Miller Industries Towing Equipment

National Labor Relations Board - Board Decisions

Sep 17, 2004

342 N.L.R.B. 1074 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
342 NLRB No. 112
1074
Miller Industries Towing Equipment, Inc. and Inter-
national Union, United Automobile, Aerospace
and Agricultural Implement Workers of Amer-
ica (UAW), AFL–CIO. Cases 10–CA–33712 and
10–RC–15274
September 17, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On January 21, 2003, Administrative Law Judge Mar-
garet G. Brakebusch issued the attached decision. The
Respondent filed exceptions and a supporting brief and
the Charging Party filed cross-exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision in light of the
exceptions and brief and has decided to affirm the
judge’s rulings, findings,1 and conclusions only to the
extent consistent with this Decision and Order and to
adopt the recommended Order as modified below.
We agree with the judge that, during the course of the
Union’s organizing campaign at the Respondent’s Ool-
tewah, Tennessee plant,2 the Respondent violated Section
8(a)(1) by threatening that unionization would result in
stricter enforcement of rules relating to lunch and break-
times and by prohibiting off-duty employees from engag-
ing in protected concerted activities in a nonwork area.3
We further agree that these unfair labor practices pro-
vide sufficient basis to set aside the results of the election
and that a second election must be held.4

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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 Cir. 1951). We have carefully examined the record and find no
basis for reversing his findings.
2 The April 11, 2002 election resulted in 134 votes for International
Union, United Automobile, Aerospace and Agricultural Implement
Workers of America, UAW, AFL–CIO (the Union) and 147 votes
against representation. The Union filed objections, some of which were
coextensive with alleged unfair labor practices and were consolidated
for hearing.
3 For institutional purposes, Chairman Battista and Member Schaum-
ber acknowledge Tri-County Medical Center, 222 NLRB 1089 (1976),
as controlling precedent in adopting the judge’s conclusion that the
Respondent violated Sec. 8(a)(1) by prohibiting off-duty employees
from engaging in a preelection rally in the parking lot.
4 We deny the Charging Party-Union’s request for special notice and
access remedies under Fieldcrest Cannon, 318 NLRB 470, 473 (1995),
enfd. in relevant part 97 F.3d 65 (4th Cir. 1996), and its request for an
award of its organizing expenses. However, we grant the Charging
Party-Union’s request for the inclusion of language in the notice of
election in accordance with Lufkin Rule Co., 147 NLRB 341 (1964).
Such language is standard when requested. See NLRB Casehandling
In recommending that the election be set aside, the
judge did not rely on certain threats made by Supervisor
Charlie Self, which she characterized as “isolated.”5 We
affirm the judge’s findings that these threats violated
Section 8(a)(1), but given the other instances of objec-
tionable conduct found above, we find it unnecessary to
consider whether Self’s conduct would also be a basis for
setting aside the election.
Further, we adopt the judge’s finding that, following
the representation election, the Respondent violated Sec-
tion 8(a)(2) and (1) by creating and dominating the con-
tinuous improvement committee, an in-house organiza-
tion designed to deal with employee working conditions.
However, we reverse the judge’s findings (1) that
statements by General Manager Michael Baker and Chief
Executive Officer Jeff Badgley unlawfully threatened
that unionization would result in layoffs and (2) that Vice
President of Operations Jerry Driscoll threatened em-
ployees with loss of overtime opportunities. For the rea-
sons stated below, we dismiss these 8(a)(1) allegations
and overrule the corresponding election objections.
1. The Statements of Baker and Badgley: The judge
determined that General Manager Baker and CEO Badg-
ley, unlawfully threatened employees with layoff. The
Respondent argues that Baker’s statements are protected
under Section 8(c) of the Act, that the complaint does not
allege that Badgley threatened layoff, and that the sub-
stance of Badgley’s remarks do not support a finding of
threatened layoff. We agree that these allegations should
be dismissed.
(a) Baker: The evidence concerning General Manager
Baker is brief. Prior to the election, Baker held small
group meetings with employees. In one meeting, Baker
talked about two companies that had experienced finan-
cial difficulties while in the process of bargaining with a
union for a contract. Relying on testimony from em-

Manuel (Part Two), Representation Proceedings, Sec. 11452.3. See,
e.g., Community Action Commission, 338 NLRB 664, 667 fn. 14 (2002)
(citing NLRB Casehandling Manual (Part Two), Representation Pro-
ceedings, Sec. 11452.3); Guardian Automotive Trim, Inc., 337 NLRB
412, 413 fn. 5 (2002); Mercy General Hospital, 334 NLRB 100, 109 fn.
54 (2001).
5 In sec. IV,A of the judge’s decision, she summarized that “the evi-
dence reflects that Supervisor Charlie Self threatened employees with . . .
plant closure, plant relocation and layoff if the employees selected the
Union as their bargaining representative.” This threat as to layoff was
directly supported by employee Wilton Shrader’s testimony, quoted by
the judge in sec. II,B,3 of her decision, that, “Charlie told me . . . if the
Union came in they [there] would be a layoff and a lot of guys would get
laid off.” We accordingly find that the judge inadvertently omitted refer-
ence to a threat of layoff, when she concluded in sec. III,B of her decision
that, “Respondent, acting through Charlie Self, threatened employees with
closure and relocation if the Union won the election.”
MILLER INDUSTRIES TOWING EQUIPMENT, INC. 1075
ployee Chad Hicks,6 the judge found that Baker told em-
ployees of “the possibility of plant closures if there is a
Union due to costing the Company money,” and that he
“mentioned that the possibility of layoff depends upon
the Union and whether the Union forced Respondent to
lay off employees.” Although the judge found that
Baker’s reference to plant closure was vague and too
abbreviated to be an unlawful threat,7 she nevertheless
found that Baker’s equally vague and abbreviated refer-
ence to layoff was unlawful. With only a reference to
Baker’s “undenied threat” as enhancing the allegations
against Badgley, discussed below, the judge summarily
concluded that Baker’s comments unlawfully threatened
layoff. We disagree and find instead that the testimony
concerning Baker’s remarks is in all respects too vague
and insubstantial to support a finding of any unlawful
threat.
The record reveals that on direct examination, Hicks
was asked whether Baker talked about the possibility of a
layoff at any time. He responded, “It could be a possibil-
ity, just depends on the Union pretty much” and, “It de-
pended on the Union if—if it forced the company to.”
When asked what Baker specifically said about a layoff
at Miller Industries, Hicks replied, “That it might be a
possibility of a layoff, if the Union came in, and they
really couldn’t afford it.”
Contrary to the judge and our dissenting colleague, we
find that these general references to “possibilities” are
inadequate to establish that Baker threatened that unioni-
zation would result in layoffs. The statements do not de-
tail how or why the Union would force the Respondent to
lay off employees, but they do clearly indicate that these
possibilities would be based on the Respondent having
no alternative in the face of either a union initiative or
some other economic circumstance. Hicks’ testimony
conveys little more than that he had an impression that
Baker was connecting the Union to layoffs. It lacks any
semblance of detail that would provide a reliable basis
for concluding that Baker was making a threat. We find
no difference between Hicks’ testimony on the layoff
statement and his testimony regarding the allegation that
Baker threatened plant closure in the same meeting,
which the judge dismissed as “vague and too abbreviated
to constitute sufficient evidence of a threat.” Without
greater specificity as to Baker’s words or elaboration on
his manner of delivery, we are unable to conclude, on the

6 Baker did not testify about these threat allegations, so Hicks’ testi-
mony is undisputed.
7 No exceptions have been filed regarding this dismissed allegation.
Therefore, unlike our colleague, we find it of little probative value in
assessing whether Baker made an unlawful threat of layoff.
strength of this evidence, that the phrases attributed to
Baker contain an unlawful threat.
(b) Badgley: On the day before the election, the Re-
spondent held a meeting with employees in the cafeteria.
Reading from a prepared text,8 CEO Badgley described
the Respondent’s economic condition, citing declining
sales figures and financial losses in the prior 2 years. He
pointed out that to keep from laying off employees, the
Respondent had shifted, to the facility involved herein,
work that had previously been out-sourced. He also ob-
served that several years earlier, two unionized competi-
tors had gone bankrupt and that the Respondent’s current
competitors were all nonunion. Badgley said he believed
competitors might use the prospect of the Respondent’s
unionization to gain competitive advantage. Stating that
he was not predicting a strike, Badgley voiced concern
about the possibility of a strike and that an interruption in
business could harm relationships with customers. He
said that the Union could not help, and could even hurt,
the Respondent’s economic situation. He ended by ask-
ing employees to work with management through the
rough times and for their vote.
The judge described the overall effect of Badgley’s
speech as equating unionization with dire consequences
and, specifically, unlawfully threatening that employees
would be laid off.9 She found that Badgley’s unexplained
prediction that nonunion competitors would take sales
from the Respondent lacked a demonstrable underlying
premise.10 She also found that Badgley sent the message
that just as not laying off employees was Respondent’s
choice, decisions about future layoffs were also within
the Respondent’s control. Describing Badgley’s threat as
further enhanced by Baker’s earlier undenied layoff
threat,11 the judge concluded that the Respondent vio-
lated Section 8(a)(1) in both instances.

8 A copy of the written remarks was entered into evidence as R. Exh.
6. Badgley testified that he did not vary from what was on the page.
9 Acknowledging that the complaint alleges that Badgely threatened
plant closure rather than layoff, the judge reasoned that, because the
complaint alleged other layoff threats (i.e., by Baker and Self), the
Badgley statement was fully litigated, and the Respondent suffered no
prejudice, there is adequate foundation for finding the violation. In the
circumstances of this case, we will assume that this allegation was
appropriately before the judge for consideration. We further observe
that the judge dismissed the allegation that Badgley threatened plant
closure, to which no exceptions have been filed.
10 The judge cited Ipilli, Inc., 321 NLRB 463 (1996), and Crown
Cork & Seal Co., 308 NLRB 445 (1992), for the asserted proposition
that employers must substantiate, with objective evidence, predictions
that unionization will result in loss of competitiveness with nonunion
rivals, or they will be held unlawful.
11 In light of our dismissal of the allegation concerning Baker’s lay-
off threat, we find it of little probative value in assessing the impact of
Badgley’s speech.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1076
We disagree. Badgley’s statements were based on
demonstrable facts, including sales and earnings (loss)
figures, and verifiable accounts of past events. The de-
clining market was a reality of the business downturn,
about which employees were fully aware. The bank-
ruptcy and relocation of former area unionized plants
were also actual occurrences, not matters of opinion. So,
too, was the fact that the Respondent had made a choice
to keep its employees working by bringing into the plant
work previously done by outside contractors.
Other parts of Badgley’s speech that were not strictly
fact based were limited to his views about the possible
impact of the Union in dealing with the less-than-
vigorous industry climate. He observed, “I do not be-
lieve the Union can do anything to help our ability to
continue to deal with the economic problems we face.”
Citing his own past business experience, Badgley alluded
to how others in the industry might attempt to use the
Respondent’s unionized status to gain competitive ad-
vantage in a tight market. Badgley did not predict un-
avoidable consequences,12 but only offered his perspec-
tive that unionization could have some effect on the Re-
spondent’s business condition based on the conduct of its
competitors.13 This statement cannot be reasonably de-
scribed as a threat. Likewise, Badgley’s reference to
what might result in the event of a strike, an event which
he specifically assured employees he was not predicting,
is merely an apt description of the likely effects of inter-
rupted production.14
In contrast to the comments found unlawful in Ipilli,
Inc., supra, relied on by the judge, Badgley’s comments
were not premised upon notions that the Union necessar-
ily would make particular wage demands, that unioniza-
tion would render the Respondent less competitive, or
that unionization would lead inevitably to the Company’s
demise. And unlike the statements found unlawful in
Crown Cork & Seal Co., supra, Badgley was expressing
concern for potential economic consequences beyond the
Respondent’s control that could result from unionization,
not threatening retaliation as a result of employees’
choosing the Union. Neither was he warning that the
Respondent would not meet its lawful bargaining obliga-

12 Cf. Reeves Bros., Inc., 320 NLRB 1082 (1996).
13 Badgley’s remarks may be compared with those in Action Mining,
318 NLRB 652 (1995), where the day before the election, the company
president referred to the negative economic industry conditions and the
possibility of losing customers because of their concern that the com-
pany could face a strike. In reversing the judge’s finding of a violation,
the Board focused on the speculative nature of the remarks and found
no suggestion that the company would be taking retaliatory action
solely on its own initiative for reasons unrelated to economic necessity.
14 See General Electric Co. v. NLRB, 117 F.3d 627, 632–634 (D.C.
Cir. 1997) (discussion of employer citing economic risks of unioniza-
tion).
tions if the Union were selected. Instead, Badgley merely
communicated certain objective facts and, devoid of
threats or promises, offered his assessment on the possi-
ble impact of unionization on the Respondent’s situation.
Unlike the dissent, we do not impute an unlawful threat
in Badgley’s honest recounting of events beyond the Re-
spondent’s control. We find, therefore, that his speech to
employees falls within the standard of NLRB v. Gissel
Packing Co., 395 U.S. 575, 620 (1969). Accordingly, we
dismiss allegations that the Respondent unlawfully
threatened employees that unionization would result in
layoffs.
Our colleague says that she “hears a more threatening
message.” We disagree. The issue is what the employ-
ees who were there would reasonably understand in the
circumstances. In our view, employees would reasona-
bly understand that Badgley was talking about the possi-
ble economic consequences of unionization, not a threat-
ened retaliation for unionization.
Our colleague also says that the Baker and Badgley
remarks must be considered together. However, as she
acknowledges, the remarks were made by different peo-
ple, at different times, and in different settings. Accord-
ingly, even if one remark was unlawaful we could not
rely on it to taint the other one. In addition, as set forth
above, we find both remarks lawful.
2. The Statements of Jerry Driscoll: Undisputed evi-
dence establishes that on the day before the Good Friday
holiday, Vice President of Operations Driscoll held a
meeting to solicit employees who would be needed to
work the next day. As an inducement, the Respondent
offered to modify the overtime policy to permit employ-
ees to opt for compensatory time and take a day off at
another time. Following the meeting, Driscoll spoke with
a group of about five or six employees and told them that
if a union were present, the Respondent’s ability to mod-
ify policies to accommodate such last-minute needs
would be hard or might not happen at all. The judge rea-
soned that because Driscoll offered no explanation about
the bargaining process and the role of the union in work-
place governance, his statement unlawfully threatened
that the Respondent would more strictly enforce over-
time rules if employees voted in the Union.15
The Respondent contends that the judge failed to con-
sider the context of Driscoll’s remarks and asserts that
the record shows that employees did not receive Dris-

15 The judge contrasted Driscoll’s statement with those found lawful
in Trash Removers, Inc., 257 NLRB 945 (1981), and Beverly Enter-
prises, 322 NLRB 334 (1996). In each of those cases, the employer
made reference to the bargaining process and the role of the union as a
participant in the implementation of workplace policies.
MILLER INDUSTRIES TOWING EQUIPMENT, INC. 1077
coll’s words as threatening or coercive. Our review of the
evidence supports the Respondent’s position.
In setting forth the facts giving rise to this allegation,
the judge relies on Driscoll’s testimony as to what was
said. In his analysis, he focuses on Driscoll’s statement,
but fails to take into account the response of Anthony
Cartwright, one of the employees who was a part of that
discussion. In response to Driscoll’s observation that the
Respondent’s flexibility would be curtailed in a union-
ized environment, Cartwright immediately interjected,
“You’re right, that’s why we want a union, we want a
contract, we want everything written down so you can’t
change policy.” Driscoll apparently accepted the em-
ployee’s reply and the conversation ended.
This part of the conversation, disregarded by the judge,
demonstrates that Cartwright understood precisely the
point Driscoll was making; that is, with a union, agreed-
upon contractual terms govern the workplace and the
Respondent would not have the discretion to make policy
changes at will. Once Cartwright said what he did, it was
unnecessary for Driscoll to elaborate on the issue. None
of the other employees present asked a question or of-
fered further commentary.16 There is no evidence that
the exchange, including Cartwright’s response, would
reasonably threaten the employees. Driscoll did not say
that with a union overtime would not be available or that
compensation options would be less advantageous for
employees, only that the Respondent would not be free to
make last minute changes to accommodate its needs.
Cartwright’s assertion indicates that employees recog-
nized that a union contract would play a role in these
restrictions. Accordingly, we find no basis to conclude
that Driscoll’s comment unlawfully threatened employ-
ees.
ORDER
The National Labor Relations Board adopts the rec-
ommended order of the administrative law judge as
modified below and orders that the Respondent, Miller
Towing Equipment, Inc., Ooltewah, Tennessee, its offi-
cers, agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Delete paragraph 1(e), and reletter the subsequent
paragraphs.

16 Thus, we do not agree with our colleague’s assessment that we are
relying on Cartwright’s reply to mitigate the impact of Driscoll’s state-
ment. Instead, we are relying on Cartwright’s reply as evidence that he
understood—and articulated in the presence of the other employees
who had heard Driscoll’s statement—that collective bargaining would
be required before the Respondent could make any changes in terms
and conditions of employment. As noted above, neither Driscoll or any
of the other employees refuted or questioned Cartwright’s reply.
2. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER LIEBMAN, dissenting in part.
In addition to committing the unfair labor practices
found by my colleagues, the Respondent here—through
its plant manager, its vice president of operations, and its
CEO—threatened employees with layoff and loss of
overtime opportunities. As the judge did, I would find
these violations, contrary to the majority, which tolerates
precisely the sort of employer brinksmanship condemned
by the Supreme Court in Gissel Packing Co.1 In all other
respects, I agree with the majority, including their deci-
sion that the conduct they have found to be unlawful
warrants a second election and granting the Charging
Party-Union’s request for the inclusion of language in the
notice of election in accordance with Lufkin Rule Co.,
147 NLRB 341 (1964).
1. The Layoff Threats: It is appropriate to assess the
import and impact of Plant Manager Michael Baker and
CEO Jeff Badgley’s remarks together, as the judge did.
Although the statements were delivered at different times
and settings, their message was part of a single theme,
designed to create fear and uncertainty about the effect of
unionization on job security.
While testimony regarding Baker’s remarks is not ex-
tensive, it is sufficient to establish their coercive ten-
dency. Employee Hicks described the meeting which
took place just a few days before the election, with about
20 employees present, as one of a series held by Baker to
discuss the disadvantages of having a union. Reading
from note cards,2 Baker began by raising the possibility
of plant closure if costs increased and named two union-
ized companies that were facing bankruptcy or had
closed.3 He said that those companies could not afford to
stay open, and had to lay off employees. He warned that
the same thing could happen to the Respondent.
The message was clear, even if Hicks’ testimony lacks
the precision the majority deems necessary. Baker
equated unions with higher costs for businesses, leading
to their failure and the loss of jobs. He was not lawfully
predicting potential consequences of unionization based
on objective fact, as required by Gissel Packing Co., su-
pra. Citing examples of financially troubled companies
and implying that the same thing could happen to the
Respondent, without providing a factual basis, would
reasonably tend to coerce employees. Hicks’ testimony
reveals that Baker was successful in delivering his mes-

1 NLRB v. Gissel Packing Co., 395 U.S. 575, 620 (1969).
2 Hicks was clear and certain in testifying that Baker’s comments
were not in response to any employee question.
3 No exceptions were filed with respect to the judge’s dismissal of
allegations that Baker’s remarks threatened plant closure.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1078
sage. Thus, in agreement with the judge, I would find
that Baker unlawfully threatened that unionization would
result in layoffs.
As is made even clearer in CEO Badgley’s formal re-
marks, the issue of job security was a major concern dur-
ing the campaign. Shortly after Baker’s smaller group
meeting, Badgley met with the entire work force to re-
view business conditions and ask for support in the elec-
tion. He recounted the negative economic climate and
the plight of others in the industry. He pointed out that
other companies had imposed layoffs in response to the
downturn, but the Respondent had chosen to bring into
its facility certain work that had previously been done by
outside contractors in order to keep from laying off em-
ployees. He added that moving the work in-house was
more expensive than to have left it with contractors, but
that Respondent had placed the employees’ interests first
in making its decision. He then expressed concern that if
the Union entered the picture, the possibility of business
interruptions could place the Respondent at further com-
petitive disadvantage during the current rough economic
times. He ended with the hope that they would continue
to work together and asked for their vote.
The Gissel Court has made clear that in deciding
whether a statement reasonably tends to coerce employ-
ees, who are dependent on their employer, the Board
must be alert “to pick up intended implications of the
[employer] that might be more readily dismissed by a
more disinterested ear.” 395 U.S. at 617. My colleagues
should listen more closely here. Unlike them, I hear a
more threatening message in Badgley’s reminding em-
ployees that the Respondent holds the power over the
decision to implement layoffs. Sales numbers and loss
figures notwithstanding, Badgley unsubtly reminded em-
ployees that just as the Respondent had saved their jobs
in the past, it could also decide to make a different choice
in the future particularly if employees rejected his re-
quest that they work together without the involvement of
the Union. On the heels of Baker’s tying the presence of
the Union to layoffs, Badgley’s veiled reference becomes
somewhat more transparent. Accordingly, I would find
his remarks also unlawfully threatened layoffs as a con-
sequence of choosing the Union.4
2. The Threat of Losing Overtime: In further agree-
ment with the judge, I find Vice President Jerry Dris-
coll’s statement regarding the Union’s impact on over-

4 See, e.g., AP Automotive Systems, 333 NLRB 581 (2001) (“sce-
nario conveyed to employees was that, if they chose union representa-
tion, the Petitioner would inevitably make exorbitant demands, which
would ‘hurt the Troy Plant’s competitive position’ the Employer would
not agree to those demands, a strike would ensue, and the plant would
close”).
time opportunities to be unlawful. Driscoll had just
ended a meeting in which he was attempting to meet the
Respondent’s last-minute holiday staffing needs by offer-
ing incentives for employees to work overtime. Talking
informally with a few employees right after the meeting,
Driscoll took the opportunity to raise the subject of the
Union. Driscoll commented that he might not be able to
offer such inducements for overtime work with a union
present. He said that it would be hard, if it could happen
at all, for the Respondent to adjust to last-minute needs
in this way. He did not refer to there being an agreement
with the Union about how such situations would be ad-
dressed or that a contract would specify the manner in
which such needs could be filled. The message was sim-
ply that employees would be losing something they val-
ued if they chose the Union. I am not persuaded by my
colleagues’ efforts to mitigate the impact of this man-
ager’s unlawful threat by relying on an employee’s quick
retort.
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT threaten you with more strict enforce-
ment of plant rules if you select the International Union,
United Automobile, Aerospace, and Agricultural Imple-
ment Workers of America, (UAW), AFL–CIO or any
other union as your collective-bargaining representative.
WE WILL NOT threaten you with plant closure, plant re-
location, or layoff if you select the UAW or any other
union as your collective-bargaining representative.
WE WILL NOT discriminatorily prohibit you from en-
gaging in any union or protected activity on nonworking
time in nonworking areas.
WE WILL NOT form, administer, or render unlawful as-
sistance or support to the continuous improvement com-
mittee, or any other labor organization.
MILLER INDUSTRIES TOWING EQUIPMENT, INC. 1079
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL immediately withdraw all recognition from
and completely disestablish the continuous improvement
committee, and refrain from recognizing the continuous
improvement committee as your representative concern-
ing terms and conditions of employment.

MILLER INDUSTRIES TOWING EQUIPMENT, INC.

Sally Cline, Esq., for the General Counsel.
Townsell G. Marshall Jr., Esq., for the Respondent.
Lesley Troope, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARGARET G. BRAKEBUSCH, Administrative Law Judge.
The charge was filed by the International Union, United Auto-
mobile, Aerospace and Agricultural Implement Workers of
America (UAW), AFL–CIO (the Union) on May 6, 2002,1 and
an amended charge was later filed by the Union on June 12,
2002. The complaint issued on September 30, 2002. Based
upon the allegations contained in the charge and amended
charge, the complaint alleges that Miller Industries Towing
Equipment, Inc. (Respondent) engaged in various violations of
Section 8(a)(1) of the National Labor Relations Act (the Act)
between March 1 and April 19, 2002. The complaint also al-
leges that since on or about April 19, 2002, Respondent has
dominated and interfered with the formation and administration
of, and has rendered unlawful assistance and support to, a labor
organization in violation of Section 8(a)(1) and (2) of the Act.
Case 10–RC–15274 involves a Board-conducted election on
April 11, 2002, in which 134 votes were cast for the Union and
147 votes were cast against the Union with no challenged or
void ballots. On April 18, 2002, the Union filed timely objec-
tions to the election alleging the Respondent’s misconduct and
requesting the Board to set aside the April 11, 2002 election
and direct a new election. In its objections, the Union alleged
42 separate incidents of misconduct interfering with the em-
ployees’ free choice of a collective-bargaining representative.
On October 9, 2002, the Regional Director for Region 10 is-
sued a Report on Objections, Order Directing Hearing and
Consolidating Cases and Notice of Hearing. In the order, the
Regional Director found that certain of the Union’s objections
were coextensive with certain of the conduct alleged in the
complaint issued in Case 10–CA–33712. The Regional Direc-
tor also approved the Union’s withdrawal of Objections 1, 2, 4–
7, 9, 10, 12–15, 20–34, and 36–43. The remaining objections
were thus consolidated with those allegations contained in Case
10–CA–33712 and set for hearing.2
I heard this consolidated case in Chattanooga, Tennessee, on
November 20 and 21, 2002. The General Counsel, the Union,
and Respondent filed briefs, which I have considered. On the

1 All dates are 2002 unless otherwise indicated.
2 Objection 19 was withdrawn by the Union at the hearing.
entire record, including my observation of the demeanor of the
witnesses, and after considering the briefs, I find that Respon-
dent engaged in certain conduct in violation of Section 8(a)(1)
and (2) of the Act. I further recommend that the April 11, 2002
election be set aside and that the Board direct a second election.
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, has been engaged in the
manufacture, sale, and distribution of vehicle towing and re-
covery equipment, and parts at its facility in Ooltewah, Tennes-
see, where it annually sells and delivers goods from its Tennes-
see facility valued in excess of $50,000 directly to customers
outside the State of Tennessee. The Respondent 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 the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
On February 28, 2002, the Union filed a petition with the
Board to represent certain3 of Respondent’s employees at its
Ooltewah, Tennessee facility. Pursuant to a Stipulated Election
Agreement approved on March 12, 2002, the secret-ballot elec-
tion was conducted on April 11, 2002. The General Counsel
alleges that during the course of time between March 1 and
April 19, 2002, Respondent engaged in various violations of
Section 8(a)(1) of the Act. In its remaining objections, the
Union alleges that a number of these same acts of misconduct
interfered with Respondent’s employees’ free choice of a col-
lective-bargaining representative sufficient to require setting
aside the April 11, 2002 election.
B. Alleged Violations of Section 8(a)(1)
1. Threatening employees with stricter enforcement of
plant rules (complaint paragraph 7 and Objection 8)
Employees at the Ooltewah facility are allowed two 10-
minute breaks and one 30-minute lunchbreak during each shift.
Employees Jeff Nathan Stacey, Stevie Ruley, and Richard
Fields testified that prior to the Union’s campaign, Respondent
did not strictly enforce the scheduled break and lunchtimes for
its employees. Fields recalled attending a meeting of approxi-
mately 10 to 12 employees conducted by General Manager
Michael Baker approximately 2 weeks before the election.
Fields recalled: “He said our breaks wouldn’t be as lenient if
we had a Union, and you know, our lunch times would be like
back in our work area.” Stacey recalled that during a meeting
with employees in early March, Baker told the employees that

3 The stipulated appropriate unit is:
All full-time and regular part-time production and maintenance em-
ployees, warehouse employees, shipping and receiving employees and
truck drivers, employed by the Respondent at its Hilltop Drive and
Ooltewah Georgetown Road, Ooltewah facilities, but excluding all
other employees, technical employees, office clerical employees, pro-
fessional employees, guards and supervisors as defined in the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1080
if they had a union, Respondent would have to enforce the
breaktimes more strictly and there wouldn’t be any “dilly-
dallying around before and after.” Bobby Wilson recalled that
during a meeting at the end of the campaign, Baker told em-
ployees that “if the Union got in that everybody would have to
buckle down more than what they do now.” He quoted Baker
as saying, “We’re pretty lenient now, but if this comes in, you
know we’ll all have to abide by rules, stricter rules pertaining to
lunch and breaks.”
Baker testified that early in the Union’s campaign, he held
small group meetings with employees, averaging 15 to 20 em-
ployees in the groups. Baker explained that his intent was to
introduce himself in terms of his background and experience.
During the meetings, Baker allowed employees to ask ques-
tions. He recalled that in response to a question, there had been
some discussion about lunch and breaktimes and what might
happen if the Union were to be voted in. Baker could not recall
the exact question but he believed that it had to do with the
differences between a union shop and a nonunion shop. Baker
told employees that based upon his past experience in a union
environment, a union environment is more structured and regi-
mented as far as breaktimes and not nearly as relaxed as Re-
spondent’s facility. When asked if he had ever stated in the
meetings that Respondent would have to more strictly enforce
breaktimes or lunchtimes if there was a Union, Baker testified
that he didn’t believe that he had ever said that.
In further support of paragraph 7 of the complaint, the Gen-
eral Counsel presented the testimony of employee Steve Ruley.
Ruley could not identify the date, however he recalled a con-
versation that he had with Supervisor Charlie Self during the
campaign period. Self was not Ruley’s supervisor at the time
of the campaign, however he and Ruley were involved in a
discussion about animals. During the course of the conversa-
tion, Ruley asked Self how he would feel if the Union won the
election. Self replied, “Well, the only thing I can tell you is
that the breaks that people take now, we’d have to enforce it
now. Your lunch would have to be enforced more, and your
last break enforced more.” Employee Bobby Wilson also testi-
fied concerning a conversation with Self. Wilson did not give
the date or the location of the conversation nor did he mention
whether any other employees were present during the conversa-
tion. He testified:

At one time he said that if the Union got in here that they
would have to reinforce the break policy and said ten minutes
is all you’d get; you’d have to stay in your hole and—until the
buzzer went off, be back in your hole before the buzzer went
on. Said they’d have to crack down on that.

Self denied telling either Wilson or Ruley that the break pol-
icy would be enforced more strictly. Self recalled that he had
conversations with Ruley before the election but denied that
Ruley ever asked him how he felt about the Union. Self main-
tained that Ruley was one of the main employee organizers in
the union campaign and he saw no need to talk to Ruley about
the Union.

2. Threat of plant closure and threat of plant relocation
if employees selected the Union as their bargaining
representative (complaint paragraphs 8 and 9 and
Objections 16 and 17)
Paragraph 8 of the complaint alleges that Supervisors Charlie
Self, Michael Baker, and Jeff Badgley threatened plant closure
if the employees selected the Union as their bargaining repre-
sentative. The complaint alleges that these threats occurred on
March 11, 21, and 28 and April 10, 2002. Paragraph 9 of the
complaint alleges that Supervisor Charlie Self threatened em-
ployees with plant relocation on or about March 11 and 21,
2002.
Employee Bobby Wilson testified that approximately a
month before the election, Supervisor Self came to his work
area and spoke with him about the Union. Wilson recalled that
during the conversation, Self mentioned that Respondent had a
facility in Greenville, Tennessee, that was not being used very
much. Wilson quoted Self as stating: “They close this place
down and we’ll all be out of a job.” Wilson recalled that he had
responded “Well, if that’s the case of it, then I guess they’ll
have to retrain everybody when they hire men up there, won’t
they?” Wilson testified that Self gave no explanation as to why
the Ooltewah facility might close, but only stated that when the
Union came in, Respondent might close down the plant. Wilson
also recalled am earlier occasion when Self had spoken to him
and to employees Allen Rodgers and an employee known as
(Pup) or Jason. Self referred to Respondent’s plant in
Greenville, Tennessee, and mentioned that only a small portion
of it was being used. Self then added, “What are we going to
do when they shut it down, move everything up there? We’ll all
be out of a job then.” Self denied that he ever had any conver-
sation with Wilson concerning the closure of the Ooltewah
plant or about Respondent’s plant in Greenville, Tennessee.
Employee Chad Douglas Hicks testified that he attended a
meeting held by Baker a few days before the election. Hicks
recalled that Baker explained the disadvantages of having a
union and volunteered that it was not smart to have a union.
Hicks recalled, “He said there’s a possibility of a plant closure
due to the Union of drying the Company out of money.” Baker
referenced two specific companies; Wayland Foundry and Ac-
curide, that were going through the process of bargaining for a
contract with a union. The companies had either gone into
bankruptcy or had been forced to close or get temporary help.
Hicks recalled that Baker’s comments about the closure had
been made as he read from index cards and had not been in
response to any particular questions. While Baker testified
about the small group meetings that he held with employees
prior to the election, he did not specifically address the alleged
threat of plant closure or deny the alleged statement.
Employee Wilton Shrader testified concerning Chief Execu-
tive Officer Jeff Badgley’s speech to employees the day before
the election. Shrader recalled that the cafeteria had been filled
with employees for Badgley’s speech. While reading from a
statement, Badgley talked about the Union closing Challenger,
Wayland, and Ernest Holmes. Shrader recalled that Badgley
said that the Union would conflict with or hamper the Com-
pany’s way of doing business. He denied however, that Badg-
ley had said anything about closing down the facility. Shrader
MILLER INDUSTRIES TOWING EQUIPMENT, INC. 1081
added: “I can’t remember his exact words, said something to
the effect that he had been watching out for our families and
trying to avoid a layoff, but if a Union came in there would be a
layoff.” Shrader further recalled that Badgley told the employ-
ees that if they didn’t like their jobs, they could go somewhere
else and find another one.
Respondent submitted into evidence the text of Badgley’s
speech on April 10. Badgley testified that prior to the speech,
he told employees that he was going to read from the text and
he read it in its entirety and did not vary from the prepared
remarks. The written remarks include the following language:

Today, none of our major competitors are unionized. Jerr-
Dan, Dynamic, NRC, Nomar, A-Tach, Kilar and True Hitch
are all non-union. That was not always true. In fact, before
the last business downturn in our industry in the early 1990’s,
Challenger, in Elkhardt and Chicago, was unionized. As most
of you know, in 1992, we bought the bankruptcy assets of
Challenger, as well as Holmes, which had been unionized be-
fore it moved from Chattanooga. I am not saying these com-
panies went bankrupt because of the union, but is clear that
the union did not have a positive affect on the ability of those
companies to successfully compete.

As Badgley continued his speech, he spoke about the de-
creased sales and losses for Respondent in 2000 and 2001 and
certain factors that had contributed to the Company’s losses. In
talking about certain manufacturing processes that had been
moved to the Ooltewah plant, Badgley stated:

Frankly, leaving this work with outside contractors would
have saved us money in the short run, but these decisions
were made to avoid layoffs in this down economy. We did
not have to do this, but we did it to keep people working at the
Ooltewah facility. We thought it was better that we do this
rather than have people out of work and receiving unem-
ployment which amounted to less than half of what they
would have earned working here.
I am encouraged by what we have done in this econ-
omy. We have been able to keep you working while those
at many other companies have been laid off or have lost
their jobs. I also believe that the cost savings we have ac-
complished, such as a 25 percent reduction in selling, gen-
eral, and administrative expenses, puts us in a position to
benefit and become profitable when the economy does
pick up. We are not out of the woods yet, but we are mov-
ing in the right direction.

Badgley continued by telling employees:

I am concerned, however, about our ability to continue to deal
with our economic problems in the face of this union organiz-
ing campaign. If the UAW should somehow win the election,
I firmly believe that our competitors, all of whom are non-
union, will use this to create uncertainty and concern in the
market in order to take sales away from us.

Badgley also added that while he was not predicting a strike,
he was concerned about the possibility of a strike if the UAW
won the election. He explained that any interruption of their
business might seriously harm their relationship with their cus-
tomers and their business.
3. Threat of layoff if the employees selected the Union
(complaint paragraph 10 and Objection 18)
Paragraph 10 of the complaint alleges that on or about March
28, 2002, Respondent, acting through Mike Baker and Charlie
Self threatened employees with layoff if they selected the Un-
ion as their bargaining representative.
Employee Chad Douglas Hicks testified that during a meet-
ing with employees a few days before the election, Baker had
not only spoken with employees about the possibility of plant
closure but had also mentioned the possibility of a layoff.
Hicks recalled that Baker had said that the possibility of layoff
depends on the Union and if the Union forced the Company to
layoff employees. In his testimony, Baker did not address the
alleged threat of layoff and did not deny the alleged statement.
During his conversation with Self prior to the election,
Shrader recalled a discussion of layoffs. Shrader recalled:
“Charlie told me that I knew that I had enough seniority that if
there was a layoff that I wouldn’t get laid off, but if the Union
came in they [there] would be a layoff and a lot of the guys
would get laid off.” Self denied that he had ever made such a
statement to Shrader or that he had any discussion with Shrader
about layoffs. Self recalled that during the campaign he was
asked several times if he thought that there would be a layoff if
the Union came in and he had responded that he didn’t know.
4. Threat to decrease or eliminate overtime options if
the employees selected the Union (complaint paragraph
11 and Objection 3)
Complaint paragraph 11 alleges that on or about March 28,
2002, Vice President of Operations Jerry Driscoll threatened
employees with a decrease or elimination of overtime options if
the employees chose the Union as their collective-bargaining
representative.
Employee Jeff Stacey recalled that Driscoll spoke with a
small group of employees after his having had a meeting with a
larger group of employees. Stacey did not identify the ap-
proximate date of the meeting or the number of employees who
were present during Driscoll’s comments. Stacey recalled that
Driscoll told employees that if they elected the Union, they
would not have overtime options.
General Manager Baker attended a meeting held by Driscoll
prior to the Good Friday holiday. Baker explained that the
purpose of the meeting was to tell employees that they had the
option of compensatory time in lieu of overtime if they worked
the Good Friday holiday. Driscoll testified that Respondent’s
policy on overtime is to pay double time to employees who
work on holidays. Because Respondent needed more people to
work on that particular holiday, the overtime policy was modi-
fied to allow employees the option of receiving comp time and
taking their holiday at another time. Driscoll recalled that after
the meeting, a group of approximately five or six employees,
including Stacey and Anthony Cartwright, were talking with
Mike Baker. Driscoll joined the conversation. Driscoll admit-
ted that he initiated the subject of the Union. Driscoll recalled
saying that if a union were voted in, the Company’s ability to
come down just before an event and modify policy to make
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1082
things work would be harder or not happen. Driscoll recalled
that Cartwight had responded, “You’re right, that’s why we
want a union, we want a contract, we want everything written
down so you can’t change policy.”
5. Prohibiting employees from engaging in Union
activity during nonworking time in nonworking areas
and unlawfully denying nonworking employees access to
Respondent’s premises to engage in union activities (complaint
paragraphs 12 and 13 and Objection 11)
Complaint paragraph 12 alleges that on or about April 9,
2002, Human Resources Director Bill Beckley prohibited em-
ployees from engaging in union activities during nonworktime
in nonworking areas. Paragraph 13 further alleges that on the
same date, Beckley unlawfully denied off-duty employees ac-
cess to Respondent’s premises to engage in union activities.
Employees Stacey testified that prior to the Union’s cam-
paign, employees were allowed to congregate in the parking lot
before or after their regular shift. Union Organizer Cindy Ad-
ams testified that she had observed employees visiting with
each other in the parking lot after work. Warehouse Manager
Denny Powers also confirmed that there was no rule prohibiting
employees from remaining in the parking lot after they stopped
working.
Employees Stacey and Shrader testified that they attended a
rally of off-duty employees prior to the election. Human Re-
sources Director Bill Beckley recalled that the rally had been
the day before the election at the beginning of second shift.
Stacey recalled that a group of approximately 20 employees
gathered outside the main gate to the Respondent’s facility and
then circled through the parking lot, exiting back at the main
gate. It is undisputed that the employees held large “Union
Yes” signs and chanted their support for the Union. Shrader
estimated that the rallying employees did not come any closer
than 150 to 200 feet of the working area of the plant. Employ-
ees Stacey and Shrader recalled that Beckley came out of the
facility while the employees were conducting their rally and
told them that they would have to leave company property.
While union organizer Cindy Adams had initially been outside
the main gate, she later entered company property during the
course of the employees’ rally. She took photographs from a
vantage point on the ground as well as from the back of a truck
parked in the parking lot. Adams confirmed that she had also
heard Beckley tell employees to get off the company property.
Employee Stevie Ruley was working inside the plant at the
time of the employees’ rally. As he was working in the stock-
room near the dock, he overheard employees yelling something
about the Union which sounded like “Vote Union, Vote Un-
ion.” He recalled that when he and Warehouse Manager Denny
Powers neared the doors that opened to the parking lot, he ob-
served a group of employees walking toward the plant from the
main gate. Ruley overheard Powers contact someone on the
two-way radio and report that some “employees were starting
trouble.”
Powers testified that he had been walking to the stockroom on
April 10 when he heard chanting outside. He observed 15 to 20
employees who did not work in that area standing at the bay
door. When he walked to the door, he saw a group of employees
walking toward the receiving gate. He saw the employees with
signs and heard them yelling, “When do we want the Union?
Right now.” Powers recalled that he called Beckley by telephone
and reported that there were a group of employees coming
through the parking lot yelling and that other employees were
standing and watching. Powers testified that in the eight years
that he had worked for the Company, he had never seen this kind
of conduct. Powers explained that he had not known if the em-
ployees were violent or what they intended to do.
Beckley testified that approximately 15 to 20 minutes after
the start of the second shift on April 10, 2002, he was contacted
by Powers. Powers told him that a number of employees were
standing at the bay doors observing a demonstration in the
parking lot. Beckley told Powers to get the employees back to
work and he would go out and see what was going on in the
parking lot. He said that he observed employees marching in
the parking lot and chanting loudly, “Union now, Union now”
as well as approximately 15 to 20 employees standing and
watching the demonstration from the warehouse’s bay doors.
He also observed Adams coming toward him with a camera.
Beckley confirmed that he told employees that they were dis-
turbing the work force. He recalled that he told the organizer
that she was trespassing and directed her to get off the property.
6. Interrogation of employees about their union activity
(complaint paragraph 14 and Objection 35)
Paragraph 14 of the complaint alleges that on or about March
28, 2002, Supervisor Charlie Self interrogated employees about
their union membership, activities, and sympathies. Wilton
Shrader testified that a few days before the election, Supervisor
Charlie Self came into his work area. Shrader was wearing a
union sticker on his welding helmet. Self, who was not
Shrader’s supervisor, asked him, “What’s that?” Shrader re-
plied by saying that it was the next thing to the Teamsters.
Shrader explained that he had mentioned the Teamsters because
he had been told that Self had previously signed a union card
for the Teamsters. Self asked Shrader what he thought that a
union could do for him. Shrader explained that he wanted a
pension. Self remarked that if Shrader had stayed in the Army,
he would have a pension. Shrader alleges that it was after that
point in the conversation that Self talked with him about his
having too much seniority to be laid off.
Self denied that he made any comment to Shrader about the
sticker on his helmet or that he ever asked Shrader what he
thought that the Union would do for him. Self explained that
not only had he not supervised Shrader, but Shrader had
worked on a different shift. Self recalled only one conversation
with Shrader about pension benefits. Self recalled that it was
Shrader who pointed out that he had no pension while Self
received a pension from the military.
7. Maintenance of a rule that prohibits employees from
posting union-sponsored materials on its bulletin board,
while permitting nonwork-related notices
Paragraph 15 of the Complaint alleges that since on or about
March 1, 2002, Respondent has maintained a rule that prohibits
employees from posting union-sponsored materials on its bulle-
tin board, while permitting nonwork-related notices. The Gen-
eral Counsel submitted into evidence the section of the em-
MILLER INDUSTRIES TOWING EQUIPMENT, INC. 1083
ployee handbook entitled “Swap and Shop Bulletin Board.”
The section provides:

The company has provided a bulletin board for limited
employee use. This board is to be used only for the sale,
purchase or trade of personal items such as cars, motorcy-
cles, boats, appliances, etc. Ads pertaining to transporta-
tion needs to and from work are also acceptable. How-
ever, the bulletin board is not to be used in connection
with solicitation for or notices of meetings of charities,
clubs, fund drives, political announcements or messages,
meetings or organizational activity, or for the sale of
commercial products such as Tupperware or Mary Kay
cosmetics.
If you wish to have a notice posted on this bulletin
board, please come to the Human Resources office and fill
out a 3 x 5 index card listing the items you wish to buy or
sell. The Human Resources office will see that these no-
tices are posted. Notices will be removed after two weeks.

Beckley testified that the bulletin board had been instituted
for the benefit of employees wanting a ride or offering a ride to
work for transportation purposes and to sell automobiles, boats,
and personal items. Beckley explained that the bulletin board
was limited to certain subjects because it was thought that there
was nothing controversial about selling cars or getting rides to
work.
8. Respondent’s formation, administration, and assistance
to and support of a continuous improvement committee
Paragraph 16 of the Complaint alleges that on or about April
19, 2002, Respondent formed a continuous improvement com-
mittee to deal with Respondent, on behalf of employees, con-
cerning wages, hours, and other terms and conditions of em-
ployment. Paragraphs 17 and 18 of the complaint further allege
that the committee has been a labor organization within the
meaning of Section 2(5) of the Act and, thus, Respondent has
dominated and interfered with the formation and administration
of a labor organization.
Approximately 60 days after Michael Baker began working
for Respondent in February 2001, Baker attended Respondent’s
round table employee meetings conducted by Respondent’s
vice president of operations, Jerry Driscoll. Baker explained
that while he had wanted some continuation of the employee
committee program and a format for communication, he wanted
something different than the round table meetings. Baker had
not regarded the round table meetings as effective because the
employees selected for the committee had served on the com-
mittee only for a short time and there had been no continuity or
followup. In selecting employees to participate on the continu-
ous improvement committee (CIP), Baker and Beckley selected
employees who would likely participate and get involved in the
committee. Employees were notified by their immediate su-
pervisors that they had been selected to participate on the
committee and the first meeting occurred on April 16, 2002.
Since the first meeting of the CIP in April 2002, Respondent
has given committee members the opportunity to withdraw
from the committee and has solicited other employees who may
be interested in participating in the CIP.
Dennie Ray Sullivan was one of the employees initially se-
lected for the CIP. He understood that the employees on the
committee were to be permanent. Baker explained at the first
meeting that he was seeking to get input from employees.
committee member Mike Bundy recalled that Baker told the
members that they were not a round table group nor were they a
committee. He likened the members to representatives of em-
ployees and asked them to get employee suggestions to present
to the CIP. CIP member Samuel Dean King recalled that Baker
told the members that they had been hand picked for the group
and that changes needed to be made in the plant. Respondent
was looking for help from the people who were doing the work.
The members were told that they were to inform employees in
their immediate work area and solicit ideas. Baker recalled that
he had told the members that they were not a “committee” be-
cause he felt that there was a negative connotation to “commit-
tee.” He did not think that he had referred to the members of
the CIP as representatives. He recalled that he told them that
their role was to assist in communicating his vision for the
plant. He had told them that they were free to go back to tell
other employees about their meetings but they were not obli-
gated to do so.
Baker confirmed that the subject of random drug testing, the
attendance policy, and the 401(k) plan were all brought up dur-
ing the first meeting. There is no dispute that Baker included
random drug testing for the agenda for the second meeting held
on April 24, 2002. Baker included the topics of random drug
testing and the attendance policy for the agenda for the CIP’s
April 30, 2002 meeting. Employees Sullivan, Bundy, and King
recalled the CIP’s discussion of attendance and random drug
testing. Sullivan confirmed that both random drug testing and
the attendance policy had been issues during the Union’s elec-
tion campaign. King also recalled that the CIP discussed a
program for facilitating changes in training programs for em-
ployees.
On April 30, 2002, Beckley and Baker issued two an-
nouncements to employees concerning changes to Respon-
dent’s attendance policy and the random drug testing policy. In
its announcement concerning the attendance policy, Respon-
dent confirmed that upon having received input and having
listened to the concerns of many employees, changes had been
made in the attendance policy. In the second announcement,
Respondent included a summary of the feedback from employ-
ees concerning the random drug testing policy. Respondent
further announced that effective immediately, it would discon-
tinue random drug testing for employees.
While Baker confirmed that employees raised the topics of
random drug testing and the attendance policy during the CIP
meetings, he denied that employees were ever told that their
comments would determine what action would be taken con-
cerning these issues. Baker maintained that he told employees
that Respondent was interested in their views but decisions
would be made by management. Baker recalled that he told
employees that Respondent would take their input under ad-
visement. Baker recalled that the random drug testing policy
and the attendance policy were discussed during the first two
meetings of the CIP and the changes to the policies were an-
nounced during the third meeting. Baker testified that CEO
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1084
Badgley, Vice President of Operations Driscoll, Human Re-
sources Director Beckley, and he were all involved in changing
these policies. While Baker maintained that changes in these
policies were already under consideration by management prior
to the committee’s discussion, he acknowledged that he had no
documentation in support of this claim.
Baker testified that while he tried to steer the committee
from policy and procedural issues, he did not successfully limit
discussions to only manufacturing concerns. He acknowledged
that while he made it clear that employees on the committee
were not to solicit from employees, they were free to bring any
concerns from other employees. Safety concerns were brought
up as well as a pay issue concerning training for welders. He
maintained that he told committee members that wages would
not be discussed in the meetings. Respondent submitted sum-
maries of questions and responses resulting from CIP meetings
on September 26, October 8 and 22, and November 5, 2002.
Topics include the need for repair and replacement of various
equipment, cleanliness concerns for the plant and the parking
lot, and certain safety procedures during the manufacturing
process as well as reported problems and recommendations on
the manufacturing process.
III. FACTUAL AND LEGAL CONCLUSIONS
A. Whether Respondent Threatened Employees with
Stricter Enforcement of Plant Rules
Employees Field, Stacey, and Wilson testified that during a
preelection meeting with employees, General Manager Baker
told employees that if there was a Union, Respondent would
not be as lenient and Respondent would have to enforce the
breaktimes more strictly. Prior to the election, Baker held
small group meetings with employees and allowed employees
to ask questions. Baker admits that in response to a question,
there had been discussion during the small group meetings
about the differences between a union shop and nonunion shop.
Baker admitted that he told employees that based upon his past
experience in a union environment, a union environment is
more structured and regimented as far as breaktimes and not
nearly as relaxed as Respondent’s facility. Baker did not spe-
cifically deny that he told employees that Respondent would
have to more strictly enforce breaktimes or lunchtimes if there
was a union, however, he testified that he “didn’t believe” that
he had ever said that.
The Board dealt with similar circumstances in its recent de-
cision in Mid-Mountain Foods, Inc., 332 NLRB 229 (2000),
enfd. 269 F.3d 1075 (D.C. Cir. 2001). In Mid-Mountain, em-
ployees alleged that an employer’s director of operations and
human resources told employees during a preelection meeting
that if the employees voted for the union, the employer would
enforce the work rules and the rules would be followed to the
letter. In defense, the employer representative acknowledged
that during the meetings, he had shown employees copies of
collective-bargaining agreements concerning other employers.
One of the collective-bargaining agreements had a work rule
restricting employees from leaving their work area without
supervisory approval. The employer contended that these rules
were used during the meeting merely as examples of what was
happening in these contracts. The Board affirmed the adminis-
trative law judge in finding that the employer intended to in-
form its employees that unionized employees at the other facil-
ity worked under stricter work rules than they did. In this in-
stance, Baker admits that he told employees that a union envi-
ronment is more structured and regimented as far as breaktimes
and not nearly as relaxed as Respondent’s facility. As in Mid-
Mountain, supra, Baker’s statement evidences his intent to
inform employees that if they were unionized they would have
to work under stricter work rules. I credit the testimony of
Fields, Wilson, and Stacey that Baker threatened employees
with stricter enforcement of plant rules if the employees voted
for the Union. These employees’ credibility is further bolstered
by Baker’s admission that he told employees that a union envi-
ronment is more structured and regimented as far as breaktimes
and not nearly as relaxed as Respondent’s facility. Respondent
submits that Baker’s comments were legitimate persuasion
permitted by Section 8(c) and is not an unlawful threat, citing
UARCO, Inc., 286 NLRB 55, 58 (1987), and Pembrook Man-
agement, Inc., 296 NLRB 1226, 1227 (1989). In UARCO, Inc.,
however, the employer characterized bargaining as “horse trad-
ing” in which the employees could gain, lose, or break even. It
was found that the employer merely informed the employees
during preelection meetings that benefits could be gained as
well as lost in negotiations and did not constitute threats. In
Pembrook Management, Inc., supra, the Board found no viola-
tion when the employer told employees that if unionized, they
would have to deal with the employer indirectly, through their
chosen representative. The Board found that the employer had
merely imparted a fact of industrial life and was not coercive. I
find the facts of both cases distinguishable from the statement
and the message communicated by Baker to employees.
Employees Ruley and Wilson testified that in separate con-
versations, Supervisor Self told them that if the Union were
voted in, Respondent would more strictly enforce employee
breaks. Self denies these statements. Self also asserted that
because Ruley was one of the main union organizers, he saw no
need to talk with him about the Union. On the basis of their
demeanor and their total testimony, I find Ruley and Wilson to
be more credible witnesses than Self. Further, it is reasonable
that Self simply reiterated the message that Baker gave to em-
ployees during his small group meetings.
Accordingly, I find that Respondent threatened employees
with stricter enforcement of plant rules if they selected the Un-
ion in violation of Section 8(a)(1) of the Act.
B. Whether Respondent Threatened Employees
with Plant Closure, Plant Relocation, and Layoff if they
Chose the Union as their Collective-Bargaining Representative
The General Counsel alleges that in preelection speeches to
employees, CEO Badgley threatened employees with plant
closure and Plant Manager Michael Baker threatened plant
closure and layoff if the employees selected the Union as their
bargaining representative. The General Counsel further alleges
that in individual conversations with employee Bobby Wilson,
Supervisor Charlie Self threatened plant closure and plant relo-
cation if the employees selected the Union as their bargaining
representative.
MILLER INDUSTRIES TOWING EQUIPMENT, INC. 1085
Employee Bobby Wilson testified concerning two conversa-
tions that he had with Self during the campaign period. In both
conversations, Self told Wilson about Respondent’s plant in
Greenville, Tennessee, that was not being used to full capacity.
Self opined that Respondent could close down the Ooltewah
plant and move the work to the Greenville plant. Self denied
that he ever had any conversation with Wilson about the clo-
sure of the Ooltewah plant or about Respondent’s plant in
Greenville, Tennessee. I have considered the overall testimony
of Self and Wilson, including their demeanor, and I find Wilson
to be the more credible witness. Crediting Wilson, I find Self’s
threats of plant closure and relocation violative of Section
8(a)(1).
Employee Chad Hicks testified that during a small group
meeting with employees, Baker talked about two companies
that had gone through financial difficulty while bargaining for a
union contract. Hicks recalled that Baker mentioned the possi-
bility of plant closure due to the Union’s “drying the Company
out of money.” Hicks recalled that Baker mentioned that the
possibility of layoff depends upon the Union and whether the
Union forced Respondent to layoff employees. While Baker
testified concerning his small group meetings with employees,
he did not specifically address the alleged threats of plant clo-
sure and layoff or deny the alleged statement. The fact that
testimony is not denied, does not guarantee that it must be cred-
ited. See MDI Commercial Services, 325 NLRB 53, 58 (1997).
I note, however, that Respondent does not allege that Baker
spoke to employees from a prepared text and Baker acknowl-
edged that some of his statements were in response to employee
questions. In its brief, Respondent argues that the statements
that are alleged to have been made by Baker are a lawful form
of free speech permitted by Section 8(c) of the Act.
In its 1969 decision, the Supreme Court outlined the parame-
ters of an employer’s lawful prediction of the effect of unioni-
zation on his company. The Court explained:

[A]n employer is free to communicate to his employees any
of his general views about unionism or any of his specific
views about a particular union, so long as the communications
do not contain a “threat of reprisal or force or promise of
benefit.” He may even make a prediction as to the precise ef-
fects he believes unionization will have on his company. In
such a case, however, the prediction must be carefully
phrased on the basis of objective fact to convey an employer’s
belief as to demonstrably probably consequences beyond his
control 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
action solely on his own initiative for reasons unrelated to
economic necessities and known only to him, such statement
is no longer a reasonable prediction based on available facts
but a threat of retaliation based on misrepresentation and co-
ercion, and as such without the protection of the First
Amendment.4

4 NLRB v. Gissel Packing Co., 395 U.S. 575, 619 (1969).
Citing NLRB v. River Togs, Inc., 382 F.2d 198, 202 (2d Cir.
1967), the court went on to state that “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 reprisal to be taken solely on his own
volition’” In the April 10 speech, Badgley shared with em-
ployees his belief that nonunion competitors will use a union
election to create uncertainty and concern in the market in order
to take sales away from Respondent. He also added that while
he was not predicting a strike if the Union won, he was con-
cerned that a strike would seriously harm their relationship with
their customers and their business. It could be argued that both
predictions are based upon events outside the Respondent’s
control and, thus, within the Gissel standard for lawful com-
ment. I note, however, that this portion of the speech is pre-
ceded by Badgley’s discussion about the bankruptcy of specific
unionized companies and his explanation that the union had not
had a positive affect on their ability to successfully compete.
Woven between his discussion of bankrupt unionized employ-
ers and the prediction that Respondent’s nonunionized competi-
tors would take sales away from Respondent, Badgley included
a reference to Respondent’s previous decision to move certain
manufacturing processes to the Ooltewah plant. Badgley ex-
plained that had the Respondent left the work to outside con-
tractors, Respondent would have saved money. Badgley con-
tended that rather than laying off employees, Respondent had
chosen to move the work to the Ooltewah facility. Badgley
specifically stated:

We did not have to do this, but we did it to keep people work-
ing at the Ooltewah facility. We thought it was better that we
do this rather than have people out of work and receiving un-
employment which amounted to less than half of what they
would have earned working here.

In Iplli, Inc., 321 NLRB 463 (1996), the Board affirmed the
administrative law judge in finding that an employer over-
stepped the bounds of permissible speech and threatened em-
ployees with reprisals within the meaning of NLRB v. Gissel
Packing Co., supra. In a speech to employees, the owner of the
company told employees that the company would have a hard
time surviving as a union company if he had to bid against
nonunion contractors because his labor rate would be almost
double their rate. The judge found that the employer’s predic-
tions about being unable to compete was premised upon his
expressed assertion that if the union successfully organized his
employees, this would automatically result in a doubling of his
labor costs. The judge determined that such predictions were
not based on a demonstrable underlying premise that unioniza-
tion would necessarily result in substantially higher labor costs.
In Crown Cork & Seal Co., 308 NLRB 445 fn. 3 (1992), the
employer based its predictions of layoffs and job loss on its
lack of competitiveness with sister plants if the union won the
election. In adopting the judge’s finding of a violation, the
Board emphasized the employer’s failure to substantiate its
claims with any objective supporting evidence, such as wage
scales, benefits, and total costs and efficiency of the plants
where the union’s contract was not in effect.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1086
In the instant case, Badgley offers no explanation as to how
its nonunion competitors will take sales away from Respondent
and his prediction does not appear to be based upon any de-
monstrable underlying premise. Further, Badgley clearly
communicated to employees that employees had not been laid
off in the past because of Respondent’s choice to have certain
work processes performed by Ooltewah employees rather than
by outside contractors. The message was clear that prevention
of future layoff was within the control of Respondent and was
linked to Respondent’s choice of using bargaining unit employ-
ees or outside contractors to perform certain work.
In contrast to the complaint allegation, employee Shrader
denied that Badgley ever threatened plant closure during his
meeting with employees. I find Shrader to be a credible wit-
ness and credit his testimony that no specific threat of plant
closure was made during this speech.5 Shrader also testified
that while he could not recall the exact words, Badgley told
employees that while Respondent had previously tried to avoid
a layoff, there would be one if the Union came in. Clearly, this
was the message communicated to employees by Badgley. It is
reasonable that employees understood that Respondent could
choose to use outside contractors for certain work and a layoff
could result. The Board has found that when an employer
equates unionization with dire consequences, without reference
to collective bargaining or to the give-and-take of the bargain-
ing process, it violates the Act. Overnight Transportation Co.,
296 NLRB 669, 670 (1989), enfd. 938 F.2d 815 (7th Cir. 1991),
I find that the overall effect of Badgley’s speech, including the
less than subtle threat of layoff, reasonably equated unioniza-
tion with dire consequences and violated Section 8(a)(1) of the
Act. Additionally, the threat of layoff is further enhanced by
Baker’s undenied threat that the Union may cause a layoff.
I do not find that there is sufficient evidence that Baker
threatened employees with plant closure if they selected the
Union as their collective-bargaining representative. When
asked by the Union’s counsel for Baker’s exact words, Hicks
testified:

That it wouldn’t be smart to have a Union and the possibility
of plant closures if there is a Union due to costing the Com-
pany money—more money than anything else.

Hicks’ testimony about the threat of plant closure was vague
and too abbreviated to constitute sufficient evidence of a threat.
Accordingly, I find that Respondent, acting through Charlie
Self, threatened employees with closure and relocation if the
Union won the election and acting through Michael Baker and
Jeff Badgley,6 threatened employees with layoff if the Union
won the election.

5 I find no basis to credit Shrader’s testimony that Badgley told em-
ployees that if they didn’t like their job, they could go somewhere else
and find another job since there were plenty of jobs in Chattanooga.
While I have found that Badgley communicated a threat of layoff, there
is nothing in Badgley’s prepared text that in any way resembles this
statement.
6 While the complaint alleges that Self and Baker threatened em-
ployees with layoff, there is no allegation that Badgley did so. The
Board, however, may find a violation that is not alleged in the com-
plaint if it is fully and fairly litigated and not prejudicial to the respon-
C. Whether Respondent Threatened to Decrease or
Eliminate Overtime Options if the Employees Chose
the Union as their Collective-Bargaining Representative
There is no dispute that Driscoll held a meeting with em-
ployees prior to the Good Friday holiday, soliciting employees
to work the holiday. Because employees were needed to work
the holiday, the overtime policy was modified to allow employ-
ees the option of receiving comp time and taking their holiday
at another time. Driscoll admits that after the meeting, he
spoke with a smaller group of five or six employees. Driscoll
admits that during this conversation he told employees that if
there was a union, Respondent’s ability to come down just be-
fore an event and modify policy to make things work would be
harder or not happen. Respondent asserts that such conversa-
tion is similar to that in Trash Removers, Inc., 257 NLRB 945,
951 (1981), where employees were told that past favored treat-
ment would have to stop under a union contract; or, as in Bev-
erly Enterprises, Inc., 322 NLRB 334, 344 (1996), if a union
came, in, the company would have to go by the book. I note
however, that in Trash Removers, Inc., supra, the employer also
explained to employees that if the union came in, there would
have to be bargaining and negotiations with the union about
any and all conditions of employment. In Beverly Enterprises,
Inc., supra, the employer representative not only told employ-
ees that she would have to go by the book if the union were
voted in, she wouldn’t be able to treat the nurses individually
anymore and there would be a union representative at their
meetings. Just as a threat to enforce plant rules more strictly is
violative of the Act, so is an employer’s threat to enforce its
overtime policy more strictly. There is no evidence that either
Driscoll or any other supervisor present during the discussion
explained to employees why the overtime policy could not be
changed or altered at the last minute if the Union represented
the employees. There was no discussion about the bargaining
process with respect to changing overtime policies. Accord-
ingly, I find Driscoll’s statement to employees constituted a
threat to more strictly enforce overtime policies and options if
the employees chose the Union as their collective-bargaining
representative and thus is violative of 8(a)(1) of the Act.
D. Whether Respondent Prohibited Employees
from Protected Activity During Nonworking Time
in Nonworking Areas
Both employee Jeff Stacey and Warehouse Manager Denny
Powers confirmed that there was no rule prohibiting employees
from congregating in the parking lot before or after their sched-
uled shift. On the day prior to the election, approximately 20
employees gathered in the parking lot outside the plant. They
circled through the parking lot carrying union signs and chant-
ing their support for the Union. It is undisputed that during the

dent. Bayton Sun, 255 NLRB 154 fn. 1 (1981). Inasmuch as the com-
plaint includes an allegation that Respondent threatened employees
with layoff and an allegation running specifically to the speech given
by Badgley on April 10, I find that the matter has been fully litigated.
Accordingly, I recommend that the Board find Badgleys’ threat of
layoff as unlawful despite the General Counsel’s failure to specifically
include Badgley as an agent for this alleged threat.
MILLER INDUSTRIES TOWING EQUIPMENT, INC. 1087
course of the employees’ rally, Human Resources Director
Beckley came out of the building and into the parking lot. Em-
ployees Shrader and Stacey recalled that Beckley told the em-
ployees that they would have to leave the property. While
Beckley admitted that he told the union representative to leave
the premises, he acknowledged only that he told the employees
that they were disturbing the work force. The record reflects,
however, that after Beckley came out to the parking lot, the
rally ended and employees left the parking lot.
In its 1974 decision in Bulova Watch Co.,7 the Board found
that an employer violated Section 8(a)(1) of the Act by restricting
employees access to outside areas of the plant shortly before their
working shifts. In that case, there was no record evidence that
the employer had published or disseminated to its employees any
no-access rule concerning off-duty employees. In its later deci-
sion in Tri-County Medical Center, 222 NLRB 1089 (1976), the
Board again dealt with an employer’s interference with employ-
ees’ access to an outside parking lot when there was no evidence
that the employer had published or disseminated to its employees
any no-access rule concerning off-duty employees. The Board
explained that a no-access rule is valid “only if it (1) limits access
solely with respect to the interior of the plant and other working
areas; (2) is clearly disseminated to all employees; and (3) applies
to off-duty employees seeking access to the plant for any purpose
and not just to those employees engaging in union activity.” The
Board went on to find that except where justified by business
reasons, a rule which denies off-duty employees entry to parking
lots, gates, and other outside nonworking areas will be found
invalid. The Board has continued to find that off-duty employees
have the right under Section 7 of the Act to solicit for the union
during non-work time in nonwork areas. Golub Corp., 338
NLRB 515 (2002).
Section 7 of the Act grants employees the right to engage in
concerted activities for the purpose of collective bargaining or
other mutual aid or protection. Section 8(a)(1) of the Act
makes it an unfair labor practice to interfere, restrain, or coerce
employees in the exercise of the rights guaranteed in Section 7.
Respondent asserts however, that the employees’ rally in the
parking lot disrupted the employees who were working second
shift. Respondent submits that employees’ activities can lose
Section 7 protection if carried out in a disruptive manner. Cit-
ing Farah Mfg. Co., 202 NLRB 666 (1973), Respondent argues
that since the employee conduct had “demonstrably disturbing
effects on plant business or operations” and because it disturbed
employees who were at work, an employer can ask the demon-
strating employees to leave the property. In Farah Mfg. Co.,
supra, an employee was standing in a hallway at the employer’s
facility giving a speech to an estimated 100 employees. Al-
though he was cautioned to lower his voice by a supervisor, he
continued to speak in a loud voice and was subsequently dis-
charged for insubordination. The Board noted that there was no
contention or evidence that the employee’s loud tone was “cre-
ating a problem in any area of proper management concern”
and found that the employer unlawfully interfered with and
restrained her in exercise of his Section 7 rights. Respondent
argues that in the instant case, the demonstrating employees’

7 208 NLRB 798 (1974).
yelling and chanting drew working employees to the bay door
to observe the demonstration. It is undisputed that a group of
employees were gathered at the bay doors observing other em-
ployees chanting and marching through the parking lot. While
Respondent may argue that the demonstration had demonstra-
bly disturbing effects on the plant business or operation, Re-
spondent quickly dealt with the non-working employees. When
Powers saw the employees assembled at the bay door, he im-
mediately called and reported the situation to Beckley. Beckley
testified that even before he went to the parking lot to investi-
gate the matter, he told Powers to get the employees back to
work. Accordingly, Respondent has failed to show an adequate
business justification for instituting this rule on the day before
the election.
Respondent urges the undersigned to take judicial notice of
the fact that the polls opened at 12:30 p.m. and closed at 4 p.m.
on April 11, 2002. Respondent contends that the demonstration
took place after the beginning of second shift, i.e., after 2:30
p.m. on the afternoon of April 10, well inside the 24-hour pe-
riod envisioned by Peerless Plywood Co., 107 NLRB 424, 429
(1954).8 Respondent argues that the fact that the communica-
tion was by employees rather than a paid union representative
makes no difference. Respondent contends that the message
was communicated by employees with the Union’s blessing
and guidance and exposed employees working in the plant to
the pervasive character of the message. Respondent maintains
that it is the partisan content of the message which places it
within the Peerless Plywood proscription. It is argued that if
Respondent had done nothing about the demonstration, it could
have been found to have arguably condoned such conduct and
thereby waived its right to object. Thus, Respondent argues
that it had a right to preserve a possible objection by asking the
employees and Adams to leave its property.
In its decision in Peerless Plywood Co., supra, the Board es-
tablished the rule that all employers and unions alike are pro-
hibited from making election speeches on company time to
mass assemblies of employees within 24 hours before the
scheduled time for conducting an election. The Board further
explained that the rule would not interfere with the rights of
unions or employers to circulate campaign literature on or off
the premises at any time prior to an election. Additionally, the
rule does not prohibit employers or unions from making cam-
paign speeches on or off company premises during the 24-hour
period if employee attendance is voluntary and on the em-
ployee’s own time. In a recent case, the Board addressed a
factual situation in which an employee and paid union organ-
izer for the union engaged in loudly yelling out her views as
she walked through the hallway just prior to the starting time
for a Board-conducted election. Walking toward the polling
area, the employee did not direct her complaints about the em-
ployer to any specific individual, but rather directed them to the
air in general. In the polling area, she continued to voice her
complaints that she was being harassed by the employer and

8 In Peerless Plywood Co., supra, the Board set forth a rule prohibit-
ing captive audience campaign speeches by either a company or a un-
ion during the 24-hour period preceding the start of an NLRB-
conducted election.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1088
was in close proximity to approximate 20 employees waiting in
line to vote. The employer argued that the employee’s loud
sustained complaints uttered in the presence of eligible voters
constituted a “campaign speech” encompassed by the rule set
forth in Peerless Plywood. The Board affirmed the hearing
officer’s finding that the remarks did not constitute a “speech”
to a mass assembly of employees as envisioned by the Board in
Peerless Plywood. Midway Hospital Center, 330 NLRB 1420
(2000). I note that the Respondent presented no evidence that
Beckley or any other company official raised this concern about
a violation of Peerless Plywood with the employees while
ejecting them from the parking lot. I don’t find the employees’
parking lot demonstration to constitute any violation of the
Peerless Plywood prohibition nor do I find Respondent’s al-
leged concern about a violation sufficient to excuse Respon-
dent’s interference with the employees’ Section 7 rights. I,
therefore, find that Respondent prohibited employees from
engaging in protected activities during nonworking time in
nonworking areas and that Respondent unlawfully denied off-
duty employees9 access to Respondent’s premises to engage in
protected activities in violation of Section 8(a)(1) of the Act.
E. Whether Respondent Interrogated its Employees in
Violation of Section 8(a)(1)
The General Counsel alleges only one occurrence of interro-
gation during the campaign period. Employee Wilton Shrader
testified that a few days before the election, Supervisor Charlie
Self asked him what he thought that a union could do for him.
At the time of the conversation, Shrader was wearing a unions
sticker on his welding helmet. Self allegedly began the conver-
sation by inquiring about the sticker. Shrader explained that the
Union was the next thing to the Teamsters, believing that Self
had at one time signed a Teamsters union card.
Interrogation of employees is not illegal per se. Section
8(a)(1) of the Act prohibits employers only from activity which
in some manner tends to restrain, coerce, or interfere with em-
ployee rights. To fall within the scope of 8(a)(1), either the
words themselves or the content in which they are used must
suggest an element of coercion or interference. Rossmore
House, 269 NLRB 1176, 1177–1178 (1984). The Board has
found that an appropriate analysis of whether an unlawful inter-
rogation has occurred must consider the circumstances sur-
rounding the alleged interrogation, such as the background of
the relationship, the nature of the information sought, the iden-
tity of the questioner, and the place and method of interroga-
tion. La Gloria Oil & Gas Co., 337 NLRB 1120, 1123 (2002),
Sunnyvale Medical Clinic, 277 NLRB 1217, 1218 (1985).
Clearly, Shrader was an open and active union supporter. He
alleges that the conversation with Self began with Self’s refer-
ence to the union sticker on his helmet. Accordingly, while I

9 While the General Counsel only alleges in the complaint that em-
ployees were denied access to the Respondent’s premises to engage in
union activities, the General Counsel put on evidence that Union Or-
ganizer Adams was also expelled from the property by Beckley. Inas-
much as the Act confers rights only on employees and not on unions or
their nonemployee organizers, Respondent’s expulsion of Adams from
its property was not violative of the Act. Lechmere, Inc. v. NLRB, 502
U.S. 527 (1992).
credit the testimony of Shrader concerning this alleged interro-
gation, I find that Self’s questioning of Schrader did not consti-
tute an unlawful interrogation in violation of Section 8(a)(1).
F. Whether Respondent Violated 8(a)(1) by its
Maintenance of a Rule Prohibiting Union-Sponsored
Materials on the Swap and Shop Bulletin Board
In Honeywell, Inc., 262 NLRB 1402 (1982), enfd. 722 F.2d
406 (8th Cir. 1983), the Board summarized the prevailing legal
principles applicable to bulletin board postings, as follows:

The legal principles applicable to cases involving access to
company-maintained bulletin boards are simply stated and
well-established. In general, “there is no statutory right of
employees or a union to use an employer’s bulletin board.”
However, where an employer permits its employees to utilize
its bulletin boards for the posting of notices relating to per-
sonal items such as social or religious affairs, sales of personal
property, cards, thank you notes, articles, and cartoons, com-
mercial notices and advertisements, or in general, any non-
work related matters, it may not “validly discriminate against
notices of union meetings which employees also posted.”
Moreover, in cases such as these an employer’s motivation,
no matter how well meant, is irrelevant.

While the Board has continued to hold that once an employer
has furnished to employees space to post items of interest, it
may not impose content-based restrictions that discriminate
between posting of Section 7 matters and other postings, it has
recognized that this principle is not inflexible. See Vons Gro-
cery Co., 320 NLRB 53 (1995). The Board has also noted that
restrictions may be permissible when the posting creates a bat-
tleground between competing factions of employees that would
require the employer to police the bulletin board to ensure fair-
ness in space allocation between the factions. See Arkansas-
Best Freight System, 257 NLRB 420, 423 (1981), enfd. 673
F.2d 288 (8th Cir. 1982). The Board has also found that when
the employer maintains a rule regarding permissible posting on
company bulletin boards and enforces it strictly and not dis-
criminatorily, the rule may stand and no violation occurs.
Whirlpool Corp., 337 NLRB 726 (2002).
Beckley testified that the Respondent prohibits all matters on
the company bulletin board with the exception of specific items
for sale or items pertaining to employees needing or providing
transportation to work. Beckley explained that the area sur-
rounding the plant includes three separate States. Beckley con-
tends that if Respondent allowed all postings including political
postings, Respondent would be required to provide 5 or 10
boards to handle the flow for all the different candidates in
Alabama, Tennessee, and Georgia. He also explained that if
Respondent allowed all other items of interest other than trans-
portation or the sale of specific items, it would just add contro-
versy to the plant. Beckley added that there is nothing contro-
versial about “selling your Bronco or asking for a ride to
work.”
While an employer may not discriminate against employees’
protected activity in the use of company bulletin board, the
Board continues to find that employees have no statutory right
to use an employer’s equipment or media. Mid-Mountain
MILLER INDUSTRIES TOWING EQUIPMENT, INC. 1089
Foods, Inc., 332 NLRB 229 (2000). In this case, there is no
evidence that the bulletin board in issue has ever been used for
matters other than employees’ transportation or for the sale of
specific items. See Fixtures Mfg. Corp., 332 NLRB 565
(2000). While Respondent’s restrictions in the posting of bulle-
tin board materials effectively excludes union notices and other
Section 7 concerns, the restriction also excludes subjects that
include personal or political issues. Finding no evidence that
the rule has not been strictly enforced or enforced discriminato-
rily, I find no violation.
G. Whether Respondent has Dominated and Interfered with
the Formation and Administration of a labor Organization
in violation of Section 8(a)(1) and (2) of the Act
The General Counsel submits that the continuous improve-
ment committee, formed by the Respondent in April 2002,
functioned as a labor organization within the meaning of Sec-
tion 2(5) of the Act. The General Counsel further asserts that
by forming the committee, Respondent has rendered unlawful
assistance and support to, a labor organization in violation of
Section 8(a)(1) and (2) of the Act.
The Board has held that a group constitutes a labor organiza-
tion if it involves “(1) employee participation, (2) a purpose to
deal with employers, (3) concerning itself with conditions of
employment or other statutory subjects, and (4) if an ‘employer
representation committee or plan’ is involved, evidence that the
committee is in some way representing the employees.” Elec-
tromation, Inc., 309 NLRB 990, 996 (1992), enfd. 35 F.3d 1148
(7th Cir. 1994). In the instant case, the evidence reflects that
the CIP involved employees and addressed conditions of em-
ployment. Thus, the question remains as to whether the CIP
represented employees and whether it “dealt with” the Respon-
dent.
1. Whether the CIP represented employees
Respondent argues that the purpose of the CIP was to foster
discussion and gather ideas to improve performance of the Ool-
tewah operations. Baker acknowledged that in selecting em-
ployees to participate in the CIP, he chose employees from each
area of the plant to share concerns and problems. He main-
tained that a plantwide meeting would have been too disruptive.
He also explained that he found the previous round table em-
ployee group ineffective because the employee participants
served only for short periods. He selected employees for the
CIP who would be permanent members and he included some
of the employees who supported the Union. Baker’s establish-
ment of permanent committee members is distinguished from
NLRB v. Streamway Div. of Scott & Fetzer Co., 691 F.2d 188,
290, 294–295 (6th Cir. 1982), where the court noted that “con-
tinuous rotation of Committee members” for 3-month terms
suggested that members acted as individuals rather than as rep-
resentatives.
Employee Dennie Ray Sullivan recalled that during the first
CIP meeting, employees voiced that changes were needed in
the drug testing and the attendance policies. Sullivan not only
individually reported the substance of the CIP meetings to his
coworkers, but his supervisor also allowed him to speak to
employees during the weekly departmental safety meetings
about what had occurred during the CIP meetings. He recalled
that some of the employees had asked him to bring up certain
insurance issues during the CIP meetings. He left the commit-
tee, however, before he was able to bring up the issue. Despite
Respondent’s assertions that the committee members were not
employee representatives, the evidence reflects that they func-
tioned as such, albeit perhaps only in a modest or limited ca-
pacity.
2. Whether the CIP engaged in “dealing with” Respondent
The Supreme Court has long held that Congress intended the
phrase “dealing with” to include a much broader range of em-
ployer-employee interaction than would normally fall within
the traditional concept of collective bargaining. Cabot Carbon,
360 U.S. 203, 213–214 (1959). The Board has subsequently
developed a fairly precise definition of the term, holding that
“dealing with” ordinarily involves a pattern or practice in which
a group of employees, over time, makes proposals to manage-
ment, management responds to these proposals by acceptance
or rejection by work or deed, and compromise is not required.
If the evidence establishes such a pattern or practice, or that the
group exists for a purpose of following such a pattern or prac-
tice, the element of dealing is present. If there are only isolated
instances in which the group makes ad hoc proposals to man-
agement followed by a management response of acceptance or
rejection by word or deed, the element of dealing is missing.
E. I. du Pont & Co., 311 NLRB 893, 894 (1993). In the du
Pont & Co. decision, the Board noted that “bargaining” con-
notes a process by which two parties must seek to compromise
their differences and arrive at an agreement. By contrast, the
Board found that the concept of “dealing” does not require that
the two sides seek to compromise their differences. The Board
also noted that a “brainstorming” group is not ordinarily en-
gaged in dealing nor is a committee that exists for the purpose
of sharing information with the employer. That is, if the com-
mittee makes no proposals to the employer, and the employer
simply gathers the information and does what it wishes with
such information, the element of dealing is missing, and the
committee would not be a labor organization.
When the CIP began meeting in April, the first few meetings
included discussions of the attendance policy and the random
drug testing policy. Within approximately 2 weeks of the first
meeting in which these topics were discussed, Respondent an-
nounced changes in both the attendance policy and the discon-
tinuance of random drug testing. While Respondent contends
that both of these changes had been under consideration prior to
initiation of the CIP meetings, Respondent presented no docu-
mentary evidence in support of such prior consideration or
discussions by management. Respondent submitted into evi-
dence summaries of topics for the CIP meetings on September
26, October 8 and 22, and November 5, 2002. I note that all of
these meetings occurred after the Union’s amended charge on
June 12, 2002, which included the formation of the CIP as a
violation of 8(a)(2). The summaries reflect that the majority of
topics relate to improving the work process and replacement of
equipment. Included among the items relating to the work
process, however, are also such topics as the recommendation
for repair of potholes in the parking lot, the need for installation
of Plexiglas on top of forklifts, and complaints concerning the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1090
cleanliness of the restrooms and the volume level of the inter-
com system in one of the departments. In each instance, the
notes reflect that action was taken to correct the problem or to
act on the recommendation. While it is apparent that since the
filing of the charge, the committee has dealt more with work
process improvement topics, the committee continues to make
recommendations concerning matters which affect conditions
of employment. Thus, the CIP appears to “deal with” the em-
ployer within the parameters of Cabot Carbon, supra.10
3. Whether Respondent dominated the CIP
Section 8(a)(2) of the Act provides that:

It shall be an unfair labor practice for an employer (2) to
dominate or interfere with the formation or administration of
any labor organization or contribute financial or other support
to it; Provided, that subject to rules and regulations made and
established by the Board pursuant to section 6, an employer
shall not be prohibited from permitting employees to confer
with him during working hours without loss or time or pay.

In Electromation, Inc., supra, the Board noted that although
the Act does not define the specific acts which may constitute
domination, “a labor organization that is the creation of man-
agement, whose structure and function are essentially deter-
mined by management . . . and whose continued existence de-
pends upon the fiat of management, that is one whose forma-
tion or administration has been dominated under Section
8(a)(2).” Having found that the CIP involved employees who
acted in a representational capacity and who “dealt” with Re-
spondent in addressing conditions of employment, I find the
CIP to be a labor organization within the meaning of Electro-
mation, Inc., supra at 996. There is no dispute that Respondent
conceived of the ideal of the CIP, established, and brought
about its creation, and chose the employee representatives to
the committee. The CIP met on Respondent time, in locations
provided by the Respondent and used materials supplied by
Respondent. There is no evidence that the committee has any
independent existence outside the will of Respondent. Accord-
ingly, I find that Respondent initiated and formed and thereafter
sponsored, assisted, and dominated the CIP in violation of
8(a)(2) and (1) of the Act. Ona Corp., 285 NLRB 400, 407
(1987).
IV. OBJECTIONS TO THE ELECTION
I have found that the Respondent has violated Section 8(a)(1)
of the act in the following manner: threatening to more strictly
enforce plant rules (Objection 8); threatening plant closure
(Objection 16); threatening plant relocation (Objection 17);
threatening layoff (Objection 18); threatening to enforce its
overtime policy more strictly (Objection 3); and prohibiting
employees from union activity during nonworking time and in
nonworking areas (Objection 11).

10 There was no evidence submitted by any party concerning the
kinds of matters discussed and dealt with by the former round table
employee group. There being no such evidence, I have no basis to
speculate or to conclude that the CIP continued in the same format and
process of the prior employee group.
A. Objections Involving Supervisor Self
All of the above objections occurred within the critical pe-
riod. The Board’s usual policy is to direct a new election
whenever an unfair labor practice occurs during the critical
period since “conduct violative of Section 8(a)(1) is, a fortiori,
conduct which interferes with the exercise of a free and un-
trammeled choice in an election.”11 The only exception to this
policy is “where the misconduct is de minimis “such that it is
impossible to conclude “that the election outcome has been
affected.”12 As I have found, the evidence reflects that Super-
visor Charlie Self threatened employees with stricter enforce-
ment of plant rules, plant closure, plant relocation, and layoff if
the employees selected the Union as their bargaining represen-
tative. These threats are alleged to have occurred at the em-
ployees’ workstations and there is no evidence of dissemina-
tion. Considering the isolated nature of the misconduct and the
number of employees affected out of the 281 voters, I don’t
find that Self’s 8(a)(1) conduct could have affected the results
of the election. Accordingly, I recommend that Objections 8,
16, 17, and 18 be overruled only as they relate to Self’s con-
duct. Having found no merit to the allegation that Self engaged
in interrogating employees on or about March 28, 2002, I rec-
ommend that Objection 35 be overruled.
B. Remaining Objections
Objections 16 and 18 allege that Respondent threatened em-
ployees with plant closure and with layoff during the critical
period. As discussed above, the evidence reflects that Respon-
dent, acting through Jeff Badgley and Michael Baker during
preelection meetings with employees, threatened employees
with layoff if they selected the Union as their collective-
bargaining representative. It is recognized that threats of plant
closure and layoff are the most flagrant forms of interference
with Section 7 rights and are more likely to destroy election
conditions for a longer period of time than other unfair labor
practices because they tend to reinforce employees’ fears that
they will lose employment if union activity persists. Koons
Ford of Annapolis, 282 NLRB 406, 508 (1986), enfd. mem.
833 F.2d 310 (4th Cir. 1987), cert. denied 485 U.S. 1021
(1988). The severity of the threats are even greater when made
by individuals at the top of the management hierarchy, Mid-
land-Ross Corp. v. NLRB, 617 F.2d 977, 978 (3d Cir. 1980),
cert. denied 449 U.S. 871 (1980). Inasmuch as the implied
threat of layoff by Badgley and Baker were made to assembled
employees and would have reasonably been disseminated
through the work force, I find such threats to be conduct suffi-
cient to affect the results of the election. Accordingly, I rec-
ommend that the merit be found to Objection 18. Having found
no evidence that Respondent threatened employees with plant
closure other than in the isolated comments of Supervisor Self
as discussed above, I recommend that Objection 16 be over-
ruled.
Respondent’s threats to more strictly enforce the plant rules
and the prohibition of employees’ soliciting during nonworking

11 Clark Equipment Co., 278 NLRB 498, 505 (1986), quoting Dal-
Tex Optical Co., 137 NLRB 1782, 1786 (1962).
12 Sea Breeze Health Care Center, 331 NLRB 1131, 1146 (2000).
MILLER INDUSTRIES TOWING EQUIPMENT, INC. 1091
time in a nonworking area affected more than a few employees.
Under the circumstances, Respondent’s unlawful conduct in
these actions cannot be said to be isolated, remote, or otherwise
de minimis. I recommend that merit be found to Objections 8
and 11.
While I have found that Respondent threatened to enforce its
overtime policy more strictly, the evidence reflects that such
threat was made to no more than five or six employees and
there is no evidence that it was disseminated to any other em-
ployees. Due to the isolated nature of the comment, it does not
appear that such conduct was sufficient to affect the results of
the election. Accordingly, I recommend that Objection 3 be
overruled.
C. Summary of Findings and Recommendations
Regarding Objections
With respect to the allegations raised in Objections 3, 16, 17,
and 35, I find that the Union has not established that the Em-
ployer has engaged in objectionable conduct. I find however,
that the Union has established that the Employer did engage in
certain objectionable conduct alleged in Objections 8, 11, and
18. Therefore, I recommend that the Board set aside the elec-
tion of April 11, 2002, and direct that a new election be con-
ducted.
CONCLUSIONS OF LAW
1. The Respondent is a 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 meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by en-
gaging in the following conduct:
(a) Threatening employees with more strict enforcement of
plant rules, plant closure, plant relocation, layoff, and more
strict enforcement of its overtime policy if they selected the
Union as their bargaining representative.
(b) Prohibiting employees from engaging in protected activ-
ity during nonworking time in nonworking areas.
4. By dominating, interfering with the formation and admini-
stration of, and rendering unlawful assistance and support to the
continuous improvement committee, Respondent has been and
is violating Section 8(a)(1) and (2) of the Act.
5. The foregoing unfair labor practices constitute unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
6. The conduct described in paragraphs 3(a) and (b) above,
also constitute objectionable conduct affecting the results of the
representation election held on April 11, 2002, in Case 10–RC–
15274.
7. Respondent has not engaged in any unfair labor practice
not specifically found herein.
REMEDY
Having found that the Respondent has violated Section 8(a)(1)
and (2) of the Act I recommend that it be required to cease and
desist there from and from any other like or related manner inter-
fering with, restraining, or coercing its employees in the exercise
of their rights under Section 7 of the Act. I shall also recommend
the posting of an appropriate notice, attached as an “Appendix.”
I further recommend that the Respondent be ordered to with-
draw all recognition from and to completely disestablish the CIP,
and refrain from recognizing it, or any successor thereto, as a
representative of any of the Respondent’s employees for the pur-
pose of dealing with the Respondent concerning terms and condi-
tions of employment.
Further, having found that certain of the Union’s election ob-
jections are meritorious and that the Respondent’s objectionable
conduct is sufficient to warrant setting aside the election, I shall
recommend that the results of the previous election be set aside
and that the representation case be remanded to the Regional
Director for the purpose of conducting a rerun election.
The Union requests a number of extraordinary remedies,
which it deems essential to properly remedy Respondent’s con-
duct. In addition to the Board’s traditional cease-and-desist,
affirmative, and posting remedy provisions, the union requests
that the “special notice and access remedies” as found in Field-
crest Cannon, 318 NLRB 470 (1995), be included in the remedy.
The Union also requests the award of organizing expenses for
conducting a second campaign. Having considered the entire
record evidence, I do not find that Respondent’s unfair labor
practices are so numerous, pervasive, and outrageous that special
notice and access remedies are necessary to dissipate fully the
coercive effects of the unfair labor practices found. Ordinarily,
organizational expenses, like attorney’s fees are awarded by the
Board only where the Respondent has engaged in frivolous litiga-
tion. Wellman Industries, 248 NLRB 325 (1980). The only ex-
ceptions have been in such cases such as J. P. Stevens, Inc., 244
NLRB 407 (1979), where there has been a long history of fla-
grant disregard of prior Board and court Orders. I do not find
that the violations here are of the conduct and frequency of the
violations that approaches the record of J. P. Stevens, supra,
which would warrant such a remedy. Accordingly, the Union’s
request for such a broad remedy is denied.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended13
ORDER
The Respondent, Miller Towing Equipment, Inc., Ooltewah,
Tennessee, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with more strict enforcement of
plant rules if they select the Union as their bargaining represen-
tative.
(b) Threatening employees with plant closure if they select
the Union as their bargaining representative.
(c) Threatening employees with plant relocation if they se-
lect the Union as their bargaining representative.
(d) Threatening employees with layoff if they select the Un-
ion as their bargaining representative.
(e) Threatening employees with more strict enforcement of
its overtime policy if they select the Union as their collective-
bargaining representative.

13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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 purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1092
(f) Prohibiting employees from engaging in protected activ-
ity on nonwork time in nonwork areas.
(g) Forming, administering, and rendering unlawful assis-
tance to the continuous improvement committee or any other
labor organization.
(h) In any like or related manner interfering with, restraining,
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 effec-
tuate the policies of the Act.
(a) Immediately withdraw all recognition from and com-
pletely disestablish the continuous improvement committee,
and refrain from recognizing the continuous improvement
committee, or any successor thereof as representative of any of
its employees for the purpose of dealing with Respondent con-
cerning terms and conditions of employment.
(b) Within 14 days after service by the Region, post at its fa-
cility in Ooltewah, Tennessee, copies of the attached notice
marked “Appendix.”14 Copies of the notice, on forms provided

14 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
by the Regional Director for Region 10, after being signed by
the Respondent’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. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since March 1, 2002.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
IT IS FURTHER ORDERED that the election conducted in Case
10–RC–15274 on April 11, 2002, be set aside and that a new
election be held at such time and under such circumstances as
the Regional Director shall deem appropriate.