The Armstrong Rubber Co.

National Labor Relations Board - Board Decisions

Dec 13, 1984

273 N.L.R.B. 233 (N.L.R.B. 1984)

ARMSTRONG RUBBER CO. - 233
The Armstrong Rubber Company, Pacific Coast Di-
vision and United Rubber, Cork, Linoleum and
Plastic Workers of America, Local No. 703,
AFL-CIO-CLC. Case 32-CA-5876-5
13 December 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER,
On 20 June 1984 Administrative Law Judge Rus-
sell L. Stevens issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in support of
the judge's decision.
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,' and
conclusions 2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, The Arm-
strong Rubber Company, Pacific Coast Division,
Hanford, California, its officers, agents, successors,
and assigns, shall take the action set forth in the
Order.
In adopting the judge's finding that the Respondent violated Sec
8(a)(1) by threatening, disparaging, and harassing Shop Steward Tesor-
'ere because of his activity on behalf of the Union, Chairman Dotson and
Member Hunter do not rely on any of Supervisor Homen's comments to
Tesonere during August 1983 Further, Member Hunter does not rely on
the confrontation between Homen and Tesonere on 17 September 1983
The Respondent has excepted to some of the judge's credibility find-
ings 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
2 In adopting the judge's conclusion that by various statements and ac-
tions of Supervisor Homen directed toWard employee Tesonere the Re-
spondent violated Sec 8(a)(1) of the Act, we do not rely on that portion
of the judge's analysis, in III of his decision, which discusses Homen's
motivation and asserts that once an antiunion motivation on the part of
Homen was shown the burden shifted to the Respondent to show either
that the incidents did not occur or that if they occurred they were unre-
lated to Tesonere's union activity We note that the test for finding a vio-
lation of Sec 8(a)(1) such as that alleged here is whether the employer's
actions reasonably tended to Interfere with, restrain, or coerce the free
exercise of employees' statutory rights American Freightways Co. 124
NLRB 146 (1959)
DECISION
.,„
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge. This
case was tried in Fresno, California on April 26, 1984.1
The complaint, issued November 30, is based on an origi-
nal charge filed September 16 by United Rubber, Cork,
Linoleum and Plastic , Workers of America, Local No.
703, AFL-CIO-CLC (Union);' a first amended charge
filed by the Union on September 30; and a second
amended charge filed by the Union on November 21.
The complaint, as amended at trial, alleges that The
Armstrong Rubber Company, Pacific Coast Division
(Respondent), violated Section 8(a)(1) of the National
Labor Relations Act (Act).
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue• orally, and- to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of counsel for General Counsel and counsel for
Respondent.
On the entire record; and from my observation of the
witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material Respondent; a Connecticut cor-
poration with an office and place of business in Hanford,
California, has been engaged in the manufacture and
nonretail sale of automobile, truck, and tractor tires and
tubes. During the past 12 months, in the course and con-
duct of its business operations, Respondent purchased
and received goods or services valued in excess of
S50,000 directly from suppliers located outside the State
of California.
I find that Respondent is, and at all times material has
been, an employer engaged in commerce within the
,meaning of Section 2(2), ,(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Rubber, Cork, Linoleum and Plastic Workers
of America, Local No. 703, AFL-CIO-CLC is, and at
all times material has been, a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background' -
Anthony Tesonere, a member of the Union, has been
employed by Respondent approximately -17 years as an
industrial mechanic. He has held several offices in' the
Union, and at all times material has beeri the union shop
steward for Respondent's maintenance department. Since
approximately 7 years ago, and at all times material, Te-
sonere's immediate supervisor was Bill Homen, Re-
1 All dates are within 1983, unless otherwise stated
2 This background summary is based on credited testimony and evi-
dence not in dispute
273 NLRB No. 37
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's maintenance foreman, 3 who supervised 10 to
16 employees. Under the collective-bargaining agreement
between Respondent and the Union, the first step of
gnevances in Homen's department often were discussed
by Homen and Tesonere Those two persons attempted
to settle grievances, but written grievances are not seen
by Homen—they are filed with Respondent's mainte-
nance superintendent: During the past year Tesoriere
filed approximately 30 grievances for the 80 employees
of the maintenance department, of which approximately
12 grievances -involved HOmen.
1. The incidents involved
Tesoriere testified that Homen has threatened and har-
assed him on several occasions, as follows: •
a. On August 29 he discussed a grievance with Homen
concerning movement of molds by mechanics, which
movement he contended was improper.
A. Well, I first told him about moving these
molds and why the mechanics were doing the job
instead of the mold repairmen He got upset when I
started talking to him, -and he accused me of just
standing there wasting time and ordered me to get
back to work, get back, to my area and go back to
work.
Q. Did he say anything else?
A. Other than accusing me of wasting time, no,
he just told me to get back to' work.
Q. Did he indicate that he would correct the situ-
ation or not correct it?
A He did say he wouldn't do anything about it
He said ,the mechanics were moving molds and that
was it. He couldn't do, any further than that
b. On August 30 he was called by Homen to the office
of Tom Driver, Respondent's maintenance superintend-
ent, to represent an employee, John Smith, who was
being investigated. As he left the . Office, Homen, was
standing just outside the door, Homen stated to him,
"You were in there long enough. Let's get back to
work."
c On August 26 again he was called by Homen to
Driver's office to represent employee Bob Clay, who
was being investigated by Respondent Again Homen
was just outside the door when Tesonere left Driver's
office. Homen said "I'd been in there long enough with
Bob Clay and to go back to work."
d. On August 16 Tesonere filed a grievance on behalf
of employee Al Palomo,. and on that day Homen called
Tesonere to Driver's office for an investigatory inter-
view of Palomo by Driver The meeting was attended by
Palomo, Driver, Romen, and Tesonere. Palomo later
left, and a second grievance hearing then was held for
employee Les Davis,' with the same people present. As
everyone was leaving after the meeting, Homen ap-
proached Tesoriere outside the office, and appeared
angry. Homen "told me we'd been in there long enough
again, and it was time to get back to work."
-
3 Homen's supervisory status is not in dispute
e. On September 15 a mechanic named John Borba
told Tesonere he wanted to file a written grievance
against Homen because Homen had taken tools from
Borba's toolbox and was using them Tesoriere said he
first would like to discuss the matter with Homen Later
that afternoon Tesonere approached Homen.
A. I stopped Bill Homen in the same area, in the
maintenance shop by the battery area, and I said to
Bill, "Just a minute, Bill, I'd like to speak to you for
a minute" And he stopped, he was on his bicycle,
and, he stopped. And I said, "I understand you've
been using tools out of a mechanic's tool box and
I'd like you to stop it." And at first he denied it: He
said, "No, I wasn't working. I wasn't using anyone's
tools." And he paused for a minute, and then - he
Just came unglued and he called, he said to me,
"You little mother-fucker, I'll get you, I'll get you,
if it's the last thing I .do. I'll get you." And'he was
screaming and waving his arms when he said it.
And we weren't but a few feet apart. He jumped on
his bicycle and he rode off in the direction of the
plant.
f. On September 17 Tesoriere talked with Homen:
A. Well, I was standing at the tool crib, at the
counter there, and -Bill Homen came riding up on
his bicycle, stopped and just started shouting and
screaming right in my face, and we were nose-to-
nose, wasn't a foot apart. He said, "You little son-
of-a-bitch, there you are Just the other day you
wanted to write a grievance against me and now
here you are standing here" And he was just—he
was waving his arms, he was very—I thought lie
was going to hit me at one point, because he was
just moving his arms and had a fist in front of my
face. And then he jumped on his bicycle, and I said
all I was trying to do was first-step grievance, and I
don't even know if he heard me. He jumped on his
bicycle and he took off and he went back towards
the shop or the curing area.
g On Monday, October 17 he talked with Homen
before going to work late, at 11 a m He was late because
he had been attending to union business as a trustee, with
an absence excuse from management
A. Well, I'd gone upstairs to change clothes, get
into my work clothes to go to work. And Homen
came up there and he stood down the edge of the
aisleway and he said, "So, there you are!" He said,
"You're off all day Friday, and you're off half a day
today on union business, and this shit has got to
stop." And that was it. He turned around and he
left and he left the locker roomi
Tesonere had been absent the preceding Friday on union
business as a trustee, with an absence excuse from man-
agement.
h. On October 18, shortly after 8 am •
ARMSTRONG RUBBER CO 235
• A. Well, Homed approached me that morning,
cleaning his bicycle, and he had a can- of—a spray
bottle in his hand, of eye-glass cleaning solution. He
come over to me with it, and he sprayed thew .all
around my head and shoulders , with it, it got in my
coffee, I was holding a cup of coffee, it got into my
coffee, and he just started to chuckle, he said, "All
right, get to work." •
He got this stuff all over me, all around me, and
in my coffee. I just took my coffee cup and I threw
it in the waste basket that was there and I just left
the area and went into work.
Homen testified relative to Borba:
A. I remember . he had—Tony had 'stopped me
that day, that morning, and he said he wa g going to
have to turn a grievance in or I'd been using tools,
and I said—I denied it, no. And I said, "I'll talk to
you about it later." And I rode off. •
Homen denied that he ever talked, or had a confronta-
tion, with Tesonere while cleaning his bicycle. He also
denied spraying Tesoriere with cleaning fluid
Discussion
Generally speaking, Tesonere was a more convincing
witness than Homen. He seemed sincere, straightfor-
ward, and candid in his testimony. His version - of events
is credited.
Homen not only was not cOnvincing—he 'did not deny
most of Tesonere's testimony. His denials principally in-.
volved only the Borba incident and the matter of spray-
ing the cleaning fluid.
Prima facie, in view of the number of incidents in-
volved and the single theme of those incidents, i.e., all of
them occurred directly or indirectly in relation with Te-
sonere's activity on behalf of the Union, Homen was mo-
tivated by a desire to restrain, interfere with or coerce
Tesonere in his union activity. It then became Respond-
ent's burden to prove that the incidents did not occur, or
that, if they did occur, they were not related to Tesor-
iere's union activity. That burden was not met There is
no evidence that Tesonere and Homen were engaged in
a personal feud, or that Tesonere had been goofing off
and needed to be prodded to get him to work, or that
Homen's actions against Tesonere were motivated by
anything other than a dislike of the latter's union activi-
ty. No reason was shown for such a dislike, but that fact
is irrelevant. It is found that Homen's actions in all inci-
dents were dictated by his desire to restrain, interfere
with, or coerce Tesonere in his union activity.
Possibly one or more of the incidents Tesonere related
would not constitute violations of the Act, if they were
considered in a vacuum For instance, Homen's direction
to Tesonere to get back to work because he had been in
with Driver and fellow employees long enough, possibly
would not, in the absence of anything else, be a violation
of the Act. However, that is not this case It is apparent
that Homen seized every opportunity to threaten or
harass Tesoriere because the latter was acting in behalf
of grieving employees. There is a pattern of conduct, not
just one or two isolated incidents. Whatever may have
been Homen's reason to be annoyed by Tesoriere's activ-
ity, it is clear that the reason was related to the Union.
Homen supervised Tesonere all day every day, yet there
is no evidence that his- comments discussed above ever
were related to any activity other than union activity.
, • Homen made plain to Tesoriere his views of the lat-
ter's union activity. It is not necessary to dwell on impli-
cations. On August 16 Homen told Tesonere, after wait-
ing outside during an interview, that Tesoriere had been
in Driver's office long enough with a grievant—that he
should get back to work. On August 26 he repeated that
-action—he waited outside the- office for Tesonere to
finish the grievance interview, and again told him to get
back to work. On August 30, Homen• again waited out-
'side the office until a grievance interview was over, and
then told Tesonere that he had been in the interview
long enough, and to get back to work On September 15,
angered- by a grievance, Homen threatened Tesoriere
get you . if it's the last thing I do. I'll get you."
On September 17 Homen swore at Tesoriere because the
latter had been involved with a grievance. On October
17, Homen objected to Tesoriere's being off work on
union business, and threatened that "this shit has got to
stop" On October 18, Homen assaulted Tesoriere with
cleaner spray. That assault, standing alone, possibly
Would be ambiguous. However, it does not stand alone—
it followed an earlier threat by Homen to "get" Tesor-
iere, 1 and a threat the day before concerning Tesoriere's
Union activity, "this shit has got to' stop." Those ' actions
by Homen clearly were coerciVe, and constituted threats
and harassment in violation of the Act, as alleged in the
complaint.4
On the basis of the foregoing findings of fact and on
the entire record, I make the following
CONCLUSIONS OF LAW
1 Respondent The Armstrong Rubber Company, Pa-
cific Coast Division is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2 United Rubber, Cork, Linoleum and Plastic Work-
ers of America, Local No 703, AFL-CIO-CLC is a
labor organization within the meaning of Section 2(5) of
the Act.
3 Respondent violated Section 8(a)(1) of the Act by
threatening, disparaging, and harassing a union shop
steward because of the steward's activity on behalf of
the Union.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, it is recommended that Respondent be
ordered to cease and desist therefrom, and to take certain
affirmative action designed to effectuate the policies of
the Act.
4 Davis Coal Ca, 266 NLRB 1072 (1983), Chrysler Corp, 245 NLRB
554 (1979), Grane Trucking Co, 241 NLRB 133 (1979), Westinghouse
Electric Corp, 237 NLRB 578 (1978)
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed
ORDER
The Respondent The Armstrong' Rubber • Company,
Pacific Coast Division, Hanford, California, its officers,
agents, successors, and assigns, shall -
1. Cease and desist from
(a) Violating Section 8(a)(1) of the Act by threatening,
disparaging and harassing a union shop stewaid because
of the of the steward's activity -on behalf of the Union.
(b) In any like or related manner interfering with, re-
straining or coercing employees in the exercise of rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Post at its facility copies- of the attached notice
marked "Appendix." 6 Copies of the notice, on forms
provided by the Regional 'Director for Region 32, after
being signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediately
5 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
6 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
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 Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(b) Notify the Regional Director in writing 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
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.
WE WILL NOT violate Section 8(a)(1) of the Act by
threatening, disparaging, and harassing a union shop
steward because of the steward's activity on behalf of
the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or' coerce employees in the exercise of
rights guaranteed them in Section 7 of the Act
THE ARMSTRONG RUBBER . COMPANY, PA-'.
CIFIC COAST DIVISION