Nashville Plastic Products

National Labor Relations Board - Board Decisions

Nov 26, 1993

313 N.L.R.B. 462 (N.L.R.B. 1993)

462
313 NLRB No. 50
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Lechmere v. NLRB, 112 S.Ct. 841 (1992).
2 Thus, when Plant Manager Thom Bee told employee William
Ferguson that he was breaking company rules being on company
grounds when it was not his day to work, Ferguson replied, ‘‘No,
those are your rules.’’ Employee John Bendele testified without con-
tradiction that Bee told him and Ferguson that they were not allowed
on company property when it was not their scheduled day and that
Bee advised Union Business Agent Revel Black that that was in the
rules and regulations.
3 By contrast, the company handbook contains a provision requir-
ing that visitors in the plant, including off-duty employees, register
with the receptionist, as well as rules prohibiting solicitation distribu-
tion by employees during working time and by nonemployees at any
time on company property.
4 See American Commercial Bank, 226 NLRB 1130, 1131 (1976).
Automotive Plastic Technologies, Inc. d/b/a Nash-
ville Plastic Products and Aluminum, Brick
and Glass Workers International Union, AFL–
CIO, CLC. Cases 26–CA–14548 and 26–CA–
14727
November 26, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On June 30, 1993, Administrative Law Judge Karl
H. Buschmann issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings, and conclusions and to adopt the rec-
ommended Order.
1. We agree with the judge that the Respondent vio-
lated Section 8(a)(1) by requesting employees who
were ‘‘bothered’’ or ‘‘harassed’’ by other employees
advocating the Union to report it to management. Such
a request could be interpreted by employees to include
lawful attempts by union supporters to persuade em-
ployees to sign union cards. It would thus tend to re-
strain union proponents from attempting to persuade
other employees for fear of being reported to manage-
ment. See Arcata Graphics, 304 NLRB 541 (1991),
and cases cited therein.
2. The judge found that by prohibiting union solici-
tation, or the distribution of union literature on com-
pany property during nonworktime in nonwork areas,
and by confiscating union literature, the Respondent
violated Section 8(a)(1). Among the incidents which
the judge found to be violations were several instances
in August 1991, shortly before the election, when the
Respondent told employees who were handbilling in
outside areas of the premises that they were not al-
lowed on the property unless they were scheduled to
work. The Respondent excepts, contending that en-
forcement of its rule limiting the distribution of lit-
erature on the Respondent’s property by off-duty em-
ployees was lawful. Relying on Lechmere,1 which held
that Section 7 does not require permitting non-
employee union organizers to come onto private prop-
erty except in cases involving inaccessibility of em-
ployees, the Respondent argues that the access rights
of off-duty employees equate to those of nonemploy-
ees. We disagree with the Respondent. For the follow-
ing reasons, we find that under the circumstances pre-
sented here, the Respondent was not privileged to rely
upon its alleged rule limiting the access rights of off-
duty employees.
First, although the Respondent contends that it main-
tained a rule prohibiting off-duty employees from
being on the premises on days when they were not
scheduled to work, the Respondent has presented no
evidence of the existence or dissemination of such a
rule prior to the union handbilling. The evidence sug-
gests that the employees first heard about the rule at
the time the Respondent sought to invoke it.2 Although
the Respondent apparently told the union business
agent that the prohibition was in the rules and regula-
tions, it has not cited for us any handbook provision
which denies off-duty employees access to the parking
lot and other outside areas of the property.3 Nor has
the Respondent demonstrated that the restrictions on
access by off-duty employees were required by legiti-
mate business considerations, such as safety. Thus, in-
sofar as the record shows, the rule the Respondent re-
lies on was promulgated in response to the employees’
union handbilling. Under these circumstances, we find
that the rule constituted a new policy established for
the purpose of interfering with and restraining employ-
ees in the exercise of their Section 7 rights.4 We find
that the Respondent is not entitled to rely on such an
invalid rule to privilege its restrictions on the Section
7 activities of off-duty employees.
463NASHVILLE PLASTIC PRODUCTS
5 Davis Supermarkets, 306 NLRB 426, 426–427 (1992), enfd. 144
LRRM 2057 (D.C. Cir. 1993).
6 204 NLRB 921 (1973).
7 222 NLRB 1089 (1976).
8 Id.
9 E.g., St. Luke’s Hospital, 300 NLRB 836 (1990); Ohio Masonic
Home, 290 NLRB 1011 (1988), enfd. 892 F.2d 449 (6th Cir. 1989);
Clark Manor Nursing Home Corp., 254 NLRB 455 (1981), enfd. in
relevant part 671 F.2d 657 (1st Cir. 1982); Presbyterian Medical
Center, 227 NLRB 904 (1977), enfd. 586 F.2d 165 (10th Cir. 1978).
10 351 U.S. 105 (1956).
11 See Southern Services, 300 NLRB 1154, 1155 (1990), enfd. 954
F.2d 700 (11th Cir. 1992).
12 NLRB v. Le Tourneau Co. of Georgia, 324 U.S. 793 (1945) (the
companion case to Republic Aviation Corp. v. NLRB, enfg. 54
NLRB 1253 (1944)). In Le Tourneau, one of the unlawfully dis-
ciplined employees distributed union handbills in the company park-
ing lot after he ‘‘finished his day’s work,’’ 54 NLRB at 1257, and
thus it appears he was an off-duty employee at that time.
13 In light of the findings that the no-access rule was
discriminatorily motivated and disparately applied, Member
Raudabaugh finds it unnecessary to pass on the issue of whether,
apart from these considerations, Lechmere applies to the activities of
off-duty employees.
Second, even under the Lechmere principles relied
on by the Respondent, it is well established that an
employer may not apply its access rule in a discrimina-
tory manner.5 Here, the judge found, and we agree,
that the Respondent expelled from its property off-duty
employees who were distributing union handbills while
allowing another off-duty employee who was distribut-
ing antiunion literature nearby to remain on the prem-
ises and continue to do so. Such disparate enforcement
precludes the Respondent’s reliance on the rule as a
valid defense to its conduct.
Third, we reject the Respondent’s argument that off-
duty employees should be viewed in the same light as
nonemployee union organizers for purposes of defining
their right of access to the Respondent’s property. Al-
though in GTE Lenkurt,6 the Board considered the sta-
tus of an off-duty employee to be ‘‘more nearly analo-
gous to that of a nonemployee,’’ in Tri-County Medi-
cal Center,7 the Board narrowly construed GTE
Lenkurt ‘‘to prevent undue interference with the rights
of employees under Section 7 of the Act freely to
communicate their interest in union activity to those
who work on different shifts.’’ In Tri-County, the
Board held that a no-access rule concerning off-duty
employees 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 en-
gaging in union activity. Finally, 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.8
In subsequent cases, the Board, with court approval,
has adhered to this view.9 Under the Tri-County stand-
ard, it is clear that the Respondent’s rule is invalid
and, therefore, the Respondent is not privileged to rely
on it.
We reject the Respondent’s argument that Lechmere
applies to off-duty employees. Lechmere itself empha-
sized the critical distinction between employees and
nonemployees as established in NLRB v. Babcock &
Wilcox,10 and, a fortiori, the rule enunciated in
Lechmere does not apply to employees. By virtue of
the continuing employment relationship, an off-duty
employee, even if not scheduled to work on the day
he seeks access to the premises, remains an employee
of the employer. Unlike the nonemployee union orga-
nizer whose status as a trespasser invokes the employ-
er’s property right to restrict access,11 an off-duty em-
ployee is a ‘‘stranger’’ neither to the property nor to
the employees working there.
Furthermore, an off-duty employee seeking access to
his employer’s property to distribute union handbills,
unlike a nonemployee union organizer, falls within the
scope of Supreme Court decisions protecting work-
place organizing activities. Thus, in Beth Israel Hos-
pital v. NLRB, 437 U.S. 483, 491 (1978), the Court
stated that ‘‘the right of employees to self-organize and
bargain collectively established by Section 7 . . . nec-
essarily encompasses the right effectively to commu-
nicate with one another regarding self-organization at
the jobsite.’’ And in Eastex, Inc. v. NLRB, 437 U.S.
556, 574 (1978), the Court upheld the Board’s view
that the workplace ‘‘is a particularly appropriate place
for the distribution of Section 7 material, because it ‘is
the one place where [employees] clearly share common
interests and where they traditionally seek to persuade
fellow workers in matters affecting their union organi-
zational life.’’’ (Quoting Gale Products, 142 NLRB
1246, 1249 (1963).)
In sum, if analogies are to be drawn, we find that
the off-duty employees in this case who sought access
to the Respondent’s premises for organizational pur-
poses on days when they were not scheduled to work
most closely resemble the employees in the Le
Tourneau case, whose right to distribute union lit-
erature on the outside areas of the employer’s premises
on their own time was upheld by the Supreme Court.12
Accordingly, for all these reasons, we find no merit in
the Respondent’s contentions and affirm the judge’s
finding that the Respondent violated Section 8(a)(1) by
refusing to allow off-duty employees who were distrib-
uting union literature to remain on its property.13
3. In adopting the judge’s finding that the Respond-
ent violated Section 8(a)(1) by its surveillance of em-
ployee union activity, we note that the Respondent’s
action went far beyond the mere lawful observation of
464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 See Impact Industries, 285 NLRB 5 fn. 2 (1987), remanded on
other grounds 847 F.2d 379 (7th Cir. 1988); Hoschton Garment Co.,
279 NLRB 565, 566 (1986).
1 The General Counsel’s motion to strike late-submitted exhibits is
granted.
open union activity. The surveillance was unlawful be-
cause it involved continuous scrutiny over a substantial
period of time, and it was accompanied by the Re-
spondent’s ordering off-duty employees engaged in
handbilling to leave the premises and confiscating
union literature which an employee was lawfully dis-
tributing.14
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Automotive Plastic Tech-
nologies, Inc. d/b/a Nashville Plastic Products, Nash-
ville, Tennessee, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Jane Vandeventer, Esq., for the General Counsel.
Donald T. Carmody, Esq. (Carmody & Collazo), of New
York, New York, for the Respondent.
Revel Black, of Nashville, Tennessee, for the Charging Party.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge. These
cases were tried in Nashville, Tennessee, on June 9 and 10,
1992, on a consolidated complaint issued on January 10,
1992. The charges were filed by the Union, Aluminum,
Brick and Glass Workers International Union, AFL–CIO,
CLC on June 25, 1991, in Case 26–CA–14548 as amended
on July 2, and 25, 1991, and in Case 26–CA–14727 on Octo-
ber 1, 1991, as amended on January 7, 1992. These cases
were consolidated with a representation case in Case 26–RC–
7388. Upon the withdrawal of the objections in the represen-
tation case, the case was severed from the two prior cases
on June 3, 1992.
The consolidated complaint alleges in substance that the
Respondent, Automotive Plastic Technologies, Inc., violated
Section 8(a)(1) of the National Labor Relations Act (the Act)
by repeatedly threatening employees because of the Union,
by interrogating employees about the Union, by engaging in
surveillance of the employees’ union activities, by prohibit-
ing them from talking about the Union and from handbilling
for the Union, by announcing an invalid no-solicitation rules
and by threats that bargaining would start from scratch or
zero if the Union were selected. According to the complaint,
the settlement agreement approved on July 26, 1991, was
properly set aside as a result of these violations of the Act.
The Respondent filed an answer, admitting the jurisdic-
tional and supervisory aspects of the complaint and denying
the commission of any of the violations alleged in the com-
plaint.
On the entire record1 in this case and from my observation
of the demeanor of the witnesses and considering the briefs
filed by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Automotive Plastic Technologies, Inc.,
d/b/a Nashville Plastic Products, is a corporation located in
Nashville, Tennessee, where it is engaged in the manufacture
and sale of automotive parts. With sales and shipments of
goods valued in excess of $50,000 from its facility to points
outside the State of Tennessee, the Respondent is admittedly
engaged in commerce and an employer within the meaning
of Section 2(2), (6), and (7) of the Act.
The Union, Aluminum, Brick and Glass Workers Inter-
national Union, AFL–CIO, CLC, is admittedly a labor orga-
nization within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background
The production and maintenance employees at Respond-
ent’s plant in Nashville, Tennessee, began an union organiza-
tional campaign in early 1991. A petition was filed on July
8, 1991, pursuant to a Stipulated Election Agreement. An
election was held on August 27, and 28, 1991, among 310
eligible voters. On September 4, 1991, the Union filed objec-
tions to conduct affecting the results of the election. By order
of March 2, 1992, certain objections in Case 26–RC–7388
were ordered consolidated with the unfair labor practice
complaint in Case 26–CA–14727. However, by order of June
3, 1992, and upon a request to withdraw the objections, Case
26–RC–7588 was severed from the unfair labor practice
complaint. The settlement agreement approved on July 26,
1991, in Case 26–CA–14548 was set aside by order of Janu-
ary 10, 1992.
During its opposition to the employees’ union drive, the
Respondent engaged in conduct which went beyond permis-
sible bounds in numerous respects.
B. The Round Table Minutes
As alleged in the complaint, the Respondent distributed to
the employees ‘‘Round Table’’ minutes, including those
dated June 21, 1991. The minutes were also posted for ap-
proximately 1 month on the employee bulletin boards. The
minutes reflect discussions between management and em-
ployees about working conditions or problems encountered
by employees (G.C. Exh. 2, Tr. 31–34, 149–51). Typically,
8 to 10 employees were selected by management to attend
the meetings with Plant Manager Thom Bee and another su-
pervisor. The meetings were held pursuant to the Company’s
employee handbook which provides as follows (G.C. Exh.
24).
C. Plant Manager Roundtable Meetings
Once each month the Plant Manager has a ‘‘Round-
table Meeting’’ with employees representing each major
465NASHVILLE PLASTIC PRODUCTS
department. At these informal sessions, refreshments
are served while the state of business is addressed.
Present news as well as upcoming events are discussed
and are followed by a question and answer period.
Bulletins following these meetings are distributed to
all employees.
The June 21, 1991 minutes of the roundtable discussion
deal with the employees’ union campaign, advising the em-
ployees of the advantages and disadvantages of union affili-
ation. In the first paragraph the document admonishes the
employees as follows:
There is some talk of voting in a union in this plant.
This topic of conversation is to be covered somewhere
other than the plant floor. Those not heeding this warn-
ing will be disciplined accordingly. Employees bothered
by other employees or outsiders advocating a union
need only see your supervisor or anyone in manage-
ment and we will see that it stops.
The minutes also state in connection with an explanation
of the significance of a union authorization card: ‘‘If you are
being harassed, feel free to bring it to you[r] supervisor’s at-
tention.’’
According to the General Counsel, this language con-
stituted a prohibition on employees’ workplace conversations
designed to single out discussions about the Union as well
as an unlawful request to employees to report on the union
activity of their fellow employees.
The record shows that the Employer warned employees
that the topic of ‘‘voting in a union’’ was prohibited on the
plant floor and that employees who violated this prohibition
would be disciplined. Yet employees were not prohibited or
disciplined for conversing in the plant about topics other than
the Union, such as sports or the weather or about personal
matters (Tr. 214). Indeed, employees freely talked about such
topics. Respondent’s published threats of discipline for talk-
ing about the Union in the workplace constitute an inter-
ference with the employees’ Section 7 rights and clearly vio-
lated Section 8(a)(1) of the Act.
Also unlawful, according to the General Counsel, was the
Respondent’s request directed at the employees to report to
management the harassment by union organizers. The min-
utes contain two such references, ‘‘[e]mployees being both-
ered by other employees or outsiders advocating a union
need only see [their] supervisor . . . [who] will see that it
stops’’ and in referring to solicitations for signatures on
union cards, if ‘‘you are being harassed, feel free to bring
it to your supervisor’s attention.’’ Although the language is
couched more as an invitation to report union activity rather
than a demand, the message would restrain and coerce a
union proponent from advocating a union among the employ-
ees and from soliciting fellow employees to sign a union
card. I accordingly find that the Respondent thereby violated
Section 8(a)(1) of the Act. Bank of St. Louis, 191 NLRB
669, 673 (1971).
D. The No-Solicitation Rule
The Respondent’s employee handbook contains a provi-
sion entitled, ‘‘Controlled Solicitation and Distribution’’
(G.C. Exh. 2, p. 4). This rule prohibits any form of solicita-
tion during ‘‘working time,’’ which is defined as ‘‘that pe-
riod during the shift other than meal periods, rest periods, or
other times when the employee is not engaged in perform-
ance of work.’’ The prohibition also includes the
‘‘[d]istribution or solicitation by non-employees anywhere on
company property at any time.’’ While the rule is presump-
tively valid, Respondent has verbally prohibited union solici-
tation under the following circumstances.
On June 20, 1991, Plant Manager Thom Bee called John
Bendele into his office. Bendele had worked as a mold tech-
nician for 5 years and was one of the most active union sup-
porters who attended union meetings, distributed union lit-
erature to other employees, and tried to organize them for the
Union. Bee told Bendele in the presence of Ben Carter, as-
sistant plant manager, that he was ‘‘getting word that you’re
soliciting for the Union on the shop floor.’’ Bee continued
as follows, ‘‘if I catch anybody out there on the shop floor
soliciting for the union or anything else, they will be dis-
charged immediately . . . don’t do it on company property
or on the shop floor or you will be discharged immediately’’
(Tr. 155–156).
Bee, who testified in this case, did not deny this conversa-
tion. It is accordingly clear that the Respondent prohibited
union soliciting on company property even though it toler-
ated talking on company property about other matters such
as sports or the weather (Tr. 213–214). The Respondent also
threatened employees with discharge for engaging in union
activity.
A few days later, Bee again interdicted Bendele’s union
soliciting activity when Bendele complained about a fellow
employee. Familiar with the prohibition contained in the em-
ployee handbook against harassment by one employee
against another, Bendele reported to management an incident
which occurred on June 23, 1991, in the breakroom. On that
day, Jeff Atkins had scolded Bendele who had taken his
break in the breakroom. Raising his voice, Atkins had said
that the employees did not need a union, that Bendele should
not speak on behalf of these employees, that he was a trou-
blemaker who would ruin the jobs for everybody (Tr. 159).
Responding to Bendele’s complaint about this incident, Bee
initially agreed that Atkins should not have harassed another
employee, but Bee continued and said that Bendele should
not harass anybody about the Union or go to their homes to
talk about the Union or risk disciplinary action (Tr. 160–
161). Respondent thereby announced again a restriction on
union solicitation.
At about the same time, June 23, when Bendele was dis-
tributing union literature in the shipping department near the
timeclock, Dale Strong, supervisor in the shipping depart-
ment, asked Bendele whether he had received permission.
Bendele said, ‘‘no.’’ Strong then confiscated the leaflets and
told Bendele to stop soliciting even though the activity had
taken place in a nonworking area and prior to Bendele’s
morning shift (Tr. 156–158).
Respondent’s conduct in prohibiting union soliciting by its
employees was clearly unlawful, because the prohibition
against soliciting was discriminatorily applied only to union
solicitation. Our Way, Inc., 268 NLRB 394, 395 (1983).
E. Prohibition on Handbilling
The record is replete with incidents of restrictions on
handbilling for the Union. When on June 23, 1991, employee
466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The complaint was amended to surveillance of union activity (Tr.
10).
Bendele handed out union literature near the timeclock in the
shipping department, Supervisor Strong prohibited his activ-
ity even though Bendele was in a nonworking area and had
not yet started his shift. Bendele testified as follows about
the incident (Tr. 157):
I was talking to Tracey Jefferson and Dale Strong
walked up to me and asked me, he said, ‘‘Has anybody
told you not to be handing those out?’’ And I said,
‘‘No sir.’’ And he snatched them out of my hand and
said, ‘‘Consider You have been now.’’ I said, ‘‘That’s
my personal property and I’m on my time. That’s mine.
I’m not on company time.’’ He said, ‘‘I’ve been in-
structed to take these away and stop all soliciting.’’ I
said, ‘‘All right.’’
On August 19, 1991, Plant Manager Thom Bee ap-
proached three employees, John Bendele, Patrick Ferguson,
and Shawn Pogues as they distributed union literature near
the employees’ plant entrance. According to Pogue, Bee
asked the employees what shift they worked. After they iden-
tified their respective shifts, Bee asked them to leave and es-
corted them off the property out the gate. Again, the employ-
ees were on their own time when Bee ordered the activity
stopped (Tr. 52).
A similar incident occurred on August 28, 1991, as em-
ployee Jay Simpson was distributing union literature outside
the glass door of the employee entrance to the molding de-
partment. On the other side of the door Supervisor Phyllis
Vanetta distributed antiunion literature. Employee Eddie Bell,
who was not on dutys stood close by and also distributed
antiunion handbills. Plant Manager Bee came out of his of-
fice and asked Vanetta if Simpson was working during this
shift. Vanetta did not know. Simpson informed Bee that this
was her day off. Bee promptly told her to leave the property,
but he did not prohibit the handbilling against the Union by
Bell or the supervisor. Simpson protested and referred to the
Board’s notice posted nearby on the bulletin board. Bee said,
‘‘[e]ither you leave or I’ll have you escorted off’’ (Tr. 211).
Approximately August 12, 1991, three employees, Sherrie
Shockley, Shawn Pogue, and Jay Simpson, were distributing
union literature on a patio outside the front of the plant. This
was the same area where employee Eddie Bell had handed
out antiunion literature in the presence of Supervisor Ray
Turner a few days earlier. Yet on this day, Personnel Direc-
tor Jimmy Tullis and Bee appeared and ordered the three em-
ployees off company property and to the street (Tr. 133–
155).
Some time later, 3 or 4 days before the election, Sherrie
Shockley and Shirley Mayberry were passing out union lit-
erature near the front gate of the building on the patio. Su-
pervisor Scott Smith approached the two employees and in-
structed them to leave the area and ‘‘go back to the street
with that literature’’ (Tr. 132).
Bee also ordered employees John Bendele and Patrick Fer-
guson off company property on August 28, 1991, while they
were handbilling on behalf of the Union on the parking lot
(Tr. 90–91).
As a result of those incidents it is clear that the Respond-
ent tolerated the antiunion handbilling on company property
but prohibited repeatedly the handbilling on behalf of the
Union on company property during the employees’ own
time. Respondent’s conduct in this regard clearly violated
Section 8(a)(1) of the Act. Our Way, Inc., supra.
F. Surveillance of Union Activity
According to the complaint, more than a dozen supervisors
or agents engaged in the surveillance of the employees union
activities in violation of the Act.2 The record is replete with
the testimony of nine employees that the handbilling activity
on behalf of the Union was observed by a group of super-
visors from inside and outside the plant doors. For example,
Shawn Pogue, an employee, testified that between July and
August she distributed union handbills on at least 25 occa-
sions for approximately 30 to 40 minutes prior to the begin-
ning of her shift (Tr. 34–35). And on each occasion she saw
supervisors around the employee entrance, the patio area and
the reception area, for the entire period of time while she en-
gaged in the union activity. She usually saw John Jackson
or Lee Brantley and Scott Smith in front of the employee en-
trance, and Gene Steakly on the patio (Tr. 46).
Employee William Ferguson passed out union literature
about 10 times in the parking lot before or after his shift. At
those times, Ferguson saw Supervisors Jim McNeal, Robert
Payne, Al Frillman, Ben Carter, Gene Steakley, and Thom
Bee (Tr. 87–88). They would usually be there for 30 min-
utes. Whenever Ferguson engaged in these union activities
supervisors were watching him (Tr. 89–90).
Carla Dalton, an operator in the molding department, testi-
fied that she participated in the majority of handbilling ef-
forts, initially once a week and after August 5, 1991, twice
a week. She would spend approximately 30 minutes before
her morning shift at the entrance to the parking lot. During
the last 2 weeks before the election she always saw members
of management and supervisors watching their activity. She
recalls seeing Tom Reading, John Jackson, Lee Brantley,
Ben Carter, and Thom Bee (Tr. 116–117).
Employee Clarence Johnson similarly testified that he en-
gaged in handbilling on behalf of the Union for about 1 hour
on several days prior to the election. He saw supervisors and
members of management, Thom Bee, John Jackson, Ben
Carter, Jimmy Tullis, as they observed the handbilling (Tr.
123–126).
John Bendele, one of the most active union supporters
among the employees, testified that he handbilled in July and
August about 20 times for approximately 40 to 60 minutes
depending how early he would arrive prior to his working
time. He saw Tom Reading, Mike Long, Lee Brantley, Thom
Bee, Ben Carter, and Jimmy Tullis, as they watched him
‘‘hand flyers to people as they’d drive by in the cars’’ (Tr.
164). On at least one occasion Bee ordered Bendele off com-
pany property saying ‘‘you’ve got to handbill off company
property’’ (Tr. 165).
Sherrie Shockley, an employee at Nashville Plastic during
the union campaign, testified about her handbilling activity
and recalled that on two occasions before the election she
was ordered off company property after supervisors observed
her handbilling (Tr. 131–133). Employee Carolyn Burk re-
called in her testimony that she handbilled on about a half
a dozen times. On the day of the election as she handbilled
for about 1 hour, she saw Thom Bee, Gene Steakley, Al
467NASHVILLE PLASTIC PRODUCTS
Frillman, and Robert Payne looking at them for the entire
time (Tr. 181–182).
Shirley Mayberry, employed for almost 6 years, and Jay
Simpson, a material handler, similarly testified that their
handbilling activity was observed by management (Tr. 191,
208–209). Simpson named the same supervisors as the prior
witnesses and stated that they were watching every time he
was out there for as long as he was handbilling (Tr. 208–
209). He also related the incident when Bee ordered him off
company property even though he referred to the posted
Board notice stating that he had certain rights (Tr. 211).
The Respondent did not dispute the testimony of these em-
ployee witnesses. Bee admitted that he knew most of the em-
ployees who engaged in the handbilling activity, because
they were usually the same employees. He also admitted that
other supervisors observed the activity of the employees (Tr.
242). Stating that he ‘‘really wasn’t that concerned with the
handbilling,’’ he testified what he ‘‘mainly was concerned
about were the safety aspects of what was going on’’ (Tr.
242). He referred to traffic congestion or the possibility of
an altercation among employees, and possible vandalism (Tr.
242–243).
Bee had to concede, however, that none of the incidents
of vandalism or altercations which he cited had any relation-
ship to the union activity of the employees. Furthermore,
none of the employee witnesses were aware of any traffic
problems caused by their handbilling activity. None of them
had observed any violence. The police had been called by
management on at least one occasion, but were apparently
not needed (Tr. 72, 101, 110). I do not credit Bee’s professed
reasons for the Respondent’s surveillance.
The record shows a concentrated effort by the Respondent
to assemble members of management in visible areas of the
plant for the sole purpose of watching the employees as they
on their own time distributed union literature to fellow em-
ployees. In that connection, the Respondent prohibited this
activity on company property, on one occasion seized the
union literature and generally discouraged the practice on be-
half of the Union while tolerating the distribution of
antiunion literature. Although it is generally accepted that
management cannot be expected to close its eyes to the pub-
lic display of union activities by its employees, as for exam-
ple the open distribution of union literature on the parking
lot, Respondent’s conduct here was intended to have an obvi-
ous and calculated restraining effect on the employees. I ac-
cordingly find that the Respondent violated Section 8(a)(1)
of the Act.
G. Threats
In addition to the threats made to employees on June 20
and June 21, 1991, that soliciting for the Union on the shop
floor would result in their discipline or discharge, as stated
above, the complaint contains several allegations that the Re-
spondent threatened employees with certain adverse con-
sequences for engaging in union activities.
The record shows that on several occasions representatives
of Respondent’s management in meetings with their employ-
ees threatened them about the consequences of a union.
Shawn Pogue, for example, testified that she attended six
meetings with Supervisors Robert Payne, Lee Brantley, and
John Jackson. In one meeting, with the employees in the as-
sembly department, Payne said that ‘‘if the union was voted
in that wages and benefits . . . would start from zero’’ (Tr.
53–54). According to Pogue’s uncontradicted testimony,
Payne also threatened her individually with discharge if he
caught her passing any union literature during working hours
(Tr. 55).
Personnel Director Jimmy Tullis at a meeting with the en-
tire shift told the employees approximately 4 weeks before
the election ‘‘that if the union came in that we could lose
everything and that we would have to start from scratch’’
(Tr. 93). Employee Ferguson’s testimony in this regard was
not contradicted.
At another meeting about 1 week before the election,
Tullis spoke to employees in the assembly, shippings and re-
ceiving department (Tr. 197–198, 200). Employee Shirley
Mayberry recalled him saying this (Tr. 192): ‘‘He told us if
we voted the union in that all our raises and benefits would
be frozen for a year.’’
Sherrie Shockley testified that she attended four meetings
where supervisors spoke about the Union. At the second
meeting held in the middle of August in the personnel de-
partment with employees from the shift assembly department,
Jim McNeal, a supervisors said ‘‘that the company didn’t
feel like we needed a union and that if . . . the union was
voted in, all wages and benefits would be frozen . . . that
if a union was voted, it possibly could cost us our jobs be-
cause he said that Chrysler was looking for a vendor closer
to them and Chrysler was located in St. Louis’’ (Tr. 137).
McNeal also spoke at the third meeting which Shockley at-
tended where he said that benefits and insurance would be
frozen during negotiations (Tr. 138).
Employee Jay Simpson attended about three meetings
where McNeal said as follows (Tr. 215–216):
He told us how we didn’t need a union and then if
we voted the union in that all of our benefits would be
frozen, that all of our progressive raises—you know, it
takes 15 months to top out on your job raises. He said
all of them would be frozen until we negotiated a con-
tract. He also said—I asked him a question about our
dental insurance. It was just a month before I was there
a year and eligible for dental insurance. I asked him if
we voted the union in, you know, in the next couple
of weeks if I’d be eligible for my dental insurance in
September like I’m supposed to be, and I was told no,
that everything would be frozen.
Simpson recalled that McNeal said at the August 13 meet-
ing ‘‘benefits would be frozen and all pay increases would
be frozen until a contract was negotiated . . . that could take
up to a year’’ (Tr. 228).
Employee John Bendele, who had attended six or eight
employee meeting testified about a meeting held 3 days be-
fore the election with the molding and maintenance depart-
ment. Thom Bee referred to union negotiations at another
firm stating that their pay was frozen for a year and that the
Respondent’s employees would also have their pay frozen
until a contract is negotiated (Tr. 168–169).
Here, it is clear that the Respondent did not make factual
statements concerning possible adverse results of unioniza-
tion, rather the Respondent systematically emphasized that
wages or benefits would be frozen, and that negotiations
would start from scratch. Under these circumstances and in
468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a context of other violations of the Act, it is clear that these
statements were coercive and had the tendency to interfere
with the employees’ Section 7 rights. I accordingly find that
the Respondent’s threats violated Section 8(a)(1) of the Act
as alleged in the complaint.
H. Interrogation
The complaint alleges multiple incidents of coercive inter-
rogations of employees by various supervisors.
In early August 1991, Supervisor Robert Payne called
Shawn Pogue into his office. Pogue recalled Payne saying as
follows (Tr. 55): ‘‘He said that he had heard rumors and had
witnesses that said that I was passing out union literature
during working time.’’ Pogue replied that if Payne wanted to
talk about work or the performance of her job, he should
speak, but if he wanted to say something about her union ac-
tivities then she wanted a witness present. Payne said that if
he caught her passing out union literature during working
hours he would get rid of her.
Although Payne’s remarks were more in the nature of an
accusatory question than an outright interrogation, it was
clear that he expected a reply about Pogue’s union activity.
That the surrounding circumstances were coercive is clear. I
accordingly find that the episode amounted to an unlawful
interrogation in violation of Section 8(a)(1) of the Act.
Rossmore House, 269 NLRB 1176 (1984).
On several occasions, supervisors went from employee to
employee offering them antiunion T-shirts. Supervisor Payne
went through the assembly department with 40 employees
with shirts inscribed ‘‘Vote NO,’’ spoke to each employee
and offered them a shirt and Supervisor Long contacted the
employees in the molding department inquiring whether they
wanted a shirt. Some employees accepted a shirt and others
refused them (Tr. 55–60, 166–167). The testimony of the two
employees, Pogue and Bendele, who observed this conduct
was not refuted.
Respondent’s actions, offering antiunion items to the em-
ployees, puts the employees on the spot, forcing them to re-
veal or to hide their union sympathy. It is accordingly unlaw-
ful under Section 8(a)(1) of the Act. Great Western Coca
Cola Bottling Co., 256 NLRB 520 (1981).
I. Procedural Issues
The Respondent presented two procedural issues as a de-
fense: first, that the case should have been reopened for the
receipt of additional evidence and second, that the Regional
Director’s decision to vacate the settlement agreement con-
stituted a denial of due process.
Motion to Reopen. Respondent’s motion to reopen the
record was made in its brief submitted on August 3, 1992.
The Respondent argues that it would be prejudiced by a deci-
sion which did not consider the testimony of George Curry
and two unnamed witnesses. The records however, shows
that the Respondent has failed to use due diligence in prof-
fering the testimony of these witnesses. None of them were
present at the hearing. Despite a recess, the witnesses failed
to appear (Tr. 253–277). According to Respondent’s coun-
sel’s representation, the witnesses were subpoenaed for the
first day of the hearing. They did not appear for the first or
the second day (Tr. 254). The case was adjourned for several
hours for counsel to contact the witnesses (Tr. 265). Coun-
sel’s effort in that regard was unsuccessful (Tr. 266). Re-
spondent’s counsel refused to make an offer of proof and re-
quested an adjournment of 3 weeks which was denied (Tr.
275). Respondent was unable and did not show that any of
the witnesses had been served properly by subpoena. Re-
spondent’s counsel was advised as follows (Tr. 276), ‘‘you
may make a motion to reopen the record and your motion
to reopen the record may be accompanied by your Subpoenas
and any other documentary evidence that you may wish to
attach to it.’’ Nevertheless even now, the motion to reopen
is not supported by any documentary evidence to show that
the Respondent used due diligence in serving the subpoenas.
In short, the Respondent has not shown that it was preju-
diced by my ruling in the record, the Respondent has failed
to show the relevancy of the additional evidence sought or
why it was not presented with the exercise of due diligence.
Respondent’s motion to reopen the record is therefore de-
nied.
J. The Settlement
The parties entered into a settlement agreement on July 25,
1991. The record shows that despite its promise to dis-
continue its unlawful conduct, i.e., not to prohibit employees
from (a) talking on the plant floor about the Union, and (b)
distributing union literature an company property or from
disparately enforcing solicitation rules, the Respondent has
continued to violate the Act in that regard. The Respondent
has committed other violations which in a like or related
manner interfered with the employees’ Section 7 rights. In
view of Respondent’s breach of the settlement agreement, it
was properly vacated.
CONCLUSIONS OF LAW
1. The Respondent, Automotive Plastic Technologies, Inc.,
d/b/a Nashville Plastic Products, is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Union, Aluminum, Brick and Glass Workers Inter-
national Union, AFL–CIO, CLC, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By threatening to discipline employees if they talk
about the Union and by prohibiting union talk on the plant
floor where talk about other subjects is tolerated, the Re-
spondent violated Section 8(a)(1) of the Act.
4. By requesting employees to report to management em-
ployees who in advocating the Union ‘‘harass’’ employees,
the Respondent violated Section 8(a)(1) of the Act.
5. By prohibiting union solicitation or the distribution of
union literature on company property during nonworktime in
nonwork areas, and by confiscating union literature, the Re-
spondent violated Section 8(a)(1) of the Act.
6. By engaging in the surveillance of union activities of
the employees, the Respondent violated Section 8(a)(1) of
the Act.
7. By coercively interrogating employees about their union
activities, the Respondent violated Section 8(a)(1) of the Act.
8. By threatening employees with discharge because of
their union activities; by threatening that wages or benefits
would be frozen or that it would bargain from scratch if the
employees selected the Union, the Respondent violated Sec-
tion 8(a)(1) of the Act.
469NASHVILLE PLASTIC PRODUCTS
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
4 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
9. The settlement agreement was properly set aside after
the Respondent engaged in the same violations of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to ef-
fectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Automotive Plastic Technologies, Inc.
d/b/a Nashville Plastic Products, Nashville, Tennessee, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening to discipline employees if they talk about
the Union and prohibiting union talk on the plant floor where
talk about other subjects is permitted.
(b) Requesting employees to report to management em-
ployees who in advocating the Union ‘‘harass’’ employees.
(c) Prohibiting union solicitation or the distribution of
union literature on company property during nonworktime in
nonwork areas and confiscating union literature.
(d) Engaging in surveillance of employees’ union activi-
ties.
(e) Coercively interrogating employees about their union
activities.
(f) Threatening employees with discharge because of their
union activities and threatening that wages or benefits would
be frozen or that bargaining would start from scratch or zero
if the employees selected the Union.
(g) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its Nashville, Tennessee facility copies of the
attached notice marked ‘‘Appendix.’’4 Copies of the notice,
on forms provided by the Regional Director for Region 26,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT threaten to discipline employees if they talk
about the Union or prohibit union talk on the plant floor
where talk about other subjects is permitted.
WE WILL NOT request employees to report to management
employees who in advocating the Union ‘‘harass’’ employ-
ees.
WE WILL NOT prohibit union solicitation or the distribution
of union literature on company property during nonworktime
in nonwork areas or confiscate union literature.
WE WILL NOT engage in surveillance of employees’ union
activity.
WE WILL NOT coercively interrogate employees about their
union activities.
WE WILL NOT threaten employees with discharge because
of their union activities or threaten that wages or benefits
would be frozen or that bargaining would start from scratch
or zero if employees selected the Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
AUTOMOTIVE PLASTIC TECHNOLOGIES, INC.
D/B/A NASHVILLE PLASTIC PRODUCTS