Brother Industries

National Labor Relations Board - Board Decisions

Sep 20, 1994

314 N.L.R.B. 1218 (N.L.R.B. 1994)

1218
314 NLRB No. 198
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 The Respondent argues it had a ‘‘good faith’’ belief that em-
ployee Lisa Ham engaged in misconduct by her repeated violations
of Respondent’s no-solicitation, no-distribution rule. As found by the
judge, in the past the Respondent readily tolerated numerous viola-
tions of its no-solicitation, no-distribution rule. Ham’s activities were
consistent with the Respondent’s practice and, therefore, did not con-
stitute misconduct. Accordingly, we agree with the judge that the
Respondent did not have an honest belief that Ham engaged in mis-
conduct. Rather, the Respondent’s attempts to enforce the rule
against Ham’s protected activities constituted unlawful disparate en-
forcement of its rule.
In view of our agreement with the judge’s finding that employee
Ham and her coworkers did not seek to effect the discharge of Per-
sonnel Director Gilley, but rather petitioned the Respondent to listen
to their complaints about working conditions, we find it unnecessary
to rely on Hoytuck Corp., 285 NLRB 904 (1987), and related cases.
Chairman Gould questions the validity of cases which find unpro-
tected employee concerted activity designed solely to effect or influ-
ence changes in the management hierarchy. However, he finds it un-
necessary to resolve that issue in this case because he agrees with
the judge and his colleagues that Ham did not seek to effect or influ-
ence changes of this nature and her conduct was protected under ex-
isting precedent.
Brother Industries (U.S.A.), Inc. and International
Brotherhood of Electrical Workers Local 474.
Cases 26–CA–15556 and 26–CA–15660
September 20, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On February 2, 1994, Administrative Law Judge
Frank H. Itkin issued the attached decision. The Re-
spondent filed exceptions and a brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply to the General Counsel.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the record in light of the
exceptions and briefs and has decided to affirm the
judge’s rulings,1 findings, and conclusions2 and to
adopt the recommended Order.
ORDER
The National Labor Relation Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Brother Industries
(U.S.A.), Inc., Bartlett, Tennessee, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
successors, and assigns, shall take the action set forth
in the Order.
Rosalind Eddins and John Goree, Esqs., for the General
Counsel.
James H. Stock Jr. and J. Gregory Grisham, Esqs., for the
Respondent.
Benny Goolsby and James Anderson, Esqs., for the Charging
Party.
DECISION
FRANK H. ITKIN, Administrative Law Judge. Unfair labor
practice charges and amended charges were filed in the
above cases on April 1, June 15, and July 8, 1993. A con-
solidated complaint issued on July 9, 1993. The General
Counsel alleged in the complaint that Respondent Employ-
er’s employees, including employee Lisa Ham, concertedly
circulated and signed a petition complaining about a super-
visor and conditions of employment; that the Employer
thereafter enforced its no-solicitation no-distribution rule se-
lectively and disparately against the above employees; that
the Employer warned, suspended, and discharged employee
Ham; that the Employer engaged in the above conduct to dis-
courage employees from engaging in protected concerted ac-
tivities; that the Employer also prohibited its employees from
distributing union leaflets in its parking lot, engaged in sur-
veillance of employee protected concerted activities, and
threatened an employee with discharge because of employee
protected concerted activities; and that the Employer thereby
violated Section 8(a)(1) of the National Labor Relations Act.
Respondent Employer, in its answer, denied violating the Act
as alleged and raised various affirmative defenses.
A hearing was held on the issues raised on August 9, 10,
and 11, 1993, in Memphis, Tennessee, and, on the entire
record, including my observation of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT
Respondent Employer manufactures typewriters and word
processors at its plant in Bartlett, Tennessee. The Employer
is admittedly engaged in commerce and the Charging Party
Union is admittedly a labor organization as alleged. The Em-
ployer admittedly maintained at its plant the following no-so-
licitation no-distribution rule:
There shall be no solicitation or buying or selling of
any kind during working time unless prior written per-
mission has been obtained from the personnel manager.
This includes, but is not limited to, any form of solici-
tation such as contributions to employee funds, selling
of tickets or membership in service clubs, membership
in labor organizations, collection of bills, collection of
debts, etc.
There shall be no distribution or circulation of lit-
erature, petitions, nor written or printed matter of any
description, within the plant where production is being
carried on unless prior written permission has been ob-
tained from the personnel manager.
A. The Firing of Employee Lisa Ham
The Employer admits that about March 5, 1993, employee
Lisa Ham ‘‘circulated and signed a letter complaining
1219BROTHER INDUSTRIES
about’’ Personnel Director Leonard M. Gilley; that the Em-
ployer thereafter ‘‘warned,’’ ‘‘suspended,’’ and ultimately,
on March 10, ‘‘discharged’’ employee Ham because of her
conduct. The Employer asserts that employee Ham ‘‘was dis-
charged for violations of Company policy,’’ and, alter-
natively, that the Employer ‘‘had a good faith belief that’’
employee Ham had ‘‘engaged in violations of Company pol-
icy.’’ The evidence pertaining to the disciplinary treatment of
employee Ham and the related contentions of the parties is
summarized below:
Leonard M. Gilley testified that he is presently the Em-
ployer’s vice president of administration and consultant to
the president and that, previously, during the pertinent time
period, he was the Employer’s director of personnel and ad-
ministration. Gilley explained that the Employer manufac-
tures typewriters and word processors at its Bartlett plant.
There are currently some 440 hourly production employees
and 75 exempt employees including about 25 supervisors.
The Employer has three main production lines referred to as
the ‘‘A,’’ ‘‘B,’’ and ‘‘C’’ lines. Each line includes a ‘‘chas-
sis’’ area. There are about 18 to 20 employees on the C
chassis line. There are also three ‘‘relief operators’’ for this
line and ‘‘their primary duty . . . [is] to take the position
of any employee that goes to the bathroom.’’ All line em-
ployees take their regular ‘‘breaks’’ at the same time. Em-
ployee Lisa Ham was a ‘‘lead person’’ on the C chassis line.
Gilley identified the General Counsel’s Exhibit 2 as em-
ployee Ham’s ‘‘separation notice.’’ It states that the ‘‘rea-
son’’ for her ‘‘separation’’ on March 10, 1993, was her
‘‘violation of the no-solicitation rule.’’ Gilley also identified
the General Counsel’s Exhibit 3 as employee Ham’s ‘‘status
change’’ form. It too states as the ‘‘reason’’ for her ‘‘termi-
nation’’ and ‘‘discharge’’ her ‘‘solicitation on Company time
in the production area.’’ Gilley signed both documents.
Gilley nevertheless asserted that in fact the ‘‘reason’’ for
Ham’s ‘‘discharge’’ was both her ‘‘solicitation’’ and ‘‘insub-
ordination.’’ Gilley, however, acknowledged that Supervisor
Devin Morris, who had ‘‘requested’’ Ham’s ‘‘status change’’
and had signed the General Counsel’s Exhibit 3, had later
stated in a prehearing affidavit:
I [Morris] wrote the change in status report imme-
diately after this conversation. I believe I wrote that she
[Ham] was discharged for violation of [the] solicitation
rule. That was the reason for her discharge. No one
mentioned that she was discharged for insubordination
to me. No one ever mentioned insubordination as part
of the consideration for Ham’s discipline. Normally, I
would have known if her discipline was related to in-
subordination . . . .
Gilley admittedly had ‘‘discussed’’ Ham’s ‘‘discharge’’ with
Morris, and Morris was ‘‘involved’’ ‘‘in the decision to dis-
charge’’ Ham.
In addition, Gilley acknowledged that Assistant Manager
of Production Darol Swords, who also had signed Ham’s
‘‘status change’’ form (G.C. Exh. 3), had later stated in a
prehearing affidavit:
I [Swords] have reviewed the change in status [form]
and affirm that it is accurate. I reviewed it before I
signed it. It is correct that she [Ham] was discharged
for soliciting on Company time in a production area.
Insubordination was never a consideration in our dis-
cussion of Ham’s discharge . . . to the best of my
memory . . . .
Swords also had ‘‘input in discharging Ham.’’
Gilley identified the General Counsel’s Exhibit 6 as the
‘‘petition’’ or ‘‘document’’ which was the subject of the
above disciplinary action against employee Ham. It is a ‘‘let-
ter’’ addressed to the Employer’s president, Sam Matsumoto,
dated March 4, 1993, and signed by Ham and 11 of her co-
workers. It states:
Dear Mr. Matsumoto:
C-Line Chassis is writing this letter to you because
we feel you may be our only hope. We don’t mean to
be complaining or to sound ungrateful, because all of
us need our jobs very much, but all of us are so un-
happy with the way things are handled at Brothers [sic]
that we don’t know where to turn or what to do. We
all realize that any Company’s main objective is to
make money and we know there are rules to be fol-
lowed, but never before have we seen a Company that
could care less about its employees.
The morale of us hourly employees is at an all time
low, and the chances of improvement are very slim. We
feel like you are very unaware of things that go on at
Brothers [sic]. There is so much favoritism and unfair-
ness going on and we feel that most of that begins with
Len Gilley. We know that he has a job to do, but he
is one man that could care less about any employees
out here. Most of us call him God, because he thinks
he is Lord and Master, and he doesn’t care who he
steps on in his struggle for power and control. If you
have been hearing talk about Union activities, you may
be wondering why. The main answer to that question
is Len Gilley. People feel like they have no other
choice because they’ve been backed into a corner so
far, there is no other way out. Everyone is scared to
death of Len Gilley and his power in this Company,
and most of us feel like we have no rights whatsoever.
We really don’t need a Union, what we need is a
friend. One that cares about us enough to find out what
is really going on out here at the plant. One that appre-
ciates our hard work enough and realizes if it wasn’t
for us little people, Brothers [sic] would be nothing.
Would you please be that friend, Sam? Please give us
all a chance to meet with you and talk with you about
our feelings. We may be the little people, but we’re
smart, we have brains, we have good ideas and con-
cepts and could improve quality at Brothers [sic]. All
we’re asking for is a chance to be heard, and the right
to be treated like a person instead of a number. Our
complaints aren’t about more money, they’re about fair-
ness. Please help us in our struggle for fair treatment
so that all of us can be proud to be called a Brother
employee. This is our cry for help, won’t you please
help us?
Thank you,
C/Chassis
Gilley recalled that he first became aware of the above
‘‘letter’’ on Friday, March 5, when he was ‘‘informed of the
1220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Ham later recalled a further ‘‘disciplinary warning’’ in 1990 for
‘‘disrupting the work of employees.’’ This occurred before her ‘‘pro-
motion’’ to ‘‘lead person.’’
document by supervisor Jerry Sowell.’’ Gilley told Sowell
‘‘that he [Sowell] was her [Ham’s] supervisor, that he need-
ed to do something, that he needed to tell her to stop circu-
lating it.’’ Gilley further recalled that he also told Assistant
Manager Swords to ‘‘follow up’’ and ‘‘verify the fact that
Ham had stopped the circulation of this letter.’’ Gilley
added: ‘‘I was concerned that that letter was being circulated
in the work area . . . .’’
Gilley next recalled that on Monday, March 8, he had ‘‘re-
ceived a report . . . that someone was circulating Ham’s let-
ter on line B.’’ Ham, as noted, did not work on line B. Su-
pervisor Jan Pannell and/or Assistant Manager Swords ‘‘just
[said] that the letter was being circulated on line B.’’ Gilley
then added that ‘‘sometime during the day’’ Supervisors
Pannell and Paula Jacobson ‘‘reported . . . they saw the
letter circulating on line B.’’ Gilley was asked: ‘‘But they
did not see Ham over on line B . . . ?’’ He testified:
You’ll have to ask them exactly what they saw.
. . . I made the decision along with my fellow man-
agers and supervisors to suspend and discharge Ham
and at the time on March 8 . . . they saw a letter on
that line . . . and I asked them to prepare a statement,
which somewhere became a part of the record, as to ex-
actly what took place . . . . You’ll have to ask them,
I don’t recall what they saw. . . . I understood her let-
ter was there [on line B] . . . whether or not she was
there . . . I don’t recall . . . .
. . . .
I don’t know the exact sequence of who touched
what, when and who got whatever was touched. . . .
I don’t recall that . . . .
Gilley acknowledged that
Ham was discharged because that letter was con-
tinuing to recirculate and solicited in the work place
. . . . I don’t recall that anyone told me on that Mon-
day that they saw Ham [soliciting that letter] . . . .
. . .
No employee specifically said they saw Ham with
that letter except to put it in her pocket . . . .
In addition, Gilley further acknowledged:
[Ham] was working at her station [on Monday, March
8], when an employee from another line gave her a let-
ter, and she put it in her pocket . . . the employee
[who] walked from line B to line C to give the letter
to Ham . . . was [not] disciplined . . . [no one] on
the B line [was] disciplined . . . only Ham, she was
the only person who was disciplined for circulating this
letter . . . .
And, Gilley also acknowledged that ‘‘prior to Ham’s dis-
charge a supervisor did in fact inform [him] that [Ham] [dur-
ing] the morning on March 8 wanted to meet with Mr.
Matsumoto with a copy of that letter.’’
Gilley was questioned about prior disciplinary actions
taken by the Employer under its no-solicitation no-distribu-
tion policy. In the past, during 1987, a supervisor was ‘‘put
on notice’’ for assertedly violating this policy. Later, during
1991, the plant production manager was ‘‘instructed’’ ‘‘not
to sell’’ ‘‘clothes in the work area.’’ Further, Gilley himself
admittedly distributed ‘‘religious pamphlet[s]’’ to plant per-
sonnel and ‘‘it may or may not have occurred on the work-
ing floor.’’
Lisa Ham testified that she started working for the Em-
ployer in 1987; she was ‘‘promoted’’ in April 1991 to ‘‘lead
person’’ on the C chassis line working the first shift from
7 a.m. to 3:30 p.m.; her annual ‘‘performance evaluations’’
were ‘‘satisfactory’’; and she was told by her supervisors that
she did ‘‘a good job.’’ In the past, she had received ‘‘verbal
warnings’’ on attendance and on one occasion when she
‘‘had failed to check the seconds’’ ‘‘on the ‘‘conveyor’’ to
ensure that ‘‘production runs on schedule.’’ She had never
been told by management ‘‘that there were any problems
with respect to [her] job performance.’’1 She also explained
that the Employer had a ‘‘progressive disciplinary proce-
dure’’:
Usually you receive a verbal warning . . . the second
time you are written up you receive a written warning
. . . the third time you receive a final warning . . .
and after that you are out the door.
Ham identified the General Counsel’s Exhibit 6 as the
‘‘letter’’ which she prepared ‘‘on behalf of [herself] and
[her] co-workers.’’ She ‘‘prepared this letter’’ at home on
Wednesday, March 3, because
basically [of] the employees’ discontent with the way
things were handled out there [at the plant] . . . we
all felt like there was a lot of favoritism, unfairness
. . . this is something we openly discussed all the
time.
And, Ham recalled that a few weeks earlier she had ‘‘men-
tioned’’ to her supervisor, Devin Morris, that she was
‘‘thinking about writing a letter’’ and that ‘‘it was something
. . . that [she] needed to do for [her] co-workers and for
[herself].’’
Ham, as she further testified, read the letter to coworker
Etta Nash on the telephone during the evening of Wednes-
day, March 3. Nash stated that she ‘‘was ready to sign it’’
the next day at work. Ham also spoke with coworker Kelly
Carlisle ‘‘and her reaction was the same.’’ Ham also spoke
later that evening with former Plant Manager Keith Perkins
and C Line Packing Supervisor Connie Ingle in a ‘‘three way
telephone conversation.’’ Perkins approved of the letter and
did not believe that Ham ‘‘would get fired for that.’’ Ingle
on the other hand stated that Ham ‘‘could get in trouble.’’
Ham then signed the letter. She explained:
My intent was to get my co-workers on C line chassis
to read the letter and sign it if they felt that everything
in it was true and they believed in what we were doing.
Ham took the letter to work on the morning of Thursday,
March 4. She first ‘‘made sure that the line was running’’
and then went to the ‘‘repair station’’ with her ‘‘relief opera-
tors, Etta Nash and Janice Ferrell.’’ Nash, who had been told
previously about the letter, ‘‘didn’t really need to read it’’
1221BROTHER INDUSTRIES
2 Ham explained that ‘‘all the signatures on the letter [G.C. Exh.
6] were gained [on] Thursday’’ and she then ‘‘put’’ the original
signed letter in a ‘‘sealed’’ envelope to be presented to President
Matsumoto. See also R. Exh. 2, the original letter later mailed to
President Matsumoto.
and just signed it. Ferrell ‘‘read the letter, she agreed with
it and she signed it.’’ This was all done at ‘‘the repair station
on Company time.’’ Another employee, Peggy Morgan,
whose ‘‘position on the line is right beside the repair sta-
tion,’’ similarly ‘‘read’’ and ‘‘signed’’ the letter ‘‘during
work time.’’ Morgan took about 3 minutes to ‘‘read’’ and
‘‘sign’’ the letter and there was no ‘‘interruption’’ in her
‘‘work.’’ Coworker Kelly Carlisle, also familiar with the let-
ter, ‘‘just signed it’’ ‘‘at her station’’ taking ‘‘a minute or
two’’ without ‘‘any interruption in her work.’’ Later, Ham,
Ferrell, and Nash ‘‘discussed . . . how to take care of letting
the people read the letter and sign it.’’ Other employees
would take a ‘‘relief’’ break in the toilet, read the letter there
and if they wished to ‘‘sign the letter.’’ Ham had started this
process by 7:30 a.m. ‘‘and the letter was signed by all by
8:45 A.M.’’ Ham explained that ‘‘during this period,’’
[I performed my] normal duties of making sure the line
was running, and when the reliefs were relieving people
to go to the bathroom, it was one at a time, and the
other relief and myself were taking care of the line,
making sure everything ran correctly.
Ham noted that she has never been ‘‘informed’’ ‘‘that there
was a problem with production or any interruption with re-
spect to the production line’’ as a consequence of this con-
duct.
After Ham had ‘‘obtained the signatures of the C line
chassis employees,’’ she made ‘‘copies of the letter.’’2 And,
about 9 a.m. she ‘‘showed’’ a ‘‘copy’’ of the letter to B Line
Chassis Supervisor Janet Dixon. Ham testified:
I [Ham] asked her [Dixon] to read the letter and . . .
if she had a problem with me taking the letter to her
section and letting the relief operators see the letter, and
ask the people . . . how they would feel about devis-
ing a similar letter of their own.
Dixon’s response was ‘‘I don’t know anything.’’ ‘‘A few
minutes later,’’ as Ham further testified, Dixon’s ‘‘relief op-
erator’’ Darlene Williams ‘‘came over’’ ‘‘and wanted to see
the letter.’’ Williams, after a ‘‘discussion,’’ left with a ‘‘copy
of the letter.’’
Ham later discussed the letter with Assistant Manager
Swords on the C line. Ham recalled:
I [Ham] told him [Swords] . . . I’ve written a letter
for my section to the president . . . it expresses our
feelings on how we feel Gilley runs things . . . I’m
giving it to the president . . . I’ve made copies to take
to the other sections . . . [Swords said] I [Swords]
don’t want to see the letter . . . that way if I’m asked
about it I can say I don’t know anything about it . . . .
Swords did not then say that Ham’s ‘‘actions’’ or ‘‘plans’’
were ‘‘inconsistent with the [Employer’s] no-solicitation pol-
icy.’’
Ham also had given a copy of the letter to ‘‘relief oper-
ator’’ Donna Melton on A line inspection ‘‘to see if anyone
wanted to devise their own letter’’ there. And, coworker
Nash took a copy of the letter to ‘‘relief operator’’ Vicky
Fields (also spelled in the record ‘‘Felts’’) on C line packing.
Employee Fields showed the copy to her supervisor, Connie
Ingle. Ingle then told Ham:
I [Ingle] don’t want that letter down here, and you
know I am going to tell my employees not to sign that
letter. Now get it out of here.
Ham ‘‘took the letter and . . . went back to [her] section.’’
Ingle placed no other ‘‘restrictions’’ on Ham ‘‘with respect
to circulation of the letter’’ that day.
Ham also ‘‘stopped two relief operators’’ on the B line,
Trish Booker and Jenny Noonan, ‘‘going to lunch.’’ ‘‘B
line’’ Supervisor Steve O’Donnell ‘‘was looking over their
shoulder reading the letter with them.’’ Ham told the em-
ployees to ‘‘read it . . . see if your section wants to devise
one similar and get back with me.’’ Ham also gave a copy
of the letter to ‘‘relief operator’’ Janet Blaylock on ‘‘PC B
line.’’
On the following morning, Friday, March 5, C Line Super-
visor Connie Ingle apprised Ham:
Lisa, I [Ingle] love you [Ham] to death, you and I are
friends, but I’m going to tell you right now, if I see you
passing the letter around on Company time . . . I
have no choice but to go to Len Gilley with it . . . .
Ham responded:
I [Ham] told her [Ingle] that I was not soliciting the let-
ter anymore, that I had already solicited all that I was
going to do.
Ham had the original letter in an envelope in her ‘‘pocket’’
and she ‘‘was going to give [the original] letter to’’ President
Matsumoto when he came out on the production floor.
Later on the morning of Friday, March 5, Supervisor
Devin Morris approached Ham ‘‘and wanted to read the let-
ter.’’ Ham gave Morris a ‘‘copy.’’ Morris read the letter and
warned: ‘‘Lisa, you know you can get in trouble for this.’’
Shortly thereafter, Supervisor Sowell similarly approached
Ham and asked to see the letter. Ham provided Sowell with
a ‘‘copy’’ and he read it. Sowell, who was ‘‘very upset,’’
‘‘hollere[ed]’’ ‘‘why did you write this’’; ‘‘what has Len
Gilley ever done to you’’; ‘‘this is soliciting and you’re not
supposed to do this on Company time.’’ Ham explained that
‘‘I’m not soliciting now.’’ Sowell accused Ham of engaging
in a ‘‘personal vendetta.’’ Ham denied having ‘‘any personal
reason for preparing the letter.’’ Sowell similarly confronted
other employees in the section.
During the afternoon of Friday, March 5, Supervisor
Sowell summoned Ham to the conference room where he
again accused Ham of engaging in a ‘‘personal vendetta’’
against Gilley and told her that she ‘‘shouldn’t give the letter
to the president . . . it was not a good time . . . Mr.
Matsumoto had a lot of things going on right now . . . .’’
Ham made clear that she would present the letter to President
Matsumoto. Sowell warned: ‘‘Well just don’t let me catch
you passing it around on Company time or soliciting on
Company time because that is against Company policy.’’
1222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Ham noted that she in fact did not ‘‘solicit signatures for the
letter’’ on Friday, March 5.
On Monday, March 8, as Ham further testified,
I returned to work; I was on the production line work-
ing with Jackie Terry . . . someone . . . handed me
this paper . . . it was a copy of my letter; and I folded
it up and stuck it in my smock and I continued to help
Jackie work . . . .
‘‘Two or three minutes later,’’ B Line Supervisor Paula
Jacobson ‘‘approached’’ Ham and said that she was ‘‘looking
for . . . a letter.’’ Ham ‘‘pulled the [copy of the] letter out
of [her] pocket’’ and ‘‘showed it’’ to Jacobson. Jacobson ad-
monished Ham:
Lisa, I’m telling you as a friend, do not be passing this
letter around on Company time, do not be getting any
signatures . . . you know you can get in trouble
. . . .
Ham again explained that ‘‘I’m not soliciting . . . all my
solicitation was done on Thursday.’’ Ham added:
My original copy of the letter has been sealed and been
in my pocket to give to the president . . . . This [copy
of the] letter came back to me from B line. I was work-
ing here and it was just sent back to me a few minutes
ago.
Ham went to the breakroom and there telephoned Com-
pany President Matsumoto’s secretary, Lita Farley, in an at-
tempt to make an appointment with the president. Farley re-
sponded that Ham ‘‘needed to get [her] supervisor to make
that appointment.’’ Ham also called home because her son
was ill. Supervisors Sowell and Morris approached Ham in
the breakroom, and the following exchange ensued:
Jerry Sowell asked me if I had asked to use the tele-
phone. I told him, no. He asked me if I had permission
to go to A line earlier, and I told him, no, I had not.
He asked me if I had permission to go to B line and
pass a petition around, and I told him I had not been
on B line that day and I had not been passing any peti-
tions around. He then told me, if you’re caught passing
any petitions around on Company time you are in vio-
lation of the no-solicitation rule and you will be fired.
Ham returned to her section whereupon Supervisor Morris
warned her: ‘‘if I catch you soliciting you’re out of here.’’
Ham noted that in the past she had never been required to
obtain permission to use the telephone or to go to other pro-
duction lines.
Later, Assistant Manager Swords instructed Ham that he
wanted to see Ham and Supervisor Morris in the conference
room. There, Swords ‘‘read’’ the no-solicitation rule and in-
formed Ham that she was being ‘‘suspended pending an in-
vestigation.’’ Ham was told:
You need to leave the premises, you cannot go back on
the floor and get anything.
Morris got Ham’s personal belongings and Swords drove her
home. Ham thereafter mailed the ‘‘original letter’’ to Presi-
dent Matsumoto.
Ham, in addition, testified in detail about ‘‘solicitation
during work time’’ at the plant. Employees ‘‘bought and sold
all types of things from Avon to Girl Scout cookies’’ and
Ham ‘‘personally sold Mary Kay on Company time.’’ Ham,
as well as her coworkers, openly and repeatedly engaged in
this and related types of solicitation during working time
without permission. Supervision observed and participated in
this and related types of solicitation. Other forms of solicita-
tion included, inter alia, ‘‘football and baseball pots,’’
‘‘Christmas presents for the supervisors,’’ and ‘‘birthdays.’’
Ham acknowledged that in her initial prehearing affidavit
to a Board agent she had stated that ‘‘the signatures [on her
letter] were signed on break, but that was not correct.’’ She
explained why she and various coworkers had made this un-
true statement:
I think mainly out of fear, because once I had been dis-
charged, the Company had a meeting with the employ-
ees about the solicitation, and several of the employees
were concerned about having their signatures on the pe-
tition, and they were concerned about me as far as try-
ing to get my job back.
Ham and her coworkers later gave corrected affidavits to the
Board agent.
In addition, Ham also acknowledged that in 1988 she had
‘‘a brief affair’’ with Gilley. She explained that ‘‘this was
several years ago’’ and had no ‘‘effect’’ on and did not
‘‘contribute at all’’ to the preparation and circulation and
signing of her letter. As noted, she was later ‘‘promoted’’ to
‘‘lead person’’ in 1991, although she admittedly did ‘‘feel’’
at one time that she would not make ‘‘supervisor’’ while
Gilley ‘‘was in personnel’’ and ‘‘didn’t feel like Gilley
should be in personnel anymore . . . .’’ Ham also acknowl-
edged that former Plant Manager Perkins, with whom she
had conferred on March 3, ‘‘disliked Mr. Gilley very much.’’
Ham nevertheless explained:
As far as trying to get Mr. Gilley’s job, that was not
my intention . . . .
Ham was questioned about a telephone call made by her
on March 10. She attempted to speak on the telephone to
Gilley ‘‘to resign.’’ Gilley apparently would not speak with
her and she would not ‘‘discuss giving [her] resignation with
anyone’’ else. She was later told by Supervisor Morris that
she had been ‘‘terminated.’’
Etta Nash testified that she is one of the employees who
signed Ham’s letter on Thursday, March 4, and participated
in its circulation among her coworkers. Nash, although some-
what uncertain of times and dates, corroborated in significant
part Ham’s testimony as detailed above with respect to the
preparation and distribution of the letter. (See Tr. 207 to
221.) Nash also admittedly had stated in a prehearing affi-
davit that ‘‘we all signed the letter during break.’’ Nash later
corrected this affidavit. She had made this untrue statement
because she was ‘‘afraid’’ following a supervisory meeting
discussing Ham’s suspension and discharge for ‘‘solicitation
on Company time.’’ In addition, Nash also related the many
solicitations which had occurred during working time at the
plant. Supervisors observed and participated in these solicita-
tions. (See Tr. 224 to 235.) Nash noted that there was a
‘‘change with respect to this practice’’ ‘‘right after Lisa
1223BROTHER INDUSTRIES
3 Counsel for Respondent later acknowledged during colloquy con-
cerning compliance with counsel for the General Counsel’s out-
standing subpoena that ‘‘the only person where we have written doc-
umentation of violating the no-solicitation policy is Ms. Ham.’’ (See
Tr. 342.)
4 Offers by counsel for the General Counsel of additional essen-
tially similar proof pertaining to solicitations during working time at
the Employer’s facility were rejected as cumulative. (See Tr. 284 to
287, 362 to 365, 381 to 383, and 396.)
[Ham] got suspended.’’ Nash knew of no other employee
disciplined under the Company’s no-solicitation policy.3
Kelly Carlisle testified that she too was one of the employ-
ees who had signed Ham’s letter on Thursday, March 4, at
her work station. She corroborated in significant part Ham’s
and Nash’s testimony detailed above with respect to the
preparation and distribution of the letter. In addition, she had
observed the many solicitations during working time at the
plant, often participated in by supervisory personnel. (See Tr.
256 to 259.4) And, she had corrected her prehearing affidavit
to admit that the signing of Ham’s letter was in fact during
working time. She admittedly had lied because she ‘‘didn’t
want to lose [her] job.’’ She recalled that she had attended
a meeting,
and the employees were told [by management] that
someone was terminated on their line for soliciting and
that no action was being taken yet against the other em-
ployees who signed. . . . They stressed ‘‘yet’’ as if
something could [happen].
See also the testimony of Patricia Arlene Booker, Transcript
360 to 362.
Steven Michael O’Donnell is a supervisor on B line chas-
sis. He recalled that employee Ham had approached him with
her letter. He assertedly told her:
if she wanted to write a letter to the president that that
was fine and good but that she didn’t need to be pass-
ing it out on the production floor.
He could not ‘‘recall’’ the ‘‘exact date’’ or the ‘‘week’’ or
‘‘the exact details of the conversation.’’ He admittedly did
not ‘‘see the letter a second time.’’ In addition, he acknowl-
edged that in the past he had ‘‘seen employees with different
things on the line . . . candy bars and stuff like that . . .
items for charity . . . they have sold them during work
time.’’ He then claimed that ‘‘we did have a meeting at one
point in time where we were told that that could no longer
take place in the assembly area’’; however, he could not ‘‘re-
member the exact day of that meeting.’’ He admittedly did
observe Ham ‘‘passing the football squares around . . .
during work time’’ and ‘‘never said anything to her about
that activity being in violation of the no-solicitation policy.’’
Jan Allen Pannell is the Employer’s warehouse supervisor.
He insisted that the Employer’s no-solicitation policy is ‘‘ab-
solutely no solicitation of any kind on the production floor.’’
He denied, inter alia, ever engaging in such solicitation and
asserted that he had instructed employees to stop doing so.
He claimed that on Monday, March 8, he saw a letter,
I [Pannell] was walking down . . . the aisle between
B line and the production office and I noticed two
workers . . . had a piece of paper . . . they were
talking . . . one of the ladies picked up the piece of
paper . . . and I asked her to give me that piece of
literature . . . . She said that she didn’t want to have
anything to do with the piece of paper, she simply
wanted to give it back to the person who gave it to her
. . . . I asked her one more time for the piece of paper
and she kind of looked off, and I left and then informed
the line supervisor Paula Jacobson and the area super-
visor Steve O’Donnell.
Pannell ‘‘never observed that piece of paper again.’’
Pannell had previously been told by management ‘‘that
there was some literature circulating in the building that was
not supposed to be there . . . .’’ Pannell, in the past, would
assertedly tell employees to put such items away, however,
he admittedly did not follow that course of conduct here.
And, here, unlike in the past, he followed up the incident
with a letter or memorandum to management. The above in-
cident, as observed by Pannell, took about ‘‘twenty seconds
maybe’’ and, although during ‘‘production,’’ was during
‘‘some lag time.’’
Connie Ingle, a supervisor in C line packing, testified that
she spoke on the telephone with employee Ham concerning
the letter on Wednesday night, March 3. Former Plant Man-
ager Perkins joined the telephone conversation. Ingle could
not ‘‘remember’’ much of the conversation that ensued. She
could not ‘‘recall’’ whether Ham had read the letter to her.
Ingle assertedly told Ham that Ingle ‘‘didn’t think that she
needed to be doing that’’ and ‘‘could possibly lose her job
over that.’’ On the following day, Thursday, March 5, one
of Ingle’s ‘‘relief operators’’ approached her with the letter
and asked ‘‘if they should sign.’’ Ingle said ‘‘no’’ and ‘‘took
the letter to ‘‘ Ham and told Ham ‘‘to keep it out of my de-
partment.’’ Subsequently, Ingle told Ham that ‘‘if I caught
her circulating the letter . . . I would go to Gilley and she
would be fired.’’ Ingle acknowledged: ‘‘I never seen her cir-
culate the letter.’’
In addition, Ingle admittedly had observed the circulation
of ‘‘football and baseball pots . . . during work time’’ and
‘‘supervisors’ names appearing on these football and baseball
pots.’’ She also had observed ‘‘Tupperware being sold dur-
ing work time’’ and ‘‘Home Interior being sold on work
time.’’ She never disciplined any employees for these viola-
tions of the Employer’s no-solicitation no-distribution policy.
Paula Jacobson is a senior supervisor on the B line. Ham’s
letter was ‘‘brought’’ to her attention on Monday, March 8,
at a management’s meeting where she was told to be ‘‘on
the lookout’’ for this ‘‘soliciting.’’ Later, Warehouse Super-
visor Pannell had spotted this ‘‘piece of literature,’’ em-
ployee Bessie Bowers ‘‘had it,’’ and Pannell so informed
Jacobson. Jacobson went to investigate. Jacobson testified:
I went up to [employee] Willie Bowers and asked her
if she had the letter at her station and she said she had
it, but . . . she had given it to Diane . . . . I went over
to C line and asked [employee] Diane Webber about
the letter, and . . . Diane didn’t know about it. When
I walked back up the aisleway back over to B line, I
saw Lisa [Ham] with something in her hand and she
was fixing to put it in her pocket . . . . I asked [Ham]
was that what I thought it was. . . . [Ham] said . . .
do you want to read it, and I told her I didn’t want to
1224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 In addition, Jacobson denied various testimony of Ham as recited
above and claimed that the only solicitation she had observed during
worktime was ‘‘a sympathy card’’ ‘‘probably about a year ago.’’
6 Counsel for Respondent asserted, inter alia, that the ‘‘original let-
ter’’ ‘‘was still circulating’’ on Monday March 8. (See Tr. 517 to
519.)
7 Morris, in his prehearing affidavit to a Board agent, only stated
that he ‘‘saw signatures’’ on the letter; he did not then mention how
many signatures; the ‘‘first time’’ he ‘‘told anybody’’ that he saw
‘‘four names’’ was ‘‘last week.’’
see it. [Ham] was not showing it to anyone. She was
simply putting it in her pocket . . . . I told her that she
needed to not pass this around during Company time
. . . she could get in trouble . . . .
Jacobson acknowledged that she did not see Ham ‘‘passing
[the letter] around during working time.’’5
Diane Neal was a B line employee during the above time
period. Neal recalled that on a ‘‘Monday morning’’ em-
ployee Willie Bowers’’ gave a letter to her ‘‘to give back to
Lisa’’ Ham. Neal in turn ‘‘passed it back to C line chassis.’’
Neal gave it to a ‘‘girl’’ there. Neal admittedly did not get
this letter from Ham nor return it to her. The ‘‘other lady’’
‘‘delivered’’ it to Ham. Ham ‘‘put it in her pocket.’’
Sharon Marie Burchett is an assembly worker on the B
line. She recalled that on Monday, March 8, employee Toni
Oliver on the B line handed her a letter. She testified for Re-
spondent Employer on direct examination:
Q. Now was this the original letter?
A. Uh-uh.6
Elsewhere, she acknowledged that she ‘‘really didn’t have
time to read it’’ and ‘‘just put it on the stand behind’’ her.
Devin Morris was a supervisor on C chassis line during
the above period. Morris recalled that employee Ham had
told him ‘‘that she was going to write a letter to Mr.
Matsumoto’’ because the ‘‘employees were unhappy.’’ On
Friday, March 5, Ham asked him if he wanted to see the let-
ter. He ‘‘briefly scanned’’ ‘‘the letter.’’ He claimed: ‘‘I saw
approximately three or four signatures on there, I believe.’’7
He then informed’’ Assistant Manager Swords about ‘‘the
letter.’’ Thereafter, on Monday, March 8, as he testified,
Lisa [Ham] was in the breakroom or the cafeteria.
. . . Jerry Sowell and myself were in there, and Jerry
had called Lisa over to the table, and asked her what
she was doing on the telephone. And at that point he
said, ‘‘I understand that the letter is being sent out or
is out there on the assembly line,’’ and he asked her,
‘‘if you are putting the letter out, put it up,’’ and at that
point he dismissed her and sent her back to the line.
Ham later asked Morris ‘‘what’s going on,’’ and he said ‘‘I
really don’t know.’’ She said, ‘‘they’re watching me,’’ and
he said, ‘‘I am not real sure, but you need to put up the let-
ter.’’ Ham ‘‘didn’t have the letter out’’ at the time and
‘‘nodded her head.’’ Morris acknowledged that he never saw
the letter ‘‘being circulated.’’
Morris testified that nothing else happened that day with
respect to the letter. However, as Morris further recalled, As-
sistant Manager Swords later summoned Morris and Ham to
the conference room. There, Swords apprised Ham that ‘‘she
was being suspended pending an investigation for soliciting
on Company time.’’ Morris subsequently apprised Ham on
the telephone that she had been ‘‘terminated,’’ as instructed
by Gilley. In addition, Morris asserted that he could not ‘‘re-
call’’ whether he had ever bought or sold anything on com-
pany time. He also asserted that he had never observed
‘‘anyone buying or selling anything during work time,’’ al-
though he had seen ‘‘literature on the assembly lines and
. . . asked’’ that it ‘‘be put up.’’ He later added: ‘‘It was
the policy, but it wasn’t strictly enforced . . . .’’
Darol Swords, assistant production manager for the Em-
ployer during the above time, claimed that the Company’s
no-solicitation no-distribution policy was ‘‘enforced’’ prior to
March 1993. He became aware of employee Ham’s letter on
Thursday, March 4, when Ham told him ‘‘that she had writ-
ten a letter to Mr. Matsumoto.’’ Later, on Friday, March 5,
Gilley ‘‘paged’’ him and he, with Sowell, discussed the letter
and the ‘‘signatures.’’ He later met with Sowell and Morris
and ‘‘asked them to check into this letter and to make sure
that it’s not being circulated during work time.’’ He also told
Ham that ‘‘she needed to circulate it outside of the work
place, preferably on her own time, and away from Brother.’’
He acknowledged that Ham then said: ‘‘I [Ham] have the let-
ter sealed in an envelope,’’ and ‘‘she patted her pocket.’’
Later, on Monday, March 8, according to Swords, ‘‘we were
informed [at a staff meeting] that there was a letter or a peti-
tion circulating on the production floor and in the warehouse
area.’’ He admittedly did not ‘‘see any of that happening.’’
And, subsequently that same day,
Paula Jacobson came to me . . . and said she had
seen a letter, that Jan Pannell had seen a letter, and she
had went to investigate, and when she went to the C
line . . . Lisa Ham had this letter in her hand.
Swords, as he testified, reported the matter to Gilley, and
Jacobson spoke to Gilley. Jacobson assertedly ‘‘restated the
same story exactly.’’ Admittedly, no one had stated that
‘‘they saw Ham circulating and soliciting signatures for this
letter or petition.’’ Sowell was also called to Gilley’s office.
There,
We discussed how many times Lisa [Ham] had been
asked not to circulate this letter, she was clearly not
doing what we had asked, and we needed to take some
form of discipline . . . .
They determined to ‘‘suspend’’ her pending ‘‘further’’ inves-
tigation. Ham was so advised. Swords later recommended
‘‘discharge.’’ He denied, inter alia, various statements attrib-
uted to him by Ham. Elsewhere, Swords acknowledged, as
noted above, that ‘‘insubordination was never a factor in
Ham’s discharge’’ and ‘‘no supervisor had actually told
[him] that they had seen Ham soliciting signatures for the
letter.’’ Further, the Employer’s ‘‘progressive discipline pol-
icy,’’ including ‘‘oral warnings,’’ was ‘‘not followed’’ with
respect to Ham.
Jerry Sowell was a C line supervisor. He testified that on
Friday, March 5, employee Ham asked him to look at her
letter. He read the letter and ‘‘glanced’’ at the ‘‘signatures.’’
He assertedly observed ‘‘seven, eight or nine, something like
that, signatures’’ on the letter. He was uncertain whether the
letter was an ‘‘original’’ or ‘‘copy.’’ He added: ‘‘It seems
1225BROTHER INDUSTRIES
8 Lita Farley is President Matsumoto’s executive secretary. She
could not ‘‘recall’’ ever telling anyone that they must go through
their supervisor to make an appointment to see Matsumoto. She
‘‘vaguely’’ recalled that Lisa Ham had called her to make an ap-
pointment to see Matsumoto on Tuesday, March 9. She might have
asked Ham: ‘‘Who is your supervisor,’’ or have you ‘‘talked’’ with
your supervisor. In addition, Farley could not ‘‘recall’’ whether she
‘‘was there’’ on Monday, March 8. It is ‘‘possible’’ that calls could
have been made on Monday, March 8, which were not recorded. See
R. Exh. 4 and Tr. 309 to 320.
. . . like it was a copy.’’ He asked Ham, ‘‘what Gilley ever
did to you.’’ Ham responded, inter alia, that she was ‘‘sick
of this shit.’’ One or more of Ham’s coworkers joined in,
and he ‘‘walked off.’’ He reported the incident to Gilley who
‘‘got angry’’ and assertedly said: ‘‘You should have taken it
away from her’’—‘‘that’s soliciting on Company time.’’ He
was instructed to ‘‘counsel’’ Ham. He subsequently informed
Ham in the conference room that she was engaged in ‘‘solic-
itation’’ and ‘‘could be discharged for this.’’ She protested.
He warned that ‘‘we have got a new president’’ and he
‘‘didn’t think this is a good thing.’’ She faulted Gilley and
his conduct, referring also to former Manager Perkins. She
assertedly said at some point in time: ‘‘I wished I had never
screwed’’ Gilley or ‘‘something like that.’’ He could ‘‘not
recall’’ much of the remaining scenario. He also could ‘‘not
recall’’ ‘‘observing employees buying or selling . . . things
during work time.’’ He added: ‘‘If they had, they were told
to put it up.’’ Elsewhere, he admitted that he had observed
the ‘‘passing around’’ of ‘‘baseball and football pots,’’ and
he ‘‘signed those pots.’’
Company Vice President Gilley, in later testimony, denied,
inter alia, that he had ‘‘ever heard that employees were sell-
ing Avon, Home Interior, candy, [or] football pots on the
production floor during working time’’; ‘‘in fact up until
today I [Gilley] never heard of any sports pools in that fac-
tory.’’ Gilley insisted that employees may not under the
above-cited no-solicitation no-distribution policy engage in
such conduct during worktime in the work area. Gilley in-
sisted: ‘‘To my belief the no-solicitation rule was being en-
forced.’’ Elsewhere, Gilley acknowledged that a ‘‘purpose’’
or one of the ‘‘objectives’’ of this rule was in fact to ‘‘con-
tinue’’ the Employer’s ‘‘objective’’ of being ‘‘Union-free.’’
(See Tr. 434.)
In addition, Gilley assertedly had told his ‘‘staff’’ at a
‘‘regular staff meeting’’ on Monday, March 8, ‘‘that there is
a petition being circulated . . . on Company time which is
against the Company rules, and I instructed area supervisors
and supervisors to collect that petition and the Company
would like it to stop.’’ Supervisor Swords later ‘‘indicated
that the letter had been seen in the B line work area, and
. . . I asked the people to bring forward any statements on
what had taken place to track it down and come to some
conclusion as to what action was going forward.’’ ‘‘I said we
need to get this stopped right now.’’ He instructed Swords
‘‘to have a conference with Lisa Ham . . . to deal with the
continued circulation of the petition and the possibility . . .
[of] suspension for the continued violation of the Company
rules and policies.’’ He later conducted an ‘‘investigation’’
and determined to ‘‘suspend’’ Ham for her ‘‘gross mis-
conduct.’’ As Gilley now recalled, he had been told by su-
pervision that
an employee gave the letter back to the person that
gave it to them who in turn gave it back to Ms. Ham.
Gilley reported the matter to President Matsumoto and a few
days later the decision was made ‘‘to discharge Lisa Ham.’’
Company President Sam Matsumoto testified that his
Company has an ‘‘open door’’ policy permitting employees
to ‘‘come to’’ him and other members of upper management
to communicate their complaints about, among other things,
supervision. He noted that his Company also has a no-solici-
tation no-distribution policy and, in the case of employee
Ham,
I recommended to terminate [her] [after] . . . my own
investigation . . . . I found [that] in spite of the warn-
ing from a couple or more people she continued such
a violation. . . . The violation means that she circulated
a letter to get other persons to sign during the [work]
hour. . . .
Matsumoto did in fact later receive Ham’s letter in the
mail. (See G.C. Exh. 6 and R. Exh. 2.) He claimed that ‘‘she
continued’’ ‘‘solicitation’’ of this letter and ‘‘more people
signed’’ after her ‘‘warning’’ and thus ‘‘she continued such
violations.’’8
B. The Employees Attempt to Distribute Union Leaflets
and Related Conduct
Barbara Ann Harkness testified that she has been em-
ployed at Brother for over 2 years; that the Charging Party
Union engaged in organizing activities at the plant during
1993; and that on June 4 she and coworkers attempted to
‘‘engage in handbilling’’ of union ‘‘literature and member-
ship cards’’ in ‘‘the employees’ parking lot’’ at the plant.
Harkness recalled that ‘‘we went into the ‘‘employees’ park-
ing lot’’ about 12:30 a.m. when the shift changed and ‘‘we
started handbilling.’’ Harkness further recalled:
We just asked them [the employees] if they would like
to join the Union and if they said no we didn’t push
it . . . . We told them we would be at Seessel’s [gro-
cery store] parking lot after we got through, and if they
needed to fill out their card or bring it to us or wanted
any information, that we would give it to them there.
The plant security guard, Jack Quinton, was present during
the handbilling. Harkness and her coworkers ‘‘passed out
cards’’ for about 5 minutes and then went to Seessel’s park-
ing lot about 2 miles from the plant. Seessel’s grocery store
was not open at that time of the morning. However,
Harkness observed security guard Jack Quinton ‘‘pull up’’ in
the parking lot, checking his truck, and ‘‘he looked over at
us.’’ Security guard Jack Quinton remained there for about
2 to 3 minutes.
Later, about 12:30 a.m. on June 12, Harkness and cowork-
ers attempted to handbill again ‘‘at the employees’ parking
lot.’’ Harkness testified:
We went near the entrance where they [the employees]
would be coming out and we were standing there, and
I guess two or three people, when they got off, passed
us, and we were talking to them, and the guard [identi-
fied by her as ‘‘Chris’’] came out and told us that we
1226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 It is undisputed that Jack Quinton and Chris May were security
guards at the plant during the pertinent time period. Respondent Em-
ployer, in its answer to the complaint, specifically admitted to the
agency status of the two guards. See G.C. Exhs. 1(i) and (k). Coun-
sel for Respondent first claimed at the hearing that ‘‘that was an
error’’ and denied ‘‘agency.’’ See Tr. 75 to 77.
10 Elsewhere, Gilley asserted that his ‘‘guards’’ were ‘‘instructed’’
to prohibit the type of activity involved here because ‘‘we had some
employees that sold drugs in the parking lot’’ and ‘‘we’ve had some
drug busts’’ and ‘‘there weren’t to be any outsiders on it in the mid-
dle of the night’’ ‘‘creating any disturbances.’’
could not do that, and we asked him if he could get
someone with authority to tell us that we couldn’t do
it, and he said he had it, and to take it to the street.
Later that morning, as Harkness and a coworker ‘‘edged
back up . . . the drive,’’ the guard stated: ‘‘Hey, I said take
it to the street.’’ Harkness and coworkers then moved out on
the street. Harkness acknowledged that she and coworkers
have subsequently handbilled ‘‘in the parking lot and in
front’’ of the Employer’s premises without incident.
Patricia Arlene Booker has been employed by Brother for
over 5 years. She testified that she too participated in the
handbilling on June 4. She recalled:
When they [the employees] started coming out the
doors, we all went towards the employee entrance and
just kind of spread out and started talking to people,
handing out cards, fact books and business cards . . . .
I asked them if they were interested in a Union . . .
to meet us at Seessel’s [grocery store] parking lot
. . . . I was told by [security guard] Jack Quinton that
I could not do that on Company property. . . . I was
right in between the employees’ entrance to the parking
lot, to the employees’ parking lot. . . . I told him that
I was an employee and he told me that I would not be
an employee long if I kept that up.
Booker then went to Seessel’s parking lot. She recalled
that security guard Jack Quinton also drove to the same park-
ing lot although the store there was not open at that hour.
She observed security guard Jack Quinton get out of his
truck, walk around, get back in, and drive off. Booker noted
that security guard Jack Quinton ‘‘watches the [Employer’s]
parking lot,’’ has an ‘‘office’’ at the plant, and ‘‘reports to
Len Gilley.’’
Booker next recalled that ‘‘we had handbilled’’ ‘‘in the
[employees’] parking lot’’ on June 11–12. Plant Manager
Monty Botkin ‘‘came out and asked if I had permission to
do that, and I said no.’’ Botkin then stated that ‘‘I had to
have prior permission to pass that out.’’ Booker ‘‘put the rest
of [her] handbills in [her] locker and went into the plant.’’
Later, Booker again handbilled ‘‘in the employees’ parking
lot.’’ This time, another security guard, identified as
‘‘Chris,’’ ‘‘was standing out there’’ and told Booker and co-
workers to ‘‘leave.’’ ‘‘Chris,’’ whose ‘‘authority’’ was chal-
lenged by Booker and coworkers, stated that he ‘‘he already
had permission’’ ‘‘to make us leave.’’ Booker and coworkers
then ‘‘went to the road again.’’ Booker noted that ‘‘Chris’
duties [are] similar to Jack [Quinton’s] duties.’’
Booker acknowledged that she is ‘‘a very active Union
supporter’’; caused an unfair labor practice charge to be filed
against the Employer; was ‘‘suspended’’ by the Employer for
‘‘insubordination’’ for ‘‘three days’’; and that her ‘‘charge
was withdrawn by the Union.’’ Booker also acknowledged
handbilling on June 7 without incident, and handbilling after
June 11–12 without incident.
See also the testimony of employee Judy Lane Mitchell,
Transcript 375 to 381, and employee Donna Melton, Tran-
script 389 to 397. Employee Mitchell recalled, inter alia, that
Supervisor Ken Walls approached her while handbilling on
or about June 4 and stated: ‘‘I was not supposed to be on
the parking lot unless I was working. To take my cards and
leave.’’ Employee Mitchell also recalled that on or about
June 11:
Monty in management came and told us we had to have
permission to pass that out on Company property, that
we needed to stop, and that we had to have permission
from the president . . . . [Later,] [security guard] Chris
came out and told us that he had been instructed to tell
us to leave.
Employee Melton recalled, inter alia, that security guard Jack
Quinton told the handbilling employees: ‘‘You’re going to
have to go to the street . . . you can’t do it in the parking
lot.’’ And, security guard ‘‘Chris’’ also ‘‘told us we would
have to go to the street.’’9
Company Vice President Gilley acknowledged that secu-
rity guards Jack Quinton and Chris May ‘‘worked in my de-
partment’’; ‘‘the guards were instructed initially that we
didn’t want anyone on the parking lot at the close of busi-
ness’’; ‘‘we didn’t want really any off duty employees
there’’; and that ‘‘since this incident on June 11’’ ‘‘there’s
been no disruption of handbilling’’ after ‘‘we tried to check
out the law.’’ No effort was made ‘‘to explain to the em-
ployees that [management] had taken’’ any corrective or re-
medial action with respect to employee handbilling in the
employees’ parking lot.10
Production Manager Monty Botkin testified that on June
11 he had observed ‘‘people walking around in the parking
lot [with] some sheets of paper in their hands,’’ and
I asked what [they] were passing out . . . they
showed me . . . I asked if they had asked Mr.
Matsumoto for permission . . . they said no . . . and
I said ‘‘as a courtesy I think you should do that’’ . . .
thanked them and turned and walked off.
Eugene B. Quinton, also known as Jack Quinton, is a se-
curity guard at the plant. On June 4, he observed ‘‘employ-
ees’’ ‘‘in the parking lot’’ ‘‘passing out literature.’’ He testi-
fied:
Well, I went out and inquired, and the procedure that
I had been told to follow was no solicitation on the
parking lot, and go on the street.
He followed this ‘‘procedure.’’ He admitted that that ‘‘it’s
very possible’’ that he later ‘‘stopped down at Seessel’s
parking lot’’ on the way home. He claimed that he ‘‘had a
problem with [his] radio antenna.’’ He could not ‘‘recall’’
telling anyone handing out ‘‘literature’’ that ‘‘they would
lose their job if they kept doing that.’’ He generally referred
to ‘‘incidents’’ in the past involving ‘‘cars stolen’’ and ‘‘peo-
1227BROTHER INDUSTRIES
ple breaking in cars’’ and ‘‘looking in cars.’’ Elsewhere, he
asserted that his concern with the above employee
handbilling was ‘‘with them holding up my shift employees
. . . from getting out of the parking lot.’’
Much of the testimony detailed in sections A and B, supra,
insofar as pertinent here, is not seriously disputed or con-
troverted. There are, however, some cited conflicts in testi-
mony. Thus, with respect to the sequence of events culmi-
nating in the firing of employee Ham, counsel for Respond-
ent Employer argues that the above testimony of Ham and
her coworkers should be discredited noting, inter alia, that
Ham and her coworkers initially made untrue statements to
a Board agent with respect to whether they were on working
time during the solicitation and signing of Ham’s letter. Ham
and her coworkers explained in their testimony before me
that they had in fact initially made these untrue statements
‘‘out of fear’’ and later gave corrected affidavits to a Board
agent. Nevertheless, as a consequence of this and other cited
defects in the testimony of Ham and her coworkers, I have
carefully scrutinized their testimony as compared with the
testimony of Respondent’s witnesses, and, on balance, I am
persuaded on this full record that the above-cited testimony
of employees Ham, Nash, Carlisle, and Booker represents a
more complete, credible, and trustworthy account of the per-
tinent sequence of events. Their testimony is in significant
part mutually corroborative; it is also substantiated in signifi-
cant part by the admissions and acknowledgements of Re-
spondents’ witnesses; it also withstood the test of extensive
cross-examination; and, relying also on their demeanor, they
impressed me as truthful and credible witnesses.
On the other hand, I do not credit the above-cited testi-
mony of Gilley, Matsumoto, O’Donnell, Pannell, Ingle,
Jacobson, Neal, Burchett, Morris, Swords, Sowell, or Farley
insofar as their testimony conflicts with the testimony of
Ham, Nash, Carlisle, and Booker. The testimony of Gilley,
Matsumoto, O’Donnell, Pannell, Ingle, Jacobson, Neal,
Burchett, Morris, Swords, Sowell, and Farley, as dem-
onstrated above, was at times vague, incomplete, unclear,
contradictory, shifting, and evasive. They did not impress me
as trustworthy and reliable witnesses. As discussed more
fully below, I reject as incredible the assertions of manage-
ment witnesses that, in the past, the Employer had vigorously
enforced its no-solicitation no-distribution rule. The credible
evidence of record makes it clear that employees as well as
management frequently had violated and ignored this rule.
Indeed, employee Ham, despite the Employer’s ‘‘progressive
discipline policy,’’ was the only person apparently ever ter-
minated for a claimed violation of this rule. Further, I reject
as incredible the shifting and essentially unsubstantiated
claim by management that Ham was fired because she had,
after having been warned, engaged in proscribed solicitation
during working time. The credible evidence of record, in-
cluding the admissions and acknowledgements of Respond-
ent’s witnesses, is to the contrary. I also reject as incredible
management’s shifting and essentially unsubstantiated claim
that Ham was fired for ‘‘insubordination.’’ Here, too, the
credible evidence of record, including the admissions and ac-
knowledgements of managements’ witnesses, is to the con-
trary. In short, as discussed below, I am persuaded here that
Ham was fired because she and her coworkers had engaged
in protected concerted activity and management wanted to
stop this protected concerted activity.
In addition, with respect to the testimony pertaining to the
employees’ later attempts to handbill in the employees’ park-
ing lot and related conduct, I credit the testimony of employ-
ees Harkness, Booker, Mitchell, and Melton as detailed
above. Their testimony is also in significant part mutually
corroborative, substantiated by admissions of Respondent’s
witnesses, withstood the test of extensive cross-examination,
and, relying also on demeanor, they too impressed me as
trustworthy and reliable witnesses. The above-cited testimony
of Gilley, Botkin, and Quinton is vague, incomplete, and un-
believable. In particular, I find totally incredible the assertion
by security guard Quinton that he showed up at the Seessel
parking lot during the early hours of the morning to fix his
antenna or the claim by Manager Botkin that he stated to the
employees attempting to handbill in the employee parking lot
that ‘‘as a courtesy’’ they should get President Matsumoto’s
‘‘permission’’ and then ‘‘thanked them and turned and
walked off.’’ I also find totally incredible the assertion by
Gilley to the effect that his ‘‘guards’’ were ‘‘instructed’’ to
prohibit the type of activity involved here because ‘‘we had
some employees that sold drugs in the parking lot’’ and
‘‘we’ve had some drug busts’’ and ‘‘there weren’t to be any
outsiders on it in the middle of the night’’ ‘‘creating any dis-
turbances.’’ Similarly, I find totally incredible Quinton’s re-
lated attempt to justify this conduct because assertedly
‘‘we’ve had cars stolen’’ and ‘‘incidents of breaking in
cars.’’ The credible evidence of record makes it quite clear
that management was again attempting to interfere with em-
ployee protected concerted activity and was not acting in fur-
therance of valid or lawful business objectives.
Discussion
Section 7 of the National Labor Relations Act guarantees
employees the ‘‘right to self-organization, to form, join or as-
sist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection,’’ as well as the right ‘‘to
refrain from any or all such activities.’’ Section 8(a)(1) of
the Act makes it an unfair labor practice for an employer ‘‘to
interfere with, restrain, or coerce employees in the exercise
of’’ their Section 7 rights. In Hoytuck Corp., 285 NLRB 904
(1987), the Board explained:
We agree . . . that [the employee’s] conduct in pre-
paring and circulating an employee petition that com-
plained of the conduct of respondent’s [supervisor] to-
wards employees and . . . sought his discharge is pro-
tected activity here because it is evident that [the super-
visor’s] conduct had an impact on employee working
conditions . . . .
The Board noted:
We wish to make it clear, however, that cases involving
employee concerted activity regarding the selection and
termination of a supervisor who has an impact on em-
ployee working conditions are distinguishable from
cases in which employee concerted activity is designed
solely to effect or influence changes in the management
hierarchy . . . .
1228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
See also Korea News, 297 NLRB 537, 539 to 540 (1990);
Oakes Machine Corp., 288 NLRB 456 (1988), enfd. in part
897 F.2d 84 (2d Cir. 1990); and cases cited.
The credible evidence of record in the instant case, as de-
tailed supra, shows that employee Ham and her coworkers
‘‘openly discussed’’ their ‘‘discontent with the way things
were handled out there [at the plant].’’ Ham and her cowork-
ers were concerned, inter alia, with ‘‘favoritism’’ and ‘‘un-
fairness’’ which they attributed to Company Personnel Direc-
tor Gilley. Ham ‘‘mentioned’’ to her supervisor, Morris, that
she was ‘‘thinking about writing a letter’’ to Company Presi-
dent Matsumoto relating her and her coworkers’ complaints;
‘‘it was something . . . that [she] needed to do for [her]
co-workers and [herself].’’ Later, on the evening of Wednes-
day, March 4, 1993, Ham composed such a letter at home
to be presented to Company President Matsumoto. She con-
ferred that evening on the telephone with coworkers who
agreed to sign the letter the following day at work. The let-
ter, as quoted above, complained to Company President
Matsumoto that ‘‘all of us are so unhappy with the way
things are handled’’; ‘‘the morale of us hourly employees is
at an all time low’’; ‘‘there is so much favoritism and unfair-
ness going on’’; ‘‘we really don’t need a Union, what we
need is a friend’’; ‘‘please give us a chance to meet with you
and talk with you about our feelings’’; ‘‘all we’re asking for
is a chance to be heard and the right to be treated like a per-
son instead of a number’’; ‘‘our complaints aren’t about
money, they’re about fairness’’ and ‘‘fair treatment’’; ‘‘this
is our cry for help.’’ Ham’s letter, as noted, attributed her
and her coworkers’ complaints to Company Personnel Direc-
tor Gilley who, in Ham’s view and the view of her cowork-
ers, ‘‘could care less about any employees out here.’’
Ham signed the letter and took it to work on Thursday,
March 5. There, during the early morning hours, she solicited
during working time the signatures of 11 of her coworkers
on the C chassis line. There was ‘‘no interruption with re-
spect to the production line’’ as a consequence of this activ-
ity and, in fact, management has never claimed ‘‘any inter-
ruption with respect to the production line’’ because of
Ham’s conduct. Ham, by 9 a.m., had obtained ‘‘all the signa-
tures on the letter.’’ She then made copies of the letter and
put the original signed letter in a ‘‘sealed’’ envelope to be
presented to Company President Matsumoto when he came
out on the production floor. She also showed copies of the
letter to various employees and supervisors explaining that
she ‘‘had made copies’’ for other sections or lines in the
plant in order to discover whether they wanted ‘‘to devise a
letter of their own.’’ Supervisor Dixon, Assistant Manager
Swords, and Supervisor Ingle, although aware of Ham’s ‘‘ac-
tions’’ and ‘‘plans,’’ did not then apprise Ham that her ‘‘ac-
tions’’ or ‘‘plans’’ were ‘‘inconsistent with the [Employer’s]
no-solicitation policy.’’
Later, on Friday, March 5, Ham was first warned by Su-
pervisors Ingle, Morris, and Sowell that, in effect,
don’t let me catch you passing it [the letter] around on
Company time or soliciting on Company time because
that is against Company policy . . . .
Ham explained that she
was not soliciting the letter anymore, [she] had already
solicited all that [she] was going to do.
Ham, as she credibly testified, did not in fact solicit any sig-
natures to her letter on Friday, March 5. Ham had the origi-
nal letter in a ‘‘sealed’’ envelope in her ‘‘pocket’’ and she
‘‘was going to give the [original] letter’’ to Company Presi-
dent Matsumoto when he came out on the production floor.
Personnel Director Gilley first became aware of Ham’s let-
ter on Friday, March 5. He instructed Supervisor Sowell ‘‘to
do something’’; ‘‘to tell her to stop circulating it.’’ He in-
structed Assistant Manager Swords to ‘‘follow up’’ and
‘‘verify the fact that Ham had stopped the circulation of this
letter.’’ Ham was later told by Supervisor Morris that she
‘‘can get in trouble for this.’’ She was told by Supervisor
Sowell that this is ‘‘soliciting’’ and a ‘‘personal vendetta,’’
and that she ‘‘shouldn’t give the letter to the president . . .
it was not a good time . . . Mr. Matsumoto had a lot of
things going on right now.’’ Ham, as stated, denied engaging
in ‘‘soliciting’’ and also denied having ‘‘any personal reason
for preparing the letter.’’
Later, on Monday, March 8, as Ham credibly recalled,
I returned to work; I was on the production line work-
ing with Jackie Terry . . . someone . . . handed me
this paper . . . it was a copy of my letter; and I folded
it up and stuck it in my smock and I continued to help
Jackie work . . . .
‘‘Two or three minutes later,’’ B Line Supervisor Jacobson
‘‘approached’’ Ham and said that she was ‘‘looking for
. . . a letter.’’ Ham ‘‘pulled the [copy of the] letter out of
[her] pocket’’ and ‘‘showed it’’ to Jacobson. Jacobson ad-
monished Ham:
Lisa, I’m telling you as a friend, do not be passing this
letter around on Company time, do not be getting any
signatures, . . . you know you can get in trouble
. . . .
Ham again explained that ‘‘I’m not soliciting . . . all my
solicitation was done on Thursday.’’ Ham added:
My original copy of the letter has been sealed and been
in my pocket to give to the president . . . . This [copy
of the] letter came back to me from B line. I was work-
ing here and it was just sent back to me a few minutes
ago.
Supervisors Sowell and Morris similarly confronted Ham and
she again protested that she ‘‘was not passing any petitions
around.’’ Subsequently, however, Assistant Manager Swords
instructed Ham that he wanted to see Ham and Supervisor
Morris in the conference room. There, Swords ‘‘read’’ the
Employer’s no-solicitation rule to Ham and informed her that
she was being ‘‘suspended pending an investigation.’’ Ham
was told:
You need to leave the premises, you cannot go back on
the floor and get anything.
Morris got Ham’s personal belongings and Swords drove her
home. Ham thereafter mailed the ‘‘original letter’’ to Com-
pany President Matsumoto. She was later told that she had
been ‘‘terminated.’’
Ham credibly explained that some 5 years earlier, in 1988,
she had ‘‘a brief affair’’ with Gilley; ‘‘this was several years
ago’’ and had no ‘‘effect’’ on and did not ‘‘contribute at all’’
1229BROTHER INDUSTRIES
to the preparation and circulation and signing of her letter;
and, ‘‘as far as trying to get Mr. Gilley’s job, that was not
my intention.’’ As noted, Ham was later ‘‘promoted’’ in
1991 to a ‘‘lead person.’’
The Employer’s records and the testimony of Supervisors
Morris and Swords show that Ham was in fact ‘‘separated’’
for an alleged ‘‘violation of the [Employer’s] no-solicitation
rule.’’ However, the credible evidence of record shows that
Ham—after having been first warned on Friday, March 5,
not to engage in any further solicitation or distribution of her
letter—did not in fact thereafter solicit signatures or dis-
tribute any ‘‘copies’’ of her letter. And, Ham had made this
clear to management. The Employer then shifted over to ‘‘in-
subordination’’ and ‘‘gross misconduct’’ as reasons for her
‘‘termination.’’ Again, the credible evidence of record shows
that Ham in fact did not engage in ‘‘insubordination’’ or
‘‘gross misconduct.’’ Indeed, the credible evidence of record
also shows that in the past the Employer readily tolerated
and its supervisory personnel often participated in numerous
violations of its cited no-solicitation and no-distribution rule.
Only Ham was ‘‘terminated,’’ despite the Employer’s ‘‘pro-
gressive disciplinary procedures,’’ for this alleged violation.
As counsel for the Employer acknowledged, ‘‘the only per-
son where we have written documentation of violating the
no-solicitation policy is Ms. Ham.’’
I find and conclude on this record that Ham was engaged
in protected concerted activity when she, after conferring
with her coworkers, composed and signed her letter and
thereafter obtained the signatures of 11 of her coworkers to
the letter. Ham and her coworkers, as her letter shows, were
complaining about ‘‘favoritism’’ and ‘‘unfairness’’ in the
workplace and they principally attributed this conduct to Per-
sonnel Director Gilley. Ham and her coworkers did not seek
the ouster of Gilley; instead, they were petitioning Company
President Matsumoto to meet with them and listen to their
complaints. Ham and her coworkers were thus acting in con-
cert to complain over their terms and conditions of employ-
ment. In any event, as the Board explained in Hoytuck,
supra,
We agree . . . that [the employee’s] conduct in pre-
paring and circulating an employee petition that com-
plained of the conduct of respondent’s [supervisor] to-
wards employees and . . . sought his discharge is pro-
tected activity here because it is evident that [the super-
visor’s] conduct had an impact on employee working
conditions . . . .
Clearly, Ham and her coworkers reasonably per-
ceived Personnel Director Gilley’s acts of ‘‘favoritism’’
and ‘‘unfairness’’ as impacting on their working condi-
tions.
Personnel Director Gilley wanted to ‘‘stop’’ the ‘‘circula-
tion’’ of Ham’s letter. He invoked the Employer’s no-solici-
tation no-distribution rule. According to Gilley, a ‘‘purpose’’
or one of the ‘‘objectives’’ of this rule was in fact to ‘‘con-
tinue’’ the Employer’s ‘‘objective’’ of being ‘‘Union-free.’’
He felt similarly threatened here by this protected concerted
activity. However, ‘‘cumulative’’ evidence established that,
in the past, employees, with the participation of management
representatives, frequently violated and ignored this rule.
This rule was thus being disparately invoked and applied to
Ham and her coworkers in an attempt to ‘‘stop’’ this pro-
tected concerted activity. See Cumberland Farms, 307 NLRB
1479, 1490–1492 (1992), enfd. 984 F.2d 556 (1st Cir. 1993).
Further, the record makes it clear that Ham was not engaged
in ‘‘continued’’ ‘‘solicitation’’ or ‘‘circulation’’ of her letter.
In sum, I find and conclude that the Employer admonished
and ultimately discharged Ham in an attempt to prevent her
and her coworkers from exercising their Section 7 rights, in
violation of Section 8(a)(1) of the Act. I reject as incredible
and pretextual management’s asserted shifting and unsubstan-
tiated reasons for her termination.
The Employer argues that ‘‘the Company had an honest
belief that Ham had engaged in repeated violations of the
Company’s no-solicitation no-distribution policy which was
the basis for her suspension.’’ The credible evidence of
record, as detailed and discussed above, is to the contrary.
And, as restated in Keco Industries, 306 NLRB 15, 17
(1992), ‘‘Where an employee is disciplined for having en-
gaged in misconduct in the course of union [or other pro-
tected concerted activity], the employer’s honest belief that
the activity was unprotected is not a defense if in fact the
misconduct did not occur.’’ Ham did not in fact engage in
‘‘repeated violations of the Company’s no-solicitation no-dis-
tribution policy.’’ The Employer argues that ‘‘Ham’s activi-
ties were motivated by personal animus and therefore not
protected under Section 7 of the Act.’’ Again, the credible
evidence of record, as detailed and discussed above, is to the
contrary. Ham was not, as argued by the Employer, ‘‘seeking
the removal of a management official because of personal
reasons.’’
The Employer also argues that ‘‘Ham abused Board proc-
esses by lying in her . . . Board affidavit . . . and encour-
aging other affiants . . . to lie in their . . . Board affida-
vits.’’ As recited above, Ham and her coworkers credibly ex-
plained in their testimony before me that they had in fact ini-
tially made untrue statements ‘‘out of fear’’ and later gave
corrected affidavits to a Board agent. Ham acknowledged be-
fore me that in her initial prehearing affidavit to a Board
agent she had stated that ‘‘the signatures [on her letter] were
signed on break, but that was not correct.’’ She explained
why she and various coworkers had made this untrue state-
ment:
I think mainly out of fear, because once I had been dis-
charged, the Company had a meeting with the employ-
ees about the solicitation, and several of the employees
were concerned about having their signatures on the pe-
tition, and they were concerned about me as far as try-
ing to get my job back.
And, employee Carlisle similarly acknowledged before me
that she too had corrected her prehearing affidavit to admit
that the signing of Ham’s letter was in fact during working
time. She admittedly had lied because she ‘‘didn’t want to
lose [her] job.’’ She recalled that she had attended a meeting
where the employees were told [by management] that some-
one was terminated on their line for soliciting and that no
action was being taken yet against the other employees who
signed. . . . They stressed ‘‘yet’’ as if something could [hap-
pen].
Although giving false statements to a Board agent is a se-
rious violation of law and is not to be condoned, neverthe-
less, on balance, here, Ham and her coworkers gave cor-
1230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 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.
rected affidavits and fully and credibly testified before me
that they had thus acted ‘‘mainly out of fear.’’ This ‘‘fear’’
was the product of management’s attempt to disparately en-
force its no-solicitation no-distribution rule against Ham and
thus stop Ham and her coworkers from exercising their rights
protected under Section 7 of the Act. Under the cir-
cumstances presented here, I would not find that Ham or her
coworkers should be denied the protections of the Act; nor
would I find that Ham, by this conduct, has rendered herself
unfit for further employment. On this record, such a result
would not reasonably effectuate the purposes and policies of
the Act. See ABF Freight System v. NLRB, mem. 113 S.Ct.
2959 (1994).
The Employer did not simply attempt to prevent Ham and
her coworkers from engaging in the above-protected con-
certed activities. Some 3 months later, when off-duty em-
ployees attempted to distribute union literature in the em-
ployees’ parking lot, the Employer again resorted to conduct
which plainly tended to interfere with their Section 7 rights.
As found above, Plant Manager Botkin told an employee that
they ‘‘had to have permission to pass that out.’’ Supervisor
Walls told an employee that she ‘‘was not supposed to be
on the parking lot’’—‘‘to take [her] cards and leave.’’ The
plant security guards similarly told the employees ‘‘to take
it to the street’’—they ‘‘could not do that on Company prop-
erty.’’ One security guard admonished an employee that she
‘‘would not be an employee long if [she] kept that up.’’ He
also followed the employees to a nearby parking lot where
he engaged in open surveillance of their protected concerted
activities. Such conduct clearly violates the proscriptions of
Section 8(a)(1) of the Act as alleged. See Republic Aviation
Corp., 324 U.S. 794 (1945); Sahara Tahoe Hotel, 292 NLRB
812 (1989); and Chopp & Co., 295 NLRB 1058 (1989).
Counsel for the Employer argues that it ‘‘had valid busi-
ness reasons for prohibiting all solicitation on the Company’s
property after hours.’’ I reject this asserted justification for
the Employer’s broad prohibition here as not sufficiently
supported by the credible evidence of record. Instead, I find
here that the Employer was again attempting to interfere with
employee Section 7 activities. See St. Luke’s Hospital, 300
NLRB 836 (1990). Further, as noted above, the Employer, in
its answer to the complaint, specifically admitted to the agen-
cy status of its two security guards. (See G.C. Exhs. 1(i) and
(k).) Counsel for Respondent first claimed at the hearing that
‘‘that was an error’’ and denied ‘‘agency.’’ (See Tr. 75 to
77.) I reject counsel for the Employer’s untimely attempt to
change this answer and admission relied on by counsel for
the General Counsel. In any event, the essentially undisputed
evidence of record amply establishes the agency status of the
security guards, within the meaning of Section 2(13) of the
Act. Finally, as Company Vice President Gilley asserted,
‘‘since this incident on June 11’’ ‘‘there’s been no disruption
of handbilling’’ after ‘‘we tried to check out the law.’’ Gilley
acknowledged, however, that no effort was made ‘‘to explain
to the employees that [management] had taken’’ any correc-
tive or remedial action with respect to employee handbilling
in the employees’ parking lot.
CONCLUSIONS OF LAW
1. Respondent Employer is an employer engaged in com-
merce as alleged, and the Charging Party Union is a labor
organization as alleged.
2. Respondent Employer’s employees, including employee
Lisa Ham, concertedly circulated and signed a petition com-
plaining about a supervisor and conditions of employment.
The Employer thereafter enforced its no-solicitation no-dis-
tribution rule selectively and disparately against the above
employees. The Employer warned, suspended, and dis-
charged employee Ham. The Employer engaged in the above
conduct to discourage employees from engaging in protected
concerted activities, in violation of Section 8(a)(1) of the
Act.
3. Respondent Employer also prohibited its employees
from distributing union leaflets in its employees’ parking lot,
engaged in surveillance of employee protected concerted ac-
tivities, and threatened an employee with discharge because
of employee protected concerted activities, in further viola-
tion of Section 8(a)(1) of the Act.
4. The unfair labor practices found above affect commerce
as alleged.
REMEDY
To remedy the unfair labor practices found above, Re-
spondent Employer will be directed to cease and desist from
engaging in such conduct and like or related conduct and to
post the attached notice. Respondent Employer, having vio-
lated Section 8(a)(1) of the Act by unlawfully discharging
employee Lisa Ham, will be directed to offer her immediate
and full reinstatement to her former job or, in the event her
former job no longer exists, to a substantially equivalent job,
without prejudice to her seniority and other rights and privi-
leges, and make her whole for any loss of earnings she may
have suffered by reason of the Employer’s unlawful conduct,
by making payment to her of a sum of money equal to that
which she normally would have earned from the date of the
Employer’s unlawful conduct to the date of its offer of rein-
statement, less net earnings during such period, with backpay
to be computed as prescribed in F. W. Woolworth Co., 90
NLRB 651 (1977), and interest as provided in New Hori-
zon’s for the Retarded, 283 NLRB 1173 (1987). See gen-
erally Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Respondent Employer will also be directed to 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 determine backpay and compli-
ance with this Decision and Order. And, Respondent Em-
ployer will be directed to expunge from its files any ref-
erences to the unlawful suspension and discharge of em-
ployee Ham and notify her in writing that this has been done
and that evidence of this disciplinary action will not be used
as a basis for future personnel action against her, in accord-
ance with Sterling Sugars, 261 NLRB 472 (1982).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended11
ORDER
The Respondent, Brother Industries (U.S.A.), Inc., Bartlett,
Tennessee, its officers, agents, successors, and assigns, shall
1231BROTHER INDUSTRIES
12 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.’’
1. Cease and desist from
(a) Interfering with, restraining, or coercing its employees
in the exercise of their right to engage in protected concerted
activities under Section 7 of the Act by selectively and dis-
parately enforcing its no-solicitation no-distribution rule
against them and by warning, suspending, and discharging an
employee in an attempt to discourage the employees from
engaging in such protected concerted activities.
(b) Interfering with, restraining, or coercing its employees
in the exercise of their right to engage in protected concerted
activities under Section 7 of the Act by prohibiting its em-
ployees from distributing International Brotherhood of Elec-
trical Workers Local 474’s leaflets in its employees’ parking
lot, engaging in surveillance of employee protected concerted
activities, and threatening an employee with discharge be-
cause of employee protected concerted activities.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to employee Lisa Ham immediate and full rein-
statement to her former job or, in the event her former job
no longer exists, to a substantially equivalent job, without
prejudice to her seniority and other rights and privileges, and
make her whole for any loss of earnings she may have suf-
fered by reason of her unlawful suspension and discharge,
with interest, as provided in the Board’s decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying all payroll records,
social security payment records, timecards, personnel records
and reports, as well as all other records necessary and useful
in analyzing and computing the amount of backpay under the
terms of this Order.
(c) Expunge from its files any references to the unlawful
suspension and discharge of employee Ham and notify her
in writing that this has been done and that evidence of this
unlawful disciplinary action will not be used as a basis for
future personnel action against her.
(d) Post at its facilities copies of the attached notice
marked ‘‘Appendix.’’12 Copies of the notice, on forms pro-
vided by the Regional Director for Region 26, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered 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.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT interfere with, restrain, or coerce our em-
ployees in the exercise of their right to engage in protected
concerted activities under Section 7 of the National Labor
Relations Act by selectively and disparately enforcing our
no-solicitation no-distribution rule against them and by warn-
ing, suspending, and discharging an employee in an attempt
to discourage our employees from engaging in such protected
concerted activities.
WE WILL NOT interfere with, restrain, or coerce our em-
ployees in the exercise of their right to engage in protected
concerted activities under Section 7 of the Act by prohibiting
our employees from distributing International Brotherhood of
Electrical Workers Local 474’s leaflets in our employees’
parking lot, engaging in surveillance of employee protected
concerted activities and threatening an employee with dis-
charge because of employee protected concerted activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer employee Lisa Ham immediate and full re-
instatement to her former job or, in the event her former job
no longer exists, to a substantially equivalent job, without
prejudice to her seniority and other rights and privileges, and
make her whole for any loss of earnings she may have suf-
fered by reason of her unlawful suspension and discharge,
with interest.
WE WILL expunge from our files any references to the un-
lawful suspension and discharge of employee Ham and no-
tify her in writing that this has been done and that evidence
of this unlawful disciplinary action will not be used as a
basis for future personnel action against her.
BROTHER INDUSTRIES (U.S.A.), INC.