Okidata Corp.

National Labor Relations Board - Board Decisions

Sep 8, 1975

220 N.L.R.B. 144 (N.L.R.B. 1975)

144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Okidata Corporation and United Electrical, Radio &
Machine Workers of America Local 1421. Cases
31-CA-4619 and 31-RC-2806
DECISION
STATEMENT OF THE CASE
September 8, 1975
DECISION, ORDER AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN MURPHY AND MEMBERS FANNING AND
PENELLO
On May 23, 1975, Administrative Law Judge Mar-
tin S. Bennett issued the attached Decision in this
proceeding. Thereafter, counsel for General Counsel
filed exceptions and a supporting brief, and Respon-
dent filed a response in opposition to General
Counsel's exceptions.
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 briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
As Petitioner has not received a majority of the
valid votes cast in the election conducted in Case
31-RC-2806, we shall certify the results of the elec-
tion.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
ballots has not been cast for United Electrical, Radio
& Machine Workers of America Local 1421, and that
said labor organization is not the exclusive represen-
tative of all the employees, in the unit herein in-
volved, within the meaning of Section 9(a) of the Na-
tional Labor Relations Act, as amended.
' The counsel for General Counsel has excepted to certain credibility
findings made by the Administrative Law Judge . It is the Board's estab-
lished policy not to overrule an Administrative Law Judge's resolutions with
respect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect . Standard Dry Wall
Products, Inc., 91 NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We
have carefully examined the record and find no basis for reversing his find-
ings.
MARTIN S . BENNETT , Administrative Law Judge: This
consolidated matter was heard at Santa Barbara, Califor-
nia, on February 18, 1975. The unfair labor practice com-
plaint, issued November 22 and based on charges filed July
29 and November 7, 1974, by United Electrical, Radio &
Machine Workers of America Local 1421, herein the
Union, alleges that Respondent, Okidata Corporation, has
engaged in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act. Briefs have been duly
submitted by the parties.
Consolidated with the foregoing were objections to an
election conducted in a unit of production and mainte-
nance employees of Respondent at Goleta, California, on
July 25, 1974, pursuant to a petition filed June 3 by the
Union in Case 31-RC-2806; the Union lost this election
by a vote of eight to nine. The conduct attacked in the
representation case is a captive meeting and interrogation
of employees.
Upon the entire record in the case, and from my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Okidata Corporation, a New Jersey corporation with its
principal place of business at Moorestown, New Jersey,
operates a plant at Goleta, California, where it manufac-
tures electronic components . Respondent annually sells
and ships products valued in excess of $50,000 from this
plant directly to customers located outside the State of Cal-
ifornia. I find that its operations affect commerce within
the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
United Electrical, Radio & Machine Workers of Ameri-
ca Local 1421 is a labor organization within the meaning of
Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction; The Issues
The unfair labor practice complaint, as amended at the
hearing, alleges that Respondent transferred Michael Gal-
loway from the position of chassis assembler to shipping
clerk because of his union activities; it granted employee
Diannha Oakes increased wage benefits because it felt she
would vote against the Union; that General Manager Bill
Henrikson granted a cost-of-living increase to employees
to persuade them to refrain from supporting the Union;
Henrikson interrogated employees concerning their union
220 NLRB No. 28
OKIDATA CORPORATION
sentiments ; Henrikson told employees that job applicants
would be screened concerning their union sentiments; Pro-
duction Manager Lloyd Francis questioned employees
concerning their union sentiments; Francis conditioned the
receipt of wage increases on the union sentiments of em-
ployees; and President David Nettleton threatened em-
ployees with reprisals if they supported the Union.
B. Sequence of Events
In an organizational context, the complaint of the Gen-
eral Counsel seeks to make much out of a relatively mild
and lawful reaction by Respondent which, in essence, falls
within the protective cloak of Section 8(c) of the Act or
reflects employer action not falling afoul of Section 8(a)(3)
and (1) thereof.
The Union commenced an organizational campaign
among Respondent's previously unorganized employees in
May 1974, and a representation petition was filed in Case
31-RC-2806 on June 3, 1974, this leading to a Board elec-
tion on July 25 wherein, of 20 eligibles, 18 ballots were cast
with 8 in favor of the Union, 9 opposed, and I challenged.
Objections to the election were filed, these ultimately re-
duced to an allegation that Respondent "threatened and
scared workers by captive meetings and individual interro-
gations."
On or about Thursday, May 9, Lloyd Francis, then
Respondent's production manager, received an employee
petition for a cost-of-living wage increase . General Manag-
er William Henrikson returned to the plant on the follow-
ing day from an out-of-town trip. They conferred and de-
cided not to grant this. On Monday, May 13, Francis
advised a group of employees on the production floor that
it would not grant it, but would consider the requests on an
individual basis. There was an immediate adverse reaction
on the part of the work force, and various members thereof
promptly advised Francis of their displeasure because of
the high cost of living in the Santa Barbara area.
Henrikson and Francis conferred at length on this prob-
lem; according to both, they were not aware of any union
activities at the time, and Henrikson testified that he first
heard of organizational activities by the Union on May 20.
On the evening of May 14, they formulated a plan to raise
the minimum wage and also to grant employees a cost-of-
living wage increase . While it would seem reasonable that
an employer generally learns very early in the game of
union organizational activities, this does not constitute evi-
dence that Respondent did so.
The General Counsel next attacks the alleged unlawful
interrogation of Engineering Aide Pat Kotz. Kotz and
Henrikson were friendly and it was common for Kotz to
enter the office of Henrikson and talk with him. According
to Kotz, he did so on or about May 18, ascertained that
Henrikson had some time to spare, and the following talk
ensued . Kotz initially testified that Henrikson asked him
how the employees felt about "the Union," why was one
needed, and how a labor organization could help the em-
ployees. Kotz responded that if working conditions were
improved there would be no need for a labor organization.
Kotz later testified that this was a general philosophic
discussion about labor organizations, what they might do
145
for the employees, and "maybe my personal feelings to-
wards unions in general." According to Kotz, no specific
labor organization was mentioned and he was not queried
as to which employees were for or against union represen-
tation. Henrikson allegedly did ask in this conversation
how Kotz "personally felt about unions." According to
Henrikson, he learned on or about May 20 of the organiza-
tional activities; he promptly telephoned Respondent's
counsel in Philadelphia, Pennsylvania, for instructions and
received, shortly thereafter, a letter as to what Respondent
could and could not do in this area.
Employee Diannha Oakes, received a merit pay increase
of 10 cents per hour in May 1974, because Respondent
allegedly opined that she would vote against the Union.
This was less than the 15- to 25-cent-per-hour merit in-
crease normally granted to employees. According to Re-
spondent, this lower increase reflected her poor work atti-
tude and it was discussed with her on May 2. Oakes
promptly complained to Production Manager Lloyd Fran-
cis Who assured her that, if her attitude improved, she
would be reevaluated. Late in June, Oakes' work perfor-
mance and attitude had improved and she was awarded
the remainder of the merit increase not previously given
her. Thus, on or about July 1, Oakes was given an addition-
al 10-cent-per-hour increase.
The General Counsel also contends that Oakes was un-
lawfully interrogated by Henrikson. The record discloses
that Oakes, from time to time, appeared at the office of
Henrikson and volunteered information about the union
activities of her coworkers. Henrikson uncontrovertedly
testified, and I so find, that he never requested that she
disclose this information because he understood that such
a request would constitute an unfair labor practice.
Tied in with the foregoing is the fact that Supervisor
Delores Irwin, on one occasion, interrogated three employ-
ees concerning their union sympathies. Henrikson learned
thereof; reprimanded Irwin; convened a meeting of em-
ployees, according to Oakes; advised them that this was a
mistake; and stated that the incident would not be repeat-
ed. As is readily apparent, he specifically repudiated this
conduct on the part of Irwin. Oakes conceded herein that
shortly after this incident she volunteered to Henrikson
that she was "pro-company" and would ascertain who was
for or against the Union. Henrikson, according to Oakes,
and I so find, flatly directed her not to do so.
Shortly before the election, Respondent's president, Da-
vid Nettleton, addressed his employees in three separate
groups of six to eight and made the same speech to each;
all of these meetings were attended by Henrikson. He and
Nettleton were concerned over the fact that employees
were milling about, not performing their respective duties,
and that production had dropped accordingly. In response
to a question, Nettleton stated the premise that production
had dropped and that productivity was the key to advance-
ment with Respondent. Here as well, I see little to support
to the position of the General Counsel.
About 1 week before the election, employee Michael
Galloway, according to Francis, approached Francis and
asked if they could discuss a wage increase. Francis re-
sponded that an increase was not scheduled at the time and
that Respondent might run afoul of an unfair labor prac-
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tice charge if one were given , which might well be the case.
Indeed , a letter from Respondent's counsel in Philadelphia,
Pennsylvania , advised Francis that no wage increases or
other inducements should be provided or offered unless
they were "part of an established pattern known to the
employees."
Francis did not interview Galloway concerning his
union views or whether he wanted a union in the shop. He
denied ever suggesting to Galloway that he quit the employ
of Respondent . There is evidence that , shortly before the
election, Galloway asked Francis if he should quit the em-
ploy of Respondent and Francis replied only that Respon-
dent would work with Galloway on any problems he had.
According to the Charging Party, Francis unsuccessfully
tried occasionally to discuss the Union with Galloway. The
record is devoid of any evidence that this took place. In-
deed, about 2 weeks before the election , in response to a
complaint by Galloway about a missing part, Francis face-
tiously suggested that a "shop steward" might assist Gallo-
way; this is the only evidence in this area.
The General Counsel contends that on or about August
1, 1974, Henrikson summoned Galloway to his office. Ac-
cording to Henrikson, and I so find , Galloway had claimed
that he was a leadman and should be paid on that scale.
Reference was made to an employer-sponsored "pizza par-
ty," after the loss of the election by the Union , wherein
Respondent 's representatives told the assemblage that the
pizza party was in appreciation of those employees who
voted against union representation . Henrikson also testi-
fied , and I find , that he advised the employees during the
pizza party that there would be no reprisals as a result of
their votes in the election . Henrikson flatly contradicted
Galloway, and I so find, denying that he told Galloway
that Respondent would screen job applicants concerning
their union sentiments.
The General Counsel next attacks the transfer of Gallo-
way from the position of chassis assembler to that of ship-
ping clerk. The person enjoying the latter position had quit
and, in the judgment of Francis, Galloway was the most
qualified person for the post which carried the same rate of
pay. According to Francis, he intended to retain Galloway
in that position only until a suitable and qualified replace-
ment was found . The shipping clerk position, and this is
not in issue, makes a cursory inspection of the produced
unit and then, absent evidence of product deficiency, pack-
ages the unit for shipment to the customer . Simply stated,
according to Respondent and I agree , the position of ship-
ping clerk entails a high degree of responsibility.
Last relied on by the General Counsel is certain conduct
attributed to Randall Jewell, a production supervisor. He
was instructed, when hired , that a representation election
had been decided in favor of Respondent by a narrow mar-
gin, was furnished with the letter from Respondent 's attor-
ney described above, and was told that he would be held
responsible for what he said, particularly to known union
adherents and specifically including Galloway.
Jewell testified , and I agree , that he flatly refused there-
after to discuss the Union with Galloway. He also denied
telling Galloway that Galloway was talking too much
about the Union, that he was unpopular with Respondent,
and that he would not be around 6 months thereafter. It is
interesting to note, as Respondent points out, that in No-
vember or December 1974, Galloway asked Jewell to be
transferred to the position of inspector, in mid-December
the request was granted, and Galloway then rejected the
transfer.
The record further discloses that, by January 1975, the
performance of Galloway as a shipping clerk had deterio-
rated to a point where , because of attitude or otherwise, his
replacement was a matter of the first urgency. He was duly
replaced by one considered the most qualified applicant
for the post ; moreover , his replacement was highly recom-
mended by a supervisory employee of Respondent.
In view of the foregoing considerations, I find that the
evidence does not preponderate in favor of the General
Counsel and recommend that the complaint be dismissed
in its entirety.
CONCLUSIONS OF LAW
1. Okidata Corporation is an employer whose opera-
tions affect commerce within the meaning of Section 2(6)
and (7) of the Act.
2. United Electrical, Radio & Machine Workers of
America (UE) Local 1421, is a labor organization within
the meaning of Section 2(5) of the Act.
3. Respondent has not engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER'
The complaint is dismissed in its entirety.
I FURTHER RECOMMEND that the objections to the election
in Case 31-RC-2806 be overruled and that the results
thereof be duly certified.
1 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes