Briggs & Stratton Corp.

National Labor Relations Board - Board Decisions

Sep 4, 1979

244 N.L.R.B. 780 (N.L.R.B. 1979)

I)E(CISIONS OF NATIONAL LABOR RELATIONS BOARD
Briggs & Stratton Corporation and International
Union, United Automobile, Aerospace & Agricul-
tural Implement Workers of America (UAW). Case
10 CA 13871
September 4. 1979
DEC(ISION AND ORDER
BY MEMBERS PENEI..O, MURPHY, AND TRUESDALE
On May 11, 1979, Administrative Law Judge J.
Pargen Robertson issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the Charging Party filed a
brief in opposition to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Briggs &
Stratton Corporation, Perry, Georgia, its officers,
agents, successors, and assigns, shall take the action
i Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products. Inc.. 91 NLRB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
In agreeing with the Administrative Law Judge that Respondent's repri-
mand of employee Patricia Scarbrough Murray violated Sec. 8(aX I) of the
Act we specifically reject Respondent's offer of prto-f on the existence of a
no-solicitation rule (presented for the first time in Respondent's post-hearing
brief), as untimely, absent a showing that the evidence was newly discovered
or not previously available. Since the record is devoid of any probative evi-
dence that Murray's alleged actions interfered with efficiency. discipline, or
production and in view of the admission by Personnel Manager William
McGavick that everyone was aware that the reprimand concerned Murray's
comments to other employees about the Union. we find Respondent's repri-
mand to be an unfair labor practice intefering with the exercise of Sec. 7
rights.
2 We have revised pars. I(e) and (f) of the recommended Order to more
closely conform to the findings of the Administrative aw' Judge under the
particular circumstances of this case. We shall also issue a narrow cease-and-
desist order in this proceeding; hence. we shall modify par. I(g) and the
notice.
Since it is unclear whether any written reference to the reprimand of Mur-
ray was placed in her file, we have modified par. 2(a) of the recommended
Order accordingly.
set forth in the said recommended Order, as so modi-
fied:
1. Substitute the following for paragraphs (e), (f),
and (g):
"(e) Prohibiting its employees from discussing any
labor organization with other employees during
working time, absent a valid no-solicitation rule or a
showing that such discussion interfered with produc-
tion.
"(f) Prohibiting its employees from distributing
union literature on company property in nonwork
areas during nonworking time.
"(g) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act."
2. Substitute the following for paragraph 2(a):
"(a) Expunge from its records all references, if any
currently exist, to its reprimand of' Patricia Scar-
brough Murray for her comments to other employees
regarding the Union."
3. Substitute the attached notice for that of' the
Administrative Law Judge.
APPENDIX
NOIICE To EMPLOYEES
POSTED BY ORDI)ER OK THlIE
NATIONAL LABOR RELATIONS BARI
An Agency of the United States Government
After a hearing at which both sides had the opportu-
nity to present their evidence, the National Labor Re-
lations Board has found that we violated the law and
has ordered us to post this notice. We intend to abide
by the following:
Section 7 of the Act gives all employees these
rights:
To organize themselves
To form, join, or help unions
To act together for collective bargaining or
other mutual aid or protection
To bargain collectively through representa-
tives of their own choosing
To refuse to do any or all of these things.
WE WILL NOT, through our supervisors or oth-
erwise, interrogate our employees regarding their
membership, activities, and desires, or the mem-
bership, activities, and desires of other employ-
ees, in International Union, United Automobile,
Aerospace & Agricultural Implement Workers
of America (UAW), or in any other labor organi-
zation.
WE WILL NOI threaten our employees with re-
prisals if they join or engage in activities on be-
half of any labor union.
WE Wll.l. NOI threaten our employees with
244 NLRB No. 112
780
BRIGGS & STRATTON CORPORATION
loss of promotions if they select the above-
named Union. or any other labor union, as their
collective-bargaining representative.
WE WIl.L NOT prohibit our employees from
discussing any labor organization with other em-
ployees during work time absent a valid no-so-
licitation rule or a showing that such discussion
interferes with production.
WE WILL NOT prohibit our employees from
distributing union literature on company prop-
erty in nonwork areas during nonworking time.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed in Section
7 of the Act.
WE WILL expunge from our records all refer-
ences, if any currently exist, to our reprimand of
Patricia Scarbrough Murray for her comments to
other employees regarding the Union.
BRI(;GS & STRArTON CORPORATION
DECISION
SIA.rMENT F01 Tilt CASE
J. PAR(iN RORERISN., Administrative Law Judge: This
case was heard in Perry. Georgia. on February 15, 1979. It
stems from an unfair labor practice charge filed by Interna-
tional Union, United Automobile. Aerospace & Agricul-
tural Implement Workers of America (UAW). on August 4.
1978, and a complaint which issued on September 14, 1978.
and was amended during the hearing on February 15. 1979,
alleging that Briggs & Stratton Corporation herein called
Respondeat), engaged in unfair labor practices within the
meaning of Section 8(a)( 1) of the National Labor Relations
Act (herein called the Act). Respondent denied that it com-
mitted the alleged unfair labor practices.
Upon the entire record, from my observation of the de-
meanor of the witnesses, and having considered post-hear-
ing briefs filed by the Charging Party (herein called the
Union). and Respondent I make the following:
FINDINGS AND CONCLUSIONS
I. COMMERCE
Briggs & Stratton Corporation is a Delaware corporation
with an office and place of business located at Perry. Geor-
gia, where it is engaged in the manufacture of locks and
keys. During the past calendar year, a representative pe-
riod, Respondent's gross volume of business exceeded
$500,000, of which business goods valued in excess of
$50,000 were sold and shipped directly to customers outside
the State of Georgia. I find that Respondent is an employer
engaged in commerce within the meaning of the Act.
II. .ABOR ORGANIZATION
Respondent admits and I find that the Charging Party is
a labor organization as defined in the Act.
ill. tHE AI.I.E(;EI) UNFAIR LAB()R IPRA( rl(f
A. Background
The complaint, as amended, alleges that several viola-
tions of Section 8(a)( 1) of the Act occurred during a union
organizing campaign. The parties stipulated that a petition
was filed in Case 10-RC- 11504 on August 3. 1978. and an
election was held in that case on September 15. 1978. The
evidence regarding the various complaint allegations is as
follows:
(a) Paragraph 7 alleges interrogation:
Wesley Turner, an employee of Respondent, testified to a
conversation he had with Supervisor Alfred Rice outside
the toolroom in April or May 1978. Rice asked Turner.
"why I thought we needed a union." Alfred Rice testified
that he recalled having a conversation with Turner prior to
the election, but his testimony did not include an admission
or a denial of Turner's testimony.
Employee Charles Mickler testified to a conversation
with Supervisor Rice in front of' Rice's office approximatebl
4 months beft)re the election. Mickler testified that he heard
Rice ask employee Kenny Corson "Why he felt it was nec-
essar) to have a union in the plant." When (orson re-
sponded "job security" Rice said "he would hire and fire
who he wanted, union or no union, even if he he could
always find a reason." Rice testified that he did "not neces-
sarilN" recall a conversation with Corson approximate 4
months before the election regarding hiring and firing of
employees. However. Rice admitted, "1 did make a state-
ment to this to some other employees that we got talking
about. you know, hiring and firing of people. and we got
talking about the Union. and I said, ell. it reall, doesn't
make any difference with or without the Union. i a guy
doesn't do his job. you know, he wouldn't have a job."
Based on m_ observation of the testimony of Turner and
Mickler and the fact that although Alfred Rice testified he
did not dens their testimony regarding the alleged interro-
gations, I credit Turner's and Mickler's above-nmentioned
testimony.
(b) Paragraphs 8 and 10 allege promises of promotions
and threat of loss of promotions:
Charles Mickler testified to a conversation with Supervi-
sor Rice in Rice's office approximately 3 months before the
election. Mickler stated:
[Hiejust wanted to have a friendly chat, to have a seat.
it was very casual: he told me that this was off the
record, that we were just talking and he told me that
there was a Union trying to get in the plant. and that
we both knew which side I was on. Then he went on to
tell me that-asked me if I had ever known of any high
Union official that ever went anywhere with the Com-
pa ny.
He also told me that the plant was new, had ust
opened up. and that there was a lot of room for ad-
vancement promotions. and said to me if I kept ms
nose clean I could go places with the Compan.
He also said that the reason he felt that the reason he
felt that the plant in Rochester. New York. had closed
down was because of the Union up there. and that that
was the reason we got all the equipment down here.
781
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rice testified that he recalled a conversation with Mickler 2
or 3 months before the election during which they "might
have come across" the Union or the upcoming election, but
that the Union wa, not the point of a meeting. Rice testi-
fied:
"I think we-in our conversation about the plant,
Briggs and Stratton, the new plant, starting out, and
probably could go back and say, you know, the plant
moved down from Rochester and they wasn't making
any money in Rochester, so they came down to Perry,
and if we couldn't make any money here, it could
probably end up in Taiwan; I mean just using it as a
figure of speech.
Q. Do you recall anything else about that conversa-
tion?
A. I would say that maybe during that time that we
was talking about the plant growing, and that, you
know, if we did our job, kept our nose clean. that we
would-the plant, you know, people would have a
chance for advancement to grow with the plant. And. I
was talking about the people, no individual or any-
thing like that."
In view of Rice's admission that they "might have come
across" the Union during the above-mentioned conversa-
tion and his failure to deny that the conversation occurred
as Mickler testified, I credit Mickler's version.
(c) Paragraphs 9 and II allege threat of reprisals and
prohibiting employees from discussing the Union:
Former employee Patricia Scarbrough Murray testified
to an incident in Personnel Manager William McGavick's
office in early June 1978. Supervisors Hugh Sharp and Jim
Hendrix were present in addition to Murray and McGav-
ick. According to Murray, McGavick told her:
[Y]ou know why you're in the office; I said, no, sir, I
don't; he said, it's because of your conduct and the
way you've been handling yourself out in the assembly
area.
I told him, I said, I'm sorry, I don't know what
you're talking about. He said, well, we've had several
women come to us, complaining that you have been
harassing and threatening them; and, he said, we've
even had one woman quit because of you.
I told him, I said, I still don't know what you're
talking about. I said, I have not threatened or harassed
anyone. I said, I think I know what you mean: and, of
course, he's shaking his finger at me when he's talking.
I said, the only thing I have ever done out on the
floor, is tell the girls when there would be a union
meeting, what time and what place.
He said, well, why is it so many women have come
to us complaining? I said, I don't know, sir; but, I have
not threatened anyone. He said, well, I don't think
seven or eight women, or however many, would con-
spire against you, do you? and, I said, I don't think so,
but, they aren't telling the truth, because I have not
threatened anyone. I said, all I've done is tell them
when there's going to be a Union meeting.
Like I said, he was shaking his finger at me, and he
told me, he said, well, I'll tell you one thing, if you
come back in here Monday. you had better walk a
straight line, or else.
Then he handed me a Kleenex and said. compose
yourself, and I left the office.
McGavick testified substantially in accord with Murray.
However, McGavick testified that he did not recall Murray
mentioning that she had told the other women about union
meetings.
I found McGavick to be a straightforward and candid
witness. Although Murray also appeared to be a truthful
witness I note that she was admittedly upset during the
above-mentioned meeting. Therefore, to the extent that
there are conflicts in their versions I have credited the testi-
mony of McGavick.
(d) Paragraph 12 alleges that Respondent prohibited its
employees from distributing union literature:
Employees Ricky Bailes and Charles Mickler testified
that approximately I week before the election they were
distributing union leaflets in front of the main entrance to
the plant when they were approached by Alfred Rice. Rice
told them to get off the company property, and that they
could not pass out union literature on the property. Rice
admitted the above incident.
B. Conclusions
(a) The above-mentioned credited testimony of employ-
ees Turner and Mickler evidence two incidents of interroga-
tion of employees about their union sentiments. In view of
the background of other violative conduct as found herein
and especially evidence supporting my other findings re-
garding Supervisor Rice. I find that these alleged incidents
of interrogation constitute violations of Section 8(a)(I). In
both incidents employees were placed in the position of
having to defend their union beliefs before supervision.'
(b) The testimony of Mickler regarding his conversation
in Rice's office reveals violations of the Act. I find that Rice,
by asking Mickler if he had ever known of any high union
official that ever went anywhere with the Company and by
stating that the plant had closed in Rochester and moved
the equipment to Perry because of the union in Rochester.
engaged in coercive conduct. These statements, coupled
with Rice's comment that there was a lot of room for ad-
vancement if Mickler kept his nose clean, establish viola-
tions as alleged.
(c) I also find violative Respondent's June 2. 1978, repri-
mand of employee Patricia Scarbrough Murray; McGavick
admitted that he admonished Murray on the basis of the
general allegations that she "harassed" other employees.
According to McGavick, everyone including Murray, was
well aware that their June 2 meeting concerned her com-
I In its brief Respondent contends that these and other allegations should
be dismissed as noncoercive and isolated. In view of the evidence as a whole
I have determined that the incidents were not isolated. Additionally. I find
that the evidence does not support Respondent's contention that the alleged
violations do not tend to coerce employees. Respondent also argues that
many of the alleged incidents were remote, occurring several months prior to
the election. and did not affect the results of the election. I find that the
incidents were not so remote as to warrant their dismissal. As to the conten-
tion that they did not affect the election results, I specifically reject that
contention as a basis for consideration.
782
BRIGGS & STRATTON C(ORPORATION
ments to employees about the [Union. In its brief Respon-
dent contends that McGavick was doing nothing more than
enforcing a valid no-solicitation rule. The evidence does not
support that contention.
The only evidence regarding Murray's atual union activi-
ties is her testimony that she informed several employees of
a union meeting. There is no evidence demonstrating that
she was at anytime engaged in solicitation in violation of a
company rule. Furthermore, no evidence was offered dem-
onstrating that Murray violated any company rule or policy
by mentioning the union meeting to other employees.
McGavick admitted that on the basis of reports that
Murray was harassing other employees he reprimanded her
for harassing and threatening employees. However. McGav-
ick admitted that he received no report that Murray had
threatened anyone.
I find that the evidence demonstrates no iolatire busi-
ness justification for Respondent's action against Murra'.
and I find that action violates Section 8(a)( I).
(d) McGavick admitted that the action by Alfred Rice in
prohibiting the distribution of union literature violated the
ground rules of antiunion conduct. However, Respondent
contends that by not prohibiting subsequent distributions
the harmful conduct was cured. Nevertheless, the evidence
reflects that Respondent. upon discovering Rice's unlawful
act, did nothing to advise its employees that a mistake had
occurred or that they were free to distribute union litera-
ture. I find that Rice's action constitutes a violation which
was not subsequently corrected.
Upon the foregoing conclusions and the entire record I
hereby make the following:
(CON(I t Sl(INS (1- AW
(I) Respondent is an employer engaged in commerce
within the meaning of Section 2(2). (6), and (7) of the Act.
(2) International Union, United Automobile, Aerospace
& Agricultural Implement Workers of America (UAW). is
a labor organization within the meaning of Section 2(5) of
the Act.
(3) By interrogating its employees regarding the mem-
bership, activities, and desires of its employees in Interna-
tional Union, United Automobile, Aerospace & Agricul-
tural Implement Workers of America (UAW): promising
its employees promotions if they refuse to join or engage in
activities on behalf of a labor organization; threatening its
employees with reprisals if they join or engage in activities
on behalf of a labor organization: threatening its employees
with loss of promotion if they select a labor organization as
their bargaining representative: prohibiting its employees
from discussing any labor organization with other employ-
ees on company time: and prohibiting its employees from
distributing union literature on company property Respon-
dent has engaged in unfair labor practices within the mean-
ing of Section 8(a)( I) of the Act.
(4) The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law.
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER!
[Ihe Respondent. Briggs & Stratton (orporation. Perix.
Georgia, its olicers, agents. successors, and assigns. shall:
1. ('ease and desist from:
(a) Interrogating its eniplovees concerning their mem-
bership. activities, and desires and the membership activi-
ties and desires of other employees in International Union.
United Automobile, Aerospace & Agricultural Implement
Workers of America (JAW). or in an', other labor organi-
zation.
(b) Promising its employees promotions if the) retfrain
from joining or engaging in activities on behalf of an, labor
torganization.
(c) Threatening its emlplo ces with reprisals if they join
or engage in activities on behalf of a labor organization.
(d) Threatening its employees with loss of promotions if
they select International Union, United Automobile. Aero-
space & Agricultural Implement Workers of America
(UAW). or any other labor organization as their collective-
bargaining representative.
(el Prohibiting its emplo.,ees rolrn discussing a labor or-
gatlization with other emphloes on comlpaLn time.
(f) Prohibiting its emplo'sees from distributing union lit-
erature on compan propert', in non.ork areas.
fg) In anN other m;inncr interfering ith, restraning, or
coercing cmpltosees in the exercise of' their rights under Sec-
tion 7 f' the Acl.
2. Take the ftllowing affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Excise from its records all references to) its rpriland
of Patricia Scarbrough Murra 3 fbr her comments regarding
the Union to other employees.
(h) Post at its place of business in Perr., Georgia, copies
of the attached notice marked "Appendix.'' (Copies of said
notice, on forms provided by the Regional Director fi)r Re-
gion 10, after being duly signed by Respondent's represent-
ative, shall he posted b5 Respondent immediately upon re-
ceipt thereof' and be maintained by it fior 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken to insure that said notices are not
altered. defaced. or covered by any other material.
(c) Notify the Regional Director for Region 10. in writ-
ing, within 20 days from the date of this Order. what steps
have been taken to comply herewith.
In the event no exceptions are filed as provided hb Sec. 10246 of the Rules
and Regulations of the National abor Relations Board, the findings. con-
clusitons, and recommended Order herein shall. as provided in Sec. 102.48 of
the Rules and Regulations. be adopted by the Board and become its findings.
conclusions. and Order, and all objections therelo shall be deemed waied
for all purposes.
3 In the event that this Order is enforced hb a Judgment of a United States
Court of Appeals, the words n the notice reading "Posted b) order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of' the United States Court of Appeals Enforcing ain Order of the National
Labor Relations Board."
78A