Westek, Inc.

National Labor Relations Board - Board Decisions

Jan 23, 1995

316 N.L.R.B. 98 (N.L.R.B. 1995)

98
316 NLRB No. 15
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The name of Respondent was amended at the hearing to reflect
the new name following emergence from bankruptcy proceedings on
February 7, 1994.
2 All dates herein refer to 1993 unless otherwise stated.
Westek, Inc. and Wayne Avery. Case 10–CA–27217
January 23, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
On May 18, 1994, Administrative Law Judge Philip
P. McLeod issued the attached decision. The General
Counsel filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
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 brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Gaye Nell Hymon, Esq., for the General Counsel.
Townsell G. Marshall, Jr., Esq. (Constangy, Brooks &
Smith), for the Respondent.
DECISION
STATEMENT OF THE CASE
PHILIP P. MCLEOD, Administrative Law Judge. I heard this
case on March 4, 1994, in Thomaston, Georgia. The case
originated from a charge filed by Wayne Avery against
Westek, Inc.1 (the Respondent), on December 8, 1993.2
Thereafter, on January 27, 1994, a complaint and notice of
hearing issued which alleges, inter alia, that Respondent vio-
lated Section 8(a)(1) of the National Labor Relations Act (the
Act), by threatening employees with unspecified reprisals if
they engaged in union activities.
In its answer to the complaint, Respondent admitted cer-
tain allegations, including the filing and serving of the
charge; its status as an employer within the meaning of the
Act; the status of United Rubber, Cork, Linoleum and Plastic
Workers of America, AFL–CIO, CLC, as a labor organiza-
tion within the meaning of the Act; and the status of certain
individuals as supervisors and agents of Respondent within
the meaning of Section 2(11) of the Act. Respondent denied
having engaged in any conduct which would constitute an
unfair labor practice within the meaning of the Act.
At the trial herein, all parties were represented and af-
forded full opportunity to be heard, to examine and cross-ex-
amine witnesses, and to introduce evidence. Following the
close of the trial, counsel for General Counsel and Respond-
ent both filed timely briefs with me which have been duly
considered.
Upon the entire record in this case and from my observa-
tion of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Westek, Inc., formerly Dominion Engineered Textiles, is,
and has been at all times material, engaged in the manufac-
ture and sale of cord, yarn, and fabric. In the regular course
and conduct of its business, Respondent annually purchases
and receives at its Thomaston, Georgia facility goods valued
in excess of $50,000 directly from suppliers located outside
the State of Georgia.
Respondent is, and has been at all times material, an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. LABOR ORGANIZATION
United Rubber, Cork, Linoleum and Plastic Workers of
America, AFL–CIO, CLC is, and has been at all times mate-
rial, a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent’s facility in Thomaston, Georgia, has operated
as a manufacturing plant of industrial textiles for at least 35
years. During that time, it has operated under at least three
names, including Uniroyal Goodrich, Dominion Engineered
Textiles, and now Westek. At the time of these proceedings,
Respondent employed approximately 850 to 900 employees.
Since 1988, at least three union campaigns have been con-
ducted among employees at the Thomaston facility. The most
recent campaign resulted in a petition being filed with the
Board in Case 10–RC–14231 in March 1992, by United Rub-
ber, Cork, Linoleum and Plastic Workers of America, AFL–
CIO, CLC. An election was conducted in May 1992 in which
385 votes were cast for the Union and 597 votes cast against
union representation. The results of that election are still
pending before the Board on objections to conduct affecting
the results of the election.
B. Gary Wayne Avery
Wayne Avery has worked at the Thomaston facility for al-
most 35 years. For the last 17 to 18 years, Avery has been
head tire cord shipping clerk. Throughout his many years at
the Thomaston facility, Avery has been a model employee.
Vice President of Manufacturing Albert Messer, who is the
person alleged to have unlawfully threatened Avery, repeatly
testified that Avery was a tremendous ‘‘untapped resource’’
with leadership abilities.
Avery has also been the consummate union activist and
supporter. Avery actively and openly supported the Union
during all three organizing campaigns. In 1988, during the
first campaign, Avery served on the nine-person in-house
union organizing committee. Avery has attended union meet-
ings, talked with fellow employees, distributed union lit-
erature, and testified in Board proceedings on behalf of the
Union trying to organize employees at the Thomaston facil-
99WESTEK, INC.
ity. In spite of the Union’s failed attempts, Avery has contin-
ued to vigorously support the Union.
C. Albert Louie Messer
Albert Messer was hired by Respondent as vice president
of manfacturing in February 1993 to help turn around a fail-
ing business. Messer, in turn, hired Marion Nivens in May
1993 as operations planning manager and Robert Johnson in
June 1993 as human resource manager. All this new manage-
ment team was hired to help bring Respondent successfully
out of bankruptcy proceedings.
Messer testified that when he was hired by Respondent,
‘‘it was on its last breath.’’ Messer succinctly described the
Thomaston facility: ‘‘The place was dirty, it was filthy . . .
windows were broken. From a morale stand point, I think the
folks were pretty much at the end of their rope.’’
In her posttrial brief, counsel for General Counsel insists
that Messer invisioned the Union as being the source of all
Respondent’s economic woes, but this is far from being true.
In fact, Messer pretty much laid the blame directly at the feet
of management, testifying:
We had severe cost problems with several million dol-
lars of cost in excess of standard due to poor manufac-
turing performance. We had returns from our customers
and we were losing money. As we said, we were bleed-
ing profusely and we were hemorrhaging. It was an ab-
solute disaster, there is no other way to say it.
Messer described a business in which almost one-fourth of
all raw materials were ending up as waste. Messer’s most
important function in helping Respondent emerge from bank-
ruptcy involved cutting costs, reducing waste, increasing em-
ployee morale, and improving productivity. Messer testified
that he set as his first two goals basic housekeeping to repair
and improve the Thomaston facility and improving employee
morale.
Messer testified that in order to begin improving employee
morale, he spent the first several days at the Thomaston fa-
cility simply circulating throughout the facility and meeting
employees on a one-to-one basis. It was then that he first
met Wayne Avery.
After those first few days, Messer implemented a series of
meetings with employees, the purpose of which he character-
ized as ‘‘for you to get to know me and me to get to know
you.’’ Messer testified that if Respondent was to survive and
realize its fullest potential, everyone had to pull in the same
direction. Messer estimated that he spent approximately 30
percent of his time talking to and meeting with employees
individually as well as in groups. Messer instituted a pro-
gram of weekly breakfast and/or luncheon meetings with ran-
domly selected groups of employees to permit them to ask
questions and to allow Messer to sell his vision for Respond-
ent.
Messer testified candidly that it was very early in these
meetings with employees that he learned Wayne Avery was
one of the most active union supporters.
D. The July Conversation Between Messer and Avery
During July 1993, Messer was told by some employees
that Avery was being critical of the way Messer was doing
his job. Messer testified, ‘‘me being the type of fellow I am,
I don’t have any trouble saying, look, if you’ve got a prob-
lem, let’s sit down and talk about it . . . so I went out to
the floor and Wayne was out doing his job.’’
It was approximately July 14 when Messer approached
Avery. According to Avery, Messer stated that they had a
problem to work out. Avery testified that Messer then stated
he understood Avery was a big union supporter and that he,
Messer, had heard Avery was blaming him for errors on the
vacation checks.
Messer denied that he said anything to Avery about Avery
being involved with the Union. Messer added, however, that
it was common knowledge Avery was involved with the
Union. According to Messer, he approached Avery and asked
if they could ‘‘talk a minute.’’ Messer then described their
conversation as follows:
I said, I’ve got a problem . . . I understand you’ve got
a problem with me, that you’re being critical of me and
the way I’m running my job. That you’re questioning
my motives and so forth. Now, you’re entitled to your
opinions, Wayne, as everyone else is, but you’re not
entitled to go around talking about it. I said, if you’ve
got a problem with me I think that you know that you
certainly have the right to come say look, we need to
talk about something.’’
Messer testified Avery responded by telling Messer that su-
pervisors did not like Messer and were afraid of him. Messer
responded he was trying to get everyone ‘‘in the boat pulling
the same way’’ and that ‘‘rather than finding fault with the
way things were and in this case finding fault with me and
the way I run my job and voice that fault, perhaps [you]
could contribute more if you were really concerned about the
well being of the plant and the people in the facility, join
in and do things to help the plant.’’ According to Messer,
Avery responded that ‘‘he wasn’t going to fall into that trap
again.’’
I had the distinct impression that both Avery and Messer
were essentially telling the truth as they recalled it, but that
neither was telling the full truth. The whole truth is more ac-
curately reflected by a combination and composite of both
their testimony and/or by something lying part way between
the testimony of either of them. In this case, given Messer’s
self-proclaimed desire for openess between individuals, I
have no doubt that Messer started out the conversation say-
ing they had some ‘‘problem.’’ Even Messer’s version says
as much. I also have no doubt that somewhere during this
conversation Messer shared with Avery the fact he knew
Avery was an avid union supporter. I credit Avery in that
regard. I also credit Messer, however, that he told Avery all
the things Messer described in his testimony.
This conversation is not alleged as violating the Act. Rath-
er, counsel for the General Counsel points to the conversa-
tion as evidence of Messer acknowledging Avery’s involve-
ment with the Union. I rely on it for that limited purpose.
Counsel for General Counsel would also have me find that
reference to a ‘‘problem’’ suggests animus on Messer’s part.
In the contest of this specific conversation, I cannot agree.
Messer’s reference to there being a ‘‘problem’’ was simply
a way of initiating the conversation inviting Avery’s criti-
cism or comment.
100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
E. The Events of November and December 1993
On or about November 3, corporate CEO Bill Davis and
Messer conducted a series of meeting with employees to dis-
cuss pay and policy changes, Respondent’s emergence from
bankruptcy proceedings, and insurance information. Oper-
ations and Planning Manager Marion Nivens testified
credibly that on the day of these meetings, he was notified
by Avery’s immediate supervisor, Bill Smith, that Avery was
refusing to attend the meeting. Nivens went and spoke with
Avery. At that point, Avery did not refuse to attend the
meeting, but did ask Nivens whether the meeting was man-
datory. Nivens told Avery to return to his work area while
Nivens found out whether the meeting was mandatory.
Nivens later returned and told Avery the meeing was indeed
mandatory, and Avery then acquiesced. It was necessary,
however, to have Avery attend a different meeting from the
one to which he was originally assigned because that one had
already concluded. On cross-examination, Avery admitted
that he did not trust Respondent’s new management team
and ‘‘he did not believe’’ new corporate CEO Bill Davis.
During November 1993, Respondent began to conduct a
number of timestudies of numerous jobs in order to attempt
to reduce cost by making them more efficient. On November
30, immediately after reporting to work, Avery learned that
one of these timestudies would focus on his position that
day. Rather than work, Avery checked out and went home
sick. This resulted in Respondent not being able to conduct
the fourth day of a 5-day timestudy for Avery’s job position.
While Avery denys going home sick in order to frustrate
completion of the timestudy, it is apparent that Avery viewed
the study as personal harassment, for part of Avery’s original
charge with the Board alleges Respondent to have conducted
this timestudy as harrassment for Avery’s union activity.
After the charge was investigated by the Board’s Regional
Office, that portion was withdrawn by being amended out.
Operations Manager Nivens correctly accessed that Avery
was less than pleased with having a timestudy done of his
position. When Avery returned to work the following day,
Nivens met with Avery and told Avery that the job was
going to be studied whether or not Avery cooperated, but
that Respondent would like to have his cooporation getting
the job studied. Nivens testified credibly that Avery then re-
luctantly agreed to cooperate with future timestudies, and the
job was indeed studied.
On December 1, Messer went to Avery at Avery’s work
area to praise him for doing a good job the previous day and
to say ‘‘thank you.’’ Messer testified credibly that the con-
versation ‘‘went down hill from that point on.’’ Avery appar-
ently complained that Nivens had reprimanded him concern-
ing the timestudy. Messer assured Avery that no one was
picking on him regarding the studies, that they ‘‘just had to
be done.’’ I credit Messer that Avery then went on to remark
that he ‘‘hated to come to work,’’ something he had never
heard from Avery before. Messer admitted he asked Avery,
‘‘If you hate it that bad . . . why don’t you just quit?’’
Avery responded that he could not find another job that paid
him as much money. Both Messer and Avery agree that after
talking some more, the conversation ended on an amiable
basis.
F. The Alleged Unlawful Remarks
On December 3, Messer was passing through Avery’s gen-
eral work area when he stepped into a nearby office to use
a telephone. While Messer was on the phone, Avery knocked
on the door. After Messer was finished on the telephone
Messer invited Avery in, and the two had another conversa-
tion. Messer testified credibly that Avery initiated this con-
versation by asking why he was being ‘‘harrassed’’ by man-
agement by the timestudy and ‘‘what he had to do to get
things straightened out.’’ Messer testified credibly he told
Avery that he ‘‘did not believe in harrassing people, that the
company treated everyone the same.’’ Messer then went on
to state that if management had made a mistake by implying
that Avery was trying to avoid the timestudy, Messer was
willing to apologize.
Messer admits he then shifted gears to a more personal
conversation, telling Avery, ‘‘If we don’t all start working
together . . . then we are all going to suffer for it. We can-
not survive if we have this distrust, if we have these walls
and barriers built between us, and we simply have to over-
come these things.’’ Messer asked Avery, ‘‘Help me under-
stand what it is that you distrust in management.’’ Messer
testified credibly that Avery stated, ‘‘personally, I don’t have
anything against you. I like you and you are kind of caught
in the middle of this thing.’’
Messer admits that the subject of unions came up during
this conversation, and that Messer himself raised this subject
to relate Messer’s own view point on why he disliked
unions. Messer told Avery that his father had been a pipe-
fitter, and when Messer had been a child, money had always
been a problem until his father finally got a job in construc-
tion of a plant near their home. Money was suddenly no
longer an issue. Then one day Messer’s father came home
‘‘absolutely devastated’’ by having been laid off. Soon after
that, Messer’s father came home one day and recounted that
he had been told by one of his fellow coworkers he had been
laid off because he had not secretly tipped the union shop
steward. Messer’s father reported he had been told ‘‘if you
don’t slip the shop steward $20 a week, you don’t work, it’s
as simple as that.’’ Messer admits he told Avery that from
his own point of reference, when it came to unions, the
union had taken food out of his mouth. According to Messer,
Avery listened politely, but said nothing. As a result, Messer
went back urging Avery that everyone had to ‘‘get in the
boat, pull in the same direction.’’ Messer testified Avery then
said he needed to leave, and the conversation ended by
Avery telling Messer, ‘‘I appreciate you being willing to talk
to me’’ and ‘‘I pray for you every day and pray for this plant
every day.’’ At the end of the conversation, the two men
shook hands.
Avery testified that after Messer told the story about
Messer’s father losing his job, Messer went on to state that
there was nothing he disliked more in life than unions. Ac-
cording to Avery, near the conclusion of the story, Messer
told Avery that Messer had heard Avery was the head of the
union organizing campaign at Respondent’s facility. Accord-
ing to Avery, Messer then stated that Avery had an attitude
problem, adding that if Avery did not change his attitude, it
would be ‘‘detrimental’’ to Avery.
Messer denied making either of these specific remarks at-
tributed to him by Avery, particularly the remark that
Avery’s attitude would be ‘‘detrimental.’’ Messer admitted,
101WESTEK, INC.
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
however, he told Avery that he had difficulty contrasting
what he had heard about Avery, namely that Avery ‘‘was re-
sponsible for all the heartache and troubles at the plant’’ with
the Avery with whom he had ‘‘nice congenial conversa-
tions.’’ In response to questions from his own counsel,
Messer denied making any reference to Avery’s ‘‘attitude,’’
but upon further questioning from me, Messer admitted that
he simply did not recall whether he used the word ‘‘atti-
tude.’’
Analysis and Conclusions
As I have said once before above, I am convinced the
whole truth of what was said between Messer and Avery is
found in a composite of their testimony. Viewed in its entire
context, I find that Messer did make some comment about
the Union being ‘‘detrimental’’ to Avery, but that the com-
ment was sufficiently ambigiuous that it cannot be said ob-
jectively to constitute an unlawful threat of reprisal against
Avery for engaging in protected activity.
Two things are clear to me in this case. First, that Messer
did not intend to threaten Avery with any retribution for en-
gaging in union activity. Unfortunately for Messer, one’s in-
tent is not even relevant, much less determinative, in deter-
mining whether a supervisor’s remarks to a statutory em-
ployee are unlawful and proscribed by the Act. The second
thing which is equally clear to me is that Avery personally
construed Messer’s remarks as an implied threat of retalia-
tion if he continued engaging in union activities. At the same
time, however, Avery was just as convinced that the time-
study of his position represented some form of retaliation for
those same activities. Unfortunately for Avery, his personal
reaction to Messer’s remarks are equally irrelevant in decid-
ing whether they carried an implied and unlawful threat of
retaliation for engaging in union activity. The Board has long
held that an objective, dispassionate analysis of actual re-
marks will be used to determine whether they carry an im-
plied and unlawful threat of retaliation for engaging in pro-
tected union activity.
I have serious doubt that in the conversation on December
3 Messer stated he had been ‘‘checking’’ on Avery’s union
activities. I have no doubt, however, that in both the con-
versations on July 14 and again on December 3, Messer stat-
ed he had heard that Avery was a big union supporter. I so
find. There is no question that Messer dislikes unions, and
told Avery so in their conversation on December 3. I cannot
by any stretch of the imagination, however, agree with coun-
sel for General Counsel that Messer saw Unions as the ‘‘sin-
gle driving force which lead to Respondent’s financial
woes.’’ Messer pretty much laid the blame for that directly
on management. Rather, Messer expressed a very personal
dislike for unions because, correctly or incorrectly, Messer
viewed his father as having lost a very important job by fail-
ing to pay off a union steward. In the precise context of
those remarks, even assuming that Messer told Avery his
‘‘attitude’’ favoring unions could be ‘‘detrimental’’ to him,
it is just as reasonable to conclude that Messer was suggest-
ing Avery’s support for the Union might backfire in a similar
way as it is to conclude that Messer was himself threatening
reprisal for Avery’s union activity. This is particularly true
in view of the fact that in this same conversation Messer had
already made the statement to Avery that Respondent was
not and would not harass Avery for engaging in union activ-
ity.
I agreed with Respondent that Avery read far more into
Messer’s remarks than he should have. Avery’s predisposi-
tion for doing so is really quite apparent from the overall
events outlined above. Avery was no doubt seeing major
changes in his workplace. A new management team, which
Avery admits he did not trust, was implementing a new way
of doing things. Avery had actually declined to attend, and
later only reluctantly attended, a meeting being held by the
new corporate chief executive. When a timestudy was being
done of Avery’s position, Avery checked out of work and
went home sick. When Respondent spoke to him about that
fact, Avery felt he was being reprimanded. Finally, on De-
cember 3, Avery himself initiated a discussion with Messer
about that perceived harassment in which he quickly con-
strued certain remarks by Messer as being threatening. All in
all, this case strikes me as a simple misunderstanding be-
tween two men who are groping unsuccessfully to under-
stand one another. I find that in fact Messer’s remarks were
sufficiently ambiguous that objectively they cannot be said to
carry an implied threat of reprisal against Avery for engaging
in union activity. Accordingly, I shall dismiss the complaint
herein.
CONCLUSIONS OF LAW
1. Respondent Westek, Inc. is, and has been at all times
material, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. United Rubber, Cork, Linoleum and Plastic Workers of
America, AFL–CIO, CLC is, and has been at all times mate-
rial, a labor organization within the meaning of Section 2(5)
of the Act.
3. Respondent did not threaten employees with unspecified
reprisals if they engage in union activities as alleged in the
complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
It is hereby recommended that the complaint be dismissed
in its entirety.