Eagle-Picker Industries

National Labor Relations Board - Board Decisions

May 19, 2000

331 N.L.R.B. 169 (N.L.R.B. 2000)

EAGLE-PICHER INDUSTRIES 169
Eagle-Picher Industries, Inc., Hillsdale Tool and
Manufacturing Co. Division and International
Union, United Automobile and Agricultural Im-
plement Workers of America (UAW), AFL–
CIO. Cases 7–CA–41632 and 7–RC–21284
May 19, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN AND
HURTGEN
On September 7, 1999, Administrative Law Judge
David L. Evans issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel and the Charging Party each filed cross-
exceptions and supporting briefs and answering briefs to
the Respondent’s exceptions, and the Respondent filed
answering briefs in response to the General Counsel’s
and the Charging Party’s cross-exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs1 and has decided to
affirm the judge’s rulings, findings,2 and conclusions as
modified3 and to adopt the recommended Order.
The judge found, and we agree, that the Respondent
did not violate the Act by issuing a warning letter to em-
ployee Ellair. As fully recounted by the judge, the Re-
spondent conducted a series of campaign meetings in
which it sought to dissuade employees from supporting
the Union. Employee attendance was compulsory. Prior
to the meeting in question, the Respondent’s president,
William Oeters, told employees he would make a speech,
and employees should hold their questions until he fin-
ished. When employee Gerald Ellair nonetheless at-
tempted to ask a question during Oeters’ presentation, he
was told to sit down and be quiet. When the Respondent
continued its presentation, Ellair muttered “garbage” for
all to hear. At that point, Oeters stated that he would
issue a warning notice to Ellair.

1 The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and
the positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board's established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In adopting the judge’s findings and recommendations with regard
to the rule prohibiting off-duty employees from gaining access to any
of the Respondent’s facilities at which the employees did not work, we
also rely on the Postal Service, 318 NLRB 466 (1995), and Southern
California Gas Co., 321 NLRB 551 (1996).
Member Hurtgen agrees that the Respondent maintained a work rule
that unlawfully prohibited off-duty employees from gaining access to
its parking lots, gates, and other outside nonworking areas. This rule
facially pertains to the facility at which employees work. Member
Hurtgen also agrees that the Respondent unlawfully expanded the
above-work rule to prohibit off-duty employees from coming onto the
Respondent’s facility at which they do not work. However, in agree-
ing, he notes particularly that the employees at the two Respondent
facilities are in one appropriate unit. He does not pass on whether the
same result would obtain if off-duty employees at one facility seek to
gain access to a different facility, where the two facilities are in differ-
ent units. He notes that, in the cases cited above by his colleagues, the
two facilities were in the same unit.
3 In the absence of exceptions, we adopt pro forma the judge’s dis-
missal of Objections 1, 2, 10, and 12.
We also find it unnecessary to pass on the judge’s finding that Su-
pervisor Jerome Cass interrogated employee Jeff Davis in violation of
Sec. 8(a)(1) as that finding would be cumulative to the findings of other
unlawful interrogations, which we adopt.
The judge found no violation and we agree. However,
the judge relied in significant part on his finding that the
Respondent imposed only a “mild discipline” on Ellair.
Although the relative inseverity of the discipline may be
relevant to the issue of motive, we do not regard it as the
determining factor in finding the discipline lawful.
Rather, in the circumstances, Oeters was privileged to
tell Ellair to keep quiet until Oeters was finished. Ac-
cordingly, Ellair’s “garbage” comment was insubordinate
and unprotected. It is this factor, rather than the relative
inseverity of the discipline, which warrants dismissal of
the allegation.
Beverly California Corp., 326 NLRB 232 (1998), cited
by our dissenting colleague, is distinguishable. In the
instant case, the Respondent said, before the meeting,
that questions and comments should be withheld until
after the Respondent’s presentation. Ellair ignored this
admonition and was insubordinate. By contrast, in Bev-
erly, it is unclear whether there was a prespeech instruc-
tion. Moreover, the past practice was to the contrary,
and the judge gave substantial weight to that past prac-
tice in finding that the employer’s action of discipline
was to punish prounion comments, rather than to main-
tain order at the meeting.
Similarly, and contrary to the dissent, this case does
not involve “intemperate conduct during the course of
engaging in protected activity.” Rather, it involved in-
subordinate conduct during the course of an employer’s
lawful meeting.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Eagle-Picher Industries, Inc.,
Hillsdale Tool and Manufacturing Co. Division, Hills-
dale and Jonesville, Michigan, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the
Order.

MEMBER HURTGEN, concurring.
I agree with Chairman Truesdale that Beverly Califor-
nia Corp., 326 NLRB 232 (1998), is distinguishable.
However, I disagree with the standard used in that case.
That case, like the instant one, involves employee con-
duct during the course of an employer speech. The
331 NLRB No. 14
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 170
Board applied the test of Mast Advertising & Publishing
Co., 304 NLRB 819 (1991) (whether the employee con-
duct is “so flagrant and egregious as to cost [him] the
Act’s protection”). In my view, that test is not the one to
be applied to employee conduct during an employer
speech. Rather, the test was formulated to apply to em-
ployee remarks during a grievance discussion. In order
to permit free exchange during such discussion, the
Board allows some “leeway for impulsive behavior.”
See NLRB v. Thor Power Tool Co., 351 F.2d 584, 587
(7th Cir. 1965). The test and its rationale have nothing to
do with an employer speech to employees. An employer
speech is not a process of collective bargaining. At such
a speech, during time which the employer has paid for,
the employer can insist on speaking without interruption
and (if the employer wishes) can entertain employee
questions and comments afterward. That is what the
Respondent did in this case. The employee acted con-
trary to the Respondent’s lawful instruction.

MEMBER LIEBMAN, dissenting in part.
Contrary to my colleagues and the judge, I find that the
Respondent violated Section 8(a)(3) and (1) of the Act
and engaged in objectionable conduct when it issued a
warning notice to employee Gerald Ellair for his conduct
during a December 1, 1998 captive audience meeting. In
all other respects, I agree with my colleagues’ adoption
of the judge’s decision.
At the December 1 captive audience meeting, Com-
pany President Bill Oeters told employees that he would
not take questions during the meeting, but would answer
questions on an individual basis after the meeting. Em-
ployee Jamie Buckner attempted to ask a question.
Oeters told Buckner to sit down and be quiet. Ellair then
stood up. Holding the employee handbook, Ellair asked
why employees could not ask questions because the
handbook encouraged open communication. In response,
Oeters told Ellair to “sit down and be quiet or they’d
write him up.” Other employees who attempted to ask
questions were also told to sit down. Oeters refused to
answer questions and continued with his presentation.
During the presentation Oeters made comments critical
of unions. In response, Ellair said, in a “moderate tone,”
the word, “garbage.” Oeters then pointed to Ellair and
stated that he wanted Ellair written up. As a result, ac-
cording to the Respondent’s vice president for human
relations, the crowd was “chilled” and the meeting con-
tinued. After the meeting, Ellair was initially told that
insubordination was punishable by discharge. He was
later told he could be issued a 5-day suspension. Finally,
the management officials informed Ellair that he would
receive a written warning.
I agree with my colleagues and the judge that this inci-
dent must be analyzed under NLRB v. Thor Power Tool,
351 F.2d 584, 587 (7th Cir. 1965) (“employee’s right to
engage in concerted activity may permit some leeway for
impulsive behavior, which must be balanced against the
employer’s right to maintain order and respect”). I do
not, however, agree with my colleagues’ conclusion.
Ellair was warned simply for suggesting that, because the
handbook encouraged open communications, employees
should feel free to ask questions at the meeting, and for
uttering the word “garbage” in response to the Respon-
dent’s president’s negative comments about unions.
I cannot agree with my colleagues that Ellair’s conduct
was “so flagrant and egregious as to cost [him] the Act’s
protection.” Mast Advertising & Publishing Co., 304
NLRB 819 (1991). “[A]n employee’s intemperate con-
duct during the course of engaging in protected activity
is permitted some leeway without losing the Act’s pro-
tection.” Beverly California Corp., 326 NLRB 232, 233
fn. 5 (1998).
In Beverly, the Board found an 8(a)(3) and (1) viola-
tion under circumstances strikingly similar to those pre-
sent here. In that case, during a captive audience meet-
ing an employee spoke up in a loud voice and asked
whether she would get a chance to ask a question. The
employer’s corporate director of associate relations asked
her to sit down. She persisted in repeatedly asking if she
could ask a question and when she could tell her side.
She was then told to leave or she would be suspended.
After 3–5 minutes she left the meeting. She was sent
home for the remainder of that day and received an addi-
tional 3-day suspension. Beverly California Corp., su-
pra. The Board found that the employee’s actions were
not so intemperate as to lose the protection of the Act
and that the suspension for those actions violated Section
8(a)(3) and (1). The Board further found that the threat
of suspension made at the meeting independently vio-
lated Section 8(a)(1).
In my view, Ellair’s conduct at the captive audience
meeting in the instant case was no more intemperate than
that found protected in Beverly. Although perhaps impo-
lite, Ellair’s conduct was not significantly disruptive and,
contrary to the judge’s conclusion, did not jeopardize the
Respondent’s exercise of its rights under Section 8(c) of
the Act to express its views concerning unionization.
Thus, balancing the “leeway for impulsive behavior”
against the Respondent’s “right to maintain order and
respect,” I find that in this case the employee’s rights
outweigh those of the Respondent, and that Ellair’s con-
duct was protected.
My colleagues seek to distinguish Beverly. They state
that it is unclear whether Beverly, unlike the Respondent,
issued a prespeech instruction against asking questions
during the meeting, but that “the past practice was to the
contrary.” Thus, in the view of my colleagues, that past
practice to allow questions was significant to the judge’s
finding that Beverly’s action of discipline was to punish
prounion comments, rather than to maintain order at the
meeting. I fail to see the legal significance of the distinc-
tion my colleagues are drawing. In Beverly, the official
EAGLE-PICHER INDUSTRIES 171
who conducted the meeting testified that he had held
small meetings (groups of 10 or less employees) at which
questions were permitted. However, all eligible employ-
ees attended the meeting in question, and, according to
the official, questions were not to be permitted. When an
employee asked whether she would get a chance to ask a
question, she was told to sit down. When she persisted
in asking if she could ask a question, she was told to
leave or she would be suspended. (She was later disci-
plined.) Clearly, a no-question instruction was given; the
Beverly official just could not recall whether it had also
been announced at the opening of the meeting before the
employee rose to ask a question. Beverly California
Corp., supra.
In any event, I fail to see how a prespeech (as opposed
to mid-course) instruction requires a different result than
in Beverly. Contrary to my colleagues’ assertion, Ellair,
like the Beverly employee, was engaged in protected
activity when she attempted to speak. Surely, a pre-
speech instruction not to talk does not make the conduct
any less protected. Nor does it immunize an employer’s
interference with peaceful, nondisruptive comments by
employees exercising their right to express views on un-
ionization. The relevant inquiry is whether the Act’s
protection is lost because the employee’s conduct is so
intemperate. Ellair’s conduct, in my view, was not. In-
deed, arguably it was even less disruptive than the re-
peated questions interjected by the unlawfully disciplined
Beverly employee. Lastly, in dismissing this allegation,
the judge relied in part on the “comparatively mild” na-
ture of the discipline. I agree with my colleagues that the
severity of the discipline is not determinative. What is
determinative is whether the conduct is protected. If so,
then any discipline—however mild—issued as a result of
that conduct, would be unlawful. Because I have found,
for the reasons set forth above, that Ellair’s conduct was
protected, I accordingly conclude that issuing Ellair a
warning notice for engaging in protected conduct vio-
lated Section 8(a)(3) and (1) of the Act and constitute
objectionable conduct warranting setting aside the elec-
tion.

John S. Ferrer, Esq., for the General Counsel.
Peter E. Tamborski, Esq., of Cincinnati, Ohio, for the Respon-
dent.
Betsy A. Engel, Esq., of Detroit, Michigan, for the Charging
Party.
DECISION
DAVID L. EVANS, Administrative Law Judge. This matter
under the National Labor Relations Act (the Act) was tried
before me in Hillsdale, Michigan, on April 19–21, 1999. On
April 1, 1998,1 in Case 7–RC–21284, International Union,
United Automobile, Aerospace and Agricultural Implement
Workers of America (UAW), AFL–CIO (the Union, the Peti-

1 Unless otherwise indicated, all dates mentioned in this decision
were in 1998.
tioner, or the Charging Party) filed a petition seeking certifica-
tion by the National Labor Relations Board (the Board) as the
collective-bargaining representative of the production and
maintenance employees of Eagle-Picher Industries, Inc., Hills-
dale Tool and Manufacturing Co. Division (the Employer or the
Respondent). Pursuant to a stipulated election agreement ap-
proved by the Regional Director for Region 7 of the National
Labor Relations Board on November 9, an election by secret
ballot was conducted on December 3 among the employees in
the unit.2 The tally of ballots reflected that of 633 valid ballots
counted, 310 had been cast for representation by the Union and
323 had been cast against representation. Additionally, there
were 30 challenged ballots (the challenges), which were deter-
minative of the results of the election. The Union had chal-
lenged 27 ballots, including those of Roger Hartsell and Gary
LoPresto, on the ground that the individuals who had cast them
were supervisors within the meaning of Section 2(11) of the
Act. The Employer had challenged two ballots on the ground
that the individuals who had cast them were not employed in
the bargaining unit on the date of the election. The Board agent
who conducted the election had challenged one ballot on the
ground that the individual who had cast it was not included in
the official list of employees eligible to vote in the election.
On December 10, the Union filed objections to conduct af-
fecting the results of the election (the objections); in the docu-
ment, the Union alleged as follows (quoted verbatim):

During the course of the Union’s organizing drive, the
employer and its agents:
1. Threatened loss of jobs to influence the outcome of
the election.
2. Threatened that the plant would close in retaliation
for employees’ union activities.
3. Threatened to discipline employees for engaging in
union activity.
4. Threatened employees with physical harm for en-
gaging in union activity.
5. Threatened employees with arrest for engaging in
union activity.
6. Enforced discriminatory and unlawful no-access,
no-solicitation and distribution rules.
7. Interfered with employees engaged in protected so-
licitation and distribution.
8. Physically assaulted employees in retaliation for
their engaging in union activity.
9. Created the impression of, and engaged in, surveil-
lance of employees.
10. Interrogated employees in regard to their union
sympathies.
11. Reprimanded and/or disciplined employees for
engaging in union activity.
12. Engaged in “electioneering” at or near the polls.
13. Conducted “captive audience” meetings within the
24-hour period prior to the election.

On brief, the Union withdrew Objections 4 and 13.
2 The delay between the filing of the petition and the election was
partly caused by alleged unfair labor practices by the Respondent and
blocking charges that were filed by the Union in Case 7–CA–40911(1)
and (2). A complaint issued in that case, but the matter was resolved by
an informal settlement agreement that was approved by another admin-
istrative law judge on October 21. In this case, the General Counsel
has not moved to set aside that settlement agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 172
On December 17, the Union filed the charge in Case 7–CA–
41632; that charge alleges that the Respondent violated Section
8(a)(1) by various acts and conduct and that the Respondent
violated Section 8(a)(3) by issuing a warning notice to em-
ployee Gerald Ellair. On February 26, 1999, the Regional Di-
rector issued a complaint based on those charges (the com-
plaint), and the Regional Director issued an order that consoli-
dated the complaint and representation cases and set the entire
matter down for hearing before an administrative law judge.
The Respondent filed an answer to the complaint denying the
commission of any unfair labor practices; the Respondent fur-
ther denied additional complaint allegations that LoPresto and
Hartsell were at relevant times supervisors within Section 2(11)
of the Act or agents within Section 2(13).
At the hearing, the Union withdrew its challenges to 25 of
the 27 ballots of alleged supervisors, the exceptions being those
of LoPresto and Hartsell. The Employer also withdrew its two
challenges, and the parties stipulated that the Board agent’s
challenge to one ballot should be sustained. After I conducted
a count of the resolved challenges, the tally of ballots was
amended to reveal that 312 ballots had been cast for union rep-
resentation and 348 had been cast against representation. (The
challenges to the ballots of LoPresto and Hartsell were thereby
rendered nondeterminative, but the status of each is an issue in
the complaint case, as discussed infra.) Because the Union did
not receive a majority of the valid votes that were cast in the
December 3 Board election, rulings on the objections, as well
as the alleged unfair labor practices, are required here.
On the testimony and exhibits entered at trial,3 and on my
observations of the demeanor of the witnesses,4 and after con-
sideration of the briefs that have been filed by all parties, I
make the following
FINDINGS OF FACT
I. JURISDICTION
As it admits, the Respondent is a corporation that is located
in Hillsdale and Jonesville, Michigan, where it manufactures
parts for the automobile industry. During 1998, in the conduct
of said business operations, the Respondent sold, shipped, and
delivered directly to customers located at points outside Michi-
gan goods valued in excess of $50,000. Therefore, at all rele-
vant times the Respondent has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent employs about 700 employees who work in
its 2 plants in the Hillsdale area. The main plant is on Indus-
trial Drive in Hillsdale; it is comprised of several buildings,
which are collectively referred to as the Industrial Drive facil-
ity. An auxiliary plant is located about 2 miles away, and it is
referred to as the Jonesville facility. Both plants are three-shift
operations; the first shift is operated from 6:50 a.m. until 2:50
p.m.; the second shift is from 2:50 to 10:50 p.m., and the third
shift is from 10:50 p.m. until 6:50 a.m., the next day.

3 Certain errors in the transcript have been note and corrected.
4 Credibility resolutions are based on the demeanor of the witnesses
and any other factors that I may mention.
Paragraph 7 of the Complaint and Objections 1 and 2
Wayne Swander is not an employee of the Respondent, but
he is the brother of Quality Manager Donald Swander, and he is
a friend of current employee David Johnson. Johnson testified
that in August he and Wayne Swander were eating a meal in a
restaurant in Hillsdale when they were joined by Donald Swan-
der and Donald’s son (who was not named during the trial). A
conversation began about a car wash that Johnson was then
managing (as a second job, apparently). According to Johnson,
during the conversation Donald Swander (Swander) asked
Johnson how he could be a manager for one company but be a
prounion employee while working for the Respondent. John-
son testified that after he gave his reply to Swander: “Don just
said if the Union comes in the plant will close.” Swander testi-
fied on behalf of the Respondent that:

But we got into just conversation about the Union and
I think at that time, I expressed my opinion [by] bringing
out a hypothetical situation and [I asked] what would pre-
vent the Company from moving its facilities if they chose
not to deal with a union or cooperate with a union.

Neither Wayne Swander nor his son testified. To the extent
that they differ, I credit Johnson over Swander. As the General
Counsel contends, however, by either account Swander threat-
ened Johnson with plant closure. Swander’s rhetorical question
was as much a threat of plant closure as a direct statement. I
find and conclude that by Swander’s threat of plant closure the
Respondent violated Section 8(a)(1).5 Johnson, however, did
not testify that he told any other employees about Swander’s
threat, and the Respondent contends that, even if Swander’s
remark to Johnson violated Section 8(a)(1), it is not a valid
basis for setting aside the December 3 Board election because
the threat was not disseminated. I agree. At the close of the
hearing,6 I specifically asked the parties to brief me on the issue
of whether dissemination of threats such as Swander’s was
required by Board precedent before an election is to be set
aside, but the Charging Party does not discuss the issue of dis-
semination on brief. The Respondent, however, cites, inter alia,
Antioch Rocky & Ready Mix, 327 NLRB 1091 (1999), in which
the Board, after a review of relevant authorities, plainly states:

And the objecting party must establish dissemination of
statements allegedly interfering with preelection conditions;
dissemination will not be presumed. Kokomo Tube Co., 280
NLRB 357, 358 including fn. 9 (1986). The Employer here
has not established that this election must be set aside.

In Antioch Rock & Ready Mix, the undisseminated coercive
statement was uttered by a union representative; here, the un-
disseminated coercive statement was uttered by a manager.
The result, of course, is the same. I shall therefore recommend
that the Board overrule Objections 1 and 2 to the extent that
they refer to Swander’s conduct.
Paragraphs 8(a)(b) and 9 of the Complaint and
Objections 5, 6, and 7
For several years the Respondent’s employee handbook has
maintained rules stating:

Unless you have been called in early or required to
stay late by your supervisor, you should not arrive on the
5 NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969).
6 Tr. 461.
EAGLE-PICHER INDUSTRIES 173
premises more than fifteen (15) minutes before your start-
ing time, and you should leave the premises within fifteen
minutes (15) after your scheduled quitting time.
Unless you have permission from your supervisor,
your should not return to the plant during your nonwork-
ing hours.

Also for several years the following no-solicitation and no-
distribution rules have been contained in the handbook:

Solicitation and Personal Business
All types of solicitation, including solicitation of
membership or subscriptions, will not be permitted by em-
ployees who are supposed to be working or in such a way
as to interfere with other employees who are supposed to
be working. Any employee who does so and thereby ne-
glects his work or interferes with the work of others will
be subject to disciplinary actions.
Distributions of any kind, including circulars or other
printed materials, will not be permitted in any work area at
any time or by employees who are supposed to be work-
ing.
People who are not employees of Eagle-Picher Auto-
motive Hillsdale Tool Division will not be permitted to so-
licit or distribute literature or goods at any time on Com-
pany property.

On November 30, Sam Trego, the Respondent’s vice president
of human resources, posted a memorandum to all employees
that stated:

SUBJECT: Campaign Conduct
We have received numerous complaints of employees
being intimidated [and] harassed and damage to personal
property on Company property.
Employees are permitted to solicit and distribute in-
formation during nonwork time and in nonworking areas.
Solicitation[s] and distribution[s] [are] not permitted
by non-employees on our property. In addition, Hillsdale
Tool employees are not permitted on the property of Hills-
dale Tool facilities other than their own without prior au-
thorization.
As provided in the handbook, employees are permitted
on the property of the plant where they work fifteen min-
utes prior to the start of their shift and up to fifteen min-
utes after the end of their shift.
Those not complying will be asked to leave the prop-
erty. Those ignoring such request[s] will be trespassing
and will [be] addressed as a matter of law.
Your cooperation is appreciated.

The complaint alleges that both the above-quoted handbook
and Trego’s November 30 posting contain overly broad, and
unlawful, no-solicitation and no-access rules and that the Re-
spondent promulgated and maintained those rules in violation
of Section 8(a)(1). Specifically, paragraph 8(a) alleges that
Trego’s November 30 posting contained an unlawful no-
solicitation rule because it prohibited employee solicitations in
work areas during nonworking times; paragraph 8(b) alleges
that: (1) Trego’s November 30 posting also contained an
unlawful no-access rule because it prohibited employees from
going for purposes of engaging in protected solicitations or
distributions to any of the Respondent’s facilities at which they
did not work; and (2) both Trego’s November 30 posting and
the employee handbook contain an unlawful no-access rule
prohibiting off-duty employees from coming to the outside
nonwork areas of the Respondent’s facilities for the purposes of
solicitations or distributions. Paragraph 9 of the complaint
alleges that the Respondent threatened employees with arrest if
they violated its unlawful no-access rule.
In regard to paragraph 8(a), it is first to be noted that it does
not attack the no-distribution rule that is contained in Trego’s
November 30 memorandum; it attacks as invalid only the no-
solicitation rule that is contained in that memorandum. With
certain nonapplicable exceptions for the retail sales and health
care industries, the law is that employees have the statutory
right to engage in solicitations for a union in both work areas
and nonwork areas during their nonworking time. Stoddard-
Quirk Mfg. Co., 138 NLRB 615 (1962). Nondiscriminatory
rules may prohibit employees from engaging in distributions in
working areas during their working and nonworking time, but
employees cannot lawfully be prohibited from solicitations,
even in working areas, if they are on nonworking time (for
example, when they are on a permitted break, paid or unpaid, in
a working area). That is, the law affords employees more lati-
tude for solicitations that it does for distributions; again, the
former may not be limited to nonworking areas when the em-
ployees are on nonworking time, but the latter can be. Trego’s
memorandum, however, equally restricts employee solicitations
and distributions by stating, “Employees are permitted to solicit
and distribute information during nonwork time and in non-
working areas.” Using one sentence to announce two different
categories of prohibitions (those against solicitations and those
against distributions), the memorandum thereby affords em-
ployees no more latitude for solicitations that it does for distri-
butions; both are restricted to nonworking time and nonwork
areas.
Using an affirmative proposition to announce a prohibition,
Trego’s November 30 memorandum states that employees are
permitted to engage in solicitations if they do so in nonworking
times “and” in nonworking areas. The obvious converse of that
proposition is that employees who are in working areas during
nonworking times are not allowed to engage in solicitations, a
plain violation of such employees’ rights under Section 7 of the
Act as stated in Stoddard-Quirk, supra.
On brief, the Respondent does not contest that the November
30 no-solicitation rule is violative, and objectionable, on its
face. The most that the Respondent argues is that employees
could determine the Respondent’s true intent by reading its year
old employee handbook, which contains a valid no-solicitation
rule. The handbook no-solicitation rule is unquestionably
valid, but even if an employee attempted such analysis he
would necessarily assume that the later published rule is the
one that would be enforced. At best, the employee would be
confused by the inconsistencies that such an analysis would
reveal. Inconsistencies that create such confusion are, of
course, to be resolved against the party who created them, the
Respondent. See J. C. Penney Co., 266 NLRB 1223, 1224
(1983).
I find and conclude that the Respondent’s November 30 no-
solicitation rule would have tended to thwart lawful exercises
of employee rights under the Act, and the Respondent’s prom-
ulgation and maintenance of that rule violated Section 8(a)(1),
as alleged in paragraph 8(a) of the complaint. The promulga-
tion and maintenance of the invalid no-solicitation rule would,
moreover, tend to interfere with the employees’ rights to en-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 174
gage in protected solicitations regarding the December 3 Board
election, and I shall therefore recommend that Objection 7 be
sustained in this regard.
In regard to the allegations of paragraph 8(b) of the com-
plaint that the Respondent has promulgated and maintained
overly broad no-access rules, the controlling authority is Tri-
County Medical Center, 222 NLRB 1089 (1976). In that case,
the Board rejected the notion that off-duty employees have no
more right to enter the exterior of their employers’ premises
than nonemployees such as professional union organizers. The
Board held: “Finally, except where justified by business rea-
sons, a rule which denies off-duty employees entry to parking
lots, gates and other outside nonworking areas will be found
invalid.” The no-access rule that is contained in the Respon-
dent’s handbook bars employees from being in its outside non-
working areas more than 15 minutes before and after shifts.
The Respondent does not contest that the handbook no-access
rules are facially invalid prohibitions against off-duty employ-
ees’ gaining access to its outside nonworking areas under Tri-
County. Nevertheless, the Respondent relies on certain testi-
mony by Trego that maintenance of the rules was necessitated
by historic acts of vandalism and employee complaints of har-
assment. That bare testimony was completely uncorroborated,
and it contained no hint of how the barring of current, but off-
duty, employees may have solved any of the alleged problems.
In fact, Trego’s testimony is not only incredible, it invites the
immediate inference that what Trego called complaints of har-
assment were nothing more than the (problematical) complaints
that were made by antiunion employees about protected activi-
ties of prounion employees.
It is true that in Tri-County Medical Center, and in Nashville
Plastic Products, 313 NLRB 462 (1993), as cited by the Re-
spondent, the Board noted that the no-access rules before it
were promulgated in response to employees’ union activities,
and the promulgations were therefore held to be unlawful. In
neither case, however, did the Board indicate that an otherwise
invalid no-access rule would be held to be valid if it is imposed
on employees before an organizational attempt begins. More-
over, in St. Luke’s Hospital, 300 NLRB 836 (1990), the Board
found a violation in the employer’s maintenance of an invalid
no-access rule that was promulgated 6 years before the organ-
izational attempt began. I therefore find and conclude that,
since on or about June 17,7 in violation of Section 8(a)(1), the
Respondent has maintained in effect rules that prohibit off-duty
employees from gaining access to its parking lots, gates, and
other outside nonworking areas for the purposes of engaging in
lawful solicitations and distributions. Finally, the November 30
no-access rules, as well as repeating the violative handbook no-
access rule, for the first time prohibited employees from going
without management’s prior permission to any of the Respon-
dent’s facilities at which the employees did not work. Such a
rule also flies in the face of Tri-County Medical Center, and its
promulgation and subsequent maintenance did violate Section
8(a)(1), as I further find and conclude. Respondent’s conduct
in maintaining its violative handbook no-access rules, and its

7 This is the Sec. 10(b) date; although the handbook’s facially inva-
lid no-access rule was promulgated before that date and no violation
can be found on that account, maintenance during the Sec. 10(b) period
of a rule that transgresses employee rights is itself a violation of Sec.
8(a)(1). See Varo, Inc., 172 NLRB 2062 (1968), and K & S Circuits,
Inc., 255 NLRB 1270 (1981).
conduct in promulgating and thereafter maintaining in effect its
November 30 no-access rules, further prove the validity of
Objections 6 and 7 which I shall recommend that the Board
sustain.
In reply to the allegation of paragraph 9 that the Respondent
threatened employees with “arrest” if they did not comply with
its unlawful no-access rules, the Respondent answers simply
that the word “arrest” or “arrested” is not mentioned in the
November 30 posting. The posting, however, plainly stated
that the Respondent would consider off-duty employees to be
trespassers if they are present at the Respondent’s premises
more than 15 minutes before or after their shifts or if they come
to a facility other than the one at which they regularly work.
The posting then threatened the employees with being “ad-
dressed as a matter of law.” When one engages in a trespass, he
may be “addressed” under color of law without being arrested,
but he also could well be arrested. The Respondent did not
make its meaning clear in its November 30 posting, and the
ambiguity that the Respondent created must be resolved against
it.8 I therefore find and conclude that by threatening employees
with arrest if they violated its unlawful no-access rules the Re-
spondent violated Section 8(a)(1). Moreover, the evidence
adduced in support of this allegation proves the validity of
Objection 5, and I shall further recommend that the December 3
election be set aside on that basis.
Paragraph 10(a)(b) of the Complaint and
Objections 1, 2, and 10
Current employee Jeffrey Davis testified that in early Octo-
ber he came to work wearing a “Union-Yes” pin. When he
arrived, Davis found Third-Shift Supervisor Shawn McCavit
sitting on a forklift. Both Davis and McCavit had recently been
working a great deal of overtime, and Davis initiated a conver-
sation about that topic. During the exchange, according to
Davis:

[McCavit] asked me what did I need that for, and he
pointed to my pin.
I responded that I wanted better medical benefits, that
was one of the key issues I had, fair treatment of employ-
ees, and I wanted a contract, something that I could deal
with. . . . I asked, “Why don’t you want a union?”
And his response to that was: “I don’t want to have to
sell my house.”
And then I asked him, “Why would you have to sell
your house?
He goes, “If I lose my job, I’d have to sell my house.”
And I said, “Well, why would you lose your job?”
And he goes, “Well, you know, things can happen.”
And I said, “Are you trying to imply that the plant
would close if we had the Union come in?”
And he said, “It’s a distinct possibility.”
And he was [still] on a fork truck at the time and
started to drive away and he looked at me and said: “Think
about it.”

McCavit did not testify; Davis’ testimony on the point was
credible; and I do credit that testimony.
The complaint alleges that by McCavit’s conduct the Re-
spondent violated Section 8(a)(1) by interrogating employees
and threatening them with plant closure. Of course, McCavit’s
threat to Davis that plant closure was a “distinct possibility” if
8 See J. C. Penney, supra.
EAGLE-PICHER INDUSTRIES 175
the employees selected the Union as their collective-bargaining
representative was a blatant threat in violation of Section
8(a)(1), as I find and conclude. The Respondent does not argue
that point on brief, but it does state that McCavit’s asking Davis
why he needed a union pin, “was part of a casual discussion
initiated by Davis when he asked McCavit a question regarding
overtime.” From that proposition, the Respondent argues that
the interrogation of Davis by McCavit could not have been
violative of the Act. The conversation about overtime may
have been casual, but the mention of Davis’ prounion pin was
not. It was brought out of “left field,” by the supervisor and it
would necessarily have conveyed to the employee the impres-
sion that, no matter what else may be of importance (such as
the burdens or rewards of overtime), the pin was what the su-
pervisor was primarily interested in. Specifically, the supervi-
sor wanted to know why the employee was wearing prounion
insignia. Such an interrogation is especially coercive where, as
here, it is coupled with an unabashed threat that the organiza-
tional attempt could result in plant closure. The interrogation,
as well as the threat with which it was coupled, therefore vio-
lated Section 8(a)(1), as I find and conclude. The Charging
Party, however, offered no evidence that the fact of McCavit’s
threat to, or interrogation, of Davis was disseminated in any
way to other employees. For that reason, and on the authority
of Antioch Rock & Ready Mix, supra, and cases cited there, I
shall recommend that Objections 1, 2, and 10 be overruled to
the extent that they are premised on McCavit’s conduct in this
regard.
Paragraph 10(c) of the Complaint and Objection 6
Shawn Hodas, who did not testify, is a machine operator
who occasionally serves as a leadman. Employee Davis testi-
fied that in late November, he arrived at 10:20 p.m., or 30 min-
utes before his shift began at 10:50 p.m., to distribute prounion
fliers at an entrance of the Industrial Drive facility where he
regularly worked.
At “close to 10:30,” according to Davis, when McCavit was
in an area that was inside the entranceway:

Shawn Hodas was coming through the doors when I
offered him one of the pamphlets that I was passing out at
that time and, as he walked past me, he said “No, thank
you.”
And I said, “Nobody’s going to bite you for taking it,”
and he continued to walk.
And Shawn McCavit came up there and started . . .
yelling at Shawn [Hodas . . . that he [McCavit] was tired
of seeing us “f—king people” around and that he
[McCavit] “can’t do anything about me being there,” and,
if Shawn [Hodas] had had the “balls,” he’d kick me out.
Shawn Hodas . . . walked off, and I continued passing
out leaflets until it was time to resume [go to] work.

Several employees testified, and the Respondent does not dis-
pute, that before the organizational attempt began they were
allowed to come to work more than 15 minutes early without
any type of admonition by management representatives. Based
on that testimony, as well as the testimony of Davis that is
quoted immediately above, the complaint alleges that by
McCavit’s conduct the Respondent “disparately enforced its
overly broad no-access and no-solicitation and distribution
rules by attempting to prohibit employees from distributing
union literature outside its facility.” Again, McCavit did not
testify, and I found the testimony of Davis to be credible.
On brief, the Respondent argues only that the incident was
just one of many incidents of “vigorous” campaigning and that
Davis’s pre-work distribution was not actually interfered with.
As noted, the Respondent did not enforce its no-distribution
rules or its no-access rules before the organizational attempt.
Moreover, the General Counsel is not required to prove the
effectiveness of interference with protected activities in order to
establish a violation. For example, in Pizza Crust of Pennsyl-
vania, 286 NLRB 480 (1987), the Board found that the em-
ployer’s exclusion of off-duty employees violated the rule of
Tri-County Medical Center and violated Section 8(a)(1). On
review, the employer challenged the Board’s finding of actual
interference. In enforcing the Board’s Order, the Third Circuit,
at 862 F.2d 49, 54–55 (1988), rejected that argument stating:

The Company argues that because the pamphleteers
were not intimidated and in fact distributed the literature
that they intended to distribute on December 14 and 18,
there was no section 8(a)(1) violation. Nothing in the
Tri-County rule implies that the Act is violated only if the
employer was successful in its barring of solicitation. We
are not at liberty to increase the difficulty borne by the
General Counsel of making out unfair labor practice
charges by requiring him or her to bear the additional bur-
den of proving the consequences of illegal conduct. In-
stead, the relevant issue is whether the employer estab-
lished a policy or rule that was directly contrary to
Tri-County. If so, such evidence would support the
Board’s finding of an unfair labor practice. See NLRB v.
Rich’s Precision Foundry, Inc., 667 F.2d 613, 622 (7th
Cir.1981) (upholding the Board’s finding that such rules
violated section 8(a)(1)); Jeanette Corp. v. NLRB, 532
F.2d 916, 918 (3d Cir.1976) (same).

McCavit’s (vile-language) suggestion to Hodas that Davis
should be ejected from the premises because of his protected
union activities was therefore an enforcement of the Respon-
dent’s violative no-access rules. As employees had previously
been allowed to come early to the property, it was further dis-
criminatory, and unlawful, conduct on the part of the Respon-
dent. McCavit’s action toward Davis therefore violated Section
8(a)(1), as alleged. I further find and conclude that the evi-
dence in support of this allegation also supports Objection 6,
and on that basis I shall further recommend that the December
3 election be set aside.9
The complaint further alleges that McCavit’s interference
with Davis’ solicitation of Hodas was an invocation of the Re-
spondent’s November 30 no-solicitation rule that I have above
found to be overly broad. Davis testified that the incident with
McCavit occurred in “late November,” but he did not testify
that it occurred during the hours of November 30 that followed
the posting of Trego’s November 30 memorandum that con-
tained the invalid no-solicitation rule. In this posture of the
case, I cannot find that McCavit’s action toward Davis was an
enforcement of the Respondent’s November 30 invalid no-
solicitation rule, and I shall recommend that that allegation be
dismissed. The complaint further alleges that McCavit’s action

9 It is to be noted that in Pizza Crust of Pennsylvania, two Tri-
County violations, alone, were held to be a sufficient basis for setting
aside a Board election.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 176
toward Davis was an enforcement of some overly broad no-
distribution rule, but the complaint at no other point identifies
what no-distribution rule that might be. The complaint does not
allege that either the November 30 posting or the preexisting
employee handbook contained an overly broad no-distribution
rule. Therefore, the allegation that McCavit’s action was an
enforcement of an unlawful no-distribution rule must be dis-
missed. (Also to be noted is that employees were previously
allowed to solicit and distribute literature without restriction
before the organizational activity began, but the complaint does
not allege that McCavit’s interference with Davis’ solicitations
and distributions was a discriminatory enforcement of the valid
no-solicitation and no-distribution rules that preexisted in the
Respondent’s employee handbook.)
Paragraph 10(d) of the Complaint10
Gary Klein is an organizer for the Union, and he was in
charge of the organizational effort involved here. Klein caused
certain literature to be printed for distribution to employees by
himself and other nonemployee organizers as well as by proun-
ion employees. Klein freely admitted that he and the other
nonemployee organizers “repeatedly” entered the gates of the
Respondent’s Hillsdale and Jonesville plants to distribute litera-
ture to employees on the Respondent’s property, and that they
did not leave until they were approached by supervisors and
told to go outside the gates.11 Klein testified that about 6 a.m.
on November 24, he, organizer Rick Ringman and a group of
employees who included David Johnson and Ron and Steve
Ryan went through a gate of the Industrial Drive facility and
distributed fliers at a point just a few feet from an employee
entrance. The group handed union literature to employees who
were leaving the third shift and coming to work on the first
shift. About 6:30 a.m., the group was approached by McCavit.
Klein and Johnson testified about what happened next. Klein’s
testimony contained bald exaggerations that were exposed by
Johnson’s testimony, and I shall rely only on the testimony of
Johnson. Johnson testified that:

Shawn McCavit came out of the plant while we were
all standing, handing out literature, and he said, “What are
you doing?” We said we were handing out literature. And
he looked around and he said, “Well I know you guys [re-
ferring to the employees present], and then he looked at
Gary Klein and Rick Ringman and said, “I don’t know you
guys; who are you?”
And then Gary responded, “Well who are you?”
And he [McCavit ] said, “Well, I am a third shift su-
pervisor.”
So then he [McCavit] said, “Well you guys [the Union
representatives] are going to have to leave. I know you
guys [referring to the employees who were present].”. . .
So I turned to hand out a leaflet to an employee com-
ing in and Shawn reached over, and he said “What is
that?” And he took it out of my hand and stood there and
read it. Then, when he got through reading it he looked at
Klein and Ringman to see if they were leaving, and they

10 On brief, the Charging Party does not contend that any of the ob-
jections are supported by the evidence that the General Counsel intro-
duced in support of this paragraph of the complaint.
11 The Tr. 40, immediately after L. 17, is corrected to indicate an an-
swer of “Yes.”
were leaving, and by that time, he did12 give the flier back
to me.
By that time it was time to go in because we start at ten
minutes to seven, so we went on in.

During his cross-examination, Johnson acknowledged that
McCavit did not ask him (or, presumably, the other employees
who were present with Klein and Ringman) to leave the prem-
ises.
The complaint alleges that by McCavit’s November 24 con-
duct the Respondent “interfered with the employees’ distribu-
tion of literature on behalf and in support of the Charging Un-
ion” in violation of Section 8(a)(1). The complaint does not
say how McCavit allegedly interfered with the employees’
distributions. On brief, the General Counsel does not withdraw
this allegation because of Johnson’s acknowledgment that
McCavit did not tell the employees that they should stop their
distributions and leave. Instead, the General Counsel ignores
the testimony of his witness Johnson and quotes only Klein’s
incredible testimony to argue that during the incident McCavit
interfered with the employees’ distributions by interrogating
and assaulting Johnson. Asking a group that included non-
employees, such as Klein and Ringman, what they were doing
on the Respondent’s property hardly constitutes coercive con-
duct. Moreover, the effect of Johnson’s testimony is that
McCavit touched him only incidentally as he reached for the
flier, which McCavit almost immediately returned. There was,
therefore, no coercive conduct in the November 24 incident by
the Respondent, and I shall recommend dismissal of paragraph
10(b) of the complaint.
Paragraph 11 of the Complaint and Objections 6 and 7
Paragraph 11 alleges that in two separate incidents, one on
November 10 and the other on November 11, admitted supervi-
sor Jim Cole: “promulgated and disparately enforced an overly
broad policy prohibiting employees from talking during work
time in working areas and during nonwork time in nonwork
areas, respectively.”
November 10 Incident Involving Cole
Employee Jerry Hukill is a tool-crib attendant whose job en-
tails walking about the Jonesville facility delivering tools and
supplies to employees who are stationed on various production
lines. Hukill testified that on November 10, he passed by em-
ployee Johnson’s workplace; he stopped and:

[W]e was talking, had been talking about a mutual friend of
ours that had been in the hospital and they were debating
whether they was going to cut him off life support. I asked
him if he had heard anything about the pension, any update on
it, and he said no. At that point [admitted supervisor] Jim
Cole come up and he told us that we didn’t need to be talking
about the Union.
And I said, “We are not talking about the Union; we
are discussing the pension.”
And he [Cole] said that I didn’t need to know anything
about the pension until I was ready to retire.
And I informed him that it was too late then.

Hukill testified that his exchange with Johnson lasted “a minute
or two.” Hukill acknowledged that both he and Johnson were
on working time during their exchange that Cole interrupted;
12 The Tr. 203, l. 5, is corrected to change “didn’t” to “did.”
EAGLE-PICHER INDUSTRIES 177
Hukill testified that, although he had stopped to engage in the
exchange, Johnson continued working.
Johnson corroborated Hukill’s testimony about what Cole
said to him and Hukill. Both Johnson and Hukill testified that
they had not, in fact, been talking about the Union when Cole
interrupted them. Both Johnson and Hukill also testified that,
theretofore, employees were allowed to engage in personal
conversations as they were working, and that testimony was not
disputed. Johnson, however, flatly denied that either he or
Hukill stopped working during their exchange; Johnson insisted
that the exchange occurred only as Hukill was “walking by,”
and he also insisted that their conversation could not have taken
more than 30 seconds. Further, Johnson did not testify that
their exchange involved a mutual friend who was being taken
off life-support; Johnson testified that the exchange was cen-
tered around Hukill’s mother-in-law who had recently suffered
a stroke.
Cole testified that he found that Hukill had stopped his tool-
cart at Johnson’s work station, and was talking to Johnson,
when he spoke to Hukill, only. According to Cole:

I said, “Jerry, you have to leave so Dave can go back
to work.”
Then Dave says, “Well, I can talk to him all I want be-
cause we’re talking shop business.
And I said, “No, you can’t.”
Then Jerry said, “Okay,” [and] took his cart and left
and Dave went back to work.

Cole flatly denied that he made any mention of the Union
when he addressed Hukill and Johnson.
Having a friend who is being taken off life-support is a dra-
matic situation; so is having one’s mother-in-law suffer a
stroke. One is not likely to confuse the two dramatic situations,
or conversations about them. Also, Johnson and Hukill dis-
agreed on whether Hukill had stopped working to engage in
their exchange, Johnson testifying that Hukill did not and
Hukill testifying that he did. (Again, Johnson insisted that the
exchange happened only as Hukill was “passing by,” but Hukill
acknowledged that he stopped for “a minute or two.”) Con-
trasted with these conflicts was Cole’s testimony, which I
found forthright and credible. I shall therefore recommend
dismissal of paragraph 11 to the extent that it relies on the tes-
timony of Hukill and Johnson about the November 10 incident.
I shall further recommend dismissal of Objections 6 and 7 to
the extent that they are premised on the same discredited testi-
mony.
November 11 Incident Involving Cole
The second allegation that is based on Cole’s alleged con-
duct relies on the testimonies of Johnson and current employee
Orville Close who is also a machine operator. Close testified
that employees are permitted a 20-minute break during the day
which they take at no specified time. On November 11, when
he had time to take his break, Close went to the lunchroom and
got a roll and coffee. Then Close returned to take his break in
the work area, something that he had done many times in the
past. Close decided to visit Johnson and, as he was walking
toward Johnson’s machine, he was joined by janitor Larry
Sharrar. When Close and Sharrar reached Johnson’s machine,
Johnson was working, according to Close. At the same time,
Cole was operating another machine about 30 feet away from
Johnson’s machine. Close testified that he and Sharrar talked
to Johnson for something less than a minute when:

He [Cole] hollered over from where he was at and told
us that we were not entitled to talk with Dave, that we
were suppose to be running our jobs.
I hollered over at him and told him that I was on my
legitimate break, and he said that does not matter, you are
not suppose to talk with him, you take your break some-
where else in this building.
[W]e just split up and went on our way.

Sharrar did not testify. Johnson testified (three times) that he
was on break when Close and Sharrar approached him at his
machine. Johnson further testified that: “Jim Cole said, ‘You
can’t be over here talking; don’t talk Union,’ and we said that
we were on break so we just left.” Cole generally denied telling
any employee to stop talking about the Union, but he was not
asked about the event described (differently) by Close and
Johnson. On brief, the General Counsel acknowledges the
conflicts between Close and Johnson, but he offers no sugges-
tion of how those conflicts can be reconciled.
Close was an actively prounion employee, and if Cole had
said that the employees were not to talk about the Union Close
would assuredly have included the fact in his testimony. Close
also had no reason to lie and say that Johnson was still on
working time during the event. Because of these conflicts, and
because of the overall credible demeanor that Cole displayed, I
credit Cole’s denial, albeit general, that he ever told any em-
ployee not to talk about the Union. I shall therefore recom-
mend dismissal of paragraph 11 as it refers to this incident. I
shall further recommend that the Board overrule Objections 6
and 7 to the extent that they are premised on this incident.
Paragraph 12 of the Complaint13
Employee Joseph Thompson is a machine operator who
works at the Jonesville facility on the second shift. At a table
beside his machine he regularly maintained prounion literature
that other employees could pick up as they passed. Thompson
testified that there were at the Jonesville facility four bulletin
boards where employees were allowed to post literature such as
announcements of private sales, deer-hunting information and
prounion literature. One of those bulletin boards was located
within 10 feet of the machine that Thompson regularly oper-
ated; that bulletin board’s size was about 3 feet by 4 feet. On
about half of that bulletin board (and on half of the other bulle-
tin boards) management also regularly posted notices, including
anti-union literature.
Thompson testified that on November 24, just before his
shift started, he posted union literature on the bulletin board
near his work area. As he did so, he noticed that some litera-
ture that he had previously posted had been removed; at the
time, he did not know who had removed that literature.
Thompson testified that he re-posted other copies of what he
had previously posted, and he added some new postings. Ac-
cording to Thompson this made a total of “about 12” prounion
postings on the bulletin board. At the time, further according to
Thompson, there were “two or three” management postings on
the bulletin board. All of the prounion and management post-
ings were on letter-size paper. At his first break (about 2 hours

13 On brief, the Charging Party does not contend that any of the ob-
jections are supported by the evidence that the General Counsel intro-
duced in support of this paragraph of the complaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 178
after shift-start), Thompson checked the bulletin board and saw
that: “there were only like three or four [of his prounion post-
ings] left out of twelve.” As Thompson was noticing this, ad-
mitted supervisor Brian Cleveland walked by. According to
Thompson:

I asked him where my postings went, and he said, “I
took them down. . . . [Y]ou already have some up there;
you can’t repeat yourself.”
He said, “Don’t re-post them, please.”

Thompson acknowledged that Cleveland returned to his bench
the union fliers that Cleveland had removed from the bulletin
board. When asked on direct examination if some of his post-
ings had been duplicates, Thompson replied that the postings
were two-sided and: “The backs were the same, I mean there
may have been some duplicates up there. But I believe they all
said about the same things, but they were different.” Thompson
further testified that as Cleveland was talking to him, Cleveland
posted additional management campaign fliers and then the
number of management fliers came to “Maybe ten, because he
put some of his up and he moved mine down.”
Thompson further testified that at his lunchtime (about 2
hours later) he went back to the bulletin board and re-posted the
material that Cleveland had removed. Then Cleveland, “came
up to me and he said, ‘Don’t do that again, please.’” Thompson
testified: “I just nodded my head like this and smiled at him and
walked back to my machine.” When asked if he covered Cleve-
land’s promanagement postings with his prounion postings,
Thompson replied: “Not totally covered, no. They may have
overlapped a little bit, but it is not like I just posted it right over
the top of his. . . . Sometimes we were short on pins and we
used the same pins, and I don’t know, they may have over-
lapped by four inches. They weren’t totally pinned down cor-
ner to corner.” When asked on cross-examination if he had not
posted some of his prounion fliers with duplicate sides show-
ing, Thompson replied: “There may have been, I don’t recall.”
Based on Thompson’s testimony, the complaint alleges that
the Respondent, by Cleveland: “(a) removed union literature
from a bulletin board shared by Respondent and employees;
[and] (b) prohibited employees from posting union literature on
a bulletin board shared by Respondent and employees.”
Cleveland testified that when he first went to the bulletin
board that is near Thompson’s work station:

And there was two pieces of literature there for us.
And I went up there to that board and I was going to put
up our information, our message, and I noticed that there
was really not much room because there was lots of papers
up there. Many duplicates. So I removed the duplicates
and made sure that there was literature representing the
Union, one, of everything they needed or wanted to say. I
put those back up and then I put ours down on the bottom.
And when I was doing that, Joe asked me what I was
doing and I told him. I said, “We got a message to get out
and I want to present it to everybody, so I’m going to re-
move the duplicates.”
Joe said that I shouldn’t remove those. And I told him
that I was just removing the duplicates.
So what I removed were the duplicates and I put them
in his pile, near his work area. And then made sure they
had . . . one of everything they had up there and then one
of everything we had.
[I said to Thompson]: “There you go. We’re even, you
know. Everybody’s got their message being given.”

Cleveland testified that he then left Thompson’s work area and:

I come back probably a half hour later or so, and it
looked like the board exploded. There was papers all over
it. Mostly [saying] “Vote ‘Yes’ on December 3rd,” which
was the back statement on most of the UAW papers.
There was no rhyme or reason to it. So I again, re-
moved those, made sure there was representation up there,
one, of all the statements that were needed to be made that
they had that day. And one of ours. . . .
And I asked Joe not to mess with it, “Please.” Because
they got a message to get out; we got a message to give
out. And this is a board for everybody.

Still later, according to Cleveland:

I came back after break . . . [a]nd now, it’s different.
Now, it’s [alternating] UAW . . . company, UAW, com-
pany, UAW, company. And there on these bright fluores-
cent-colored papers that you could not understand the
message to be given there. You could not distinguish be-
tween the two. It was one here, one here, one here.
And I asked Joe, “What are you doing? Why is it this
way? I thought I had asked you to please leave them
alone.”
He said he liked it that way. It looked good. It looked
nice.
And I asked him if he would remove it, “Please.”

Cleveland testified that he later returned to the bulletin board
and saw that it was still in disorganized fashion. He re-
arranged the prounion and proemployer campaign literature so
that each side’s literature had about half of the bulletin board
space. Cleveland denied that he removed any of the prounion
literature except for duplicates.
To the extent that their testimonies differ, I credit Cleveland
over Thompson. Cleveland did no more than remove dupli-
cates of postings on the bulletin board that was in Thompson’s
work area,14 he divided that bulletin board between the two
competing factions, and he told Thompson not to disturb that
division. Before and after this conduct, the Respondent al-
lowed Thompson to freely distribute material in the same area
by leaving it out on his work bench for other employees to pick
up as they passed, as well as to post union literature on the
bulletin board. Also the employees took full advantage of their
right to distribute union literature in the lunchroom and they
used the other Jonesville facility bulletin boards for the same
purpose. In these circumstances the Respondent’s conduct
cannot be held to be coercive, and I shall therefore recommend
that paragraph 12 of the complaint be dismissed.
Paragraph 13 of the Complaint and Objection 8
Employee Mike Null testified that in mid-November, near
the end of his shift, Plant Manager Dennis Minor and Human
Resources Department Manager Mary Wall conducted an em-
ployer campaign meeting in the Respondent’s training room.
An anti-union motion picture presentation was made. In the
audience were 20 to 30 employees. About two-thirds of the

14 As revealed by the hesitancy and evasiveness in Thompson’s
quoted testimony, there is no real question that he had posted dupli-
cates.
EAGLE-PICHER INDUSTRIES 179
way through the presentation, the film’s narrator said, “If you
don’t have a union, you can deal with management.” To that
Null responded (in what he called a “normal” tone): “I’ve dealt
with them before.” The presentation finished without further
incident. The employees who had been in attendance filed out
of the training room into a main aisle where then present were
several other employees were then reporting to work. Accord-
ing to Null, as he walked among the other employees, Minor
approached him from behind, “grabbed” his right arm just
above the elbow, “pulled” him about 5 feet to the side of the
aisle, and “told me that, when I was in that meeting I was on his
time and that I would pay attention and we wouldn’t be having
this talk again, would we?” Null testified that he replied, “No,
sir; we won’t.” Null then resumed walking with other employ-
ees toward the work area. Employee Davis testified that he
attended the presentation with Null; he testified consistently
with Null about what happened during and after the presenta-
tion. Davis testified that he could not hear the words that Mi-
nor used when speaking to Null, but he could tell that Minor
was “angry.” Based on this testimony by Null and Davis, the
complaint alleges that the Respondent, by Minor: “physically
assaulted an employee for his engaging in activity on behalf
and in support of the Charging Union.”
Minor testified that before the film presentation he read a
statement to the gathered employees. During his reading:
“Mike was very disruptive. He started moving his body about,
kicking the chairs in front of his seat. Hitting his head against
the wall.” Minor did not stop his reading to admonish Null, but
after the presentation, when he and the employees had left the
room and gone into the aisle:

In passing, I went out and I tried to get his attention. I
couldn’t get his attention when I called his name, so I
walked up behind him, took him by the arm and . . . I re-
minded him that I was paying him to sit there. And I
know that Mike’s sympathies were with the union. I
mean, he makes that well known. And I told him, “I un-
derstand that. But, you know, please, as long as I’m pay-
ing you, don’t disrupt the meeting.”
And he was polite about it, and said, “Okay.”

Minor denied pulling Null to the side of the aisle. During his
testimony, Minor did not mention Null’s conduct during the
film presentation; specifically, he did not mention Nulls remark
of: “I’ve dealt with them before.” On cross-examination, Minor
acknowledged that the incident occurred at a shift-change, “[s]o
there were plenty of employees in the area.” Both Null and
Davis denied that during the meeting Null banged his head
against a wall or engaged in any other such disruptive conduct.
The Respondent did not call Wall to testify that Null banged
his head against a wall or engaged in other such disruptive con-
duct. Wall is a manager, and presumably if her testimony
would have been favorable to it the Respondent would have
called her to testify.15 Also, if Null had engaged in such disrup-
tive conduct, Minor presumably would have stopped his read-
ing and told Null to quit it. I credit Null and Davis and find

15 See International Automated Machines, 285 NLRB 1122 (1987),
which held that “when a party fails to call a witness who may reasona-
bly be assumed to be favorably disposed to the party, an adverse infer-
ence may be drawn regarding any factual question on which the witness
is likely to have knowledge.” At trial, the Respondent did not claim
that Wall was no longer a supervisor or that she was otherwise unavail-
able to it. Cf. Reno Hilton, 326 NLRB 1421 (1998).
that Null did not engage in such disruptive conduct. I further
credit Null and Davis and find that Minor pulled Null about 5
feet from the center of the aisle to the side of the aisle in order
to confront Null.
Null’s (once) speaking up to challenge the film presenta-
tion’s opposition to the employees’ effort to secure collective
bargaining was plainly protected union activity.16 The Respon-
dent does not deny that grabbing a person by the arm and pull-
ing him about 5 feet from where he had been walking is an
assault under Michigan law. (On brief, the Respondent only
cites Board cases of more grievous assaults that have been held
to be violations, but it suggests no reason why Minor’s grab-
bing Null and pulling him 5 feet should not also be considered
an assault.) Such an assault of an employee because of his pro-
tected activities is a violation of the Act.17 I find and conclude
that Minor’s action was an assault on Null and that it violated
Section 8(a)(1), as alleged. Especially because the assault hap-
pened in the presence of “plenty” (Minor’s word) of other em-
ployees, it moreover is the type of conduct that would have
interfered with the employees’ free choice in the December 3
Board election. I therefore shall also recommend that the
Board sustain Objection 8.18
Paragraphs 14 and 15 of the Complaint and
Objections 6 and 7
Paragraphs 14 and 15 allege that on three separate occasions
in November, Minor, Trego, and Vice President of Manufactur-
ing Tom Barr: “disparately enforced its overly broad no-access
and no-solicitation and distribution rules by prohibiting an em-
ployee from distributing union literature at its employee en-
trance.”
Gerald Ellair (whose case of alleged discrimination is dis-
cussed in a subsequent section of this decision) is a first-shift
employee of the Industrial Drive facility. Ellair testified that on
November 24, about 20 minutes before he was scheduled to
report to work, he distributed union literature to employees who
were entering or leaving an employee entrance of the Industrial
Drive facility. While he was doing so, Plant Manager Minor
approached Ellair and told Ellair that he was not to be on com-
pany premises more than 10 minutes before or after his shift.
Minor also told Ellair, “I hope you don’t get yourself in trou-
ble.” Ellair did not say anything in response. On cross-
examination, Ellair admitted that after Minor spoke to him,
Minor went back into the plant; Ellair further admitted that he
remained at the entrance, and he presumably continued to dis-
tribute literature as he had been doing before Minor arrived.
Minor testified, but he did not dispute Ellair on this point; I
found Ellair’s testimony on the point to be credible.
First-shift Jonesville facility employee Larry Lofton testified
that, at some time in November, he came to an exterior entrance
of the Jonesville facility plant about 11 p.m. to distribute proun-
ion fliers to the employees of the second and third shifts. Tom
Barr, the Respondent’s vice president of manufacturing, ap-
proached Lofton and asked for a copy of a flyer. After examin-
16 See Neff-Perkins Co., 315 NLRB 1229 fn. 1 (1994), and cases
cited infra.
17 See Shedd’s Food Products, 293 NLRB 584 (1989), where the
Board found a violation because an employee was pushed “four or five
feet” because of her protected activities.
18 See Garney Morris, Inc., 313 NLRB 101 (1993); and Federated
Dept. Stores, 241 NLRB 240 (1979).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 180
ing the flier, Barr told Lofton that he had to leave. Lofton fur-
ther testified that:

I told him at the time that I didn’t think that I had to
leave by law and he said he wasn’t going to get into it with
me at that time, I had to leave. [I told Barr that] I wasn’t
going to leave for another five or ten minutes, and then at
that time I would leave and not before. . . . He went back
inside and never came back again.

Lofton was not asked when he left the premises that night, but
presumably he continued distributing the fliers for at least a few
minutes more. Barr did not testify. I found the Lofton’s testi-
mony on the point to be credible.
The no-access rule that is contained in the Respondent’s
handbook is invalid under Tri-County Medical Center, as dis-
cussed above. The Respondent argues that because neither
Ellair nor Lofton ceased handbilling when the supervisors told
them to do so, and because they were not disciplined for their
protected union activities, there is no violation. Again, success
of an employer’s attempt to interfere with employees’ rights as
stated in Tri-County Medical Center is not an issue. See NLRB
v. Pizza Crust of Pennsylvania, as quoted above. Moreover,
Minor’s statement to Ellair that he “hoped” that Ellair would
not get into trouble by violating the Respondent’s invalid no-
access rule was clearly an unlawful threat to Ellair because he
was engaging in protected union activities.19 In these circum-
stances I find and conclude that, by Minor’s and Barr’s at-
tempts to exclude off-duty employees from soliciting or dis-
tributing information for the Union in the Respondent’s outside
nonworking areas, the Respondent violated Section 8(a)(1). I
additionally find and conclude that the conduct of Minor and
Barr would have tended to interfere with the employees’ rights
to a fair election, and I shall recommend that the Board sustain
Objections 6 and 7 as they pertain to this conduct.
The third incident alleged by paragraphs 14 and 15 of the
complaint did involve enforcement of the Respondent’s hand-
book’s no-access rule by a proven exclusion of an off-duty
employee. Current employee Danny May is a first-shift em-
ployee at the Jonesville facility. May testified that once in
November he and some nonemployee organizers went to the
Jonesville facility and distributed some prounion fliers to em-
ployees at night, between the second and third shifts. Trego
approached May and told him that he had to leave. May asked
Trego if that was a direct order, and Trego replied that it was.
May then left the premises (with the organizers still there).
When Trego was called as a witness by the General Counsel, he
essentially admitted the facts as related by May. I find and
conclude that, by Trego’s ejecting May from the Respondent’s
premises because he was an off-duty employee who was engag-
ing in protected solicitations and distributions, the Respondent
violated Section 8(a)(1) of the Act. I additionally find and
conclude that the conduct of Trego would have tended to inter-
fere with the employees’ rights to a fair election, and I shall
recommend that the Board sustain Objections 6 and 7 as they
pertain to this conduct.20

19 See Webco Industries, 327 NLRB 172 (1998).
20 Pizza Crust of Pennsylvania, supra.
Paragraphs 16 and 17 of the Complaint21
As noted above, the complaint alleges, and the Respondent
denies, that Gary LoPresto and Roger Hartsell are supervisors
within Section 2(11) of the Act or agents of the Respondent
within Section 2(13). The Respondent classifies LoPresto as a
“facilitator,” and it classifies Hartsell as a “leadman.” Para-
graph 16 of the complaint alleges that in November LoPresto
posted a notice to employees that stated that the plant would be
closed if the employees selected the Union as their collective-
bargaining representative. Paragraph 17 alleges that Leadman
Hartsell thereafter “permitted the continued posting” of a copy
of the same plant-closure notice. At the conclusion of the Gen-
eral Counsel’s case, the Respondent moved to dismiss para-
graphs 16 and 17 of the complaint on the ground that the Gen-
eral Counsel had not presented prima facie cases that LoPresto
and Hartsell were either its supervisors or agents. I granted the
motion. On brief, the General Counsel requests reconsideration
of those rulings. For the reasons stated infra, I adhere to those
rulings. In addition, I find that the Respondent proved in its
case that LoPresto did not engage in the conduct, which the
complaint attributes to him.
To prove the conduct of LoPresto and Hartsell, the General
Counsel called only employee Davis. Davis testified that he
and a few other Industrial Drive facility employees regularly
conducted Bible-study meetings during breaks. The meetings
were usually held in the Respondent’s training room, but during
a break in November the group found the training room in use.
The group (then consisting of Davis and employees Mike
Leatherman, Mike Puthoff, Kevin Jones, and Larry Green)
went next door to the then-unoccupied office of LoPresto to
conduct their meeting. Davis testified that when he entered
LoPresto’s office, he saw on a wall an antiunion flier, a copy of
which was received in evidence. The flier depicts a large pad-
lock that is placed across what appears to be a gate-opening.
The legend around the depiction is: “NO—OR THE SHOP
WILL BE SHUT DOWN.” On direct examination Davis testi-
fied that LoPresto’s office has windows to a small aisle and to
the adjacent training room. That testimony, of course, was
designed to leave the inference that the flier could have been
seen by someone who was outside LoPresto’s office. On cross-
examination, however, Davis agreed that the posting could not
have been seen from the aisle, but he insisted that it could be
seen from the training room. Davis admitted, however, that his
pretrial affidavit states unequivocally: “I don’t believe you
could see this notice unless you went into LoPresto’s office.” I
find that Davis told the truth in his affidavit.22 Davis further
acknowledged on cross-examination that he had no idea when
the flier was first posted in LoPresto’s office, and he did not
know how long it remained there. (Davis testified that he was
never again inside LoPresto’s office.)
In its case, the Respondent did not call LoPresto. The Re-
spondent did, however, call employee Jones. Jones testified
that he created the flier on his home-computer, that he pinned it
on LoPresto’s wall as the Bible-study group filed into Lo-
Presto’s office, that he did so specifically to irritate the proun-
ion Davis, that he told Davis that he had created the flier, that
he made a joking offer to make another copy of the flier just for
21 On brief, the Charging Party does not contend that any of the ob-
jections are supported by the evidence that the General Counsel intro-
duced in support of these paragraphs of the complaint.
22 See Alvin J. Bart & Co., 236 NLRB 242 (1978).
EAGLE-PICHER INDUSTRIES 181
Davis, that Davis laughed at that joke, and that he (Jones) re-
moved the flier as the group filed out of LoPresto’s office at the
end of their meeting. The General Counsel did not re-call
Davis to rebut any of this testimony, and I found it credible.
Even if the General Counsel had proved LoPresto to be a su-
pervisor, I would therefore recommend dismissal of paragraph
16 of the complaint because neither LoPresto nor any other
alleged supervisor was involved in the posting of the Jones
flier.
As evidence of the supervisory status of LoPresto, the Gen-
eral Counsel relies on Respondent’s answer in a prior proceed-
ing. As mentioned above, the General Counsel issued a com-
plaint against the Respondent in Case 7–CA–40911(1) and (2).
In that complaint, which issued on July 8, the General Counsel
alleged that LoPresto was a supervisor within Section 2(11).
Before that prior case settled, David Wilson, the Respondent’s
vice president of human resources (and a layman), filed an
answer that admitted LoPresto’s supervisory status. Although
the Respondent denied LoPresto’s supervisory status in the
answer that it filed (by a lawyer) in this case, the General
Counsel contends that the Respondent is somehow bound by
Wilson’s admission in the prior case. The General Counsel
cites no applicable authority for such a proposition,23 and I can
see no logic for it. Respondents are not bound in perpetuity by
answers that they file. Even if the Respondent had originally
admitted LoPresto’s supervisory status in this case, it would
have had the absolute right to amend such answer and withdraw
that admission at any time before the instant hearing began.24
That absolute right would truly have been rendered meaning-
less if the Respondent were nevertheless bound by an answer
that it had filed in some previous case.
In this case, the General Counsel offered no evidence that
LoPresto possessed any of the indicia of supervisory status that
are listed by Section 2(11).25 The most that the General Counsel
offered was a May 7 certificate of training that named LoPresto
as a “teacher or trainer” for an in-house course in “Quality
Manufacturing Training, Gage Operation, Purge Procedure,
[and] Request for Change.” The General Counsel argues on
brief that “it is reasonable to infer” that LoPresto used “inde-
pendent judgment” under Section 2(11) while giving that train-
ing. I disagree; the General Counsel made no attempt to prove
what the training actually involved, and there is no basis for
such inference.
Finally, the General Counsel argues that testimony by Wil-
son proves that, even if LoPresto is not a supervisor within
Section 2(11), he is an agent of the Respondent within Section
2(13). The testimony of Wilson was no more than that Lo-
Presto trained employees on how to work as a team. The Gen-
eral Counsel asks the Board to infer that during such training
LoPresto conveys information to the employees. In so doing,

23 American Bakeries Co., 280 NLRB 1373 (1986), cited by the
General Counsel, dealt with an answer to a complaint that was then
before the Board.
24 See Board Rules and Regulations, Sec. 102.23.
25 Sec. 2(11) of the Act defines “supervisor” as:
. . . any individual having authority, in the interest of the employer, to
hire, transfer, suspend, lay off, recall, promote, discharge, assign, re-
ward, or discipline other employees, or responsibly to direct them, or
to adjust their grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such authority is not
of a merely routine or clerical nature, but requires the use of independ-
ent judgment.
the General Counsel cites Debber Electric, 313 NLRB 1094,
1095 fn. 6 (1994), for the proposition that anyone who conveys
any information from management is its “conduit” and its agent
within Section 2(13). I do not believe that Debber can be read
so broadly; that case involved an individual who was shown to
be a supervisor within Section 2(11) and that individual regu-
larly conveyed both job-related messages and personnel mes-
sages to employees. In this case, however, there is no evidence
that LoPresto ever conveyed personnel (or even job-related)
information to the employees when he trained employees to
work as a team, much less that he regularly did so.
In support of paragraph 17 of the complaint, Davis further
testified that “in late October or early November” he saw an-
other copy of the Jones flier in a production area. Davis started
to take it down, but Leadman Hartsell told him not to. Hartsell
did not testify, but assuming the truth of Davis’ testimony I
would nevertheless recommend dismissal of this allegation
because the General Counsel did not offer any evidence that
Hartsell was a supervisor within Section 2(11) at the time that
he told Davis not to take down the Jones filer. On brief, the
General Counsel relies on other testimony by Wilson that, “un-
til October of 1998,” Hartsell was a “supervisor.” Again, Wil-
son is a layman, and the Respondent is not bound by his use of
the word “supervisor,” especially in a case where it has for-
mally denied Hartsell’s Section 2(11) status. Moreover, Davis
placed Hartsell’s conduct in “late October or early November.”
Wilson’s undisputed testimony, however, was that Hartsell was
a supervisor “until October.” That is, Wilson at most admitted
that Hartsell was a supervisor through September; Wilson did
not admit that Hartsell was a supervisor in October or Novem-
ber. Finally, the General Counsel does not argue that there is
any testimony or other evidence that would support a finding
that Hartsell was an agent of the Respondent within Section
2(13) at any relevant time; nevertheless, the General Counsel
asks on brief for that finding. Without even any putative fac-
tual support, of course, I shall recommend dismissal of the
agency contention for Hartsell.
For all of the above reasons, I adhere to my rulings and I
recommend that the Board affirm my bench dismissals of para-
graphs 16 and 17 of the complaint.
Paragraph 18 of the Complaint and Objection 10
Employee Davis further testified that, about 2 weeks before
the December 3 Board election, Third Shift Supervisor Julian
Cass approached him while he was alone at his work station.
According to Davis, Cass “asked me what were my issues and
why did I think I needed a union.” Davis told Cass that he was
having problems with his insurance, that he needed better
medical benefits, and that he wanted “fairer treatment of em-
ployees” and a “fair contract.” Cass directed Davis to see
“Sandy,” the Respondent’s insurance-program administrator.
On the basis of this testimony by Davis, the complaint alleges
that Cass unlawfully interrogated Davis. Cass did not testify. I
found Davis credible on the point, and I conclude that the Re-
spondent did, by Cass’ conduct, unlawfully interrogate an em-
ployee in violation of Section 8(a)(1). The Charging Party,
however, offered no evidence that the interrogation of Davis by
Cass was disseminated in any way to other employees. For that
reason, and upon the authority of Antioch Rock & Ready Mix,
supra, and cases cited therein, I shall recommend that Objection
10 be overruled to the extent that it is premised on Cass’ con-
duct.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 182
Paragraph 19 of the Complaint26
Employee Thompson testified that on December 2 he and
employee Steven Sheiley distributed union hats between shifts
outside a doorway to the Jonesville facility. Thompson testi-
fied that, as he and Sheiley were so engaged, a car with four
union representatives drove to within a few feet of where they
were standing (and well within the Respondent’s premises). As
Thompson and Sheiley talked to the four union representatives,
Supervisors Jack Johnson, Don Diatz, and Mike VanCamp
came and stood at the doorway. The supervisors told the union
representatives that they had to leave the premises. The union
representatives agreed, and the driver started maneuvering the
car around in order to point in the direction of the exit. As that
was happening, VanCamp asked for a hat, but Thompson re-
fused to give him one. After the union representatives’ car got
turned around, but before it was driven away, one of the union
representatives told the supervisors that they had to leave also.
As Thompson testified:

And they [the Union representatives] stopped and they
said, “Well you guys [the supervisors] can’t stand out here
with the employees.”
And then they [the supervisors] said “We know,” and
they kept standing there and he kept asking me for the hat
and things.
And they [the Union representatives] said, “Well, you
guys go in and we will leave,” and they [the Union repre-
sentatives] left. And then about forty-five seconds to a
minute later then Jack [Johnson] and them [the other su-
pervisors] went back in.

Sheiley did not testify. Based on this testimony by Thompson
,the complaint alleges that the Respondent engaged in unlawful
surveillance of its employees’ union activities. In its case, the
Respondent called none of the three supervisors to testify.
Of course, the supervisors had every right to approach the
point inside the Respondent’s property line where the union
representatives’ car had been driven so that the representatives
could to talk to Thompson and Sheiley. The supervisors also
had a right to stay at that point while the union representatives’
car was maneuvered to point toward the exit. This was not
unlawful surveillance; nor was standing around for “forty five
seconds to a minute” afterwards (for the purpose of making
sure that the union representatives were actually leaving, if
nothing else). I shall therefore recommend dismissal of para-
graph 19 of the complaint.
Paragraphs 21 of the Complaint and Objections 3 and 11
During December 1 and 2, ending more than 24 hours prior
to the start of the December 3 Board election, the Respondent
conducted a series of compulsory-attendance meetings in which
it sought to dissuade the employees from voting for the Union.
At 11 p.m. on December 1, William Oeters, Respondent’s
president, made one such speech to the third-shift employees at
the Industrial Drive facility. About 70 employees attended the
Oeters meeting (as I shall call it). In addition to Oeters, present
for management were Plant Manager Minor, Vice Presidents of
Human Resources Trego and Wilson, and Third Shift Foremen
McCavit, and Cass. It is undisputed that before the meeting

26 On brief, the Charging Party does not contend that any of the ob-
jections are supported by the evidence that the General Counsel intro-
duced in support of this paragraph of the complaint.
began Oeters told the employees that he was going to make a
speech, and he told the employees to hold any questions that
they might have until the meeting was finished at which time he
would stay and answer their questions individually.
Employee Gerald Ellair was one of the employees in atten-
dance at the Oeters meeting. Ellair, as he usually did, was
wearing a shirt that was covered with prounion insignia and a
UAW cap. Ellair testified that during Oeters’ presentation,
employee Jamie Buckner stood and asked a question (the sub-
stance of which Ellair did not recall). According to Ellair:

[Oeters] told [Buckner] to sit down and be quiet. And I had
my handbook and I got up and I said, “Well, according to our
handbook, page”—think it was 134 and 135; I’m not exact on
the pages—“says that we should feel free to ask questions.”
And he [Oeters] walked over to me and he pointed at
me and he says, “Sit down and shut up now.”
I said, “Yes, sir.” And I sat down.

Ellair further testified that after this exchange employee Null
attempted to ask Oeters a question but Trego, “instructed him to
sit down and be quiet.” Thereafter, employee Davis and sev-
eral other employees attempted to ask questions, and they were
“ignored.” About 5 minutes after the last employee had at-
tempted to ask a question, further according to Ellair, Oeters,
“kept going on how bad the unions was and everything, and I
remained seated, and I said, ‘garbage.’” At that, Oeters pointed
to Ellair and told Trego that he wanted a warning notice issued
to Ellair. Ellair remained silent for the rest of the meeting.
After the meeting, Trego and Minor escorted Ellair to Mi-
nor’s office. Minor first told Ellair that he could be discharged;
then Minor told Ellair that he could be suspended for 5 days;
then Minor told Ellair that he would receive a warning notice.
Ellair returned to work. Minor did not dispute this testimony
by Ellair.
On December 3 (“after the election,” according to Ellair) the
Respondent issued Ellair a warning notice that stated as the
“Reason for Disciplinary Action Taken”:

During the third shift plant-wide meetings on 12-1-98,
at approximately 11:00 p.m., Gerald was instructed to sit
down and be quiet so that the rest of the employees could
hear the special instructions being given by Bill Oeters.
Bill requested that Gerald remain quiet until the end of the
meeting and then questions would be answered. Gerald
then again was disruptive. Based on the above informa-
tion, Gerald is being written up.

Although, as will be seen, the Respondent contends that Ellair
interrupted the Oeters meeting three times, Ellair testified that
he attempted to ask a question only once during the meeting,
and his only other remark was the “garbage” comment which
he made in a “calm” tone. (Ellair denied that he or the other
employees had discussed a plan to disrupt the Oeters meeting
by repeatedly trying to ask questions, and there is no evidence
that the employee interruptions during the Oeters meeting were
the product of some sort of conspiracy.)
Employee Null testified that he sat within 10 feet of Ellair
during the Oeters meeting. Null testified that he and employees
Buckner and Milt Keys attempted to ask questions, and Oeters
or the other supervisors present told them to sit down. Later
during the Oeters meeting Ellair attempted to ask a question,
and Oeters, according to Null, “[t]old him to sit down and be
quiet or they’d write him up.” Still later, as Oeters continued
EAGLE-PICHER INDUSTRIES 183
his speech, further according to Null: “Gerald made the com-
ment ‘garbage,’ and Oeters walked over to him and pointed at
Gerald, [and] looked at Sam Trego, and said write this man
up.” Null described Ellair’s tone of voice as “quiet to normal.”
Null further testified that, other than Ellair’s one attempted
question and his “garbage” comment, Ellair said nothing during
the Oeters meeting. Employee Davis testified consistently with
Ellair and Null. Based on this testimony by Ellair, Davis and
Null, the complaint alleges that the Respondent violated Sec-
tion 8(a)(3) by issuing the warning notice to Ellair.
The Respondent called Minor and Wilson to testify about the
Oeters meeting. Both Minor and Wilson agreed that other em-
ployees stood up and attempted to ask questions during the
meeting but Oeters told each of them to sit down and hold their
questions until after the meeting was completed and he would
answer them individually. Both Minor and Wilson testified
that the other employees complied, but Ellair did not. Minor
and Wisdom testified that Ellair “popped up” three times during
the meeting to interrupt Oeters. Wilson testified that Ellair
cited the handbook during his first interruption, but Wilson did
not testify as to what Ellair said during the other two interrup-
tions. Both Minor and Wilson testified that, after Ellair’s sec-
ond interruption (“popped up,” as both Minor and Wisdom
phrased it in their testimonies), Oeters told Ellair that he was
being insubordinate; Wilson additionally testified that when
Ellair interrupted the second time, Oeters told Ellair that if he
did not sit down and be quiet, “you’re going to be disciplined.”
Both Minor and Wilson testified that it was after Ellair’s third
interruption (again, “popped up,” as both Minor and Wisdom
phrased it) that Oeters told Trego to issue a warning notice to
Ellair. Wilson testified: “That chilled the crowd.”27
Whether Ellair interrupted Oeters three times or only twice is
the only factual resolution that is required. I find that the “gar-
bage” interruption was only Ellair’s second because: (1) the
above-quoted warning notice’s failure to indicate that Ellair
interrupted three times is a tacit admission that he did so only
twice; (2) Wilson and Minor (most suspiciously) testified that
Ellair “popped up” three times, but they made no attempt to
relate what Ellair had said when he “popped up” the second (or
third) time; (3) the Respondent did not call to testify any of the
4 other managers who were present; and (4) the General Coun-
sel’s witnesses were credible on the point. Nevertheless, El-
lair’s “garbage” comment was, in fact, an interruption; although
Ellair spoke in a moderate tone, he had no reason for making
the “garbage” comment other than to interrupt, and challenge,
Oeters.
In summary, the employees were told as a group that they
could not ask questions or otherwise interrupt the Oeters’ meet-
ing. When Ellair first interrupted, he was individually and
categorically warned orally that he would receive a warning
notice if he did so again. (As employee Null put it, Oeters
“[t]old him to sit down and be quiet or they’d write him up.”)
Ellair then interrupted again. As a result, the Respondent is-
sued Ellair a warning notice. The issue before the Board is
whether Ellair’s second interruption of the Oeters’ meeting was
protected to the extent that the Respondent could not lawfully
issue him a warning notice because of that interruption, even
though Ellair had ignored a specific, individual, oral warning

27 I grant the motions of the General Counsel and the Charging Party
to correct Tr. 451, l. 22, to change “showed” to “chilled.”
that he would receive such a written warning if he interrupted
the Oeters meeting again.
In several cases, the Board has held that Section 7 affords
employees a degree of latitude that insulates them from suspen-
sions or discharges for impulsive interruptions during compul-
sory-attendance employer campaign meetings if those interrup-
tions fall short of violence or extreme cursing and if those inter-
ruptions are not the product of an employee conspiracy to dis-
rupt such meetings. F. W. Woolworth Co., 251 NLRB 1111
(1980), and Beverly California Corp., 326 NLRB 232 (1998),
are two of those cases. On brief, the General Counsel relies
heavily upon Woolworth and Beverly for the proposition that
neither may an employer lawfully issue to an employee a warn-
ing notice for repeated interruptions of an employer campaign
meeting, even if the employee has disregarded a prior oral
warning of that discipline. Neither Woolworth nor Beverly,
however, involved an issuance of the milder discipline of a
warning notice for employee disruptions of employer
speeches.28 Indeed, the General Counsel cites no case in which
repeated employee disruptions of employer campaign speeches
have been held to be activity that is protected from receiving
warning notices.29 Certainly, the General Counsel does not cite
any case that holds that repeated disruptive employee conduct
during an employer campaign meeting is protected from the
discipline of a warning notice, even when that employee has
ignored a specific oral warning that he would receive a written
warning if his disruptive conduct continues. Therefore, the
General Counsel is asking the Board to establish such a prece-
dent in this case.
The unprecedented ruling that the General Counsel seeks is
that an employer may not issue a warning notice to an em-
ployee because of that employee’s repeated disruptions of a
working time employer campaign meeting, even where the
employee has ignored a prior oral warning that a written warn-
ing would be forthcoming on the occasion of the employee’s
next interruption. Because there is precious little else that an
employer can effectively do to exercise his right to make a
speech in the face of repeated disruptions, the granting of Gen-
eral Counsel’s request would result in law that any discipline of
an employee for disrupting an employer campaign speech is a
per se violation of the Act. I do not believe that such law
should be established.
A per se rule that employers may not impose any discipline
on employees for disruptions of employer campaign meetings
would leave employees free to engage in repeated cat-calls,
foot-stomping, whistling or other such conduct that would ef-
fectively deprive employers of their rights under Section 8(c) of
the Act to make campaign speeches.30 If an employer cannot at
28 In Beverly, moreover, the administrative law judge, with subse-
quent Board approval, characterized the suspension as an “overreac-
tion,” plainly leaving the inference that the Act does not prohibit all
discipline for speech-disrupting employee conduct.
29 Fall River Savings Bank, 247 NLRB 631 (1980), the only case
cited by the General Counsel for the proposition that issuance of a
warning notice in such circumstances is tantamount to a suspension or a
discharge, involved the issuance a warning notice for employee conduct
during an impromptu confrontation on a work floor when the employer
was trying to get employees to go back to work; the case did not in-
volve an employer campaign speech or interruptions of such a speech.
30 Sec. 8(c) provides:
The expressing of any views, argument, or opinion, or the
dissemination thereof, whether in written, printed, graphic, or vis-
ual form, shall not constitute or be evidence of an unfair labor
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 184
least categorically warn orally an individual employee of the
punishment of a warning notice for interruptions that tend to
impair that employer’s ability to give a lawful speech on paid
employee time, and if that employer cannot follow up on such a
categorical warning with the comparatively mild punishment of
such a warning notice when the employee ignores the oral
warning and interrupts again, an employer effectively has no
right to give campaign speeches, even when it is paying em-
ployees to listen to them.
The General Counsel argues that Ellair’s case should be ana-
lyzed under Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
Wright Line, however, does not apply to a situation in which an
employee engages in a general course of protected concerted
activities, as Ellair did when he (twice) interrupted the Oeters
meeting,31 and the employer disciplines that employee alleg-
edly because some aspect of the employee’s conduct exceeded
the protection of the Act. Instead, as observed by the Board in
Mast Advertising, 304 NLRB 819 (1991), such cases are to be
analyzed under NLRB v. Thor Power Tool Co., 351 F.2d 584,
587 (7th Cir. 1965), enfg. 148 NLRB 1379 (1964). Thor Power
Tool holds that “an employee’s right to engage in concerted
activity may permit some leeway for impulsive behavior which
must be balanced against the employer’s right to maintain order
and respect.” This, ultimately, is the standard to be applied to
the warning that the Respondent issued to Ellair, as I have
done. Moreover, assuming that Wright Line did apply, I would
find that the General Counsel has not presented a prima facie
case of discrimination against Ellair. It is true that Ellair was
wearing many prounion insignia (buttons, etc.) when he inter-
rupted Oeters and Ellair was the only interrupting employee
who was disciplined. Nevertheless, the General Counsel did
not show that the other employees who interrupted Oeters were
not wearing such insignia. Moreover, there is no evidence of
disparate treatment because the General Counsel did not show
that any other employee interrupted Oeters twice and was not
punished.
In this case it is true that Minor essentially admitted Ellair’s
testimony that, after the Oeters’ meeting, he was brought to an
office where Minor threatened him with suspension and dis-
charge. It is also true that of Beverly, supra, fn. 5, the Board
found an 8(a)(1) violation in such a threat of suspension. The
threats by Minor, however, were not alleged, and the General
Counsel does not ask on brief for finding of a violation in that
respect. I am constrained to point out, however, that even if
Minor’s postmeeting threats to Ellair of harsher discipline had
been alleged, and even if I were to find 8(a)(1) violations in
Minor’s conduct, Section 7 would not somehow retroactively
render Ellair’s conduct protected from the warning notice that
Oeters had previously ordered.
The Respondent did not discharge or suspend Ellair for his
“garbage” interruption of the Oeters’ meeting. Rather, the Re-
spondent issued to Ellair the comparatively mild discipline of a
warning notice, and it did so only after Ellair had ignored a
specific oral warning that the written warning would be forth-
coming if he interrupted the Oeters’ meeting again. The warn-
ing notice was not followed by a discharge, or a suspension, or
any other discipline that would have immediately affected El-

practice under any of the provisions of this Act, if such expression
contains no threat of reprisal or force or promise of benefit.
31 See Neff-Perkins, supra.
lair’s tenure of employment. The warning notice, therefore,
appears to have been no more than that which was necessary to
allow Oeters to complete his presentation to the employees. I
shall therefore recommend that paragraph 21 of the complaint
be dismissed. I shall further recommend that the Board over-
rule the Union’s Objection 11, which is premised on the alleged
unlawfulness of the warning notice to Ellair.
The Union’s Objection 3 is premised on Oeters’ threat to is-
sue the warning notice to Ellair. The complaint did not allege,
and the General Counsel does not ask for a finding, that Oeters’
threat to Ellair of a warning notice violated Section 8(a)(1).
Perhaps it is needless to say, but even if such allegation had
been made I would find that Oeters’ threat to Ellair of the dis-
cipline of a warning notice did not violate Section 8(a)(1); if
Oeters had a right to order the issuance of the warning notice to
Ellair, he necessarily had a right to threaten to do so. For this
reason, I shall recommend that the Board overrule the Union’s
Objection 3.
Objection 12
The December 3 Board election was conducted in the Re-
spondent’s training room, the door to which is on the north side
of an east-west aisle that runs along the front of the production
area of the Industrial Drive facility. According to the scale of a
diagram of the plant that was received in evidence, the aisle is
about 100 feet long and 4 feet wide (at its narrowest point).
The training room door is about 20 feet from the east end of the
aisle; a door to a supervisors’ room is about 20 feet west of the
training room door; a door to the lunchroom is about 30 feet
west of the supervisors’ office, or about 50 feet from the train-
ing room door. Two voting periods were conducted in order to
allow employees of all three shifts to vote. The first polling
period was from 5:30 until 8 a.m.; the second polling period
was conducted at some time after the second shift began work
that afternoon.
Employee Davis testified that he worked the third shift on
the night of December 2–3. Several minutes before the shift-
end at 6:50 a.m., he went to the training room to vote. After
voting, he returned to his work area. As he started to leave the
plant at shift-end, he walked to a point where he could see other
employees who were in the aisle, lined up to vote, at the door of
the training room. Davis testified that at the time: “I observed
[Supervisors] Jim Cole and John Burkhart; they were down by
the . . . entrance to the training room; and they were standing
there and they had talked to several employees and talked
amongst themselves.” Davis testified that Cole and Burkhart
were within 5 feet of the training room door as they did this.
On cross-examination, Davis admitted that, before the voting
period began, his shift had received orders to wait until their
production lines were released to vote; Davis further admitted
that the third shift followed that orderly procedure. Davis fur-
ther admitted that, as the first shift employees arrived, they did
not report to their work areas (to be released by production
lines); instead they went immediately to the voting line where
they became “very jubilant,” but not loud. Employee Null
testified that at the shift change on the morning of December 3
he saw Cole, Burkhart, and Supervisor Steve George standing
“approximately 30 feet” from the training room door, speaking
to employees before or after they had voted. Neither Davis nor
Null were asked to estimate how long it was that they saw Cole
and Burkhart standing in the aisle. Both Davis and Null admit-
ted that they did not hear what Cole and Burkhart said to any of
EAGLE-PICHER INDUSTRIES 185
the employees who were in the aisle that morning. It is upon
this testimony by Null and Davis that Objection 12, as quoted
above, alleges that the Employer engaged in improper election-
eering at or near the polls.
Neither Burkhart nor George testified. Wilson testified that
he came to the aisle after he received a report that the first-shift
employees were not going to their work areas and working until
they were released by production lines to go and vote. Rather,
the report was that some of the first-shift employees were going
individually to the voting area where they were making a great
deal of noise while waiting to vote. Wilson went to the door to
the supervisors’ office where he found “the day-shift supervi-
sors” (apparently all of them) who did not know what to do
about the fact that the employees had not followed the voter-
releasing instructions. Wilson told the supervisors to walk
further away from the training room door; they walked in the
aisle to the area of the lunch room door and conferred.32 Wilson
told the supervisors not to attempt to get the employees who
were already lined up at the training room door to go back to
work; he further told the supervisors to go and tell the other
employees who were working that they could go to vote at any
time that they wished. Cole testified consistently with Wilson;
Cole denied being within 10 feet of the training room door; and
he denied speaking to any employees who were waiting to vote.
I credit the testimonies of Wilson and Cole that they were in
the aisle only momentarily during the voting period, that they
were there to investigate reports that employees were not wait-
ing to be released by production lines to vote, and that they
stayed reasonably far away from the training room door. I
further credit Cole’s testimony that he did not speak to any
employees who were waiting to vote. Although neither
Burkhart nor George testified, Cole was credible in his testi-
mony that George stayed in the same area that he did. Under
these circumstances, including the circumstance that no witness
for the Charging Party could testify as to what the supervisors
may have said to the voters, I find that Objection 12’s claim
that the supervisors engaged in impermissible electioneering is
not supported by the evidence.
In fact, on brief the Charging Party does not contend that su-
pervisors engaged in electioneering. Rather, citing ITT Auto-
motive, 324 NLRB 609 (1997), the Charging Party claims that
the supervisors’ being in the aisle would have made the em-
ployees feel “under the glass” of the Employer. This is a con-
tention of improper surveillance, something that is not raised by
Objection 12. Assuming, however, that the surveillance allega-
tion is properly raised by that objection, I would nevertheless
overrule it.
Wilson and Cole were credible in their testimonies that they
were taken by surprise when they saw that the first-shift em-
ployees were proceeding individually to the polling area and
not waiting to be released in order. They were further credible
that the supervisors remained in the aisle only long enough to
decide what to do about it; also, as they deliberated, they
moved further away from the polling area, not closer. Such
conduct could not have given any employees the impression
that their voting was under surveillance. Moreover, ITT Auto-
motive, as cited by the Charging Party, is not authority for the
proposition that supervisors engage in objectionable conduct if
they are ever in a position to see employees going to, or coming
from, the polls. ITT Automotive, in turn, cites Performance

32 The Tr. 455, l. 15, is corrected to change “A” to “8.”
Measurements Co., 148 NLRB 1657, 1659 (1964), in which the
Board held that “the continued presence of the [employer’s]
president at a location where the employees were required to
pass in order to enter the polling place was improper conduct”
and that “by this conduct the [employer] interfered with the
employees’ freedom of choice in the election.” The administra-
tive law judge in ITT Automotive quoted this language of Per-
formance Measurements and, with Board approval, also turned
his decision on the “continued presence” of supervisors in the
polling area to find that the free choice of the employees had
been interfered with. In both ITT Automotive and Performance
Measurements, the employer agents had systematically main-
tained their presence in the areas leading to the polls throughout
all, or nearly all, of the voting periods. On brief, the Charging
Party does not mention Performance Measurements, and the
Charging Party excises from its quotations of ITT Automotive
that case’s emphasis on the element of the “continued pres-
ence” of employer agents in the polling area. Of course, the
absence of that critical element cannot be ignored. I will there-
fore recommend that the Board overrule the Union’s Objection
12.
CONCLUSIONS OF LAW
1. By the following acts and conduct Respondent has vio-
lated Section 8(a)(1) of the Act:
(a) Since on or about June 17, the Respondent has main-
tained in effect, and has enforced, a work rule prohibiting off-
duty employees from gaining access to its parking lots, gates
and other outside nonworking areas for the purposes of engag-
ing in protected solicitations or distributions.
(b) In August, Swander threatened an employee with plant
closure if the employees selected the Union as their collective-
bargaining representative.
(c) In October, McCavit interrogated an employee about his
union membership, activities, or desires.
(d) In October, McCavit threatened an employee with plant
closure if the employees selected the Union as their collective-
bargaining representative.
(e) In November, McCavit enforced against an employee the
Respondent’s work rule prohibiting off-duty employees from
gaining access to its parking lots, gates, and other outside non-
working areas for the purposes of engaging in protected solici-
tations or distributions.
(f) In November, Minor assaulted an employee because he
had engaged in protected concerted or union activities.
(g) In November, Minor enforced against an employee the
Respondent’s work rule prohibiting off-duty employees from
gaining access to its parking lots, gates, and other outside non-
working areas for the purposes of engaging in protected solici-
tations or distributions.
(h) In November, Barr enforced against an employee the Re-
spondent’s work rule prohibiting off-duty employees from
gaining access to its parking lots, gates and other outside non-
working areas for the purposes of engaging in protected solici-
tations or distributions.
(i) In November, Trego enforced against an employee the
Respondent’s work rule prohibiting off-duty employees from
gaining access to its parking lots, gates and other outside non-
working areas for the purposes of engaging in protected solici-
tations or distributions.
(j) In November, Cass interrogated an employee about his
union membership, activities, or desires.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 186
(k) On November 30, the Respondent issued a notice that
threatened employees with arrest if they violated its work rule
prohibiting off-duty employees from gaining access to its park-
ing lots, gates, and other outside nonworking areas for the pur-
poses of engaging in protected solicitations or distributions.
(l) On November 30, the Respondent promulgated, and
thereafter maintained in effect, a rule that prohibited employees
from going without management’s prior permission to any of
the Respondent’s facilities at which the employees did not work
for the purposes of engaging in protected solicitations or
distributions.

(m) On November 30, the Respondent promulgated, and
thereafter maintained in effect, a rule that prohibited solicita-
tions for the Union by employees who are in working areas
during nonworking times.
1. The Respondent has not otherwise violated the Act as al-
leged in the complaint.
2. The Union’s Objections 5, 6, 7, and 8 to conduct of the
Employer that affected the results of the December 3 Board
election are valid and shall be sustained.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended33
ORDER
The Respondent, Eagle-Picher Industries, Inc., Hillsdale
Tool and Manufacturing Co. Division, Hillsdale and Jonesville,
Michigan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with plant closure if they se-
lect the Union as their collective-bargaining representative.
(b) Interrogating its employees about their union member-
ship, activities, or desires.
(c) Maintaining in effect, or enforcing, any work rule prohib-
iting off-duty employees from gaining access to its parking lots,
gates and other outside nonworking areas for the purposes of
engaging in protected solicitations or distributions.
(d) Threatening its employees with arrest if, while off duty,
they enter its parking lots, gates, or other outside nonworking
areas for the purposes of engaging in protected solicitations or
distributions.
(e) Promulgating or maintaining in effect any rule prohibit-
ing employees from going without management’s prior permis-
sion to any of the Respondent’s facilities at which they do not
work for the purposes of engaging in protected solicitations or
distributions.
(f) Promulgating or maintaining in effect any work rule pro-
hibiting employees who are in working areas during nonwork-
ing times from engaging in solicitations for the Union.
(g) Assaulting any employee because he or she had engaged
in protected concerted or union activities.
(h) 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 effec-
tuate the policies of the Act.

33 If no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations, the findings, conclusions, and recom-
mended 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.
(a) Rescind its work rule prohibiting off-duty employees
from gaining access to its parking lots, gates, and other outside
nonworking areas for the purposes of engaging in protected
solicitations or distributions.
(b) Rescind its work rule prohibiting employees from going
without management’s prior permission to any of the Respon-
dent’s facilities at which the employees do not work for the
purposes of engaging in protected solicitations or distributions.
(c) Rescind its work rule prohibiting employees who are in
working areas during nonworking times from engaging in so-
licitations for the Union.
(d) Within 14 days after service by the Region, post at its fa-
cilities in Hillsdale and Jonesville, Michigan, copies of the
attached notice marked “Appendix.”34 Copies of the notice, on
forms provided by the Regional Director for Region 7, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facilities in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to each current
employee and former employee employed by the Respondent at
any time since June 17, 1998, the date of the first unfair labor
practice found herein.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification by a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the election held on December 3,
1998, in Case 7–RC–21284 is set aside and that that case is
severed from Case 7–CA–41632 and remanded to the Regional
Director for Region 7 of the Board for the purpose of conduct-
ing a new election at such time as he or she deems that the cir-
cumstances permit the employees’ free choice of a bargaining
representative.
[Direction of Second Election omitted from publication.]

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 ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
34 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
EAGLE-PICHER INDUSTRIES 187
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT threaten you with plant closure if you select In-
ternational Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America (UAW), AFL–CIO as
your collective-bargaining representative.
WE WILL NOT interrogate you about your union membership,
activities, or desires.
WE WILL NOT maintain in effect, or enforce against you, any
work rule prohibiting off-duty employees from gaining access
to our parking lots, gates or other outside nonworking areas for
the purposes of engaging in solicitations or distributions that
are protected by the Act.
WE WILL NOT threaten you with arrest if, while off duty, you
enter our parking lots, gates or other outside nonworking areas
for the purposes of engaging in solicitations or distributions that
are protected by the Act.
WE WILL NOT promulgate, or maintain in effect, or enforce
against you, any work rule prohibiting you from going without
management’s prior permission to any of our facilities at which
you do not work for the purposes of engaging in solicitations or
distributions that are protected by the Act.
WE WILL NOT promulgate or maintain in effect any work rule
prohibiting employees who are in working areas during non-
working times from engaging in solicitations for the Union.
WE WILL NOT assault you because you have engaged in pro-
tected concerted or union activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed to
you by Section 7 of the Act.
WE WILL rescind our work rule prohibiting off-duty employ-
ees from gaining access to our parking lots, gates, or other out-
side nonworking areas for the purposes of engaging in solicita-
tions or distributions that are protected by the Act.
WE WILL rescind our work rule prohibiting you from going
without management’s prior permission to any of our facilities
at which you do not work for the purposes of engaging in so-
licitations or distributions that are protected by the Act.
WE WILL rescind our work rule prohibiting employees who
are in working areas during nonworking times from engaging in
solicitations that are protected by the Act.
EAGLE-PICHER INDUSTRIES, INC., HILLSDALE TOOL
AND MANUFACTURING CO. DIVISION