Forest City Tool Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Forest City Tool Company and International Union of Electrical, Radio and Machine Workers, AFL- CIO-CLC.I Case I I-CA-6839 August 12, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On April 27, 1977, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respon- dent filed a brief in support of the Administrative Law Judge's Decision, and a reply 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 briefs 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 complaint be, and it hereby is, dismissed in its entirety. ' The name of the Union appears as corrected at the hearing. DECISION STATEMENT OF THE CASE THOMAS A. RICCl, Administrative Law Judge: A hearing in this proceeding was held at Statesville, North Carolina, on March 27, 1977, on complaint of the General Counsel against Forest City Tool Company, herein called the Respondent or the Company. The complaint issued on January 11, 1977, on a charge filed on December 3, 1976, by International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, herein called the Union. The only issue presented is whether an agent of the Company violated Section 8(a)(1) of the Act. Briefs were filed by the General Counsel and the Respondent. Upon the entire record, and from my observation of the witnesses, I make the following: 231 NLRB No. 70 FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Forest City Tool Company, an Illinois corporation, is engaged in the manufacture of machine parts in its Hickory, North Carolina, facility. During the past 12 months, a representative period, it received goods at this location valued in excess of $50,000 from points directly outside the State. During the same period it shipped from this one location goods valued in excess of $50,000 directly to out-of-state locations. I find that the Respondent is engaged in commerce within the meaning of the Act. 11. THE LABOR ORGANIZATION INVOLVED I find that International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE A very simple and plain question states the totality of this case. Does an employer commit an unfair labor practice under this statute when he stands inside his parking lot and, as the employees start driving home, tells them "move on," with the probable result that they may feel less inclined to accept union leaflets being distributed by organizers outside the lot? At 4:30 p.m. shifts change in this plant; 15 or so employees arrive to start work and somewhat over 100 leave. All these people, it would appear, park on the company-owned lot. There is no fence around the place but there is a driveway; it is wide enough, about 36 feet, for three cars abreast to enter or leave at the same time. The driveway opens into a street called 6th Avenue, deadend to the left and reaching 23d Street to the right - 130 feet away? 200? maybe 300 feet? - where a traffic stop sign compels all vehicles to halt before proceeding either right or left. On November 16, 1976, two representatives of the Union, A.C. Crotts and Jerry Beck, stood outside the driveway at the change of shift and distributed to the employees as they drove in and out about 130 union solicitation leaflets with blank membership cards attached. Harold Nicholas, the Company president, learned about this later. On November 29 the same two organizers were back, again to give out solicitation letters and authorization cards. As one of them said, "it was extremely cold," and "windy." So much so in fact that they took turns standing in the open, one at a time sitting in their car to warm their hands. Nicholas saw them and came out to the parking lot. Crotts testified that Nicholas told him "to not get on company property," and that he answered he had no such intention. Nicholas' version of this is that the two organizers were inside the lot and that he ordered them off. It is a matter of no moment, for there is neither charge nor evidence that anything wrong happened up to this point. The traffic of the departing cars started to back up from the stop sign at 23d Street, and 6th Avenue had a line of autos reaching back to the parking lot driveway. In Crotts' 370 FOREST CITY TOOL COMPANY words: "after approximately a dozen cars entered Sixth Avenue and went to 23rd Street, traffic began to back up to the plant entrance and could not move on out because of traffic on 23rd Street." Crotts' testimony is that Nicholas, "in a loud voice," then called out "move on and don't block the traffic." Beck, the other union agent, also quoted Nicholas as saying "move on, don't hold up the traffic." Nicholas put it differently. He said the organizers were standing in the driveway "running in front of cars to stop them" and that he told them "they were going to get killed if they didn't get away from those cars." He also testified that because the employees were leaving "in single file" and "impatient to get out," he told them "they could go around the other side if they didn't want to stop which they started to do." He explained, at the hearing, that this way the employees "could double and gone on down." Nicholas did not in haec verba deny having used the words "move on." In 10 or 15 minutes the whole thing was over. This time, unlike on November 16, the union agents succeeded in distributing only about 30 cards altogether. Conclusion Whatever the exact words Nicholas spoke during those few minutes, I find, in the circumstances of this case, that he did not commit an unfair labor practice, or, in the words of the statute, he did not "interfere with, restrain, or coerce" the employees. Crotts did not do as well that day in his distribution of union literature as he had 2 weeks earlier. But it was cold outside, the employees, like the union agents themselves, would tend to keep their car windows up, and when backed up in the lot because of the traffic jam, they were likely to become impatient about getting home, as workmen often are. For Nicholas to have 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. called out that they could as well make a double line was also a reasonable thing to do; after all, 6th Avenue is a deadend street, there was no likely traffic the other way on a two lane avenue, and some of the drivers might well have intended to turn left at 23d Street instead of right. Did Nicholas also hope, or intend, that if the traffic flowed a little faster fewer of his employees would bother to open their windows and accept the union literature? I think this is a reasonable assumption. When Crotts, ordered away from the company property, told the boss, as Nicholas testified, that he, Nicholas, was not "fair" to the employees, the president retorted he did not "give a damn" what Crotts thought. It would appear, therefore, that Nicholas, for the least, was not receptive to the Union's organizational campaign. Does it follow from this that his words can be called an "order" to the employees, as the complaint paraphrases them? I think not. At best Nicholas may have been giving voice to his opinion that the employees did not need a union, that they would be better advised to continue their employment relationship with him as in the past without necessity of collective bargaining. If he had this thought in mind, it was one that the statute guarantees him, just as it protects employees against interference and coercion. One could continue at length as to reasons why this or that does not constitute an unfair labor practice. But decisions are not to be written that way. No convincing argument is advanced by the General Counsel to support the complaint, and the Board precedent he cites is distinguishable and inapposite. ORDER I hereby recommend that the complaint be, and it is, hereby dismissed. 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. 371