Guardian Industries Corp.

National Labor Relations Board - Board Decisions

May 20, 1994

313 N.L.R.B. 1275 (N.L.R.B. 1994)

1275
313 NLRB No. 231
GUARDIAN INDUSTRIES CORP.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
2 The General Counsel excepts to the failure of the judge to state
the name of the Union in the notice. We have amended the notice
accordingly.
Guardian Industries Corp. and International Union,
United Automobile, Aerospace & Agricultural
Implement Workers of America, UAW. Cases
25–CA–21774 and 25–CA–21843
May 20, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On September 30, 1993, Administrative Law Judge
Karl H. Buschmann issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed a brief in support of the judge’s
decision, an answering brief, and limited cross-excep-
tion, and the Respondent filed a reply brief.
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 briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Guardian Industries Corp.,
Auburn, Indiana, its officers, agents, successors, and
assigns, shall take the action set forth in the Order, ex-
cept that the attached notice is substituted for that of
the administrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT maintain or enforce any rule or policy
which discriminatorily prohibits you from posting
union-related materials on our bulletin boards that are
otherwise available for the general use of employees.
WE WILL NOT threaten you with unemployment or
other adverse consequences because you support or as-
sist the International Union, United Automobile, Aero-
space & Agricultural Implement Workers of America,
UAW, or any other union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL withdraw and rescind any of our rules or
policies which discriminatorily restrict your use of our
bulletin boards which are otherwise available for the
general use of employees.
GUARDIAN INDUSTRIES CORP.
Joanne C. Krause, Esq., for the General Counsel
Michael R. Maine, Esq. and Todd M. Nierman, Esq. (Baker
& Daniels), of Indianapolis, Indiana, for the Respondent.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge. This
case was tried in Auburn, Indiana, on October 26, 1992, on
a consolidated complaint which issued on April 30, 1992.
The underlying charges were filed on February 12, 1992, in
Case 25–CA–21774 and on March 13, 1992, in Case 25–
CA–21843 by the International Union, United Automobile,
Aerospace & Agricultural Implement Workers of America,
UAW.
The complaint alleges in substance, that Guardian Indus-
tries Corp., the Respondent, violated Section 8(a)(1) of the
National Labor Relations Act (the Act) by interrogating its
employee about the Union, by threatening employees with
discharge or loss of work if they selected the Union, and by
denying its employees the right to post union notices on the
Company’s bulletin boards. In its answer, the Respondent ad-
mitted certain jurisdictional allegations of the complaint and
denied the substantive allegations of unfair labor practices.
On the record as a whole, including my observation of the
witnesses and the briefs filed by the General Counsel and the
Respondent, I make the following
FINDINGS OF FACT
Jurisdiction
Guardian Industries Corp. is a Delaware corporation with
an office and place of business in Northville, Michigan, and
at several other locations, including one in Auburn, Michi-
gan, where it is engaged in the business of manufacturing
glass for automobiles. With sales and shipments of products
in excess of $50,000 from its Auburn, Indiana facility di-
rectly to customers outside the State of Indiana, the Com-
pany is admittedly an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
The Union is admittedly a labor organization within the
meaning of Section 2(5) of the Act.
1276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Facts
Guardian Industries Corp. in Auburn, Indiana, employs be-
tween 600 and 650 employees working in four shifts produc-
ing windshields for cars (Tr. 11–13). The supervisory hier-
archy includes the plant manager, Mike Panther, and the per-
sonnel manager, Mike Farrell, 3 superintendents, including
Robert Tracey and Kevin Althouse, as well as 33 or 34 su-
pervisors, including Marcia Osterhout (Tr. 14).
According to the complaint, Farrell and Althouse were in-
volved in denying the employees access to the Company’s
bulletin boards and Osterhout interrogated and threatened a
certain employee about his union involvement.
Since November 1991, the Union has been trying to orga-
nize the Company’s employees in Auburn. The Company, re-
sponding to the union drive, exceeded the proper bounds of
conduct in several instances. In this regard, the record con-
tains the testimony of a former employee, George Kinsey, to
the effect that in December 1991, Marcia Osterhout, a super-
visor, unlawfully interrogated him about the Union and on
another occasion threatened employees by stating that if the
Union were selected by the employees, they would be in the
unemployment line. Osterhout testified that she did not inter-
rogate the employee nor threaten anyone about the unem-
ployment line.
The more important issue and the most extensive record
evidence in this case deals with the employees’ right to post
a union notice on the Company’s bulletin boards. In this re-
gard, the record shows that Guardian Industries maintains
three bulletin boards at its plant, one in each of the two
break rooms and one in the main office (Tr. 14–15). They
are glass enclosed and locked. In his capacity as personnel
manager; Michael Farrell administers the Company’s policy
regarding its bulletin boards (Tr. 15). The Company’s policy
appears in the following excerpt from the company policy
manual (G.C. Exh. 2, Tr. 16–17, 148):
BULLETIN BOARDS
There is one main bulletin board area located inside
the lunchroom. This will be utilized to keep you current
on items of interest. If you wish to utilize a section of
the board to sell personal items you must submit the
following information to the plant manager’s secretary.
1. A description of the item(s) including cost.
2. Your name.
3. Your home telephone number.
All posted items in the bulletin board area must be
approved by the Plant Manager. This also applies to
any material posted in any other area of the plant.
Work related information may be posted with approval
from a Superintendent.
According to Farrell, ‘‘[p]art of all new employee orientation
includes going over work rules. Bulletin boards and their use
as a communication device is gone over in detail during ori-
entation’’ (Tr. 143). When asked what items are usually post-
ed pursuant to this policy, Farrell testified as follows (Tr.
17):
The items that are approved for posting on the bul-
letin board are work related items or items of general
interest to the plant. Typically, things such as, vacation
scheduling procedures, visitations to the plant by cus-
tomers, quality type items, new business type items,
general plant information.
Farrell, who monitors compliance with company policy,
explained it as follows as applied to nonwork-related items:
‘‘We also permit employees to submit for review and ap-
proval swap and shop type items for sale’’ (Tr. 18). If man-
agement receives a request to post a notice, the Company
employs the following procedure (Tr. 18):
An employee is requested to submit in writing the
item or items involved and we reduce all approved
items to a three by five typed card and then the card
is posted. No names are permitted. Telephone numbers
only.
In the past, the Respondent has rejected requests to use the
bulletin board because of its policy against solicitation, as
explained by Farrell as follows (Tr. 145):
We’ve had requests from the Red Cross to post no-
tices about bloodmobile schedules. We’ve not done
that.
We recently acquired an affiliation with a credit
union for employees’ use. The credit union asked if
they could post or solicit on the property. We did not
allow that. . . .
Requests from Big Brothers and Big Sisters here in
town. We didn’t allow that.
The Respondent has also rejected several requests by em-
ployees to post union notices. Union organizers who solicited
employees for the Union in the usual fashion by wearing
union buttons, UAW hats, and by passing out union leaflets,
announced the time and place of union meetings by distribut-
ing flyers in nonwork areas, like restrooms, locker rooms,
and by inserting leaflets in employees’ lockers (Tr. 85).
However, many employees felt that the method of announc-
ing union meetings left them uninformed (Tr. 63, 95–96).
Employees Jeff Purdy, Lori Custer, and Lee Bard accord-
ingly decided to approach management with a request to post
a union notice announcing a union meeting on February 11,
1992 (G.C. Exh. 3, Tr. 62, 96). On their day off in February,
1992, the three employees went to the front office to meet
with Farrell or any other member of management. Farrell re-
fused to meet with all three employees, but he listened to
Lori Custer who, on behalf of the other employees, showed
him the union flyer and requested that it be posted on the
Company’s bulletin boards (Tr. 69, 99). Farrell replied that
he would respond to their request sometime later that day.
Farrell, however, did not respond and the Respondent did not
post the notice (Tr. 70). According to Farrell’s testimony, a
decision was made by several members of management not
to post the notice for the following reason (Tr. 22):
We did not—the consensus was that this was not in
keeping with either the spirit or the letter of our posting
policy. Certainly we discussed pros and cons and con-
cluded that it was not proper.
Another employee, Daryl Brandenburg, made another ef-
fort to post a union notice on the bulletin boards. He testified
1277GUARDIAN INDUSTRIES CORP.
that fewer and fewer people attended the meetings because
it became increasingly difficult to distribute union leaflets to
the 650 employees (Tr. 115–116). Brandenburg approached
his supervisor, Kerry Monnier, sometime prior to the Feb-
ruary 11, 1992 union meeting and requested that the union
notice be posted in the bulletin boards (Tr. 117–118). On the
following day, Monnier informed Brandenburg that the Com-
pany would not post it, because ‘‘it was politically motivated
and anything with a charity’s name or anything like that they
would not post’’ (Tr. 118). Brandenburg repeated his request
to post a union notice for the next union meeting scheduled
for March 31, 1992 (G.C. Exh. 4, Tr. 119–120). Again,
Monnier informed Brandenburg that following his consulta-
tion with Farrell, the request was denied. Brandenburg finally
went to Kevin Althouse, a superintendent, with his request
and suggested that the information be put on a 3-by-5 inch
card. However, Althouse also rejected the employee’s request
(Tr. 121).
The Respondent has admitted that ‘‘Guardian refused to
post any notices announcing the UAW meetings’’ (R. Br. p.
5).
Discussion
According to the Respondent, Guardian was within its
rights in prohibiting employees from posting UAW notices
on Guardian bulletin boards, because its policy was not dis-
criminatory. The General Counsel argues that the Respond-
ent, having permitted its bulletin boards to be used for non-
work related items, may not deny employees the right to post
union related items. Both parties cite the Board’s decisions
in Honeywell, Inc., 262 NLRB 1402 (1982), and St. Antho-
ny’s Hospital, 292 NLRB 1304 (1989). The applicable legal
principle stated in Honeywell and restated in St. Anthony’s
Hospital are, according to the Board, simply stated and well
established. In agreement with the Respondent’s position,
these decisions recognize that ‘‘there is no statutory right of
employees or a union to use an employer’s bulletin board,’’
but the employer may not discriminate against the posting of
union notices if it otherwise permits the posting of personal
items. The Board stated as follows:
However, where an employer permits its employees to
utilize its bulletin boards for the posting of notices re-
lating to personal items such as social or religious af-
fairs, sales of personal property, cards, thank you no-
tices, articles, and cartoons, commercial notices and ad-
vertisements, or, in general, any nonwork related mat-
ters, it may not ‘‘validly discriminate against notices of
union meetings which employees also posted.’’ More-
over, in cases such as these an employer’s motivation,
no matter how well meant, is irrelevant. [Footnotes
omitted.]
The record is clear and there is no dispute that the Re-
spondent permitted employees the use of the bulletin boards
for notices relating to general items, such as the sale of per-
sonal items or what is referred to as ‘‘shop and swap type
items for sale.’’ Permitting this practice on the one hand, and
denying union notices on the other, would amount to a dis-
criminatory use of the bulletin boards. For example, the Re-
spondent states that its policy permitted the ‘‘sale of personal
items on 3-by-5 inch cards, occasionally accompanied by a
photograph.’’ (R. Br. p. 8). The record shows that the Re-
spondent also rejected an employee’s suggestion that the
union notice be reduced to a 3-by-5 inch card. Moreover, the
record shows that the Respondent has from time to time per-
mitted other personal uses of its bulletin boards, such as the
posting of wedding invitations, a thank you note, information
about a day care center and a notice for a charitable event
(Tr. 31, 59, 91–94, 113–114). Even though those incidents
may have occurred a year or two prior to the union cam-
paign, it is clear that the bulletin boards were used for var-
ious types of personal notices by its employees. Under these
circumstances, the Respondent’s policy prohibiting the post-
ings of union related material was a denial of the employees’
Section 7 rights in violation of Section 8(a)(1) of the Act.
With respect to the additional allegations that the Re-
spondent violated Section 8(a)(1) of the Act by unlawful in-
terrogation and threats, the record shows that Supervisor
Osterhout had conversations in December 1991 with Kinsey
about the Union. Kinsey reported late for work on that day
and was confronted by Osterhout, who, according to Kinsey,
‘‘jumped all over’’ him. He testified as follows (Tr. 27):
‘‘She asked me what I thought they [Union] would do for
us. She said they wouldn’t do nothing for us.’’ Osterhout de-
nied making any reference to the Union during the conversa-
tion with Kinsey (Tr. 173). She testified that Kinsey was
tardy that day and that he had a serious attendance problem.
When she inquired where he had been, he replied, ‘‘It was
none of [her] ‘god damn business’ where he had been’’ (Tr.
173). Kinsey conceded that he made such a statement be-
cause of a personal problem (Tr. 50). According to
Osterhout, Kinsey also said that she would not be able to
speak like that to her if the plant were unionized.
I credit Kinsey to the extent that Osterhout made the state-
ment about the Union and that it was made after he told her
that she would not be able to talk to her like that in the pres-
ence of the Union. Under these circumstances, I find that
Osterhout’s remark was in the nature of a rhetorical question,
more as a retort to Kinsey’s remark about the Union than a
form of interrogation. Furthermore, in the light of Kinsey’s
intemperate response to a legitimate inquiry where he had
been, I find a total absence of coercion or intimidation. I ac-
cordingly find that the Respondent’s statement did not
amount to an act of unlawful interrogation. Rossmore House,
269 NLRB 1176 (1984).
Kinsey testified about a second conversation with
Osterhout in the presence of another employee, Mark
George, in December 1991 (Tr. 29): ‘‘I had a UAW pin on
and she told me if we got a union in there we’d be in the
unemployment line’’ (Tr. 29). Again Osterhout denied mak-
ing the statement, she recalled making a remark to the effect
that she would no longer work at the Company because she
did not want to work in a union environment’’ (Tr. 174–75).
I have credited Kinsey’s recollection of the conversation,
because his demeanor impressed me as more certain and un-
equivocal; and I find that a supervisor’s statement threaten-
ing employees with the loss of jobs because of the Union is
a threat in violation of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
1278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
2 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
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.’’
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By promulgating, maintaining, and enforcing a policy
which prohibits employees from posting union-related mate-
rials on bulletin boards that are available for personal use by
employees, Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. By threatening employees with unemployment, the Re-
spondent violated Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent violated Section 8(a)(1) of
the Act, I recommend an order that it cease and desist there-
from and take certain affirmative action designed to effec-
tuate the policies of the Act, and that the Respondent rescind
its unlawful bulletin board policy insofar as that policy re-
stricts employees’ posting of union-related materials on bul-
letin boards that are available for personal use by employees.
On these findings and conclusions of law and on the entire
record, I issue the following recommended1
ORDER
The Respondent, Guardian Industries Corp., Auburn, Indi-
ana, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining or enforcing a policy which discrim-
inatorily prohibits its employees from posting union-related
materials on bulletin boards which are otherwise available
for personal use by employees.
(b) Prohibiting its employees from posting union-related
materials on bulletin boards which are otherwise available
for personal use by employees.
(c) Threatening employees with unemployment or other
adverse circumstances because of the Union.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Withdraw and rescind any rules or policies which
discriminatorily restrict employees’ use of Respondent’s bul-
letin boards which are otherwise available for general use by
employees.
(b) Post at each of its facilities in Auburn, Indiana, copies
of the attached notice marked ‘‘Appendix.’’2 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 25, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.