Las Vegas Sun

National Labor Relations Board - Board Decisions

Feb 25, 1974

209 N.L.R.B. 240 (N.L.R.B. 1974)

240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Las Vegas Sun and International Printing Pressmen
and Assistants Union of North America, Local 284.
Case 31-CA-3704
February 25, 1974
DECISION AND ORDER
By MEMBERS FANNING, KENNEDY, AND
PENELLO
On September 10, 1973, Administrative Law Judge
Stanley Gilbert issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief, and Respondent filed
cross-exceptions and a brief in support thereof and
an answer to General Counsel's exceptions.
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
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
We do not agree with the Administrative Law
Judge's finding that Foreman Wilson's April 11,
1973, admonition to 4 to 6 employees of the 24-
employee unit that they keep their noses clean and
not get fired, that "your overtime will probably be
cut down, the company will probably make things
miserable for you so you'll quit, so you won't be
around to vote," warrants the remedial order
recommended by the Administrative Law Judge in
the circumstances of this case.
Employee Chase, upon whose credited testimony
the Administrative Law Judge found the foregoing,
also testified that dust a few weeks earlier, in March
1973, before any of the employees met with the union
organizers for the first time, he and three other
employees2 had engaged in conversation with Wil-
son at a cocktail lounge. According to Chase, the
employees then told Foreman Wilson that they
would like to organize, to which Wilson responded
that he would like to see that happen so they would
have a competent crew and that he would like to see
the men make more money.
Thereafter, on April 11, when the employees
arrived at work wearing union buttons, Wilson was
naturally moved to respond to the open declaration
I The Administrative Law Judge 's finding that Respondent Foreman
Stevenson 's query to employee Degler as to the progress of the union
campaign was noncoercive is based partly on Stevenson 's well-known
sympathy with the union cause This finding is buttressed by the fact, not
mentioned in the Administrative Law Judge's Decision, that , after Degler
responded to Stevenson 's query, the latter wished him luck in helping to
organize the employees
of organizational activity. Indeed, Chase testified
that he felt that Wilson was advising them as to how
to conduct themselves, and that Wilson's tone was
not threatening. Clearly, this conversation was
merely a related sequel to the earlier discussion in
March when the employees had themselves consult-
ed Wilson about their interest in a union.
We believe that whether the conversation warrants
a finding of coercion by the Respondent requiring a
remedial order it must be considered in the context
and circumstances in which it occurred. It was not
against a background of unfair labor practices or in
concert with statements of management as part of an
overall coercive campaign to undermine the Union.
The employees would have readily recognized the
advice offered by Wilson as coming from one
sympathetic to their cause expressing his personal
views rather than from a spokesman of management
conveying its attitude. Under these circumstances,
we do not believe that this isolated conversation and
the friendly well-meaning advice offered by a low-
level supervisor to a small group of employees,
without the knowledge or encouragement of manage-
ment,3 justifies the issuance of a remedial order.
Accordingly, contrary to the Administrative Law
Judge, we shall dismiss the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
MEMBER FANNING, dissenting:
For the reasons set forth in my dissenting opinions
in Walgreen Co.4 and Fearn International, Inc.,5 I
would, unlike my colleagues, adopt that portion of
the Administrative Law Judge's recommended Order
remedying the unlawful 8(a)(1) threats uttered by
Respondent Foreman Wilson towards several em-
ployees during the organizing campaign. My col-
leagues' reasoning that the absence of higher level
management authorization for or condonation of
Wilson's isolated remarks helps to render such
remarks noncoercive is erroneous. The essence of
unlawful coercion in a pure 8(a)(1) violation is in the
impact of the respondent's action on the employees
to whom it is directed, not in the existence or absence
of respondent's union animus.6 In the instant case,
Respondent Foreman Wilson, in the midst of an
2 Including Petak , who was also present at the April 11 discussion
3 Indeed , the record discloses no hostility by Respondent to union
activity which might prompt the remarks by Wilson
4 Walgreen Co, d/b/a Globe Shopping City, 203 NLRB No 36
5 Fearn International, inc, Eggo Foods Division, 209 NLRB No 37
6 The Cooper Thermometer Company, 154 NLRB 502
209 NLRB No. 38
LAS VEGAS SUN 241
organizational drive, clearly communicated to four
to six employees-hardly a small minority in a 24-
man unit-a hostile respondent attitude toward the
union campaign and threats by Respondent to take
adverse action against unspecified employees. The
fact that Wilson was sympathetic to their cause is
immaterial; the employees still had every reason to
believe that Wilson, as a man privy to higher levels of
management, was painting an accurate picture of
what might befall them if they continued their
concerted activity. By any objective analysis, Wil-
son's remarks tended to coerce the employees in the
exercise of their Section 7 rights and are properly the
subject of an appropriate remedial order. I would
adopt the Administrative Law Judge's recommenda-
tion of such order.
DECISION
I STATEMENT OF THE CASE
STANLEY GILBERT, Administrative Law Judge: Based
upon a charge filed on April 16, 1973, by International
Printing Pressmen and Assistants Union of North Ameri-
ca, Local 284, hereinafter referred to as the Union, the
original complaint herein was issued on May 22, 1973. An
amended charge was filed by said Union on May 29, 1973,
and an amendmen. to the complaint was issued on May
31, 1973. The complaint, as amended, alleges that Las
Vegas Sun. hereinafter referred to as the Respondent,
violated Section 8(a)(1) and (3) of the Act.' By its answer
Respondent denies that it committed the unfair labor
practices alleged in the complaint.2
Pursuant to notice a hearing was held in Las Vegas,
Nevada, on June 28 and 29, 1973, before me, duly
designated as Administrative Law Judge. Appearances
were entered on behalf of all the parties. Briefs were
received from the General Counsel and Respondent on
August 17 and 16, 1973, respectively.
Upon the entire record in this proceeding and my
observation of the witnesses as they testified, I make the
following:
FINDINGS OF FAC I
1. BUSINESS OF RESPONDENT
Respondent is a Nevada corporation with its principal
place of business in Las Vegas, Nevada. It is a newspaper
publishing company holding membership in or subscribing
to interstate news services and publishing syndicated
features or advertisements of nationally sold products. It
derives gross annual revenues in excess of $200,000.
As is admitted by Respondent, it is, and at all times
material herein has been, an employer engaged in
1 During the course of the hearing , par 8(d) of the complaint was
amended to change the date of April 29, 1973, to March 22, 1973.
2 Although the answer denies par. 5(a) and (b) of the complaint,
Respondent has stipula'ed to 5(a) and during the course of the hearing
represented that it was raising no issue with respect to 5(b).
3 As indicated hereinabove , although Respondent in its answer denied
the supervisory status of Stevenson, in the course of the hearing Respondent
commerce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
As is admitted by Respondent, the Union is, and at all
times material herein has been, a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges that Respondent violated Section
8(a)(1) of the Act on March 22, 1973, through John E.
Stevenson, an assistant foreman, by unlawful interrogation
of an employee .3
The complaint further alleges that Respondent, through
the conduct of admitted supervisor Sherral Wilson,
foreman of the mailroom, unlawfully threatened employees
with economic reprisals for their union activity and
unlawfully interrogated an employee on or about April 11,
1973.4
The complaint also alleges that on or about April 13,
1973, Respondent violated Section 8(a)(3) and (1) of the
Act by reducing the working hours and changing the work
schedule of the employees in the mailroom because of their
union activity.
All of said allegations were denied by Respondent.
B. The Organizational Activity
The Union sought to organize the employees in Respon-
dent's mailroom commencing on or about March 15, 1973.
On that date, representatives of the Union met with seven
of the mailroom employees. A number of them again met
with representatives of the Union on March 22. On April
11, union representatives met with a large majority of the
mailroom employees, which at that time apparently
numbered approximately 18. The employees present voted
to notify Respondent that they desired to be represented
by the Union. Buttons signifying that the wearer was in
favor of union representation were distributed to them and
on April 11 all of the employees who worked on the
evening shift wore said buttons. On April 12, a representa-
tive of the Union contacted Respondent's General Manag-
er Burt Buy and requested a meeting to discuss representa-
tion of mailroom employees. Buy refused the request.
C. Resolution of the Issues
Employee Edwin Degler testified that he had a very brief
conversation with Stevenson on March 22, 1973, which
testimony is uncontradicted and is credited. It appears that
it must have occurred shortly after the meeting the
employees had with the union representatives on that date.
According to Degler's credited testimony, Stevenson asked
represented that it was not contesting his supervisory status.
4 General Counsel elicited no testimony with respect to the allegation of
unlawful interrogation by Wilson and, in his brief, General Counsel made
no reference to any testimony which would support said allegation.
Therefore , it will be recommended that said allegation (par. 8(c) of the
complaint) be dismissed.
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him how the union organization was going, and he replied
that out of 18 employees 18 had signed "petition cards." It
appears that the employees had reason to believe that
Stevenson favored union representation and that this was
the sole instance of any interrogation of employees by
Stevenson. In the circumstances, it does not appear that his
inquiry of Degler could have reasonably interfered with,
restrained, or coerced Degler within the meaning of
Section 8(a)(1) of the Act. This conclusion is based upon
the casual nature of their conversation, its brevity,
Stevenson's known favorable attitude toward union repre-
sentation, the isolated nature of this incident, and
Stevenson's position at the lowest level of Respondent's
supervisory personnel.
As aforementioned, all of the employees on the evening
shift of April 11, 1973, wore union buttons at work. During
a breaktime, Foreman Sherral Wilson held a conversation
with from four to six of the employees According to
employee Charles Chase, Wilson told them "to make sure
that we keep our nose clean and don't get fired." Chase
further testified that Wilson added "your overtime will
probably be cut down, the company will probably make
things miserable for you so you'll quit, so you won't be
around to vote." Charles Petak, another employee, testified
that Wilson warned them to be on their toes at all times
and that if they did not keep themselves "clean," he would
not be able to save them. Respondent did not call Wilson
as a witness and offered no explanation for the failure to
do so. Although there are variations in the testimony of
Chase and Petak, their testimony is credited as being
different fragments of the statements made by Wilson.
It appears that the employees had reason to believe that
Wilson favored their obtaining union representation, and
Respondent argues that the statements made by Wilson
were not unlawful, since they were made in a friendly
conversation by a supervisor who was sympathetic to their
desires for union representation. In my opinion, these
circumstances add to, rather than detract from, the
coercive effect of Wilson's statements. It is reasonable to
assume that they must have believed that he was confiding
to them management's attitude toward unionization of the
mailroom, to which attitude he, as supervisor, was privy.
Thus, while he himself did not threaten to take economic
reprisals against them for adherence to the Union, he was
warning them of what action management might take
against them because of their protected activity. It is
concluded that his statements can and should be equated
with threats of economic reprisals for union activity.5
Consequently, it is concluded that Respondent, by the
conduct of Wilson on March 11, did threaten economic
reprisals for union activity in violation of Section 8(a)(1) of
the Act.
There is no dispute that commencing on April 14, 1973,
the Respondent changed the work schedule of the
mailroom employees and reduced the number of work
hours of the employees in the mailroom as a whole. The
General Counsel does not contend that any particular
individual or individuals were singled out for such
5 Respondent cites Utrad Corp v N L. R B, 454 F 2d 520(C A 7, 1971)
in support of its argument The facts in said case are considerably different
from the facts in the instant case In addition, it is noted that in the Board
treatment. General Counsel contends that this action was
taken in reprisal for the employees seeking union repre-
sentation and engaging in activities on behalf of the Union.
The Respondent contends that its action was motivated
solely by economic considerations . Two factors support
General Counsel's contention, the timing of the change in
scheduling by a notice posted the day after management
testified it learned of the union activity, and Wilson's
warning on April 11 that management might cut employ-
ees' overtime, ostensibly because of their adherence to the
Union. These elements are sufficient to make out a prima
facie case. However, the credited testimony of Respon-
dent's witnesses as to the events leading up to the decision
to change the mailroom schedules and Respondent's
records rebut the prima facie case and lead me to the
conclusion that the change in the work schedule was not
discriminatorily motivated.
Duane Langeliers, Respondent's comptroller, Burt Buy,
Respondent's general manager, and Jesse Dixon, Jr.,
circulation manager, credibly testified to the events that led
up to the decision to change the schedule. According to
their credited testimony, Langeliers, in December 1972,
became alarmed over the rising labor costs in the mailroom
and, in late December, reported this to Buy. Dixon was
called into the meeting and they discussed means of
increasing the efficiency of the mailroom. In February
1973, Langeliers again made a report with respect to the
labor costs and there was a further discussion of the
problem. At that point, Buy instructed Dixon to reduce the
labor costs in the mailroom. In March there was another
meeting with respect to the labor costs and again Dixon
was told to effect a reduction in the operating costs in the
mailroom. On April 6 there was another meeting between
the three and Dixon was instructed to take over daily
control of the operations of the mailroom. Up to that time,
Dixon, as circulation manager, was responsible for the
operations of the mailroom but had left its day-to-day
operations to Wilson as its foreman.
Dixon testified that he spent 2 hours a day during the
week between April 6 and 13 studying the operations of the
mailroom to determine the reason for the high cost. This
testimony is uncontradicted and is credited. It appears that
he came to the conclusion that there were man hours
wasted because at certain periods of the day there were
more men in the mailroom than were required for the
workload. Consequently, on April 13, he posted a schedule
for the next day (and followed the same procedure
thereafter) in which he staggered the work hours so that the
personnel could be more efficiently employed. The records
of Respondent show that after this procedure was
instituted a substantial reduction in the cost of operating
the mailroom was effected.
All three of said witnesses of Respondent testified that
they had no knowledge of union activity in the mailroom
until April 12, 1973. This testimony is credited. Although it
appears that both Stevenson and Wilson had knowledge of
the activity, it is inferred that they did not transmit this
knowledge to upper levels of management, apparently
decision, Utrad Corp, 185 NLRB 434, 439, it is stated "The fact that the
parties may have been on friendly terms does not bar a finding, if, under all
the circumstances, the inference of coercion is a reasonable one "
LAS VEGAS SUN 243
because they favored the employees' desire to obtain union
representation. Dixon's delay between April 6 and 13 in
implementing Buy's directive to lower the mailroom's cost
is explained by his credited testimony that he spent that
period of time studying the mailroom operations. It
appears that while a number of the employees have had
increased work hours in the weeks following the week in
which the change in scheduling was put into effect, it
appears that the number of men employed in the mailroom
has been reduced and that the costs have remained
lowered.
Thus, it is my opinion that, while the timing of the
change in schedule and Wilson's warning about hours
being cut cast suspicion on Respondent's motive in
changing the work schedules, the motive therefor was
solely economic and nondiscriminatory.
Consequently, it is concluded that the General Counsel
has failed to sustain by a preponderance of the evidence
the allegation in paragraphs 6 and 7 of the complaint that
the Respondent discriminatorily reduced the work hours
and changed the work schedule of the employees in the
mailroom.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE
UPON COMMERCE
The unfair labor practice of the Respondent set forth in
section 111, above, occurring in connection with its
operations set forth in section 1, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
It will be recommended that the Respondent be ordered
to cease and desist from engaging in the unfair labor
practice found herein and take certain affirmative action,
as provided in the recommended Order below, designed to
effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in this proceeding, I make the
following:
CONCLUSIONS OF LAW
1. Respondent is an employer 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. Respondent violated Section 8(a)(1) of the Act on
April 11, 1973, through the conduct of Sherral Wilson by
threats of economic reprisals against employees for seeking
union representation and for activities upon behalf of the
Union.
4. General Counsel has failed to prove by a preponder-
ance of the evidence the allegations in the complaint of
unfair labor practices set forth in paragraphs 6, 7, and 8(c)
and (d) thereof.
[Recommend Order omitted from publication.]