Penny Supply, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 324 (N.L.R.B. 1989)

324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Pennsy Supply , Inc. and Chauffeurs , Teamsters and
Helpers, Local Union No. 776, International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , AFL-CIO.'
Case 4-CA-16899
June 15, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On June 23, 1988, Administrative Law Judge
Frank H. Itkin issued the attached decision. The
General Counsel filed exceptions and a supporting
brief. The Respondent filed cross-exceptions and an
answering brief to the General Counsel 's excep-
tions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions2 only to the extent consistent with this
Decision and Order.
The judge found that Respondent did not unlaw-
fully interrogate employee James Westbrook and
did not unlawfully make a promise of benefits to
employees in violation of Section 8(a)(1) of the
Act. We disagree.
In September 1987,2 the Union began an orga-
nizing campaign among the Respondent 's drivers,
mechanics , and operators . The first union meeting
was held on September 14, and a second meeting
was held on September 21. A representation peti-
tion was filed on September 15, and an election
was held on January 6, 1988. The Union lost the
election with 58 votes cast for and 115 votes cast
against the Union. The results of the election were
certified on January 14, 1988. There were no pend-
ing challenges or objections in the representation
matter at the time of the hearing in this case.
The Alleged Interrogation
James Westbrook has been employed by the Re-
spondent for 12 years . He attended his first union
meeting on September 21 and signed a union mem-
1 On November 1, 1987, the Teamsters International Union was read-
mitted to the AFL-CIO. Accordingly, the caption has been amended to
reflect that change
z The Respondent has excepted to some of the judge 's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings
a All dates are in 1987 unless otherwise noted.
bership card at that time . The following day, Sep-
tember 22, the Respondent held a previously
scheduled meeting with the mechanics in the paint
and tire shops. The Respondent's operations man-
ager , Don Eshleman , conducted the meeting and
asked the employees what problems they had with
the Company. There were approximately 22 em-
ployees present, and several of them spoke up at
the meeting . One employee , Ken Hammer , stated
during the course of the meeting that "Kevin and
Jr. didn't start this Union thing." Westbrook testi-
fied that "Kevin" referred to employee Kevin
Taylor, and that "Jr." is his, Westbrook's, nick-
name . Westbrook could not recall how this subject
arose . Eshleman did not respond to Hammer's
comment in the meeting.
As Westbrook left the meeting, he was called
back by Eshleman, who asked him if he had any-
thing to do with the Union. Westbrook responded:
"Why are you asking me?" Eshleman explained:
"Because your name and Kevin's name was men-
tioned at the meeting." Westbrook then said: "Why
didn't you ask Kevin?" Eshleman replied that he
felt that he could trust Westbrook to give an
honest answer because he knew him better than he
knew Kevin. Westbrook responded: "I went to see
what the man had to say . . . That's my right
under the law." Eshleman then asked "how wide-
spread the problem was, or how widespread it
was." Westbrook replied that he did not know.
This conversation took place in the hallway just
outside the room where the meeting had been held.
The judge, relying on Rossmore House4 and
Sunnyvale Medical Clinic,5 found that under all the
circumstances in the present case , Eshleman's iso-
lated act of interrogation of Westbrook did not rea-
sonably tend to restrain, coerce, or interfere with
the employee's Section 7 rights. Specifically, he
found that there was no history of employer hostil-
ity towards or discrimination against union sup-
porters; the nature of the brief interrogation was
"general and nonthreatening"; it did not appear
that the Respondent was seeking to take adverse
action against employees ; and the conversation was
"casual and amicable" and took place in a hallway.
Based on these findings, the judge concluded that
the circumstances surrounding this one act of inter-
rogation in a unit of some 185 employees early on
in the union organizing campaign is devoid of the
elements of coercion necessary for finding a viola-
tion.
Unlike the judge, we find that the conversation
between Westbrook and Eshleman did tend to
4 269 NLRB 1176 (1984).
3 277 NLRB 1217 (1985).
295 NLRB No. 37
PENNSY SUPPLY 325
interfere with, restrain, or coerce Westbrook in the
exercise of his Section 7 rights. Westbrook was not
an open and vocal union supporter. The conversa-
tion between Eshleman and Westbrook, although
brief and held in a public area, was initiated by
Eshleman, a high-ranking company official, who
called Westbrook back for the questioning after
Westbrook had left the meeting. Contrary to the
judge's characterization of the conversation, we
find that Westbrook's understandably defensive re-
sponse to Eshleman's initial question indicates that
the exchange was not "casual and amicable," but
was instead an unwelcome intrusion by Eshleman
into Westbrook's union sentiments and activity.
Further, we find that Eshleman went beyond a
casual inquiry of how Westbrook's name happened
to come up at the meeting by asking Westbrook
"how widespread it was."e In these circumstances,
we find that the Respondent unlawfully interrogat-
ed Westbrook and thus violated Section 8(a)(1) of
the Act.7
indefinite time look into it. Rather, his statements
communicated to the assembled drivers that an im-
proved health plan and a retirement plan were
under active study or consideration by the owner.
Radio Broadcasting Co., 277 NLRB 1112 (1985),
relied on by the judge, is thus distinguishable.8
Although Eshleman told the drivers, "I can't say
no more because I wasn't supposed to say that,"
and that "the company would not make any prom-
ises," these statements are insufficient to rebut the
implicit promise of improved benefits. See Raley's
Inc., 236 NLRB 971 at 972 (1978). Moreover, Esh-
leman 's statement to the drivers that he was not
supposed to say what he did suggests that the
owner's consideration of the plans had reached
such a sensitive stage that secrecy was important.
Accordingly, we find that Eshleman' s statements
conveyed an implied promise to better working
conditions in violation of Section 8(a)(1) of the
Act.
The Alleged Promise of Benefits
On October 19, 4 days after the election petition
was filed, Eshleman held a 2-hour meeting with 15
to 20 assembled drivers at which complaints and
questions about the Respondent's benefits, includ-
ing its recently instituted health insurance plan,
were discussed. Eshleman was aware that the elec-
tion petition had been filed and, in fact, told the
drivers at this meeting that it had been filed.
During the meeting, Eshleman told the drivers that
Mumma, the owner, was looking into improving
the health plan and was checking into a pension
plan. At the time the Respondent did not have a
pension plan.
Eshleman's statements about the health and re-
tirement plans were not general and vague. They
were not mere responses to employee suggestions
that it was a good idea or that he would at some
' The Respondent asserted in its answering brief that although the
judge credited Westbrook's testimony that Eshleman had inquired as to
"how widespread it was ," nowhere in his decision did the judge clarify
whether "it" referred to the problems that were discussed by the employ-
ees at the meeting or to the Union . While it is true that Westbrook's testi-
mony is somewhat unclear on this matter , the fact remains that in the
context of this conversation an employee could reasonably fear that the
manager viewed the intrusion of a union as a "problem" and was trying
to learn the extent of union sentiment . In the meeting that had occurred
shortly before, an employee had blurted out a reference to "this Union
thing," and Eshleman 's question about the extent of "the problem" came
on the heels of his question about Westbrook 's own connection with the
Union Under the reasonable tendency test applicable to alleged viola-
tions of Sec . 8(a)(1), the question about "the problem" can clearly be
viewed as contributing to the coerciveness of the interrogation . See, e.g.,
Waco, Inc, 273 NLRB 746, 748 (1984).
7 Member Cracraft agrees with her colleagues that under all the cir-
cumstances Eshleman's interrogation of Westbrook would reasonably
tend to restrain , coerce, or interfere with Westbrook in the exercise of his
rights guaranteed by the Act. In so finding, however , she does not rely
on Sunnyvale Medical Clinic , supra.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law
3.
"3. By coercively interrogating employee James
Westbrook on September 22, 1987, and by unlaw-
fully promising benefits to its employees, the Re-
spondent violated Section 8(a)(1) of the Act."
ORDER
The National Labor Relations Board orders that
the Respondent, Pennsy Supply, Inc., Harrisburg,
Pennsylvania, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Coercively interrogating any employee about
union support or union activities.
(b) Unlawfully promising benefits to its employ-
ees.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
8In finding Radio Broadcasting distinguishable , Chairman Stephens
relies in particular on the testimony of employee Richard Trammel,
whom the judge credited , indicating that Eshleman 's statements about
Mumma's looking into an improved medical benefit plan and a pension
plan were not spontaneous responses to an employee question raised at
the meeting in question Rather , Eshleman raised those subjects himself,
stating that he was bringing them up in response to concerns he had pre-
viously heard the employees discussing and noting that the filing of the
Union's petition had been an impetus to Mumma 's consideration of these
improvements, since she had previously thought "that everything was
going fine."
326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(a) Post at the Respondent's place of business, lo-
cated in Harrisburg, Pennsylvania, copies of the at-
tached notice marked "Appendix."9 Copies of the
notice, on forms provided by the Regional Direc-
tor for Region 4, after being signed by the Re-
spondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
9 If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al 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
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT coercively question you about
your union support or activities.
WE WILL NOT unlawfully make promises of ben-
efits to you.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
PENNSY SUPPLY, INC.
David Faye, Esq., for the General Counsel.
Arthur M Brewer, Esq. (Shawe and Rosenthal, Esqs.), for
the Employer.
Walter De Treux, Esq., for the Union.
DECISION
FRANK H. ITKIN, Administrative Law Judge. An
unfair labor practice charge was filed in this case on Oc-
tober 26 and a complaint issued on December 31, 1987.
The General Counsel alleges that Respondent Employer
violated Section 8(a)(1) of the National Labor Relations
Act by coercively interrogating one employee and by
telling employees on another occasion that the Employer
"was considering a pension plan and an improved health
plan" in order to discourage them from supporting the
Union. The Employer denies violating the Act as al-
leged. A hearing held on the issues raised in Harrisburg,
Pennsylvania, on April 28, 1988. On the entire record,
including my observation of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT
Respondent Employer is admittedly an employer en-
gaged in commerce as alleged . The Union is admittedly a
labor organization as alleged. As Union staff organizer
Charles Shurghart credibly testified, the Union attempted
to organize Respondent Employer's driver, mechanic,
and operator employees about September 1987. The first
union meeting of employees was held on September 14,
1987. A second union meeting was held on September
21, 1987. A representation petition was filed by the
Union with the Board's Regional Director on October
15, 1987. A stipulated election agreement was executed
by the parties and approved by the Regional Director on
October 30, 1987. And a Board-conducted representation
election was thereafter held on January 6, 1988. Of ap-
proximately 185 eligible unit voters, 58 cast votes for the
Union; 115 cast votes against the Union; and there were
8 challenged ballots. The results of the election were cer-
tified on January 14, 1988. There are no pending chal-
lenges or objections in the representation proceeding.
We are consequently solely concerned here with an al-
leged act of coercive interrogation of one employee on
September 22, 1987, and an alleged promise of benefits to
employees on October 19, 1987. The pertinent evidence
is summarized and discussed below.
A. The Alleged Coercive Interrogation
James Westbrook has been employed by the Employer
for 12 years. He was subpoenaed to testify for the Gen-
eral Counsel and acknowledged that he is not "testifying
voluntarily." He attended his first union meeting on Sep-
tember 21 and then signed a union membership card. On
the following day, September 22, the Employer held a
"shop meeting" of the mechanics in the paint and tire
shops. Company Operations Manager Don Eshleman
conducted the meeting. As Westbrook testified, Eshle-
man "wanted to know what the problems were in the
shop or in the Company." There were some 22 employ-
ees present and "almost everybody at the meeting"
"spoken up." One employee, Ken Hammaker, comment-
ed at the meeting: "Kevin and Jr. didn't start this Union
thing."' Eshleman did not respond to Hammaker's com-
ment. The meeting ended.
Westbrook, as he further testified, left the meeting. He
was later "called back" by Eshleman. Eshleman then had
a brief "conversation" with Westbrook while standing
"between the dispatch office and the parts room, right
next to the water heater." Eshleman "asked" Westbrook
if Westbrook "had anything to do with the Union?"
1 Westbrook explained that "Kevin" is a co-employee, Kevin Taylor,
and "Jr." is his, Westbrook's, "nickname." Westbrook, however, could
not explain or recall how this subject "was brought up" by Hammaker at
the meeting.
PENNSY SUPPLY 327
Westbrook responded: "Why are you asking me?" Eshle-
man explained : "Because your name and Kevin's name
was mentioned at the meeting ." Westbrook then stated:
"Why didn't you ask Kevin?" Eshleman replied: "He
[Eshleman] felt he could trust me [Westbrook] to get an
honest answer out of me because he knew me more than
he knew Kevin." Westbrook then responded: "I went to
see what the man [Shughart] had to say. . . . That's my
right under the law." Eshleman then asked: "he wanted
to know how widespread it was." Westbrook replied: "I
said I did not know."2
Operations Manager Don Eshleman could not "re-
member" whether an employee at the September 22
meeting had made a statement to the effect that West-
brook had been "wrongly accused of starting a Union."
After the shop meeting, Eshleman admittedly spoke with
Westbrook. Eshleman, "shocked at the magnitude of the
comments that [he] had received that morning and also
the magnitude of how many different people in that
group of 30 responded," admittedly spoke with West-
brook after the meeting near "the hot water heater."
Eshleman could not "remember [his] exact words."
Eshleman admittedly asked Westbrook, "are these prob-
lems the same everywhere else in Pennsy Supply?"
Westbrook "thought the problems were elsewhere too."
Eshleman admittedly asked Westbrook how "he felt."
Westbrook "shared the feelings of the others in general
that I [Eshleman] heard." Eshleman could not "remem-
ber using the word Union." Eshleman testified:
I remember asking him [Westbrook] if he was so
upset and so concerned that even a person like him
would consider getting outside help for those kinds
of problems rather than dealing with them through
our own Management.
Westbrook assertedly did not respond. Eshleman denied,
inter alia, asking Westbrook "if he was involved with a
Union"; if he had signed a Union card; if he knew of
other employees' Union activities; if he had attended any
union meetings ; and "his opinion of other employees and
their activities on behalf of a Union." Eshleman denied
that Westbrook had made a statement about "going to
see the man" or "the Union." Eshleman could not "re-
member" Westbrook asserting his "rights to go see a
man or the Union." Eshleman regarded Westbrook's tes-
timony concerning this conversation as "inaccurate."
Westbrook is presently employed by Respondent Em-
ployer. He was, as noted, a reluctant witness for the
General Counsel. He candidly and fully answered coun-
sel for the General Counsel' s questions . His testimony
withstood the test of cross-examination . Relying on de-
meanor, I find Westbrook to be a credible and trustwor-
thy witness with respect to the above incident. Eshle-
man, on the other hand, was general and vague in his
recollection of this same incident. I was not impressed
with the accuracy or quality of Eshleman's recollection
of this incident. Insofar as the testimony of Eshleman
conflicts with the testimony of Westbrook, I am persuad-
ed on this record that Westbrook's recollection of this in-
cident is more candid, complete, and, trustworthy.
Discussion
In Rossmore House, 259 NLRB 1176 (1984), the Board
explained that the "basic test for evaluating whether in-
terrogations violate the Act" is "whether under all the
circumstances the interrogation reasonably tends to re-
strain, coerce or interfere with rights guaranteed by the
Act." In Sunnyvale Medical Clinic, 277 NLRB 1217
(1985), the Board, applying Rossmore, found that the
"circumstances surrounding" the interrogation "are
devoid of the elements of coercion necessary for finding
a violation." The Board noted that "although [the em-
ployee] was not an open and active union supporter, she
was also not an employee especially intent on keeping
her support for the union hidden from the respondent";
there "is no history of employer hostility towards or dis-
crimination against union supporters"; "the nature of the
questions was general and nonthreatening"; "it did not
reasonably appear from the nature of these questions that
[the employer] was seeking to obtain information . . . [in
order] to take adverse action against employees"; and it
was a "friendly relationship" with a "casual and amica-
ble" conversation.
Applying the Rossmore and Sunnyvale rationale to the
credited evidence of record, I find and conclude that
Eshleman's isolated act of interrogation of Westbrook
did not under all the circumstances reasonably tend to
restrain, coerce, or interfere with employee Section 7
rights. Here, too, the "circumstances surrounding" this
one act of interrogation in a unit of some 185 employees
early in the organizational campaign "are devoid of the
elements of coercion necessary for finding a violation."
There was no history of employer hostility towards or
discrimination of Union supporters; the nature of the
brief interrogation was "general and nonthreatening"; "it
did not appear from the nature of these questions that"
the Employer "was seeking to obtain information . . . to
take adverse action against employees"; and it was a
"casual and amicable" conversation in a "hallway." In
short, Eshleman, admittedly "shocked at the magnitude"
of employee complaints, asked Westbrook in the hallway
if he "had anything to do with the Union" because the
employee's name had been mentioned at the shop meet-
ing. Westbrook responded that he had gone to a union
meeting "to see what the man had to say" and "that's
my right under the law." Eshleman inquired "how wide-
spread it was" and Westbrook replied: "I did not know."
I do not find this isolated and brief interrogation to run
afoul of the proscriptions of Section 8(a)(1) of the Act.
2 On cross-examination , Westbrook recalled, inter alia, Eshleman
saying at the shop meeting that "he would hate to see the Union come
in." The shop meeting was held in the drivers ' lunchroom . The later oon-
versation between Eshleman and Westbrook was in a "hallway." Em-
ployees were "moving in and out" during this conversation; the two
were "not closeted off in some secret place"; the conversation "was right
out in the open " Westbrook did not "think" that Eshleman "knew at the
time there was any [union ] cards signed."
B. The Alleged Promise of Benefits
Richard Trammel was hired by the employer as a
mixer/driver in March 1987 and he "quit " in November
1987. Trammel acknowledged that he too was not testi-
fying "voluntarily" for the General Counsel ; he "was
328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
subpoenaed ." Trammel testified that he attended a driv-
ers' meeting on October 19, 1987 . Operations Manager
Eshleman spoke to the some 15 to 20 assembled employ-
ees. The meeting lasted over 2 hours . Trammel recalled:
He [Eshleman] was telling us about our current
health and benefit package, that we had medical
and health , dental . He was explaining that all to us
and he told us that it was better than Drivers Incor-
porated had . Then , he also said that Mrs. Mumma
[the owner] was looking into a better plan for us,
better health and medical , and also a retirement
plan. Then, he said, "I can't say no more because I
wasn't really supposed to say that."
The employer , at the time , had a health plan , but no re-
tirement plan. (See G.C. Exhs . 2 and 3.) On cross-exami-
nation , Trammel explained that "Mr . Eshleman said that
Mrs. Mumma [the owner] was looking into improving
[the] health plan" and "was checking into a pension
plan."
Tommy Allen has been employed by the Company as
a mixer/driver for 4 years . He too acknowledged that he
is not "testifying voluntarily" for the General Counsel.
He too attended the October 19, 1987 meeting. He re-
called that Eshleman said
that there was a lot of dissatisfaction among the em-
ployees and that he was there to try and straighten
it out . . . . Mrs. Mumma [the owner] had received
poor advice from management and that 's why he
was there . . . . Since Mr. Mumma passed [away],
that she [Mrs. Mumma] more or less has cold feet
coming into her position where she's at.
[The] dissatisfaction that she [Mrs. Mumma] was
now aware of [was] . . . they [the Employer]
brought in another health plan . . . it was a better
plan than the one we had and she was working on
satisfying us.
[Mrs. Mumma] was just looking into better benefits
for us to resolve this dissatisfaction.
Allen could not "remember" Eshleman saying "anything
about what Mrs. Mumma was doing regarding a retire-
ment plan." He did recall Eshleman stating that "Mr.
Mumma was against a retirement plan and Mrs. Mumma
felt the same way." However , Allen, in his prehearing
affidavit, had stated:
He [Eshleman] said . . . Mr. Mumma [now de-
ceased] had always said no retirement plan and Mrs.
Mumma had stood the same ground , but she had
had bad advice from the vice president , she was
now looking into it [retirement] and better health
plans.
Allen, at this hearing, did not "specifically remember re-
tirement as one of the words" but, he acknowledged,
"maybe it was." Allen also acknowledged that his
"memory isn 't as fresh now as it was" when he gave his
prehearing affidavit.
On cross-examination , Allen explained that the Em-
ployer had adopted a new health plan in March 1987;
that Eshleman told the employees at the October 19,
1987 meeting that "the new plan was better than the
older plan" and better than the Teamsters Union health
and welfare plan; and that he, Allen , came away from
the October 19 meeting "feeling" that both the Mummas
had opposed a retirement plan and "it was very unlikely
anything would happen ." Allen noted that the Employ-
er's health plan instituted in March 1987 included dental
benefits . And Allen recalled that Eshleman said that "the
Company could not make any promises now"; Eshleman
made no promises ; Eshleman "just elaborated on what
was in effect already."
Palmer Brugger, employed by the Company as a truck
driver, also attended the October 19, 1987 meeting.
Brugger recalled Eshleman then reviewing employee
"problems" with their new health insurance plan and of-
fering to "help us get straightened out" with the new
plan. Brugger denied that a "retirement plan" was dis-
cussed or that Eshleman "promised" a new and im-
proved health plan or retirement plan. Eshleman "didn't
make no promises about retirement or anything"; "he
said he couldn 't make no promises . . . he wasn't author-
ized to make any promises . . . he couldn 't [make any
promises] if he wanted to . . . Eshleman ascertained
what the employees ' "problems" were and indicated that
"he would talk to some of the people over him"-Eshle-
man said they would "look into the problems."
Lyle Haskins , the Employer 's supervisor of mainte-
nance, attended the October 19, 1987 meeting. Eshleman
assertedly spoke about the "problems " which employees
had related at "previous meetings ." Haskins was asked if
he could "recall what Mr. Eshleman said at that meeting
about the health insurance plan?" Haskins replied: "not
specifically . I don't recall his specific words." Employees
assertedly expressed "concern" about the recently insti-
tuted health insurance plan. There was "confusion" over
coverage . However, according to Haskins, Eshleman did
not promise employees at this meeting that the Employer
would improve the plan or get a better plan. Eshleman
also recalled expressions of employee "concern" about a
retirement plan, however, Eshleman assertedly did not
promise to institute such a plan. Haskins could not "spe-
cifically remember" what else was said. On cross-exami-
nation, Haskins recalled that Eshleman stated to the as-
sembled employees "that he had been asked to talk with
the employees and then report back to top level manage-
ment"-he did not "say what the Company was going to
do about" employee concerns.
Don Eshleman , the Employer 's operations manager,
testified about the October 19, 1987 meeting . He then
"summarized " to the drivers "the problems that shop
personnel had related" at "previous meetings ." These
problems concerned "wages," "benefits," and "manage-
ment." Drivers were given an opportunity to state their
"problems." They related their questions and complaints
on the recently instituted health plan . He attempted to
answer their questions . He denied promising employees
"that this plan would be improved"-this plan had just
been instituted in March 1987 . Eshleman explained:
PENNSY SUPPLY
The statement I made was, since I already knew
that the petition was filed, that I could not divulge
any information about any improvement on any-
thing at that meeting or any other time.
He denied making any statement to the drivers "about
the prospects for a retirement plan in the future." He
told the employees "that I couldn't say anything, I
couldn't make a promise about anything . . . . I had no
authority, I had no knowledge."a
I credit the testimony of former employee Trammel as
recited above. He candidly related what was said by
Eshleman at the October 19 meeting. In particular, I find
Trammel's testimony, to the effect that "Eshleman had
said that Mrs. Mumma was looking into improving [the]
health plan" and was "checking into a pension plan," to
be forthright, reliable, and trustworthy. Trammel's testi-
mony is corroborated in significant part by Allen, a cur-
rent employee who was not "testifying voluntarily" for
the General Counsel. As Allen recalled, Eshleman had
discussed on October 19 with the assembled employees
their "dissatisfaction" over the new health plan; "it was a
better plan than the one we had"; and the owner, Mrs.
Mumma, "was just looking into better benefits for us to
resolve this dissatisfaction." And, although Allen could
not "remember" Eshleman saying anything "about what
Mrs. Mumma was doing regarding a retirement plan,"
his prehearing affidavit made clear that Eshleman in fact
had related to the employees that "she was now looking
into it [retirement] and better health plans." Allen ac-
knowledged that his "memory" was not as "fresh" at the
hearing as it was when he gave his prehearing affidavit.
I find on this entire record that the above recollections
of Trammel and Allen, including the quoted portion of
Allen's prehearing affidavit (see Tr. 63-80, 162-172), are
more reliable and trustworthy than the testimony of
Brugger, Haskins, and Eshleman. The testimony of Brug-
ger, Haskins, and Eshleman was at times vague, incom-
plete, contradictory, and unclear. I do not, on this
record, regard them as reliable witnesses.
s On cross-examination , Eshleman claimed that he had scheduled the
October 19 meeting "prior to the petition being filed"-the meeting had
"nothing to do with the petition being filed " The representation petition,
as noted , had been filed on October 15 Elsewhere, Eshleman acknowl-
edged telling employees at this meeting that a petition had been filed.
Discussion
329
In Radio Broadcasting Co., 277 NLRB 1112 (1985), the
Board found that, where the employer's president "re-
sponded" to an employee that a "merit and wage in-
crease . . . was a good idea but he would not promise
anything at that time," this was not an unlawful promise
of benefit proscribed by Section 8(a)(1) of the Act. The
Board explained that this "general remark that a wage
increase was a good idea followed by the statement that
he could not promise anything is not sufficient to support
a finding that the respondent violated Section 8(a)(1) of
the Act." Further, the Board also found:
we do not consider [the president's] statement that
he would "look into" increased health coverage to
be an unlawful promise especially where there is no
other evidence that [the employer] promised or
even discussed increased health care benefits.
In the instant case, Company Operations Manager
Eshleman, after listening to employee complaints and
questions about the Employer's recently instituted health
plan and other benefits, told employees that the owner
"was looking into improving [the] health plan" and "was
checking into a pension plans." Eshleman made clear: "I
can't say no more because I wasn't really supposed to
say that"-"the Company would not make any prom-
ises." In short, management, after hearing the employee
complaints and dissatisfaction over its newly instituted
health plan, told them that it could make no promises,
however, it was "looking into" an improved health plan
and retirement plan. I do not find, on this record, that
these general and vague statements by Eshleman, in con-
text, constitute unlawful promises of benefit as alleged.
I would therefore dismiss this complaint in its entirety.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce as
alleged.
2. The Union is a labor organization as alleged.
3. Respondent has not violated Section 8 (a)(1) of the
Act as alleged.
[Recommended Order for dismissal omitted from pub-
lication.]