CTS Keene, Inc.

National Labor Relations Board - Board Decisions

Feb 12, 1980

247 N.L.R.B. 1016 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CTS Keene, Inc. and International Union of Operat-
ing Engineers, Local No. 12, AFL-CIO. Case 31-
CA-8673
February 12, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On August 14, 1979, Administrative Law Judge
Michael D. Stevenson issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Counsel
filed limited exceptions and a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order,' as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, CTS
Keene, Inc., Paso Robles, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph l(c):
"(c) Suspending or otherwise disciplining employees
because they engaged in union or protected activities."
2. Insert the following as paragraph l(d):
"(d) 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
National Labor Relations Act, as amended."
3. Substitute the attached notice for that of the
Administrative Law Judge.
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products. Inc.. 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings. No exceptions were taken
to the Administrative Law Judge's dismissal of the allegation that Respondent
unlawfully solicited grievances.
' The Administrative Law Judge found that Respondent unlawfully
interrogated employee Karen Avery on three occasions. We agree with the
247 NLRB No. 141
Administrative Law Judge that Respondenlt's questioning of Avery on two of
those occasions, December 19 and 22, 1978, concerning why she felt a union
was necessary violated Sec. 8(a)(1) of the Act. Interrogations of this nature
long have been held to interfere with, restrain, and coerce employees in the
exercise of their Sec. 7 rights We, however, disavow any reliance on the
Administrative Law Judge's findings with respect to Respondent's purported
intent with respect to these interrogations, as intent is not material to a finding
that such conduct was violative of Sec. 8(a)(1) See Perkos Inc.. 236 NLRB
884 (1978). As for the third incident of interrogation found by the
Administrative Law Judge, we agree with his finding that Supervisor Ernst's
admonitions to Avery on December 22 to observe the company's solicitation
rule violated Sec. 8(a)(1), but, contrary to him, we do not do so on the basis
that it constituted interrogation; instead, we find, as he did, that this warning
was given without any apparent basis and thus tended to coerce Avery in the
exercise of her Sec. 7 rights; namely, her activities in lawfully soliciting
support for the Union.
In adopting the Administrative Law Judge's finding that employee Karen
Avery was unlawfully suspended for 2-1/2 days. we agree that the reason
given for the suspension, i.e., the disruption of the work of others, was
pretextual, and that the real reason for Respondent's taking such action was
Avery's union activities. Thus. Avery was disciplined for engaging in a
conversation about the merits of unionization with four other employees,
while those employees, who of their own volition stopped working as a result
of that conversation, were not punished. Respondent ordinarily permitted the
employees to converse among themselves while working, and Respondent
itself was at a loss to explain why the four employees stopped working during
this conversation. The difference in treatment reflected in this incident,
therefore, can only be attributed to Avery's support of the Union. Further,
Avery was not given a chance to defend herself prior to discipline being
imposed, and her suspension was based on warnings given in a manner which
deviated from Respondent's usual procedures. In this regard, we also note
that, as to two of the warnings placed in Avery's personnel file, Respondent
failed by credible testimony to establish the occurrence of the incident of
purported solicitation on which those warnings were based.
However, in finding Avery's suspension to be unlawful, we disavow any
reliance on the Administrative Law Judge's finding that the no-solicitation
rule was discriminatorily enforced because of the disparate treatment
accorded employees vis-a-vis supervisors or management concerning the rule's
application, and we shall therefore make the appropriate modification in the
recommended Order. We also disavow his finding that Respondent's failure to
discipline the four employees involved in the conversation with Avery
constituted "an alternative violation of Section 8(a)(3) of the Act," as there is
no basis in law for such a finding. Finally, we draw no adverse inference from
the failure of Respondent to call employees Climmer and Abbot as witnesses,
and thus do not rely on his finding in that regard.
' In his recommended Order, the Administrative Law Judge inadvertently
omitted any general injunctive language. In accord with the Board's decision
in !tickmorr Foods. Inc.. 242 NLRB 1357 (1979), we shall modify the
recommended Order to require that Respondent cease and desist from "in any
like or related manner" infringing upon employees' rights. This change is also
in the revised notice.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportuni-
ty to present evidence and cross-examine witnesses,
the National Labor Relations Board has found that we
violated the National Labor Relations Act, as amend-
ed, and has ordered us to post this notice. We intend
to abide by the following:
WE WILL NOT issue oral or written warnings to
employees for alleged violations of our no-solici-
tation policy when no violations occurred.
1016
CTS KEENE, INC.
WE WILL NOT interrogate our employees about
their feelings, attitudes, or sympathies toward
unions without assurances against reprisal.
WE WILL NOT suspend or otherwise discipline
employees because they are engaged in union or
other protected activities.
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 rescind and physically remove from
our files any and all references to the January 9,
1979, suspension of employee Karen Avery for 2-
1/2 days and to the oral and written warnings of
December 19 and 22, 1978, which preceded her
suspension.
WE WILL make Karen Avery whole for any
less of earnings she may have suffered as a result
of the discrimination against her, with interest.
CTS KEENE, INC.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge:
This case was heard before me at Santa Maria, California, on
May 24, 1979, pursuant to a complaint issued by the
Regional Director for Region 31 of the National Labor
Relations Board on February 21, 1979, which complaint is
based on charges filed by International Union of Operating
Engineers, Local No. 12, AFL-CIO (herein called the
Union), on January 16, 1979. The complaint alleges that
CTS Keene, Inc. (herein called Respondent), has engaged in
certain violations of Section 8(a)(l) and (3) of the National
Labor Relations Act, as amended (herein called the Act).
Issues
The basic issues to be resolved herein are: (1) Whether
Respondent violated 8(a)(l) of the Act by interrogating
employee Karen Avery about her union sympathies; (2)
whether Respondent violated Section 8(a)(l) of the Act by
unlawfully soliciting employee grievances from employee
Karen Avery with an implied promise to remedy them; and
whether Respondent violated Section 8(a)(3) of the Act by
suspending employee Karen Avery for 2-1/2 days.
All parties have been afforded full opportunity to appear,
to introduce evidence, to examine and cross-examine wit-
nesses, and to file briefs. Based upon the entire record, upon
the briefs filed on behalf of the parties and upon my
observations of the demeanor of the witnesses, I make the
following:
FINDING OF FACT
1. JURISDICTION
Respondent admits that at all times material herein it is a
corporation duly organized under and existing by virtue of
the laws of the State of California, with an office and place of
business located in Paso Robles, California, where it is
engaged in the manufacture of electronic components and
metal shelving. It further admits that in the course and
conduct of its business operations, Respondent annually sells
and ships goods valued in excess of $50,000 in interstate
commerce. Accordingly, it admits, and I find, that Respon-
dent is an employer engaged in commerce and in a business
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE I.ABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that at all times material
herein, International Union of Operating Engineers, Local
No. 12, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALI.EGED UNFAIR LABOR PRACTICES
A. background
Respondent is a California corporation with an office and
place of business located in Paso Robles, California, where it
is engaged in the manufacture of electronic components and
metal shelving.
Karen Avery, an employee of Respondent and the alleged
discriminatee, began her employment on February 5, 1977.'
During all times material to this case, Avery was employed
as a lead setup operator in the metal assembly division. As
such, Avery was in charge of setting up assembly jobs and
assigning people to these jobs. She was also required to make
certain that the assemblers had sufficient proper parts to
work with. These duties further required Avery to check
daily production sheets, as well as other paper work.
At some point Avery became dissatisfied with certain
aspects of her job which she felt involved elements of
favoritism and unfairness in the job-bidding procedures.
Avery further came to believe that, if a union were voted in,
she would have a better opportunity to correct her griev-
ances. Accordingly, in mid-September, Avery and another
employee called the Union for the purpose of getting
information on procedures for organizing Respondent's
employees. This telephone call led to several meetings at the
home of Avery and elsewhere, involving several of Respon-
dent's employees. Avery attended all of these meetings,
signed a union authorization card and encouraged others to
do the same, distributed union literature to other employees,
and was otherwise a principal proponent of the Union.
In mid-December, Avery wore to work a union button on
her shirt collar and on her jacket. On December 19,
Charlene Ernst, Avery's immediate supervisor, observed
Avery wearing a union button. Ernst, an employee of
' All dates are in 1978, unless otherwise specified
1017
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent for the past 10 years, stated to Avery that it
looked like there was going to be a union campaign again.'
Ernst then asked Avery why a union was necessary. To this,
Avery mentioned her complaints relative to favoritism and
unfairness in the bidding procedures. At the conclusion of
this conversation, Ernst told Avery that it looked like Avery
was strong for the Union. Then Ernst told Avery of the
company policy regarding no solicitation of employees on
company time.
The company no-solicitation policy was admitted into
evidence and reads as follows:
Date: October 27, 1978
From: Personnel Department
To: All Employees
Subject: Solicitations
We wanted to remind all employees of the following
rule which appears on Page 22 of the revised Employ-
ee's Handbook.
Any solicitation, any collection or any circulation of
literature or petitions by, or to, an employee during
his working time is prohibited.
Any solicitation, any collection, or any circulation of
literature or petitions on CTS property by any person
who is not a CTS employee is prohibited.
Any collection or any distribution of literature or
petitions is prohibited at all times in work areas.
Personnel Department/pkb
11/9/78
Dan Swain, Respondent's personnel manager, testified that
on October 27 the written statement of policy regarding
solicitations was posted next to the Company's timeclocks
and on bulletin boards located throughout the plant. Swain
went on to testify that the Company was not aware of a
union organizing campaign as of October 27. According to
Swain, the reason for posting the notice, which was taken
from an employee handbook given to employees at their time
of hiring, was merely to remind employees of the policy and
had nothing to do with the union campaign. In any event,
Avery admitted reading the notice on the first day it was
posted, and there is no doubt that she fully understood its
contents.
On December 22, Avery had a second conversation with
Ernst, who again reminded her to observe the company no-
solicitation policy. According to Ernst, this second conversa-
tion occurred because she had been told by a person named
Basinger that a person named Montgomery had been
solicited on company time by Avery to sign a document in
favor of the Union.' Ernst also told Jeff Orcutt, 4 Respon-
dent's production manager and Ernst's immediate supervi-
sor, of the alleged Ernst-Basinger conversation. Prior to this
conversation, Ernst had told Orcutt of the December 19,
Ernst-Avery conversation. Subsequently, on December 22,
Orcutt talked to Avery.'
: Ernst testified that in the past several years there had been three prior
attempts by a union to organize Respondent's employees.
' Neither Basinger nor Montgomery testified at the hearing.
' Respondent admits that Orcutt and Ernst were supervisors within the
meaning of Section 2(1 1) of the Act.
' The December 22 Orcutt-Avery conversation apparently occurred before
the Ernst-Avery conversation of the same date.
Orcutt testified that he began the conversation by asking
Avery how things were going. He also asked her why she
thought a union was necessary. After Avery told him about
her feelings regarding favoritism and her objections to the
company bidding procedures, Orcutt said he would have
Ernst discuss the matter with her at a job review meeting
scheduled for later that day. Then Orcutt testified that he
asked for Avery's permission to give her some of his ideas
relative to unionism. He explained to Avery that supervisors
and managers have the right to discuss the Union with the
employees, but the employees did not have the right to
solicit or discuss the Union on company time. Orcutt went
on to say that he felt, and management felt, unionism
represented a third party which was not really necessary and
it would hinder the relationship between management and
employees and it was too expensive. During this conversa-
tion, which occurred in the early afternoon and lasted for 15
to 20 minutes, Avery listened and said very little. The
location of the conversation was near the end of the
assembly area where the packing is done.
Subsequent to the conversations described above, Ernst
placed into Avery's personnel file two documents, dated
December 19 and December 22, purporting to be records of
two oral warnings to Avery to observe the Company's no-
solicitation policy. Orcutt also placed into Avery's file,
without her knowledge, a document purporting to be a
record of a written warning contained in the December 22
conversation. All documents were admitted into evidence.
The Ernst December 22 oral "warning" and the Orcutt
December 22 written "warning" purported to be based on
the alleged Montgomery-Avery solicitation incident as told
to Ernst by Basinger and as told to Orcutt by Ernst." A
subsequent suspension of Avery on January 9, 1979, was
based in part on the existence of these prior alleged
"warnings." Said suspension was made without affording
Avery a chance to be heard in her own defense.
The January 8 incident occurred in mid-morning. At this
time, Avery went up to four women assemblers, Kelly Lane,
Ann Abbott, Gloria Griffith, and Georgette Climmer. These
ladies were assembling brackets on rug shelves with the
assembly line itself shut down. Avery asked whether the
women would be attending the union meeeting that week.
The women expressed opposition or indifference to the
Union, and Avery told them, to listen to both sides and then
make up their minds. Avery testified the meeting lasted
about 5 minutes, while Griffith, the only one of the four
women to testify, testified the meeting lasted for 20 to 25
minutes. It was customary for these four women to talk
while they did this type of work, but Griffith testified that
she and her coworkers became so engrossed in Avery's
statements in support of the Union that they stopped
working after a few minutes and listened to the remainder of
Avery's remarks while idle.
Later, on January 8, 1979, Avery reviewed the production
sheets for the four women, as this was part of her job. The
' In addition to the obvious problems based on multiple hearsay and
duplicity, these alleged "warning" suffer from additional defects. Swain, the
personnel manager, did not initial the "warnings" as was his custom. In
addition, Orcutt did not have Avery sign the written "warning" as company
policy required, probably because, he stated, he was too busy to return the
document to Avery after it was prepared
1018
CTS KEENE, INC.
downtime was not excessive for the work being done and
there were no notations on the documents. Later, Ernst also
reviewed the production sheets and allegedly thought the
downtime was excessive. The next day she returned the
production sheets to two of the four women who were then
at the plant and asked them to write down on the sheets the
cause of the excessive downtime. Abbott allegedly wrote,
"Karen talked to us about the Union," (Exh 7), and Lane
allegedly wrote, "karen was talking to us about the Union"
(Exh 6). Avery had no notice of these accusations until the
decision had been made to suspend her. If the women had
not explained the downtime to the satisfaction of company
management, they would have been subject to disciplinary
action. After Abbott and Lane allegedly placed the above-
described notations on their production sheets, they were
returned to Ernst. Ernst did not ask any of the women why
they allegedly stopped working to listen to Avery when it
had been customary to talk while working in the past.7
Meanwhile, on the morning of January 9, 1979, before
work began, Avery passed out notices of union meetings and
prounion handbills in the company "break room." A
supervisor subsequently came into the breakroom, read some
of the literature, and left the room with it. Later that
morning, Avery was suspended for alleged violation of the
Company's no-solicitation rule.
Ernst testified that, after receiving the production sheets
back from Abbott and Lane with the notations on them
regarding Avery, she told Orcutt about the matter and a
meeting ensued in the office of Dan Swain. Ernst and Orcutt
told Swain about the alleged violation of the Company's no-
solicitation rule, and, without getting Avery's side of the
matter, it was decided to suspend Avery for 2-1/2 days.
Ernst and Orcutt then summoned Avery to Swain's office so
that she could be told of the suspension. She admitted
meeting with the four women but asserted she talked with
them for only 5 minutes. She also denied she had received
any prior warnings. Avery did not learn of the existence of
the prior "warnings" until the morning of January 9, 1979,
when she was told of her suspension.
B. Analysis and Conclusions
I. The General Counsel urges that Respondent violated
Section 8(a)(1) of the Act on December 19 and 22, when
Supervisors Ernst and Orcutt interrogated Avery about her
attitudes on unions, and another violation is claimed on
December 22 when Supervisor Orcutt solicited grievances
from Avery with an implied promise to remedy them-still a
third violation of the Act, more specifically of Section
8(a)(3), is urged as of January 9, 1979, when Respondent
suspended Avery for 2-1/2 days.
I find for the General Counsel on the first and third
charge and I dismiss the second charge as unfounded.
To begin, I note the posting of the Company's no-
solicitation rule at various locations around the plant on or
about October 27. This posting coincided with an organizing
campaign conducted by the Union. I find that, despite
' When I raised the matter with her at the hearing, Ernst admitted she was
puzzled as to why the women stopped working.
' The General Counsel asserts in his brief that management witnesses
admitted they were aware of the union organizing drive (G. C. br.. p. 6).
However, Swain denied that the company management was aware of an
organizing drive by the Union as of October 27 (Resp. br.. pp. 53-54)
testimony to the contrary by Swain, the Company knew,
when the notice was posted, of the organizing drive
conducted by the Union which had begun at the behest of
Avery in mid-September. However, the mere posting of the
rule, which had been previously published in an employee's
handbook distributed to each employee at the time of hiring,
is not by itself significant, except insofar as it sets the stage
for Respondent's discriminatory conduct which follows."
Furthermore, Avery read the notice on or about the date it
was posted, and I find that she understood its contents. It is
well settled that an employer has a right to promulgate a no-
solicitation rule during working hours. Republic Aviation
Corporation v. N.L.R.B., 324 U.S. 793, fn. 10 (1945);
Jeanetre Corporation v. N.LR.B.. 532 F.2d 916 (3d Cir.
1976).
2. It is in the context of the union campaign and the
posting of the no-solicitation rule that Avery came to work
on December 19 wearing a union button on her shirt collar
and her jacket. The right of employees to wear union
insignia, including buttons, has long been protected under
the Act. Adams v. Federal Express Corp., 470 F.Supp. 1356
(D.C.Tenn. 1979). However, upon seeing Avery wearing
union buttons, Ernst said to her that it looked like there was
going to be another union campaign. Ernst then asked Avery
why a union was necessary. Avery responded by stating her
dissatisfaction with job-bidding procedures and alleged
favoritism. To this, Ernst said that Avery seemed strong for
the Union. This observation was then followed by a
reminder to Avery to observe the Company's no-solicitation
policy. In sum, the fact that Ernst initiated the conversation
in response to Avery's wearing of union buttons, a clearly
protected activity, the fact that Avery was asked why a
union was necessary, Ernst's comment that Avery was
strong for the Union followed by a restatement of the
Company's no-solicitation policy, for no apparent reason-
all convince me that the purpose of the conversation was to
intimidate and to coerce Avery in violation of Section 8(a)(l)
of the Act. This conclusion is bolstered when the conversa-
tion is considered in the context of the timing of the no-
solicitation policy's posting as described, supra. The conclu-
sion is also supported by the fact that additional coercive
and unlawful conversations occurred a few days later, and
these appear to me to be part of a continuing course of
conduct by Respondent's agents.
On December 22, Ernst conducted a job review with
Avery in which Ernst again reminded Avery of the Compa-
ny's no-solicitation policy. Ernst testified at the hearing (but
did not tell Avery) that she found it necessary to mention the
matter again because of the alleged Montgomery-Avery
conversation and the subsequent complaint by Basinger. I
reject this testimony and disbelieve it, finding that the real
purpose of the Ernst-Avery conversation was to continue a
pattern of harassment and coercion in violation of Section
8(a)(1). The basis for rejecting this portion of Ernst's
testimony is as follows: Neither Montgomery nor Basinger
were called as witnesses, nor was their absence explained;
Avery was never told on December 22 of the alleged
No specific claim is made that Respondent's no-solicitation policy is
invalid on grounds of overbreadth. Accordingly, I make no finding on this
point.
1019
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Basinger complaint; the document reflecting Ernst's alleged
oral warning was not prepared and placed into Avery's
personnel file until sometime later; and Swain did not initial
the document reflecting the alleged warning as it was his
custom to do.
The December 22, Orcutt-Avery conversation continues
the course of conduct by Respondent's agents which lends
additional support to my conclusion that a violation of
Section 8(a)(1) occured. A fair summary of the Orcutt-
Avery conversation is that Orcutt stated what he described
as his ideas on unionism. A union was too costly and
represented a third party which weas not really necessary as
it would hinder the relationship between management and
employees." Like Ernst, Orcutt asked Avery why she felt the
Union was necessary, and again Avery detailed her com-
plaints relative to company working conditions. Again
Orcutt reminded Avery of the Company's no-solicitation
rule. All of these conversations were made without any
explanation as to purpose and without any assurance against
reprisal or retaliation. The Board has said, "Questioning of
selected employees about union sympathies. . . without any
assurance against reprisal, by its very nature tends to inhibit
employees in the exercise of their right to organize." Quality
Transport Inc., 211 NLRB 198, 204 (1974); Doughboy
Recreational, Inc., 229 NLRB 381, 388 (1977). Further-
more, the repeated warnings of the no-solicitation rule for no
apparent good reason is still additional proof of this
continuing violation. Thus, Respondent's claim that merely
casual conversations occurred is rebutted by the repetitious
and unfounded nature of the conversations. Similarly, I
reject Respondent's claim in its brief, that Avery was not
likely to be intimidated by the conversation, as entirely
beside the point. The conversations were calculated and
intended to be intimidating and coercive and that is all that
is necessary to show a violation. I have read and considered
the case of N.L.R.B. v. Hotel Conquistador, Inc., d/b/a
Hotel Tropicana, 398 F.2d 430 (9th Cir. 1968), cited by
Respondent in its brief. In substance, that case says that
management interrogation of employees must be examined
in the context of all relevant and material circumstances.
There is no disagreement on this point. See, for example,
First Lakewood Associates v. N.L.R.B., 582 F.2d 416, 418-
419 (7th Cir. 1978), where the court stated that the proper
analysis of issues like that at bar "is whether the interroga-
tion reasonably would have been coercive when viewed and
interpreted as the employee must have understood the
questioning and its ramifications." In deciding this question,
all relevant circumstances must be considered. In the instant
case, consideration of all relevant factors as discussed above
leads unmistakably to the conclusion that Section 8(a)(1) of
the Act has been violated by the three conversations
described which I have considered to be part of Respon-
dent's continuing course of conduct.
3. I find that Karen Avery was improperly and unlawfully
suspended for 2-1/2 days on January 9, 1979, in violation of
Section 8(a)(3) of the Act. The no-solicitation policy which
" These statements of Orcutt appear to show an additional violation of
Section 8(a(I) of the Act, based on a threatened loss of benefits or, more
specifically, a threatened loss of access to management. See Sacramento
Clinical Laboratory. Inc.. 242 NLRB 944 (1979). This violation is not charged
in the complaint nor was it litigated, and I therefore express no conclusive
finding on the matter.
Avery is alleged to have violated was enforced by Respon-
dent in an arbitrary, capricious, and discriminatory manner
because Respondent purported to ban conversations between
Avery and four assemblers in favor of the Union while
permitting Supervisor Orcutt to solicit against the Union.
Orcutt talked to Avery for 15 to 20 minutes on December 22
with his negative ideas on unionism. During this time Avery
was not working. Orcutt himself testified that in his view the
no-solicitation rule prohibited employees from speaking to
other employees but permitted supervisors to talk to employ-
ees about the Union. In effect, supervisors were permitted to
solicit employees against the Union with impunity. The
Board has recognized that the discriminatory enforcement of
a company's no-solicitation rule in a context similar to that
existing in the present case constitutes a violation of Section
8(a)(1). Rogers Brothers Wholesalers, 218 NLRB 143 (1975),
enfd. 526 F.2d 354 (5th Cir. 1976). See also Vincent's Steak
House, Inc., 216 NLRB 647 (1975)."
When considering the application of Respondent's no-
solicitation rule in this case, I find a second discriminatory
application. Avery initiated a conversation with four assem-
blers on January 8, 1979. It is unnecessary to determine
whether the length of the conversation was 5 minutes as
clailned by Avery or 30 minutes as claimed by Respondent.
According to Orcutt, there would be no violations of the no-
solication policy unless work had stopped. In this case, work
stopped, according to Gloria Griffith, because the women
"were so engrossed in listening to her [Avery] talk about the
Union that we just quit [working]." It was common for the
women to talk while working and they were not prevented
from working or obstructed by Avery on January 8, 1979.
Under these circumstances, they stopped working not
because of Avery but because they made conscious decision
on their own to stop working. None of these women was
disciplined. Ernst admitted, when asked at the hearing, that
she was puzzled as to why the women stopped working at
the time in question since it was their practice to work and
talk. However, she did not ask any of the women why they
stopped. Of course, Avery was not herself working as she
talked to the women, but she was not charged with wasting
her own time. She was charged with "completely disrupting
production for approximately 30 minutes" (G. C. Exh. 9).
To the extent production was disrupted for any length of
time, it was the fault of the four assemblers who chose to
stop working as they spoke with Avery. Therefore, Respon-
dent's failure to discipline the four assemblers is an alterna-
tive violation of Section 8(a)(3) of the Act.
Respondent's violation of Section 8(a)(3) of the Act is
further supported by a number of additional factors found in
this case. First, Griffith was the only assembler who
testified. Abbott and Climmer were at the hearing but were
never called. Abbott's absence is particularly distressing
since she and Lane wrote on their production sheets that
Avery had talked to them about the Union." This occurred
after the four assemblers were called to account for alleged
excessive downtime.
Where the employer permits solicitation of an antiunion nature, this is
evidence of a discriminatory motive and undermines any presumed business
reason for barring prounion solicitation. N.L.R.B. v. Electro Plastic Fabrics.
Inc., 381 F.2d 374 (4th Cir. 1967), N.L.R.B. v. Roney Plaza partments. 597
F.2d 1046(5th Cir. 1979).
': The General Counsel contends that I should draw an adverse inference
1020
CTS KEENE. INC.
I also question the decision to suspend Avery without
giving her a chance to be heard. While deciding to suspend
Avery without hearing her side of the matter is not
determinative of a violation of the Act, when considered
with the totality of other evidence adduced in this case, it is
yet further proof that the reason given for suspending Avery
was pretextual and the real reason was to unlawfully
discriminate against the Union. The final factor in support of
this conclusion concerns the failure of Swain to initial the
written records of Avery's alleged oral "warnings" as was
his practice. Also, Orcutt failed to have Avery sign the
written "warnings" which he prepared without Avery's
knowledge and placed in her personnel file. Variance by the
employer from normal business practice further supports an
inference of unlawful motivation. Hansen Cakes, Inc., 242
NLRB 472 (1979); McGraw-Edison Company (Bersted Man-
ufacturing Division), 172 NLRB 1604 (1968), enfd. 419 F.2d
67 (8th Cir. 1969).
In sum, the discriminatory enforcement of Respondent's
nosolicitation rule most importantly, together with certain
additional evidentiary factors detailed, supra, convince me
that Section 8(a)(3) of the Act has been violated. The
employer's purpose was clearly to discourage union mem-
bership by means of discrimination. Radio Officer's Union of
the Commercial Telegraphers Union, A.F.L. [A. H. Bull
Steamship Co.]v. N.L.R.B., 347 U.S. 17 (1954).
4. The General Counsel contends that in his conversation
of December 22, 1978, with Avery, Orcutt unlawfully
solicited grievances with an implied promise to remedy
them. I find that the evidence does not sustain this charge.
Orcutt was the production manager of Respondent and in
this capacity had a conversation with Avery lasting about 15
to 20 minutes on December 22. The conversation began
when he asked Avery how things were going. She told him
about her complaints regarding favoritism and job-bidding
procedures. Orcutt responded in part by referring Avery to
Ernst, her immediate supervisor. The latter had apparently
been previously scheduled to meet with Avery for a job
review, and Orcutt said the matter should be taken up then.
Since Avery had previously discussed her job problems with
Ernst on December 19 and been dissatisfied with the result,
Orcutt's referral of Avery's complaints to Ernst for a second
discussion could hardly be interpreted as an implied promise
to remedy Avery's grievance. If anything, the result of
Orcutt's apparent passing the buck undoubtedly convinced
Avery more than ever that a union could help her.
I have read the cases cited by the General Counsel in
support of his argument here and one not cited, N.L.R.B. v.
Tom Wood Pontiac. Inc., 447 F.2d 383 at 384 (7th Cir.
1971). The court there stated, "there is nothing violative of
the Act in a Company's holding of meetings to determine
employee grievances, so long as the discussions avoided any
attempt by the Company to imply promises of benefit if the
Union was defeated." Here, Orcutt's conversation neither
expressed nor implied that defeat for the Union was
necessary in order to obtain relief from the grievances.
Moreover, there is no evidence that other employees were
approached relative to job grievances. The two cases cited by
from the failure of Respondent to call the other assemblers. While the General
Counsel could easily have called these witnesses, possibly as adverse witnesses,
had he desired to do so. the absence of these witnesses from the case seems to
weigh most heavily against Respondent.
the General Counsel are not applicable to the facts in this
case. While Orcutt's conversation of December 22 may have
violated the Act on other counts, it did not violate the Act in
this regard. Accordingly, I recommend that this allegation
be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above in parts I
through 4 have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States, and
tend to lead, and have led, to labor disputes burdening and
obstructing commerce and the free flow of commerce.
CONCLUSIONS OF LAW
I. CTS Keene, Inc., is an employer within the meaning of
Section 2(2) of the Act, engaged in commerce and in a
business affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Union of Operating Engineers, Local No.
12, AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. Jeff D. Orcutt and Charlene Ernst are supervisors
within the meaning of Section 2(1 1) of the Act.
4. On December 19 and 22, 1978, Respondent, through its
agents Orcutt and Ernst, engaged in a continuing course of
conduct consisting of repeated unlawful interrogation of
employee Avery in violation of Section 8(a)(1) of the Act.
5. Respondent's no-solicitation policy was enforced
against Avery on January 9, 1979, in an arbitrary, capri-
cious, and discriminatory fashion in violation of Section
8(a)(3) of the Act.
6. Respondent did not violate Section 8(a)(1) of the Act by
soliciting employee grievances from Avery with an implied
promise to remedy them.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent has unlawfully suspended
employee Karen Avery for 2-1/2 days, I shall order
Respondent to pay to Avery such backpay as is due as a
result of the discrimination suffered by her. Avery's backpay
shall be computed in the manner prescribed in F. W.
Woolworth Company. 90 NLRB 289 (1950), together with
interest thereon in accordance with the policy of the Board
set forth in Florida Steel Corporation, 231 NLRB 651
(1977)." The General Counsel's request that interest on
backpay be computed at an interest rate of 9 percent per
annum is denied, for the interest rate question is a policy
determination for the Board. See Hanson Cakes. Inc., supra:
Neely's Car Clinic. 242 NLRB 335 (1979).
' See. generally, Isis Plumbing & Heating Co.. 138 NLRB 716(1962).
1021
1022 DECISIONS OF NATIONAL
In addition, I shall order Respondent to expunge and
physically remove from its records and files any and all
documents relating to any violation of Respondent's no-
solicitation policy by Karen Avery, including the records of
Avery's 2-1/2 day suspension beginning January 9, 1979,
and further including any documents relating to oral and
written "warnings" of Avery with respect to said no-solicita-
tion policy.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER'"
The Respondent, CTS Keene, Inc., Paso Robles, Califor-
nia, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Issuing oral or written warnings to its employees of
alleged violation of the Company's no-solicitation policy
when no violations occurred.
(b) Interrogating its employees about their feelings,
attitudes, or sympathies toward unions without assurance
against reprisal.
(c) Causing the suspension of employees for violations of a
no-solicitation policy unless said policy is equally applicable
to employees and management.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Strike and physically remove from its records and files
any and all references to the suspension of January 9, 1979,
' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions. and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations. be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
. LABOR RELATIONS BOARD
and the oral and written warnings of December 19 and 22,
1978, given to employee Karen Avery, and make Karen
Avery whole for any loss of earnings she may have suffered
as a result of her suspension, in the manner set forth in the
section herein entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records, and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its Paso Robles, California, plant copies of the
attached notice marked "Appendix."" Copies of said notice,
on forms to be provided by the Regional Director for Region
31, after being duly signed by Respondent's authorized
representatives, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive 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.
(d) Notify the Regional Director for Region 31, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein be,
and it hereby is, dismissed insofar as it alleges violations of
the Act not found herein.
" In the event that the Board's Order is enforced by a Judgment of the
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."