Lamar Industrial Plastics Co.

National Labor Relations Board - Board Decisions

Sep 17, 1986

281 N.L.R.B. 511 (N.L.R.B. 1986)

LAMAR INDUSTRIAL PLASTICS
Lamar Industrial Plastics Co . and International
Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America. Cases
7-CA-23969(l) and 7-CA-23969(2)
17 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 6 May 1986 Administrative Law Judge
Arline Pacht issued the attached decision. The Re-
spondent filed exceptions and a supporting 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 brief and has
decided to affirm the judge' s rulings, findings, I and
conclusions and to adopt the recommended Order
as modified. S
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Lamar Industrial Plastics Co., Sterling
Heights, Michigan, its officers, agents, successors,
' The Respondent has excepted to some of the judge's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d Cit. 1951).
We have carefully examined the record and find no basis for reversing
the findings. Additionally, the Respondent asserts that the judge 's find-
ings are a result of bias. After a careful examination of the entire record,
we are satisfied that this allegation is without merit.
In adopting the judge's finding that the Respondent violated Sec.
8(a)(1) and (3) of the Act by issuing written warnings to employees Mar-
lene Craig and Darlene Ward in order to discourage their union activi-
ties, we do not rely on the judge's finding that the Respondent did not
call a halt to the check pool, at least on the third shift, until the Friday
that Craig and Ward received their warning notices . Even if, however,
the check pool was eliminated the previous Wednesday, as the Respond-
ent contends, it would not change our finding that the Respondent selec-
tively enforced its no-solicitation rule in view of the abundant evidence
that, both before and after the warning notices, the Respondent tolerated
other forms of nonwork-related activities that were more similar to the
alleged solicitation of union cards in terms of duration and degree of dis-
ruption than was the check pool . For example , the credited testimony es-
tablished that various items were openly sold during worktime to em-
ployees and to management . In addition, there was consistent testimony
that the Respondent tolerated conversation among employees so long as
it was not prolonged and did not interfere with production. Moreover,
we disagree with the Respondent's contention that events occurring sub-
sequent to the disciplinary action are irrelevant to the issue of whether
the 24 October 1984 reprimands to Craig and Ward were lawful. When
an employer 's rule or policy remains in effect, and the General Counsel's
theory is one of selective enforcement , we find it appropriate to consider
evidence of disparate treatment both before and after the event in ques-
tion.
a We shall modify the recommended Order to more closely conform to
the violation found, to provide the affirmative action customarily used by
the Board in cases of this kind, and to conform to the recommended
notice.
511
and assigns, shall take the action set forth in the
Order as modified.
1. Insert the following as paragraph 1(a) and re-
letter the subsequent paragraphs.
"(a) Applying its distribution and solicitation rule
selectively or disparately to prohibit, interfere with,
or prevent employees' union activity."
2. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs.
"(b) Rescind the warning notices given to Mar-
lene Craig and Darlene Ward on 24 October 1984
and notify them in writing that this has been
done."
James Canfield, Esq, for the General Counsel.
Brian M. Smith, Esq., of Troy, Michigan , for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge. The trial
in the above-captioned case was held on 19 February
1986 in Detroit, Michigan, based on unfair labor practice
charges filed on 25 and 31 October 1984, by the Interna-
tional Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America (UAW or
Union). An order consolidating cases and a consolidated
complaint issued on 18 December 1984 , alleging that the
Respondent, Lamar Industrial Plastics Co., violated Sec-
tion 8(a)(1) and (3) of the National Labor Relations Act,
by discriminatorily enforcing a no-solicitation rule. The
Respondent filed a timely answer denying the commis-
sion of the alleged unfair labor practices.
On the entire record, from my observation of the de-
meanor of the witnesses , and having considered the Re-
spondent's posthearing brief, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Michigan corporation, maintain-
ing at all times material an office and place of business in
Sterling Heights, Michigan, where it manufactures injec-
tion molded parts and related products. During the year
ending 31 December 1983, which period is representative
of its operations during all times material , in the course
and conduct of its business operations, the Respondent
manufactured and distributed at its Sterling Heights facil-
ity products valued in excess of $500,000, which were
sold and shipped directly to customers located outside
the State. Accordingly, the complaint alleges, the Re-
spondent admits, and I find that Lamar Industrial Plas-
tics Co. is now, and has been at all material times, an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
The Charging Union is, and has been at all times mate-
rial, a labor organization within the meaning of Section
2(5) of the Act.
281 NLRB No. 80
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
U. THE ALLEGED UNFAIR LABOR PRACTICES
In the summer of 1984, the Union began an organiza-
tional drive among the Respondent's employees. Marlene
Craig, a machine operator, and Darlene Ward, a floor
leader on the third shift, registered early interest in union
representation by signing cards and taking blank ones
with them for distribution to their coworkers. Both
Craig and Ward testified that they handed out authoriza-
tion cards during nonworking times-before and after
work and on breaks-but did not distribute them or so-
licit signatures during working hours or on the plant
floor.
Nevertheless, at the conclusion of their shift on 24 Oc-
tober 19841 both women were summoned to the office of
Plant Manager Terry Cassidy. There, the third-shift fore-
man, Bob Alexander, stated that he had observed them
soliciting union memberships. Acting on Alexander's rec-
ommendation,2 Cassidy handed each woman a written
notice which stated:
Violation of Company rules. Solicitation and distri-
bution. Specifically solicitation Employee Hand-
book page 24-Section-Rule #1.
Craig and Ward refused to sign the forms, insisting that
they were being unjustly accused.
Cassidy testified that shortly after becoming plant
manager in January 1984 he caused an informal plant
rule prohibiting distribution and solicitation to be codi-
fied in an employee handbook, which was distributed to
all employees. The rule stated in pertinent part:
G. Solicitation and Distribution Rules
1. Soliciting of any kind, during working time, is not
permitted. Working time does not include paid
breaks, but only paid time when work is expected
by you.
2. The distribution of literature in any authorized
work area at any time is not permitted.
3. The distribution of literature in a matter [sic]
which litters, is not permitted.
Respondent presented several witnesses in an effort to
establish that Craig and Ward, contrary to their denials,
had engaged in union solicitation. Thus, third-shift em-
ployee Robin Lasure stated that, on the evening in ques-
tion, Ward asked her if she had a union card. When
Lasure said she did, that ended their approximately 10-
second conversation. Lasure made it clear that Ward did
not ask her to sign a card nor interrupt her work. She
also noticed that Ward asked the same question of sever-
al other employees. Lasure further testified that Alexan-
der apparently observed her exchange with Ward be-
i Ward believed the warning came on 17 October, but this does not
conform with the dates that appear on the written notices handed to
them (See Jt Exhs IA & B )
Y The record suggests that Cassidy independently investigated the
matter after he issued the written warnings (See Tr 148, LL. 7-12.)
cause shortly thereafter he called her off the shop floor
to ask if Ward had been talking about the Union.3
Another third-shift employee, Diane Branoff, asserted
that she saw Marlene Craig ask coworker Michael
Holder if he wanted to sign a union card. Branoff ac-
knowledged that she overheard Craig's reported solicita-
tion even though Holder was 8 to 10 feet away, the ma-
chines were running , and Craig's back was to Branoff.
Despite these obstacles, Branoff insisted that she was
able to lip read and that Craig "has got a big enough
mouth, you can hear her."4 Branoff then reported the in-
cident to Alexander.
The record contains abundant evidence that employees
engaged in a broad range of nonwork-related activities
during working hours on the shop floor. Cookies, can-
dies, pencils, T-shirts and jewelry were sold often an
openly, both before and after Craig and Ward received
the warnings. These vending transactions were conduct-
ed in plain sight of supervisors who frequently roamed
the facility and who had catbird seats in a glass tower
with an 85-percent view of the plant floor. Ward testified
without controversion that she sold Girl Scout cookies
in 1984 and again in 1985 even after she had been pro-
moted to supervisor. In fact, she made a sale to one of
Respondent's owners who told her that he, too, sold
merchandise for his son. Ward also testified that employ-
ees invariably chatted with one another throughout the
shift. In fact, she talked with Alexander about personal
matters on more than one occasion. Both Ward and
other witnesses agreed that Respondent tolerated such
conversations so long as they did not extend beyond 10
or 15 minutes and did not interfere with production.
One particularly widespread practice involved a
checkpool: an in-house game (not unlike stud poker) in
which employees matched the last several numbers on
their paychecks with numbers on cards that were drawn.
Approximately 40 to 50 employees on each shift played
every payday by placing $1 bets with an employee in
charge of conducting the pool. On occasion, employees
left the plant floor to retrieve betting money from their
lockers. The pool was conducted openly with at least
one third-shift supervisor, Sam Donna, participating. In
August 1984, on his request, Donna was transferred to
the day shift where the Respondent believed that his
lackluster performance would improve.
Plant Manager Cassidy testified that the Respondent
did not condone the checkpool and attempted to abolish
it as early as May or June 1984 by posting a notice on
the bulletin board, which forbid all solicitation and gam-
bling. The notice apparently was ignored because the
s On the basis of Lasure's testimony, the General Counsel moved to
amend the complaint to allege that Alexander 's interrogation of her vio-
lated the Act . Because the General Counsel had information regarding
Alexander 's alleged unlawful conduct long before the hearing and be-
cause the Respondent had tried but was unable to locate Alexander, I
demed the motion to amend . Although I did not permit hearsay evidence
about Alexander's conduct to be used as a predicate for charging Re-
spondent with an independent unfair labor practice, such testimony may
be used inferentially to prove that Respondent was particularly curious
about those who were engaged in union activity.
* The record does not indicate that Craig interfered with Holder's
work or that she solicited other employees
LAMAR INDUSTRIAL PLASTICS
employees' vending efforts and the checkpool continued
unabated . Indeed, winning employees' names were
posted on a bulletin board . Not until the very day that
Craig and Ward received their warning notices did Re-
spondent finally call a halt to the checkpool , at least on
the third shift. Acknowledging that the checkpool ended
on that date for her shift, Craig testified without contra-
diction that the game continued to be played on the first
shift.
Respondent also produced written warnings issued to
other employees to prove that its no-distribution , no-so-
licitation rule was applied in an even -handed manner. Of
the six notices offered into evidence, three were warn-
ings to employees for being in unauthorized work areas;
that is, in departments separate and some distance from
their duty stations . Another warning was given for fail-
ure to follow a supervisor 's instructions and talking to
employees while sitting on an assembly line worktable; a
fifth employee was warned for overstaying his break by
15 minutes, and a sixth for leaving his machine unattend-
ed and wandering through the plant . In addition to the
above written notices, Cassidy testified that he warned
several other employees who, apparently , had made
threatening comments to another employee while en-
gaged in union solicitation . However , he could not recall
whether this warning was written or merely oral.
Discussion and Concluding Findings
The facial validity of Respondent 's distribution and so-
licitation rule is not in issue here . Rather, the question
presented by the consolidated complaint is whether Re-
spondent enforced its rule in a disparate and discrimina-
tory manner against Darlene Ward and Marlene Craig
because they were suspected of engaging in union activi-
ties . In concurrence with the General Counsel, I con-
clude, for the reasons set forth below, that Respondent
did unlawfully enforce its rule against these women.
At the outset, a question factual is raised whether
Craig and Ward violated the no-solicitation rule. As
noted above, Robin Lasure testified that Ward merely
asked whether she and other employees possessed au-
thorization cards. Ward was not charged with distribut-
ing cards nor was there any evidence that she urged em-
ployees to sign them . Her brief inquiry falls far short of
conduct typically proscribed by no-solicitation rules.a
Consequently , if Cassidy had fairly investigated the
matter, he could have determined that Ward's conduct
did not warrant a written warning.
Craig's conduct poses a somewhat different question,
for employee Branoff flatly stated that she heard her
asking another employee , Holder, to sign a card . Howev-
er, Branoff's testimony leaves much to be desired. She
was plainly biased against Craig, virtually calling her a
"loudmouth" and a liar.6 Branoff further revealed her
Webster's New Collegiate Dictionary defines solicitation as the practice
or art of entreating , importuning , petitioning , or strongly urging (as one's
cause).
s Branoff accused Craig of lying while she was engaged in union activ-
ity outside the plant by suggesting that the third shift might be abolished.
513
hostility towards Craig by immediately reporting her co-
worker's suspected infraction of the no -solicitation rule
to Alexander . Although admitting that Craig 's back was
turned toward her, that she was at least 7 to 8 feet away,
and that machines were running, Branoff nonetheless
claimed that (1) she could lipread , and (2) that Craig
spoke loudly. If Craig could be overheard , then there
was no need to read lips; and if Craig's back was to her,
Branoff could not possibly have lipread even if she had
such a talent. Overall, I regard Branoff as a dubious pur-
veyor of the truth in this matter and do not find her tes-
timony sufficiently reliable to draw a firm conclusion
concerning Craig's culpability.' In light of Craig's care-
fully limiting her union activities to nonworking hours
and areas prior to this time, it seems all the more unlike-
ly that she would deviate from her practice on this occa-
sion.
However, it is unnecessary to the outcome of this case
to decide whether Craig and Ward engaged in solicita-
tion on company time . Even assuming arguendo that
Craig and Ward did technically violate Respondent's
rule, a question still remains whether the rule was discri-
minatorily applied to them . The record leaves no doubt
that Respondent strictly enforced the rule in their case
solely because the alleged solicitations were on behalf of
the Union.
Abundant and corroborated testimony revealed Re-
spondent 's longstanding and tolerant approach to almost
every other form of solicitation . Supervisors clearly
knew of and participated in various transactions and in
personal conversations as well . Respondent overlooked
these extracurricular activities unless they interferred
with production . Yet no one shred of evidence was ad-
duced suggesting that Craig and Ward interrupted the
work of other employees during their momentary ex-
changes on 23 October . If anyone can be accused of in-
terrupting the work flow, it is Alexander who called
Lasure from her machine to question her about Ward's
remarks.
Respondent 's attempts to show that it fairly applied to
its no-solicitation rule were unimpressive. The warning
notices on which Respondent relied involved conduct
which was not at all similar to that for which Craig and
Ward were warned . For the most part, these other warn-
ings (R. Exh . 3) charged employees for leaving their
duty stations and wandering to unauthorized work areas.
In the only other instance in which a warning was given
for union solicitation , threatening conduct also was in-
volved. Even then , the warning apparently was simply a
verbal one.
Only one reason-a discriminatory one-explains why
Respondent selectively invoked its no-solicitation rule
against Craig and Ward. Alexander's interrogation of
Lasure, and Branoffs willingness to tattle to him, reveals
that Respondent was interested in uncovering and
thwarting those who engaged in union activity . Cassidy's
haste in preparing and issuing the warnings to Craig and
Ward before adequately investigating the matter and the
rush to judgment here while other more disruptive con-
' Interestingly, Respondent did not adduce Holder as a witness.
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duct was ignored , further underscores Respondent's dis-
criminatory purpose. See Peyton Packing, 49 NLRB 828,
843-847 (1943).
Given all these considerations , the conclusion is ines-
capable that Respondent issued written warnings to
Craig and Ward in order to discourage their activity on
behalf of the Union. Such conduct violates Section
8(axl) and (3) of the Act. See Blue Bonnet Express, 271
NLRB 433 fn. 3 (1984).
CONCLUSIONS OF LAW
1. Respondent Lamar Industrial Plastics Co. is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America is a
labor organization within the meaning of Section 2(5) of
the Act.
3. On 24 September 1984 Respondent issued to em-
ployees Marlene Craig and Darlene Ward written warn-
ings, pursuant to its distribution and solicitation rule, be-
cause of their union activities and to discourage them
and other employees from engaging in activities on
behalf of the Union, thereby violating Section 8(axl) and
(3) of the Act.
4. The above unfair labor practices have a close, inti-
mate, and substantial relationship to trade, traffic, and
interstate commerce and tend to obstruct the free flow of
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(axl) and
(3) of the Act, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
actions including removing from its files any reference to
the warning notices issued to Craig and Ward and post-
ing a notice assuring employees that it will apply its no-
solicitation rule in a nondiscriminatory manner.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
eds
2. Take the following affirmative action necessary to
effectuate the purposes and policies of the Act.
(a) Remove from its files any reference to the warning
notices issued to Marlene Craig and Darlene Ward on 24
October 1984 and notify them in writing that this has
been done and that evidence of the warning notice will
not be used as a basis for future personnel actions against
them.9
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its Sterling Heights, Michigan facility,
copies of the attached notice marked "Appendix." t o
Copies of the notice, on forms provided by the Regional
Director for Region 7, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
Respondent subsequently discharged Ward for reasons not related to
this case Ward is contesting her dismissal in another forum
'° 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
ORDER
The Respondent, Lamar Industrial Plastics Co., Ster-
ling Heights, Michigan, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Issuing warning notices to employees pursuant to
its distribution and solicitation rule because of those em-
ployees' union activities or to discourage employees from
engaging in activities on behalf of the Union.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
8 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.
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT apply our distribution and solicitation
rule selectively or disparately to prohibit, interfere with,
or prevent employees' union activity.
WE WILL NOT discipline employees pursuant to the no-
distribution/no-solicitation rule referred to above because
of those employees ' union activities or to discourage em-
ployees from engaging in activity on behalf of the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
rights guaranteed them by Section 7 of the National
Labor Relations Act.
WE WILL expunge from our files any reference to the
warning notices issued to Marlene Craig and Darlene
LAMAR INDUSTRIAL PLASTICS 515
Ward and will not use them as a basis for future person- WE WILL rescind the warning notices given to Mar-
nel actions. lene Craig and Darlene Ward on 24 October 1984 and
notify them in writing that this has been done.
LAMAn INDusrniAI. PLASrIcx Co.