Forest City Tool Co.

National Labor Relations Board - Board Decisions

Aug 12, 1977

231 N.L.R.B. 370 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Forest City Tool Company and International Union of
Electrical, Radio and Machine Workers, AFL-
CIO-CLC.I Case I I-CA-6839
August 12, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On April 27, 1977, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and the Respon-
dent filed a brief in support of the Administrative
Law Judge's Decision, and a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
' The name of the Union appears as corrected at the hearing.
DECISION
STATEMENT OF THE CASE
THOMAS A. RICCl, Administrative Law Judge: A hearing
in this proceeding was held at Statesville, North Carolina,
on March 27, 1977, on complaint of the General Counsel
against Forest City Tool Company, herein called the
Respondent or the Company. The complaint issued on
January 11, 1977, on a charge filed on December 3, 1976,
by International Union of Electrical, Radio and Machine
Workers, AFL-CIO-CLC, herein called the Union. The
only issue presented is whether an agent of the Company
violated Section 8(a)(1) of the Act. Briefs were filed by the
General Counsel and the Respondent.
Upon the entire record, and from my observation of the
witnesses, I make the following:
231 NLRB No. 70
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Forest City Tool Company, an Illinois corporation, is
engaged in the manufacture of machine parts in its
Hickory, North Carolina, facility. During the past 12
months, a representative period, it received goods at this
location valued in excess of $50,000 from points directly
outside the State. During the same period it shipped from
this one location goods valued in excess of $50,000 directly
to out-of-state locations. I find that the Respondent is
engaged in commerce within the meaning of the Act.
11. THE LABOR ORGANIZATION INVOLVED
I find that International Union of Electrical, Radio and
Machine Workers, AFL-CIO-CLC, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A very simple and plain question states the totality of
this case. Does an employer commit an unfair labor
practice under this statute when he stands inside his
parking lot and, as the employees start driving home, tells
them "move on," with the probable result that they may
feel less inclined to accept union leaflets being distributed
by organizers outside the lot?
At 4:30 p.m. shifts change in this plant; 15 or so
employees arrive to start work and somewhat over 100
leave. All these people, it would appear, park on the
company-owned lot. There is no fence around the place
but there is a driveway; it is wide enough, about 36 feet, for
three cars abreast to enter or leave at the same time. The
driveway opens into a street called 6th Avenue, deadend to
the left and reaching 23d Street to the right - 130 feet
away? 200? maybe 300 feet? - where a traffic stop sign
compels all vehicles to halt before proceeding either right
or left.
On November 16, 1976, two representatives of the
Union, A.C. Crotts and Jerry Beck, stood outside the
driveway at the change of shift and distributed to the
employees as they drove in and out about 130 union
solicitation leaflets with blank membership cards attached.
Harold Nicholas, the Company president, learned about
this later.
On November 29 the same two organizers were back,
again to give out solicitation letters and authorization
cards. As one of them said, "it was extremely cold," and
"windy." So much so in fact that they took turns standing
in the open, one at a time sitting in their car to warm their
hands.
Nicholas saw them and came out to the parking lot.
Crotts testified that Nicholas told him "to not get on
company property," and that he answered he had no such
intention. Nicholas' version of this is that the two
organizers were inside the lot and that he ordered them off.
It is a matter of no moment, for there is neither charge nor
evidence that anything wrong happened up to this point.
The traffic of the departing cars started to back up from
the stop sign at 23d Street, and 6th Avenue had a line of
autos reaching back to the parking lot driveway. In Crotts'
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FOREST CITY TOOL COMPANY
words: "after approximately a dozen cars entered Sixth
Avenue and went to 23rd Street, traffic began to back up to
the plant entrance and could not move on out because of
traffic on 23rd Street." Crotts' testimony is that Nicholas,
"in a loud voice," then called out "move on and don't
block the traffic." Beck, the other union agent, also quoted
Nicholas as saying "move on, don't hold up the traffic."
Nicholas put it differently. He said the organizers were
standing in the driveway "running in front of cars to stop
them" and that he told them "they were going to get killed
if they didn't get away from those cars." He also testified
that because the employees were leaving "in single file"
and "impatient to get out," he told them "they could go
around the other side if they didn't want to stop which they
started to do." He explained, at the hearing, that this way
the employees "could double and gone on down." Nicholas
did not in haec verba deny having used the words "move
on."
In 10 or 15 minutes the whole thing was over. This time,
unlike on November 16, the union agents succeeded in
distributing only about 30 cards altogether.
Conclusion
Whatever the exact words Nicholas spoke during those
few minutes, I find, in the circumstances of this case, that
he did not commit an unfair labor practice, or, in the words
of the statute, he did not "interfere with, restrain, or
coerce" the employees. Crotts did not do as well that day in
his distribution of union literature as he had 2 weeks
earlier. But it was cold outside, the employees, like the
union agents themselves, would tend to keep their car
windows up, and when backed up in the lot because of the
traffic jam, they were likely to become impatient about
getting home, as workmen often are. For Nicholas to have
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions. and recommended Order herein shall, as provided in Sec.
called out that they could as well make a double line was
also a reasonable thing to do; after all, 6th Avenue is a
deadend street, there was no likely traffic the other way on
a two lane avenue, and some of the drivers might well have
intended to turn left at 23d Street instead of right.
Did Nicholas also hope, or intend, that if the traffic
flowed a little faster fewer of his employees would bother to
open their windows and accept the union literature? I think
this is a reasonable assumption. When Crotts, ordered
away from the company property, told the boss, as
Nicholas testified, that he, Nicholas, was not "fair" to the
employees, the president retorted he did not "give a damn"
what Crotts thought. It would appear, therefore, that
Nicholas, for the least, was not receptive to the Union's
organizational campaign.
Does it follow from this that his words can be called an
"order" to the employees, as the complaint paraphrases
them? I think not. At best Nicholas may have been giving
voice to his opinion that the employees did not need a
union, that they would be better advised to continue their
employment relationship with him as in the past without
necessity of collective bargaining. If he had this thought in
mind, it was one that the statute guarantees him, just as it
protects employees against interference and coercion.
One could continue at length as to reasons why this or
that does not constitute an unfair labor practice. But
decisions are not to be written that way. No convincing
argument is advanced by the General Counsel to support
the complaint, and the Board precedent he cites is
distinguishable and inapposite.
ORDER
I hereby recommend that the complaint be, and it is,
hereby dismissed.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
371