Trumph Twist Drill Co.

National Labor Relations Board - Board Decisions

Aug 30, 1978

237 N.L.R.B. 1442 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Triumph Twist Drill Company and United Steelwork-
ers of America. Case 30-CA4252
August 30, 1978
DECISION AND ORDER
BY CIHAIRMIAN F\NNIN(G ANI) M\1: IBi RS Ptl1 Fl ()
XNI) TR I S[)D\I
On May 31, 1978, Administrative Law Judge Alvin
Lieberman issued the attached Decision in this pro-
ceeding. Thereafter. Respondent filed exceptions and
a supporting brief.
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 brief
and has decided to affirm the rulings. findings,' and
conclusions of the Administrative l.aw Judge and to
adopt his recommended Order. as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent,
Triumph Twist Drill Company. Rhinelander. Wis-
consin, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Substitute the following for paragraph l(e):
"(e) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
'Respondent has excepted to certain credihility findings made hs the
Administrative law Judge. It is the Board's established polic' not to over-
rule an Administrative Law Judge's resolutions with respect to credibhdil
unless the clear preponderance of all of the relesant evidence coinllslces us
that the resolutions are incorrect. S.andard DI)ri i lll Productls. 1 ., 91
NLRB 544 (1950), enfd. 188 F.2d 362 ((.A 3 1951). we have carefull,
examined the record and find no hasis for reversing his findings
Contrary to the Administrative L aw Judge. we do not find that the
circumstances of this case warrant a hroad order enjoining Respondent
from "in any other manner" infringing upon employee rights guaranteed in
Sec. 7 of the Act. Accordingly. we shall modify the Administratite I.au
Judge's recommended Order and notice im this respect
APPENDIX
Nori( FI To EMPI.OX[YEES
Posti D BnY ORDI)R 01: itle
N xI()N \ I \H()R RI I, lOiNS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportu-
nits to present evidence and arguments, it has been
decided that we have violated the National Labor
Relations Act. as amended. We have therefore been
ordered to post this notice and to carry out its terms.
Wt AI.i ol()I interrogate our employees about
their or other employees' activities on behalf of
the United Steelworkers Union, or any other
union.
W wil1t Nol threaten employees by telling
them that we would close our plant if the em-
ploxees selected the United Steelworkers Union,
or anm other union, as their collective-bargaining
representative.
W'i\I ll I Ns)I promise to promote our employ-
ees or to give them benefits to dissuade them
from joining. supporting, or helping the United
Steelworkers Union. or any other union.
Wi will N(ot prohibit our employees from
talking about. or in favor of. the United Steel-
workers U nion, or anx other union, in our plant
during nonworking times.
Wt \wuii N'o in any like or related manner
interfere with, restrain. or coerce our employees
in the exercise of their rights guaranteed in Sec-
tion 7 of the Act.
Wi wiil respect our employees' right to form
any union, to support any union, to help any
union, and to deal with us through any, union.
WI wvl .l also respect their right not to do any of
these things, except as required by law.
All our employees are free, without any objection
from us, to become or remain members of any union,
or not to become or remain members of any union,
except as provided by law.
TRIlIflI TWISI DRII.L COMPANY
DECISION
StAIEMENt OF JiHE CASE
Ai.tvN L1BIFRMAN Administrative Law Judge: The hear-
ing in this proceeding, with all parties represented, was
held before me in Rhinelander, Wisconsin, on April 13,
1978. on the General Counsel's complaint ' dated Septem-
ber 28, 1977, and Respondent's answer. The complaint al-
leges, and the answer denies, that Respondent violated Sec-
lhe comnipliint Vias issued pursuant to i charge filed on Juls 22, 1977
237 NLRB No. 154
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TRIUMPH TWIST DRILL CO.
tion 8(a)(l) of the National Labor Relations Act, as
amended,2 by threatening and interrogating employees,
promising benefits to an employee to induce him to refrain
from supporting a union, and unlawfully enforcing a rule
restricting solicitation.
Upon the entire record,3 upon my observation of the
witnesses and their demeanor while testifying, and having
taken into account the arguments made and the briefs sub-
mitted by the General Counsel and Respondent.4 I make
the following:
FINDINGS OF FACT
I JU RISDICTION
Respondent, an Illinois corporation, is engaged at Rhi-
nelander, Wisconsin, in manufacturing and selling twist
drills. During 1976, a representative period, Respondent
sold and shipped goods valued at more than $50,000 to
customers located outside the State of Wisconsin. Accord-
ingly, I find that Respondent is engaged in commerce with-
in the meaning of the Act and that the assertion of jurisdic-
tion over this matter by the National Labor Relations
Board is warranted.
II THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America is a labor organization
within the meaning of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
Since about January 1977,6 the Union has been engaged
in an attempt to organize Respondent's employees. The
Union has made no secret of its efforts in this regard, and
Respondent has known of the Union's campaign since its
inception.
The General Counsel asserts that during the Union's or-
ganizational activities, Respondent committed the unfair
labor practices set forth in the complaint. These allega-
tions, denied by Respondent, will be separately considered.
2 This section provides:
Sec. 8(a) It shall be an unfair labor practice for an employer -
(I) to interfere with, restrain, or coerce employees in the exercise of
the rights guaranteed in Section 7
Sec. 7, insofar as relevant. states:
Sec. 7. Employees shall have the right to self-organization, to form,
join. or assist labor organizations. to bargain collectively through repre-
sentatives of their own choosing. and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or
protection
3 Issued simultaneously is a separate order correcting inadvertent errors
in the stenographic transcript of the hearing in this proceeding.
4Although all the arguments of the parties and the authorities cited b5
them, whether appearing in their briefs or made orally at hearing. may not
be discussed, each has been carefully weighed and considered
As already noted, the complaint alleges that Respondent violated Sec.
8(a)(1) of the Act by interrogating and threatening employees. promising
benefits to an employee to induce him to refrain from supporting a union.
and unlawfully enforcing a rule restricting solicitation.
6All dates subsequently mentioned without stating a )ear fall within
1977.
A. The Interrogation
Without complying with any of the safeguards enumer-
ated in Struksne.s Construction Co.. Inc.. 165 NLRB 1062,
1063 (1967), employees were questioned about the Union
by Lloyd Miller, Respondent's vice president, and two su-
pervisors, Joe Haskens and Don Weise, who managed, re-
spectively, Respondent's centerless grinding department
and its fluting department. Employees were asked why
they needed a union, whether they supported the Union,
and whether they had signed cards for the Union.7
In Struksnes the Board set forth five criteria for de-
termining the lawfulness of interrogation of employees
concerning their relationship to a union. One of these, not
complied with here.8 is that "assurances against reprisal are
given." This being the case, I find that the questioning of
Respondent's employees was coercive and, therefore, in der-
ogation of their rights guaranteed in Section 7 of the Act.
Accordingly, I conclude that by coercively interrogating
employees concerning their attitudes toward, and activities
in support of, the Union, Respondent violated Section
8(a)(1) of the Act.
B. The Threats
In April 1977, on a day that union literature was distrib-
uted at the entrance to Respondent's plant, Adiran Tur-
geon, who was then employed in Respondent's heat treat-
ing department, was told by his department manager,
Howard Letson, that "if the union got into (the plant] Jim
Beck [respondent's president] would haul the place away."
In a similar vein, Anice Stein was told during her interro-
gation on May 26 by her supervisor, Joe Haskens, that "the
word is out, if the Union gets in this place will close." 9
It needs no citation of authority to establish that threats
such as those made by Letson and Haskens are violative of
Section 8(a)(1) of the Act.
T he emnployees interrogated, the times of their interrogation, and the
officials who questioned them were Elmer Pond. interrogated in April and
Ma' hY, respectliel). Miller and Haskens; Anice Stein, interrogated on
May 26 by Haskens. Lois Haese, interrogated in June or July by Weise; and
Raymond Duszsnskl. interrogated in July or August by Miller. My findings
as to Miller's interrogation of Pond and Duszvnski are based upon their
detailed testimony of the questions put to them by Miller and the circum-
stances under which the inquiries were conducted. Miller did not specifical-
ly den) that he interrogated Pond and Duszynski. Instead, Miller contented
himself with denying that he "ever questioned an employee about his or her
union sy mpathies" Miller's general denial in the face of precise testimony
to the contrary given by Pond and Duszynski is unconvincing and entitled
to no weight (C I' Uranga. d h a Paso Del Norne Oil Company of Eagle
Pans, 173 Ni RB 635. 638 (1968), enfd, 468 F 2d 1397 (C.A. 5, 1972)
8My discussion of only one of the Struksnes standards should not be
construed as an Indication that I am satisfied that the other four were met
Respondent contends that it is unlikely that such threats were uttered
because at all material times plans were afoot to expand its plant, not to
close it: and for the further reason that only its president and vice president.
respectisely. James Beck and I loyd Miller. have authority to make decl-
sions as to plant expansion or contraction. However, without explanation.
Respondent failed to call Letson and Haskens to the witness stand to refute
the statements attributed to them In view of this, I am unimpressed by
Respondent's argumenl "A litigant's unexplained failure to offer material
evidence warrants the inference that, if he adduced the evidence. it would
not support his position" Bechtel Coporoation. 141 NLRB 844, 852. In 9
11963) 1 o the same effect, see also Inierotate (Crcult. Inc, et al vs nited
Siltes. 3(t L S. 208. 226.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, I conclude that by threatening to close its
plant upon the Union's advent, Respondent committed
further violations of Section 8(a)(l) of the Act.
C. The Promise of Benefit
Elmer Pond, a rank-and-file employee in Respondent's
centerless grinding department, was a stanch adherent of
the Union. In its support, he distributed literature at the
entrance to Respondent's plant, solicited employees to sign
union cards, and organized and attended union meetings.
In or about the second week of June 1977, Lloyd Miller,
Respondent's president, spoke to Pond about the Union.
In the course of this discussion, Miller stated to Pond that
"if [he] played it the company way [he] could work . . .
into either a leadman or supervisor's position." '0
Pond received a similar offer about a week later. On this
occasion, while he and Joe Haskens, the manager of his
department, were talking about Pond's efforts in support of
the Union, Haskens said, as Pond related, that "if [he] quit
[his] union activity . . and got [his] head straight and ...
would work towards the company side, [he] could work
into this supervision deal or [a] better paying position."
Promises of benefit made by an employer to induce an
employee to forsake a union are prohibited by Section
8(a)(1) of the Act. N.L.R.B. v. Exchange Parts Company,
375 U.S. 405, 409 (1964). The promotion offers made to
Pond conditioned upon his quitting the Union fall within
this proscription.
Accordingly, I conclude that by offering to promote
Pond to dissuade him from supporting the Union, Respon-
dent again violated Section 8(a)(l) of the Act.
D. The Rule's Enforcement
At all material times there has been in effect in Respon-
dent's plant a rule concerning the transaction of noncom-
pany business. This rule, contained in a handbook issued
to employees,' provides:
NON-COMPANY BUSINESS
Company time and Company property is intended for
Company business. Transaction of personal business
or handling personal matters, including solicitation of
any kind, collections, passing out or distributing pam-
phlets, leaflets, etc., may not be done in work areas at
any time, and in non-work areas on Company time.
Although it does not attack the validity of the rule, the
complaint alleges that Respondent, in violation in Section
8(a)(1) of the Act, "enforced or administered [it] with the
l0 The findings in this paragraph are based upon, and the quotation ap
pearing in the text is taken from, testimony given by Pond. Miller denied, as
he put it, that he "bribed" Pond by "offerlingJ him a promotion if he left the
Union." I do not credit Miller's denial. At the time of the hearing, Pond was
in Respondent's employ. His testimony, adverse and damaging to Respon-
dent, was, therefore, given at considerable risk of economic reprisal, includ-
ing loss of employment. Having, thus, much to lose, his testimony was, in a
sense, contrary to his own interest and for this reason not likely to be false.
Federal Stainless Sink Div. of Unarco Industries, Inc., 197 NLRB 489. 491
(1972).
I I Resp. Exh. 2.
purpose of restricting employees from discussing unions on
its premises."
The law dealing with the right of employees to discuss
unions, to solicit on behalf of unions, and the times and
places where this may be done is well settled. "Since the
beginning of the administration of the Act, union solicita-
tion, the right of employees to discuss organization among
themselves, has been considered essential to the free exer-
cise of Section 7 rights." Hoerner Walforf Corporation, 227
NLRB 612 (1976). "The place of work is a place uniquely
appropriate for dissemination of views concerning the bar-
gaining representative .... So long as . . . the in-plant
solicitation is on nonworking time, banning of that solicita-
tion might seriously dilute [Section] 7 rights." N.LR.B. v.
Magnavox Company of Tennessee, 415 U.S. 322, 325 (1974).
It follows from these principles that an employer who
bans all union talk or solicitation on plant premises, which
necessarily includes a ban on such activity during non-
working time, violates Section 8(a)(l) of the Act. Capitol
Records, Inc., 233 NLRB 1041 (1977), and cases therein
cited. I find that this situation obtains here.
Thus, in April 1977, while Elmer Pond, who worked in
Respondent's centerless grinding department, was talking
with his supervisor, Evelyn Furyk, about union literature
he had, earlier that day, distributed at the plant entrance,
he was told by her, as he testified, that employees "were
not supposed to talk union on the company premises." On
the same day, orders of a similar nature were given to em-
ployees in Respondent's heat treating department by How-
ard Letson, their department manager.
On July 14, while Pond was at work, Furyk approached
him carrying Respondent's employee handbook and di-
rected him to read aloud the rule relating to the transaction
of noncompany business. After he did this, Furyk said to
him, as Pond related, that he "could not talk union on the
company premises [and that he] could be taken to the per-
sonnel office" for doing so.
It appears, therefore, and I find, that by prohibiting em-
ployees from talking about the Union in its plant,1 Re-
spondent enforced its rule dealing with noncompany busi-
ness in a manner restrictive of their rights under Section 7
of the Act, as alleged in the complaint.'
Accordingly, I conclude that by prohibiting employees
from discussing, or orally soliciting on behalf of, the Union
on its premises during nonworking time, Respondent once
more violated Section 8(a)(l) of the Act.
IV THE EFFECT OF RESPONDENT'S UNFAIR LABOR PRACTICES UPON
COMMERCE
Respondent's unfair labor practices occurring in connec-
tion with its operations set forth in section I, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
12 As I have noted, a prohibition of this nature. by reason of its breadth,
necessarily precludes such discussion during nonworking time.
3 On brief the General Counsel asserts that the "rule is an unlawfully
broad restriction on employees' solicitation and distribution rights" and
therefore invalid. However, the complaint does not allege that the rule itself
is unlawful, nor was this issue litigated. This being the case. I make no
finding as to whether the rule is or is not valid. Cf. Atkins Pickle Company.
Inc., 181 NLRB 935 (1970).
1444
TRIUMPH TWIST DRILL CO.
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
v. THE REMEDY
Having found that Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act,
by Order will require Respondent to cease and desist there-
from and to take such affirmative action as will effectuate
the policies of the Act.
On the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following:
CONCI USIONS OF LAW
I. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 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 the following conduct, Respondent has engaged
in, and is engaging in, unfair labor practices within the
meaning of Section 8(a)(l) of the Act:
(a) Coercively interrogating employees concerning their
attitudes toward and activities in support of the Union.
(b) Threatening employees with plant closure upon the
Union's advent.
(c) Promising to promote an employee to dissuade him
from supporting the Union.
(d) Prohibiting employees from discussing, or orally so-
liciting on behalf of, the Union on plant premises during
nonworking time.
4. The unfair labor practices engaged in by Respondent,
as set forth in conclusion 3 above, affect commerce within
the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 1'4
The Respondent, Triumph Twist Drill Company, Rhine-
lander, Wisconsin, its agents, successors, and assigns, shall:
1. Cease and desist from:
14 In the event no exceptions are filed as provided b, 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
(a) Coercively interrogating employees concerning their
attitudes toward, knowledge of, activities on behalf of, or
as to any other matter relating to, United Steelworkers of
America, or any other labor organization.
(b) Threatening its employees with plant closure or with
any other form or reprisal, or effectuating any such threats,
should United Steelworkers of America, or any other labor
organization, become the collective-bargaining representa-
tive of any of its employees.
(c) Promising or granting benefits to employees to dis-
suade them from joining, assisting, or in any manner sup-
porting United Steelworkers of America or any other labor
organization.
(d) Prohibiting employees from engaging in discussions
concerning, or orally soliciting on the behalf of, United
Steelworkers of America, or any other labor organization,
on plant premises during nonworking time.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, or to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection as guaranteed in Section 7 of the National La-
bor Relations Act, as amended, or to refrain from any or
all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a
labor organization as a condition of employment in con-
formity with Section 8(a)(3) of the Act.
2. Take the following affirmative action which, it is
found, will effectuate the policies of the Act:
(a) Post at its premises copies of the attached notice
marked "Appendix." 5 Copies of said notice, on forms
provided by the Regional Director for Region 30, after
being duly signed by its authorized representative, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in con-
spicuous places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify said Regional Director in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
" In the event that 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 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"
1445