Fgi Fibers, Inc.

FGI FIBERS 473 FGI Fibers, Inc. and Bakery, Laundry, Beverage Drivers and Vending Machine Servicemen and Allied Workers of Albany and Vicinity Local No. 669 International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Case 3-RC-8542 20 June 1986 DECISION AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND STEPHENS The National Labor Relations Board, by a three- member panel, has considered objections to an election held 5 and 6 April 1984 and the hearing officer's report recommending disposition of them. The election was conducted pursuant to a Stipula- tion for Certification on Consent Election executed on 20 March 1984. The tally of ballots shows 21 for and 28 against the Petitioner, with 2 challenged ballots, an insufficient number to affect the results. The Board has reviewed the record in light of the exceptions and briefs, and has decided to affirm the hearing officer's findings and recommendations as modified below. The hearing officer recommended sustaining the Petitioner's Objection 5(a) and an unnumbered ob- jection and setting the election aside. The hearing officer recommended overruling the Petitioner's other objections in issue.' Objection 5(a) alleges that the Employer threatened to eliminate its open door policy if the Union won the election, and the unnumbered objection alleges that the Employer adopted for discriminatory reasons a rule prohibit- ing talking about the Union in the workplace or on worktime. We find merit in the Employer's excep- tion to the hearing officer's finding with respect to Objection 5(a), but we affirm, for the reasons stated below, his finding with respect to the unnumbered objection, and we find that the conduct on which the latter objection is based warrants setting aside the election. Objection 5(a) The facts show that the Employer maintained a widely publicized and utilized open door policy which gave employees the right to discuss any topics at any time with supervisors and manage- ment officials. Three employee witnesses testified that two company officials stated in employee shiftwide meetings a few weeks before the election that "there would not be any more open door policy if the Union was voted in because they'd have to go through union procedures, like griev- ances." The Employer distributed campaign litera- ture which contained the following statements: The Company is not in favor of a union in this plant because 1. The Company likes its ability to deal di- rectly and on a personal basis with its employ- ees. A union would require dealing with our employees through a shop steward, thereby losing personal relationships. 2. In the running of our business we have been able to communicate and function in a relatively informal manner . Placing a union in between management and employees will for- malize the structure to the point where both the company and the employees will fmd it much more difficult to work and communicate effectively. The hearing officer found from the foregoing testimonial and documentary evidence that the Em- ployer unlawfully threatened to "retaliate against its employees' selection of a union representative by cutting off the employees' Section 9(a) right to deal directly with management."2 In support of this finding, he emphasized the Employer's failure to make reference to the employees' Section 9(a) right to take up grievances directly even if they have union representation. The Board has recently held, in Tri-Cast, Inc.,3 that where, as here, an employer proceeds to tell its employees about changes in its open door policy which will result from their selection of a bargain- ing agent, such statements "cannot be characterized as an objectionable retaliatory threat to deprive employees of their rights but rather is nothing more or less than permissible campaign conduct."4 Further, as Section 9(a) contemplates changes in the manner in which employers may deal with rep- resented employees, we find, contrary to the hear- ing officer, that no negative inference should be drawn from the Employer's failure to refer its em- ployees to that section of the Act.5 Accordingly, we shall overrule Objection 5(a). ' At the heanng the Petitioner withdrew Objections 1, 4, 6, 7, 8, 9, 10, and II and portions of Objections 2, 3, and 5, and the hearing officer therefore made no rulings on them The hearing officer overruled the re- maining Petitioner objections (portions of Objections 2, 3, and 5) except for Objection 5(a) and the unnumbered objection discussed below. The Petitioner filed exceptions to the hearing officer's overruling of the un- withdrawn portions of Objections 2, 3, and 5 We find no merit in those exceptions 8 Mead Nursing Home, 265 NLRB 1115, 1116 (1982) 9 274 NLRB 377 (1985) 4 Id at 377 s The proviso to Sec 9(a) specifically provides that employees have the right to present grievances to their employer without union interfer- ence "as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect Provided fur- ther, That the bargaining representative has been given opportunity to be present at such adjustment " 280 NLRB No. 54 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Alleged No-Talking Rule The record evidence shows that prior to this or- ganizing campaign the Employer had a no-solicita- tion rule which was included among its written work rules and regulations.6 George Scavelli, the Employer's vice president, referred to that no-so- licitation rule during his talks at the employee shift meetings in March. In addition, Scavelli read ver- batim the following portion from a management electioneering guide, which related to prohibited and permissible actions by supervisors: Must not interfere with employees who dis- tribute union literature in non-work areas during non-work periods. For example, lunch periods, rest periods et cetera. Remember the employees may not distribute union literature during working time or in work areas where a plant rule in the interest of efficiency and pro- ductivity prohibits such a distribution. The hearing officer also found, however, based on mutually corroborative testimony of employee witnesses whom he credited, that Scavelli ex- plained the rule to the employees as a rule that would bar talk about union matters "in work areas or on work time" (emphasis added) and made it clear that they could not engage in union talk at their work stations. The rule as thus explained would, as a practical matter, bar such discussions when employees were returning from breaks and even in the absence of any particular showing of interference with production or discipline. The hearing officer further found that, prior to the or- ganizing campaign, the Employer had imposed no ban on employees' talking at their work stations, and there was no evidence that such conversations had caused any disruption of work that would jus- tify the broad ban. We agree with the hearing offi- cer that, in these circumstances, the vice president's oral explanation of the no-solicitation rule at an employee meeting constituted objectionable con- duct because the rule was both overly broad7 and " The Employer's written no-solicitation rule states as follows 6. Employees have the right under the National Labor Relations Act to join or refuse to join a labor organization and to engage in or refuse to engage in efforts to organize a labor organization. Howev- er, work time is for working and employees may not use their paid work time, nor interfere with other employees during their paid work time in their exercise of these rights . There will be no distnbu- don of literature, pamphlets or printed material of any land on com- pany property by persons employed or not employed by the compa- ny. Failure to comply with item 6 will result in being discharged from employment (Emphasis in original ] 7 Our Way, Inc., 268 NLRB 394 (1983), Stoddard-Quirk Mfg. Co, 138 NLRB 615, 617 (1962). Unsupported speculation that talk about unions, discriminatory." The absence of evidence that the rule was actually enforced "does not insulate it from the proscriptions of the Act." Paceco, 237 NLRB 399, 401 fn. 11 (1978). We fmd that the overly broad and discriminatory no-solicitation rule promulgated at a meeting of unit employees interfered with the election held 5 and 6 April 1984 and that the election should therefore be set aside and a new election directed. [Direction of Second Election omitted from pub- lication.] CHAIRMAN DOTSON, dissenting. Contrary to my colleagues, I would reverse the hearing officer's finding that Vice President Sca- velli promulgated an objectionable no-talking rule. The facts show that prior to the union organizing campaign the Employer published a no-solicitation rule recognizing the right of its employees to engage in organizing activities that does not inter- fere with working employees. The sole objection- able conduct found here involves Scavelli's at- tempts to clarify to employees that the Employer's written rule meant that employees should not carry back breaktime union discussions to disrupt work- ing employees. Contrary to the majority, I con- clude therefrom that Scavelli did not promulgate a no-talking rule but merely clarified the Employer's existing written rule.I Furthermore, Scavelli's admonishing employees not to disrupt coworkers is plainly more reflective of the Employer's legitimate desire to maintain pro- duction than that of antiunion motivation where, as here, this is the sole conduct found objectionable, and there is simply no evidence of antiunion animus on the part of the Employer. Thus, I find inapposite cases cited by my colleagues and the hearing officer involving overly broad no-solicita- tion or no-talking rules which the Board found had been promulgated to interfere with union organiz- ing or other protected employee activities, or in which such rules were used as a backdrop for un- lawful threats or warnings to known union sup- porters. Accordingly, for all these reasons, I would reverse this finding of the hearing officer and certi- fy the election results. as opposed to other sorts of conversations, would somehow interfere with plant discipline is not the sort of business justification that would save an overly broad rule. 6 Maestro Cafe Associates, 270 NLRB 106 fn. 2 (1984) 'Unlike my colleagues, I do not view Scavelli's clarification as a broader prohibition than the written no-solicitation rule which I note is not even alleged as objectionable