DTR Industries, 833 (1993)

Docket Number:08-CA-22436
 
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DTR Industries, Inc. and International Union,

United Automobile, Aerospace and Agricultural Implement Workers of America, UAW. Cases 8-CA-22436 and 8-RC-14189

May 28, 1993

DECISION AND ORDER

BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND OVIATT

On December 31, 1991, Administrative Law Judge Thomas A. Ricci issued the attached decision. The General Counsel filed exceptions and a supporting brief. The Respondent filed exceptions, a supporting brief and appendix binder, and 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,1 findings,2 and conclusions only to the extent consistent with this Decision and Order.

1. We agree with the judge that the Respondent violated Section 8(a)(1) by numerous threats of plant closure, job loss, and layoff if employees did not vote against the Union.3 The General Counsel excepts to

the judge's failure to find that the Respondent's November 10, 19894 letter to employees also contained threats to close the plant and lay off or discharge employees in violation of Section 8(a)(1). The record establishes that 1 week before the November 17 election, the Respondent's president, Yuji Kobayashi, issued a four-page letter telling employees, inter alia, ''your future . . . is on the line,'' ''a union would hurt our business,'' ''our business would automatically be reduced if the union wins the election,'' ''if a contract is negotiated without a strike, employees are laid off while the inventory is used,'' and ''bringing a union would lose business for DTR.''

We find it unnecessary to determine the lawfulness of all of these statements. We find that the following language from Point 3 of Kobayashi's letter in which he concludes that ''Bringing a union would lose business for DTR'' had a reasonable tendency to coerce employees when viewed against the background of the Respondent's other threats of layoff, job loss, and plant closure:

Our business would automatically be reduced if the union wins the election and our customers took away 50 percent of our sole source business. They could, of course, take it all away and sole source with some non-union company. They do not have to give any business to DTR.

Furthermore, most labor contracts are for three year terms. The U.S. auto companies force their unionized suppliers to build a 90-day inventory of parts before any labor contract termination. If the supplier fails to do so, it usually loses its order. That means that unionized suppliers, such as our associate Norbalt, are required to work overtime before the end of every labor contract and then, if the contract is negotiated without a strike, employees are laid off while the inventory is used.

Point 3 really comes down to this. Bringing a union would lose business for DTR . . . . Kobayashi's statements directly focused responsibility for the claimed economic consequences on unionization without reference to objective facts showing that its customers maintained a policy (lawful or otherwise) against contracting with unionized companies or required an inventory stockpile prior to contract expiration. In assessing Kobayashi's remarks in their entirety, and when viewed against the backdrop of the Respondent's other unlawful conduct, we conclude that he unlawfully threatened his employees without an objective basis that if they unionized, the Respondent's sole source customers would necessarily find another supplier and take away business necessitating layoffs.

1 The Respondent contends that Sec. 10(b) bars the Sec. 8(a)(1) allegations. We find no merit to this contention. Sec. 10(b) is not jurisdictional in nature. It is an affirmative defense and, if not timely raised, is waived. McKesson Drug Co., 257 NLRB 468 fn. 1 (1981) citing Penn Corp., 239 NLRB 45 (1978); Systems Council T-6, Electrical Workers (New York Telephone), 236 NLRB 1209, 1217 (1978), enfd. 599 F.2d 5 (1st Cir. 1979). The Respondent first raised the defense of Sec. 10(b) in its brief to the administrative law judge and did not plead this affirmative defense in its answer or litigate the issue at the hearing. Therefore, we find that the Respondent did not raise the affirmative defense of Sec. 10(b) in a timely manner and that this defense was waived. See NLRB v. Wizard Method, Inc., 897 F.2d 1233 (2d Cir. 1990).

2 The Respondent has excepted to some of the judge's credibility findings. 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.

3 Based on the credited testimony, we find no merit to the Respondent's exceptions to the judge's 8(a)(1) findings concerning threats by Supervisors Joe Brinkman, Greg Lewandowski, Alan Haynes, Robert Falk, and Dot Jordan, including specified repetitive statements that the Company would go out of business or employees would lose their jobs if the employees persisted in their union activity.

We note, contrary to the judge, however, that employee James McClain, not employee Donald Anderson, recalled Supervisor Jordan saying about 3 weeks before the election, ''that she hated to see the union come in because they'd close the doors, and she didn't want to lose her job.'' We also note that the testimony of employee John Latimer confirms that Jordan made a similar threat. Thus, Latimer testified that in early November, while McClain was present, Jordan

said she was seeking employment at two other places because if the Union came in, DTR would close.

4 All dates are in 1989 unless otherwise indicated.

NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969); Harrison Steel Castings Co., 293 NLRB 1158, 1159 (1989); Gupta Permold Corp., 289 NLRB 1234, 1251-1252 (1988).5

2. We agree with the judge that the Respondent violated Section 8(a)(1) by promising improvements in wages, benefits, and other terms and conditions of employment if the employees voted against the Union, and by interrogating James McClain as to the identity of union activists.

3. We also agree with the judge that the Respondent unlawfully solicited, promised to remedy, and remedied grievances, but only for the following reasons. The complaint alleges that the Respondent solicited grievances from employees by instituting employee suggestion boxes on October 13, and by instituting a toll-free hotline on November 10.6 The judge found a violation based on the Respondent's policy to deal directly with its employees in order to bypass any collective-bargaining agent they might choose. The Respondent claims that it has no obligation to bargain with the Union or avoid dealing directly with employees concerning terms and conditions of employment. The Respondent contends that the ''communication box'' and toll-free number simply supplanted a past practice of soliciting employee complaints through group leaders, and were legitimately implemented to repair the breakdown in communication resulting from the union campaign. The Respondent further contends that it made routine business changes and improvements in sanita-

tion because of rapid growth that would have been made regardless of the union campaign.

Contrary to the Respondent's contentions, we find that its institution of the communication boxes and toll-free hotline through which it solicited, implicitly promised to remedy, and remedied specifically expressed employee complaints and grievances, was designed to discourage union activity among its employees and violated Section 8(a)(1) of the Act.7 Both these programs were established after the advent of union organizing and represented a new approach to grievances. When an employer institutes a new practice of soliciting employee complaints during an organizational campaign, there is a compelling inference of an implicit promise to correct inequities discovered and to convince employees that the combined program of inquiry and correction will make union representation unnecessary. Middletown Hospital Assn., 282 NLRB 542, 544 (1986); Reliance Electric Co., 194 NLRB 44, 46 (1971).

The Respondent's installation of communication boxes in employee locker rooms shortly after the Union filed its September 25 representation petition allowed employees to ask questions and complain about wages, hours, and working conditions and to receive written answers from management. Through this new practice the Respondent provided answers to 42 employee questions; it promised and made restroom improvements concerning soap dispensers and toilet seats; it implicitly promised and made improvements in the time allowed for employee lunchbreaks; it installed mirrors and trashcans in locker rooms; it installed new bells for shift breaks and lunches; it promised to install, and installed on election day, a phone for outside calls; and it implicitly promised and actually implemented a shorter probationary period after the election.

These changes in the Respondent's approach to grievances, combined with the speedy remedy of several complaints solicited from employees, conveyed the message that the Respondent, in its effort to defeat the Union, was willing to look more favorably on any request they might make. Stride Rite Corp., 228 NLRB 224 (1977). Accordingly, we find that the Respondent solicited and...

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