Ohio Sealer and Chemical Corp.

National Labor Relations Board - Board Decisions

Apr 30, 1970

182 N.L.R.B. 245 (N.L.R.B. 1970)

OHIO SEALER AND CHEMICAL CORP
Ohio Sealer and Chemical Corporation and International
Union , United Automobile , Aerospace and Agricultural
Implement Workers of America (UAW) Cases
9-CA-5219-2 and 9-CA-5263
April 30, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On December 30, 1969, Trial Examiner Fannie M
Boyls issued her Decision in the above-entitled proceed-
ing, finding that the Respondent had engaged in and
was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision She
also found that the Respondent had not engaged in
certain other unfair labor practices alleged in the com-
plaint, and recommended the dismissal of such allega-
tions Thereafter, the General Counsel filed limited
exceptions to the Trial Examiner's Decision and a brief
in support thereof
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel
The Board has reviewed the rulings of the Trial Exam
Iner made at the hearing and finds that no prejudicial
error was committed The rulings are hereby affirmed
The Board has considered the Trial Examiner's Decision,
the exceptions and brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the follow
ing modifications
The Trial Examiner found that the Respondent violat
ed Section 8(a)(1) of the Act, as alleged in the amended
complaint, when Supervisor Murray Tait told employee
Ralph Strunks on October 3, 1969, that Strunks had
not received a wage increase because of his "union
activities in those meetings," namely his asking a particu-
lar question of the Respondent's counsel who had
appealed to the employees to vote against the Union
No exception was filed to that finding The General
Counsel excepted solely to the limited nature of the
Trial Examiner's recommended remedy, which consisted
only of a cease-and-desist order, including posting of
a notice The General Counsel contends that Strunks
should be made whole for any wage increase discrimina-
torily denied him We find no merit in the General
Counsel's exception
As the Trial Examiner stated, the complaint, as amend
ed, did not allege that Strunks was, in fact, discriminato
rily denied a wage increase Moreover, the record fails
to establish that he was denied an increase for the
245
reason given, and, in any event, the issue was not
fully litigated We therefore find that the remedy recom-
mended by the Trial Examiner, as modified herein,
is appropriate for the only violation found, the making
of a coercive statement
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order
of the Trial Examiner, as modified herein, and hereby
orders that the Respondent, Ohio Sealer and Chemical
Corporation, Dayton, Ohio, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Trial Examiner's Recommended Order, as modified
below
I Delete from paragraph 1(a) the words "or in fact
denying to any employee a wage increase for that rea-
son "
2 Delete from the first indented paragraph of the
notice the words "nor will we, in fact, deny a wage
increase to any one for that reason "
IT IS FURTHER ORDERED that those allegations of
the complaint as to which no violations have been found
be, and they hereby are, dismissed
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FANNIE M BOYLS, Trial Examiner This case, initiated
by charges filed on June 11 and July 18, 1969, and
a complaint issued on August 27, 1969, was tried before
me in Dayton, Ohio, on October 13 and 14, 1969 The
complaint alleges that Respondent violated Section
8(a)(1) and (3) of the Act It was amended during the
course of the hearing to allege that Respondent had
engaged in an additional violation of Section 8(a)(1)
Respondent filed an answer to the complaint and to
the amendment, denying that it had engaged in the
unfair labor practices alleged Subsequent to the hearing
counsel for the General Counsel and for Respondent
filed helpful briefs, which have been carefully consid
ered
Upon the entire record in this case and from my
observation of the demeanor of the witnesses as they
testified, I make the following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent is an Ohio corporation, engaged at Day
ton, Ohio, in the manufacture of asphalt and chemical
sealers During the year preceding the issuance of the
complaint, which is a representative period, Respondent
sold and shipped directly from its Dayton plant to cus
182 NLRB No 36
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tomers outside the State of Ohio products valued in
excess of $50,000. I find, upon these admitted facts,
that Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of
the Act and that it will effectuate the policies of the
Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, UAW
(herein called the Union), is a labor organization within
the meaning of Section 2(5) of the Act .
111. THE UNFAIR LABOR PRACTICES ALLEGED
A. Setting and Issues
On May 14, 1969, the Union filed a representation
petition, seeking an election and certification as the
bargaining representative of Respondent's employees.
The Union won the election which was held on June
26 and was certified on July 7. During the preelection
period, Respondent , through its attorney, William Trea-
cy, made speeches to the employees in an attempt
to persuade them to reject the Union at the polls.
One of the issues presented is whether certain statements
made by him were • privileged under Section 8(c) of
the Act or were in violation of Section 8(a)(1) of the
Act.
Subsequent to the election one of the union leaders,
Raybon Barrett, Sr., was discharged . As to him the
issue is whether Respondent discriminated against him
because of his prominence in the Union in assigning
him duties not assigned to others and then discharged
him for threatening to report the matter to the Union
or whether , as Respondent contends , he was treated
no differently than other employees in the assignment
of duties and was discharged for threatening physical
harm to Respondent ' s plant manager.
Finally, there is presented the issue raised by the
amendment to the complaint , whether Respondent violat-
ed Section 8(a)(1) of the Act by telling employee Strunks,
who was not in the bargaining unit but had supported
the Union , that he was being denied a wage increase
because of his union activities.
B. The Alleged Coercive Statements Attributed to
Respondent,'s Counsel
Respondent's counsel, Treacy, came to the plant and
addressed the employees upon several occasions shortly
before the election. He told them in effect that his
purpose in talking to them was to persuade them that
the Union 'could be harmful to them and that they
would be better off without the Union. The coercive
statements charged to him were to the effect that (1)
if the Union won the election, Respondent would start
from the Federal minimum wage rate in bargaining with
the Union, through Respondent's employees were
already being paid substantially more than that, and
(2) the employees could gain better working conditions
by dealing individually with Respondent than the Union
had been able to obtain in a contract with Protective
Treatment, one of Respondent's competitors.
With respect to the first allegation , Treacy credibly
testified that his statements regarding the Federal mini-
mum wage arose in the following manner: At one of
the meetings an employee, Orville Graham, stated that
he had heard from a union representative that if the
Union won the election, Respondent could not legally
insist on a contract which provided for less than the
employees were getting before the election and therefore
the employees would have nothing to lose by selecting
the Union. The employee asked if this statement was
true. Treacy replied that in his opinion it was not true
because all the Employer was obligated to do as a
matter of law was to start from the Federal minimum
wage and that how high the wage figure got would
depend on the relative strength of the parties. Treacy
assured the employees, however, that no intelligent com-
pany would consider lowering employees' wages because
good help was too difficult to get and keep. He stated
that as a result.of collective bargaining the employees
might wind up with more than they had been receiving,
they might wind up with about the same as they then
had, or they might end up with less.' Treacy's version
of his statements at the meeting on this subject are
similar to those made by Respondent in a written state-
ment of Respondent's position distributed to all employ-
ees in the unit on June 24, 2 days before the election.
I find nothing unlawfully coercive in the written state-
ment and, even it be assumed that Treacy did not
state Respondent's position as clearly at ' the meeting
as it appears in the written statement and in his testimo-
ny, the written statement would tend to assure the
employees that Respondent had no intention of taking
away from them any of the benefits they might have
had merely because of their selection of the Union.
I am not persuaded that Treacy's statements on this
subject were unlawful. See TRW, Inc., 173 NLRB No.
223.
A like conclusion is reached with respect to his state-
ments regarding the contract with Respondent's competi-
tor, Protective Treatment. According to employee
Strunks, after Treacy had made the point that unions
could break a company, employee Barrett mentioned
that the employees of Protective Treatment were repre-
sented by the Union and that that Company had not
gone bankrupt or gone out of business. Treacy thereupon
displayed what purported to be a copy of the Union's
contract with Protective Treatment and started tearing
it apart, item by item , and contending that Respondent's
working conditions were better than those provided in
the union contract. He stated that Respondent would
be glad to do as well or better than Protective Treatment
I The version of employees Strunks and Barrett regarding Treacy's
statements on the subject of Respondent's bargaining obligations, though
not given in the detail described above, were not inconsistent with
Treacy's testimony They, too, testified that Treacy's statements were
in response to an employee's question
OHIO SEALER AND CHEMICAL CORP
had done for its employees He told the employees
that Respondent was not making any promises to them
at that time because it could not legally do so, but
asked the employees to have faith in Respondent's good
intentions He stated that if the employees trusted
Respondent, it would not be unfair to them Treacy's
testimony regarding what he told the employees in com-
paring their working conditions with those of employees
of Protective Treatment is not substantially different
from Strunks ' version Neither version , in my opinion,
constitutes an invitation to the employees to deal directly
with Respondent rather than through a union in order
to obtain better bent;lts, as the General Counsel appar-
ently contends In view of his analysis of the Protective
Treatment contract which showed that Respondent was
already doing as well or better for its employees than
Protective Treatment, Treacy's statement that Respond-
ent would be glad to do as well or better than Protective
Treatment does not appear to constitute a promise of
benefit hinging on the Union ' s defeat at the polls I
do not find Treacy ' s statements taken in their context
to be unlawfully coercive
C The Alleged Discrimination Against Barrett
Raybon Barrett , Sr, was hired by Respondent on
November 14, 1968 , and worked as a mixer operator
until his discharge on July 15, 1969 He was the most
active union protagonist prior to the election and subse-
quently was selected as a union committeeman Respond-
ent acknowledges that it knew of his leading role in
the Union at the time of his discharge
Whether Respondent , on July 15, discriminated against
Barrett by requiring him to adhere more strictly to
shop policy in the performance of his duties than was
required of other employees doing similar work and
by discharging him for threatening to report the alleged
discrimination to the Union , as the General Counsel
contends , or whether , as Respondent contends , it treated
Barrett no differently than the other employees and
discharged him for threatening bodily harm to Plant
Manager Durst , turns on issues of credibility I have
no doubt that the version of Durst , rather than that
of Barrett, regarding the events precipitating Barrett's
discharge is the more accurate
The mixer operation upon which Barrett worked was
a two-man operation , with some free time afforded
the operators between the running of the batches through
the mixing machine Foreman Curtis was the immediate
supervisor over the mixer operations but on July 15,
he was filling in for the quality control man, who was
on vacation , and was not physically in the area of
the mixing machines Shortly after 4 p in on that day
Plant Manager Durst walked through the area and
observed that Barrett was not at his work station and
that the floorman , Malone , instead, was assisting Bar-
rett ' s partner , Harbison, in operating the mixer Durst,
after asking Harbison whether that was the normal way
in which the machine was operated , went looking for
Barrett but could not find him When Barrett did return
to his work station, Durst asked where he had been
247
and Barrett replied that he had been to the newest
building about 200 feet away Durst told him that Floor-
man Malone should not have to help operate the mixer,
that it was a two-man operation and that thereafter
he wanted the man who sets up the batch to help
the man on the mixing machine while the batch is
being run and did not want Barrett to be off visiting
Barrett denied that he had been visiting
After Durst left , Barrett talked to the men on another
mixer and ascertained from them that Durst had given
them no instructions regarding the manner in which
the mixer operation should be handled He decided
that he had been singled out for special treatment and
sent word to Durst that he wanted to talk to Durst
When Durst arrived , Barrett was waiting for him
near the water fountain , which is 8 or 10 feet from
the outside door to the entrance hall which goes into
the offices Barrett accused Durst of picking on him
by singling him out to tell him how to run the mixer
operation without giving the same instructions to the
other operators Durst denied that he was picking on
Barrett and stated that Barrett would have to perform
his duties in the manner in which Durst had prescribed
Barrett replied that he would not perform his work
in that manner because the other men were not given
similar instructions Durst, as he turned to leave , stated
that Barrett would have to do as he was instructed
to do or punch out and go home Barrett was very
angry and his voice became increasingly louder as he
told Durst that he would not follow instructions and
would not punch out As Durst opened the door to
the entrance hallway, Barrett told Durst, "I'd like to
get you outside for 5 minutes and beat your brains
out "2 Durst asked if that was a threat and Barrett
replied , No That 's a promise But it doesn't make
any difference You don ' t have any witnesses "3
About a half hour later, Durst , after having consulted
Respondent ' s vice president , Pernush , and its counsel,
prepared a discharge notice for Barrett and presented
it to him in the presence of six other persons whom
Durst had asked to accompany him The discharge notice
was from Vice President Pernush and stated that Barrett
was being discharged because of his "threat of bodily
harm" to Plant Manager Durst
On the basis of the above recited facts and the entire
record, I have no doubt that Barrett was, indeed, dis
2 Barrett is about 6 feet 6 inches tall and weighs about 255 pounds
Durst is shorter and weighs about 170 pounds
9 Except as to the threat described above there is no substantial
dispute as to what took place on July 15 Barrett s version is that
after Durst told him that he would have to follow instructions or
punch out he replied that he would not punch out that Durst stated
We II see about that that as Durst started opening the door Barrett
said I in going to see my union man about this that Durst then
asked if that was a threat and that Barrett replied No That s a
promise I have credited Durst s testimony supported in substantial
respects by the testimony of Gene B Tassie who was then working
for Respondent as a chemist but at the time of the hearing was working
elsewhere Roger Rhupert a laboratory technician and Claude Isenstem
a chemist These three men who were h'svmg a conference in an
office near the door had their attention arrested for loud voices outside
the door and heard most of what was s ud after Durst opened the
door
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charged because he had threatened bodily harm to Durst.
Moreover, I find no basis for concluding that Durst
was motivated by any antiunion considerations in
instructing Barrett to stay on' the job and assist his
partner throughout the time it was necessary to operate
the mixing machine. Durst' on prior occasions had
requested Supervisor Curtis to tell the men to stay
on their jobs and Curtis had admonished employee Harbi-
son to do so about a month prior to the incident here
involved.
The complaint must accordingly be dismissed insofar
as it alleges any unlawful discrimination against Barrett.
D. Respondent's Explanation to Employee Strunks That
He Did Not Receive a Wage Increase Because of His
I Union Activities
Ralph Strunks, although paid on an hourly basis rather
than on a salary basis as were other laboratory employ-
ees, was classified by Respondent as a laboratory
employee. He attended three union meetings and sought
to vote in the election but his vote was challenged
because his name was not on the voting eligibility list.
The complaint was amended during the course of
the hearing to include an allegation that Respondent
had violated Section 8(a)(1) of the Act by telling Strunks
on or about October 3, 1969 (subsequent to the issuance
of the original complaint), that he had not received
a wage increase because of his activities on behalf
of the Union. The testimony leading to the amendment
was opened up during the course of cross-examination
of the witness as to whether he had any ill will toward
the Company which had caused him voluntarily to give
the National Labor Relations Board a statement regard-
ing what Attorney Treacy had said in preelection
speeches to the employees. It appeared from his testimo-
ny that he did feel that he had not been treated right
because of his failure to receive, a wage increase either
at the time the employees in the bargaining unit received
an increase or at the time the laboratory employees
received one about 2 months earlier.
Strunks had been asking for a wage increase about
once a week for about 6 months, he testified. Most
of the time his supervisor, Murray Tait, would tell
him he could not do Strunks any good Once, in response
to a question Strunks' addressed to Tait's superior, Joseph
Greene, as to why he was not given a raise, Greene
merely told him to keep his nose clean. On another
occasion Tait told him that no adjustment in his wages
could be made until after the completion of contract
negotiations with the Union on the subject of wages
so that Respondent would know what amount of money
would be given generally.
Finally, on October 3, a day or two after the union
members had voted to approve a contract containing
a provision for wage increases, Strunks, in the presence
of Foreman Greene, again asked his supervisor, Murray
Tait, why he had not been granted a wage ' increase
since everyone else had received one. With respect
to Tait's reply^on this occasion, Strunks s-credibly testified
as follows:
This is when he told me that it was because of
my union activities in those meetings and the thing
I had asked Mr. Treacy about if the Company
broke the faith that he sold us on and we voted
the Union out and the Company went against us
would he come back and represent us since he
had so much faith in them. and Murray [Tait]
told me that it was a very rude and ignorant thing
to have said to Mr. Treacy. And it made the Compa-
ny very mad that I made that statement. That's
the exact words he told me; it made the Company
very mad.
And if Murray Tait was here under oath he would
tell 'ou that he said that.
Neither Supervisor `Tait nor ' Foreman Greene, who
was present when Tait allegedly made the statements
above quoted, were called to'testify. I am convinced
that Tait did make the statements attributed to him
by Strunks. I credit Strunks, however, not only because
his testimony is undenied but also because he impressed
me as a sincere and honest person.
Strunks' remarks addressed to Attorney Treacy in
response to Treacy's appeals to the employees, in the
preelection speeches, to have faith in the Company
and vote against the Union were clearly union or concert-
ed activities protected under Section 7 of the Act.
Respondent's conduct was accordingly in violation of
Section 8(a)(l) of the Act.
CONCLUSIONS OF LAW
1. By telling an employee that he was being denied
a wage increase given to other employees because of
his activities in support of thet Union, Respondent inter-
fered with, restrained, and coerced its employees in
the exercise of their rights guaranteed in Section 7
of the Act, in violation of Section 8(a)(1').
2. The aforesaid unfair labor practice affects com-
merce within the meaning of Section 2(6) and (7) of
the Act.
3. A preponderance of the evidence does not support
the allegations of the complaint that Respondent violated
Section 8(a)(3) of the Act by discharging employee Bar-
rett or violated Section 8(a)(1) of the Act except in
the respect specifically found herein.
THE REMEDY
It having been found that Respondent engaged in
an unfair labor practice within the meaning of Section
8(a)(1) of the Act, my Recommended Order will require
that it, cease and desist therefrom and take affirmative
action normally required to remedy violations of the
nature found.
The question arises as to whether, in addition,
Respondent should be required, under the order, to
make employee Strunks whole for any wage increase
which may have been discriminatorily denied him
because of his union activities. I am not recommending
that remedy for the following reasons: In the first place,
the complaint does not allege that Strunks was in fact
OHIO SEALER AND CHEMICAL CORP.,
discriminatorily denied a wage increase because of his
union activities-conduct which would have been a viola-
tion of Section 8(a)(3) as well as Section 8(a)(1)-but
only that Strunks had been told that he was ;being
denied an increase for that reason, in violation of Section
8(a)(1). In the second place, Supervisor Tait made the
statement on or about October 3, only a day or two
after the union members had voted to ratify the contract
which their representatives had negotiated. The contract
was not signed,until October 10-only 3 days, before
the commencement of the hearing herein-and no evi-
dence was adduced as to when the wage increases
mentioned in the contract were to become effective.
Despite what Strunks' immediate` supervisor told him,
it is reasonable to expect, in view of the lack of any
evidence of a general disposition by Respondent to
engage in unfair' labor practices, that Respondent's top
management and counsel will now see that Strunks
does not suffer any financial loss because of his union
activities. Finally, my Recommended Order will be
sufficiently broad to preclude Respondent from continu-
ing to deny Strunks a wage increase for discriminatory
reasons, if it has in fact done so.
On the basis of the foregoing findings of fact and
conclusions of law and the entire record, there is issued,
pursuant to 10(c) of the Act, the following:
RECOMMENDED ORDER
Respondent, Ohio Sealer and Chemical Corporation,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a), Telling any employee that he is being denied a
wage increase because of his, -union activities or in
fact denying to any employee a wage increase for that
reason.
(b) In any like or related manner interfering with,
restraining , ' or coercing employees in the exercise of
their rights guaranteed-under Section 7 of the Act.
2. Take the following affirmative' action necessary
to effectuate the policies of the Act:
(a) Post at its plant in Dayton, Ohio, copies of the
attached notice marked "Appendix. "4 Copies of said
notice, on forms provided by the • Regional -Director
for Region 9, after being duly signed by Respondent's
authorized representative, shall be posted by it immedi-
ately 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
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,, recommendations, and Recommended Order
herein shall, as provided in Sec 102 48 of the Rules and Regulations,
249
by Respondent to insure that,said notices, are not altered,
defaced, or covered by any other material.
(b) Notify said Regional Director, in' writing, within
20 days from the receipt of this Decision, what steps
have been taken to comply herewith.5
Insofar as the complaint alleges violations of the
statute not specifically found herein, it is'hereby dis-
missed.
i
be adopted by the Board and become its findings; conclusions, and
order; and all objections thereto shall be deemed waived for all purposes
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 be
changed to read "Posted Pursuant to a'Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board
In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify the Regional
Director , in writing , within 10 days from the date of this Order what
steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT tell any:employee that he is being
denied a wage increase because of his union activi-
ties; nor will we, in fact, deny a wage increase
to any one for that reason.: •
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce our employees
in the exercise of their right to engage in union
.activities or other concerted activities for their
mutual aid and protection.
OHIO SEALER AND
CHEMICAL CORPORATION
Dated
'
By
(Employer)
(Representative ) , (Title)
This is an official notice and must not be defaced
by anyone '
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material. ' '
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's
Office, Room 2407, Federal Office Building, 550 Main
Street, Cincinnati, Ohio 45202, Telephone 513-684-3686.