Hobbs Division, Stewart-Warner Corp.

National Labor Relations Board - Board Decisions

Aug 31, 1979

244 N.L.R.B. 773 (N.L.R.B. 1979)

HOBBS DIVISION, STEWART-WARNER CORP.
Hobbs Division, Stewart-Warner Corporation and
Spring Valley Independent Employees Association-
Hobbs. Cases 33 CA-3638 and 33 CA 3876
August 31. 1979
DECISION AND ORDER
By MEMBERS JENKINS, MURPHY AND TRUESI)ALE
On June 28, 1979, Administrative Law Judge Alvin
Lieberman issued the attached Decision in this pro-
ceeding. No exceptions were filed to this Decision.
However, counsel for Respondent and counsel for the
General Counsel filed a joint motion to substitute the
attached notice for that of the Administrative Law
Judge.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
In the absence of exceptions the Board affirms the
rulings, findings, and conclusions of the Administra-
tive Law Judge and adopts all of his recommended
Order with the exception of his proposed notice. With
respect to the notice the Board has decided to, and
hereby does, grant the joint motion.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Boi'rd adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Hobbs Division, Stewart-
Warner Corporation, Spring Valley, Illinois, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the said recommended Order, except
that the attached notice is substituted for that of the
Administrative Law Judge.
I The General Counsel states that both parties believe that their proposed
notice will effectively remedy the violations found.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing before an Administrative Law Judge,
at which all parties had the opportunity to present
evidence and arguments, it has been decided that we,
Hobbs Division, Stewart-Warner Corporation, have
violated the National Labor Relations Act. We have,
therefore, been ordered to post this notice and carry
out its terms.
WE WILL NOT threaten to close our plant and
discharge employees or threaten to do anything
else to your disadvantage, if your union. Spring
Valley Independent Employees Association-
Hobbs, becomes an affiliate of another union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights guaranteed hy Sec-
tion 7 of the Act.
WE WILL respect your right to have your
union, Spring Valley Independent Employees
Association-Hobbs, become an affiliate of any
other union.
HOBBS DIVISION, SIFWARI-WARNER C()R-
PORATION
DECISION
S rA IEMENI O)F IHE CASE
ALVIN LIEHERMAN. Administrative Law Judge: The hear-
ing in this proceeding, with all parties except the (Charging
Party represented, was held before me in La Salle and Peru,
Illinois, on the General Counsel's complaints and Respon-
dent's answers. The issues requiring decision are whether
Respondent violated Section 8(a)( ) of the National Labor
Relations Act, as amended,' by threatening to close its
plant and discharge employees if their Union became an
affiliate of another labor organization and by threatening to
demote an employee for engaging in protected activit.
Upon the entire record, including my observation of the
witnesses and their demeanor while testifying and having
taken into account the arguments made and the briefs sub-
mitted. I make the following:
FINDINGS OF FA(1'
1. JURISDICTIION
Respondent, a division of Stewart-Warner Corporation,
is engaged at Spring Valley, Illinois, in the manufacture
and sale of automotive electromechanical devices, lighting,
and instrumentation. During the 12 months preceding the
issuance of the complaints, a representative period, Respon-
' Sec. 8(aX I) of the Act states as follows:
Sec. 8. (a) I shall be an unfair labor practice for an employer
(1) to interfere with, restrain. or coerce employees in the exercise of
the rights guaranteed in Section 7:
Insofar as pertinent Sec. 7 provides:
Sec. 7. Employees shall have the right to self-organization, to form. join,
or assist labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protec-
tion. . .
2 Although all the arguments of the parties and the authorities cited hb
them, whether appearing in their briefs or made orally at trial. may not be
discussed, each has been carefully weighed and considered.
I Respondent's motion made at the conclusion of the hearing, upon which
ruling was reserved, is disposed of in accordance with the findings and con-
clusions set forth in this Decision
244 NLRB No. 131
773
I)tl('ISIONS OF NAI'IONAI. LABOR REl.ATIONS BOARD
dent sold and shipped goods valued at more than $50.()) to
customers located outside the State of Illinois. Accordingly,
I find that Respondent is engaged in commerce within the
meaning of' the Act. and that the assertion of jurisdiction
offer this matter by the Board is warranted.
11. Il I AHOR OR(ANI/A IION INVOI.VYI)
Spring Valley Independent Employees Association-
Hobbs (the Union). is a labor organization within the
meaning of the Act.
Ill. 1lt1 ( IIARiLS ANt) COMPAINIS
In this proceeding two cases. 33 CA 3638 and 33-CA
3876. were consolidated for hearing. The charge in the for-
mer, alleging violations of Section 8(a)(1) and (5) of the
Act, was filed by the Union on March 20. 1978. On May 8.
1978 a complaint (May complaint), issued pursuant to this
charge asserting that Respondent committed independent
violations of Section 8(a)(1) by making the threats men-
tioned above in my statement of the issues requiring deci-
sion.
The May complaint also asserted that Respondent vio-
lated Section 8(a)(5) of the Act by failing to provide certain
information to the Union. However, during the trial the
complaint's allegations in this regard were stricken by the
General Counsel.
On August 15, 1978, the Union filed the charge in Case
33-CA 3876 alleging violations of Section 8(a)(5) and, de-
rivatively, of Section 8(a)(1) of the Act. On this charge a
complaint issued on August 25, 1978 (August complaint),
stating that Respondent violated Section 8(a)(5) in respects
different from those alleged in the May complaint. No other
independent unfair labor practices by Respondent were set
forth in the August complaint.
On March 23, 1979. after the close of the hearing, the
Union moved for leave to withdraw those portions of the
charges in Cases 33 CA-3638 and 33 CA-3876 alleging
violations of Section 8(a)(5) of the Act. This motion was
granted on April 9, 1979.
Inasmuch as the only independent unfair labor practice
asserted in the August complaint was a violation of Section
8(a)(5) of the Act, and the Section 8(a)(5) portion of the
charge pursuant to which that complaint issued has been
withdrawn, the August complaint is, in accordance with
Section 102.9 of the Board's Rules and Regulations.' no
longer viable. My Order will therefore provide for its dis-
missal.
Because the General Counsel has stricken the allegations
of the May complaint relating to Respondent's claimed vio-
lations of Section 8(a)(5) of the Act, and the August com-
plaint is without vitality, the only question remaining for
determination is whether Respondent violated Section
8(a)(l) in the manner claimed in the May complaint.
'In pertinent part Sec. 102.9 states as follows:
Upon the withdrawal of any charge at the hearing and until the case
has been transferred to the Board], any complaint based thereon shall
be dismissed by . . the administrative law judge designated to conduct
the hearing.
I. PRII.IMINARY INING(iS AN[) ( )N(I. SI()NS'
A. The Union: Certification and its (ontral( with
Respondent
On June 6. 1977. the Union, an independent labor or-
ganization, was certified as the collective-bargaining repre-
sentative of Respondent's employees in an appropriate unit.
On September 2. 1977, the Union and Respondent entered
into a contract' containing the following pertinent provi-
sions:
ARTICLE II
Representation. Grievances and Arbitration
Section I. Stewards.
The Company will recognize union stewards selected
by the Union in accordance with union rules and regu-
lations, but not in excess of one steward for each forty
employees without the consent of' the Company. The
Company will also recognize a Chief' Steward....
Stewards and the Chief Steward shall be granted a rea-
sonable amount of time during working hours lfor the
purpose of adjusting other employees' complaints;
however they shall not leave their work without the
permission of their supervisors, which permission will
be granted as soon as reasonably possible after the re-
quest is made, normally during the same day.
B. The Union 'v Chief Steward
In February 1978 Richard Siekierka became the Union's
chief steward. At all material times Siekierka has occupied
the position of master die setter in Respondent's punch
press department. His job is critical to the operation of that
department. As Siekierka testified in this regard, he "setr[s
the biggest percentage of the dies that are set in the press
room land] work[s} on the harder dies that the set-up men
cannot handle."
V. HE ALLEGED UNFAIR LABOR PRACTICES
The May complaint 7 alleges that Respondent violated
Section 8(a)(1) of the Act by "threaten[ing] ... to close [its]
plant if the Union affiliated with another labor organiza-
tion" and by "threaten[ing] to downgrade employees if they
engaged in activities on behalf of the Union." These allega-
tions, denied by Respondent, will be separately considered.
A. The Alleged Threat To Close its Plant
From time to time after the Union and Respondent en-
tered into their contract Dorothy McKane, the Union's
president, and Michael Johnson, Respondent's industrial
'The purpose of these findings and conclusions is to furnish a frame of
reference within which to consider the facts relating to Respondent's alleged
unfair labor practices and to the conclusions to which they may give rise.
' Jt. Exh. 5.
Whenever subsequently mentioned the word "complaint" will have refer-
ence to the May complaint.
774
HOBBS DIVISION. STEWART-WARNER CORP.
relations supervisor, met to discuss grievances and other
problems facing the Union. Because the Union's members
felt that Respondent was not responding favorably to these
matters McKane tld Johnson that they were considering
the question of having the Union become an affiliate of
another larger labor organization.'
On October 7, 1977, when the subject was broached by
McKane, Johnson stated that such a move would cause
Respondent to "shut [its] doors" and would "[put] . . . in
jeopardy . . . the jobs of 500 people."' Toward the end of
October 1977 and on March 14 and 21. 1978, McKane
again raised with Johnson the matter of the Union's affili-
ation with another labor organization. On each occasion
Johnson's responses echoed his October 7 statement. 's
It needs no citation of authority to establish that the
threats uttered by Johnson interfered with and restrained
the exercise by Respondent's employees of rights guaran-
teed them by Section 7 of the Act." They were, therefore.
violative of Section 8(a)( ).
Accordingly. I conclude that Respondent engaged in in-
fractions of Section 8(a)(l) of the Act by its threats to close
its doors and to discharge employees upon the Union's af-
filiation with another labor organization.
B. The Alleged Threat To Downgrade Emp/ovees
I come to a different conclusion concerning the com-
plaint's allegation that Respondent violated Section 8(a)(I)
of the Act by "threatenling] to downgrade [an employee if
[he] engaged in activities on behalf of the Union." Although
not named in the complaint's foregoing allegation the em-
ployee to whom it has reference is Richard Siekierka who,
as earlier found, became the Union's chief steward in Feb-
ruary 1978. and the union activity mentioned concerns his
duties as chief steward.
At the time of Siekierka's appointment as chief steward
Respondent was experiencing difficulty caused by the
length of time being spent on union business by the Union's
stewards. Accordingly, upon being informed that Sierkierka
was the Union's chief steward. Michael Johnson, Respon-
dent's industrial relations supervisor, asked Dorothy
McKane. the Union's president, and Siekierka to confer
s As noted above. the Union is an independent labor organization.
'Johnson's "jeopardy" remark was clearly a threat to discharge employ-
ees.
'° My findings in this and the preceding par. are based upon testimonies
given by McKane and Richard Sekierka, the Union's chief steward. The
quotations appeanng in the text are taken from McKane's account of her
conversation with Johnson on October 7. Johnson denied making the re-
marks attributed to him by McKane and Siekierka. I do not believe John-
son's denial. At the time of the hearing McKane and Siekierka were, and had
been for a long time, in Respondent's employ. This being so their testimo-
nies, adverse to Respondent, were given at considerable risk of economic
reprisal. including loss of employment. Having much to lose, their testimo-
nies were, in a sense, contrary to their own interests and, therefore. not likely
to be false. See Federal Stainless Sink Div. of Umarco Industries, Inc.. 197
NLRB 489. 491 (1972); Georgia Rug Mill. 131 NLRB 1304. 1305. modified
on other grounds 308 F.2d 89 (5th Cir 1962). For this reason I credit
McKane and Siekierka rather than Johnson
H Sec. 7 provides, in relevant part, that 'lelmployees shall have the right
. .. to bargain collectively through representatives of their own choosing."
Included in the "right" given to employees to select their bargaining repre-
sentative is their freedom to have their chosen bargaining representative
become an affiliate of another labor organization. C. Quemeico. Inc. 226
NLRB 1398, 1399 (19761.
with him concerning the time to be spent by Siekierka dur-
ing working hours in processing grievances.
At the meeting held on February 28, 1978.2: Johnson
stated that because of the critical nature of Siekierka's job 3
his time for "handiling] normal types of complaints, prob-
lems, grievances, whatever they may be" would be limited
to the last hour of his shift, 2:30 p.m. to 3:30 p.m. Johnson
also stated that if emergencies arose requiring Siekierka's
attention at other times he would be permitted to leave his
work "to go to the problem areas." Finally. Johnson said
that if "too much time was spent [by Siekierka] on union
business something would have to be done about [his] mas-
ter die setter job," adding that in that situation Siekierka
"would have to [be] put into a lower labor grade."
As the conference drew to a close Johnson informed
McKane and Siekierka that later that day he would send a
memorandum to them and to Respondent's supervisors
"outlinling[ the whole procedure so there would be no con-
fusion as to the parties involved with regard to the proce-
dure for [Siekierka's] time." Such a memorandum' was is-
sued by Johnson. in pertinent part it stated:
On 2/28/78 I1 met with Dorothy McKane. President
of the Spring Valley Independent Employees Associ-
ation -- Hobbs, and Rick Sierkierka. [sic] the newly
elected Chief Steward. The purpose of this meeting
was to discuss Chief Steward procedures in accordance
with the contract agreement. Following is a list of
these procedures:
I. Rick Sierkierka [sic] will handle the responsibilities
of his union position during the last hour of his normal
shift.
A. This does not mean that Rick has one hour every
da. Ihis means that Rick will handle the adjusting of
employee problems which are brought to his attention
at the end of the shift (reasonable time).
B. In order to handle these problems Rick will al-
ways ask permission of his supervisor to leave his as-
signed work area when necessary. This permission will
be granted by his supervisor or by the Supervisor of
Industrial Relations.
C. If there is a problem encountered during the day
which is serious or critical Rick will follow the same
procedure outlined in letter B. If permission is denied
by his supervisor and Rick still feels the problem is
serious he may request to speak with the Supervisor of
Industrial Relations in the presence of his supervisor.
. *t
The procedures outlined above are in accordance
with the union contract. Thus far these procedures
have worked and there is no reason why this should
not continue. Full cooperation is necessary from all
parties involved in order to proceed with a healthy and
productive work environment.
If this procedure does not prove effective further dis-
cussions on the subject matter will follow.
I1 All dates subsequently mentioned without stating a year refer to 1978
'" Findings concerning the relationship between Siekierka's position as
master die setter and the operation of Respondent's punch press department
have already been made.
" Joint Eh. .
775
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 3 Johnson met again with McKane and Sie-
kierka who were accompanied by the Union's lawyer. The
purpose of this meeting, which was held at McKane's re-
quest, was to discuss Johnson's memorandum.
While doing this the Union's representatives complained
that the amount of time allowed Siekierka to handle griev-
ances was unreasonable and not in accord with the contract
between Respondent and the Union.'5 Although pressed to
do so by Johnson, McKane refused to say how much time
would be reasonable. Upon her refusal Johnson remarked
that she had "to put a time on it because there comes a
point where reasonable becomes unreasonable." Johnson
then reiterated what he had said at his conference with
McKane and Siekierka on February 28 concerning what
would be done if Siekierka spent too much time on union
business. "
As earlier noted, the complaint alleges that Respondent
violated Section 8(a)(l) of the Act by threatening to "down-
grade" Siekierka for engaging "in activities on behalf of the
Union." In my opinion, however, the evidence does not
support this allegation.
Siekierka is employed by Respondent as a master die
setter. His job, as I have found, is critical to the operation of
the punch press department.
To permit Siekierka to function as the Union's chief
steward without unduly interfering with his key job in the
plant Respondent limited the amount of time that he could
devote during this working day to his steward's duties to the
last hour of his shift and such additional time as would be
required when emergencies arose. To make certain that Sie-
kierka did not exceed these limitations Johnson Respon-
dent's industrial relations supervisor informed McKane, the
Union's president, and Siekierka that if Siekierka did so he
would be placed in a lower labor grade.
Given the critical nature of Siekierka's job the time al-
lowed him to transact union business was, in my judgment,
eminently reasonable and in accord with the Union's con-
tract with Respondent in this respect. This being the case
Johnson's statement to the effect that if Siekierka exceeded
the contract's "reasonable ... time" provisions he would be
demoted was, as I see it, not a threat violative of Section
8(a)(1) of the Act. It was merely Respondent's method of
enforcing the contract bargained out by Respondent and
the Union.
Moreover, and apart from the contract which justified
the action taken by Respondent, it seems to me that an
employer is not required to sit idly by if an employee de-
votes an inordinate amount of time to union business and
thereby neglects his work. In such a situation an employer
1i It will be remembered in this connection that the contract provides that
"the Chief Steward shall be granted a reasonable amount of time during
working hours for the purpose of adjusting . . . employees' complaints."
t" My findings in this and the previous pars. are based upon, and the
quotations appeanng in the text are taken from, testimonies given by John-
son. McKane, and Siekierka. Although I discredited Johnson's denial that he
threatened to close the plant and discharge employees if the Union became
an affiliate of another labor organization, "lilt is no reason for refusing to
accept everything that a witness says, because you do not believe all of it:
nothing is more common in all kinds of judicial decisions than to believe
some and not all." N.L. R.B. v. Universal Camera Corporation. 179 F.2d 749.
754 (2d Cir. 1969). reversed on other grounds 340 U.S 474 (1970). To the
same effect see also Maximum Precision Metal Products, Inc., 236 NLRB
1417 (1978).
may, as Respondent did, without trenching on Section
8(a)(1) of the Act place reasonable limitations upon the em-
ployee's union activity which interferes with the work he is
being paid to do." This is especially so if the employee, as
Siekierka here, occupies a key position in the plant.
Accordingly. I conclude that Respondent did not violate
Section 8(a)(1) of the Act by informing Siekierka that he
would be downgraded if he exceeded the time allowed him
by Respondent within which to transact his business as the
Union's chief steward. My Order will, therefore, provide for
the dismissal of paragraph 5(c) of the complaint.
VI. IH: EFFE('I OF RESPONDENI'S UNFAIR ABOR PRAC(I(iES
UPON ()MMER('E
Respondent's unfair labor practices occurring in connec-
tion with its operations set forth 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.
VIi. ltl RMIil)Y
Having found that Respondent engaged in unfair labor
practices within the meaning of Section 8(a)( 1) of the Act,
my Order will require Respondent to cease and desist there-
from and take such affirmative action as will effectuate the
policies of' the Act.
Upon the basis of the fbregoing findings of fact and upon
the entire record in this case, I make the following:
CON(CItl SIONS OF LAW
I. Respondent is an employer within the meaning of Sec-
tion 2(2) of the Act and 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.
3. By threatening to close its plant and discharge em-
ployees if the Union became an affiliate of another labor
organization Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)( )
of the Act.
4. Respondent did not violate Section 8(a)(1) of the Act
in any other manner.
5. The unfair labor practices engaged in by Respondent.
as set forth in Conclusions of Law, 3, above, affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact. conclusions of law.
and upon the entire record and pursuant to Section 10(c) of
the Act, I hereby issue the following:
7 "The Act ... does not prevent an employer from making and enforcing
reasonable rules covering the conduct of employees on company time. Work-
ing time is for work." Peiton Packing Conpauny, Inc., 49 NLRB 828, 843
( 1943) cited with approval in Republic Aiation (Corporation v. N L R.B. 324
U.S. 793. 803 804 (1953).
776
IIOBBS D)IVISION, STA[WART-WARNER CORP.
ORDER '"
The Respondent. Hobbs Division. Stewart-Warner ('or-
poration, Spring Valley, Illinois, its agents. successors, and
assigns, shall:
I. Cease and desist from:
(a) Threatening employees with plant closure. discharge.
or any other form of reprisal or effectuating any such
threats should Spring Valley Independent Employees Asso-
ciation - Hobbs become an affiliate of any: other labor or-
ganization.
(b) In any like or related manner interfering with, re-
straining. or coercing employees in the exercise of their
rights guaranteed in Section 7 of the National abor Rela-
tions Act, as amended.
2. Take the following affirmative action which, it is
found, will effectuate the policies of the Act:
Sl 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 Order herein shall, as provided in Sec. 10248 of the Rules
and Regulations, he adopted by the Board and become its findings. conclu-
sions, and Order, and all objections thereto shall e deemed waived for all
purposes.
(a) Post at its premises copies of the attached notice
marked "Appendix."' Copies of said notice, on torms pro-
vided hby the Regional Director for Region 33, after being
duly signed by its authorized representative. shall he posted
hb it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter. in conspicuous
places. including all places where notices to emploees are
customarily posted. Reasonable steps shall he taken bh Re-
spondent to insure that said notices are not altered. def'aced.
or covered by any other material.
(b) Notify said Regional Director, in writing. within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
II Is FIRIIFR R()OMMENDHII) that paragraph 5(c) of the
complaint issued herein on May 8. 1978. be. and the same
hereby is., dismissed.
II IS i-t RIIIER RIAO()MME NI)I) that the complaint issued
herein on August 29. 1978. he, and the same hereby is.
dismissed.
19 In the event that this Order is enforced by a Judgment of a inted
States Court of Appeals, the words in the notice reading "Posled hb Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the LUnited States Court of Appeals Enforcing an Order Al the Na-
tional Labor Relations Board."
777