Kirkhill Rubber Company

KIRKHILL RUBBER COMPANY Kirkhill Rubber Company and United Rubber, Cork, Linoleum and Plastic Workers of America, Dis- trict 5, AFL-CIO. Case 21-CA-19922 August 31, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS JENKINS AND HUNTER On January 22, 1982, Administrative Law Judge Richard J. Boyce issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the Charging Party and the General Counsel filed answering briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge, as modified herein, and to adopt his recom- mended Order. We agree with the Administrative Law Judge that Respondent violated Section 8(a)(l) of the Act by issuing a written reprimand to Michael Masciel on January 15, 1981, and by interrogating Masciel about his union activities on January 16, 1981. Re- garding the reprimand, however, the Administra- tive Law Judge, in his Decision, and Respondent, in its exceptions, devote substantial analysis to the content and purported validity of Respondent's plantwide rules of general application relating to solicitation and distribution of literature. Such anal- ysis, however, misses the basic point. For the simple fact remains that Masciel was issued a writ- ten reprimand for "solicitation for union purposes on company time and property." We have consist- ently held that an employer's statements of this nature violate Section 8(a)(1). John L. Lutz Welding and Fabricating, Inc., 239 NLRB 582, 585 (1978); S. S. Kresge Company, 229 NLRB 10, 14 (1977); Wo- metco Coca-Cola Bottling Company of Nashville, Inc., 255 NLRB 431, 437, 444 (1981). Here, rather than being verbal statements, the restriction took place in the context of a written reprimand. In either case, however, the employer's action inter- feres with and coerces employees in the exercise of I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing his findings. 263 NLRB No. 113 their Section 7 rights. Thus, regardless of the con- tent of the rules of general application maintained by Respondent and their validity under the Act, Respondent's discipline of Masciel, by its own terms, constitutes an unlawful restriction on his ex- ercise of Section 7 rights in violation of Section 8(a)(1). Accordingly, to the extent the Administra- tive Law Judge's Decision encompasses issues re- lating to the lawfulness of Respondent's rules of general application, it is hereby disavowed.2 In all other respects we adopt his Decision and recom- mended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Kirkhill Rubber Company, Brea, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 2 Inasmuch as the complaint does not allege that Respondent's rules are unlawfully overly broad and we need not resolve that issue to dispose of the complaint allegations, we make no finding as to the lawful or un- lawful nature of Respondent's no-solicitation and no-distribution rules. DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge: This matter was heard before me in Los Angeles, California, on December 10, 1981. The charge was filed on January 23, 1981, by United Rubber, Cork, Linoleum and Plastic Workers of America, District 5, AFL-CIO (District 5). The complaint issued on March 20, and alleges that Kirkhill Rubber Company (Respondent) violated Section 8(a)(1) of the National Labor Relations Act, as amended (the Act) on January 15, 1981, by reprimanding its em- ployee, Michael Masciel, "because he engaged in union or other protected concerted activities," and again on January 16 by "interrogat[ing] employees concerning their union activities and sympathies." 1. JURISDICTION Respondent is a California corporation, with two facil- ities in the community of Brea, engaged in the manufac- ture and sale of elastomeric rubber products. It annually sells goods of a value exceeding $50,000 directly to cus- tomers outside California, and thus is an employer en- gaged in and affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE I.ABOR ORGANIZATION District 5 and its parent International (International) are organizations in which employees participate by paying membership dues and electing officers, and exist 857 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the purpose of representing employees in collective bargaining with regard to wages, hours, and other terms and conditions of employment. District 5 and the Inter- national, jointly and severally, are labor organizations within the meaning of Section 2(5) of the Act. Ilt. THE ALLEGED UNFAIR I ABOR PRACTICES A. Facts Background: In October 1980, the International began to organize Respondent's approximately 600 production and maintenance employees. On December 22, it filed a petition for election with the National Labor Relations Board.' On January 15, 1981, unable to provide a suffi- cient showing of interest in support of the petition, it re- quested the petition's withdrawal. The request was ap- proved by the Regional Director on January 16.2 Masciel, a mandril builder in Respondent's duct de- partment, was one of several employees active in the or- ganizational effort. He attended a unionl meeting at the campaign's inception, after which he distributed union authorization cards and other materials to an estimated 80 coworkers. lie testified that this activity took place in Respondcrnt's parking lot before his shift, and otherwise "on my time." Albert (Cy) Blanton, an organizer for the Union, had cautioned him not to solicit "on company time." Masciel worked on the second shift, which ran from 3:30 p.m. to midnight. The reprimand: In the evening of January 14, 1981- the day before the International requested the withdraw- al of its petition-the foreman of the duct department, Donald Wyett, an admitted supervisor, came upon Mas- ciel and Greg Gerbais, an inspector for Respondent, in the department's office. Masciel's duties required that he be in the office briefly perhaps three times per shift to check work schedules. Gerbais' duties took him all over the plant from time to time. Neither was on break when Wyett encountered them. As Wyett approached the office on this occasion, he could see through the office windows that Masciel was talking to Gerbais, but admittedly "couldn't hear any of the conversation." Masciel was seated at a desk, facing Wyett; Gerbais was standing at the desk, back to Wyett. Entering the office, Wyett saw that Gerbais, pencil in hand, apparently was filling out an authorization card, which lay on the desk in front of him. Wyett immediate- ly summoned Gerbais outside the office, where he ad- monished him not "to be filling out any union material during working hours," and directed that he "go back to" work. Wyett said nothing to Masciel at the time. He ex- plained that, when he entered the office, Masciel "disas- ' Case 21-RC-16612. 2 Sec. 101.18 of the Board's Statements of Procedure provides that "unless the petitioner has been designated by at least 30 percent of the employees . . . the showing of representation among the employees is in- sufficient to warrant an election," and the regional director "may request the petitioner to withdraw its petition"; and, "if the petitioner . . . re- fuses to withdraw the petition, the regional director then dismisses the petition . . . " The International filed a new petition on February 5. An election fol- lowed on March 19, which it lost by a substantial margin. Case 21-RC- 16643. sociated himself with Greg [Gerbais] and acted like he was working on something there at the desk"; then quickly "moved out of there." Wyett shortly reported the incident to his immediate superior, Jack Swindle. Swindle's spoken reaction was that it was "a pretty serious offense," and that he would "have to report this" to his superior, Ben Cannon. The record is silent whether a report in fact was made to Cannon at or around that time. Neither he nor Swindle testified, and Wyett testified that he talked to no one but Swindle about the incident between the time of its occur- rence and the next day, early in the second shift. The next day, January 15, at or about 4 p.m., Gerbais was called before Cannon to describe what had hap- pened. Swindle and Wyett also were present. Gerbais re- lated, according to Wyett,3 that Masciel previously had told him that 35 more signed cards were needed "to get enough cards to petition for a union"; that he offered to sign "if you need my help"; and that, later, when Ger- bais entered the duct department office, Masciel "was sit- ting at the desk" and a card was "lying on the desk" for him to fill out and sign. After Gerbais' recital, and without inviting Masciel to give his version, Cannon directed Swindle and Wyett to "write [Masciel] up . . . [for] . . . soliciting union busi- ness on company time." Wyett then prepared a written reprimand, using wording prescribed by Cannon, and he and Swindle presented it to Masciel. The reason stated on the reprimand for its issuance was this: "Solicitation for union purposes on company time and property." Masciel was asked to and did sign the document. He was not given a copy. In the conversation accompanying tender of the repri- mand, Swindle stated that Masciel was being written up for "soliciting union." Masciel denied that he had been so engaged, adding that he knew his "rights"-that he could "solicit on [his] time," but not "on company time." Masciel then asked if Wyett had heard him "solicit union." Wyett replied, "No, but I assumed you were." Masciel challenged, "Well, if you didn't hear me, how could you assume that I was speaking union?" Swindle interjected, "Well, Mike, he didn't say he seen you, he assumed you were." Masciel pressed, "How come you are going to write me up when I wasn't soliciting?" Swindle replied that he had "heard" that the Union needed 30 more cards, and that it was "assumed" that Masciel had been soliciting. Swindle also stated during the exchange that Bill Haney, Respondent's president, and Cannon had been "looking for people who are in- volved in the union"; and referred to Masciel as "an in- stigator." 4 The record leaves no doubt that rules against solicita- tion and the distribution of printed matter were on dis- 3 Gerbais, attending school out of the area, did not testify. As earlier mentioned, neither did Cannon nor Swindle. 4 Masciel's coherent and convincingly detailed version of this ex- change is credited. In contrast, Wyett's testimony on the point--consist- ing of his saying "there wasn't much conversation that exchanged during that time," and that he could not recall certain particulars-was vague, seemingly evasive, and generally unpersuasive. Again, Swindle did not testify 858 KIRKHILL RUBBER COMPANY play at relevant times, but is scarcely conclusive regard- ing their content. Thus: (a) The reprimand indicates that they forbade solicita- tion "for union purposes," if not distribution, "on compa- ny time and property." (b) Cannon, directing that Masciel be written up, cited "soliciting union business on company time." (c) Masciel, in receiving the reprimand, declared that he knew his "rights"-that he was not to solicit "on company time." (d) Respondent's attorney, R. D. Sweeney, informed the NLRB Regional Office, by letter dated February 3, 1981: "[T]he rules of the company forbid solicitation of any kind by any employee on company time and compa- ny property." (e) Wyett testified that, "on the company rules, it says no soliciting in the plant." (f) Wyett elsewhere testified that the rule for which Masciel was reprimanded was: "Soliciting during compa- ny working hours"; and he admonished Gerbais "not to be filling out any union material during working hours." (g) Donald Finefrock, vice president of manufacturing, testified that the same rules had been posted since May 1980, and that they provided: Committing any of the following will be deemed sufficient grounds for discipline up to and including discharge. * * * * * 15. Vending, soliciting, or receiving contribu- tions, for any purpose whatsoever during an em- ployee's working time. 16. Distributing literature, written or printed matter of any description during an employee's working time without permission. (h) Masciel testified variously that a rule was posted in 1980 forbidding "soliciting... on company's premises"; that he first saw a posted rule after the International's January 15 withdrawal of its petition; that a new rule was posted sometime after the February 5 filing of the new petition; that the new rule banned "soliciting, union activities, or signing of cards on company's time and on company premises"; that the rules of which Finefrock testified were not the first to be posted; and that, in 1980, a "whole new list [of rules], a long list," was posted. It is concluded that the most persuasive evidence of the prohibition on which the reprimand was based is contained in the reprimand itself, as confirmed by attor- ney Sweeney's letter of less than 3 weeks later-that is, soliciting "on company time and property." It is further concluded that the reference in the reprimand to solicita- tion "for union purposes" was merely descriptive of Masciel's perceived offense, and does not warrant an in- ference that the posted rule singled out that form of so- licitation. Gerbais was not reprimanded for his part in the inci- dent. Finefrock explained, "It was deemed that he was not the aggressor." Finefrock testified that Cannon told him at or about 11 a.m. on January 15 that Masciel "had been caught in the office soliciting for the union," and was going to be reprimanded. Finefrock continued that he could have overridden the reprimand, but chose to approve it "after the fact." He further testified that Re- spondent has a system of "progressive" discipline-con- sisting of an oral reprimand on the first offense, a written reprimand on the second offense, and then suspension and possibly layoff for succeeding offenses. He qualified, however, that the system is not "absolute," and that the oral warning step was bypassed as concerns Masciel be- cause "the seriousness of this offense was considered to be worth a written warning." Masciel testified that he gave the card to Gerbais in the parking lot before work on January 14, after Gerbais had told him he was "interested in" signing. Then, just before Wyett came upon them in the office, according to Masciel, Gerbais entered and approached the desk where Masciel was seated, placed the card on the desk, and seemed ready to begin filling it out when Wyett ap- peared. Masciel testified that the subject of a union did not arise in their attendant conversation; rather, that they talked about Gerbais' plans to go away to school. Masciel testified that various employees sold such things as candy, crystal, Tupperware, and Avon prod- ucts in the duct department "during working hours," but that he had not seen this done in the presence of man- agement officials. Masciel also testified that he had seen Wyett participate in baseball and football pools in the plant during worktime in 1980. The interrogation: On January 16, upon arriving for work, Masciel asked Cannon for a copy of the repri- mand. Cannon referred him to the personnel office, where he spoke with Finefrock. Finefrock said that Mas- ciel could not have a copy, but could "look at" the origi- nal. After Masciel had done so, Finefrock asked why he wanted a copy. He answered that he "was thinking about going to the Labor Board." To Finefrock's asking why, Masciel stated that he did not want "to get fired because [of] absenteeism, or, you know, doing something wrong." Finefrock protested that Respondent "isn't like that." Then, referring to the gravamen of the reprimand, Masciel asked, "You tell me I couldn't solicit on proper- ty?" Finefrock, ignoring the question, asked one of his own: "Are you involved in the Union?" Masciel re- sponded, "I can't say anything." Finefrock said he un- derstood, then asked how Masciel liked working for Re- spondent. Masciel said it was "all right," but that he was unhappy with company medical benefits. Finefrock next asked why Masciel would want "a third party"-presum- ably an allusion to the Union. Masciel answered, "For better pay and benefits." 5 6 Masciel's detailed and internally consistent version of this conversa- tion is credited. Finefrock's rendition was confused and sometimes con- tradictory, and thus, to the extent that its ultimate form conflicted with Masciel's, unworthy of belief For example, Finefrock testified at one point that the company medical plan was not discussed at the time. He later stated that he explained the plan "at some length" in response to Masciel's question why there were not better medical benefits. Finefrock also testified that "the union" was not mentioned "at any time during that conversation"--"No, sir"; only to concede: "Michael IMasciell said that if \ke had a union. there might he nmr or better benefits" 859 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Conclusions The reprimand: It is concluded that the reprimand of Masciel violated Section 8(a)(1) as alleged. The bases for this conclusion are these: (a) The underlying no-solicitation rule-banning solici- tation "on company time and property"-was invalidly broad. As stated in Plastic Film Products Corp., 238 NLRB 135 (1978): The Board has repeatedly condemned the pro- mulgation of rules prohibiting protected activity "on Company time" as unduly ambiguous and rea- sonably likely to be interpreted by employees as a prohibition against soliciting during nonworking time. ... The same can be said, even more so, of bans against so- licitation "on company property." True, such rules are not conclusively invalid. In this case, however, Respondent has made no convincing showing that its rule, in the words of Plastic Film Prod- ucts Corp., supra at 135, "was justified by a need to main- tain discipline or production in its plant."6 The rule from which it flowed being invalid, and there being no grounds for inferring that Masciel's "assumed" soliciting interfered with his or Gerbais' work, the repri- mand-for soliciting "for union purposes"-necessarily violated Section 8(aX I). Hambre Hombre Enterprises, Inc., d/b/a Panchito's, 228 NLRB 136 (1977); Daylin Inc., Discount Division d/b/a Miller's Discount Dept. Stores, 198 NLRB 281 (1972). 7 (b) Apart from the invalidity of the underlying rule, it is manifest that Respondent's enforcement of it in this in- stance was motivated by unlawful considerations. While the "offense" perpetrated by Masciel, an ardent union ac- tivist, was treated as of a "seriousness ... to be worth a written [i.e., second-step] warning," his co-equal in its perpetration, Gerbais, received not so much as a first- step reprimand. Moreover, in the conversation incidental to the presentation of the reprimand, Swindle termed Masciel "an instigator" and remarked that Haney, the company president, and Cannon had been "looking for people who are involved in the union." Additionally, Gerbais, but not Masciel, was given a chance to tell his version of the underlying incident to management. Further, the stated reason for sparing Ger- bais-that he "was not the aggressor"-was not warrant- ed by Wyett's perception of the incident, and, again, was without benefit of Masciel's side of the story. This ra- tionale, for that matter, was without Gerbais' side, as well, given Finefrock's testimony that he learned from Cannon at or about 11 a.m. on January 15 that Masciel * Finefrock's testimony that, because the duct department operates "with a minimum amount of employees, it is doubly important that each and every one be doing everything they can towards production every moment of the working day," and that, because Respondent manufac- tures "very delicate, intricate parts" for military and commercial aircraft, the "attention of the employees" is required "at all times," hardly meets the burden of justification. 7 The invalidity of the rule makes it unnecessary to address Masciel's testimony suggesting its nonenforcement with regard to sports pools and in-plant vending, and that he in fact was not soliciting in the duct office. Eastex Incorporated, 215 NLRB 271, 275. fn. 13 (1974). was going to be reprimanded for "soliciting for the union." Gerbais, it will be remembered, did not tell his story to Cannon until about 4 p.m. on January 15. The rationale, in short, was contrived, and Respondent's de- piction of Masciel as "the aggressor" plainly stemmed from an awareness of his organizational activities at times other than the incident in question. The interrogation: It is concluded, without need for supporting discussion or citation, that Finefrock violated Section 8(a)(1) as alleged by asking Masciel, during their January 16 conversation, if he was "involved in the union" and why he would want "a third party." CONCLUSION OF LAW By reprimanding Michael Masciel on January 15, 1981, and by interrogating him on January 16, 1981, concern- ing his union activities and sympathies, as found herein, Respondent in each instance violated Section 8(aX)(1) of the Act.6 ORDER 9 The Respondent, Kirkhill Rubber Company, Brea, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Reprimanding any employee because of his union activities or sympathies. (b) Interrogating employees about their union activities or sympathies. (c) In any like or related manner interfering with, re- straining, or coercing employees in their exercise of rights under the Act. 2. Take this affirmative action: (a) Rescind the reprimand of Michael Masciel given on January 15, 1981, expunge from its records any reference to that reprimand, and notify Masciel in writing that this had been done. (b) Post as its places of business in Brea, California, copies of the attached notice marked "Appendix."' 0 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Re- spondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be ' Although it has been concluded that issuance of the reprimand was prompted by improper antiunion considerations, a violation of Sec. 8(aX3) has not been alleged and it would not enhance the remedy to make such a finding. Further, since the no-solicitation rule underlying the unlawful reprimand was not alleged to be unlawful, and since the Gener- al Counsel has not otherwise asked that a violation be found in that regard, at least not with a clarity giving Respondent notice that the issue was to be litigated, no such finding will be made. T.R. W Bearings Divi- sion, a Division of T.R.., Inc., 257 NLRB 442 (1981). 9 All outstanding motions inconsistent with this Order hereby are denied. In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the Naitonal Labor Relations Board, the findings, conclusions, and 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. 'O In the event that 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 860 KIRKHILL RUBBER COMPANY maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, and has ordered us to post this notice. WE WILL NOT reprimand any employee because of his union activities or sympathies. WE WILL NOT interrogate employees about their union activities or sympathies. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce employees in their exercise of rights under the Act. WE WILL rescind the reprimand of Michael Mas- ciel given on January 15, 1981, expunge from our records any reference to that reprimand, and notify Masciel in writing that this has been done. KIRKHILL RUBBER COMPANY 861