Awrey Bakeries

National Labor Relations Board - Board Decisions

Aug 24, 2001

335 N.L.R.B. 138 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 138
Awrey Bakeries, Incorporated and Council 30, United
Distributive Workers Union, Retail, Wholesale
and Department Store Union, AFL–CIO and
Douglas Wiseman. Cases 7–CA–43042 (2) and 7–
CB–12585 (2)
August 24, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN AND WALSH
On May 11, 2001, Administrative Law Judge Jane
Vandeventer issued the attached decision. The Respon-
dent Employer filed exceptions and a supporting brief,
the General Counsel filed an answering brief, and the
Respondent Employer filed a reply brief. The General
Counsel also filed cross-exceptions with a supporting
brief, and the Respondent Employer filed an answering
brief.
The National Labor Relations Board has delegated 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 briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent Em-
ployer, Awrey Bakeries, Incorporated, Livonia, Michi-
gan, its officers, agents, successors, and assigns; and the
Respondent Union, Council 30, United Distributive
Workers Union, Retail, Wholesale and Department Store
Union, AFL–CIO, Warren, Michigan, its officers, agents,
and representatives, shall take the action set forth in the
Order as modified.
1. Insert the following as paragraph 2(a) and reletter
the subsequent paragraphs.
“(a) Rescind and cease giving effect to the following
provision in the collective-bargaining agreement:
The Union agrees that its members shall not carry on
any Union activities on Company time during working
hours. . . .”
2. Substitute the following for the new paragraph 2(b).
“(b) Within 14 days after service by the Region, post at
Respondent Employer’s Livonia, Michigan location and
Respondent Union’s Warren, Michigan location, copies
of the attached notice marked “Appendix.”2 Copies of
the notice, on forms provided by the Regional Director
for Region 7, after being signed by the Respondents’
authorized representatives, shall be posted by the Re-
spondents and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees and members are customarily posted. Rea-
sonable steps shall be taken by the Respondents to ensure
that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pend-
ency of these proceedings, the Respondent Employer has
gone out of business or closed the facility involved in
these proceedings, the Respondent Employer shall dupli-
cate and mail, at its own expense, a copy of the notices to
all current employees and former employees employed
by the Respondent at any time since March 1, 2000.”

g

1 There were no exceptions to the judge’s finding that the Respon-
dent Union violated Sec. 8(b)(1)(A) of the Act or to the recommended
dismissal of the 8(a)(5) unfair labor practice allegation.

Judy A. Schulz, Esq., for the General Counsel.
Russell S. Linden, Esq. (Honigman, Miller, Schwartz and
Cohn), for the Respondent Employer.
George M. Maurer Jr., Esq. (Maurer & Kalls), for the Respon-
dent Union.
DECISION
STATEMENT OF THE CASE
JANE VANDEVENTER, Administrative Law Judge. This
case was tried on February 5, 2001, in Detroit, Michigan. The
complaint alleges Respondent Employer violated Section
8(a)(1) and (5) of the Act by attempting to prevent an employee
from attending a meeting between Respondent Employer and
Respondent Union, and violated Section 8(a)(1) by threatening
him with discipline if he attended the meeting. The complaint
also alleges Respondent Employer and Respondent Union vio-
lated Section 8(a)(1) and 8(b)(1)(A) respectively by maintain-
ing a clause in the collective-bargaining agreement which limits
union activity in the workplace. Both Respondents filed an-
swers denying the essential allegations in the complaint. After
the conclusion of the hearing, the parties filed briefs which I
have read.
Based on the testimony of the witnesses, including particu-
larly my observation of their demeanor while testifying, the
documentary evidence, and the entire record, I make the
followin
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Michigan corporation with an office and
place of business in Livonia, Michigan, where it is engaged in
the manufacture and sale of baked goods. During a representa-
tive 1-year period, Respondent purchased and received at its
Livonia facility goods valued in excess of $50,000 directly
2 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
335 NLRB No. 6
AWREY BAKERIES 139
from points outside the State of Michigan. Accordingly, I find,
as Respondent admits, that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
The Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. UNFAIR LABOR PRACTICES
A. The Facts
There are two aspects to this case. One is a contract provi-
sion which the two Respondents have maintained in their col-
lective-bargaining agreement for many years. The second is a
single incident involving a union committeeman and his super-
visor which took place on August 28, 2000.
The facts regarding the contract provision are simple and un-
disputed. For many years—the parties estimate it is more than
30 years—Respondent Employer and Respondent Union have
had a provision in the collective-bargaining agreement which
reads as follows:

The Company agrees not to discriminate directly or indirectly
against any employee or employees on account of service on
the aforesaid Top Committee or for any other Union activity,
or for communicating any grievance to the Union or its duly
authorized representatives. The Union agrees that its mem-
bers shall not carry on any Union activities on Company
property during working hours, except that members of the
Top Committee may conduct the official business of their of-
fice during working hours. [Emphasis added.]

This provision occurs as the concluding paragraph of the sec-
tion dealing with the procedure for filing of grievances. The
Top Committee referred to is a five-member committee of em-
ployees elected by the Union’s membership as their governing
body. The emphasized portion of the provision above is the
portion which the General Counsel alleges is overbroad and
violates Section 8(a)(1) and 8(b)(1)(A) of the Act.
With respect to the incident on August 28, 2000,1 there is
very little factual dispute regarding it. Douglas Wiseman has
been one of the five elected members of the “Top Committee,”
the Union’s governing body, and was the only one of the Top
Committee who worked on the night shift. He testified that his
normal duties as a committeeman were to meet with manage-
ment, to enforce the contract, and to participate in negotiations.
He also testified that he was sometimes called upon to deal with
grievances during the night shift if there were no steward pre-
sent at the time.
Wiseman’s immediate supervisor was Mark Foukes, who
worked on the day shift, and whose presence in the plant over-
lapped with Wiseman’s for only an hour or two each day. Ac-
cording to Wiseman’s testimony, Foukes had stated to Wise-
man in late July or early August that he was to perform his
union duties only on breaks and lunch. On the morning of Au-
gust 28, Wiseman learned of a hastily-called meeting between
the Top Committee and management concerning the assign-
ment of a bargaining unit employee to work in the retail baked
goods store, which was not a part of the bargaining unit.

1 All dates hereafter are in 2000, unless otherwise specified.
Wiseman began to go to the second floor of the plant in order to
attend the meeting, when Foukes confronted him and told him
that he did not want Wiseman to go to the meeting, and that he
would be disciplined if he did so. Fouked denied the threat to
discipline Wiseman, but admitted that he had insisted that
Wiseman go back to work. Foukes’ memory of the incident
was not particularly clear. Wiseman appeared to be a careful
and conscientious witness and I credit him.
Wiseman attended the meeting with management and the
other Top Committee members. After the meeting, which
lasted a couple of hours, Wiseman spoke alone with Glen
Korzyn, Respondent Employer’s director of human resources,
about Foukes’ attempt to prevent him from attending the meet-
ing and threat of discipline. Korzyn told Wiseman that he
would talk to Foukes and straighten it out. Korzyn testified that
he did meet with Foukes after this and set him straight concern-
ing the committee’s necessary union activities. Wiseman did
not receive any discipline because he had attended the meeting,
and has had no further problems with Foukes concerning his
union duties since this meeting with Korzyn.
B. Discussion and Analysis
With respect to the contractual language, Respondents argue
that because the language has been in the collective-bargaining
agreement for so many years, has never, to their knowledge,
been used to stifle employees’ Section 7 rights, and is properly
read in the context of the grievance procedure only, that it is not
unlawful. The Respondents argue that the “extrinsic evidence”
of past practice be considered in “interpreting” the provision as
a lawful one. The General Counsel argues that the language is
patently unlawful under Magnavox Co. of Tennessee, 415 U.S.
322 (1974), where the Supreme Court found unlawful an
equally hoary and ancient agreed practice limiting employees’
rights to distribute literature on the plant premises. The Su-
preme Court, while noting that a union may waive certain em-
ployee rights, i.e., the right to strike, in exchange for a griev-
ance and arbitration procedure, it may not waive the rights of
employees “to exercise their choice of a bargaining representa-
tive . . .—whether to have no bargaining representative, or to
retain the present one, or to obtain a new one . . . . The place of
work is a place uniquely appropriate for dissemination of views
concerning the bargaining representative and the various op-
tions open to the employees. So long as the distribution is by
employees to employees and so long as the in-plant solicitation
is on nonworking time, banning of that solicitation might seri-
ously dilute Section 7 rights.” 415 U.S. at 325. The Board has
continued to apply this doctrine to the relatively few cases
which arise under it. See, e.g., Belle of Sioux City, 333 NLRB
98, 101 (2001); Mead Corp., 331 NLRB 509, 510 (2000);
Summa Health System, 330 NLRB 1379, 1401 (2000).
While in this case there was, with the exception of the Au-
gust 28 incident described above, neither enforcement of the
provision nor any apparent intention to enforce it against em-
ployees, the very fact that it is in the collective-bargaining
agreement for every employee to read would tend to dissuade
employees from freely engaging in protected conduct at work.
In the familiar phrase, it “chills” employees’ exercise of their
Section 7 rights. Laidlaw Transit, 315 NLRB 79 (1994). In
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 140
fact, the misapprehension under which Foukes suffered could
well have had its origin in a reading of the defective language
contained in the contract. For these reasons I reject Respon-
dents’ argument that the contract language was, in practice,
read as “working time,” not “working hours,” I find that Re-
spondent Employer has violated Section 8(a)(1) of the Act by
the maintenance of this provision in the collective-bargaining
agreement.
With respect to the violation alleged against Respondent Un-
ion, however, the General Counsel was unable to cite any cases
precisely on point. While it is certainly true that unions have
been held accountable under Section 8(b)(1)(A) for similar
restrictions imposed upon employees’ Section 7 rights, such as
restrictions on employees’ rights to engage in intraunion cam-
paigning, dissent, or other criticism of the union or its current
leadership, neither Magnavox nor any of the recent cases citing
it involve a charge against a union.
The General Counsel argues that “by agreeing to the above
described language, the Union has not only unlawfully limited
its own members [rights] to engage in pro-union activity, but
has [also] limited the ability of its members to engage in dissi-
dent union activity.” The General Counsel cites Letter Carriers
(Postal Service), 316 NLRB 1294 (1995), in support of its ar-
guments. The Board, in that case, found that a union violated
Section 8(b)(1)(A) by entering into a grievance settlement
which prevented employees from distributing literature critical
of the union’s leadership. This case is analogous to the situa-
tion in the instant case. It is also logically appealing to con-
clude that if an employer is to be held accountable for the col-
lective-bargaining agreement provision, a union who is equally
a party to the provision should also be held accountable in the
same way. I therefore find that Respondent Union has violated
Section 8(b)(1)(A) by agreeing to and maintaining in the collec-
tive-bargaining agreement the portion of the provision which
restricts employees’ rights to “carry on union activities on com-
pany property during working hours.”
Turning to the incident of August 28, I have found that, in-
deed, a first-line supervisor did attempt to prevent Wiseman
from attending a union meeting with management which was
undisputedly part of his role as a Top Committeeman, and did
threaten him with discipline. However, it is apparent that
Foukes was under a mistaken viewpoint as to what Wiseman
could do by way of union activities during the workday. It is
equally apparent that after Korzyn educated him on the issue,
he stopped attempting to limit Wiseman’s union activities.
Wiseman, who knew better than Foukes what his rights to en-
gage in union activities were, attended the meeting without any
further interference, and without suffering any discipline.
Korzyn took action promptly, corrected Foukes’ erroneous
views and behavior, and Wiseman has had no further problems
with Foukes attempting to limit his union activities.
The threat of discipline affected only one Top Committee
member, and hung over Wiseman for only a couple of hours,
while he was attending the meeting, before he could bring it to
the attention of the director of human resources. Especially in
the context of a long and apparently good bargaining relation-
ship, it would be illogical and inequitable to find that this mo-
mentary misunderstanding, promptly ameliorated, constituted a
refusal to bargain. Under all the circumstances, I am unwilling
to find that Respondent violated the law merely because one of
its supervisors was imperfectly schooled in the collective-
bargaining agreement and had to be corrected by a higher level
manager, which was done as soon as Korzyn was told about the
problem. I dismiss the portion of the complaint which alleges
that Respondent Employer violated Section 8(a)(1) of the Act
by Foukes’ threat of discipline and Section 8(a)(5) by his fruit-
less attempt to prevent Wiseman’s attendance at the meeting on
August 28.
CONCLUSIONS OF LAW
1. By maintaining a restrictive contractual provision limiting
employees’ rights to engage in Section 7 activities, Respondent
Employer has violated Section 8(a)(1) of the Act.
2. By maintaining a restrictive contractual provision limiting
employees’ rights to engage in Section 7 activities, Respondent
Union has violated Section 8(b)(1)(A) of the Act.
3. The violations set forth above are unfair labor practices af-
fecting commerce within the meaning of the Act.
4. The complaint paragraphs alleging violations of Section
8(a)(1) and (5) by Respondent Employer based on the incident
of August 28 are dismissed.
THE REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I shall recommend that it be required to cease
and desist therefrom and to take certain affirmative action nec-
essary to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended2
ORDER
The Respondent Employer, Awrey Bakeries, Incorporated,
Livonia, Michigan, and Respondent Union, Council 30, United
Distributive Workers Union, Retail, Wholesale and Department
Store Union, AFL–CIO, Warren, Michigan, their respective
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining or giving effect to the provision in their col-
lective bargaining agreement which reads “The Union agrees
that its members shall not carry on any Union activities on
Company property during working hours.”
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at Re-
spondent Employer’s Livonia, Michigan, location and Respon-
dent Union’s Warren, Michigan location, copies of the attached
notice marked “Appendix.” Copies of the notice, on forms
provided by the Regional Director for Region 7, after being

2 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.
AWREY BAKERIES 141
signed by the Respondents’ authorized representatives, shall be
posted by the Respondents 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 Respondents to ensure that the notices are not
altered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
Employer has gone out of business or closed the facility in-
volved in these proceedings, the Respondent Employer shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since March 1, 2000.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondents have taken to comply.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
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 ordered us to post and
abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT maintain a provision in the collective bar-
gaining agreement which prohibits employees from engaging in
union activities on company property during working hours.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of rights guaranteed you
by Section 7 of the Act.
WE WILL rescind and cease giving effect to the following
provision in the collective-bargaining agreement:

The Union agrees that its members shall not carry on any Un-
ion activities on Company property during working hours . . .

AWREY BAKERIES, INCORPORATED
COUNCIL 30, UNITED DISTRIBUTIVE
WORKERS UNION, RETAIL, WHOLESALE
AND DEPARTMENT STORE UNION, AFL–CIO