Hoyt Water Heater Co.

National Labor Relations Board - Board Decisions

Feb 19, 1987

282 N.L.R.B. 1348 (N.L.R.B. 1987)

1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stead Industries , Inc., d/b/a Hoyt Water Heater
Company and International Union of Operating
Engineers, Stationary Local 39 . Case 32-CA-
7554
19 February 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 1 July 1986 Administrative Law Judge Joan
Wieder issued the attached decision. The General
Counsel filed exceptions and a supporting brief,
and the Respondent filed an answering brief.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, findings, I and
conclusions and to adopt the recommended
Order.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Stead Indus-
tries, Inc., d/b/a Hoyt Water Heater Company,
Stead, Nevada, its officers, agents, successors, and
assigns , shall take the action set forth in the Order.
MEMBER STEPHENS, dissenting in part.
' Contrary to our dissenting colleague , we agree with the judge that
the Respondent did not engage in surveillance in violation of Sec 8(a)(1)
of the Act As found by the judge, the General Counsel failed "to show
that more than fortuitous circumstances brought the supervisors to drive
past Bailey's premises" and that "[t]hey were not shown to have engaged
in suspicious behavior or 'untoward conduct We therefore agree with
the judge that the mere showing by the General Counsel that the Re-
spondent's management personnel drove down a public road past an em-
ployee's house at a speed dictated by the road conditions is not sufficient
to establish a prima facie case of surveillance
Our dissenting colleague attempts to distinguish Sere-Air Aviation, I I I
NLRB 689 (1955), on the basis that the street in that case was a "princi-
pal" street, whereas, according to our colleague, the street in the present
case was "residential " Such a distinction, however, presumes facts not in
the record In the present case no evidence was presented as to the char-
acter of the street There is no mention of the street's width, number of
lanes, amount of traffic, its location relative to the plant, or even the type
of area through which it runs The only thing that is known about the
street is that it has speed bumps every fourth or fifth house As the judge
observed, "it could be a major thoroughfare often traveled by the super-
visors "
Under these circumstances, we find that the General Counsel failed to
present sufficient evidence to establish a prima facie case Accordingly,
we dismiss this complaint allegation
2 The General Counsel has requested that the Order include a visita-
torial clause authorizing the Board, for compliance purposes, to obtain
discovery from the Respondent under the Federal Rules of Civil Proce-
dure under the supervision of the United States court of appeals enforc-
ing this Order Under the circumstances of this case, we find it unneces-
sary to include such a clause Accordingly, we deny the General Coun-
sel's request
Contrary to the judge and my colleagues, I find
that the General Counsel established a prima facie
case that the Respondent engaged in unlawful sur-
veillance of its employees. By prima facie case, I
mean both that the General Counsel produced evi-
dence sufficient to permit the critical inference
concerning the nature of the activity in question
and that, as a judge of the facts, I draw that infer-
ence. Thus, I find it more probable than not that
the Respondent's managers were not merely coinci-
dentally driving past the house in which the union
meeting was held but were looking to see who was
in attendance.'
The record reveals that on 2 October 19852 em-
ployee Ronald Bailey walked through the Re-
spondent's facility shouting, "They just fired me
for Union activity"3 and announced, "Union meet-
ing at my house tomorrow at 3:30." Employee
Brad Holmquist, who went to the meeting, credi-
bly testified that on 3 October, after parking his car
at an intersection with a clear view of Bailey's
house, he observed President and Coowner Dan
Lannes drive past the house during the meeting.
Five minutes later he saw Manufacturing Vice
President Jim Bridegum and Industrial Relations
Manager David Luther drive past Bailey's house
together. All were driving very slowly, Holmquist
testified, and were "looking around at homes and
parked cars."4
The record further discloses that although the
three managers were called as witnesses by the Re-
spondent, none testified about the alleged surveil-
lance incident. On the subject of Bailey's termina-
tion, however, Bridegum testified that he was con-
cerned about whether employees believed Bailey
was discriminatorily discharged and that he met
with leadmen and held other meetings with em-
ployees in the 2 days following Bailey's termination
to ascertain their understanding and to inform them
that Bailey quit.
In spite of the foregoing evidence, the judge
found that the managers' conduct was "suspect"
but that the "General Counsel has failed to sustain
the burden of raising the suspicion to proof of un-
' See 9 Wigmore, Evidence § 2494 at 378-381 (Chadbourn rev 1981)
(distinguishing two meanings of prima facie case) I am using the term in
the first sense cited by Wigmore-having looked at all the evidence, I
find that the General Counsel is entitled to a ruling in her favor
Smc.e credibility resolutions are not involved here, I am not precluded
from drawing the inference by the judge's implicit drawing of a contrary
inference Oil Workers Local 4-243 v NLRB, 362 F 2d 943, 946 (D C
Cir 1966), NLRB v Lenkurt Electric Co, 438 F 2d 1102, 1105 fn 3 (9th
Cir 1971)
s All dates refer to 1985
As noted by the majority, no party excepted to the judge's finding
that Bailey voluntarily quit
4 The street on which Bailey's house is situated has speed bumps
which necessitate slow speed driving Holmquist indicated that Lannes'
car was going about 5 miles per hour
282 NLRB No. 182
HOYT WATER HEATER CO
lawful surveillance."S In so finding, she relied on
Elk Brand Mfg. Co., 253 NLRB 1038 (1981), and
Gossen Co., 254 NLRB 339 (1981). I note that, in
the cases cited, the supervisors whose conduct was
suspect offered explanations for their presence, and
that these explanations were credited. Factually
more similar to the instant case, but equally distin-
guishable, is Serv-Air Aviation, 111 NLRB 689
(1955), cited by the Respondent in support of the
conclusions. In Serv-Air, as here, the setting was a
small town, the employer had knowledge of the
union meeting, and a supervisor drove by the site
at which employees had gathered. No explanation
for the supervisor's presence was offered, and his
presence was adjudged to be fortuitous. Unlike the
instant case, however, the employees had gathered
on the steps of the post office, which was located
on a "principal street."
In my view, the evidence that Lannes, Bride-
gum, and Luther drove along this residential
street,6 within a few minutes of one another, and
looked at parked cars and houses, during a union
meeting that they knew about in advance and that
involved a subject about which they were greatly
concerned, preponderates against a finding of mere
coincidence. It is sufficient to establish a prima
facie case of unlawful surveillance and to shift to
the Respondent the burden of producing evidence
suggestive of a lawful reason for its managers' pres-
ence. Because the Respondent did not present any
evidence on this issue, I would find the violation.
s The judge's statement that the managers ' conduct was "suspect" is,
in my view, inconsistent with her observation, on which my colleagues
strongly rely, that the managers "were not shown to have engaged in
suspicious behavior or untoward conduct " To be sure, they were not
shown to have engaged in blatant conduct such as taking photographs or
parking their cars in order to take a longer look, but the essence of a
surveillance violation is that the employer's representatives have spied on
union activities As explained below, I believe there is sufficient evidence
of that sort of "untoward conduct " Certainly employee Holmquist, who
found himself the object of attention by at least three managers in two
cars, driving by within 5 minutes of each other at a speed slower than
that required even by the speed bumps, had reason to believe his attend-
ance at the meeting was under surveillance
6 My colleagues state that I presume facts not in evidence by charac-
terizing the street as "residential," since no definitive description of Bai-
ley's street was given In my view, the majority ignores facts that are in
evidence, namely, employee Holmquist's unrefuted testimony that the
managers were "looking around at homes and parked cars" and that the
street had speed bumps every four or five houses" (emphasis added) If,
notwithstanding this evidence of residential character, the Respondent
could show that this was in fact a commercial area that the managers had
reason to traverse apart from any interest in examining the houses and
parked cars, it was up to the Respondent to produce such evidence
Raoul Thornbourne , Esq., for the General Counsel.
Kevin P. Block, Esq. and Robert M. Lieber, Esq. (Littler,
Mendelson , Fastiff & Tichy), for the Respondent.
DECISION
STATEMENT OF THE CASE
1349
JOAN WIEDER, Administrative Law Judge. This case
was heard by me at Reno, Nevada, on 20 and 21 Febru-
ary 1986 1 The charge was filed on 7 October by the
International Union of Operating Engineers, Stationary
Local 39 (the Union). A complaint based on this charge
was issued on 27 November The complaint alleges that
Stead Industries, Inc., d/b/a Hoyt Water Heater Compa-
ny (Respondent or the Company) threatened an employ-
ee that it would move its facility if the employees select-
ed the Union as their collective-bargaining representa-
tive; threatened its employees that it would go out of
business or into bankruptcy if the employees selected the
Union as their collective-bargaining representative; en-
gaged in surveillance of one employee meeting where
they were engaged in union activities; maintained and en-
forced a rule prohibiting soliciting of any kind on its
premises and selectively and disparately prohibited
union-related solicitations while permitting other types of
solicitations in violation of Section 8(a)(1) of the Nation-
al Labor Relations Act (Act); and discharged employee
Ronald Bailey and failed and refused to reinstate him be-
cause he engaged in protected concerted activity, in vio-
lation of Section 8(a)(1) and (3) of the Act. The Re-
spondent denies that it has violated the Act.
Based on the entire record, including my observation
of the demeanor of the witnesses, and after considering
the briefs filed by the General Counsel and Respondent,
I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Nevada corporation with an office
and place of business in Stead, Nevada, where it manu-
factures and sells water heaters. During the 12 months
prior to the issuance of the complaint, Respondent, in the
course and conduct of its business, sold and shipped
goods and provided services valued in excess of $50,000
directly to customers located outside the State of
Nevada. The Company admits, and I find, that it is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that assertion of
jurisdiction over its operations will effectuate the policies
of the Act.
11. THE UNION
The Union is a labor organization within the meaning
of Section 2(5) of the Act
iii. THE ALLEGED UNFAIR LABOR PRACTICES
A Background
Respondent, which employs about 325 people, moved
its plant and principal place of business from Oakland,
California, to a new facility in Stead, Nevada, in 1982.
i All dates are in 1985, unless otherwise indicted
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
One reason for the move was to take advantage of the
lower wage rate prevailing in Stead, Nevada The Com-
pany is managed by President Dan Lannes, the owner,
Jim Bridegum , manufacturing vice president, David
Luther , industrial relations manager , and Norman Wort-
man, maintenance superintendent . These company offi-
cials are admitted statutory supervisors and agents.
At approximately 8.30 a.m. on 2 October, Bailey called
the Union to initiate organizing activity. He selected the
Union at random and spoke to Michael Magnani, a busi-
ness agent . Bailey was hired by Respondent in June 1984
as a production worker and paid $4.50 per hour. His em-
ployment with the Company ended on 2 October. Bailey
was maintenance man on 2 October earning $8 per hour.
Bailey's immediate supervisor was Wortman . Bailey
claims he was fired for his union activity for the day
Respondent asserts Bailey quit.
1. Bailey's work history
The job with Respondent was Bailey's third full-time
job. His first job was with Burnup & Sims Cable Compa-
ny. He quit that job, explaining he was getting married
and did not want to travel Bailey then went to work
with Leader Stamping & Manufacturing, which is locat-
ed in Reno, Nevada, and did some work for Respondent.
He quit that job, purportedly because one or more pay-
checks bounced At the time he left, he was earning
about $8 50 per hour. The dates he worked for his first
two employers are not a matter of record. After leaving
Leader Stamping & Manufacturing Company, which is
owned by a friend of Bailey's father-in-law, he went to
work for Respondent at the much lower wage of $4.50
per hour.
In 1980 Bailey was convicted of burglary. This infor-
mation was placed into evidence to impeach Bailey who
had previously testified in reply to questions asked on
cross-examination without objection that he was an
honest man who had never committed a dishonest act
and had never been convicted of a crime Respondent
placed in evidence a judgment finding Bailey guilty of
burglary and sentencing him to 4 years' imprisonment.
The sentence was suspended, and Bailey was placed on
probation for 5 years and required to make restitution
The General Counsel objected to the evidence, argu-
ing that it is inadmissible for impeachment purposes
under Rule 609(c) of the Federal Rules of Evidence 2
After Bailey completed probation and made restitution,
he received an Order Honorably Discharging Probation-
er. The General Counsel asserts this order meets the cri-
teria of Section 609(c). The majority of circuit courts of
appeals find that such orders do not meet the criteria of
Section 609(c), rather they evince a restoration of civil
rights. The advisory committee explains
2 Rule 609(c) provides
Evidence of a conviction is not admissible under this rule if (1) the
conviction has been the subject of a pardon , annulment , certificate of
rehabilitation , or the equivalent procedure based on a finding of re-
habilitation of the person convicted, and that a person has not been
convicted of a subsequent crime which was punishable by death or
imprisonment in excess of one year, or (2) the conviction has been
the subject of pardon , annulment, or other equivalent procedures
based on a finding of innocence
a pardon or its equivalent granted solely for
the purposes of restoring civil rights lost by virtue
of a conviction has no relevance to an inquiry into
character If, however, the pardon or other pro-
ceeding is hinged upon a showing of rehabilitation,
the situation is otherwise The result under the rule
is to render the conviction inadmissible
See A.L.J. Proceeding 310 (1961)
The General Counsel had the burden of demonstrating
that the conviction for burglary was the subject of a cer-
tification of rehabilitation or some other equivalent pro-
cedure U.S. v. Trejo-Zambrano, 582 F.2d 460 (9th Cir.
1978), cert. denied sub nom Fierro-Soza v. U.S., 439 U S.
1005 (1978) I find that the record does not support a
finding that Bailey has been rehabilitated or granted
some equivalent. The State of Nevada does not consider
its "Honorable Discharge from Probation" to be a
pardon or proof of rehabilitation, rather it considers it a
restoration of civil rights. See Sections 176.225 and
50 095 of the Nevada Revised Statutes. Nevada law
would permit the evidence of the convicted to be used
for impeachment purposes. Cf Yates v. State, 596 F 2d
239 at 241. In the Yates case, id , the court found no re-
quirement that only felonies specifically relevant to the
defendant's propensity towards mendacity could be used
for impeachment.
I also find that the record does not support a conclu-
sion that the evidence, distinct from the Order, shows
that Bailey has been rehabilitated. U.S. v. Wiggins, 556
F 2d 944 (5th Cir.) cert. denied 436 U.S 950 (1978). Cf.
U.S. v. DiNapoli, 557 F 2d 962 (2d Cir ), cert. denied 434
U.S. 858 (1977) U.S. v. Jones, 647 F 2d 696 (6th Cir.
1981) There was no indication that Bailey had been re-
habilitated by evidence such as undergoing therapy, edu-
cation, or other assistance, and his work history of quit-
ting his jobs does not demonstrate rehabilitation U.S. v.
Thorne, 547 F 2d 56 (8th Cir. 1976). Although the order
may facially appear to annul Bailey's conviction, the ap-
plicable state and Federal law treats the order merely as
restoring his civil rights. I therefore conclude that the
evidence of Bailey's conviction for burglary is admissible
under Section 609(c) of the Federal Rules of Evidence.
Respondent argues that the conviction is also evidence
of Bailey's propensity for mendacity. Respondent failed
to cite any authority for this position I find this position
to be without merit As counsel for the General Counsel
notes, burglary is not a crime which establishes a propen-
sity towards mendacity. US. v Seamster, 568 F.2d 188
(10th Cir. 1978), and Unarco Industries, 197 NLRB 489
(1972). However , in this case , the conviction is admissi-
ble to rebut the witness' claim that he never committed a
dishonest act or had been convicted of a crime Al-
though Bailey contended he construed the order as exon-
erating him from the crime, there was no explanation of
why he did not consider his participation in the burglary
dishonest I find Bailey's excuse for not anwering the
question fully and honestly unconvincing and demonstra-
tive of a tendency to prevaricate.
The General Counsel also argues that the evidence of
Bailey's conviction is not admissible under Section 609(a)
HOYT WATER HEATER CO. 1351,
of the Federal Rules of Evidences The argument is
based on the contention that the evidence of a 5-year-old
conviction is more prejudicial than probative of Bailey's
credibility. This argument is not persuasive in this case
because Bailey was convicted of the crime less than 10
years ago; the crime was a felony that carried a mul-
tiyear sentence; the importance of this witness' testimo-
ny; and, the centrality of the credibility issue. See U.S. v.
Hawley, 554 F.2d 50 (2d Cir. 1977). The potential preju-
dicial effect of the evidence was occasioned by Bailey's
ready responses to questions on cross-examination that
were not the -subject of,an objection, i.e., "Have you
ever committed any dishonest arts?" to which he replied,
"No," and "Have you ever been convicted of a crime?"
to which he replied, "No." As the witness' misrepresen-
tations regarding the nature and the existence of the
prior conviction raised the need for the rebuttal evi-
dence, it is clearly admissible under this rule. See the
Report of the Senate Committee on the Judiciary. Cf.
McGautha v. California, 402 U.S. 183. Howard x Gon-
zales, 658 F.2d 352 (5th Cir. 1981). I find that the proba-
tive value of this evidence under these circumstances
clearly outweighs the prejudice to Bailey. However,
even if it is later found that this evidence should have
been excluded, the conviction' is considered only to re-
solve credibility. I also find that even absent this evi-
dence, as discussed below, there is ample evidence to
support my credibility resolutions.
The General Counsel asserts that evidence regarding
an allegation that Bailey falsified a timecard should be
excluded under Section 608(b) of the Federal Rules of
Evidence, which precludes the use of extrinsic evidence
of specific acts of conduct for the purpose of attacking
credibility. Bailey denied falsifying his timecard on cross-
examination. The falsification of a timecard is clearly an
act that concerns the witness' character and is a deceitful
act, which may demonstrate the witness' willingness to
lie on the ,witness stand. This evidence was admitted, not
as probative of truthfulness, but as relevant to the issue
of whether Bailey quit or was fired. Bailey was denied a
raise allegedly because he falsified his timecard, and a
witness testified that Bailey mentioned the denial of his
raise as one reason he considered quitting. Accordingly,
this evidence will only be considered as it explains the
motives of both Respondent and Bailey, regarding the
events of 2 October.
On I I March, while Bridegum was speaking to Bailey
about an incident he was involved in, Bailey said he quit.
The incident involved a dispute over which of two em-
ployees was to have, the use of a forklift truck. A super-
visor, Paul Esposito, saw Bailey and one of the employ-
ees he supervised arguing over who had the right to use
a forklift truck. Esposito intervened and instructed
a Rule 609(a) provides
For the purpose of attacking the credibility of a witness, evidence
that he has been convicted of a ,crime shall be admitted as elicited
from him or established by public record during cross -examination
but only if the crime (1) was punishable by death or imprisonment in
excess of one year or, under the law which he was convicted, and
the court determines that the probative value of admitting the evi-
dence outweighs its prejudicial effect to the defendant, or (2) in-
volved dishonesty or false statement, regardless of the punishment
Bailey to let White, the other employee, have the fork-
lift. According to Esposito, Bailey had threatened to
"kick White's ass"; refused initially to follow Esposito's
directive to relinquish the forklift; said he was going to
"kick Espositio's ass" also; invited him outside; and com-
mented "that he would get me, or I was going to get
mine ...." Bailey is a large man, standing 5 feet 11
inches tall and weighing about 275 pounds. He admitted
holding a purple belt in karate, which he described as
close to a black belt , and reflected considerable expertise
in the martial arts. Esposito is considerably older and
smaller than Bailey. White is no longer an employee of
the Company and did not appear to testify. When Espo-
sito saw Bridegum, he reported the incident and request-
ed' Bridegum talk to Bailey to straighten him out because
he did not want to be threatened and intimidated by him.
Bridegum was going to have Wortman talk to Bailey
about the incident, but he could 'not readily locate Wort-'
man so he talked to Bailey himself. Bridegum, in unrefut-
ed testimony, said he asked Bailey to "do me a favor.
When you need a forklift and a supervisor tells you you
can't have one, don't start an argument and don't try to
start a fight. Go to your foreman and tell him to get you
a forklift." Bailey reacted to the requested by quitting.
He was visibly upset and angry. Bailey admitted he told
Bridegum he quit and explained his action as one taken
because Bridegum was "ragging on me . . . . Coming
down-He's always sitting there yelling at somebody
over something stupid." Wortman was informed by
Bridegum of the event and Bridegum said he was sorry
because he knew the maintenance department was short-
handed. Wortman saw Bailey before he left the premises
that day and told him he had quit. Wortman told Bailey,
who was still visibly upset, to calm down, take a couple
of hours to cool off, and then return. Wortman testified
without contradiction that Bailey returned to the plant
about 2 hours later and told him he made a mistake and
that "it would never happen again." Bailey also indicated
that he needed the job to support his family. Consonant
with established practice, Bridegum, placed a memoran-
dum about the incident in Bailey's file about the time of
the event. Bailey was permitted to return to work.
As noted above, in August Bailey asked Wortman for
a raise to cover certain, insurance expenses. Wortman re-
layed the request to Bridegum. Sometime later, Wortman
asked Bridegum if he had reached a decision on the raise
request. Bridegum told Wortman that he observed Bailey
arriving at work after 7 a.m. that he checked Bailey's
timecard, which was not punched by the timeclock, con-
trary to explicit instructing, but was filled, out by hand
with an arrival time of 6 a.m. recorded. Bridegum told
Wortman that he considered that stealing and testified
that if they were, not shorthanded, he probably would
have fired Bailey but left it up to Wortman to decide. He
also told Wortman that there was no way he could give
Bailey a raise under the circumstances. Wortman told
Bailey his raise request was denied and why. Bailey said'
he probably had made a mistake and it would not
happen again. As noted above, this evidence will only be
considered in determining whether Bailey felt he had a
reason to quit. Bridegum followed his practice of prepar-
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing a memorandum about the incident at about the time
of the events and placed it in Bailey's personnel file.
B. Events of 2 October
After talking to the union representative, Bailey was
observed going around the plant talking to a variety of
employees. As a maintenance man, Bailey's duties re-
quired, at times, that he work at different locations
throughout the plant and office area On 2 October, he
was assigned to work on a punch press. The Company
had recently purchased two punch presses that were
needed to produce heater parts, and Lannes was very
anxious to have them working. There was no showing
that Bailey was assigned any other duties on this date.
Therefore, I find that there was no demonstrated need
for Bailey to work at any location other than at the
punch press.
About 8 a in. Bridegum observed Bailey in the receiv-
ing department, which is not the area where the punch
press was located There was no contention that Bailey
was in the receiving area on business. There was no
break in progress. The parties stipulated that breaks are
at 9 a.m. and 2.30 p in and that lunch was at 11 30 a.m
At times Bailey's work required he take his breaks at dif-
ferent times, but this was not shown to have been the
case on 2 October. When Bailey saw Bridegum, he im-
mediately returned to the punch press.
Shortly thereafter, also around 8 a.m., James Tidwell,
a supervisor in the receiving department, told Bridegum
that Bailey had asked him to attend a union meeting he
was trying to set up, and Tidwell did not know how to
respond. Bndegum told him it was solely Tidwell's deci-
sion Tidwell also told Bridegum that Bailey had been
observed talking to other employees. Bridegum asked for
the locations of these incidents and the time that Bailey
approached him. Tidwell said he was working at the
time he observed Bailey talking to various employees on
several production lines, and the employees approached
by Bailey stopped work to converse Bailey did not
appear to be working at these times and the conversa-
tions did not occur at breaktimes
Bailey claims he talked to many employees at the
morning break but admitted that he did talk to others
after the break. He also admitted that he lied to Tidwell
when he told him that 60 employees were going to
attend the meeting the following afternoon at his house
after work. Bailey did not deny that he talked to other
employees while he was supposed to be working and
that there were no repairs or other job-related matters
that would have warranted his leaving the punch press
he was assigned to install. Also, Bailey did not dispute
Respondent's contention that he knew the Company
needed the punch press installed quickly and that it held
a high priority. Bailey admitted that he talked to employ-
ees in the paint department and spot welders, but assert-
ed that they continued to work when he talked to them.
He did not controvert Tidwell's testimony that the weld-
ers, had on helmets, which they had to raise in order to
talk to him and thus could not perform their duties and
converse with him at the same time
Another supervisor, Melvin Dinius, foreman in the
punch press department, also was approached by Bailey
to attend the union meeting and related to the event to
Bridegum. Bailey talked to Dinius around 8:30 a.m.
while Dinius was working. Dinius also saw Bailey going
around the facility talking to other employees, apparent-
ly not in the course of his work duties at times when
they were not on break He did not hear the conversa-
tions Bailey had with the other employees. Several em-
ployees later told Dintus that the conversations related to
the union, meeting Bailey was arranging Shortly after his
conversation with Bailey, Dinius related the matter to
Bridegum and asked him what to do, should he attend
the meeting? Bridegum responded that it was up to
Dinius Bridegum asked him if his conversation with
Bailey occurred during work hours and Dinius said yes
Bridegum then tried unsuccessfully to contact the
Company's attorney. He left a message. Later that morn-
ing around 9:30 or 10 a.m., Lannes saw that Bailey was
not working on the punch press, he became upset over
his absence and confronted Bndegum with the failure to
have Bailey working on the machine Bridegum said he
would investigate that matter. Respondent's attorney re-
turned Bridegum's call around 1 p.m. Bridegum decided
to call 'Bailey into his office to get him to stop walking
around the facility disrupting others and to work on in-
stalling the punch press. Wortman was asked to get
Bailey. Bridegum also asked Luther, who was recently
hired, to be present during the interview
Wortman had been advised by Bridegum about 10 a.m.
that day-
There is a problem with Ron Bailey He is trying to
start a Union in this plant . . He is going down
through the assembly lines pulling people away
from their jobs and disrupting assembly lines as he's
going down through the plant from one end of the
plant to the other. And he was leaving my area,
walking with his tools, and then pulling people off
their jobs talking to them . . . . Don't do anthing
. . I have to further check this out We will
probably do something at lunch.
Wortman went to Bailey who was in the press depart-
ment and told him Bridegum wanted to talk him in his
office. According to Wortman's undisputed testimony,
Bailey said, "Well, this looks like it." Wortman did not
respond to the comment Mary Audiss, a current em-
ployee of Respondent, testified that she was at the recep-
tionist's desk when Bailey entered the office area and
that he "busted the door open, very upset about some-
thing" and said in a very loud voice, "I got in trouble
for trying to start a Union. So I'm going to leave."
Audiss asked him what was going on, and Bailey replied,
"He . was sick of the Company so he was going to
quit." Bailey then asked if Bridegum was in his office
and "stomped" back there. Bailey could not recall if
Audiss was at the receptionist's desk when he entered
the office area but denied the conversation she related I
credit Audiss based on her demeanor She testified in an
open manner and visibly tried to tell the whole story
without embellishment or bias.
HOYT WATER HEATER CO.
Wortman corroborated Audiss' testimony. He saw
Bailey talking to Audiss and heard him say in a very
loud voice, "I quit!"
When Bailey walked into Bridegum's office, according
to Bridegum, whose testimony I credit based on his open
and convincing demeanor, he told him to "sit down and
wait" while he got Luther. After Luther joined them,
Bridegum told Bailey he was upset with him because he
was wasting a lot ' of time. "You're walking all over the
plant, not only wasting your time, but wasting time of a
lot of people.... I've got two rules against that. If you
look at your manual, you can't go around and do any-
thing that disrupts the work of others . . . . In addition
to that, you are soliciting. And I don't know whether
you are soliciting for your church or the Community
Chest or the Steelworkers, but you are not going to do it
on company time." Bridegum held up the employees'
handbook, which Bailey said he had, and Bridegum told
him to read it.
The employee handbook contains a no-solicitation rule
as follows:
Solicitation of any type by employees on compa-
ny property is prohibited.
Distribution of literature of any type or descrip-
tion by employees on company property is prohibit-
ed,
The employee handbook was to have been distributed to
all new employees by their foreman and, as far as Bride-
gum knew, this practice was followed.
Bridegum then said it was apparent to him why the
presses had not been done and mentioned another repair
that took too much time to be completed a few weeks
ago saying, "It's pretty obvious why things aren 't getting
done if you're spending time talking to people." Bailey
replied by mentioning the failure to give him the 50-cent
raise and saying, "I get it. I see what the company is
trying to do. I quit, but it will take eight guys that are
going to do the job for me after I leave." Bridegum did
not accept Bailey's quit at this juncture but said, "Ron,
I'm not telling you to quit. I'm telling you to go back
out and to do your work. When you are on company
time, as far as I'm concerned, you are to do nothing but
work. You are not going around to talk to people. You
are not wandering about the plant. So you get back out
there and do your job." Bridegum also told Bailey that
he did not get the raise because of the timecard incident,
that he should have been fired for his action, that he
stole from the Company.
Bailey rejoined that "'I've already given you my
answer. I'm not going back anywhere. T told you I quit."
Bridegum said, "Ron, I'm not telling you to quit. I'm
telling you to go out and do your job like you are sup-
posed to do. You're going to cut out all of this trouble
you caused for me " The "trouble" was then detailed.
An incident where Bailey claimed he threw out a con-
tainer full of isocyanate in a manner contrary to the
practice required for disposing of the dangerous and ex-
pensive chemical was mentioned. Bailey's claim was
partly in error, only a partial container of used isocyan-
ate was improperly disposed of by him. This incident oc-
1353
curred about a month before Bailey started soliciting for
the Union: Reference was also made to an incident
where Bailey told Lannes that a forklift smashed into a
piece of equipment called a shear. This incident occurred
around August. Lannes became very upset and asked
Bndegum to investigate. On investigation, Bridegum
found a little speck of yellow paint on the 40-year-old
machine and no evidence of a forklift recently smashing
into the machine. Bridegum could see every color speck
of paint one could think of on the 40-year-old machine,
which had many nicks on it. A backstop was out of ad-
justment on the machine, a state that could have been
caused by factors other than being hit by a forklift.
Lannes was so upset he indicated he wanted Bridegum
to fire the forklift driver responsible for the incident.
Bailey was told not "to do these things, that he got ev-
eryone excited. After recounting these incidents, Bride-
gum told Bailey he was to go back and do his job and "I
don't want anymore problems from you."
Bailey then stood up, slammed his hand on Bridegum's
desk, and said, "You've got my resignation, get Norm
[Wortman] up here. I want to check out my tools."
Bridegum then obdured, accepted Bailey's quit, and tried
to reach Wortman on the telephone without success.
Bailey left the office. Bridegum bstarted to follow but
then went to try' to find Wortman in another area of the
plant. Audiss saw Bailey exit the office area alone.
Luther, whose testimony corroborates Bridegum, re-
turned to his office. After he left the office area, Bailey
told several people that he had been fired.
Bailey claims that Bridegum, after stating the rule
against soliciting on company time, went on to say that
the Company was losing money, and they moved out of
Oakland because of the Union and would move again if
they had to. After 'making that statement, Bailey claims:
"Then after he saw I wasn't cooperating with him, he
started cutting me down as an individual. He started tell-
ing me how I was like a low-life like the rest of the pro-
duction workers. I shouldn't be paid what I'm being
paid, started bringing up a couple of instances of some of
the things I've done wrong in the past." Bailey equated
Bridegum's "cutting my work performance down" with
"cutting me down." Bridegum, according to Bailey, also
said he was a "shit-disturbing troublemaker. And he
didn't need my kind around there." These, incidents,
which "cut [Bailey] down," included the improper dis-
posal of isocyanate. Bailey admitted, he had made a mis-
take and at that point in the discussion Bridegum alleged-
ly fired him and told him to get his tools.
Bailey's claims that he was fired and Bridegum threat-
ened to move the plant are not credited. Bailey did not
testify with convincing demeanor. 1He was evasive at
times and modified his testimony when confronted with
patent inconsistencies. Bailey responded to questions in a
manner that did not indicate a willingness and an attempt
to be honest and open. At times he appeared to be fenc-
ing with counsel rather than trying to present the facts.
On occasion he engaged in bravura rather than respond
fully to questions, particularly during cross-examination.
He tended to engage in exaggeration. For example, he
claimed to have $10,000 in medical bills and thus would
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not have quit his job When asked to verify this claim, he
could present outstanding medical bills totaling only
$3808.50.
The General Counsel's attempt to buttress Bailey's
claim that he was fired with the testimony of Dave
Sneathen is unconvincing. Sneathen, an employee on the
assembly line, came into maintenance department while
Bailey was getting his tools Bailey told Sneathen he had
just been fired. Bridegum and Wortman were present, he
claims, and did not say anything, Bridegum then left.
There was no showing that Bridegum heard the state-
ment. The record lacks any evidence about where Bride-
gum and Wortman were standing at the time of the al-
leged statement or whether there was any background
noise that may have interfered with Bridegum overhear-
ing the comment. Thus, any inferences that might have
been drawn from Bridegum's failure to comment have
not been shown to be warranted in these circumstances.
Also, there was no showing that Wortman heard Bailey.
The record only indicates that at some time Wortman
met up with Bailey, escorted him to his toolbox, and
heard him tell Audiss before his meeting Bridegum that
he quit. Thus, even if Sneathen's testimony is credited, it
fails to corroborate Bailey for it fails to show that either
Bridegum or Wortman heard the comment or even ob-
served Sneathen enter the area and speak to Bailey.
Bailey also exhibited a lack of clear recall of events
and at times denied events, which he later admitted after
being confronted with statements in his affidavit. Also
his testimony at times lacked clarity, and the manner in
which he testified indicated deliberate attempts to obfis-
cate some facts. On occasion he did not respond to ques-
tions asked during cross-examination, rather he attempted
to place into evidence matters he felt were important.
This tailoring of testimony indicates lack of credibility.
Bailey prevaricated the reason for his leaving either at
trial or during his telephone conversation with Leydon
of Leader Stamping when he told her he quit his job
with Respondent This tendency to prevaricate again sur-
faced in his job application at Pioneer Equipment where
he gave his reason for leaving Respondent as "Unsafe
conditions." When questioned about this statement,
Bailey initially claimed the statement was true, then re-
luctantly claimed it was half true and at last admitted
that it was "less true."
C. Events of 3 October
The morning of 3 October Bridegum learned that the
rumor that Bailey had been fired for union activity was
circulating through the plant. In an attempt to stop the
rumor, Bridegum held a meeting with the leadmen and
supervisors and told them that Bailey had quit but under-
stood that Bailey had been telling people that he had
been fired and that "this thing could be dynamite. This
could cause us all kinds of labor and morale problems "
He told the gathering that they were to inform the em-
ployees that Baily quit.
After the workday, the union organizing meeting was
held at Bailey's residence. According to Brad Holmquist,
a current employee, he parked his vehicle in preparation
to attending the meeting in a position where he could
clearly see Bailey's house and a nearby intersection.
Before exiting the vehicle, he observed Lannes and an-
other person he does not know, drive by Bailey's house
very slowly, about 5 miles per hour, looking all around
at the parked cars and houses. They saw him. They did
not stop. About 5 minutes later, Bridegum and Luther
drove by, going the same direction as Lannes and Driv-
ing similar manner, looking at the parked cars and
houses. They also saw him. The street they drove on had
speed bumps every four or five houses and would permit
a maximum safe driving speed of about 10 to 15 miles
per hour
At the meeting the employees discussed organizing
and some authorization cards were distributed.
Also on the evening of 3 October, Bridegum learned
that at least some employees believed that he had fired
Bailey.
D. Events of 4 October
On entering work on 4 October, Bridegum noticed a
cooling in the employees' attitude toward him by the ab-
sence of greetings. He remained concerned that the em-
ployees believed he fired Bailey, so he decided to call
employee meetings to explain the Company 's position.
During these meetings , of which there were three or
four, he said Bailey was lying when he said he was fired,
he told them Bailey quit. To buttress his position, he
held up Bailey 's last paycheck and explained that under
Nevada law if Bailey had been fired the Company would
have had to pay him the day of his discharge or the next.
At one meeting, Sneathen questioned Bridegum about
the law, and Bridegum explained that the law had been
changed to require quick payment to fired employees.
Bridegum 's explanation of the law was not challenged on
the record nor was there any claim that Bailey filed any
claims with the State of Nevada asserting that the Com-
pany had failed to comply with state law when it failed
to pay him on 2 or 3 October. Bridegum told the em-
ployees: "If I wanted the Union, the quickest way is to
fire someone because they try to start one. We don't do
things like that. We don't fire people for anything but
just cause."
Bridegum also told the employees that they could sign
authorization cards and solicit them as long as they did
so on their own time. He admitted telling them, "that no
one can solicit anything on company time." During these
meetings, Bridegum indicated that the water heater busi-
ness was highly competitive and that employees would
not just get more money if they signed union authoriza-
tion cards. He said the only way they could get more
money was by increasing productivity. By way of exam-
ple, he mentioned his former employer, American Appli-
ance Corporation in Santa Monica, California, which
pays its employees higher wages because their employees
are much more productive. He did mention Respondent
used to be located in Oakland and moved to an area of
lowei wages to be able to compete. He said if Respond-
ent had stayed in the Oakland area where prevailing
wages were higher the Company would not be in busi-
ness today
Bridegum told the employees they were paying them
as much as they could and that they should not sign au-
HOYT WATER HEATER CO. 1355
thorization cards in the belief that it would result in
higher wages. Bridegum denies telling the employees
that if, they selected the Union as their representative the
Company would move, go bankrupt, or go out of busi-
ness. He also denies saying the Company left Oakland,
California, because of the Union.
Holmquist is the only employee witness that did not
clearly corroborate Bridegum . Holmquist testified that
Bridegum mentioned the plant the Company had in Cali-
fornia and that it moved "or, whatever because of the
Union." And they said that the Union, "if it came into
this plant, it probably would drive them bankrupt or out
of business." Holmquist candidly admitted that he could
not recall exactly what Bridegum said about the Compa-
ny's move from California and admitted attending the
same meeting as Sneathen, but could not recall Sneathen
questioning Bridegum about when a fired employee must
receive their paycheck, Holmquist admits he was not
paying attention and said he may have been sidetracked
at some point during the meeting . Holmquist 's candid ad-
missions of lack of recall and inattentiveness lead me to
not credit his testimony. In contrast, Sneathen , a school-
mate and long-time friend of Bailey's, testified that Bri-
degum did say quality of production and productivity
would have to improve before the employees got wage
increases. Sneathen and the other employee witness did
not claim that Bridegum threatened plant closure, reloca-
tion, or bankruptcy in the event the employees selected
the Union as their collective-bargaining representative.
Steve Henry, a current employee, also corroborated
Bridegum by testifying that Bridegum "was trying to ex-
plain to everybody that if we had to pay union scale
wages at that time, by our current, production, we
couldn't afford to stay in business." Henry recalled
Bridegum comparing them to another manufacturer that
paid union scale, but had much higher productivity. He
did not hear any ` threats of plant relocation, plant clo-
sure, or the Company filing for bankruptcy if the em-
ployees selected the Union as their collective-bargaining
representative.
Based on Bridegum's demeanor and demonstrated abil-
ity to recall events clearly and accurately, I credit his
version of the' meetings. Holmquist 's version was admit-
tedly, the result of poor recall and at least periodic inat-
tention. The other employee witnesses would not likely
forget threats of plant closure, relocation, or bankruptcy
if they were indeed made during the meeting of 4 Octo-
ber.
E. Post 4 October Events
A few days after his departure from Respondent
Bailey called his former employer, Leader Stamping, and
asked Barbara Lydon, the secretary-treasurer of the com-
pany and the wife of the owner, if they had any open-
ings since he quit his job with Respondent, ,because he
did not receive an expected raise.
On 5 October, Bailey called Lannes about 9:30 a.m.
seeking his job and offering to tear up authorization
cards as a quid pro quo for his reinstatement. Lannes
said he could not rehire him and asked what he would
tell the card signers. Bailey said he would tell them they
did not have enough cards. Bailey had already sent all
the signed cards in his possession to the Union.
A current employee, Valarie Thomsen, had an occa-
sion to converse with Bailey at a bar about 3 weeks after
2 October. Bailey asked if she heard that Respondent
fired him. She said no, that she heard he had quit. Bailey
then said, "Well, I did, but I'm going to tell everybody
that they fired me. And I'm going to get the bastards
and everything I've got coming to me." Thomsen asked
how he could get anything if he quit, and Bailey said,
"I'm going to tell them that they fired me," She asked
what he thought he might receive, and he replied he did
not know, but thought it would be something.
During the summer, prior to Bailey's departure from
the Company, he told Thomsen that he ought to quit be-
cause he hated it there. Bailey was' not the only employ-
ee she heard make such comments, but she heard Bailey
make similar statements more than once. Thomsen testi-
fied credibly, in a direct and straightforward manner, ex-
hibiting clear recall of the conversations.
Bailey filed for unemployment insurance. The hearing
was rescheduled several times. While Respondent's wit-
nesses were waiting for the commencement of one of
these scheduled hearings, Bailey, took a camera out and
took a picture of Esposito and Bridegum and then swung
the camera and took a picture of Luther and Dinius.
Bailey remarked that he wanted to take pictures of his
friends so he could hang them on the wall. Bailey's ex-
planation was that he did not attempt to intimidate the
witnesses at the unemployment hearing, but that he had
the camera in a pocket, took it out, and while messing
around, with it, took two pictures accidently and the pic-
tures were of something up in the air. The camera was
not described but the claim of accident after taking one
picture and swinging the camera around to take the
second picture is facially incredible. Bailey failed to ex-
plain why he went to the hearing with a camera, how he
took two pictures accidently, or his undenied comment
about wanting pictures of his friends to hang on the wall.
Also, as found above, Bailey is not a credible witness.
There were two other incidents of alleged intimidation
by Bailey, which will be discussed solely in consideration
of credibility and remedies. One of these incidents in-
volve Dinius who, based on demeanor, is found to be a
credible witness. After going to the location for the un-
employment hearing, he was told it was postponed.
Dinius went to Leader Stamping to unload ' a die for
repair. As he was leaving, he noticed a car quickly pull
up behind him and- recognized Bailey as the driver.
Bailey then passed him and tried to force him to stop.
Dinius evaded Bailey who followed him almost to Re-
spondent's door. Bailey followed Dinius past the turnoff
to Bailey's house. Dinius asked the guard to call the
police. Bailey claimed that it was just a coincidence, he
and Dinius were going in the same direction, and Bailey
asserts he turned off at his house. Bailey's version is not
credited based on the above credibility findings.
Around the same time of the year, after, the first
scheduled unemployment hearing, Tidwell was taking his
stepson out into the desert to shoot a rifle and noticed
shortly after they left home that Bailey was tailgating
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him. The tailgating continued for 7 to 8 minutes when
Tidwell told his stepson to unsheath the rifle which was
apparent to Bailey who then stopped tailgating, turned
around, and left them. Tidwell immediately went home
concerned for his wife and children. Tidwell is found to
be a credible witness based on his forthright and open
demeanor.
Analysis and Conclusions
Section 8(a)(1) of the' Act prohibits an employer from
interfering with, threatening, or coercing employees in
the excercise of their Section 7 rights to support or
oppose a labor organization, or to engage in or refrain
from engaging in concerted activity. This prohibition is
tempered by the provisions of Section 8(c) of the Act as
follows:
The expressing of any views , argument, or opinion,
or the dissemination thereof, whether written,
graphic, or visual form , shall not constitute or be
evidence of an unfair labor practice under any of
the provisions of this Act, if such expression con-
tains no threat of reprisal or force or promise of
benefit.
The Supreme Court, in NLRB v. Gissel Packing Co.,
395 U.S. 575, 617-619 (1969), balanced the requirements
of the two above-stated sections of the Act as follows:
Any assessment of the precise scope of employer
expression, of course, must be made in a context of
its labor relations setting. Thus, an employer's rights
cannot outweigh the equal rights of the employees
to associate freely, as those rights are embodied in
Section 7 and protected by Section 8(a)(1) and the
proviso to Section 8(c). And any balancing of those
rights must take into account the economic depend-
ence of the employees on their employers, and the
necessary tendency of the former, because of that
relationship, to pick up intended implications of the
latter that might be more readily dismissed by a
more disinterested ear.
[An employer] may even make a prediction as to
the precise effects he believes unionization will have
on his company. In such a case, however, the pre-
diction must be carefully phrased on the basis of ob-
jective fact to convey an employer's belief as to de-
monstrably probable consequences beyond his con-
trol or to convey a management decision already
arrived at to close the plant in case of unionization.
See Textile Workers v. Darlington Mfg. Co., 380 U.S.
263, 274, n. 20 (1965). If there is any implication
that an employer may or may not take actions
solely on his own initiative for reasons unrelated to
economic necessity and known only to him, the
statement is no longer a reasonable prediction based
on available facts but a threat of retaliation based on
misrepresentation and coercion, and as such without
the protection of the First Amendment. We there-
fore agree with the court below that "[c]onveyance
of the employer's belief, even though sincere, that
unionization will or may result in the closing of the
plant is not a statement of fact unless, which is most
improbable, eventuality of closing is capable of
proof." 397 F.2d 157, 160. As stated elsewhere, an
employer is free only to tell "what he reasonably
believes will be the likely economic consequences
of unionization that are outside his control," and
not "threats of economic reprisals to be taken solely
on his own volition." NLRB v. River Togs, Inc., 382
F.2d 198, 202 (C.A. 2d, 1967).
Accordingly, Respondent's statements will be exam-
ined by balancing these interests in the required manner.
A. The Alleged Threats
The General Counsel argues that Respondent moved
out of Oakland, California, because of the Union, and
when it learned that Bailey was engaged in an organizing
effort, it reacted quickly and unlawfully to quash that
effort. This argument, regarding the events of 2 October,
relies on the testimony of Bailey, which is not credible.
While Respondent moved from Oakland admittedly to
take advantage of the lower wage scale present in the
Reno, Nevada area, there has been no showing of a his-
torical avoidance of unionization.
Similarly, the General Counsel has failed to demon-
strate with a preponderance of the credible evidence that
Respondent made unlawful threats of plant closure, plant
relocation, and bankruptcy on 4 October. The General
Counsel's witnesses, Sneathen, and Henry, corroborated
Bridegum that he did not threaten plant closure or relo-
cation if the employees selected the Union as their repre-
sentative. Holmquist, the only witness claiming such
threats ' were made, admitted he had poor recall of the
meeting and was inattentive at times. There was no
showing that Bridegum's comments exceeded the pale of
expression allowed under Section 8(c) of the Act.
Both Henry and Sneaten clearly understood Bride-
gum's comments to be a prediction that increased wages
without a concomitent increase in productivity would
result in the Company's entry into bankruptcy because of
the competitive situation in the water heater industry.
There was no implication that the employer was going
to take economic measures solely for reasons unrelated
to the economic exigencies or in reprisal for the employ-
ees' selection of the Union as their representative. Tri-
Cast, Inc., 274 NLRB 377 (1985). Thus, the statements of
Bridegum to the assembled employees, which were alleg-
edly threats, are not found to be based on misrepresenta-
tion or coercion and are within the protection of Section
8(c) of the Act. They were based on the potentials of
changed economic conditions due to increased expenses
resulting from unionization that could cause plant clo-
sure, plant relocation, or bankruptcy, and Bridegum did
point to objective facts, the lower prices of water heaters
due to competition with Southern manufacturers, and the
low productivity of Respondent's employees compared
to those of a competitor. These statements were based on
Bridegum's long-term experience in the business and his
prior employment with a unionized competitor of Re-
spondent. The General Counsel has not taken issue with
HOYT WATER HEATER CO 1357
Bridegum's statements that higher wages without an in-
crease in productivity could have dire financial impact
on the Company. The message in, the speech was clear,
unionizing would not automatically result in higher
wages; there would have to be improved productivity to
permit the increase. These statements do not violate Sec-
tion 8(a)(1) of the Act. See Churchill's Restaurant, 276
NLRB 775 (1985). Accordingly, I find that these allega-
tions in the complaint of unlawful threats should be dis-
missed.
B. The Alleged Unlawful No-Solicitation Rule and
- Disparate Enforcement
A corollary to the prohibition against intimidating, co-
ercing, or interfering with employees who are engaging
in protected concerted activity is the rule enunciated in
Our Way, Inc., 268 NLRB 394 (1983), adopting the find-
ings in Essex International, 211 NLRB 749 (1974), which
proscribes the prohibition of employees from soliciting
on their own time unless justified by a demonstrated
need to maintain discipline or production. Our Way, Inc.,
supra, and Chicago Metallic Corp., 273 NLRB 16 (1975).
Respondent concedes that the employee handbook
contains a presumptively invalid no-solicitation, no-distri-
bution rule but argues that it has rebutted the presump-
titon. I find this argument unpersuasive and lacking merit.
Bridegum, during the 2 October interview with Bailey,
said Bailey's actions breached the rule as set forth in the
handbook. Respondent admitted that the employee hand-
book was to be distributed to all new employees and,
even though Luther was in the process of rewritting the
book, it was still being distributed in its objectionable
form, without any disavowal of the unlawful rule. Re-
spondent argues that it did not enforce the rule. The dis-
tribution by the employer of an overly broad no-solicita-
tton, no-distribution rule is in itself "sufficient promulga-
tion to constitute a violation." General Dynamics, 253
NLRB 180 (1980); Gerkin Co., 279 NLRB 11012 (1986).
Even if Respondent's argument that it never enforced
the rule in the employee handbook was meritorious, Bri-
degum admittedly told employees during the various
meetings on 4 October that the employees could not so-
liicit for the Union or otherwise "on company time,"
rather than "working time."
Rules prohibiting employees from soliciting "on com-
pany time" could encompass both working and non-
working time spent on the Company's premises. These
rules are restrictive of employees' Section 7 rights and
violate Section 8(a)(1) of the Act. KDI Precision Products,
185 NLRB 335 (1970); QIC Corp., 212 NLRB 63 (1974);
and Florida Steel Corp., 215 NLRB 97 (1974). The Com-
pany's actions failed to apprise the employees of any re-
pudiation of the rule contained in the employee hand-
book. There was no claim that operating exigencies exist-
ed, which required the imposition of an otherwise over-
broad rule. Accordingly, I find that counseling Bailey to
follow the employee handbook, distributing the hand-
book to employees, and telling the employees that they
cannot solicit on "company time" were violations of Sec-
tion 8(a)(1) of the Act.
The General Counsel,also argues that Respondent dis-
parately enforced the no-solicitation rule because Bailey
testified-that he ran paycheck and football pools-as he
was working without comment or censure. This uncorro-
borated testimony by a witness who was not credited
fails to prove a violation. Additionally, there was no evi-
-dence that Respondent knew of this activity and con-
doned or countenanced it. Bailey and another employee
also referred to an employee known as Ellen, who was
selling cheeses and crackers during worktime. Again, the
record fails to prove by credible evidence that such ac-
tivity was known to Respondent. The failure to show
knowledge precludes a finding of disparate application of
the rule; and the allegation of disparate enforcement is
dismissed.
C. The Alleged Unlawful Surveillance
It is undisputed that Lannes, and then about 5 minutes
later Bridegum and, Luther, drove past Bailey's house
while the union organizing meeting was going on. A
slow rate of speed was admittedly required by speed
bumps. These admitted supervisors were observed look-
ing at the vehicles and houses in the vicinity. I find that
while these observations of Respondent's supervisors
driving by Bailey's residence during the organizing meet-
ing rendered their conduct suspect, the General Counsel
has failed to sustain the burden of raising the, suspicion to
proof of unlawful surveillance. The nature of the street
was not described; it could be a major thoroughfare
often traveled by the supervisors. The reason the super-
visors were there was not elicited on the record. They
could live close by or frequently take the route home
after work. Elk Brand Mfg. Co., 253 NLRB 1038 (1981).
Thus, there has been a failure to show that more than
fortuitous circumstances brought the supervisors to drive
past Bailey's premises. They were not shown to have en-
gaged in suspicious behavior or "untoward conduct."
Gossen Co., 254 NLRB 339, 353 (1981)., These failures in
proof require my finding that the surveillance allegation
should be dismissed.
D. The Alleged Discriminatory Discharge of Bailey
I find that the General Counsel has failed to establish
with a preponderance of the credible evidence a prima
facie case of a violation of Section 8(a)(3) and ( 1) of the
Act by Respondent's discharge of Bailey. After consider-
ing all the relevant evidence, I conclude that Bailey quit
his job with Respondent. In reaching this conclusion, I
have considered the timing of the event , which was the
day Bailey commenced a union organizing drive. This
conclusion is based on crediting the testimony of Bride-
gum, Luther , Audiss, Lydon , Wortman, and Thomsen
based on their demeanors , which were far more credible
than Bailey's demeanor.
This conclusion is buttressed by inherent probabilities.
Bailey quit all his other full-time jobs . While employed
by Respondent , he quit when Bridegum criticized him
because he became upset admitting he was "tired of [Bri-
degum's ] B.S." Bailey defined B.S. as "Coming down-
He's always sitting there yelling at somebody over some-
thing stupid." The interview of 2 October was a similar
incident . When asked if he felt Bridegum was "ragging"
him on 2 October, Bailey initially failed to directly re-
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spond and then admitted he did feel Bridegum was "cut-
ting him down," that he was "ragging on him." These
feelings were sufficient to cause Bailey to quit about 7
months earlier. The earlier quit was admittedly a precipi-
tous act, which Bailey later regretted because he had
family obligations. Thus, the existence of family obliga-
tions does not render his quitting unlikely or, improbable.
Audiss testified Bailey told her he was quitting, and
Wortman overheard the statement. Thomsen was told by
Bailey that he quit but was claiming he was fired because
he wanted to gain from the lie. Bailey told Lydon he
quit. The General Counsel arues that it is embarrassing
to admit to former coworkers and prospective employers
that Bailey was fired and that is why he lied. This argu-
ment is unconvincing; it does not explain Bailey's past
history of quitting nor does it add to his credibility.
Sneathen's testimony that Bailey told him he was fired
while Bailey was getting his tools together in Bridegum's
presence does not lend credence to Bailey's claim. The
circumstances of the event were not described. For ex-
ample, how far away Bridegum was from the speaker,
the tone of voice, and other factors indicative that Bride-
gum heard the comment, and chose not to refute it be-
cause it was true, are absent from the record.
As found in Robins Federal Credit Union, 273 NLRB
1352, 1355 (1985):
Although the sequence of events in this case, par-
ticularly the timing of the discharge . . . give rise
to a suspicion as to whether Respondent terminated
her because of her union activities, mere suspicion is
not sufficient to support a violation of the Act. See
Spearin, Preston & Burrows, Inc., 248 NLRB 1384
(1980), and Royal Coach Sprinklers, 268 NLRB 1019
(1984).
Accordingly, I find that the General Counsel has failed
to establish a prima facie case of a violation. I concluded
Bailey quit. If it were found that a prima facie case had
been made, I find that Respondent has rebutted it by a
preponderance of the credible evidence. Wright Line, 251
NLRB 1083 (1980).
In sum, I find that Respondent violated Section 8(a)(1)
of the Act by maintaining an overly broad no-solicita-
tion, no-distribution rule. The other alleged violations of
the Act contained in the complaint have not been estab-
lished by, the preponderance of the evidence and are dis-
missed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by
promulgating and maintaining rules, which prohibit em-
ployees from engaging in union solicitation during non-
working time or from distributing union literature in
nonwork areas during nonworking time.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent did not engage in any other unfair labor
practices as alleged in the complaint, and the allegations
of other unfair labor practices have been found to lack
merit and should be dismissed.
THE REMEDY
Having found Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4
ORDER
The Respondent, Stead Industries, Inc., d/b/a Hoyt
Water Heater Company, Stead, Nevada, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Promulgating, maintaining, or enforcing any rules
that prohibit employees from engaging in union solicita-
tion during nonworking time or from distributing union
literature in nonwork areas during nonworking time.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its Stead, Nevada facility copies of the at-
tached notice marked "Appendix."5 Copies of the notice,
on forms provided by the Regional Director for Region
32, 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 no-
tices 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.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges unfair labor practices, not
specifically found herein.
4 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses.
5 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 Nation-
al 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 "
HOYT WATER HEATER CO. ' 1359
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities
WE WILL NOT maintain or enforce any rules that ex-
pressly or impliedly prohibit you from union solicitation
in the plant during nonworking time or that prohibits
you from `distributing union literature in nonworking
areas during nonworking time.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce employees in the exercise of the
rights guarateed them by Section 7 of the Act.
STEAD INDUSTRIES, INC., D/B/A HOYT
WATER HEATER COMPANY