Victor Comptometer Corp.

National Labor Relations Board - Board Decisions

Sep 8, 1976

225 N.L.R.B. 1226 (N.L.R.B. 1976)

1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ertl Company , Division of Victor Comptometer Cor-
poration and United Automobile, Aerospace & Agri-
cultural Implement Workers of America, UAW.
Case 38-CA-2585
September 8, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On June 3, 1976, Administrative Law Judge Sid-
ney J. Barban issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in answer to Respondent's exceptions and
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 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Ertl Company, Division
of Victor Comptometer Corporation, Dyersville,
Iowa, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule 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 are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge: This mat-
ter was heard at Dyersville, Iowa, on March 17, 1976, upon
a complaint issued on December 30, 1975, based on a
charge filed by the above-named Charging Party (herein
the Union) on November 18, 1975,' as amended on De-
cember 12. The complaint alleges that the Respondent
named above has interfered with, restrained, and coerced
its employees in the exercise of rights protected by the Act
by interrogation of employees concerning union activities,
by keeping union activities under surveillance, by giving
employees the impression of surveillance, and by soliciting
and promising to resolve employees' grievances.
Respondent's answer denies the commission of the al-
leged unfair labor practices, but admits allegations of the
complaint sufficient to justify the assertion of jurisdiction
under current standards of the Board (Respondent, a toy
manufacturer, in a recent annual period shipped products
valued in excess of $50,000 in interstate commerce from its
plants at Dyersville, Iowa), and to support a finding that
the Union is a labor organization within the meaning of the
Act.
Upon the entire record in this case, from observation of
the witnesses and their demeanor, and after due consider-
ation of the briefs filed by the General Counsel and the
Respondent, I make the following:
FINDINGS AND CONCLUSIONS
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In late September 1975, the Union began an organizing
drive among Respondent's employees working in two
plants in Dyersville, Iowa. On October 1, the Union filed a
petition for representation with the Board docketed as
Case 38-RC-1819. On November 21, an election was con-
ducted by the Board among approximately 625 eligible em-
ployees, of whom 288 voted for the Union and 233 voted
against representation by the Union. Respondent filed ob-
jections to the results of the election which were overruled
by the Regional Director. Respondent's exceptions to the
decision of the Regional Director were pending before the
Board at the time of the hearing in this proceeding.
B. The September 29 Meeting
Testimony concerning a meeting between Alan Ertl, di-
rector of personnel administration for Respondent and
Ruth McKeon, an employee, was given by Ertl, McKeon,
and Tom Uden, a supervisor for Respondent, who attend-
ed part of the meeting. Another supervisor and the plant
manager who attended parts of this meeting did not testify.
The versions of McKeon and Ertl are in conflict at signifi-
cant points. Indeed, even the versions of Uden and Ertl
appear to differ as to whether the Union or union activities
were mentioned or discussed during this meeting. Upon
careful consideration of the witnesses, their demeanor, the
entire record, and the probabilities of the situation, I credit
McKeon. I believe that her account more accurately sets
forth what occurred.
Ertl was absent from Dyersville when the Union's orga-
nizing activity began. Upon his return, he was informed at
All dates herein are in 1975
225 NLRB No. 179
ERTL COMPANY 1227
a meeting with two supervisors, Uden and Richard Reit-
tinger, of the union activity, and also that the automobile
of McKeon had been vandalized. He understood that the
two events were connected.2 Ertl immediately had Mc-
Keon summoned to the office where he and the two super-
visors were meeting.
According to McKeon's credited testimony, Ertl told her
that he had heard of the damage to her car, that such
things occur when there is union activity, and that similar
things had happended during a previous organizational at-
tempt which had occurred before McKeon came to work
for Respondent. Ertl asked McKeon if she were aware of
the union drive to secure authorization cards begun in his
absence. When she indicated knowledge of this, he asked
why the employees had picked this time for such activity,
particularly since Respondent's previous wage freeze had
dust been lifted, and a wage raise had just been announced
to the employees by the supervisors. McKeon replied that
the employees were not satisfied with Respondent's action
and that this had brought the union activity to a head.
Ertl told McKeon that he was sure that, if the employ-
ees would come and talk to management, they could get as
much as they would by bringing a union in, that manage-
ment was open to anything the employees wanted to say,
and he wondered why the employees would not talk to him
or other management "instead of trying to organize a
union, which couldn't do anything for [the employees] any-
way." McKeon replied that the employees she had talked
to, who had longer employment tenure than she, felt that
nothing was accomplished by talking to management.
Ertl asked what the employees wanted, to which Mc-
Keon responded that the employees were dissatisfied with
benefits, insurance, seniority, and overtime, and the way
certain accidents were handled. McKeon also cited the in-
stance of one employee who had recently retired Ertl ad-
vised McKeon, after securing the amount of the
employee's retirement benefit, that this was a program that
Respondent was going to improve Ertl said that if the
union activities ceased he was sure that the Respondent
could do as much for the employees as anything the em-
ployees could gain from the Union; the Union only made
promises; the employees should give Respondent a chance;
and expressed an interest in having the employees come to
talk to him and see if he could not do something about
their grievances first.
McKeon stated that there was to be a meeting of the
employees at her home that evening, indicating that she
would advise the employees of Ertl's desire to talk with
them. Ertl advised he would be available. (McKeon did, in
fact, ask the employees if they wanted to talk to Ertl, and
called Ertl's house to inform him that the employees did
not want to talk to him.) Ertl also advised McKeon that,
2 Ertl on direct examination made no mention of the Union when testify-
ing as to how he learned from the supervisors of the damage to McKeon's
car, but he admitted, on cross-examination, that in his "meeting on busi-
ness," "the word `Union' was brought up when she had her car smashed
And that's when I wanted to get to the point of who who damaged that
car and where it was " Although Ertl, at times, seemed to vaguely assert that
he first learned of the union involvement from McKeon, I find on the
record as a whole that he had been informed of the union drive before
meeting with McKeon
although her house was not under surveillance, he was
aware that there had been union meetings there, and that
he was aware of employees coming and going at her house.
McKeon replied that there had been group meetings at her
home, but denied that they were union meetings.3
During this conversation, Ertl offered to pay for the
damage to McKeon's car if anyone connected with Re-
spondent was responsible. McKeon told Ertl that she knew
who had damaged her car, though in fact she did not. Mc-
Keon testified that by this untruthful statement she hoped
to prevent any recurrence of such episodes during the
union campaign. She was also concerned because after her
car had been damaged references had been made to her
about the cars driven by management.
Based on the above, and the record as a whole, it is
found that Respondent, by coercively interrogating an em-
ployee concerning union activities, giving the impression of
surveillance of the employee's union activities, and solicit-
ing grievances from employees with the promise of adjust-
ing them, in order to discourage union adherence and ac-
tivities, violated Section 8(a)(1) of the Act
In coming to these conclusions, I have carefully consid-
ered McKeon's testimony that, because she was interested
in what the employees wanted and also in what Ertl said
Respondent was trying to do for the employees, she found
the discussion with Ertl interesting and productive, and
Respondent's argument that the discussion therefore could
not have been coercive. It is well settled that it is the ten-
dency of the conduct in question to be coercive that consti-
tutes the violation of Section 8(a)(1), not whether it is suc-
cessful. In the present instance, a single employee was
called out of the plant into the plant manager's office
where she was confronted with a member of management
with whom she has never had to deal with previously (not
to mention other supervisors who intervened in the conver-
sation), and was questioned in a manner showing that in-
formation was sought to be used in defeating the union
organizational drive; was told that the employees were
more likely to obtain what they want if they ceased their
union activities and confided in management; and was in-
formed that management was aware that groups of em-
ployees had been observed coming and going from her
home, from which management had decided she was hold-
ing union meetings. The reasonable tendency of such con-
duct is to interfere with, restrain, and coerce Respondent's
employees in the exercise of their rights under the Act, as
has been found.
C. Alleged Surveillance
It is alleged that Supervisor David Reittinger engaged in
surveillance of the Union's meetings on two occasions. The
first of these occasions was October 21. There was testimo-
ny that on this day, as the employees were going to a union
meeting at the city hall in Dyersville to begin at 2 p.m.,
J In this connection, on cross-examination, Ertl indicated that he had
been informed of union meetings that had taken place, testifying in a ram-
bling fashion that the word "union" was mentioned, possibly "when she was
talking about her car being the windows being broken, that it could have
been Union activity, because there were some meetings going on apparently
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reittinger was seen across the street from the city hall, and
one employee stated that when she left the meeting that
day, about 3:30 p.m., she saw Reittinger sitting in his car
parked across from the city hall.
Reittinger denied keeping the union meetings under sur-
veillance. He testified that he had a long-established habit
of coming into the business district of Dyersville for a soft
drink and to read a newspaper each day before arriving at
the plant for a scheduling meeting which began at 3 p.m.
Reittinger asserted that he followed his usual pattern on
October 21, except that he went into the city hall about 2
p.m. to vote in the primary election which was being con-
ducted in the city hall on that occasion. He denied being
parked across the street from the city hall at 3:30 p.m. on
October 21.
Employees also testified that on November 11 as they
were driving down the main street of Dyersville to attend
another union meeting in the city hall, Reittinger passed
them in his car, then made a U-turn somewhat farther
down the street, came up behind them some three cars
back, and passed them as their car was parked near the city
hall. One employee recalled Reittinger nodding or making
some motion to the employees. It is evident from
Reittinger's testimony as a whole that he has no specific
recollection of this event, but he denies following the em-
ployees for the purpose of engaging in surveillance of their
activities.
From observation, and upon consideration of the entire
record, I credit Reittinger. I believe that the employee who
testified to seeing Reittinger parked across from the city
hall at 3:30 p.m., on October 21, was mistaken. I also credit
Reittinger's explanation as to his reasons for being in the
area of the city hall on these occasions and his testimony
that he did not engage in surveillance of the union meet-
ings I shall therefore recommend that the allegations in
the complaint that Respondent violated Section 8(a)(1) of
the Act by reason of surveillance of union activities by
David Reittinger be dismissed.
stances, constitute coercive interrogation. However, that is
not the case here In this instance the election was over.
The conversation, albeit that it seems to have had a sharp-
ness to it, was between old friends in a tavern. The state-
ment made was in the form of a statement of fact-indeed,
with the edge of an accusation. I do not believe that in this
situation it was intended to elicit, nor did it require, an
answer. I shall recommend that the allegation in the com-
plaint that Respondent violated Section 8(a)(1) of the Act
by reason of interrogation of employees concerning union
activities by Sampson be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer 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. Respondent, by coercively interrogating employees,
soliciting and promising to adjust grievances in order to
discourage union activities, and by creating the impression
of surveillance of union activities, violated Section 8(a)(1)
of the Act, which unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
4 Except as found heremabove in the Decision, Re-
spondent did not engage in unfair labor practices alleged in
the complaint.
THE REMEDY
It having been found that the Respondent engaged in
unfair labor practices in violation of Section 8(a)(1) of the
Act, it will be recommended that the Respondent cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I issue the following recommended.
D. Alleged Interrogation by Supervisor Sampson
On December 3, about a week and a half after the repre-
sentation election held among Respondent's employees,
Rollie Sampson, a supervisor at Respondent's operations,
had conversations in a local tavern with two of
Respondent's employees, Ronald Brady and Neill Gert.
Gert and Sampson had been close friends for a number of
years. Each of them had had several beers, Sampson ap-
parently more than the others. On one occasion during the
evening Sampson accused the two men of making fun of
him because they had been for the Union and he had taken
the Respondent's side. At another time, Sampson asserted
that (because of Gert's job which took him to both plants)
Gert had acted as a messenger for the Union between the
plants, that is, was a channel of communication for the
Union.
General Counsel contends that this assertion, calculated
to induce Gert to make a reply by which he would affirm
or deny his union activities, constituted improper interro-
gation. I have no difficulty with the contention that asser-
tions such as that involved here may, under some circum-
ORDER4
Ertl Company , Division of Victor Comptometer Corpo-
ration, its officers , agents, successors , and assigns, shall:
1. Cease and desist from-
(a) Interfering with rights of employees under the Act
by coercively interrogating its employees concerning their
adherence to or activities on behalf of a labor organization.
(b) Soliciting grievances from employees and explicitly
or implicitly promising to correct employee grievances in
order to induce employees to refrain from assisting, sup-
porting, or selecting a labor organization as their bargain-
ing representative.
(c) Creating the impression of keeping under surveil-
lance the activities of the employees in respect to labor
organizations.
° 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
ERTL COMPANY
(d) In any like or related manner interfering with, re-
straining , or coercing its employees in the exercise of rights
protected by Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Post at its plants located at Dyersville , Iowa, copies
of the attached notice marked "Appendix ." 5 Copies of
said notice , on forms provided by the Officer-in -Charge of
Subregion 38, shall , after being duly signed by an author-
ized representative of Respondent , be posted immediately
upon receipt thereof , and be maintained by it for 60 con-
secutive days thereafter , in conspicuous places, including
all places where notices to employees are customarily post-
ed. Respondent shall take reasonable steps to insure that
said notice is not altered , defaced , or covered by other ma-
terial.
(b) Notify the Officer-in -Charge for Subregion 38, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT is FURTHER ORDERED that the complaint in this matter
be, and it hereby is, dismissed as to any alleged violations
of the Act not found heremabove in this Decision.
5 In the event the Board 's Order is enforced by a Judgment of the 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 "
1229
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate our employees
about their activities on behalf of International Auto-
mobile, Aerospace & Agricultural Implement Workers
of America , UAW, or any other labor organization.
WE WILL NOT solicit grievances from our employees
or promise to take care of employee grievances in or-
der to induce or encourage employees not to join,
help, or vote for the Union.
WE WILL NOT act or make statements to give the im-
pression that the Company is keeping the union activi-
ties of our employees under surveillance.
WE WILL NOT in any like or related manner interfere
with our employees in the exercise of rights guaran-
teed under the National Labor Relations Act.
ERTL COMPANY , DIVISION OF VICTOR COMPTOMETER
CORPORATION