Mercedes-Benz U.S. International, Inc. (MBUSI)

National Labor Relations Board - Board Decisions

Mar 3, 2020

369 N.L.R.B. 38 (N.L.R.B. 2020)

369 NLRB No. 38
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Mercedes-Benz U.S. International, Inc. (MBUSI) and
Michael Kirk Garner. Case 10–CA–226249
March 3, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On July 26, 2019, Administrative Law Judge Arthur J.
Amchan issued the attached decision. The General Coun-
sel filed exceptions and a supporting brief, and the Re-
spondent filed an answering brief. In addition, the Re-
spondent filed cross-exceptions with supporting argu-
ment, the General Counsel filed an answering brief, and
the Respondent filed a reply brief.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended Or-
der.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Dated, Washington, D.C. March 3, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Joseph W. Webb, Esq., for the General Counsel.
Marcel L. Debruge and Michael L. Lucas, Esqs. (Burr Forman,
LLP), of Birmingham, Alabama, for the Respondent.

1 The General Counsel has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, ADMINISTRATIVE LAW JUDGE. This case
was tried in Birmingham, Alabama, on June 19, 2019. Michael
Kirk Garner (hereinafter referred to as Kirk Garner) filed the in-
itial charge on August 24, 2018, and then filed two amended
charges. The General Counsel issued the complaint on March
12, 2019.
The General Counsel alleges that on August 10, 2018, Re-
spondent Mercedes-Benz, by Supervisor Don Fillmore, violated
Section 8(a)(1) of the Act by threatening Kirk Garner with un-
specified reprisals when Fillmore told Garner not to get his work
group stirred up over the issue of training contract employees.
He also alleges that Respondent, by Supervisor Timothy Ivory,
violated Section 8(a)(1) on August 13, 2018, by polling employ-
ees as to whether they agreed with Garner’s objection to training
contract employees in their department.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, manufactures and sells automo-
biles at its facility in Vance, Alabama, where it annually sells
goods valued in excess of $50,000 directly to points outside of
Alabama. Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
In August 2018, Respondent was preparing to launch a new
vehicle model. As part of that launch it decided to hire tempo-
rary contract workers in the GFP quality department. This de-
partment performs that last quality inspection of automobiles be-
fore they leave the plant for sale to dealerships. The GFP depart-
ment works three shifts, A, B, and C. A and B shift rotate every
2 weeks between mornings and afternoons. C shift, the night
shift, does not rotate. Each shift in the GFP department consists
of 15‒17 employees and is split into two groups; the static group,
which, for example, tests the torque on bolts and the dynamic
group which test drives cars. The GFP department tests about 5
percent of the cars leaving the assembly area; other quality tests
are performed before vehicles get to GFP.
Don Fillmore is the Group Leader of the B shift; Timothy
Ivory is the Group Leader of the A shift. Respondent admits that
in August 2018 they were statutory supervisors and agents of
Mercedes-Benz. There is no group leader present in the plant
during the C shift. This shift is managed by Fillmore and Ivory
jointly.
Cir. 1951). We have carefully examined the record and find no basis for
reversing the findings.
Because we adopt the judge’s dismissal of the allegation that the Re-
spondent unlawfully interrogated employees, we find the Respondent’s
cross-exception, contending that the allegation was not fully litigated, is
moot.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
On August 7, 2018, Fillmore informed GFP employees that
Respondent would be hiring temporary contract employees and
that the more experienced “level 4” employees would train these
contract employees. Kirk Garner, a level 4 employee on the C
shift, went to Respondent’s human resources department and an-
nounced that he did not want to train these employees.1 A human
resources representative told Garner that he did not have to do
so. Garner had spoken to some co-workers about this before go-
ing to human resources. Several were unhappy about Respond-
ent asking them to train the temps.
On August 9, at the changeover between the B and C shifts,
Garner approached Fillmore and told him that neither he nor any
other employee wanted to train the contract employees and that
“we” didn’t want them at the plant. Fillmore said no other team
member had told him they didn’t want to train the temps and that
Garner could only speak for himself. He also asked Garner if he
wanted to speak to human resources about this. Garner told Fill-
more that he had already done so and had been told that he did
not have to train the contract employees. Fillmore told Garner
that he would verify that and if that were so, he’d abide by human
resources’ decision.2
Garner spoke to Fillmore again the next day. He reiterated
that he and other employees did not want to train the contract
employees and did not want them in the department. Garner told
Fillmore that he (or the company) would be embarrassed because
nobody wanted to train the contract employees. Fillmore re-
sponded, “Kirk, please do not disrupt the group, because that will
not help or be good for anyone. We all have a job to do and its’s
going to take everyone to do it.”3
Fillmore told Ivory, Group Leader on the A shift, about his
conversation with Garner. At a preshift meeting with the C shift
on August 13, Ivory told the 15‒17 employees present that he’d
been told that Garner had said that nobody wanted to train the
contract employees. He asked for a show of hands as to whether
or not that was true. Two employees, Garner and Kylie Meddor
raised their hands—indicating that they did not want to train the
contract employees. The meeting ended and C shift went to
work. Apparently, most of the C shift level 4 employees trained
the temporary workers as requested.
Conclusions and Analysis
The alleged threat
Respondent’s human resources department had advised

1 At p. 4 of his brief, the General Counsel states that the UAW has
been engaged in an organizing campaign at the Vance plant for 2 decades
and that the Board found that Respondent violated Sec. 8(a)(1) in 2014.
This is not mentioned in the record of this case. However, I take judicial
notice of the Board’s decision at 361 NLRB 1028 (2014) which was re-
manded at 838 F. 3d 1128 (11th Cir. 2016). This case ended up in a
formal settlement in which Respondent agreed that it violated the Act in
prohibiting union literature distribution in the team center located be-
tween C-01 and F1-18 (the Gilbert Team Center) in Assembly 2 during
the time immediately before the preshift meeting and during designated
breaks by employees who are not on working time. According to these
decisions, Garner is an in-house leader of the organizing drive and filed
at least some of the charges giving rise to the prior case. However, I find
that all of the above is irrelevant to the disposition of this case.
Garner that he did not have to train the temp workers if he didn’t
want to do so before Garner spoke to Fillmore. Fillmore did not
hint at any adverse consequences if Garner continued to refuse
to perform this training. Moreover, there is nothing illegal in
Fillmore pleading with Garner to refrain from getting other em-
ployees to refrain from doing the training when nobody else had
indicated to Fillmore that they did not intend to do it. Fillmore
also did not threaten Garner with any adverse consequences if
Garner encouraged other employees to opt out of the training.
It is unclear what one objectively would understand, “that will
not help or be good for anyone” means in this context. It could
be reasonably understood to mean a lot of things particularly
since this statement was made in response to Garner’s statement
that Respondent would be embarrassed if it brought the temp
workers into GFP. Garner could have reasonably interpreted this
to mean nothing more than he would be making Fillmore’s life
more difficult and/or that a mass refusal to train the temps would
make them feel unwelcome and/or that it would make it signifi-
cantly more difficult to train the temps so that they could ade-
quately perform their tasks. The comment does not necessarily
suggest that Fillmore or Respondent would retaliate against Gar-
ner or anyone else if Garner encouraged others to refuse to train
the temps or protest this assignment.4 I find that Fillmore did not
interfere with, coerce, and restrain Garner in the exercise of his
Section 7 rights.5
The allegedly illegal poll
The lead case on “polling” is Struksnes Construction Co., 165
NLRB 1062 (1967). However, that case dealt specifically with
a poll conducted to determine the truth of a union’s claim to rep-
resent a majority of unit employees. Thus, Struksnes is not con-
trolling in this case. More apt to this case is the Board’s decision
in Preterm, Inc., 240 NLRB 654, 655, 674‒75 (1979). In that
case the Board found it was not illegal for a healthcare institution
to send employees a questionnaire asking them if they intended
to strike. The questionnaire explained that Respondent wanted
the answers to plan for incoming patients. It also stated that there
would be no reprisals against employees who replied that they
would not show up for work on the first day of the strike.6
The General Counsel briefed this case as an interrogation ra-
ther than a polling case. Thus, I believe the general test to be
applied in this case is Rossmore House, 269 NLRB 1176 (1984),
affd. 760 F.2d 1006 (9th Cir. 1985). Pursuant to the Rossmore
test,
2 There is conflicting and confusing testimony as to whether Garner
had spoken to human resources prior to this conversation and when Fill-
more became aware that Garner had been told by HR that he did not have
to do the training. I find that Garner had received permission from HR
to opt out of the training before he spoke to Fillmore and that he told
Fillmore that on August 9.
3 Garner’s testimony is that Fillmore said, “don’t get the group started
up over this issue.” I do not see any material difference in their accounts.
4 As Respondent points out, a mass refusal to perform an assigned
task could be an illegal partial strike.
5 The cases cited by the General Counsel are easily distinguishable.
The admonitions in those cases were accompanied by explicit threats.
6 The Board found a 8(a)(1) violation in that the employer later ver-
bally threatened two employees with termination if they decided to
strike.
MERCEDES-BENZ U.S. INTERNATIONAL, INC. 3
[I]t is [well established] that interrogations of employees are
not per se unlawful but must be evaluated under the standard
of “whether under all the circumstances the interrogation rea-
sonably tended to restrain, coerce, or interfere with rights guar-
anteed by the Act.”
In making that determination, the Board considers such fac-
tors as the background, the nature of the information sought, the
identity of the questioner, the place and method of interrogation,
and whether or not the employee being questioned is an open and
active union supporter, Norton Audubon Hospital, 338 NLRB
320, 320‒321 (2002).
I view Ivory’s asking for a show of hands to be a group inter-
rogation, as well as, or instead of, a “poll.” Given the lack of a
threat and the need for Respondent to plan for the training of the
temp workers, I find Respondent, by Ivory, did not violate the
Act. It is particularly important to note that Ivory, a first line
supervisor, was at least unsure as to whether or not a sufficient
number of level 4 employees would be willing to train the temp
workers. Thus, I find that it was reasonable and non-coercive for
him to inquire as to whether Respondent had to come up with an
alternate plan to accomplish this training.7 Since there is nor-
mally no group leader present on C shift a mass refusal to train
the temps might have required Respondent to assign a group
leader (possibly Fillmore and/or Ivory) to that shift while the
temp workers were present.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
The complaint is dismissed.
Dated, Washington, D.C. July 26, 2019

7 It would not have been illegal for Ivory to tell employees that if they
came to work, they would be required to train the temporary workers.
8 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 purposes.