Nu-Line Industries, 1 (1991)

Nu-Line Industries, Inc. and Drivers, Warehouse & Dairy Employees Local No. 75, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO. Case 30-CA-10880

March 7, 1991

DECISION AND ORDER

BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND RAUDABAUGH

On November 16, 1990, Administrative Law Judge Joel A. Harmatz issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief.

The National Labor Relations Board has delegated 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 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, Nu-Line Industries, Inc., Suring, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the Order.

Paul Bosanac, Esq., for the General Counsel.

Gregory B. Gill, Esq. and Bruce N. Evers, Esq. (Gill & Gill,

S.C.), of Appleton, Wisconsin, for the Respondent. Frederick Perillo, Esq. (Previant, Goldberg, Ulmen), of Milwaukee, Wisconsin, for the Charging Party.

DECISION

STATEMENT OF THE CASE

JOEL A. HARMATZ, Administrative Law Judge. This case was tried in Shawano, Wisconsin, on August 21 and 22, 1990, on an initial unfair labor practice charge filed on April 10, 1990, and a complaint issued on May 25, 1990, which, as amended, alleges that the Respondent independently violated Section 8(a)(1) of the Act by coercively interrogating employees concerning union activity; by declaring that it would not negotiate in good faith if the Union were designated: by threatening to discharge employees if the Union organized the plant; by engaging in surveillance and creating the impression that union activity was subject to surveillance; and by separating employees to prevent them from engaging in union activity. The complaint further alleges that the Respondent violated Section 8(a)(3) and (1) of the Act by on April 9, 1990, reducing the piece rates of employees Marilyn Baumgardt and Barbara Talley because of their union activity. In its duly filed answer, the Respondent denied that any unfair labor practices were committed. Following close of the hearing, briefs were filed on behalf of the General Counsel and the Respondent.

On the entire record, including my opportunity directly to observe the witnesses and their demeanor, and after considering the posthearing briefs, I make the following

FINDINGS OF FACT

  1. JURISDICTION

    The Respondent manufactures children's furniture at its place of business in Suring, Wisconsin. During the calendar year ending December 31, 1989, in the course and conduct of said operation, the Respondent sold and shipped products valued in excess of $50,000 directly to points located outside the State of Wisconsin. The complaint alleges, the answer admits, and I find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

  2. THE LABOR ORGANIZATION INVOLVED

    The complaint alleges, the answer admits, and I find that Drivers, Warehousemen & Dairy Employees Local No. 75, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL- CIO1 (the Union) is a labor organization within the meaning of Section 2(5) of the Act.

  3. THE ALLEGED UNFAIR LABOR PRACTICES

    1. Preliminary Statement

      There is no history of collective bargaining for the 260 production and maintenance workers employed at the Respondent's furniture plant in Suring, Wisconsin. The Union began organizing these workers in January 1990.2 The General Counsel contends that this effort was countered by a campaign of intimidation and discrimination. Thus, the Respondent is charged with a variety of independent 8(a)(1) violations, as well as an 8(a)(3) and (1) violation based on reduction of an incentive rate. The Respondent adduced testimony in refutation of the alleged 8(a)(1) violations, and argues that the rate was adjusted on the basis of independent business considerations, having no relationship to employee organizational interests.

    2. Interference, Restraint, and Coercion

      1. The cafeteria incident

        The complaint imputes 8(a)(1) conduct to a pair of management representatives the same day as the Union's initial organization meeting in mid-January.

        First, it is alleged that Raymond Heimerl, the general manager of the Suring plant, interrogated employees and told them that there would be no good-faith bargaining even were they to designate the Union. In support, Ann Ohlrich, a

        1 By order of the Acting Regional Director for Region 30 dated June 4, 1990, this proceeding was consolidated for hearing and decision with Cases 30-CA-10803 and 30-CA-10803-1. These cases have been deleted from the above caption because, during the hearing, the issues presented therein were resolved amicably. Although, technically, the adjusted cases remain a part of this proceeding, this status is merely provisional, for they will be severed and dismissed when compliance is achieved. Accordingly, to avoid confusion, the above-caption is framed so as to embrace only the complaint and issues that remain unresolved and presently in controversy.

        2 Unless otherwise indicated, all dates refer to 1990.

        housekeeping employee, testified that on the morning in question, as she was performing her duties in the cafeteria, she overheard Heimerl ask employees Steve Fifield, Gary Strehlow, and Tim Clark whether they would attend the union meeting that had been scheduled for that evening, and what their feelings were. She relates that Clark replied that it would be a good idea to learn what the Union had to offer.3 According to Ohlrich, Strehlow and Fifield expressed a firm disinterest, mentioning the shutdown of a nearby Nicolet Paper plant, while voicing the opinion that the Union meant nothing but strikes and dues. Ohlrich further offered that Heimerl then reinforced this view by making the point that:

        [I]f we would ever go on strike, if the union got in, they could fire everybody and hire Coleman Product employees. [T]hey never would have to negotiate a contract with the union negotiators. That they could just automatically say no.4

        Finally, Ohlrich testified that Heimerl disparaged the Union, associating it with the mafia, while stating that ''they weren't a very nice bunch of guys.''

        Heimerl denied questioning anyone as to their intent concerning the union meeting. He also denied reference to the mafia. Finally, he denied stating that he did not have to bargain with the Union or that if the Teamsters got in, he would put them on strike and hire Coleman Products employees. Under his version, on the morning in question, as he was walking from the restroom, Strehlow and Fifield, who were in the lunchroom, beckoned him to their table. Heimerl was told that the union meeting was scheduled for that evening, and the employees wanted to know what type questions they should ask while attending. Heimerl responded that he had no idea, stating, ''It is up to you.'' When they inquired as to whether they should attend, he indicated that it was up to them, and if they wished to go, to do so. He admits that he noticed Ohlrich cleaning as he talked to the men, adding that when they left, Ohlrich volunteered that she had no use for unions, explaining that her uncle had ''lost his pension and everything else.''

        Heimerl's account was confirmed basically by Strehlow and Fifield. Both acknowledged that Ohlrich was in the lunchroom at the time. Strehlow testified that he called Heimerl and asked if he had any statistics on the Union because he knew little about it. Heimerl said that he should just go to the meeting as he did not care if Strehlow did so or not. He heard no mention of collective bargaining or a contract, and did not recall anyone linking the Teamsters with the mafia. Steve Fifield confirmed that he and Strehlow had several questions about unions, so they approached Heimerl. The latter suggested that if they had questions they should go to the union meeting and get the Union's opinion. He denied hearing threats or promises, and did not question them concerning their interests in the Union or the meeting. Fifield heard nothing about a union contract.

        In addition to the misconduct imputed to Heimerl, the complaint alleges that the Respondent violated Section 8(a)(1) through Heinz Kiesling's discharge threat. The latter had been the Respondent's yard supervisor for some 19 years. According to Ohlrich, at the end of the above discussion of the union meeting, Kiesling approached the group, stating that he had seen the announcement of the union meeting, adding, ''I hope you are not voting for the union, because . . . all they have to do is close the plant or hire Coleman Product employees.''5 Kiesling denied having made any such statement.

        The allegations implicating both Heimerl and Kiesling are based on Ohlrich's uncorroborated testimony. Although the Respondent's evidence is not in perfect synch, I was distinctly unimpressed with Ohlrich, and my doubt as to her reliability is sufficiently deep to impel rejection of her testimony where unconfirmed by strong probability or independent, credible sources. Neither being present here, the 8(a)(1) allegations involving Heimerl and Kiesling are dismissed.

      2. By Richard Genal

        The complaint alleges that the Respondent violated Section 8(a)(1) on or about February 5, when Plant Engineer Genal created the impression that union activity was being ob-served.

        Ohlrich, who claims to have been the employee responsible for contacting the Union, and who brandished a union button since the first union meeting in mid-January, testified that some time later, she, together with another...

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