The full case caption appears at the
end of this opinion. On September 19, 1997, Administrative Law JudgeGeorge Carson II issued the attached decision. The Respondentfiled exceptions and a supporting brief. TheGeneral Counsel filed cross-exceptions and a supportingand answering brief, and the Charging Party filed an answeringbrief. The National Labor Relations Board has delegated itsauthority in this proceeding to a three-member panel.The Board has considered the decision and the recordin light of the exceptions and briefs and has decided toaffirm the judge’s rulings, findings,
[FOOTNOTE 1] and conclusions asmodified below, and to adopt the recommended Order asmodified.
[FOOTNOTE 2]1. The General Counsel excepts to the judge’s findingthat the Respondent did not violate Section 8(a)(1)through Manufacturing Manager Ken Winget’s allegedthreat that as far as he was concerned the plant wouldnever be a union shop. We find merit in this exceptionand we find the violation. In about July 1996, Wingetapproached employee Ken Doyka, who was working onthe floor of the facility, and asked him why he was wearinga pro-union button. When Doyka responded that hewas on the Union’s organizing committee, Winget askedhim why and said “[u]nions don’t do any good for you.”Winget said that he had worked in a union shop and theunion had done nothing good for him. He stated that theunion took his dues and was just a waste of money.Winget also stated that there would be no chance forpromotion in a union shop because supervision would behired from “outside.” During the course of their talk,Winget also told Doyka that as far as he was concernedthe plant would never be a union shop. Winget asked anearby employee, Les Summers, if he knew what UAWstood for, and when Summers replied that he was notsure, Winget said that it means “You Ain’t Working.”The conversation lasted about 45 minutes to an hour.
[FOOTNOTE 3] The judge found, and we agree, that the Respondent’sstatements that UAW means “You Ain’t Working” andthat there would be no chance for promotion in a unionshop constitute unlawful threats that employees wouldlose jobs and promotional opportunities if the Unionwere to win representation.
[FOOTNOTE 4] Contrary to the judge, however,we also find that an employee would reasonablyunderstand Winget’s statement that as far he was concernedthe plant would never be a union shop, to be athreat that voting for union representation was futile andthat the Respondent would not recognize and bargainwith the Union. See, e.g., Maxi City Deli, 282 NLRB742, 745 (1987) (employer’s comment that “there wouldnever be a union at his restaurant” found unlawful). Thecontext of the discussion adds to the threatening natureof Winget’s comment because, as indicated above, hemade it in a lengthy conversation in which he unlawfullythreatened the loss of jobs and promotional opportunities.Thus, we find that the nature of the statement, and thecontext in which it was spoken, conveyed an unlawfulthreat of futility of selecting the Union. See, e.g., OutboardMarine Corp., 307 NLRB 1333, 1335 (1992),enfd. mem. 9 F.3d 113 (7th Cir. 1993) (statement that thecompany would never give employees a contract was anunlawful threat of futility and not protected opinion).
[FOOTNOTE 5] 2. The Respondent excepts to the judge’s findings thatMolding Supervisors Walter Kellogg and DavidMcLaughlin-Smith are statutory supervisors and thatMcLaughlin-Smith unlawfully interrogated employeeChris Williams. We agree with the finding that Kelloggand McLaughlin-Smith are supervisors within the scopeof Section 2(11) of the Act.
[FOOTNOTE 6] Accordingly, we affirm thejudge’s finding that the Respondent, through McLaughlin-Smith, unlawfully interrogated Williams about hissupport for the Union. 3. We also adopt the judge’s finding, essentially for thereasons set forth in his decision, that the Respondentviolated Section 8(a)(1) of the Act through the confiscationof union literature by Molding Department ManagerDan Blankenship from tables in the employees’ breakroomand from the employees’ bulletin board. With regardto the bulletin board, we note that the judge creditedemployee Gill, who testified that she saw Blankenshipremoving two pieces of prounion literature from the bulletinboard. The Respondent’s argument on exceptions,based on Blankenship’s discredited testimony, is that heremoved only a single flyer and did so because it hadbeen defaced apparently by someone opposed to the Union.Even assuming that one of the two pieces was defaced,Blankenship’s actions were still likely to have acoercive impact. Even Blankenship did not contend thathe remarked on the defacement when he was removingthe flyer, and there is no evidence that the other flier wasdefaced. Gill reasonably viewed Blankenship’s action assimply removing prounion literature from the bulletinboard that had been made available to employees fornotice posting.
[FOOTNOTE 7] ORDER The National Labor Relations Board adopts the recommendedOrder of the administrative law judge asmodified below and orders that the Respondent, VentureIndustries, Inc. (formerly VEMCO, Inc.), Grand Blanc,Michigan, its officers, agents, successors, and assigns,shall take the action set forth in the Order as modified. 1. Insert the following as paragraph 1(d) and reletterthe subsequent paragraphs. “Threatening employees that the plant will never be aunion shop.” 2. Substitute the attached notice for that of the administrativelaw judge. Dated, Washington, D.C. March 31, 2000 Sarah M. Fox, Member Wilma B. Liebman, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER BRAME, dissenting in part. [DISSENT OMITTED] [APPENDIX OMITTED] :::FOOTNOTES:::
FN1 The Respondent has excepted to some of the judge’s credibilityfindings. The Board’s established policy is not to overrule an administrativelaw judge’s credibility resolutions unless the clear preponderanceof 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).
FN2 No exceptions were filed to the judge’s dismissal of allegations thatSupervisor Walter Kellogg confiscated union literature; Manager KenWinget interrogated employees; Supervisor Roger Beamer impliedsurveillance of employee union activity and threatened employees;CEO Larry Winget coercively interrogated and threatened employees;and Supervisor David McLaughlinSmith implied surveillance of unionactivity, all in violation of Sec. 8(a)(1).
FN3 Although the judge found that Winget’s “UAW” question wasposed to Summers in a subsequent separate conversation, the recordestablishes that it was not. Doyka testified that he and Summers wererunning press 13, and that they were the only two employees workingthere when Winget approached them and asked Doyka why he waswearing a pro-union button and said that unions don’t do any good foryou, that they had not done any good for him and that they were awaste of money. When Doyka was asked at the hearing what else wassaid, he testified that Winget asked Summers if he knew what UAWstood for. When Summers replied that he did not, Winget said it means”You Ain’t Working.” When Doyka contradicted Winget, the latterrepeated that UAW meant You Ain’t Working.” Winget then left, butreturned about 5 minutes later with Bill Hart. Hart asked Summers ifhe knew what UAW stood for, and Summers replied, “You Ain’tWorking.”
FN4 Hurst Performance, Inc., 242 NLRB 121, 127 (1979) (UAWmeans “You Ain’t Working” found unlawful).
FN5 We adopt the judge’s finding that the Respondent did not violateSec. 8(a)(1) through Ken Winget’s comment during this conversationthat he had been in a union shop and that paying union dues had been awaste of money. Members Liebman and Brame also adopt the judge’sdismissal of the allegations that Larry Winget’s comment that the election”would be tied up in court for a long time” and Supervisor Kellogg’scomment that the election “would be tied up in court for years”were threats of futility of selecting the Union. Member Fox finds itunnecessary to pass on these allegations because the findings would becumulative. We further adopt the judge’s finding that the Respondent violatedSec. 8(a)(1) through CEO Larry Winget’s solicitation of grievances.
FN6 In Venture Industries, 327 NLRB No. 165 (1999), we previouslyfound Kellogg and McLaughlin-Smith to be statutory supervisors andtherefore ineligible to vote in the representation election. Consistentwith the previous case, Members Fox and Brame, in finding Kelloggand McLaughlin-Smith to be statutory supervisors here, rely on theirauthority to discipline employees and to make effective recommendationsregarding the selection of production employees to fill in-plantjobs. Member Liebman, as she did in the earlier case, relies only on thefact that they effectively recommend the promotion and reassignmentof employees.
FN7 Contrary to our dissenting colleague, we find the court’s opinion inGuardian Industries Corp. v. NLRB, 49 F.3d 317 (7th Cir. 1995), totallyinapposite on the facts of this case. The Seventh Circuit held thatwhere an employer had expressly limited a plant bulletin board to employee”swap-and shop” notices and in recent times prior to the unioncampaign had consistently enforced that limitation, it was not unlawfuldiscrimination to prohibit other notices, including union literature, thatdid not fall within the permissible category. No such employer policywas established here, and indeed, as noted above, the Respondent doesnot rely on any such contention. As for our colleague’s contention thatthere was no adequate showing that other types of postings were treateddifferently, we note that the Respondent does not dispute that employeenotices in numerous categories were permitted on the bulletin board.Its claim concerning its reason for removing the union flyers rests ondiscredited testimony. The facts in this case are more akin to those inwhich unlawful discrimination has been found. E.g., Roadway Express,Inc. v. NLRB, 831 F.2d 1285, 1290 (6th Cir. 1987) (where employerpermits employee access to bulletin boards for any purpose, the Actsecures the employees’ right to post union material). We find it unnecessary to pass on whether Mark Hansel is the Respondent’sagent and whether he unlawfully removed union literaturebecause the finding of an unfair labor practice would be cumulative.
Venture Indus., Inc. and Int’l Union, United Automobile, Aerospace and Agricultural Implement Workers of America Venture Industries, Inc. (formerly VEMCO, Inc.) andInternational Union, United Automobile, Aerospaceand Agricultural Implement Workers ofAmerica (UAW), AFL-CIO. Case 7-CA-39190 Filed: March 31, 2000 DECISION AND ORDER BY MEMBERS FOX, LIEBMAN, AND BRAME
