Vulcan-Hart Corp.

National Labor Relations Board - Board Decisions

Apr 17, 1980

248 N.L.R.B. 1197 (N.L.R.B. 1980)

VULCAN-HART CORPORATION 1197
Vulcan-Hart Corporation (St. Louis Division) and
Stove, Furnace and Allied Appliance Workers
International Union of North America, AFL-
CIO, Local No. 110. Case 14-CA-12709
April 17, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On September 28, 1979, Administrative Law
Judge Robert C. Batson issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting 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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,1
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.
The Respondent for some 5 years permitted the
Union to use the company lunchroom after hours
for union meetings. Then on June 22, 1978, Klohr,
Respondent's plant manager, told the Union's vice
president in the presence of a number of employees
that there would be no meetings in the lunchroom
because the Union had filed charges against him.
Thereafter, the Union no longer held meetings in
the lunchroom.
The Administrative Law Judge found that
Klohr's statement was a threat to discontinue the
Union's use of the lunchroom and, therefore, vio-
lated Section 8(a)(4) and (1) of the Act as alleged.
He further held that Klohr did not, insofar as the
record shows, in fact revoke the Union's permis-
sion to use the lunchroom, but only threatened to
do so. In rationalizing his position, he noted that
the Union's discontinued use of the lunchroom was
not shown to have resulted from Klohr's statement,
and further that the complaint alleged only a threat
to revoke permission.
We conclude, however, that Klohr's statement
on its face constituted a withdrawal of permission
to use the lunchroom, and not a threat of such
I 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 credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings
However, in his Decision, the Administrative Law Judge inadvertently
referred to Local I 10's vice president as one"White," rather than as
Leroy Miller, who, as reflected in the record, held that position
248 NLRB No. 145
action. Clearly, it was his intent, as he concedes, to
deny further use, and his language-"there will be
no more meetings in the lunchroom"-seems to us
to have unambiguously conveyed that intent. And
the Union's failure thereafter to use or to attempt
to use the lunchroom for meetings shows, absent
any other explanation and contrary to the Adminis-
trative Law Judge's conclusion, that the Union
construed the statement as intended; namely, as
precluding its further use of the lunchroom for
meetings.
Thus, we find that Respondent, through Klohr,
revoked permission to use the lunchroom for union
meetings, rather than merely threatening to do so
as found by the Administrative Law Judge. Since
we are in agreement with him that the reason for
the revocation was the Union's filing charges
against Respondent, we further find that the revo-
cation was unlawful. In so doing, we recognize
that the complaint only alleges an unlawful threat
to close. It is clear, however, that the fact of actual
revocation of permission was fully litigated. As
noted, Klohr conceded that he intended to with-
draw permission, and Respondent's defense is based
in substantial part on the asserted fact that Klohr
did revoke the privilege of holding union meetings
in the lunchroom. In view of this, we find that,
notwithstanding the alleged violation is couched in
terms of a threat, the issue was presented and liti-
gated as an actual revocation. Consequently, our
finding a violation in those terms represents noth-
ing more than a conformation of the pleadings to
the facts found.
Accordingly, we find that, by revoking its per-
mission to use the lunchroom because the Union
had filed a charge against it, Respondent discrimi-
nated against its employees and further restrained
and coerced them with respect to their possibly
filing such charges in the future, all in violation of
Section 8(a)(4) and (1) of the Act.
As a consequence of our findings above, we shall
modify the recommended Order by deleting the
recommended provision that Respondent cease and
desist from threatening to revoke for unlawful rea-
sons permission to use the lunchroom for union
meetings, and by adding provisions that it cease
and desist from revoking such permission for un-
lawful reasons, that it permit its employees and the
Union to use the lunchroom for union meetings as
in the past, and that it notify them that they have
permission to do so.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
VULCAN-HART CO PORATION
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Vulcan-Hart Corporation (St. Louis Division),
Kirkwood, Missouri, its officers, agents, successors,
and assigns, shall take the action set forth in the
said recommended Order, as so modified:
1. Substitute the following for paragraph l(a):
"(a) Revoking its permission for its employees
and the Union's permission to use Respondent's
lunchroom for union meetings, as in the past, be-
cause the Union has filed unfair labor practice
charges against it with the National Labor Rela-
tions Board."
2. Insert the following as paragraph 2(a) and re-
letter the subsequent paragraphs accordingly:
"(a) Permit its employees and the Union to use
the lunchroom for union meetings in the same
manner and to the same extent they were permitted
to use the lunchroom for such meetings prior to
June 22, 1978, and notify them that they have per-
mission to do so."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT revoke our permission for
our employees or the Union to use our lunch-
room for union meetings, as in the past, be-
cause the Union has filed unfair labor practice
charges against us with the National Labor
Relations Board.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the National Labor Rela-
tions Act, as amended, including the right to
file unfair labor practice charges against us as
provided in the Act.
WE WILL permit our employees and the
Union to use our lunchroom for union meet-
ings as in the past, and WE WILL notify them
that they are free to so use the lunchroom.
VULCAN-HART CORPORATION (ST.
LOUIS DIVISION)
DECISION
STATEMENT OF THE CASE
ROBERT C. BATSON, Administrative Law Judge: This
proceeding under the National Labor Relations Act, as
amended, 29 U.S.C. Sec. 151, et seq. (herein called the
Act), was heard before me on August 23, 1979,' at St.
Louis, Missouri, based upon a complaint and notice of
hearing issued by the Regional Director for Region 14
(St. Louis, Missouri), on July 18, 1979, growing out of a
charge and an amended charge filed by Stove, Furnace
and Allied Appliance Workers International Union of
North America, Local No. 110 (herein called the Union),
on June 21 and 29, respectively, alleging that Vulcan-
Hart Corporation (St. Louis Division) (herein called the
Respondent) had violated Section 8(a)(4) and (1) of the
Act by telling its employees that it was revoking the
privilege previously extended to the Union to use its
lunchroom for union meetings because the Union had
filed charges with, and the employees had given affida-
vits to, the National Labor Relations Board (herein
called the Board).
At the hearing the Respondent admitted all allegations
of the complaint, including the allegation that it told the
employees that it withdrew the use of its lunchroom for
union meetings because the Union filed the original
charge herein on June 21, wherein it charged that the
Respondent, on June 13, had spied upon and kept "under
surveillance union members and adherents, meetings,
meeting places and union activities." The thrust of the
Respondent's defense is that such conduct does not vio-
late the Act in that the filing of such charges based upon
the mere presence of a management official in the plant
during union meetings would interfere with its right to
conduct its business.
Upon the entire record, including consideration of
briefs filed by the counsel for the General Counsel and
the Respondent, and upon substantial reliable evidence, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The complaint alleges, the Respondent admits, and I
find that it is a corporation doing business in the State of
Missouri, which maintains an office and place of business
in the city of Kirkwood, where it is engaged in the man-
ufacture, sale, and distribution of walk-in coolers and
freezers, reach-in coolers and freezers, beverage coolers,
and related products. During the 12-month period imme-
diately preceding the issuance of the complaint herein,
which is a representative period, the Respondent sold
and shipped from its Kirkwood, Missouri, plant finished
products valued in excess of 50,000 directly to points
located outside the State of Missouri. Accordingly, I find
that at all times material herein the Respondent is, and
has been, an employer within the meaning of Section
2(2) and engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent admits, and I
find that the Union is, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
I All pertinent events in this case occurred during the calendar year
1979. Unless otherwise indicated all months and dates hereafter are 1979.
VULCAN-HART CORPORATION 1199
III. THE UNFAIR LABOR PRACTICE
The facts are not in dispute. The Union has been the
collective-bargaining representative for a unit of Respon-
dent's employees for an undisclosed number of years, at
least since 1970, and the parties have executed successive
collective-bargaining agreements. Sometime about 1973 it
came to the attention of Respondent's general manager,
Richard Klohr, that some union officials were expressing
concern over the lack of employee attendance at the
Union's monthly meetings. It was thought that the
reason for this was the location of the union hall where
the meetings were held, which was said to be in an unde-
sirable section of the city. Klohr, who testified that he
thought union members should attend the union meet-
ings, volunteered the use of the Company's lunchroom
facility for the use of the Union for such meetings. In
order to avoid the appearence of unlawful aid and assis-
tance to the Union, Klohr and the Union agreed that the
Union would pay a token of $5 per meeting for the use
of the facility.
This amicable arrangement, although never incorporat-
ed into the contract, existed without incident until June
22, when Klohr approached the Union's Local vice
president, White, and a group of employees and told
White, "There will be no more union meetings in the
lunchroom-I tried to be nice to you and you have to go
filing charges on me." While Klohr denies making any
statement concerning the filing of charges at that time, at
the hearing he freely admitted that it was the filing of
charges with the Board which motivated his revocation
of the Union's use of the lunchroom for union meetings. 2
The record reveals that in December 1978 the Union
filed two charges against the Respondent, evidently in-
volving the discharge of two employees, which charges
were subsequently withdrawn. In January, William Lind-
horst was elected to, and assumed, the office of president
of Local 110. On April 20, Lindhorst was discharged by
the Respondent, and charges were filed with the Board's
Regional Office in this matter. During the pendency of
the investigation of this charge, on June 13, the Union
held a meeting in the Company's lunchroom. According
to Lindhorst, when the meeting adjourned at or about 5
p.m. he observed Klohr standing in an aisle with a clip-
board in his hand apparently writing down the names of
the employees leaving the meeting. On June 21, the
Board's Regional Director for Region 14 issued his letter
refusing to issue a complaint in the Lindhorst case. On
the same date Lindhorst filed the original charge herein
alleging that Klohr surveilled the union meeting of June
13. Klohr testified that, when he received a copy of the
charge on June 22, and became aware that he was being
accused of spying on the union meetings held in the
lunchroom, he decided to take away that privilege. He
2 I credit the testimony of William Oppelz as to what Klohr told
White and the group of employees on June 22. Klohr was an extremely
impressive and sincere witness. However, he was, I believe, honestly
somewhat equivocal as to whether he mentioned the reason for the
action he was taking as being the filing of the charge. In response to a
question concerning the mention of the charge, he replied. "Not to my
knowledge." He was reacting to what he believed to be an unfair accusa-
tion and was, at the least, upset, and probably realized that he did not
have a clear recollection of what he said.
forthwith notified the Local's vice president, White, of
this decision, which is the conduct here in issue, and
prompted the filing of the amended charge on June 29.3
Analysis and Conclusions
Section 8(a)(4) of the Act prohibits discrimination
against employees because they file charges with the
Board or give testimony in a Board proceeding. This is a
vital section of the Act which guarantees employees un-
impeded access to the Board's processes. Without this
guarantee of access to the Board's processes without fear
of retaliation by employers, the remainder of the Act
would be a farce. Accordingly, the Board is a jealous
mistress of the right of employees to avail themselves to
its processes, perhaps even more jealous than of any
other right guaranteed by the Act.
The facts here need no analysis. Plant Manager Klohr
admits that he told the Local's vice president, White, in
the presence of other employees that the Union could no
longer use the Company's lunchroom for meetings, and
that he was motivated to do this by the receipt of a copy
of the original charge in this case on June 22.
Klohr testified that, upon receipt of the charge accus-
ing him of spying on the union meetings, he concluded
that to continue to permit the Union to use the lunch-
room on the Company's premises would result in other
charges, or he would have to forgo his right to move
about the plant in the conduct of his business while the
union meetings were in session. The former, Klohr rea-
soned, since the Board must accept and investigate any
charge, would result in endless interviews consuming
time and money. If he opted for the latter, the business
would suffer because he could not conduct his business
while the meetings were in session. Finally, and not
without reason, Respondent suggests that Lindhorst did
not file the charge based upon a good-faith belief that
Klohr had been spying on employees' union activities, or
to vindicate employees' Section 7 rights, but simply to
harass the Respondent. This suggestion is predicated on
the timing of the charge, more than a week after the
events, and on the day the Regional Director refused to
issue a complaint in the case involving Lindhorst's dis-
charge.
Quite frankly, under the circumstances here the Re-
spondent's argument has some appeal, for I too have
grave doubts concerning the good faith of Lindhorst in
filing the June 21 charge. Nevertheless, it is clear that
the Respondent has violated Section 8(a)(4) and (1) of
the Act by telling its employees that it was revoking the
past practice of permitting the Union to use its lunch-
room for union meetings because it filed charges with
the Board. Such threat of retaliation, whether or not ac-
tually effectuated, seriously interferes with, restrains, and
coerces employees in the exercise of what is, perhaps,
I The complaint does not allege that the Respondent in fact denied the
Union the use of its lunchroom for meetings, contrary to the well-estab-
lished practice, but merely that it "'threatened to deny" such usage and
"informed the Charging Party, in the presence of several employees."
While the evidence reveals that the Union has not, since June 22, used
the lunchroom for meetings, there is nothing to suggest that the reason
for not using the lunchroom was the result of the statement made by
Klohr
VULCAN-HART CORPORATION
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the most important right guaranteed them by the Act,
the unimpeded right to access of the Board's processes to
vindicate employee rights. An employer who believes
that he is being harassed by an employee or a union by
abuse of the Board's processes may not engaged in self-
help by taking, or threatening, retaliatory action against
the employee or union, but must seek relief through
channels designed to prevent wilfully false charges. For
instance, 18 U.S.C. Sec. 1001 provides for fine and im-
prisonment for wilfully false statements in a charge.
Thus, an employer who believes the Board's processes
are being abused to his detriment is not without help; but
he may not retaliate or threaten retaliation against his
employees or the union to stop the practice, but must uti-
lize the vehicles designed to prevent such abuse.
CONCLUSIONS OF LAW
I. Jurisdiction is properly asserted in this proceeding.
2. By threatening its employees that it was no longer
going to permit the employees and the Union to use the
lunchroom located on its premises for union meetings,
which was contrary to a longstanding past practice of
permitting the use of the lunchroom for that purpose, be-
cause the Union had filed charges with the Board, Re-
spondent has violated Section 8(a)(4) and (1) of the Act.
THE REMEDY
Having found that the Respondent herein has commit-
ted certain unfair labor practices, it shall be ordered to
cease and desist therefrom and from in any like or relat-
ed manner interfering with, restraining, or coercing its
employees in the exercise of the rights guaranteed them
by Section 7 of the Act, including the right to file
charges with the Board, and to take certain affirmative
action designed to effectuate the purposes of the Act.
The affirmative action the Respondent shall be ordered
to take shall include the posting of the usual information-
al notice to employees wherein it shall promise to cease
and desist from engaging in such, or related, unfair labor
practices, and shall include an offer to the Union to con-
tinue to use the lunchroom for meetings, as in the past,
until such time as the Respondent shall bargain with the
Union over the discontinuation of this past practice for
nondiscriminatory reasons. 4
' As heretofore noted, the complaint does not allege that the Respon-
dent actually revoked the Union's privilege to use the lunchroom for
meetings, but merely that it threatened to do so and informed the em-
ployees that such was its intent. The evidence discloses that since that
time the Union had not used the lunchroom for meetings, but does not
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following:
ORDER5
The Respondent, Vulcan-Hart Corporation (St. Louis
Division), Kirkwood, Missouri, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Threatening its employeees and the Union that,
contrary to past practice, the Union and the employees
may no longer use the Respondent's lunchroom for
union meetings because the Union filed unfair labor prac-
tice charges with the National Labor Relations Board.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act:
(a) Post at its place of business copies of the attached
notice marked "Appendix." Copies of said notice, on
forms provided by the Regional Director for Region 14,
after being duly signed by the Respondent's authorized
representative, shall be posted by the Respondent, imme-
diately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
reveal the reason why. The General Counsel would apparently have me
draw the inference that the reason the Union no longer used the lunch-
room was the Respondent's threat to it. The record does not establish
that. However, to the extent that the Respondent's unfair labor practice
is the reason, it will be remedied by ordering it to affirmatively offer to
permit the Union to use the lunchroom for its meetings.
I 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 find-
ings, 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.
6 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."