GTI Corp.

National Labor Relations Board - Board Decisions

Jan 29, 1971

188 N.L.R.B. 252 (N.L.R.B. 1971)

252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clover Industries Division of GTI Corporation and TRIAL EXAMINER'S DECISION
Textile Workers Union of America , AFL-CIO.
Cases 3-CA-3724 and 3-CA-3805
January 29, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
BROWN
On September 21, 1970, Trial Examiner Max Ro-
senberg issued his Decision in the above-entitled pro-
ceeding, finding that Respondent did not engage in
certain unfair labor practices and recommending that
the complaint be dismissed in its entirety. Thereafter,
the Charging Party filed exceptions to the Trial
Examiner's Decision and a supporting brief , and Re-
spondent filed an answering 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 powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby
affirmed.' The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case , and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
STATEMENT OF THE CASE
MAX ROSENBERG, Trial Examiner : With all parties repre-
sented, this consolidated proceeding was tried[before me in
Buffalo , New York, on August 17 and 18 , 1970, on an
amended complaint of the General Counsel of the National
Labor Relations Board and an amended answer filed there-
to by Clover Industries Division of GTI Corporation, herein
called the Respondent.' Joined with the complaint are ob-
jections to an election conducted by the Board in Case
3-RM-421 among an appropriate unit of Respondent's em-
ployees on March 7, 1969, which were lodged by Textile
Workers Union of America, AFL-CIO, herein called the
Union, and which the Regional Director for Region 3 con-
solidated for hearing with Cases 3-CA-3724 and 3-CA-
3805? At issue is whether Respondent violated Section
8(axl), (3), and (5) of the National Labor Relations Act, as
amended, by certain conduct to be detailed hereinafter. All
parties were afforded full opportunity to present evidence,
to examine and cross-examine witnesses, to argue orally at
the close of the hearing, and to file briefs . Briefs have been
received from the Respondent and the Charging Party,
which have been duly considered.
On consideration of the entire record , including the briefs
filed with me, and on my observation of the demeanor of
each witness while testifying, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
I THE BUSINESS OF THE EMPLOYER
Respondent, a corporation duly organized and existing
under the laws of the State of Rhode Island , maintains its
principal office and place of business in Meadville, Pennsyl-
vania . It also maintains and operates facilities in other
States, including a plant located in Tonawanda, New York,
which is the only facility involved in this proceeding and
which is engaged in the manufacture, sale, and distribution
of molded plastic products and formed metal enclosures.
During the annual period material to this proceeding, Res-
pondent in the course and conduct of its business operations
manufactured, sold,, and distributed at the Tonawanda
plant products valued in excess of $100,000, of which prod-
ucts valued in excess of $50,000 were shipped from said
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the complaint herein
be, and it hereby is, dismissed in its entirety.
' The Charging Party excepts to the Trial Examiner's severance of a related
objections case , 3-RM-421, which had been consolidated with these cases
by the Regional Director . Though the Charging Party had, as the Trial
Examiner noted, disclaimed any interest in another election , it would have
been better practice for the Trial Examiner to permit the litigation of the
objections in the consolidated proceeding , because a bargaining order could
have been issued only if the election had been set aside upon meritorious
objections . See Irving Air Chute Co, Inc, Marathon Division, 149 NLRB 627.
However, no prejudice resulted to the Charging Party, as we find herein, in
agreement with the Trial Examiner , that the evidence fails to establish that
Respondent has violated any section of the Act upon which a bargaining
order could be predicated . We also note that the Board has this day issued
its Decision and Certification of Results of Election in Case 3-RM-421 (not
published in NLRB volumes ) adopting the Regional Director's recommenda-
tion that the objections be overruled . In view of the above circumstances, we
find no meet in the Charging Party's exception
i The amended complaint , which issued on June 10 , 1970, is based on
charges and amended charges filed and served in Case 3-CA-3724 on March
12, 21, and 29, 1969, and charges in Case 3-CA-3805 which were filed and
served on June 18, 1%9.
2 Unless otherwise indicated , all dates herein fall in 1969.
3 On January 27, the Union requested that Respondent recognize the
former as the exclusive representative of all production and maintenance
employees, including toolroom and stockroom employees , at its plant in
Tonawanda, New York. On January 30, Respondent filed its petition in Case
3-RM-421 seeking an election in that unit . Thereafter , on February 18, the
parties entered into a Stipulation for Certification Upon Consent Election.
The election was conducted on March 7 , and the Union lost by a vote of 38
to 30. On March 11 , the Union filed a series of objections to the conduct of
this election which were consolidated for hearing by the Regional Director
with the charges in Cases 3-CA-3724 and 3-CA--3805 on June 10, 1970. At
the hearing, the Union stated that it had no desire to proceed to another
election in the immediate future even were Ito sustain the objections, set the
election aside , and order a new balloting . The Union thereupon acquiesced
in the undersigned Trial Examiner's suggestion that , for administrative con-
venience , Case 3-RM-421 should therefore be severed and remanded to the
Regional Director's docket for such further action as he might deem advisa-
ble. The Trial Examiner having ordered such severence , the issues raised by
the objections are no longer before him in this proceeding.
188 NLRB No. 36
CLOVER INDUSTRIES DIV. OF GTI 253
plant directly to States of the United States other than the
State of New York. The complaint alleges, the answer ad-
mits, and I find, that the Respondent is an employer en-
aged in commerce within the meaning of Section 2(6) and
(7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
It is undisputed and I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Contentions
The complaint alleges that, during the first week in Feb-
ruary, Respondent, by its Foreman Edward Kasprzak, cre-
ated the impression ' among its employees that it was keeping
under surveillance their union activities , and stated to its
employees that they must remove union buttons and other
insignia from their clothing, all in violation of Section
8(a)(1) of the Act. The coin laint further charges that, be-
tween February 20 and March 15, Respondent violated
Section 8(a)(3) by discriminating against part-time employ-
ees Martha Felton, Rita Trybuszkiewicz, Donna Gierke,
and Marie Stenzel in that they were provided with less
employment than they normally would have received had
they not joined or assisted the Union. Finally, the complaint
alleges that Respondent refused to bargain with the Union
since January 27 in violation of Section 8(aX5). For its part,
Respondent denies the commission of any labor practices
proscribed by the Statute.
B. The Alleged Violations of
Section 8(a)(1)
Alice Pietrowski worked for the Respondent for approxi-
mately 4 years prior to the termination of her employment
in June 1970. She testified that, in early February, she was
employed as a punch press operator under the supervision
of Foreman Kasprzak and at some previous date had execu-
ted a union authorization card. Pietrowski declared that she
had been a life-long friend of Kasprzak's and that they had
frequently conversed and joked while at work. On an occa-
sion during the first or second week in February, Pietrowski
broached the subject of "blue cards" which had reference
to the union authorization designations. In a jocular vein,
Kasprzak told Pietrowski that the company had the blue
cards in their possession ," and that "he heard some of the
Is were going back in and asking for their cards back."
Pietrowski informed Kasprzak that she disbelieved him and
the matter was dropped.
During the same period , Pietrowski and her fellow em-
ployees wore two Union buttons while at work, one large
and one small. Kasprzak approached Pietrowski at her work
station where she was operating the punch press and ad-
vised her to remove the larger insignia which measured
some 3 inches in diameter. According to Pietrowski, this
advisory was prompted by the circumstance that this button
"was pretty bid" and Kasprzak "told me to take it off for
safety reasons. Pietrowski further testified that she had no
objection to the removal of the large insignia , and that she
and her coworkers continued to display the smaller buttons
on their persons without interference by the foreman.
In his testimony, Kasprzak readily admitted that he in-
structed Pietrowski to remove the large button. In his words,
"I just asked her to remove it and it seems to me as though
it would be dangerous around the machines because they
operated punchpresses which have air guards in the front of
them. It appeared to be at the time that it could be caught
in the air guard . So I don 't know if I explained all that to
her at the time , but I did mention it was a safety factor."
Kasprzak further testified that he similarly advised other
employees who worked on the same equipment , but permit-
ted them , as well as Pietrowski, to continue to wear the
smaller insignia.
On the record before me, I find and conclude that what-
ever passed between Pietrowski and Kasprzak in early Feb-
ruary regarding the "blue cards" did not tend to coerce her
or her fellow employees in the exercise of their rights under
Section 7 of the Act. Pietrowski and Kasprzak were very
close friends who frequently spoke to each other at work
and joked about various matters . Pietrowski conceded that
Kasprzak's reference to Respondent's possession of the un-
ion authorization cards was made in jest and that she did
not actually believe that this was so . Accordingly, I shall
dismiss this allegation from the complaint .4
Nor am I convinced that Respondent offended the prov-
isions of Section 8(axl) by Kasprzak 's instruction to Piet-
rowski to remove the large union button which she was
wearing while operating the punch press . The evidence is
conclusive that the directive stemmed from Kasprzak's con-
cern that Pietrowski might inure herself by wearing this
insignia on her work attire, and that Pietrowski was allowed
to adorn herself with a smaller button . To be sure , employ-
ees possess the Statutory right to wear union insignia during
working time as a legitimate union activity, and an
employyer's interference with this right is generally unwar-
ranted . 5 However, where it is established by probative evi-
dence that the curtailment of this prerogative is necessitated
by the exigencies of plant discipline or safety, the right
lawfully must yield to the directive .6 I therefore find and
conclude that Respondent did not violate Section 8(axl) by
Kasprzak 's instructions to Pietrowski to remove the union
button from her person.
C. The Alleged Violations of
Section 8(a)(3)
Marie Stenzel had worked for Respondent as a part-time
employee for approximately 8 years . In this capacity, she
was employed on a "call-in basis," by which is meant that
she was summoned by Respondent whenever her services
were needed . On January 21, Stenzel signed a union author-
ization card . She testified that, in February, while she was
employed on a part-time basis as a gasket assembler, her
hours of work were reduced without prior notice , and that
she had never previously experienced such a reduction. On
cross-examination , Stenzel was asked again whether the
hours of work had ever fluctuated for part-time workers, to
which she then replied, "I guess so . I really-I don 't recall."
Moreover , she could not recall whether any official of Res-
pondent informed her that her working Hours would be
reduced commencing in February, or whether any official
assigned a reason to her therefor . When uestioned as to
whether Respondent told her that she would suffer a reduc-
tion of hours because she had joined the Union , the witness
responded , "No, definitely not." The parties stipulated that,
if Martha Felton , Rita Trybuszkiewicz , and Donna Gierke
were called to the stand to testimonially report on this issue,
their testimony would parallel that rendered by Stenzel.
Richard Bailey is the general manager for Respondent.
4 See Bauer Aluminum Company, 152 NLRB 1360, 1364-66.
3 See Republic Aviation Corp v. N LR B., 324 U. S. 793 , 801-03.
6 See Fabra-tek, Inc v. NLR. B., 352 F . 2d 577, 585.
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He testified that, beginning in the Fall of 1967 , his gasket
assembly contractors proved unable to supply Respondent
with the needed products, in consequence of which it was
determined that Respondent would fabricate these items in
its plant . Inasmuch as this work was sporadic , with volume
constantly fluctuating , a decision was made to hire house-
wives on a limited or part-time basis . Initially , 13 women
were placed on the employment rolls but , by early 1969, the
number was deescalated to five or six . Beginning on or
about February 22 , Respondent experienced a shortage in
customer orders and this happenstance caused Bailey to cut
down the number of hours worked by the part -time gasket
assemblers . Toward the end of March , business picked up
and the part-time assembly work resumed at its former
pace . Bailey further testified that Respondent 's part-time
employees had experienced a reduction of work hours on
other occasions in the plant . Bailey's testimony stands es-
sentially uncontradicted and I find the facts as he related
them.
The General Counsel asserts in his complaint that Res-
ndent reduced the hours of work of part-time employees
Menzel, Felton , Trybuszkiewcz, and Gierke because they
joined or assisted the Union or otherwise engaged in pro-
tected, concerted activities . All that the General Counsel
has established is that Stenzel , and by virtue of the stipula-
tion, Felton, Trybuszkiewcz, and Gierke , signed union de-
signations on January 21. However , the record is totally
devoid of any evidence that the Respondent was even re-
motely aware that these women had cast their lot with the
Union. Proof of discriminatory motivation must be made of
sterner stuff . Accordingly , I find that, although Respondent
shortened the hours of part-time work for these individuals
during the period from February 22 to the end of March,
this alteration in their working conditions was not prompted
by statutorily proscribed considerations . I therefore con-
clude that Respondent did not violate Section 8 (a)(3) by the
foregoing conduct , and I shall dismiss this aspect of the
complaint.
D. The Alleged Violation of
Section 8(a)(5)
Sometime prior to January 27, Respondent embarked on
an organizational campaign to enlist the collective support
of all production and maintenance employees, including
toolroom and stockroom personnel, at Respondent's plant
in Tonawanda, New York. As heretofore chronicled, on the
above date the Union demanded that Respondent accord
that labor organization recognition as the exclusive bargain-
ing agent for the unit employees . This demand was count-
ered by the filing of Respondent's representation petition
with the Board in Case 3-RM-42 1. In the resultant election
held on March 7, the Union was defeated by a vote of 38
to 30.
At the hearing herein, the General Counsel sought leave
to authenticate the authorization cards signed by more than
50 employees in order to demonstrate that the Union in fact
represented a majority of the employees prior to the election
and that, because of Respondent 's engagement in a series
of unfair labor practices which occurred -before the ballot-
ing, Respondent dissipated the Union's majority and so
coerced and intimidated the voters that their unfettered
electoral sentiments could not be expressed in another elec-
tion. This foray was designed to extract from the under-
signed Trial Examiner an affirmative order by which
Respondent would be required to bargain collectively with
the Union without recourse to the conduct of another vote,
with the General Counsel placing reliance for such an order
on the Supreme Court's decision in N.L.R.B. v. Gissell Pack-
ing Company.7 In that case , the Court observed that the
Board possessed the power to issue a bargaining order to
redress unfair labor practices which were ' so coercive that,
even in the absence of a Section 8(a)(5) violation , a bargain-
ing order would have been necessary to repair the unlawful
effect" of them . The Court also noted that a bargaining
order would also be warranted "in less extraordinary cases
marked by less pervasive practices which nonetheless still
have a tendency to undermine majority strength and im-
pede the election processes."s
Pursuant to the General Counsel's responses to a pretrial
motion for bill of particulars filed by Respondent, it became
manifest at the hearing that the only 'pervasive" unfair
labor practices on which the General Counsel intended to
rely were bottomed on Kasprzak 's single alleged act of cre-
ating the impression that Respondent had surveilled the
union activities of its employees when he spoke to Pietrow-
ski in early February about "blue cards ;" Kasprzak's single
instruction to Pietrowski advising her to remove the large
union button from her person; and, Respondent 's allegedly
discriminatory reduction in the working hours of four part-
time gasket assemblers between February 22 and the end of
March . Convinced as I was that, under the teachings of
Gissell, the General Counsel's pleadings , even if deemed
proven by the evidence , would not warrant issuance of an
affirmative bargaining order, I foreclosed the submission
into evidence of the above-mentioned union designations.
This action was predicated on my view that Respondent's
activities fell within "a third category of minor or Tess exten-
sive unfair labor practices , which because of their minimal
impact on the election machinery will not sustain a bargain-
ing order ." Accordingly , I adhere to my ruling made at the
hearing and conclude that , assuming that Respondent com-
mitted the violations set forth in the General Counsel's com-
plaint , they were not broad enough in scale to sustain the
issuance of a bargaining order under Section 8 (a)(5).1°
Inasmuch as I have heretofore found that Respondent
did not engage in the violations of Section 8(a)(1) and (3)
of the Act as alleged in the complaint, I find and conclude
on this alternate ground that Respondent did not violate
Section 8(a)(5) of the Statute. I shall therefore recommend
that the complaint be dismissed in its entirety."
CONCLUSIONS OF LAW
1. Respondent is 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 has not engaged in and is not engaging in
violations of Section 8(a)l), (3), and (5) of the Act.
RECOMMENDED ORDER
It is hereby ordered that the complaint herein be, and it
hereby is, dismissed in its entirety.
7395 US 575.
s 395 US. 575, 615.
9lbid at p. 614.
10 Central Soya of Canton , Inc., 180 NLRB No. 86.
11 At the hearing, and again in its brief , Respondent moved to dismiss the
alleged violation of Section 8(ax5) for the reason that the General Counsel
indulged in "procedural irregularities" regarding the processing of the
charges in Case 3-CA-3805. In view of my findings and conclusions herein
made on substantive grounds that Respondent did not violate this Section,
I deem it unnecessary to pass on this motion.