Paceco, A Division of Fruehauf Corp.

National Labor Relations Board - Board Decisions

Feb 26, 1980

247 N.L.R.B. 1405 (N.L.R.B. 1980)

PACECO. A DIVISION OF FRUEHAUF CORPORATION
Paceco, a Division of Fruehauf Corporation and Sheet
Metal Workers' International Association, Local
Union No. 11. Cases 15-CA-5947, 15-CA-6110-4,
15-CA-6110-5, and 15-RC-5765
February 26, 1980
SUPPLEMENTAL DECISION AND ORDER
By CHAIRMAN FANNING AND MEMBERS
PENEI.LO AND TRUESDALE
On August 11, 1978, the National Labor Relations
Board issued a Decision, Order, and Direction of
Third Election in the above-entitled proceeding.'
Therein, the Board, in agreement with the Adminis-
trative Law Judge, dismissed numerous allegations of
conduct violative of Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended, involving
primarily warnings, suspensions, and layoffs relating
to two employees, Oscar Moran and Joel Childress.
Contrary to the Administrative Law Judge, however,
the Board found that Respondent did violate Section
8(a)(l) of the Act by engaging in three acts of
interrogation; two separate interrogations of employee
Ralph Taylor by Supervisors Leonard Holmes and
Willard Ustruck, and an interrogation of Joel Chil-
dress by Supervisor Rip Bowling. Further, the Board
found that the Administrative Law Judge erred in
failing to find that Respondent's no-solicitation rules
prohibited union activity and were overly broad, and
therefore also violated Section 8(a)(1) of the Act.2 In
its Order the Board, therefore, required Respondent to
"rescind its rules which provide that employees may
not solicit in its plant during company time." Finally,
in view of the Board's reversal of the Administrative
Law Judge on the above matters, it also found that the
unlawful conduct of Respondent interfered with the
employees' free choice in the election and therefore
order that the second election held in Case 15-RC-
5765 be set aside and a third election be conducted.'
Thereafter, Respondent filed a petition for review of
the Board Order of August 11, 1978, with the United
States Court of Appeals for the Fifth Circuit, and the
Board filed a cross-petition seeking enforcement of its
Order. On August 22, 1979, the court issued its
'237 NLRB 399.
Respondent's work rules regarding solicitations read as follows:
I'lant Rule 17: Conduct yourself properly while on company time. Do
not engage in unnecessary conversation, loitering, selling in any form,
circulation of petitions. balloting, distribution of handbills or literature or
solicitation of contributions without prior approval of your supervisor.
The general rule entitled "Solicitations" from the employee information
hand book reads:
Frequent fund-raising solicitations are distasteful to all concerned.
Accordingly, the only solicitation permitted in this plant is the United
Fund.
In the representation case, the first election had been set aside by
247 NLRB No. 166
opinion4 in which it vacated the Board's Order
regarding the interrogations in view of the Board's
failure to set forth the factors upon which it relied in
determining that the questioning was coercive. While
the court agreed with the legal standard utilized by the
Board, i.e., that "[t]he test is whether the employer
engaged in conduct which, it may reasonably be said,
tends to interfere with the free exercise of employee
rights under the Act," it concluded that "we find the
mere recital of that general standard without more too
cryptic to permit us to determine whether there is
substantial evidence to support the Board's conclu-
sions." The court, then, set out those factors which the
Board and the courts have considered in the past in
making such determinations: (1) the background of
employer hostility, if any; (2) the nature of the
information sought; (3) the identity of the questioner;
(4) the place and method of interrogation; (5) the
truthfulness of the reply; (6) the existence of a valid
purpose of the questioning; (7) whether such valid
purpose was communicated to the employee; and (8)
whether assurances against reprisals were given.' In
the court's view, the Board's failure here to indicate
whether or not these criteria were applied put it in the
position of being unable to review the Board's Deci-
sion. Thus, while conceding that the Board's analysis
of these factors may be brief, the court remanded the
case "for more specific findings and conclusions in
accordance with prior authority" and retained juris-
diction within the same panel if Respondent should
seek review of the decision on remand.
With respect to Respondent's no-solicitation rules,
the court affirmed the Board's conclusion that the
rules were overly broad. The court, however, dis-
agreed with the wording of the Board's Order set out
above, as in its view the "order could be read to deny
Paceco the power to regulate even non-union solicita-
tion, or to restrict union solicitation to non-working
company time." In addition,. the court stated that the
Board's counsel indicated that the Board "never
intended to require any more than the elimination of
unlawful restrictions on union solicitation during non-
working company time." The court therefore remand-
ed the Order to the Board to appropriately modify its
language to adhere to this limited intention.
stipulation of the parties. The second election, held in the same unit of
production. maintenance, and warehouse employees, including leadermen at
the employer's Gulfport. Mississippi. facility. resulted in a majority of the
employees casting ballots against the participating unions. The Union then
filed objections to the second election, which, as stated above in the text, were
found by the Board to be meritorious.
' Paceco. a Division of FruehaufCorporation v. N.LR.B.. 601 F.2d 180.
' As stated by the court in its decision herein, the first five factors above
were originally set out ill Bonie Bourne. an Individual d/b/a Bourn, Co. v.
N.L.R.R.. 332 F 2d 47, 48 (2d Cir. 1964). Thereafter. in N.L.R.B. v Cameo.
Inc.. 340 F.2d 803, 804 (5th Cir. 1965), cert. denied 382 U.S. 926, the final
three criteria were added.
1405
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, the Board accepted the remand and by
letter dated October 25, 1979, invited the parties to
submit statements of position with respect to the issues
raised by the court's remand. Both the General
Counsel and Respondent filed such statements.
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.
Respondent, a Michigan corporation, maintains a
facility in Gulfport, Mississippi, where it is engaged in
the manufacture of heavy steel. In August 1975, the
Sheet Metal Workers' International Association (here-
inafter the Union) began an organizational campaign
at this plant, which resulted in a rerun election held by
the Board on February 13, 1976." on February 12,
1976, the day before the election, Supervisor Rip
Bowling approached employee Joel Childress at his
workplace and asked him how he was going to vote in
the election, "Company or Union?" Bowling then
proceeded to state that "it doesn't really matter to
me. .... I got people in my shop right now under me
that's going Union.... I just want to know out of
curiosity. .... it doesn't matter to me if you tell me or
not because I won't hold it against you." Childress
replied that "it's really none of your business. It's a
secret ballot and I don't think I should tell you or
anyone else [how] I'm going to vote." At this point the
conversation turned to other matters. Later in the
discussion Bowling expressed the opinion that unions
create chaos between management and employees and
then asked Childress if he thought the Gulfport
employees really needed a union. Childress responded
that, "Maybe [they don't] need this particular Sheet
Metal Union but [they do] need a union."
The next day, the day of the election, employee
Ralph Taylor, formerly active in the antiunion cam-
paign committee, arrived at the plant wearing a
prounion button for the first time. One of his
supervisors, Willard Ustruck, approached Taylor at
work, before he had voted, and asked him when he
had decided to wear the union button. Taylor replied
that he had decided to do so several days earlier.
Ustruck then questioned Taylor as to what had caused
his change of heart regarding the Union. Taylor
answered that "there were several reasons." Ustruck
then ended the conversation by suggesting to Taylor
that he should think seriously about his decision and
Taylor said that he had done so. Thereafter, on that
same day, Taylor was called into the office of his
supervisor, Leonard Holmes. Holmes then asked him
why he had changed his mind concerning the Union
considering his previous active position against that
organization. Taylor responded that he felt the compa-
ny president had lied to the employees about wages
and contract terms at another plant. Subsequent to
this, pursuant to a request by Taylor, he met with the
company president for a 45-minute discussion.
In accordance with the court's remand and the
Board's acceptance of such, thereby making the
court's views the law of the case, a Bourne and Camco
type of inquiry' evaluating the aforementioned inci-
dents in light of the factors summarized above is now
necessary.
1. The questioning of employee Childress by Super-
visor Bowling, a low-level management person, oc-
curred at his work station the day before the election,
a critical time for such an improper conversation to
take place. During this preelection period Respondent
had maintained unlawful no-solicitation rules, but
there is no evidence of a pattern of employer hostility
and discriminatory behavior against the Union. Bowl-
ing's questions to Childress did, however, delve into
his attitudes about the Union, and the line of inquiry
was persistently pursued even though Childress at-
tempted to evade answering by telling Bowling it was
no concern of his (Bowling's) how he (childress) was
going to vote. While later in this conversation Chil-
dress did respond to further questioning by Bowling
by reasserting his prounion stance, he did feel it
necessary to equivocate by refusing to restate his
support for the particular union on the ballot in the
election the following day. Further, in view of the
obvious hesitation on Childress' part to divulge his
opinion in this area, Bowling's statements minimizing
the importance of his queries and assuring no reprisals
were insufficient to insulate the coerciveness of the
interrogation. Moreover, there is no evidence that
there existed a valid purpose for obtaining the infor-
mation sought from Childress or that any valid
purpose was communicated to him. Thus, based on
our reconsideration of the facts herein within the
framework of the criteria set out by the court, we find
that the interrogation of Childress by Supervisor
Bowling was coercive and thus we affirm our original
finding that it was in violation of Section 8(a)(1) of the
Act.
2. The questioning of employee Ralph Taylor also
occurred at a critical time, on the day of the election,
just before he voted. In Taylor's situation there were
two consecutive interrogations of increasing formality,
the first taking place in the workplace and the second
following a summons to Supervisor Holmes' office.
This sequence of events could hardly constitute an
innocous and casual exchange of opinions. Instead, it
indicates a persistent course of questioning undertaken
with the object of persuading Taylor to support the
Company's position. In both sessions, Taylor was
See fn 3. upra. fior chronology of rcprecntation proceding.
14()6
' Se fin. 5. upru.
PACECO. A DIVISION OF FRUEHAUF CORPORATIO()N
asked why he had switched his loyalties from the
Company to the Union, and at least in the first
exchange with Supervior Ustruck he hedged his
answer, replying only that he had "several reasons"
for his action. This response provoked a reply which
could appear to be a warning of possible reprisals to
Taylor, in that Ustruck told Taylor that serious
thought should be given to his choice in this matter.
Further, while, as in the situation with Childress, the
supervisors involved herein were not high level man-
agement officials, there is also no evidence that a valid
purpose existed for the questioning or that any such
purpose was conveyed to Taylor. Thus, we also find
that in the circumstances here the interrogations of
Taylor by Supervisors Ustruck and Holmes were
coercive and in violation of Section 8(a)(1) of the Act.
In concluding that all of the above interrogations
are violative of the Act, we are aware of the fact that
not all of the factors cited by the court favor the
finding of coercion herein. It is, however, well settled
that such unanimity is not necessary to support a
conclusion that coercion has occurred and, in fact,
such a finding can be made even if all of the factors
favor Respondent, which is hardly the situation
herein.' We therefore adhere to our holding that the
three interrogations involved in the instant case
violated Section 8(a)(1) of the Act.
3. In addition to the above analysis required by the
court's remand, the court also directed the Board to
modify the language in its Order regarding the overly
broad no-solicitation rules. The following language
will therefore be substituted in our Order to reflect the
court's directive.
"[The Company shall] [t]ake the following affirma-
tive action necessary to effectuate the policies of the
Act:
"(a) Rescind its rules which unlawfully restrict
union solicitation during employees' nonworking
time."
Accordingly, on the basis of the discussion above,
including the parties' statements of position, and the
entire record in the case, we conclude that Respondent
violated Section 8(a)(1) of the Act through its interro-
gations of employees Joel Childress and Ralph Taylor.
We also reaffirm the findings, and conclusions provid-
ed in the Board's original Decision and Order, with
the change that the language in the original Order
regarding Respondent's no-soliciation rules be modi-
fied as set out below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Paceco, a Division of Fruehauf Corporation, Gulfport,
Mississippi, its officers, agents, successors, and as-
signs, shall take the action set forth in the original
Decision and Order of August 11, 1978, as modified
herein:
I. Substitute the following for paragraph 2(a):
'(a) Rescind its rules which unlawfully restrict
union solicitation during employees' nonworking
time."
2. Substitute the attached notice for that notice
ordered to be posted in our original Decision and
Order.
. . R. B . ,Camcro. itc. ..upr. 1 ( 04,
APPENDIX
No-ricIi To EMPIOYi:s
POSTII) HY ORI)IR 01 THE:
NAIONAI LABOR RI.AIIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity
to present their evidence, the National Labor Rela-
tions Board has found that we violated the law and
has ordered us to post this notice and we intend to
abide by the following:
Section 7 of the National Labor Relations Act
gives all employees these rights:
To organize themselves
To form, join, or help unions
To act together for collective bargaining or
other mutual aid or protection
To bargain collectively through representa-
tives of their own choosing
To refuse to do any or all of these things.
WE Wl. NOT coercively interrogate our
employees concerning their union sympathies.
WE Wil.l NOT maintain and WE: wii.. rescind
our rules which unlawfully restrict union solicita-
tion during employees' nonworking time.
WE WIl.I. NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights under Section 7 of
the National Labor Relations Act.
All our employees are free to become and remain,
or to refuse from becoming or remaining, a member of
Sheet Metal Workers' International Association, Lo-
cal Union No., or any other union.
PACECO, A DIVISION OF FRUEHAUF
CORPORATION
1407