impressed me as a sincere and credible witness. Cross-
examination of this witness did not shake his testimony,
but rather made him appear more convincing. In the
instances noted above, I credit his testimony over that of
Thompson. Accordingly, it is recommended that para-
graphs 9(A) and (B) of the complaint, which involve
allegations pertaining to the conduct of Snow, be dis-
missed.
3. The speech, alleged threat
An amendment to the complaint alleges that, in a speech
given to all employees on March 10, Willard Heilberger,
the plant manager, unlawfully threatened to close plant
if the employees selected the Union. The pertinent part of
the speech which is thus attacked by the General Counsel,
passing upon the matter, I deem it appropriate to additionally note that
there is no evidence to reflect that Harnisch, a known member of the
organizing committee, was ever prohibited from soliciting employees or
from distributing union literature during his nonworking time in nonwork-
ing areas of the plant.
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and which was reduced to writing and read to the
employees by Heilberger on this date , stated as follows:
I believe you will agree that the future has to be
considered both on the basis of job security and
personal growth because the only real security is to be a
growing individual in a growing organization. No
union can guarantee this . Just think about what
happened right here not long ago . Gulf and Western
once occupied this very space . Gulf and Western shut
down after a union became the employees representa-
tive. What kind of job security did a union give the
Gulf and Western employees who lost their jobs? No
union can guarantee job security. Job security depends
on you and on me not on any union.
Whether or not the above statement constituted an
implied threat , as alleged above , is in my view a borderline
situation . However , the record reflects that the facts with
respect to Gulf and Western appear to be true. On balance,
and even considered with the entire text of speech (which I
have done), in view of the apparent truth of the matter, it is
my conclusion , and I fmd, that the speech was within the
bounds of freedom of expression of opinion permitted to
an employer . Accordingly , it is recommended that the
allegation be dismissed.
4. The objections
Having found that certain conduct of the Respondent
violated Section 8(a)(l) of the Act, I further fmd that such
conduct also interfered with the employees ' exercise of a
free and untrammeled choice in the election held on March
12, 1976.4 Accordingly, I shall recommend that the said
election be set aside and that a new election be held at such
time as the Regional Director deems appropriate.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above , occurring in connection with the operations of the
Respondent described in section I, above , have a close,
intimate , and substantial relationship to trade , traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
3. By interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed by Section 7
of the Act, the Respondent has engaged and is engaging in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law , and upon the entire record in this case,
and pursuant to Section 10(c) of the Act , I hereby make the
following:
ORDERS
The Respondent, Hobart Corporation, West Liberty,
Ohio, its officers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Prohibiting employees from distributing union litera-
ture in nonworking areas of the plant during their
nonworking time.
(b) Interrogating employees concerning their union
activities and sympathies ; and telling their employees to
report back to them after attending union meetings.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its facility at West Liberty, Ohio, copies of the
notice marked "Appendix."6 Copies of said notice, on
forms provided by the Regional Director for Region 8,
after being duly signed by the Respondent's authorized
representative, shall be posted by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered , defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 8, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the election conducted
in Case 8-RC-10267 be set aside and that a new election
be held at such time as the Regional Director deems
appropriate.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations not specifically
found herein.
Having found that the Respondent has engaged in
certain unfair labor practices violative of Section 8(a)(1) of
the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. The Company is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
4 Specifically, and in accordance with the findings heretofore made, I
find that Objections 2 and 3 be sustained , but that Objections 4, 5, 6, 8, and
9 be overruled.
5 In the event no exceptions are filed as provided by Sec. 102 .46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
6 In the event that the Board's 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 Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
HOBART CORP. 651
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT prohibit our employees from distrib-
uting union literature in nonworking areas of the plant
during their nonworking time.
WE WILL NOT interrogate our employees concerning
their union activities of sympathies.
WE WILL NOT ask our employees to report back to us
after attending union meetings.
WE WILL NOT in any like or related manner interfere
with our employees in the exercise of their organiza-
tional rights guaranteed under the National Labor
Relations Act, as amended.
All of our employees are free to become or remain, or to
refrain from becoming or remaining, members of Interna-
tional Union, Allied Industrial Workers of America, AFL-
CIO, or any other labor organization, as guaranteed by
Section 7 of the Act.
HOBART CORPORATION