Korwall Corp.

National Labor Relations Board - Board Decisions

Sep 12, 1978

238 N.L.R.B. 88 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Korwall Corporation of Indiana and Thomas D. Gra-
ham. Cases 25-CA-8997 and 25-CA-8997-2
September 12, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On June 6, 1978, Administrative Law Judge Peter
E. Donnelly issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed limited excep-
tions to the Decision.
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.
The Board has considered the record and the at-
tached Decision in light of the exceptions and has
decided to affirm the rulings, findings, and conclu-
sions 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 Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Korwall Corporation of
Indiana, Elkhart, Indiana, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge: The
original charge herein (Case 25-CA-8997) was filed on
June 8, 1977,' by Thomas D. Graham, an individual, herein
sometimes called Charging Party. A second charge (Case
25-CA-8997-2) was filed on June 23 by Graham, and a
consolidated complaint thereon was issued by the General
Counsel of the National Labor Relations Board on July 12
alleging that Korwall Corporation of Indiana, herein called
the Employer or Respondent, violated Section 8(a)(1) and
(3) of the Act by, inter alia, the transfer of the Charging
Party. An answer thereto was timely filed by Respondent.
Pursuant to notice a hearing was held before the Adminis-
trative Law Judge at Elkhart, Indiana, on December 12 and
13. When the hearing opened, the consolidated complaint
was amended to add an essentially unrelated allegation that
Respondent, through its attorney, in preparation for the in-
stant hearing, coercively interrogated employees. The issues
raised by the original complaint were resolved by settle-
All dates refer to 1977 unless otherwise indicated.
ment agreement and approved by me on December 13 over
the objection of the General Counsel. Thus only the issue of
unlawful pretrial attorney interrogation of employees was
heard at the hearing, which therefore is the only issue re-
maining for disposition herein. Briefs have been filed by the
General Counsel and Respondent which have been duly
considered.
FINDINGS OF FA(Ct
1. THE EMPLOYER'S BUSINI:SS
The Employer is an Indiana corporation maintaining its
principal office and placce of business at Elkhart, Indiana,
where it is engaged in the manufacture, sale, and distribu-
tion of laminated foam cores and related products. During
the past year Employer in the course and conduct of its
business operations manufactured, sold, and distributed at
this facility products valued in excess of $50,000 which were
shipped from the facility directly to States other than the
State of Indiana. During the past calendar year the Em-
ployer in the course and conduct of its business operations
purchased and transferred and delivered to its facility goods
and materials valued in excess of $50,000 which were trans-
ported to said facility directly from States other than the
State of Indiana. The complaint alleges, the answer admits,
and I find that the Employer is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE ILAB()R ORGANIArION
The complaint alleges, the answer admits, and I find that
United Steel Workers of America, AFL-CIO CLC, herein
referred to as the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRA(TIC(ES
The only issue is whether or not Repondent's attorney,
Rayford T. Blankenship, unlawfully interrogated employ-
ees Cheryl Vaught, Bruce Kelver, Danny Holt, and Charles
Terry while preparing for this instant hearing.
A. Facts2
I. Cheryl Vaught: A hearing in this proceeding was origi-
nally set for October 6. A few days prior thereto, during the
2 There is conflicting testimony with regard to some of the relevant facts
surrounding the alleged unlawful interrogations. In resolving these conflicts,
I have taken into consideration the apparent interests of the witnesses. In
this connection, where the testimony of the General Counsel's employee
witnesses is credited, the fact that they were still employed by Respondent
against whom they testified was a factor supporting their credibility, partic-
ularly when weighed against the obvious interests of the Employer. In addi-
tion I have considered the inherent probabilities; the probabilities in light of
other events; corroboration or lack of it; consistencies or inconsistencies
within the testimony of each witness, and between the testimony of each and
that of other witnesses with similar apparent interests. In evaluating the
testimony of each witness I rely specifically upon his or her demeanor and
have made my findings accordingly. and while apart from considerations of
demeanor I have taken into account the above-noted credibility consider-
ations, my failure to detail each of these is not to be deemed a failure on my
part to have fully considered Bishop and Malco, Inc., d/'b/a Walker's, 159
NLRB 1159, 1161 (1966).
238 NLRB No. 16
88
KORWALL CORP. OF INDIANA
week of October 3, Respondent's attorney, Rayford T.
Blankenship, together with Respondent's vice president,
Ralph Smucker, visited Vaught at her home. Vaught was
no longer employed by Respondent, having left in June
1977. Since she had company, arrangements were made for
them to visit her on the following day at the house of a
friend where Vaught was babysitting. About 10 a.m.,
Blankenship and Smucker arrived. After introduction,
Blankenship asked her if he could ask her some questions
about the unfair labor practice case involving Graham. He
also advised her that she had the right not to talk to him.
Vaught agreed to discuss it with him. During the course of
the conversation Blankenship asked her if she was going to
be a witness in the unfair labor practice case and Vaught
said that she was. He also asked her if she had received a
subpena and she said that she had. She was also asked by
Blankenship if she had spoken to Board attorney Albert G.
Fisher, and she replied that she had not. When asked if she
had given the Union a statement, she replied affirmatively.
Blankenship also asked her if she had signed a union card,
what color it was, and whether or not Graham had given it
to her. Blankenship also asked her which employees were
"backing up" the Union and she replied that it was not
anyone in particular, that everyone was in it. Despite
Smucker's testimony to the contrary, I credit Vaught that
she was never assured that the Employer would take no
reprisals; the matter of reprisals was not discussed.'
2. Bruce Kelver. On October 3, Kelver, a production em-
ployee, was called into the office of Plant Manager John
Collins. It appears that this office, also known as the pro-
duction office, is used extensively by the employees, and
several employees came into the office and took things out
of the desk during the ensuing conversation. Blankenship
was in the office and introduced himself. In addition to
Blankenship, another production employee, Wilma Greg-
ory was also present. Gregory remained for the entire con-
versation, and Kelver was told by Blankenship that Greg-
ory was there to protect his rights.4 Blankenship explained
that he was representing the Respondent in the unfair labor
practice case. In addition he advised Kelver that he did not
have to answer questions, and that he could do so if he
desired, "free from reprisals from the Company or the
Union."' During the interview, Kelver was asked by Blank-
enship if he had spoken to a government lawyer about the
case and Kelver replied that he had. Blankenship asked him
if he had signed a union card and Kelver said that he had.
Blankenship also asked him if he had been subpenaed in
the unfair labor practice case and Kelver replied affirma-
tively. Blankenship asked if Holt, Vaught, and employee
John Walters had been subpenaed and Kelver answered
that they had.
I Blankenship did not testify at the hearing.
4 Gregory was employed by Respondent in September 1977. some 2 weeks
before this conversation. She attended at the request of Plant Manager Col-
lins. Gregors is a concededls antiunion employee, once having told Graham
that she had belonged to a union in the past and that "they were no good"
and that as far as she was concerned she "didn't care for a union"
I Although Kelver testified that he cannot recall being so advised, I con-
clude that he was, particularly in view of Gregory's corroborating testimony
and the fact that a statement signed by Kelver pursuant to the interview
reflects that he was so advised.
3. Danny Holt.: On October 3, like Kelver, Holt was
asked by Collins to go to the production office to talk to a
lawyer about the unfair labor practice case. Again Wilma
Gregory was in the room and stayed for the entire conver-
sation. Holt was told that she was there as his witness to
protect his rights. Blankenship introduced himself and told
Holt that he was a lawyer working on the unfair labor prac-
tice case for the Company and that he wanted to talk to
him, but that Kelver was not obliged to do so. Blankenship
also advised him that he could speak without fear of em-
ployer reprisal.' Among other questions put to Holt, he was
asked why he was in the case and he replied that he did not
know. Blankenship also asked him who started the Union
and Holt told him that it was not one person, that everyone
was for it. Blankenship asked him if he knew of anybody
making someone sign cards and he said he did not. Blank-
enship asked him if he knew of anyone else who was going
to be subpenaed in the unfair labor practice case and he
gave the names of employees Chuck Terry. Bruce Kelver.
and Jack Walters. Holt was also asked if he had signed a
union card and he replied that he had. Holt was asked if he
had been interviewed about the unfair labor practice case
by Graham's attorney and he replied that he had not.
4. Charles Terry: On October 4, 1977, Terry, another
worker, was asked by Plant Foreman Tom Herschberger to
go to the production office. Again Blankenship and Greg-
ory' were there and Terry was advised by Blankenship that
Gregory was there as his witness to protect his legal rights.
Blankenship told him that he was the attorney for the Em-
ployer in the upcoming unfair labor practice case, but that
he could choose not to talk to him. Blankenship also told
him that he could speak freely without fear of reprisal by
the Company or the Union.' Among other queries, Terry
was asked if he had signed a card and he said tht he had.
He was asked the color of the card and he replied that he
thought it was blue. Terry had signed a blue checkoff au-
thorization card on behalf of the Union. Blankenship asked
him who the witnesses were going to be and he answered
Kelver, Holt, Walter, and Graham.8
B. Discussion and Analysis
For many years the Board has adhered to the criteria
established in the Johnnie's Poultry case.9 in determining
whether or not employee interviews and interrogations are
coercive. The following language from Johnny's Poultry sets
out the criteria.
Despite the inherent danger of coercion therein, the
Board and courts have held that where an employer
6 Again I conclude that such assurance was given based on Holt's signed
statement and Gregory's corroborating testimony.
I Like Kelver and Holt, Terry gave Blankenship a signed statement reflect-
ing that he was given assurances against reprisal. Despite his denial, I credit
the statement. noting also the corroborating testimony of Gregory.
I Except as to the matter of Blankenship assuring Kelver, Holt, and Terry
against employer repnsal, I credit the accounts provided by the General
Counsel's employee witnesses, particularly since Gregory is concededly an
antiunion employee and was selected by Respondent itself to be present at
the interviews.
9 Johnie's Poultry Co. and John Bishop Poulto, Co, Successor, 146 NLRB
770. 774 775 (1964), enforcement denied on other grounds 344 F.2d 617
(C.A 8, 1965)
89
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has a legitimate cause to inquire, he may exercise the
privilege of interrogating employees on matters involv-
ing their Section 7 rights without incurring Section
8(a)(l) liability. The purposes which the Board and
courts have held legitimate are of two types: the verifi-
cation of a union's claimed majority status to deter-
mine whether recognition should be extended, in-
volved in the preceding discussion, and the
investigation of facts concerning issues raised in a com-
plaint where such interrogation is necessary in prepar-
ing the employer's defense for trial of the case.
In allowing an employer the privilege of ascertaining
the necessary facts from employees in these given cir-
cumstances, the Board and courts have established
specific safeguards designed to minimize the coercive
impact of such employer interrogation. Thus, the em-
ployer must communicate to the employee the purpose
of the questioning, assure him that no reprisal will take
place, and obtain his participation on a voluntary ba-
sis; the questioning must occur in a context free from
employer hostility to union organization and must not
be itself coercive in nature; and the questions must not
exceed the necessities of the legitimate purpose by pry-
ing into other union matters, eliciting information con-
cerning an employee's subjective state of mind, or oth-
erwise interfering with the statutory rights of
employees. When an employer transgresses the bound-
aries of these safeguards, he loses the benefits of the
privilege.
In evaluating the interrogation herein, it is clear that
some of the enumerated safeguards were not observed. Ob-
viously, as to Vaught, she was given no assurance against
reprisal, and the absence of such assurance is coercive in
violation of Section 8(a)(1) of the Act.' °
Among other questions put to Vaught, Kelver, and Holt,
were questions concerning the extent of their participation
in the upcoming unfair labor practice hearing. Vaught was
asked if she was going to be a witness and if she had re-
ceived a subpena; also if she had given a statement to the
Union, or spoken to a Board agent. As set forth above, in
more detail, some of the same questions were asked of Kel-
ver and Holt. In addition, Holt was asked why he was "in
the case." These questions were germane to the upcoming
unfair labor practice hearing, even though they may not
have been directly related to the merits of the complaint.
Accordingly, they do not transgress the restrictions imposed
by the Board on employees interrogation." The Board has
held that merely asking whether or not an employee has
given a statement to the Board is not coercive. Bishop and
Malco, Inc., 159 NLRB 1159 (1966). The above questions
10 While it appears that Vaught was not employed by Respondent at the
time of the interview, she is nonetheless protected as an employee against
coercion for the purposes of Sec. 8(a)() of the Act. Little Rock Crate &
Basket Co., 227 NLRB 1406 (1977). 1 realize that the absence of an assur-
ance against repnsal may be less significant where the employee, like
Vaught, is not presently employed, but I nonetheless conclude that the Little
Rock case is so broad as to control.
1i Since the production office is used by employees so extensively, I con-
clude, contrary to the General Counsel, that the location of the interroga-
tions was not itself a coercive circumstance.
involving employee participation in the hearing are no
more offensive and do not infringe on the employees' Sec-
tion 7 rights. Hesston Corporation, Inc., 175 NLRB 96
(1969).
Other questions were asked. All three employees testified
that they were asked if they had signed union cards and
Holt was asked if anyone had made any employee sign a
union card. While such inquiries may be permissible in an
8(a)(5) case, where a respondent is attempting to defend
against an assertion of majority employee status, there was
no such issue in the instant case and these questions are
clearly outside the bounds of legitimate pretrial interroga-
tion.
During the interrogations, both Holt and Vaught were
asked questions designed to identifying those employees
supporting the Union. Again these questions were not nec-
essary to the Respondent's defense and, thus, were unprivi-
leged and coercive. John S. Barnes Corporation, 180 NLRB
911, 918 (1970); Dixie Cup, Division of American Can Com-
pany, 157 NLRB 167 (1966).' 2
Respondent contends that the information concerning
union cards was relevant to its defense. The purpose was to
show that other employees were union adherents, but were
not discriminated against, thus establishing that there was
no antiunion motivation for the discrimination. However, it
is not the mere existence of other prounion employees
which evidence this defense. It is the employer's awarenes
at the time of the discrimination that is relevant and the
employer is privy to this information, not the employees.
Accordingly, I conclude that this defense is without merit."
IV. THE EFFECT OF THiE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section 111,
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 obstruct-
ing commerce and the free flow of' commerce.
V. THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices in violation of Section 8(a)(l) of
the Act, I shall recommend that the Respondent be ordered
to cease and desist therefrom, and from infringing in any
like or related manner upon its employees' Section 7 rights
and that it take certain affirmative action designed to effec-
tuate the policies of the Act.
On the basis of the foregoing findings of fact, and the
entire record in this proceeding, I make the following:
CONC(I.SIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
12 In view of the findings made herein, Respondent's motion to dismiss is
hereby denied. Motion to withdraw Resp. Exh. 8 is denied as without basis.
Respondent's motion to stnke Vaught's testimony is denied for the reasons
expressed at the hearing.
3 Providing for the presence of Gregory, an antiunion employee selected
by Respondent, does not in any way legitimize the unlawful interrogations.
90
KORWALL CORP. OF INDIANA
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing employ-
ees in the exercise of their rights guaranteed in Section 7 of
the Act, Respondent has engaged in and is engaging in un-
fair labor practices proscribed by Section 8(a)(l) of the Act.
On the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Na-
tional Labor Relations Act, I hereby issue the following
recommended:R4
ORDER
Respondent Korwall Corporation of Indiana, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees concerning
their union affiliation or sympathies in a manner constitut-
ing restraint and coercion within the meaning of Section
8(a)(1) of the Act.
(b) Coercively interrogating its employees concerning
their union affiliation or activities of other employees in a
manner constituting restraint and coercion within the
meaning of Section 8(a)(1) of the Act.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Post at its facility in Elkhart, Indiana, copies of the
J4 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, he adopted by the Board and become its
findings, conclusions, and Order. and all objections thereto shall be deemed
waived for all purposes.
attached notice marked "Appendix."" Copies of said notice
on forms provided by the Regional Director for Region 25,
after being duly signed by the Employer's authorized repre-
sentatives, shall be posted by it immediately upon receipt
thereof, and be maintained 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 Employer to ensure that said
notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 25, in writ-
ing, within 20 days from the date of this Order, what steps
the Employer has taken to comply herewith.
1S In the event that this Order is enforced by ajudgment 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"
APPENDIX
NorIiE. To EMPI OYEEiS
POSTED BY ORDER OF IHEi
NATIONAL LABOR RELATIONS BOARD
An agency of the United States Government
WE WIl.. NOT coercively interrogate our employees
concerning their union affiliation or sympathies in a
manner constituting illegal restraint and coercion.
WE wll.i NOi coercively interrogate our employees
concerning the union affiliation or activities of other
employees in a manner constituting illegal restraint
and coercion.
WUE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights guaranteed in Section 7 of the Act.
KORW\AII. CORPORAIION OF INDIANA
91