U.S. Industries, Inc.

National Labor Relations Board - Board Decisions

Nov 24, 1972

200 N.L.R.B. 466 (N.L.R.B. 1972)

466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Con-Plex Division of U.S. Industries , Inc. and Charles
R. Morrison . Case 16-CA-4572
November 24, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
On June 1, 1972, Administrative Law Judge'
James T. Rasbury issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent filed a brief in answer to the General Counsel's
exceptions and also a brief in support of its cross-
exception.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
i The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Trial Examiner: This proceeding was
heard before me in Fort Worth, Texas, on March 2 and 3,
1972, upon the complaint of General Counsel and the
answer of Con-Plex Division of U.S. Industries, Inc.,
hereinafter referred to as Respondent.' The complaint
alleges violations of Section 8(a)(1) of the Labor Manage-
ment Relations Act, hereinafter referred to as the Act, on
the part of the Respondent.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
' The original charge was filed December 1, 1971, by Charles Morrison
on behalf of himself and 21 named individuals, and complaint issued
January 17, 1972 The name of the Respondent was incorrectly set forth in
the original complaint and following a motion to dismiss or correct filed by
Respondent, a new charge was filed on February 2, 1972, and complaint
issued February 3, 1972 All dates hereinafter are 1971 except where
otherwise indicated
witnesses, to argue orally and to file briefs. The parties
filed briefs and they have been carefully considered.2
Upon the entire record of the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Delaware corporation maintaining
plants in several States of the United States, including the
facility involved in this proceeding which is located on
Highway 67 in Midlothian, Texas. Respondent is engaged
in the construction of concrete light standards for the
Dallas-Fort Worth Regional Airport Authority. During the
past year, Respondent in the course and conduct of its
business operations, purchased, transferred, and delivered
to its Midlothian, Texas, plant goods and materials valued
in excess of $50,000, which goods and materials were
transferred to the plant from States of the United States
other than the State of Texas. On these admitted facts, I
find that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issues involved herein might be stated in the form of
two questions : ( 1) Did Respondent, in violation of Section
8(a)(1) of the Act , interrogate its employees , create an
impression of illegal surveillance of the employees' union
activity, and/or threaten to close its plant if the Union got
in? (2) Did Respondent discharge a number of employees
on November 30 and /or allegedly refuse to reinstate them
on December 1, because of their participation in protected
concerted activities and, thus, violate Section 8(a)(1) of the
Act?
B. Background Facts
Respondent's plant involved in this proceeding is an
open area of some 28 acres located adjacent to Highway 67
in Midlothian, Texas, where Respondent is engaged in the
manufacturing of concrete light standards that will be
utilized by the Dallas-Fort Worth Regional Airport
Authority. All work is performed out in the open and the
only buildings are of temporary construction.
The work area is laid out in three production lines-one
line is fascia, one columns, and one beams-all performing
essentially the same kind of work. All the employees
involved herein worked on the column line. The total
daylight work force numbered 220 employees. The men
worked in crews of four or five men each. The principal
issue in the instant case centers around the conduct, on
November 30 and December 1, of four crews along with
their crew leaders-a total of 22 employees-and manage-
2 Following the receipt of briefs from the parties , a motion to strike a
portion of the General Counsel 's brief or reopen the hearing was filed by the
Respondent 's counsel General Counsel responded by indicating he did not
oppose the motion to strike Therefore , it is ordered that the words
commencing, "It is submitted ," at 1 24, p 14 and continuing thereafter
through the words "Counsel's theory" in the fourth line on p 15 of the
General Counsel's brief shall be and hereby are stricken
200 NLRB No. 78
CON-PLEX DIV OF US INDUSTRIES
merit's response thereto in addition to some alleged
unlawful coercive and interfering comments by supervi-
sors
More specifically the work involved the building or
preparation of a form about 30 feet long and 2 or 3 feet
wide into which was placed electrical conduit and then
concrete was poured into the form. After a certain steam
drying process, the forms would be removed, the columns
subjected to further "heat treat" curing, and then the light
standard would be sandblasted or finished off to specifica-
tions. The color specifications were particularly rigid, and
management contended this was a major concern because
each column or standard had a value of $1,600 and was
subject to (and sometimes incurred) rejection because of
failure to meet the required architectural color specifica-
tions (See Resp Exh. No. 5). The job started in May and
was scheduled for completion in mid-December, although
it had not been fully completed at the time of this
hearing-March 1972.
According to the testimony of Charles Morrison, the
Charging Party herein, he had been hired in September as
a crew leader. Shortly after Morrison started to work, a
number of employees complained about the working
conditions and when other efforts to contact a union
organizer or business agent failed, he (Morrison) made
arrangements through his former mother-in-law (a former
union representative) to contact a union representative3
Thereafter, an initial meeting with a machinist union
representative occurred on or about October 26 There was
considerable discussion on the job relative to the pluses
and minuses of a union. According to the testimony of
Floyd Burns, a crew leader, sometime around November 1,
Clyde Steil, the foreman, called Burns off to one side away
from the production line and asked, "What's this about a
union?" Burns replied that there had been a meeting, and
then Steil asked, "Well, what was the results?" Burns then
expressed his opinion in favor of the union to which Steil
responded, according to Burns, that he was personally
opposed to the Union and the Company was against the
Union. Burns further testified that around November 15,
Steil again called Burns off to one side of the production
line and inquired as to how the union was going. Burns
replied, "Well, it doesn't look too good. We haven't been
able to sign up enough men to help us."
Sometime around November 3 or 4, according to
Morrison's testimony, he was sitting in the toolshed eating
his lunch with Steil when Steil questioned him about the
union meeting--where it was held and how many had
turned out Following this they discussed or argued the
merits of unionism, with Steil expressing himself in
opposition to unions and Morrison disagreeing. Steil was
unable to recall any specific conversations with either
Burns or Morrison although he acknowledged that the
Union was discussed rather freely and openly on the job.
Steil denied ever having said the Company was opposed to
d Employee interest in the Union was apparently minimal and we are not
herein concerned with organizational misconduct or legal problems other
than the alleged 8(a)(I) remarks that will be discussed hereinafter As
General Counsel accurately noted in his brief, "inspite of the efforts of some
of the employees, the Union campaign never really got off the ground"
467
unions. He testified that the Company had unions at other
locations.
Morrison testified that sometime around November 10,
Tom Wilson, who was the plant superintendent, walked by
where Mornson and Howard Hanna were working and
while looking at them said, "Well, now I know who the
business agent is, and I know his assistant , William
Howard." According to Mornson, this comment was not
acknowledged in any way by either Morrison or Hanna
and nothing further was said by Wilson.
According to the testimony of Morrison, he had frequent
conversations with VanDevender-the project engineer
who served as acting foreman in place of Stell from
November 22 until about December 15 The conversations
were of a general nature regarding many subjects including
unions, but Morrison testified that VanDevender told him
"the Company would never go for a umon, that they would
close the plant down first." VanDevender acknowledged
having had many conversations on a great variety of topics
with Mornson and acknowledged that he might have said
something like the Company would never go for a union
and would close the plant down first, during his many
exchanges with Morrison. However, VanDevender testified
that he attended the management seminar (held by
Respondent on November 12), at which time he was
advised concerning the "dos" and "don'ts" toward unions
and that Mr. Ashley, the area manager , specifically
instructed him not to talk with employees about unions.
VanDevender testified he followed the instructions. (In
which event, his union conversations did not occur during
the period of time he served as an acting foreman.)
C. The Events of November 30 and December 1
The weather was undoubtedly uncomfortably cool on
the morning of November 30. Management's records
indicate it ranged between 42 and 44 degrees. Bums and
Morrison testified it was rainy on November 30. The
Company records only indicated it was cloudy.
Morrison testified that the men in his crew and others
working alongside him (totaling about 12 employees)
complained of the cold and about 9 a.m. he asked Billy
VanDevender if it would be permissible to build a fire.
VanDevender replied in the negative, but indicated he
would make a further inquiry. A short time later,
VanDevender advised Morrison that Tom Wilson had said
there could not be any fires on the job. Later in the
morning, about 10 or 10:30 a.m., the weather was still
disagreeable and according to Morrison after he had
checked with the crew leaders, Peter Griggs, William
Griggs, and Floyd Burns, the men in those three crews,
plus his own, were ready to go home "if we couldn't have
fires." This was reported to VanDevender who asked the
men to hold off until he could talk to Wilson again. When
the answer remained "no fires," some 20 employees left the
job.4
4 The record is less than crystal clear as to the exact number of
employees involved The complaint sets forth the names of 22 employees,
including Armando Gutierrez and Ralph Johnson The General Counsel
was apparently satisfied from the testimony that Armando Gutierrez was
not present on November 30 and was incorrectly named in the complaint
(Continued)
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Apparently it was necessary for the men to go to the
toolroom before leaving the job and there VanDevender
again tried to encourage the men to remain and indicated
to them that they would be "quitting" if they left thejob
Burns testified he said they (meaning all the men who were
walking off) were not quitting, "We'll he back in the
morning, ready to go to work." The men met in the parking
lot and all agreed to come back to work the next morning.
The following morning, at the regular starting time, most
of the men who had walked off on November 30 were in
the toolroom.s
Just what occurred in the toolroom on December 1 is in
direct conflict General Counsel's witnesses testified that
VanDevender made some comment to the effect, "what are
you fellows doing here, you quit, we are not hiring." Tom
Wilson is reported to have said, "What are you doing here?
We presumed you quit yesterday. You walked off the job
Turn in your hard hats, and get off the premises."
According to Respondent's evidence, VanDevender,
Wilson, and Ashley all walked into the toolroom at the
same time, having proceeded there from the office where
VanDevender had parked his company pickup truck. On
the way walking down to the toolshed, it had been decided
that Tom Wilson would act as the company spokesman.
According to Wilson, he asked Peter Griggs what they
were doing there and Griggs said, "We're ready to go to
work." Wilson then asked, "Are you ready to go to work
without fires?" To which Griggs responded, "No, if we go
to work today we are going to have to have fires." To
which Wilson responded, "Well, we won't permit fires on
this lot. We didn't allow them yesterday and we won't
allow them today." Griggs then commented that other
construction companies allowed fires. The testimony of
Ashley and VanDevender corroborated Wilson's testimo-
ny
A number of the men turned in their hard hats and left
the job. After gathering on the parking lot, the group
decided to go to a cafe in Cedar Hill There they decided to
go to the Labor Board to see what could be done about
getting their jobs back After going to Dallas and being
instructed that the Regional National Labor Relations
Board office was in Fort Worth, the group authorized
Morrison, Burns, Bowman, and Knowles to go to Fort
Worth and file charges on their behalf.
D Analysis and Legal Conclusions
All of the interrogation or coercive comments that are
alleged to have occurred took place between supervisors
and there is no proof in this record that it was overheard by
rank-and-file employees, or in any way interfered with,
restrained, or coerced employees in the exercise of their
rights as guaranteed by Section 7 of the Act Morrison,
In his brief, he moved to have Armando Gutierrez' name deleted from the
complaint Ralph Johnson's name was included in the complaint
VanDevender credibly testified that Ralph Johnson was attending his aunt's
funeral on November 30 and the daily timesheet for November 30 (Resp
Exh No 6) indicated Johnson's absence for the entire day
Peter Griggs testified that Armando Gutierrez, Efrain Martinez.
Reynaldo Trevino, and Juan Rodriquez were late in arriving and that he
saw their car entering the parking lot as he was leaving None of these
individuals came forward as witnesses to testify Evidence that these men
ever offered to return to work is lacking General Counsel explained at the
Burns , and Peter Griggs had titles of leadmen, but each
was responsible for the work performance of his respective
crew. Morrison testified that he told his crew what to do
and he helped them do it. Burns was more candid when he
acknowledged, "I had pretty good responsibility." He
testified that he directed the efforts of his crew in building
the forms and that he had the authority to report to Mr
Steil if a man "didn't do what he was supposed to, or didn't
do what I told him, just to come tell him [Steil]." In
response to the question, "And then what would he [Steil ]
do')" Burns responded, "He told me he'd get rid of him."
While it is clear that Morrison, Burns, and Griggs were
working supervisors it is equally clear they had the
authority to make recommendations that would effect the
employer-employee status of the men in their respective
crews.6 The testimony indicates that their responsibility in
directing the efforts of their respective crews was more
than routine or clerical in nature and I so find. The crew
leader received a higher rate of pay than the other
members of his crew and had skills not possessed by the
rank-and-file employees (i.e. ability to read blueprints).
The evidence as to the statement alleged to have been
made by Tom Wilson relating to the identity of the
business agent and assistant business agent is too vague
and ambiguous to have any real meaning, if indeed the
remark was made Morrison's testimony was inaccurate as
to the employees who left work on November 30, as to the
employees who were present and departed on December 1
and he acknowledged a misrepresentation in his applica-
tion for employment. For these reasons, I am not able to
credit the testimony of Morrison.
The alleged conversations between Steil and Morrison,
and Steil and Burns , assuming they did occur, were of a
most casual and innocuous nature and can hardly be said
to have interfered with, restrained, or coerced the employ-
ees The only possible statement made that might be
violative of the Act was VanDevender' s statement to
Morrison relating to the closing of the job in the event of a
union. Based on the testimony of VanDevender, I find this
statement was made when VanDevender was the quality
control engineer at a time when he was totally without
supervisory authority and the remark could not be
attributable to the Respondent. Such a statement made by
a naive young engineer in his firstjob following graduation
could not possibly have had a "chilling" effect on
Morrison. For the reasons indicated above, I will recom-
mend dismissal of the alleged interrogation, threats, and
remarks tending to create an impression of surveillance.
The action of the employees on the morning of
November 30 in leaving the job was clearly protected
concerted activity. N L R.B v. Washington Aluminum Co.,
370 U.S 9 (1962) The weather was uncomfortably cool
hearing that despite his efforts he had been unsuccessful in reaching any of
the employees involved herein except the three that testified-Peter Griggs,
Floyd Burns, and Charles Morrison
6 Sec 2( 11) defines a supervisor The term "supervisor" means any
individual having authority, in the interest of the employer, to hire , transfer,
suspend, lay off, recall , promote, discharge , assign, reward , or discipline
other employees, or responsibly to direct them , or to adjust their grievances,
or effectively to recommend such action, if in connection with the foregoing
the exercise of such authority is not of a merely routine or clerical nature,
but requires the use of independent judgment
CON-PLEX DIV OF US INDUSTRIES
and the employees had a protected right to concertedly
protest the Respondent's refusal to allow open fires.7 In
support of this right they walked off the job and became
economic strikers There is no proof in the record that they
had been discharged or had been replaced as of 7 a.m. on
December 1 when they returned to works This case turns
on the truth of what occurred at the toolshed on December
1. While neither Burns or Morrison testified to any
mention of fires by management, the testimony of Peter
Griggs tends to support the testimony of Tom Wilson who
was, of course, corroborated by Ashley and VanDevender.
It seems more logical that Griggs would not have found it
necessary to comment about the practice of other compa-
nies allowing fires, if the employees had presented
themselves for work without reservations or conditions
attached to their return to work. Weatherwise, December 1
was a day very similar to November 30 and it seems logical
that Respondent would have inquired concerning the
willingness of the employees to work under the same
conditions as had prevailed the day before. I credit Tom
Wilson's version of the conversation that transpired on
December 1 and in so doing, find that the employees
involved failed to make an unconditional offer to return to
work. I find it totally incongruous with the facts of the
r While this case does not turn on the motivation of the Respondent in
its course of conduct, the record is abundantly clear that the rule against
open fires was reasonable and was uniformly enforced
H The General Counsel contends the employees were discharged and
analogizes the instant situation to Tonkawa Refining Company, 184 NLRB
No 6, enfd sub nom N L R B v Tonkawa Refining Company, 434 F 2d 1318
(C A 10) In Tonkawa the employees were told not once, but several times,
by the plant manager that they were regarded as "quits " In Tonkawa, at a
meeting of the striking employees called by Respondent, the Respondent's
counsel told the employees they would be considered as having quit their
jobs if they failed to show up for work the next morning I cannot regard the
casual comment by an acting foreman, as in the instant case, as having the
same authoritative effect as the comments by the plant manager and
attorney in the Tonkawa case Obviously the employees involved herein did
not regard VanDevender s comment as meaningful , because they returned
469
business world that Respondent would have denied these
employees their jobs-absent special concession demands
-when the employees were experienced and badly
needed to complete a project that was already beginning to
be behind schedule.
In summary, I find that convincing evidence is lacking to
sustain the allegations of unfair labor practices on the part
of Respondent. Accordingly, I shall recommend the
dismissal of the complaint 9
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(6) and (7) of the Act.
2. Respondent has not engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 10
ORDER
The complaint is dismissed in its entirety
the next morning as they said they would
9 Respondent urged in its brief that Respondent be reimbursed costs and
expenses in accord with Tndee Products, Inc. 194 NLRB No 198 The
motion is denied While the Trial Examiner has recommended dismissal of
the complaint in its entirety, the decision is on the basis of resolving
credibility in favor of Respondent's witnesses vis-a-vis the witnesses
appearing for General Counsel and not because the complaint was either
frivolous or clearly unwarranted
10 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