Avecor, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1992

309 N.L.R.B. 73 (N.L.R.B. 1992)

73
309 NLRB No. 9
AVECOR, INC.
1 296 NLRB 727.
2 Avecor, Inc. v. NLRB, 931 F.2d 924 (1991), cert. denied 112
S.Ct. 912 (Jan. 13, 1992).
3 In addition, we shall delete from the Order those provisions in
the original Order regarding conduct that the Board found to con-
stitute unfair labor practices, but which the court found not to be un-
lawful.
4 296 NLRB 749.
5 Id.
6 Id.
7 In finding that the General Counsel made a prima facie showing
that Hamby was discharged on the basis of his union activities in
violation of the Act, and on the Respondent’s reliance on ‘‘unsub-
stantiated reasons’’ for the discharge, the judge expressly relied on
the small-plant doctrine as evidence of the Respondent’s knowledge
of Hamby’s union activities. Id. at 742. The court, however, set
aside the finding that Hamby’s discharge violated the Act, because
‘‘Hamby’s activity was isolated, brief, and not especially public,’’
and ‘‘because there [was] no substantial evidence that Avecor knew
of Hamby’s union activity.’’ 931 F.2d at 931.
The Board affirmed the judge’s finding that Hamby’s discharge
was also conduct which interfered with the election. Based on that
objectionable conduct and the other unfair labor practices that oc-
curred during the critical period but were not specifically raised in
the Union’s objections, the judge concluded that the election must
be set aside. The court, though not enforcing the finding that
Hamby’s discharge was unlawful, declined to vacate the Board’s
finding that the election must be set aside. Id. at 934. Even though
the court declined enforcement of the Hamby discharge, we conclude
nonetheless that the remaining unfair labor practices, under White
Plains Lincoln Mercury, 288 NLRB 1133 (1988), justify setting
aside the election. Matters litigated in an unfair labor practice case
that is consolidated with a representation case can form the basis for
setting aside an election even though those matters were not raised
by the objections. There is no contention before us that the election
was not properly set aside.
8 931 F.2d at 936. Ingram’s statement occurred in a conversation
in which Hamby asked him what he thought about the Union.
Ingram replied that ‘‘the Union would cause the company to close
the doors and that it would do no good.’’ 296 NLRB at 730. The
court deferred to the judge’s conclusion that Ingram’s remark vio-
lated the Act, but it found that ‘‘[t]he evidence shows that one su-
pervisor, on one occasion, in response to a direct question, in the
hearing of one employee, said that the plant would close if the union
were elected.’’ 931 F.2d at 932. The court went on to conclude that
these facts ‘‘fall short of the ALJ’s conclusion that Avecor had com-
mitted a ’hallmark’ violation of the NLRA.’’ Id.
9 931 F.2d at 936, citing Pedros Inc. v. NLRB, 652 F.2d 1005,
1011 (D.C. Cir. 1981).
Avecor, Inc. and Oil, Chemical and Atomic Work-
ers International Union. Cases 10–CA–22645,
10–CA–22886, and 10–RC–13492
September 30, 1992
SUPPLEMENTAL DECISION, ORDER, AND
DIRECTION OF SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 22, 1989, the National Labor Rela-
tions Board issued its Decision and Order1 finding that
the Respondent violated Section 8(a)(3) and (1) of the
National Labor Relations Act. The violations found in-
cluded discharging two employees, coercively interro-
gating employees, threatening stricter rule enforcement,
promising benefits, and threatening plant closure. The
Board set aside the election held in Case 10–RC–
13492 and issued a bargaining order under the test set
forth in NLRB v. Gissel Packing Co., 395 U.S. 575
(1969).
The Respondent filed a petition for review with the
United States Court of Appeals for the District of Co-
lumbia Circuit. On April 26, 1991, the court enforced
all but one of the Board’s unfair labor practice findings
and remanded the case to the Board for consideration
of two issues: Whether a Gissel bargaining order is the
appropriate remedy, and whether two disputed employ-
ees are ‘‘office clerical’’ employees who are excluded
from the stipulated bargaining unit.2
On August 14, 1991, the Board advised the parties
that it accepted the remand and invited statements of
position. Thereafter, the Respondent and the General
Counsel filed statements of position.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
I. THE GISSEL ORDER
We have considered the original decision and the
record in light of the court’s decision, and the Re-
spondent’s and General Counsel’s statements of posi-
tion. We accept the court’s decision as the law of the
case and have decided to modify the Board’s original
decision by deleting the Gissel bargaining order3 and
directing that a second election be held.
The judge found that the Respondent committed var-
ious ‘‘hallmark’’ violations.4 These included the dis-
charges of employees Jeffery Tidwell and Leroy
Hamby. He characterized this as ‘‘an unlawful dis-
charge of roughly 6 percent of the unit’’ that was
‘‘likely to have a substantial and lasting impact on em-
ployee free choice.’’5 He also gave considerable
weight to Manager of Liquid Production Joe Ingram’s
statement to Hamby that the Respondent might close
its doors if the Union won, and to the fact that many
of the violations were especially coercive because they
were committed by upper level management officials.6
Accordingly, the judge concluded, and the Board af-
firmed, that a Gissel bargaining order was warranted.
On review, the court vacated the finding that
Hamby’s discharge was unlawful.7 It also suggested
that Ingram’s isolated remark to Hamby was less hei-
nous than the judge painted it.8 As a result of these
findings, the court stated that ‘‘a significant question
is presented whether the remaining unfair labor prac-
tices in this case are serious enough, or pervasive
enough, to have the tendency to undermine majority
strength and prevent the holding of a fair rerun elec-
tion.’’9 The court therefore remanded the proceeding to
74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 931 F.2d at 936.
11 931 F.2d at 938, citing St. Agnes Medical Center v. NLRB, 871
F.2d 137, 148 (D.C. Cir. 1989).
12 Id. at 937.
13 Id., citing NLRB v. Pace Oldsmobile, 681 F.2d 99, 102 (2d Cir.
1982) (per curiam). In light of our decision, we shall not remand to
the judge for an examination of employee turnover.
14 See Philips Industries, 295 NLRB 717 (1989); Almet, Inc., 305
NLRB 625 (1991).
15 296 NLRB 727 fn. 3. The court was concerned about the
Board’s not passing on the lab secretary’s position because it made
the unit placement of a disputed category uncertain. The Board,
however, has a procedure for the resolution of such unit placement
issues after the election that involves the filing of a unit clarification
petition. It is thus not unusual for the Board to leave unresolved the
status of an employee in a disputed classification whose vote is not
determinative of the election results. That employee can vote subject
to challenge. When a majority of the ballots are then cast for the
union, the Board will certify the union. If, at that time, the status
of the disputed voter cannot be resolved by the parties, the Board
will process a unit clarification petition to determine the placement
or status of the contested individual. See Kirkhill Rubber Co., 306
NLRB 559 (1992).
16 Tribune Co., 190 NLRB 398, 399 (1971).
17 Business Records Corp., 300 NLRB 708 (1990); White Cloud
Products, 214 NLRB 516, 517 (1974).
the Board to, inter alia, ‘‘consider whether the remain-
ing violations justify a bargaining order.’’10
The court’s findings regarding Hamby’s discharge
and Ingram’s statement have effectively removed two
of the three ‘‘hallmark’’ violations the judge and the
Board found and relied on to conclude that a bargain-
ing order was appropriate, the other being Tidwell’s
discharge in violation of Section 8(a)(3) and (1) of the
Act.
In deciding whether a Gissel bargaining order is still
warranted, we must take account of the high standard
imposed by the court in this case. The court, finding
that the judge’s analysis amounted to ‘‘conclusory
statements that a fair rerun election cannot be held,’’11
stated that:
The need for a real demonstration of the inad-
equacy of alternative remedies is particularly
acute, of course, in a case such as the present one,
where the Board relies on a weakly supported in-
ference for its belief that the unfair practices un-
dermined the election that immediately followed
them. If the basis for thinking that the unfair labor
practices affected that election is weak, a claim
that they would fatally contaminate a new election
months or years later is even weaker.
The court also directed the Board to take account of
employee turnover up to the time of any new bargain-
ing order if the Board found one otherwise appropriate
in light of the court’s findings.12 In this regard, the
court required a determination whether the Respond-
ent’s
actions in the spring of 1987 left so lasting an im-
print that a fair rerun election cannot be assured;
or whether, to the contrary, ‘‘changes in the Com-
pany’s work force have made a bargaining order
now inappropriate, even if one might have been
appropriate at some earlier time.’’13
In view of the court’s decision, which we are bound
to accept as the law of the case, we cannot conclude
that at this time the remaining unfair labor practices
are so pervasive, severe, or lingering as to render un-
likely the holding of a fair second election. Thus, the
court has effectively left only the one discharge, the
interrogations, the threats of stricter rule enforcement,
the promises of benefits, and the one threat of plant
closing which the court found was not a hallmark vio-
lation. While these unfair labor practices are indeed se-
rious, we are now constrained to conclude that they do
not warrant imposition of a Gissel bargaining order.
Accordingly, in light of the court’s decision, we con-
clude that a Gissel bargaining order is not required in
this case. We shall delete the corresponding language
from our original order, reopen the representation pro-
ceeding, and direct that a second election be held.14
II. THE UNIT PLACEMENT ISSUE
As further directed by the court, we must review the
order entry clerk and lab secretary positions and deter-
mine whether these positions are included in the unit.
The judge found that Order Entry Clerk Lisa
McWaters and Lab Secretary Diane Byrum were office
clerical employees and therefore were excluded from
the collective-bargaining unit. The Board adopted the
judge’s finding regarding McWaters, but found it un-
necessary to pass on Byrum’s status as her presence in
the unit would not have deprived the union of its ma-
jority support.15
We agree with the court that our role in determining
the unit placement of the order entry clerk and the lab
secretary involves interpreting the parties’ stipulation.
Where the parties have stipulated that a particular unit
is appropriate, ‘‘[T]he Board’s function is to ascertain
the parties’ intent with regard to the disputed employee
and then to determine whether such intent is inconsist-
ent with any statutory provision or established Board
policy.’’16 When the parties’ intent is clear, the Board
will hold them to their agreement.17 If the parties’ in-
tent is unclear, however, the Board will utilize commu-
nity of interest principles to aid in resolving the unit
placement question. Viacom Cablevision of San Fran-
cisco, 268 NLRB 633 (1984).
The stipulation here reveals that the parties’ intent
was clearly to include plant clericals in the unit and
exclude office clericals. But this does not tell us
whether McWaters and Byrum were in fact plant
clericals or office clericals. On that score, the stipula-
tion is unhelpful. Accordingly, we shall reexamine
their job functions.
75AVECOR, INC.
18 Id. at 1038.
19 See Jakel Motors, 288 NLRB 730, 742 (Inama) (1988), enfd.
875 F.2d 644 (7th Cir. 1989); Cincinnati Bronze, 286 NLRB 39, 44
(Frakes) (1987); Continuous Curve Contact Lenses, 236 NLRB 1330
(1978); Conchemco Inc., 182 NLRB 125 (Serio) (1970). Although
none of these cases is ‘‘on all fours’’ factually with the instant case,
each shares with the instant case certain fundamental considerations
that are pertinent to the question whether the disputed positions are
office clerical positions excluded from the stipulated unit.
The judge found that Order Entry Clerk Lisa
McWaters worked in the Respondent’s main office
where the office clerical employees worked, in an area
adjacent to the office of General Manager Willoughby.
Willoughby directly supervised her.
McWaters received the product orders that the cus-
tomers telephoned in, and prepared the paperwork
using office equipment and a digital computer. She
also generated shipping paperwork for orders and sup-
plied order information to the production manager and
shipping information to the shipping department. She
was hourly paid, but did not punch a timeclock. She
worked 8-hour days and 40-hour weeks, the same as
the office clerical employees, and was not affected by
the Respondent’s change to a 10-hour shift which af-
fected most unit employees. Her contact with unit em-
ployees was limited to incidental contact while taking
paperwork into the production area about four or five
times a day. She enjoyed the same fringe benefits
granted all of the Respondent’s employees and had ac-
cess to a production employee breakroom, as well as
access to an office clerical coffee facility.
The judge found that Lab Secretary Diane Byrum
worked in the lab manager’s office adjacent to the
main office. Using a computer terminal and regular of-
fice equipment, Byrum produced paperwork for the lab
as well as plant production reports. Among other
things, she prepared paperwork associated with the
shipping of lab samples and liquid-department req-
uisitions. She spent an estimated 25 percent of her
time out of her primary work location, allegedly in di-
rect contact with lab or production employees. Byrum
was supervised by Lab Manager Pollard, who reports
to Senior Vice President McLean. On at least one oc-
casion Byrum typed a memo from Pollard to McLean
describing the unsatisfactory conduct of employee Tid-
well. Like McWaters, Byrum was hourly paid, re-
ceived the same fringe benefits as the unit and nonunit
employees, and worked the same hours as office
clericals.
We find that McWaters and Byrum are office cleri-
cal employees within the meaning of the stipulation
because their job functions and working conditions are
more like those of office clericals than of plant
clericals. Among other things, McWaters and/or
Byrum were: (1) principally performing work typically
accomplished by office clerical employees, such as
preparing shipping papers (McWaters, Byrum) and
doing typing (Byrum), that we find to be incidental to,
and not an integral part of, the production process; (2)
working in the same office as (McWaters) or in an of-
fice adjacent to (Byrum) office clerical employees and
having limited contact with production employees; (3)
working the same hours as office employees, which
were different from the production employees, and, un-
like the production employees, being unaffected by a
change to 10-hour shifts; (4) not receiving the 40-cent-
per-hour wage increase granted to the production and
maintenance unit employees; and 95) regularly using
equipment typically employed by office clericals. Ac-
cordingly, we find that the order entry clerk and lab
secretary positions are office clerical positions and
therefore are excluded from the unit.
As directed by the court, we address the applicabil-
ity of Columbia Textile Services, 293 NLRB 1034
(1989), enfd. 917 F.2d 62 (D.C. Cir. 1990), which also
presented the question whether two employees were
office or plant clericals. There, the Board concluded
that the two disputed employees should be included in
the unit as plant clericals.
Columbia Textile is distinguishable, however, from
this case. The Board in Columbia Textile found that
the two employees had more than minimal contact
with the unit employees and that their job duties were
functionally integrated into the production process. We
cannot make those same findings here. McWaters’ and
Byrum’s paperwork was not directly related to the pro-
duction process, and their duties were not functionally
integrated into that process. Their contact with the unit
employees was no more than minimal. Further, al-
though the two employees in Columbia Textile were
supposedly supervised by the office clerical supervisor,
the Board relied on evidence that one of the disputed
employees was actually supervised by the plant super-
intendent, and that her job-related questions were di-
rected to that superintendent and others in the plant.18
We also note that, unlike in Columbia Textile, the two
disputed employees in the instant case worked the
same hours as the office clericals; were not affected by
the shift change that affected the production and main-
tenance unit employees; and did not receive a 40-cent-
per-hour increase that was granted the production and
maintenance unit employees. Accordingly, we con-
clude that Columbia Textile is distinguishable.19
ORDER
The National Labor Relations Board orders that the
Respondent, Avecor, Inc., Vonore, Tennessee, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
its employees because they join, support, or assist Oil,
Chemical and Atomic Workers International Union in
76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 Pursuant to an unpublished Revised Judgment of the United
States Court of Appeals for the District of Columbia Circuit (Docket
No. 89–1643), the Respondent may issue Tidwell a retroactive letter
of reprimand for his behavior on April 24, in which he ‘‘lost his
cool’’ on the job. See 296 NLRB at 739.
21 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
order to discourage the membership in, support, or as-
sistance of the Union by its other employees.
(b) Implying to employees that it would consider
granting them wage increases to induce them to forgo
their union activity.
(c) Threatening employees that it will close its doors
if they select the Union to represent them.
(d) Interrogating its employees concerning their
union membership, activities, and desires.
(e) Threatening its employees with more strict rule
enforcement and the refusal to grant future favors if
they select the Union to represent them.
(f) Promising its employees more raises and benefits
if they do not select the Union to represent them.
(g) Offering employees money or other benefits to
induce them to seek the return of their union authoriza-
tion cards.
(h) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Jeffery Tidwell immediate and full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed, and make him whole for any loss
of earnings and other benefits suffered as a result of
the discrimination against him, in the manner set forth
in the remedy section of the decision.
(b) Remove from its files any reference to the un-
lawful discharge of Jeffery Tidwell and notify him in
writing that this has been done and that the discharge
will not be used against him in any way.20
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its Vonore, Tennessee place of business
copies of the attached notice marked ‘‘Appendix.’’21
Copies of the notice, on forms provided by the Re-
gional Director for Region 10, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately 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 material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that Case 10–RC–13492 is
reopened and that all prior proceedings held thereunder
are reinstated.
IT IS FURTHER ORDERED that Case 10–RC–13492 is
severed and remanded to the Regional Director for Re-
gion 10 for the purpose of conducting a second elec-
tion as directed below.
[Direction of Second Election omitted from publica-
tion.]
APPENDIX
NOTICE TO EMPLOYEES OR MEMBERS
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT imply to our employees that we will
consider granting them a wage increase to induce them
to forgo their union activity on behalf of Oil, Chemical
and Atomic Workers International Union.
WE WILL NOT threaten employees that we will close
our doors if they select the Union to represent them.
WE WILL NOT interrogate our employees concerning
their union membership activities and desires.
WE WILL NOT threaten our employees with more
strict enforcement of rules and the refusal to grant fu-
ture favors if they select the Union to represent them.
WE WILL NOT promise our employees more raises
and benefits if they do not select the Union to rep-
resent them.
WE WILL NOT offer employees money or other bene-
fits to secure the return of their union authorization
cards.
WE WILL NOT discharge or otherwise discriminate
against employees because of their union activities and
sympathies.
77AVECOR, INC.
WE WILL NOT in any other manner restrain or coerce
our employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL offer Jeffery Tidwell immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed and we will make him whole
for any loss of earnings and other benefits resulting
from his discharge, less any net interim earnings, plus
interest.
WE WILL remove from our files any reference to the
unlawful discharge of Jeffery Tidwell and notify him
in writing that this has been done and that evidence of
the unlawful discharge will not be used as a basis for
future personnel action against him.
AVECOR, INC.