BRC Injected Rubber Products

National Labor Relations Board - Board Decisions

May 18, 1993

311 N.L.R.B. 66 (N.L.R.B. 1993)

66
311 NLRB No. 13
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel and the Respondent have excepted to some
of the judge’s credibility findings. The Board’s established policy is
not to overrule an administrative law judge’s credibility resolutions
unless the clear preponderance of all the relevant evidence convinces
us that they are incorrect. Standard Dry Wall Products, 91 NLRB
544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
2 The judge found that the Respondent’s refusal to rehire Sharon
Angelo violated Sec. 8(a)(3) of the Act. The Respondent contended
that its refusal to rehire Angelo was pursuant to a change in its rehir-
ing policy, instituted shortly before Angelo quit in September 1989,
whereby it no longer rehired employees who had quit or who had
been terminated with a high number of points for attendance infrac-
tions. The judge rejected this contention as pretext. In its exceptions,
as proof of its policy and the policy’s application to Angelo, the Re-
spondent cites to eight individuals who it says were all denied reem-
ployment based on the new rehire policy. It particularly notes two
of those individuals who were rejected before Angelo quit and be-
fore she was denied rehire. We find no merit in the Respondent’s
contention. The relevant documents supplied by the Respondent do
not indicate that these employees were not rehired because of their
earlier attendance problems. While the Respondent’s corporate direc-
tor of personnel, Maher, testified to that effect, the judge considered
him to be a generally incredible witness. See, e.g., fn. 18 of the
judge’s decision.
3 The judge found that the Respondent violated Sec. 8(a)(3) by as-
signing more arduous and onerous work to Cheryl Hitchcock and
Rodney Williams. They were assigned to clean the pits, which is ac-
knowledged to be a dirty and messy job, and any employees as-
signed to that job can expect to become quite dirty. As a result of
the assignment, Hitchcock’s shirt and all of her other clothes were
ruined. The General Counsel seeks a make-whole remedy of mone-
tary reimbursement for the loss of Hitchcock’s clothes and we shall
grant that remedy since her loss was the direct result of the Re-
spondent’s illegal conduct of assigning her to clean the pits.
4 We would grant the General Counsel’s exception to the judge’s
failure to recommend a remedy for his finding that the Respondent
maintained, and applied to employee Rodney Williams, a ‘‘rule pro-
hibiting solicitation on ‘company time’’’ that is ‘‘invalid’’ because
it is unlawfully overbroad. New Process Co., 290 NLRB 704, 708
(1988); Our Way, Inc., 268 NLRB 394 (1983). We note that al-
though such a violation was not alleged in the complaint, it was liti-
gated and argued by the parties in their briefs to the judge. The Re-
spondent has not excepted to the judge’s finding concerning the rule,
and the cease-and-desist remedy sought by the General Counsel is
an appropriate remedy for such a violation.
BRC Injected Rubber Products, Inc. and United
Electrical, Radio and Machine Workers of
America, (UE). Cases 25–CA–20287 (amended)
and 25–CA–20346
May 18, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On October 30, 1991, Administrative Law Judge
Irwin Kaplan issued the attached decision. The Re-
spondent and General Counsel filed exceptions and
supporting briefs.
The National Labor Relations Board had 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 de-
cided to affirm the judge’s rulings,1 findings,2 and con-
clusions,3 and to adopt the recommended Order,4 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, BRC
Injected Rubber Products, Inc., Churubusco, Indiana,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Insert the following as paragraph 1(a) and reletter
the subsequent paragraphs.
‘‘(a) Maintaining and applying a rule prohibiting so-
licitation on company time.’’
2. Insert the following as paragraph 2(b) and reletter
the subsequent paragraphs.
‘‘(b) Make whole Cheryl Hitchcock for the loss of
the clothes she ruined as a direct result of the Re-
spondent’s illegal assignment to her of more arduous
and onerous work because of her union activities.’’
3. Substitute the attached notice for that of the ad-
ministrative 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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT maintain and apply a rule prohibiting
solicitation on company time.
WE WILL NOT fail and refuse to rehire Sharon An-
gelo because of her activities on behalf of United Elec-
trical, Radio and Machine Workers of America, (UE).
WE WILL NOT discriminatorily assign more arduous
and onerous work to employees because of their union
activities.
WE WILL NOT confiscate union material from em-
ployees, coercively interrogate them, or engage in sur-
veillance of their union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the rights
guaranteed them by Section 7 of the Act.
WE WILL offer Sharon Angelo full and immediate
employment to the position she would have held had
she been rehired or, if that job no longer exists, to a
substantially equivalent position, without prejudice to
her seniority or other rights and privileges, and make
her whole for any loss of pay, plus interest, as a result
of our previous unlawful refusal to rehire her.
67BRC INJECTED RUBBER PRODUCTS
1 Unless otherwise noted, the facts as set forth in this section are
either undisputed or credited.
WE WILL make Cheryl Hitchcock whole for the loss
of the clothes she ruined as a direct result of our ille-
gally assigning her more arduous and onerous work
because of her union activities.
WE WILL expunge from our records the unwarranted
written warning we issued to Rodney Williams for en-
gaging in protected solicitations and advise him, in
writing, of our action.
BRC INJECTED RUBBER PRODUCTS, INC.
Walter Steele, Esq., for the General Counsel.
John C. Theisen, Esq. (Gallucci, Hopkins & Theisen), of Fort
Wayne, Indiana, for the Respondent.
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge. This case was
heard on February 6, 7, and 8, 1991, in Fort Wayne, Indiana.
The underlying charges in Case 25–CA–20287 were filed by
the United Electrical, Radio and Machine Workers of Amer-
ica, (UE) (Charging Party or Union) on December 4, 1989.
The Charging Party filed additional charges in Case 25–CA–
20346 on January 8, 1990. On January 9, 1991, the Charging
Party filed amended charges in Case 25–CA–20287. These
charges and amended charges gave rise to an order consoli-
dating cases, complaint and notice of hearing which issued
on February 28, 1990, alleging that BRC Injected Rubber
Products, Inc. (Respondent or BRC) engaged in certain acts
and conduct violative of Section 8(a)(3) and (1) of the Na-
tional Labor Relations Act (the Act).
More particularly, it is alleged in Case 25–CA–20287,
amended, that Respondent violated Section 8(a)(3) of the Act
by issuing on or about October 26, 1989, an unwarranted
written warning to employee Rodney Williams and, on or
about October 26 and November 1, 1989, assigning em-
ployee Cheryl Hitchcock more arduous and onerous terms
and conditions of employment. Further, it is alleged in the
order consolidating cases, that the Respondent additionally
violated Section 8(a)(3) of the Act, by inducing employee
Sharon Angelo to resign her employment on or about Sep-
tember 26, 1989, by promising to rehire her, and by subse-
quently reneging on its promise; and, on or about October
27, 1989, assigning employee Rodney Williams to more ar-
duous and onerous terms of employment.
With regard to independent 8(a)(1) allegations, it is alleged
that Respondent, through various supervisors, violated the
Act by: threatening employees with unspecified reprisals;
threatening a plant closure if employees selected the Union
as their collective-bargaining representative; coercively inter-
rogating employees; warning employees that they would not
be selected for promotion if they openly supported the
Union; and confiscated from an employee a union roster
which, inter alia, represented employee support for higher
wages. These alleged unlawful acts occurred variously over
the months of June through October 1989.
Still further, at the close of the hearing, counsel for the
General Counsel moved over Respondent’s objection to
amend the pleadings to the proof to include, inter alia, an al-
leged admission of unlawful surveillance.
The Respondent filed an answer, admitting, inter alia, ju-
risdictional facts and the supervisory and agency status of
certain individuals but denied that it violated the Act in any
manner. With regard to the various alleged threats, warnings,
and interrogation in violation of Section 8(a)(1) of the Act,
the Respondent contends that the allegations were not en-
compassed by any of the Union’s discrimination charges or
amended charges and are time-barred for consideration under
Section 10(b) of the Act.
Based on the entire record, including my observations of
the demeanor of the witnesses as they testified, and after
careful consideration of the posttrial briefs, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, BRC Injected Rubber Products, Inc., at
all times material, has maintained its principal office and
places of business in the State of Indiana, including a facility
located in Churubusco, Indiana, the focus of the instant alle-
gations. Respondent is essentially a manufacturer or supplier
of rubber products to the automotive industry. In connection
with the aforenoted business operations, the Respondent has,
during the past 12 months, a representative period, sold and
shipped from its Churubusco, Indiana facility products,
goods, and materials valued in excess of $50,000 directly to
points outside the State of Indiana. It is alleged, Respondent
admits, the record supports, and I find that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
It is alleged, but Respondent denied in its answer, that the
United Electrical, Radio and Machine Workers of America,
(UE) is a labor organization within the meaning of the Act.
The Respondent did not address this allegation at the hearing
or in its brief and appears to have abandoned its denial. In
any event, the record disclosed, inter alia, that the Union has
provided employees union authorization cards for member-
ship and collective-bargaining purposes. Moreover, I take no-
tice of the long line of Board cases which have established
the Union as a labor organization for collective-bargaining
purposes. In these circumstances, I find that the Union is a
labor organization within the meaning of Section 2(5) of the
Act, as alleged.
II. THE UNFAIR LABOR PRACTICES
A. Background and Sequence of Events1
The Respondent operates five facilities, all located in
northeastern Indiana and all within approximately a 50-mile
radius of each other. As noted previously, all the allegations
involve only the Respondent’s Churubusco plant. That plant
became operational in May 1985 and has always functioned
on a three-shift basis. At the time of the instant hearing, the
Respondent employed approximately 175 employees at the
Churubusco facility. (Tr. 31.) The employees at that location
have never been represented by a labor organization.
While it appears that some employees at the Churubusco
facility discussed the prospects of union representation as
68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Unless otherwise indicated, all dates refer to 1989.
3 At times, Angelo and Hicks appeared less than forthright, particu-
larly when responding to questions dealing with the Union. While
on balance, for reasons noted infra, I found Angelo more credible
than Hicks, I do not credit all the statements she ascribed to him
about the Union.
4 The attendance policy will be described move fully infra.
5 Angelo’s claim for unemployment was denied by the Indiana De-
partment of Employment and Training Services. That agency con-
cluded: ‘‘The claimant voluntarily left employment without good
cause in connection with the work when she quit available work.’’
(R. Exh. 18.)
early as December 1988, the first indication of an organiza-
tional nature occurred in May 1989 and continued over the
summer months when employees, inter alia, signed union au-
thorization cards, attended union meetings, and distributed
union newsletters at the plant. Former employees Sharon An-
gelo, Rodney Williams, and Cheryl Hitchcock were all active
on behalf of the Union and were allegedly discriminated
against for such activities.
1. Sharon Angelo
Sharon Angelo signed a union authorization card in May
1989.2 In June, Angelo began wearing at work two types of
union buttons: one, the size of a quarter and the other, the
size of a half dollar. Also in June, and over the following
summer months, Angelo gave out union newsletters in the
breakroom at the plant. (See, e.g., G.C. Exhs. 8, 9, 10, and
11.)
According to Angelo, after she started wearing the union
buttons, Supervisor Hance Hicks (he became production
manager in July 1989), on some four different occasions
questioned her about the scheduling of union meetings. Hicks
also asked Angelo to name the employees expected to attend
those meetings. Angelo testified that on one of these occa-
sions, in late June or early July, Hicks told her that if the
Union got in the Company would close its doors. (Tr. 118.)
Hicks denied that he observed Angelo distributing union lit-
erature as well as having any discussion with her about the
Union. He could not recall whether he noticed that Angelo
wore union buttons. (Tr. 776–777.) On the other hand, Hicks
acknowledged that he heard rumors that Angelo was active
for the Union.3 Other high management officials and super-
visors also acknowledged that they knew of union activities
at the plant as early as May or June 1989. (Tr. 388, 435,
460, 505.)
In July or August, Angelo, who was then a class A opera-
tor, applied for an opening for a technician position. Angelo
had no previous experience as a technician and that opening
went to another employee. According to Angelo, a few
weeks later, the Personnel Manager Robert Calahan told her
that if she had not been supporting the Union, she would
have gotten the technician’s job. (Tr. 121.) Calahan denied
making the statement. (Tr. 499–500.) Also in July, according
to Angelo, Corporate Director of Personnel Thomas Maher
asked her when the next union meeting would be conducted
and who was going to be there. At the time, Angelo was in
Maher’s office in connection with some insurance matter.
(Tr. 147–148.) While Maher recalled meeting with Angelo
over an insurance problem, he denied that he ever spoke to
her about the Union. (Tr. 411–412.)
Angelo last worked for Respondent on September 26. Ac-
cording to Angelo, after she had just completed her break
that day, she asked Hicks for permission to leave the plant
early for a job interview at North Star Industries. Hicks as-
sertedly asked Angelo if she was aware that she already had
12-1/2 attendance points (13 points was automatic dismis-
sal)4 and that she could be terminated. Angelo also testified
that Hicks told her that she could use him as a job reference
and reminded her that if the job did not work out she could
always come back. (The Respondent had a history of rehiring
employees previously terminated for poor attendance.) Hicks
assertedly gave Angelo the option of resigning or being ter-
minated and she elected to quit. Hicks’ account was some-
what different.
According to Hicks, he learned from Angelo’s immediate
supervisor, David Baxter, that Angelo was leaving the Com-
pany and he visited with Angelo to confirm what Baxter told
him. Hicks testified that Angelo told him that it was true that
she was leaving and added that she could always come back
to work for the Respondent. To this, Hicks testified that he
merely told Angelo that if she wanted to come back that
she’d have to submit another application. Hicks denied that
he had the authority to hire anyone or that he promised to
rehire anyone.5 (As noted previously, it is alleged, inter alia,
that Hicks induced Angelo to quit by promising to rehire
her.)
As testified by Angelo, she quit her job at North Star In-
dustries after working for that company for only 1 day.
Within days, she called Robert Calahan who assertedly told
her to submit an application. While Calahan was unclear
about the circumstances, he noted at one point in his testi-
mony that he might have indicated to Angelo to come to the
plant to submit her application even though he knew that she
would not be rehired. (Tr. 516.) Angelo testified that she
went to the Churubusco plant that same day with her applica-
tion and met with Calahan. She did not, however, submit her
application at that time. (Tr. 169–170.) According to Angelo,
while in Calahan’s office, Hicks joined them and told
Calahan that the Company was not taking applications and
it was not hiring. Angelo testified that Hicks also noted that
as long as she supported the Union, she would not be re-
hired. (Tr. 140.) Calahan denied that he heard Hicks make
any such statement. As noted previously, Hicks also denied
that he ever spoke to Angelo about the Union.
In early October, Angelo returned to the plant to be reim-
bursed for her eyeglasses which had broken while she was
still employed by BRC. While there, Angelo had a chance
conversation with Director of Personnel Thomas Maher. As
testified by Angelo, Maher asked her how her job hunting
was going and she told him that she wanted to return to
work at BRC. According to Angelo, Maher told her that as
long as she was prounion, she couldn’t get a job. (Tr. 142.)
Maher recalled meeting with Angelo at the plant on only one
occasion after she left the Company and asserted that he
merely said hello to her. He denied saying anything about
the Union to Angelo. (Tr. 410.)
On October 20, Angelo reapplied for employment and this
time submitted a new formal application (R. Exh. 14.) An-
gelo, when asked on cross-examination why she submitted an
application, given her earlier testimony that she was told by
Hicks that the Respondent wasn’t hiring and would not then
take her application responded: ‘‘Because I knew they had
69BRC INJECTED RUBBER PRODUCTS
6 Under this system, employees are charged one point for each day
of absence. However, if an employee calls in sick for 3 days, only
one point is charged. Points and fractions of points are also charged
for tardiness and for leaving work early. (Tr. 54–56.)
7 For reasons discussed infra, I reject this defense as implausible
and pretextual and not supported by credible evidence.
8 The circumstances recited are as credibly testified by Williams.
On the basis of demeanor factors and in other respects, I found Wil-
liams to be a most impressive witness. Thus, I found him to be re-
sponsive, consistent, plausible, and forthright without any apparent
effort to embellish his testimony. In short, I credit his testimony in
all material respects where in conflict with Respondent’s witnesses.
As for Respondent’s witnesses, I found them at times unresponsive,
elusive, vague, inconsistent, and implausible. Some examples will be
noted infra.
a high [employee] turnover rate and I figured they’d prob-
ably be hiring soon.’’ (Tr. 170.)
The Respondent had long had a high employee turnover
rate. It also had long history of rehiring employees, even if
they had been previously discharged. However, the Respond-
ent asserted that insofar as rehiring employees with poor at-
tendance (10 or more points), this policy changed in August,
approximately 1 month before Angelo quit the Company.6
According to Respondent’s witnesses, a controversy over
the rehiring of employee Bill Simkins in August led to a re-
examination and change of its rehiring practices. Maher testi-
fied that Simkins had twice previously worked for the Com-
pany and had a history of poor attendance. When Plant Man-
ager Glen Barlett had come across Simkins’ application, he
told Calahan that he would not want him rehired. According
to Barlett, Simkins had a poor work ethic, was moody, and
had attendance problems. Nonetheless, Simkins was rehired
and when Barlett discovered that he complained to Respond-
ent’s owner and president, Charles Chaffee. The latter di-
rected Maher to investigate why Simkins was rehired over
the plant manager’s objection. In doing so, Maher looked at
employee files and concluded that when the Company re-
hired employees with poor attendance they continued the
same attendance pattern. Thus, he recommended to Chaffee
that they no longer rehire employees who had accumulated
a high number of attendance points at the time of their de-
parture from the Company and this became the new policy.
At the time of Angelo’s departure on September 26, she
had already accumulated 12-1/2 points for attendance infrac-
tions. Under Respondent’s attendance policy, 13 points man-
dated termination. In this connection, on September 21, An-
gelo had received an employee warning notice advising her
that she had already accumulated 12-1/2 points and that ‘‘at
13 points you will be terminated.’’ (R. Exh. 8.)
The Respondent denied that its refusal to rehire Angelo or
anyone else had anything to do with their union activities.
Rather, it contends that Angelo was not rehired consistent
with its new policy of no longer rehiring employees who had
acquired a high number of attendance points.7
2. Rodney Williams
Rodney Williams first worked for Respondent from May
1986 to July 1987. During that period of time, Williams was
primarily a press operator. An operator feeds rubber through
the press which is molded into various automotive parts.
Williams testified that he left the Respondent in July 1987
because he suffered asthma problems (apparently related to
the rubber and the fumes of the press). He was rehired in
November 1987 and remained with the Respondent until he
was terminated in November 1990 for accumulating 13 at-
tendance points. During this second term of Williams’ em-
ployment, he worked variously as a press operator, briefly as
a shipping and receiving clerk, and also from time to time
as a utility employee. (It is not alleged that Williams’ dis-
charge was predicated on his union activities but that he was
assigned more arduous and onerous work as a result of those
activities.)
Williams commenced his union activities in June 1989. He
attended his first union meeting that month on a Saturday
and thereafter on Saturdays about every 2 weeks for nearly
1 year. He was also otherwise engaged in a wide range of
union activities. Thus, commencing in June and over the fol-
lowing summer months, William signed a union card and,
tried to get other employees to join the Union, distributed
union newsletters in the plant breakroom, and wore union
buttons and a union shirt at work. There is no evidence or
allegation to the effect that the Respondent took any retalia-
tory measures against Williams for his union or any other
protected concerted activities until October 1989.
As noted previously, the Respondent knew that its employ-
ees were engaged in union activities as early as May or June
1989. In this connection, either in May or June, at a meeting
of supervisors and technicians, Maher discussed the union
situation and distributed to those in attendance a ‘‘Super-
visor’s Guide’’ which noted, inter alia, what supervisors are
permitted to do and what they cannot do with regard to
union activities. (R. Exh. 37; Tr. 388.) By letter dated Octo-
ber 24, 1989, to Respondent’s president, Charles Chaffee,
Union Field Organizer Kimberly Lawson referred to the then
ongoing union organizational campaign and, inter alia, de-
manded that Respondent ‘‘increase the pay rate for all your
production and maintenance workers by a minimum of $1.00
per hour.’’ (G.C. Exh. 14.) On October 26, Williams cir-
culated a roster at the plant to get employees to sign up to
picket in front of the Chamber of Commerce building and to
hold a press conference demanding a $1 an hour more in
wages. (Tr. 248–249; G.C. Exh. 3.) It is alleged that on Oc-
tober 27, Williams was assigned arduous and onerous work
as a result of these activities. The circumstances dealing with
these activities are as follows.
On the morning of October 26, Williams solicited and ob-
tained a few signatures on the aforenoted roster in the
breakroom at the plant just before his shift was to begin.
Williams testified that a few employees told him to wait until
later in the day. One of them, Cheryl Hitchcock, told Wil-
liams that if he would meet her at her press she would sign
the roster. This was done around noon. Around that time
Williams gave Hitchcock the roster and relieved her as the
operator on the press so that Hitchcock could go to the rest-
room. On that occasion, Williams was employed as a utility
person and in that capacity his responsibilities included re-
lieving the press operators on restroom breaks. Hitchcock
signed the roster, folded it, and stuck it in Williams’ back
pocket. This was observed by Production Manager Hicks
who was standing nearby.
Hicks motioned Williams to go into Supervisor Dave Bax-
ter’s office.8 There, Hicks and Baxter obtained the roster
70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 The record disclosed that memorializing the incident in this fash-
ion is a departure from past practice. Under Respondent’s printed
guidelines, employees receive only a verbal warning for an initial in-
fraction. (G.C. Exh. 2 at p. 2.) As testified by Maher, ‘‘[N]ow that
I look back up on it, we shouldn’t have given him the warning.’’
(Tr. 51.)
10 The record disclosed that the pits were normally cleaned on Sat-
urdays and often by volunteers who wanted overtime work. Accord-
ing to Plant Manager Glen Barlett, while the pits were generally
cleaned on Saturdays, one general utility employee, Marvin Cardin,
performed such work, when needed, during the week. However,
Barlett also testified that the responsibilities of the utility position,
only to a ‘‘very minor extent,’’ involved cleaning the pits. (Tr. 555.)
11 Apparently Kaauwai, an admitted statutory supervisor and agent
quit in August 1989. (Tr. 285.) Kaauwai did not testify and no ex-
planation was made for the failure to call him as a witness.
12 A few days after Kien signed the roster he had second thoughts
and went to Maher to tell him about his concerns. He told Maher
that Williams had passed the roster around on the production floor
and that he didn’t really know what he was signing. It is not alleged
nor does the record reveal any misconduct directed at Kien. The Re-
spondent had Kien testify as its witness.
from Williams and looked at it. Hicks decided that Maher
should become involved and instructed Baxter and Williams
to accompany him into Maher’s office. Once inside, Hicks
handed the roster to Maher who then examined the docu-
ment. Maher gave Williams a verbal written warning and
cautioned him that he faced discipline and possibly termi-
nation if he engaged in such activities again. Further, Maher
told Williams that he would place a note in his file. The note
read as follows:
Rodney Williams was observed passing a petition
around for signature [sic] during working hours. He
was told that he could not do that on company time.
He was given a verbal warning. He was told next time,
it would be a written warning. He said he understood.9
[R. Exh. 42.]
The following day, Friday, October 27, Hicks assigned
Williams to clean a press pit for the first time. The pits accu-
mulate debris and waste oil from the presses. To clean up
involves the use of such tools as rakes and hydraulic pumps
and as a result, employees become quite dirty. At the time
of the assignment, Williams was a utility employee. In that
capacity his responsibilities were mainly to supply the pro-
duction line with sufficient rubber and metal to keep the
presses operating and also to relieve the operators at their
presses during restroom breaks. (Tr. 239; 555–556.) Williams
told Hicks that his responsibilities in utility did not include
the pits but the latter disagreed. Williams cleaned the pits on
that occasion as instructed.10 That same day, Cheryl Hitch-
cock was also assigned cleanup work in the pits for the first
time.
3. Cheryl Hitchcock
Cheryl Hitchcock was employed by the Respondent from
April 1989 to February 1990 at which time she quit. She was
promoted from press helper to press operator in July 1989
and worked in that latter capacity until she left the Company.
Hitchcock actively and openly supported the Union. Thus,
during the summer months she wore a union shirt and union
buttons at work and attended union meetings. She testified
credibly and without contradiction that on a number of occa-
sions during June, July, and August 1989, she was ques-
tioned about the Union by then-Supervisor Sam Kaauwai.11
As testified by Hitchcock, Kaauwai generally questioned her
on Mondays, after the Saturday union meetings were held.
Kaauwai asked Hitchock on those occasions whether she had
attended the union meetings and what she hoped to gain for
her union support. On one occasion in late June or early
July, Kaauwai noticed that Hitchcock was wearing a union
button and declared: ‘‘Well, you know, there’ll be hell to
pay.’’
As noted previously, Hitchcock was involved in the roster
incident with Williams on October 26. Hitchcock also signed
the roster that day signifying that she would join other em-
ployees on Sunday, October 29, in publicizing their demands
for higher wages and better working conditions. (G.C. Exh.
3; Tr. 290–291.) Hitchcock was assigned to clean the pits for
the first time (as had Williams), on Friday, October 27, the
day after the roster incident.
On the day Hitchcock was assigned to the pits, she wore
a new union shirt which contained the printed words ‘‘our
wages are out of the stone age’’ or words similar thereto and
identified the union organizing committee. (Tr. 294.) Hicks,
who made the assignment, noted that Hitchcock was wearing
a new shirt and asked her about the printed words which she
explained. That day, Hitchcock and employee Fred Kien,
also a press operator, were assigned to clean pit 306. Kien
had also signed the roster.12
As testified by former Plant Manager Glen Barlett, pit 306
was particularly difficult to clean due to an oil leak. Thus,
Hitchcock and Kien had to dig out between 100 and 150
pounds of sticky rubber and other parts which had fallen into
the pit. (Tr. 559.) In doing so, Hitchcock became quite dirty
and ruined her clothes. At one point, Hitchcock told Hicks,
who had come by to inspect, that she had cleaned the pit as
best she could but Hicks wasn’t satisfied. Hicks told Hitch-
cock that the pit was not clean enough and that he would
hate to see her ruin her clothes on Monday. Hicks also noted
that he could no longer read the writing on Hitchcock’s
union shirt. Barlett and Hicks discussed the condition of
Hitchcock’s clothes and decided to get her a change of cloth-
ing from Hicks’ home. Barlett testified that the Company has
paper overalls and ‘‘chastised [himself] for not thinking of
them earlier.’’ (Tr. 568.)
That same day, Hitchcock complained to Hicks, without
any satisfaction, that she was getting sick from the smell and
she had also cut her hand on a piece of metal which required
a tetanus shot. Approximately 1 or 2 weeks later, Hitchcock
was assigned to clean the pits a second time. Again, this as-
signment was during the week but this time Supervisor Bax-
ter provided Hitchcock with plastic paper coveralls to wear
over her clothes.
B. Discussion and Conclusions
1. Sharon Angelo
a. Inducing Angelo to quit
It is alleged that on or about September 26, 1989, the Re-
spondent induced Angelo to resign by promising to rehire
her and that the Respondent, in essence, reneged on its prom-
ise in violation of Section 8(a)(3) of the Act.
71BRC INJECTED RUBBER PRODUCTS
13 Under Respondent’s printed rules, inter alia, an employee is
charged ‘‘[o]ne point for leaving work early by more than 30 min-
utes, with permission.’’ (G.C. Exh. 2, at p. 3, emphasis supplied.)
14 While the Respondent asserted that this policy changed in Au-
gust (Angelo quit in September), the so-called new policy had not
been communicated to employees.
15 Angelo also testified that she had been job hunting for weeks
because employee Kien had been ‘‘bothering me so much.’’ (Tr.
134–135.)
16 The subject of surveillance was raised in the first instance by
the Respondent. Maher responded affirmatively when asked on direct
examination whether he had engaged in surveillance. (Tr. 425.) The
General Counsel did not then amend the consolidated complaint but
waited until the end of the hearing, after all witnesses had testified,
to include this allegation in moving to amend the pleadings to the
proof. While I expressed displeasure at the General Counsel for
using this procedure to include a substantive matter and for not mov-
ing earlier, I find after considering the total circumstances that it is
appropriate to consider the issue on its merits. In doing so, I have
noted particularly that the subject is closely related to other allega-
tions (see fn. 17 below); that there as no element of surprise as the
Respondent introduced the subject; and, that the Respondent was
given an additional opportunity to meet this allegation but declined
noting that there is no dispute as to what occurred. See American
Stores Parking Co., 277 NLRB 1656–1657 (1986).
The record disclosed that Angelo made arrangements to be
interviewed for a job on September 26, 1989, at North Star
Industries before she discussed her employment prospects
elsewhere with any of Respondent’s officials. On September
26, Angelo told Production Manager Hicks about her job
interview and asked for permission to leave early. Angelo
testified that Hicks asked her whether she was aware that she
had accumulated 12-1/2 attendance points and that she faced
termination by reaching 13 points if she left early.13 Hicks
gave Angelo the option to resign, which the latter elected to
do. According to Angelo, Hicks also told her that if the new
job does not work out, she could always come back.
Hicks, on the other hand, testified that he learned that An-
gelo was quitting and asked her to confirm that report. When
she did, Hicks told her that he was happy for her. However,
contrary to Angelo’s testimony, Hicks asserted that it was
Angelo who stated that she could always come back. Ac-
cording to Hicks, he merely told Angelo that if she wanted
to come back she had to submit a new application.
It is noted that Angelo was aware that she had 12-1/2
points on September 26 and faced automatic discharge over
her next attendance infraction. (Tr. 178–179.) Only 5 days
earlier Angelo had received a written warning to that effect.
(R. Exh. 8.)
Angelo denied that the number of attendance points had
anything to do with her decision to resign. However, on the
state of this record, I am far from persuaded that her decision
to resign in whole or in part was predicated on any promise
or inducement Hicks assertedly made. Thus, it is noted, inter
alia, that in Angelo’s first affidavit given to the Board agent
back in December 1989, she ascribed reasons for her deci-
sion unrelated to Hicks’ alleged inducement as the basis for
her decision to quit. There in pertinent part, Angelo stated
as follows:
I decided that between being on press 208 and 103
and the Company permitting [employee] Kien to harass
me, it was just hard on me, so I quit. [Tr. 153–154.]
Here, the record is devoid of any showing that Angelo ac-
tually relied on Hicks’ alleged inducement. As far as Angelo
and other employees were aware, the Respondent at that time
had a liberal policy of rehiring former employees, even if
previously discharged for poor attendance.14
On the basis of the foregoing and noting particularly that
Angelo had already decided to quit15 and had made arrange-
ments for a job interview before she spoke to Hicks, I find
that the General Counsel had not established a prima facie
that Respondent induced Angelo to quit as alleged. Accord-
ingly, I shall recommend that this allegation be dismissed.
b. The failure to rehire Angelo
Angelo quit her new job at North Star Enterprises on Oc-
tober 2, 1989. (R. Exh. 19.) Soon after, she contacted
Calahan about returning to work for Respondent and was
told to submit another application. (Tr. 139, 515–517.) An-
gelo formerly reapplied on October 20. (R. Exh. 19.)
According to Respondent, Angelo was not rehired because
she had accumulated too many points for poor attendance
and that since August 1989, its policy was to no longer re-
hire such employees. The General Counsel contends, the
record supports, and I find that the Respondent seized on this
so-called new policy as a pretext to avoid rehiring Angelo
for discriminatory reasons.
The record disclosed that Angelo was a longtime openly
active union supporter and the Respondent had knowledge
thereof. Hicks testified that employee Richard Bowlin told
him that some union supporters, including Angelo, had come
to his house. (Tr. 775–776.) As noted previously, Angelo
wore a union shirt and union buttons at work and handed out
union newsletters at the Churubusco facility. Maher acknowl-
edged that he saw these newsletters whenever he’d go to the
breakroom for soda and on other occasions when supervisors
gave him copies. As early as May or June, Maher told his
supervisors that he wanted to be informed of these union ac-
tivities. (Tr. 427–428.)
Apparently, Maher wasn’t merely satisfied with informa-
tion provided by his supervisors but had to investigate some
of these activities more closely. Thus, Maher testified that
one Saturday morning in early May or June 1989, while
driving to work, he stopped to drive through the parking lot
at the Signature Inn. Maher knew that a union meeting was
then scheduled at that location because he read one of the
Union’s newsletters. While Maher asserted that he was in the
parking lot for only a matter of seconds, admittedly, he was
there long enough to spot Sharon Angelo and wave to em-
ployee Willie Pyror. (Tr. 424–428.) When asked why he had
to drive through the parking lot at that time, Maher re-
sponded ‘‘curiosity.’’ In these circumstances, I find that
Maher’s appearance at the signature Inn was not for any le-
gitimate purpose and tantamount to surveillance within the
meaning of Section 8(a)(1).16
Against the aforenoted backdrop, I credit Angelo over
Hicks’ denials that she was interrogated on approximately
four separate occasions during the summer of 1989 about
72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 The Respondent contends that all the independent 8(a)(1) allega-
tions are time-barred by Sec. 10(b) and are otherwise jurisdictionally
deficient on the basis that no reference is made to them in any of
the charges or amended charges other than what appears in
boilerplate language on preprinted Board charge forms. However, I
find, that here, unlike the cases relied on by Respondent, the inde-
pendent allegations are ‘‘closely related’’ to the discriminatory alle-
gations and in the context of the same union campaign.’’ See Nickles
Bakery of Indiana, 296 NLRB 927 (1989); cf. Harmony Corp., 301
NLRB 578 (1991). (No factual nexus shown between the alleged in-
terrogation and the Union’s organizational campaign, which com-
menced after the interrogations occurred.)
18 Barlett’s credited testimony on this point is clearly inconsistent
with the testimony of Maher and Chaffee. Maher testified, that
Simkins ‘‘was always a good employee’’ but that Barlett took excep-
tion to rehiring him because of his ‘‘poor attendance.’’ (Tr. 60.)
Chaffee also asserted that Barlett’s objection to Simkins was over at-
tendance. (Tr. 484–485.) I find neither Maher nor Chaffee credible
or reliable in material areas. I also find, as noted infra, that at times
their testimony was inconsistent with each other.
union affairs.17 While under the Board’s decision in
Rossmore House, 269 NLRB 1176 (1984), questioning open
and active union supporters about their union sentiments,
without more, falls short of coercive interrogation; here, the
scope of the inquiries went further. Thus, Hicks not only
asked Angelo about the scheduling of the union meetings but
also inquired of her to name those employees expected to at-
tend. There was nothing casual or isolated about such re-
peated questioning. As noted above, Maher instructed his su-
pervisory staff to report to him about such activities. Another
employee, Cheryl Hitchcock testified credibly, without con-
traction, that admitted Supervisor and Agent Sam Kaauwai
interrogated her on a number of occasions in much the same
manner.
I cannot discern any legitimate purpose to be served by su-
pervisors urging employees, even openly active union sup-
porters, to identify other potential union supporters. See Pak-
Mor Mfg. Co., 214 NLRB 211 (1974). The employees in the
latter group are clearly under no obligation to inform their
employer of their interest in attending union meetings. As for
the openly active union supporters, they risk not only the dis-
pleasure of their employer for their union activity, they also
risk being perceived as uncooperative or even insubordinate
by failing or refusing to identify other potential union sup-
porters. As such, and in the total circumstances of this case,
I find such inquiries coercive and violative of Section 8(a)(1)
as alleged.
Having found that Angelo was openly and prominently en-
gaged in union activities which activities were known by Re-
spondent; that Respondent’s animus was revealed, by, inter
alia, repeated acts of interrogation and also by surveillance;
and, noting the timing of Respondent’s refusal to rehire An-
gelo, only weeks after she resigned (a departure from past
rehiring practices), I am persuaded that the General Counsel
has met his initial burden to warrant an inference that
Angelo’s union activities was a factor in Respondent’s dis-
puted action, as required by the Board’s decision in Wright
Line, 251 NLRB 1083, 1089 (1980). This having been ac-
complished, under the Board’s Wright Line test, the burden
now shifts to the Respondent to demonstrate that Angelo
would not have been rehired even in the absence of her
union activities. (Id.)
According to Respondent, in August 1989 and before An-
gelo quit, it changed its rehiring policy to no longer rehire
employees who quit or who were terminated with a high
number of points for attendance infractions. Maher consid-
ered approximately 7 to 10 or more points in the high range
during any calendar year. When Angelo resigned on Septem-
ber 26, she had already accumulated 12-1/2 points for the
calendar year. In these circumstances, if I were to find that
the Respondent changed its policy for legitimate business
reasons unrelated to union activities, I would also find for
the Respondent on the merits. The record, however, for rea-
sons noted below persuade me otherwise.
It is undisputed that until Respondent assertedly changed
its rehiring policy in August, it had long maintained a liberal
policy toward rehiring employees with virtually no regard to
whether they had previously accumulated a high number of
attendance points. Maher testified that he recommended the
change in policy after he examined employee records dis-
closing that employees with high attendance points continued
the same pattern of poor attendance after they were rehired.
The record, however, disclosed a number of factors tending
to cast doubt on the timeliness of or legitimacy of that deci-
sion, to wit, that it was not reached in a context free of
antiunion considerations.
The credible evidence disclosed that the incident which led
to Maher’s investigation and changed policy had virtually
nothing to do with employee attendance problems. The inci-
dent involved the rehiring of employee Bill Simkins. Shortly
before Simkins was rehired, then Plant Manager Glen Barlett
informed his personnel manager, Robert Calahan, that he did
not want Simkins rehired. Barlett found Simkins’ ‘‘work
ethic’’ deficient. (Tr. 529.) In this connection Barlett noted
that Simkins’ work performance was ‘‘erratic’’ and that he
was ‘‘moody.’’ (Tr. 529–530.) Significantly, Barlett opined
‘‘I don’t believe Bill Simkins had a [sic] absentee problem.’’
(Tr. 537.) At another point Barlett testified ‘‘I don’t know
any way to relate the Bill Simkins incident with the [new]
attendance policy.’’18 (Tr. 546.)
In August, notwithstanding Barlett’s opposition to
Simkins, the latter was rehired. When Barlett discovered this,
he complained to Chaffee that he was undermined by
Calahan. Chaffee instructed Maher to investigate the cir-
cumstances. Maher, for his part, did not present any plausible
explanation for linking the Simkins incident with his decision
to change the attendance policy. As noted above, the Simkins
incident involved a dispute between Calahan and Barlett over
the rehiring of Simkins and had nothing to do with Simkins’
attendance. In these circumstances, I find that the Respondent
seized on the Simkins’ incident as a pretext to justify a be-
lated or illusory policy as a defense to its refusal to rehire
Angelo. As such, it clearly reflects adversely on Respond-
ent’s motivation. The Board has long observed ‘‘A pretextual
reason supports an inference of an unlawful one.’’ Keller
Mfg. Co., 237 NLRB 712, 717 (1978).
Also militating against the bona fides of the attendance
policy in question is Maher’s vague, largely undocumented,
and conclusionary testimony regarding his investigation.
While Maher maintained that he arrived at his decision for
a new attendance policy after examining employee files, I
question the bona fides of such an investigation when Maher
only found three or four such files to support his conclusion.
(Tr. 64.)
73BRC INJECTED RUBBER PRODUCTS
19 According to former Personnel Manager Calahan, at some un-
specified time, the new policy was also extended to short-term em-
ployees. (Tr. 507.) The Respondent did not offer any explanation or
otherwise address Calahan’s testimony in this regard.
20 Chaffee, contrary to Maher, denied that the subject of the NLRB
charge came up in the discussion over the rehiring of Geiger. (Tr.
482.) As noted previously, Respondent’s witnesses have testified in-
consistently in a number of material areas. As such, it tends to re-
flect adversely on Respondent’s overall defenses.
Further, the record disclosed that the Respondent rehired
some employees after the so-called new policy went into ef-
fect notwithstanding that they were terminated for poor at-
tendance. According to Maher, these employees were short-
term or 90-day probationary employees and during their ori-
entation period they might have had ‘‘bad luck’’ or had they
been fully familiar with company rules some of their points
might have been excused or removed. Here too, I find little
basis to accept Maher’s explanation or distinction between
long-term (more than 6 months) and short-term employees as
plausible. Thus, I fail to discern why short-term employees
are more likely to experience a run of bad luck rather than
long-term employees.19 In short, I reject Maher’s explanation
for distinguishing short-term from long-term employees.
While Respondent defends its refusal to rehire Angelo on
the basis of its changed attendance policy, there is little pro-
bative or documentary evidence to support this position. The
new policy was never memorialized nor were employees
ever informed otherwise about changes in rehiring relative to
attendance.
Further, I find that the record is devoid of any credible
evidence that even the supervisory staff had been made
aware of the changed policy at any time before Angelo re-
signed. If they were, they apparently did not perceive the
new policy as firm or definitive. It is noted, for example, that
although long-time employee Rodney Williams was termi-
nated in November 1990 for having accumulated 13 points
for absenteeism and lateness, his supervisor, Arlene Halsey,
recommended that he be reemployed. (R. Exh. 51, last page.)
While Halsey testified that at some point Maher informed her
of the changed attendance policy, she could not recall when
she was so informed. Even Personnel Manager Calahan was
uncertain whether the new policy was in effect at the time
Angelo reapplied. (Tr. 509.) Both Calahan and Hicks ac-
knowledged telling Angelo that she had to submit a new ap-
plication if she wanted to be rehired. (Tr. 516–517; 775.)
Neither pointed out to her that under the new policy, she
would not be rehired. Calahan, when asked why he hadn’t
told Angelo, was at a loss to explain. (Tr. 517.)
I find that the circumstances involving the rehiring of
Richard Geiger in July 1990 are particularly revealing on the
question of pretext given the lengths that Maher undertook
to protect his decision not to rehire Angelo. Geiger not only
had Plant Manager Barlett’s endorsement but also Respond-
ent’s president and owner, Charles Chaffee, wanted Geiger
rehired (notwithstanding the high number of attendance
points Geiger had when he last worked for Respondent).
Maher acknowledged that Barlett told him that Geiger was
the best operator in the history of the Company. (Tr. 333.)
However, Maher prevailed over Barlett and Chaffee. In doing
so, Maher testified that he had to remind Chaffee of the
changes in the attendance policy and persuade him that it
would not be wise to rehire Geiger in the face of the Board
complaint.20 (Tr. 430, 456.)
On the basis of the foregoing and on the entire state of
the record, I find that the bona fides of a legitimate business
decision untainted by union considerations have not been
shown. Thus, I find that the Respondent failed to meet its
Wright Line burden by demonstrating that it would not have
rehired Angelo even absent her union activities. Accordingly,
I find that Respondent refused to rehire Angelo in violation
of Section 8(a)(3) and (1) as alleged.
2. The roster incident; the no-solicitation rule; and
assigning pit work to Cheryl Hitchcock and
Rodney Williams
a. Events leading up to the pit assignments
By letter dated October 24, 1989, the Union put the Re-
spondent on formal notice of its organizational campaign and
demanded $1-an-hour increase on behalf of the employees.
(G.C. Exh. 14.) The credited testimony (see fn. 8) disclosed
that on the morning of October 26, in the breakroom before
work began, Rodney Williams solicited signatures from em-
ployees on a roster indicating their willingness to publicize
at a press conference the Union’s demand of $1-an-hour in-
crease. (G.C. Exh. 3.) Hitchcock and a few other employees
told Williams to visit them later in the day about signing the
roster.
Around 1 p.m. (the employees do not have a lunch period)
Williams, a utility employee at that time, relieved Hitchcock
at her press for a restroom break and also gave her the ros-
ter. Hitchcock signed the roster, folded it, and tucked it into
Williams’ back pocket. This was observed by Production
Manager Hance Hicks who motioned Williams to go to Su-
pervisor Baxter’s office. Williams was made to hand over the
roster to Hicks. After Hicks and Baxter looked at the docu-
ment, they had Williams accompany them to Maher’s office
where Hicks handed Maher the roster.
Maher told Williams that he should not have engaged in
such activities on company time. He also gave Williams a
‘‘written verbal warning’’ and cautioned him that if he en-
gaged in such activities again he faced further disciplinary
action and possible termination. Williams started to ask for
his roster but Maher did not want to discuss the matter fur-
ther and directed Williams to return to work. Later that day
Maher noted in writing that he warned Williams that he
could not engage in such activities on ‘‘company time.’’
According to Respondent, Williams, in violation of the
Company’s no-solicitation policy, improperly solicited ‘‘sig-
natures on a union roster while he was on work time from
other employees during their work time and in work areas.’’
(R. Br. at 38.) If, indeed, the Respondent had such a rule,
such prohibition would be presumptively valid. Our Way,
Inc., 268 NLRB 394 (1983). Here, however, the record dis-
closed that the Respondent promulgated a much broader rule
which was selectively enforced. On this latter point, the
record revealed that the Respondent permitted employees at
their work stations, inter alia, to sell candy, Girl Scout cook-
ies, Avon products, and solicit signatures for the softball
team and birthday and sympathy cards, with virtually no
credible or probative evidence of ever invoking discipline.
The Respondent does not have any written rule dealing with
74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Employee Rosemary Dunbar testified that she saw Williams and
Hitchcock clean the pits before the roster event. At times Dunbar re-
sponded with the less than positive phrase by saying ‘‘it seemed to
me’’ and at other times she was unsure. Thus, when asked to give
a time frame for the roster event, Dunbar replied ‘‘It seemed like
it was in the summer [actually it was late October].’’ She did not
appear to testify with conviction. In short, I did not find her to be
a reliable witness.
the subject of no-solicitation. According to Maher, employ-
ees only learn of the rule if they happened to be observed
violating it, at which time they are informed that they cannot
solicit on company time. (Tr. 34–35.)
Clearly, the Respondent’s rule is overly broad. While it
appears that Respondent has permitted solicitation in the
breakroom, there is no showing that it is permitted anywhere
else. Thus, an employee leaving his or press for a restroom
break is ostensibly covered under Respondent’s company-
time rule because it limits solicitation only to the break room
area. In the circumstance of this case, I find that the rule pro-
hibiting solicitation on ‘‘company time’’ is invalid. See New
Process Co., 290 NLRB 704, 708 (1988); Gemco, 271
NLRB 1190 (1984).
Having found that Williams did not violate any valid com-
pany rule, I find that the Respondent treated him disparately
without justification by issuing him a written verbal warning
for engaging in protected activities. Similarly, I find that
Maher had no legally sufficient basis to retain the roster and
his doing so is tantamount to unlawful confiscation, as al-
leged. See, e.g., Photo-Sonics, Inc., 254 NLRB 567 (1981).
b. Assigning Hitchcock and Williams pit work
The record disclosed that Williams and Hitchcock openly
displayed their support for the Union and that their union ac-
tivities were well known to Respondent. Having found that
the Respondent discriminatorily refused to rehire Angelo
within the meaning of Section 8(a)(3) and noting the re-
peated acts of interrogation and admitted surveillance by
Maher, I further find that the record clearly supports an in-
ference of animus on the part of Respondent. The only other
element necessary to establish a prima facie case is timing.
The disputed pit assignments were made 1 day after the ros-
ter incident. Such timing in the circumstances of this case
persuade me that the General Counsel has satisfied his
Wright Line burden.
As noted above, Williams solicited Hitchcock’s signature
on the union roster. As a result, Maher unlawfully issued
Williams a verbal written warning, a departure from past
practice. The credited testimony disclosed that the next day,
Friday, October 27, Williams and Hitchcock were assigned
to clean the pits for the first time.
Pit cleaning is uniformly acknowledged to be a dirty
messy job although the degree of difficulty depends on the
amount of debris and waste oil accumulated from the press.
In any event, any employee assigned to clean the pits can ex-
pect to become quite dirty. It is alleged, the record supports,
and I find that Williams and Hitchcock were assigned more
arduous and onerous work when made to clean the pits.
The record disclosed that the great majority of the time the
pits were cleaned only on Saturdays and generally by em-
ployees who volunteered to overtime work or by a mainte-
nance crew. It was understood that any employee volunteer-
ing to work Saturday overtime could be assigned to do most
anything including cleaning the pits. The disputed assign-
ments to Williams and Hitchcock were not made on a Satur-
day but on a Friday (1 day after the roster incident).
According to the Respondent, overtime work had been
curtailed during the time in question which dictated that pit
assignments be made during the week. As noted previously,
I have found Respondent’s witnesses generally elusive,
conclusionary, and unreliable, and I find no basis to accept
their testimony as credible regarding overtime. With regard
to the documentary evidence introduced by Respondent, I
find it at best ambiguous. For example, in evidence is a doc-
ument dated October 20, 1989, containing written instruc-
tions on overtime from Production Manager Hance Hicks.
Presumably, Hicks would best be able to elucidate regarding
his written instructions but was not asked anything about the
exhibit. The first item thereon declared ‘‘Stop Overtime!!’’
and immediately underneath were overtime instructions for
the weekend. (R. Exh. 40.) Without more, I find no basis to
read this exhibit as intending to stop overtime for the week-
end of October 28. In these circumstances, I find that the Re-
spondent has not demonstrated that the weekday assignments
to Williams and Hitchcock had anything to do with a drop
in overtime.
The Respondent also defended the disputed weekly assign-
ments on the basis that such assignments are not uncommon.
Again, I find that with regard to this contention, as with
much of the testimony adduced from Respondent’s witnesses,
that it was largely conclusionary, exaggerated, vague, confus-
ing, and inconsistent. Former Plant Manager Barlett’s testi-
mony is a case-in-point. Barlett testified that at one point in
1989 the Respondent was so busy that the press operators
had to keep the presses going ‘‘at all costs’’ and could not
be assigned any other work including pit work. Significantly,
Barlett also testified that the ‘‘practice’’ of not having press
operators clean the pits during the week ‘‘never really
changed.’’ Yet, a moment later, in response to a leading
question, Barlett retreated from this position to indicate that
the practice had changed during the second half of 1989. (Tr.
554–555.)
Williams, a utility employee at the time of the disputed as-
signment, objected to Hicks on the basis that pit work is not
utility work. I find ample support for this position on the
record. For example, Williams’ immediate supervisor, David
Baxter, testified that utility employees are not normally as-
signed pit work during the week. (Tr. 727.) Further, Barlett
noted that utility employees are involved in pit cleanup work
only to a ‘‘very minor extent.’’ (Tr. 555.)
According to Baxter, as Williams’ immediate supervisor,
if the pits had to be cleaned, the direct assignment should
have come from him even if the decision emanated from
Hicks. However, the credited testimony disclosed that on the
occasion in question, Hicks made the direct assignment. The
legitimacy of the assignment is further discounted in the cir-
cumstances of this case noting that Williams had never pre-
viously cleaned the pits and it was made only 1 day after
his problems with Hicks and Maher over the union roster.
Hicks also assigned pit work to Hitchcock the day after
the roster incident. She too (as Williams) had not previously
been assigned to clean the pits.21 On the day the assignment
was made, Hitchcock wore a union shirt containing the mes-
sage that the employees’ wages are out of the stone ages.
When Hitchcock reported for work that morning, Hicks made
75BRC INJECTED RUBBER PRODUCTS
22 Kien also signed the roster but is not involved as the subject
of any of the allegations. Within days, and after the pit assignment,
Kien went to Maher and told him that he hadn’t read the roster and
didn’t know what he was signing. Kien was elusive and unrespon-
sive as a witness. I did not find him credible.
the observation ‘‘I see you have a new shirt on’’ and asked
Hitchcock to explain the message.
Hitchcock and employee Fred Kien were assigned to clean
pit 306. This particular pit had not been cleaned for a long
time and was extremely messy to clean. For her efforts,
Hitchcock cut her finger on a piece of metal for which she
was belatedly given permission to get a tetanus shot, and her
clothes covered with dirt and oil were ruined. Around 2 p.m.
Hicks came by and scolded Hitchcock for not doing a better
job and threatened to have her work in the pits again on
Monday. He also remarked to Hitchcock that he could no
longer read the writing on her shirt.22 Hicks’ remarks to
Hitchcock are clearly reflective of his animus and I find are
connected to her union activities.
For reasons stated previously, I have found that the Gen-
eral Counsel has satisfied his Wright Line burden. I further
find that the Respondent has failed to adequately explain and
justify its first-time pit assignments to Williams and Hitch-
cock 1 day after the union roster incident. As such, I find
that Respondent has failed to meet its Wright Line burden by
showing that the disputed assignments would have been
made absent the union and other protected activities. In short,
I find that the assignments were made in violation of Section
8(a)(3) and (1) as alleged.
3. Other allegations of threats and coercive statements
Angelo attributed certain coercive statements to Hicks and
Calahan which I do not credit. She testified that Hicks on
two occasions told her that if the Union got in the Respond-
ent would close the plant. Angelo testified that still on an-
other occasion, Hicks told her that as long as she supports
the Union she would not be rehired. In regard to Calahan,
Angelo testified that he told her that because of the Union
she did not get the technician job she wanted.
While I credited Angelo’s testimony about Hicks interro-
gating her, the interrogations were linked to a different frame
of reference or context. Thus, it was noted that soon after the
union campaign commenced Maher admittedly instructed his
supervisors to inform him about union activities. I find it
hardly surprising for a supervisor in carrying out such in-
structions to become overzealous. On the other hand, the
record is devoid of any evidence tending to show that Maher
encouraged his supervisory staff to threaten employees.
As for the statement Angelo ascribed to Calahan regarding
the technician’s position, the record disclosed that Angelo
did not have the requisite qualifications. As such, I find it
highly unlikely and reject the notion that Calahan gratu-
itously confessed to Angelo that she was denied the job be-
cause of her union activities.
While I find that Angelo’s testimony for the most part was
credible and generally consistent with the record, I also find
that when testifying about certain union statements assertedly
made to her she was less than fully forthright. For example,
Angelo had great difficulties in recalling a statement or in-
quiries about the Union made by Maher at a meeting she had
with him over insurance before she left the Company. When
pressed to elucidate, Angelo was vague, equivocal and unre-
sponsive. Subsequently, Angelo indicated that she was un-
sure that Maher spoke to her at all about the Union while
she was still employed. (Tr. 123–127, 142; see also fn. 3
supra.)
Having rejected these allegations, I am still persuaded that
most of Angelo’s testimony is plausible, consistent with the
record, and credible. it has long been observed:
It is no reason for refusing to accept everything that a
witness says, because you do not believe all of it; noth-
ing is more common in all kinds of judicial decisions
than to believe some and not all. [NLRB v. Universal
Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950), revd.
on other grounds 340 U.S. 474 (1951).]
The General Counsel also adduced testimony from em-
ployee Pamala Gordon and Cheryl Hitchcock regarding other
alleged coercive statements made by Hicks and Supervisor
Kaauwai, respectively. Gordon testified that she asked Hicks
if the rumor regarding plant closing if the Union got in was
true. She could not recall whether Hicks responded ‘‘prob-
ably’’ or ‘‘possibly.’’ In any event, I find the circumstances
too limited and vague to sustain the allegation. It is noted
that Gordon’s recollection of the brief exchange was equivo-
cal and lacked conviction. As I have found that Hicks did
not otherwise make a plant-closing statement and noting that
the subject of the Union was first raised by Gordon, I am
unpersuaded that he made any plant closing threat. Accord-
ingly, I shall recommend that this allegation be dismissed.
I also reject the allegation of unspecified reprisals attrib-
uted to Supervisor Kaauwai by Hitchcock. The entire allega-
tion rests on a statement by Kaauwai that ‘‘there’ll be hell
to pay’’ when the latter noticed that Hitchcock was wearing
a union button. Without more, I find this momentary ex-
change far too vague and ambiguous to draw any definitive
connection between union activity and a threat of unspecified
reprisals. In short, I find this allegation without merit and
shall recommend that it be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By failing and refusing to rehire employee Sharon An-
gelo; by issuing a written warning to employee Rodney Wil-
liams on October 26, 1989; and by assigning more arduous
and onerous work to employees Cheryl Hitchcock and Rod-
ney Williams, the Respondent engaged in unfair labor prac-
tices within the meaning of Section 8(a)(3) and (1) of the
Act.
4. By confiscating union material from employees, interro-
gating employees, and engaging in surveillance of employ-
ees’ union activities, the Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. The General Counsel has not established by a prepon-
derance of the credible evidence that the Respondent induced
Sharon Angelo to quit in violation of Section 8(a)(3) and (1)
of the Act.
76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 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.
24 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.’’
7. Other than the independent 8(a)(1) violations noted
above in paragraph 4, the Respondent has not otherwise vio-
lated Section 8(a)(1) of the Act, as alleged.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices within the meaning of the Act, I shall
recommend that it cease and desist therefrom, and to take
certain appropriate action to effectuate the purposes and poli-
cies of the Act.
Having found that the Respondent failed and refused to re-
hire Sharon Angelo in violation of Section 8(a)(3), I shall
recommend that the Respondent offer her immediate and full
employment for the position she would have held absent Re-
spondent’s unlawful discrimination or, if such position no
longer exists, to a substantially equivalent job, without preju-
dice to her seniority and other rights and privileges, and to
make her whole for any loss of earnings suffered as a result
of the discrimination, with backpay computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), with inter-
est to be computed in the manner prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
Having found that the Respondent issued former employee
Rodney Williams an unwarranted written warning in viola-
tion of Section 8(a)(1), I shall recommend that it expunge the
warning from its records and to notify Rodney Williams, in
writing, that it has done so.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended23
ORDER
The Respondent, BRC Injected Rubber Products, Inc.,
Churubusco, Indiana, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to rehire Sharon Angelo because
of her activities on behalf of United Electrical, Radio and
Machine Workers of America, (UE) (the Union).
(b) Discriminatorily assigning employees more arduous
and onerous work because of their union activities.
(c) Confiscating union material from employees, coer-
cively interrogating employees, and engaging in surveillance
of their union activities.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Sharon Angelo full and immediate employment
to the position she would have held had she been rehired or,
if that position no longer exists, to a substantially equivalent
position, without prejudice to her seniority or other rights
and privileges, and make her whole for any loss of pay suf-
fered as a result of the discrimination against her in the man-
ner set forth above in the section entitled ‘‘The Remedy.’’
(b) Expunge from its records the unwarranted written
warning given to Rodney Williams for engaging in protected
solicitations and advise him, in writing, of the action taken.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records
and reports, and all other records necessary to analyze the
amount of backpay and other moneys due under the terms
of this Order.
(d) Post at its facility in Churubusco, Indiana, copies of
the attached notice marked ‘‘Appendix.’’24 Copies of the no-
tice, on forms provided by the Regional Director for Region
25 after being duly signed by a representative of the Re-
spondent, shall be posted immediately upon receipt thereof
and shall be maintained for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken to insure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that those allegations found to be
without merit are dismissed.