Petersburg Mfg. Co.

National Labor Relations Board - Board Decisions

Dec 14, 1977

233 N.L.R.B. 1236 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Petersburg Manufacturing Company and United Shoe
Workers of America, AFL-CIO. Case 6-CA-
10072
December 14, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On September 23, 1977, Administrative Law Judge
Claude R. Wolfe issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a statement of position in opposition to Respondent's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and the
statement of position and has decided to affirm the
rulings, findings,' and conclusions of the Administra-
tive 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Petersburg
Manufacturing Company, Petersburg, Pennsylvania,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order.
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule 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
CLAUDE R. WOLFE, Administrative Law Judge: I heard
this case at Huntingdon, Pennsylvania, on August 3, 1977,
pursuant to a complaint issued on May 31, 1977, and
charges and amended charges timely filed by United Shoe
Workers of America, AFL-CIO, herein the Union. The
complaint alleges that Petersburg Manufacturing Compa-
ny, herein the Respondent, by its supervisor and agent,
I All dates are 1977.
2 Although the testimony is confused as to the date, I conclude that
Houck's credible testimony that the event occurred after he got out of the
233 NLRB No. 177
William Brennerman, illegally threatened employees with
cessation of operations in violation of Section 8(aX 1) of the
Act. The Respondent denies the commission of unfair
labor practices.
Upon the entire record, including my observation of the
witness as they testified, and after careful consideration of
the parties' posthearing briefs, I make the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
The Respondent is a corporation engaged in the
manufacture and nonretail sale of women's nightwear.
During the 12-month period immediately preceding the
issuance of the complaint, the Respondent received at its
Petersburg, Pennsylvania, facility goods and materials
valued in excess of $50,000 directly from points outside the
Commonwealth of Pennsylvania. During the same period,
the Respondent shipped goods and materials valued in
excess of $50,000 from its Petersburg, Pennsylvania, facility
directly to points outside the Commonwealth of Pennsylva-
nia. The Respondent is now, and has been at all times
material herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
The Union is now, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
I111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
On March 18, 1977,1 the Union filed a petition with the
Board for an election among production and maintenance
employees at the Respondent's Petersburg plant, which
employs approximately 85 people. The Respondent con-
cedes, by its plant manager, Leiby, that it was aware of
union activities on March 14 from a union demand letter,
but denies any prior knowledge of union activities at the
plant.
One Donna Schandelmeir was discharged on March 3. It
appears that the Union commenced its organizational
activities shortly before her discharge.
Employees Joseph Patterson, Mark Yablonsky, and
Phillip Houck, Jr., testified to an incident occurring about
a week after March 3.2 Patterson reported that he,
Yablonsky, Houck, and employee Gary Feagley were
talking with admitted Supervisor William Brennerman
during lunchtime, and that Yablonsky and Patterson were
talking about Schandelmeir's discharge when someone
asked if she was fired because of the Union, and received a
reply from one of the other employees that she was not, so
far as he knew. At this point, according to Patterson,
Brennerman said that the Respondent's vice president, Abe
David, had said that if "they" tried to get a union in he
hospital, which followed Schandelmeir's discharge by about a week,
establishes the approximate date.
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PETERSBURG MANUFACTURING COMPANY
would shut the place down and move it. This is the first
time Patterson heard Brennerman mention the Union, or
heard it mentioned in front of Brennerman.
Mark Yablonsky only remembered that he, Patterson,
and Brennerman were present during the conversation. He
testified that the three were talking and the Union came up
in the conversation, to which Brennerman said that Abe
David had said that if the Union ever tried to get in the
plant, he would close the plant down. On cross-examina-
tion, Yablonsky elaborated that he mentioned that Schan-
delmeir had been fired, that Patterson asked why, and
Yablonsky stated it was probably because of the Union but
that some of the women employees had said it was because
she was not working. At this point, Yablonsky continued
on cross-examination, Brennerman made his statement
about what David had said.
Houck testified that he, Patterson, Yablonsky, and
Feagley3 were talking when Brennerman punched in and
joined them at a time when the employees were talking
about Schandelmeir's discharge and one of them, unnamed
by Houck, said something about the Union coming in. He
further averred, "I was pretty sure Bill said, if the union
would come in, the plant might shut down, he didn't say
for sure if it would or it wouldn't." According to Houck, he
then turned his head and started to return to work when
someone said that the plant "could close down if they got a
union," but Houck said he could not say who made this
last remark. On cross-examination, Houck stated that he
was not certain what Brennerman said, "but it sounded like
he was saying something about if the union was having to
come in, the plant might shut down."
Brennerman claimed that he never heard about any
union activities until "on or about March 21 st," when Plant
Manager Leiby told him not to say anything to the
employees about the Union, and that the Union was trying
to get in. Brennerman denied making any statement such
as that testified to by the three employees, or that any of
them ever mentioned union activity to him, or that he ever
discussed the Union with any of the three in any manner.
B. Conclusions
Contrary to the General Counsel, I do not consider
evidence adduced that Plant Manager Leiby expressed
overt hostility to the Union in late March or early April 4 to
be in any way supportive of the allegations of the
complaint. Simply put, if Brennerman made lawful state-
ments in March, Leiby's later expressions of hostility
would not make them illegal, and if Brennerman made
unlawful statements in March I do not comprehend how
Leiby's hostility would make them any more unlawful than
they originally were or render them other than isolated if
they were isolated.
In assessing the credibility of the various witnesses, I
note that Yablonsky and Houck were still employed at the
3 Feagley was not called as a witness.
4 General Counsel expressly disavowed any allegation that Leiby's
hostility was unlawful, and I agree.
s "Having thus much to lose, their testimony, adverse to Respondent,
was in a sense contrary to their own interests and for this reason not likely to
be false." Federal Stainless Sink Div. of Unarco Industries, Inc., 197 NLRB
489, 491 (1972).
6 If I were to conclude that Brennerman said the plant "might" be closed
if union activity ensued, such language would still constitute a threat.
time of the hearing, were still under the supervision of
Brennerman, and were figuratively treading on deep waters
as they testified directly contrary to Brennerman who had
the power to exert day-to-day pressure on them in the
performance of their work.5 It is also significant, in my
opinion, that Yablonsky, Houck, and Patterson did not
testify exactly in the same manner, but appeared to be
honestly setting forth their personal best recollections of
what occurred, with no indication of invention or exaggera-
tion. This conclusion is supported by Houck's understand-
able reluctance to testify under oath to details of the
conversation with Brennerman of which he did not have a
sure and certain recollection. From the foregoing, and a
comparison of the testimonial demeanor of the three
employees with that of Brennerman, I am persuaded that
Brennerman's denial of any discussion of the Union with
the employee witnesses is not worthy of credit. I am further
persuaded that what actually happened is best reflected in
the testimony of Yablonsky and Patterson in view of
Houck's rather vague recollections and conclusionary
testimony. Accordingly, I conclude and find that Brenner-
man did, sometime during the second week in March, tell
employees that Respondent's vice president, Abe David,
had said he would close the plant if there was any effort to
get the Union in. I do not, on the basis of the evidence
before me, conclude that Abe David in fact did or did not
make the statement attributed to him by Brennerman, but
the employees to whom Brennerman spoke could justifi-
ably conclude that their supervisor knew whereof he spoke
without need of any independent investigation into the
truth of his statements. Brennerman's statement was a clear
threat that the Respondent would close the plant if
employees engaged in union organizational activities. 6 The
Company admitted in its answer that Brennerman was a
supervisor and an agent. That he was apparently the lowest
ranking supervisor at the facility does not alter the fact that
unlawful threats made by any supervisor are imputable to
the employer.7 Accordingly, I find that the Respondent, by
its supervisor, William Brennerman, did, during the second
week in March 1977,8 threaten its employees with plant
closure in order to discourage union activities, and thereby
violated Section 8(aX)() of the Act.
I agree with General Counsel that the threat was not
"isolated" inasmuch as it was made to four employees and
was of such a serious nature as to become a subject of
discussion and repetition among the other employees and
thereby unlawfully inhibit them in their union activities.
Accordingly, a cease-and-desist order is required to remedy
the violation.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices within the meaning of Section 8(aX I) of the
I See, e.g.. N. LRB. v. Elliott-Williars Co., 345 F.2d 460, 462-463 (C.A.
7, 1965). In the instant case, the invocation of the name of Abe David, a
high management official, can reasonably be concluded to have escalated
the impact of Brennerman's statement on the employees.
8 The allegation in the complaint that the threat was made "on or about
March 4. 1977" is sufficient to support such a finding without necessity of
ascertaining the exact date. Omico Plastics., Inc., 184 NLRB 767. 770 (1970).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act, the Respondent will be ordered to cease and desist
therefrom and take appropriate affirmative action.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(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. By threatening its employees with plant closure in
the event they assisted or supported the Union, the
Respondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed them in
Section 7 of the Act, and has thereby engaged in unfair
labor practices within the meaning of Section 8(a (1) of the
Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER 9
The Respondent, Petersburg Manufacturing Company,
Petersburg, Pennsylvania, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Threatening its employees with plant closure for
engaging in union activity or giving assistance or support
to the Union.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action:
(a) Post at its Petersburg, Pennsylvania, facility copies of
the attached notice marked "Appendix." 10 Copies of said
notice, on forms provided by the Regional Director for
Region 6, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply with this Order.
9 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.
io In the event that the Board's Order is enforced by a Judgment of a
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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees with plant closure
for engaging in union activity or giving assistance or
support to the United Shoe Workers of America, AFL-
CIO, or any other union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of rights guaranteed them by Section 7 of the Act.
PETERSBURG
MANUFACTURING COMPANY
1238