Comar Glass Co.

National Labor Relations Board - Board Decisions

Aug 20, 1979

244 N.L.R.B. 379 (N.L.R.B. 1979)

COMAR GLASS ('OMPANY
Comar Glass Company and District 65, Distributive
Workers of America. Cases 4 CA 9469 and 4 CA
9470
August 20, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRlESI)AI.
On April 26. 1979, Administrative Law Judge Jose-
phine H. Klein issued the attached Decision in this
proceeding. Thereafter, the General Counsel and Re-
spondent filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(h) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Waill Productr. Inc. 91 NRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefull 5 examined the
record and find no basis for reversing her findings. Nor do we find merit in
Respondent's contention that. because the Administrative Law Judge gener-
ally discredited Respondent's witnesses and credited the General Counsel's
witnesses, her credibility resolutions were erroneous or attended by bias or
prejudice. N LR.B. s. Pittsburgh Steamship Comparn,. 337 IU S 656 (1949).
Contrary to his clleagues and the Administrative Law Judge. Member
Jenkins would find that Supervisor Ateca did more than create an impres-
sion of surveillance when on May 26, 1978, he stood outside the plant and
observed Sara Michaud, Vicki Basile. and another employee who were walk-
ing across the street during a break period in his view, this was actual
surveillance. According to credited testimony', shortly before this incident.
Ateca threatened Michaud with discharge and warned her that she was one
of four employees who were going to be watched carefully. The Administra-
tive Law Judge found, despite Ateca's testimony that he rarely leaves the
plant building during breaks, that it was "not all unlikely" that Ateca
stepped outside the plant "for a breath of fresh air" since on May 26 it "was
probably quite warm." The Administrative l.aw Judge concluded that, al-
though Ateca threatened Michaud with surveillance and created the impres-
sion of surveillance, the record did not support a finding of actual surveil-
lance. Member Jenkins, in agreement with Respondent. considers the
Administrative Law Judge's comments regarding the weather speculative
Accordingly, he finds no explanation for Ateca's presence soutside the plant
other than fulfillment of his earlier threat to engage in surveillance.
Further, although he agrees with the Administrative Law Judge's finding
that Respondent promulgated, maintained, and enforced unlawful restric-
tions on solicitation and distribution by employees. Member Jenkins notes
that, even if. as Respondent contends, the restrictions expressed to employees
related only to "working time," Respondent nonetheless infringed upon the
employees' Sec. 7 rights. See then-Member Fanning's and his dissent Essei
International Incr, 211 NLRB 749 (1974). In his view, the record amply
displays once again the fundamental illogic in the Board's "working
hours"-"working time" distinction. Not only does the record shsow that
Respondent played on the ambiguity of its restrictions by repeatedly answer-
ing employee inquines regarding the permissible scope of their solicitation
and distribution activities by coyly stating that the employees were free to do
as they wished on their "own time" -a phrase which highlights the ambigu-
ity of "working time" and "working hours" but it also shows that Respon-
dent's own witness, Vice President Rugerri, revealed his confusion concern-
ing the supposed distinction between "working time" and "working hours"
when he testified that he told an employee that "I don't want to see ou
distributing any material during working hours, your working time "
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
Contrary to Member Jenkins Members Murphy
and Truesdale agree with the Administrative Law
Judge's finding that, although Supervisor Ateca
threatened employee Michaud with surveillance, the
General Counsel lailed to establish that Respondent
engaged in surveillance when Ateca was observed
outside the plant by Michaud at the time she and two
other employees walked across the street during a
break. While they do not rely on the Administrative
law Judge's conjectural statements that it was not
unlikely that Ateca was outside the plant for a breath
of fresh air because it was probably quite warm, they
are unwilling to inter as Member Jenkins does that
the only explanation for Ateca's conduct in question
was to engage in surveillance. In any event, they find
it difficult to see how the complaint allegation ot' sur-
veillance over employees' union activities can he es-
tablished when the record shows that at the time
Ateca was outside the plant the only activity engaged
in by employees consisted of their walking across the
street to buy soft drinks.
Finally, Members Murphy and Truesdale agree
with the Administrative Law Judge that Respondent
promulgated unlawfully broad and ambiguous no-so-
licitation and no-distribution rules. C'onsequentl.
they find it unnecessary to go beyond the tacts of the
instant case to engage in a discussion of' Essex Inlcr-
nationll a In.. 211 NLRB 749 (1974).
ORDER
Pursuant to Section 10(c) of' the National Labor
Relations Act, as amended, the National ahbor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and herebh or-
ders that the Respondent, Comar Glass Company.
Vineland. New Jersey, its officers, agents, successors,
and assigns. shall take the action set forth in the said
recommended Order, except that the attached notice
is substituted for that of the Administrative Law
Judge.
IT IS FUR[tIER )RI)EREDI) that the complaint he dlis-
missed insofar as it alleges that Respondent engaged
in surveillance of its employees' union activities.
APPENDIX
No I l(i To EMP.()OYEES
POSIEt1 BY ORDER ()O Il
NAI()ONA. LABOR RI ATI()NS BARI)
An Agency of the United States Government
After a hearing at which all parties had the opportu-
nity to present evidence, it has been tound that we
244 NLRB No. 55
379
DECISIONS OF NATIONAL LABOR RELATIONS BOAR[)
have violated the National Labor Relations Act, as
amended, and we have been ordered to post this no-
tice. We intend to abide by the following:
Wtl Wl.L NOT prohibit distribution of union
material during nonworking time in nonwork
areas of our premises.
WE WILL NOT discriminatorily apply a rule
against solicitation and/or distribution of union
material in order to discourage union activities
among employees.
WI: WILL NOT coercively interrogate employ-
ees concerning union activities.
WIe Wll.l NOT threaten any employees with
discharge if they support a union.
WE WlL.. NOT expressly or impliedly promise
employees improved benefits if they refrain from
supporting a union.
WE WILL NOI threaten employees with surveil-
lance of their union activities and WE Wlll. NOT
take any action which gives the impression that
employees' union activities are being kept under
surveillance.
Wl W'll.l NO()r 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 National Labor Relations Act.
All our employees are free to become, remain, or
refrain from becoming or remaining members of Dis-
trict 65, Distributive Workers of America, or any
other labor organization, except to the extent that
such right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment as authorized by Section 8(a)(3) of the
Act.
COMAR Gl.ASS COMPANY
DEC(ISION
JOSEPHINE H. Kl.EIN, Administrative Law Judge: Pursu-
ant to charges filed on June 21, 1978,. by District 65, Dis-
tributive Workers of America (herein called the Union), a
consolidated complaint was issued against Comar Glass
Company (herein called Respondent), on August 18, alleg-
ing that on various occasions in May Respondnet. through
Plant Manager John Rugerri and foreman Luis G. Ateca,
violated Section 8(a)(I) of the Act.2
Upon due notice, a hearing was held before me in Vine-
land, New Jersey, on January 16. 1977. All parties were
represented by counsel and were afforded full opportunity
to present oral and written evidence and to examine and
cross-examine witnesses. The parties waived oral argument,
and post-trail briefs have been filed on behalf of the Gen-
eral Counsel and Respondent.
' Unless otherwise specified, all dates herein are in 1978.
2 National Labor Relations Act. as amended. 29 U.S.C. §151, el seq.
Upon the whole record. careful observation of the wit-
nesses and consideration of the briefs. I make the following:
FINDINGS () FA('I
1. PREI.IMINARY FNI)IN(;S
A. Respondent. a New Jersey corporation, is engaged in
the manufacture of glass objects at its facility in Vineland,
New Jersey. During the past year, Respondent sold and
shipped goods valued in excess of $50,000 directly to points
outside New Jersey. Respondent is, and was at all times
material herein, an employer engaged in commerce within
the meaning of Section 2(2), (6). and (7) of the Act.
B. The Union is, and was at all times material herein, a
labor organization within the meaning of Section 2(5) of the
Act.
11. HE AI.IE;EI) UNIAIR AB()OR PRA(''II(IS
The Union had apparently attempted to organize Re-
spondent's approximately 80 employees off and on since
sometime in 1976. After a period of inactivity. the Union
reactivated its organizational campaign in March or April
1978. As it had in connection with previous organizational
activity, Respondent campaigned against the Union. The
present complaint alleges that in May Respondent. through
John Rugerri, its vice president and/or plant manager, and
Luis5 G. Ateca, second-shift foreman, violated Section
8(a)( 1 ) of the Act on six specified occasions.
A. Lis Ateca
I. Credibility
At the outset, I here state my conclusion that Ateca was
an unreliable witness and is discredited when his testimony
is in conflict with that of other witnesses. The testimony
shows that he is more convivial and garrulous than prudent
and reticent. For example, as discussed below, he admitted
having questioned employees concerning union activities.
He expressed his antiunion sentiment in such an expansive
manner that he so upset a prounion employee that Rugerri
felt compelled to counsel Ateca to restrain his ardor. Ateca
also admittedly announced a no-distribution prohibition far
broader than Rugerri had dictated.
Ateca's expansiveness as shown in the testimony was
substantiated by his demeanor as a witness. While I do not
believe that Ateca intentionally testified falsely, I doubt
that he would accurately recall individual conversations
which undoubtedly seemed to him to be casual exchanges
with the employees with whom he worked on a friendly
basis. To the employees, however, actively engaged in a
union campaign, Ateca would represent management. and
'The transcript contains many errors. However. no corrective order is
being issued because the mistakes generally are not crucial and the tenor of
the testimony is adequately reflected.
'* This is the spelling used in the complaint and the transcript of the trial.
Respondent's brief, however, spells the name "Ruggieri."
"Luis" is the spelling used in the transcript, whereas in other documents
the name is sometimes spelled "Louis."
380O
()OMAR ;l.ASS ('OMPANY
his remarks would be taken quite seriously and tihus would
be well remembered. The testimon and demeanor of the
employee Nwitnesscs confirm this conclusion. They all ap-
peared to he attempting conscientiously to present the facts
truthfully. without exaggeration or equivocation.
2. Specific allegations
It is alleged that on May I 11, 1978. Ateca "interrogated
employees . . . regarding their union activities."
Employee Vicki Basile testified that on May I I. while she
was working. Ateca asked her if she had attended the union
meeting held the night before. Basile said she had. She tes-
tified that later that day Ateca asked another emplosee.
Nancy Simkins. if she had attended the union meeting and
signed a union card. Basile said that was none of Ateca's
business. At that point Ateca told Basile "to be quiet" he-
cause he was not talking to her. According to Basile, Ateca
later asked still another employee. Debbie Starn, if she had
signed a union card. Ateca made derogatory statements
about the Union and its business agent. Overhearing them.
Basile became so disturbed that she wept.
Ateca denied Basile's testimony that he asked the named
employees about attending the union meeting or signing
cards. However, he admitted that he spoke to employees
about the Union in the lunchroom. His testimony was:
I did talk about the Union in the lunch room, like
there were five or six of the girls there on the lunch
period or break time. I walk in and I say, how was the
union meeting last night or the night before. When is
the next union meeting coming up .... I recall making
this statement to the group of girls. not to any individ-
ual in particular and the girls would laugh and just
look at me. Sometime they would say, oh. we have one
Friday, do you want to come, things like that.
Ateca corroborated Basile's testimony concerning his an-
tiunion talk. Ateca said that Fran Smith. the Union's busi-
ness agent, showed up only on payday, to receive union
dues, and then, after getting the money. he retired to the
local barroom. Ateca said he had learned of that practice
on a previous job. He added that he expected to see Smith
at the bar that very evening. According to Ateca. Basile
"became a little bit upset. She was even crying tears on her
face." She asked Ateca to "stop talking about the Union
like that." but Ateca replied that he was saying "nothing
but the truth."
Ateca told Rugerri about his contretemps with Basile.
The next day Basile also spoke to Rugerri about the inci-
dent. Rugerri said that Ateca. like everybody else, had the
right to have and express his own opinions. Although he
thought Ateca had done nothing wrong, Rugerri said he
would caution Ateca because he had so upset Basile.
Basile said she was upset because Ateca was joking about
what she considered a very servious matter. Rugerri also
said that Ateca obviously was joking in his statements
about Smith because Ateca well knew that Smith did not
take union dues money to a bar. However, Ateca made it
clear that he was not joking. He testified:
... I told [Basile] that I say nothing but the truth and
I explained to her about the experience I had had in
the previous place v.here I orked ith a union repre-
sentativre.
There can be no doubt that Ateca's interrogation of cn-
ployees concerning union meetings and actiC llles viiared
Section 8(a)( I) of the Act. since there was no appairent le-
gitimate reason for his seeking the information and the eln-
plovees were not given an\ assurances against reprisals. It is
no deflense that Ateca was friendl with the emplo'ees" or
that there is no direct evidence that any of' the emploecs
actuallI were coerced.'
The complaint further alleges that on Ma, 2(0 i\eca
threatened to keep employees under sur'eillanc e aind to dis-
charge union supporters, and that. additionall . he "warned
an employee to cease talking about the U nilon during work-
ing hours on Respondent's property." These allegations are
based on the testimony of employee Sara Michaud concerin-
ing a conversation she had when Ateca called her into the
office. Ateca resealed that he knew she had pre.iousl
placed union literature in cars in the parking lot and said
that "he wasn't going to stand any more of it." According
to Michaud. Ateca said that "if he een suspected [she] Was
talking about a union. he would tire [her and an! body [she]
was talking to." even if doing so required shutting do n the
machines.
Ateca denied having made such statements. Iloweecr.
based primarily on the demeanor of the wuitnesscs, as dis-
cussed above, I credit Michaud. Ateca adnmittedN had
strong antiunion feelings and was obviously eager to tster
the Union's defeat. which Rugerri desired. Ateca testitied
that he did not have authority to fire anybody. loweuver,
that fact would not preclude his having made the threat
attributed to him. Overstatement was not foreign to his na-
ture. Since Ateca directly supervised employees on the sec-
ond shift. when most of the time RKugerri was not present. it
is likely that Ateca could eflectively recommend disciplin-
ary action. Ateca testified that every day he gave Rugerri a
detailed oral report of events on the second shift the da!
before. That being so. it was at most a minor overstatement
for Ateca to indicate that he would discharge Michaud it
she continued to talk about the Union while on Respon-
dent's premises. There was no company rule prohibiting or
limiting employees' talking among themselves. so long as it
did not interfere with their work. That being so, the prohi-
bition of union talk clearly violated Section 8(a)(l) of the
Act."
Michaud testified that in the same conversation. in the
office on May 26. Ateca warned her that she was one of
four listed employees who were going to be watched care-
fully. Again. despite Ateca's denial. I credit Michaud's tes-
timony. The statement so attributed to Ateca is in keeping
with his personality and manner. He probabl considered
his warning to be an act of kindness, a bit of friendls advice
given so that the employees could avert trouble and avoid
possible disciplinary action.
*N.L.R B v. Big Three Industrial (;am & Equipment Co., 579 -.2d 104. 311
(5th Cir. 1978).
7Friio-Laj, Inc v .L.R B 585 F.2d 62 13d ('lr. 1978).
Olyvmpic Medical Corporarion. 236 NLRB I 117. 1122 1978): (Champagne
Color, Inc., NLRB 82. 85 (1978)
381
DI(' ISIO()NS O()F NATIONAI. AB()OR RE.A IO()NS BOARI)
lihe complaint also alleges that Ateca engaged in surveil-
lance of enmplosees' union activilies and gave the impres-
sion that he w'as doing so. I'hose allegations are based on
the testimony of employees Michaud and Basile that theN
saN Atcoca outside the pliant during their break period on
Mas 2. 1 hec testified that he appeared to he watching
Michaud. Basile. and another employee. identified only as
Irene. as they went across the street to purchase soft drinks
and as they returned.
Ateica did not flatly den) the employees' testimony. but
testified that he generallI takes his lunch and other breaks
in the employees' cafeteria and rarely leaves the plant
building. lie did not recall doing so on May 26. However.
on the evening in question the soft drink vending machine
in the plant was out of order. Since the event occurred late
in May, the weather was probably quite warm. It is not at
all unlikelN that, inder the circumstances Ateca would step
outside for a breath of fresh air. Additionally, it seem un-
likely that two employees would make up out of whole
cloth such a relatively insignificant event. I credit Michaud
and Basile. Other evidence cstablished that on at least one
occasion Fran Smith, union business agent, was outside the
plant for the purpose of delivering some union literature for
distribution within the plant. and on another occasion lit-
erature was distributed outside the plant. Thus it would not
be unreasonable for Ateca to believe that he might be able
to observe employee contacts with the Union outside the
plant during breaks. Nor would it be unreasonable for the
employees to believe that Ateca was outside for the purpose
of observing such contacts.
Accordingly. on all the evidence. I find that, as alleged.
on May 26 Ateca created the impression that he was con-
ducting surveillance of employees' union activities. How-
ever, the evidence is insufficient to establish that Ateca was
in fact conducting such surveillance on May 26.
B. John Rugerri
The complaint alleges that on May 18 Rugerri promised
improved benefits if the employees refrained from support-
ing the Union. That allegation is supported by Michaud's
testimony concerning a discussion she and Rugerri had of
the comparative virtues of the Company's and the Union's
benefit plans. Michaud testified that she expressed the opin-
ion that the Company's insurance did not provide any real
benefit, to which Rugerri replied that even if the Union got
in. it would not necessarily follow that the employees would
get union benefits. According to Michaud. Rugerri pro-
ceeded to say that he was trying to improve the benefits and
hoped that the Company would be able to provide "benefits
of like $100 a year for like medical expenses for doctors and
everything."
In its brief Respondent argues that Rugerri was merely
elucidating Respondent's past practice of improving bene-
fits as much as it could and that at no time did he "prom-
ise" increased benefits conditioned on the employees' es-
chewing the Union. Although Rugerri was a witness, he
was not examined concerning Michaud's testimony about
this conversation. Michaud conceded that Rugerri did not
expressly "promise" improved insurance coverage. How-
ever, against the background of the union campaign and
Rugerri's statement that a union victory would not neces-
sarily assure union benefits, a promise of improved insur-
ance coverage in the absence of the Union was implicit in
Rugerri's statements: Michaud could not have escaped the
message that a union victory might give the employees
nothing while, without a union, the (Company would volun-
tarilv improve insurance coverage. Respondent presented
no evidence of any past practice concerning benefits or con-
cerning advance announcement of' improvements therein
while the) were in the "consideration" stage. On all the
evidence, I find that, as alleged. Respondent violated Sec-
tion 8(a)( I) when Rugerri, in speaking with Michaud on or
about May 18, impliedly promised increased benefits if the
employees rejected the Union.
C. No-distribution and No-.solWiirtion Rules
The complaint alleges that on May 25 Ateca and Rugerri
"warned employees to cease distributing any written mate-
rials in support of the Union" and on May 26 Ateca
"warned an employee to cease talking about the Union dur-
ing working hours on Respondent's property." Although
the complaint does not allege in haec rverha that Respondent
promulgated invalid no-distribution and no-solicitation
rules, the evidence largely established such allegations. and
such evidence was received without objection. The issue
was fully litigated, and the major portion of Respondent's
post-trail brief is directed to the issue of whether Respon-
dent orally promulgated an unlawful no-distribution rule or
unlawfully extended an existing rule. Since the promulga-
tion or extension of such rules are intimately related to the
specific statements alleged, the allegedly invalid rules are
properly in issue to be decided here. See The Timken Com-
pan', 236 NLRB 757, 758 (1978).
The evidence establishes that employees had engaged in
considerable commercial activity at the plant. Several em-
ployees sold miscellaneous commodities, such as Avon cos-
metics. Tupperware, toys. jewerly. large coloring books,
and ladies' clothing. In connection with some of these ac-
tivities, catalogs were used and passed among the employ-
ees. Much of' the commercial activity occurred while the
employees were working. Additionally, at least on the sec-
ond shift, a check pool was operated on payday. To a great
extent the money was collected from the participants, and
the winner was paid while the employees were working.
Also, management encouraged employee contributions to
the annual United Way appeal and provided for solicita-
tion therefior during the employees' working time.
Although Ruggerri testified that he spends 60 to 70 per-
cent of his time away from his desk, going through the
plant,9 he maintained that until December 1977 he had no
idea how widespread the employees' commercial activities
and distribution of materials had been. He testified that the
matter came to his attention forcefully in December 1977
when he was approached by employee Mark Appling, who
I As a preface to Rugerri's testimony concerning a conversation he had
with employee Michaud in the middle of May. Rugern testified: "It was a
rare day that I could walk by Sara that she doesn't call me over to talk about
something" Although Michaud works on the second shift. Rugerri testified
that he saw her three or four times a day.
382X
('OMAR GLASS ('OMPANY
complained that he had ordered some toys trom emplo)ee
Michaud hut had not received the merchandise. Appling
said that he believed Michaud had no intention o1 deliver-
ing the goods. Rugerri and Ateca then spoke to Michaud
and her associate, employee Teresa Priest. Michaud named
their supplier and informed Rugerri that the, had already
paid the supplier for the goods. Rugerri then checked with
the supplier and was satisfied that Michaud was telling the
truth. That ended the matter.
Rugerri testified that the Appling incident led him to
make inquiries of his supervisors. from whom he learned
that distribution of materials during working time was ram-
pant. He thereupon adopted a "very, very firm ruling . . .
that there was to be no distribution."
There are significant deficiencies in Rugerri's testimony
in this connection. He testified that anyhody "particularly
reading or looking through leaflets, looking through a cata-
log boo)k or whatever . . . obviously could not be at her
work station." He further testified that he had told NMi-
chaud "that her selling and walking around and trying to
get sales and deliver product and such, had disrupted our
process so greatly that we felt we finally had to take a very
strong stand regarding the selling and distribution of mate-
rials." But neither Rugerri nor Ateca testified to any disrup-
tion of production caused by Michaud's or any other em-
ployees' sale activities. Indeed. Rugerri testified that he
"doubted" that there had been any change in production
after promulgation of the no-distribution rule. Rugerri's al-
leged statement to Michaud stretched the truth, since he
repeatedly maintained that until the Appling incident he
had been unaware of the extent of sales activities by the
employees.'° On the face of it, it appears improbable, if not
totally impossible, for Rugerri to have remained unaware of
widespread employee activity if it were seriously disrupting
production. Even if he personally failed to observe the un-
desirable activities, it is inconceivable that the supervisors
would fail to inform him of such a broad-scale problem if it
adversely affected production. The evidence establishes that
every day Ateca reported to Rugerri in detail the activities
of his employees on the second shift.
Further. as conceded by Rugerri in testifying. the Ap-
pling incident had nothing whatsoever to do with disrup-
tion of production. It was an incident which could just as
readily have arisen if the sale had been made in the cafete-
ria during breaktime. Indeed, there is no evidence as to
where the Appling sale had been made. So far as it appears,
Rugerri never inquired about the matter, presumably be-
cause the location and timing of the sale were irrelevant to
the problem, namely. Appling's distrust of Michaud's busi-
ness honesty.
Respondent claims that the Appling incident "nearly re-
sulted in a serious confrontation between employees." If
this is true." it is incomprehensible why Rugerri did not
[0 Respondent's brief says argumenfively. without eidentiar) support,
that "it is axiomatic to state that the distribution of materials and sale of
products during the working time would of necessity interfere with the work
of the inspectors and packers charged with the responsibility of insuring the
quality and proper packing of thousands of bottles coming off the production
line each hour."
1 Concerning the effect of the Appling incident. Rugerri testified:
completely prohibit sales actis ity bh employees at the plant.
Such a blanket prohibition Would be permissible since such
commerciall activity enjoys no statutor, protection. k2
Rugerri maintained that there was no ambiguity in the
rule orally promulgated in December 1977: it was made
plain and fully understood by all that the prohibition ap-
plied only to activities conducted during working time. TIhe
record does not support this contention, at least so ar as
the rule was invoked during May 1978. Rugerri testified
that in December 1977 he told the foremen of the "very.
very firm" rule and it as the foremen's responsibility to
inform the employees. Ateca testified that he had so in-
structed the employees working under him. Hlosever it is
undisputed that in May, during the active union campaign.
Ateca informed employee Michaud that she was not to dis-
tribute union material anywhere on Respondent's premises.
He testified that Teresa. another employee, complained to
him that Michaud "was harassing her, making her very up-
set and nervous, that [Michaudi wanted for [Teresa] to take
some Union literature to her area and sign a Union card."
The employee said that this "harassment" occurred in the
ladies' room "or in the line."'' Ateca testified that the next
day he spoke to Michaud. who "admitted she had talked to
Teresa in the ladies' room and even in the line while she
was packing." Ateca then "told [Michaud] that she knew
that it went against Company rules and she was not to
distribute anything during working time or to bother the
other workers" and she was "not to distribute within the
Company property." In its brief. Respondent specifically
argues that its "no-distribution rule did not distinguish be-
tween working areas and non-working areas. but simply
prohibited distribution and sales during an employee's
working time." If. as Respondent maintains, the rule was
strongly and unambiguously promulgated in December
1977. it is odd that Ateca would so grossly misstate it in
May 1978.1
Rugerri testified that after he learned of Ateca's misstate-
ment he (Rugerri) spoke to Michaud and "corrected"
Ateca's erroneous instructions. Rugerri further testified that
he repeatedly informed Michaud and other employees that
they were free to distribute material during breaks. His
Jtix;Ia Ki itN: That in itself didn't disrupt the operation of the busi-
ness. did it?
TIlE WitNEss: Yes.
JLD(it KLEIN: How?
THE WilNtSS: I was very close to somebody getting seriously hurt.
JUlDj. Ki-tIN: Who?
THi WItNLss: Mark Applingl threatened about someone off the wall
If he didn't get his toys quick . . at that point in time, this incident was
extremely serious in a very, very volatile situation. however many peo-
ple involved in it. My involvement extended over a two or three das
period while I traced it down.
Appling did not testify
12 Cf. The Bern Schools. 234 NLRB 942 (19781: The Anrhony I Jordan
Health Center. 235 NLRB 1 113 (1978).
it Teresa did not testify.
'' Respondent argues that Ateca's admission of having stated an invalid
prohibition reflects his honesty and candor as a witness. However. in refuta-
tion of Basile's testimony that Ateca cautioned her against being seen with
union literature. Respondent brief says: "With the prohibition regarding
distribution o literature being confined to working time. and with wide-
spread employee knowledge that this was the only restriction as to the distri-
bution of literature, it would have been highly unlikely that Ateca would
have made the unlawful comment which Basile claims he made in the al-
leged May 25th cnsersation.'
383
I)E(ISIONS O()F NATIONAL LABOR RELATIONS BOARD)
originial testimony concerning a conversation with Michaud
was. in part:
... She asked me if she was allowed to [do it] at lunch-
time and this is what brought the conversation. She
told me that Luis told her that she was not allowed to.
I told her she was allowed to. I told her she was and
explained again that she absolutely is allowed to dis-
tribute when she pleases in the lunchroom.
She was allowed to distribute material on the lunch
break. In the lunchroom on lunch break, she asked
that specific question and I said yes.
It appears, however, that Rugerri was not quite as forth-
right as is indicated by the foregoing testimony. At the end
of his direct examination he testified as following concern-
ing a conversation he had had with employee Basile:
Q. ... Was anything said regarding your rule about
distributing literature on working time?
A. Yes. Vicky asked me specifically if she was al-
lowed to distribute material,
Q. Did she say where?
A. No. I reminded her of the rule that the Company
had regarding distribution, again saying, you are
aware of it. We have a very firm rule disallowing the
distribution of material during working time. She said.
"what about the cafeteria," and again as I say to everv-
body. "what you do on ,your own time is your own busi-
ness.
I didn't want to say Vicky, yes you are allowed to do it
in the caJiteria. She asked me again. "can I distribute
in the cafeteria." and I said, "Vicky, what you do in
your own time is you business." [Emphasis supplied.]
Thus Rugerri made the telltale lapse, revealing that he was
consciously seeking to create or take advantage of an ambi-
guity. While he may have "told the truth." he avoided tell-
ing "the whole truth."
This conduct is consistent with his entire course of action.
It undoubtedly explains why he, Rugerri, personally under-
took to inform Michaud that Ateca had "misstated" the
rule concerning distribution. As seen above. Ateca is a very
forthright speaker, obviously not to be relied upon to
choose his words with semantic subtlety.''
It is well established that "the risk of ambiguity must be
held against the promulgator of the rule rather than against
the employees who are supposed to abide by it." N.L.R.B.
v. Harold Miller, Herbert Charles and Milton Charles. Co-
partner. d/hla Miller-Charles and Company. 341 F.2d 870.
874 (2d Cir. 1965); Farah Manufacturing Company, 187
NLRB 601. 602 (1970); Brown Manufacturing Corporation,
235 NLRB 1329, 1330 (1978). When Rugerri informed em-
ployees that "what they did on their own time was their
own business." he carefully did not define "their own time."
Absent an unequivocal clarification by Rugerri, the em-
ployees might well understand that they were permitted to
'i Apparently Rugerri personally undertook to explain and enforce the
rule. He testified that when the day-shift foreman observed an employee with
a clothing catalog. it was Rugerri who "reminded [the employee] of the rule
that she is not to be distributing or passing out and selling any of this mate-
nal during the working time."
distribute literature only when the), were not on Respon-
dent's premises, i.e.. only outside of "company time."
Rugerri's carefully chosen words were apparently designed
to foster such conclusion.
It is true that in answer to leading questions b Respon-
dent's counsel, some employee witnesses conceded that they
were informed that they could distribute material on their
breaks. However, it appears that in fact Rugerri always lim-
ited his statements to the litany that what they did on their
own time was their own business. In specific instances the
employees were left with the impression that they could not
distribute union material at the plant.
Employee Iris Pomales testified that on the evening of
May 25. 1978. outside the plant. Union Business Agent
Fran Smith gave her some literature to deliver to employee
Basile for distribution. Pomales testified that Rugerri told
her she was not to distribute papers in the plant. Under
vigorous cross-examination, she steadfastly maintained that
Rugerri did not limit the prohibition of her working timei"
Rugerri testified that he said to Pomales only: "I don't want
to see you distributing any material during working hours,
your working time." I credit Pomales.
Basile testified that the same evening some of the em-
ployees had received some literature outside of the plant.
Thereafter Ateca said to Basile "that he hoped he did not
see Ithe employees] with any of those papers, meaning
Union literature." Testifying on rebuttal, Basile stated un-
equivocally that Ateca had not limited the prohibition to
her working time, but rather expressly stated that she could
not distribute in the lunchroom.
The evidence establishes that the "strict rule" announced
around the beginning of the year was not strictly enforced
as to the distribution of material other than union litera-
ture. For example, the check pool on the second shift con-
tinued, with the winner being paid at work. The evidence
also establishes that sales of merchandise on working time
did not entirely cease. although they were much reduced
and conducted somewhat clandestinely.
Respondent's brief reveals that distribution of union lit-
erature was considered especially undesirable. In justifying
continued solicitation for the United Way and the distribu-
tion of printed material in connection therewith, Respon-
dent's brief says that the annual fund drive for the United
Way does not "engender the potential conflict of opinions
and disruptive capabilities that are frequently attendant
lupon] the distribution of union literature and the solicita-
tion of support by employees." Union solicitation and/or
distribution may cause dissension whether conducted dur-
ing working time or merely at breaks. But the law protects
such activity, with its resultant conflicts. Despite Ateca's
6 The testimony was as follows:
Q. Didn't he tell you. "Iris. I don't want you. you are not allowed to
distribute written material when you should be working?"
A. No. he just told me he didn't want them passed out at all, not in
the lunch room.
Q. Did he mention that?
A. I think he did, yes. I am not sure .
Q. Isn't it true. what he told you not to do was. during your working
time?
A. No. he didn't mean during the working time, he meant not at all
He said he didn't want me to pass out those papers.
Q. That is your recollection as far as what he said?
A. Yes, in the lunch room.
38X4
COMAR GLASS COMPANY
having at one time announced a prohibition of talking
about the Union, Respondent maintains that there are no
restrictions on employee conversations while at work, so
long as they do not interfere with production. However, as
quoted above, in testifying concerning Michaud's alleged
"harassment" of employee Teresa about the Union. Ateca
apparently made no distinction between solicitation and
distribution.
In its brief, Respondent says: "General Counsel appears
to contend that Respondent's rule established in December
1977 was either expanded in May of 1978 to include the
prohibition against distribution of written material, or in
actuality 'promulgated' in May of 1978 as a result of the
resurrected union organizational activities." While the Gen-
eral Counsel has not presented his position in precisely that
manner, the argument summarized by Respondent appears
to be valid.
The rule adopted around December 1977 was directed
against the employees' sales activities, with the prohibition
of distribution generally applicable to merchandise and
catalogs and price lists.' It appears that there was very little
distribution of other written material in the plant.'" The rule
as announced and enforced in May 1978 was directed
against distribution of written material on behalf of the
Union. Rugerri intentionally fostered ambiguity in the rule
so that employees would not clearly or fully understand the
extent of their statutory rights.
Accordingly, I find and conclude that, as specifically al-
leged in the complaint, Ateca and Rugerri on May 25
"warned employees to cease distributing any written mate-
rials in support of the Union" and on May 26 Ateca
"warned an employee to cease talking about the Union dur-
ing working hours and on Respondent's property." I further
find that Respondent, through Ateca and Rugerri, promul-
gated an unlawfully broad and ambiguous no-distribution
rule. Rugerri intentionally refrained from removing the am-
biguity. Additionally, Rugerri did not clearly and unam-
biguously disavow the prohibition of oral solicitation that
Ateca imposed on Michaud. Accordingly, I also find and
conclude that Respondent promulgated an unlawful no-so-
licitation rule.
CON(CI.USIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
t' Michaud's testimony on cross-examination was:
Q. Isn't it true that Rugerril told you. not only that he didn't want to
see anymore catalogs. but that he didn't want anything passed out in the
working area during working time because it was his time and it was
interfering with work?
A. He was talking about the toys, he didn't want to see anymore toy
catalogs. jewelry catalogs during working time and I was to conduct my
business on my own time.
It may be noted that counsel's leading question refers to "the working
area," whereas his brief states that the no-distribution rule made no distinc-
tion between work and nonwork areas.
18 Michaud testified that once photocopies of a funny newspaper article
concerning the payment of housewives were distributed. During the union
campaign (apparently both the earlier and the present campaign) Respon-
dent apparently distributed antiunion material. Such distributions are not
alleged as violative of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By engaging in the following conduct, Respondent
committed unfair labor practices in violation of Section
8(a)( ) of the Act:
(a) Coercively interrogating employees concerning union
activities:
(b) Impliedly promising improvement in employee bene-
fits if the employees rejected union representation:
(c) Threatening to engage in surveillance of employees'
union activities and giving the impression that such surveil-
lance was being conducted:
(d) Threatening to discharge employees who support the
Union:
(e) Promulgating, maintaining and/or enforcing a rule
prohibiting any distribution of union literature during em-
ployees' nonworking time;
(f) Announcing a prohibition of oral solicitation for and
discussion of the Union more stringent than is imposed on
other oral communications among the employees.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. It has not been shown that Respondent has engaged in
surveillance of its employees' union activities.
Ttill. RinMIl),I
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respondent
be required to cease and desist therefrom and take certain
affirmative action designed to effectuate the purposes of the
Act, as is customary in cases such as this.
Respondent contends that no remedial order should be
issued because any violations found were minor and iso-
lated. Respondent also emphasizes the fact that after Ateca
informed employee Michaud that she was not to distribute
written material anywhere or at any time on company
property. Rugerri almost immediately corrected Ateca's
misstatement. However, as set forth above. Rugerri was not
totally frank in his "correction": he claimed merely to have
told some employees that "what they did on their own time
was their own business." advertently refraining from defin-
ing employees' "own time" as specifically including non-
working time while on Respondent's premises. Accordingly.
I reject Respondent's contention that its unfair labor prac-
tices were so minor and so promptly remedied as to dictate
that no remedial order be issued.
Upon the foregoing findings of fact, conclusions of law.
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
OR[)ER'9
The Respondent. Comar Glass Company. Vineland. New
Jersey, its officers, agents, successors, and assigns, shall:
1' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National I.abor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102 48
of the Rules and Regulations. be adopted b the Board and become its
findings. conclusions, and Order. and all objections thereto shall be deemed
waived for all purposes.
385
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Interrogating employees concerning their union ac-
tivities;
(b) Expressly or impliedly promising increases in em-
ployee benefits if the employees reject union representation:
(c) Threatening to engage in surveillance of employees'
union activities and creating the impression that surveil-
lance is being conducted of employees' union activities:
(c) Threatening to discharge employees who support the
Union:
(e) Promulgating, maintaining, or enforcing any oral rule
which prohibits employee solicitation on behalf of a union.
which prohibits distribution of union literature by employ-
ees during nonworking time in nonwork areas, or which
imposes any greater restriction on solictation and distribu-
tion in support of a union than is imposed on solicitation or
distribution for any other purpose;
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the rights
guaranteed them under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Post at its plant in Vineland, New Jersey, copies of
the attached notice marked "Appendix." t 0 Copies of said
notice, on forms provided by the Regional Director for Re-
gion 4. after being duly signed by Respondent's authorized
representative, shall be posted by Respondent immediately
upon receipt thereof, and shall he maintained for 60 con-
secutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date of this Order. what steps
Respondent has taken to comply herewith.
II IS FUR'IIIR ORI)I;RED that the complaint be dismissed
insofar as it alleges that Respondent engaged in surveillance
of employees' union activities.
20 In the event that this Order is entforced 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
386