Wagner Electric Corp.

392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wagner Electric Corporation and International Union of Electrical, Radio and Machine Workers, AFL- CIO-CLC. Case 10-CA-10666 January 30, 1975 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On October 31, 1974, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding . Thereafter, the Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three -member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings , findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Wagner Electric Corporation, Sevierville, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent is a corporation with an office and principal place of business located at Sevierville, Tennessee, from which it is engaged in the manufacture of automobile electrical accessories and other electrical components. During the calendar year preceding issuance of the complaint, a representative period, Respondent shipped and sold from said location finished products valued in excess of $50,000 directly to customers located outside the State of Tennessee. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint, as amended, alleges, the answers admits, and I find that International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, is a labor organi- zation within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background There is no bargaining history covering employees at Respondent's Sevierville facility. Operations first com- menced at that location in May 1972 and were based initially in a temporary facility during construction of a new plant. At the temporary location, there was an attempt to organize Respondent's employees which apparently was later abandoned. In November 1972, production opera- tions began in the newly constructed plant. The testimony of Plant Manager Frank Fellin and Personnel Manager Robert Montgomery conceded that the Company opposed organization of its employees at the new plant. Both are named in the complaint as the principal offenders of employee statutory rights during a renewed organizational effort which began in either late 1973 or early 1974. STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge: This case was heard in Sevierville, Tennessee, on September 12, 1974, upon a charge filed on April 1 , 1974, and a complaint issued on May 22, 1974, as amended on July 30, 1974, alleging that Respondent violated Section 8(axl) of the Act by coercively interrogating employees concerning their union activity, by threatening to refuse the hiring of job applicants who supported union activity, by threatening that it would move the plant if employees joined the Union, and by maintaining an unlawfully broad no- distribution rule. Respondent's duly filed answers denied that the alleged unfair labor practices were committed. After the close of the hearing, briefs were filed by the General Counsel and Respondent. Upon the basis of the entire record in this proceeding, including my observation of the witnesses while testifying, and upon careful consideration of the posthearing briefs, I make the following: 216 NLRB No. 77 B. Issues The complaint presents questions as to whether Re- spondent in furtherance of its desire to maintain a union- free operation, unlawfully interfered with statutory organi- zational rights by coercive interrogation and threats and by maintenance of an unlawfully broad restriction on employ- ee distribution of literature on company property. With the exception of the no-distribution rule, the issues presented are factual, turning upon a resolution of conflicting testimony. C. The Restriction on Employee Distribution of Union Literature The allegation that Respondent violated Section 8(a)(l) in this respect gives rise to a question of law. Respondent admits that, since October 2, 1973, each newly hired employee at Sevierville was given a booklet entitled "Wagner Handbook," which contained the following restriction: WAGNER ELECTRIC CORPORATION 393 Soliciting - soliciting contributions, selling tickets, distributing handbooks or pamphlets, except when permitted by the Personnel Department, is forbidden. The above rule on its face precludes, in all-encompassing terms, the distribution of "handbooks or pamphlets." The distribution of such materials on behalf of a labor organization is not specifically exempted from the prohib- ition, and the rule reasonably would be understood as including such activity within the broadly stated ban, even if conducted in nonworking areas, on an employee's own time. Under settled authority, such limitations on employ- ee distribution' of union literature "must be presumed to be an unreasonable impediment to self-organization and therefore discriminatory in the absence of evidence that special circumstances make the rule necessary in order to maintain production or discipline." i Respondent, by way of defense, makes no showing that special considerations warranted a prohibition upon the statutory right of employees to distribute literature in nonworking areas on nonworking time. Instead, it is argued that no unfair labor practice should be found because the rule was not designed to apply to union activity, and was neither intended to be, nor actually enforced, against such activity. Consistent with Respond- ent's argument testimony adduced on its behalf indicates that at a meeting with employees in September 1972, those in attendance were informed that they had a right to distribute on behalf of the Union on company property in nonworking areas on nonworking time. Further testimony indicates that management officials on other occasions, when questioned by employees as to their rights to distribute literature, mformed such employees to the same effect. Assuming the accuracy of the evidence offered by Respondent in support of its contention, the defense is lacking in merit. Whatever Respondent's uncommunicated intent in formulating the rule, it was nevertheless drafted in a manner proscribing all distribution of literature on company property. The rule was never modified specifical- ly so as to narrow the scope of the ban and to permit protected forms of union distribution. Employees were never informed by means which would have had a comprehensive reach and which would have placed all on notice that union distribution on company property was permitted if conducted in nonworking areas on nonwork- ing time. It is not enough that those who happened to be employed at the time of the September 1972 meeting with the plant manager or who made specific inquiry, were informed of the unwritten, unpublished limitation upon the scope of the written rule. Indeed, as Plant Manager Fellin and Personnel Manager Montgomery admitted in their testimony, the only reference to the Company's policy with respect to union distribution available to employees who did not attend the September 1972 meeting was the "Wagner Handbook." It may well be that an uninformed employee, by asking a supervisor or other management official, could ascertain that the company policy behind the rule did not limit protected activity. However, Respondent cannot be relieved of the restraining effects of its published rule by creating a situation whereby employ- ees, as a prerequisite to engaging in protected union activity, must divulge their intentions in that regard to management.2 For the above reasons I find that Respond- ent violated Section 8(a)(1) of the Act by maintaining a published prohibition on distribution which, by its terms, prohibited employees from distributing union literature in nonworking areas on nonworking time. D. Interrogation and Threats Two former employees of Respondent, Roy Burrows and Junior Burns, were called by the General Counsel and gave testimony supporting the 8(a)(1) allegations imputing coercive conduct to Plant Manager Frank Fellin and Personnel Manager Robert Montgomery. Thus, according to Burns, on January 7, 1974, in the course of a preemployment interview, Montgomery asked Burns what he thought about Respondent being organized by a union. Burns responded in noncommittal fashion. Burns further testified that he was given a job and the next day, when he reported to work, he was asked by Montgomery whether Bums knew that another plant in the area (the Concordia plant, which had been organized) had closed down because of a union. When Bums replied in the negative, Montgomery is alleged to have said that more than one-third of the work force at that plant had applied at Wagner, and that Respondent had no intention of hiring any of them. Montgomery denied that the Union was discussed during his January 7 interview of Burns. With respect to their January 8 conversation, Montgomery admits to informing Burns that Respondent's plant in Sevierville was not organized and "that we did not feel that we needed a union," but denied that he made the statements Bums attributes to him concerning the Concor- dia plant. Montgomery further denied that he ever questioned Burns concerning his sentiments towards organization. Also, according to Montgomery, it was Burns, rather than himself, who injected both the subject of the closing of the Concordia plant and the difficulty that employees of Concordia would face in attempting to find work. I credit Burns over Montgomery. Bums impressed me with his forthright responses and, considering the nature of the remedy involved here, I regard it as entirely unlikely that his account of the conversations were manufactured, nor do I believe that his interests in the outcome were of such a nature as to influence him to i See Peyton Parking Co, Inc, 49 NLRB 828, 843, 844(1943), and Stoddard-Quirk Manufacturing Co., 138 NLRB 615(1962). 2 See J R Simplot Company Food Processing Division, 137 NLRB 1552, 1553(1962), where the Board held a rule unlawful which prohibited all forms of solicitation save those authorized by the employer, and in doing so rejected the employer's contention that union solicitation was always authorized . The Board reasoned that an employer cannot predicate the exercise of a Section 7 rights upon its own authorization I regard J. R Simplot as dispositive of Respondent 's contentions in this case. Here, as in that case, the published rule was so broad as to require unknowing employees either to comply and forego union distribution on plant premises, or to take the initiative to inquire of management as to whether the Employer authorized this form of statutorily protected union activity. J R Simplot also brands as immaterial the fact that an employer may be possessed of an uncommunicated intention to refrain from applying a published, unlawfully broad rule to union activity 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violate the oath.3 On the other hand, from my observation of Montgomery, his testimony reflected an evasiveness as to certain matters so obviously within his knowledge as to reflect a general reluctance on his part to reveal the actual extent of the Company's antiunion policy and the steps taken in furtherance thereof. Furthermore while I consider it unlikely that Burns would have raised the Concordia issue, the fact that in subsequent antiunion propaganda Respondent referred to that closedown as part of its antiunion message, heightens the probability that Mont- gomery would have been disposed to make a similar pitch to a new hire. Having credited Burns, I find that Montgomery, by questioning him, during the initial employment interview, as to his union sentiments, engaged in coercive interroga- tion violative of Section 8(a)(1) of the Act. I further find that, through Montgomery's statement on January 8, 1974, to the effect that Respondent would not hire applicants with a history of representation by a labor organization, Respondent coerced an employee in a manner calculated to restrain him in the exercise of Section 7 rights, and thereby also independently violated Section 8(a)(1) of the ACt.4 Roy Burrows testified concerning two instances in February 1974, in which he was approached by Plant Manager Fellin and Montgomery, respectively. Both occurred shortly after the new plant was opened to the public for inspection on February 9, 1974. According to Burrows, a few days after this "open house", Fellin approached him at his work station and stated that he heard that Burrows brought two union representatives from the Electrical Workers to the "open house." Fellin then asked Burrows, if he was trying "to get a union in." Burrows replied that he did not know what they were trying to do, adding that if Felten didn't know, "he'd be hurting." Fellin admits to raising the issue with Burrows, but denies that he questioned Burrows as to the latter's intention with respect to the Union. Instead, Fellin testified that he simply asked Burrows "if he knew that these fellows were talking to our employees about the Union." I agree with the General Counsel that under either version Fellin's inquiry was calculated to elicit Burrows' union sentiments, and, under the circumstances, even if credited, Fellin's version would constitute coercive interro- gation violative of Section 8(a)(1). In any event, I regard Burrows as the more credible. I consider it entirely unlikely that Fellin would have put the question to Burrows in the form Fellin describes. Two aspects of Felhn's testimony engender doubt. First, considerable concern arises as to why Fellin would seek out Burrows simply to ascertain whether Burrows, himself, knew what the individuals he was taking through the plant were doing. Fellin's explana- tion that he took this course in order to make sure that Burrows knew what they were doing, "in case he did not want to get involved with the union," was entirely unconvincing. It is highly doubtful that Fellin would have sought out Burrows for that limited purpose. I am also at a loss to understand how Fellin could have assumed that Burrows, as Fellin's testimony implies, did not know what the people that Burrows was escorting through the plant were doing. Considering the foregoing, and Fellin's admitted opposition to the Union, I credit Burrows' version as the more consistent with the probabilities; i.e., that Fellin was disturbed by the reports that an employee had taken advantage of the "open house" as a means of providing nonemployee union adherents access to the plant and that Fellin wanted to get to the bottom of this incident. I find that Respondent, by Fellin's questioning of Burrows as to union activity, violated Section 8(a)(1) of the Act. Burrows further testified that a few days after the above confrontation with Fellin, Montgomery approached Bur- rows at'his work station, stating that the Company did not need a union, and "if the Union came in, the plant would move away." Montgomery, while not specifically denying that he made any such statement, testified that he did not remember discussing the Union with Burrows on any occasion other than a terminal interview, in which Burrows had signified his intention to quit in order to take a better job. I credit Burrows. I have previously discredited Montgomery in connection with his conversation with Burns. My observations relative to Montgomery's demean- or underlying that credibility finding are equally applicable here. Furthermore, it would seem that the threat attributed to Montgomery by Burrows involved one of the more blatant forms of coercion, which if not in fact made, would have been emphatically denied. Montgomery's repeated imposition of lack of recollection as to Burrows' account, enhances the latter's credibility. I find that Respondent violated Section 8(a)(1) by Montgomery's threat that the plant would move if organized by the Union. IV. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By maintaining a published rule precluding employ- ees from distributing union literature on company proper- ty, by coercively interrogating employees concerning their union activity or sentiments , by threatening not to hire applicants because they previously were represented by a union, and by threatening that the plant would move if organized by the Union, Respondent has violated Section 8(a)(1) of the Act. 3 Discrepancies in Burn's pretrial affidavit as to the actual date of his 4 Contrary to Respondent's contention, the fact that Burns, at the time of preemployment interview and the physical setting of his January 8 the conversations with Montgomery, had no view one way or the other on conversation with Montgomery are regarded as negligible and not of the question of union representation , does not diminish the unlawfulness of sufficient import to be given overriding weight in assessing his credibility . Montgomery's remarks WAGNER ELECTRIC CORPORATION 4. The aforedescribed unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 5 Respondent, Wagner Electric Corporation, Sevierville, Tennessee, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, and coercing employees in their right to form, join, or assist a labor organization, by maintaining a rule precluding distribution of union literature in nonworking areas on nonworking time, by coercively interrogating employees concerning their union activity or sentiments, by threatening that job applicants previously represented by a union would not be hired, and by threatening that the plant would move if organized by a union. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization , to form, join, or assist labor organizations, including International Union of Electrical, Radio and Machine Workers , AFL-CIO-CLC, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities: 2. Take the following affirmative action, which I find will effectuate the policies of the Act: (a) Post at its Sevierville, Tennessee, plant copies of the attached notice marked "Appendix.."6 Copies of the notice on forms provided by the Regional Director for Region 10, after being duly signed by an authorized representative of the Respondent, shall be posted by Respondent immedi- ately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places , includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered , defaced, or coverer} by any other material. 395 (b) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 5 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall , as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order and all objections thereto shall be deemed waived for all purposes. 6 In the event that the Board's 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT maintain a rule precluding our employees from distributing union literature in non- working areas of the plant on nonworking time. WE WILL NOT question our employees concerning their activities on behalf of a union. WE WILL NOT threaten to move the plant if our employees choose to be represented by a union. WE WILL NOT threaten to deny employment to job applicants because of their previous representation by a union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in their right to self-organization, to form labor organizations, to join or assist the International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of mutual aid or protection, or to refrain from any and all such activities. WAGNER ELECTRIC CORPORATION