Kirkhill Rubber Company

National Labor Relations Board - Board Decisions

Aug 31, 1982

263 N.L.R.B. 857 (N.L.R.B. 1982)

KIRKHILL RUBBER COMPANY
Kirkhill Rubber Company and United Rubber, Cork,
Linoleum and Plastic Workers of America, Dis-
trict 5, AFL-CIO. Case 21-CA-19922
August 31, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
On January 22, 1982, Administrative Law Judge
Richard J. Boyce issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the Charging
Party and the General Counsel filed answering
briefs.
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
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge, as modified herein, and to adopt his recom-
mended Order.
We agree with the Administrative Law Judge
that Respondent violated Section 8(a)(l) of the Act
by issuing a written reprimand to Michael Masciel
on January 15, 1981, and by interrogating Masciel
about his union activities on January 16, 1981. Re-
garding the reprimand, however, the Administra-
tive Law Judge, in his Decision, and Respondent,
in its exceptions, devote substantial analysis to the
content and purported validity of Respondent's
plantwide rules of general application relating to
solicitation and distribution of literature. Such anal-
ysis, however, misses the basic point. For the
simple fact remains that Masciel was issued a writ-
ten reprimand for "solicitation for union purposes
on company time and property." We have consist-
ently held that an employer's statements of this
nature violate Section 8(a)(1). John L. Lutz Welding
and Fabricating, Inc., 239 NLRB 582, 585 (1978); S.
S. Kresge Company, 229 NLRB 10, 14 (1977); Wo-
metco Coca-Cola Bottling Company of Nashville,
Inc., 255 NLRB 431, 437, 444 (1981). Here, rather
than being verbal statements, the restriction took
place in the context of a written reprimand. In
either case, however, the employer's action inter-
feres with and coerces employees in the exercise of
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have
carefully examined the record and find no basis for reversing his findings.
263 NLRB No. 113
their Section 7 rights. Thus, regardless of the con-
tent of the rules of general application maintained
by Respondent and their validity under the Act,
Respondent's discipline of Masciel, by its own
terms, constitutes an unlawful restriction on his ex-
ercise of Section 7 rights in violation of Section
8(a)(1). Accordingly, to the extent the Administra-
tive Law Judge's Decision encompasses issues re-
lating to the lawfulness of Respondent's rules of
general application, it is hereby disavowed.2 In all
other respects we adopt his Decision and recom-
mended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Kirkhill
Rubber Company, Brea, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
2 Inasmuch as the complaint does not allege that Respondent's rules
are unlawfully overly broad and we need not resolve that issue to dispose
of the complaint allegations, we make no finding as to the lawful or un-
lawful nature of Respondent's no-solicitation and no-distribution rules.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This
matter was heard before me in Los Angeles, California,
on December 10, 1981. The charge was filed on January
23, 1981, by United Rubber, Cork, Linoleum and Plastic
Workers of America, District 5, AFL-CIO (District 5).
The complaint issued on March 20, and alleges that
Kirkhill Rubber Company (Respondent) violated Section
8(a)(1) of the National Labor Relations Act, as amended
(the Act) on January 15, 1981, by reprimanding its em-
ployee, Michael Masciel, "because he engaged in union
or other protected concerted activities," and again on
January 16 by "interrogat[ing] employees concerning
their union activities and sympathies."
1. JURISDICTION
Respondent is a California corporation, with two facil-
ities in the community of Brea, engaged in the manufac-
ture and sale of elastomeric rubber products. It annually
sells goods of a value exceeding $50,000 directly to cus-
tomers outside California, and thus is an employer en-
gaged in and affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE I.ABOR ORGANIZATION
District 5 and its parent International (International)
are organizations in which employees participate by
paying membership dues and electing officers, and exist
857
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the purpose of representing employees in collective
bargaining with regard to wages, hours, and other terms
and conditions of employment. District 5 and the Inter-
national, jointly and severally, are labor organizations
within the meaning of Section 2(5) of the Act.
Ilt. THE ALLEGED UNFAIR I ABOR PRACTICES
A. Facts
Background: In October 1980, the International began
to organize Respondent's approximately 600 production
and maintenance employees. On December 22, it filed a
petition for election with the National Labor Relations
Board.' On January 15, 1981, unable to provide a suffi-
cient showing of interest in support of the petition, it re-
quested the petition's withdrawal. The request was ap-
proved by the Regional Director on January 16.2
Masciel, a mandril builder in Respondent's duct de-
partment, was one of several employees active in the or-
ganizational effort. He attended a unionl meeting at the
campaign's inception, after which he distributed union
authorization cards and other materials to an estimated
80 coworkers. lie testified that this activity took place in
Respondcrnt's parking lot before his shift, and otherwise
"on my time." Albert (Cy) Blanton, an organizer for the
Union, had cautioned him not to solicit "on company
time." Masciel worked on the second shift, which ran
from 3:30 p.m. to midnight.
The reprimand: In the evening of January 14, 1981-
the day before the International requested the withdraw-
al of its petition-the foreman of the duct department,
Donald Wyett, an admitted supervisor, came upon Mas-
ciel and Greg Gerbais, an inspector for Respondent, in
the department's office. Masciel's duties required that he
be in the office briefly perhaps three times per shift to
check work schedules. Gerbais' duties took him all over
the plant from time to time. Neither was on break when
Wyett encountered them.
As Wyett approached the office on this occasion, he
could see through the office windows that Masciel was
talking to Gerbais, but admittedly "couldn't hear any of
the conversation." Masciel was seated at a desk, facing
Wyett; Gerbais was standing at the desk, back to Wyett.
Entering the office, Wyett saw that Gerbais, pencil in
hand, apparently was filling out an authorization card,
which lay on the desk in front of him. Wyett immediate-
ly summoned Gerbais outside the office, where he ad-
monished him not "to be filling out any union material
during working hours," and directed that he "go back
to" work.
Wyett said nothing to Masciel at the time. He ex-
plained that, when he entered the office, Masciel "disas-
' Case 21-RC-16612.
2 Sec. 101.18 of the Board's Statements of Procedure provides that
"unless the petitioner has been designated by at least 30 percent of the
employees . . . the showing of representation among the employees is in-
sufficient to warrant an election," and the regional director "may request
the petitioner to withdraw its petition"; and, "if the petitioner . . . re-
fuses to withdraw the petition, the regional director then dismisses the
petition . . . "
The International filed a new petition on February 5. An election fol-
lowed on March 19, which it lost by a substantial margin. Case 21-RC-
16643.
sociated himself with Greg [Gerbais] and acted like he
was working on something there at the desk"; then
quickly "moved out of there."
Wyett shortly reported the incident to his immediate
superior, Jack Swindle. Swindle's spoken reaction was
that it was "a pretty serious offense," and that he would
"have to report this" to his superior, Ben Cannon. The
record is silent whether a report in fact was made to
Cannon at or around that time. Neither he nor Swindle
testified, and Wyett testified that he talked to no one but
Swindle about the incident between the time of its occur-
rence and the next day, early in the second shift.
The next day, January 15, at or about 4 p.m., Gerbais
was called before Cannon to describe what had hap-
pened. Swindle and Wyett also were present. Gerbais re-
lated, according to Wyett,3 that Masciel previously had
told him that 35 more signed cards were needed "to get
enough cards to petition for a union"; that he offered to
sign "if you need my help"; and that, later, when Ger-
bais entered the duct department office, Masciel "was sit-
ting at the desk" and a card was "lying on the desk" for
him to fill out and sign.
After Gerbais' recital, and without inviting Masciel to
give his version, Cannon directed Swindle and Wyett to
"write [Masciel] up . . . [for] . . . soliciting union busi-
ness on company time." Wyett then prepared a written
reprimand, using wording prescribed by Cannon, and he
and Swindle presented it to Masciel. The reason stated
on the reprimand for its issuance was this: "Solicitation
for union purposes on company time and property."
Masciel was asked to and did sign the document. He was
not given a copy.
In the conversation accompanying tender of the repri-
mand, Swindle stated that Masciel was being written up
for "soliciting union." Masciel denied that he had been
so engaged, adding that he knew his "rights"-that he
could "solicit on [his] time," but not "on company time."
Masciel then asked if Wyett had heard him "solicit
union." Wyett replied, "No, but I assumed you were."
Masciel challenged, "Well, if you didn't hear me, how
could you assume that I was speaking union?" Swindle
interjected, "Well, Mike, he didn't say he seen you, he
assumed you were." Masciel pressed, "How come you
are going to write me up when I wasn't soliciting?"
Swindle replied that he had "heard" that the Union
needed 30 more cards, and that it was "assumed" that
Masciel had been soliciting. Swindle also stated during
the exchange that Bill Haney, Respondent's president,
and Cannon had been "looking for people who are in-
volved in the union"; and referred to Masciel as "an in-
stigator." 4
The record leaves no doubt that rules against solicita-
tion and the distribution of printed matter were on dis-
3 Gerbais, attending school out of the area, did not testify. As earlier
mentioned, neither did Cannon nor Swindle.
4 Masciel's coherent and convincingly detailed version of this ex-
change is credited. In contrast, Wyett's testimony on the point--consist-
ing of his saying "there wasn't much conversation that exchanged during
that time," and that he could not recall certain particulars-was vague,
seemingly evasive, and generally unpersuasive. Again, Swindle did not
testify
858
KIRKHILL RUBBER COMPANY
play at relevant times, but is scarcely conclusive regard-
ing their content. Thus:
(a) The reprimand indicates that they forbade solicita-
tion "for union purposes," if not distribution, "on compa-
ny time and property."
(b) Cannon, directing that Masciel be written up, cited
"soliciting union business on company time."
(c) Masciel, in receiving the reprimand, declared that
he knew his "rights"-that he was not to solicit "on
company time."
(d) Respondent's attorney, R. D. Sweeney, informed
the NLRB Regional Office, by letter dated February 3,
1981: "[T]he rules of the company forbid solicitation of
any kind by any employee on company time and compa-
ny property."
(e) Wyett testified that, "on the company rules, it says
no soliciting in the plant."
(f) Wyett elsewhere testified that the rule for which
Masciel was reprimanded was: "Soliciting during compa-
ny working hours"; and he admonished Gerbais "not to
be filling out any union material during working hours."
(g) Donald Finefrock, vice president of manufacturing,
testified that the same rules had been posted since May
1980, and that they provided:
Committing any of the following will be deemed
sufficient grounds for discipline up to and including
discharge.
* * * * *
15. Vending, soliciting, or receiving contribu-
tions, for any purpose whatsoever during an em-
ployee's working time.
16. Distributing literature, written or printed
matter of any description during an employee's
working time without permission.
(h) Masciel testified variously that a rule was posted in
1980 forbidding "soliciting... on company's premises";
that he first saw a posted rule after the International's
January 15 withdrawal of its petition; that a new rule
was posted sometime after the February 5 filing of the
new petition; that the new rule banned "soliciting, union
activities, or signing of cards on company's time and on
company premises"; that the rules of which Finefrock
testified were not the first to be posted; and that, in 1980,
a "whole new list [of rules], a long list," was posted.
It is concluded that the most persuasive evidence of
the prohibition on which the reprimand was based is
contained in the reprimand itself, as confirmed by attor-
ney Sweeney's letter of less than 3 weeks later-that is,
soliciting "on company time and property." It is further
concluded that the reference in the reprimand to solicita-
tion "for union purposes" was merely descriptive of
Masciel's perceived offense, and does not warrant an in-
ference that the posted rule singled out that form of so-
licitation.
Gerbais was not reprimanded for his part in the inci-
dent. Finefrock explained, "It was deemed that he was
not the aggressor." Finefrock testified that Cannon told
him at or about 11 a.m. on January 15 that Masciel "had
been caught in the office soliciting for the union," and
was going to be reprimanded. Finefrock continued that
he could have overridden the reprimand, but chose to
approve it "after the fact." He further testified that Re-
spondent has a system of "progressive" discipline-con-
sisting of an oral reprimand on the first offense, a written
reprimand on the second offense, and then suspension
and possibly layoff for succeeding offenses. He qualified,
however, that the system is not "absolute," and that the
oral warning step was bypassed as concerns Masciel be-
cause "the seriousness of this offense was considered to
be worth a written warning."
Masciel testified that he gave the card to Gerbais in
the parking lot before work on January 14, after Gerbais
had told him he was "interested in" signing. Then, just
before Wyett came upon them in the office, according to
Masciel, Gerbais entered and approached the desk where
Masciel was seated, placed the card on the desk, and
seemed ready to begin filling it out when Wyett ap-
peared. Masciel testified that the subject of a union did
not arise in their attendant conversation; rather, that they
talked about Gerbais' plans to go away to school.
Masciel testified that various employees sold such
things as candy, crystal, Tupperware, and Avon prod-
ucts in the duct department "during working hours," but
that he had not seen this done in the presence of man-
agement officials. Masciel also testified that he had seen
Wyett participate in baseball and football pools in the
plant during worktime in 1980.
The interrogation: On January 16, upon arriving for
work, Masciel asked Cannon for a copy of the repri-
mand. Cannon referred him to the personnel office,
where he spoke with Finefrock. Finefrock said that Mas-
ciel could not have a copy, but could "look at" the origi-
nal. After Masciel had done so, Finefrock asked why he
wanted a copy. He answered that he "was thinking
about going to the Labor Board." To Finefrock's asking
why, Masciel stated that he did not want "to get fired
because [of] absenteeism, or, you know, doing something
wrong." Finefrock protested that Respondent "isn't like
that."
Then, referring to the gravamen of the reprimand,
Masciel asked, "You tell me I couldn't solicit on proper-
ty?" Finefrock, ignoring the question, asked one of his
own: "Are you involved in the Union?" Masciel re-
sponded, "I can't say anything." Finefrock said he un-
derstood, then asked how Masciel liked working for Re-
spondent. Masciel said it was "all right," but that he was
unhappy with company medical benefits. Finefrock next
asked why Masciel would want "a third party"-presum-
ably an allusion to the Union. Masciel answered, "For
better pay and benefits." 5
6 Masciel's detailed and internally consistent version of this conversa-
tion is credited. Finefrock's rendition was confused and sometimes con-
tradictory, and thus, to the extent that its ultimate form conflicted with
Masciel's, unworthy of belief For example, Finefrock testified at one
point that the company medical plan was not discussed at the time. He
later stated that he explained the plan "at some length" in response to
Masciel's question why there were not better medical benefits. Finefrock
also testified that "the union" was not mentioned "at any time during that
conversation"--"No, sir"; only to concede: "Michael IMasciell said that
if \ke had a union. there might he nmr or better benefits"
859
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Conclusions
The reprimand: It is concluded that the reprimand of
Masciel violated Section 8(a)(1) as alleged.
The bases for this conclusion are these:
(a) The underlying no-solicitation rule-banning solici-
tation "on company time and property"-was invalidly
broad. As stated in Plastic Film Products Corp., 238
NLRB 135 (1978):
The Board has repeatedly condemned the pro-
mulgation of rules prohibiting protected activity
"on Company time" as unduly ambiguous and rea-
sonably likely to be interpreted by employees as a
prohibition against soliciting during nonworking
time. ...
The same can be said, even more so, of bans against so-
licitation "on company property."
True, such rules are not conclusively invalid. In this
case, however, Respondent has made no convincing
showing that its rule, in the words of Plastic Film Prod-
ucts Corp., supra at 135, "was justified by a need to main-
tain discipline or production in its plant."6
The rule from which it flowed being invalid, and there
being no grounds for inferring that Masciel's "assumed"
soliciting interfered with his or Gerbais' work, the repri-
mand-for soliciting "for union purposes"-necessarily
violated Section 8(aX I). Hambre Hombre Enterprises,
Inc., d/b/a Panchito's, 228 NLRB 136 (1977); Daylin Inc.,
Discount Division d/b/a Miller's Discount Dept. Stores, 198
NLRB 281 (1972). 7
(b) Apart from the invalidity of the underlying rule, it
is manifest that Respondent's enforcement of it in this in-
stance was motivated by unlawful considerations. While
the "offense" perpetrated by Masciel, an ardent union ac-
tivist, was treated as of a "seriousness ... to be worth a
written [i.e., second-step] warning," his co-equal in its
perpetration, Gerbais, received not so much as a first-
step reprimand. Moreover, in the conversation incidental
to the presentation of the reprimand, Swindle termed
Masciel "an instigator" and remarked that Haney, the
company president, and Cannon had been "looking for
people who are involved in the union."
Additionally, Gerbais, but not Masciel, was given a
chance to tell his version of the underlying incident to
management. Further, the stated reason for sparing Ger-
bais-that he "was not the aggressor"-was not warrant-
ed by Wyett's perception of the incident, and, again, was
without benefit of Masciel's side of the story. This ra-
tionale, for that matter, was without Gerbais' side, as
well, given Finefrock's testimony that he learned from
Cannon at or about 11 a.m. on January 15 that Masciel
* Finefrock's testimony that, because the duct department operates
"with a minimum amount of employees, it is doubly important that each
and every one be doing everything they can towards production every
moment of the working day," and that, because Respondent manufac-
tures "very delicate, intricate parts" for military and commercial aircraft,
the "attention of the employees" is required "at all times," hardly meets
the burden of justification.
7 The invalidity of the rule makes it unnecessary to address Masciel's
testimony suggesting its nonenforcement with regard to sports pools and
in-plant vending, and that he in fact was not soliciting in the duct office.
Eastex Incorporated, 215 NLRB 271, 275. fn. 13 (1974).
was going to be reprimanded for "soliciting for the
union." Gerbais, it will be remembered, did not tell his
story to Cannon until about 4 p.m. on January 15. The
rationale, in short, was contrived, and Respondent's de-
piction of Masciel as "the aggressor" plainly stemmed
from an awareness of his organizational activities at times
other than the incident in question.
The interrogation: It is concluded, without need for
supporting discussion or citation, that Finefrock violated
Section 8(a)(1) as alleged by asking Masciel, during their
January 16 conversation, if he was "involved in the
union" and why he would want "a third party."
CONCLUSION OF LAW
By reprimanding Michael Masciel on January 15, 1981,
and by interrogating him on January 16, 1981, concern-
ing his union activities and sympathies, as found herein,
Respondent in each instance violated Section 8(aX)(1) of
the Act.6
ORDER 9
The Respondent, Kirkhill Rubber Company, Brea,
California, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Reprimanding any employee because of his union
activities or sympathies.
(b) Interrogating employees about their union activities
or sympathies.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in their exercise of
rights under the Act.
2. Take this affirmative action:
(a) Rescind the reprimand of Michael Masciel given on
January 15, 1981, expunge from its records any reference
to that reprimand, and notify Masciel in writing that this
had been done.
(b) Post as its places of business in Brea, California,
copies of the attached notice marked "Appendix."' 0
Copies of said notice, on forms provided by the Regional
Director for Region 21, after being duly signed by Re-
spondent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof, and be
' Although it has been concluded that issuance of the reprimand was
prompted by improper antiunion considerations, a violation of Sec.
8(aX3) has not been alleged and it would not enhance the remedy to
make such a finding. Further, since the no-solicitation rule underlying the
unlawful reprimand was not alleged to be unlawful, and since the Gener-
al Counsel has not otherwise asked that a violation be found in that
regard, at least not with a clarity giving Respondent notice that the issue
was to be litigated, no such finding will be made. T.R. W Bearings Divi-
sion, a Division of T.R.., Inc., 257 NLRB 442 (1981).
9 All outstanding motions inconsistent with this Order hereby are
denied. In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the Naitonal Labor Relations Board, the
findings, conclusions, and 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 be
deemed waived for all purposes.
'O 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
860
KIRKHILL RUBBER COMPANY
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to ensure that said notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps 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 hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, and has ordered us to
post this notice.
WE WILL NOT reprimand any employee because
of his union activities or sympathies.
WE WILL NOT interrogate employees about their
union activities or sympathies.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in their
exercise of rights under the Act.
WE WILL rescind the reprimand of Michael Mas-
ciel given on January 15, 1981, expunge from our
records any reference to that reprimand, and notify
Masciel in writing that this has been done.
KIRKHILL RUBBER COMPANY
861