Champion Laboratories

National Labor Relations Board - Board Decisions

Mar 31, 1995

316 N.L.R.B. 1133 (N.L.R.B. 1995)

1133
316 NLRB No. 172
CHAMPION LABORATORIES
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.
The Respondent has excepted, inter alia, to the judge’s finding that
Supervisor Tate threatened to close the plant. In this regard, it argues
in part that the judge erroneously stated that employee Bunting had
testified that Tate made the threat more than once. Although Bunting
testified that Tate had repeated another remark, he did not testify
that she had repeated the threat. Bunting’s credited testimony, as
well as that of Ferido, however, clearly establishes that Tate made
an implied plant closure threat at least once. We find that this error
does not affect the result.
2 The judge omitted the final remedial paragraph of the Order pro-
hibiting the Respondent from engaging in conduct ‘‘like or related’’
to that enjoined in pars. 1(a) through (f). We modify the Order to
include this narrow remedial language as par. 1(g) and further direct
that the attached notice including this paragraph be substituted for
the one in the judge’s decision.
Champion Laboratories, Inc. and United Auto-
mobile, Aerospace & Agricultural Implement
Workers of America, UAW. Case 14–CA–23057
March 31, 1995
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On December 9, 1994, Administrative Law Judge
Robert C. Batson issued the attached decision. The Re-
spondent filed exceptions and a supporting brief and
the General Counsel filed an answering 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 as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Cham-
pion Laboratories, Inc., Albion and West Salem, Illi-
nois, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Insert the following as paragraph 1(g).
‘‘(g) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT tell our employees that they cannot
discuss the Union or union activities on working time
while permitting them to discuss other nonwork-related
activities.
WE WILL NOT interrogate our employees concerning
their union activities or the union activities of other
employees.
WE WILL NOT impliedly threaten our employees that
we will close our Albion and West Salem facilities if
they select the Union to represent them.
WE WILL NOT selectively and disparately prohibit
our employees from union solicitations and distribu-
tions while permitting such nonunion-related activities.
WE WILL NOT selectively and disparately deny our
off-duty employees access to the plant for union activi-
ties while permitting such access for nonunion pur-
poses.
WE WILL NOT issue verbal warnings to our employ-
ees for engaging in union activities and reduce such
warnings to writing and place them in our files.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL remove and expunge from our files any
written records of the verbal warning given to our em-
ployee Wilmer McCreary on January 26, 1994, for en-
gaging in union activities.
CHAMPION LABORATORIES, INC.
1134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel or the Government.
2 All dates herein are 1994 unless otherwise indicated.
Kathy J. Tolbott-Schehl, Esq.,1 for the General Counsel.
Thomas O. Magan, Esq., for the Respondent.
John Truffa, for the Union.
DECISION
STATEMENT OF THE CASE
ROBERT C. BATSON, Administrative Law Judge. This case
was tried before me at Grayville, Illinois, on September 12,
1994.2 The charge underlying the complaint was filed by
United Automobile, Aerospace and Agricultural Workers of
America, UAW (the Union) on June 7 and amended the
charge on July 26. The Regional Director for Region 14 (St.
Louis, Missouri) issued the complaint and notice of hearing
on July 26 alleging that Champion Laboratories, Inc. (Re-
spondent or Employer) had violated Section 8(a)(1) and (3)
of the National Labor Relations Act (the Act).
The specific allegations are that on January 26 Plant Man-
ager Darrel Wilson told an employee not to discuss the
Union with other employees; that on January 27 Foreman
Jim Smith interrogated an employee about other employees’
union activities; that on April 26, Foreman Judy Tate
impliedly threatened employees that Respondent would close
its facilities if they selected the Union to represent them; that
on May 15 Plant Superintendent Jim Utley enforced a valid
no-solicitation and no-distribution rule selectively and dispar-
ately by prohibiting union solicitation and distribution while
permitting such nonunion activity, and that on May 18, Fore-
man Smith selectively and disparately denied an off-duty em-
ployee access to the plant for union activities while permit-
ting such access for other purposes, all in violation of Sec-
tion 8(a)(1) of the Act. The complaint further alleges that
Respondent issued a verbal warning to an employee because
the employee joined and assisted the Union and engaged in
concerted activity in violation of Section 8(a)(1) and (3) of
the Act.
In its duly filed answer to the complaint the Respondent
admits all procedural allegations but denies that it engaged
in any conduct violative of any section of the Act.
I find that the General Counsel has established by a pre-
ponderance of the credible evidence that Respondent has vio-
lated the Act substantially as alleged.
All parties were represented and were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence. Respondent and General Counsel
filed briefs. Upon consideration of the entire record and the
briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Champion Laboratories, Inc., is a Dela-
ware corporation with its principal offices and places of busi-
ness located at Albion and West Salem, Illinois, where it is
engaged in the manufacture of automotive filters. During the
12-month period preceding issuance of the complaint, Re-
spondent purchased and received at its Albion and West
Salem facilities goods valued in excess of $50,000 directly
from points outside the State of Illinois and during the same
period of time Respondent sold and shipped from the facili-
ties goods valued in excess of $50,000 to points located di-
rectly outside the State of Illinois. The Respondent admits,
the evidence establishes, and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
The complaint alleges, Respondent admits, the evidence
establishes, and I find that United Automobile, Aerospace
and Agricultural Workers of America, UAW is a labor orga-
nization within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
In mid-December 1993, 12-year employee Wilmer
McCreary and others contacted Union Representative John
Truffa about attempting to organize the 1700 to 1800 em-
ployees employed at the three plants involved here. They de-
cided to wait until after the Christmas holidays to kick off
their organizational efforts. The Respondent operates three
plants in Illinois: West Salem and Albion. The Albion facil-
ity has two plants located adjacent to each other. The main
plant commonly referred to as plant 1 and a smaller building
commonly referred to as plant 2. All three plants operates
through shifts. The first shift starts at 7 a.m. and ends at 3:20
p.m.; the second shift runs from 3:20 to 11:40 p.m. and third
shift operates from 11:40 p.m. to 7 a.m.
By way of background, several years earlier the Teamsters
Union had attempted to organize these employees and had a
Board-conducted election which the Teamsters evidently lost.
It appears that there had not been any union activity here
since that time. By the time of the proceedings here the
UAW organizing drive had fizzled out and there was no
longer an active organizing campaign for representation of
the employees.
At all times material, the Respondent published in its em-
ployees’ manual, which was given to all employees upon
their hire, a valid rule with respect to solicitation and dis-
tribution: (R. Exh. 1.)
12. SOLICITATION AND DISTRIBUTION. Solici-
tation of any kind during the employee’s actual work
time is prohibited. Actual work time does not include
breaks or meal periods. Distribution of literature or
other material in Company’s production areas is prohib-
ited. Removing or defacing Company notices posted or
posting notices on Company property is prohibited.
A. The January 26 Allegations
Wilmer McCreary has been employed by Respondent at its
West Salem facility in the maintenance department on the
first shift for 12 years. At the time of this incident, Glen
Schaffer was his foreman and Myles Patterson was his main-
tenance supervisor. McCreary was apparently among the
most active of the union supporters testifying that he at-
tended the union meetings, wore union buttons and other in-
signia on his apparel at work, and helped to handbill the
plant on four or five occasions prior to starting to work at
7 a.m.
McCreary testified that on January 26, about 15 minutes
before his worktime, he and two other employees, Bill Hicks
and Bill Mitchell, were in the canteen discussing the Ford
Motor Company contract which the Union had obtained for
them. Another employee Bernard Clodfelter joined them and
1135CHAMPION LABORATORIES
interrupted, observing that ‘‘we’d never get a contract like
Ford.’’ McCreary and the others agreed but stated that they
needed something.
Later that day around 10 a.m., McCreary was performing
preventative maintenance on an overhead door about 2 feet
from where Clodfelter was scaling parts. They again started
discussing the Union and Clodfelter expressed the opinion
that they would lose a lot of money if the Union came in.
McCreary stated that they had already lost a lot of money
saying his wife lost $150 a week because the Teamsters
didn’t get in and he couldn’t understand how Clodfelter
thought they would lose money. He then reminded Clodfelter
of how the Company treated his, Clodfelter’s brother, saying
the Company humiliated him by disqualifying him every
time he bid on a job and putting him back as a janitor.
McCreary said Clodfelter got ‘‘irritated and left.’’
McCreary testified that neither he nor Clodfelter stopped
working during this exchange. Clodfelter was not called to
testify. McCreary also testified without contradiction that at
no time did he ask Clodfelter to sign a union card or even
invite him to a union meeting.
Two or three minutes after Clodfelter left, Production Su-
pervisor Darrel Wilson walked up to McCreary and said,
‘‘[W]ell, you’re going to have to knock that shit off-talking
about the Union.’’ Wilson does not deny, in fact admits, that
he said something to that effect to McCreary. (Tr. 204.)
About 2 p.m., McCreary’s foreman, Gene Schaffer, paged
McCreary to the office and upon entering the office he found
Schaffer and Supervisor Miles Patterson. Schaffer told
McCreary, ‘‘I got bad news for you’’ and handed him a
piece of paper. Upon McCreary’s inquiry as to what it was
Schaffer told him it was a verbal warning for soliciting, stat-
ing, ‘‘[Y]ou were observed by a supervisor soliciting.’’
Schaffer refused to tell McCreary who the supervisor was or
who he was supposed to be soliciting. McCreary refused to
sign the warning at that time. The warning states that it is
‘‘verbal’’ and reads, ‘‘Solicitation of a fellow employee dur-
ing that employee’s work time is prohibited per the employ-
ees handbook ‘Standard of Conduct’’’ (G.C. Exh. 2).
Production Superintendent Wilson testified that on January
26 Clodfelter pulled up to him on his forklift and ‘‘said that
he was being harassed or constantly questioned by Will
McCreary about joining the Union activities and he stated he
had told him on several occasions that he wasn’t interested
in it at all and wanted him to leave him along.’’ Wilson re-
ported this to his manager, Al Yellig, who reported it to
Maintenance Manager Myles Patterson. Wilson testified he
again went back to McCreary and told him he wasn’t to be
soliciting on company worktime about union activities. Re-
spondent also did not present Schaffer as a witness.
The General Counsel subpoenaed from Respondent copies
of all references to disciplinary actions, warnings issued, and
counseling given to employees for talking to other employees
on company time, leaving their work area in violation of the
solicitation/distribution rules, and being on company property
when off duty. (G.C. Exh. 4b.) Respondent produced only
one warning action against an employee dated August 22,
1991. Respondent employees approximately 1750 employees,
yet prior to McCreary’s January 26, verbal warning for solic-
iting an employee for the Union, Respondent had issued only
one similar type of warning. Based on Production Supervisor
Wilson’s admitted comments, Respondent clearly knew the
nature of the conversation between McCreary and Clodfelter
and Respondent failed to present any testimony that their
conversation in any way interfered with either employees’
work.
Five of the six employee witnesses, most of whom had
long tenure, called by the General Counsel testified to nu-
merous nonwork-related solicitations by employees and su-
pervisors on worktime without any discipline by manage-
ment. McCreary testified that he had purchased candy bars
from employee Martha Mason while Mason was working on
the production line. McCreary testified that he paid for and
received the candy while both he and Mason were working.
McCreary further testified that approximately a year before
he had purchased Boy Scout pizzas from Maintenance Super-
visor Myles Patterson while both were working. McCreary
said that he would place his pizza order in Patterson’s office
and that Patterson would call the employees into his office
when the pizzas were delivered, while on the employees
working time, and advise them they could pick up their piz-
zas from the canteen refrigerator. Maintenance Supervisor
Patterson testified that he also sold candy bars from his of-
fice and on cross-examination admitted that by having the
candy bars in his office it was possible that employees came
in during worktime to buy them.
Gregory Benskin testified that just prior to the hearing
here he had participated in a football pool which was run by
an office employee. Benskin testified that he was given a slip
to fill out with his football picks by the office employee, se-
lected his football picks, and returned the slip and the dollar
to the office employee while Benskin was working. Benskin
testified uncontrovertedly that he was observed engaging in
this conduct by Supervisor Jim Smith. He further testified
that in January he sold Girl Scout cookies on behalf of his
daughter while on working time and that he observed his su-
pervisor, Jim Smith, buying Girl Scout cookies from another
employee. Smith did admit that employees in almost every
department engaged in a check pool on a weekly basis and
that the money and numbers for the pool were taken up dur-
ing work hours prior to checks being passed out.
Robert Morris testified that he had sold a variety of food
items to other employees while both he and the other em-
ployees were working and on break. Morris also testified that
he had purchased pizzas on an annual basis from his super-
visor, Richard Bristow, while on worktime. This is not de-
nied. Morris further stated without contradiction that he had
purchased popcorn from Maintenance Supervisor Patterson
also while on worktime. He testified that he had never been
disciplined or counseled for these activities.
Employee Carl Benskin testified that he had run a check
pool during his worktime for approximately 1-1/2 years, after
receiving permission from his supervisor. Benskin stated that
in running his check pool he would walk throughout his and
other nearby departments and ask employees as they worked
if they wanted to participate in the check pool. He further,
uncontrovertedly, testified that he had purchased a grill brush
from employee Carol Hixenbaugh while Benskin was on
worktime. Karla Morse testified that on several occasions she
had purchased various items from the other employees while
she was on her worktime.
There are no crucial credibility issues here to be deter-
mined. In the first place, I credit McCreary that he did not
solicit Clodfelter to join the Union or to attend union meet-
1136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ings. It is clear that McCreary was trying to persuade
Clodfelter that the Union would benefit the employees.
Clearly, where Respondent’s reasons for issuing discipline
to McCreary are inconsistent, where Respondent has dis-
ciplined only one other employee for violation of its solicita-
tion policy, and where Respondent permits widespread solici-
tation of nonwork-related items by both employees and su-
pervisors while on working time, its issuance of a verbal
warning slip to McCreary for alleged union solicitation,
which McCreary credibly denies, is discriminatory enforce-
ment of its solicitation policy because the solicitation was
union based and thus protected and violates Section 8(a)(3)
of the Act. Funk Mfg. Co., 301 NLRB 111 (1991); Premier
Maintenance, 282 NLRB 10, 11 (1986).
On January 26 I find Respondent violated Section 8(a)(1)
of the Act by Production Manager Wilson’s telling McCreary
that he could not discuss the Union with other emloyees and
further violated Section 8(a)(3) and (1) by issuing to him a
verbal warning reduced to writing for engaging in activities
on behalf of the Union.
B. The January 27 Allegation
Gregory Benskin had been employed by Respondent for
13 years at the West Salem plant on the first shift as a filter
assembler and at the relevant time here worked under the su-
pervision of Jim Smith. Benskin was openly active in the
UAW campaign from the enception of the drive, wearing as
many as five pieces of union insignia on his apparel and a
union hat. He also helped to handbill at the plant on two oc-
casions. He testified that at least several supervisors observed
this activity.
At issue here is his testimony that on January 27, he re-
ported to work at about 6:30 a.m. and while completing
some ‘‘papers’’ concerning the filters he would be running
that day, Smith started talking to him about the union meet-
ing the day before. Benskin testified that Smith asked him
how many people from his line was at the meeting. Benskin,
who was wearing his usual union insigna at that time, re-
sponded that ‘‘it didn’t concern him.’’
Smith’s version is that on that morning Benskin ap-
proached him and asked him about the UAW and he told
Benskin he couldn’t talk to him about it. Benskin then asked
‘‘would you try to guide me’’ and Smith replied, ‘‘No, I will
not.’’
I agree with the General Counsel that it is unlikely that
an employee so obviously prounion would have at any time
sought ‘‘guidance’’ from a supervisor. Clearly, Smith’s testi-
mony is self-serving. Smith’s questioning of Benskin regard-
ing other emloyees’ attendance at a union meeting is a coer-
cive attempt to find out from a known and open union sup-
porter the sympathies of other employees under the super-
visor’s control. Thus, Smith’s questions suggest that his pur-
pose was to find out from someone who would know what
other employees are supportive of the Union and is hence
violative 8(a)(1) interrogation. Gardner Engineering, 313
NLRB 755 (1994); Cumberland Farms, 307 NLRB 1479
(1992) affd. 984 F.2d 556 (1st Cir. 1993); Liquitane Corp.,
298 NLRB 292, 293 fn. 4 (1990); Raytheon Co., 279 NLRB
245, 251 (1986).
C. The April 26 Allegation
The allegations of the incident here are based on the testi-
mony of Carl Bunting and Mike Ferido who testified that,
on April 26 as they were handbilling on behalf of the Union,
employees at the Albion plant about 11 p.m., between the
second and third shift change, Albion Foreman Judy Tate
told them, ‘‘I hope you guys are ready to pack up and move
to Mexico.’’ (Tr. 76, 110.) At the relevant time here, Bunting
had been employed by Respondent about 4 years as a press
operator on the third shift at the Albion plant. Michael
Ferido had been employed as an auto press operator on the
third shift at the Albion plant about 7 years.
Bunting and Ferido testified that during the UAW cam-
paign they were open and vocal union supporters wearing
union insigna and handbilling employees at the Albion plant.
Bunting and Ferido’s testimony is fairly consistent that about
11 p.m., April 26, Bunting approached Ferido in front of the
Albion plant and asked if he would accompany him to the
back entrance to the plant and handbill the shift-changing
employees with handbills left over from a previous
handbilling. They proceeded to the rear entrance where there
was a picnic table used by the employees for a break and
smoke area. They testified that shortly after they began
handbilling there Judy Tate, supervisor over an air filter line
on the second shift, came out and lit a cigarette.
According to their testimony, she asked what they were
doing. They did not respond except to offer her a handbill,
which she declined and said, ‘‘Well, I should have expected
something like this from you, Carl.’’ About that time another
employee, Carol Hixenbaugh came out to smoke and shortly
after that Judy Tate said, ‘‘I hope you guys are ready to pack
up and move to Mexico.’’ Bunting testified that she made
the remarks a few times as they were trying to handbill.
Respondent called Supervisor Judy Tate and employees
Carl Hixenbaugh and Tim Hatton with respect to this allega-
tion. The gist of their testimony is that Hatton either came
out of the plant with them or joined them shortly afterward.
Their version is that when Bunting tried to give Hatton some
union literature, Hatton asked Bunting why he wanted a
union. Bunting responded by telling Hatton the benefits he
thought the Union could get for them such as better pay,
working conditions, etc. Hatton then made a comment to the
effect that if the Union got in they had all better learn to
speak Spanish.
Ferido testified that at some point after Tate’s statement
concerning the plants moving to Mexico another male em-
ployee joined them but he did not know his name and could
not identify him. All Respondent’s witnesses testified that
Tate made little or no comment in response to Hatton’s al-
leged comment about needing to learn to speak Spanish.
Tate did remember that after Hattons alleged statement,
Bunting said, ‘‘They’re not going to move anything any-
where’’ and a few other comments. She told them, ‘‘well,
that’s what everybody thought about AMF when they were
on strike one time.’’ She continued that her sister worked for
them during their last big strike and nobody believed the ru-
mors that kept flying that they were going to move to Little
Rock, Arkansas. (Tr. 178-181.) None of the employees
present recalled Tate’s talking about the AMF incident.
It is highly likely that there had been much discussion
among the employees concerning the possibility of the plants
moving to Mexico since early in the campaign, January 17,
1137CHAMPION LABORATORIES
when Tom Mowatt, apparently president of the Company,
distributed a letter to all employees stating, inter alia, that
‘‘The Big three auto makers (Ford, General Motors and
Chrysler) are pressuring suppliers such as Champion to shift
operations to Mexico. UAW members who work at auto and
defense plants are losing their jobs in record numbers.’’
(G.C. Exh. 3.)
Based upon the demeanor of Bunting, who testified cred-
itable to another matter, and Ferido, both of whom testified
in a straightforward and direct manner on both direct and
cross-examination, and the fact that they are current employ-
ees testifying adverse to the interest of their employer, I
credit their version of this incident. Accordingly, I find that
Tate made the implied threat that Respondent would close
their facility if the Union were selected to represent the em-
ployees. Dlubak Corp., 307 NLRB 1138, 1143, 1152 (1992),
enfd. 5 F.3d 1488 (3d Cir. 1993). I find that there was prob-
ably also other comments concerning the learning of Spanish
among the employees at that time.
D. The May 16 Allegation
The complaint alleges that about May 15 (this incident ap-
parently occurred on May 16) Albion plant 1 Superintendent
Jim Utley selectively and disparately enforced Respondent’s
rule with respect to solicitation and distribution by prohibit-
ing employees from union solicitation and distribution while
permitting such activity for nonunion purposes. The facts are
not in dispute. Carl Bunting, the employee involved in sub-
section C, above, and Karla Morse are employed at Albion
plant 1 on the third shift at which time the shift superintend-
ent was Jim Utley.
At some point prior to their 1 a.m. break on May 16,
Morse asked Bunting to accompany her to plant 2, located
about 50 feet away, to talk to another employee about a
union-sponsored meeting on workman’s compensation. Dur-
ing their break Bunting and Morse went to plant 2 and lo-
cated employee Joe Morber, the employee with whom Morse
wished to speak, and while Morber continued to work Morse
spoke with him about attending the workman’s compensation
meeting for 3 or 4 minutes.
According to Bunting and Morse, as they entered plant 2,
Superintendent Bruce Rose saw them and followed them to
Morber’s workstation and stood nearby as Morse talked with
Morber. Both Bunting and Morse were wearing union insig-
nia on their apparel. Bunting testified that Rose followed
them until they exited plant 2 at which time he heard Rose
page Jim Utley. Bunting and Morse returned to their
workstations prior to the end of their break.
As Bunting was starting his presses, Utley approached him
and told him he could not be going to other people’s work
area bothering them and if it happened again ‘‘he’d have to
take some type of action.’’ Utley then went to Morse
workstation and asked if she had gone to plant 2 on her
break. She admitted it and Utley told her she wasn’t to do
that. ‘‘You ain’t to leave this building. You ain’t to bother
Bruce’s employees. And just stay in your work area.’’
Morse testified that she had worked on all three shifts and
it was ‘‘common’’ for employees from one plant go to the
other to talk to employees about nonwork matters while on
break and the other employees was working, since the two
plants did not have the same breaktimes. Employees Wilmer
McCreary, Robert Morris, and Carl Bunting essentially cor-
roborated Morse as to employees visiting employees in the
other building for nonwork-related purposes.
The Respondent contends that, as in section II,A above,
that the employee Morse had spoken with had complained
about Morse’s interruption of his work to his supervisor. But,
again, as in section II,A above, where Respondent did not
call the complaining employee, Clodfelter, here they did not
call Morber, who allegedly complained about the incident.
Here, as in section II,A above, Respondent prohibited its
employees from engaging in activities on behalf of the Union
under the same circumstances that it permitted them to en-
gage in other nonwork-related activity. This disparate appli-
cation of its rules violates Section 8(a)(1) of the Act. Funk
Mfg. Co., supra at 116.
E. The May 18 Allegation
The allegation here is that Respondent, by Foreman Jim
Smith, selectively and disparately denied off-duty employees
access to the plant for union activities while permitting such
access for other purposes. Gregory Benskin, the employee in-
volved in section II,B above, testified that on May 18, he
was off work with a job-related injury. He went to the West
Salem plant for the purpose of submitting a doctor’s report
with respect to his injury as required by the Employer. After
submitting the required physician report, Benskin went into
the production area of the plant to talk with other employees
about a union meeting scheduled for that afternoon. Benskin
testified that the production line was down at that time, about
2 p.m., perhaps for change of filter types to be made. This
testimony was not contradicted. Benskin was wearing several
union buttons at the time. While he was talking to an em-
ployee, his supervisor, Jim Smith approached and told him,
‘‘Being as you are on workmen’s comp, you are not even
supposed to be in here.’’ Smith told Benskin he would have
to leave. Benskin said, ‘‘[O]kay, I didn’t know that,’’ and
left the plant.
The General Counsel presented testimony from at least
five witneses that Respondent had never before enforced any
policy concerning off-duty employees being on company
property.
Gregory Benskin testified that 3 years ago when a Board-
conducted election was held for the Teamsters Union he had
been home on extended sick leave and was called by Person-
nel Manager George Traub or his secretary to come into the
plant to vote. Benskin testified that the voting area was off
to the side of a production area and that after he voted he
remained another 30 to 40 minutes talking to employees on
the production line. Wilmer McCreary testified that he had
returned to Respondent’s facility after his working hours to
get his personal tools and was observed by supervision and
was not disciplined or counseled for that conduct. McCreary
further testified to witnessing the plant manager bringing his
personal lawn mower to the facility on a Saturday and hav-
ing on-duty welders work on the manager’s personal mower.
Robert Morris testified that he returned to Respondent’s
facility on numerous occasions when off duty and was never
disciplined or counseled for that conduct. Morris testified
that his wife had previously worked as a janitor for a clean-
ing contractor who performed janitorial work at Respond-
ent’s facilities and that he visited his spouse while she
worked. Morris also testified that since he lives within two
to three blocks from Respondent’s facility, that he frequently
1138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 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.
went to the canteen on company property to buy cirgarettes
and candy. Bunting testified that he had returned to Respond-
ent’s facility at night when off duty to visit the canteen and
buy soda and candy. Karla Morse testified that within the
previous month she had gone to Respondent’s facility during
second shift to talk to an employee and that during this visit
Supervisor Gene Owens observed her. Respondent did not
produce evidence of discipline issued to any employee re-
garding this type of conduct. (G.C. Exhs. 4a, b.) Respond-
ent’s witnesses testified that in the past they had asked off-
duty employees to leave the premises but none could recall
specific instances of this conduct.
Respondent’s vice president of human resources, Dudley
Willis, testified that Respondent’s policy of prohibiting off-
duty employees from being present on the plant premises
was designed to prevent the Respondent from being liable for
any injury caused to an off-duty employee which may occur
on the premises and would not be covered by worker’s com-
pensation. Willis testified that Respondent allows children of
employees to be present on Respondent’s property during
shift changes for the purposes of the off-duty employee tak-
ing over child care responsiblities from the parent about to
go on duty. (Tr. 153.) Willis admitted, however, on cross-
examination that the Respondent would incur the same liabil-
ity for any injury occurring to an employee’s child as it
would for an off-duty employee. Willis further admitted on
cross-examination that on occasion when employees have
had to retrieve their paychecks from their supervisor on the
production floor because the supervisor failed to forward the
unretrieved paycheck back to personnel, that the Respondent
would also be similarly liable for any injury caused to the
off-duty emloyee who came in to pick up his paycheck. Re-
spondent’s efforts with respect to accommodating its employ-
ees’ child care needs and those employees needing to pick
up their checks flies in the face of its alleged reason for de-
nying employee Greg Benskin access to the plant when off
duty on May 18.
Respondent entered into evidence three documents refer-
ring to its efforts to implement its policy regarding the prohi-
bition of off-duty employees from plant property. (R. Exhs.
2, 3, and 4.) Respondent’s Exhibit 2 was allegedly posted in
1982. Twelve years later and during a union-organizing cam-
paign it attempts to initiate it again. (R. Exhs. 2, 3.) Re-
spondent’s Exhibit 4 is a memo issued to three of Respond-
ent’s managers but not to its employees. Respondent also
presented evidence of its posting of notices on its entrances
and exits prohibiting trespassers on its property. However,
Respondent also offered evidence that Respondent also had
posted at its exits and entrances signs which stated, ‘‘No Ad-
mittance, except on-duty employees.’’ (R. Exhs. 5–9, 11, 14–
15.) Wilmer McCreary testified that within the past 2 months
he had posted new signs specifically regarding off-duty per-
sonnel and that prior to that only signs referring to ‘‘author-
ized personnel only’’ had been posted on doors, and in some
cases no signs at all had been posted. Respondent’s attempts
to depict its efforts to establish that it has maintained and en-
forced a policy prohibiting off-duty employees from its
premises is self-serving. Respondent’s offer of its exhibits 2
and 4 only reemphasize its meager efforts to implement a
policy it does not enforce except with respect to union-relat-
ed activities.
Therefore, where Respondent’s reason for denying Benskin
access to the plant premises while off duty is pretextual in
that Respondent allows other off-duty employees access to
its facilities for nonwork and nonunion-related purposes,
which equally put the Respondent at risk of liability, its ef-
forts to reinstitute its 1982 policy during a union-organizing
campaign and in light of Benskin’s open and obvious union
support, it is apparent Respondent’s conduct is a selective
and disparate denial of an off-duty employee’s access to the
facililty for union activities and is violative of Section
8(a)(1) of the Act. Nashville Plastics Products, 313 NLRB
462 (1993); Yale New Haven Hospital, 309 NLRB 363, 370
(1992); Funk Mfg. Co., supra at 116; Tri-County Medical
Center, 222 NLRB 1089 (1976).
CONCLUSIONS OF LAW
1. Respondent Champion Laboratories, Inc. is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. United Automobile, Aerospace & Agricultural Imple-
ment Workers of America, UAW is a labor organization
within the meaning of Section 2(5) of the Act.
3. The Respondent has violated Section 8(a)(1) of the Act
by:
(a) Interrogating its employees concerning their union ac-
tivities and desires and the union activity and desires of other
employees.
(b) Prohibiting its employees from discussing the Union
with other employees while on plant property.
(c) Impliedly threatening its employees that it would close
its plants if they selected the Union to represent them.
(d) Selectively and disparately prohibiting union solicita-
tion and distribution on company property while permitting
such nonunion activity.
(e) Selectively and disparately denying off-duty employees
access to company property for union activities, while per-
mitting such access for other purposes.
4. Respondent has violated Section 8(a)(3) and (1) of the
Act by issuing a verbal warning, reduced to writing, to its
employee Wilmer McCreary because he engaged in protected
concerted activities with other employees to join and assist
the Union and to discourage employees from engaging in
these activities.
REMEDY
Having found that the Respondent has engaged in conduct
in violation of Section 8(a)(1) and (3) of the Act, which con-
duct interfered with, restrained, and coerced its employees in
the exercise of rights guaranteed them under Section 7 of the
Act, Respondent shall be ordered to cease and desist from
these unfair labor practices and take certain affirmative ac-
tion to effectuate the purposes of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
1139CHAMPION LABORATORIES
4 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, Champion Laboratories, Inc., Albion and
West Salem, Illinois, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Interrogating its employees concerning their protected,
concerted union activities or such activities by other employ-
ees.
(b) Disparately prohibiting its employees from discussing
the Union with other employees.
(c) Threatening its employees that it will close its plants
if they select the Union to represent them.
(d) Selectively and disparately prohibiting employees from
union solicitation and distribution while permitting such ac-
tivity for nonunion purposes.
(e) Selectively and disparately denying its off-duty em-
ployees access to the plant for union activities, while permit-
ting such access for nonunion purposes.
(f) Issuing verbal warnings to its employees because they
engaged in union and protected concerted activities in order
to discourage employees from engaging in these activities.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Remove from all its files any written reference to the
verbal warning given Wilmer McCreary on January 26,
1994.
(b) Post at its facilities copies of the attached notice
marked ‘‘Appendix.’’4 Copies of the notice, on forms pro-
vided by the Regional Director for Region 14, 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 customar-
ily 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.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.