NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,577, FOAMEX and UNITED PAPERWORKERS INTERNATIONAL UNION, AFL-CIO., (Dec. 16, 1994), National Labor Relations Board, (Dec 16, 1994)

FOAMEX and UNITED PAPERWORKERS INTERNATIONAL UNION, AFL-CIO.

315 NLRB No. 126.Case No. 25-CA-22745. December 16, 1994 Robert W. Leiner, Administrative Law Judge..

Before Gould, Browning and Cohen.

Merrie Thompson, for General Counsel. W. Kerby Bowling II and Joseph M. Crout (Bowling, Bowling & Associates), Memphis, Tennessee, for Respondent. Ted Curtis Sautter, North Webster, Indiana, for Charging Party.

Interference--Coercive Remarks--Antiunion Tactics.--After discovering that its employees were engaged in a union organizing campaign, an employer committed several unfair labor practices designed to interfere with the employees’ organizing efforts. These coercive acts included promising benefits, questioning employees regarding union activities, creating the impression that union activities were under surveillance, soliciting employee grievances, threatening unionists with discharge and warning employees that unionism would be futile. Section 8(a)(1).

Back reference: ¶3770.0511.

From Text of Board’s Decision

On June 2, 1994, Administrative Law Judge Robert W. Leiner issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed an answering brief, cross-exceptions, and a supporting brief, to which the Respondent filed a reply brief.

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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, [1] and conclusions only to the extent consistent with this Decision and Order.

1. The judge found that the Respondent did not violate Section 8(a)(1) by making a promise of benefits to an employee during a union organizing campaign. The General Counsel has excepted to this finding. For the reasons stated below, we conclude that the Respondent’s conduct violated Section 8(a)(1) of the Act.

The judge found that Supervisor Kurt Kleinrichert asked employee James Thomas, the initiator of the Union’s organizing drive, what the problems were in the facility and why the employees wanted a union. The judge found, and we agree, that this questioning regarding the extent of union support constituted an unlawful interrogation in violation of Section 8(a)(1). After a further discussion of several employees’ problems, Kleinrichert went on to ask Thomas if straightening out certain problems with his vacation time would change his mind regarding the Union. Thomas testified that Kleinrichert also told him that he should watch out because Plant Manager Banks had “a lot of spies.”

The judge concluded that the statement in regard to straightening out Thomas’ vacation problems did not constitute a promise of benefits in violation of Section 8(a)(1). We disagree. Kleinrichert’s comment, made in the context of an unlawful interrogation, impliedly promised to rectify Thomas’ problems with his vacation time as an inducement for him not to support the Union and therefore constitutes a violation of Section 8(a)(1) of the Act. See Gem Urethane Corp., [1986-87 CCH NLRB ¶18,901] 284 NLRB 1349, 1363 (1987); Metropolitan Life Insurance Co., [1980-81 CCH NLRB ¶18,165] 256 NLRB 626, 633 (1981).

The General Counsel further excepts to the judge’s failure to make a finding that Kleinrichert’s statement that Banks had “a lot of spies” created an impression of surveillance, as alleged in the complaint. In light of the other unfair labor practices committed by Kleinrichert in this conversation with Thomas, we find that Supervisor Kleinrichert’s comment regarding spies created an unlawful impression of surveillance in violation of Section 8(a)(1) of the Act. Lucky 7 Limousine, [1993-94 CCH NLRB ¶15,108] 312 NLRB 770, 771 (1993).

2. The judge also found that the Respondent did not violate Section 8(a)(1) by coercively interrogating its employees regarding a group letter in support of union organizing. We also find merit in the General Counsel’s exception to this finding.

The Respondent, by Plant Manager Banks, questioned its employees regarding the authenticity of their signatures on a prounion letter addressed to the Respondent’s employees at another plant, who were scheduled to vote in a union election the next day. The judge found that the Respondent had a valid interest in determining the authenticity of its employees’ signatures in order to permit the LaPorte supervisors to rebut the inference of support from the Fort Wayne employees. To the contrary, we find that the circumstances of the Respondent’s individual questioning of employees constituted coercive interrogation.

The letter signed by the Fort Wayne employees clearly constituted union activity of employees protected by Section 7 of the Act. Further, the individual questioning occurred without any assurance against reprisal and was in the context of numerous unfair labor practices. Finally, we do not find that ascertaining the authenticity of the employees’ signatures constituted a legitimate reason justifying interrogation regarding their protected activity. We note that the Respondent had other means, such as a comparison of the purported signatures with those contained in the employees’ records in the Respondent’s possession, to ascertain their authenticity. See Master Security Services, [1983-84 CCH NLRB ¶16,420] 270 NLRB 543, 550 (1984).

3. The judge also failed to make a finding regarding the complaint allegation that in its meetings with groups of employees during the organizing campaign the Respondent unlawfully solicited grievances. We find merit in this exception.

The judge found that Plant Superintendent Boestar asked the employees in these meetings about their problems and asked for suggestions of possible management solutions. We find that these statements constituted grievance solicitation with an implied promise to resolve them, in violation of Section 8(a)(1) of the Act. See Matheson Fast Freight, [1988-89 CCH NLRB ¶15,893] 297 NLRB 63, 69 (1989); Reliance Electric Co., [1971 CCH NLRB ¶23,091] 191 NLRB 44, 46 (1971), enfd. [67 LC ¶12,571] 457 F.2d 503 (6th Cir. 1972).