Hemco Corp.

National Labor Relations Board - Board Decisions

Dec 30, 1971

194 N.L.R.B. 789 (N.L.R.B. 1971)

HEMCO CORPORATION 789
Hemco Corporation and District Lodge 71 , Interna-
tional Association of Machinists & Aerospace
Workers, AFL-CIO. Case 17-CA-4642
December 30, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On September 30, 1971, Trial Examiner Paul E.
Weil issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a sup-
porting 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 Trial
Examiner's Decision in. light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings,' and conclusions 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 Trial Examiner and hereby orders that
Respondent, Hemco Corporation, Independence,
Missouri, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
recommended Order.
1 In the absence of exceptions thereto, we adopt, pro forma, the Trial
Examiner's finding that Respondent did not engage in certain other unfair
labor practices alleged in the complaint.
In support of the Trial Examiner's finding that Respondent violated
Section 8(a)(I) of the Act by promulgating an invalid no-distribution rule,
we rely not only on the statement made by Respondent's plant manager
that employees could not post prounion literature on the "swap and shop"
bulletin board, but also on the uncontradicted statement that any proumon
literature left on lunchroom tables would be picked up immediately. Such a
statement precludes employees from distributing union literature in
nonworking areas during nonworking times by reasonably leading them to
believe that distribution in such manner would be futile.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Trial Examiner: On April 15, 1971,
District Lodge 71, International Association of Machinists
and Aerospace Workers, AFL-CIO, herein called the
Union, filed a charge with the Regional Director for Region
17 of the National Labor Relations Board, hereinafter
called the Board, alleging that Hemco Corporation,
hereinafter called Respondent, engaged in activities in
violation of Section 8(a)(1) and (3) of the Act. The charge
was subsequently amended on June 11 and again on June
28. On July 22, 1971, the Acting Regional Director for
Region 17 issued a complaint alleging that Respondent
violated Section 8(a)(1) of the Act by various acts and
conduct and violated Section 8(a)(3) of the Act by laying
off seven named employees and failing and refusing to
recall or reinstate them because of their union activities. By
its duly filed answer, Respondent denied the commission of
any unfair labor practices. The matter came on for hearing
before me on August 17, 1971. All parties were represented
and had an opportunity to adduce evidence, call witnesses,
examine and cross-examine them, to argue on the record
and to submit briefs. A brief was received from the General
Counsel.
Upon the entire record and in consideration of the brief, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
It is admitted that the Respondent is a Missouri
corporation engaged in the manufacture and distribution of
molded fiberglass products at its plant located in Independ-
ence, Missouri. In the course and conduct of its business,
Respondent annually sells and distributes products valued
in excess of $50,000 directly to customers located outside
the State of Missouri.
Respondent is now, and at all times material herein, has
been an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party is now, and at all times material has
been, a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Charging Party culminated an organizational
campaign among employees of Respondent by filing a
petition on October 8, 1970, seeking an election among the
employees. The election was conducted on November 19.
The Union lost by two votes and subsequently filed
objections upon which a hearing was held. The objections
are still pending before the Board. The General Counsel
contends herein that Respondent violated Section 8(a)(1)
by various acts and conduct during the month of
November prior to the election and that Respondent
further violated 8(a)(3) and (1) by laying off seven
employees because of their union activity, all on December
28, 1970.
With regard to the 8(a)(1) allegations, the General
Counsel contends that in a speech delivered on November
4, 1970, Don Greene, the general manager, told Respon-
dent's employees that if the Union got in, before
Respondent would sign a contract it could hold out for a
year or more and probably half of the employees would be
laid off or fired in that time. The General Counsel contends
that this constitutes a violation of Section 8(a)(1) of the Act.
I believe that the language attributed to Greene, which is
uncontradicted by Respondent, constitutes a threat that
employees would be laid off or discharged while Respon-
dent delayed recognition of the Union. No predicate
194 NLRB No. 135
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appears to have been laid that 50 percent is the normal
annual attrition in the plant, although it may well be so. No
assurance appears to have been given that the layoffs and
discharges would not be consummated by Respondent in
order to cause the very circumstance that it threatened. I
find that the threat constitutes a violation of Section 8(a)(1)
of the Act. ,
In the same speech, Greene told the employees that they,
could not use the plant bulletin board for the posting of
union literature , stating that the Union would not permit
the employer to post its literature on their bulletin board.
The record reveals that two bulletin boards are placed by
the timeclock. One is covered with plastic or glass and
contains the normal bulletins and information to the
employees from Respondent, the other is surmounted by a
sign that says "swap and shop" and is used by the
employees for posting notices of things they wanted to sell,
purchase, trade, or notices such as "thank you" cards and
the like. The record reveals that on one occasion when a
prounion notice was posted on the board it disappeared
within a very short time. On another occasion an antiumon
notice appeared on the board and remained there for
several hours. There is no evidence that any rule existed as
to what might be posted on the board.
The Board has long held that a rule prohibiting
distribution of union literature at nonworktimes in
nonwork areas is inherently invalid absent evidence that
special circumstances required its adoption. There is no
showing of the existence of any special circumstances in the
instant case.' I find that by the promulgation of such a rule
in the employee meeting of November 4, 1970, Respondent
violated Section 8(a)(1) of the Act.
Mrs. Catherine Porter testified that she was the
secretary to Respondent's president, that she handled the
telephone, took care of employees' records, personnel files,
applications, insurance records, insurance claims, employ-
ment records, payroll, and accounts payable. She and
another girl, Emma Phisameyer were apparently the only
two clerical employees of Respondent. Mrs. Porter testified
that the company president and the plant manager told her
that any time between then and the time of the election that
she was in the plant and heard or saw anything pro or con
with regard to the Union she was to report to them
immediately. She testified that the only thing she reported
to them was her opinion that it would not be felicitous for
the Respondent to seat employees at a Thanksgiving dinner
because of the possibility of politicking with regard to the
election. I do not view the instruction given to Mrs. Porter
as an order to engage in surveillance as alleged by the
General Counsel, it is more in the nature of an order to
report matters that came to her attention in the normal
course of her activities and lacks the element of surrepti-
tious surveillance that interferes with employees in the
exercise of their protected rights. I find no violation in the
instructions given Mrs. Porter and I recommend the
complaint be dismissed in that regard.
The General Counsel alleges that Respondent violated
Section 8(a)(I) of the Act by the action of Ronald E. Hill on
1 It can hardly be considered that the expectation of Manager Greene
that the Union would not permit him to put notices on the Union's bulletin
board comprises such a special circumstance
several occasions in November 1970 in threatening an
employee that the Respondent would lay off union
supporters the first chance it got. General Counsel
apparently has reference to the testimony of Mrs. Porter
that President Ronald Hill said that as soon as possible he
would get rid of the girls in the hood department , that they
were troublemakers and instigators and for the Union, and
if he got rid of them he wouldn't have to worry about the
Union getting in for another year. I found above that Mrs.
Porter was a confidential employee and that she handled
the clerical matters connected with the Respondent 's labor
relations . The Board has normally excluded from bargain-
ing units persons working in labor relations and personnel
and employment divisions of employers . When the 1947
amendments were passed , the conference report submitted
to the Senate by Senator Taft contained the following
statements:
In the case . of persons working in labor relations,
personnel and employment divisions , it was not thought
necessary to make specific provision , as was done in the
House bill, since the Board had treated, and presuma-
bly will continue to treat , such persons as outside the
scope of the Act. This is the prevailing Board practice
with respect to confidential secretaries as well, and it
was not the intention of the conferees to alter this
practice in any respect.2
The Board holds employers responsible for unfair labor
practices committed by confidential secretaries and clerks
such as Mrs. Porter ,3 largely because of the tendency of
employees to believe that confidential personnel in this
category are in privity with management . It does not seem
just, in view of that fact, to hold that the exercise of such
privity by management has the necessary effect of
interfering with the union activities of employees , in view of
the fact that there is no evidence that Mrs. Porter served as
a conduit to carry forward the threat to employees engaged
in union activities or, on the other hand, against the fact
that Mrs. Porter would herself be excluded from any unit
determination made by the Board . I find no violation in the
statement attributed to Ronald Hill by Mrs. Porter and I
recommend that the complaint be dismissed insofar as the
incident is alleged to be a violation.
Mary Shandler, one of the alleged discriminatees , wears a
necklace from which hangs a ballpoint pen bearing a small
union insignia about the size of a dime . She testified that
one day she asked Roger Dowell, her supervisor, if he
wanted to use her pen and he answered "hell no, do you
want to get me fired ." The General Counsel contends that
this constitutes a violation of Section 8(a)(1) because it
implies to employees that they could be discharged for
wearing or displaying the union insignia. There is no
question that Dowell is a supervisor and I think the law is
fairly clear that he could be fired for wearing union
insignia . Accordingly , even if the remark was made
seriously , as the General Counsel contends , it is no more
than a statement of a legitimate possibility . On the record
as a whole, however, I believe that the offer and refusal
were made in jest as part of a lighthearted conversation and
2 93 Cong Rec. 6442 (1947)
3 See Voron,c, Incorporated 183 NLRB No 103, TXD, McKinnon
Services, Inc, 174 NLRB No. 169, TXD
HEMCO CORPORATION
that no coercive impact was meant or taken from the
exchange. I recommend that the complaint be dismissed
with regard to this allegation.
Bessie Neal testified that she and Supervisor Dowell were
talking and Mary Shandler and Ruby Williams were
talking and Roger Dowell said "if there was a union things
like that would not happen ." This is the entire account of
an incident which the General Counsel alleges implies to
employees that if Respondent's plant became organized by
the union employees would not be permitted to talk to one
another freely while at work. I do not draw that
implication . I can infer nothing from the reported
conversation. The term "things like that" is meaningless
without some further exploration of the context than was
afforded by the General Counsel . I cannot infer a violation
on the facts adduced and accordingly I must recommend
that the complaint be dismissed insofar as the incident is
alleged to be violative.
The Layoff
On December 28 Mildred Braxdale, Edith Harris,
Jannice Kinnison , Bessie Neal , Mary Shandler , and Ruby
Williams were called together by Don Greene, the plant
manager, who told them that they were laid off for lack of
work, suggested that if they could find another job they
should take it, and that they would be contacted if work
picked up in the hood department . About the same time
President Hill informed Janis Keltner that the plant wasn't
getting any orders right then and she would probably be
laid off 2 or 3 weeks before she would be called back. At
that time he took her telephone number and put it in his
telephone book . None of the seven ladies has been recalled.
Respondent adduced evidence that the fume hood
department was short of work due to the fact that fume
hoods are largely sold to schools and hospitals and the like,
supported by Federal funds which are no longer available.
The record reveals that since the layoff, six or seven
employees have been hired to work in the fume hood
department , all men. The record also reveals that
commonly when work in one part of the plant was slow
employees would be sent to another part of the plant to
work and interchange of employees among departments
was very common. Indeed most of the employees laid off
had worked extensively in other departments . Keltner, in
the 11 months that she had been an employee , had worked
only 2 weeks in the fume hood department. With the
exception of Keltner, all of the employees laid off were
shown to have been employees of the fume hood
department at the time of the election . Between 40 and 45
employees had been hired by Respondent since December
28. In addition, there is evidence that many employees have
worked overtime on a regular basis.
Mrs. Porter testified that Respondent 's custom was to
rehire laid-off employees and that she was instructed when
hiring to give preference to exemployees.4
Miss Kinnison testified that she called about the first of
April 1971 and asked Supervisor Phillips, without identify-
ing herself, if the plant was hiring. He said yes. She
791
identified herself and he became noncommittal. She
testified that she had no recollection of the conversation
thereafter.
The parties stipulated that Respondent placed an ad in
the Kansas City Star, a newspaper , on April 18, 1971,
stating "production workers needed for expanding plastic
plant, Independence area, telephone number SY 6901."
General Manager Phillips testified that the ad was placed
only for the purpose of getting a backlog of applicants in
the event that Respondent needed more employees.
Finally Respondent produced evidence that it no longer
used women in the fume hood department , it had revised
the work of the department and required only four
employees. Some of the work entailed lifting materials
weighing as much as 45 pounds which Respondent felt was
too much for female employees to handle.
The record reveals that the Employer now has as many
employees as it did at the end of December 1970.
In view of the statement of President Ronald Hill,
reported by Mrs. Porter, that he would get rid of the girls in
the hood department and of the evidence that the girls in
the hood department were the leaders in the organizing
attempt, and in view of the fact that Respondent did not
follow its normal procedures in transferring the women or
calling them back to jobs other than those that they
originally held, assuming the validity of its evidence that
women were no longer employed in the fume hood
department , under all the circumstances set forth above, I
find that the six employees laid off by Greene on December
28 were laid off because of their union activities, and in
order to avert the possibility of their assisting in a future
organization obviously within the contemplation of Res-
pondent. I deem the layoffs to be in violation of Section
8(a)(3) and (1) of the Act and I so find.
With regard to Jams Keltner, while she was not employed
in the fume hood department at the time of her layoff, no
distinction was made by Respondent with regard to her
layoff. No explanation , in fact, for her layoff was given. She
testified that she worked for 2 weeks in the fume hood
department . Whether those were the 2 weeks in which the
union activities of the fume hood employees were noted by
President Hill is not disclosed . Nor is there any rationale
given by Respondent for the fact that she was not called
back as President Hill said she would be within 2 weeks.
Under all the circumstances set forth above , and in view of
the fact that Miss Keltner also wore a union pin at the
plant, I find that she too was the victim of discrimination
because of her union activities in violation of Section
8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. By laying off or discharging Mildred Braxdale, Edith
Harris, Jannice Kinnison, Bessie Neal, Mary Shandler,
Ruby Williams, and Janis Keltner, Respondent has
discriminated in regard to hire and tenure of their
employment in order to discourage union activities in
violation of Section 8(a)(3) of the Act.
2. By the foregoing conduct , by threats of discharge or
4 Mrs Porter resigned her employment on December 8, 1970, when her
husband moved the family to another town
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
layoff, and by the imposition of an order requiring
employees to cease distributing and posting union literature
during nonworking hours and in nonworking parts of the
plant, Respondent has interfered with, restrained, and
coerced its employees in the exercise of their Section 7
rights and has thereby engaged in unfair labor practices in
violation of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
4. Respondent has not violated Section 8(a)(1) of the
Act in other regards as set forth above.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it will be recommended that it cease
and desist therefrom and take certain affirmative actions
designed to effectuate the policies of the Act, including a
provision that Respondent offer to Mildred Braxdale, Edith
Harris, Jannice Kinnison, Bessie Neal, Mary Shandler,
Ruby Williams, and Janis Keltner immediate and full
reinstatement to their former or substantially equivalent
position, without prejudice to their seniority and other
rights and privileges, and make them whole for any loss of
earnings they may have suffered by reason thereof, by
payment to each of them of a sum of money equal to that
which each normally would have earned as wages from the
date of such unlawful discharge to the date of Respondent's
offer to reinstate them, together with interest thereon, less
net earnings, if any, during such period. Backpay and
interest shall be computed in the manner prescribed in F.
W. Woolworth Company, 90 NLRB 289, and Isis Plumbing
& Heating Co., 138 NLRB 716.
On the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
and pursuant to Section 10(c) of the Act, I hereby make the
following:
RECOMMENDED ORDERS
Hemco Corporation, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership and activities in District
Lodge 71, International Association of Machinists and
Aerospace Workers, AFL-CIO, or any other labor
organization, by discriminating in regard to hire and tenure
of employment of its employees or by discriminating in any
other manner in regard to any other terms and conditions
of their employment in order to discourage membership or
activities therein.
(b) Threatening to layoff or discharge employees if they
choose a union to represent them.
(c) Promulgating or enforcing a rule forbidding distribu-
tion of union literature in the plant lunchroom or the
posting of union literature on the employees' bulletin
board.
(d) In any like or related manner interfering with,
restraining, or coercing any employee in the exercise of his
right to self-organization, to bargain collectively through
representatives of his own choosing, to engage in concerted
activity for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such
activities.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer the employees named below immediate and full
reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other rights
and privileges and make them whole for any loss of pay
they may have suffered as a result of their discharge in the
manner set forth in "The Remedy" section entitled herein.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze and compute the amount of backpay
due under the terms of this recommended Order.
(c) Post at its plant, in Independence, Missouri, copies of
the attached notice marked "Appendix."6 Copies of said
notice, on forms provided by the Regional Director for
Region 17, after being duly signed by the Respondent's
authorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have been
taken to comply herewith.?
It is further recommended that the complaint be
dismissed in all other respects.
5 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , and recommended Order herein shall, as provided in
Section 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.
6 In the event that the Board's 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
4 In the event that this recommended Order i s adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 17, in writing , within 20 days
from the date of this Order, what steps the Respondent has taken to
comply herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had a chance to give
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations Act and has
ordered us to post this notice:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
HEMCO CORPORATION
To bargain collectively through representatives of
their choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all these things.
WE WILL NOT threaten to lay off or discharge
employees if they choose a union to represent them.
WE WILL NOT promulgate or enforce a rule forbid-
ding distribution of union literature in the plant
lunchroom or the posting of union literature on the
employees' bulletin board.
WE WILL NOT do anything that interferes with,
restrains, or coerces employees with respect to these
rights.
WE WILL NOT discriminate against our employees for
engaging in activities on behalf of the Union or on their
own behalf.
WE WILL reinstate the employees named below to the
positions they held before our discrimination against
them and make them whole for any loss of pay they
may have suffered by reason of that discrimination.
Mildred Braxdale Mary Shandler
Edith Harris Ruby Williams
Jannice Kinnison Jams Keltner
Bessie Neal
HEMCO CORPORATION
(Employer)
Dated By
793
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board 's Office, 610
Federal Building, 601 East 12th Street, Kansas City,
Missouri 64106 , Telephone 816-374-5181.