Hesse Corp.

National Labor Relations Board - Board Decisions

Sep 11, 1979

244 N.L.R.B. 985 (N.L.R.B. 1979)

Hesse Corporation and Edward A. Burkhardt. Case
17-CA-8541
September 11. 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On June 27, 1979, Administrative Law Judge Da-
vid L. Evans issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting 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.
ORDER
Pursuant to Section 10(c)of the National Labor Re-
lations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby
orders that the Respondent, Hesse Corporation, Kan-
sas City, Missouri, its officers, agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge: This pro-
ceeding under Section 10(b) of the National Labor Rela-
tions Act, as amended (the Act), arises from a charge filed
on September 29, 1978,' by Edward Burkhardt, an individ-
ual.' Based thereupon, the General Counsel of the National
Labor Relations Board issued a complaint against Hesse
Corporation, herein called Respondent, which filed an an-
swer denying the commission of any unfair labor practices.
The case was heard on January 16, 1979, in Kansas City,
Kansas. The basic issue of the case is whether Respondent
I All dates are in 1978 unless otherwise specified.
2This charge was originally consolidated with Case 17 CA-8538, which
was filed by the Union on September 28. After the close of the hearing the
Union submitted a request to withdraw said charge, representing that the
matters involved therein had been settled. By Order dated March 26. 1979,
approved said withdrawal request and further granted a motion filed by
General Counsel to withdraw the allegations of the complaint based there-
upon, to wit, par. 5(a) of the complaint.
violated Section 8(a)(1) of the Act by suspending six em-
ployees for a period of up to 2 and a portion of workdays
because they engaged in activity which is protected hb Sec-
tion 7 of the Act. General Counsel and Respondent have
filed briefs which have been carefully considered. Upon the
entire record I make the following:
FINDINGS OF FA(cI
I. THE BSINESS OF RI-SPONI)IN I
Respondent is a corporation engaged in the manuftlcture
of beverage truck bodies at a facility located in Kansas
City., Missouri. where in the course and conduct of its bus/-
ness operations it annually purchases goods and services
valued in excess of $50.000 directly from sources located
outside Missouri. The complaint alleges. Respondent ad-
mits, and I find that Respondent is an employer engaged in
commerce within the meaning of Section 2(2). (6). and (7)
of the Act.
II. THE LABOR ORGANIZAIItON INOI.tEI)
The complaint alleges. Respondent admits, and I find
that International Union. United Automobile. Aerospace
and Agricultural Implement Workers of America. UAWV. is
and has been at all times material herein a labor organiza-
tion within the meaning of Section 2(5) of the Act.
Ill. THE ALLEGiD UNFAIR LABOR PRA(CTIC(S
The material facts are not in dispute. The Union has
represented Respondent's production and maintenance em-
ployees since 1962. The current labor agreement contains a
union-shop provision. i.e.. one which requires membership
in the Union after 30 days of employment. In the 1978
Missouri general elections there was included a "right-to-
work" proposition, passage of which would have outlawed
such union-shop agreements. Employee William Floyd tes-
tified without contradiction that at some time during 1978
Respondent's president, Michael Ireland, brought a petition
to the plant, the effect of which was to express favor toward
the "right-to-work" proposition or its being placed on the
ballot. Floyd declined Ireland's offer as he, along with the
Union, was opposed to the proposition.
During the campaign the Union distributed bumper
stickers which were 14 inches long and 3-3/4 inches wide.
The legend of the bumper stickers was:
I'M AGAINST THE PHONY "RIGHT TO WORK" FOR ESS AND
LESS
On September 27 and 28 six employees in Respondent's
welding shop stuck the bumper stickers on their weldinghel-
mets in a fashion which did not obstruct the lenses. These
employees were Donald Lee Hull, Edward A. Burkhardt.
Walter Hill. Joe Nichols. David Schirlls. and John Wood.
Most of them accomplish this by slitting the stickers so that
the "I'm Against" part could be placed at one point on the
helmet and the remainder on another. Additionally, on the
morning of September 27 Hill stuck one of the bumper
244 NLRB No. 165
HESSE CORP. 985
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stickers across his shirt. When instructed by Plant Manager
Tobe Tennyson to remove it, he did so; but in the after-
noon, after conferring with the union steward, he placed
another bumper sticker on his welding helmet, as did the
other welders.
Upon observation by supervisors the six employees were
told that they could not continue welding unless they re-
moved the stickers from their helmets. Each of these six
refused to do so, and they were instructed to leave the work
area. Each of them left the work area, punched out and left
the plant. On Friday morning, September 29, Union Stew-
ard William L. King called each of the six employees at
home and told each one that the union thought they had
made their point, and that they should return to work and
let the Union handle the matter. Each of the six returned on
that date or the following workday, Monday, October 2.
There is no contention by Respondent that it was enforc-
ing a pre-existing rule. Indeed, union buttons and smaller
stickers on employees' clothing and personally owned
equipment were freely permitted up until the events of this
case. The helmets were owned by the employees.
On September 28, immediately after the suspensions of
that day, Respondent posted the following notice around
the plant.
NOTICE
COMPANY POLICY
Any employee distributing or displaying any banner,
sticker, or printed material of a political nature, during
working hours, in the work area, will be subject to
disciplinary action.'
Also on September 28 Respondent issued to all employees a
2-1/3 page notice from Ireland stating, inter alia.
Yesterday three employees pasted and were wearing
these bumper stickers on their welding masks while
working in the plant production area. Even after Tobe
Tennyson went down and advised these employees
that these bumper stickers could not be worn on the
employees' person, clothing or equipment in work
areas at the plant, these employees refused to remove
the bumper stickers. Tobe, rightly in my opinion, told
the employees that the management did not want them
to wear these stickers while working. He told them
they should either remove the bumper stickers and go
back to work or punch out for the day and go home.
All three wrote a grievance claiming that the Compa-
ny's refusal to let them wear the bumper stickers on
their welding masks violated their rights as union
members and constituted an unfair labor practice.
Again today three additional employees pasted
bumper stickers on their welding masks, in spite of the
fact that these employees already knew the Company's
3The complaint does not allege and Respondent has not otherwise been
put on notice that General Counsel contends that this rule prohibits pro-
tected activity and therefore is unlawfully broad and therefore its promulga-
tion and subsequent maintenance constitutes an independent violation of
Sec. 8(aX)() of the Act. Therefore the issue has not been fully litigated, and I
make no conclusion in this regard.
position on wearing these bumper stickers in the work
area and knowing full well that the same exact ques-
tion had been grieved yesterday. For some reason it
seems as if some employees are deliberately attempting
to force the Company into an unnecessary and unde-
sirable confrontation.
Employee Burkhardt testified that on September 27 he
asked Tennyson why he was instructed to remove the
bumper sticker from his helmet. According to Burkhardt,
Tennyson replied, "its distracting." Burkhardt responded:
"The only one I think it is distracting is you." Union Stew-
ard King testified that upon his presentation of the griev-
ance of the first three employees suspended he asked Ten-
nyson what the problem was regarding the bumper stickers.
According to King, Tennyson replied: "They are creating a
disturbance." King responded, "I don't think there was any
disturbance until you created it because Don Hill, for one.
had had a bumper sticker on his hood for a couple of
weeks. Nobody said anything and nobody cared." The tes-
timonies of Burkhardt and King are undenied, and I credit
them as quoted. At the time of these exchanges Tennyson
did not take issue with the assertions of either Burkhardt or
King, and on cross-examination Tennyson acknowledged
that there had been no interruptions of production or "dis-
turbance" until Respondent's supervisors began ordering
employees to remove the bumper stickers.
Analysis and Conclusions
General Counsel contends that by threatening to suspend
and by suspending the six employees for their wearing of
the bumper stickers Respondent violated Section 8(a)(1) of
the Act because said display constituted activity protected
by Section 7. In so doing, General Counsel relies upon
Eastex, Inc., v. N.L.R.B., 437 U.S. 556 (1978), wherein the
Court held that advocacy of labor's traditional position of
opposing "right-to-work" laws is sufficiently related to em-
ployees' interests to come within the guarantee of the "mu-
tual aid or protection" clause of Section 7 of the Act.
While acknowledging the authority of Eastex, as it states
in its brief, "Respondent does not believe that the decision
in that case grants employees 'carte Blanche' to engage in
unusual and unreasonable conduct under a protective ban-
ner of 'right-to-work.' " Respondent argues that the bumper
stickers were "unusual and unreasonable," and that their
prohibition was no different from that made by the em-
ployer in Fabri-Tek Incorporated v. N.L.R.B., 352 F.2d 577
(8th Cir. 1965), which Respondent cites as authority for the
proposition that an employer may prohibit all but "custom-
ary buttons worn in a conventional manner."
The holding of the circuit court is not so sweeping as
Respondent makes it out be. The court is not so sweeping
as Respondent makes it out to be. The court found that the
employer's prohibition against large union campaign but-
tons was consistent with its rule against all "solicitations"
and that the buttons had a "tendency to distract" which the
court found to be a sufficient basis for the prohibition. In so
holding, the court refused to enforce the Order of the Board
at 148 NLRB 1623 (1964). Aside from the fact that I am
986
2. By threatening to suspend and by suspending employ-
ees Donald Lee Hlull, Edward A. Burkhardt. Walter Hill.
Joe Nichols. David Schirils, and John Wood because the3
engaged in protected concerted activities Respondent inter-
fered with, restrained. and coerced its employees in the ex-
ercise of rights guaranteed in Section 7 of the Act and
thereby has engaged in unfair labor practices within the
meaning of Section 8(a)( 1 ) of the Act.
3. he aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
RE FMD)Y
Having found that Respondent has engaged in unfair la-
bor practices in violation of Section 8(a)(1) of the Act, I
shall recommend that it be ordered to cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act. I recommend that Re-
spondent be ordered to make whole Donald Lee Hull, Ed-
ward A. Burkhardt, Walter Hill, Joe Nichols, David
Schirlls. and John Wood. with interest. for any loss of pay
suffered as a result of their unlawful suspensions, with back-
pay computed in the manner established in F. I. ool-
worth Companw, 90 NLRB 289 (1950). and Florida Steel
Corporaturion, 231 NLRB 651 (1977): see. generally. Isis
Plumbing & Heating Co.. 138 NLRB 716 (1962).
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record and in accordance with
Section 10(c) of the Act I hereby issue the following recom-
mended:
ORDER'
The Respondent, Hesse Corporation, Kansas City. Mis-
souri, its officers, agents successors and assigns. shall:
1. Cease and desist from:
(a) Threatening to suspend or suspending employees be-
cause they engage in protected concerted activity.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action necessary to etf-
fectuate the policies of the Act:
(a) Make Donald Lee Hull, Edward A. Burkhardt. Wal-
ter Hill, Joe Nichols. David Schirlls, and John Wood whole
for any loss of pay they may have suffered as a result of
their unlawful suspension in the manner set forth above in
the section entitled "The Remedy."
(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-
I 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. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall he deemed
waived for all purposes
bound by the Board's decision in Fahri-Tek, Incorporated,
supra, I would point out that the circuit premised its deci-
sion on its conclusion that the "oversized" (3-inch diam-
eter), buttons in question were a virtual certainty to create
disruption among employees as they advocated emploq ee se-
lection of one of two "rival union factions." Sec. 352 F.2d
at 586. Here, the legend of the bumper stickers advocates a
position which, according to this record,4 was previously
opposed by only one person in the plant. Ireland.
The law is clear that substantial evidence of special cir-
cumstances of interference with production is required be-
fore an employer may prohibit the wearing of union insig-
nia, and the burden of establishing those circumstances
rests upon the employer. See Eckerd's Market, Inc., 183
NLRB 337 (1970); Fabric Services. Inc., 190 NLRB 540
(1971): The Singer Company, Friden Division, 199 NLRB
1195 (1972); the Board's decision in Fabri-Tek, Incorpo-
rated, supra, and the authorities cited in each of those cases.
Respondent does not dispute that this law would necessar-
ily apply to the wearing of insignia of protected concerted
activity, as well as union insignia. It contends that the spe-
cial circumstances have in this case been shown which jus-
tify the prohibition of the bumper stickers.
Tennyson conceded that there was no interruption of
production until he moved to have the bumper stickers re-
moved. It is further undisputed that the stickers on the hel-
mets did not block the vision of the wearer or otherwise
physically interfere with his work. Respondent speculates
that had the employees been allowed to continue wearing
the stickers on the helmets other employees may have been
stricken with curiosity or amusement and stopped their
work or, worse, been so distracted that they might have
burned themselves with the welding torches. Aside from the
fact that this argument is speculation in its purest form, any
reasonable basis for it is removed when one considers the
fact that the body shop area in which the six suspended
welders worked covered some 6,000 square feet, and Tenny-
son testified that the welders therein are stationed about
100 feet apart. Amusement or distraction from that distance
would require more than the placement on a welding hel-
met of a bumper sticker stating a position traditionally ad-
vocated by the employees' collective-bargaining representa-
tive and previously well known to the employees.
Having found that Respondent has failed to show special
circumstances which would justify its prohibition of the
wearing of the bumper stickers, I find and conclude that it
violated Section 8(a)(1) by ordering the employees to re-
move them from their helmets or other clothing and by
suspending them for their refusal to comply with those or-
ders.
CONClUSIONS OF AW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
I Had there been employee support for the ballot proposition which would
have nullified the union-shop clause in the current contract between Respon-
dent and the Union. Respondent presumably would have produce evidence
to so demonstrate.
HESSE CORP. 987
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sary to analyze the amount of backpay due under the terms
of this Order.
(d) Post at its place of business and office at Kansas City,
Missouri, copies f the attached notice marked "Appen-
dix."6 Copies of said notice, on forms provided by the Re-
gional Director for Region 17, after being duly signed by
Respondent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, defaced. 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
Respondent has taken to comply herewith.
6 In the event that 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which both sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the law and has ordered us to
post this notice.
WE WILL NOI threaten to suspend or suspend em-
ployees because they engage in protected concerted ac-
tivity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them in Section 7 of the National
Labor Relations Act.
WE WILL make Donald Lee Hull, Edward A. Burk-
hardt, Walter Hill, Joe Nichols, David Schirlls, and
John Wood whole for any loss of pay they may have
suffered as a result of our discrimination against them.
HESSE CORPORATION
988