U S Windpower, Inc

National Labor Relations Board - Board Decisions

Nov 23, 1984

272 N.L.R.B. 1211 (N.L.R.B. 1984)

U S WINDPOWER INC

1211
U S Windpower, Inc and Brotherhood of Teamsters
and Auto Truck Drivers, Local 70, International
Brotherhood of Teamsters, Chauffeurs, Ware
housemen and Helpers of America Cases 32-
CA-5848 and 32-RC-1856
23 November 1984
DECISION, ORDER AND
CERTIFICATION OF RESULTS OF
ELECTION
BY CHAIR11;IAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 20 July 1984 Administrative Law Judge
Richard D Taplitz issued the attached decision
The Charging Party filed exceptions and a support
ing brief, and the Respondent filed an answering
brief
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, 1 and
conclusions and to adopt the recommended Order
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis
missed
IT IS FURTHER ORDERED that the objections to
the election held on 21 September 1983 be over
ruled
CERTIFICATION OF RESULTS OF
ELECTION
IT IS CERTIFIED that a majority of the valid bal
lots have not been cast for Brotherhood of Team
sters and Auto Truck Drivers, Local 70 Interna
tional Brotherhood of Teamsters Chauffeurs War
ehousemen and Helpers of America and that it is
not the exclusive representative of the employees
in the unit herein involved
1 The Charging Party has excepted to some of the judge s credibility
findings The Board s established policy is not to overrule an administra
tive 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 re
versing the findings
In view of the judge s credibility findings Member Dennis finds it un
necessary to pass on the issue discussed in fn 8 of the attached decision
DECISION
STATEMENT OF THE CASE
RICHARD D TAPLITZ Administrative Law Judge
These consolidated cases were heard at Oakland Califor
nia on June 11 1984 The charge in Case 32-CA-5848
was filed on September 6 1983 by Brotherhood of
Teamsters and Auto Truck Drivers Local 70 Interna
tional Brotherhood of Teamsters Chauffeurs Ware
housemen and Helpers of America (the Union) The
complaint which issued on October 28 1983 and was
amended on May 29 1984 alleges that U S Windpower
Inc (the Company) violated Section 8(a)(1) of the Na
tional Labor Relations Act
On July 13 1983 the Union filed a petition for an
election in Case 32-RC-1856 Pursuant to a Stipulation
for Certification Upon Consent Election agreement ap
provecron August 16 1983 an election by secret ballot
was conducted on September 21 1983 among oper
ations production and maintenance employees of the
Company in an appropriate bargaining unit After the
election each party was furnished with a tally of ballots
which showed that 2 ballots were cast for the Union 28
ballots were cast against the Union and 15 ballots were
challenged On September 28 1983 the Union filed
timely objections to the conduct of the election and/or
to conduct affecting the outcome of the election On Jan
uary 12 1984 the Regional Director for Region 32
issued a report on objections order consolidating cases
and notice of hearing The Regional Director recom
mended that Objections 1 3 4 and 5 be overruled and
found that the conduct at issue in Objections 2 6 7 and
8 was the same as that alleged to constitute unfair labor
practices in Case 32-CA-5848 He therefore ordered that
those objections be heard and considered in the same
proceeding Cases 32-CA-5848 and 32-RC-1856 were
consolidated for the purpose of hearing before an admin
istrative law judge In the order the Regional Director
requested that the administrative law judge prepare and
cause to be served on the parties a report containing res
olutions of the credibility of witnesses findings of fact
and recommendations to the Board as to the disposition
of the outstanding objections No exceptions to the Re
gional Director s report or request for special permission
to appeal from his order were filed within the time pro
vided and by order dated February 2 1984 the Board
adopted the Regional Director s recommendation as con
tamed in his report
Issues
1 Whether the Company through its supervisor
Norman Reichert violated Section 8(a)(1) of the Act by
interrogating an employee about union matters during
the course of an interview in which the employee was
being considered for a supervisory position
The bargaining unit was
All full time and regular part time operations production and
maintenance employees employed by the Employer at its Livermore
facility Midway facility and its Dyer facility located at Livermore
excluding all office clerical employees professional employees
guards and supervisors as defined in the Act
272 NLRB No 195
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2 Whether the Company through its supervisor Ken
neth Geyer violated Section 8(a)(1) of the Act by asking
an employee when the next union meeting was going to
be held
3 Whether the Company through its supervisor Ken
neth Geyer violated Section 8(a)(1) of the Act by re
sponding to an employee s question as to whether the
Union had anything to do with a layoff by saying it
can t happen the union would put this company under
4 Whether the election should be set aside
All parties were given full opportunity to participate
to introduce relevant evidence to examine and cross ex
amine witnesses to argue orally and to file briefs Briefs
which have been carefully considered were filed on
behalf of the General Counsel Respondent and the
Union
On the entire record of the case and from my obser
vation of the witnesses and their demeanor I make the
following
FINDINGS OF FACT
I JURISDICTION
The Company a Delaware corporation with an office
and place of business in Livermore California is en
gaged in the manufacture and operation of wind ma
chines and the maintenance and management of wind
farms for the production of electrical energy During the
12 months immediately preceding issuance of complaint
the Company purchased and received goods or services
valued in excess of $50 000 directly from suppliers beat
ed outside of California The Company is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act The Union is a labor organization within the
meaning of Section 2(5) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A Background
The Company s headquarters is located in San Francis
co California It operates facilities at field locations and
maintains a field office at Livermore California
In June 1983 the Union was engaging in an organiza
tonal campaign among the Company s employees in the
unit described above
On August 25 1983 a number of employees were ter
mutated 2 On September 6 1983 the Union filed a
charge alleging that the Company violated Section
8(a)(1) and (3) of the Act by discriminating against em
ployees because of their union activity However the
complaint is very narrow There is no allegation that any
of the terminations were unlawful The complaint is lim
ited to allegations that the Company interfered re
strained and coerced employees through remarks and
questions that supervisors directed to employees The
General Counsel s case consisted of the testimony of two
witnesses Janelle Burns and Richard Ohlott Both of
those individuals were employees who were terminated
on August 25 1983
2 The witnesses referred to the termination as a permanent layoff
B The Conversation Between Ohlott and Geyer—
Facts and Conclusions
Richard Ohlott performed site analysis and field main
tenance work for the Company until his termination on
August 25 1983 Ohlott testified that in the early morn
ing of August 25 he had a 7 or 8 minute conversation
with Overhaul Supervisor Kenneth Geyer 3 in Geyer s
office at the Livermore facility Geyer did not supervise
Ohlott and they usually only saw each other in passing
Ohlott testified to the following When Ohlott reported
for work on August 25 1983 he found that he had been
locked out Geyer let him in Ohlott asked Geyer wheth
er there was going to be a layoff that day and Geyer
told him that there was Ohlott then asked Geyer wheth
er the Union had anything to do with the layoff and
Geyer replied it can t happen the union would put this
company under
Geyer who is no longer employed by the Company
in his testimony denied that the conversation ever took
place He specifically denied saying anything to Ohlott
about the Union He testified that the only time he spoke
to Ohlott that day was about 6 30 or 7 a m when he
went into the office that he shared with another supervi
sor James Webb and saw Ohlott with Webb Geyer
averred that he did not hear what Webb or Ohlott was
saying and that he simply asked Ohlott to leave the
office because he had to conduct some business with
Webb According to Geyer nothing was said about the
Union or a layoff
Geyer was a more believable witness than Ohlott in
terms of testimonial demeanor as well as in terms of the
substance of the testimony Ohlott was terminated on
August 25 The charge that was filed on September 6
could have led to his reinstatement with backpay Before
the incident in question the company officials had been
instructed by their attorney as to what their legal rights
and duties were Whether or not the company officials
followed the lawyer s advice it is extremely unlikely
that Geyer would gratuitously volunteer to a man who
was about to be terminated evidence that the termination
was unlawful My observation of Geyer as he testified
indicated that he was an intelligent individual who care
fully chose his words I credit his testimony to the effect
that he did not make the remarks attributed to him by
Ohlott and I do not credit Ohlott in that regard
C Janelle Burns Conversations with Reichert and
Geyer—Facts and Conclusions
Janelle Burns performed clerical work for the Compa
ny until her termination on August 25 1983 Though
Burns was not in the bargaining unit involved in this
case 4 she contacted employees at their homes to sign au
thonzation cards notified employees of union meetings
and attended such meetings
Sometime prior to July 21 1983 the Company decid
ed that it needed a personnel manager at its Livermore
' Respondent admits and I find that Geyer was a supervisor within the
meaning of the Act
4 A separate representation case petition in a clerical unit was filed in
Case 32—RC—I876 on August 10 1983
US WINDPOWER INC 1213
facility It was anticipated that the personnel manager
would interview employees for jobs author personnel
policies and procedures and handle other personnel mat
ters It was stipulated and I find that the personnel man
ager position was both supervisory and managerial
Burns applied for the personnel manager position by
writing to Norman Reichert the Company s vice presi
dent of finance and treasury 5 She followed up the letter
with a telephone call and succeeded in obtaining an
interview On July 21 1983 she met with Reichert for a
luncheon meeting at the Holiday Inn at Livermore Rei
chert questioned her concerning her experience educa
tion and other matters relating to her ability to do the
job Near the end of the interview Reichert told Burns
that he would probably want to hire someone who had
more personnel experience than Burns Another individ
ual was later hired 6
Burns testified that during the interview Reichart said
that he did not blame employees for wanting a union
that Reichert asked her how she felt about the Union
that Reichert asked her whether she had any union re
lated experience and keeping unions out of the compa
ny and that Reichert asked her whether she knew what
antiunion procedures were for the corporation Burns
also testified that she replied by saying that she did not
have any direct experience with union related matters
Reichert in his testimony denied the substance of
Burns assertions He averred that the only time the
Union was mentioned was when Burns told him that she
did not believe the Union would win the election and
that he did not reply to Burns on that subject because he
did not want to discuss the union situation He specifical
ly denied asking her how she felt about the Union
whether she had any union related experience or wheth
er she knew antiunion procedures for the corporation
The demeanor of both Burns and Reichert go.% e little
ground for questioning their veracity Burns appeared to
be an intelligent poised individual Her activities among
her fellow employees with regard to union activity indi
cated a concern with the rights of others However
some of her testimony was so in conflict with the im
pression she created on the witness stand that I am
forced to have reservations concerning her complete
candor On cross examination counsel for Respondent at
tempted to show that she had a bias against the Compa
ny that could affect her credibility Such matters must be
considered as one of many factors in evaluating credibil
ity even though a witness who has an interest in the
proceeding may be completely credible Burns overreact
ed She knew that the Union had filed unfair labor prac
lice charges against the Company claiming that the ter
minations were illegal She testified that it did not bother
her that she was laid off She further testified that she
was not bothered by the fact that other people had lost
their jobs She averred that it did not have anything to
do with her that she did not want to try to help the
others get their jobs back and that the others were on
5 It is admitted and I find that Reichert is a supervisor within the
meaning of the Act
6 There is no allegation that Burns was refused promotion to a supervi
sory position because of her union activity
their own just as she was While Burns may very well
not have wanted her job back I do not believe she was
quite as callous as she sounded with regard to the other
employees Her lack of candor in that regard raises
doubts as to her credibility generally
I have little reason to doubt the credibility of Reichert
It is true that there is a discrepancy between his testimo
ny and an affidavit that he gave to the General Counsel
on September 28 1983 However in context that dis
crepancy is more easily explained by an attempt on his
part to be completely honest rather than an attempt to
hide something In the affidavit he said that neither he
nor Burns discussed the Union and the subject of the
Union was not mentioned In his testimony on the stand
he said that the affidavit was in error and that upon
being interviewed by his attorney he remembered that
Burns had volunteered her opinion that the Union would
not win the election That testimony was offered on
direct examination
Reichert testified that he met with his attorney on July
16 to discuss labor relations matters and he received
advice in writing as to what he could and could not do
He also averred that when he interviewed Burns it was
not his intention that the personnel director would play a
significant role in the union organizing campaign He ex
plained that the Company was small the Company did
not look for a personnel manager who could do every
thing and with regard to union matters the Company
used its attorney
In sum I believe that Reichert was a more believable
witness than Burns I therefore credit Reichert s denial
that he made the remarks attributed to him by Burns and
I do not credit Burns 7
Burns also testified concerning an incident involving
Supervisor Geyer Burns did not work with Geyer and
Geyer did not supervise her Burns testified that during
the first week of July 1983 in the coffee area of the
Livermore facility Geyer asked her when the next union
meeting was going to be held and that she replied she
did not know Geyer testified that he did not recall
having such a conversation with Burns My evaluation of
the credibility of Geyer and Burns is set forth above I
believe that Geyer s recollection is more likely to be ac
curate than Burns flat assertion I therefore do not credit
Burns 8
7 An employer can lawfully engage in an antiunion campaign if that
campaign does not exceed the limits described in Sec 8(c) of the Act It
can also choose supervisors who will carry out lawful company policies
with regard to such a campaign In interviewing an applicant for a super
visory position the employer can ask questions that are legitimately relat
ed to the applicant s ability to carry out such company policies In view
of the credibility resolutions described above there is no need to draw
the line between such lawful interrogation of an applicant for a supervi
sory position and unlawful coercive interrogation of an employee where
the applicant for the supervisory position happens to be an employee
8 Even if Burns were credited the current Board law seems to indicate
that such a question standing alone would not violate the Act As the
Board held in Bardcor Corp 270 NLRB 1083 (1984) in which a foreman
asked an employee where a union meeting was to be held Such an iso
lated question in an atmosphere free of coercive conduct is not per se
unlawful Absent other evidence that would make it coercive it was not
unlawful See also Metz Metallurgical Corp 270 NLRB 889 (1984)
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As none of the allegations in the complaint are sup
ported by credible evidence I shall recommend that the
complaint be dismissed in its entirety
III THE OBJECTIONS TO THE ELECTION
The evidence adduced with regard to the objections
was the same as that which was brought out with regard
to the unfair labor practice allegations There was no
credible evidence to support the objections I therefore
recommend that they be overruled and that the results of
the election be certified
CONCLUSIONS OF LAW
1 The General Counsel has not established by a pre
ponderance of the credible evidence that Respondent
violated the Act as alleged in the complaint
2 The objections to the election in Case 32-RC-1856
have not been established
On these findings of fact and conclusions of law and
on the entire record I Issue the following recommend
ed 9
ORDER
The complaint is dismissed in its entirety
IT IS FURTHER RECOMMENDED that the objections to
the election held on September 21 1983 in Case 32-RC-
1856 be overruled and that the results of the election be
certified
9 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses