Patrick Industries

National Labor Relations Board - Board Decisions

Aug 7, 1995

318 N.L.R.B. 245 (N.L.R.B. 1995)

245
318 NLRB No. 18
PATRICK INDUSTRIES
1 On April 6, 1995, Administrative Law Judge Stephen J. Gross
issued the attached decision. The Respondent filed exceptions and a
supporting brief. The General Counsel and the Charging Party each
filed answering briefs.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 Member Cohen finds it unnecessary to rely on the judge’s find-
ing that par. 8 of the Respondent’s December 17, 1993 letter to unit
employees violated Sec. 8(a)(1) and was objectionable. In all other
respects, he agrees with his colleagues.
1 Mobilcraft admits that it is an employer engaged in commerce
within the meaning of the National Labor Relations Act (the Act).
2 The bargaining unit: ‘‘All full-time and part-time production and
maintenance employees employed by Mobilcraft Division of Patrick
Industries at its Elkhart, Indiana facilities; but excluding all office
clerical personnel, all sales persons, all professional employees, and
all guards and supervisors as defined in the Act.’’ Mobilcraft admits
that the ACTWU is a labor organization within the meaning of the
Act.
3 The dates on which the charges were filed and the complaints
issued are as follows:
ULP charge in Case 25–CA–22849 filed on November 3, 1993.
ULP charge in Case 25–CA–22875–2 filed on November 12,
1993.
ULP charge in Case 25–CA–22962–8 filed on January 5, 1994.
ULP charge in Case 25–CA–22979 filed on January 21, 1994.
Complaint in Cases 25–CA–22849, 25–CA–22875–2, and 25–CA–
22979 issued on January 25, 1994.
Order consolidating cases and consolidated complaint in Cases 25–
CA–22849, 25–CA–22875–2, 25–CA–22979, and 25–CA–22962–8
issued on February 25, 1994.
Report on challenged ballots and objections, order directing hear-
ing, and order consolidating cases in Cases 25–CA–22849, 25–CA–
22875–2, 25–CA–22979, 25–CA–22962–8, and 25–RC–9317 issued
on July 12, 1994.
Patrick Industries, Inc., Mobilcraft Wood Products
Division and Amalgamated Clothing & Textile
Workers Union, AFL–CIO, CLC. Cases 25–
CA–22849, 25–CA–22875–2, 25–CA–22962–8,
25–CA–22979, and 25–RC–9317
August 7, 1995
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The issue in this case is whether the administrative
law judge correctly found that the Respondent violated
Section 8(a)(1) of the Act and engaged in objection-
able conduct interfering with a representation election
by warning employee Russ Adams for engaging in
protected activity and by telling unit employees that
they could guarantee that their wages remain higher
than at the Respondent’s represented facilities only if
they voted against the Union.1
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Patrick Industries, Inc.,
Mobilcraft Wood Products Division, Elkhart, Indiana,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order.
[Direction of Second Election omitted from publica-
tion.]
Ann Rybolt, Esq., for the General Counsel.
Steven K. Like, Esq. and Michael J. Grattan III, Esq.
(Warrick & Boyn), of Elkhart, Indiana, for the Respondent.
Richard J. Swanson, Esq. (Macey, Macey and Swanson), of
Indianapolis, Indiana, for the Charging Party.
DECISION
STATEMENT OF THE CASE
I.
STEPHEN J. GROSS, Administrative Law Judge. Patrick In-
dustries is a large, publicly held corporation in the business
of manufacturing products for other manufacturers—more
specifically, for manufacturers of mobile homes and rec-
reational vehicles. The company does so in numerous facili-
ties throughout the United States.
Mobilcraft Wood Products is an unincorporated division of
Patrick Industries. It has about 150 employees, divided into
2 shifts. None of Mobilcraft’s employees are represented by
a union. Mobilcraft manufacturers doors for the built-in cabi-
nets of mobile homes and recreational vehicles. Mobilcraft
has three plants. All three are in Elkhart, Indiana. Mobilcraft
has designated the three plants as plants 3, 7, and 8. Only
the activities in plants 7 and 8 are at issue in this proceeding,
and, with minor exception, only activities on the first shift.1
The Charging Party, the Amalgamated Clothing & Textile
Workers Union, AFL–CIO, CLC (the Union or the ACTWU)
filed an election petition on November 1, 1993, and began
campaigning vigorously for the votes of the employees.2
Mobilcraft, just as vigorously, urged the employees to vote
against unionization.
The election was held on December 21, 1993. One hun-
dred twenty-seven employees voted. There were 122 valid,
unchallenged ballots. The ACTWU lost by two votes.
During the election campaign, and shortly after its close,
the Union filed a number of unfair labor practice charges.
Additionally, the Union challenged the ballots of certain vot-
ers and filed timely objections to conduct that, it claimed, af-
fected the results of the election.
Four of the unfair labor practice charges led to the issu-
ance of complaints. And thereafter a number of the Union’s
objections and challenges were consolidated for hearing with
the unfair labor practice issues.3 (A stipulation subsequently
246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 On the afternoon of August 30 counsel for all parties and I
toured plants 7 and 8.
5 The Union’s contention about Adams’ discipline is set out in the
ACTWU’s Objection 9. 6 G.C. Exh. 12.
eliminated the challenges as an issue here.) I heard the case
in Elkhart on August 29 through September 1 and September
19 and 20, 1994.4 The General Counsel, the ACTWU, and
Mobilcraft have filed briefs.
II. MOBILCRAFT’S DISCIPLINE OF RUSS ADAMS
On November 2, 1993, Mobilcraft issued a written warn-
ing to employee Russ Adams for harassing fellow employee
Deana Ebling. The General Counsel and the Union contend
that Mobilcraft did so because of Adams’ union activities
and in order to discourage other employees from participat-
ing in such activities.5
A. Adams’ Union Activities
Adams joined Mobilcraft’s work force in 1981. He became
a supervisor in 1992 but voluntarily returned to employee
status, in plant 8, in May 1993. He quit Mobilcraft in June
1994.
Tim Bear is Mobilcraft’s general manager and, as such,
the Company’s highest ranking official. On October 27 about
20 employees met with Bear in his office. Adams served as
spokesman for the group. (All the events to which this deci-
sion refers occurred in 1993 unless otherwise specified.)
Adams advised Bear that the group of employees were mem-
bers of the Mobilcraft Organizing Committee and that they
would be campaigning on behalf of the ACTWU.
Adams had met with ACTWU organizers 5 days before in
what was the first meeting between a Mobilcraft employee
and representatives of the Union. Adams signed an authoriza-
tion card on October 26 and began urging other employees
to do likewise. By November 2 Adams had handed out 10
or 15 authorization cards.
The record is clear that Mobilcraft’s management recog-
nized that it was Adams who had introduced the ACTWU
to the Company’s work force. In fact on November 2 (the
same day that Mobilcraft disciplined Adams), an attorney for
the Company gave a speech to Mobilcraft’s employees in
which he referred to Adams as the employee who had insti-
gated the union campaign. (I discuss this speech further in
part V, infra.)
B. Mobilcraft’s Discipline of Adams
Deana Ebling was and still is a Mobilcraft employee. She
works in plant 8 (as did Adams at all times relevant to this
proceeding). Adams and Ebling are (or, perhaps, were)
friends; Adams and his wife socialized with Ebling and her
husband.
On October 26 or 27 Adams spoke to Ebling about signing
an authorization card. Adams assumed that Ebling would
sign one since he had often heard her and two of her friends,
Barbara Burmeister and Lisa Kissel, complain about condi-
tions at Mobilcraft. (Burmeister is a group leader. Group
leaders at Mobilcraft are employees and are part of the bar-
gaining unit.) But Ebling put Adams off, saying that she was
undecided about whether to support the Union. The same
thing happened when Adams spoke to Ebling a few days
later about signing an authorization card, and again a day or
two after that. Then, on about November 1, Adams again en-
countered Ebling. Adams told Ebling that she, Burmeister,
and Kissel were ‘‘three of the biggest bitchers in the com-
pany that didn’t seem to want to do anything about it to
change anything.’’ (The quotation is from Adams’ testimony.
Ebling did not testify.)
On November 2 Burmeister and another group leader sep-
arately advised Supervisor Michael Wyatt that Ebling was
upset because of ‘‘harassment’’ by Adams. Burmeister spe-
cifically mentioned that Ebling had said that Adams had
called Ebling a ‘‘bitch.’’
Wyatt called Ebling to his office and asked her about the
incident. Ebling told him that Adams was harassing her
about signing an authorization card, that Adams had called
her and two other employees ‘‘bitches,’’ and that she was
uncomfortable about taking breaks in the plant’s breakroom
because of her concern that she would be ‘‘bugged’’ by
Adams. Ebling seemed very nervous and upset, especially by
Adams’ use of the term ‘‘bitch.’’
Since I have found that Adams referred to Ebling as a
‘‘bitcher,’’ not as a ‘‘bitch,’’ I further find that Ebling,
wittingly or otherwise, misinformed Wyatt when she told
him that Adams used the term ‘‘bitch.’’
Wyatt, convinced that Adams had acted in the manner that
Ebling described, and after checking with his superiors,
wrote the following on an employee warning notice form.
I am issuing this written [warning] to Russ Adams
for his conduct toward co-workers. I have a complaint
from an employee that Russ was being persistent about
this employee signing a union authorization card. I ex-
plained to Russ that this will not be tolerated and that
if another employee comes to me with a complaint
about him pressing them, termination will result.6
At that point Wyatt met with Adams. (As Adams remem-
bers it, Wyatt was accompanied by Bear. But I find that
Adams and Wyatt met alone.) Wyatt told Adams that Adams
was being written up because a fellow employee had com-
plained that Adams was trying to force the employee to sign
an authorization card. Wyatt said nothing about Adams hav-
ing used the term ‘‘bitch.’’
Adams denied harassing anyone and asked who had ac-
cused him. Wyatt said that that was confidential.
Wyatt, who in any event had gone into the meeting with
his mind almost wholly made up, decided that Adams’ denial
was not credible and that Adams should be disciplined.
Wyatt told Adams this and showed Adams the employee
warning notice he had prepared. Adams appealed the dis-
cipline to Bear (Mobilcraft’s general manager), but Bear re-
fused to countermand Wyatt’s action. Bear then did ask
Ebling about the incident, but Ebling refused to talk to Bear
about it.
C. Mobilcraft’s Defense of its Discipline of Adams
According to Mobilcraft, there are at least three reasons
why its discipline of Adams was appropriate: first, it com-
ported with numerous other disciplinary actions Mobilcraft
has taken against other employees; second, Adams’ behavior
violated the Company’s no-harassment policy; and third,
247PATRICK INDUSTRIES
7 R. Exh. 2.
8 See The American College Dictionary and Webster’s Third New
International Dictionary.
9 Ibid.
10 Ibid.
Mobilcraft would have been subject to potential liability had
the Company not taken some sort of action against Adams,
and the form of action it did take—a warning—was a mild
one (as opposed to suspension or discharge).
Turning first to the question of precedent at Mobilcraft for
the kind of action under consideration here, Mobilcraft has
indeed disciplined numerous employees for behavior it la-
beled ‘‘harassment.’’ But none of those instances are re-
motely akin to the Adams-Ebling incident. Almost all in-
volved insubordination (toward leadpersons or supervisors),
although one of those also covered ‘‘obnoxious behavior to-
ward other employees.’’ Of the four disciplinary actions for
‘‘harassment’’ that involved behavior toward coworkers who
were not group leaders, two were for sexual harassment, and
the other two were for fighting with or hitting another em-
ployee. Adams, of course, did not hit Ebling. And, as will
be discussed later, Adams plainly was not guilty of sexual
harassment.
Turning to Mobilcraft’s no-harassment policy, it reads as
follows (in pertinent part):
NO HARASSMENT POLICY
All Patrick employees have the right to work in an
environment free from all forms of discrimination and
conduct which can be considered harassing, coercive or
disruptive.
We will not tolerate harassment of any of our em-
ployees. Any forms of harassment related to an individ-
ual’s race, color, sex, religion, national origin, citizen-
ship status, age, or disability is a violation of this pol-
icy and will subject an employee to discipline, up to
and including discharge.
SEXUAL HARASSMENT
For these purposes, the term harassment refers to un-
welcome behavior which is personally offensive and in-
cludes slurs and other offensive remarks . . . . Sexual
harassment includes, but is not limited to, the follow-
ing:
a. Any threat or insinuation . . . .
b. Other sexually harassing conduct in the workplace
. . . is also prohibited. Such conduct includes, but is
not limited to: . . . .
(3) Sexually degrading words used to describe an in-
dividual . . . .
PROCEDURE FOR REPORTING AND DEALING
WITH ALLEGATIONS OF HARASSMENT
. . . .
d. Actions taken to resolve harassment complaints
through internal investigations shall be conducted con-
fidentially, whenever possible.7
The record shows that Mobilcraft made sure that its entire
work force was aware of the no-harassment policy.
Let us first dispose of sexual harassment considerations.
Adams used the word ‘‘bitchers.’’ A bitcher is someone
who bitches. And ‘‘to bitch’’ means to complain, to gripe,
or to grouse.8 There is nothing sexual about that. In fact
‘‘bitcher’’ is not even gender-specific.
I will assume that when Adams referred to Ebling and two
other women as ‘‘bitchers,’’ Ebling could have misheard
Adams and thought he said ‘‘bitches.’’ ‘‘Bitch,’’ of course,
when used as a noun is gender-specific and, when used to
refer to a human, can mean a ‘‘lewd’’ woman.9 But, at least
as frequently, it is used in the sense of a woman who is dis-
agreeable, malicious, or domineering.10 And even if Ebling
did think she heard Adams say ‘‘bitches,’’ given the context
in which Adams used it, Ebling had to have understood it
in the latter sense. Again, that involved no sexual connota-
tions.
In any case, if Wyatt had in fact believed that Adams had
been sexually harassing Ebling, his warning notice to Adams
would have said so. Instead the notice referred only to ‘‘Russ
. . . being persistent about [the complaining] employee sign-
ing a union authorization card.’’
But that does not rule out the applicability of Mobilcraft’s
no-harassment policy. While that policy does focus on har-
assment that is sexual or racial or religious or the like, it
covers any kind of harassment of one employee by another.
Here, in the space of a week, Adams made a request of
Ebling, was put off, made the same request of Ebling two
more times, and then said something unpleasant to Ebling
about it. Two employees told Wyatt that that upset Ebling
and Ebling confirmed that. Under these circumstances it was
not irrational for Mobilcraft’s management to deem Adams’
actions to be the kind of behavior that is covered by the no-
harassment policy. In that connection, I find that Mobilcraft’s
management did conclude in good faith that Adams had vio-
lated Mobilcraft’s no-harassment policy.
That is not the end of the matter, however, as will be dis-
cussed in section E of this part of the decision.
Lastly, Mobilcraft argues that:
If Mr. Wyatt had simply ignored a male employee
calling female employees ‘‘bitches’’ or ‘‘bitchers,’’ he
would have been subjecting the Company to liability
for hostile environment sexual harassment under Title
VII of the 1964 Civil Rights Act and the equivalent In-
diana statute.
But as previously discussed, Adams’ words did not con-
stitute sexual harassment and Wyatt’s discipline of Adams
was not based on Adams having sexually harassing anyone.
Moreover at no time did Ebling ask Mobilcraft to punish
Adams for the behavior at issue here. In fact Ebling’s refusal
to speak to Bear about the incident should have been a signal
to Bear that Ebling was uncomfortable about Mobilcraft in-
tervening in the matter. Finally, I have failed to locate any
case suggesting that an employer would be subject to liabil-
ity for failing to respond to behavior equivalent to Adams’
248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Mobilcraft cites Dombeck v. Milwaukee Valve Co., 40 F.3d 230
(1994), and Brever v. Rockwell International Corp., 40 F.3d 1119
(1994). 12 G.C. Exh. 13.
four interactions with Ebling. Certainly the cases cited by
Mobilcraft do not.11
D. The General Counsel’s and the Union’s Contentions
The General Counsel and the ACTWU contend, essen-
tially, that Mobilcraft’s motive in disciplining Adams was to
stifle the prounion employees’ campaign activities. That is
shown, the General Counsel and the Union say, by the ref-
erence in Adams’ writeup to his ‘‘being persistent’’ about
having an employee sign an authorization card. It is also
shown by the timing of the discipline: 1 day after the
ACTWU filed its election petition. While Ebling may per-
haps have expressed concern about an interaction with
Adams, so this argument goes, Mobilcraft’s supervisors knew
full well that Adams’ actions were not discipline worthy.
As discussed above, however, I have found that the deci-
sion by Wyatt and his superiors to discipline Adams was
made in good faith. They honestly believed, that is, that
Adams behaved improperly toward Ebling.
E. Mobilcraft’s Discipline of Adams—Conclusion
An employee’s efforts to persuade another employee to
sign a union authorization card is, obviously, activity that the
Act protects. E.g., NLRB v. Burnup & Sims, 379 U.S. 21
(1964); Nashville Plastic Products, 313 NLRB 462 (1993);
Paramount Mining Corp., 239 NLRB 699, 708 (1978), enf.
denied on other grounds 631 F.2d 346 (4th Cir. 1980). Of
course, activity that would otherwise be protected may lose
that protection if the means by which that activity is con-
ducted are sufficiently abusive or threatening. E.g., Clear
Pine Mouldings, 268 NLRB 1044 (1984).
Here on three occasions Adams urged Ebling to sign an
authorization card, and on a fourth occasion he referred to
Ebling and two of her friends as ‘‘bitchers.’’ That behavior
sufficiently disturbed Ebling that she was hesitant about
going to the breakroom for fear that she would be confronted
by Adams there. But the test for determining whether a given
union card solicitation was protected is not the perhaps idio-
syncratic reaction of the particular employee who happened
to be on the receiving end of that activity. Rather, it is for
the Board to decide whether or not the Act’s protections
apply. Paramount Mining, supra; see also, e.g., Mast Adver-
tising & Publishing, 304 NLRB 819 (1991), Quality Inn Al-
bany, 283 NLRB 1146 (1987); Roto Rooter, 283 NLRB 771,
772 (1987); Electra Food Machinery, 279 NLRB 279 (1986).
Turning to the actions for which Adams was disciplined,
it was up to Mobilcraft to show that it had reason to believe
that Adams’ conduct was sufficiently inappropriate as to de-
prive him of the Act’s protections. Burnup & Sims, supra,
379 U.S. at 23 fn. 3. Yet nothing in the record suggests that
Adams ever threatened or abused Ebling in any way. In fact
there has been no showing Adams even raised his voice to-
ward Ebling. Concluding that an employee loses the protec-
tions of the Act in these circumstances could significantly
limit the ability and willingness of employees to solicit their
fellow employees’ support for, or opposition to, a union, ac-
tivity that is central to the purposes of the Act.
I accordingly conclude that Mobilcraft violated Section
8(a)(1) of the Act when Wyatt disciplined Adams for
‘‘harassing’’ Ebling. On the other hand, since I have found
that the discipline was not discriminatory and was not done
in order to encourage or discourage membership in any labor
organization, I shall recommend that the complaint be dis-
missed insofar as it alleges that Mobilcraft’s discipline of
Adams violated Section 8(a)(3).
F. Mobilcraft’s Cancellation of its Discipline of Adams
On November 3 (1993) the ACTWU filed an unfair labor
practice charge against Mobilcraft contending that Mobil-
craft’s discipline of Adams violated the Act. Sometime be-
tween November 3 and December 21 (the date of the elec-
tion) Bear ripped up Adams’ warning notice. He did this in
response to the advice of Mobilcraft’s counsel and to the
suggestion of a Board agent who said that that might help
settle the proceeding that the unfair labor practice charge
began.
But Mobilcraft did not advise Adams of this action until
January 6, 1994, when Bear sent the following letter to
Adams:
I have removed from your personnel file the written
warning notices given to you on October 29th 1993 and
November 2, 1993.
Mobilcraft will not consider these warnings in any
way, in any future disciplinary action against you.12
(The General Counsel does not contend that Mobilcraft acted
unlawfully in issuing the October 29 warning notice to which
the statement refers.) At no time did Mobilcraft notify any
employee other than Adams of that action.
Under some circumstances an employer may cure what
would otherwise be an unfair labor practice by promptly and
publicly notifying its employees of its unlawful behavior, by
disavowing such action, and by assuring the employees of
their right to engage in activity that the Act protects. Broyhill
Co., 260 NLRB 1366 (1982); Kawasaki Motors, 231 NLRB
1151, 1152 (1977).
Here Mobilcraft did none of that. Plainly Bear’s letter to
Adams was insufficient to obviate the unfair labor practice
that Mobilcraft committed against Adams. See, e.g., Dennett
Road Manor Nursing Home, 295 NLRB 397 (1989);
Passavant Memorial Area Hospital, 237 NLRB 138 (1978).
Cf. F. L. Thorpe & Co., 315 NLRB 147 (1994).
III. MOBILCRAFT’S DISCIPLINE OF AL FIELDS
Among the machines that Mobilcraft uses to make cabinet
doors are mechanized clamps. The clamps squeeze together
the four pieces of wood that make up the frame of the door
and hold them in place while the operator pins the joints.
Al Fields and Nancy Beggs were employees at all relevant
times. (Beggs has since left Mobilcraft, voluntarily. Fields re-
mains employed by Mobilcraft.) Both Fields and Beggs were
among the original members of the Mobilcraft Organizing
Committee, each signed the petition that Adams gave to
Bear, and each participated in the October 27 meeting with
Bear.)
249PATRICK INDUSTRIES
13 The warning is in the record as G.C. Exh. 14.
14 The ACTWU deals with Mobilcraft’s discipline of Fields in its
Objection 11.
15 R. Exh. 9.
16 R. Exh. 10.
On November 2 Fields and Beggs were working near one
another. Each was operating clamps. Fields’ machine began
operating inconsistently. In that situation plant rules required
Fields to notify his group leader. Instead Fields called Beggs
over and asked if she could figure out what was wrong.
Beggs fiddled with the clamps for a moment, then acti-
vated the machine. Unhappily, that was the moment that
Fields chose to try to take the door he had been working on
out of the machine. The clamps closed on Fields’ fingers, in-
juring them. There is no doubt at all that Fields acted neg-
ligently in reaching into the machine while Beggs was at its
controls.
Later that day (after Fields had returned to the plant from
having his cuts stitched up), Fields’ supervisor, Darlene
Detweiler, issued a written warning to Fields, for careless-
ness.13 Fields complained to Detweiler’s superior, Steve
Barella, about the discipline, even though Fields told Barella
that he agreed that it was ‘‘stupid’’ of him to have put his
hand in the machine while Beggs was operating it. Barella
supported Detweiler’s decision to issue the warning.
The General Counsel and the Union contend that the true
reasons that Mobilcraft issued the warning to Fields were to
punish him for his support of the ACTWU and to discourage
other employees from doing so.14 And it is true that the
warning issued just 1 day after the ACTWU filed its election
petition. Nonetheless, this contention edges up to the frivo-
lous if, indeed, it does not actually arrive there.
First, Fields did act carelessly.
Second, nothing that Detweiler (or any other supervisor)
said in any way suggested that the discipline was connected
with Fields’ union activities.
Third, there is no evidence that Mobilcraft’s response to
Fields was inconsistent with its response to other employees
who behaved in comparable ways. In fact, the reverse is true.
In September (a month before the ACTWU arrived on the
scene), Mobilcraft issued a written warning to employee
George Price when he cut his finger as a result of negligently
operating his machine.15 And on the same day that Fields
was hurt (November 2), Mobilcraft issued a written warning
to employee Calvin Hurst for ‘‘allowing yourself to be in-
jured on the job. Not taking enough precautionary meas-
ures.’’16 Hurst was not known to be a supporter of the
Union.
Fourth, Beggs was at least as active on behalf of the
Union as was Fields. (Subsequently, in fact, the ACTWU
picked Beggs to serve as an election observer.) And, cer-
tainly, a case could be made out that Beggs also was blame-
worthy in the incident. Yet Mobilcraft did not discipline
Beggs.
Additionally, I credit the testimony of the Mobilcraft su-
pervisors who testified about this incident and about
Mobilcraft’s disciplinary policy regarding employee careless-
ness that results in injury. (I also credit Beggs’ testimony
about this incident. Fields did not testify.)
I shall recommend that the Board dismiss the complaint’s
allegations regarding Fields.
IV. MOBILCRAFT’S TRANSFER OF GEORGE DEAL FROM
HIS FORKLIFT JOB
A. What Happened
George Deal III was one of the first Mobilcraft employees
to join the Mobilcraft Organizing Committee. Deal’s name
was at the top of the committee’s roster that Adams handed
to Bear on October 27, and Deal was present at the commit-
tee’s meeting with Bear. Deal signed an authorization card
at the first union meeting (on October 26) and he handed out
authorization cards to other employees. A day or two after
the organizing committee met with Bear, Bear asked then
Supervisor Terry Markin, whom Bear knew to be a friend of
Deal’s, ‘‘what George Deal’s problem was, why . . . he was
so upset’’ (referring to Deal’s support for the Union).
At all relevant times until November 8, 1993, Mobilcraft
employed George Deal III as a forklift operator. On Thurs-
day, November 4, about an hour after Deal was scheduled
to begin work, Deal called in to say that he was going to
be late. Because Deal had been late so frequently in the re-
cent past, Deal’s supervisor, Darlene Detweiler, suspended
him for 3 days—until November 8. (The General Counsel
does not contend that this suspension violated the Act in any
way.) When Deal returned to work on November 8,
Detweiler told Deal that she was taking him off the forklift
indefinitely and assigning him to be a sanding machine oper-
ator. The reason for that, Detweiler said, was that, because
of Deal’s frequent tardiness, materials that had to be trans-
ported to work areas by the forklift too often did not get
there on time.
The General Counsel and the Union contend that: (1) the
true reason that Mobilcraft removed Deal from his forklift
job was that the Company knew that the forklift job was a
good one for an employee interested in drumming up support
for a union in that it enabled the operator to move about
Mobilcraft’s facilities relatively freely; and (2) Mobilcraft
moved Deal to the sander job as punishment for his support
for the ACTWU—the job is a dirty, physically tiring one—
and because it would permit a supervisor to keep an eye on
Deal.
My conclusion is that Mobilcraft’s transfer of Deal did not
violate the Act.
B. Deal’s Job as a Forklift Operator at Mobilcraft
Deal joined Mobilcraft’s work force in 1987. He became
a forklift operator in 1989.
At all relevant times Mobilcraft had two forklift operators.
Deal was the forklift operator for plant 7. As such it was his
job to: (1) move raw materials from plant 3 to the appro-
priate locations in plant 7 and partly finished goods from
plant 8 to plant 7; (2) move finished goods from plant 7 to
plant 3; and (3) move and dump hoppers filled with scrap
materials. The job was not a simple one. To begin with,
there was the task of operating the forklift, sometimes with
its forks piled very high. Second, two or more departments
would sometimes simultaneously demand forklift services. It
was part of Deal’s job to know which forklift jobs had prior-
ity over others. Third, the job demanded considerable exper-
tise about the kinds of raw materials used by Mobilcraft and
where each kind of material was located. For example, often
the instructions to Deal were on the order of ‘‘we need 2-
250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 The quotation is from Tr. 176.
3/8 inch molding.’’ Deal had to be able to expeditiously dis-
tinguish 2-3/8 inch molding from, say, 2-5/8 inch molding.
Finally, Deal’s job required him to negotiate the forklift on
city streets that sometimes were heavily trafficked.
Everyone agrees that Deal was very good at his job.
There is no doubt that the job was a crucial one. The out-
put of plant 7 depended on the forklift placing in the plant
the various materials needed for production. Additionally
there were only a few employees whom Mobilcraft could use
to replace Deal when he was absent or late. All were busy
with jobs of their own. And none was particularly competent
at the job, in large part because efficient operation of the
forklift required constant practice.
As the description of Deal’s job indicates, his work took
him to all three of Mobilcraft’s plants and brought him into
contact with almost all of Mobilcraft’s employees. That obvi-
ously could have been very useful to Deal in his efforts to
gain adherents for the ACTWU (although there is no evi-
dence that he in fact used his job as forklift operator for that
purpose). Another facet of his job that must have been help-
ful if he did engage in organizing efforts while at work was
that he was ‘‘pretty free to come and go as he pleased’’; by
and large his supervisor (Detweiler) supervised him only via
radio.17
C. Mobilcraft’s Problems with Deal
Attendance. I earlier briefly referred to Deal’s tardiness
problems. Deal’s home was only about 5 minutes from
Mobilcraft. Nonetheless Deal had considerable difficulty get-
ting himself to work on time. That was particularly the case
starting in June 1993. His tardiness record for the months of
June through October looks like this:
Month Number ofTimes Late Hours Late
June 6 Five times less than 1 hour,
once more than 4 hours
July 2 Both times between 1 and 2
hours
August 4 Once between 1 and 2 hours,
three times for less than 1
hour
September 3 Twice between 1 and 2
hours, once for less than 1
hour
October 5 All less than 1 hour
Mobilcraft has a no-fault attendance policy. Under that
policy, employees accrue points for being absent or late. The
point system:
Less than 1 hour late 1 point
1 to 2 hours late 2 points
2 to 4 hours late 3 points
Missing more than 4
hours
4 points
Eight points results in a oral warning, 12 points in a writ-
ten warning, 16 points in a 3-day suspension, and 20 points
means discharge. Points are totaled on a rolling 90-day basis.
Deal’s tardiness problem meant that he received a number of
warnings, a 3-day suspension in early August and, as we
have seen, another 3-day suspension on November 4.
Allegations of drug dealing and murder threats. Bear
testified twice, the first time when called as a witness by the
General Counsel. The second, when called as a witness on
behalf of Mobilcraft. During his first stint on the witness
stand, the only reason Bear gave for Mobilcraft’s decision to
transfer Deal was Deal’s attendance problems. When Mobil-
craft called Bear as a witness, however, he said that he had
an additional reason for wanting to move Deal to another
job.
Bear testified that in about October (1993) employee
David Beggs told Bear that he (Beggs) had purchased co-
caine from Deal, that he had not paid Deal for the cocaine,
that Deal had threatened Beggs’ life, and that he didn’t think
that Deal’s threat was an idle one. Bear said that Mobilcraft
passed on the information to the Elkhart police force but did
not otherwise take any action against Deal on the ground that
Mobilcraft could not lawfully do so based on that hearsay in-
formation. Subsequently, according to Bear, David Beggs’
wife, Nancy Beggs (then also a Mobilcraft employee), re-
ported to Bear that Deal had spoken to her about killing her
husband and that he had made that threat, in Mobilcraft’s
parking lot, while loading a handgun.
Nothing in the record suggests that there was any reason
for Bear to dismiss what David and Nancy Beggs said about
Deal on the ground, say, that the Beggs were known to have
some sort of feud with Deal and wanted to get him fired or
that either of the Beggs were known to be liars.
Bear testified that David Beggs said that he and Deal used
the plant’s bathroom for their drug dealings—Deal didn’t
make sales while sitting in his forklift. On the other hand,
said Bear, Beggs told him that Deal sold drugs in all three
of Mobilcraft’s plants. That is significant because it was the
forklift that gave Deal a job-related reason for spending time
in all three plants.
David Beggs did not testify. Mobilcraft had discharged
him prior to the hearing. (The discharge is not alleged to
have violated the Act.) As discussed earlier, Nancy Beggs
was actively prounion during the ACTWU’s campaign and
served as one of the Union’s observers during the voting.
The General Counsel called Nancy Beggs as a witness. No
party asked her any questions about this testimony by Bear.
(Nancy Beggs had voluntarily quit her job at Mobilcraft prior
to the hearing.) The General Counsel called Deal as a wit-
ness. No party asked him any questions about drugs, hand-
guns, or threats on David Beggs’ life.
At a time not specified in the record, Deal flunked a drug
test. Deal then agreed that Mobilcraft could administer ran-
domly timed drug tests. On about February 2, 1994, Deal
flunked another drug test and Mobilcraft fired him. Deal’s
failure to pass a drug test on February 2 could not, of course,
have been a factor in Mobilcraft’s decision 3 months earlier
to transfer Deal from the forklift. But the fact that Deal
failed two drug tests does heighten the credibility of Bear’s
testimony about Deal selling drugs and threatening David
Beggs.
Notwithstanding the difference between Bear’s testimony
as a witness when called by the General Counsel and as a
witness when called by Mobilcraft, I am convinced that Bear
251PATRICK INDUSTRIES
18 Tr. 66.
19 Tr. 81.
20 The Union filed an unfair labor charge alleging that Mobilcraft’s
discipline of Deal on November 8 violated the Act. But the charge
was dismissed. See the G.C. Exh. 1(t) at 8.
21 Tr. 179. 22 Tr. 212. Accord: Tr. 214–215.
testified honestly about what the Beggs told him about Deal
and that Bear considered what the Beggs told him to be rel-
evant to the question of whether Deal should be transferred
from the forklift job.
D. The Transfer
As mentioned earlier, Mobilcraft’s attendance policy pro-
vides for a 3-day suspension whenever an employee accrues
16 points as a result of absence or tardiness. Deal’s failure
to get to work on time on Thursday, November 4, put him
over the 16-point limit. Detweiler accordingly told Deal that
he was suspended for 3 days beginning immediately.
Detweiler told Deal to report back to work on Monday, No-
vember 8. (Detweiler thus permitted Deal to count Saturday
as 1 of his 3 suspension days even though employees worked
only a half day that Saturday. Deal recognized that Detweiler
did not have to do that. She could have suspended him until
November 9.)
Detweiler (Deal’s immediate supervisor) was no longer
employed by Mobilcraft when the hearing here was held and
did not testify. But according to the testimony of Mobilcraft
Production Manager Steve Barella (Detweiler’s immediate
superior) and Bear, sometime during Deal’s 3-day suspen-
sion, Detweiler proposed that the Company reassign Deal
from the forklift to the sanding department. The discussion,
said both Barella and Bear, focused entirely on Deal’s ‘‘bad
attendance and tardiness.’’18 Both Barella and Bear agreed
with Detweiler’s proposal. Bear told Detweiler to make the
transfer. Bear testified that while he said nothing about it to
Detweiler and Barella (or to Deal), he had another reason for
agreeing with Detweiler’s proposal to transfer Deal from the
forklift—that is, the Beggs’ statements to him about Deal’s
threats and drug dealing.
As for why Mobilcraft’s management decided that it was
the sanding department to which Deal should be transferred,
Bear testified that ‘‘it was just the place that we had an
opening for George.’’19 Additionally, the record shows that
while Deal was a forklift operator, on those occasions in
which the forklift was not needed, Deal operated a sanding
machine.
Deal testified that as soon as Deal arrived at the plant on
November 8, he was called into one of the plant’s offices.
Three supervisors were there: Detweiler, Mike Wyatt, and
Joe Gregory. Detweiler handed Deal two employee warning
notices, one for attendance and one involving carelessness in
the performance of his forklift job. (Neither discipline is al-
leged to be violative of the Act. Mobilcraft does not contend
that the discipline regarding carelessness had anything to do
with Deal’s transfer from the forklift operator position.20)
According to Deal, Detweiler then told him that she was
transferring him indefinitely from his forklift operator job be-
cause of his poor attendance record, and because he ‘‘wasn’t
getting material’’ to the machine operators in plant 7 ‘‘on
time’’ (according to Deal’s testimony).21 Deal appealed the
transfer to Bear. But Bear supported Detweiler and, like
Detweiler, told Deal that the action stemmed from his poor
attendance record. (The transfer was effected that same day,
November 8.)
None of the three supervisors who participated in that
meeting with Deal testified about it. As already mentioned,
Detweiler was not employed by Mobilcraft as of the hearing.
That was also the case with Gregory. Mobilcraft did still em-
ploy Wyatt, and Mobilcraft called him as a witness. But no
one asked Wyatt about any meeting with Deal.
Deal testified, credibly, that Detweiler had never before
told him that his attendance problems resulted in materials
not getting to where they belonged on time and had never
told him that his tardiness might result in his being trans-
ferred from the forklift.
Mobilcraft routinely transfers employees from one job to
another. On the other hand, Deal was the first employee in
years—perhaps in the history of Mobilcraft—who was trans-
ferred from one job to another because of an attendance
problem. (Employee Bret Dolgos replaced Deal as the plant
7 forklift operator. A month or two later Mobilcraft removed
Dolgos from the job because of Dolgos’ poor attendance. I
do not consider that that circumstance tells us anything about
what Mobilcraft’s true reasons were for transferring Deal.)
Mobilcraft transferred Deal to the sanding department in
plant 7 (where he continued to be supervised by Detweiler).
There is no doubt that Mobilcraft could far more easily have
found someone to fill in for Deal once he moved to the sand-
ing department in the event that he was late or absent than
was the case when he was a forklift operator.
In terms of the effect of the move on Deal, one supervisor
testified that as a result of the move Deal worked inside at
all times and thus no longer had to face the inclement weath-
er that Elkhart sometimes offers. Additionally, the supervisor
testified, the demands made on forklift operators sometimes
were mentally stressful, much more so than for employees
working in the sanding department. And the transfer did not
cause Deal to lose any pay or benefits.
But working in the sanding department was dirty, noisy
work that often involved lifting, sometimes heavy lifting.
Plainly, the forklift operator job was more attractive than
sanding machine operator’s. Additionally, sanding depart-
ment personnel were within sight of Detweiler much of the
time. And Deal no longer had access during the workday to
employees in plant 3 or 8. Asked about that, Bear denied that
Mobilcraft moved Deal to the sanding department because of
the unpleasantness of the work there or because the job kept
him within Detweiler’s sight.
Deal testified that when Detweiler was in her office
(which was about half of every workday), she spent ‘‘most
of the time watching me on the sander.’’22 Since Detweiler
did not testify, this testimony by Deal about how Detweiler
spent her time stands unrebutted. Nonetheless I do not credit
it. First, no other employee testified that Deal became the
center of Detweiler’s universe after he was transferred to the
sanding department. Second, it is commonplace for an em-
ployee to be certain that he or she is the focus of a super-
visor’s attention. Third, everyone at Mobilcraft was busy
during the period at issue, especially the supervisors; it is in-
conceivable that Detweiler would forgo her other responsibil-
ities (which covered all of the manufacturing side of plant
252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 See also Objection 7: ‘‘On a number of different occasions
throughout the [Company’s] anti-union campaign the company made
continual threat[s] of loss of wages and benefits if Union representa-
tion was accepted by the employees on December 21st.’’
24 But see M. K. Morse, 302 NLRB 924, 925 (1991).
7) to keep her eye only on Deal as he operated a sanding
machine.
E. Deal’s Transfer—Conclusion
Throughout the period of concern to us, Mobilcraft’s cus-
tomers were making exceedingly heavy demands on
Mobilcraft’s resources. Mobilcraft depended on its two fork-
lift drivers to position the materials its machine operators
needed to fashion the cabinet doors that those customers
were in such a hurry to get. Under these circumstances it
was reasonable for the Company to want as a forklift opera-
tor an employee who could be counted on to consistently get
to work on time. Deal, plainly, was not such an employee.
As for the choice of sander operator as the job to which
Deal was transferred, Mobilcraft’s production areas are
noisy, gritty, places to work. Many, if not most, of Mobil-
craft’s production employees have noisy or dust-laden or po-
tentially hazardous or physically tiring jobs or, even more
likely, jobs that combine two or more of these unpleasant
qualities. (I note, in this connection, that when Deal first be-
came an employee of Mobilcraft, he was assigned to a
‘‘gang rip saw.’’) And virtually all are closely supervised. I
accordingly find nothing suspicious about Mobilcraft’s deci-
sion to place Deal in a job that involved noise, sawdust, lift-
ing, and close supervision.
Further, I think it clear that David and Nancy Beggs did
in fact tell Bear what he testified they told him about Deal’s
threats and connection with drug dealing. I also think it clear
that Bear believed what they told him. (I make no finding
about the accuracy of what the Beggs told Bear. My finding
concerns only Bear’s state of mind.) In that regard, the
ACTWU and the General Counsel stress the fact that the
forklift job was an attractive one for a union activist since
it gave the operator unique access to employees in all three
plants without close supervision. These same attributes, of
course, made the forklift operator position ideal for an em-
ployee who sold illegal drugs to his fellow employees.
But the question that perplexes me is why Mobilcraft wait-
ed until November 8—which is less than 2 weeks after
Mobilcraft’s management first learned of the Union’s cam-
paign—to transfer Deal out of the forklift position. Deal’s
tardiness record was terrible in June, then again in August,
less bad in September but still not good (he was late on 3
days), and then terrible again in October. How is it that
Detweiler did not propose transferring Deal out of the forklift
position in June, August, or October?
Mobilcraft has not answered that question. That nec-
essarily presents the possibility that Mobilcraft’s management
did not in fact think that it was particularly important for the
Company’s forklift operators to get to work on time and that
Bear did not in fact care very much about the Beggs’ allega-
tions about Deal. And that, in turn, presents the further possi-
bility that there was a causal as well as chronological con-
nection between the beginning of the union campaign and
Mobilcraft’s transfer of Deal.
On the other hand, I find nothing in the record proving
that Mobilcraft’s management harbored such animus toward
union activists that its supervisors would be willing to base
personnel decisions on employees’ union activities. (As for
Bear’s asking another supervisor why Deal supported the
Union, I consider the question innocuous.)
Further, we are here concerned with an employee whom
the Company’s general manager believed to be selling illegal
drugs, to have brought a handgun to the plant, and to have
twice threatened the life of another employee. In these cir-
cumstances I am unwilling to find, based merely on timing,
that Mobilcraft violated the Act in any respect when it trans-
ferred Deal out of a position that was as well suited for drug
dealing as it was for promotion of the Union.
I accordingly shall recommend dismissal of the com-
plaint’s allegation concerning Deal.
V. MOBILCRAFT’S ANTIUNION CAMPAIGN
COMMUNICATIONS
The General Counsel (supported by the ACTWU) alleges
that on November 2 and 18 and on December 15 and 17
Mobilcraft communicated to employees in ways that inter-
fered with, restrained, and coerced the employees in the exer-
cise of their Section 7 rights. This part of this decision deals
with these allegations.23
A. Steven Like’s Reference to Russ Adams
As previously discussed, employee Russ Adams was the
first Mobilcraft employee to meet with the ACTWU, and
Adams acted as spokesman for the employee organizing
committee when it met with Bear on October 27. Adams ac-
tively sought support for the Union among his fellow em-
ployees.
Mobilcraft had also employed Adams’ sister, Michelle, but
the Company fired her in early October (1993); that is, a few
weeks before Adams first met with the ACTWU.
Steven Like is an attorney for and an agent of Mobilcraft.
On November 2 he gave two speeches to employees; one in
plant 8, one in plant 7. The speeches were intended to dis-
suade the employees from supporting the Union. The General
Counsel contends that Like’s speeches violated the Act in
only one respect. That is, in Like’s speech in plant 8, Like
said something on the order of: ‘‘Probably the reason that
Russ Adams brought in the Union is that he’s pissed off be-
cause his sister was fired.’’
The complaint alleges that, by that remark, ‘‘Mobilcraft
unwarrantedly criticized its employees who supported the
Union and held them up to ridicule in front of other employ-
ees because of their union activities and in order to dissuade
other employees from supporting the Union,’’ thereby violat-
ing Section 8(a)(1).
I will recommend that the Board dismiss this allegation.
Under some circumstances an employer violates the Act if
the employer refers to union supporters in ways that indicate
that the employer considers them to be unsuitable as employ-
ees. See Dlubak Corp., 307 NLRB 1138 (1992), enfd. mem.
144 LRRM 2936 (3d Cir. 1993); Animal Humane Society of
South Jersey, 287 NLRB 50 (1987).24
But Like’s reference to Adams in no way suggested that
the Company was considering taking any action against
Adams. Adams led the way in bringing the ACTWU to
Mobilcraft, and Like’s speculation about Adams’ motivation
253PATRICK INDUSTRIES
for doing so was plainly an expression of views within the
scope of Section 8(c) of the Act.
Like’s speech to employees occurred on the same day that
Mobilcraft unlawfully disciplined Adams in connection with
his efforts to have Ebling sign an authorization card. I have
considered whether that disciplinary action somehow made
Like’s reference to Adams more threatening. My conclusion
is that it did not. But as noted earlier, and as will be dis-
cussed below, Like’s mention of Adams is relevant to the
issue of whether a new election should be ordered.
B. The November 18 Speech to Employees
On November 18 Tom Baer (Patrick’s vice president of
operations) and Tim Bear (Mobilcraft’s general manager)
jointly gave speeches to all of Mobilcraft’s bargaining unit
personnel, reading from a prepared text. (The text indicated
when Baer was to speak, and when Bear was to.) The pre-
pared text is more than eight double-spaced pages long. The
following quotation includes all those portions of the text
that the General Counsel and/or the Union argue violate the
Act. (All indicated emphasis is in the original.)
Union representatives . . . can make big claims
about all the union can supposedly do for you—but,
union organizers seldom talk about what a union can do
to you. If you make the mistake of letting this union
in our operation, then the union would win the right to
bargain—but nothing more!!
It is true that this right to bargain also includes the
right to make all kinds of demands on the Company—
but the law is perfectly clear that—in bargaining—
Mobilcraft is not required to agree to any union de-
mand which the Company feels is not in its best inter-
est, the best interest of our customers, or the best inter-
est of all our employees. There is no law which says
that a company has to do what a union says do and
there is no law which requires a company to give in to
a union’s demands . . . .
Let me repeat . . . the Company does not have to
agree to any particular demand—or agree to any par-
ticular union proposal—and the Company does not
have to agree to sign the union’s contract. The law spe-
cifically says that a company, in good faith, can refuse
to make any economic concessions to a union. . . .
. . . .
Some employees have the mistaken belief that if the
union were to win an election and get in here, you
would automatically get more and your work would be
easier . . . . Let’s set the record straight—if the
ACTWU wins an election here, the only thing that will
automatically happen is that we will sit down with the
union and bargain with them over your pay, your bene-
fits, and your working conditions. The Company would
bargain in good faith, but we would have the absolute
legal right to say ‘‘NO’’ to any union demand that the
Company did not feel was in the best interest of the
Company.
The ACTWU is a large union whose headquarters
are in New York City. As its name, the Amalgamated
Clothing & Textile Worker’s Union, indicates, the ma-
jority of the ACTWU’s membership works in the tex-
tile industry . . . . A large percentage of their member-
ship is based where the textile industry is located, that
is, in the South. As you all probably know, the stronger
unions in the Midwest are the Teamsters and the UAW.
. . . If you chose the ACTWU as your bargaining rep-
resentative, you are choosing a union that is, at least
here in Elkhart, a weak unheard of union. This union
can’t force the Company to do anything.
. . . .
I hope you now all understand that under the law,
there is no guarantee that your pay would go up, your
benefits would improve, or that there would be any
change in any of our policies or practices with a union.
Not only is there no guarantee that you would get more
or that anything would change for the better—there is
no guarantee that your pay and benefits would stay the
same. In fact, there is always the danger that they could
go down or be reduced!! A lot of people have the mis-
taken belief that having a union always means more
money and better benefits and easier work. But under
the law, there is always a possibility that you could lose
some benefits which you already have, or your pay
could be reduced, or work rules could become tougher
after bargaining. Everything would be up for grabs, and
absolutely no one knows what would happen in bar-
gaining or what would come out of the bargaining. . . .
[Referring to a case in which bargaining led to a pay
cut and in which the union sought help from the
Board], the Labor Board said that the company’s ac-
tions in cutting the employees’ pay was legal because
the company had lived up to its obligation by bargain-
ing in good faith with the union . . . .
Patrick Industries . . . has always attempted to main-
tain equal or better wages for its non-union employees.
Your advantages over unionized shop[s] at Patrick are
no accident. Patrick has succeeded in maintaining ad-
vantages for its non-union workers in the past and we
expect to be successful in that into the future.
Now Patrick does not want to cut your wages or
benefits. It has always been our policy to maintain the
highest wages and benefits possible while still remain-
ing competitive and we expect to continue that policy.
But it is a well-known fact that unions have traded
away something important to employees in exchange
for something the union itself wants in a contract. Bar-
gaining is a give and take proposition. The Company
trades something it wants, like lower wages or benefits,
for something the union wants, like closed shop or dues
check-off.
The General Counsel and the Union argue that the Novem-
ber 18 speech violated Section 8(a)(1) in a number of re-
spects. Namely: (1) the speech allegedly asserted that it
would be futile for the employees to unionize because union-
ization would ‘‘at best, result in the maintenance of existing
wages and benefit levels . . . .’’ (G.C. Br. at 6); (2) the
speech warns employees that if they vote for representation
by the Act, ‘‘they risk losing wages and benefits . . . .’’
(id.); (3) the speech ‘‘denigrates’’ the ACTWU (id. at 7); and
(4) the speech, in its reference to Patrick Industries’
‘‘attempt[ ] to maintain equal or better wages for its non-
union employees,’’ amounts to a statement that the Company
254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 See also Hertz Corp., 316 NLRB 672 (1995).
will not bargain in good faith with the Union (Union Br. at
9).
But as I read the November 18 speech, it has none of
those faults. Certainly an attack on the ACTWU as ‘‘weak’’
is within the scope of Section 8(c). And saying that the
Company attempts to provide equal or better wages for non-
union employees is not a refusal-to-bargain threat, particu-
larly where the speech specifically promises that the Com-
pany will bargain in good faith.
As for the speech’s other alleged faults, here, as in the
communication at issue in Custom Window Extrusions, 314
NLRB 850, 851 (1994)—
taken as a whole, the Respondent’s [speech] indicates
that the Respondent will participate in the bargaining
process even without the pressure of a strike and that
results of the process could be dictated by tradeoffs
agreed to by the parties. Such a description of the bar-
gaining process, albeit skewed in the service of the Re-
spondent’s campaign effort to encourage votes against
the Union, is an expression of opinion protected by
Section 8(c) of the Act and therefore is not a violation
of Section 8(a)(1).25
C. The December 15 Speech
As was the case with the November 18 speech, the De-
cember 15 speech was read from a prepared text, this time
by Bear alone. According to the General Counsel and the
ACTWU, the speech: (1) threatened employees that a strike
would be inevitable if the employees voted in the ACTWU;
(2) threatened employees with the loss of their jobs if they
became economic strikers; and (3) asserted that it would be
futile for the employees to gain union representation.
The text of the speech is as follows (excluding the parts
of the speech that are not at issue; emphasis in the original):
The first point I’d like to make is that the only thing
that will automatically happen if the Union were to win
the election on December 21 is that we would sit down
with the union at the bargaining table and negotiate in
good faith over your pay, benefits and other terms and
conditions of employment. No one knows what would
come out of that bargaining. The reason that no one
knows what will happen is because both parties, the
union and the company, would have to agree to each
and every proposal or demand put forth by the other
party before it would go into any contract. We don’t
know what demands or proposals the union has in
mind, but the company would have an absolute legal
right to reject any proposal or demand that the com-
pany did not feel was in its best interests. Don’t mis-
understand me, the company would bargain in good
faith, but the law would not require the company to
give in to any particular union demand or proposal and
the company could say ‘‘NO.’’
The second point I’d like to mention is that if the
company said no to a union proposal or demand, the
only thing the union could do to try to force the com-
pany to give in would be to call you, the employees,
out on strike. A strike would be devastating to the com-
pany and the strike could be devastating to you.
You should all know what can happen during a
strike. . . . [E]conomic strikers can be PERMANENT-
LY REPLACED and if a striker is permanently re-
placed, the replaced striker runs a high risk of losing
his or her job.
Let me explain permanent replacement. The com-
pany has the legal right to replace strikers with new
workers in order to continue operating. If the ACTWU
called a strike against Mobilcraft, it would probably be
Mobilcraft’s intent to hire in permanent replacement
employees to replace the strikers. And, if that hap-
pened, all of you who went out on strike would run the
very real risk of having to look for new jobs if yours
here at Mobilcraft were filled.
Let me emphasize that Mobilcraft intends to continue
servicing its customers, union or no union, strike or no
strike. If the company has to bring employees in here
to take the place of every striker in order to keep oper-
ating, the company will do it.
[At this point, the speech refers to another compa-
ny’s announced plant closing in a nearby city, purport-
edly resulting from a union’s demands, and to a strike
at another company in Elkhart.]
Now the union is going to tell you that those are dif-
ferent unions and different situations. The fact remains,
however, that the union’s only weapon to enforce its
demands is a strike. . . . They will say that they don’t
strike often. Well, the ACTWU has had over 8,200 of
its employees [sic] go out on strike in the last four
years. In each of these situations, anguish, violence,
tension, poverty and lost jobs were possibilities. Don’t
let them fool you into thinking that they never go on
strike. They do, and they could go on strike here. Don’t
let it happen.
For the reasons stated concerning the November 18
speech, the December 15 speech by no means amounts to an
assertion that unionization would be futile. Nor does the
speech claim that a strike would be inevitable. A strike
would occur, according to the speech, only if the Company,
after bargaining in good faith, rejected a union proposal and
the Union then sought to force Mobilcraft to agree to it.
The more difficult question is whether, in the speech,
Mobilcraft improperly threatened the employees with the loss
of their jobs if they became economic strikers.
One point of concern is that the speech nowhere refers to
strikers’ reinstatement rights. But an ‘‘incomplete statement’’
by an employer ‘‘of economic strikers’ Laidlaw rights’’ is
not necessarily unlawful. John W. Galbreath & Co., 288
NLRB 876, 877 (1988). And the speech under consideration
here makes it plain that, even if Mobilcraft did obtain re-
placement employees, the permanently replaced economic
strikers might not lose their jobs and that striking employees
who are permanently replaced are not thereby discharged.
Additionally, according to the speech—
Mobilcraft intends to continue servicing its customers
. . . strike or no strike. If the company has to bring
employees in here to take the place of every striker in
order to keep operating, the company will do it.
255PATRICK INDUSTRIES
26 G.C. Exh. 9.
27 During the campaign, Mobilcraft told its employees that: ‘‘Pat-
rick’s insurance is the same for all its plants, even those represented
by strong unions . . . . Everyone in the company, top to bottom,
has the exact same insurance coverage. If strong unions . . . could
not change their members’ insurance coverage, it is highly unlikely
that this union would be able to change yours either.’’ (G.C. Exh.
10; emphasis in the original.) The ACTWU, but not the General
Counsel, attacks that message as unlawful. My conclusion is that
Mobilcraft could properly present that argument.
That, plainly enough, is a threat: If there is a strike,
Mobilcraft will keep operating, using replacement workers to
do so. As the Union points out, moreover, there is no evi-
dence that Mobilcraft’s (or Patrick Industry’s) management
had in fact decided to continue to operate during a strike.
But Mobilcraft has the right to continue to operate during
a strike, using replacement employees to do so. As for
Mobilcraft’s stated intention to operate during a strike, the
record shows that, given the nature of the relationship be-
tween Mobilcraft and its customers, a temporary shutdown of
Mobilcraft’s facilities, whether stemming from a strike or
any other reason, would be exceedingly costly for Mobilcraft
in terms of lost business.
I conclude that nothing in the December 15 speech vio-
lated the Act in any respect.
D. The December 17 Letter to Employees
On or about December 17, Mobilcraft’s management sent
a letter to each of the Company’s bargaining unit employees
noting that ‘‘the union election is a just a couple of days
away now’’ and urging the employee to ‘‘vote NO for the
ACTWU to represent you.’’ The letter lists nine reasons
why, the Company claimed, the employee should vote
against union representation. Seven are either innocuous or
are comparable to language in the already discussed Novem-
ber 18 and December 15 speeches. The remaining two are
worth some attention here. They read—
1. Your wages and benefits are higher than other
unionized facilities at Patrick. You have previously
been provided with comparisons to those facilities. . . .
You can guarantee that you will remain higher only if
you vote NO to the Textile Workers.
. . . .
8. Mobilcraft will operate better for the company and
the employees without a union. The company can pay
higher wages and better benefits if it is non-union. It
will not have the extremely high costs of negotiating
union contracts or dealing with silly union policies.26
The complaint alleges that the December 17 letter, inter
alia, ‘‘informed employees that it would be futile for them
to select the Union because contract negotiations would re-
sult in a loss of economic benefits’’ and ‘‘impliedly prom-
ised employees increased wages and benefits if the employ-
ees did not select the Union as their bargaining representa-
tive.’’
My conclusion is that, as reasonably read, the letter has
both these defects and thus violates Section 8(a)(1).
Recall that in the November 18 speech, Mobilcraft super-
visors spoke of Mobilcraft’s past attempts to maintain the
differential between wages in Patrick’s nonunion plants and
those in its unionized plants and management’s expectation
that that relationship will continue. Also in that speech man-
agement referred to the fact that, because of the bargaining
process, there could be ‘‘no guarantee’’ that wages would
improve if the employees voted for union representation; in
fact, the Union could not even guarantee that wages would
not diminish.
Paragraph 1 of the December 17 letter, by contrast, can
reasonably be read as management’s ‘‘guaranteeing’’ that
wages at Mobilcraft would be higher without a union in
place than if the employees voted in favor of union represen-
tation. Gone is the ‘‘attempt’’ and ‘‘expectation’’ language.
Gone is the explanation (in the context of discussing why the
ACTWU’s promises should be disregarded) that no one can
guarantee what will flow from bargaining. Here management
guarantees a differential in wages and benefits favoring em-
ployees who are not represented by a union. That, surely, is
either a promise of a benefit for voting against unionization
or a threat that employee remuneration would decline if the
employees opted for union representation. I find, in fact, that
it was both a promise and a threat.
As for paragraph 8 of the letter, standing alone it would
merely represent the expression of a point of view that was
within the scope of Section 8(c). But given the earlier man-
agement ‘‘guarantee,’’ the second sentence of paragraph 8—
‘‘The company can pay higher wages and better benefits if
it is non-union’’—emphasizes that Mobilcraft’s employees
could count on management ensuring that the employees’
wages and benefits would be better if the employees voted
against union representation than if they voted for it.27
VI. UNION OBJECTIONS
The ACTWU objected on numerous grounds to conduct
that, the Union claims, affected the results of the election. A
number of the objections are identical to the General Coun-
sel’s unfair labor practice allegations (as indicated above).
But eight objections have no counterpart in the General
Counsel’s consolidated complaint.
A. The ‘‘Gauntlet’’
One of the ACTWU’s objections is that—
On December 21, 1993, employees were forced to
walk through a gauntlet of management persons (plant
manager, supervisor and other members of manage-
ment) as they were entering the polling area during vot-
ing times.
December 21, of course, was the day of the election. The
objection refers to circumstances during the first shift in
plant 8.
The polling place for Mobilcraft’s plant 8 employees was
in the plant 8 breakroom. One door provides access between
the breakroom and the factory floor. The voting booth was
on the far side of the breakroom from that door—37 feet
from the door.
In plant 8 the first-shift employees voted between 1:30 and
2:10 p.m. The plant’s employees were divided into four
groups of between 8 and 13 employees, and each group was
allotted a specified 10-minute period between 1:30 and 2:10
256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
p.m. to vote. At the designated time, employees walked from
their work locations to the breakroom, then waited inside the
breakroom for their turns to vote. On completion of their
voting, they retraced their steps back to their work stations.
The factory floor in plant 8 is divided roughly into two
halves by a wall that has one large opening in it. The normal
path from the various work locations in plant 8 to the
breakroom is either through or next to that opening in that
wall. As a separate matter, in order to be able to view the
maximum amount of the factory floor, one needs to stand in
or next to that opening in the wall. Supervisors routinely sta-
tion themselves there for brief periods.
As touched on earlier, Mobilcraft’s production rates were
exceedingly high in the autumn of 1993, with customers
pressing Mobilcraft’s management for deliveries. That cir-
cumstance obtained as well on December 21. One customer
in particular telephoned Bear about an overdue shipment.
Bear knew that one machine used in the manufacture of
those doors—a ‘‘foiler’’—was operating erratically. The
foiler was in plant 8. As it happens, the foiler is a few feet
from the above-described opening in the wall separating the
two halves of the factory floor. The foiler is about 35 feet
from the door to the breakroom.
Shortly before 2 p.m. Bear entered plant 8 and made his
way to the foiler. Michael Wyatt (the supervisor who dis-
ciplined Russ Adams) was the plant 8 supervisor. He joined
Bear at the foiler, either because Bear motioned him to come
over or because Wyatt would naturally want to know why
the Company’s general manager was in plant 8. (Bear’s of-
fice is in plant 7.) Steve Berella is Mobilcraft’s production
manager. His office is in plant 8. Bear motioned Berella to
join him at the recalcitrant foiler.
Thus at about 1:50 or 2 p.m., in the midst of the period
allotted for voting, a group consisting of the general man-
ager, the production manager, and the plant 8 supervisor
were gathered at a location within a few feet of the route
taken by most of plant 8’s employees as they went to vote,
35 feet from the breakroom, and 72 feet from the voting
booth (inside the breakroom).
The three supervisors stayed at that location for at least 20
minutes. Thus they were there past 2:10 p.m., when the vot-
ing ended. It is unusual for three supervisors to stand in one
spot on the factory floor of any of Mobilcraft’s facilities for
20 minutes. But the evidence shows that Bear, Wyatt, and
Berella were there for reasons unrelated to the voting. Some
of the time the three discussed the foiler and production out-
put. The rest of the time they discussed a broken air com-
pressor. (The compressor was in plant 3, not plant 8; but the
air compressor was crucial to Mobilcraft’s operations, and
the mechanic working on the compressor came over to plant
8 to speak to Bear about it.)
During those 20 minutes or so, one employee spoke a few
words to Wyatt (a brief reference to the time during which
the voting was conducted). Otherwise none of the three
spoke to any employee. And nothing about the demeanor of
the three supervisors was threatening. There is a small win-
dow in the breakroom door. One employee testified that the
three supervisors stared at that window, but I do not credit
that testimony. Two employees testified (credibly) that,
standing inside the breakroom, they could see Wyatt (but not
Bear or Berella) through that window.
Plainly it was insensitive of the three supervisors to spend
so much time next to the route the plant 8 employees took
to the polling area. The supervisors knew that the voting was
occurring. And they could readily have held their conversa-
tion in a nearby office in plant 8. But supervisory sensitivity
about the election process is not the test for whether conduct
is objectionable.
Had the supervisors engaged the employees in lengthy
conversation as the employees made their way to the polling
area, or if the supervisors’ purpose in standing near the foiler
was to convey to the employees that they were being
watched, or, perhaps, if the supervisors had been standing
immediately next to the door to the breakroom, the
ACTWU’s objection might well be a valid one. See Electric
Hose & Rubber Co., 262 NLRB 186 (1982); Michem, Inc.,
170 NLRB 362 (1968).
But the supervisors were at the foiler for work-related rea-
sons, they did not converse with the employees, they were
a reasonable distance from the breakroom, and nothing about
their behavior was intimidating. I conclude that their conduct
was unobjectionable. Roney Plaza Management Corp., 310
NLRB 441, 447 (1993); Standard Products Co., 281 NLRB
141, 163–164 (1986); B.E. & K, Inc., 252 NLRB 256, 267–
268 (1980); American Induction Heating Corp., 221 NLRB
180 (1975).
B. Did Supervisors Peer into the Polling Area
in Plant 8
The Union’s objection 2 reads:
On December 21, members of management were ob-
serving the voting process through an open window
into the polling area and were visible to voters as they
waited to vote during voting times.
To a considerable extent the facts relevant to this objection
have already been discussed in connection with the Union’s
‘‘gauntlet’’ objection.
As noted above, small groups of employees who were
waiting to vote at plant 8 gathered in the breakroom, where
the voting booth was also located. The window in the
breakroom door in plant 8 is a relatively small one, about
18 inches by 12 inches. One supervisor, Wyatt, who was
standing near the foiler on the factory floor about 35 feet
from the breakroom, could be seen through that window
while the voting was in progress. But Wyatt was busy with
business unrelated to the voting. No supervisor tried to look
into the breakroom through the window.
I conclude that Objection 2 is without merit.
C. Did Members of Mobilcraft’s Management
Enter Polling Areas
According to the ACTWU’s Objection 3, Mobilcraft’s—
plant manager, [a] supervisor and [another] member of
management entered the polling area while employees
were waiting to vote, during voting times.
The objection relates to the behavior of Wyatt, Bear, and
Nick Delorenzo.
Wyatt. The ACTWU’s observer at the plant 8 polling
place, Jonathan Woodruff, testified that near the end of the
257PATRICK INDUSTRIES
first shift’s voting period Wyatt entered the plant 8
breakroom, asked a question of the Board agent, and left.
The only members of the bargaining unit in the room were
the two observers who had already voted. Wyatt testified that
he did not enter the breakroom during the voting times. The
testimony of Woodruff and Wyatt was equally credible.
Since the Union has the burden of proof, I am unable to find
that Wyatt entered the polling area during voting times.
Bear. Only one bargaining unit employee worked in plant
8 during the second shift. One 10-minute period was speci-
fied for that employee to vote: from 4:30 to 4:40 p.m. (in
the plant 8 breakroom). Other employees could use that pe-
riod to vote if, for some reason, they had not voted during
the time specified for them. One voting period was scheduled
after 4:40—the voting period for plant 7’s second-shift em-
ployees. That was set for 5:30 to 5:40 p.m.
Sometime between 4:30 and 4:40 p.m., but after the one
second-shift bargaining unit employee in plant 8 had voted,
Bear entered the plant 8 breakroom. He knew that the solo
employee had voted. Three persons were in the room at the
time: the two employee observers and the Board agent. (As
previously indicated, the two observers had already voted.)
Bear said ‘‘hello’’ to the two observers and then proposed
to the Board agent that the second-shift voting in plant 7 be
moved up in time. The Board agent turned down that notion,
saying that she would adhere to the previously agreed-upon
schedule.
Bear’s conduct could not have affected the election in any
way. See Roney Plaza Management Corp., 310 NLRB 441,
448 (1993); Pizza Crust Co., 286 NLRB 490, 508–509
(1987).
Nick Delorenzo. As of December 1993 Nick Delorenzo
was head of quality control for Mobilcraft. The record shows
that he was not a supervisor. On the other hand, when
Delorenzo found defects in an employee’s output he often re-
ported that to the employee’s supervisor. For some purposes,
then, Delorenzo was an agent of Mobilcraft.
Employees assigned to plant 7 voted in the breakroom at-
tached to that plant. During plant 7’s first-shift voting period,
at a time when there were about six bargaining unit members
in the room, Delorenzo entered the plant 7 breakroom
through one door, stood there for a few seconds, then exited
the room through another door without saying a word to any-
one. He was in the breakroom for less than 1 minute.
The record provides no basis for finding that Delorenzo
was an agent of Mobilcraft for any purpose other than report-
ing defective output to management. In any event, Delorenzo
was in the breakroom for only a very brief period and, dur-
ing that period, said nothing. I conclude that Delorenzo’s
conduct could not have affected the results of the election.
For the reasons discussed above, I shall recommend that
Objection 3 be dismissed.
D. Was the Polling Area in Plant 7 in ‘‘Open
View’’ of Management
Plant 7 has a factory area, a breakroom, a paint shop, an
area that I will call the clerical area where Mobilcraft’s three
clerical employees work, and three offices (including Bear’s)
that open onto the clerical area.
As previously noted, employees whose work stations were
in plant 7 voted in the plant 7 breakroom. There are three
doors into the breakroom. One from the factory floor; one
from the paint shop; and one from the clerical area.
The door between the breakroom and the clerical area was
closed throughout the voting except on two occasions. (The
door was left open one time as a result of Delorenzo’s pas-
sage through the breakroom; the record does not disclose
why the door was opened a second time.) On one of those
occasions, Nancy Beggs, who was the ACTWU’s observer
during the voting in the plant 7 breakroom, closed the door.
On the other, Bear, who was passing through the clerical
area with two Mobilcraft attorneys, shut the door after being
told to do so by the Board agent.
The record fails to indicate that any employee in the
breakroom saw anyone in the clerical area during the voting
period.
The Union, in its Objection 4, contends that ‘‘the polling
area [in plant 7] was in open view of members of manage-
ment and office personnel during voting times.’’ But the two
occasions of the door to the clerical area being open during
voting times could not have affected the results of the elec-
tion. I shall recommend that this objection be dismissed.
E. Alleged Misbehavior by the Company’s Observer
The ACTWU’s Objection 5 reads: ‘‘the [C]ompany’s ob-
server [in plant 8] continually engaged persons voting in
conversation, while this privilege was not extended to the
Union’s observer.’’
Mobilcraft chose bargaining unit employee Kerry Kelver
to be its observer at the polling in plant 8. Unit member Jon-
athan Woodruff was the Union’s observer. The Board agent
instructed both Kelver and Woodruff that they should not
talk to employees coming in to vote, not even to respond to
a ‘‘hello.’’
Initially both Kelver and Woodruff nonetheless did say
‘‘hi’’ back to any employee who greeted them. Kelver went
farther, sometimes saying something on the order of ‘‘how
are you doing’’ or ‘‘hi’’ to employees entering the break-
room to vote even if the employee had said nothing, and
sometimes telling employees to hurry (toward the voting
booth or to leave the breakroom when done).
The Board agent on one occasion admonished both ob-
servers not to say anything to the employees, and on a sec-
ond occasion repeated to Kelver that he was to say nothing
to employees coming to vote. Kelver, however, continued to
say ‘‘hi’’ back to employees who greeted him. Additionally,
Kelver used arm signals to urge the employees to proceed to
the voting both and to leave the breakroom when they had
completed voting.
It is clear that Kelver communicated to employees coming
in to vote considerably more frequently than did Woodruff.
At no time did Kelver (or Woodruff) electioneer or other-
wise say anything about the ACTWU or unionization. (Dur-
ing moments when no voters were in the room, Kelver and
Woodruff conversed with each other about routine, day-to-
day, matters and with the Board agent. But the ACTWU
does not object to that behavior.)
I conclude that Kelver’s conduct could not have affected
the results of the election.
Michem, Inc., 170 NLRB 362 (1968), makes it plain that
agents of a union or an employer are not to engage in ‘‘pro-
longed conversations’’ with employees waiting to vote, even
about matters unrelated to the election. But exchanges on the
258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
28 Mobilcraft contends that Kelver, as an observer, was not its
agent and that, accordingly, even had Kelver engaged in the kind of
sustained conversation to which Michem refers, that would be no
basis for ordering a second election. I need not and do not reach
that contention.
order of ‘‘hi, how’re things going’’ are not the kinds of com-
munications that concerned the Board in Michem. I shall rec-
ommend that Objection 5 be dismissed.28
F. Mobilcraft’s Distribution of a Leaflet on
Election Day
The ACTWU’s Objection 6 alleges that ‘‘the company
handed out threatening leaflets in near proximity to the poll-
ing area during voting times.’’
On the day of the election, in plant 8, beginning at about
11:50 a.m., a Mobilcraft agent acting on behalf of Mobilcraft
handed out copies of an antiunion campaign leaflet to the
hourly employees in plant 8. (There is no serious issue about
the language of the leaflet; it plainly was lawful.) The dis-
tribution of the leaflet was completed a few minutes before
noon or, perhaps, as late as a few minutes after noon. As
previously discussed, voting began in plant 8 at 1:30 p.m.
Plant 7 is about a block from plant 8. Voting in plant 7
began at noon.
An employer (or a union) may distribute campaign lit-
erature ‘‘at any time prior to an election.’’ Peerless Plywood,
107 NLRB at 427, 430 (1953).
In light of Peerless Plywood I conclude, for two reasons,
that the distribution of the leaflet was unobjectionable. First,
even assuming that distribution occurred as late as noon, that
was well before the polls opened in plant 8, the facility in
which the distribution occurred. It is true that the polls in
plant 7 opened at noon. But plants 7 and 8 are a block apart,
and there was no showing that any employee assigned to
plant 7 ever saw any of the leaflets that were distributed in
plant 8. Second, it was up to the ACTWU to show that the
leaflet was still being distributed when the polls opened. And
as indicated above, as far as the record here is concerned it
is as likely that distribution of the leaflet was completed
prior to noon as it is that the distribution extended beyond
noon.
G. Did Mobilcraft tell its Employees that the NLRB was
the Source of an Antiunion Video
According to the ACTWU’s Objection 8, ‘‘during the
Company’s anti-Union campaign the company misrepre-
sented the NLRB by claiming that an anti-Union video had
been created and distributed by the NLRB.’’
Agents of the Company showed a number of antiunion
videos at mandatory employee meetings. After one of the
video showings, an employee asked where the Company had
obtained it. According to several employee witnesses called
by the ACTWU, a Mobilcraft agent responded that the Com-
pany had gotten the video from the NLRB. (Everyone agrees
that Mobilcraft did not in fact obtain the video from the
NLRB.) But Mobilcraft’s witnesses denied ever saying any-
thing like that. I credit Mobilcraft’s witnesses, not the
Union’s, and will recommend that Objection 8 be dismissed.
H. The Lottery that Mobilcraft Conducted
Among its Employees
On November 29, Mobilcraft distributed the following
message to each of its unit employees (emphasis in the origi-
nal):
WIN 260 LOTTERY TICKETS
Mobilcraft will give one employee 260 Hoosier lot-
tery tickets if that employee can guess the total amount
ACTWU spent during 1991 and 1992 on behalf of its
individual members (such as you will be if you vote the
union in).
HINT: During that period, the ACTWU paid a total of
$117,698,045.00, and paid its officers and em-
ployees a total of $22,064,649.00. Yes, that’s
right, the union spent over One Hundred Seven-
teen Million Dollars ($117,000,000.00) in two
years.
To qualify to win the 260 lottery tickets, all you
have to do is tear off the entry blank below, write in
the amount you think the ACTWU spent on behalf of
its individual rank and file members during 1991 and
1992, and give your entry to your supervisor. The win-
ner will be judged on the basis of the entry coming
closest to the total amount the ACTWU spent on its in-
dividual members during this period. In case of a tie,
the winnings will be evenly divided. Each employee
may make only one entry. . . . The winner will be an-
nounced on Friday, December 3, 1993.
By the way, the $260.00 is the amount you will pay
each year in ACTWU union dues if you vote the union
in. . . .
lllllllllllllllllllllll
TOTAL AMOUNT SPENT ON
BEHALF OF INDIVIDUAL
MEMBERS
$lllllll
The Company’s position was that ACTWU spent nothing
at all—$0—on ‘‘individual rank and file members.’’ Forty
employees submitted that figure and accordingly shared the
260 lottery tickets. (Each of the winners received six or
seven tickets.)
State of Indiana lottery tickets cost $1 each. The highest
amount a lottery ticket can win is $3000. The lottery tickets
are the kind that provide for an ‘‘instant’’ determination of
winnings (if any). Lottery ticket holders simply scratch the
coating off the ticket to see if they have won. Winnings can
be collected from any one of numerous retail establishments
throughout the State.
The luckiest Mobilcraft employee won $57 with her six or
seven tickets. Another employee won $7. The record does
not specify whether any of the other 38 raffle winners won
any money in the state lottery.
The Union contends that, in conducting the raffle, the
Company distributed lottery tickets worth up to $780,000
(260 tickets times $3000 maximum lottery prize). But in fact
the tickets were worth only their fair market value: $1 each,
$260 for the entire batch of 260.
259PATRICK INDUSTRIES
29 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.
30 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.’’
While the matter is not free from doubt, I conclude that
the raffle could not have affected the results of the election.
There are two aspects of the raffle that concern me. One
is that the Company described the raffle in a way that could
lead an employee to believe that 1 employee could win all
260 tickets—that is, a raffle prize worth $260. Second, out
of any group of 150 or so employees (the size of
Mobilcraft’s unit) there will be some for whom gambling is
addictive. Employees in that category might well focus on a
lottery to the exclusion of the more important issues raised
by the election process.
But the Board has made it clear that employers may law-
fully hold raffles for bargaining unit employees related to the
representation election process. E.g., Sony Corp. of America,
313 NLRB 420 (1993). As for the possibility of 1 employee
winning all 260 tickets, anyone reasonably contemplating the
nature of Mobilcraft’s raffle would recognize that there sure-
ly would be a number of winners.
Additionally: (1) the outcome of the raffle was determined
relatively long before the December 21 election—raffle win-
ners received their lottery tickets on December 3, 18 days
before the election; (2) ‘‘the circumstances surrounding the
raffle’’ could not have ‘‘provided the employer with the
means of determining how and whether employees voted’’
(Sony, supra, quoting Grove Valve & Regulator Co., 262
NLRB 285, 303 (1982)); (3) participation in the raffle was
not ‘‘conditioned upon how the employee voted in the elec-
tion or upon the result of the election’’ (id.); and (4) it is
altogether unlikely, given the way the raffle was structured,
that any of the winners felt any ‘‘sense of obligation’’ to
vote as the Company wished (see Easco Tools, 248 NLRB
700 (1980)).
I accordingly shall recommend that the Union’s (unnum-
bered) objection about the raffle be dismissed.
REMEDY
The most important issue raised by the foregoing findings
and conclusions is whether a second election should be or-
dered.
I have concluded that Mobilcraft violated the Act in two
respects during the critical period between the ACTWU’s fil-
ing of its petition (on November 1) and the election (Decem-
ber 21). First, on November 2 a supervisor disciplined em-
ployee Russ Adams for engaging in activity that the Act pro-
tects. Second, in a December 17 letter to employees
Mobilcraft promised a benefit for voting against union rep-
resentation and threatened that the Company’s remuneration
of employees would decline if the employees voted in favor
of unionization.
The usual policy of the Board is to direct a new election
where an unfair labor practice was committed during the crit-
ical period. Dal-Tex Optical Co., 137 NLRB 1782 (1962).
Accord: e.g., Hertz Corp., 316 NLRB 672 (1995); Diamond
Walnut Growers, 316 NLRB 36 (1995).
Here each of the two unfair labor practices committed by
Mobilcraft require that a second election be held.
As for the disciplining of Adams: while some employees
did not hear about Adams being disciplined, many did; the
discipline was for activity that is central to employees’
unionization efforts—speaking to fellow employees about
signing authorization cards; and it was Mobilcraft itself, in
Like’s speech to employees, that on the same day that the
Company disciplined Adams, publicized the fact that it was
Adams who introduced the ACTWU to Mobilcraft.
As regards the December letter: (1) it was disseminated to
all bargaining unit members; (2) its purpose was to convince
employees to vote against unionization; and (3) the letter
issued just a few days before the election.
Accordingly the recommended Order calls for the setting
aside of the December 21 election and the holding of a new
election. Additionally, of course, the recommended Order re-
quires Mobilcraft to cease and desist from engaging in unfair
labor practices of the kind discussed above and to take cer-
tain affirmative action designed to effectuate the policies of
the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended29
ORDER
The Respondent, Patrick Industries, Inc., Mobilcraft Wood
Products Division, Elkhart, Indiana, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Disciplining employees because they engaged in pro-
tected, concerted, activity.
(b) Promising employees a benefit for voting against union
representation or threatening employees that their wages or
benefits will decline if the employees vote in favor of union-
ization.
(c) 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 facilities in Elkhart, Indiana, copies of the
attached notice marked ‘‘Appendix.’’30 Copies of the notice,
on forms provided by the Regional Director for Region 25,
after being signed by a representative of the Respondent,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
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.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
IT IS FURTHER ORDERED that the election held in Case 25–
RC–9317 on December 21, 1993, be set aside. A second
election shall be held at such time as the Regional Director
260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
decides that the circumstances permit the free choice of a
bargaining representative.
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.
WE WILL NOT discipline you because you engaged in pro-
tected, concerted, activity.
WE WILL NOT promise you a benefit for voting against
union representation or threaten you that your wages or bene-
fits will decline if you vote in favor of unionization.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
PATRICK INDUSTRIES, INC., MOBILCRAFT
WOOD PRODUCTS DIVISION