Arcata Graphics

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 541 (N.L.R.B. 1991)

541
304 NLRB No. 68
ARCATA GRAPHICS
1 On November 14, 1990, the complaint was reserved on the Respondent
with an attachment which had been inadvertently omitted during the initial
service.
2 191 NLRB 669, 673 (1971), enfd. 456 F.2d 1234 (8th Cir. 1972).
3 Bil-Mar Foods of Ohio, 255 NLRB 1254 (1981) (‘‘harassed, coerced, pres-
sured or threatened’’); Colony Printing & Labeling, 249 NLRB 223, 225
(1980), enfd. 651 F.2d 502 (7th Cir. 1981) (cause ‘‘trouble’’ or ‘‘pressure to
join’’).
4 Liberty House Nursing Homes, 245 NLRB 1194, 1197 (1979) (while re-
questing employees to report ‘‘harassment’’ violated Sec. 8(a)(1), asking them
to report if ‘‘threatened’’ is sufficiently specific as to constitute a lawful exer-
cise of management’s right to enforce plant discipline).
Arcata Graphics/Fairfield, Inc. and International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Industrial
and Allied Workers, Local 32, AFL–CIO. Case
5–CA–21407
August 27, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
Upon a charge filed by the Union, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Industrial and Allied Work-
ers, Local 32, AFL–CIO, August 14, 1990, the General
Counsel of the National Labor Relations Board issued
a complaint October 16, 1990, against Arcata
Graphics/Fairfield, Inc., the Respondent, alleging that
it has violated Section 8(a)(1) of the National Labor
Relations Act. On January 15, 1991, the Respondent
filed an amended answer1 to the complaint, admitting
all the factual allegations therein and denying the
conclusionary allegations that the Respondent’s con-
duct restrained and coerced employees, violating Sec-
tion 8(a)(1) of the Act.
On May 3, 1991, the General Counsel filed a Mo-
tion for Summary Judgment. On May 9, 1991, the
Board issued an order transferring the proceeding to
the Board and a Notice to Show Cause why the motion
should not be granted. On May 23, 1991, the Respond-
ent filed a statement in opposition to the General
Counsel’s Motion for Summary Judgment and a Cross-
Motion for Summary Judgment. On May 24, 1991, the
Board issued a Notice to Show Cause why the Re-
spondent’s Cross-Motion for Summary Judgment
should not be granted. On June 5, 1991, the General
Counsel filed a response to the Board’s Notice to
Show Cause. On June 7, 1991, the Charging Party
filed a statement in support of the General Counsel’s
Motion for Summary Judgment and in opposition to
the Respondent’s Cross-Motion for Summary Judg-
ment.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motions for Summary Judgment
The undisputed facts establish that about March 12,
1990, the Respondent distributed a letter to its employ-
ees at its Fairfield, Pennsylvania facility, which stated
in pertinent part:
The second point I would like to address di-
rectly concerns the reports I have been receiving
about the manner in which employees are being
approached to sign a union card. If you are threat-
ened or subjected to abusive treatment to sign a
union authorization card by anyone, please notify
your Supervisor or the Personnel Department.
Steps will be taken to see that such actions are
immediately stopped.
The General Counsel alleges that the above-quoted
language violates Section 8(a)(1) of the Act, as it con-
stitutes ‘‘a not too subtle attempt by Respondent to
have its employees inform management of the identity
of Union proponents’’ and tends to coerce and restrain
employees in the exercise of protected union activity.
The General Counsel argues that the term ‘‘abusive
treatment’’ is as subject to subjective interpretation as
the term ‘‘constant badgering’’ found to be violative of
the Act in Bank of St. Louis.2 The General Counsel
contends that its Motion for Summary Judgment
should be granted, as there are no material facts at
issue that require a hearing before an administrative
law judge.
The Respondent opposes the General Counsel’s Mo-
tion for Summary Judgment. The Respondent admits
each of the material factual allegations of the com-
plaint, but denies that the above-quoted language was
intended to, or would have the effect of, interfering
with, restraining, or coercing employees in the exercise
of their Section 7 rights. The Respondent contends that
this case is distinguishable from those cases in which
the Board has found unlawful broadly worded instruc-
tions to employees to report certain union card solici-
tors.3 The Respondent argues that the definition of the
word ‘‘abusive,’’ and its every day usage, is analogous
to the word ‘‘threatened,’’ which has been found to be
sufficiently specific to require the potential infringe-
ment of the employees’ Section 7 rights to yield to the
Respondent’s right to assure that its work force is free
from coercion at the hands of employee organizers.4
Thus, the Respondent concludes that union card solici-
tors who are subjecting fellow employees to abusive
treatment are not engaging in protected activities and
the Respondent’s request for employees to report such
conduct does not violate the Act.
We agree with the General Counsel that the Re-
spondent’s distribution of the letter violated Section
8(a)(1) of the Act. In this letter, the Respondent has
essentially told its employees that if they felt ‘‘sub-
jected to abusive treatment’’ by supporters of the
542 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 W. F. Hall Printing Co., 250 NLRB 803, 804 (1980). See also Hawkins-
Hawkins Co., 289 NLRB 1423 (1988).
6 Contrary to our dissenting colleague, we find that the seriousness of the
conduct which the Respondent requests the employees to report is not deter-
minative; rather, we view the issue as whether or not the statement is ‘‘so
vague as to invite employees generally to inform on fellow workers who were
engaged in union activity.’’ Liberty House Nursing Homes, supra at 1197.
7 Inasmuch as the Respondent’s letter was apparently distributed to all em-
ployees, there is no merit in the Respondent’s contention that its conduct was
de minimis. We find that it will effectuate the policies of the Act to issue our
usual remedial order for the violation committed.
8 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 National Labor Rela-
Union they should inform management who would
then ‘‘see that such actions are immediately stopped.’’
The Board has found similar statements unlawful be-
cause they have the ‘‘potential dual effect of encourag-
ing employees to report to Respondent the identity of
union card solicitors who in any way approach em-
ployees in a manner subjectively offensive to the solic-
ited employees, and of correspondingly discouraging
card solicitors in their protected organizational activi-
ties.’’5 Contrary to the Respondent’s contention, the
request was not limited to reports on matters that could
properly be within the Respondent’s legitimate con-
cerns, such as ‘‘threats.’’ Our dissenting colleague con-
cedes that reasonable minds may differ over the exact
definition of ‘‘abusive treatment.’’ For this reason, we
believe that the Respondent’s request to report ‘‘abu-
sive treatment’’ could be interpreted by some employ-
ees to be broad enough to cover lawful attempts by
union supporters to persuade employees to sign union
cards during their nonworking time and off the Re-
spondent’s premises.6 Therefore, we find that such a
statement is ‘‘tantamount to a request that the employ-
ees report persistent attempts to persuade and would
therefore tend to restrain the union proponent from at-
tempting to persuade any employee through fear that
his conduct would be reported to management.’’ Sun-
beam Corp., 287 NLRB 996, 997 (1988).
Accordingly, we conclude that the Respondent has
violated Section 8(a)(1) of the Act, grant the General
Counsel’s Motion for Summary Judgment, and deny
the Respondent’s Cross-Motion for Summary Judg-
ment.7
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Delaware corporation with an of-
fice and place of business in Fairfield, Pennsylvania,
has been engaged in the business of printing and bind-
ing books and other literature. During the preceding 12
months, a representative period, the Respondent, in the
course and conduct of its business operations, pur-
chased and received at its Fairfield, Pennsylvania facil-
ity products, goods, and materials valued in excess of
$50,000 directly from points outside the State of Penn-
sylvania. We find that the Respondent is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5)
of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
About March 12, 1990, the Respondent distributed
to its employees a letter requesting them to report to
management any employees who subject them to
‘‘abusive treatment’’ while soliciting them to sign
union authorization cards. We find, as discussed above,
that the Respondent by such conduct has interfered
with, restrained, and coerced, and is interfering with,
restraining, and coercing, employees in the exercise of
the rights guaranteed in Section 7 of the Act, and the
Respondent has been engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
CONCLUSION OF LAW
By requesting its employees to inform management
about their fellow employees who subjected them to
‘‘abusive treatment’’ while soliciting them to sign
union authorization cards, the Respondent has inter-
fered with, restrained, and coerced its employees, and
has been engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, Arcata Graphics/Fairfield, Inc., Fairfield,
Pennsylvania, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Requesting its employees to inform management
if they have been ‘‘subjected to abusive treatment’’ by
their fellow employees who solicited them to sign
union authorization cards, or otherwise inviting and en-
couraging employees to identify union supporters or
discouraging employee involvement in protected activ-
ity.
(b) In any like or related manner interfering with,
restraining, 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 policies of the Act.
(a) Post at its facility in Fairfield, Pennsylvania, the
attached notice marked ‘‘Appendix.’’8 Copies of the
543ARCATA GRAPHICS
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
1 191 NLRB 669 (1971), enfd. 456 F.2d 1234 (8th Cir. 1972). I find it clear
that subjecting employees to ‘‘abusive treatment’’ is far more serious than sub-
jecting employees to ‘‘constant badgering’’ as in Bank of St. Louis. It is also
much more serious than causing employees ‘‘trouble,’’ ‘‘putting them under
pressure to join a union’’ (Colony Printing & Labeling, 249 NLRB 223
(1980), enfd. 651 F.2d 502 (7th Cir. 1981), or ‘‘harrassing’’ or ‘‘pressuring’’
them (Bil-Mar Foods of Ohio, 255 NLRB 1254 (1981).
notice, onforms provided by the Regional Director for
Region 5, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent 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 Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER OVIATT, dissenting.
Contrary to my colleagues, I would find that the Re-
spondent did not violate Section 8(a)(1) of the Act
when it distributed a letter to its employees advising
them to report to management if they were ‘‘threatened
or subjected to abusive treatment to sign a union au-
thorization card.’’ The majority, in finding the viola-
tion, relies, inter alia, on Bank of St. Louis.1 In Bank
of St. Louis, the bank president issued a letter to all
the bank’s employees advising them to report to man-
agement if they were ‘‘threatened in any way or sub-
jected to constant badgering’’ to sign an authorization
card. In finding a violation, the judge there reasoned
that requesting employees to report ‘‘constant badger-
ing was tantamount to a request that they report ‘‘per-
sistent attempts to persuade,’’ in other words, to report
on the protected activities of coworkers. (191 NLRB at
673.)
I agree that employees should not be requested to
report on the protected activities of coworkers. In the
present case, however, employees who subject other
employees to ‘‘abusive treatment’’ are not engaging in
protected activities. The Respondent’s letter was not
unprovoked. On its face it was a response to employee
complaints. And, on this Motion for Summary Judg-
ment, we must take that at face value. While it is true
reasonable minds may differ over the exact definition
of ‘‘abusive treatment,’’ I would find that it is a term
that ‘‘does approach a level of specificity which,
though not without pitfall, must be assess with a view
to the pragmatics of maintaining order and plant dis-
cipline in the course of a union campaign.’’ Liberty
House Nursing Homes, 245 NLRB 1194, 1197 (1979).
I would find any potential infringement of Section 7
of the Act should yield to the Respondent’s right in the
face of provocation to assure its employees that they
are free in their workplace from abusive treatment
from employee organizers. As a result, I would find
that the Respondent’s letter did not violate Section
8(a)(1).
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 request our employees to inform us
if they have been subjected to abusive treatment by
their fellow employees who are soliciting them to sign
union authorization cards or otherwise invite or en-
courage employees to identify union supporters or dis-
courage employee involvement in protected activity.
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.
ARCATA GRAPHICS/FAIRFIELD, INC.