Bloomington-Normal Seating Co.

National Labor Relations Board - Board Decisions

Jun 3, 2003

339 N.L.R.B. 191 (N.L.R.B. 2003)

BLOOMINGTON-NORMAL SEATING CO. 191
Bloomington-Normal Seating Co. and Local 362, La-
borers’ International Union of North America,
AFL–CIO. Case 33–CA–13769
June 3, 2003
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND ACOSTA
On August 27, 2002, Administrative Law Judge David
L. Evans issued the attached decision. The Respondent
filed exceptions 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 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 the recommended Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Bloom-
ington-Normal Seating Co., Normal, Illinois, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order, as modified.
1. Substitute the following for paragraph 2(b).

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
2 The Respondent excepts to the judge’s “unsupported finding” that
it violated Sec. 8(a)(1) “by requesting employees to report attempts by
other employees to solicit union authorization cards on behalf of the
Union.” We agree that the evidence showed only that the Respondent’s
production manager, in the course of an antiunion speech to employees,
asked the employees to “let [the Respondent] know about it” if they
were “threatened or harassed about signing a union card.” We also
agree with the administrative law judge, however, that the Respondent
thereby invited employees to inform it of protected, albeit unwanted,
authorization card solicitations by other employees. Because of the
potential for chilling legitimate union activity, the Board finds such
conduct unlawful. See, e.g., Greenfield Die & Mfg. Corp., 327 NLRB
237, 238 (1988); Eastern Main Medical Center, 277 NLRB 1374, 1375
(1985), and cases cited. We have modified the language of the recom-
mended Order and the notice to conform to the precise allegation of the
complaint.
Member Schaumber would add that the request was unlawfully
overbroad because it failed to distinguish between solicitation activity
that is protected–even though persistent and subjectively disliked by a
targeted employee–and solicitation activity that is unprotected because
it interferes with work or contravenes a legitimate nondiscriminatory
rule against workplace harassment.

“(b) Telling its employees to inform the Respondent if
any employees were harassed about signing a union
card.”
2. Substitute the attached notice for that of the admin-
istrative law judge.

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 Federal labor law and has ordered us to post and
obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT threaten you with discharge or other dis-
crimination if you engage in activities on behalf of, or
express sympathies with, a union.
WE WILL NOT request that you inform us if any em-
ployees are harassed about signing a union card.
WE WILL NOT in any like or related manner, interfere
with, restrain, or coerce you in the exercise of the rights
that are guaranteed to you by Section 7 of the Act.

BLOOMINGTON-NORMAL SEATING COMPANY

Ahavaha Pyrtel, Esq., for the General Counsel.
Gary A. Wincek, Esq., of Chicago, Illinois, for the Respondent.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This case under
the National Labor Relations Act (the Act) was tried before me
in Peoria, Illinois, on June 11, 2002. On October 9, 2001,1 the
charge was filed by Local 362, Laborers’ International Union
of North America, AFL–CIO (the Union), alleging that Bloom-
ington-Normal Seating Company (the Respondent) has engaged
in unfair labor practices as set forth in the Act. Upon an inves-
tigation of the charge, the General Counsel issued a complaint
alleging that the Respondent had violated Section 8(a)(1) of the
Act by threatening an employee with discharge because of his
union activities and by telling employees to inform on the un-
ion activities of other employees. The Respondent filed an an-
swer admitting that this matter is properly before the National
1 All dates mentioned are in 2001, unless otherwise indicated.
339 NLRB No. 30
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 192
Labor Relations Board (the Board) but denying the commission
of any unfair labor practices.
Upon the testimony and exhibits entered at trial,2 and after
consideration of the briefs that have been filed by the General
Counsel and the Respondent, I make the following findings of
fact and conclusions of law.
I. JURISDICTION
As it admits, the Respondent is, and has been at all material
times, engaged at its office and place of business in Normal,
Illinois, in the business of assembling automobile seats for
Mitsubishi Motor Manufacturing of America, Inc., which entity
is also located in Normal and which entity is directly engaged
in interstate commerce. During the year immediately preceding
the issuance of the complaint, the Respondent, in the course
and conduct of its business operations, sold and shipped prod-
ucts and materials valued in excess of $50,000 directly to Mit-
subishi Motor Manufacturing of America, Inc. Therefore, at all
material times the Respondent has been an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act. As the Respondent further admits, the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent employs about 110 production and mainte-
nance employees at its facility. Production employee Russell
Sears testified that during the last week in August 2001 he and
other employees met with representatives of the Union to dis-
cuss the possibility of the Union’s becoming their collective-
bargaining representative. At that time, the representative gave
Sears union authorization cards to distribute among other pro-
duction and maintenance employees, which Sears did.

Sears testified that his usual start time during the first week
in September was 6:30 a.m. One day during that week Sears
appeared at work at 6:15. That day, Sears had brought with him
a newspaper called Union News. (Sears testified that the Union
News is distributed to members of various unions in the area;
his wife had received the copy of the newspaper at home.)
Sears went to his work station and, while waiting for the time to
clock in, he took out the newspaper and began reading it. Ac-
cording to Sears:

I was approached by my supervisor, Mark Overfelt.
And I didn’t see him coming because he come from
around the cart and I was sitting there reading. And he
came up with one hand and grabbed ahold of my newspa-
per and went [attempted] to pull it from me.
And he asked me what I was reading; he said “Are you
reading Union News?”
And I said no. And I pulled it away from him, I rolled
it up and I stood up and stuck it in my back pocket.
And he asked me, “Are you trying to start a union?”

2 Certain passages of the transcript have been electronically repro-
duced; some corrections to punctuation have been entered. Where I
quote a witness who re-starts an answer, and that re-starting is mean-
ingless, I sometimes eliminate words that have become extraneous;
e.g., “Doe said, I mean, he asked ” becomes “Doe asked . . . .”
And I said no.
And then he said, “If you’re trying to start a union,
you’re gonna be canned.”3

Sears further testified that Overfelt then turned and walked
directly to the Respondent’s human resources department. On
cross-examination, Sears agreed that other employees knew
that he supported the Union, but he testified that he had tried to
keep his prounion sympathies a secret from members of man-
agement.
Shirley Halsey, another production employee, is an aunt of
Sears. Sears sometimes gives Halsey a ride to work. Halsey
testified that during early September Sears gave her a ride to
work and, at the time, she saw that he had a copy of the Union
News. Halsey further testified that about 6:15 a.m. that day:

Well, I was kind of keeping an eye on my nephew
Russell Sears because I was afraid that he had that paper.
And so I was kind of keeping an eye on him ‘cause he was
reading it up in his work station.
And then our supervisor, Mark Overfelt, came like
from behind a oven cart and tried to take the paper from
Rusty, and he [Sears] got the paper back and put it in his
back pocket.
And so I started walking up towards the area to see
what was going on, and by the time I got there he [Over-
felt] had left and went to the human resource department.

On cross-examination, Halsey acknowledged that she could not
hear the words of the exchange between Sears and Overfelt.
Based on the testimonies of Sears and Halsey, the complaint
alleges that by Overfelt’s conduct the Respondent, in violation
of Section 8(a)(1), “threatened an employee that he would be
fired if he were trying to start a union.”4
For the Respondent, Overfelt testified that on the morning in
question, as he walked about the plant performing his supervi-
sory duties, he twice saw Sears reading a newspaper. On the
first occasion, which was before the 6:30 a.m. start time, he
could see by the form and layout of whatever Sears was reading
that Sears was reading a newspaper, but he could not see what
newspaper it was. Overfelt testified that he asked Sears what he
was reading; Sears replied “nothing” and placed the newspaper
on his work bench. Overfelt testified that he continued walking
and said nothing more to Sears. Overfelt testified that later
during that morning, as he was again walking near Sears’ work
station, he again saw Sears reading the newspaper. This time
Overfelt could see that the newspaper was a copy of the Union
News. Overfelt testified that, even during employees’ paid time,
when they are waiting for more production to come to their
work stations, they are permitted to read newspapers, and he
therefore said nothing to Sears at the time. Overfelt denied
attempting to take the newspaper away from Sears on either
occasion, and he denied threatening Sears in any manner. Over-
3 The Tr. p. 13, LL. 15–16, is corrected to add “If” to the quotation
of this sentence. (See Tr. p. 17, LL. 9–11.)
4 The complaint does not allege that Overfelt’s questioning of Sears
about whether he was trying to start a union was an interrogation in
violation of the Act.
BLOOMINGTON-NORMAL SEATING CO. 193
felt further denied that any other individuals were in the area on
the first occasion that he saw Sears reading a newspaper.
As the parties stipulated, on September 5 Todd Bodine, the
Respondent’s production manager, read a speech to the produc-
tion and maintenance employees. The parties further stipulated
to the accuracy of a copy of Bodine’s speech. The speech is
about 500 words long; generally it argues the disadvantages of
union organization and the signing of union authorization cards.
The final paragraph of Bodine’s speech was:

Finally, if you are threatened or harassed about signing
a union card, I hope you will let us know about it. We will
not stand for anyone threatening or harassing our associ-
ates for any reason.

Based on this paragraph of Bodine’s speech, the complaint
alleges that the Respondent, in violation of Section 8(a)(1),
“told employees to inform the Respondent if any employees
were harassed about signing a union card.”
III. CREDIBILITY RESOLUTIONS AND CONCLUSIONS
Sears testified that, during the first week of September,
Overfelt attempted physically to take a copy of the Union News
from him and threatened him with discharge (being “canned”)
if he was trying to start a union. Halsey corroborated Sears’
testimony that Overfelt attempted to take the copy of the Union
News from Sears. Overfelt denied any such conduct.
The Respondent has suggested no reason why Sears and Hal-
sey would have lied during their testimonies. Moreover, as
stated in Federal Stainless Sink Division, 197 NLRB 489, 491
(1972):

“The average employee [who is providing information
in a proceeding to which his employer is a party] is keenly
aware of his dependence upon his employer’s good will,
not only to hold his job but also for the necessary job ref-
erences essential to employment elsewhere.”12 Bearing
this truism in mind, it is plain to see that the employee
witnesses who testified against Respondent, especially
Carol Maxwell and Winkler, did so knowing that they
were in considerable peril of economic reprisal. Having
thus much to lose, their testimony, adverse to Respondent,
was in a sense contrary to their own interests and for this
reason not likely to be false.13
____________________________
12 Wirtz v. B.A.C. Steel Products, Inc., et al., 312 F.2d 14, 16
(C.A. 4).
13 See, in this connection, Georgia Rug Mill, 131 NLRB
1304, 1305, modified on other grounds, 308 F.2d 89 (C.A. 5).

Also, in Flexsteel Industries, 316 NLRB 745 (1995), the Board
stated that, although there is no presumption of credibly to be
afforded to it, “the testimony of current employees which con-
tradicts statements of their supervisors is likely to be particu-
larly reliable because these witnesses are testifying adversely to
their pecuniary interests.”
The testimonies of Sears and Halsey afforded them no possi-
ble benefit and, being employed by the Respondent at the time
that they gave their testimonies, they are “current employees”
as described in the above-quoted Board decisions. That is, they
were testifying against their employer’s interest and therefore
subjecting themselves to the possible perils of job-place re-
criminations (subtle as well as blatant) for that testimony. As
the employees assuredly realized, the perils would be even
greater if their testimonies were false. Moreover, Sears and
Halsey had completely credible demeanors, and I do credit their
testimonies over Overfelt’s denials.5 I therefore find that Over-
felt, on or about September 5, 2001, threatened an employee
with discharge if he attempted to assist any union in its efforts
to become the collective-bargaining representative of the Re-
spondent’s employees. By such conduct, I conclude, the Re-
spondent violated Section 8(a)(1).
I further find that the Respondent violated the Act when
Bodine, in his speech of September 5, told the employees: “Fi-
nally, if you are threatened or harassed about signing a union
card, I hope you will let us know about it.” As the Respondent
acknowledges on brief, the Board has repeatedly held that an
employer’s request that employees inform it of conduct by
other employees that may include protected union activities
such as soliciting union authorization cards violates Section
8(a)(1).6 This is because what one employee may perceive as
harassment (or a threat, explicit or implicit) may be no more
than vigorous, or repeated, or vigorous and repeated, solicita-
tions. Such solicitations are generally protected by the Act, but
they would necessarily be discouraged by requests such as
Bodine’s.
On brief, the Respondent attempts to excuse Bodine’s con-
duct by arguing that employers are sometimes held liable under
Title VII for creating a hostile work environment when em-
ployees engage in sexual or racially based harassment of other
employees. The Respondent argues that Bodine’s request was
consistent with such rulings and consistent with its employee
handbook which encourages the reporting of such types of har-
assment. Bodine’s speech, however, had nothing to do with
employee conduct for which the Respondent may ultimately be
held liable in a court of law. Bodine’s entire delivery was an
antiunion message, and the only type of “harassment” for
which he solicited reports involved the protected activity of
soliciting union authorization cards. Accordingly, I conclude
that, by requesting employees to report attempts by other em-
ployees to solicit union authorization cards on behalf of the
Union, the Respondent violated Section 8(a)(1).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended7

5 Overfelt also testified that he and Sears had been friends. Of
course, that Sears and Overfelt may once have been friends is not a
consideration. For example, in Haines Hosiery, 219 NLRB 338 (1975),
the Board specifically rejected the administrative law judge’s dismissal
of an 8(a)(1) allegation on the basis of “the longstanding and friendly
work relationship” between the threatening supervisor and the em-
ployee.
6 See, for example, Arcata Graphics, 304 NLRB 541 (1991), and
cases cited infra.
7 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.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 194
ORDER
The Respondent, Bloomington-Normal Seating Co., Normal,
Illinois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with discharge if they become
or remain members of a labor organization or if they give any
assistance or support to a labor organization.
(b) Requesting or instructing its employees to report attempts
by other employees to solicit union authorization cards on be-
half of Local 362, Laborers’ International Union of North
America, AFL–CIO.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
to 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 its
Normal, Illinois facility copies of the attached notice marked
“Appendix.”8 Copies of the notice, on forms provided by the

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
director for Subregion 33, after being signed by the Respon-
dent’s authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent 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 Re-
spondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since September 5, 2001, the approximate date of the
first unfair labor practice found herein.
(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
Respondent has taken to comply.

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”