Cannondale Corp.

National Labor Relations Board - Board Decisions

Mar 26, 1993

310 N.L.R.B. 845 (N.L.R.B. 1993)

845
310 NLRB No. 145
CANNONDALE CORP.
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. We also find no merit in
the Respondent’s allegations of bias and prejudice on the part of the
judge. Thus, we find no evidence that the judge prejudged the case,
made prejudicial rulings, or demonstrated a bias against the Re-
spondent in his analysis or discussion of the evidence. Similarly,
there is no basis for finding that bias and prejudice exist merely be-
cause the judge resolved important factual conflicts in favor of the
General Counsel’s witnesses. NLRB v. Pittsburgh Steamship Co.,
337 U.S. 656, 659 (1949).
2 In adopting the judge’s finding that the written warning to em-
ployee Cindy Carson for violating the no-solicitation/no-distribution
rule violated Sec. 8(a)(3) and (1) of the National Labor Relations
Act, we do not rely on the judge’s finding that after the union cam-
paign ended, other forms of solicitation went on during worktime
and in work areas, and that there was no evidence that the employ-
ees involved were punished. The testimony regarding solicitation
after the union campaign ended was limited to a few isolated inci-
dents and there was no evidence that the Respondent’s management
was aware of these incidents. The fact, that the employees involved
in those incidents apparently were not punished cannot be used to
prove discrimination on the part of the Respondent.
1 The General Counsel also filed an unopposed motion to correct
transcript which is hereby granted.
Cannondale Corporation and Baltimore Regional
Joint Board of Amalgamated Clothing & Tex-
tile Workers Union, AFL–CIO. Cases 6–CA–
23649 and 6–CA–23850
March 26, 1993
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On April 22, 1992, Administrative Law Judge Rob-
ert A. Giannasi issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed limited cross-exceptions, a
supporting brief, and an answering brief. The Respond-
ent filed an answering brief to the General Counsel’s
exceptions and a reply brief to the General Counsel’s
supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Cannondale Corporation,
Bedford, Pennsylvania, its officers, agents, successors,
and assigns, shall take the action set forth in the rec-
ommended Order.
Stephanie E. Brown, Esq., for the General Counsel.
Malcolm L. Pritzker, Esq., of Washington, D.C., for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge. This
case was tried on February 18 and 19, 1992, in Bedford,
Pennsylvania. The consolidated complaint before me alleges
that Respondent violated Section 8(a)(1) of the Act by
impliedly threatening employees with a closure of operations
if they selected a union, and by unlawfully promulgating and
maintaining a no-solicitation/no-distribution rule because of a
nascent union campaign. The complaint also alleges that Re-
spondent violated Section 8(a)(3) and (1) of the Act by
issuing a disciplinary warning to employee Cynthia (Cindy)
Carson for violating the above rule, transferring employee
Donna King from the third shift to the daylight shift, and by
refusing to recall from layoff or reemploy employee Patricia
Griffith because of their union activities and to discourage
union activities generally. The Respondent filed an answer
denying the essential allegations in the complaint. After the
conclusion of the hearing, the parties filed briefs which I
have read and considered.1
Based on the testimony of the witnesses, including particu-
larly my observation of their demeanor while testifying, the
documentary evidence, and the entire record, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Delaware corporation with an office and
place of business in Bedford, Pennsylvania, where it is en-
gaged in the manufacture of bicycles and related products.
Respondent has operated its Bedford facility since 1977 and
it employs some 450 people at that location. During a rep-
resentative 1-year period, Respondent sold and shipped, from
its Bedford facility, goods valued in excess of $50,000 di-
rectly to points outside Pennsylvania and purchased and re-
ceived goods valued in excess of $50,000 directly from
points outside Pennsylvania. Accordingly, I find, as Respond-
ent admits, that it is an employer engaged in commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act.
The Charging Party (the Union) is a labor organization
within the meaning of Section 2(5) of the Act.
846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Plant Manager Rick Hinson gave a similar speech during shifts
when Montgomery could not be present. And a similar theme is
echoed in a late April letter distributed to employees urging them
not to sign union cards. Neither of these was alleged to be unlawful
and neither has any bearing on the legality of Montgomery’s re-
marks.
II. THE UNFAIR LABOR PRACTICES
A. The Facts
In April 1991, the Union began a campaign to organize
the Respondent’s employees. A group of about 12 employees
was chosen to comprise a union organizing committee. Its
members included Patricia Griffith, Donna King, Gayle
Oldham, Cindy and Steve Carson, Jay Kaufman (who later
transferred his allegiance), and Dennis Stickle. The most ac-
tive by far were Griffith, Cindy Carson, and Donna King,
who attended meetings, passed out union cards and literature,
and spoke to other employees on behalf of the Union. Every-
one in the plant, from employees to supervisors and man-
agers, knew the identities of the union activists, particularly
Griffith, King, and Cindy Carson. The record is replete with
evidence of such knowledge and testimony that news, par-
ticularly of union activity, traveled swiftly through the plant.
1. The no-solicitation/no-distribution rule
On April 24, 1991, the Respondent posted and distributed
to employees a one-page notice which stated two new poli-
cies that were being adopted and would shortly be added to
a new edition of an existing employee handbook that was
being prepared. The first was its so-called labor policy,
which amounted to a statement that Respondent was opposed
to unions and would ‘‘use every legal means to keep our
Company free from unions and the trouble they so often
cause.’’ The second was a rule that banned nonemployee so-
licitation and distribution and employee activity described as
follows:
2. Employees may not solicit fellow employees for
any purpose during the working time of any participant
to such conversation. This, may be done during lunch
or break times.
3. Employees may not distribute literature for any
nonbusiness purpose to other employees in
production/work areas at any time, but I may do so in
non-work areas during non-work times.
The language of the rule was valid on its face. However, the
General Counsel alleges that it was unlawfully promulgated
and maintained in order to discourage union activity. Re-
spondent alleges that it was promulgated to meet legitimate
production and disciplinary problems. I shall discuss this
issue in more detail later in the analysis section of this deci-
sion.
2. The Montgomery speech
On April 5, 1991, the day after the above notice was post-
ed and distributed, the Respondent’s owner and president, Jo-
seph S. Montgomery, spoke to several groups of assembled
employees on worktime. Montgomery lives in Connecticut
but travels to Bedford weekly and spends 2 or 3 days there.
He spoke to employees about a number of things, including
a new evaluation system that he was going to impose, but
he also discussed the union campaign and its possible impact
on his operation. The General Counsel alleges that the April
5 speech was coercive because it implied that Respondent
would close the plant if the employees selected a union to
represent them. The Respondent states that Montgomery was
simply making lawful predictions of the possible con-
sequences of unionization. The Supreme Court has held that
the words in such a speech, as spoken and understood, are
crucial to the determination of whether an employer has sim-
ply told employees ‘‘what he reasonably believes will be the
likely economic consequences of unionization that are out-
side his control’’—lawful comment; or has made ‘‘threats of
economic reprisal to be taken solely on his own volition’’—
unlawful coercion. NLRB v. Gissel Packing Co., 395 U.S.
575, 618 (1969), quoting from NLRB v. River Togs, 382 F.2d
198, 202 (2d Cir. 1967).
There was no written documentation or tape recording of
the speech. And the testimony of all the witnesses was either
confusing or truncated, much too varied to meld into a com-
posite. The testimony is thus not clear enough for me to
make specific findings as to what was said. I do not say this
because anyone was deliberately dissembling. Rather I think
the testimony reflected a lack of accurate recollection.
I do believe that Montgomery said something about union-
ized firms closing or moving because of high labor costs,
and something about his competitors, most of whom operated
overseas, having lower labor costs. But I cannot determine
what, if anything, more he said about how this might impact
the Bedford plant. What he said about higher labor costs and
competition would not necessarily be unlawful although it
might cause employees some anxiety and to question wheth-
er unions can always deliver what they promise. It would be
a stretch to imply from this alone that Montgomery threat-
ened to do something within his control—‘‘solely on his own
volition’’—to move or close the plant. Indeed, it appears that
he promised to try to keep the plant operating; certainly there
was every indication, and it appears to have been expressed,
that Respondent was making money. On the other hand, an
employer knows full well, or should, that union demands do
not translate into higher labor costs unless it agrees with
them and no one knows what a union will demand before
it is even selected. Nevertheless, in the context of this record,
I cannot make an inference that Montgomery used language
that would distort this truism or use it to play brinkmanship
with an unlawful threat. Because the General Counsel has the
burden of proving not only that what was said was unlawful,
but what was said in the first place, any ambiguity in the
record or inability on my part, because of that ambiguity, to
make adequate findings of fact as to what was said must re-
sult in dismissal. That is the state of this record. I shall there-
fore dismiss the complaint allegation involving the implied
threat to close based on Montgomery’s April 25, 1991
speech.2
3. The Carson warning
On May 23, 1991, Respondent issued a written document,
entitled ‘‘counseling statement’’ and described as ‘‘warning
decision,’’ to employee Cindy Carson for ‘‘soliciting in work
areas.’’ It was signed by Plant Manager Rick Hinson. Carson
also signed the document indicating that she read and under-
stood the warning and received copy of it. The warning stat-
847CANNONDALE CORP.
3 The above is based on Carson’s uncontradicted testimony which
I credit.
4 It was admitted that Corle was a statutory supervisor at all mate-
rial times. He testified that he was one of the three top managers
at the plant.
5 The above is based on Carson’s truthful, clear, detailed, and en-
tirely reliable testimony. I reject Corle’s testimony to the extent that
it differs from that of Carson, particularly with respect to their meet-
ing in his office, because he was not a truthful or reliable witness,
which I will document elsewhere in this decision, and because his
testimony about the meeting was vague. Neither Corle nor Hinson
seriously questioned Carson’s testimony about the meeting in
Hinson’s office.
ed that this was a first offense, but that a second offense
would result in a day’s suspension and a third would result
in discharge.
The circumstances surrounding the issuance of this warn-
ing are as follows. That morning, before the beginning of her
shift, Carson, a known union leader, walked into the plant—
a large room with work stations essentially evenly divided on
either side of a 5-foot-wide aisleway framed in part by yel-
low lines. She walked down the aisleway distributing union
leaflets to employees as she walked; she turned left along an-
other aisleway and went over to a group of employees sitting
on chairs along a wall waiting to begin work. No one was
working; at least no one to whom Carson distributed the leaf-
lets was working. Carson did not solicit anyone to do any-
thing and, although she may have made a brief comment
along her route, there is no evidence of any discussions be-
tween employees. The literature was accepted; no one ob-
jected to its receipt and there was no litter or literature lying
around. Carson then punched in at 4:56 a.m., a few minutes
before the actual starting time of 5 a.m.3
Shortly thereafter, at about 5:45 a.m., Supervisor Ken
Corle4 called Carson into his office. Corle did not observe
Carson passing out union literature, but received some kind
of report—his testimony is not clear on this—that led to his
writing up a warning against Carson. When Carson got to the
office, Corle handed her a written warning—not that de-
scribed above—and asked her to read and sign it. The warn-
ing apparently stated that Carson had been handing out lit-
erature or soliciting on company time. Carson refused to sign
the warning because, as she stated, she had done nothing of
the sort on company time. At one point during this office
visit, Carson tried to call for help from her husband, Steve,
who was also employed by Respondent and was walking by
the office at the time. He briefly tried to intervene, but Corle
told him to desist because he said he was talking to Carson
about her evaluation. Corle told Carson that since she had re-
ceived a favorable evaluation the day before, she should not
‘‘be handing out these union papers.’’ The meeting ended at
this point and Carson returned to work without signing any-
thing.
About 15 minutes later, Corle approached Carson at her
work station and accompanied her to Plant Manager
Hinson’s office. At this point, either Hinson or Corle appar-
ently destroyed the warning initially presented to Carson and
handed her the document that was described above.5
4. The June 2 organizing committee meeting
The Union scheduled an organizing committee meeting for
3:30 p.m. on June 2, 1991, at the Best Western motel in
Bedford. That afternoon, three committee members, Griffith,
Carson, and King, attended the meeting, along with two
union representatives. A group of about 18 or 20 antiunion
employees of Respondent heard about the meeting and de-
cided to go to the motel. They met at a local park and car-
pooled to the motel. When they arrived, they congregated
outside the meeting room and tried to enter, yelling, among
other things, that they did not want a union. Carson, who had
arrived late, had to push her way through the crowd to get
into the meeting. Among the antiunion employees present
were Rick Fetsko and Wendy Sarver, group leaders or
leadpersons who had some authority over other employees,
and Karen Corle, the wife of Supervisor Ken Corle. Karen
Corle testified that the group of antiunion employees was
‘‘very loud and upset,’’ because they came, although
uninvited, to have certain questions answered. Actually, aside
from the committee members, only one other employee,
thought to be sympathetic to the Union, was invited to the
meeting. She did not testify and it is not entirely clear why
this group of uninvited people showed up at the motel where
a union organizing committee meeting was being held.
At one point, Sarver made her way into the doorway of
the meeting room and yelled out to the others that Griffith
and King were inside. She said something about them being
on a list of names kept by Respondent and something to the
effect that ‘‘people can get fired for that.’’ Sarver admitted
that she was ‘‘very, very angry’’ and used ‘‘bad language.’’
One of the union representatives eventually calmed things
down and prevailed upon the antiunion employees to leave
with a promise that he would also meet with them at some
time in the future.
After returning home from the motel confrontation, Karen
Corle dismissed what had transpired with her husband the su-
pervisor. Thereafter, the meeting and the confrontation were
topics of much discussion at the plant. For example, Plant
Manager Hinson commented to Sarver about the ‘‘bad lan-
guage’’ she used during the confrontation at the motel. Based
on the above, and all the evidence in this case, I find that,
after the June 2 union meeting, Respondent knew that Car-
son, King, and Griffith—the only prounion employees in at-
tendance—were the leading activists not only of the 12 orga-
nizing committee members but of the entire 450 employee
work force. Indeed, President Montgomery, who only visits
the plan about 2 or 3 days a week, acknowledged that he
was aware of about 15 union supporters among the employ-
ees, including one, Griffith, whom he mentioned by name.
5. The King transfer
Donna King worked on third shift as a decaler in the paint
department; it was her preference and desire to work the
third shift. When she reported for work the day after the
June 2 committee meeting, she was called aside by Rick
Fetsko and criticized for punching in early. Near the end of
her shift—at about 5:30 a.m.—King saw Ken Corle, Fetsko,
and two other group leaders or supervisors meeting in the of-
fice. Shortly thereafter, Corle came to King’s work station
and told her that she would be transferred to the first shift.
She asked ‘‘what the problem was,’’ and Corle replied that
she ‘‘went to the bathroom too often,’’ that she was out of
her department ‘‘too often,’’ and was talking too much to the
welders. When she asked why she, who did not want to
transfer, had been forced to do so when another worker, who
848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The above is based on King’s straightforward and honest testi-
mony. To the extent that Corle’s testimony differs from hers I reject
it. He was an unreliable witness generally in this proceeding and, as
I show later in this decision, his testimony about the King transfer
was unbelievable.
7 I reject Corle’s testimony that his instructions to McCreary at this
time included a statement that Griffith should be told she needed to
obtain doctor’s release stating the she ‘‘could use a stapler.’’
McCreary was not called by Respondent to corroborate Corle.
Whether Griffith was ever told there was any problem with her med-
ical excuse about using the stapler became a significant issue and
the underpinning of Respondent’s entire defense as to the Griffith al-
legation. Therefore the failure of Respondent to call its personnel di-
rector, the person who made this call, or at least was instructed to
make this call, supports the inference, which I make, that such an
instruction was neither given to McCreary nor transmitted to Grif-
fith. It also supports my finding, which is based on many other fac-
tors, including his demeanor on the witness stand, that Corle was not
a truthful witness.
8 Finnegan did not testify in this proceeding, but Kaufman did. He
was called by the General Counsel. Kaufman had originally been a
member of the union organizing committee, but later turned against
the Union. He did not attend the June meeting. When he testified
he was clearly frightened. He was reluctant to confirm anything in
his sworn pretrial affidavit and his testimony consisted mostly of
mumbled, incoherent answers suggesting that he would rather be
anywhere else but in the hearing room. I do not credit any of his
testimony.
9 The above finding concerning the Griffith-Corle telephone call is
based on the credible testimony of Griffith which is compatible with
the contemporaneous uncontradicted testimony of the packing de-
partment meeting. To the extent that Corle’s testimony about the
telephone call can be construed to differ from that of Griffith—and
in some ways it was corroborative, I reject it as vague and evasive.
It also came from a generally unreliable witness.
had expressed a desire to ‘‘go daylight,’’ was not transferred
instead, Corle replied that ‘‘it was for the good of the com-
pany.’’ Actually, it is uncontradicted that, 2 weeks before,
Corle had asked for volunteers for such a transfer and an-
other employee, not King, had volunteered.6
King’s transfer was effectuated on Monday, June 10. The
same day, another employee, Adena Feaster, was transferred
from the first shift to the third shift. Two days later, a new
employee was hired for the third shift, but she was trained
for 3 days on the first shift. On June 17, Feaster returned to
the first shift and Missy Hilligast moved from the first shift
to the third shift. On June 24, Hilligast returned to the first
shift. This switch was accomplished because neither Hilligast
nor Feaster could work 2 weeks straight on the third shift
and each volunteered to do so for 1 week. After the week
of June 24 no one worked on third shift because it was abol-
ished and all the employees working on that shift were trans-
ferred to the first shift. There is no allegation that the abol-
ishment of the third shift was unlawful. For the period be-
tween King’s involuntary transfer and the abolishment of the
third shift, King continued to receive the 15-cent-per-hour
night differential to which third-shift workers were entitled.
At about this time—actually shortly after the June 2 meet-
ing, the Union suspended its campaign at the Respondent’s
Bedford plant. According to Union Representative Georgia
McLucas, the employees were ‘‘just scared to death’’ and the
Union filed unfair labor practice charges involving some of
the events recounted herein with the Pittsburgh Regional Of-
fice.
On July 18, 1991, the General Counsel issued the initial
complaint in this case dealing with charges that the Carson
and King incidents were unlawful.
6. The layoff and refusal to recall Griffith
Patricia Griffith has worked for Respondent for 5 years,
most recently in the packing department. On Thursday, Au-
gust 8, 1991, her immediate supervisor, Bill Ressler, ap-
proached her and asked her if she would like to have Friday,
the next day, off. She agreed, as did another packing depart-
ment employee, Gayle Oldham. It appears that this was done
because of a lack of work which caused the layoff of a num-
ber of other employees at this time. Perhaps 15 employees
in all were laid off. Griffith and Oldham actually left work
at midday on Thursday with the approval of their supervisor.
Oldham was recalled on the following Monday, along with
the other employees who were laid off the week before. The
only employee not recalled on Monday, or a day or so later,
was Griffith.
On Friday, August 9, 1991, Griffith was called at home
by Respondent’s personnel director, Margaret McCreary.
Griffith was told that Respondent was ‘‘having trouble with
the forks,’’ and she would not be coming back to work until
‘‘they call you.’’ Corle testified that he directed McCreary
to make this call to Griffith.7
Griffith was not recalled to work until January 1992, after
a charge was filed with the Board alleging that her failure
to be recalled was unlawful and a new consolidated com-
plaint containing such charge issued in late November 1991.
Between Griffith’s layoff and her recall, Respondent
moved two employees from other departments into the pack-
ing department on a permanent basis. One was Jay Kaufman,
who had worked for Respondent for ‘‘a little over two
years,’’ and the other was Amy Finnegan, whose commence-
ment date is not in the record. Kaufman was transferred into
packing shortly after Griffith’s layoff and Finnegan sometime
later, probably in the fall of 1991.8
It is uncontradicted that, about 2 weeks after Griffith’s lay-
off at a meeting of packing department employees, Corle was
asked a question about Griffith’s recall. Corle said she would
be recalled when ‘‘work picked up.’’ In addition, some time
in September 1991, Griffith called the plant to ask about her
insurance coverage. On that occasion she talked to Corle.
Griffith asked how long she would remain on layoff status.
Corle said ‘‘work was still slow.’’ Griffith then asked Corle
to give her a call ‘‘as soon as you can’’ and he agreed he
would.9
On January 13, 1992, Griffith received a certified letter
from Respondent, stating that it would be ‘‘filling a job
opening in the Packing Department’’ and that she would be
recalled if she provided a ‘‘medical release from your doctor
so that you can perform the packing job.’’ She was given
until January to provide the release. Before her layoff, Grif-
fith had been excused from performing work on the stapler—
a small part of the packing job rotated among all the employ-
ees in the department—because of a medical release specifi-
cally mentioning only her inability to use the rather large sta-
pler which was used to make boxes in which bicycles were
shipped. She had never been told by any supervisor or man-
ager that this limited restriction was impairing her overall
performance or had anything to do with her layoff or her
failure to be recalled, and she never lost any time from work
849CANNONDALE CORP.
because of it. Indeed, in July 1991, she received an evalua-
tion covering the previous 3 months which contained the
highest possible marks for 7 of 10 rating categories and the
second highest marks for the other 3. She received a total
grade of 72 out of a possible 76 points. Nothing was said
in the evaluation about the inability to do stapling or all of
her job or about medical problems hampering her work or
the work of others.
After confirming the requirements set forth in the January
1992 letter with Corle in a telephone conversation, Griffith
obtained the required lease and returned to work.
B. Discussion and Analysis
1. The promulgation of the rule
It is settled law that an otherwise valid no-solicitation no-
distribution rule violates the Act ‘‘when it is promulgated to
interfere with the employee right to self-organization rather
than to maintain production and discipline.’’ Harry M. Ste-
vens Services, 277 NLRB 276 (1985), citing cases. See also
Mack’s Supermarkets, 288 NLRB 1082, 1096–1097 (1988).
Here, the evidence shows that Respondent promulgated the
April 24 rule in response to the Union’s organizing activities.
It was decided on by a management steering committee ‘‘a
day or two’’ before it was promulgated, according to Plant
Manager Hinson, who was a member of the committee and
who alone testified about the promulgation of the rule. Thus,
the timing of the promulgation of the rule was closely related
to the union campaign which began shortly before. More-
over, announcement of the rule was accompanied by an an-
nouncement of an antiunion policy that implicitly explains
the reason for the rule. There was no other explanation for
the rule, either in writing or orally, at the time it was an-
nounced to employees. In these circumstances, it is clear, and
I find, that the rule as promulgated to combat the Union and
not for any other purpose.
The Respondent has not been able to show that the rule
was promulgated to maintain production or discipline. First
of all, that reason was not given to the employees at the time
the rule was promulgated and announced. Secondly, Hinson’s
testimony about the reason for the rule implicates union ac-
tivity. To the extent that it goes further, his testimony does
not withstand scrutiny and conflicts with that of other wit-
nesses, including other Respondent witnesses, in important
resects. He testified as follows concerning the reason for the
rule:
Q. And what led you or the company to adopt the
no solicitation rule dated April 24, 1991?
A. Well, it was a series of events. There were sev-
eral things that happened. One I saw a lot of litter and
it was discussed and it was a problem that hadn’t hap-
pened before. Two there were several for in-stances that
I saw where the groups of people or employees got to-
gether and were standing around talking about the
issues. I know that that is what they were talking about
as when I would come up to the group it would typi-
cally it would disperse. When I would ask if there was
a problem or what is going on, on many occasions
someone would tell me they were talking about the
union again. Another issue that came up which was
pretty much the final straw was when there were a few
physical conflicts about it.
Q. Well, who told you about the physical confronta-
tions?
A. Rick Fetsko.
Contrary to Hinson’s testimony that he was told by lead
person and antiunion employee Rick Fetsko about two
‘‘shoving matches’’ between employees during union discus-
sions and that this led to promulgation of the rule, Fetsko
testified about only one such shoving match and that he re-
ported this to Hinson after the posting of the April 24 rule.
This rather serious conflict not only destroys the Respond-
ent’s alleged lawful rationale for the rule, but renders both
Hinson and Fetsko unreliable witnesses. Accordingly, I have
no confidence in Hinson’s other testimony about a litter
problem or his observation of worktime interference that af-
fected production. Although other witnesses saw literature,
mostly in the rest rooms none, not even Supervisor Ken
Corle, identified this as a litter problem. Moreover, Respond-
ent submitted no documentary support for its contention, sug-
gested by the testimony of both Hinson and Corle, that
worktime union discussions were causing production prob-
lems prior to April 24 that led to additional overtime. This
testimony is simply an exaggeration. Finally, testimony from
all three of these witnesses—Hinson, Corle, and Fetsko—
about litter and production problems was vague, limited,
unspecific as to dates, times, location and, in some cases em-
ployees involved. The testimony was very unfocused and
conclusory. In these circumstances, I cannot accept as reli-
able any of their testimony as to what happened prior to the
promulgation of the April 24 rule that may have led to its
adoption.
Other testimony about alleged problems with the union so-
licitation distributions in the plant before April 24 was incon-
clusive. Some witnesses testified there were no problems.
Others testified about problems with the distribution of lit-
erature or the occasional talking between employees that
were isolated or minor and with no placement of these inci-
dents prior to April 24. Nor were most of these incidents
shown to have been transmitted to the steering committee be-
fore its deliberations on the promulgation of the rule. Thus,
this testimony, like that of the management witnesses dis-
cussed above, fails to support Respondent’s position and
does not rebut the overwhelming evidence that the rule was
adopted for a discriminatory purpose.
In sum, Respondent’s asserted reasons for adopting the
rule have been shown to be unsupported and pretextual. The
real reason was to discourage union activity. I find therefore
that Respondent’s promulgation and maintenance of the April
24 rule was violative of Section 8(a)(1) of the Act.
2. The arson warning
As shown in the factual statement, Carson was one of the
three top union adherents. She was issued a warning for ‘‘so-
liciting in work areas’’ several minutes before the beginning
of her shift on May 23, at a time when the union campaign
was in full swing. This was admittedly an attempt to apply
and enforce the April 24 rule. I have previously found that
the rule was unlawfully promulgated and maintained. It is
clear that warnings implementing such an unlawfully promul-
gated and maintained rule are themselves unlawful. See
850 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Elston Electronics Corp., 292 NLRB 510, 511 (1989). Thus,
the violation here is clearly established on this round alone.
However, in addition, and apart from the above theory of
violation the General Counsel alleges that the rule was
discriminatorily enforced against Carson. I agree. The evi-
dence amply supports this allegation. First all, Respondent’s
warning makes clear that it penalized Carson for union solic-
itation on her own time, albeit in a working area where no
one was working. This is a protected concerted activity. Re-
strictions on nonworktime solicitations in work areas are un-
lawful. See Brunswick Corp., 282 NLRB 794, 797–798
(1987). The first warning issued to Carson apparently ac-
cused her of soliciting on worktime, but it was destroyed
when it was made plain that she did whatever she did on her
own time, before work began. What she actually did was dis-
tribute literature in a work area before work, something
which might have literally violated the April 24 rule. But Re-
spondent was so unconcerned about the distribution of lit-
erature and so concerned about getting Carson that it accused
her of solicitation in a work area—something that she did not
do and which is neither proscribed by the April 24 rule nor
unlawful. Respondent’s penalty jumbles words from two sep-
arate rules—‘‘soliciting’’ from the no-solicitation rule and
‘‘in work areas’’ from the no-distribution rule—to manufac-
ture a new offense. Not only is work area nonworktime so-
licitation lawful, but Respondent’s conduct illustrates that it
was concerned about the content of Carson’s message rather
than any distribution problems which might have justified a
valid rule or a valid warning. Thus, it is clear that Respond-
ent’s motivation for the issuance of the warning was unlaw-
ful.
Since there was no legitimate concern about production or
disciplinary matters, Respondent cannot show persuasively
that it would have punished Carson notwithstanding its dis-
criminatory motivation. Moreover, Corle did not actually see
Carson distributing literature. He engaged in little, if any, in-
vestigation of the matter. He apparently received a report
about it and had a warning, which was later destroyed, writ-
ten up and waiting when Carson was called to his office.
In further support of this allegation, it appears that the rule
was only enforced once and only against Carson.
Uncontradicted evidence shows that both before the union
campaign began and after it ended other forms of solicita-
tion, such as the selling of sandwiches and football pools,
went on during worktime and in work areas. There is no evi-
dence that management officials punished employees for this
activity. It thus appears that the April 24 rule was used for
the union campaign and was selectively enforced.
For all the reasons set fort above, I find that the Respond-
ent’s May 23, 1991 warning issued to Carson violated Sec-
tion 8(a)(3) and (1) of the Act.
3. The King transfer
Another union leader, Donna King, was involuntarily
transferred from the night shift to the day shift on June 10,
1991. The evidence clearly shows that a reason for the trans-
fer was King’s position as a union activist. The Respondent
has not shown, in the face of this evidence, that the transfer
was effectuated for a lawful reason or would have occurred
even absent King’s union activity. On the contrary, the rea-
son offered by Respondent at the hearing was a pretext.
Not only was King a known union activist but her invol-
untary transfer came shortly after the well-publicized June 2
union meeting which was a hot topic of discussion at the
plant. She was identified as one of the three employees who
attended the meeting. The timing of the transfer in these cir-
cumstances supports the inference of discrimination, as does
Respondent’s animus which is demonstrated not only by its
statements against the Union but by its other discrimination,
including promulgation and maintenance of the April 24 rule
and the discrimination against Carson just a few weeks be-
fore the action against King. This is ample evidence sup-
porting a prima facie case of discrimination against King.
But there is more. The transfer was involuntary and, al-
though there was considerable evidence of other transfers at
the Bedford plant, none were shown to have been involun-
tary. Moreover, the uncontradicted evidence shows that 2
weeks before King’s involuntary transfer, another employee
had agreed to transfer to the day shift, suggesting that not
only was there no need for an involuntary transfer at this
time, but there was no need to focus on King. This evidence
shows that Respondent had prior plans to move an employee
from the third shift to the first because a new employee was
going to be hired for the third shift. Actually, another third-
shift employee—a decaler like King—had asked to be trans-
ferred to the first shift. And subsequent events showed that
King’s departure caused other—voluntary—transfers into and
out of the third shift, obviously to fill in for King. Finally,
according to testimony which I have credited, Corle gave
reasons for King’s transfer which sounded much like he
wanted to separate her from other employees so she could
not solicit them on behalf of the Union. She was basically
unsupervised for most of the night shift and there was no
evidence that she had any prior problems with wasting time
talking to others or going too often to the rest rooms, the
substance of the reasons offered by Corle to King for the
transfer. The uncontradicted testimony was that these were at
most general problems affecting all third-shift employees and
King received no prior warnings for such problems. Indeed,
King’s last evaluation, dated July 1, 1991—after the trans-
fer—was praiseworthy in every respect and mentions nothing
about the reasons Corle stated to King at the time of her
transfer. King was thus a very good employee whose invol-
untary transfer would not have been expected absent her
union activities.
Respondent’s explanation for the transfer—offered by
Corle at the hearing—fails completely and such failure not
only exposes it as a pretext but strengthens the inference of
discrimination. Corle testified that he told King that he was
transferring her to the day shift because of her problem with
decal bubbles that needed to be resolved by her transfer to
the first shift where an employee who had a solution to the
problem could train her. The explanation is so preposterous
that it confirms my opinion about Corle’s complete
unreliability as a witness. This so-called bubble problem was
a general one affecting all employees. According to Corle,
however, King was pinpointed as the source of most of the
problem. Putting aside that there was no documentation or
other corroboration of Corle’s testimony in this respect noth-
ing even close to this appeared in King’s last evaluation
which was dated after the transfer. Moreover, the bubble
problem was hardly difficult of solution. Apparently, the an-
swer was to apply a squeegie to press the decal from one
851CANNONDALE CORP.
end to the other, a process which could be learned, even ac-
cording to Corle, in 1 day. I would say 10 minutes and with-
out need for a transfer. Yet King remained on the first shift
for 2 or 3 weeks until the third shift was abolished. She was
the only decaler transferred to learn this remarkable solution
although, as Corle admitted, others on the third shift had this
problem. Corle’s explanation for King’s transfer is inherently
implausible.
In these circumstances, I find that Respondent’s involun-
tary transfer of King in June 1991 was discriminatory and
violated Section 8(a)(3) and (1) of the Act.
4. The Griffith allegation
As shown in the factual statement, Griffith was one of the
three top union adherents identified as having attended the
June 2 meeting. Her union activity was widespread and well
known. The Respondent was discriminating against people
engaged in union activities and focusing on the leaders. In
late May it discriminated against Carson and in early June
against King. When, in mid-August, Respondent was faced
with whether and when it should recall Griffith from a lawful
layoff, it made a personnel decision which I find was moti-
vated by the same discriminatory reasons which prompted it
to penalize Carson and King.
The evidence shows that some 15 employees were laid off
on about August 8 for lack of work. The layoff was short—
a few days for all but Griffith. She alone was not recalled
for 5 months. Nothing would explain the failure to recall as
an objective matter because there was plenty of work in Grif-
fith’s packing department. Two less senior employees were
transferred into the department during her absence. And
nothing was said to her, according to the credited testimony,
about why she was not being recalled, except for lack of
work. This, of course, was not accurate. Moreover, Griffith
was a highly regarded employee about whom objectively
there could not be any other reason for the continued failure
to recall. She had a truly commendable evaluation in July
1991 just before the layoff. That evaluation reveals no prob-
lems in attitude or work. In these circumstances, Griffith’s
failure to be recalled from layoff can only be explained by
her leadership role in the aborted union campaign. Thus, the
General Counsel has clearly established a prima facie case of
discrimination.
Respondent’s explanation for its refusal to recall Griffith
comes from the discredited Corle. The background is as fol-
lows. Before her layoff, Griffith had hurt herself using the
staple gun which is one of several functions connected with
the packing department job, at least after sometime in April
1991. The employees rotated each function. Each employee
ordinarily spent 2 hours per rotation on the staple gun. Each
of the nine employees in the department would perform the
function about once every 2 or 3 days. However, when she
was injured in late April, Griffith was working the stapler for
4 consecutive hours. The next day she obtained a note from
her doctor restricting her use of the stapler and submitted it
to Corle. She submitted two similar notes continuing the re-
striction thereafter, one in May and one in June. From late
April to August 8, when she last worked before her long hia-
tus, Griffith was not assigned to work the stapler and no one
in management or supervision said a word about it. There
were no suggestions that she was not carrying her load, that
there were any problems with continuing the medical restric-
tion or that she needed to transfer to another job or get fur-
ther attention. Nothing.
Back to Corle’s testimonial explanation for refusing to re-
call Griffith. He says it was because Griffith could not use
the stapler and because she was not a useful team player
without a doctor’s release stating that she could use the sta-
pler. One perhaps could give some initial credence to this ex-
planation had it been offered to Griffith at any time before
she was recalled in January 1992. But it was not. Griffith
credibly testified as much and Corle’s testimony that he did
tell her and, in the alternative, she should have known on her
own to provide a release is not believable.
Corle’s testimony that he communicated his concern about
her inability to use the stapler as the reason for his failure
to recall her from layoff is as incredible as the rest of his
testimony. He said that, about a month after Griffith’s layoff,
he received a telephone call from her. Here is his testimony:
Q. Can you describe for us what that conversation
was, who said what to who?
A. Yes. She called. I go. paged to answer it and she
asked me why was Jay Kaufman moved into the Pack-
ing area and she wasn’t called back, and it’s because
he could do all of the steps in the team concept.
Q. And did you tell her that?
A. Yes. And I told her that if something else came
up that was available, I would recall her.
I find the testimony itself wishy-washy but, even Corle’s
own account does not reveal that he told Griffith anything
about not using the stapler or getting a doctor’s release. Grif-
fith’s account of a telephone call between the two at about
the same time is much more credible. Indeed, her account is
supported by the uncontradicted testimony that, at a pack-
aging department meeting about this time, Corle was asked
a question about Griffith’s return and he stated that she
would be recalled when work picked up. Nothing was said
in that meeting about staplers or medical releases. Finally, as
I said at footnote 7 of the actual statement, Corle gave no
instructions to anyone else to relay to Griffith that she was
not being recalled because of her inability to use the stapler
or failure to obtain a medical release. Corle’s uncorroborated
testimony that he did simply highlights his unreliability as a
witness.
Thus, it is clear that Respondent told Griffith nothing other
than lack of work—which was not true—for the failure to re-
call her from layoff. Respondent’s alternative position—that
she should have known on her own that she needed a med-
ical release—is, in view of all the circumstances,
unpersuasive. She did not even know that her failure to use
the staple was a problem; actually, I am convinced it was
not, in view of the lack of any other evidence to corroborate
Corle on this point. In any event, although Respondent did
require medical releases when an employee came back from
a medical leave of absence, that requirement could not apply
where the employee, as Griffith, was actually performing her
job every day without objection being raised by her super-
visors. More importantly, Griffith received an evaluation in
July 1991 that mentioned nothing about this requirement.
This confirms that her work—even though it did not include
using the stapler—was perfectly acceptable and that her atti-
tude about her job was perfectly acceptable. Indeed, the eval-
852 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 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.
uation confirms that all aspects of her job were commend-
able. In these circumstances, it is hard to believe even under
Respondent’s view of the case, that it would not have re-
called Griffith to other jobs, including ‘‘light duty’’ work,
absence union discrimination. Accordingly, I find that Re-
spondent’s belated explanation for the refusal to recall Grif-
fith was a pretext to ask the real discriminatory reason for
its conduct. Respondent found an opportunity to punish Grif-
fith as it had the other two attendees at the June 2 union
meeting and it did so.
Respondent makes much of the fact that Griffith was in
effect replaced by Kaufman, another union organizing com-
mittee member. This does not provide a defense to the dis-
crimination charge Kaufman was not nearly as active as Grif-
fith; nor did he attend the notorious June 2 meeting. More
importantly, he turned against the Union at some point. He
said that this happened in the fall of 1991, but because con-
versions of this type rarely occur in a vacuum and because
Kauffman was such an unreliable and shaky witness, I be-
lieve his conversion occurred earlier, most likely before he
was transferred to the packing department. This would be
consistent with the end of the union campaign in June 1991.
Thus, instead of militating against a violation, Kaufman’s
conversion supports the violation. Even assuming, however,
that Kaufman was viewed as a prounion employee until the
fall of 1991 this does not explain why Griffith was not re-
called before Finnegan was permanently transferred into the
packing department. In any event, the law is clear that an
employer cannot defeat a finding of discrimination by assert-
ing that it retained some union supporters while dismissing
others. See Alliance Rubber Co., 286 NLRB 645, 647
(1987); Nachman Corp. v. NLRB, 337 F.2d 421, 424 (7th
Cir. 1964).
Finally, Respondent points to a September 6, 1991 letter
from its attorney to the Labor Board agent investigating the
charge that Respondent had discriminated against Griffith ad-
vising him that she had been laid off August 15 following
receipt of a letter from her doctor stating that she could not
use the stapler and advising further that Griffith would be el-
igible for recall, based on production needs, if she was able
‘‘to perform all duties of her job.’’ The letter cannot provide,
indirectly, the notice to Griffith of an alleged problem that
the evidence shows was not provided directly. Significantly,
the letter was not addressed or sent to Griffith and it was
never delivered or communicated to her. Indeed, in the ab-
sence of some kind of authorization or instruction, there was
no obligation on the part of the Board agent to communicate
this information to her. Cf. Western Cab Co., 305 NLRB 578
(1991); Frank Invaldi, 305 NLRB 493 (1991).
In any event, it is difficult to see how this letter aids Re-
spondent’s case. Counsel’s representations in the letter do not
amount to evidence even granting the self-serving and adver-
sarial nature of statements from counsel as a general matter,
this letter contains several misstatements For example, the
letter states that Respondent had no knowledge of Griffith’s
union activity. However, both Respondent’s president, Mont-
gomery, to whom a copy of the letter was sent, and Super-
visor Corle, who was intimately involved in the Griffith mat-
ter, clearly testified that they knew of her union activity. An-
other inaccuracy in the letter is its suggestion that Griffith’s
August 15 layoff (it actually occurred on August 8) followed
closely the receipt of a doctor’s letter saying she could not
use the stapler. In point of fact the first such letter was deliv-
ered to Respondent in late April, well before the layoff that
no one alleges was caused by her inability to use the stapler.
Other letters were delivered in May and in June, and Griffith
continued to be excused from using the stapler without com-
ment by her supervisors even under their version of the facts.
In view of these inaccuracies, I can hardly give this letter
any weight. To suggest, therefore, as Respondent does at
page 43 of its brief, that this letter somehow supports Corle’s
testimony that he told Griffith a few weeks after her layoff
that she would be recalled when she was medically able to
use the stapler presumes considerable naivete on the part of
the trier of fact. More likely, in view of his general
unreliability as a witness, Corle tailored his testimony to fit
Respondent’s litigation theory.
In these circumstances, I find that Respondent violated
Section 8(a)(3) and (1) of the Act by refusing and failing to
recall Griffith from layoff on and after August 8, 1991.
CONCLUSIONS OF LAW
1. By promulgating and maintaining the April 24, 1991
no-solicitation no-distribution rule for a discriminatory pur-
pose, Respondent has violated Section 8(a)(1) of the Act.
2. By applying the above rule in a warning issued to em-
ployee Cindy Carson on May 23, 1991, and by issuing it
discriminatorily, Respondent has violated Section 8(a)(3) and
(1) of the Act.
3. By transferring employee Donna King on June 10,
1991, for discriminatory reasons, Respondent has violated
Section 8(a)(3) and (1) of the Act.
4. By refusing to recall or reemploy employee Patricia
Griffith on and after August 8, 1991, for discriminatory rea-
sons, Respondent has violated Section 8(a)(3) and (1) of the
Act.
5. The violations set forth above are unfair labor practices
affecting commerce within the meaning of the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be required to
cease and desist therefrom and to take certain affirmative ac-
tion necessary to effectuate the policies of the Act.
I shall also recommend that Respondent be ordered to re-
move from the employment records of Griffith, Carson, and
King any notations relating the unlawful action taken against
them and to make Griffith whole for any loss of earnings or
benefits she may have suffered due to the unlawful action
taken against her, in accordance with F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in accord-
ance with New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
853CANNONDALE CORP.
11 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.’’
ORDER
The Respondent, Cannondale Corporation, Bedford, Penn-
sylvania, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Promugating, maintaining, or enforcing no-
solicitation/no-distribution, or any other, rules for the purpose
of discouraging union activities.
(b) Issuing warning notices to, transferring, refusing to re-
call or reemploy, or otherwise disciplining or discriminating
against, employees because they have engaged in union ac-
tivities.
(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) Rescind the April 24, 1991 no-solicitation/no-distribu-
tion rule and notify all empoyees that this has been done.
(b) Make employee Patricia Griffith whole for any loss of
earnings or benefits she may have suffered as a result of the
discrimination against her in the manner set forth in the rem-
edy section of this decision.
(c) 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, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Remove from its files any reference to the discrimina-
tory actions taken against employees Griffith, Carson, and
King, and notify them that is has been done and that evi-
dence of such actions will not be used as a basis for future
personnel actions against them.
(e) Post at its facility in Bedford, Pennsylvania, copies of
the attached notice marked ‘‘Appendix.’’11 Copies of the no-
tice, on forms provided by the Regional Director for Region
6, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT promulgate, maintain, or enforce any no-
solicitation/no-distribution, or any other, rules for the purpose
of discouraging union activities.
WE WILL NOT issue warning notices to you, transfer you,
refuse to recall or reemploy you, or otherwise discipline or
discriminate against you because you have engaged in union
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 rescind the April 24, 1991 no-solicitation/no-dis-
tribution rule and WE WILL make Patricia Griffith whole for
any loss of earnings she may have suffered because of our
discriminatory treatent of her, with interest.
WE WILL remove from our files any reference to the dis-
criminatory action we took against employees Patricia Grif-
fith, Cindy Carson, and Donna King and notify them that
this has been done and that evidence of such actions will not
be used against them in the future.
CANNONDALE CORPORATION