Westek Fabricating, Inc

National Labor Relations Board - Board Decisions

Apr 28, 1989

293 N.L.R.B. 879 (N.L.R.B. 1989)

WESTEK FABRICATING
Westek Fabricating, Inc and International Union,
United Automobile , Aerospace and Agricultural
Implement Workers of America (UAW) Cases
4-CA-16672 and 4-RC-16561
April 28, 1989
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On October 18, 1988 , Administrative Law Judge
David S Davidson issued the attached decision
The Respondent filed exceptions and a supporting
brief, the General Counsel filed an answering brief
to the Respondent's exceptions, and the Union filed
a brief in support of the judge's decision and in op-
position to the Respondent's exceptions
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, I and
conclusions2 and to adopt the recommended
Order
ORDER
That National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Westek Fab
ricating, Inc, Philadelphia, Pennsylvania, its offi-
i The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
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 reversing
the findings
In adopting the judge s decision we note that at sec II B par 7 based
on employee Washington s credited testimony the judge found that it
was Kuehnle not Washington who raised the possibility of an associa
tion as an alternative to the Union
2 The Respondent contends that the single violation of Sec 8(a)(1)
here was de muiimis and does not warrant setting aside the election It is
well settled that conduct violative of Sec 8(a)(1) interferes with an elec
tion unless the violations are such that it is virtually impossible to con
elude that they could have affected the results of the election Enola
Super Thrift 233 NLRB 409 (1977) The 8(a)(1) violation here involved a
statement by a high level official of the Respondent Vice President Wes
Kuehnle that was heard by a number of unit employees Kuehnle en
couraged the employees to abandon their union activities and form their
own association to bargain with the Respondent a matter that on its
face was directed at affecting the results of the election i e at encourag
mg the employees to vote no on the petitioner union that the Respondent
opposed and to form their own association which the Respondent would
not oppose but would bargain with By the very nature of this violation
we are unable to find that it is virtually impossible to conclude that [it]
could have affected the results of the election Moreover we note that
an employee association such as Kuehnle encouraged subsequently was
formed and indeed received a majority of the votes cast in the subject
election This latter development although necessary neither to finding
the violation nor to applying the above described test for determining in
terference with an election speaks for itself
879
cers, agents , successors, and assigns , shall take the
action set forth in the Order
[Direction of Second Election omitted from pub
lication ]
Susan Stahl Esq, for the General Counsel
Howard I Hatoff and Robert Haas Esqs (Blank Rome
Comisky & McCauley), of Philadelphia, Pennsylvania,
for the Respondent
Stephen Richman and Regina Hertzig Esqs (Markowitz &
Richman), of Philadelphia, Pennsylvania, for the
Charging Party
Charles L Mitchell Esq (Robert P Snyder & Associates),
of Philadelphia, Pennsylvania, for the Intervenor
DECISION
STATEMENT OF THE CASE
DAVID S DAVIDSON Administrative Law Judge
These consolidated cases were tried at Philadelphia,
Pennsylvania, on March 15 1988 In Case 4-CA-16672
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (Union)
filed the charge which was twice amended, on June 26
1987 The complaint issued on September 30 1987, with
an order consolidating the representation case with it for
purposes of hearing and decision A further consolidated
complaint issued on October 27, 1987 1
The issues raised by the complaint are whether Re
spondent created an impression of surveillance of union
activities, interrogated an employee about union activi
ties, directly and indirectly promised employees more
benefits without a union , solicited employees to form a
committee, indirectly threatened reprisals for attending
union meetings, asked employees to solicit others to
revoke union authorization cards and threatened to close
its facility if the employees selected a union to represent
them
On May 14 1987, the Union filed the petition in the
representation case 2 On July 10, an election was held
which resulted in 33 votes for the Petitioner Union 43
votes for the Intervenor, Westek Employees Association
(Association) 1 vote against any labor organization 2
void ballots and 12 challenged ballots Following the
election the Union filed timely objections to conduct of
fecting the results of the election On September 25, the
Acting Regional Director issued his Supplemental Deci
sion on Objections to Election and Challenged Ballots in
which he sustained the challenges to four ballots and
found that the remaining challenges were no longer de
terminative of the election He found further that the ob
jections raised the same issues as the complaint and
therefore consolidated the cases
On the entire record including my observation of the
demeanor of the witnesses and after consideration of the
briefs filed by the parties I make the following
i At that time these cases were consolidated with Case 4-CA-16768
based on a charge filed by Linda Thinna Before the hearing opened the
parties entered into an informal settlement of Case 4-CA-16768 and that
case was severed from the two remaining cases
9 All dates are in 1987 unless otherwise indicated
293 NLRB No 107
880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I JURISDICTION
The Respondent, a Pennsylvania corporation, fabri
cates metal parts for automobiles at its Philadelphia
plant It receives materials annually valued at more than
$50,000 directly from places outside of Pennsylvania I
find that Respondent is an employer engaged in com
merce within the meaning of Section 2(2) (6) and (7) of
the Act and that the Union is a labor organization within
the meaning of Section 2(5) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A Background
In response to a telephone call from an employee of
Respondent, the Union began an organizing campaign
among its employees in late March 1987 During the last
week in March Union Representative Al Heffelfinger
and two other organizers distributed union literature at
the employee entrance to the plant Additional distribu
tions were made periodically in April, May June and
July During the first week of April, the Union held a
meeting for employees near the plant As indicated
above, the Union filed a representation petition on May
14 and the election was held on July 10
The allegations of the complaint are based on state
ments attributed to Respondents vice president, Wes
Kuehnle, and its assistant production foreman, James
Motley The General Counsels case depends on the tes
timony of a single witness, Melvin Washington, corrobo
rated only in part by the testimony of Linda Thinna and
contradicted by the Respondents witnesses Resolution
of the credibility issues will substantially determine the
meets of the complaint
B The Conduct Attributed to Wes Kuehnle
On May 21 or 22 Washington twice met with
Kuehnle in his office At the first meeting in the morning
no one else was present According to Washington, the
entire conversation, which he initiated related to the
union organizing campaign He testified that in the
course of it Kuehnle asked Washington why the em
ployees needed a union asked Washington if he had
signed a union authorization card , told him that the em
ployees would be better off with an association than with
a union, promised that he would give employees a day s
vacation after a year of service and would talk to them
about other benefits if they chose an association told
Washington that if he decided to hire a guard Washing
ton could be the guard, asked Washington to go out on
the floor to poll the employees whether they wanted the
Union or an association to represent them, and asked him
to return that afternoon to tell him the results of the poll
Kuehnle denied everything that Washington attributed
to him He testified that the only mention of the Union
came when Washington told him that a lot of employees
wanted to get out of the authorization cards they had
signed According to Kuehnle, he responded by suggest
ing that perhaps they could form some kind of a commit
tee get a petition signed, and send it to the NLRB or the
Union to rescind their authorization cards
Although no one else was present at the morning
meeting, others were present at the afternoon meeting
that Washington testified was basically the same as the
first Yet none of the other witnesses at that meeting
including Thinna who testified for the General Counsel
corroborated Washington except with respect to the
mention of an association at that meeting To the con
trary, those witnesses, including Thinna, testified that
Kuehnle said that he could not promise them anything
because there was going to be an election There are
other weaknesses in his testimony as well Washington
testified that at the end of the morning meeting he left
Kuehnle s office went to visit a doctor returned to the
plant polled 90 employees and returned to Kuehnle s
office with 3 other employees Washington s testimony as
to polling 90 employees is again uncorroborated Thinna
testified only that Washington spoke to some employees
about whether they preferred an association or a union
before the afternoon meeting, and no other employees
testified about the alleged poll In addition, the likelihood
that Washington could have done all he claims to have
done in the time between the two meetings is slight
The absence of corroboration when corroboration was
possible and the contradiction of Washington s testimony
by Thinna as well as others lead me to conclude that his
testimony about both the morning and afternoon meet
ings must be largely discredited Specifically, I do not
credit Washington that Kuehnle told him that he knew
employees had gone to union meetings, asked him why
the employees needed a union asked him if he had
signed a union authorization card solicited grievances
from him, solicited him to poll other employees prom
ised specified increased benefits if the employees chose
an association rather than a union, or promised Washing
ton a guard s job in return for his withdrawal of support
from the Union
These credibility findings dispose of the allegations in
paragraphs 5 and 6(a)-(d) of the complaint Paragraph
6(f) also fails for lack of any supporting evidence
The allegations set forth in paragraph 6(e), however,
have more substance Paragraph 6(e) alleges that
Kuehnle solicited the employees to form a Committee
to deal with Respondent concerning terms and condi
tions of employment According to Kuehnle, the only
mention of a committee came in response to Washing
ton's statement in the morning that a lot of employees
would like to get out of the Union He testified that at
that time he suggested that perhaps the employees could
form a committee and get a petition signed to rescind
their authorization cards Kuehnle later characterized his
suggestion as a response to a question Kuehnle denied
that an association was mentioned at either meeting
However, Rudd, who clearly was not hostile to Re
spondent's interests in this proceeding, testified that in
the afternoon questions came up about an association and
union authorization cards and that she said that Kuehnle
could not talk to employees about it because it was ille
gal Thus, her testimony contradicts Kuehnle s claim that
an association was not mentioned Furthermore both
WESTEK FABRICATING
Washington and Kuehnle testified that in the morning
they discussed a second meeting to take place that after
noon
Although I have not credited Washington that
Kuehnle asked him to poll all employees about their
preferences, Kuehnle s version of their discussion of a
committee or association is no more satisfactory In his
version there is no satisfactory explanation of the occa
sion for a second meeting, and there is no explanation for
his statements at the beginning of the second meeting
about the legality of the selection of the committee ac
companying Washington It is evident that more was said
at the first meeting about a committee than Kuehnle re
vealed in his testimony Although I do not credit Wash
ington that Kuehnle promised specific benefits for em
ployees if they formed an association, I credit him that
the possibility of an association as an alternative to the
Union was raised by Kuehnle at the morning meeting
and that the second meeting was arranged as a sequel to
that discussion
I also find Thinna s testimony as to what was said
about the Association at the afternoon meeting most be
lievable Rudd s testimony establishes that the Associa
tion was mentioned, but her testimony that she cut off
discussion of an association by saying that it was illegal
for Kuehnle to talk about it is difficult to believe There
is no indication that Rudd, an employee with no experi
ence with union organization, had any basis for her
claimed assertion Based on Thinna s testimony, I find
that at the afternoon meeting Washington told Kuehnle
that he had to go out and tell the people something to
which Kuehnle replied that he was not supposed to talk
to them because it was illegal and that he could not
promise them anything because there was going to be an
election However Kuehnle then mentioned the Associa
tion representing employees at Spalding which shared
the premises, and told the employees it would be better
for them to have an association than a union because the
union would take their money Kuehnle added that an
association would be formed of people from each depart
ment and that they would have to sit down and negoti
ate with him after it was all over with, but until then he
could do nothing
Although I have not credited Washington s testimony
that Kuehnle directly promised benefits to employees if
they formed an association, the very suggestion that it be
formed, the discussion of its structure, and the descrip
tion of how negotiations would proceed in the context of
Washington s request for something to tell the employees
implied that the employees would better achieve their
objectives with an association than the Union I find that
by his suggestions, Kuehnle encouraged the employees
to abandon their activities in support of the Union and to
form their own association to bargain with Respondent
in violation of Section 8(a)(1) of the Act Wheelco Co,
260 NLRB 867, 880 (1982), St Francis Hospital 249
NLRB 180 188 (1980), Valley Iron & Steel Co, 224
NLRB 866, 875 (1976)
The remaining allegation in paragraph 6(g) of the com
plaint is that Respondent asked employees to solicit other
employees to revoke their union authorization cards The
only evidence presented to support this allegation was
881
Thinna s testimony that after Kuehnle spoke about an as
sociation he said that his hands were tied until he got the
green cards employees had signed for the Union From
her testimony and Rudd s it appears that the authoriza
tion cards were mentioned at the afternoon meeting but
only Kuehnle himself testified to any discussion of em
ployee action to rescind the green cards, and he attrib
uted that discussion to a question raised by Washington
at the morning meeting Although I have doubts, as indi
cated above, as to Kuehnle s version of the discussion of
a committee, I find the affirmative evidence insufficient
to conclude that Kuehnle asked employees to solicit
others to rescind their union authorization cards at either
meeting I find that the General Counsel has not sus
tained this allegation of the complaint
C The Alleged Threats Attributed to James Motley
Washington testified initially that several times be
tween June 1 and 10, while he was at his work station
talking about the Union with other employees, Assistant
Production Foreman James Motley heard him and told
him, I shouldn t be saying stuff like that because it s not
good for a small business like that, that they d close
down ' He later added that he had other conversations
with Motley on the bus or stuff like that" when Motley
told him that unions wasn't good for small businesses
like that and Kuehnle would close the place down
adding that Washington should know that because
Kuehnle was supposed to be building another plant in
Doyletown On cross examination, Washington described
seven similar conversations over a period starting in mid
May until June 10 the day before he was discharged On
three of these occasions Washington testified that a
number of other employees were present
In an affidavit given by Washington during the investi
gation of the case he stated that during the week of June
1 Motley told him about four times that it was no good
and that if they tried to get a union in, Kuehnle would
close down In it Washington also stated that he was not
sure if anyone else heard Motley say this When asked
whether the incidents were spread out as he testified or
all in 1 week as stated in his affidavit Washington testi
feed that he would agree with whatever was in the affi
davit, adding I really can t recall, you know When
asked if the affidavit was true and his testimony was not
Washington replied Yes it s all the same thing I said
the same thing to you He testified further that there
were just four specific times that he remembered when
he gave his affidavit but that he was now positive there
were like seven times " On redirect, he testified that
Motley's statements to him occured over an extended
period of time from the beginning or middle of May
until June 10, the day before he was terminated
Motley testified that he had no conversations with
Kuehnle or Washington about the plant closing down
and that when he met Washington on the street and
spoke with him they spoke only about Washington s job
performance or nonwork related things Motley denied
telling any employee that the plant would close or talk
mg to Washington about another facility
882 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To corroborate Washington Union Organizer Al Hef
felfinger testified that every time he handed out literature
on the sidewalk outside the main entrance to plant
Motley came out and stood next to him or one of the
other organizers who was helping him If employees
took literature, Motley would take it right out of their
hands, crumple it up, and tell them, You don t need this
shit Unions are only here to close the plant Wes
don t need a union He added that some times Motley
would just tear leaflets up and throw them around the
sidewalk and that after the organizers left, the street
looked like the leaflets had been dropped out of an air
plane
Motley denied tearing literature out of employees
hands, throwing it to the ground, or telling Heffelfinger
that if the Union came in , they would close the plant
I do not credit Washington as to the threats he attnb
uted to Motley Despite the fact that Washington testi
feed that a number of other employees were present on
some occasions when Motley made the threats no other
employee was called to corroborate Washington about
these threats The variance between Washington s testi
mony and his affidavit as to the number and timing of
threats weakens his testimony, and the increased detail in
his testimony in contrast to his affidavit runs contrary to
the normal expectation that memories fade rather than
improve with time Heffelfinger s uncorroborated rebut
tal testimony proves too much, for if credited it would
establish additional violations of the Act never charged
See Southland Knitwear, 260 NLRB 642, 650 (1982),
Restaurant Hortkawa,' 260 NLRB 197 209 (1982) In a
case in which the Union filed charges twice amended
them, and also filed objections to the election, it would
be surprising, at the very least, if the conduct which Hef
felfinger attributed to Motley occurred and was never
mentioned in the charges or objections Absent corrobo
ration I do not credit Washington or Heffelfinger s testi
mony relating to Motley
I find that the General Counsel has failed to establish
that Motley threatened plant closure and thereby violat
ed Section 8(a)(1) of the Act
In sum I have found that Respondent violated the Act
as alleged in paragraph 6(e) of the complaint and that the
General Counsel has failed to establish the remaining al
legations of the complaint
III THE OBJECTIONS
The Union s objections to the election raise the same
issues as the allegations of the complaint and no inde
pendent evidence was offered in support of the objec
tions The findings above that Kuehnle s conduct encour
aged the formation for an association and violated Sec
tion 8(a)(1) of the Act support a finding that the Union s
Objection 4 has merit 3 Accordingly, I shall recommend
that Objection 4 be sustained and the remaining objec
tions be overruled
3 During the course of investigat on the Union withdrew the portion of
that objection which relates to improperly permitting employees to solicit
authorization cards on behalf of a rival labor organization
THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I shall recommend that it be ordered to cease
and desist and to take certain affirmative action designed
to effectuate the policies of the Act I further recom
mend that the election held on July 10, 1987, be set aside
and that Case 4-RC-16561 be remanded to the Regional
Director for Region 4 for the purpose of conducting a
new election at such time as he deems that circumstances
permit a free choice of bargaining representative
CONCLUSIONS OF LAW
1 Westek Fabricating, Inc is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act
2 International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America
(UAW) is a labor organization within the meaning of
Section 2(5) of the Act
3 By encouraging or suggesting to employees that
they abandon their union activities and form their own
association to bargain with Respondent, Respondent has
engaged in unfair labor practices affecting commerce
within the meaning of Sections 8(a)(1) and 2(6) and (7) of
the Act
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
ed4
ORDER
The Respondent, Westek Fabricating, Inc, Philadel
phia, Pennsylvania, its officers, agents, successors and
assigns, shall
1 Cease and desist from
(a) Encouraging or suggesting to employees that they
abandon their union activity and form their own associa
tion to bargain with Respondent
(b) In any like or related manner interfering with, re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action which is nee
essary to effectuate the policies of the Act
(a) Post at its Philadelphia Pennsylvania place of busi
ness copies of the attached notice marked Appendix 5
Copies of the notice on forms provided by the Regional
Director for Region 4, after being signed by the Re
spondent s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond
4 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
5 If 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 Nation
al 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
WESTEK FABRICATING
ent to ensure that the notices are not altered , defaced, or
covered by any other material
(b) Notify the Regional Director in wasting within 20
days from the date of this Order what steps the Re
spondent has taken to comply
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
883
WE WILL NOT encourage or suggest to our employees
that they abandon their union activity and form their
own association to bargain with us
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WESTEK FABRICATING, INC
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice