Best Lock Corp.

National Labor Relations Board - Board Decisions

Nov 20, 1991

305 N.L.R.B. 648 (N.L.R.B. 1991)

648
305 NLRB No. 85
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
2 Gipe testified as follows:
The other pieces [of union literature] I showed to [supervisor]
Scott Walker because he had some questions concerning the
union. I showed him what we had at the time. I had shown them
to [supervisor] Brian Oertel because I asked Brian if we could
post some of the stuff on the bulletin board, because it is very
common for employees of Best Lock to post some of their hob-
bies, or church functions or things of this nature, things that in-
terest them.
3 Harrison Steel Castings Co., 255 NLRB 1426, 1427 (1981).
4 All other allegations, which in essence alleged that Addair was
issued a discriminatory warning under the pretext of his making a
negative ethnic remark to another employee, were dismissed by the
judge. No exceptions were filed to those dismissals.
5 See Maremont Corp., 249 NLRB 216, 217 (1980), in which the
Board, in permitting the second complaint, noted a 6-month hiatus
between the last incident in the first case and the conduct in the sec-
ond case.
Best Lock Corporation and Rush Addair. Case 25–
CA–20371
November 20, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On April 24 and May 31, 1991, Administrative Law
Judge Elbert D. Gadsden issued the attached decision
and correction, respectively. The Respondent filed ex-
ceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision, as corrected,
and the record in light of the exceptions and brief and
has decided to affirm the judge’s rulings, findings,1
and conclusions and to adopt his recommended Order.
The Respondent moved to dismiss the complaint in
its entirety on the ground that the General Counsel’s
failure to consolidate this case with an earlier unfair
labor practice proceeding (Case 25–CA–19645) (the
Gipe case) against the Respondent subjected it to the
unnecessary harassment of a separate hearing in the in-
stant case, citing Peyton Packing Co., 129 NLRB
1358, 1360 (1961). The judge denied the motion be-
cause he found, inter alia, that the General Counsel’s
decision (not to seek postponement of the Gipe case)
was a legitimate exercise of discretion and because no
charge by Addair had been filed at that time.
The Respondent excepts to the judge’s reliance on
the absence of a filed charge. It argues that there was
no charge because the General Counsel discouraged
Addair from filing his charge. The Respondent has
also submitted a transcript excerpt from the Gipe case
in an attempt to show that the refusal-to-post allegation
in this case is closely related to the issues litigated
there2 We find no merit in the Respondent’s excep-
tions for the following reasons.
The evidence on this record establishes that after
giving testimony in Gipe’s case on December 5, 1989,
Addair informed counsel for the General Counsel that
he planned to file a charge against the Respondent and
asked if he could do so at that time. Addair did not
indicate the substance of the charge. The General
Counsel told Addair not to do so because it could
cause postponement of the Gipe proceeding for inves-
tigation of Addair’s charge and the amendment of the
Gipe complaint. In an off-the-record discussion on De-
cember 5, the General Counsel reported her conversa-
tion with Addair to the judge and the Respondent. The
judge advised counsel for the General Counsel to ‘‘do
what you have to do.’’ The General Counsel elected
not to postpone the hearing or seek to amend the com-
plaint; the hearing resumed and closed on December 6,
1989; and Addair filed the instant charge on January
22, 1990.
We find that the General Counsel’s conduct was not
prejudicial to the Respondent. As the judge noted,
whether to seek a postponement of an ongoing pro-
ceeding in order to investigate new charges which may
or may not be related to it is a matter within the dis-
cretion of the General Counsel or the Regional Direc-
tor3 Concededly, if the General Counsel or Regional
Director chooses not to seek a postponement and
chooses instead to litigate the new allegations in a sep-
arate case in the future, the Board has the power to
refuse to permit this, i.e., the Board can dismiss the
second case under the authority of Peyton Packing,
supra. However, the circumstances of the instant case
do not warrant a dismissal under Peyton Packing. In
that regard, contrary to the Respondent’s contention, it
is manifest that these cases do not involve issues so
closely related as to mandate consolidation. In the in-
stant case, the Respondent is charged, inter alia, with
refusing to post union literature on employee bulletin
boards4 Gipe’s case involved his discharge for engag-
ing in concerted or union activities or for testifying in
a Board proceeding. Gipe’s quoted testimony was ad-
duced in connection with the issue of whether the Re-
spondent had knowledge of his union activities. There
was no refusal-to-post allegation alleged in the com-
plaint or litigated in that case, and his testimony was
in no way addressed to such an issue. Further, the dis-
charge in the prior case occurred on June 10, 1988,
and the unlawful conduct in the instant case occurred
in October 1989.5
We further find that the General Counsel did not
preclude Addair from filing a charge or attempt to con-
649BEST LOCK CORP.
6 Cf. Sheet Metal Workers Local 104 (Losli International), 297
NLRB 1078 at fn. 1 (1990).
ceal Addair’s prospective charge. Rather, counsel for
the General Counsel promptly notified the Respondent
and the judge of Addair’s intention. The Respondent
does not contend that it protested the General Coun-
sel’s conduct at that time. Nor did it seek to interpose
any objection to such conduct on the record. Moreover,
even if Addair had filed a charge before the hearing
closed the next day, it would not have been an abuse
of discretion if the General Counsel or the Regional
Director did not seek postponement of the proceeding
to investigate the new charge.6 We note in this connec-
tion that the charge would have been filed by a dif-
ferent charging party on the last day of the hearing; it
would have involved new and unrelated issues; and its
merits would not have been readily ascertainable so as
to permit the complaint to be amended without undue
delay.
Accordingly, we find no basis on the record for re-
versing the judge’s ruling on the Respondent’s motion
to dismiss the instant complaint. We shall therefore
adopt the judge’s recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Best Lock Corporation, In-
dianapolis, Indiana, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Steve Robles, Esq., for the General Counsel.
Jack H. Rogers, Esq. and Clare M. Sproule, Esq. (Barnes
and Thornburg) and Greg Dykstra, Esq., of Indianapolis,
Indiana, for the Respondent.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge. A
charge of unfair labor practice conduct was filed January 22,
1990, by Rush Addair, an individual (the Charging Party),
against Best Lock Corporation (the Respondent). Based on
the charge and on behalf of the General Counsel, the Re-
gional Director for Region 7 issued a complaint on March
30, 1990.
In essence, the complaint alleges that since July 22, 1989,
the Respondent has maintained a rule forbidding employees
from using the employees’ bulletin board for the posting of
concerted activity concerns of employees, in violation of
Section 8(a)(1) of the Act; and that Respondent has enforced
the rule by issuing an unwarranted warning and discipline to
an employee, threatening him with further disciplinary ac-
tion, including discharge, thereby discriminating against the
employee, in violation of Section 8(a)(1) and (3) of the Act.
The Respondent filed an answer to the complaint on April
5, 1990, admitting it maintained the rule prohibiting use of
the employees’ bulletin board for employees to post notices
concerning employees, but it denies it maintained and en-
forced the rule to undermine or discourage the employees
from engaging in concerted activities.
Affirmative Defense
Respondent affirmatively alleges in its answer that the
complaint should be dismissed in its entirety because the
Board has held that all outstanding charges of violations of
the Act involving the same Respondent should be litigated in
a single hearing, to avoid ‘‘unnecessary harassment of Re-
spondents.’’ Peyton Packing Co., 129 NLRB 1358, 1360
(1961).
The hearing in the above matter was held before me in In-
dianapolis, Indiana, on August 27, 1990. Briefs have been re-
ceived from counsel for the General Counsel and counsel for
the Respondent, respectively, which have been carefully con-
sidered.
On the entire record in this proceeding, including my ob-
servation of the demeanor of the witnesses and my consider-
ation of all the evidence, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is, and has been at all times material, an
Indiana corporation.
At all times material, during the past 12 months, the Re-
spondent, in the course and conduct of its business oper-
ations, sold and shipped from its Indiana facility products,
goods, and materials valued in excess of $50,000 directly
from points located outside the State of Indiana.
The complaint alleges, the answer admits, and I find that
Respondent is now, and has been at all times material, an
employer engaged commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW (the
Union) is now, and has been at all times material, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
At its Indiana facility, the Respondent is engaged in the
manufacture, sale, and distribution of extruded locks and re-
lated products. It employs 700 employees who work in a
1500 square feet plant area on three different shifts in 25 de-
partments. Since its corporate existence in 1938, Respond-
ent’s employees have never been represented by a Union.
At all times material, the following named persons occu-
pied the positions set opposite their respective names and are
now, and have been at all times material, supervisors of the
Respondent within the meaning of Section 2(11) of the Act
and agents of the Respondent within the meaning of Section
2(13) of the Act:
Walter Best—President
Gene McCullem—Vice President
Scott Walker—Supervisor
650 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The above facts are not disputed and are not in conflict in the
record.
William Remmington—Director, Human Resources
Dave Whittmoyer—Chief Engineer
Estelle Clarkson—Supervisor
The parties stipulated that since February 1987, the Re-
spondent has known that the Charging Party, Rush Addair,
actively participated in the union activities.1
B. Respondent’s Motion to Dismiss
Having set forth an affirmative defense in its answer to the
complaint, Respondent reasserted its affirmative defense at
the commencement of the hearing accompanied by a motion
to dismiss the complaint in its entirety.
Respondent contends the allegations raised in the current
complaint were known by the General Counsel prior to the
close of an unfair labor practice proceeding held December
5 and 6, 1989, on related issues against the Respondent.
Counsel for the Respondent argued that the Board has held
that the General Counsel must litigate all outstanding charges
of violations of the Act against the same Respondent in a
single proceeding. As set forth in Peyton Packing Co., supra,
the Board said:
Generally speaking, sound administrative practice, as
well as fairness to respondents, requires the consolida-
tion of all pending charges into one complaint. The
same considerations dictate that, whenever practicable,
there be but a single hearing on all outstanding viola-
tions of the Act involving the same respondent. To act
otherwise results in the unnecessary harassment of re-
spondents. NLRB v. Thompson Products, 130 F.2d 363,
366–367 (6th Cir. 1942), and Monroe Feed Store, 112
NLRB 1336, 1337 (1955).
More specifically, the Respondent argues that in the prior
proceeding between Respondent and Thomas Gipe, Case 25–
CA–19645, the Respondent defended itself against charges
that it violated Section 8(a)(1), (3), and (4) of the Act. Para-
graph 6 of the complaint in that proceeding alleged:
By the facts and conduct described above in subpara-
graphs 5(a) and (b) and by each of said facts, the Re-
spondent has discriminated, and is discriminating, in re-
gard to the higher or tenure or terms or conditions of
employment of its employees, thereby discouraging
membership in a labor organization, and the Respond-
ent hereby has been engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (4) of the
Act.
Just prior to the close of the hearing on December 5, 1989,
counsel for the General Counsel, Ann Rybolt, off the record,
indisputably informed Judge Stephen J. Gross and counsel
for Respondent, Jack H. Rogers and Clare M. Sproule, that
she had just been informed that employee Rush Addair had
planned to file charges against Respondent for company ac-
tions that occurred prior to the hearing. Addair had asked
General Counsel could he file the charges in the current
complaint in the case then before Judge Gross on December
5, 1989, because he was in Indianapolis as a witness at the
time. Counsel for the General Counsel told Addair not to file
the charges, that such possible charges could or would affect
the litigation in the Gipe case, possibly causing it to be con-
tinued for investigation and to amend the complaint. Judge
Gross told counsel for the General Counsel that she should
do whatever she had to do and she elected not to amend the
complaint in the December 5 proceeding (Case 25–CA–
19649). The Gipe hearing proceeded forwarded and was
closed on December 6, 1989.
Counsel for the General Counsel’s Argument
Counsel for the General Counsel argues that during the
December 5 hearing in the Gipe case, Addair told counsel
for the General Counsel, Ann Rybolt, that he planned to file
a charge concerning incidents (the subject of allegations in
the instant complaint) that had occurred prior to the Gipe
hearing; and that Addair did not give Rybolt any specifics
on what his allegations may be, but simply expressed a spec-
ulative intention to file charges.
However, counsel for the General Counsel, Steve Robles,
herein acknowledged Rybolt had expressed concerns about
the effect new charges by Addair might have on the Gipe
hearing, including possibly postponing the proceeding for
months; and that Gipe had been out of work for almost a
year. Having expressed those concerns to Judge Gross and
counsel for Respondent, Rybolt elected to continue and con-
clude the Gipe hearing.
Counsel for the General Counsel argues that the ruling in
the Peyton Packing case, relied on by Respondent, is not
controlling because the facts therein are distinguishable from
the facts in the instant case, as follows:
1. There are different charging parties here.
2. A significant difference in time-frame in that the
charges in the Gipe case were filed November 2, 1988,
were dismissed, appealed and reversed, and a complaint
issued May 12, 1989, several months prior to the ac-
tions alleged in Addair’s charge filed January 22, 1990.
3. Except for the bulletin board issue in the instant
case, the factual circumstances and issues in the Peyton
Packing case are significantly different—Gipe’s June
1988 discharge as opposed to Addair’s November 2,
1989 written warning.
4. Addair’s written warning is an independent act
which stands apart from Gipe’s charges.
In support of his argument, counsel for the General Coun-
sel cites Maremont Corp., 249 NLRB 216 (1980), in which
the Board distinguished the facts in that case from the facts
in Peyton Packing. In Peyton Packing, in which the Board
held that the General Counsel may not twice litigate the al-
leged holding of a benefit, first as a violation of Section
8(a)(1), and again as a violation of Section 8(a)(5). However,
in Maremont, the General Counsel sought to relitigate factual
matters previously litigated under different provisions of the
Act, which occurred 6 months after the latest incident liti-
gated in the prior proceeding and cannot be considered
roughly concurrent violations.
In the instant case, the conduct alleged by Addair took
place in excess of 6 months after the latest incident litigated
in the Gipe case, as counsel for the General Counsel notes.
However, the Board in Maremont further stated that: ‘‘A
651BEST LOCK CORP.
more central concern, however, is that Respondent’s argu-
ment, if accepted, would severely restrict the General Coun-
sel’s legitimate exercise of discretion in the expeditious liti-
gation of outstanding unfair labor practice complaints.’’
Therefore, based on the foregoing cited distinctions of
facts in Peyton Packing from the facts in Maremont, I find
that the General Counsel’s factual distinctions are signifi-
cantly different from the facts in Peyton Packing. Moreover,
I further find on the above enumerated factual distinctions
and stated reasons for Rybolt electing not to continue the
proceeding or amend the complaint in the Gipe case, correct
and sound. The factual comparisons in the Peyton Packing
and the instant case are not concurrent and Rybolt’s election
not to continue the proceeding in the Gipe case appears to
be a proper and fair exercise of discretion, in the expeditious
litigation of possible outstanding unfair labor practice com-
plaints. Maremont, supra.
Moreover, the General Counsel is not authorized to inves-
tigate ‘‘potential’’ unfair labor practices in the absence of a
charge which raises the issues. Addair had not filed a charge
with the Board at the time of the Gipe proceeding. The con-
tinuation of the hearing in the absence of a charge having
been filed would open the door to unnecessary and probably
prejudicial delay, while the Region and appeals processed an
additional charge. Harrison Steel Castings Co., 255 NLRB
1426, 1427 (1981). As the Board stated in Harrison:
The allegations of the instant complaint are not inter-
twined with those of the earlier consolidated com-
plaints, but rather are completely separate from the
prior litigation. To accept Respondent’s argument that
the General Counsel be compelled to litigate all unfair
labor practices occurring during the pendency of litiga-
tion of other unfair labor practice charges against the
same respondent would not only severely restrict the
General Counsel’s discretion, but also allow a respond-
ent to delay indefinitely the ultimate litigation of any
charges by simply engaging in further unlawful con-
duct. Such a result is completely at odds with the pur-
poses and policies of the Act.
Consequently, I further find on the foregoing credited evi-
dence, cited authority and stated reasons, that Respondent’s
motion to dismiss the current complaint should be denied.
C. Respondent’s Policy on Use of Employees’
Bulletin Boards
The Respondent provides and maintains six employee bul-
letin boards where notices by employees to employees are
posted.
Since July 1, 1985, Respondent’s employees’ handbook
provides, among other things, the following:
Bulletins, Handbills, and Other Printed Materials
All items to be posted on the bulletin boards marked
for employee use must first be given to the Personnel
Department for approval. Personnel Department staff
will then post all approved items on the bulletin boards.
Anyone defacing, placing, or removing items properly
posted on the employees’ or company’s bulletin boards
will be subject to disciplinary action.
Respondent’s vice president, Gene McCullem, testified
that Respondent usually approves notices for the employees’
bulletin boards. However, he said he could recall Respondent
disapproving one notice on a rock group, which was a derog-
atory critique, and another notice about a particular social
event held in the city.
Rush Addair was employed by Respondent January 28,
1985, and at all times material, he has worked as a quality
assurance person. Two weeks prior to October 24, 1989,
Addair said he had requested Jill Coose to post a notice
about a TV. He said the notice was posted on the bulletin
boards 2 days later. However, on October 24, 1989, he went
to secretary of personnel, Jill Coose, and requested her to
post a union notice on the bulletin board, which he informed
her was the law. The notice consisted of a union pamphlet
entitled ‘‘It’s The Law!’’, informing employees what fore-
men and supervisors cannot do.
Jill Coose told Addair ‘‘yes,’’ she thought she could post
the notice on the bulletin boards and Addair left her five of
the above-described pamphlets (G.C. Exh. 2), one for each
of the five employees’ bulletin boards, at the time.
Since the pamphlets (G.C. Exh. 2) were not posted on the
bulletin boards 2 days later (October 26, 1989), Addair called
Coose and asked her why the pamphlets had not been posted.
She informed him that the Company’s attorney had advised
Respondent not to post the pamphlets, and that he (Addair)
would have to talk to Vice President Gene McCullem.
Addair said he went to McCullem’s office about midafter-
noon and asked him why he could not post the union lit-
erature on the bulletin boards; and that according to the
Union and the National Labor Relations Board, he had the
right to post the notice (G.C. Exh. 2). McCullem told Addair
Respondent does obey the National Labor Relations Board’s
rules but that there were no union members at Respondent’s
facility. Addair left McCullem’s office and went to the Re-
gional Office and filed the present unfair labor practice
charge January 23, 1990. The notices, however, were posted
on all the bulletin boards about 2 months later for 7 days,
as are most notices.
According to Respondent’s version of the October 25 no-
tice-posting incident, personnel manager of Respondent,
David Walker, testified that Addair requested Jill Coose, the
personnel clerk, to post a one-page document on the bulletin
board. The clerk said she thought that she could. However,
after reviewing the document, the clerk became concerned
whether or not it should be posted because it was not the
usual subject matter of employees’ notices, but it listed 35
items with which the clerk was not familiar. The clerk con-
sulted with Respondent’s unnamed employee relations man-
ager, who telephone Respondent’s labor counsel, Jack Rog-
ers.
The unnamed employee relations manager told Rogers that
Addair desired to post ‘‘It’s The Law’’ notice on the Com-
pany’s (employer) bulletin boards. Rogers told the manager
that the Company did not have to post the subject notice on
the Company’s bulletin boards. The personnel department
therefore refused to post the notice in accordance with the
advise of counsel (Rogers).
Because the notice was not promptly posted, Addair called
the personnel clerk and asked her why it had not been post-
ed. She told him the Company’s attorney had advised the
Company not to post it and that he could speak to Gene
652 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 In evaluating this strange account of Respondent’s personnel
manager, David Walker, with respect to confusion about a proper
subject to be posted on the employees’ or the employer’s bulletin
boards, I am compelled to remain mindful that manager Walker is
a part of management. I also noted that a considerable amount of
his testimony was elicited by leading questions from Counsel for Re-
spondent, but even so, more significant is the fact that the title and
description of the document (G.C. Exh. 2) dictated it was clearly
subject matter for the employees’ bulletin boards and not the em-
ployer’s. Walker is a well-educated management witness in charge
of Respondent’s personnel department, and I was not persuaded by
his demeanor nor the substance of his testimony that he, personnel
clerk Coose, Respondent’s unnamed employee relations manager,
nor Respondent’s legal counsel, Rogers, was confused that Addair’s
notice was a subject for and was intended to be posted on the Em-
ployer’s bulletin boards. Common experience discredits such an ac-
count. H. C. Thompson, 230 NLRB 808 (1977).
After all, counsel for Respondent is charged with knowledge of
the contents of the document (G.C. Exh. 2) since he advised Re-
spondent it did not have to post the notice on the employer’s bulletin
boards, and neglected to advise Respondent that the notice was a
proper subject to be posted on bulletin boards for the employees.
McCullem about the posting. Addair met with McCullem
that day and he was given the same response made by the
personnel clerk on the attorney’s advise. Addair said that ac-
cording to the NLRB and UAW rules, he had the right to
have the notice posted.
On January 22, 1990, Addair filed a charge which is the
basis for the current proceeding. Thereafter, Addair resub-
mitted the notice ‘‘It’s The Law’’ to the personnel clerk and
it was posted by Respondent on March 4, 1990. Although
Respondent Manager David Walker testified he was unaware
that an unfair labor practice charge had been filed against
Respondent at the time Respondent posted the notice, I am
not persuaded that the latter statement is true, based on my
observation of Walker’s demeanor and the length of time Re-
spondent did not post the notice.
On Monday, March 5, 1990, Personnel Manager Walker
testified he was informed that employee Charles Davis had
ripped down the notice and mutilated it. Davis was written
up for doing so and the notice was reposted on the employ-
ees’ bulletin board 9 or 10 days. Subsequently, employees’
union notice (R. Exh. 9) was submitted on April 30, 1990,
and posted on the employees’ bulletin boards.
Conclusions
The above-described evidence raises the question whether
or not Respondent discriminatorily enforced its bulletin
boards policy by refusing employees the use of the employ-
ees’ bulletin boards to post notices concerning the Union, in
violation of Section 8(a)(1) of the Act.
In answering this question it is first noted that the Re-
spondent does not deny it refused to post Addair’s October
25, 1989 union notice to employees on the bulletin boards.
In fact Respondent admits it refused to post the notice on the
advise of its legal counsel, on the premise that counsel was
asked and his response was in reference to posting the notice
on the employer’s bulletin boards. Respondent’s defense for
its refusal to post the notices is interesting.
Employee Rush Addair, in compliance with company pol-
icy, submitted the union notice to personnel department
clerk, Jill Coose, requesting her to post it on the bulletin
boards and she said she thought she could. Jill Coose did not
appear and testify in this proceeding. Instead, David Walker,
manager of Respondent’s personnel department testified that
after Coose reviewed the notices she was concerned with
whether the notice should be posted on the bulletin boards.
She then consulted with Respondent’s employee relations
manager (not named, but presumably, Remington) about
posting the notice, who in turn called and inquired of Re-
spondent’s legal counsel about posting the notice on the em-
ployer’s bulletin boards.
It is particularly noted here, that Addair did not request
that the notices be posted on the employer’s bulletin boards.
He simply said the bulletin boards. Since notices from em-
ployees to employees about employees’ concerns can be
posted only on employees’ bulletin boards, it is reasonable
to conclude that Addair knew the difference in the two types
of bulletin boards, and he could only have meant the em-
ployees’ bulletin boards.
If clerk Coose had reviewed the notice (G.C. Exh. 2), she,
as well as the Respondent’s unnamed employee relations
manager, would have observed on the document under the
title ‘‘It’s The Law!,’’ over the 35 items in bold print the
following:
DO YOU KNOW?
What Foreman and Supervisors Cannot Do
It is unlawful for your employer, supervisor or foreman
to interfere with, restrain or coerce employees seeking
to organize or join a Union, in non-working areas, dur-
ing non-working time.
A simple reading of the above headings would have viv-
idly apprised any reader that the notice was about employee
organizing concerns, and would have been obviously subject
matter for the employees’ bulletin boards. Certainly the no-
tice does not suggest any subject matter that would have
been posted on the Employer’s bulletin boards.
However, even if clerk Coose and Respondent’s unnamed
employee relations manager were as naive as Walker would
urge one to believe, that neither of them could determine on
which bulletin boards the notice should have been posted,
Respondent is also asking me to believe that legal counsel
for Respondent was equally confused. It is difficult to con-
ceive that the personnel department called Respondent’s legal
counsel and did not describe to him the nature of the docu-
ment (G.C. Exh. 2). If the document was not described to
counsel, it is understandable that he might have told Re-
spondent it did not have to post the notice on the Employer’s
bulletin boards. However, it is not comprehensible (knowing
what the document was about) that counsel for Respondent
would not have asked about the contents of the document,
and added that the subject notice should be posted on the
employees’ bulletin boards.2
Notwithstanding, even if all of Respondent’s representative
witnesses were in fact confused as to which bulletin boards
on which the notice (G.C. Exh. 2) should have been posted,
Respondent nevertheless failed and refused to post the notice
on any of the bulletin boards for more than 2 months, until
after the charge in the instant proceeding was filed January
22, 1990. Under these circumstances, I find that Respondent
discriminatorily refused to post the notice to its employees
about unionization (G.C. Exh. 2) submitted to it by an em-
653BEST LOCK CORP.
ployee (Addair) because he was known by Respondent to be
a proponent for unionization of its employees, and the notice
concerned employees’ concerted concerns or unionization.
Most other nonunion nonconcerted activities notices to em-
ployees were generally posted on the employees’ bulletin
boards.
Consequently, I further find that Respondent’s refusal to
post the notice (G.C. Exh. 2) on the employees’ bulletin
boards was a discriminatory application of its bulletin boards
policy, which interfered with, restrained, and coerced em-
ployees in the exercise of their protected Section 7 rights, in
violation of Section 8(a)(1) of the Act.
D. Respondent’s Warning to Addair
As employees Rush Addair and Darwin Huntzinger were
returning from their break at 9:10 a.m. on November 1,
1989, they testified they were discussing the recent trips of
Presidents Reagan and Nixon to China. While passing the RS
crib, where employee Dan Oonjai, from Taiwan works,
Oonjai heard either Addair or Huntzinger make the sound of
a karate man or a Ninja. Addair and Huntzinger testified that
they did not know Oonjai was at the RS crib. Oonjai heard
the sound and came over to the aisle where Addair and
Huntzinger continued walking.
According to Oonjai, when he looked down the aisle he
saw Addair several feet away pointing towards himself (his
chest), which he interpreted as admitting having made the
sound and questioning what he (Oonjai) was going to do
about it. According to Addair, Oonjai yelled at them and
when they turned around, Oonjai made no further comment
or motion, so he and Huntzinger continued on to their work
station. Oonjai asked Auker, who works in the RS crib, if
he had heard the sound. Auker said ‘‘yes,’’ and Oonjai asked
Auker to accompany him to ascertain what was Addair’s
problem. Auker went with Oonjai to Addair where Oonjai
asked Addair if he had a problem with him (Oonjai). A brief
discussion resulted which concluded with Addair telling
Oonjai, ‘‘If you don’t like it in this country, why don’t you
go back to China.’’ Oonjai replied, ‘‘Sir, this is not your
country. This country belongs to the Indians. And we [pre-
sumably, all of us] have come to this country as immigrants
to the United States.’’ Oonjai and Auker returned to their
work areas.
When Oonjai and Auker returned to the RS crib, another
worker, Wil, joined Auker in encouraging Oonjai to report
the incident to his supervisor, LaNelle Provence. The super-
visor told Oonjai to discuss the matter with Bill
Remmington, Human Resource Manager of Respondent,
where Oonjai ultimately filed a complaint alleging he felt ra-
cially harassed by Addair’s statement, ‘‘If you don’t like it
in this country, why don’t you go back to China.’’ A copy
of the complaint was given to Respondent’s Affirmative Ac-
tion Plan Administrator, Gene McCullem, who called a meet-
ing with Dave Whittmoyer, Greg Dykstra and Estelle
Clarkson to discuss the incident with Addair. At the meeting,
Addair was told that Oonjai felt that the statement ‘‘If you
don’t like it in this country, why don’t you go back to
China,’’ was a racial slur, and the Respondent agreed with
him.
Respondent thereupon issued the following written warn-
ing (G.C. Exh. 7) to Addair which he was asked to read and
sign, but that he did not have to sign it if he did not agree
it was true:
Warning-Harassment dated 11/2/89.
The situation being documented occurred on 11/1/89
between 9 and 9:30 a.m. when Rush Addair made fun
of Dan Oonjai’s race. Dan and witness, Gerald Auker
confronted Rush about this harassment and Rush re-
sponded by saying ‘‘Why don’t you go back to China,
if you don’t like America.’’
Since Dan Oonjai, an oriental minority stated this
was not the first harassment incident, and since there
was a witness, Rush is being given a written warning.
This is a violation of Best Lock Corp’s. Affirmative
Action Plan and will not be condoned. Further violation
of any racial nature will result in more severe discipline
and could result in termination.
Addair denies on 11/2/89 that he made any statement
making fun of Oonjai’s race.
Witnessed: E. Clarkson, G. Dykstra, D. Whittmoyer,
and signed by Rush Addair 11/2/89.
Initially, Addair refused to sign the warning because the
statement attributed to him, ‘‘If you don’t like it in this
country, why don’t you go back to China,’’ was not correct.
Addair said he said ‘‘Why don’t you go back to China if you
don’t like America?’’ Manager McCullem changed the word-
ing of the statement according to Addair’s version, and asked
Addair if the statements in the warning were now true.
Addair said yes and signed the warning (G.C. Exh. 7). As
the meeting concluded, Addair asked if he could submit evi-
dence supporting his side of the conversation and he was told
that he could do so.
On the next day, November 3, 1989, Addair presented
McCullem with three ‘‘NCRs’’ (statements by himself, and
two other persons) to be included in his personnel file with
the warning. In his own statement (G.C. Exh. 4), Addair de-
nied making fun of Oonjai but he did not deny making the
statement about ‘‘Go back to China.’’ In the statement by
Darwin Huntzinger, the latter said he did not hear Addair say
anything to Oonjai and he (himself) did not say anything to
Oonjai about his race, but said he was the person who, just
acting stupid, made the karate sound. Cindy Skillman’s state-
ment (G.C. Exh. 6) denies hearing Addair saying anything
other than he (Addair) had nothing to say and asked Oonjai
to leave the area. Neither Huntzinger’s nor Skillman’s state-
ment mentioned the ‘‘Go back to China’’ conversation, al-
though they were supposed to have been present. All three
statements were included in Addair’s personnel file.
Analysis and Conclusions
The record evidence shows that Thirdsak Oonjai from
Thailand has been in the United States 17 years, that he is
a permanent resident here, and has worked for Respondent
10 years (currently a receiving clerk).
The question raised by the evidence and presented for de-
termination is whether or not Respondent’s November 2,
1989 written warning to Rush Addair was issued because of
his union activities including his efforts to have the notice
posted on the employees’ bulletin boards, of which facts Re-
spondent was fully aware.
654 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In analyzing the credited evidence of record in an effort
to answer the question presented for determination, one must
remain mindful that Respondent’s employees have never
been unionized, and that Respondent has unlawfully refused
to post Addair’s organizing notice to employees on the bul-
letin boards until after the charge in the instant case was
filed. With these factors in mind, Respondent’s objectively in
hearing and disposing of Oonjai’s November 1 complaint
against Addair must be carefully examined to determine
whether Respondent’s issuance of a warning to Addair was
in any way motivated by Addair’s union activities.
Counsel for the Respondent urges application of the
Wright Line doctrine, 251 NLRB 1083, 1089 (1980), in the
instant case, because the General Counsel must first establish
that an unfair labor practice has been committed by a ‘‘pre-
ponderance of the testimony.’’ Assuming Wright Line is ap-
plicable to the question presented here, it is clear that the
General Counsel has established that Respondent interfered
with, restrained, and coerced its employees in the exercise of
their protected Section 7 rights, by refusing to post the union
literature on its employees’ bulletin boards, in violation of
Section 8(a)(1) of the Act.
Counsel for Respondent also argues that the General
Counsel must make a prima facie showing sufficient to sup-
port an inference that the protected conduct (refusing to post
the notice on the bulletin boards) was a motivating factor in
Respondent’s decision to issue the November 1 warning to
Addair; that Respondent’s knowledge of Addair’s union ac-
tivity is not enough, but the General Counsel must show that
issuance of the warning was motivated by Respondent’s
union animus, Transportation Management Corp., 462 U.S.
401–402 (1983); NLRB v. Brown & Root, 380 U.S. 278, 286
(1965); and that Respondent has not violated the Act if ani-
mus did not contribute at all to an otherwise lawful discharge
for good cause.
Seriously considering Respondent’s legal argument wheth-
er Respondent’s November 1 written warning to Addair was
motivated by Addair’s union activity, I am persuaded by the
evidence that the latter question can best be determined by
determining whether the warning was lawfully issued ‘‘for
good cause.’’ Analyzing the evidence in this regard, it is first
noted that according to the testimony to Gerald Auker, on a
prior occasion, he and Addair were discussing the Chinese
student demonstrations. Addair said the demonstrations was
a ‘‘Chinese’’ problem and America should not go over there
or do anything about it. Oonjai entered the conversation but
Auker does not describe what Oonjai said.
When Oonjai went to the aisle on November 1, 1989, to
investigate the source of the Karate sound (Ashoo!) and
called to Addair and Huntzinger, who were walking down
the aisle, Addair turned and pointed towards his chest.
Oonjai interpreted Addair’s pointing towards his chest as
having acknowledged making the Karate sound and chal-
lenging him. However, since Oonjai called to Addair and
Huntzinger, by pointing to himself, Addair could have been
asking was Oonjai calling him. In any event, after Oonjai,
accompanied by Auker approached and confronted Addair
and Huntzinger, Addair denied he made the Karate sound.
During the heated discussion, Huntzinger told Oonjai and
Auker that he (Huntzinger) had made the Karate sound while
just being stupid, and with no inference or connotation to
Oonjai. As the confrontation concluded, Addair acknowl-
edged that he asked Oonjai ‘‘why don’t you go back to
China if you don’t like America.’’
When Oonjai brought the incident to the attention of man-
agement and Affirmative Action Plan Administrator, Gene
McCullem, the latter and three other members of manage-
ment met with Addair. McCullem told Addair Oonjai felt
that his (Addair) ‘‘back to China’’ statement was a racial
slur, and that management agreed with him.
As related above, Respondent contends McCullem issued
the written warning to Addair solely for telling or asking
Oonjai ‘‘why don’t you go back to China if you don’t like
America.’’ Even though Addair submitted to McCullem the
signed statements of Huntzinger denying that Addair said
anything to Oonjai and acknowledging that he (Huntzinger)
had made the Karate sound; and the statement by Cindy
Skillman, that she did not hear Addair say anything to
Oonjai other than he had nothing to say and ask Oonjai to
leave the area, Respondent did not rescind its written warn-
ing to Addair.
It is particularly noted that Respondent’s stated reason for
issuing the November 2 warning to Addair was because dur-
ing the exchange between Addair and Oonjai, Addair asked
Oonjai, ‘‘Why don’t you go back to China if you don’t like
America.’’ Respondent considered that remark a racial slur.
Although Oonjai stated Addair had made similar remarks to
him on previous occasions, neither Oonjai nor any other wit-
ness for the Respondent testified about the nature or descrip-
tion of such remarks. Here, however, Addair admitted mak-
ing the ‘‘Go back to China’’ statement and neither
Huntzinger nor Skillman denied or mentioned the remark in
their signed statements.
As counsel for Respondent argues, the action for which
Respondent issued Addair the warning is totally independent
of any Union or concerted activity in which Addair was en-
gaged. The Respondent was able to show by record evidence
that it has disciplined employees for any conduct which re-
sembles racial or sexual harassment of employees. Respond-
ent agreed with Oonjai that Addair’s remark ‘‘why don’t you
go back to China if you don’t like America’’ was an ethnic
affront, which need not be tolerated among its work force,
where it is trying to create and maintain interethnic harmony
in the workplace through enforcement of its affirmative ac-
tion program.
The General Counsel’s evidence fails to establish any
nexus between Respondent’s refusal to post Addair’s union
literature, or any other union or concerted activity in which
Addair was engaged, and Addair’s ‘‘Go back to China’’ re-
mark to Oonjai on November 1. The complaint of racial har-
assment was filed by employee Oonjai. Respondent inves-
tigated the incident, accepted Addair’s own version of the re-
mark, which Addair acknowledged making and signing.
Under these circumstances, the General Counsel’s evidence
fails to show how Respondent’s warning to Addair was in
any was motivated by Addair’s union activity. In fact, Re-
spondent’s evidence has shown that Addair would have been
disciplined for his remark to Oonjai even if Addair had not
been previously engaged in protected Union or considered
activity. This fact is demonstrated by Respondent’s evidence
of having disciplined other employees for statements or acts
of racial or sexual harassment.
The mere statement ‘‘Why don’t you go back to China if
you don’t like America,’’ appears to be nonoffensive without
655BEST LOCK CORP.
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
4 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 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.’’
any negative ethnic or nationality overtones. However, when
the statement is considered in the context of the heated dis-
cussion between Addair and Oonjai on November 1, 1989,
about a Karate sound which Oonjai was suspected was made
by Addair, and to which Oonjai took offense, the import of
the statement takes on a negative ethnic character. Specifi-
cally, Oonjai has been in this country 17 years. He is a legal
resident here, and has been in Respondent’s employ 10 years.
For Addair to conclude a heated dispute between himself and
Oonjai by telling him ‘‘why don’t you go back to China if
you don’t like America,’’ highlighted Oonjai’s ethnic or na-
tionality difference in an unwelcome and negative sense.
Such a result appears to be the very kind which the Respond-
ent’s affirmative action plan seeks to avoid in human rela-
tions among its employees. Transportation Management
Corp., 462 U.S. 393 401–402 (1983); NLRB v. Brown &
Root, 380 U.S. 278, 286 (1965); Wright Line, supra 251
NLRB at 1089.
I therefore conclude and find upon the foregoing credited
evidence, reasons and cited legal authority, that General
Counsel’s evidence fails to establish that Respondent’s No-
vember 2 written warning to Addair was motivated by Re-
spondent’s union animus, or the known protected conduct of
Addair (union activity or his request to post the notice). Such
conduct by the Respondent does not violate the Act. Con-
sequently, paragraphs 6(a) and (b) of the complaint should
be dismissed.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practice conduct I will recommend that it be or-
dered to cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the
Act.
Having found that Respondent discriminatorily refused to
post a union notice on the employees’ bulletin boards as re-
quested by an employee, Respondent has interfered with, re-
strained, and coerced its employees in the exercise of their
protected Section 7 rights, in violation of Section 8(a)(1) of
the Act, the recommended Order will provide that Respond-
ent cease and desist from engaging in such unlawful conduct
and that it take certain affirmative action necessary to effec-
tuate the policies of the Act.
CONCLUSION OF LAW
By discriminatorily refusing to post a Union notice on the
employees’ bulletin boards pursuant to the request of an em-
ployee, the Respondent has interfered with, restrained, and
coerced its employees in the exercise of their protected Sec-
tion 7 rights, in violation of Section 8(a)(1) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Best Lock Corporation, Indianapolis, In-
diana, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to post notices requested to be posted on the
employees’ bulletin boards by employees concerning their
concerted or union activities.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at the facility of Best Lock Corporation, 6161 E.
75th Street, Indianapolis, Indiana, copies of the attached no-
tice marked ‘‘Appendix.’’4 Copies of said notice, on forms
provided by the Regional Director for Region 25 after being
signed by the Respondent’s authorized representative, shall
be posted by Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respondent
to ensure that said notices are not altered, defaced, or cov-
ered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 vio-
lated 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
concerted activities.
WE WILL NOT interfere with, restrain or coerce our em-
ployees in the exercise of their protected Section 7 rights by
discriminatorily refusing to post on the employees’ bulletin
boards, notices concerning union or concerted interests of our
employees.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them under Section 7 of the National Labor Rela-
tions Act.
BEST LOCK CORPORATION