Swanson-Nunn Electric Co., Inc.

National Labor Relations Board - Board Decisions

Apr 25, 1973

203 N.L.R.B. 213 (N.L.R.B. 1973)

SWANSON-NUNN ELECTRIC CO.
Swanson-Nunn Electric Company , Inc. and Chauf-
feurs, Teamsters , and Helpers Local 215 a/w Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America . Case 25-
CA-4908
April 25, 1973
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS KENNEDY AND
PENELLO
On September 21, 1972, Administrative Law Judge
Irving M. Herman issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General Counsel
filed a brief in support of the Administrative Law
Judge's Decision and a response to Respondent's ex-
ceptions and acquiescence in certain portions of the
Administrative Law Judge' s Decision.
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 .2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Swanson-Nunn Electric
Company, Inc., Evansville, Indiana, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge in connection with his findings that Foreman
Lottes' interrogation of employees violated Section 8(a)(l) of the Act. It is
the Board 's established 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 were incorrect
Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F 2d 362 (C.A
3). We have carefully examined the record and find no basis for reversing
his findings.
2 The Administrative Law Judge found that Respondent 's decision to with-
hold wage increases until resolution of a pending unfair labor practice charge
did not violate the Act Inasmuch as the General Counsel failed to file
exceptions to that finding, we adopt pro forma the Administrative Law
Judge's recommendation that the complaint be dismissed with respect to
such allegations.
DECISION
STATEMENT OF THE CASE
213
IRVING M. HERMAN , Administrative Law Judge: This case
was tried before me at Evansville, Indiana, on July 25,
1972.' The charge was filed by the Union on April 25 and
amended May 25, and the complaint issued May 26. The
primary issues are whether Respondent (a) unlawfully inter-
rogated its employees and promised them benefits to dis-
courage their support for the Union, and (b)
discriminatorily withheld a promised wage increase from
employee David Buchanan, in violation of Section 8(a)(1)
and (3 ) of the National Labor Relations Act, as amended
(29 U.S.C. Sec. 151 et seq.), herein called the Act.
Upon the entire record, including my observation of the
witnesses , and after due consideration of the briefs filed on
behalf of the General Counsel and the Respondent 2 I make
the following:
FINDINGS AND CONCLUSIONS
1. RESPONDENTS BUSINESS
The complaint alleges , the answer admits, and I find that
Respondent is an Indiana corporation , engaged in the con-
struction industry as an electrical contractor and in the
manufacture and repair of commercial electrical compo-
nents , with its principal office and place of business at Ev-
ansville , Indiana; that its annual direct purchases from out
of State exceed the value of $50,000 as do its direct out-of-
State sales; and that Respondent is an employer engaged in
commerce within the meaning of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The complaint also alleges , the answer admits, and I find
that the Charging Union is a labor organization within the
meaning of the Act.
Iii THE UNFAIR LABOR PRACTICES ALLEGED
A. The Union's Organizational Campaign
The instant campaign to organize the employees of
Respondent 's motor shop 3 commenced in early April .4 The
Union obtained numerous signed authorization cards on
April 12 and 13, and wrote the Company on April 14, de-
manding recognition . Respondent received the demand the
following day . On the 17th the Union filed a representation
petition , and on April 21 Respondent wrote the Union
i All dates are in 1972.
2 Charging Party, though represented by counsel at the hearing , filed no
brief
3 Unit employees number about 15 to 17
4 Respondent has maintained contractual relations with a number of un-
ions representing its employees in units other than that here involved. A few
years ago one of such unions attempted to organize the instant unit but lost
a Board-conducted election . There is no evidence of active company opposi-
tion to that aborted effort.
5 Case 25-RC-4998.
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rejecting the latter's demand on the ground that the matter
could better be resolved by a Board election.
B. Respondent's Reaction
1. The interrogation
Four unit employees testified that the motor shop fore-
man, Lottes, an admitted supervisor and vice president of
the Company, interrogated them concerning the Union.
David Buchanan stated that around April 20, when he went
to Lottes' office to request a wage raise, Lottes asked him
if he knew about the Union and whether he thought it would
do him any good. Kenneth Ayers testified that at about the
same time he visited Lottes' office to tell him that someone
was trying to organize for the Union but that it was not he,
that Lottes asked him who it was, and whether it was some-
one upstairs or downstairs, and that he replied he did not
know but thought it was from upstairs. Shortly thereafter,
according to Ayers, he attended a union meeting and so
reported to Lottes the next day, whereupon Lottes asked
him how many had been present; and when he said there
were four, Lottes asked him to identify them, which he did.
William G. Burns testified that he reported in at Lottes'
office following a service call about the middle of April, a
day or two after signing a union card . He mentioned the
Union to Lottes who then asked him who had started the
campaign . Burns replied that he would rather not tell. Burns
asked if he (Burns) could do anything to stop the drive, and
Lottes replied it was not his place to advise Burns about
that.
Mike Villines stated that about April 20 he went to Lottes'
office to get some orders and that Lottes told him to sit
down and asked him whether he knew anything about the
Union. Villines replied that he had signed a card, whereup-
on Lottes "told [him] about the Union," saying he was not
making any threats but that if the Union came in Villines
would no longer go out on runs or continue to perform any
other duties than those confined to his own classification as
a motor mechanic .6
Lottes testified that on April 14 (a Friday), employee
Burns had sought to talk to him about whether he was to
be laid off, and that Lottes replied in the negative; that
Burns then asked if Lottes knew of the union activity, Lottes
said he did not, and Burns said he would by Monday; that
Lottes then asked, "What union?" and Burns told him, add-
ing that he thought nothing would come of it because it was
"the wrong union" ; and that Lottes asked how the other
employees felt about it. Lottes further testified that Ayers
came into his office later, protesting that he had had nothing
to do with organizing for the Union but thought he might
be blamed because he had signed a card; that Lottes told
Ayers he was a good worker and did not need the Union to
protect him, and asked Ayers who was spreading the rumor
about layoffs, "and whether it had been put to him in con-
junction with signing the pledge card"; and that Ayers vol-
6 This is not alleged in the complaint as an unlawful threat , nor does the
General Counsel's brief seek relief against threats as such The incident does,
however, evidence a purpose to cause Villines ' defection from the Union and
hence the Company's hostility to the Union
unteered the information about who had attended the union
meeting, that Lottes had not requested it.
Lottes testified additionally that he had merely asked
Villines whether he was aware of the layoff rumors, and that
he had made a similar inquiry of Buchanan. Lottes did
admit, however, asking Buchanan if he thought the Union
would benefit him.
On cross-examination, Lottes conceded he had talked to
eight or nine employees about the Union, that they had not
initiated all the conversations, and that he had asked them,
.,as a more or less fellow employee," how they felt about a
union in the shop.
The above-named employees impressed me as credible
witnesses corroborating each other in essential detail in re-
spect to the alleged interrogation . In fact one of them,
Burns, indicated his own disenchantment with the Union
while giving some of the most telling evidence against Re-
spondent. Although Lottes testified that his inquiries of
these employees related to their awareness vel non of a layoff
rumor, and he specifically denied asking Burns who had
signed union cards or who had started the Union, or asking
Ayers to identify the participants at the union meeting, he
did admit asking Burns how the other employees felt about
the Union, and asking Buchanan if he thought the Union
would help him. And later, on cross-examination, he admit-
ted that "as a more or less fellow employee" he had asked
some eight or nine employees in all about their attitudes
toward the Union.
In sum, therefore, the record shows a pattern of interroga-
tion into the origin of the union campaign and the identity
of its supporters by the employees' foreman, an acknowl-
edged supervisor and vice president of the Company, who
had manifested his opposition to the Union,7 with no show-
ing of legitimate purpose or assurance against reprisal. Such
conduct "by its very nature tends to inhibit employees in the
exercise of their right to organize." Engineered Steel Prod-
ucts, 188 NLRB 298; see also Koch Engineering Company
Inc., 155 NLRB 1272, 1273. Lottes misconceived the nature
of his position. He was not a fellow employee, even "more
or less," but a senior official of the employer, "any attempt
by [whom] to ascertain employee views and sympathies re-
garding unionism generally tends to cause fear or reprisal
in the mind of the employee if he replies in favor of union-
ism and, therefore , tends to impinge on his Section 7 rights."
Struksnes Construction Co., 165 NLRB 1062; see Big Three
Industries, Inc., 192 NLRB 370; Roy Thomas and James
Thomas, d/b/a Thomas Markets, 191 NLRB 371.
Respondent contends that interrogation per se does not
violate the Act and, citing Burke Golf Equipment Corp. v.
N.L.R.B., 284 F.2d 943 (C.A. 6, 1960), urges that the evi-
dence establishes a friendly relationship between it and its
employees, the absence of hostility toward labor unions or
toward the exercise of Section 7 rights, and that whatever
interrogation occurred here 8 was not for the purpose of
r By his admitted statement to Ayers that he did not need the Union to
protect him, and by his statement to Villines concerning the latter 's loss of
runs if the organizing drive succeeded
s Respondent argues preliminarily that no interrogation occurred, con-
tending that Vice President Lottes should be credited over employees Ayers
and Burns . and that Buchanan admitted that Lottes had not asked him who
gave him a union card , who was behind the Union, or if he had attended any
SWANSON-NUNN ELECTRIC CO. 215
inducing abandonment of the right to union representation.
There can be no quarrel, of course, with the contention
that interrogation does not violate the Act per se. Blue Flash
Express, Inc., 109 NLRB 591. The General Counsel does not
argue otherwise. What he specifically contends is that "the
attendant circumstances surrounding the interrogations"
necessarily coerced the employees notwithstanding the out-
wardly friendly appearance of the discussions. I find ample
support for this contention in the record. The interrogation
was systematic, was conducted on an individual basis by
Company Vice President Lottes in his office, in a context of
Lottes' indications of opposition to the Union. Moreover,
and quite significantly, the instant case, unlike Burke Golf,
supra, involves inquiries aimed at ascertaining from their
fellows the identity of those employees responsible for
bringing the Union in and of other participants in the cam-
paign. "The Board holds . . . that interrogation which seeks
to place an employee in the position of acting as an informer
regarding the union activity of his fellow employees is coer-
cive." A bex Corporation, 162 NLRB 328, 329. And "the fact
that such interrogation was made in a casual manner during
a friendly conversation does not lessen its unlawful effect."
Ibid.9 As the Court pointed out in the lead case of Bourne
Co., supra, fn. 9, in which the interrogation was held not to
have exceeded permissible bounds, "The information
sought was quite general. `How is the union doing?"Are the
employees for the Union?' rather than specifically `Who are
the ring leaders?T 'Who has joined?' etc." 332 F.2d at 48.
Interrogation of the latter type is thus not "innocuous" and
requires justification. See N.L.R.B. v. Welsh Industries, 385
F.2d 538, 540 (C.A. 6, 1967). Here there was no attempt to
justify, Respondent simply denying that such questions had
been asked.1°
I accordingly find Lottes' interrogation of the employees
to have violated Section 8(a)(1) of the Act.
2. The promised wage increase
and its withdrawal
David Buchanan, who had been hired in 1966, spent 3
years on military service before returning to the Company
early in January 1972. On his return his starting wage was
$2.50 an hour, which was raised later that same month to
union meetings . I have already made contrary findings , but that apai t, such
contention entirely overlooks Villines ' testimony that Lottes asked him if he
knew anything about the Union, Buchanan 's testimony that Lottes asked him
if he knew about the Union and whether he thought it would do him any good
(admitted by Lottes), and of course Lottes ' further admissions that he had
asked eight or nine employees how they felt about the Union and specifically
asked Burns how the other employees felt about it, all of which established
at least that some interrogation occurred.
9 By the same token , Respondent 's good relations with other labor organi-
zations in other areas of its business , even if known to the motor shop
employees, would not dissipate the coercive effect. It is noted in this connec-
tion that at least one of the employees so interrogated, Burns, refused to
disclose the information sought. See Bonnie Bourne, d/b/a Bourne Co. v
N.L R. B., 332 F.2d 47, 48 (C.A. 2, 1964).
10 Briggs IGA Foodhner, 146 NLRB 443, also relied on by Respondent, is
similarly inapplicable . The Board there found no violation on a straight
application of its Blue Flash rule. The interrogation there was precipitated by
a claim of majority, and the employer communicated to the employees its
purpose of verifying that claim , simultaneously assuring them against recri-
mination.
$2.75 at Buchanan's request. On April 20, Buchanan re-
quested a further increase. Lottes invited him to his office
to discuss it, and they met there the next day, a Friday."
According to Buchanan, Lottes agreed to give him the raise,
effective the following Monday, and an additional one 3
months later, but then questioned him concerning the
Union, as described above, learning that Buchanan had
signed an authorization card, and said, "You will get the
raise unless the Union messes me up." When Buchanan did
not receive the raise in his pay on May 5, he asked Lottes
why and Lottes replied, again according to Buchanan, that
the promise had been conditioned on the Union's not
"mess[ing] him up."
Lottes testified he had promised the raise, "providing the
Union did not interfere in the contract or negotiations, or
anything to that effect." And the Company's asserted rea-
son for not fulfilling this promise, according to both Lottes
and Respondent's president, Buttrum, was the supervening
filing of the instant charge which alleged in part the giving
of wage increases since the filing of the representation peti-
tion. Disavowing any antiunion motive, Buttrum testified
that this decision had been made on advice of counsel and
applied throughout the motor shop.
The General Counsel views the evidence as establishing
a promised raise conditioned on cessation of the union ac-
tivity, and the withholding of the raise because of the failure
of the condition. I do not find the argument convincing.
Even assuming that Lottes used the phrase "mess up" rather
that "interfere" (which term appears twice in Buchanan's
own testimony), it is not inconsistent with Respondent's
position that the Union's selection as bargaining representa-
tive in the then pending representation proceeding could
conceivably lawfully inhibit unilateral wage action, at least
in respect to that portion of the raise that was not due until
July.
The filing and service of the charge precluded a fair test
of the issue which might otherwise have been presented
cleanly by a failure to grant the April portion of the prom-
ised raise . Such a failure, absent the charge, would at least
have rendered relevant The Food Mart, 158 NLRB 1294,
1300-1, and other related cases cited by the General Coun-
sel,12 By alleging in the charge, however, the giving of wage
increases to some employees in an attempt to undermine the
majority status of the Union, the posture of the matter
changed so that Respondent does not even contend, as the
General Counsel would have it, that it was "prohibited from
putting a wage increase into effect during the course of an
organizational campaign." Instead, Respondent asserts that
it decided to give no raises at all in the motor shop until
resolution of the pending charge specifically attacking the
granting of wage increases. I find the evidence insufficient,
in the circumstances, to disprove this asserted motive. Nor,
in the context of the' charge, can the withholding of the
increase be found to have reasonably tended to coerce the
employees. I conclude, accordingly, that Respondent did
not violate the Act either by the promise or the withholding
of a wage increase to Buchanan.
11 This was 6 days after Respondent 's receipt of the Union's bargaining
demand , 4 days after the filing of the representation petition , and 4 days
before the filing of the original charge herein.
12 But, Cf ., Paradise Bowl-O-Mat, Inc, 180 NLRB 699
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By coercively interrogating its employees concerning
union activities, Respondent has violated Section 8(a)(1) of
the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Respondent has not violated the Act by promising a
wage increase to, or withholding it from, David Buchanan.
REMEDY
days of the Order, what steps Respondent has taken to
comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
17 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
i4 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
In order to remedy the unfair labor practices found here-
in, my recommended Order will require Respondent to
cease and desist therefrom, and, in view of the systematic
nature of the conduct, to refrain from any like or related
infringement upon the Section 7 rights of its employees. In
order to effectuate the policies of the Act I shall also recom-
mend the usual posting of notices.
Upon the foregoing findings of fact, conclusions of law,
and the entire record herein, and pursuant to Section 10(c)
of the Act, I hereby recommend the following:
ORDER 13
Respondent, Swanson-Nunn Electric Company, Inc., its
officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Coercively interrogating any of its employees con-
cerning their or their fellows' union activities, views, or sym-
pathies.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively question any of our employ-
ees about their union activities, views, or sympathies,
nor will we question any of our employees about the
union activities , views, or sympathies of any of their
fellow employees.
WE WILL NOT in any like or related manner interfere
with the right of our employees to engage in organiza-
tional activity or collective bargaining or to refrain
from such activities.
SWANSON-NUNN ELECTRIC
COMPANY, INC
(Employer)
fectuate the policies of the Act: Dated By
(a) Post at its place of business at Evansville , Indiana,
copies of the attached notice marked "Appendix ." 14 Copies
of said notice , on forms provided by the Regional Director
for Region 25, after being duly signed by an authorized
representative of Respondent , shall be posted by Respon-
dent immediately 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 by Re-
spondent to ensure that said notices are not altered , defaced
or covered by any other material.
(b) Notify the Regional Director in writing , within 20
(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 direct-
ed to the Board 's Office , 614 ISTA Center, 150 W. Market
Street , Indianapolis , Indiana 46204 , Telephone 317-663-
8921.