Skil Corp.

National Labor Relations Board - Board Decisions

Apr 16, 1969

175 N.L.R.B. 394 (N.L.R.B. 1969)

394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Skil Corporation and Local 1693 , United
Brotherhood of Carpenters and Joiners of
America , AFL-CIO. Cases 13-CA-8481 and
13-RC-1 1534
April 16, 1969
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On January 23, 1969, Trial Examiner Jerry B.
Stone issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending dismissal of the
complaint in its entirety, as set forth in the attached
Trial Examiner's 'Decision. He further found that
there was no merit in the Petitioner's (the
participating labor organization and the Charging
Party herein) objections to the election and
recommended that they be overruled in their entirety
and a certification of the results of the election held
on May 23, 1968, be issued. He further ordered that
Case 13-RC-1 1534 be severed and remanded to the
Regional Director for Region 13 for further action.
Thereafter, the General Counsel and the Charging
Party filed exceptions to the Trial Examiner's
Decision with supporting briefs, and the Respondent
filed an answering brief.
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 connection with these cases to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner 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 briefs, and
the entire record in these cases, and hereby adopts
the Trial Examiner's findings,' conclusions, and
recommendations.
ORDER
Pursuant to the provisions of Section 10(c) of the
National Labor Relations Act, as amended, the
National Labor Relations Board hereby adopts as
its Order the Recommended Order of the Trial
Examiner, and orders that the complaint herein be,
and it hereby is, dismissed in its entirety.
The General Counsel and the Charging Party contend that the Trial
Examiner was incorrect in narrowly construing the complaint and contend
that the other evidence in the record establishes that the Respondent was in
effect telling the employees that it would be "futile" to select the Union
because it would not bargain in any event Assuming arguendo , that the
complaints should be broadly construed , we would find , after reviewing the
record that the Respondent engaged in legitimate electioneering and that
the conduct complained of was insufficient to establish a violation of
Section 8(a)(1) of the Act
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
JERRY B STONE, Trial Examiner: This proceeding
under Section 10(b) and Section 9 of the National Labor
Relations Act, as amended, was tried pursuant to due
notice before Trial Examiner Jerry B Stone on October
31, 1968, at Chicago, Illinois.
The original charge in Case 13-CA-8481 was filed on
June 10, 1968, and a true copy thereof was served on
Respondent- Empl9Yer on or about June 11, 1968. The
first amended charge in Case 13.-CA-8481 was filed on
June 27, 1968, and a true copy thereof was served on the
Respondent-Employer on or about July 1, 1968.
Pursuant to a petition filed on April 4, 1968, in Case
13-RC-11534 and an agreement for consent election
executed and approved May 6, 1968, a secret-ballot
election was conducted under the supervision of the
Regional Director of Region 13 of the National Labor
Relations Board on May 23, 1968, in the unit described in
the said agreement. The numerical talley of ballots of said
election revealed that of the valid ballots a majority of the
votes had been cast against the participating labor
organization. Thereafter timely objections to conduct
affecting the results of the election were filed by the
Petitioner (the participating labor organization) with a
copy thereof being duly served on the
Respondent-Employer.
Pursuant to Section 102.69 of the National Labor
Relations Board's Rules and Regulations, Series 8, as
amended, the said Regional Director, after reasonable
notice to all parties to present relevant evidence,
completed an investigation of the objections, reviewed all
statements made by witnesses, and carefully considered all
other evidence submitted by the parties, and on August
28, 1968, issued a Report on Objections, an Order
Consolidating Cases (13-CA-8481 and
13-RC-11534-consent), and a notice of consolidated
hearing in Cases 13-CA-8481 and 13-RC-11534. In said
report the said Regional Director overruled Objections 2
and 3, found Objection I to relate to conduct which was
the subject of complaint allegations in Case 13-CA-8481
and that the issues thereto raised substantial and material
facts and questions concerning the conduct affecting the
results of the election. The Regional Director further
found that Objection 4 was overruled except to the extent
that it encompassed Objection 1 The Regional Director
ordered that a hearing be held to resolve Objection I and
that such hearing be consolidated with any hearing in
Case 13-CA-8481 and held before a Trial Examiner. '
Objection I (13-RC-11534) avers "That the Employer,
immediately following the commencement of the
Petitioner's organizing campaign, initiated so-called safety
meetings during which it made threats and promises to its
maintenance employees."
The complaint allegation (13-CA-8481) avers "on or
about May 21, 1968, Respondent-Employer, by its agent
and supervisor, Leon Bassett, told its assembled
employees that the Company would never recognize the
Union." The General Counsel furnished pretrial
clarification to reveal that the contended conduct occurred
at the Elston Avenue plantsite.
'The Regional Director provided that if Case 13-CA-8481 were disposed
of prior to hearing , a Hearing Officer would be designated to hear the
representation matter (I 3-RC-11534)
175 NLRB No. 65
SKIL CORPORATION 395
The issue in this case is thus whether the
Respondent-Employer engaged in the conduct alleged in
the complaint as indicated, whether such conduct violated
Section 8(a)(1) of the Act, and whether such conduct
constituted objectionable conduct affecting the results of
the election held on May 23, 1968.
All parties were afforded full opportunity to participate
in this proceeding and to file briefs. Briefs were filed by
all parties and have been considered.
Upon the entire record in the case and from my
observation of the witnesses, I hereby find as follows:'
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT-EMPLOYER'
Skit Corporation, the Respondent-Employer, is, and
has been at all times material herein, a corporation duly
organized under, and authorized to do business by, the
laws of the State of Delaware. Skit Corporation, at all
times material herein, has engaged in the
manufacture, sale, and distribution of power drills, saws,
and other related products. Respondent-Employer
maintains a plant and general offices at 5033 North
Elston Avenue, Chicago, Illinois, and a second plant at
3500 West Oakton Street, Skokie, Illinois, which are the
only two facilities involved in this proceeding. During the
past calendar year, the Respondent-Employer, in the
course and conduct of its business operations,
manufactured, sold, and distributed products valued in
excess of $500,000 and caused to be shipped across State
lines, and in foreign commerce, goods valued in excess of
$50,000. Based upon the foregoing and as conceded by the
Respondent-Employer, it is concluded and found that the
Respondent-Employer is now, and at all times material
herein has been, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED4
Local 1693, United Brotherhood of Carpenters and
Joiners of America , AFL-CIO, is, and at all times
material herein has been , a labor organization within the
meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES AND THE
OBJECTION TO THE ELECTION
A. Preliminary Issues'
At all times material herein, the following named
persons occupied the positions set forth opposite their
respective names, and have been and are now agents of
the Respondent-Employer, acting in its behalf within the
meaning of Section 2(13) of the Act, and are supervisors
within the meaning of Section 2(11) of the Act:
John Sullivan - President
James T. Ryan - Vice President - Personnel
Leon Bassett - Vice President - Operations
Leonard Kowalski - Plant Engineer
B. The Events of May 21, 1968
It is clear and undisputed that the
Respondent-Employer held a meeting at the Elston
Avenue plantsite on May 21, 1968, for employees. This
meeting was held in the product conference room. The
meeting commenced around 3 p.m. and lasted until
around 4 p.m. Present for management were President
Sullivan, Vice President (personnel) Ryan, Vice President
(operations) Bassett, and Plant Engineer Kowalski. After
the meeting started, Alex Mackey, assistant treasurer,
later appeared and participated in said meeting. All of the
maintenance employees working that day, around 22,
attended this meeting.' At this meeting Ryan, Bassett,
Kowalski, and Sullivan made statements to the employees
concerning Respondent-Employer's opposition to the
Union and the reasons employees did not need a union.
The only issue in this case is whether Bassett told the
employees that the Respondent-Employer would never
recognize the Union.' I credit the testimony of Bassett,
Ryan, and Kowalski to the effect that Bassett did not, on
May 21, 1968, tell the employees in the meeting that the
Respondent-Employer would never recognize the Union.
Credibility Comment
Basset, Ryan, and Kowalski, in their demeanor and
testimony, impressed me as frank, forthright, and truthful
witnesses. Furthermore, their testimony appeared to be a
full, complete, and objective recital of the facts as they
knew them. Their testimony also was convincing that as
witnesses they had a better facility at recalling in more
accurate and precise terms the words actually said at the
meeting involved.
Witnesses Moore, Wilburn, and Polynice impressed me
as witnesses who were attempting to tell the truth as they
knew it. However, neither Moore, Wilburn, nor Polynice
appeared to be witnesses who had the facility of being
able to recall in precise and accurate fashion the words
spoken on May 21, 1968. Moore impressed me as a
witness confused in his recollection as to most details but
convinced in his own mind of the conclusionary meaning
thereof. Neither Moore, Wilburn, nor Polynice appeared
as complete and objective in their testimony to the events
as Ryan, Bassett, and Kowalski.
Certain other witnesses, Ivor Davis, Stanley Novak,
and Melvin Peterson, were adduced by the
Respondent-Employer, and while their testimony to an
extent corroborated the testimony of Ryan, Bassett, and
Kowalski, in and of itself such testimony appeared
unreliable. Thus the testimony of such witnesses was very
fragmentary and negative in nature. Furthermore, Ivor
Davis impressed me by his demeanor as a completely
'All credibility resolutions are based in whole or in part on my
observation of the witnesses' demeanor and upon a composite evaluation
thereof with the logical consistency of all the facts. Respondent -Employer's
motion to correct the transcript , dated December 6, 1968 , is hereby
granted and the transcript is hereby corrected . Said motion is hereby
marked as TX. Exh. I and is hereby received into the record.
'The facts are based upon the pleadings and admissions therein.
'The facts are based upon the pleadings and admissions therein.
'The facts are based upon the pleadings and the-admissions therein.
'The facts are based upon the composite of the credited aspects of the
testimony of all witnesses . As indicated later, I found the testimony of
Ryan, Bassett , and Kowalski to be more reliable and more credible than
that of Moore , Wilburn , and Polynice as to the areas of conflict and thus
credit the testimony of Ryan, Bassett, and Kowalski and discredit the
testimony of Moore , Wilburn, and Polynice in conflict therewith.
'As indicated later herein , I do not agree with the contentions in the
briefs of Charging Party and General Counsel to the effect that there are
now other issues . The issue was clearly set forth by the pleadings and by
statements at the hearing.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unobjective witness.
In sum, of all the witness, I found Ryan, Bassett, and
Kowalski to appear more objective, complete, and reliable
in their demeanor and testimony, and I credit their
testimony to the effect that Bassett did not say to the
employees, on May 21, 1968, that the
Respondent-Employer would not recognize the Union.
Certain Miscellaneous Contentions
In their briefs the Charging Party and the General
Counsel pointed out their contentions of inconsistencies
and changes in the testimony of various
Respondent-Employer's witnesses and their contention
that the testimony as a whole raised issues as to implied
threats of futility of selection of a union and revealed
subtle but implied threats of refusal to recognize the
Union. It must be noted that the complaint simply and
clearly alleged that on May 21, 1968, Bassett told the
assembled employees that the Company would never
recognize the Union. The witnesses adduced by the
General Counsel also testified to such direct effect. I
construe the issues and the litigation herein to be to this
simple point. I have carefully considered the briefs in this
matter and the entire questions and answers relating to
the various points involved My credibility resolutions are
as previously indicated. Furthermore, however,
considering the totality of the evidence, I do not find or
conclude that the credited evidence reveals that the
Respondent-Employer, by Bassett or others, by subtle
threats, told the employees that the Company would never
recognize the Union. Rather, I find that the
Respondent-Employer, by Bassett and others, engaged in
legitimate electioneering that did not constitute conduct of
interference, restraint, or coercin within the meaning of
Section 8 (a)(l) of the Act, or conduct that interfered
improperly with the conduct of the election held on May
23, 1968.
Conclusions
Accordingly, it is concluded and found that the
Respondent-Employer, on May 21, 1968, did not engage
in conduct wherein Bassett told employees that the
Respondent-Employer would never recognize the Union
It follows therefore that the Respondent-Employer, as
alleged, did not violate Section 8(a)(1) of the Act. It also
follows that the Respondent-Employer, as averred in
Objections I and 4, did not engage in conduct which
improperly affected the results of the election held on
May 23, 1968, in Case 13-RC-11534.
CONCLUSIONS OF LAW
1. Respondent-Employer is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Local 1693, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3 The Respondent-Employer has not engaged in unfair
labor practices, as alleged, in the complaint (13-CA-8481).
4 The Respondent-Employer has not engaged in
conduct, as averred, improperly affecting the results of the
election held on May 23, 1968 (13-RC-1 1534)
RECOMMENDED ORDER AND ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, I hereby
1. Order that Cases 13-CA-8481 and 13-RC-11534
(consent) be severed and that Case 13-RC-11534 (consent)
be remanded, and it hereby is remanded, to the Regional
Director of Region 13 of the National Labor Relations
Board, with recommendation that Objections I and 4 be
overruled and a certification of the results of the election
held on May 23, 1968, be issued
2. Recommend that the complaint in Case 13-CA-8481
be dismissed in its entirety.