E. R. Carpenter Co, Inc.

E. R. CARPENTER CO. 273 E. R. Carpenter Company, Inc. and International Union, United Automobile, Aerospace & Agri- cultural Implement Workers of America (UAW). Cases 9-CA-23173 and 9-CA-23538 17 June 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT On 6 March 1987 Administrative Law Judge Frank H. Itkin issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions 1 and brief and has decided to affirm the judge's rulings, findings, and conclusions, to modify his remedy, 2 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, E. R. Car- penter Company, Inc., Russellville, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the Order. ' In Its exceptions to the judge's decision, the Respondent argued that employee Barrow's activity in placing union literature on the windshields of employees' parked cars was illegal under a Kentucky criminal statute and thus unprotected by the Act This exception is without merit. We find, in agreement with the judge, that Barrow's distribution clearly was protected by Sec. 7. See, e g, Baker Mfg. Ca, 218 NLRB 1295, 1298- 1299 (1975), enfd 564 F 2d 95 (5th Cir 1977), F W. Woolworth Co., 216 NLRB 945, 949-950 (1975), enfd 530 F 2d 1245 (5th Cir. 1976), cert denied 429 U.S. 1023 (1976). Assuming, without finding, that the state statute is applicable to Barrow's conduct, its enforcement would conflict with his exercise of rights guaranteed by Sec. 7. Accordingly, it would be barred under the preemption doctrine See Brown v Hotel Employ- ees, 468 U.S. 491, 501-503 (1984) We find it unnecessary to rely on the judge's analysis of the statute in affirming his decision. 2 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest will be computed at the "short-term Fed- eral rate" for the underpayment of taxes as set out in the 1986 amend- ment to 26 U.S C § 6621 Bruce H. Meiilish, Esq., for the General Counsel. John R. Costa, Esq., for the Respondent Employer. DECISION FRANK H. ITKIN, Administrative Law Judge. Unfair labor practice charges were filed by the Union in this proceeding on June 2 and September 18, 1986. An amended consolidated complaint issued on October 27, 1986. A hearing was held in Russellville, Kentucky, on December 4, 1986. 1 The General Counsel contended that ' The complaint was amended at the hearing to delete par 6(a) See Tr 5-6 Respondent Employer had violated Section 8(a)(1) and (3) of the National Labor Relations Act by removing union literature from the windshield of employee auto- mobiles in the employee , parking lot; by coercively inter- rogating employee Jeffrey Lee Barrow about placing the union literature on the windshield; and by suspending employee Barrow for 3 days for placing the union litera- ture on the windshields. Respondent Employer denied violating the Act as alleged. On the entire record, in- cluding my observation of the demeanor of the wit- nesses, and after consideration of the briefs filed, I make the following FINDINGS OF FACT Respondent Employer is engaged in the manufacture and sale of polyurethane foam products. The Employer has offices and plant facilities in Russellville, Kentucky, and is admittedly engaged in commerce as alleged. The Union is admittedly a labor organization as alleged. Jeffrey Lee Barrow, employed by Respondent, testi- fied that about November 1985 he enlisted the Union's organizational assistance at the Employer's Russellville plant; that he conducted union meetings among the em- ployees; and that he distributed literature on behalf of the Union. Barrow distributed union authorization cards to his co-employees "out on the road in front of the plant and then out in the parking lot." Barrow also filed an unfair labor practice charge against the Employer for allegedly "harassing me because of my Union activities"; however, this charge was dismissed. Subsequently, on May 7, 1986, Barrow assisted union representatives in distributing literature "in front of the plant." On the following morning, May 8, "just before" Barrow was scheduled to report to work on the first shift, Barrow placed copies of General Counsel Exhibit 2 "on windshields" of automobiles in the plant parking lot. General Counsel's Exhibit 2 includes a one-page leaflet to "All Carpenter Employees" at Russellville from the Union, a union authorization card, and an addressed- stamped envelope. Barrow's wife, Ella, also employed by Respondent, assisted him. Barrow, as he further testified, was attempting to place this literature "on all the cars of the third shift employees."2 Later that morning, May 8, Barrow reported for work as scheduled. Nothing was said to him about his earlier union activity. On the following day, May 9, shortly after the first morning break, Barrow had the following conversation with Supervisor David Armstrong: Rumor had got back to me [Barrow] that he [Arm- strong] had been going around asking people to sign a paper stating that they had seen me out there put- ting papers on windshields, soliciting or whatever, and I just asked him about it. . . [Armstrong] said he hadn't got anybody to sign nothing. However, subsequently, Production Manager Anthony Santagata and Supervisor Armstrong instructed Barrow 2 Barrow explained that he determined which cars probably belonged to the some 200 third-shift employees because they had "dew on them" and therefore had been "parked there for awhile" 284 NLRB No. 39 274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to "get [his] tools and come with them." Barrow was taken to the personnel office. Present in the personnel office were Plant Manager John Meguiar, Production Manager Santagata, Supervi- sor Armstrong, and employee Barrow. 3 Barrow testified: [Meguiar] told me that they had had some com- plaints of me being out in the parking lot putting garbage on employees' windshields . . . I told him [Meguiar] I didn't consider it garbage and he said, "well I do." [Meguiar] asked me if I knew this was soliciting . . . and I didn't say anything, and he said, "did you know this is against Company policy", again, I didn't say anything. . . . [Meguiar] said, "were you doing this", I told him yes. He said, taking this all into consideration, they were going to give me three days [suspension] pending notification of termination, for me to report back three days later. . . to see if I still had a job. Barrow reported back to work as instructed on May 14. He then spoke with Plant Manager Meguiar. Meguiar explained "that they were going to let me come back to work." Barrow asked "why I was given three days." Meguiar replied: "for infringing on the rights of . . . em- ployees." Barrow asked, "What about the soliciting part." Meguiar insisted that "nobody was accusing [Barrow] of soliciting." Shirley Shoemake, previously employed by the Re- spondent, testified that she observed Personnel Manager James Grimes in the plant parking lot about 7:10 a.m. on the morning in question. Grimes "came out to the park- ing lot and he looked around and he got the Union liter- ature off the windshield." Shoemake observed Grimes take this "information off of" about 12 automobiles. The literature was identified as General Counsel's Exhibit 2. Personnel Manager James Grimes testified that an em- ployee had complained to him about "notices being placed on employees' cars in the parking lot." Grimes went out in the parking lot, "looked around," "did see that there had been literature put on the cars," and then assertedly left. He denied "removing any" of the litera- ture. When asked, "Did you touch any?", he replied, "I don't think so." Grimes spoke with Plant Manager Me- guiar. On the following day, employee Barrow was brought to the office. There, Barrow was questioned by Meguiar about placing the notice "on employees' cars out in the parking lot." Barrow admitted that he had done this. Barrow was given a "three-day suspension pending discharge to give us a chance to look at the facts." Later, management determined not to discharge Barrow.4 Grimes explained that the Employer decided that Barrow could "return to work" "because we did not feel that it was a malicious enough act to the cars [and] the sensitivity of the nature of the matter." Grimes was asked: "Have you ever disciplined em- ployees for touching or otherwise doing something to 3 Barrow did not believe that Personnel Manager James Grimes was also present at this meeting 4 According to Grimes, this would be Barrow's "fourth violation" within 12 months and, pursuant to the Employer's progressive discipline policy, he could be terminated somebody else's car in the parking lot?" He recalled ter- minating employees where an employee "was caught let- ting the air out of another employee's tires" and where employees "admitted to putting shaving cream on an- other person's car." Grimes asserted that "Company policy with respect to allowing someone access to the Company parking lot for purposes of putting notices on people's cars" is, "we do not allow them to do that." However, "this type of situation involving an employee putting something on employees' cars, whether its Union material or any material, has [not] happened before at ER. Carpenter Company." This was the "first inci- dent."5 On cross-examination, Grimes acknowledged that "Mr. Meguiar said that they had complaints about Jeff putting garbage on peoples' cars." Grimes elsewhere claimed that "I don't know the exact terminology." Grimes did not "remember" whether Meguiar also said: "Do you know this is soliciting?" Further, Grimes acknowledged that his company policy prohibiting this type of conduct was apparently not "published" or "printed anywhere." He stated: "Here again, I'm not for sure. I couldn't say for sure." And, as noted, Grimes agreed that "we've never had it happen before."6 Plant Manager John Meguiar testified that he had been informed that "Mr. Barrow had placed some literature on the vehicles in our Company parking lot." Barrow was bought to the personnel office. Barrow was ques- tioned and admitted to this conduct. Meguiar claimed that he then referred to the union literature as "trash," quoting his electrician's complaint that this "trash" had been placed on automobiles. The parking area involved is where 90 percent "of the people employed" at the Employer's facility park their vehicles. According to Meguiar, "We refer to that as the employee parking lot." Some salaried and administrative personnel park there also. Meguiar then told Borrow that "for disciplinary action we were giving him three days pending discharge for that violation." Later, we decided though that it was not significant enough or major enough to terminate a person that had the longevity with our Company that Jeff had. Meguiar denied telling Barrow that he was "violating the Company's no-solicitation no-distribution rules" "be- cause he hadn't violated that rule."7 5 Gnmes recalled once refusing an employee permission to put church revival notices on vehicles in the parking lot 6 There is a proscription in the company employee handbook that deals with "damage to other peoples' property in the parking lot." And, as stated, employees were terminated for this type of misconduct Barrow, however, admittedly did not damage "anybody's car" 7 I credit the testimony of Barrow as recited above His testimony is substantiated in large part by the acknowledgements of Grimes and Me- guiar. He impressed me as a reliable and forthright witness I also credit the testimony of Shoemake She fully and candidly related what she had observed on the day in question Insofar as the testimony of Megmar and Grimes conflicts with the testimony of Barrow and Shoemake, I am per- suaded here that the testimony of the latter witnesses, as recited above, is more complete, reliable, and trustworthy. The testimony of Megmar and Grimes was in part incomplete, contradictory, unclear, and evasive In particular, I do not believe Grimes' assertion that he did not remove the Continued E. R. CARPENTER CO. 275 Discussion An employee's right to distribute union literature in nonworking areas during nonworking time is protected under Section 7 of the Act. See generally Our Way, Inc., 268 NLRB 394 (1983), and authorities cited. Consequent- ly, the Board has held that an employer interferes with, restrains, and coerces its employees in the exercise of their Section 7 rights, in violation of Section 8(a)(1) of the Act, by removing union leaflets from automobiles parked in the employees' parking lot. See generally Clin- ton Inn, 249 NLRB 198, 204 (1980), and cases cited. Moreover, an employer runs afoul of Section 8(a)(1) by coercively interrogating employees about their protected activities. See generally Rossmore House, 269 NLRB 1176 (1984), and cases cited. And, of course, where an employer suspends or otherwise discriminates against an employee because the employee had engaged in protect- ed activities, the employer also violates the proscription of Section 8(a)(3) of the Act. As the credible evidence of record shows, employee Barrow enlisted the Union's organizational assistance at the Employer's plant. Barrow thereafter conducted union meetings and distributed union literature and authoriza- tion cards to his co-employees. Barrow distributed union authorization cards "in front of the plant" and in "the parking lot." Barrow also filed an unfair labor practice charge against the Employer for "harassing [him] be- cause of [his] Union activities." This charge was later dismissed. Subsequently, Barrow and his wife, also an employee, placed union literature on the windshields of the 200 automobiles which were parked in the "employ- ee lot." Personnel Manager Grimes was observed by an employee removing some of this literature. On the fol- lowing morning, Barrow was instructed to "get [his] tools" and go to the personnel office. There, Plant Man- ager Meguiar faulted Barrow for "putting garbage on employees' windshields." Meguiar pointedly asked if the employee "knew this was soliciting" and "were you doing this?" Barrow acknowledged that he had engaged in this conduct. Barrow was then given a 3-day suspen- sion "pending notification of termination." Later, man- agement determined not to discharge Barrow because it was not "a malicious enough act" and because of "the sensitivity of the nature of the matter." Management initially claimed that Barrow was en- gaged in "soliciting." Later, management denied "accus- ing [Barrow] of soliciting" because admittedly Barrow "hadn't violated that rule." Elsewhere, management claimed that Barrow was violating a "Company policy." This "policy," at one point, was generally described as "with respect to allowing someone access to the Compa- ny's parking lot for purposes of putting notices on peo- ples cars." However, this "policy" was apparently never "published" or "printed anywhere" and, accordingly to the Employer, "we've never had it happen before." Else- where, management shifted over to its printed and pub- lished "policy" that deals with "damage to other peoples' property in the parking lot." Barrow, however, admit- literature from parked vehicles, but somehow became aware of the con- tents of the literature Further, I find that Meguiar in fact referred to the union literature as "garbage" when interrogating Barrow tedly did not damage "anybody's car." Elsewhere, man- agement attempted to justify its "policy" because the dis- tributed "would be considered debris in the parking lot." There is, however, nothing in this record to demonstrate a promulgation of a policy by the Employer reasonably aimed at preventing "litter." In fact, there is no such written promulgation. Moreover, there is nothing in this record to suggest that any of the Union's and Barrow's protected distributions resulted in "litter." Finally, man- agement shifted to the Kentucky Penal Code, Section .080 of Chapter 512. (See R. Exh. 1.) Chapter 512 gener- ally deals with "criminal damage to property." Section .080 provides: A person is guilty of unlawfully posting advertise- ments when, having no right to do so or any rea- sonable ground to believe he has such a right, he posts, paints or otherwise affixes to the property and another person or to public property any advertise- ment, poster, notice or other matter. [Emphasis added.] The Employer's argument that Barrow violated this stat- ute is without substance. Barrow did not "post," "paint," or "otherwise affix" his leaflet to the property. There was no attachment. And, in any event, the Employer never even cited this statute to Barrow when it threat- ened him with discharge and gave him a 3-day suspen- sion. In short, I reject as pretextual and incredible manage- ment's shifting, unsubstantiated, and belated reasons for its conduct in dealing with employee Barrow's protected distribution. I am persuaded instead that the Employer, in an attempt to discourage employee union activities, re- moved the lawfully distributed leaflets from employees' cars; faulted employee Barrow for distributing this "gar- bage"; coercively interrogated him about his conduct; threatened him with discharge; and then discriminatorily gave him a 3-day suspension, in violation of Section 8(a)(1) and (3) of the Act.8 CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce as alleged. 2. Charging Party Union is a labor organization as al- leged. 3. The Respondent Employer violated Section 8(a)(1) and (3) of the Act by removing union literature from the windshield of employee automobiles in the employee parking lot; by coercively interrogating employee Barrow about placing the union literature on the wind- shields; and by discriminatorily suspending employee Barrow for 3 days because of his protected union activi- ties. 4. The unfair labor practices found above affect com- merce as alleged. 8 Under the circumstances, it is unnecessary for me to reach the pre- emption arguments of counsel with respect to the cited provisions of the Kentucky Penal Code. As for the General Counsel's request for a reme- dial visitatorial clause here, this request is denied as inappropriate. 276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD REMEDY To remedy the unfair labor practices found above, Re- spondent Employer will be directed to cease and desist from engaging in such unlawful conduct or like and re- lated conduct and to post the attached notice. Respond- ent Employer will also be directed to make employee Barrow whole for any loss of earnings he may have suf- fered by reason of the Employer's unlawful suspension, to be computed as prescribed in E W. Woolworth Co., 90 NLRB 289 (1950), with interest as provided in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). In addition, Re- spondent Employer will be directed to preserve and make available to the Board, on request, all payroll records and reports and all other records necessary to determine backpay under the terms of this Decision and Order. Further, Respondent Employer will be directed to remove from its files any reference to the disciplinary action found unlawful herein in accordance with Sterling Sugars, 261 NLRB 472 (1982). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed 9 ORDER The Respondent, E. R. Carpenter Company, Inc., Rus- sellville, Kentucky, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discouraging membership in International Union, United Automobile, Aerospace & Agricultural Imple- ment Workers of America (UAW), or any other labor organization, by discriminatorily suspending its employ- ees. (b) Removing union literature from the windshields of employees automobiles in the employee parking lot and coercively interrogating employees about their protected union activities. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the purpose and policies of the National Labor Relations Act. (a) Make whole employee Barrow for all losses sus- tained as a result of its unlawful action, together with in- terest, as provided in this Decision and Order. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. 9 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses (c) Post at its facilities in Russellville, Kentucky, copies of the attached notice marked "Appendix."1° Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply, 10 If 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 Nation- al 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 The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT discourage membership in International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW), or any other labor organization, by discriminatorily suspending our employees. WE WILL NOT remove union literature from the wind- shields of employee automobiles in the employee parking lot. WE WILL NOT coercively interrogate our employees about their protected union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the National Labor Relations Act. WE WILL make whole employee Jeffrey Lee Barrow for all losses sustained as a result of our unlawful action in suspending him, together with interest, as provided in the Board's Decision and Order. WE WILL remove from our files any reference to the unlawful suspension of employee Barrow, and WE WILL notify him that this has been done and evidence of his unlawful suspension will not be used as a basis for future personnel action against him E. R. CARPENTER COMPANY, INC.