E. R. Carpenter Co, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1987

284 N.L.R.B. 273 (N.L.R.B. 1987)

E. R. CARPENTER CO. 273
E. R. Carpenter Company, Inc. and International
Union, United Automobile, Aerospace & Agri-
cultural Implement Workers of America
(UAW). Cases 9-CA-23173 and 9-CA-23538
17 June 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
STEPHENS AND CRACRAFT
On 6 March 1987 Administrative Law Judge
Frank H. Itkin issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions 1 and brief and has
decided to affirm the judge's rulings, findings, and
conclusions, to modify his remedy, 2 and to adopt
the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, E. R. Car-
penter Company, Inc., Russellville, Kentucky, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order.
' In Its exceptions to the judge's decision, the Respondent argued that
employee Barrow's activity in placing union literature on the windshields
of employees' parked cars was illegal under a Kentucky criminal statute
and thus unprotected by the Act This exception is without merit. We
find, in agreement with the judge, that Barrow's distribution clearly was
protected by Sec. 7. See, e g, Baker Mfg. Ca, 218 NLRB 1295, 1298-
1299 (1975), enfd 564 F 2d 95 (5th Cir 1977), F W. Woolworth Co., 216
NLRB 945, 949-950 (1975), enfd 530 F 2d 1245 (5th Cir. 1976), cert
denied 429 U.S. 1023 (1976). Assuming, without finding, that the state
statute is applicable to Barrow's conduct, its enforcement would conflict
with his exercise of rights guaranteed by Sec. 7. Accordingly, it would
be barred under the preemption doctrine See Brown v Hotel Employ-
ees, 468 U.S. 491, 501-503 (1984) We find it unnecessary to rely on the
judge's analysis of the statute in affirming his decision.
2 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest will be computed at the "short-term Fed-
eral rate" for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S C § 6621
Bruce H. Meiilish, Esq., for the General Counsel.
John R. Costa, Esq., for the Respondent Employer.
DECISION
FRANK H. ITKIN, Administrative Law Judge. Unfair
labor practice charges were filed by the Union in this
proceeding on June 2 and September 18, 1986. An
amended consolidated complaint issued on October 27,
1986. A hearing was held in Russellville, Kentucky, on
December 4, 1986. 1 The General Counsel contended that
' The complaint was amended at the hearing to delete par 6(a) See
Tr 5-6
Respondent Employer had violated Section 8(a)(1) and
(3) of the National Labor Relations Act by removing
union literature from the windshield of employee auto-
mobiles in the employee , parking lot; by coercively inter-
rogating employee Jeffrey Lee Barrow about placing the
union literature on the windshield; and by suspending
employee Barrow for 3 days for placing the union litera-
ture on the windshields. Respondent Employer denied
violating the Act as alleged. On the entire record, in-
cluding my observation of the demeanor of the wit-
nesses, and after consideration of the briefs filed, I make
the following
FINDINGS OF FACT
Respondent Employer is engaged in the manufacture
and sale of polyurethane foam products. The Employer
has offices and plant facilities in Russellville, Kentucky,
and is admittedly engaged in commerce as alleged. The
Union is admittedly a labor organization as alleged.
Jeffrey Lee Barrow, employed by Respondent, testi-
fied that about November 1985 he enlisted the Union's
organizational assistance at the Employer's Russellville
plant; that he conducted union meetings among the em-
ployees; and that he distributed literature on behalf of
the Union. Barrow distributed union authorization cards
to his co-employees "out on the road in front of the
plant and then out in the parking lot." Barrow also filed
an unfair labor practice charge against the Employer for
allegedly "harassing me because of my Union activities";
however, this charge was dismissed.
Subsequently, on May 7, 1986, Barrow assisted union
representatives in distributing literature "in front of the
plant." On the following morning, May 8, "just before"
Barrow was scheduled to report to work on the first
shift, Barrow placed copies of General Counsel Exhibit 2
"on windshields" of automobiles in the plant parking lot.
General Counsel's Exhibit 2 includes a one-page leaflet
to "All Carpenter Employees" at Russellville from the
Union, a union authorization card, and an addressed-
stamped envelope. Barrow's wife, Ella, also employed by
Respondent, assisted him. Barrow, as he further testified,
was attempting to place this literature "on all the cars of
the third shift employees."2
Later that morning, May 8, Barrow reported for work
as scheduled. Nothing was said to him about his earlier
union activity. On the following day, May 9, shortly
after the first morning break, Barrow had the following
conversation with Supervisor David Armstrong:
Rumor had got back to me [Barrow] that he [Arm-
strong] had been going around asking people to sign
a paper stating that they had seen me out there put-
ting papers on windshields, soliciting or whatever,
and I just asked him about it. . . [Armstrong] said
he hadn't got anybody to sign nothing.
However, subsequently, Production Manager Anthony
Santagata and Supervisor Armstrong instructed Barrow
2 Barrow explained that he determined which cars probably belonged
to the some 200 third-shift employees because they had "dew on them"
and therefore had been "parked there for awhile"
284 NLRB No. 39
274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to "get [his] tools and come with them." Barrow was
taken to the personnel office.
Present in the personnel office were Plant Manager
John Meguiar, Production Manager Santagata, Supervi-
sor Armstrong, and employee Barrow. 3 Barrow testified:
[Meguiar] told me that they had had some com-
plaints of me being out in the parking lot putting
garbage on employees' windshields . . . I told him
[Meguiar] I didn't consider it garbage and he said,
"well I do." [Meguiar] asked me if I knew this was
soliciting . . . and I didn't say anything, and he
said, "did you know this is against Company
policy", again, I didn't say anything. . . . [Meguiar]
said, "were you doing this", I told him yes. He said,
taking this all into consideration, they were going to
give me three days [suspension] pending notification
of termination, for me to report back three days
later. . . to see if I still had a job.
Barrow reported back to work as instructed on May
14. He then spoke with Plant Manager Meguiar. Meguiar
explained "that they were going to let me come back to
work." Barrow asked "why I was given three days."
Meguiar replied: "for infringing on the rights of . . . em-
ployees." Barrow asked, "What about the soliciting
part." Meguiar insisted that "nobody was accusing
[Barrow] of soliciting."
Shirley Shoemake, previously employed by the Re-
spondent, testified that she observed Personnel Manager
James Grimes in the plant parking lot about 7:10 a.m. on
the morning in question. Grimes "came out to the park-
ing lot and he looked around and he got the Union liter-
ature off the windshield." Shoemake observed Grimes
take this "information off of" about 12 automobiles. The
literature was identified as General Counsel's Exhibit 2.
Personnel Manager James Grimes testified that an em-
ployee had complained to him about "notices being
placed on employees' cars in the parking lot." Grimes
went out in the parking lot, "looked around," "did see
that there had been literature put on the cars," and then
assertedly left. He denied "removing any" of the litera-
ture. When asked, "Did you touch any?", he replied, "I
don't think so." Grimes spoke with Plant Manager Me-
guiar. On the following day, employee Barrow was
brought to the office. There, Barrow was questioned by
Meguiar about placing the notice "on employees' cars
out in the parking lot." Barrow admitted that he had
done this. Barrow was given a "three-day suspension
pending discharge to give us a chance to look at the
facts." Later, management determined not to discharge
Barrow.4 Grimes explained that the Employer decided
that Barrow could "return to work" "because we did not
feel that it was a malicious enough act to the cars [and]
the sensitivity of the nature of the matter."
Grimes was asked: "Have you ever disciplined em-
ployees for touching or otherwise doing something to
3 Barrow did not believe that Personnel Manager James Grimes was
also present at this meeting
4 According to Grimes, this would be Barrow's "fourth violation"
within 12 months and, pursuant to the Employer's progressive discipline
policy, he could be terminated
somebody else's car in the parking lot?" He recalled ter-
minating employees where an employee "was caught let-
ting the air out of another employee's tires" and where
employees "admitted to putting shaving cream on an-
other person's car." Grimes asserted that "Company
policy with respect to allowing someone access to the
Company parking lot for purposes of putting notices on
people's cars" is, "we do not allow them to do that."
However, "this type of situation involving an employee
putting something on employees' cars, whether its Union
material or any material, has [not] happened before at
ER. Carpenter Company." This was the "first inci-
dent."5
On cross-examination, Grimes acknowledged that "Mr.
Meguiar said that they had complaints about Jeff putting
garbage on peoples' cars." Grimes elsewhere claimed
that "I don't know the exact terminology." Grimes did
not "remember" whether Meguiar also said: "Do you
know this is soliciting?" Further, Grimes acknowledged
that his company policy prohibiting this type of conduct
was apparently not "published" or "printed anywhere."
He stated: "Here again, I'm not for sure. I couldn't say
for sure." And, as noted, Grimes agreed that "we've
never had it happen before."6
Plant Manager John Meguiar testified that he had been
informed that "Mr. Barrow had placed some literature
on the vehicles in our Company parking lot." Barrow
was bought to the personnel office. Barrow was ques-
tioned and admitted to this conduct. Meguiar claimed
that he then referred to the union literature as "trash,"
quoting his electrician's complaint that this "trash" had
been placed on automobiles. The parking area involved
is where 90 percent "of the people employed" at the
Employer's facility park their vehicles. According to
Meguiar, "We refer to that as the employee parking lot."
Some salaried and administrative personnel park there
also. Meguiar then told Borrow that "for disciplinary
action we were giving him three days pending discharge
for that violation." Later,
we decided though that it was not significant
enough or major enough to terminate a person that
had the longevity with our Company that Jeff had.
Meguiar denied telling Barrow that he was "violating
the Company's no-solicitation no-distribution rules" "be-
cause he hadn't violated that rule."7
5 Gnmes recalled once refusing an employee permission to put church
revival notices on vehicles in the parking lot
6 There is a proscription in the company employee handbook that
deals with "damage to other peoples' property in the parking lot." And,
as stated, employees were terminated for this type of misconduct
Barrow, however, admittedly did not damage "anybody's car"
7 I credit the testimony of Barrow as recited above His testimony is
substantiated in large part by the acknowledgements of Grimes and Me-
guiar. He impressed me as a reliable and forthright witness I also credit
the testimony of Shoemake She fully and candidly related what she had
observed on the day in question Insofar as the testimony of Megmar and
Grimes conflicts with the testimony of Barrow and Shoemake, I am per-
suaded here that the testimony of the latter witnesses, as recited above, is
more complete, reliable, and trustworthy. The testimony of Megmar and
Grimes was in part incomplete, contradictory, unclear, and evasive In
particular, I do not believe Grimes' assertion that he did not remove the
Continued
E. R. CARPENTER CO. 275
Discussion
An employee's right to distribute union literature in
nonworking areas during nonworking time is protected
under Section 7 of the Act. See generally Our Way, Inc.,
268 NLRB 394 (1983), and authorities cited. Consequent-
ly, the Board has held that an employer interferes with,
restrains, and coerces its employees in the exercise of
their Section 7 rights, in violation of Section 8(a)(1) of
the Act, by removing union leaflets from automobiles
parked in the employees' parking lot. See generally Clin-
ton Inn, 249 NLRB 198, 204 (1980), and cases cited.
Moreover, an employer runs afoul of Section 8(a)(1) by
coercively interrogating employees about their protected
activities. See generally Rossmore House, 269 NLRB
1176 (1984), and cases cited. And, of course, where an
employer suspends or otherwise discriminates against an
employee because the employee had engaged in protect-
ed activities, the employer also violates the proscription
of Section 8(a)(3) of the Act.
As the credible evidence of record shows, employee
Barrow enlisted the Union's organizational assistance at
the Employer's plant. Barrow thereafter conducted union
meetings and distributed union literature and authoriza-
tion cards to his co-employees. Barrow distributed union
authorization cards "in front of the plant" and in "the
parking lot." Barrow also filed an unfair labor practice
charge against the Employer for "harassing [him] be-
cause of [his] Union activities." This charge was later
dismissed. Subsequently, Barrow and his wife, also an
employee, placed union literature on the windshields of
the 200 automobiles which were parked in the "employ-
ee lot." Personnel Manager Grimes was observed by an
employee removing some of this literature. On the fol-
lowing morning, Barrow was instructed to "get [his]
tools" and go to the personnel office. There, Plant Man-
ager Meguiar faulted Barrow for "putting garbage on
employees' windshields." Meguiar pointedly asked if the
employee "knew this was soliciting" and "were you
doing this?" Barrow acknowledged that he had engaged
in this conduct. Barrow was then given a 3-day suspen-
sion "pending notification of termination." Later, man-
agement determined not to discharge Barrow because it
was not "a malicious enough act" and because of "the
sensitivity of the nature of the matter."
Management initially claimed that Barrow was en-
gaged in "soliciting." Later, management denied "accus-
ing [Barrow] of soliciting" because admittedly Barrow
"hadn't violated that rule." Elsewhere, management
claimed that Barrow was violating a "Company policy."
This "policy," at one point, was generally described as
"with respect to allowing someone access to the Compa-
ny's parking lot for purposes of putting notices on peo-
ples cars." However, this "policy" was apparently never
"published" or "printed anywhere" and, accordingly to
the Employer, "we've never had it happen before." Else-
where, management shifted over to its printed and pub-
lished "policy" that deals with "damage to other peoples'
property in the parking lot." Barrow, however, admit-
literature from parked vehicles, but somehow became aware of the con-
tents of the literature Further, I find that Meguiar in fact referred to the
union literature as "garbage" when interrogating Barrow
tedly did not damage "anybody's car." Elsewhere, man-
agement attempted to justify its "policy" because the dis-
tributed "would be considered debris in the parking lot."
There is, however, nothing in this record to demonstrate
a promulgation of a policy by the Employer reasonably
aimed at preventing "litter." In fact, there is no such
written promulgation. Moreover, there is nothing in this
record to suggest that any of the Union's and Barrow's
protected distributions resulted in "litter." Finally, man-
agement shifted to the Kentucky Penal Code, Section
.080 of Chapter 512. (See R. Exh. 1.) Chapter 512 gener-
ally deals with "criminal damage to property." Section
.080 provides:
A person is guilty of unlawfully posting advertise-
ments when, having no right to do so or any rea-
sonable ground to believe he has such a right, he
posts, paints or otherwise affixes to the property and
another person or to public property any advertise-
ment, poster, notice or other matter. [Emphasis
added.]
The Employer's argument that Barrow violated this stat-
ute is without substance. Barrow did not "post," "paint,"
or "otherwise affix" his leaflet to the property. There
was no attachment. And, in any event, the Employer
never even cited this statute to Barrow when it threat-
ened him with discharge and gave him a 3-day suspen-
sion.
In short, I reject as pretextual and incredible manage-
ment's shifting, unsubstantiated, and belated reasons for
its conduct in dealing with employee Barrow's protected
distribution. I am persuaded instead that the Employer,
in an attempt to discourage employee union activities, re-
moved the lawfully distributed leaflets from employees'
cars; faulted employee Barrow for distributing this "gar-
bage"; coercively interrogated him about his conduct;
threatened him with discharge; and then discriminatorily
gave him a 3-day suspension, in violation of Section
8(a)(1) and (3) of the Act.8
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce as alleged.
2. Charging Party Union is a labor organization as al-
leged.
3. The Respondent Employer violated Section 8(a)(1)
and (3) of the Act by removing union literature from the
windshield of employee automobiles in the employee
parking lot; by coercively interrogating employee
Barrow about placing the union literature on the wind-
shields; and by discriminatorily suspending employee
Barrow for 3 days because of his protected union activi-
ties.
4. The unfair labor practices found above affect com-
merce as alleged.
8 Under the circumstances, it is unnecessary for me to reach the pre-
emption arguments of counsel with respect to the cited provisions of the
Kentucky Penal Code. As for the General Counsel's request for a reme-
dial visitatorial clause here, this request is denied as inappropriate.
276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
REMEDY
To remedy the unfair labor practices found above, Re-
spondent Employer will be directed to cease and desist
from engaging in such unlawful conduct or like and re-
lated conduct and to post the attached notice. Respond-
ent Employer will also be directed to make employee
Barrow whole for any loss of earnings he may have suf-
fered by reason of the Employer's unlawful suspension,
to be computed as prescribed in E W. Woolworth Co., 90
NLRB 289 (1950), with interest as provided in Florida
Steel Corp., 231 NLRB 651 (1977). See generally Isis
Plumbing Co., 138 NLRB 716 (1962). In addition, Re-
spondent Employer will be directed to preserve and
make available to the Board, on request, all payroll
records and reports and all other records necessary to
determine backpay under the terms of this Decision and
Order. Further, Respondent Employer will be directed
to remove from its files any reference to the disciplinary
action found unlawful herein in accordance with Sterling
Sugars, 261 NLRB 472 (1982).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 9
ORDER
The Respondent, E. R. Carpenter Company, Inc., Rus-
sellville, Kentucky, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discouraging membership in International Union,
United Automobile, Aerospace & Agricultural Imple-
ment Workers of America (UAW), or any other labor
organization, by discriminatorily suspending its employ-
ees.
(b) Removing union literature from the windshields of
employees automobiles in the employee parking lot and
coercively interrogating employees about their protected
union activities.
(c) In any like or related manner interfering with, re-
straining, 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 purpose and policies of the National Labor
Relations Act.
(a) Make whole employee Barrow for all losses sus-
tained as a result of its unlawful action, together with in-
terest, as provided in this Decision and Order.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
9 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 pur-
poses
(c) Post at its facilities in Russellville, Kentucky,
copies of the attached notice marked "Appendix."1°
Copies of the notice, on forms provided by the Regional
Director for Region 9, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply,
10 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 Nation-
al 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"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discourage membership in International
Union, United Automobile, Aerospace & Agricultural
Implement Workers of America (UAW), or any other
labor organization, by discriminatorily suspending our
employees.
WE WILL NOT remove union literature from the wind-
shields of employee automobiles in the employee parking
lot.
WE WILL NOT coercively interrogate our employees
about their protected union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
their rights guaranteed in Section 7 of the National
Labor Relations Act.
WE WILL make whole employee Jeffrey Lee Barrow
for all losses sustained as a result of our unlawful action
in suspending him, together with interest, as provided in
the Board's Decision and Order.
WE WILL remove from our files any reference to the
unlawful suspension of employee Barrow, and WE WILL
notify him that this has been done and evidence of his
unlawful suspension will not be used as a basis for future
personnel action against him
E. R. CARPENTER COMPANY, INC.