The Rogers Mfg. Co.

National Labor Relations Board - Board Decisions

May 11, 1966

158 N.L.R.B. 833 (N.L.R.B. 1966)

THE ROGERS MFG. CO. 833
employees in the following bargaining unit, and WE WILL embody in a signed
agreement any understanding reached:
All our production and maintenance employees including truckdrivers, but
excluding all other employees, office clerical employees, professional employ-
ees, guards, irregular part-time employees, and supervisors.
SOUTHBRIDGE SHEET METAL WORKS, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
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.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Boston
Five Cents Saving Bank Building, 24 School Street, Boston, Massachusetts, Telephone
No. 223-3300.
The Rogers Mfg. Co. and International Chemical Workers Union,
Local 777. Case No. 8-CA-3979. May 11, 1966
DECISION AND ORDER
On January 18, 1966, Trial Examiner George L. Powell issued his
Decision in the above-entitled proceeding, in which he recommended
that the complaint herein be dismissed in its entirety, as set forth in the
attached Trial Examiner's Decision. Thereafter, the General Counsel
and the Charging Party filed exceptions to the Trial Examiner's
Decision.
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 this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
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 the entire record in this case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, as modified herein.
While we agree with the Trial Examiner's recommendation that the
complaint be dismissed in its entirety, we rest our conclusion on the
following basis. In his Decision, the Trial Examiner considered all the
relevant testimony with respect to the sole unfair labor practice allega-
tion of the complaint. Although the Trial Examiner found it unneces-
sary to determine whether in fact Respondent had violated the At as
charged, he did clearly indicate that were he required to make such a
determination, he would credit Respondent's witnesses rather than
158 NLRB No. 81.
221-731-67-vol. 158-54
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
those of the General Counsel and dismiss the unfair labor practice
allegation of the complaint. In our opinion, the credibility resolutions
implicit in the Trial Examiner's Decision should be given full weight,
and, accordingly, adopting these findings, we conclude that Respondent
did not violate the Act and that the complaint should be dismissed in its
entirety. We therefore deem it unnecessary to consider whether the
complaint should be dismissed for the reasons relied upon by the Trial
Examiner.
[The Board adopted the Trial Examiner's Recommended Order
dismissing complaint.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, heard before Trial Examiner George L. Powell at Akron, Ohio,
on November 15, 1965, pursuant to a charge filed the preceding July 30 with an
amended charge filed August 3, 1965, and a complaint issued September 9, 1965,
presents the question of whether a foreman, Elmer Fulmer, during the month of
February 1965, kept under surveillance, or attempted to keep under surveillance, the
meeting place, meetings and activities of the Union or other concerted activities of
the employees of the Respondent.' Upon the entire record in the case, including
my observation of the demeanor of the witnesses, and after due consideration of the
brief filed by the General Counsel and the oral argument made on the record by the
Respondent, I will recommend that this complaint be dismissed in its entirety for the
reasons set out below.
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED
The pleadings establish, and I find, that Respondent in the operation of manufactur-
ing and distributing automobile parts and other products, annually ships and trans-
port products valued in excess of $50,000 from its place of business in Akron, Ohio,
directly to States other than the State of Ohio. Further, Respondent , in the course
and conduct of its business operations, annually purchases and receives goods valued
in excess of $50,000 from points outside the State of Ohio. I find Respondent is
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
The pleadings establish, and I find, that the Charging Party, herein called the
Union, is a labor organization within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The alleged surveillance
As background, the Union commenced its organizational campaign in Respond-
ent's plant 2 before December 1964 and won a Board election on December 11, 1964.
It was then certified as the exclusive bargaining agent on December 18, 1964. Accord-
ing to the Decision of Trial Examiner Louis Libbin (affirmed by the Board on
October 11, 1965, in 155 NLRB 117, Case No. 8-CA-3767) of which I take judicial
notice:
The Union then scheduled a mass meeting to consider contract proposals, among
other things; when the female employees were assembled in the plant lunch room,
La Rue [the 8(a)(3) in the case] informed them of the mass meeting and urged
all to attend. One of the employees posed the question about not wanting to
IThe original charge reached back more than 6 months to January 6 alleging 8(a)(1)
plus an 8 ( a) (3) discharge of Paul N. Crine plus an 8(a ) ( 5) refusal to bar'gain with
Charging Party. The amended charge was the same for the 8 ( a) (1) and ( 3) allegations
but added specific dates in April, May, and July, 1965 in addition to January 6 when
the alleged 8(a) (5) conduct occurred . However the complaint in this case Is limited
to 8(a) (1) allegations.
2 The charges filed note that Respondent had 125 employees.
THE ROGERS MFG. CO. 835
join the Union . La Rue replied that those who did not want to join were still
invited to attend the mass meeting but explained that they would not have a
voice in the proceedings.
The parties , thereafter met and bargained throughout, the month -of January . A special
meeting was then called in early February for "1. Report of negotiations" and "2.
Strike Vote [sic] will be taken." The date on the full page handbill was "Thursday-
February 3rd, 1965." 3 The place was the Midtown Motel and two meetings were
scheduled to handle each of the two shifts of employees. The notice stated these
were "Important Membership Meetings."
The issue in the complaint relates to whether Respondent's Supervisor Fulmer
attempted to keep the February 4 meeting, above, under surveillance by directing
employees to attend it and report back what they observed and heard. The General
Counsel adduced the following evidence on this point.
Employee Rearick testified as follows: "Mr. Fulmer come up to me and said,
`Don De Haven [Plant Manager] wants all you non-Union people to go down to this
Union meeting and try to get in and come back and report to the Company.' "
Rearick never replied to this, but later on Fulmer asked him if he was going to the
meeting and he related he replied, "No, I wasn't going to fight the Union." 4 He said
this was all he was told to do. Rearick then testified he overheard Fulmer tell Fore-
man Kirkpatrick, "De Haven wants you to send your non-Union people down to this
meeting." [Nothing was overheard, if said, about having them report back.]
Employee Gabor testified that Fulmer ". . . asked me to go to the Union meeting."
He asked Fulmer, "Why," and Fulmer replied, "to see what you can find out."
Gabor told Fulmer he didn't belong to the Union and wouldn't go to the meeting
and "that's all that was said."
Employee Herald testified that Fulmer "... asked me if I would attend this meet-
ing the Union was having and to report back to the Company." He did not reply
to the question . But he did attend the meeting . He further testified, "I went into
the meeting , and the meeting opened . We [sic] was asked to leave, and I arose and
left with no question ." He never discussed the attempted attendance of the meeting
thereafter with Fulmer or De Haven or , apparently , any one else in authority.5 On
cross-examination , he testified that he went to the meeting and attempted to vote,
which was what Fulmer advised him . The record on this point follows:
Q. Now, we would like to know if Mr. Fulmer advised you that he thought
you had a right to vote at that meeting?
A. No.
Q. He didn't advise you as to that?
A. No.
Q. But he did ask you to go down and try to vote?
A. To see what we could find out.
Q. To see whether you could vote or not?
A. Right.
Then on redirect examination the testimony was:
Q. At the time Mr. Fulmer asked you to go to the meeting , did he at that
time say anything at all concerning your voting the strike vote?
A. No, not for the voting part.
Q. Now, once again , what is your recollection as to what Mr. Fulmer said?
A. To attend the meeting to see what information we might find.
$ The correct date was Thursday , February 4, 1965, and "some of the copies" were
corrected . This is mentioned only because of possible confusion and comment it could
cause among the employees.
* In reply to cross-examination , he said he was never asked to "fight the Union."
s Based upon the following transcript testimony of Herald , this answer appeared to
surprise the General Counsel.
Q. On the day following or within the next few days following, did you have any
further discussions or additional discussion with Mr . Fulmer?
A. No, none. -
Q. Did you discuss your attempted attendance at the meeting with either Mr.
-- Fulmer or Mr. DeHaven?
A. No, sir.
Q. After you had attempted to attend the meeting, did you describe what-happened
while you were there at all to Mr. Fulmer ? - - • - .
A. That I don't recall if I did. ,
Q. All right.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
But on recross he testified:
Q. 'Why did you go to that meeting in the first place?
A. I was asked to go, for one reason.
Q. And you were-you went to find out whether you could vote or not on
the strike issue?
A. To gather information on it.
Q. On the strike issue?
A. On the strike vote that day-.
Q. That's all I wanted to know.
The above three witnesses were all the General Counsel had on the allegations in
the complaint and the above testimony is substantially all that was given on the
point.
However the General Counsel did call two other witnesses for "background."
One, Minnie Edwards, testified that Kirkpatrick wanted her to sign a paper that she
did not want the Union. She believed him to be a supervisor. This happened 7 or 8
months before the charge of July 30 was filed and at a time when Kirkpatrick was
not a supervisor.6 The other witness was Ruby Bishop whose testimony, even if
credited, was that 8 months before the charge was filed in July, De Haven had told
her to stop telling the girls that the Company would fire the union girls! She also
testified that in February 1965 (within 6 months of the July charge) she had a
conflict with her supervisor in the pressroom and was able to transfer out. By innu-
endo she was able to make the transfer because she told management representatives
she had not voted for the Union. There was no direct proof of partiality based upon
her vote and the General Counsel did not allege it as a violation in his complaint.
It is a mystery why these two witnesses were called for "background," particularly
when Trial Examiner Libbin in Case No. 8-CA-3767, supra, on July 26, 1965
(almost 4 months before the instant case was tried before me) found Respondent
guilty of violations of Section 8(a)(3) and (1) in the discharge of La Rue. Surely
this is not just evidence "left over" from the La Rue case which should be used some-
where. La Rue, a union trustee and a member of the Union's negotiating committee,
was discharged on February 2, 1965, just 2 days before the meeting the above three
employees allegedly were asked to attend and report back. Trial Examiner Libbin
found La Rue's discharge to have been made by Respondent to discourage member-
ship in the Union in violation of Section 8(a) (3) and (1) of the Act. He ordered
Respondent to reinstate her with full backpay and to cease and desist from "any other
manner" interfering with the Section 7 rights of employees to form, join, or assist
the Union or any other labor organization. Not only was Trial Examiner Libbin's
decision issued before the instant case was tried, but the Board's affirmance of his
decision in 155 NLRB 117 was issued more than a month before the instant case
was tried.
Respondent's Case
General Manager Loper credibly testified that Plant Manager De Haven asked
him if nonsalaried employees in the unit represented by the Union could vote in the
strike vote meeting even though they were not union members. Loper checked out
the question with his labor relations consultant and was told they could vote. He
relayed this information to De Haven. Loper understood that certain nonunion
employees had raised the question before their supervisors and the point was relayed
to him through De Haven.
The treasurer and controller of Respondent, McMahon, testified he was also office
manager and performed personnel functions at the plant. He said the Union had
won the election by "a very small majority ... approximately seven or eight votes."
This fact, he said, caused a "split shop" and "a good portion of the people" were
"antagonized." He was present when the labor relations consultant reported his
conclusions to Loper as set out above, and he corroborated Loper's testimony.
Fulmer testified that De Haven advised him of the rights of nonunion employees
to vote in a strike vote meeting. He said he had had four girls ask him those ques-
tions. His testimony is:
They were concerned about their job and wondered if they could vote in the
strike vote, and I told them as far as I could see they had a perfect right to go
down and protect their jobs, if they wanted to, and I told-also told them if they
were not allowed to vote, to leave the place and not to argue about it.
G From credited testimony of General Manager Loper as to when Kirkpatrick became
a supervisor.
THE ROGERS MFG CO 837
Fulmer categorically denied telling Rearick "to go down to that meeting and come
back and report " His advice to all employees was if they were inclined to the
Union , that was their prerogative If they were not, that was their prerogative, also'
He never talked to Rearick about voting nor to Gabor nor to Herald about "any-
thing " He identified three of the four employees who had asked him the question
if they could attend the union meeting and vote His testimony was not shaken on
cross-examination and neither the General Counsel nor Respondent called any of
those persons identified to testify Having the names of witnesses who could contro-
vert his testimony, if that were the fact , the General Counsel has the burden to pro-
duce the evidence under these circumstances
I would be inclined to credit Fulmer 's testimony over that of Rearick , Gabor, or
Herald Not only did he create a more favorable impression as a witness by testi-
fying in a candid and direct fashion but also there are elements in the testimony of
General Counsel 's witnesses that tend to create doubt as to their veracity For
example, Herald he testified that he went to the meeting because De Haven told
him to go and report back He went to the meeting but he never reported back He
never explained why he only did one half of what had been requested if in fact, he
had been told to go and report back Respondent never followed up either Further,
the three General Counsel 's witnesses seemed to know very well their little short
story but little else about the matter which had taken place 9 months before the
trial The inherent probabilities are that the nonunion employees were told they
could go to the strike vote meeting under the circumstances of the case
But it isn 't necessary to determine credibility in this case to see if the General
Counsel sustained his burden of proof There are at least two other grounds to be
considered before turning to credibility of witnesses
Assuming for the moment , that the witnesses for the General Counsel were credi-
ble, the complaint should be dismissed , and I will so recommend , on the distinct and
separate grounds of (1) Administrative practice and fairness , and (2 } Di minimus
and redundancy
1 As to the ground of administrative practice and fairness , neither the General
Counsel nor Respondent should have more than one hearing on alleged unfair labor
practices which could have been heard at the first hearing absent "newly discovered"
evidence (Another example not pertinent here would be a heai ing conducted in
a prejudicial manner in the first instance ) Let me expand this , a respondent, be it
an employer or a labor union, should not be put to the burden of defending a series
of trials involving matters which could have been brought to light in its first trial
A hearing was heard in May 1965 before Trial Examiner Libbin concerning unfair
labor practices in early February 1965 The allegations in the instant proceedings
relate to alleged matters occurring 2 days after the discharge which led to the case
before Trial Examiner Libbin , and 3 months before that case was heard There was
no excuse given for a charge being filed in June on this matter nor was there an
excuse given by the General Counsel for not litigating this case in May 1965 before
Trial Examiner Libbin rather than in November The General Counsel was specifi-
cally asked by me
TRIAL EXAMINER Now, can you tell me, Mr Szabo, why allegation in this
case was not involved and tried in the hearing on May 12th and 13th in
[Case No ] 37679
Mr SzAno The only way I can answer that, Mr Powell , not having been
involved in any of these cases prior to this assignment , would be simply that
the 3767 , as I recall , was a charge that was filed and alleged only the discharge
of Sarah LaRue , and I can only conclude that the subjects which are of this
nature , or I should say, the subject of the present complaint , were either not
presented-that 's actually the only thing I can say is that they were not presented
to the Board at that time by the Charging Party
TRIAL EXAMINER And it wasn't run into by the investigation by the
Region-
Mr SZABO To my knowledge that is a correct statement , that it was not
TRIAL EXAMINER So really, your answer is you don't know
Mr SZABO Actually that 's it, yes I don't know
The Board , in Peyton Packing Company, Inc, 129 NLRB 1358, 1360 (January
1961 ), in talking about pending charges said , "Generally speaking, sound adminis-
trative practice , as well as fairness to respondents , requires the consolidation of all
pending charges into one complaint The same considerations dictate that, wherever
practicable, there be but a hearing on all outstanding violations of the Act involving
the same respondent To act otherwise results in the unnecessary harassment of
respondents [Citing See NLRB v Thompson Products, Inc, 130 F 2d 363,
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
366-367 (C.A. 6), and Monroe Feed Store, 112 NLRB 1336, 1337 [Emphasis sup-
plied]." The Board then cited the exceptions to this rule of newly discovered evidence
or prejudice, as set out above. Accordingly, the Charging Party in the first instance
and the General Counsel in his subsequent investigations bear the reasonable respon-
sibility to litigate all, or forget , possible unfair labor practices which in point of time
could be litigated in a hearing. Merely because a Charging Party files a timely
charge under the Act does not mean the General Counsel is required to proceed to
complaint and trial. His discretion under the Act and the responsibility of the
Board in making ultimate findings based on reasonable administrative practices lies
at the very heart of the policies and purposes of the Act. It is inconceivable that
a charging party could withhold knowledge of certain unfair labor practices while
filing charges based only on other unfair labor practices, and, after the first prosecu-
tion of Government expense file a new charge for another trial. This would be
harassment of respondents, wasteful of public funds and against the public interest.
Accordingly, it would not effectuate the purposes of the Act for the Board to engage
in several trials when one trial absent the exceptions of legal "newly discovered evi-
dence" or "prejudice," is available to litigate all the issues involved.
2. As to the second ground of die minimus and redundancy, again assuming that
the General Counsel established the violation alleged by a preponderance of the
evidence, we have 3 employees out of 125 told to go to a strike vote meeting and
report back. They were members of the unit of employees who would be involved
if there were to be a strike. These are isolated instances involving no pattern of
illegal antiunion motive. Obviously this had little or no effect or impact on their
Section 7 rights, or they would have been brought to the attention of the necessary
parties. No charge based thereon was filed for almost 6 complete months. The
point of redundancy is even clearer. A cease-and-desist order here would be no
more effective than the one in 155 NLRB 117 and there is no need to spend time
and money in this situation with the workload of the Board at its all time peak
capacity.
Accordingly, I recommend the complaint be dismissed in its entirety.
Local Union No. 164, International Brotherhood of Electrical
Workers, AFL-CIO and Board of Education of the Township
of Ridgewood. Case No. 29-CC--84. May 12,1966
DECISION AND ORDER
On January 11, 1966, Trial Examiner Phil Saunders issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in and 'was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent, and the General Counsel and Breen
Iron Works, Inc., a. party in interest, filed exceptions to the Decision
and supporting briefs. The Charging Party also filed exceptions to
the Trial Examiner's Decision and a brief in answer to the Respond-
ent's exceptions and briefs.
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 this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
158 NLRB No. 11.