Fgi Fibers, Inc.

National Labor Relations Board - Board Decisions

Jun 20, 1986

280 N.L.R.B. 473 (N.L.R.B. 1986)

FGI FIBERS 473
FGI Fibers , Inc. and Bakery, Laundry, Beverage
Drivers and Vending Machine Servicemen and
Allied Workers of Albany and Vicinity Local
No. 669 International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America, Petitioner . Case 3-RC-8542
20 June 1986
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND STEPHENS
The National Labor Relations Board, by a three-
member panel , has considered objections to an
election held 5 and 6 April 1984 and the hearing
officer's report recommending disposition of them.
The election was conducted pursuant to a Stipula-
tion for Certification on Consent Election executed
on 20 March 1984. The tally of ballots shows 21
for and 28 against the Petitioner, with 2 challenged
ballots, an insufficient number to affect the results.
The Board has reviewed the record in light of
the exceptions and briefs, and has decided to affirm
the hearing officer's findings and recommendations
as modified below.
The hearing officer recommended sustaining the
Petitioner's Objection 5(a) and an unnumbered ob-
jection and setting the election aside. The hearing
officer recommended overruling the Petitioner's
other objections in issue.' Objection 5(a) alleges
that the Employer threatened to eliminate its open
door policy if the Union won the election, and the
unnumbered objection alleges that the Employer
adopted for discriminatory reasons a rule prohibit-
ing talking about the Union in the workplace or on
worktime. We find merit in the Employer's excep-
tion to the hearing officer's finding with respect to
Objection 5(a), but we affirm, for the reasons stated
below, his finding with respect to the unnumbered
objection, and we find that the conduct on which
the latter objection is based warrants setting aside
the election.
Objection 5(a)
The facts show that the Employer maintained a
widely publicized and utilized open door policy
which gave employees the right to discuss any
topics at any time with supervisors and manage-
ment officials. Three employee witnesses testified
that two company officials stated in employee
shiftwide meetings a few weeks before the election
that "there would not be any more open door
policy if the Union was voted in because they'd
have to go through union procedures, like griev-
ances." The Employer distributed campaign litera-
ture which contained the following statements:
The Company is not in favor of a union in this
plant because
1. The Company likes its ability to deal di-
rectly and on a personal basis with its employ-
ees. A union would require dealing with our
employees through a shop steward, thereby
losing personal relationships.
2. In the running of our business we have
been able to communicate and function in a
relatively informal manner . Placing a union in
between management and employees will for-
malize the structure to the point where both
the company and the employees will fmd it
much more difficult to work and communicate
effectively.
The hearing officer found from the foregoing
testimonial and documentary evidence that the Em-
ployer unlawfully threatened to "retaliate against
its employees' selection of a union representative
by cutting off the employees' Section 9(a) right to
deal directly with management."2 In support of
this finding, he emphasized the Employer's failure
to make reference to the employees' Section 9(a)
right to take up grievances directly even if they
have union representation.
The Board has recently held, in Tri-Cast, Inc.,3
that where, as here, an employer proceeds to tell
its employees about changes in its open door policy
which will result from their selection of a bargain-
ing agent, such statements "cannot be characterized
as an objectionable retaliatory threat to deprive
employees of their rights but rather is nothing
more or less than permissible campaign conduct."4
Further, as Section 9(a) contemplates changes in
the manner in which employers may deal with rep-
resented employees, we find, contrary to the hear-
ing officer, that no negative inference should be
drawn from the Employer's failure to refer its em-
ployees to that section of the Act.5 Accordingly,
we shall overrule Objection 5(a).
' At the heanng the Petitioner withdrew Objections 1, 4, 6, 7, 8, 9, 10,
and II and portions of Objections 2, 3, and 5, and the hearing officer
therefore made no rulings on them The hearing officer overruled the re-
maining Petitioner objections (portions of Objections 2, 3, and 5) except
for Objection 5(a) and the unnumbered objection discussed below. The
Petitioner filed exceptions to the hearing officer 's overruling of the un-
withdrawn portions of Objections 2, 3, and 5 We find no merit in those
exceptions
8 Mead Nursing Home, 265 NLRB 1115, 1116 (1982)
9 274 NLRB 377 (1985)
4 Id at 377
s The proviso to Sec 9(a) specifically provides that employees have
the right to present grievances to their employer without union interfer-
ence "as long as the adjustment is not inconsistent with the terms of a
collective-bargaining contract or agreement then in effect Provided fur-
ther, That the bargaining representative has been given opportunity to be
present at such adjustment "
280 NLRB No. 54
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Alleged No-Talking Rule
The record evidence shows that prior to this or-
ganizing campaign the Employer had a no-solicita-
tion rule which was included among its written
work rules and regulations.6 George Scavelli, the
Employer's vice president, referred to that no-so-
licitation rule during his talks at the employee shift
meetings in March. In addition, Scavelli read ver-
batim the following portion from a management
electioneering guide, which related to prohibited
and permissible actions by supervisors:
Must not interfere with employees who dis-
tribute union literature in non-work areas
during non-work periods. For example, lunch
periods, rest periods et cetera. Remember the
employees may not distribute union literature
during working time or in work areas where a
plant rule in the interest of efficiency and pro-
ductivity prohibits such a distribution.
The hearing officer also found, however, based
on mutually corroborative testimony of employee
witnesses whom he credited, that Scavelli ex-
plained the rule to the employees as a rule that
would bar talk about union matters "in work areas
or on work time" (emphasis added) and made it
clear that they could not engage in union talk at
their work stations. The rule as thus explained
would, as a practical matter, bar such discussions
when employees were returning from breaks and
even in the absence of any particular showing of
interference with production or discipline. The
hearing officer further found that, prior to the or-
ganizing campaign , the Employer had imposed no
ban on employees ' talking at their work stations,
and there was no evidence that such conversations
had caused any disruption of work that would jus-
tify the broad ban. We agree with the hearing offi-
cer that, in these circumstances , the vice president's
oral explanation of the no-solicitation rule at an
employee meeting constituted objectionable con-
duct because the rule was both overly broad7 and
" The Employer 's written no-solicitation rule states as follows
6. Employees have the right under the National Labor Relations
Act to join or refuse to join a labor organization and to engage in or
refuse to engage in efforts to organize a labor organization . Howev-
er, work time is for working and employees may not use their paid
work time, nor interfere with other employees during their paid
work time in their exercise of these rights . There will be no distnbu-
don of literature , pamphlets or printed material of any land on com-
pany property by persons employed or not employed by the compa-
ny.
Failure to comply with item 6 will result in being discharged from
employment (Emphasis in original ]
7 Our Way, Inc., 268 NLRB 394 (1983), Stoddard-Quirk Mfg. Co, 138
NLRB 615, 617 (1962). Unsupported speculation that talk about unions,
discriminatory." The absence of evidence that the
rule was actually enforced "does not insulate it
from the proscriptions of the Act." Paceco, 237
NLRB 399, 401 fn. 11 (1978).
We fmd that the overly broad and discriminatory
no-solicitation rule promulgated at a meeting of
unit employees interfered with the election held 5
and 6 April 1984 and that the election should
therefore be set aside and a new election directed.
[Direction of Second Election omitted from pub-
lication.]
CHAIRMAN DOTSON, dissenting.
Contrary to my colleagues, I would reverse the
hearing officer's finding that Vice President Sca-
velli promulgated an objectionable no-talking rule.
The facts show that prior to the union organizing
campaign the Employer published a no-solicitation
rule recognizing the right of its employees to
engage in organizing activities that does not inter-
fere with working employees. The sole objection-
able conduct found here involves Scavelli's at-
tempts to clarify to employees that the Employer's
written rule meant that employees should not carry
back breaktime union discussions to disrupt work-
ing employees. Contrary to the majority, I con-
clude therefrom that Scavelli did not promulgate a
no-talking rule but merely clarified the Employer's
existing written rule.I
Furthermore, Scavelli's admonishing employees
not to disrupt coworkers is plainly more reflective
of the Employer's legitimate desire to maintain pro-
duction than that of antiunion motivation where, as
here, this is the sole conduct found objectionable,
and there is simply no evidence of antiunion
animus on the part of the Employer. Thus, I find
inapposite cases cited by my colleagues and the
hearing officer involving overly broad no-solicita-
tion or no-talking rules which the Board found had
been promulgated to interfere with union organiz-
ing or other protected employee activities, or in
which such rules were used as a backdrop for un-
lawful threats or warnings to known union sup-
porters. Accordingly, for all these reasons, I would
reverse this finding of the hearing officer and certi-
fy the election results.
as opposed to other sorts of conversations , would somehow interfere
with plant discipline is not the sort of business justification that would
save an overly broad rule.
6 Maestro Cafe Associates, 270 NLRB 106 fn. 2 (1984)
'Unlike my colleagues, I do not view Scavelli's clarification as a
broader prohibition than the written no-solicitation rule which I note is
not even alleged as objectionable