Production Plated Plastics

National Labor Relations Board - Board Decisions

Jan 28, 1980

247 N.L.R.B. 595 (N.L.R.B. 1980)

PRODUCTION PLATED PLASTICS
Production Plated Plastics, Inc. and International
Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America (UAW).
Cases 7-CA-14599 and 7-CA-14990
January 28, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On August 27, 1979, Administrative Law Judge
James T. Youngblood issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
Respondent filed exceptions and supporting briefs and
Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the attached Decision in
light of the exceptions and briefs and has decided to
affirm the rulings, findings,' and conclusions2 of the
Administrative Law Judge and to adopt his recom-
mended Order, as modified herein.
The Administrative Law Judge found that Respon-
dent had committed various violations of Section
8(a)(1), (3), and (5) of the Act in this proceeding. We
agree with those findings, and the Administrative Law
Judge's reasoning supporting them, with the following
modifications, described below:
1. The Administrative Law Judge found that a
change instituted by Respondent which involved its
decorating department employees' restroom privileges
was a violation of Section 8(a)(1), (3), and (5). We
agree, as explained below.
On September 15, 1977, an election was held at
Respondent's Richland, Michigan, plant in which a
majority of the employees at that plant chose the
Union as their collective-bargaining representative.
Respondent thereafter filed objections to the election.
While the objections were pending, on October 22,
1977, the Union requested that Respondent begin
contract negotitations. That same week, without
notifying the Union, Respondent instituted a new
restroom use policy in its decorating department,
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolution with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Productrs Inc., 91 NLRB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
We agree with the Administrative Law Judge that it is unnecessary to
reach the issue of whether Respondent violated Sec. 8(aX5) of the Act by
refusing to bargain with the Union prior to its certification because the record
shows that Respondent has engaged in a post-certification refusal to bargain.
247 NLRB No. 76
requiring that employees sign out in order to use the
restroom and providing that employees would be
disciplined if they signed out more than five times
each week. Before this change, employees were re-
quired merely to obtain permission from a supervisor
or line leader prior to using the restroom. The
Administrative Law Judge found that this change was
in retaliation for the Union's election. In reaching this
conclusion he relied on the timing of the change and
on his finding that the decorating department had
been identified by Respondent as the most prounion
department in the plant.
In its exceptions, Respondent argues that the record
does not support a finding that it had identified the
decorating department as the most prounion depart-
ment. It also argues that the change found to be
retaliatory was instituted for legitimate business rea-
sons and was the culmination of a series of changes
made to correct sagging production due to excessive
restroom breaks by employees in that department.
Specifically, Respondent argues that between January
and October it had counseled its supervisors and line
leaders to enforce existing rules more stringently, and
that it had instituted its new policy only after it
became clear that supervisory employees were not
enforcing the rules, and were, in fact, abusing them
themselves.
We agree with Respondent that the record does not
indicate that the decorating department had been
identified as the most prounion department in the
plant. However, the record does support the finding
that the decorating department was markedly proun-
ion, and known to be such by Respondent Further-
more, contrary to Respondent, the record also sup-
ports an inference of unlawful motivation from the
timing of the change because Respondent has failed to
substantiate its defense of business justification. In this
regard, the Administrative Law Judge noted correctly
that, although Respondent claimed that the problem
of excessive breaks existed as early as January 1977,
there is no evidence that any employee had actually
been disciplined for such alleged abuse until after the
election. And, although not noted in the Administra-
tive Law Judge's Decision, Respondent also failed to
present evidence that any supervisory employee had
ever been disciplined for abusing restroom breaks, or
for failing to enforce plant rules. Likewise no evidence
In reaching this conclusion, however, we do not rely on the Administrative
Law Judge's erroneous statement that the complaint alleges, and the answer
admitted, that Respondent failed to respond to a March 17, 1978, post-
certification request by the Union for bargaining information. Rather, we rely
on the fact that Respondent's post-certification failure to supply certain
information to, and to bargain with, the Union has been fully litigated and
proven in this proceeding.
We also note that, because we make no finding regarding a precertification
refusal to bargain on Respondent's part, we find it unnecessary to pass on the
Administrative Law Judge's statement that the General Counsel's argument
on this issue may be "meritorious."
595
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was presented to substantiate Respondent's claims
that decorating department production was sagging
and that employees in that department were taking
more breaks than employees in other departments. We
therefore conclude that the Administrative Law Judge
was correct in rejecting Respondent's argument of a
business justification for its change, inferring an
unlawful motivation from its timing.'
2. The Administrative Law Judge found that the
demotion of employee Harvey Hanna in August 1977
and his discharge in October 1977 were violations of
Section 8(a)(3). As explained below, we agree.
The Administrative Law Judge found that, at the
beginning of August 1977, Harvey Hanna was em-
ployed in Respondent's engineering department, doing
work which involved deciding the allocation of job
assignments within the plant, but immediately after a
mid-August conversation in which a supervisor inter-
rogated him concerning his prouniou sentiments
Hanna began receiving what he considered to be
"bottom-line jobs" which involved plant maintenance
and physical labor. The Administrative Law Judge
also found that, approximately 2 months later, Hanna
was summarily discharged, allegedly for using the
restrooms prior to his break.
The Administrative Law Judge found Hanna's job
change was a demotion and was in violation of Section
8(a)(3). He rejected Respondent's testimony that
Hanna was transferred out of the engineering depart-
ment due to its elimination for lack of work, since he
found that an employee with less seniority than Hanna
remained in the department following Hanna's trans-
fer. He also found Hanna's discharge violated Section
8(a)(3). In so doing, apparently he relied for an
inference of unlawful motive on the demotion and on
finding that, prior to his discharge, Hanna had been
harassed with disciplinary actions by a supervisor who
admitted to Hanna that he had been under pressure
from management to discipline and to terminate
employees because of the union campaign.
With regard to the demotion, we find that the
record does not show that an employee with less
seniority than Hanna remained in the engineering
department after Hanna's transfer. However, the
record does show that during August there were five
to seven employees in that department, other than
Hanna. Respondent failed to present any convincing
evidence to show that any employees other than
Hanna were transferred or to explain why it was
necessary to transfer Hanna to a job where he was
assigned menial duties. We regard this omission as a
' In finding that the change in Respondent's restroom policy violated Sec.
8(aX5) as well as Sec. 8(aX3) of the Act, the Administrative Law Judge
apparently relied, in part, on his finding that the change was discriminatorily
motivated. However, while such a finding is a prerequisite for establishing a
violation of Sec. 8(a)(3), it is not a prerequisite for finding a violation of Sec.
failure of proof on Respondent's part. Thus, we find
that the timing of the demotion, following as it did
Hanna's interrogation, coupled with Respondent's
failure to introduce any objective evidence to negate
the inference of unlawful motivation from this timing,
supports the finding that Hanna's demotion was
unlawful.
With regard to the discharge, we find that the
Administrative Law Judge correctly relied on appro-
priate factors in finding a violation. We also note that
his finding of unlawful motive is supported by the
additional evidence that Hanna had never been
disciplined at the time of his discharge for using the
restroom during working time, the offense for which
he was discharged, while the record shows that
employee Sarah Chapman had been given at least six
warnings for the same conduct without having been
discharged.
3. While we agree with the Administrative Law
Judge that Respondent violated Section 8(a)(5) of the
Act by withholding a Christmas bonus without first
bargaining with the Union, we substitute the following
remedy for that proposed by the Administrative Law
Judge for the violation he found. We order that
Respondent shall pay the Christmas bonus of Decem-
ber 1977, and shall continue to pay the bonus to its
employees until it bargains in good faith with the
Union, or the Union refuses to bargain in good faith,
over its cessation.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its order the recommended
order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Pro-
duction Plated Plastics, Inc., Richland, Michigan, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraphs (e) and
(0:
"(e) Refusing to bargain with the Union, by refusing
to furnish relevant information to the Union as
exclusive bargaining representative of the employees
of Respondent in the following appropriate unit:
"All full-time and regular part-time production
and maintenance employees including shipping
and receiving employees, quality control and
truckdriver employees employed by the Respon-
8(aX5). Hence, in affirming the Administrative Law ludge's finding of an
8(aX5) violation in the change, we do not rely on that part of his Decision that
the change was also discriminatorily motivated.
' See Winn-Dixie Stores Inc., 147 NLRB 788, 792 (1964).
596
PRODUCTION PLATED PLASTICS
dent at its facility located at 9899 'D' Avenue
East, Richland, Michigan, but excluding all office
clerical employees, confidential employees,
guards and supervisors as defined in the Act.
"(f) Refusing to recognize and bargain with the
Union over the terms and conditions of employment
of its employees in the above appropriate unit."
2. Substitute the following for paragraphs 2(d) and
(e):
"(d) Immediately make all its employees at its
Richland plant whole for any losses they sustained as
a result of its failure to pay its December 1977
Christmas bonus, and continue to pay the bonus, with
interest, until it bargains in good faith with the Union,
or the Union refuses to bargain in good faith, over its
cessation.
"(e) Immediately furnish the Union with the infor-
mation requested in its letter of March 17, 1978, and
immediately bargain with the Union as the exclusive
representative of its employees in the above appropri-
ate unit over the exclusive representative of its
employees in the above appropriate unit over the
terms and conditions of employment, and, if an
understanding is reached, embody such understanding
in a signed agreement."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICES To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate our
employees concerning their union activity.
WE WILL NOT reprimand, suspend, lay off, or
discharge our employees because they engage in
union activities, or in retaliation because they
have selected International Union, United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America (UAW) as their collective-
bargaining representative.
WE WILL NOT discriminatorily change the
working conditions of our employees because of
their support for the Union, or in retaliation for
their selection of the Union as their collective-
bargaining representative.
WE WILL NOT unilaterally and without notifi-
cation to and/or bargaining with the Union
change the working conditions of our employees.
WE WILL NOT refuse to bargain with the
Union, by refusing to furnish relevant informa-
tion to the Union as the exclusive bargaining
representative of our employees in the following
appropriate unit:
All full-time and regular part-time production
and maintenace employees including shipping
and receiving employees, quality control and
truckdriver employees employed by the Em-
ployer at our facility located at 9899 "D"
Avenue East, Richland, Michigan, but exclud-
ing all office clerical employees, confidential
employees, guards and supervisors as defined
in the Act.
WE WILL NOT refuse to recognize and bargain
with the Union over the terms and conditions of
employment of our employees in the above
appropriate unit.
WE WILL NOT in any, other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed by Section 7 of
the Act.
WE WILL offer Harvey Hanna immediate and
full reinstatement to his former position or, if that
position is no longer available, to a substantially
equivalent position, without prejudice to his
seniority or other rights and privileges previously
enjoyed, and WE WILL make him whole for any
loss of earnings he may have suffered by reason of
our discrimnation against him, with interest.
WE WILL make whole Sarah Chapman for any
loss of earnings she may have suffered by reason
of the discrimination against her, with interest.
WE WILL make whole any employee who has
lost wages or other benefits because of the
application of our discriminatorily and unilateral-
ly instituted restroom rule as found unlawful,
with interest.
WE WILL immediately make all our employees
at our Richland plant whole for any losses they
sustained as a result of our failure to pay our
December 1977 Christmas bonus, and continue to
pay the bonus, with interest, until we bargain in
good faith with the Union, or the Union refuses
to bargain in good faith, over its cessation.
WE WILL immediately furnish the Union with
the information requested in its letter of March
17, 1978, and immediately bargain with the
Union as the exclusive representative of our
employees in the above appropriate unit over the
terms and conditions of employment, and, if an
understanding is reached, we will embody such
understanding in a signed agreement.
WE WILL expunge from the personnel file of
Sarah Chapman all references to the reprimands
issued to her, and expunge from the personnel
records of any employee all references to the
reprimands issued for violation of the discrimina-
597
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
torily and unilaterally instituted restroom rule as
found unlawful.
WE WILL notify and bargain with the Union,
as the exclusive representative of the employees in
the above appropriate unit, with respect to
changes in Christmas bonuses and work rules and
otherwise bargain in good faith with the Union as
to wages, hours, and other terms and conditions
of employment.
PRODUCTION PLATED PLASTICS, INC.
DECISION
STATEMENT OF THE CASE
JAMES T. YOUNGBLOOD, Administrative Law Judge: The
amended complaint which issued on April 21, 1978, alleges
that Production Plated Plastics, Inc. (herein called Respon-
dent or Company), engaged in various violations of Section
8(a)(1), (3), and (5) of the Act. Respondent filed an answer
admitting certain allegations of the complaint but denying
the commission of any unfair labor practices. This matter
was heard before me on May 8 and 9, 1978. All parties were
present at the hearing and represented by counsel.
Upon the entire record, including my observation of the
witnesses and their demeanor, and after due consideration of
the briefs filed by the parties, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent maintains its office and place of business at
9899 D Avenue, in Richland, Michigan. Respondent is and
has been at all times material herein engaged in the
manufacture, sale, and distribution of molded and chrome-
plated plastic products. Respondent's plant located in
Richland, Michigan, is the only facility involved in this
proceeding. Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that International Union,
United Automobile, Aerospace and Agricultural Implement
Workers of America (UAW) (herein called Union), is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
In June 1977,' employee Sarah Chapman contacted Curis
Hartfield, International representative of the Union, to
explore the possibilities of beginning a union organization
I All dates refer to 1977, unless otherwise specified.
I This is rule L, no. I, found on p. 15 of the shop rules which have been
posted in the plant.
' These shop rules, which carry a revised date of February 22, 1977, were
effort at Respondent's Richland plant. Shortly thereafter,
Chapman, along with employee Kenneth Scott and others,
started an in-plant organizing drive consisting of distributing
handbills and union cards and informing employees of
organizational meetings.
On June 24, 1977, Curtis Hartfield sent a letter to John
Horvath, personnel director of Respondent, advising that
Sara Chapman and Kenneth Scott, among others, had
authorized the Union to use their names as members of the
union organizing committee at the Richland, Michigan,
plant.
From June until September 15, the date of the Board-
conducted election, both Scott and Chapman were observed
by various supervisors of Respondent engaging in the
distribution of union literature and union signature cards,
and in general organizational activities. Additionally, many
of the employees of Respondent were observed wearing
union paraphernalia such as T-shirts, buttons, and hats, all
of which stated, in effect, "Vote for the UAW." Thus, there
is no question that the company was aware of the union
organizational campaign and the chief union organizers who
were involved.
Paragraph 8(a) of the complaint alleges that since August
Respondent has maintained and enforced at the Richland
plant a no-solicitation rule which prohibits "Solicitation for
any cause during working without permission." The com-
plaint alleges that this clause is too broad because it does not
prohibit solicitation only during working hours and does not
clearly convey to the employees that they are free to engage
in solicitation during break periods and lunchtime. There is
no doubt that this rule was in effect prior to the organiza-
tional campaign and continues to date. Respondent, how-
ever, argues that this rule is clarified by another shop rule
which reads as follows:2
No employee shall engage in any solicitation of any
nature during his working time. An employee electing
to engage in any solicitation must confine that activity
to his non-working time, such as rest breaks and lunch
breaks.'
Paragraph 10(c) of the complaint also alleges that on or
about November 7, Respondent by and through its agents
William Evans issued a written reprimand and a 5-day
disciplinary layoff to employee Kenneth Scott. Pargraph
10(f) and (g) allege that this action was taken because of his
activities on behalf of and support for, the Union and that it
was taken unilaterally by Respondent without prior notifica-
tion to or bargaining with the Union.
In Essex International, Inc., 211 NLRB 749, 750 (1974)
the Board discussed the distinction between a no-solicitation
rule which prohibited solicitation during "work time" or
"working time" and one which prohibits solicitation during
"working hours." In that case, the Board stated the law as
follows:
A rule prohibiting solicitation during "work time" or
"working time" is, in our opinion, sufficiently clear to
employees to justify requiring the party attempting to
introduced into evidence as G.C. Exh. 8 by stipulation. The parties further
stipulated that these shop rules were in effect from the period August I, 1977.
to April 21, 1978.
598
PRODUCTION PLATED PLASTICS
invalidate the rule to show, by extrinsic evidence, that,
in the context of a particular case, the rule was
communicated or applied in such a way as to convey an
intent to restrict or prohibit solicitation during break-
time or other periods when employees are not actively
at work. On the other hand, in our opinion, a rule
prohibiting solicitation during "working hours" is
prima facie susceptible of the interpretation that solici-
tation is prohibited during all business hours and, thus,
invalid. We would therefore require the employer to
show by extrinsic evidence that, in the context of a
particular case, the "working hours" rule was commu-
nicated or applied in such a way as to convey an intent
clearly to permit solicitation during breaktime or other
periods when employees are not actively at work.
In this case the no-solicitation rule relates only to
working. It does not use either hours or time. While I am not
sure what the Board would do with this rule standing alone,
it is my conclusion that the term "working" more reasonably
connotes or conveys to employees that they should not
solicit while working rather than just being at the employer's
premises. Be that as it may, it appears to me that Respon-
dent here has demonstrated by extrinsic evidence that its
rule only prohibits solicitation during working time and did
not prohibit solicitation during breaktime or other nonwork-
ing time. Thus, in other parts of Respondent's shop rules,
section L, "Solicitation on Company Property," the rules
clearly provide that employees may engage in solicitation
during nonworking time such as rest breaks and lunch
breaks. Therefore, it is my conclusion that Respondent's
shop rules clearly communicate to employees that they may
engage in solicitation during nonworking time such as
breaks and lunch periods; and in my view this is a valid no-
solicitation rule, and I so find. Therefore, I shall recommend
that this portion of the complaint be dismissed.'
Kenneth Scott, an electrician in the electrical department,
was one of the leading union organizers in the plant and was
very active in distributing union signature cards and litera-
ture and attempting to persuade employees to favor the
Union. In fact, Scott was very zealous in his attempt to
persuade the employees to favor the Union, to the point that
after the election of September 15, Respondent filed timely
objections alleging that certain of Scott's remarks to the
employees were threats of intimidation and on this basis
asked that the election be set aside. On October 19, Scott was
elected president and Sarah Chapman was elected vice
president of the Union. On October 20, Charles Williams, a
union representative, sent Plant Manager William Evans a
letter informing Respondent of this fact and requesting
certain information and bargaining. On October 21, the
Regional Director for Region 8 issued his report and
recommendation on objections to conduct affecting the
results of the election, and concluded that the Employer's
' In Essex International the Board dealt with a similar problem and
concluded that a no-distribution rule confined to working hours was valid
because the company rules elsewhere provided that distribution could be
made during nonworking time.
' Shop rule 10. Threatening or intimidating any other company employee or
supervisor. The penalty for breaching this rule is discharge. During cross-
examination, Evans admitted that he disciplined Scott pursuant to shop rule
14, not shop rule 10, which accounts for the 5-day disciplinary layoff rather
than discharge.
objections should be overruled and a certification of repre-
sentative issue.
On November 7, Scott was given a written warning and a
5-day disciplinary layoff by William Evans for violating shop
rule 14, the above mentioned no-solicitation rule, and for
violating shop rule 10.'
The events surrounding the disciplining of Scott are not in
material dispute except for possibly the date on which they
happened. William Evans, Respondent's plant manager,
testified that he was approached by two employees, Debbie
Nash and Brian Gauthier, who informed him that they had
been threatened by Scott in an attempt to get them to sign
union membership cards. The two employees came to Evans
of their own accord and informed him that Scott had been
attempting to get them to sign a union card and had told
them that when the Union was established they would either
have to sign, be salaried, or become unemployed.'
Kenneth Scott testified that he did have such a conversa-
tion with Nash and Gauthier and that he told them that they
would eventually have to sign a card to join the union, go
salaried, or be terminated by the Company. Scott places his
conversation as having occurred some time prior to October
19. William Gray, another employee who was present during
this conversation, testified that it occurred some time before
the union election on September 15. As Evans had no
personal knowledge of the conversation and therefore did
not know when it occurred I accept the testimony of Scott
that it occurred sometime prior to his becoming president of
the Union. Scott also testified that the solicitation of Nash
and Gauthier occurred in a work area while they were
working, and therefore were not on a break or lunchtime.
Thus, by his own admission Scott was in violation of
Respondent's no-solicitation rule.
The General Counsel points to the timing of the disciplin-
ary action as applying the illegal motive. In this regard he
argues that Respondent did not raise the incident with Scott
until after the notification of the results of the election.
However, according to the testimony of Evans he did not
become aware of the incident until November 7 and on that
day he issued a disciplinary notice to Scott. The Regional
Director's report on objections was issued on October 21,
two days after the union officers' election on October 19. I
do not regard this timing as being of any significance
because, as I stated Evans, did not become aware of the
incident until November 7 and he acted on that day. Other
than the general animus which is present in this case, there is
no direct evidence to indicate that Respondent was hostile to
Scott or that its action was for any other reason than that
stated. The fact that the discipline results from a violation of
a shop rule while an employee is engaged in union activities
does not establish improper motive. Nor does the fact that
the employee involved is one of the leading union adherents
establish an illegal motive on the part of the Employer.
While the disciplinary action handed out to Kenneth Scott is
' Although the written statements of Nash and Gauthier were received in
evidence for whatever they were worth it is obvious that they have no
probative value as evidence because the employees involved did not testify.
The statements were received in evidence to support the fact that these two
employees had reported the conversation between them and Scott to William
Evans.
599
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
highly suspect, this does not, in my view, establish that
Respondent was illegally motivated in disciplining Scott on
November 7. Therefore, it is my conclusion that the General
Counsel has failed to establish by sufficient evidence that
Kenneth Scott's discipline was illegally motivated and for
discrimiatory reasons, in violation of Section 8(a)(3) of the
Act. Therefore, I shall recommend that this portion of the
complaint be dismissed.
Paragraph 8(b) of the complaint alleges that in or about
mid-August, Respondent through its agent Reed White
coercively interrogated employees as to their union activities
and sympathies.
Reed White, the assistant plant manager, ' admitted in his
testimony that he questioned employee Harvey Hanna and
other employees about their union activities. White testified
that he talked to probably between 50 and 75 percent of the
total work force of 200 or 250 employees. He stated that
sometimes he would be approached by the employees and on
other occasions he would approach them and ask them how
things were going and what they thought about the Union.
As White was the assistant plant manager, with considerable
influence over the employees' employment status, his inter-
rogation of these employees necessarily had a reasonable
tendency to interfere with their union activities and therefore
violated Section 8(a)(l) of the Act, and I so find.
Paragraph 8(c) of the complaint allges that on or about
October 20, Reed White advised employees that certain
employees were being discharged and/or adversely affected
by changes in their terms and conditions of employment
because of their support for and activities on behalf of the
Union. In support of this allegation, employee Hanna
testified that in early October, immediately after he had had
a disciplinary meeting with Manager Evans and Assistant
Plant Manager White, White informed him that he was
under a lot of pressure to get rid of people since the "union
deal". Although White testified, he did not deny making the
above statement; therefore Hanna's statement stands uncon-
tradicted in the record. Obviously such a statement by
Assistant Plant Manager White to employee Hanna inter-
fered with his Section 7 rights and therefore was violation of
Section 8(aX)(1) of the Act, and I so find.
Paragraph 9 of the complaint alleges that since mid-
October, Respondent has issued reprimands to employees
for infractions of its work rules which were formulated and
maintained because of the employees' activities on behalf of
the Union. Paragraph 13 alleges that in mid-October
Respondent without prior notice to and bargaining with the
Union unilaterally instituted changes in working conditions
with respect to employees' use of restroom facilities during
working time. As these two allegations are closely related I
shall treat them together.
The record reflects that Respondent had a shop rule
which prohibited employees from stopping work before
breaktime, lunchtime, or quitting time without the approval
of their foreman or superintendent. This rule apparently
required the permission of the foreman or line leader for
visits to the restrooms. In mid-October, Tom Grady,
decorating department supervisor, in a meeting of female
employees in his department announced a new rule on
visiting restrooms. The new policy required the employees to
sign in and out in the department office before going to the
restroom. After a short period of time it was announced that
the employees could visit the restrooms only five times a
week other than during breaktime or their lunchtime. It is
noted that this new policy went into effect about the same
time that Assistant Plant Manager White told Hanna that he
was under a lot of pressure to create more rules and to get
rid of people because of the union campaign. Admittedly
many employees were given written reprimands for viola-
tions of these new restrooms policies. The General Counsel
argues that the changes in the restrooms policy and the
giving of reprimands for breach of that new policy violated
Section 8(a)(3) of the Act. Additionally, he argued that these
changes were made unilaterally and without bargaining with
the Union, in violation of Section 8(a)(5) of the Act.
Respondent on the other hand contends that the change in
restroom policy was made not for any illegal motive-
because of the employees' union activities-but for compel-
ling economic reasons.
Although Respondent contends that this change in rest-
room policy in the decorating department was made because
of economic conditions, this record reflects, and Respondent
maintains, that employees in that department had since
January been taking excessive restroom breaks, and no
employee had ever been reprimanded for abuse of the
restroom privileges until the Uniorn won the election on
September 15. It was then that Respondent instituted its new
policy concerning restrooms, and this was apparently only in
the decorating department. It is also significant to know that
the decorating department had been identified by Respon-
dent as being the most prounion. According to employee
Chapman, approximately 20 or 30 of the 40 to 45 employees
of the decorating department wore union paraphernalia,
either a shirt or a union button which was readily seen by
management. As indicated previously it was only after the
election on September 15 that Respondent started handing
out reprimands to its employees for abuse of the restroom
privileges. Therefore, contrary to the contentions of Respon-
dent, I can only conclude in accordance with the General
Counsel that Respondent's singling out the decorating
department for its new restroom policy must be viewed as an
attempt to punish the employees in that department for their
diligence in pursuing their statutory right to organize. It is
also noted that the restroom policy was only applied to the
decorating department. Under these circumstances it is my
conclusion that Respondent discriminatorily changed the
working conditions of its employees in the decorating
department because of their selecting the Union as their
bargaining representative, and that the reprimands were
given for the same reason, discouraging union membership
in violation of Section 8(a)(3) and (1) of the Act, and I so
find.
As indicated the General Counsel also contends that
Respondent's unilateral change in the restroom policy
without notification to or bargaining with the Union is also a
violation of Section 8(a)(5) of the Act.
The election was held on September 15 and shortly
thereafter Respondent filed timely objections. Although
' White is no longer with Respondent.
600
PRODUCTION PLATED PLASTICS
Respondent was well aware that the Union had received a
majority of the votes cast in the appropriate unit, it
nonetheless while its objections were pending unilaterally
changed its restroom policy, as set forth above, without
notification to or bargaining with the Union.
In Mike O'Connor Chevrolet-Buick-GMC Co., Inc., et a.,
209 NLRB 701, 703 (1974), the Board stated that absent
compelling economic considerations an employer acts at its
peril in making changes in terms and conditions of employ-
ment during the period that objections to an election are
pending and the final determination has not yet been made.
And when the final determination on the objections results
in the certification of a representative, the Board has held
the employer to have violated Section 8(a)(5) and (1) for
having made such unilateral changes.
Respondent argues that this doctrine does not apply here,
as the employer had a compelling economic reason for
making the restroom changes. In support of this position he
states that the employees were excessively away from their
work stations, productivity was down, and various solutions
were tried to increase production and efficiency in the
decorating department. If this was a problem it was known
to the employer as early as January, according to its own
witnesses.
Notwithstanding the fact that the Company knew that
decorating department employees were far too often absent
from their work stations during working time, Respondent
made no real effort to correct this problem until after the
September 15 election. Whatever compelling economic
conditions may have existed, as alleged by Respondent,
certainly something should have been done about this prior
to the advent of the Union. But, as indicated previously, only
after the union election and certification did Respondent
crack down on its restroom policies in the decorating
department. It is also noted again that the decorating
department had been identified by Respondent as being
highly prounion. Therefore, in agreement with the General
Counsel, it is my conclusion that Respondent singled out the
decorating department for its new restroom policy in an
attempt to punish the employees of that department for their
diligence in pursuing their statutory right to organize.
Therefore, as Respondent instituted this new restroom
policy unilaterally and without notification or discussion
with the Union, it is my conclusion that Respondent violated
Section 8(a)(5) and (1) of the Act.'
Paragraph 14 of the complaint alleges that in mid-Decem-
ber, Respondent without prior notice to and/or bargaining
with the Union unilaterally changed the existing policy at
the Richland plant regarding Christmas bonuses, in viola-
tion of Section 8(a)(5). The record reflects that for at least 3
years prior to 1977, Respondent paid Christmas bonuses to
the employees at its Richland plant. The record also reflects
I Respondent also argues that the Union never made a demand for
bargaining prior to the institution of the restroom change, and therefore there
could be no (aX)() violation. I do not find that the Board requires a demand
for bargaining in this type of situation, where the employer makes unilateral
changes following an election which the Union won, and pending objections.
It goes without saying that it would be useless for a union to demand
bargaining during the pendency of the objections. In any event, I do not
regard a bargaining demand as an element in this type of violation.
'The appropriate unit consists of:
All full-time and regular part-time production and maintenance employ-
ees, including shipping and receiving employees, quality control and
that Respondent did not issue a Christmas bonus to its
employees in 1977. In its letter to the Richland employees of
September 14, the day before the election, Respondent
pointed out to the employees the growing number of benefits
the Company had provided at no cost to the employees.
Included in those benefits were a Christmas bonus, atten-
dance incentive bonus, 26 weeks sickness and accident pay,
employee medical insurance, life and accidental death
insurance, vacations, holidays, pension program, and money
for suggestions. There can be no question that Respondent
considered the Christmas bonus to be a condition of
employment, and I so find. It is clear that the Respondent
made the decision not to pay the 1977 Christmas bonus
unilaterally and without notification to or discussion with
the Union.
In Nello Pistoresi & Son, Inc. (S & D Trucking Co., Inc.),
203 NLRB 905 (1973), the Board held Christmas bonuses
received for 2 consecutive years to be part of the wage
structure, and a term and condition of employment. There-
fore, as Respondent unilaterally withheld the payment of the
1977 Christmas bonus, without affording the Union an
opportunity to bargain ovxr this change of a term and
condition of employment, Respondent has clearly violated
Section 8(a)(5) and (I) of the Act.
Paragraph 12(a) of the complaint alleges that on Septem-
ber 15, a majority of Respondent's employees in the
appropriate unit', by a secret-ballot election conducted
under the supervision of the Regional Director for Region 7
of the National Labor Relations Board, designated and
selected the Union as their representative for the purpose of
collective bargaining with Respondent, and on March 14,
1978, the National Labor Relations Board certified the
Union as the exclusive collective-bargaining representative
of the employees in said unit. The complaint further alleges
that on March 17, 1978, the Union, by letter to Respondent,
requested that Respondent enter into collective-bargaining
negotiations with it with respect to the terms and conditions
of employment of Respondent's employees in the above-
described unit. That letter also requested that Respondent
supply certain information. The complaint further alleges
that since on or about March 17, 1978, Respondent has
failed and refused to recognize and bargain with the
Charging Union as exclusive collective-bargaining represen-
tative of the employees in the unit described.
In its answer Respondent admits these allegations of the
complaint. Thus, Respondent admits that it has failed to
bargain with the Union and has failed to furnish the
requested information, apparently because it is testing the
Board's certification.
Under these circumstances, and as Respondent admits its
refusal to bargain and to supply information,' and as the
Board has long considered refusals to bargain after Board
truckdriver employees, employed by the employer at its facility located at
9899 "D" Avenue East, Richland, Michigan, but excluding all office
clerical employees, technical employees, professional employees, confi-
dential employees, guards and supervisors as defined in the Act.
'° Although the complaint does not allege that the refusal to furnish the
information requested on March 17, 1978, was also violative of 8(aX5), the
matter was fully litigated at the hearing and the General Counsel claimed
such a violation in its brief Therefore it is my conclusion that it is not
improper to make a finding of this violation.
601
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certifications to be per se violations of Section 8(a)(5),
Respondent must be found to have violated Section 8(aX)(5)
and (I) of the Act in this regard.
Paragraph 14 of the complaint alleges that since on or
about October 20, Respondent has failed and refused to
furnish the Union with information concerning the wage
rates and fringe benefits of its employees in the appropriate
unit. The record refects that on October 20, the Union sent
Respondent a request for certain bargaining information and
a request to begin contract negotiations. Respondent re-
ceived this request on October 22, but failed and has
continually failed and refused to respond to the request.
Although at that time the Union had won the election,
Respondent had timely objections pending before the Board.
Notwithstanding this, the General Counsel argues that
because of Respondent's bad faith in engaging in other
violations and the fact that after the Board ultimately
certified the Union, Respondent continued to refuse to
furnish this information and refused to recognize and
bargain with the Union, Respondent should be found in
violation of Section 8(a)(5) for refusing to initiate collective-
bargaining negotiations pending Board resolution of the
objections.
While the General Counsel may be completely right in
this argument that Respondent is in violation of Section
8(a)(5) by refusing to furnish this information and bargain as
of October 20, I deem it unnecessary to make a finding on
this point. As I have found that Respondent has refused to
bargain with the Union and has refused to furnish informa-
tion as of March 17, 1978, no useful purpose would be
served in making a finding relating back to October 20,
particularly as I have found an 8(a)(5) violation with regard
to all the unilateral changes which were made by Respon-
dent in this interim period.
The Alleged Unlawful Discharge of Harvey Hanna
Paragraph 10(a) alleges that on or about mid-August
Respondent, through its agent Reed White, demoted em-
ployee Harvey Hanna, and on November 1, through its
agents Marty Schau, John Warunek, and William Evans,
discharged Harvey Hanna in violation of Section 8(a)(1) and
(3) of the Act.
Harvey Hanna was employed by Respondent on Septem-
ber 28, 1976. He was hired in as a mask washer and was
thereafter promoted to production control clerk and then to
project engineer, both jobs being within the engineering
department. In these promotions he received a 25-cent-an-
hour raise in wages. His supervisor in the engineering
department was Reed White. Hanna described his job as
receiving bids for job assignments within the factory and
allocating the work out to the lowest bidder, making sure the
job got done, and contacting the maintenance department
informing them of jobs within the factory to be done.
In mid-August or early September, Hanna had a conver-
sation with Reed White concerning the Union. He said that
White approached him one afternoon and told him that
since they had been working very closely together on certain
projects white would be looking toward Hanna him for a lot
" It is noted that White admitted interrogating Hanna along with many
other employees about their union activities.
of help on certain projects, and he would like to know where
he stood and how he felt about the Union. Hanna informed
him that he felt the Union would be a good thing: it would
benefit the employees because they would know that there
would be somebody to look out for their best interest, and it
would make them happy and they could produce more for
the Company. Reed White replied that he did not feel that it
was right, that he did not think the Union would be good. At
this point Hanna told him that those were his personal
feelings and that he did not want to discuss the matter any
further. Hanna said this conversation took place in the
engineering department and there was no one else present."
Hanna testified that about a week after this conversation
he started receiving what he called bottom-line jobs. He said
he began sweeping floors and painting fence posts, and one
week he had to paint fence posts in the rain. He was filling in
pits, digging holes, and cleaning up in the back area. He said
that these assignments were given to him by Reed White, or
White would tell him to go report to Jim Neal, the
maintenance supervisor. Hanna testified that prior to his
interrogation by White, he had never performed this type of
work. At the same time Hanna testified that he was relieved
of his previous tasks as project control clerk and that he was
never given any reason why he did not continue with his
previous job. Hanna testified that he had never been
reprimanded by the Company, and that Reed White had
personally given him an oral evaluation of his job and told
him that he was doing a good job and that he was helping
him in a lot of ways.
Hanna testified that in September he had a conversation
with Rudy Tuten, acting plant manager, at a time when he
was wearing a UAW T-shirt. He stated that as he was
walking through the plant he was approached by Tuten, and
because he had never seen Tuten wear a tie before, he made
the comment, "[Y]ou look pretty good in a tie". Tuten
looked at Hanna and then looked at his T-shirt and said,
"[Y]ou look like fuck in that T-shirt." The precise language
on the T-shirt had "Vote UAW" on the front and "Vote
Yes, UAW" on the back.
Hanna testified that some time after September, he
received a written reprimand from Reed White because of
harassment of a company employee. In this connection
Hanna testified that as he was passing an employee she
mentioned the fact that he had been demoted, and he
approached her to ask what made her feel that he had been
demoted. He told her that he had not received any word of
any type that he had been demoted and that he wished that
she would not go around saying this to everybody. He stated
that this was on breaktime and that the woman began
arguing loudly with him, and he turned around and left and
went back into the breakroom. When he returned to the
engineering office, White had a written warning stating that
he had harassed her.
Hanna testified that around the first week of October,
White told him to come into work on Saturday. Although
this was an unscheduled workday he told him that he would.
Hanna stated that he overslept that Saturday morning and
reported into work about 20 minutes late. As he reported to
work he told White that he was sorry that he had overslept.
602
PRODUCTION PLATED PLASTICS
White left and returned about half an hour later and handed
Hanna a written warning for absences and said that he
would be given a 3-day layoff. Hanna told White that he
could not believe this: this was the first time he had ever
gotten a written warning for this type of thing, and he had
never had a 3-day suspension. Hanna said he would like to
talk to Mr. Evans. White agreed to this and stated that they
would both go talk to Evans. They met in Evans' office and
White stated his case, after which Hanna reported his side of
the story. Evans stated that he would let the warning stand,
but the 3-day layoff would be disregarded.
As is indicated elsewhere in this Decision, following this
disciplinary meeting among Evans, White, and Hanna,
White stopped Hanna as they left the office and told Hanna
that he was sorry he had to do that but he had been under a
lot of pressure because of the union election, and he had to
"stipulate a lot more laws and rules that the Company wants
me to do and there's a lot of people that have to be got rid of
since this union deal".
The following Wednesday, October 19, Hanna was both-
ered by an old ulcer problem and he called his doctor to see
if he could get an appointment. The doctor asked him to
come in that afternoon. Hanna explained this to his foreman,
who told him to go but to bring in an excuse from the
doctor. The doctor wanted him to have X-rays the following
day, so he wrote Hanna an excuse for that day and an excuse
to get the next day off for X-rays. Hanna called the factory
Thursday morning and reported to the personnel depart-
ment that he was going to be absent that day to get X-rays.
After getting his X-rays, at about 9 p.m. thursday night he
received a telephone call from a secretary in personnel. He
did not know her name, but she asked if he were Harvey
Hanna. When he told her yes, she said that Reed White had
told her to contact Hanna and tell him that he had been
terminated as of that day and he could pick up his check
whenever he wanted it. Hanna testified that he immediately
called White and told him about the phone call and asked
him if it was true. White replied, "I told her to call. You
have been absent quite a bit." When Hanna explained that
he had called Personnel on Thursday morning, White
replied that he was not aware of the call to the personnel
department. White further informed Hanna "I don't know
what's going on. I'm just doing what I'm told to do." White
went on to say, "[y]ou know how things are around here, it
is driving me nuts." White said, "[s]ometimes I don't think I
can handle it anymore, they're trying to get rid of everybody
and I gotta go by the rules." He told Hanna to bring what
slips he had and they would look at them the next morning.
The next morning Hanna spoke to White and Evans. Evans
rescinded the discharge and told Hanna to report to work
Monday.
On October 24, as Hanna was sweeping up the floor in the
molding department, he was approached by Rudolph Tuten,
acting plant manager, who told Hanna to follow him, stating
that he had a good job for him. Then he told Hanna that he
was going to have him squeegee oil off the floor, wipe up oil
off the machines, wipe the machines down, and clean out the
oil pits in the molding department. Hanna stated that there
were three or four other people working on this job, all of
whom were new employees. He stated that this job was an
entry job, and his immediate supervisor on the job was John
Warunek.
On November 1, around 9:40 a.m., Hanna left his work
station to go to the restroom. As the restroom was
completely occupied, Hanna left and went to a drinking
fountain some 6 to 8 feet away to get a drink of water. As he
was walking back to the restroom, Marty Schau, a supervi-
sor in the molding department, was coming out the front
door of the offices and he gave Hanna a dirty look. Hanna
informed him that he was going into the restroom. After
Hanna finished in the restroom he started back to the
molding department. As he was halfway back to the molding
department, Marty Schau and John Warunek were standing
together and Warunek called out to Hanna, asking him
where the hell he had been. After Hanna had informed him
where he had been, there was some discussion as to why
Hanna could not wait until breaktime, which was at 10
o'clock. After Hanna informed them that he could not wait,
Warunek looked at him angrily and said: "[w]e don't need
people like you, people that can't wait for their break and go
to the restroom anytime they think they can. We just don't
need people like you, you're fired." Hanna then cleaned up
his work area, put his cleaning gear away, and left the area.
He punched out around 10:30 and left the premises.
Later in the day he called Evans at the plant and told him
what had happened, informing Evans that he could not
believe that he could get fired over something like that.
Hanna offered to report to work the following day. Evans
told him to just hang on and he would get back with him by
4 in the afternoon. When Evans did not return the call,
Hanna called Evans at or about 4:45 p.m. Hanna asked Evans
what he had decided, and Evans replied that the Company
did not need anyone who had to go to the bathroom before
his break. Evans informed Hanna that the discharge would
stand. Hanna responded that he would take the matter to the
National Labor Relations Board, and Evans replied the
Board "won't do you any good, they do not care and they
are not going to do anything about it." He added that as far
as he was concerned Hanna had quit anyway. Hanna
informed him that he had not quit, and Evans hung up the
phone.
Hanna had worked as a mask washer until February or
March, at which time he was transferred into the engineer-
ing department as a production and control clerk. Hanna
graduated from high school and went for 1-Y years to
Kalamazoo Community College. As a project engineer
Hanna was hired work within the plant and got bids on the
jobs and then report back to White on those bids. Hanna
also performed time studies while in the engineering depart-
ment. Hanna testified that it was not until after his
interrogation in mid-August by Reed White that he started
doing maintenance work within the engineering department
and elsewhere in the plant. Hanna testified that while he
worked in the engineering department to his knowledge
there was never any reduction of work.
Respondent contends that it shifted Hanna's duties in
August because of lack of work and because Hanna was a
poor worker. Respondent also argues that it did not
discharge Hanna on November 1; its contention is that
Hanna quit.
603
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This record clearly reflects that Hanna began working in
September 1976 as a mask washer and he continued in that
job until around February of the following year, at which
time he was transferred into the engineering department as a
production control clerk. Other than the testimony of
Respondent's witnesses that Hanna allegedly was incapable
of performing his duties, there is nothing in this record or in
Hanna's personnel file to show that he was ever reprimanded
or warned about his work. As indicated, this record reflects
it was not until after mid-August, when Supervisor White
interrogated Hanna about his union activities, that Hanna's
duties changed drastically. Under these circumstances, I
flatly reject Respondent's contention that Hanna was a poor
worker. Moreover Respondent's claim that Hanna was a
poor worker in the engineering department is clearly refuted
by the fact that Hanna received a raise in pay in the spring of
1977. Also Respondent failed to explain why it tolerated
Hanna's allegedly poor work performance until August and
September after the union campaign was in full bloom.
I also flatly reject Respondent's contention that it shifted
Hanna's duties in August because of lack of work. This
record clearly reflects that another employee with less
seniority remained in the engineering department until
Respondent disbanded that department in September. Re-
spondent also contends that it had no knowledge of Hanna's
union activities. This contention cannot withstand close
scrutiny. It is clear, and I have found, that White interrogat-
ed Hanna concerning his union activities in mid-August and
Hanna informed White that he was in favor of the Union.
Also, although Rudy Tuten testified, he made no attempt to
deny his derogatory comments about Hanna's "vote UAW"
T-shirt, which demonstrated not only knowledge, but also
Respondent's extreme union animus. Therefore, I find that
Respondent at all times after August knew of the union
sympathies of Hanna. Hanna was a straightforward witness,
and his testimony certainly had a ring of truth. He was not
evasive, and his testimony was clear and concise. On the
other hand, Respondent's witnesses who testified to the
events surrounding Hanna's demotions and his ultimate
discharge appeared to be telling a concocted story which
certainly in my view did not have a ring of truth. Therefore,
I credit Hanna's version of the events surrounding his
demotion and discharge over that of Respondent's supervi-
sors White, Tuten, Schau, and Warunek. Therefore, I
conclude that Respondent's demotion of Hanna to more
onerous jobs was clearly because of his union activities and
union sympathies and was done for the purpose of discour-
aging membership in the Union, clearly violating Section
8(a)(3) and (I) of the Act.
Respondent also denies that it discharged Hanna, con-
tending that Hanna quit voluntarily. As I have indicated
that I have credited Hanna over Respondent's witnesses in
this regard, it is my conclusion that Hanna did not quit, but
rather was discharged as he testified. It is also my conclusion
that Respondent's harassment and demotion of Hanna was
for the same reason as his discharge, and I therefore
conclude that Hanna was discharged because Respondent
had learned of his union activities, and he was discharged in
retaliation for such union sympathies, in violation of Section
8(aX3) and (1) of the Act.
The Alleged Unlawful Reprimands and Suspensions of
Sarah Chapman
Sarah Chapman began working at Respondent's Richland
plant in April 1976. She is a spray painter in the decorating
department. It was Chapman's contacting the UAW repre-
sentative in June which got the organizational campaign at
Respondent's Richland plant under way. Her name was also
given by Curtis Hartfield to Respondent's management as a
member of the UAW organizing committee. She was a very
active union organizer in the plant as well as out of the plant,
getting the T-shirts and union buttons to the employees and
informing them of union meetings. She also participated in
distributing handbills outside the plant. Chapman was also
an observer for the Union in the September 15 election. In
October, she was elected vice president of the Union, and
Respondent was so informed. There is no question that
Respondent was aware of Chapman's union activities and
union sympathies.
Chapman testified that in October she was informed by
Tom Grady, her supervisor, of the change in the bathroom
policy. Grady called a meeting of the women in the back of
the decorating department and informed them they had to
sign in and out when going to the bathroom. Chapman
testified that since the new bathroom policy was put into
effect it has been strictly enforced with verbal warnings,
written warnings, and 3-day suspensions. She testified that
she has been reprimanded or disciplined about 6 or 7 times.
She stated that she received one verbal and two written
warnings from the foreman, Dan Reigh, and two written
warnings from Tom Grady, and one from Larry Lobstein,
also a foreman in the spray department.
Paragraph 10(d), (e), and (f) of the complaint alleges that
on or about March 23, 1978, Respondent issued a written
reprimand to and suspended employee Sarah Chapman until
such time as she was notified to return to work and on April
6, 1978, Respondent placed employee Sarah Chapman on a
3-day disciplinary suspension because of her activities on
behalf of and support for the Union.
Chapman testified that her first verbal warning came in
the middle of October, shortly after the change in the
restroom policy. This verbal warning was given to her by
foreman Dan Reigh, when she was returning to her job.
Reigh told her at the time that she should get her bladder
checked or quit going to the bathroom so much. On
November 1, Reigh gave her a written warning. This
warning (G. C. Exh. 13) indicates that she violated rule 21 of
the Company's rules-stopping work before breaktime,
lunchtime, or quitting time without approval of foreman or
superintendent. It is noted that at this time there was no
reason to notify the foreman because, as I understand the
testimony in this case, the sign-in and out policy was in force
on November I and this effectively did away with permis-
sion from management. Whether Chapman signed in and
out, I do not know. Again, on November 7, Chapman
received another write-up from Foreman Dan Reigh, for
being absent from her work station. On January 24 she
received a write-up from Supervisor Tom Grady, also for
being absent from her work station. This warning notice has
various dates on which, according to Grady, Chapman was
absent from her work station. Chapman testified that she
604
PRODUCTION PLATED PLASTICS
also received a warning on January 24, 1978, at which time
she had to go in to talk to Reed White. White, the assistant
plant manager, advised her she should not be going to the
bathroom so much. She informed White that she was not
hurting anybody, she was making her rate, and she was not
losing any time. Grady told her it was against the rules and
she should not be doing it, and that she should comply with
the company rules. Chapman explained that she had never
seen rule 21 and asked what would happen if she could not
comply, whereupon Grady started laughing. After her
discussion with Grady, Reed White told her that her actions
might lead to a 3-day suspension. At that time she was
informed that she was allowed to go once a day other than
on her breaks and on lunchtime.
The following Tuesday, she was given a written reprimand
by Larry Lobstein. She was told by Lobstein and Tom
Grady that she was using the bathroom too much and that
she would have to get a doctor's slip in order to go to the
bathroom more than once a day, other than her regular
breaks or lunchtime. She told them that she could not afford
to go to a doctor. She was told that it was up to her, but she
had to get some form of permission from a doctor. She said
she was not going to do that, and as she was walking out
with the write-up, they told her that she would have to give
it back and that if she did not get a doctor's slip she would
probably get a 3-day layoff. On March 15, Chapman testified
that she was told by Larry Lobstein that she could not work
any longer unless she had a doctor's slip granting her
permission to go to the bathroom more of one time a day.
She stated that she went home and returned the next day
and asked Lobstein if she was supposed to work, and he told
her no. He again repeated that she had to have a doctor's slip
to be able to come back to work. She asked how long this
was going to continue; he said until she obtained the slip
from the doctor. She stated that she filed a claim with the
unemployment office and on March 17 went to the plant and
picked up her check. At that time she asked Christine
Warunek, the personnel manager, if she possibly could give
her something in writing so that she could prove why she
was not working. Warunek talked to Bill Evans, the plant
manager, who said that Chapman did not have a good
enough reason to get a slip.
Chapman testified that on the following Tuesday at
around 8 a. m., she received a call from ChristineWarunek,
who told her that she could come back to work and that they
had set up an appointment for her with the company doctor.
Chapman apparently returned to work that day, and on
Thursday reported to Dr. Kick, the company doctor. She
told the nurse why she was there and explained the shop rule
about going to the bathroom. She then explained to the
doctor what was going on and the doctor wrote out a slip
stating that she could go to the bathroom every 2 hours. She
returned to work and about 15 minutes before her shift was
over she was called into Larry Lobstein's office, where he
told her that as her note from the doctor stated every 2
hours, she should go only on breaks and I time on company
time. Thus, Lobstein was telling her that she could only go
one extra time during the day, as the breaks and lunch
period were at 2-hour intervals. Thus Respondent was
complying with its rule and that Lobstein was paying no
attention to the doctor's slip. Chapman asked Lobstein what
would happen if she had to go at 9, 11, 1, and 3. Lobstein
told her she had better make the effort to go at the even
hours. Chapman testified that she went to see Dr. Kick and
explained to him what she had been told. Kick told her that
she should go whenever she had to go and, if the Company
did not like it, to contact him. On April 5, Chapman
received a 3-day layoff from Larry Lobstein. Lobstein told
her that he did not agree with the rule but he had to enforce
it. She explained to him again that Dr. Kick had told her
that she should go when necessary, and that if there were
any problems the Company should contact him. She then
left and washed up, and one of the women told her that
Lobstein wanted to see her again. She was then referred to
Plant Manager Bill Evans. Evans asked her what the
problem was; she said she did not think there was a problem
and did not think they had the right to tell her when she
could and could not go to the bathroom. Evans said that he
did. Evans also informed her that it was against the rules; it
was not fair to the other women that she should be able to
walk off the job and go to the bathroom whenever she
wanted to. She again replied that her production was not
down, she was not behind, and Evans kept telling her that
that was not the point-she had to comply with the rules.
Chapman again explained what Dr. Kick had told her, and
Evans said that was not his responsibility and he was not
going to call the doctor. Evans was adamant on a 3-day
layoff and informed her that he did not want to have to fire
her. Chapman testified that to her knowledge no other
individual had been given any time off for abuse of the
bathroom trips.
To the extent that there is any discrepancy in the
testimony of Chapman and Respondent's supervisors involv-
ing the verbal warnings, written warnings, reprimands, and
final layoffs, I credit Chapman over the Respondent's
witnesses. Respondent was aware from the very outset of the
organizational campaign that Chapman was a member of the
UAW organizing committee. Respondent was also aware
that she was distributing T-shirts and buttons in the plant
and handbills outside the plant.
There is no question that Respondent changed its rest-
room policy after the election on September 15, after it
learned that the Union had overwhelmingly won the
election. As indicated earlier in this Decision, I have found
that this change in restroom policy was a violation of Section
8(a)(1), (3), and (5) of the Act. Thus, any disciplinary action,
such as layoffs and suspensions, taken in accordance with
this change in policy would also violate Section 8(a)(3) and
(I) of the Act, and I so find.
Additionally, it is my conclusion that Respondent was
illegally motivated in its suspending Chapman and laying
her off for 3 days because of her participation in the Union's
organizational campaign and in retaliation for a successful
union election. Respondent's conduct in this regard is so
blatant it hardly needs any discussion. However, it is noted
that Respondent did not come forth with any facts indicat-
ing that any other employee was reprimanded as often as
Chapman. Chapman complied with the Company's request
to visit a doctor. In fact she went to the Company's own
doctor, who gave her a slip indicating that she could go to
the restroom every 2 hours. Respondent very craftily
decided which 2 hours she should go-those which would
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fall on her breaktime and lunchtime; thus, the doctor's slip
would mean nothing. As a matter of fact, Respondent did
not even indicate on the sign in-sign out sheet that she had a
doctor's slip. Also, after she received another warning
because she went to the bathroom more often than allowed,
she again returned to the doctor, who told her she should go
as often as necessary, and if the Company had any problems
they could call him. The Company completely ignored this
response from the doctor, and again gave her a 3-day layoff
for her last violation. Such conduct suggests only that
Respondent was retaliating against Chapman because of her
union activities. Any responsible employer would comply
with the written request of its doctor, and certainly if it had
any questions about the doctor's report or the doctor's
suggestion, it would at least contact the doctor. However,
here Evans merely said that contacting the doctor was not
his responsibility, and he was not going to call Dr. Kick.
Evans did not deny these remarks. It is all noteworthy to
observe that Respondent made no claim that Chapman was
not making her rate or not making her production. Respon-
dent's only claim was that Chapman was violating Respon-
dent's new bathroom rule, a rule change I have found to be a
discriminatory change in working conditions in violation of
Section 8(a)(l), (3), and (5) of the Act.
Under the circumstances, it is my conclusion that Respon-
dent's treatment of Chapman in giving her reprimands and
suspending her was clearly because of her union activities
and union sympathies, and was done to discourage member-
ship in the Union, clearly violating Section 8(a)(3) and (1) of
the Act, and I so find.
IV. THE EFFECT OF UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth above, occurring in
connection with the operation of Respondent, have a close,
intimate, and substantial relationship to trade, traffic and
commerce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in, and is engag-
ing in, unfair labor practices, I shall recommend that it be
ordered to cease and desist therefrom, and take certain
affirmative action to effectuate the policies of the Act.
Having found that Respondent unlawfully and discrimi-
natorily discharged Harvey Hanna, I shall recommend that
Respondent reinstate him to his former position of employ-
ment or, if that job no longer exists, to a substantially
equivalent position, with no loss of seniority or other rights
and privileges previously enjoyed, and make him whole for
any loss of pay suffered as a result of the discrimination
against him, with interest. Having found that Respondent
discriminatorily and unlawfully suspended and laid off
Sarah Chapman, I shall recommend that Respondent make
Chapman whole for any loss of pay suffered as the result of
discrimination against her, with interest.
I shall recommend that Respondent expunge from its
personnel records all references to reprimands issued to
employees for violations of the discriminatorily and unilater-
ally instituted restroom rule as found unlawful herein, and
make whole any employee who lost wages or other benefits
because of the application of this rule, with interest.
Additionally, I shall recommend that Respondent for-
thwith pay all its employees at the Richland plant the
Christmas bonus they should have received in December
1977, and if Respondent did not pay a Christmas bonus in
December 1978, it should also pay that bonus to all its
employees, with interest. Any backpay found to be due shall
be computed, with interest, in the manner prescribed in F
W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel
Corporation, 231 NLRB 651 (1977). '2 I shall also recom-
mend that Respondent expunge from the personnel records
of Sarah Chapman all of the reprimands and personnel
warnings issued to her for violation of the discriminatorily
and unilaterally instituted restroom rule as found unlawful
herein. I shall also recommend that Respondent notify the
Union that it is ready and willing to bargain with the Union,
as the exclusive representative of the employees in the unit
described above, with respect to changes in the Christmas
bonus and work rules and otherwise bargain in good faith
with the Union as to wages, hours, and other terms and
conditions of employment. I shall further recommend that
Respondent furnish the Union with the information that it
requested on March 15, 1978.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All full-time and regular part-time production and
maintenance employees, including shipping and receiving
employees, quality control and truckdriver employees em-
ployed by the employer at its facility located at 9899 "D"
Avenue East, Richland, Michigan, but excluding all office
clerical employees, technical employees, professional em-
ployees, confidential employees, guards, and supervisors as
defined by the Act constitutes an appropriate unit for the
purpose of collective bargaining pursuant to Section 9(b) of
the Act.
4. By interrogating employees as to their union activities
and sympathies and the sympathies and activities of their
fellow employees; and by advising employees that certain
employees were being discharged and/or adversely affected
by changes in their terms and conditions of employment
because of their support for, and activities on behalf of, the
Union, the Respondent has engaged in conduct violative of
Section 8(a)(l) of the Act.
5. By issuing reprimands to employees for infractions of
Respondent's work rules, which were formulated and
maintained because of the employees' activities on behalf of,
and support of, the Union; by discriminatorily demoting
employee Harvey Hanna, and discriminatorily discharging
him, and by discriminatorily issuing written warnings and
" See, generally, Isis Plumbing & Heating Co.. 138 NLRB 716 (1962).
606
PRODUCTION PLATED PLASTICS
suspending and finally laying off Sarah Chapman, because of
said employees' activities on behalf of, and support for, the
Union; and by unilaterally and discriminatorily instituting
changes in working conditions with respect to the decorating
department employees' use of restroom facilities because of
their activities on behalf of, and support of, the Union,
Respondent has engaged in conduct violative of Section
8(a)(3) and (1) of the Act.
6. By unilaterally instituting changes in working condi-
tions with respect to the decorating department employees'
use of restroom facilities during working time and by
unilaterally changing the existing policy at the Richland
plant regarding Christmas bonuses to be paid to employees
in the appropriate unit as set forth above, without notifica-
tion to or bargaining with the Union, Respondent has
engaged in conduct violative of Section 8(a)(5) and (1) of the
Act.
7. By refusing to furnish the Union the information it
requested on March 15, 1978, and by refusing to recognize
and bargain with the Union as the exclusive bargaining
representative of the employees in the appropriate unit after
March 15, 1978, Respondent has engaged in conduct
violative of Section 8(a)(5) and (1) of the Act.
8. Respondent has not engaged in any unfair labor
practices not specifically found herein.
9. The unfair labor practices enumerated above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the basis of the entire record, the findings of fact,
and the conclusions of law, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER"
The Respondent, Production Plated Plastics, Inc., Rich-
land, Michigan, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Coercively interrogating its employees concerning
their union activities.
(b) Reprimanding, suspending, laying off, or discharging
its employees because they engage in union activities, or in
retaliation because they have selected the Union as their
collective-bargaining representative.
(c) Discriminatorily changing the working conditions of
its employees because of their support for the Union or in
retaliation for its employees' selection of the Union as their
bargaining representative.
(d) Unilaterally and without notification to and/or bar-
gaining with the Union changing the working conditions of
its employees.
(e) Refusing to bargain with the Union, by refusing to
furnish relevant information to the Union as exclusive
bargaining representative of the employees of the Respon-
dent.
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommeded Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
(f) Refusing to recognize and bargain with the Union over
the terms and conditions of employment of its employees.
(g) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization as guaranteed by Section 7 of the Act.
2. Take the following affirmative action which I deem
necessary to effectuate the policies of the Act:
(a) Offer Harvey Hanna immediate and full reinstatement
to his former position or, if that position is no longer
available, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of earnings he may have
suffered by reason of the discrimination against him, in the
manner set forth in the section of this Decision, entitled
"The Remedy."
(b) Make whole Sarah Chapman for any loss of earnings
she may have suffered by reason of the discrimination
against her, in the manner set forth in the section of this
Decision entitled "The Remedy."
(c) Make whole any employee who has lost wages or other
benefits because of the application of the discriminatorily
and unilaterally instituted restroom rule as found unlawful,
in the manner set forth in the section of this Decision
entitled "The Remedy."
(d) Immediately pay to all its employees at its Richland
plant the Christmas bonus it normaily would have paid in
December 1977, and if it did not pay a Christmas bonus in
December 1978, pay that bonus also, with interest, as set
forth in the Remedy section.
(e) Immediately furnish the Union with the information
requested in its letter of March 17, 1978, and immediately
bargain with the Union, as the exclusive representative of its
employees, over the terms and conditions of employment
and, if an understanding is reached, embody such under-
standing in a signed agreement.
(f) Expunge from the personnel file of Sarah Chapman all
references to the reprimands issued to her, and expunge
from the personnel records of any employee all references to
the reprimands issued for violation of the discriminatorily
and unilaterally instituted restroom rule as found unlawful
above.
(g) Notify and bargain with the Union, as exclusive
representative of the employees in the above appropriate
unit, with respect to changes in Christmas bonuses and work
rules and otherwise bargain in good faith with the Union as
to wages, hours, and other terms and conditions of employ-
ment.
(h) Post at its Richland, Michigan, plant copies of the
attached notice marked "Appendix."' " Copies of said notice,
on forms provided by the Regional Director for Region 7,
after being duly signed by Respondent's representatives,
shall be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
" In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
607
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(i) Notify the Regional Director for Region 7, in writing,
within 20 days of this Order, what steps Respondent has
taken to comply herewith.
608