Fremont Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Jun 10, 1976

224 N.L.R.B. 597 (N.L.R.B. 1976)

FREMONT MANUFACTURING CO 597
Fremont Manufacturing Company, Inc. and United
Steelworkers of America, AFL-CIO, and Progress
Team , Party in Interest . Case 17-CA-6688
June 10, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On January 26, 1976, Administrative Law Judge
Robert E Mullin issued the attached Decision in this
proceeding Thereafter, Respondent filed exceptions
and counsel for the General Counsel filed an answer-
ing brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein
1 Respondent excepts to the Administrative Law
Judge's finding that Supervisor Jenkins observed and
was aware of the employees' union activities on July
7, 1975 We find merit to that exception The record
shows that Jenkins did observe certain of the em-
ployees leave the parking lot in their cars (and, later,
saw one of them drive back past it) But such facts
alone do not give rise to an inference that Jenkins
knew that they were driving towards a rendezvous
for the purpose of discussing the Union, as the Ad-
ministrative Law Judge found There is no evidence
that he or any other representative of Respondent
witnessed the meeting about the Union which these
employees held after they had driven away from the
' The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc 91
NLRB 544 (1950), enfd 188 F 2d 362 (CA 3 1951) We have carefully
examined the record and find no basis for reversing his findings
We note that at the end of his discussion of "The Facts," the Administra-
tive Law Judge inadvertently referred to "Jenkins as Jensen
Respondent further contends that the Administrative Law Judge incor-
rectly found that Supervisor Anderson corroborated the testimony of em
ployee Killion that she had left her machine on July 10 to solicit Anderson s
assistance in repairing a malfunction in the machine The record establishes
that Anderson in fact corroborated Killion's testimony concerning the mal-
functioning of her machine but Anderson was unable to recall whether
Killion had sought him out to complain about it Thus while Anderson s
testimony does not corroborate Killion's in all respects , neither does it con-
tradict it Accordingly, we shall affirm the Administrative Law Judge's find-
ings based on Killion's uncontradicted testimony concerning the events of
July 10
lot and out of sight Consequently, we do not adopt
the finding that Jenkins observed the employees'
union activities on that date Nevertheless, the record
does establish, as found by the Administrative Law
Judge, that Respondent gained knowledge of em-
ployees' union activities on July 3, when Jenkins ob-
served employee Norma Killion soliciting the signa-
tures of fellow employees to union authorization
cards
2 Respondent contends that the Administrative
Law Judge's finding that it unlawfully dominated the
Progress Team is not within the allegations contained
in the complaint The complaint alleges that Respon-
dent rendered unlawful assistance to the Progress
Team, "by urging and soliciting employees to desig-
nate two persons in the employ of the Respondent to
comprise an entity to be called the `Progress Team,'
which would serve to collectively represent the em-
ployees regarding their terms and conditions of em-
ployment with the Respondent," and concludes that
by such conduct Respondent violated Section
8(a)(2)
We find that these allegations are sufficient to
bring the issue of domination within the scope of the
complaint and, further, that the record facts, fully
litigated before the Administrative Law Judge, estab-
lish that Respondent did unlawfully dominate the
Progress Team in violation of Section 8(a)(2) and (1)
of the Act See STR, Inc, d/b/a Sound Technology
Research, 221 NLRB 1235 (1975) Thus, the record
establishes that Respondent conceived, suggested,
and abetted the formation of the Progress Team to
discuss with Respondent's employees terms and con-
ditions of employment and, further, afforded the
Progress Team full financial and secretarial assis-
tance In addition, Respondent set up the selection
procedure for choosing the two Progress Team
"members," one of whom was a supervisory employ-
ee through whom Respondent could effectively con-
trol and dominate the affairs of the Progress Team
Accordingly, we adopt the Administrative Law
Judge's finding that Respondent unlawfully domi-
nated the Progress Team We shall, however, amend
the Administrative Law Judge's recommended Order
by including a provision permitting the continuation
of those benefits instituted by Respondent as a result
of its discussions with the Progress Team
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that the Respondent, Fre-
224 NLRB No 79
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mont Manufacturing Company, Inc, Fremont, Ne-
braska, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified
Substitute the following paragraph for paragraph
2(b(b)
Withdraw all recognition from the Progress
Team as a representative of any of its employees for
the purpose of dealing with the Fremont Manufac-
turing Company, Inc , concerning grievances, labor
disputes, wages, rates of pay, hours of employment,
or other conditions of work and completely dises-
tablish the Progress Team as such representative,
Provided, however, that nothing in this Order shall
require the Respondent to vary or abandon any wag-
es, hours, or other substantive benefits established as
a result of discussions with the Progress Team, or to
prejudice the assertion by its employees of any rights
they derived as a result of such discussions, and fur-
ther provided, that nothing herein shall be construed
as prohibiting its employees from forming, joining, or
assisting any labor organization "
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent, a corporate subsidiary of The Oilgear
Company (herein Oilgear), maintains a plant in Fremont,
Nebraska, where it is engaged in the manufacture of hy-
draulic components Oilgear, which has its headquarters in
Milwaukee, Wisconsin, also maintains another plant in
Longview, Texas In the course of its operations in Fre-
mont, the Respondent annually purchases goods and mate-
rials valued in excess of $50,000 directly from suppliers
located outside the State of Nebraska Its annual sales of
finished products shipped directly to customers located
outside that State also exceeds $50,000 On the foregoing
facts, the Respondent concedes, and it is now found, that
Fremont Manufacturing Company, Inc, is engaged in
commerce within the meaning of the Act
II THE CHARGING PARTY INVOLVED
United Steelworkers of America , AFL-CIO, herein
Union, is a labor organization within the meaning of the
Act
III THE ALLEGED UNFAIR LABOR PRACTICES
DECISION
STATEMENT OF THE CASE
ROBERT E MULLIN, Administrative Law Judge This case
was heard on October 28 and 29, 1975, at Fremont, Ne-
braska, pursuant to charges duly filed and served,' and a
complaint issued on September 8, 1975 The complaint pre-
sents questions as to whether the Respondent violated Sec-
tion 8(a)(1), (2), and (3) of the National Labor Relations
Act, as amended In its answer, duly filed, the Respondent
conceded certain facts with respect to its business opera-
tions, but it denied all allegations that it had committed
any unfair labor practices
At the hearing the General Counsel and the Respondent
were represented by counsel 2 All parties were given full
opportunity to examine and cross-examine witnesses, and
to file briefs The parties waived oral argument and on
December 5, 1975, the General Counsel and the Respon-
dent submitted briefs 3
Upon the entire record in the case, including the briefs
of counsel, and from my observation of the witnesses, I
make the following
A Background and Sequence of Events
The Respondent's plant in Fremont is located in a new
building, the construction of which was begun in June 1974
and completed in January 1975 Manufacturing operations
did not begin until after the building was finished Howev-
er, a cadre of supervisory personnel had been at the plant
for some months prior thereto At the time of the events
now in question the Respondent had about 30 employees
Early in July 1975,4 employee Norma Killion initiated a
drive to organize the Responent's production and mainte-
nance workers On July 10, Killion was discharged Wheth-
er her termination was discriminatory is an issue in this
case
Early in August, the Respondent distributed a handbook
announcing the establishment of various rules and practic-
es as to hours, wages, and working conditions This manual
also provided for the establishment of a "Progress Team "
A day or two after the distribution of the handbook the
plant manager supervised the election of two employees to
the Progress Team The General Counsel contends that the
latter is a labor organization and that it was illegally assist-
ed and dominated by the Company The Respondent de-
nies this contention in its entirety The employee handbook
also set forth several plant rules on solicitation and distri-
bution which are now in controversy
i The original charge was filed on July 29, 1975 An amended charge was
filed on September 3, 1975
2 The Party in Interest, although served with a copy of the complaint did
not appear However, Gary Anderson, one of the two elected members of
the Progress Team, appeared in response to a subpena and testified for the
General Counsel
3 Attached to the General Counsel's brief was a motion to correct certain
stenographic errors in the transcript The Respondent having voiced no
objection to the proposed corrections and the motion appearing to have
merit, it is now granted and the record corrected in accordance therewith
B The Supervisory Hierarchy
At the time in question, John B Slack was the general
manager of the Respondent's facility at Fremont John I
Leggett was the plant manager, and Wallace Jensen was
the manager of manufacturing
4 All dates hereinafter are for the year 1975 unless otherwise noted
FREMONT MANUFACTURING CO 599
The General Counsel contends that Jess Jenkins was
also a supervisor within the meaning of the Act This was
denied by the Respondent However, when on the stand,
and when undergoing cross-examination by the General
Counsel, Plant Manager Leggett testified that Jenkins was
the quality control manager and, as such, was the supervi-
sor of the hourly rated inspection personnel Leggett fur-
ther testified that Jenkins had the authority to reprimand
employees, allow them to have time off and effectively to
recommend discharges and wage increases Jenkins was
never called to the stand On the testimony of Plant Man-
ager Leggett, it is now found that Jenkins was a supervisor
within the meaning of the Act
C The Facts
Late in June, employee Norma Killion contacted John
Elam, a representative of the United Steelworkers of Amer-
ica, AFL-CIO, to solicit his help in organizing the work
force at the Respondent's plant Soon thereafter, Elam
came to Killion's home where he had her sign an authori-
zation card in the Union and supplied her with a number
of additional cards to distribute among her coworkers at
the plant
On July 3, a Thursday, Killion induced Diana Smith, a
coworker, to sign an authorization card while both of them
were in the plant lunchroom during the noonday break
During that same break she talked about the Union with
employees John Cosseboom, James Peterson, and Wayne
Anderson The latter told her that he was uninterested
Cosseboom and Peterson, however, manifested a willing-
ness to sign cards Both of them did so, Cosseboom later
that day, and Peterson on July I 1
After the plant closed at 4 30 p in on July 3, Killion met
Cosseboom and employee Lois Kimbrell in the plant park-
ing lot where she secured their signatures on authorization
cards The execution of their signatures took place beside
Killion's automobile and was observed by Supervisor Jen-
kins While the two employees were filling out the cards for
Killion, Jenkins walked past them on the way to his car,
looked at the three of them as he did so, and, after he got
in his car, drove past them as he left the parking lot
On July 7, the following Monday, the plant having been
closed on the July 4 weekend, Killion resumed her organi-
zational efforts During the course of the shift she arranged
with several of her fellow employees that at the end of the
day she would meet with them along a country road a short
distance from the Respondent's facility Soon after 4 30
p in that afternoon, and at a time when most of the other
employees had already departed, Killion and eight of her
coworkers gathered in the plant parking lot Killion and
her cohorts then agreed to rendezvous at a point about a
half mile east of the plant where they could meet and sign
authorization cards Thereafter, as Killion left the parking
lot, she was followed by six other cars in which employees
Bonnie Peterson, Sharon Bittner, Marilyn Capron, Mardell
Synovec, Mary Ann Stodola, Darlene Smith, Marlene Hill,
and Harriet Odle were riding or driving This formidable
procession proceeded in an easterly direction along a little
traveled country road that was known as Old Highway 8
At the time, only Killion and Peterson, who rode in
Killion's car, lived east of the plant All the other women
lived at various points west of the plant so that they did not
normally follow Killion as they left work As a conse-
quence, after their meeting along the roadside where the
eight employees signed authorization cards for Killion, all
those who lived west of the Respondent's location turned
around and drove back past the plant as they proceeded to
their homes
Employees Bittner and Killion credibly testified that, as
the entourage of cars led by Killion was leaving the park-
ing lot that afternoon, Supervisor Jenkins was standing in a
plant doorway at one of the loading docks and observed
them as they left Bittner further testified, credibly, that
about 20 minutes later when she and the others who lived
west of the plant returned from their roadside organiza-
tional meeting and proceeded past the plant on the way to
their homes, Jenkins was still at the plant doorway only a
short distance from the road, and observed them again
The General Counsel contended that from this testimony it
was evident that Jenkins had knowledge of the union activ-
ity of Killion and her coworkers The testimony of both
Killion and Bittner was credible in this connection and it
was neither denied nor contradicted by any witness for the
Respondent Supervisor Jenkins, the logical witness to re-
fute any inference that through him the Company secured
knowledge of the employees' organizational activities, was
never called to the stand and no explanation was offered
for the failure to produce him as a witness Under these
circumstances, it is now found that, on the basis of Jenkins'
observations on July 3 and 7, the Respondent thereupon
became aware of the employees' interest in the Steelwork-
ers
Plant Manager Leggett testified that in July 1974, Gener-
al Manager Slack asked that he prepare a draft of plant
rules and regulations for the guidance of employees Leg-
gett testified that pursuant to this request he prepared the
draft of such a manual which he turned over to Slack at
some time in August or September 1974 According to Leg-
gett, from that time until mid-July 1975 he heard nothing
further about such a handbook He testified that on about
July 17, 1975, however, Slack handed him a revision of the
handbook which had just been received from Oilgear's cor-
porate headquarters in Milwaukee According to Leggett,
this new version of the rules, which he then saw for the first
time, contained several substantially liberalized employee
benefits
These were clauses providing for three additional paid
holidays, a guarantee that an employee reporting for duty
would receive at least 2 hours of work, reimbursement for
any wage losses incurred while serving on jury duty, be-
reavement pay whereby an employee might receive up to 3
days off with pay in the event of a death in the employee's
immediate family, and a bid procedure whereby employees
could request reassignments and reclassifications The revi-
sion also provided for what was to be known as a "Progress
Team "
Leggett testified that the Company had two to three
meetings with the employees during the months of July
and August At a meeting held on July 24, during which
both Slack and Leggett spoke to the employees, one em-
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee present, Sidney Ellis, asked whether a union was
attempting to organize the employees Ellis testified that
although Slack disclaimed any knowledge of such a devel-
opment, Leggett stated that he had heard some rumors
about organizational activity involving the Fremont plant
Early in August, Slack and Leggett held another meeting
with the employees On this occasion, copies of the em-
ployee handbook were distributed to all the employees for
the first time During this meeting, both Slack and Leggett
spoke about the Progress Team and the function which the
Respondent hoped that it would perform Slack testified
that he told the employees that the Progress Team would
be especially helpful in a new plant such as the Fremont
facility because it would enable them to voice their com-
plaints to that organization, rather than having to take
their grievances directly to management Leggett indicated
that he would be discussing the matter of the Progress
Team with each of them very shortly and that an election
would be held for the two members of that Team
The day after the plantwide meeting, Leggett contacted
each of the approximately 30 employees then working for
the Respondent at the plant to explain in greater detail the
Company's objective with respect to establishing the Prog-
ress Team He testified that he told each of the employees
that the Progress Team would try to provide a line of com-
munication for those who would feel more comfortable in
letting the new committee take up their complaints with
management rather than requiring each individual to dis-
cuss the matter with his supervisor Within a day or two
thereafter, at Leggett's behest, ballots were given to each of
the employees, who were then asked to designate two rep-
resentatives for the Progress Team After the ballots had
been marked, they were counted by Leggett and two of the
employees Gary Perrey and Gary Anderson received the
most votes and, as a result, were designated by Leggett as
the Progress Team At the time Anderson was a super-
visor 5
Shortly after the election, Leggett met with Anderson
and Perrey, the two newly designated members of the
Progress Team According to Leggett, during the course of
this and subsequent meetings, he and the Team discussed
(1) suggested changes in the Company's bid procedure on
upgrading jobs, (2) what the Company's policies should be
as to attendance, absenteeism, and tardiness, (3) the
Team's preference as to a "floating" holidays,6 (4) several
complaints that the Team had received from the employees
as to the plant timecards and the fact that some employees
felt they were not getting paid for all the time they worked,
and (5) a proposal by Perrey that the Company establish a
payroll deduction system whereby an employee could au-
thorize withholding of part of his paycheck for use in pur-
chasing tools which the employee had to supply in working
5 When Anderson testified at the hearing on October 28 1975 he stated
that he had been a supervisor for about 3 months, so that he had had that
status from some time in late July or early August
6 The employee handbook had designated seven specific days in the year
as paid holidays and added what it described as two `floating paid holi
days, with the provision that the Company would select one of those float-
ing days and that the Progress Team would select the other Leggett testified
that during their first meeting with the Team the latter selected the day after
Christmas as their preference
at the plant Leggett testified that this last suggestion was
subsequently adopted by the Company Other suggestions
made by the Progress Team were also accepted by manage-
ment These related to proposals on the bid procedure in
reclassifying jobs, and the plant attendance policy As a
result of the discussions which Leggett had with the Prog-
ress Team in August , the Company subsequently issued
two amendments to the Employee Handbook, one on a
substantially revised bid procedure that was effective Au-
gust 27, and the other on a new attendance policy that was
effective on September 2
The Respondent 's officials disclaimed having had any
knowledge of the Union 's organizational campaign until
late in July Leggett initially testified that he first learned of
the Union 's attempt to organize the employees on or about
August 1 when he secured a handbill which the Union was
distributing Later, however , he conceded that at the meet-
ing with the employees on July 24, he might have acknowl-
edged having heard something about the Union As has
been found earlier, employee Ellis testified that on July 24,
Leggett stated, in response to a question from Ellis, that he
had heard "rumors" about some organizational activity at
the plant Slack denied any knowledge of the Union until
about July 31, when handbills were distributed at the plant
entrance According to Slack, upon seeing a copy of this
handbill, he questioned some of the employees as to what
they knew about it He further testified that he asked sever-
al of them " who in the hell is passing these out9" and
that one of the male employees told him that it was Norma
Killion
Neither Slack nor Leggett was a persuasive or convinc-
ing witness in his categorical denials of knowledge about
the employee union activities which occurred prior to July
31 The credible and uncontradicted testimony , related ear-
lier herein , as to the activity of Supervisor Jensen during
the early part of that month establish that by the late af-
ternoon of July 7, Jensen, and , therefore , the Respondent,
had reason to believe that a number of the employees were
involved in a union campaign
D The Alleged Violations of Section 8(a)(2), Findings and
Conclusions in Connection Therewith
In its brief, the Respondent concedes that it assisted in
the formation of the Progress Team, but it denies that in so
doing it attempted to dominate or control its employees
The General Counsel alleges that the Progress Team is a
labor organization within the meaning of the Act and that
the Respondent established, supported, and dominated it
in violation of Section 8(a)(2) and (1)
The contention of the General Counsel that the Progress
Team is a labor organization within the meaning of the Act
is plainly well founded Section 2(5) of the Act defines a
"labor organization" as "any organization of any kind, or
any employee representation committee or plan, in
which employees participate and which exists for the pur-
pose, in whole or in part, of dealing with employers con-
cerning grievances wages, rates of pay, hours of em-
ployment, or conditions of work " This definition is so
extremely broad that it has been found to encompass al-
most any kind of employee group, committee, or plan that
FREMONT MANUFACTURING CO 601
is established to represent plant personnel Here, the defin-
ition clearly embraces the Progress Team The recitation of
subjects covered in the meetings which the Team had with
Leggett, set forth above, discloses that, in practice, these
discussions were solely concerned with employee griev-
ances and proposed modifications of the terms and condi-
tions of employment of the Respondent's employees The
activities of the Progress Team and the Respondent's man-
agement, set out above, clearly establish that the Progress
Team was "dealing with" the Company as to matters with-
in the scope of Section 2(5) of the Act N L R B v Cabot
Carbon Company, 360 U S 203, 210-218 (1959), N L R B
v The Chardon Telephone Company, 323 F 2d 563, 564
(C A 6, 1963), Pacemaker Corporation, an Indiana Corpora-
tion v NLRB , 260 F 2d 880, 883 (C A 7, 1958) In so
doing, the Progress Team was acting as, and must be held
to constitute, a labor organization within the meaning of
the Act
As noted above, the Respondent concedes responsibility
for the establishment of the Progress Team Its creation
was plainly a unilateral act of management After an-
nouncing to the employees that the Respondent proposed
to institute a program to improve communications between
the Company and the employees, Plant Manager Leggett
conducted the election for members of the Team, helped
count the ballots, and announced the results of the election
in which one of the two members elected was Gary Ander-
son, a plant supervisor Throughout its existence, the Com-
pany has controlled the operations of the Progress Team It
is evident that insofar as the latter needed any financial,
secretarial, or clerical assistance, it received this from the
Respondent Nor is there any dispute that the usual indicia
of an independent labor organization, such as a constitu-
tion, bylaws, membership requirements, and dues, or other
means of independent financing, are completely lacking
On the basis of the foregoing facts, it is now found that the
Progress Team was established, supported, and dominated
by the Respondent, that it is inherently incapable of ever
fairly representing the employees, and that, by the course
of conduct found above, the Respondent has violated Sec-
tion 8(a)(2) and (1) of the Act STR, Inc, d/b/a Sound
Technology Research, 221 NLRB 496 (1975) See also
N L R B v Newport News Shipbuilding & Drydock Co, 308
U S 241, 250-251 (1939), Indiana Metal Products Corp v
NLRB, 202 F 2d 613, 621 (C A 7, 1953), Harrison Sheet
Steel Co v N L R B, 194 F 2d 407, 409-410 (C A 7, 1952),
N L R B v Western Reserve Telephone Co, 323 F 2d 564,
566 (C A 6, 1963)
E The Discharge of Norma Killion, Findings and
Conclusions With Respect Thereto
Killion was discharged on July 10, according to the Gen-
eral Counsel, for discriminatory reasons This allegation is
denied by the Respondent, according to whom Killion was
discharged for cause
Plant Manager Leggett testified that Killion was termi-
nated for "inattentiveness, failure to remain at [her] work
station, [and] leaving [her] machine while it was in opera-
tion " In support of this position, Leggett testified that late
on the afternoon of July 9, General Manager Slack asked
that he make a note of where Killion was at the time Ac-
cording to Leggett, when he did so he saw that she was
some distance away from her machine and talking to the
shipping clerk, one Darrell Hendricks Leggett testified
that the next morning he spent about a half hour observing
Killion and that during that period she again spent some
time away from her machine According to Leggett, shortly
after noon that day he discussed Killion with Wallace Jen-
sen, manager of manufacturing Leggett testified that he
told Jensen to observe the employee closely and to note
that she was wasting time by visiting other employees and
being away from her machine when it was running Soon
thereafter, Leggett instructed Jensen that he was to inform
Killion that she was being discharged Jensen complied
with this order and the employee was terminated that af-
ternoon Both Leggett and Slack denied having any knowl-
edge at that time that any employee had an interest in the
Union
During the period in question Killion was operating
what was known as a Norton flat lap This was a large
machine used in grinding parts to specified degrees of
smoothness She had had considerable experience in the
shop with this machine, as well as with turret lathes She
credibly testified that she had never been criticized for any
of her work for the Company from the time she was hired
the preceding March She further testified, credibly, that
on two different occasions Jensen had praised her work
According to Killion, in the latter instance, only a week to
10 days before her discharge, Jensen had told her that,
when skilled machining and tolerances were critical, she
was one of only four or five employees in the shop that he
could trust to do such a job properly Leggett himself con-
ceded that prior to his conversation with Slack on the af-
ternoon of July 9 he had never noticed any problems with
Killion's work, and that until then he had considered her
work performance satisfactory
Killion testified at length with respect to those occasions
on July 9 and 10 when she was away from her machine and
allegedly derelict in her duties According to the employee,
on the afternoon of July 9, when Slack and Leggett ob-
served her talking with employee Hendricks, she had gone
to the latter, who was engaged in painting some equipment,
to request that he turn on one of the plant exhaust fans
because the paint fumes were giving her a headache and
causing nausea She further testified that both that af-
ternoon and the next day she was having trouble with the
flat lap machine, that it was not working properly and that,
as a result, she had to secure help from Gary Anderson,
who was then responsible for its maintenance, and secure
his assistance in making adjustments on the stone Accord-
ing to Killion, during the last 2 days of her employment,
Anderson told her that the malfunctioning of the flat lap
was due to inability to "hold its dressing " She testified that
Anderson told her that this difficulty arose because the
stone had once been frozen and that he had asked the
Company to purchase a new diamond to dress the stone,
but that the Company had not yet secured the diamond
Anderson corroborated much of Killion's testimony
about the difficulties the employee was having with the flat
lap According to Anderson, due largely to the poor quality
of the stone which it had, the machine was not working
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
properly Anderson acknowledged that during the course
of both July 9 and 10, Killion sought him out on several
occasions to complain about the machine and to solicit his
assistance He further testified that Manager Jensen was
aware of the difficulties they were having with the flap lap
machine and he thought that he discussed them with Jen-
sen at some point prior to July 10
Killion testified that when Jensen informed her that she
was being discharged she asked for the reason and that his
only response was "Well, you haven't done anything all
day but walk around " According to Killion, she protested
"Wally, the machine has broken down and I was after
Gary to fix it," and then added, "You've never had any
complaints about my work before " Killion testified that
Jensen did not make any effort to respond to these com-
ments on her part Instead, he abruptly concluded the con-
versation with the declaration "We're going to let you go
anyway " Jensen was called as a witness for the Respon-
dent, but was asked no questions about this conversation
Killion's testimony, therefore, stands undenied Since she
was a credible witness, the foregoing testimony is now
found to be a substantially accurate account of the ex-
change between Jensen and the employee at the time of her
termination
Leggett conceded that, prior to Killion's discharge, nei-
ther he, nor any member of management, told her that her
work was unsatisfactory or reprimanded her in any way for
alleged misconduct Killion had been hired in March and
had completed a 60-day probation period satisfactorily 7
Thereafter she had worked without any complaints from
her supervisors or reprimands of any kind from the man-
agement Only a few days before he complied with
Leggett's order that she be terminated, Manager Jensen
had commended her highly
Late in June, Killion had taken the initiative to contact a
union representative and to launch an organizational cam-
paign During the luncheon break on July 3, she talked
with several coworkers about the Union and secured a
signed authorization card from one At the end of that
shift, and while in the plant parking lot, she induced two
other colleagues to sign cards at a time when Supervisor
Jenkins was in the vicinity and could observe her solicita-
tion On July 7, the following Monday, Killion continued
the campaign among her colleagues during the noon lunch
period At the close of work that afternoon she led a party
of eight female employees out of the plant parking lot to a
rendezvous a short distance away where she secured signed
authorizations from all of them Again, Supervisor Jenkins
observed the women as they followed Killion off the prem-
ises and a few minutes later he watched them as they drove
back past the plant at the conclusion of their roadside
meeting with her By July 8, Killion had secured 10 signed
cards from her coworkers Since the plant had only about
30 employees at the time, this constituted a third of the
7 General Manager Slack testified that customarily the work of a new
employee is reviewed at the end of her first 30 days and if it has been
satisfactory, she is given a nominal increase At the end of another 30 day
period, if her work has continued to meet all requirements the individual is
given the status of a full-time regular employee and thereafter gets insurance
and all other benefits that come with that status
work force Leggett and Slack, who testified that they spent
a considerable part of each day on the plant floor, never-
theless denied any knowledge of union activity or interest
among the employees prior to Killion's discharge Signifi-
cantly, however, Jenkins, who had closely observed the ac-
tivities of Killion and her colleagues on July 3 and 7, was
never called by the Respondent to refute the inference that
through him the Company had learned of Killion's man-
agement of the union drive Neither Leggett nor Slack was
credible in his denial of knowledge as to Killion's union
activities prior to her termination Moreover, in view of the
circumstances set forth above, particularly the credible and
uncontradicted testimony that Supervisor Jenkins was in a
position to observe, and did observe, Killion while she was
engaged in union activities, and the unexplained failure of
the Respondent to call Jenkins as a witness, it is now found
that prior to her termination the Respondent was well
aware of Killion's prominence in the organizational cam-
paign NLRB v Link-Belt Co, 311 U S 584, 603 (1941),
Amalgamated Clothing Workers of America, AFL-CIO
[T I L Sportswear Corporation] v N L R B, 302 F 2d
186, 190 (C A D C, 1962), N L R B v Lawson Printers,
Inc, 408 F 2d 1004, 1005 (CA 6, 1969), NLRB v Am-
pex Corporation, 442 F 2d 82, 86 (C A 7, 1971), cert denied
404 U S 939 (1971), Angwell Curtain Co v N L R B, 192
F 2d 899, 903 (CA 7, 1951)
The evidence adduced by the General Counsel estab-
lished that Killion had a good work record, and, as recent-
ly as a week to 10 days prior to her discharge she had been
praised by Manager Jensen, she had never been repri-
manded or admonished at any earlier time, she was dis-
missed without any warning after Slack and Leggett alleg-
edly observed her wasting time and being absent from her
machine, Killion's credible testimony, corroborated by
that of Supervisor Anderson, established that she was not
guilty of this alleged dereliction, at the time of her peremp-
tory dismissal Killion was spearheading an organizational
campaign in the plant, at the time approximately one-third
of the work force had signed union cards for Killion and
when it dismissed her, the Respondent had knowledge of
her union activities On these findings, I conclude that the
explanation for her abrupt dismissal 8 offered by the Re-
spondent was a pretext and that the motivating cause for
Killion's termination was her activities on behalf of the
Union By this conduct, the Respondent violated Section
8(a)(3) and (1) of the Act
F The Alleged Violations of Section 8(a)(1), Findings and
Conclusions With Respect Thereto
1 The conferral of employee benefits after the onset of
the organizational campaign
In August or September 1974, Plant Manager Leggett
submitted to the Oilgear headquarters, the Respondent's
parent corporation, a proposed draft of an employee hand-
8
The abruptness of a discharge and its timing are persuasive evidence as
to motivation N L R B v Montgomery Ward & Co 242 F 2d 497 502
(C A 2 1957) cert denied 355 U S 829 (1957) see also N L R B v Dorn s
Transportation Company, inc 405 F 2d 706 713 (C A 2 1969) N L R B v
Symons Manufacturing Co 328 F 2d 835 837 (C A 7 1964)
FREMONT MANUFACTURING CO 603
book Nothing further was heard about the matter until
over 10 months later Then, on about July 17, 1975, Leggett
and Slack received from Oilgear a revision of the original
draft which was made effective very promptly thereafter
Significantly, the revision provided for additional holiday
pay, bereavement pay, jury duty pay, report-to-work pay,
maternity leave, and a bid procedure for employee promo-
tions, none of which had appeared in Leggett's original
draft The General Counsel contends that these additional
benefits were offered by the Respondent at that time for
the unlawful purpose of thwarting the union drive This is
denied by the Respondent
In its brief, the Respondent asserts that the decision to
include the foregoing benefits was based upon a corporate
decision to provide the same benefits at Fremont that the
parent corporation had already given to the employees of
another plant which the latter had in Longview, Texas At
the hearing, however, no documentation was offered to
substantiate this thesis, and the Respondent produced no
evidence of any legitimate business concern which caused
this implementation of its fringe benefit program during
the employee organizational campaign Moreover, the
grant of these benefits was made only shortly after the
Respondent's discriminatory discharge of employee Kil-
lion on July 10 and when the Company was in the process
of unlawfully establishing an employer-dominated labor
organization Plant Manager Leggett, the only manage-
ment official to testify on this matter, gave no testimony
which would establish that the increased benefits were long
planned and unrelated to the Respondent's knowledge that
an organizational drive was underway Under these cir-
cumstances, and in the light of the background of unfair
labor practices in which the Respondent announced the
fringe benefit package which appeared in the new employ-
ee handbook, it is now found that this action by the Re-
spondent was designed to thwart the employee attempt at
unionization and was, therefore, a violation of Section
8(a)(1) of the Act Newport Division of Wintex Knitting
Mills, Inc, 216 NLRB 1058 (1975)
2 The rules on solicitation and distribution
The employee handbook, which was distributed on or
about August 1, contained a large number of new plant
rules, three of which have been alleged by the General
Counsel to be overly broad and unlawful restrictions on
the Section 7 rights of the employees These rules, although
unnumbered in the handbook, will be designated 1, 2, and
3, for purposes of this discussion They read as follows
1 Distributing literature or printed matter of any
kind in any work area or during work time anywhere
on the company premises or posting notices, signs or
writing in any form anywhere on the company prem-
ises , unless specifically authorized to do so by the
company
2 Soliciting contributions of any kind, unless au-
thorization in writing is given by the personnel depart-
ment
3 Communicating in any way to any unauthorized
person information confidential to the company and/
or designated by the U S Government or its agencies
as classified material Making any statement or disclo-
sure regarding company affairs, whether expressed or
implied as being official, without proper authorization
from the company
Violation of any of the foregoing rules could subject the
offender to disciplinary action, including discharge
It is well established that an employer may not prohibit
employees from soliciting on behalf of a union, or discuss-
ing organizational matters during nonworking periods at
the employer's premises Nor may an employer preclude an
employee from distributing literature as to union or con-
certed activity during nonworking time in nonworking ar-
eas, in the absence of a compelling business consideration
(such as safety) The Respondent made no effort to estab-
lish any business reasons for its promulgation of the afore-
said rules
Rule 1, in prohibiting the distribution of literature "of
any kind in any work area anywhere on the company
premises unless specifically authorized to do so by the
company" and rule 2, prohibiting "Soliciting contributions
of any kind," unless authorized by the personnel depart-
ment, are clearly susceptible of the interpretation that, un-
less permission is secured from the Respondent, all distri-
bution of union literature and all solicitations on behalf of
a union are prohibited during all business hours Conse-
quently, these rules must be, and are, found to be overly
broad Accordingly, their promulgation and maintenance
violated Section 8(a)(1) of the Act Essex International,
Inc, 211 NLRB 749 (1974), Pepsi-Cola Bottling Co of Los
Angeles, 211 NLRB 870 (1974), Alberts, Inc, 213 NLRB
686 (1975), Republic Aviation Corporation v N L R B, 324
U S 793, 803, fn 10 (1945)
The General Counsel contends that rule 3 is similarly
invalid The Respondent's management conceded that at
the present time it has no defense orders in process, so that
there does not appear to have been any connection with
the promulgation of rule 3 and a contract to supply materi-
als for the military or defense establishment The language
in the rule which is subject to varying interpretations is the
last sentence, viz, "Making any statement or disclosure re-
garding company affairs, whether express or implied as
being official, without proper authorization from the com-
pany " It is conceivable that many of the charges and
countercharges that frequently arise during an organiza-
tional campaign could be construed as disclosures "regard-
ing company affairs" and, if made without "proper author-
ization from the company," thereby subject an employee to
reprimand for violation of this rule It may be urged that
this is an unlikely construction of the rule On the other
hand, the Respondent supplied no background or rationale
for its promulgation simultaneously with the distribution
and solicitation rules discussed above In Lexington Chair
Company, 150 NLRB 1328 (1965), the Board found viola-
tive of Section 8(a)(1) a plant rule, announced during an
organizational campaign, that prohibited employees from
"criticizing Company rules and policies so as to cause con-
fusion or resentment between employees and manage-
ment " The Court of Appeals for the Fourth Circuit held
that the Board was justified in holding that the rule consti-
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tuted an infringement of rights guaranteed employees un-
der Section 8(a)(1) of the Act In so concluding, the court
stated (N L R B v Lexington Chair Company, 361 F 2d
283, 287 (CA 4, 1966) )
management was not entitled to promulgate a
rule so general in its terminology and so broad in its
apparent coverage as to inhibit legitimate organization
activity by pro-union employees To the average em-
ployee the rule might well have meant that any criti-
cism of management, resulting in aid to the Union
campaign, would bring swift and severe reprisal "The
true meaning of the rule might be the subject of gram-
matical controversy However, the employees are
not grammarians The rule is at best ambiguous and
the risk of ambiguity must be held against the promul-
gator of the rule rather than against the employees
who are supposed to abide by it " (Citing N L R B v
Miller, 341 F 2d 870, 874 (C A 2, 1965) )
In the same fashion as the rule cited in Lexington Chair, the
Respondent's rule in this case is subject to various con-
structions, one of which is that it would restrict or stultify
employee debate during the union campaign then in prog-
ress at the plant insofar as such a debate might involve
statements or disclosures as to company affairs "without
proper authorization from the company " Since "the risk of
ambiguity must be held against the promulgator of the
rule" (Lexington Chair, supra), it is now held that rule 3 is
also an invalid restriction on the rights of the Respondent's
employees and a violation of Section 8(a)(1)
3 Interrogation
As found earlier herein, on about July 31, when the
Union circularized employees at the plant entrance, Gener-
al Manager Slack thereafter observed some of the employ-
ees with handbills in their possession According to Slack,
he then asked several of the employees "Who in the hell is
passing these out9" and that one of them told him that it
was Norma Killion
The General Counsel alleged that Slack's inquiries of the
employees as to the identity of the individual who was
passing out the Union's handbills constituted unlawful in-
terrogation of the employees and created the impression
that the Respondent was engaged in unlawful surveillance
of protected concerted activity on the part of the employ-
ees There is merit to this contention and it is now found,
on the basis of General Manger Slack's testimony, set forth
above, that by this conduct the Respondent engaged in
unlawful interrogation and created the impression of un-
lawful surveillance in violation of Section 8(a)(1) of the
Act Polyurethane Products Company, Inc, 168 NLRB 98,
99-100 (1967) 9
9 See N L R B v Laister Kauffmann Aircraft Corporation 144 F 2d 9, 13
(C A 8, 1944), where the court stated "This was a fairly new plant and one
in which there was, as yet, no crystallization of employee labor affiliation
Under such circumstances, it is reasonable to assume that the employer
knew the employees would be sensitive to overt or subtle communications
of respondent's hostility toward the Union "
CONCLUSIONS OF LAW
1 The Respondent is engaged in commerce and the
Union is a labor organization, all within the meaning of the
Act
2 By discriminating in regard to the hire and tenure of
Norma Killion, thereby discouraging membership in the
Union, the Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section 8(a)(3)
of the Act
3 By dominating and interfering with the administra-
tion of the Progress Team, and contributing support there-
to, the Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section 8(a)(2)
of the Act
4 By interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7
of the Act, the Respondent has engaged in, and is engaging
in, unfair labor practices within the meaning of Section
8(a)(1) of the Act
5 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices , it will be recommended that the
Respondent be ordered to cease and desist therefrom and
to take certain affirmative action designed to effectuate the
policies of the Act
Having found that the Respondent discriminatorily ter-
minated Norma Killion on July 10, 1975, it will be recom-
mended that the Respondent be ordered to offer Killion
immediate and full reinstatement without prejudice to her
seniority or other rights and privileges , and make her whole
for any loss of earnings she may have suffered from the
time of her discharge to the date of the Respondent 's offer
of reinstatement The backpay shall be computed in accor-
dance with the formula approved in F W Woolworth
Company, 90 NLRB 289 (1950), with interest computed in
the manner and amount prescribed in Isis Plumbing &
Heating Co , 138 NLRB 716, 717-721 (1962) It will also be
recommended that the Respondent be required to preserve
and make available to the Board , or its agents , on request,
payroll and other records to facilitate the computation of
backpay due
Because the Respondent has established , dominated,
and interfered with the administration of the Progress
Team, and has contributed support thereto, it will be rec-
ommended that the Respondent be ordered to cease and
desist from such conduct and that it withdraw recognition
from and completely disestablish the Progress Team as the
representative of any of the Respondent ' s employees for
the purpose of dealing with the Respondent concerning
grievances, labor disputes , wages, rates of pay, hours of
employment , or other conditions of work
As the unfair labor practices committed by the Respon-
dent are of a character striking at the root of employee
rights safeguarded by the Act, it will be recommended that
the said Respondent be ordered to cease and desist from
FREMONT MANUFACTURING CO 605
infringing in any manner on the rights guaranteed in Sec-
tion 7 of the Act N L R B v Entwistle Mfg Co, 120 F 2d
532, 536 (CA 4, 1941), Centeno Super Markets, Inc, 220
NLRB 1151, fn 5 (1975)
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act,
there is issued the following recommended
ORDERIo
Fremont Manufacturing Company, Inc, its officers,
agents, successors, and assigns, shall
1 Cease and desist from
(a) Discharging or otherwise discriminating against any
employee because of activity on behalf of United Steel-
workers of America, AFL-CIO, or any other labor organi-
zation
(b) Dominating or interfering with the administration of
the Progress Team, or with the formation or administration
of any other labor organization of its employees, and con-
tributing support to the Progress Team or to any other
organization of its employees
(c) Recognizing, or in any matter dealing with the Prog-
ress Team, or any reorganization or successor thereof, as a
representative of any of its employees for the purpose of
dealing with Fremont Manufacturing Company, Inc, con-
cerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of work
(d) Maintaining, giving effect to, or enforcing any rules
that prohibit employees from distributing literature to, or
soliciting, other employees in nonworking areas of the
Respondent's plant and premises on nonworking time for
self-organizational or other purposes under Section 7 of the
Act, or that require employees to obtain permission to en-
gage in such distribution or solicitation
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist any labor organiza-
tion, to bargain collectively through representatives of their
own choosing, or engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or to re-
frain from any or all such activities
2 Take the following affirmative action which is neces-
sary to effectuate the policies of the Act
(a) Offer to Norma Killion immediate and full reinstate-
ment to her formerjob, or, if thatjob no longer exists, to a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges and make her whole
in the manner set forth in the section of this Decision enti-
tled "The Remedy "
(b) Withdraw all recognition from the Progress Team as
a representative of any of its employees for the purpose of
dealing with the Fremont Manufacturing Company, Inc,
concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of work and
10 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
10248 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
completely disestablish the Progress Team as such repre-
sentative
(c) Preserve and, upon request, make available to the
Board, or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary, or appropriate, to analyze the amount of backpay
due
(d) Post at its plant in Fremont, Nebraska, copies of the
attached notice marked "Appendix" I I Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 17, after being duly signed by the Respondent's au-
thorized representatives, shall be posted by it for a period
of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, de-
faced, or covered by any other material
(e) Notify the Regional Director for Region 17, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith
11 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading `Posted by Order
of the National Labor Relations Board' shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in United
Steelworkers of America, AFL-CIO, or any other
union, by discharging or otherwise discriminating
against our employees because of their union or con-
certed activities
WE WILL NOT engage in surveillance of our employ-
ees, or give the impression of engaging in surveillance,
with respect to their union or concerted activities
WE HAVE notified the members of the Progress Team
that they may no longer act as your representatives on
grievances, labor disputes, wages, rates of pay, hours
of employment or other conditions of work, and WE
have completely disestablished the Progress Team as
such representative
WE WILL NOT maintain, give effect to, or enforce any
rules that prohibit you from distributing literature to
or soliciting other employees in nonworking areas of
the plant or premises on nonworking time for self-
organizational or other purposes under Section 7 of
the National Labor Relations Act, and WE WILL NOT
require you to obtain permission to engage in such
distribution or solicitation
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization, to form, join, or assist
any labor organization, to bargain collectively through
representatives of their own choosing, and to engage
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in concerted activities for the purpose of collective ger exists , to a substantially equivalent position, with-
bargaining or other mutual aid or protection , or to out prejudice to her seniority, or other rights and privi-
refrain from any or all such activities leges, and make her whole for any loss of pay suffered
WE WILL offer Norma Killion immediate and full as a result of the discrimination against her
reinstatement to her formerjob , or, if thatjob no lon-
FREMONT MANUFACTURING COMPANY, INC