Libbey-Owens-Ford Co.

LIBBEY-OWENS-FORD CO. Libbey-Owens-Ford Co. and United Glass and Ce- ramic Workers of North America, AFL-CIO. Cases 16-CA-9942, 16-CA--10092, and 16- RC-8380 9 September 1987 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND CRACRAFT On 20 October 1982 Administrative Law Judge Bernard Ries issued the attached decision. The Re- spondent 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 and brief and has decided to affirm the judge's rulings, findings,' and conclusions2 and' to adopt the recommended Order. AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 3. "3. In June 1981, the Respondent violated Sec- tion 8(a)(1) of the Act by implementing an educa- tional assistance plan with an eligibility require- ment that employees not be represented by, or -members of, a labor organization; on 26 August 1981 the Respondent violated Section 8(a)(1) -by 1 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing the findings. As the record, exceptions, and brief adequately present the issues and the positions of the parties, the Respondent's request for oral argument is denied. In the absence of exceptions, we adopt pro forma the judge's recom- mendation with respect to Objection 5(d). Contrary to the dissent, we do not believe that the judge engaged in mere speculation in arriving at his conclusion that the Respondent violat- ed the Act in restricting Richard Greene's access to the coldroom, a tem- perature-controlled section of the assembly line where sheets of plastic are inserted between two sheets of glass Rather, the judge credited Greene's testimony that Supervisor H B Coats referred to the possibility of getting plastic dirty as the reason for keeping Greene out off 1the col- droom, generally discredited Coats' testimony regarding all the surround- ing circumstances, and drew logical conclusions from the credited facts 2 We reject the Respondent's argument that the doctrine of laches bars the Charging Party from raising in this case the legality of the nonunion eligibility limitation of the Respondent's educational assistance plan An employer benefit that is restricted to nonunion employees is normally a per se violation of Sec 8(a)(l) Niagara Wires, 240 NLRB 1326, 1327 (1979), Motor Wheel Corp, 180 NLRB 354, 355 (1969). The fact,that the Respondent has had this unlawful eligibility limitation in effect for sever- al years at some of its other plants does not prevent the Charging Party's filing of a charge in this case See Melville Confections, 142 NLRB 1334 (1963) 285 NLRB No. 88 673 promulgating an unlawful no-access rule for off- duty employees; and in mid-August 1981, the Re- spondent violated Section 8(a)(1) and (3) by in- structing Richard Greene not to take breaks in the coldroom." ORDER The National Labor-Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Libbey- Owens-Ford Co., Sherman, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Order. IT IS FURTHER ORDERED that the election con- ducted in Case 16-RC-8380 be set aside and that the Regional Director for Region 16 conduct a second election at a time he deems appropriate. [Direction of-Second Elecjion omitted from pub- lication.] CHAIRMAN DOTSON, concurring and dissenting. I agree with my colleagues' adoption of the judge's finding that the Respondent violated Sec- tion 8(a)(1) by announcing to several prounion em- ployees who had been handbilling on company property that no employee would be permitted to handbill on company property other than 30 min- utes before or after his or her shift. Unlike my col- leagues and the judge, however, I do not rely on Tri-County Medical Center, 222 NLRB 1089 (1976), in which the Board held that a no-access rule that denied off-duty employees entry to parking lots, gates, and other outside nonworking areas of an employer's property would be considered presump- tively unlawful. Rather, I find the announced rule unlawful because it was promulgated only to prounioil employees in response to their handbill- ing activities and thus was disparately applied against' union activities. Further, I do not agree with my colleagues' adoption of the judge's finding that the' Respondent violated Section 8(a)(1) by implementing an educa- tional assistance plan for "non-union salaried em- ployees." I disagree with Niagara Wires, 240 NLRB 1326 (1979), and Motor Wheel Corp., 180 NLRB 354 (1969), cited by my colleagues, and the judge, and would find that in cases such as this, where an employer employs both represented and unrepresented employees, language identifying a specific benefit as being for noncollective-bargain- ing unit employees is merely descriptive in nature and, without more, cannot be found to be inherent- ly restrictive of employees' Section 7 rights. Thus, because the Respondent did not indicate that it would refuse to make this benefit available to union-represented employees, and in the absence of 674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD evidence that the Respondent intended by imple- menting this plan to thwart unionization, I would find nothing unlawful in the implementation of the plan. See Firestone Synthetic Fibers Co. v NLRB, 374 F.2d 211 (4th Cir. 1967); Goodyear Tire & Rubber Co. v. NLRB, 413 F.2d 158 (6th Cir. 1969). Finally, I disagree with my colleagues' adoption of the judge's finding that the Respondent unlaw- fully prohibited employee Richard Greene from taking breaks in the coldroom.' Greene worked in the coldroom for 6 months and subsequently became a forklift driver, transporting glass throughout the plant. Greene was allowed a lunch- break and two 15-minute breaks daily. Although there were three air-conditioned breakrooms, Greene often took his breaks in A he coldroom. Around mid-August 1981 Supervisor H. B. Coats told Greene he could no longer take his breaks in the coldroom. The General Counsel alleged that the Respond- ent's restriction of Greene from the coldroom was motivated by Greene's union activities. The Gener- al Counsel introduced evidence that Greene played an active role in the Union's organizational cam- paign, that the Respondent allowed other employ- ees to take their breaks in the coldroom without re- striction, and that Coats' stated reason to Greene for denying him access to the coldroom was be- cause "they were having trouble with the dirty plastic and the area was being made dirty because of people going in and out." The Respondent alleged that it denied Greene access to the coldroom because it had been experi- encing difficulty in locating Greene when he was needed to operate a forklift. In this regard, the Re- spondent introduced evidence that machine opera- tor Joe Orr had complained to Coats that finding Greene was "getting to be a problem," that persons inside the coldroom cannot easily be discerned from outside the room, that the other employees al- lowed to take their breaks in the coldroom worked in the coldroom or in the area immediately adja- cent to it, that Coats had denied other employees access to the coldroom, and that the Respondent allowed Greene to speak to employees about the Union or any other subject in any area other than the coldroom without restriction. While crediting the Respondent's testimony that it had difficulty locating Greene, the judge found, nevertheless, that the evidence supported the com- plaint allegation. As support for this finding, the judge concluded that because Greene had worked in the coldroom and now worked "kall over the 1 The coldroom is a temperature-controlled, enclosed, restricted area of the plant where sheets of plastic are inserted between two sheets of glass. plant," he "would not seem any less `entitled' to take his breaks in there than those non-coldroom employees whom Coats had concededly allowed that privilege because they `have contact during the day' with the coldroom employees." The judge also concluded that Coats' restriction of Greene from the coldroom was not "logically related to the problem which Coats says he was addressing- Greene's disappearances at times of need." Accord- ing to the judge, "a supervisor aggravated by an employee's absences would, I think, focus on the fact of the absences and not on where the employ- ee went during the absences." Lastly, the judge noted that Coats made a written notation about Greene but had not done so about the other em- ployees allegedly restricted from the coldroom. The judge's reasoning consists of 'mere specula- tion. That the judge did not think the Respondent's restriction of Greene from the coldroom was a log- ical response to its difficulty in locating Greene when needed is not a proper basis for rejecting the Respondent's position. Rather, it merely serves to establish that 'the judge, substituting his own busi- ness judgment for that of the Respondent, would have acted differently from the Respondent on learning of the problem of Greene's disappear- ances. Similarly, the judge's conclusion that Greene was entitled to use the coldroom despite the Re- spondent's evidence that the coldroom was a re- stricted area, limited only to those employees working in that room and the immediately adjacent area, cannot withstand scrutiny. Further, the judge, acknowledging that Greene could freely engage in union activities in all parts of the plant except the coldroom, speculated that the Respondent never- theless wanted to keep Greene out of the coldroom because other members of the Union's in-plant or- ganizing committee legitimately took their breaks in that room. In sum, the judge discounted the Respondent's evidence, not based on the General Counsel's evi- dence, but rather on the judge's speculation. Under these circumstances, I find that the General Coun- sel failed to establish by a preponderance of the evidence that the Respondent violated Section 8(a)(l) and (3) of the Act by restricting Greene from the coldroom, and I would dismiss this com- plaint allegation. Milton D. Jones, Esq., for the General Counsel. Hershel' L. Barnes Jr., Esq., and Charles C. Frederiksen, Esq. (Haynes and Boone), of Dallas, Texas, for the Re- spondent Employer. Barry A. Aisenstock, Esq. (Rothbard, Harris & Oxfeld), of Newark, New Jersey, for the Charging Party Petition- er. LIBBEY-OWENS-FORD CO. 675 DECISION STATEMENT OF THE CASE BERNARD RIES, Administrative Law Judge. These consolidated matters were tried in Sherman, Texas, on June 22-23, 1982. The complaint portion of the case es- sentially concerns three separate claims that Respondent violated Section 8(a)(1) of the Act. By order dated May 12, 1982, the Board directed that four objections to the election held in Case 16-RC-8380 on September 4, 1981, be heard in conjunction with the unfair labor practice complaint allegations. Briefs have been received from all parties. Based on my review of the entire record, my assessment of the de- meanor of the witnesses, and my consideration of the briefs,' I make the following FINDINGS OF' FACT I. THE EDUCATIONAL ASSISTANCE PLAN Respondent manufactures automobile windshields at its Sherman, Texas plant, where it employs more than 200 production and maintenance workers. Although the Charging Party has made several efforts to organize the employees (in 1979, 1980, and 1981), it has failed to do so thus far. In April 1980, Respondent announced to its employees the availability of an educational tuition assistance pro- gram, and in June sent them copies of an explanatory brochure that lists as one of the eligibility requirements for the assistance that the applicant be a "full-time, per- manent non-union salaried employee." Based on this pub- lication, the complaint alleges that Respondent violated Section 8(a)(1) of the Act when it "implemented an edu- cational assistance plan with an eligibility 'requirement that the employee not be represented by a labor organi- zation." The record shows that Respondent, a national corpo- ration, created the tuition assistance program in 1967, and has exercised discretion in making the plan available at its various plants since then. According to Elmer Hermes, a headquarters personnel official, Respondent chose not to include the program in the package of bene- fits instituted when the Sherman plant became operation- al in 1979. However, Respondent elected to confer the benefit, among others, on Respondent's Sherman em- ployees after reviewing the results of an employee "atti- tude" survey conducted by a management consultant named Fred Lee in early 1981. Hermes testified that the tuition plan was but one of several new benefits' announced to employees at a meet- ing on April 30; some other changes were an increase in shift premiums, increased breaktimes, the discontinuance of "performance improvement" meetings, new break- rooms, etc. A notice posted the following day to explain the tuition program made no references to the require- ment of "non-union" status; it alluded simply to "All full-time permanent hourly employees." Similarly, a June 15 letter concerning the plan, sent to the employees by ' Certain errors in the transcript are noted and corrected the plant manager, described it merely as a plan for "sal- aried employees of Libbey-Owens-Ford."2 But the bro- chure enclosed with that letter, as earlier indicated, refers to the requisite status of "non-union salaried em- ployees." Hermes testified that the brochure was pre- pared in 1973. The Board has consistently held that "employee bene- fit plans which on their face are restricted to participa- tion or enjoyment by employees who are not members of a union . . . are inherently restrictive of employee rights guaranteed by Section 7 of the Act, and without further evidence of interference, restraint, or coercion are per se violations 8(a)(1) of the Act." Motor Wheel Corp., 180 NLRB 354, 355 (1969). To like effect, see Melville Con- fections, 142 NLRB 1334 (1963), enfd. 327 F.2d 689 (7th Cir. 1964); Niagara Wires, 240 NLRB 1326, 1327 (1979). ("The mere maintenance and continuance of a provision in a pension plan, making lack of union representation one of the qualifications for eligibility to participate therein, tends to interfere with, restrain, and coerce em- ployees who are otherwise eligible in the exercise of their self-organizational rights.") The plan in the instant case does not even lend itself to the argument that em- ployees might have reasonably understood it to be de- signed to distinguish between situations in which em- ployees were and were not represented by a union for purposes of collective bargaining, as the stated eligibility requirement in the brochure strongly suggests that it re- lates to the union membership status of each employee. Given the precedents, the conclusion is inevitable that the plan as described in the brochure violated Section 8(a)(1). Cases cited by Respondent, such as Firestone Syn- thetic Fibers Co. v. NLRB, 374 F.2d 211 (4th Cir. 1967), and Goodyear Tire & Rubber Co. v. NLRB, 413 F.2d 158 (6th Cir. 1969), are arguably distinguishable, but, if not, are contrary to the position taken by the Board, and it is that view of the law that I must apply. Iowa Beef Pack- ers, 144 NLRB 615, 616 (1963). Counsel for the General Counsel further contends that the evidence supports a conclusion that the plan was in- troduced at the Sherman plant specifically for the pur- pose of defeating a renewed union effort that began in the first few months of 1981. The evidence marshalled to demonstrate company knowledge of a full-fledged 1981 campaign as early as April of that year is not over- whelming. There is, moreover, some force in Respond- ent's argument that if its introduction of the plan at Sher- man was intended to combat a known union campaign, it might well have made some mention of the "non-union" eligibility requirement in April, when the employees were first informed about the benefit, instead of waiting until June 15. On the other hand, there is the suspicious circumstances that the Respondent, at hearing, gave a detailed and abundantly documented history of the plan, and then failed to offer in evidence the written report of Management -Consultant Lee that purportedly recom- mended, inter alia, that the plan be provided for the Sherman employees.3 2 All Respondent's production and maintenance workers are salaried 3 At trial, I made inquiry of Personnel Manager Hermes about the ex- istence and availability of the report , and was told that it was extant. It never was, however, entered in evidence 676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On balance, I am not sufficiently convinced that the General Counsel has made a showing of actual intent by the necessary "preponderance of the testimony taken." Section 10(c). II. THE 30-MINUTE RULE The complaint alleges that on August 26, 1981, Re- spondent "imposed and maintained an invalid no-solicita- tion, no-distribution rule which prohibited employees during their non-working time to engage in Union solici- tation except 30 minutes before and after scheduled work shifts," and further, on that date, "orally informed each of the Union's in-plant organizers of the invalid no-solici- tation rule," thereby violating Section 8(a)(1). The Union made its bargaining demand on July 14 and filed a ' petition for election on July 16. In the late evening of August 25, two union representatives and sev- eral members of the employee organizing committee handbilled at the entrance to the plant, presumably pass- ing out literature to the employees entering for the 11:30 p.m.-7:30 a.m. shift and leaving the 3 p.m.-11:30 p.m. shift. The handbilling was being done on the Respond- ent's private driveway, which leads from the public high- way a few hundred feet to the guard station, beyond which lies the parking lot and the plant proper. On the following day, according to five of the hand- billers, they were individually called into the office of Personnel Manager William Gibson. Although there was, not suprisingly, some variation in the accounts of the five concerning what Gibson said to them, there was also substantial agreement. The consensus was that Gibson told each one that employees would not be allowed to handbill on company property more than 30 minutes prior to, or 30 minutes after, their shift.4 Both the General Counsel and Respondent, on brief, cite as controlling authority the decision in Tri-County Medical Center, 222 NLRB 1089 (1976). The Board there held that a rule prohibiting off-duty employees from access to their places of employment would be consid- ered valid only if (ibid.) it,(1) access solely with respect to the interior of the plant and other working areas; (2) is clearly disseminated to all employees; and (3) applies to off- duty employees seeking access to the plant for any purpose and not just to those employees engaging in union activity. Finally, except where justified by business reasons, a rule which denies off-duty em- ployees entry to parking lots, gates, and other out- side nonworking areas will be found invalid. The ad hoc "rule" announced by Gibson to certain employees on August 26 satisfies none of the several cn- a A literal reading of some of the employee testimony (not clarified by Gibson, who failed to testify) could lead to the conclusion that Gibson conveyed to the employees that the 30-minute restriction did not apply only to their presence on company property, but rather was a blanket prohibition limiting handbdlmg activity to 30 minutes before and after a shift regardless of the location of the activity However, the overall sense of the testimony indicates that the employees understood Gibson to be referring only to a limitation on their handbdlmg rights while on compa- ny property, the briefs of the General Counsel and the Charging Party evince a similar understanding of the testimony teria listed by the Board as essential to the validity of a no-access rule.5 Although the present rule was not an absolute prohibition against off-duty employee access, the Board has never held that a 30-minute privilege is sufficient. In A. W. Schlesinger Geriatric Center, 263 NLRB 1337 fn. 3 (1982), Chairman Van de Water con- strued Tri-Country to permit "unlimited access" for off- duty personnel. While he proposed a 30-minute allow- ance, the other panel members were silent on the subject. Accordingly, I conclude that Respondent violated Section 8(a)(1) by promulgating and announcing an un- lawful limited access rule on August 26, 1981. III. THE RICHARD GREENE INCIDENT Finally, the complaint alleges that Respondent violated Section 8(a)(3) and (1) about August 18, 1981, when it "refused to allow employee Richard Greene to take breaks in the Cold Room." The "cold room" (or the "cool room" or "plastic" room) is an enclosed section of the plant through which the assembly line passes; there, under climate-controlled conditions, a sheet of plastic is inserted between two sheets of glass. Six employees work on the assembly line itself within the room, and another seven perform other operations in the room. Richard Greene, hired in 1979, worked in the cold room for about 6 months at one point, and then became a forklift driver whose duties included supplying "raw glass" to the assembly line. Greene was active in the Union's 1980 campaign and served as one of the union observers in the 1980 election. Again in 1981, he joined 5 Singularly unpersuasive are the arguments propounded by Respond- ent on brief in contending that "the principles enunciated in Tn-County have been met by Respondent " Thus, having just cited the Tri-County language regarding the necessity that the rule "limits access solely with respect to the interior of the plant and other working areas," Respondent asserts compliance with this criterion because "the rule limits access into the plant" Evidently based on the fact that two of the General Counsel's wit- nesses testified to their understanding that employees were not allowed at all on company property when they were not on duty, Respondent pro- claims that the rule "has been clearly disseminated to all employees " Perhaps relying on the testimony of the security guard captain that off- duty employees are not allowed on the property except in cases of emer- gency, and perhaps on a provision contained in the security officers' printed instructions ("Should employees attempt to enter the facility either prior to a half hour before shift time or beyond a half hour after normal shift time they must be cleared with their departmental foreman and a report submitted on all incidents to the personnel manager "), Re- spondent argues that, in keeping with Tri-County, the rule "has been ap- plied to all off-duty employees seeking access to the plant for any pur- pose " But "the rule" announced by Gibson was a new rule, made appli- cable only to handbdhng, and was in fact more restrictive than the proce- dure contained in the security officers' instructions which, as indicated, at least make possible the entry of employees onto company premises beyond the polar 30-minute limits announced by Gibson Finally , the "business justification" claim made by Respondent-"to protect the technology from getting out as well as the existence of equip- ment in the plant that is not in another plant"-is rationally unrelated to the issue of the times at which an employee is present at the plant, and is most especially unrelated to employees standing in a driveway on the secure side of the guard station Moreover, to argue that "[s]ecurity then dictates that employees not be permitted on Company property for any reason once they leave the premises until it is time to return for their next shift" is to ignore the fact that the 30-minute margin would itself permit such coming and going , as long as it is done within the allotted half hour LIBBEY-OWENS-FORD CO. the in-plant organizing committee- and became active "probably around March 1, I imagine." Greene was permitted a lunchbreak and two 15-minute rest periods per day. Although there were three air-con- ditioned breakrooms available to him for these purposes, he testified that during the summer of 1981, he chose to take his breaks in the cold room "[p]robably three times a week, maybe once a day." He also occasionally used the restroom located in the cold room. Around mid-August, according to Greene, Supervisor H. B. Coats "told me that I would no longer be able to go into the cold room and take breaks because they were having trouble with the dirty plastic and the area was being made dirty because of people going in and out." Thereafter, although Greene no longer took his breaks in the cold room, the evidence shows that employees Collum, Broome, Carlisle, and Phelps, none of whom was assigned to the cold room, and three of whom had expressed antiunion sentiments to Greene, continued to take breaks in the cold room.6 Coats testified that he forbade Greene's presence in the cold room after he was told by a crane operator that he had been unable to find Greene for "quite a while" in order to be resupplied with glass, a complaint that Coats had heard "several times before." When Coats went looking for Greene and found him in the cold room, he assertedly told Greene that he "had had complaints that he wasn't on the job and that the Cool Room was not in his area, that he shouldn't be taking a break in there or he shouldn't be in the Cool Room and that he needed to pay more attention to his job." Coats denied having mentioned to Greene any prob- lems about getting the plastic soiled, saying, "That didn't have anything to do with it." He also testified that he knew about Collum, Broome, Carlisle, and Phelps taking their breaks in the cold room, but tolerated their pres- ence because they all worked in the area immediately ad- jacent to the cold room (a fact about which there is no dispute). Coats further said, moreover, that in the past he had distinguished between such residents and nonresi- dents by telling "several" of the latter to stay out of the room.? In addition, Coats denied that his action had any- thing to do with union affiliation, saying that at the time he was not even aware of Greene's sympathies in that regard. In my view, the evidence supports the complaint alle- gation. For one thing, I considered Greene an impressive witness, more impressive than Coats, and I find it diffi- cult to believe that Greene invented his testimony that Coats referred to the possibility of getting the plastic dirty as the reason for staying out of the cold room. I credit Coats' testimony that a "crane operator" told him that Greene was becoming hard to locate at times; em- ployee Joe Orr credibly testified for Respondent that "[s]omewhere in the summer" of 1981, he told Coats that 6 Contrary to the assertion by the General Counsel on brief, there is no testimony that Phelps was opposed to the Union There is also no evi- dence that Coats was aware of the antiunion sentiments of Collum, Broome, and Carlisle 7 On cross-examination, Coats said that he "believeld]" that he once cautioned an employee named Danny Monroe on this point , and that he also told "one other person," who was shortly thereafter discharged. 677 finding Greene was "getting to be a problem." Greene conceded that Coats had conveyed such complaints to him, but testified that this had happened in another con- versation, having nothing to do with the cold room. My conclusion that Coats falsely described at the hearing the reason given to Greene for excluding him from the cold room naturally tends to cast suspicion on Coats' story as a whole. In the second place, it is hard to make any sense of Coats' explanation for banning Greene from the cold room. Insofar as he stated that the cold room was not in Greene's "area," the record indicates that Greene had no particular "area" to which he was assigned; he was "all over the plant" during the day, and was often close to the cold room at the time he chose to take his breaks. Being around the cold room during the day, and having actually worked in the room from June to December 1980, Greene would not seem any less "entitled" to take his breaks in there than those non-cold-room employees whom Coats had concededly allowed that privilege be- cause they "have contact during the day" with the cold room employees. There was no evidence of a sudden influx of aliens into the cold room that might have ex- plained the crackdown on Greene. Thirdly, Greene's presence in the cold room was not logically related to the problem, which Coats says he was addressing-Greene's disappearance at times of need. Green was entitled to a meal period and two breaks each day; if he was abusing his privileges, he might well do so anywhere in the plant. To tell Greene that "he shouldn't be taking a break in there or he shouldn't be in the Cool Room and that he needed to pay more attention to his job" rings false to this ear; a supervisor aggravated by an employee's absences would, I think, focus on the fact of the absences and not on where the employee went during the absences. Fourth, there is the provocative circumstance that, as he testified, Coats made a written note about Greene, al- though he made no such notations about the other em- ployees he purportedly ordered out of the cold room.8 Coats gave two separate reasons for treating Greene dif- ferently from the others. One was, "Those others were a long time ago. It has been scattered over a period of time." Moments later, when he was asked again to ex- plain the differences, Coats said, "Because that was the first time I'd ever had a complaint on them, and I had a complaint on Dickie Greene not doing his job several times." The foregoing testimony is pertinent, I think, to Coats' testimony that he did not know at the time he spoke to Greene whether Greene was "actively for or against the Union." Coats subsequently testified that at a supervisory meeting "during the summer, I believe," there was dis- cussion of the membership of the in-plant organizing committee, apparently as a result of a communication from the Union to the Respondent. Coats recalled six of the employees named, including Greene. The record shows that the election petition was filed on July 16 and the election held on September 4. As the evidence does 8 The note about Greene was not offered in evidence 678 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD not specify the date on which the Union notified the Re- spondent of the composition of the employee committee, in all likelihood that communication occurred sometime prior to mid-August when, according to Greene's undis- puted testimony, the cold room incident occurred.9 If that speculation is correct, it would follow that, in fact, Coats did know of Greene's union partisanship at the time he confronted him about the cold room. At first blush, perhaps the most difficult question pre- sented here for the General Counsel relates to the identi- ty of the antiunion interest that Coats might have thought he was serving by banning Greene from the cold room. If, after all, Greene was relatively free to speak to employees anywhere in the plant, including the three breakrooms, what would be the advantage in deny- ing him access to a room in which 13 employees worked? The answer may lie in the fact that among those 13 employees were two other members of the in- plant committee. Linda Gann, testifying for Respondent, said that she saw Greene in the cold room often, speak- ing to other employees, but the only two she could recall were Sue Eastridge and Robert Hofstetter. The record shows that of the six members of the employee commit- tee whom Coats could recall as being identified at the su- pervisory meeting, Eastridge and Hofstetter were two of them. For all the reasons given above, I am persuaded that the evidence preponderates in favor of the General Counsel on this issue. IV. THE OBJECTIONS TO THE ELECTION By its May 12, 1982 order, the Board has provided for a hearing of the issues raised by the Union's Objections 5(d), 6, 7, and 8 to the conduct of the September 4, 1981 election. Objection' 5(d) This objection refers to the August 25 handbilling and the fact that the handbillers "were called individually to Gibson's Office and talked to about handbilling in front of the plant." In his Report On Objections, the Regional Director had recommended that this objection be sus- tained on the authority of cases such as Starkville, Inc., 219 NLRB 595 (1975), in which the Board held, to quote the Regional Director, that "the summoning of pro-union employees to the locus of managerial authority to lecture them individually regarding plant rules and violations thereof is violative of Section 8(a)(1) of the Act, as it could be expected to induce fear." Taking this line'of au- thority together with Playskool Mfg. Co., 140 NLRB 1417, 1419 (1963), to the effect that conduct which is violative of Section 8(a)(1) is, a fortiori, conduct that interferes with the exercise of a free election choice, the Regional Director recommended that the objection be sustained (and further noted, in his concluding com- ments, that this incident in itself was a sufficient basis for setting the election aside). 9 I note that in the Regional Director's Report on Objections, dated November 30, 1981, he states, at 13, that the Union had furnished the name of an in-plant organizer to the Respondent prior to an occurrence of August 12 The Board's order does not explain why it decided that the Respondent's exceptions to the Regional Direc- tor's Report on Objections "raise substantial and material issues of law and fact warranting a hearing" with respect to this objection It may be due to the fact that, in Stark- ville, the Board had specifically distinguished between two situations. In the first, in which a plant manager had conducted "meetings in the plant office, the site of mana- gerial authority," and the manager's "demeanor, and re- marks to employees accompanying his reading of the statement were threatening and calculated to coerce em- ployees," the Board held that an 8(a)(1) finding was war- ranted; in the second situation, in which another manager had called employees to a break area to "read them a lecture about plant rules and penalties for violation," the Board found no violation because nothing said by the manager was coercive, and his conduct of the meeting was not "such as to create fear in the minds of his listen- ers." 219 NLRB at 596. Applying such a distinction, I would conclude that the evidence does not demonstrate that the circumstances alone were enough here to constitute objectionable con- duct. Gibson's talk to the employees was direct, to the point, and, from all indications, not ultimately threaten- ing in manner . i ° As Respondent notes on brief, the Board has recently held that the location of an interview in a manager's office is not, of itself, sufficient to estab- lish that the "conversation was coercive." WMUR-TV, 253 NLRB 697, 703 (1980); see also Fairbanks Medical Clinic, 213 NLRB 741 (1974). 1 recommend overruling Objection 5(d). Objection 6 As paraphrased by the Regional Director, this objec- tion "alleges that off-duty employees who were support- ing [the Union] were not permitted on Company proper- ty to handbill while anti-union employees were permitted to freely do so." After reviewing the evidence, the Regional Director found no indication of disparate enforcement of an access rule. He went on, however, to consider evidence submit- ted by Respondent the August 26 interviews, and con- cluded that the criteria established in Tri-County, supra, i i for assessment of the validity of a no-access rule had not been met. He recommended, accordingly, that the objection be sustained (and also regarded it as a suffi- cient basis, in and of itself, for voiding the election). The evidence presented at the hearing establishes beyond question that the rule was impermissible under the standards laid down in Tri-County. Objection 6, ac- cordingly, has support in the record. Objection 7 Objection 7 alleges that "on August 31, Supervisor H. B. Coats told employees he really didn't see what the 30 When Sue Eastridge was called to the office, she asked for a wit- ness, Gibson denied the request. However, when he asked her at the end of the interview whether he had "scared" her, and she answered affirma- tively, Gibson "said he did not mean to " 11 The Regional Director cited Continental Bus System, 229 NLRB 1262 (1977), a later application of Trt-County LIBBEY-OWENS-FORD CO. people for the Union wanted, stating that most Union contracts meant rotating shifts and there was a good chance of rotating shifts at Sherman if the Union got in." The Regional Director had recommended that, if his other conclusions were not acceptable, a hearing be held on this allegation. The record shows that shortly before the election, Su- pervisor Coats and employee Robert Hofstetter were dis- cussing the possibility of unionization, and Coats offered to show Hofstetter a copy of the union contract applica- ble to the Toledo plant. When Coats returned with the contract and began discussing it with Hofstetter, other employees gathered around. There is some contradiction between the accounts of Hofstetter and Coats; I rely on the version given by employee Barbara Pierce, a con- vincing witness. Pierce said that she asked Coats if the Sherman employees might have to rotate shifts as the northern employees did, and he said "it is a possibility that we might have to." Hofstetter then remarked, "Then again, we might not have to rotate shifts." Coats said that "that was true too." Hofstetter commented that if the Union came in the matter would be bargained, and Coats agreed. On the credited testimony, it is clear that nothing un- toward occurred during this conversation. Consequently, I recommend that Objection 7 be overruled. Objection 8 The final objection ordered to hearing by the Board relates to the barring of Richard Greene from the cold room. On the basis of my prior findings, I conclude that Re- spondent engaged in the misconduct alleged. Concluding findings concerning the objections The Union lost the election by an overwhelming tally of 137 to 67 (with 3 challenged ballots). The question now presented is whether the election should be run again because of the misconduct found here. The test is whether it may reasonably be concluded that the conduct found wanting had a tendency to inter- fere with the free and fully informed expression of voter sentiment in the election. In this regard, it may be said that rules that improperly restrict employee communica- tion obviously differ in character from more direct coer- cive conduct such as threats or promises of benefit. The Board has, nonetheless, frequently set aside elec- tions on the basis of the maintenance of unlawful'no-so- licitation and no-distribution rules. E.g., St. Joseph's Hos- pital, 262 NLRB 1385 (1982);k2 Rooney's at the Mart, 247 NLRB 1004, 1014 (1980); General Signal Corp., 234 NLRB 914 fn. 1 (1978). In the present case, while em- ployees who worked on one shift were authorized by Gibson to distribute to their felllow employees both 30 minutes prior to and after their shift, they were barred from returning to plant property in order to solicit sup- port from employees on the other two shifts. Although the rule was imposed only 7 working days prior to the election, it can be argued that such a period might have 12 In St. Joseph's, the union lost the election by a vote of 218 to 141 679 been the most meaningful time in which to distribute lit- erature and otherwise proselytiize. Although I have something less than an abiding con- viction that the improprieties found here effectively al- tered the election results, they may have done so. The precedents earlier cited seem to create a per se rule, or at least a presumption, that unlawful proscription of solici- tation or distribution is a sound basis for setting aside an election.13 I shall therefore recommend that the election be set aside and a new election conducted. CONCLUSIONS OF LAW 1. Respondent Libbey-Owens-Ford Co. is an employer engaged in commerce within the meaning of Section 2(2), (6), and, (7) of the Act. 2. United Glass and Ceramic Workers of North Amer- ica, AFL-CIO is a labor organization within the mean- ing of Section 2(5) of the Act. 3. In June 1981, Respondent violated Section 8(a)(1) of the Act by implementing an educational assistance plan with an eligibility requirement that employees not be represented by, or members of, a labor organization; in mid-August 1981, Respondent violated Section 8(a)(1) by instructing Richard Greene not to take breaks in the cold room; and on August 26, 1981, Respondent violated Sec- tion 8(a)(1) by promulgating an unlawful no-access rule for off-duty employees. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. The election conducted on September 4, 1981, should be set aside. REMEDY Having found that Respondent has violated the Act in certain respects, I shall recommend that it be required to cease and desist therefrom, and from like or related con- duct, and to post appropriate notices. I shall further rec- ommend that Respondent be required to notify Richard Greene, if he is still employed, that he may take breaks in the cold room, and to amend the terms of the educa- tional assistance plan to conform with the law. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed14 ORDER The Respondent, Libbey-Owens-Ford Co., Sherman, Texas, its officers, agents, successors, and assigns, shall 1. Cease and desist from 13 I have also considered, of course, the casting out of Greene from the cold room I cannot conceive that his exclusion from the room was materially related to the poor showing the Union made in the election And although I have found that both the August 26 rule promulgated by Gibson and the banishment of Greene from the cold room are violative of Section 8(a)(1), that legal conclusion is not as significant these days as it once was See, e g., Swingline Co, 256 NLRB 704, 717 (1981) 14 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 680 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (a) Offering benefits to employees that are conditioned by a requirement that the employees not be represented by, or members of, a labor organization. (b) Promulgating and maintaining rules that unlawfully restrict access to company property by off-duty employ- ees. (c) Prohibiting employees for unlawful reasons from taking breaks in specified areas of the plant. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its plant in Sherman, Texas, copies of the attached notice marked "Appendix." 15 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify Richard Greene in writing, if he is still em- ployed, that he may take his breaks in the cold room. (c) Amend the "Educational Assistance Plan For Sala- ried Employees" so as to delete any requirement that ap- plicants for assistance be "non-union." (d) Notify the Regional Director for Region 16, in writing within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 15 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." IT IS FURTHER ORDERED that the election conducted in Case 16-RC-8380 on September 4, 1981, be set aside and that the Regional Director for Region 16 conduct a second election at a time he deems appropriate. APPENDIX NOTICE To EMPLOYEES POST 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 offer benefits that appear to be available only to employees who are not represented by, or mem- bers of, a labor organization. WE WILL NOT maintain rules that unlawfully restrict off-duty employees from coming onto company proper- ty. WE WILL NOT for unlawful reasons prohibit employees from taking breaks in specified areas of the plant. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL notify Richard Greene, in writing, of his right to take breaks in the cold room except when he may be forbidden to do so for legitimate reasons (This applies only if Richard Greene is still in our employ.) WE WILL amend the terms of the "Educational Assist- ance Plan For Salaried Employees" so as to delete any requirements that applicants for assistance be "non- union." LIBBEY-OWENS-FORD CO.