DURA-LINE CORPORATION, A SUBSIDARY OF MEXICHEM

National Labor Relations Board - Administrative Judge Opinions

Aug 20, 2019

09-CA-163289 (N.L.R.B. Aug. 20, 2019)

JD–64–19
Middlesboro, KY
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
MELISSA M. OLIVERO, Administrative Law Judge. On June 20, 2017, I issued a decision in
which I found, inter alia, that the General Counsel had established that Respondent’s
maintenance of a Confidentiality/Non-Disclosure Agreement (confidentiality agreement)
violated Section 8(a)(1) of the National Labor Relations Act (Act). Citing Lutheran Heritage
Village-Livonia, 343 NLRB 646 (2004), I found that the confidentiality agreement violated the
Act because employees could reasonably construe its language to prohibit Section 7 activity and
because the rule was promulgated in response to union activity. Subsequently, the Board issued
its decision in The Boeing Company, 365 NLRB No. 154 (2017), reconsideration denied 366
NLRB No. 128 (2018), which modified the standards for determining whether an employer’s
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
DURA-LINE CORPORATION,
A SUBSIDIARY OF MEXICHEM
and Cases 09–CA–163289
09–CA–164263
UNITED STEEL, PAPER AND FORESTRY, 09–CA–165972
RUBBER, MANUFACTURING, ENERGY, ALLIED 09–CA–166481
INDUSTRIAL AND SERVICE WORKERS 09–CA–167265
INTERNATIONAL UNION, AFL–CIO–CLC
and
UNITED STEEL, PAPER AND FORESTRY,
RUBBER, MANUFACTURING, ENERGY, ALLIED
INDUSTRIAL AND SERVICE WORKERS
INTERNATIONAL UNION, AFL–CIO–CLC,
LOCAL 14300-12
Linda Finch, Esq.
for the General Counsel.
Howard Jackson, Esq.
for the Respondent.
Matthew Lynch, Esq.
for the Charging Parties.
JD–64–19
2
work rule interferes with employee rights under the Act. On November 19, 2018, the Board
issued an Order severing and remanding the Confidentiality/Non-Disclosure Agreement
allegation to me for the purpose of reopening the record, if necessary, and the preparation of a
supplemental decision addressing this complaint allegation in light of Boeing. The work rule
allegation before me on remand is set forth in paragraph 6(a) of the Amended Second 5
Consolidated Complaint (Complaint) issued by the General Counsel on May 5, 2016.
On November 21, 2018, I issued an Order on Remand, offering the parties an opportunity to
file a motion seeking to reopen the record and conduct a supplemental hearing. No party moved
to reopen the record or for a supplemental hearing. On December 11, 2018, I issued a 10
Supplemental Briefing Order, allowing the parties time to file briefs. No party timely filed a
brief.
The following incorporates and supplements the findings and conclusions contained in my
initial decision. On the entire record, including my observation of the demeanor of the 15
witnesses, and after considering the briefs initially filed by the parties at the conclusion of the
hearing, I make the following findings of fact and conclusions of law.1
FACTS
20
Respondent Dura-Line has been owned by Mexichem since September 2014. (Tr. 301.)
Mexichem is a chemical company with plants around the world. (Tr. 322.) Respondent
manufactured conduit at its Middlesboro, Kentucky, facility by converting resin into pipes. (Tr.
291.) Respondent employed approximately 125 employees at the Middlesboro facility. (Tr.
482.) 25
Dura-Line’s corporate management began discussing the possibility of closing the
Middlesboro facility with Dura-Line’s previous owners and this was disclosed to Mexichem in
September 2014. (R. Exh. 3; Tr. 283–285.) Respondent announced the closing of the
Middlesboro facility to employees on September 15, 2015. (Tr. 20, 63, 106, 155–156, 205, 264, 30
394, 475–476.) Some of the work once performed at the Middlesboro facility is now performed
at Respondent’s facility in Clinton, Tennessee. (Tr. 237.) Respondent ceased production at the
Middlesboro, Kentucky, facility in December 2015.
United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and 35
Service Workers International Union, AFL–CIO–CLC, Local 14300-12 (Local Union or Union),
represented the following unit of Dura-Line employees:
All production and maintenance employees employed by [Respondent] at its
Middlesboro, Kentucky facility, including plant clerical employees and assistant 40
shift leaders, but excluding all office clerical employees, and all professional
employees, guards and supervisors as defined in the Act.

1 Although I have included citations to the record to highlight particular testimony or exhibits, my
findings and conclusions herein are not based solely on those specific record citations, but rather on my
review and consideration of the entire record for this case. My findings of fact encompass the credible
testimony, and evidence presented at trial, as well as logical inferences drawn therefrom.
JD–64–19
3
(GC Exh. 1(dd) and (ii); R. Exh. 1.)
At the time of the events giving rise to this case, Patsy Wilhoit was Respondent’s Human
Resources Manager in Middlesboro and Michael Hilliard served as Respondent’s Senior Vice 5
President of Global Operations. Respondent admits, and I find, that Wilhoit and Hilliard were
supervisors of Respondent within the meaning of Section 2(11) of the Act and agents of
Respondent within the meaning of Section 2(13) of the Act.
Two of Respondent’s hourly employees at its Middlesboro facility, Sean Chapman and 10
David Ramsey, left to work at the Clinton facility before the Middlesboro facility closed. (Tr.
196.) These employees transferred and were not required to complete new employment
applications. (Tr. 196–197; 543.) Several of Respondent’s supervisors also transferred from
Middlesboro to Clinton. (Tr. 199-200, 445.) Wilhoit provided these employees and supervisors
with confidentiality agreements to sign. (Tr. 196–197.) 15
Chapman met with Wilhoit in September 2015 and she told him that there would be a job for
him at Clinton if he was interested. (Tr. 539.) Wilhoit then handed him a piece of paper to sign.
(GC Exh. 1(dd); Tr. 538, 540). Wilhoit advised Chapman not to talk about the Middlesboro
plant shutting down, his position in Clinton, or his wages, with anyone. (Tr. 542.)20
By signing the confidentiality agreement, Chapman agreed that he would not reveal any
confidential information to third parties. (GC Exh. 1(dd), att. A.) The confidentiality agreement
specifically defined “confidential information” as:
25
business plans (including particularly, but not limited to, Dura-Line’s plans for
locating a facility in Clinton, Tennessee and its plans related to how other plants
and locations may be impacted by the opening of the new facility), financial
information regarding the business (including pricing, performance, revenue, 30
sales projections, and other similar financial information regarding the status,
performance and plans of Dura-Line), sales and marketing plans and projections,
and software code or practices. . . “Confidential Information” does not include
information that is available via public sources, or that has been legitimately
released into the public arena. 35
Chapman did not discuss his transfer to Clinton with anyone other than Wilhoit. (Tr. 541.) He
was not sure of the consequences for violating the confidentiality agreement. (Tr. 543.)
40
According to Hilliard, Respondent wanted its employees to sign such agreements in order to
keep the Middlesboro facility running, to avoid “scuttlebutt conversations,” because Respondent
had not identified all of the employees who would be transferring to Clinton, and to avoid
jealousy. (Tr. 395, 417.) Wilhoit testified that employees were asked to sign confidentiality
agreements to keep the Middlesboro facility running smoothly, to give upper management the 45
opportunity to explain the closure of the Middlesboro facility, and to keep secret the opening of
the Clinton facility. (Tr. 189, 215.)
JD–64–19
4
ANALYSIS
In paragraph 6(a) of the complaint, the General Counsel alleges that Respondent violated
Section 8(a)(1) of the Act by requiring employees to sign a confidentiality/non-disclosure
agreement as a condition of accepting employment at the Clinton, Tennessee facility. 5
In Boeing, the Board revealed a new analysis for determining whether an employer's facially
neutral policy or rule interferes with employees' NLRA rights in violation of Section 8(a)(1) of
the Act. 365 NLRB No. 154, slip op. at 15. The Board stated:
10
In cases in which one or more facially neutral policies, rules, or handbook
provisions are at issue that, when reasonably interpreted, would potentially
interfere with Section 7 rights, the Board will evaluate two things: (i) the nature
and extent of the potential impact on NLRA rights, and (ii) legitimate
justifications associated with the requirements(s). Again, we emphasize that the 15
Board will conduct this evaluation consistent with the Board’s duty to strike the
proper balance between . . . asserted business justifications and the invasion of
employee rights in light of the Act and its policy.
(Emphasis in original.) (Internal quotation marks omitted.) 365 NLRB No 154, slip op. at 15. 20
The Board set forth the following categories of employment policies, rules and handbook
provisions, in Boeing:
• Category 1 will include rules that the Board designates as lawful to maintain, 25
either because (i) the rule, when reasonably interpreted, does not prohibit or
interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on
protected rights is outweighed by justifications associated with the rule. Examples
of Category 1 rules are [a] no-camera requirement . . . and other rules requiring
employees to abide by basic standards of civility. 30
• Category 2 will include rules that warrant individualized scrutiny in each
case as to whether the rule, when reasonably interpreted, would prohibit or
interfere with the exercise of NLRA rights, and if so, whether any adverse impact
on NLRA protected conduct is outweighed by legitimate justifications.
• Category 3 will include rules that the Board will designate as unlawful to 35
maintain because they would prohibit or limit NLRA protected conduct, and the
adverse impact on NLRA rights is not outweighed by justifications associated
with the rule. An example would be a rule that prohibits employees from
discussing wages or benefits with one another.
40
365 NLRB No. 154, slip op. at 15–16. These three categories represent a “classification of
results” from the Board’s application of the new test, but they are not part of the test itself. Id. at
16. The Board applied the standard in Boeing retroactively. Id. at 18.
The confidentiality agreement at issue here does not explicitly prohibit or limit conduct 45
protected by the Act and, thus, does not fall into Category 3. Moreover, the confidentiality
agreement is not a no camera rule or civility rule, such as those found in Category 1. Instead, it
JD–64–19
5
forbids discussing Respondent’s plans for its Clinton, Tennessee facility, the fate of other plants,
and financial information. As such, I find that the confidentiality agreement here should be
analyzed as a Category 2 rule and will undertake a balancing analysis to determine whether the
adverse impact on the rights of Respondent’s employees is outweighed by any legitimate
justifications. 5
The confidentiality agreement in this case is vague, in that it includes certain specific
information, but goes on to state that it is not limited to that information. Employees are thus left
to wonder what else they are precluded from discussing with others. “Financial information”
could be reasonably thought to include wage costs or wage information by employees. 10
Moreover, at the time the confidentiality agreement was signed by an employee, Wilhoit told
him that he was prohibited from discussing his wages with others. Thus, I find, that the
confidentiality rule would be viewed by employees as restricting their ability to share
information regarding their terms and conditions of employment with others.
15
The Act has long protected the rights of employees to discuss their wages and other terms
and conditions of employment with others. The Exchange Bank, 264 NLRB 822, 831 (1982),
citing T.V. and Radio Parts Company, Inc., 236 NLRB 689 (1978) and Poly Ultra Plastics, Inc.,
231 NLRB 787 (1977). For example, the Board and courts have held that a rule prohibiting
employees from talking to the media about “hospital matters” violated Section 8(a)(1) of the Act. 20
Veritas Health Systems, Inc., 366 NLRB No. 135, slip op. at 1–2 (2018). Barring employees
from discussing their discipline has similarly been found to have violated the Act. Westside
Community Mental Health Center, 327 NLRB 661, 666 (1999). Forbidding employees from
discussing the wages of other employees, without the permission of the other employees, was
found to have violated the Act. Labinal, Inc., 340 NLRB 203, 210 (2003). An admonition 25
prohibiting employees from disclosing any company knowledge to any client has similarly been
held violative of the Act. Trinity Protection Services, 357 NLRB 1382, 1383 (2011). Under the
Act, information concerning wages, hours, and working conditions is precisely the type that may
be shared by employees, provided to unions, or given to governmental agencies. Hyundai
America Shipping Agency, Inc., 357 NLRB 860, 871 (2011), rev’d on other grounds 805 F.3d 30
309 (D.C. Cir. 2015).
Respondent’s evidence regarding its justifications for maintaining the confidentiality
agreement consists solely of the testimony of Hilliard and Wilhoit. Both cited the following
reasons for maintaining the confidentiality agreement: to keep the Middlesboro facility running 35
smoothly; to avoid “scuttlebutt conversations;” because Respondent had not identified all of the
employees who would be transferring to Clinton; to avoid jealousy; to give upper management
the opportunity to explain the closure of the Middlesboro facility; and to keep secret the opening
of the Clinton facility. This anecdotal evidence is not particularly compelling, as it was both
brief and inadequate. Respondent has not set forth a compelling justification for maintaining its 40
confidentiality agreement, such as a government mandate, a threat of a work disruption, or
national security interests. Although it is understandable that Respondent wanted to keep the
closing of its facility and loss of over 100 jobs a secret from its employees and their union, these
reasons do not outweigh the restriction placed on employees, forbidding their discussion of their
terms and conditions of employment with others. 45
JD–64–19
6
I find that none of the reasons advanced by Respondent’s witnesses for the maintenance of
the confidentiality rule outweighs its adverse impact on its employees’ protected conduct. Thus,
I find that Respondent’s maintenance of its confidentiality agreement violates Section 8(a)(1) of
the Act.
CONCLUSIONS OF LAW REGARDING REMANDED ALLEGATION
1. By requiring employees to sign a confidentiality agreement, Respondent has engaged
in an unfair labor practice within the meaning of Section 8(a)(1) of the Act.
2. The unfair labor practice committed by Respondent affects commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent maintained a confidentiality rule that unlawfully interfered
with employees’ Section 7 activity, I shall require Respondent to rescind the confidentiality
agreement.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended2
ORDER
The Respondent, Dura-Line Corporation, a subsidiary of Mexichem, Middlesboro, Kentucky,
and Clinton, Tennessee, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining or promulgating an overly broad confidentiality agreement that
unlawfully interferes with employees exercising their rights, guaranteed by Section 7
of the Act, to engage in union or protected, concerted activity.
(b) 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. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, rescind its confidentiality agreement
signed by employees at the Middlesboro, Kentucky facility before transferring to the

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended 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.
JD–64–19
7
Clinton, Tennessee facility.
(b) Within 14 days from the date of this Order, notify all employees employed at its
Middlesboro, Kentucky, facility as of September 21, 2015, that the confidentiality
agreement referenced in the paragraph above has been rescinded, and is void and will
not be enforced.
(c) Within 14 days after service by the Region, post at its facility in Clinton, Tennessee,
copies of the attached notice marked “Appendix.” 3 Copies of the notice, on forms
provided by the Regional Director for Region 9, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places including all places where
notices to employees are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such means. Reasonable steps shall
be taken by the Respondent to ensure that the notices are not altered, defaced, or
covered by any other material. As Respondent has closed the Middleboro, Kentucky,
facility involved in these proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all employees employed at the Middlesboro,
Kentucky, facility by the Respondent at any time since September 21, 2015.
(d) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
Dated, Washington, D.C. August 20, 2019
Melissa M. Olivero
Administrative Law Judge

3 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.”
XL ft 66pn
JD–64–19
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 Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT maintain any overly broad confidentiality agreement or rule that unlawfully
interferes with your rights to engage in union and/or protected, concerted activity.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise
of the rights guaranteed you by Section 7 of the National Labor Relations Act.
WE WILL, within 14 days from the date of this Order, rescind the confidentiality agreement
signed by employees at our Middlesboro, Kentucky facility before transferring to the Clinton,
Tennessee facility.
WE WILL, within 14 days of the date of this Order, notify all former employees of the
Middlesboro, Kentucky, facility that the unlawful confidentiality agreement has been rescinded,
is void, and will not be enforced.
DURA-LINE CORPORATION, A
SUBSIDIARY OF MEXICHEM
(Employer)
Dated By
(Representative) (Title)
JD–64–19
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional
Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
550 Main Street, John Weld Peck Federal Building, Room 3003, Cincinnati, OH 45202-3271
(513) 684-3686, Hours: 8:00 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/09-CA-163289 or by using the
QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National
Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER,
(513) 684-3750.