Westmont Engineering Co.

National Labor Relations Board - Board Decisions

Mar 1, 1968

170 N.L.R.B. 13 (N.L.R.B. 1968)

WESTMONT ENGINEERING CO. 13
Westmont Engineering Co. and International
Brotherhood of Boilermakers , Iron Ship Builders,
Blacksmiths, Forgers and Helpers, Local Lodge
No. 92, AFL-CIO
Westmont Engineering Co. and International
Brotherhood of Boilermakers , Iron Ship Builders,
Blacksmiths, Forgers and Helpers , Local Lodge
No. 92, AFL-CIO, Petitioner . Cases 21-CA-7541
and 21-RC-10353
March 1, 1968
DECISION , ORDER , AND CERTIFICATION OF
RESULTS OF ELECTION
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On October 23, 1967, Trial Examiner E. Don
Wilson issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices, and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as, set forth in the attached Trial Examiner's Deci-
sion . The Trial Examiner further recommended
that the election held in Case 21-RC-10353 be set
aside and that another election be conducted.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, asamended, 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
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
TrialExaminer's Decision, the exceptions and brief,
and the entire record in these cases, and hereby
adopts the findings, conclusions,' and recommenda-
tions2 of the Trial Examiner only to the extent in-
dicated below.
1. We agree - with the Trial Examiner that the
Respondent violated Section 8(a)(1) by Supervisor
Breen 's conduct. We also agree that this conduct
cannot serve to set aside the election, because it oc-
curred before the petition was filed.
2. The Trial Examiner also found that a speech
given by Respondent's president., Kenneth B.
Morey, to the employees violated Section 8(a)(1),
and that it destroyed the proper laboratory condi-
tions for a free election. Therefore, he recom-
mended that the election be set aside. We do not
agree.
On the basis of Morey's uncontradicted
testimony as to what he said, the Trial Examiner
made the following findings:
During working time, Morey spoke to 15 em-
ployees for about 30 minutes. He told them they
had the right to vote for the Union if they wanted
it. He also indicated an intention to cooperate with
the Union, should it be selected. He also told the
employees that they were free to discuss the Union
in the shop and assured them there would be no
reprisals. The Trial Examiner found, and we agree,
that the above statements did not violate the Act.
Morey further told the employees that once they
joined the Union they lost some of their freedom of
action, and had to do what the Union told them to
do. If a union called a strike, they would have to go
out on strike. He told the employees that they had a
liberal job classification setup, and probably the
Union would require rigid job classifications, where
they would not be free to do a number of different
jobs in the shop. He also told the employees that if
the Union got in they would have to handle any
grievances through the Union.
The Trial Examiner found the above statements
to be illegal because they were false and coercive.
Although these statements were not entirely accu-
rate, they are not coercive, and neither violate Sec-
tion 8(a)(1) nor otherwise warrant setting aside the
election.
Accordingly, we shall dismiss the complaint in-
sofar as it alleges violations not found herein, and
overrule Petitioner's objections to the election. As
the tally of the ballots shows that Petitioner has not
received a majority of the, valid votes cast, we shall
certify the results of the election.
AMENDED CONCLUSIONS OF LAW
We adopt the Conclusions of Law from the Trial
Examiner 's Decision , with the following modifica-
tions:
1. In Conclusion 2, omit the words beginning
with "and by telling" and ending with "grievances
through the Union."
i The Trial Examiner 's findings and conclusions are based , in part, upon
credibility determinations, to which the Respondent has excepted After a
careful review of the record , we conclude that the 1 nal Examiner 's credi-
bility findings , are not contrary to the clear preponderance of all relevant
evidence Accordingly, we find no basis for disturbing those findings. Stan-
dard Dr) Wall Products, Inc., 91 NLRB 544, enfd 188 F 2d 362 (C.A 3)_
2 The Trial Examiner inadvertently failed to rule in his Decision on
Respondent's motion to dismiss section6(a) and 6(c) of the complaint We
grant the motion as to 6(c) because no evidence was presented to support
that allegation of the complaint However, we deny the motion as to 6(a)
because the General Counsel has established a prima facie case as to that
allegation.
170 NLRB No. 6
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY Local Lodge No. 92, AFL-CIO, and that - said labor
Having found, in agreement with-the Trial Ex-
aminer, that Respondent has engaged in certain un-
fair labor practices, we will adopt the Trial Ex-
aminer's recommendation that it cease and desist
from such practices and post appropriate notices.
Since we have found, contrary to the Trial Ex-
aminer, that Morey's speech did not violate the
Act, we will modify the Recommended Order by
deleting the requirement that Respondent cease
and desist from such conduct.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent,
Westmont Engineering Co., Santa Fe' Springs,
California, its officers, agents, successors, and as-
signs, shall take the action set forth in the Trial Ex-
aminer's Recommended Order, as herein modified.
Substitute the following for paragraph 1 of the
Trial Examiner's Recommended Order:
"1. Cease and desist from:
(a) Interrogating employees about their union
activities and asking employees to discover and re-
port the union activities of other employees to
Respondent.
"(b) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of the rights guaranteed in Section 7 of the
Act. "
2. Substitute the following for the first paragraph
of the Appendix:
WE WILL NOT interrogate our employees
about their union activities; nor ask our em-
ployees to discover and report to us the union
activities of fellow employees.
3. Substitute the following for the second para-
graph of the Appendix:
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees in the exercise of the rights guaranteed
by Section 7 of the Act.
IT IS FURTHER ORDERED that the complaint herein
be, and it hereby is, dismissed insofar as it alleges
violations of the Act not found herein.
CERTIFICATION OF RESULTS OF ELECTION
IT IS HEREBY CERTIFIED that a majority of the
valid votes in Case 21-RC-10353 has not been cast
for International Brotherhood of Boilermakers, Iron
Ship Builders , Blacksmiths , Forgers and Helpers,
organization is not the exclusive bargaining
representative of the employees in the unit found
appropriate within the meaning of Section 9(a) of
the Act, as amended.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
E. DON WILSON, Trial Examiner: Upon a charge
duly filed on April 3, 1967, by International
Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers and Helpers, Local Lodge No.
92, AFL-CIO, herein the Union, the General Coun-
sel of the National , Labor Relations Board, herein
the Board, issued a complaint and notice of hearing
dated May 10, 1967, alleging that Westmont En-
gineering Co., herein Respondent, violated Section
8(a)(1) of the National Labor Relations Act,
herein the Act. In due course, Respondent denied
the commission of unfair labor practices. Certain
objections to conduct affecting the result- of the
election held in Respondent's plant on March 29,
1967, were heard along with the evidence concern-
ing unfair labor practices. A disposition of the ob-
jections is made hereinafter.
Pursuant to due notice, a hearing in this con-
solidated matter was held before me in Los An-
geles , California, on July 18, 1967. The parties fully
participated. Briefs submitted by the parties have
been considered.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a corporation engaged in the con-
tracting of the design , manufacture , and installation
of -material handling systems in Santa Fe Springs,
California. During the 12-month period ending in
January 1967, Respondent, during the course of its
operations, sold and delivered products valued in
excess of $50,000 directly to customers located
outside the State of California. At all times materi-
al, Respondent has been an employer engaged in
commerce and in a business affecting commerce
within the meaning of the Act.
H. THE LABOR ORGANIZATION
The Union, at all material times , has been a labor
organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
The Union was organizing Respondent's em-
ployees for a period of time before February 9,
WESTMONT ENGINEERING CO. 15
1967.1 Respondent's shop foreman , Irving Breen, a
supervisor within the meaning of the Act, spoke to
about 6 of Respondent 's 15 employees about the
Union. These conversations took place beginning in
early February. Breen admitted he asked these em-
ployees if they had heard the Union was trying to
get in . He also asked these six employees "what
they thought of it." While Respondent admits that
Breen was a supervisor within the meaning of the
Act it disputes that he was an agent of Respondent
when he interrogated employees . The entire record
makes clear that Breen was Respondent 's principal
representative in the shop and the fact that he may
not have had express authorization to interrogate
employees as to their union activities does not
detract from the fact that when he engaged in such
activities on company time he was Respondent's
agent.2
Two of the employees interrogated by Breen
testified in some detail . They were Walter D. Win-
terhalter and Charles Lyon. They were still em-
ployees when they testified and thus should not
have been prone to fabricate . I was favorably im-
pressed by their demeanors . I found such denials as
Breen made of their testimony unconvincing. I
credit the testimony of Winterhalter and Lyon
where it conflicts with that of Breen.
About February 3, Breen asked Winterhalter if
anyone had approached him with a card to sign to
get a union in the shop . Breen explained why he
thought the Union would do the employees no
good . He then , just before he concluded , the con-
versation , asked Winterhalter if he had any idea
who had brought the union cards into the shop.
Winterhalter stated he did not know . This was not
true.
Lyon had two conversations with Breen about
the Union in the plant. This was in early February.
Breen said he wanted "to know if there had been
something about a Union and if I knew anything
about it or heard anything about it." Lyon said
"Yes." Shortly thereafter ,' Lyon was going out on
another job with an employee named Dubell. Breen
asked Lyon to feel out Dubell and see how he felt
about the Union. Lyon went out with Dubell and
talked to Dubell. When Lyon returned from the trip
he told Breen he had not talked to Dubell.
Both Winterhalter and Lyon had worked with
Breen for a period of years. At other shops where
they had worked, Breen had been a union member
and had been a union steward at at least one shop.
They were on friendly terms with Breen. Breen
did no, interrogating after the Union's election
petition was filed on February 10. Some three or
four employees with whom Breen regularly took
a break or lunched openly discussed the Union
in the presence of Breen. Nonetheless union
organization was not open in the plant particularly
since some didn't want "older men" to know- of it.
I am convinced that Breen 's interrogation con-
stituted interference , restraint , and coercion as for-
bidden by Section 8(a)(1) of the Act. This is par-
ticularly so because of its comparatively widespread
nature , 6 out of 15, almost amounting to a poll, also
to the variety of questions including "who" brought
in the cards , and also to the fact that Breen
requested an employee to sound out another as to
how he felt about the Union and to report back.
These were not mere innocent conversations
between a friendly supervisor and his subordinates
but rather constituted a determined effort to inject
the employer into a sphere which is none of his
concern . Respondent violated Section 8(a)(1) of
the Act by Breen 's activities as found above.
About 5 or 6 days after the Union filed its peti-
tion , or about February 15 or 16, Respondent's pre-
sident, Kenneth B. Morey, spoke to all the em-
ployees with respect to the election which was held
on March 29 . Mr. Morey was the only witness as to
what he said at this meeting with the employees. I
credit his testimony . During working time, Morey
spoke to the 15 employees for about 30 minutes.
Among many other things Morey told the em-
ployees they had the right to vote for the Union if
they wanted it. He said some things which , indicated
an intention to cooperate with the Union, should it
be selected by the employees . He had told Breen to
refrain from any antiunion activities ,3 and the em-
ployees were free to discuss the Union in the shop.
He assured the employees there would be no
reprisals . He had recently returned from a manage-
ment course at a local university where it had been
stressed that employers should improve communi-
cations with their employees.
However, Morey made further statements which
I find violative of Section 8(a)(1) of the Act. He
told them that once they joined the Union they lost
some of their freedom of action and had to do what
the Union told them to do. (False and coercive.) If a
union called a strike , they would have to go out on
strike . ( False and coercive .) He also told the em-
ployees that they had a liberal job classification
system setup and probably the Union would require
rigid job classifications where they would not be
free to do a number of different jobs in the shop.
(Coercive because Morey substituted forecast for
mere speculation as to what the' Union might mere-
ly ask in negotiations .) Morey added that with a
union they probably would not be free to do a
number of different jobs in the shop. (Coercive for
above reason .) He told the employees that if the
Union got in they would have to handle any
grievances through the Union. (Coercive since he
did not advise them of their rights to grieve directly
to the Respondent , even with a union representa-
' Hereinafter all dates refer to 1967 unless otherwise specified ' Breen refrained from the time the petition was filed-
' Webb Tractor and Equipment Compan) , 167 NLRB 383.
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive.) It is plain to me that employees subjected to
Breen 's 8(a)(1 ) activity, listened carefully to
Morey's 8(a)(1) speech, and that it constituted in-
terference, restraint , and coercion.
IV. THE OBJECTIONS TO THE ELECTION
Breen 's interrogation , etc., took place before
February 10, when the petition was filed. Such ac-
tivity is not here considered with respect to the ob-
jections to the election. Of moment, however, is
Morey's speech. I have found part of it violative of
Section 8 (a)(1) of the Act. The speech was made a
few days after the petition was filed and while
Breen's coercive actions were still uncorrected.
Morey's- statements rendered a free election im-
probable. Morey destroyed proper laboratory con-
ditions for a free election. I shall recommend to the
Board that the election herein be set aside and
another election be conducted since the election
did not reflect the free and uncoerced wishes of
Respondent's employees.'
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close, in-
timate, and substantial relationship to trade, traffic,
and commerce among the several States and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce. -
VI THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, it will be recom-
mended that it cease and desist therefrom, and take
certain affirmative action designed to effectuate the
policies of the Act.
On the basis of the foregoing findings of fact and
upon the entire record in the case, I make the fol-
lowing:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2 ( 6) and (7)
of the Act.
2. By interrogating employees as to whether any-
one had approached them with a union card and
who had brought the union cards into the shop and
whether they knew anything about the Union or
had heard anything about the Union and asking em-
ployees to feel out other employees and discover
and report how they felt about the Union; and by
telling employees that once they joined the Union
they had to do what the Union told them to do and
that they would have to go out on strike if the
Union called a strike , and that they would not be
free to do a number of jobs if the Union came in,
and the employees would have to handle all
grievances through the Union, Respondent has in-`
terfered with, restrained, and coerced employees in
the exercise of rights guaranteed in Section 7 of the
Act, and has thereby engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the
Act.
3. The aforesaid unfair labor practices are such
within the meaning of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law and the entire record in the
case, I recommend Respondent, Westmont En-
gineering Co., its officers, agents , successors, and
assigns, shall:
1. Cease and desist from interrogating em-'
ployees about their union activities and asking em-
ployees to discover and report the union activities
of other employees to Respondent; and telling- em-
ployees that once they joined the Union they had to
do what the Union directed and that they would
have to go on strike if the Union should call a strike
and that they would not be free to do a number of
jobs if the Union came in and that employees would
have to handle all their grievances through the
Union.
2. Take the following affirmative action which I
find will effectuate the policies of the Act:
(a) Post at its plant in Santa Fe Springs, Califor-
nia, copies of the attached notice marked "Appen-
dix. Copies of said notice, on forms provided by
the Regional Director for Region 21, after being
duly signed by Respondent's representative, shall
be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respond-
ent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 21^,
in writing, within 20 days from the receipt of this
Decision , what steps have been taken to comply
herewith.'
IT IS FINALLY RECOMMENDED that the election-
conducted among Respondent's employees on
March 29, 1967, be set aside and another election
be conducted,
4 The objections to the election were timely filed and evidence later
discovered affecting the validity of the election may properly be received.
Aeronca Manufacturing Corporation, 121 NLRB 777, Henri I. Siegel Co.,
Inc., 165 NLRB 493
' In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words " a Decision
and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read' "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
WESTMONT ENGINEERING CO. 17
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended , we hereby
notify our employees that:
WE WILL NOT interrogate our employees
about their union activities ; nor ask our em-
ployees to discover and report to us the union
activities of fellow employees ; nor tell em-
ployees that once they join the Union they
must do whatever the Union directs ; nor will
we tell our employees that if they join the
Union they must go on strike if the Union calls
a strike ; nor will we tell our employees that
they will not be free to do a number of dif-
ferent jobs if the Union becomes their
representative ; nor will we tell our employees
that if the Union becomes their representative
they must handle all their grievances through
the Union . WE WILL NOT in any like or related
manner interfere with , restrain , or coerce our
employees in their Union or other protected
concerted activities.
The Union referrred to above is International
Brotherhood of Boilermakers , Iron Ship Builders,
Blacksmiths , Forgers and Helpers , Local Lodge No.
92, AFL-CIO. All our employees are free to
become , remain , or refrain from becoming mem-
bers of this Union or any other labor organization,
except to the extent that such right may be affected
by an agreement requiring membership in a labor
organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act.
Dated By
WESTMONT ENGINEERING CO.
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced , or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions , they may
communicate directly with the Board 's Regional
Office Eastern Columbia Building , 849 South
Broadway , Los Angeles , California 90014,
Telephone 688-5229.
350-999 0 - 71 - 3