Ring Can Corp.

National Labor Relations Board - Board Decisions

Jun 12, 1991

303 N.L.R.B. 353 (N.L.R.B. 1991)

353
303 NLRB No. 49
RING CAN CORP.
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
The judge made several minor factual and typographical errors. Dean Owens
became president of the Respondent on March 15, 1989, and he met with his
senior staff ‘‘within a couple of weeks of him coming on board.’’ Peter Libby
is the Respondent’s vice president of operations. The judge’s reference to su-
pervisor meetings with individual employees ‘‘as follows:’’ refers to meetings
that he discussed later in his decision. Also, the word ‘‘button’’ should be sub-
stituted for the word ‘‘bottom’’ in the first paragraph in which he discussed
par. 9 of the complaint in the section entitled ‘‘Conclusions.’’ Finally, it is
the election in Case 26–RC–7160 that is to be set aside, and that case is to
be remanded to the Regional Director for further appropriate action.
2 The Respondent argues that it was merely lawfully implementing its WIN-
WIN program when two of its supervisors, in one-on-one employee interviews
in May 1989, put questions to employees that induced them to specify their
desires for various improvements in terms and conditions of employment, i.e.,
that the interviews did not amount to a solicitation of grievances calculated
to affect the June representation election. It is true that plans for the WIN-
WIN program (which entailed soliciting employee views on what could help
reduce employee turnover) were announced before May 8, when the Union
filed its election petition. But even assuming arguendo that the implementation
of such a preplanned program after the filing of an election petition would
not be an unlawful solicitation of grievances, the Respondent’s conduct was
plainly unlawful under the circumstances here. Nothing in that program as
originally developed required Supervisor Williams to use the one-on-one inter-
views for such purposes as promising one employee that ‘‘money is coming,’’
telling another that they were ‘‘working’’ on insurance, and asking such ques-
tions as whether an employee knew anything about a union or why an em-
ployee felt a union was needed.
We find it unnecessary to pass on whether or not, given the circumstances
in which it was made, Supervisor Williams’ statement to employees that ‘‘if
the employees go on strike they would not lose their jobs but they could be
replaced,’’ constituted an unlawful threat. A finding of a violation would be
cumulative.
With respect to the finding that the Respondent, through Supervisor Fletch-
er, violated the Act by threatening employees that it would be futile for them
to select the Union, Members Devaney and Raudabaugh note particularly the
context in which the threats were made. Fletcher’s comments, considered in
context, conveyed the message that selection of the Union would lead to dire
consequences and the Union would be unable to do anything about such con-
sequences. Where, as here, an employer not only threatens unlawful con-
sequences but also threatens that the Union will be powerless to prevent them,
Members Devaney and Raudabaugh conclude that the former threat is aggra-
vated by the additional threat concerning the futility of selecting the Union
as bargaining representative. In these circumstances, they agree with the judge
that both threats are unlawful.
Chairman Stephens does not find an unlawful threat of the futility of orga-
nizing in Supervisor Fletcher’s statement that Union President Rudd and the
Union were no good and did nothing for employees at another unionized com-
pany. Rather, the Chairman construes these statements as comments of a dis-
paraging but personal nature, separate and distinct from the threats of ominous
consequences of unionization that Fletcher also uttered.
Ring Can Corporation, and RAPAC, a Joint Ven-
ture Between Ring Can Corporation and
Microwave Development, Inc., a Joint Em-
ployer and Furniture Workers Division, I.U.E.,
Local 282, AFL–CIO. Cases 26–CA–13231, 26–
CA–13273, and 26–RC–7160
June 12, 1991
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On August 23, 1990, Administrative Law Judge El-
bert D. Gadsden issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 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, Ring Can Corporation, and
Rapac, a Joint Venture Between Ring Can Corporation
and Microwave Development, Inc., a Joint Employer,
Oakland, Tennessee, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
IT IS FURTHER ORDERED that the election conducted
on June 29, 1989, in Case 26–RC–7160 be set aside
and that this case be remanded to the Regional Direc-
tor for Region 26 for the purpose of scheduling and
conducting a second election at such time as he deems
the circumstances permit a free choice on the issue of
representation.
[Direction of Second Election omitted from publica-
tion.]
Jack Berger, Esq. and Grace Speer, Esq., for the General
Counsel.
Dorothy J. Pounders, Esq. (Blankler, Brown, Gilliland,
Chase, Robinson & Raines), of Memphis, Tennessee, for
the Respondent.
Ida Leachman, of Memphis, Tennessee, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge. Upon
original charges of unfair labor practices filed by Furniture
Workers Division, I.U.E., Local 282, AFL–CIO (the Union),
on June 2 and 27, 1989, and amended charges filed on July
6, 1989, and August 4, 1989, respectively, against Ring Can
Corporation, and RAPAC, a Joint Venture Between Ring
Can Corporation and Microwave Development, Inc., a Joint
Employer (the Respondent), a consolidated complaint was
issued on August 14, 1989, on behalf of the General Counsel
by the Regional Director for Region 26.
In substance, the consolidated complaint alleges that Re-
spondent interfered with, coerced, and restrained its employ-
ees in the exercise of the rights guaranteed in Section (7) of
the Act by:
a. Threatening employees with plant closure if they select
the Union as their collective-bargaining representative.
b. Soliciting employees’ complaints and grievances.
c. Promising employees benefits and improved terms and
conditions of employment.
354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The facts set forth above are not in conflict in the record.
d. Interrogating employees about their union interest, sym-
pathies and activities.
e. Telling employees other employees in unionized plants
had reduced working hours and no contract.
f. Telling employees it would be futile for them to select
a union as their collective-bargaining representative.
g. Interrogating employees about their union sympathies
and polling them about their support for the union by the dis-
tribution of antiunion hats.
h. Verbally promulgating a rule restricting employees from
distributing union handbill on company property during non-
working time and threatening them with unspecified reprisals
if they violated the rule.
i. Verbally promulgating a rule restricting employees ac-
cess to outside premises of the Respondent’s facility during
nonworking time.
j. Interrogating employees regarding their union member-
ship and activities.
k. Threatening employees with loss of benefits if they se-
lected the union as their collective-bargaining representative.
l. telling employees Respondent would never sign a con-
tract with the union.
m. Threatening employees with loss of employment, if
they selected the union as their collective-bargaining rep-
resentative.
On August 2 and 23, 1989, the Respondent filed an an-
swer and an amended answer, respectively, to the amended
consolidated complaint denying that it has engaged in unfair
labor practices as alleged.
The hearing in the above matter was held before me in
Memphis, Tennessee, on February 20, 21, and 22, 1990.
Briefs have been received from counsel for the General
Counsel and counsel for the Respondent, respectively, which
have been carefully considered.
On the entire record in this case, including my observation
of the demeanor of the witnesses, and my consideration of
the briefs filed by respective counsel, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Ring Can Corporation, and RAPAC, a
Joint Venture Between Ring Can Corporation and Micro-
wave Development, Inc., a Joint Employer, is and has been
at all times material a corporation with an office and place
of business in Oakland, Tennessee (Respondent’s facility),
and has been engaged in the manufacture of metal and plas-
tic containers and the extrusion of expanded polystyrene pel-
lets.
During the past 12 months, the Respondent, in the course
and conduct of its business operations described above, sold
and shipped from its facility products, goods, and materials
valued in excess of $50,000 directly to points outside the
State of Tennessee.
Also, during the same time, the Respondent, in the course
and conduct of its business operations above described pur-
chased and received at its facility products, goods, and mate-
rials valued in excess of $50,000 directly from points outside
the State of Tennessee.
The complaint alleges, the answer admits, and I find that
Respondent is and has been at all times material an employer
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
Furniture Workers, Division, I.U.E., Local 282, AFL–CIO is,
and has been at all times material a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Information
Respondent is a Tennessee corporation with an office and
place of business in Somerville where it is engaged in the
manufacture of metal and plastic containers and polystyrene
pellets.
Some time in January 1989, the Furniture Workers Divi-
sion, I.U.E. (the Union) commenced organizing Respondent’s
employees. The campaign continued during February, March,
and April 1989. The Union filed a petition for representation
on May 8, 1989, and an election was held on Thursday, June
29, 1989.
The tally results were 41 votes against and 36 votes for
the Union, and 5 ballots were challenged which was not de-
terminative of the election. Following the filing of objections
on July 6, 1989, an investigation was conducted and Objec-
tions 2, 3, 5, 6, 7, 8, and 9 were set for hearing because they
were coextensive with allegations in the consolidated com-
plaint and could best be resolved on record testimony.
An order consolidating Cases 26–CA–13231, 26–CA–
13273, and 26–RC–7160 and an amended consolidated com-
plaint was issued September 19, 1989.
The parties stipulated that at all times material, the fol-
lowing named persons occupied the positions set opposite
their respective names, and are now and have been at all
times material, supervisors of the Respondent within the
meaning of Section 2(11) of the Act, and agents of the Re-
spondent within the meaning of Section 2(13) of the Act:
Ron Larner Plant Manager
Wayne Kleist Supervisor
Wade Bonner Supervisor
Greg Bryant Supervisor
Freddie Williams Supervisor
Pete Libby Supervisor
Chuck Fletcher Supervisor
Terry Coon Supervisor
The parties stipulated that Joe Krueger is a supervisor and
plant manager of the metal division. By stipulation, para-
graph 7 of the consolidated complaint was deleted.1
Issues
1. The subordinate issues presented for determination are
whether Respondent:
a. Threatened employees with reprisal, loss of benefits,
employment and plant closure if the employees selected the
union as their collective-bargaining representative.
b. Coercively interrogated employees concerning their
union membership, activities and sympathies.
c. Promised employees increased benefits and improved
terms and conditions of employment during the Union cam-
paign.
355RING CAN CORP.
2 Based on the demeanor of Supervisor Williams, and the demeanor and
consistently corroborating testimony of the above-identified employee wit-
nesses, I am persuaded that Williams met with all six employees between May
11 and 31, 1989, as the employees testified. If Williams had in fact met with
all of them between late March and mid-April as he testified he did, some
Continued
d. Created the impression of surveillance of employees’
union activities.
e. Informed employees it would be futile to select the
union as their collective-bargaining representative.
f. Promulgated rules restricting employees’ distribution of
handbills and access to employer’s outside premises during
nonworking time.
2. Whether Respondent engaged in conduct which inter-
fered with a free and fair election, affecting the election by:
a. Threatening union supporters with arrest.
b. Forbidding employees’ distribution of union literature
on company property.
c. Threatening employees with plant closure.
d. Soliciting complaints and grievances.
e. Promising improved benefits and terms and conditions
of employment.
f. Informing employees of the futility and adverse con-
sequence of unionization.
B. Union Activity of Respondent’s Employees
Willie Rudd, president of the Union, testified without dis-
pute that the Union (Local 282) held a series of meetings
commencing a union campaign with Respondent’s employees
in January 1989. Supporting Rudd’s testimony is the testi-
mony of Daisy Billingsley, who signed a union authorization
card February 23, 1989. Other employees signed union cards
and attended union meetings between February and April
1989.
The uncontroverted and credited evidence of record shows
that on March 15 Dean Owens became president of the Re-
spondent. He immediately detected a high degree of em-
ployee turnover at all the Respondent’s 13 plants located in
9 different States. Owens met with the senior staff on March
15, 1989, and introduced his concept of a ‘‘Win-Win’’ pro-
gram. The program was defined as a philosophy that what-
ever each employee does well would be done with an effort
to satisfy the customers, the suppliers, the employees and the
community.
Owens met with plant managers from each of its 13 plants
in San Destin, Florida, on April 7 and 8, 1989. He said he
wanted all company employees, customers, and suppliers to
have input into the way the Company does business. Large
‘‘Win-Win’’ banners were displayed at the meetings and
each plant was later furnished with a ‘‘Win-Win’’ banner.
Each plant manager was directed to meet with their super-
visory staff and explain the Win-Win program to them first.
Thereafter, each supervisor was to contact each employee
and explain the program to them individually. However, nei-
ther the ‘‘Win-Win’’ concept nor the program was ever more
fully explained as described orally, or in literature.
A week later, on or about April 15, 1989, in response to
Vice President Peter Libby’s directive, Ronald P. Larner,
manager for the Somerville plant in question, met with plant
managers, supervisors, and employees and expressed the
company’s concern about the reason for the turnover prob-
lem—why the biggest majority of employees leave Respond-
ent’s employ in all of its plants in less then 90 days. Present
at the meetings were production supervisor, Mike Tailor, and
maintenance supervisor, Johnny Hoof, as well as Supervisors
Freddie Williams, Greg Bryant, and Wade Bonner. After the
program was explained to the supervisors they were asked to
give every employee a chance for input on how to make Re-
spondent a better place to work. Manager Larner directed the
supervisors to have followup meetings after the ‘‘Win-Win’’
program was explained to the employees. In compliance with
Manager Larner’s directive, the supervisors met with indi-
vidual employees under their supervision.
Respondent’s vice president of operations testified that he
first learned about the employees’ union organizing effort on
May 8, 1989, the day before Respondent received the peti-
tion for representation on May 9, 1989.
Letter in Dispute
In an effort to establish that Respondent had knowledge of
the employees’ union activity as early as April 1989, counsel
for the General Counsel offered the testimony of Union Rep-
resentative Willie Rudd, and a copy of a letter purportedly
received from the superintendent of Fayette County Schools
(G.C. Exh. 6(b)). The letter, assertedly signed by Respond-
ent’s owner, Ring, was introduced to show that Ring ex-
pressed opposition to the superintendent granting the Union
permission to use a schoolhouse for a union campaign meet-
ing. Counsel for Respondent objected to Rudd’s testimony
and the admission of the letter in evidence.
The hearsay letter was nevertheless admitted in evidence
by the bench to make it a part of the record. Counsel for the
General Counsel did not produce the superintendent as a wit-
ness and Respondent did not produce Ring as a witness with
respect to the authenticity and admissibility of the letter.
Counsel for the General Counsel neither verified the signa-
ture on the letter as being the signature of Ring, nor pre-
sented any corroborating evidence that the letter was from
Ring. Consequently, Respondent did not have an opportunity
to cross-examine the superintendent and neither counsel has
had an opportunity to examine Ring. Under the foregoing
circumstances, I exclude the letter from evidence and any
consideration, and I find that the General Counsel has failed
to establish that Respondent received knowledge of the em-
ployees’ union activity in April, or at any time prior to the
day before Respondent actually received the representation
petition on May 8, 1989.
C. Paragraph 8 of the Consolidated Complaint Alleges
that Respondent Solicited Employee Complaints and
Grievances and Promised Employees Benefits or
Improved Conditions
1. Supervisor Freddie Williams
In testifying, Supervisor Freddie Williams acknowledged
that he called individual employees under his supervision
into his office and asked them ‘‘what would it take to keep
them with the company, and how did they feel about super-
visors and managers.’’ Williams testified that his meetings
with the employees started the third week in March and was
completed by mid-April 1989, instead of between May 11
and 31, 1989, as employees Kent Jones, Glenda Mitchell,
Daisy Billingsley, Jeanetta Richardson, Henry Shaw, and
William Lewis testified.2
356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of his meetings would have occurred prior to the meetings of managers in
Florida on April 7 and 8, 1989, when the ‘‘Win-win’’ program was first intro-
duced to managers. It is obvious that Williams was trying to show that he met
with all of his employees before the Respondent had knowledge of union ac-
tivity which it received, by admission, on May 8, 1989. Consequently, I dis-
credit Williams’ testimony on the timing of the meetings and I credit the testi-
mony of the employee witnesses in this regard.
Supervisor Williams acknowledged he asked each of the
employees under his supervision ‘‘What would it take to
keep them in Respondent’s employ?’’ He did not deny he
also asked them how were the supervisors and managers.
In responding to Williams’ inquiries, employee witnesses
Kent Jones, Glenda Mitchell, Henry Shaw, William Lewis,
and Daisy Billingsley testified that they responded to Wil-
liams questions in language such as ‘‘more money and better
benefits, and greater appreciation of employees by super-
visors and managers, some of whom were fair or okay.’’
Jeanetta Richardson and Henry Shaw said they told Williams
the employees needed a union. Jones said Williams re-
sponded to his answer about ‘‘more money and better bene-
fits’’ by stating, ‘‘the money is coming,’’ with no reference
to the benefits.
Employee Jeanetta Richardson testified that when she told
Supervisor Freddie Williams that she thought the employees
needed a union, Williams said I am glad you brought that
up and he emphasized ‘‘You.’’ He asked her why she felt
the employees needed a union. She told him if she got a
raise, she did not want it taken from her 6 months later. She
asked him what he thought about the Union and told her he
was a company man and he was supposed to be against the
Union. She asked him was that the way he felt or was that
what the Company told him to said. Williams said that was
the way he felt and he did not regret voting against the
Union during the last union campaign; that the benefits, the
money he was making was not worth the benefits the Union
could give. Richardson said Williams than asked her ‘‘What
makes her think the man would do anything if he was
pushed, referring to Mr. Ring [Respondent].’’ Both Shaw and
Richardson said this was the first such meeting they had with
Williams.
2. Supervisor Greg Bryant
Supervisor Greg Bryant acknowledged in his testimony
that he met with individual employees on his shift and asked
them what could the company do to keep them with the
company, and how did they feel about supervisors and man-
agers.
Employee witness Lisa Lester testified that when Bryant
called her to his office on May 16, 1989, Bryant asked her
‘‘what did the company need to do to keep her in its em-
ploy.’’ She said she needed more money, better working con-
ditions, a dental plan and paid holidays. Bryant’s only re-
sponse was he wanted his employees to be happy and work
together. Lester told him the supervisors and managers were
nice to her. She said this was the first time she had met with
Bryant in his office and Bryant did not dispute her testimony
in this regard.
Employee witness Lisa Bryant testified that while in Su-
pervisor Bryant’s office on May 18, 1989, he asked her what
would it take for her to be a life-long employee with Re-
spondent. Lisa Bryant said she told Supervisor Bryant she
did not plan to be there the rest of her life but she thought
the other people who would be there wanted a retirement
plan and more money. When he asked her how she felt about
management she told him they were ‘‘okay—fair.’’ When he
asked her about Respondent’s insurance plan, she told him
she thought the company should pay for the insurance. Bry-
ant told her if the employees had any problems they could
come to him. Supervisor Bryant did not deny he made these
remarks to Lisa Bryant.
Employee Lisa Bryant also testified that she had been
asked question similar to Bryant’s questions by Plant Man-
ager Ron Larner during an April 10, 1989 meeting with the
employees, when the employees were asked what changes
would they like to see.
Employee witness Valerie Wallace testified that on May
16, 1989, Supervisor Bryant called her to his office and
asked her what would it take to keep her working there. She
told him ‘‘more money and better working schedules.’’ Bry-
ant told her Managers Mike Taylor and Ron Larner would
have to talk about that later. Bryant also asked her what she
thought about the supervisors and managers and she told him
‘‘they were not too good.’’ This was the first such meeting
she ever had with Supervisor Bryant.
Employees Valerie Wallace testified that about a week be-
fore May 16, 1989, Supervisor Bryant told her Union Rep-
resentative Willie Rudd was a ‘‘butthole’’ and Bryant had
worked with a union before and that was the reason he be-
came employed by Respondent, because the union was not
any good. Bryant said if the Union came in Respondent
would be like Master Apparel and Somerville Mills, with
employees working 2 or 3 days a week without a contract,
and there is always the probability of employees’ losing
some holidays in order to give them a raise. Bryant said
unions cause a lot of strikes and Sears was closed by the
Union. She asked Bryant what was his definition of a union
and he said ‘‘An Outsider.’’ Wallace said Bryant also said
Langston Bag House’s employees were picketing Langston
and they did not have a contract. A union campaign was in
progress at Master Apparel and Langston by the same union
Rudd represents, Local 282.
Supervisor Bryant did not dispute the testimony of either
Lisa Lester, Lisa Bryant, or Valerie Wallace, but said he
merely recorded their responses to turn them in to Manager
Ron Larner. I therefore credit the uncontroverted testimonial
accounts of Lester, Lisa Bryant, and Valerie Wallace.
Conclusions
Based on the foregoing credited testimony, I find that Su-
pervisors Freddie Williams and Greg Bryant met with em-
ployees on their respective shifts, and without any assurances
against reprisals against them if they selected the Union, so-
licited their complaints and grievances about their continued
work relationship with Respondent, and their individual feel-
ings about their working relationship with their supervisors
and managers.
I further find that in response to employee Kent Jones’
reply (more money and better benefits), Supervisor Freddie
Williams promised Jones ‘‘the money is coming’’ and Super-
visor Greg Bryant acknowledged he recorded the employees
complaints to turn them in to Manager Ron Larner.
Under the above circumstances, it is noted that the Board
said in Reliance Electric Corp., 191 NLRB 44, 46 (1971):
357RING CAN CORP.
3 As I observed Kent Jones testify, I was persuaded not only by his de-
meanor that he was testifying truthfully but also by the fact that his account
illustrates how tactful and cautious Williams was trying to be in discussing
the Union. First it is noted that Williams initiated the subject of the Union
by asking Jones if he knew anything about the Union. When Jones said ‘‘No,’’
Williams volunteered telling Jones a number of things about unionization,
some of which were accurate and some of which were not but all obviously
Continued
Where, as here, an employer, who has not previously
had a practice of soliciting employee grievances or
complaints, adopts such a course when unions engage
in organizational campaigns seeking to represent em-
ployees, we think there is a compelling inference that
he is implicitly promising to correct those inequities he
discovers as a result of his inquiries and likewise urging
on his employees that the combined program of inquiry
and correction will make union representation unneces-
sary.
The Board, continuing, said:
As noted above, there is no doubt that a management
official solicited complaints at the February meetings
and explicitly promised employees that Respondent
would strive to adjust them. While the management of-
ficials, who conducted the May meetings, phrased their
replies to some of the complaints in such circumspect
terms as undertaking to ‘‘look into’’ or ‘‘review’’ them,
or could not recall whether they made a similar re-
sponse to other complaints, such cautious language, or
even a refusal to commit Respondent to specific correc-
tive action, does not cancel the employees’ anticipation
of improved conditions if the employees oppose or vote
against the unions.
Since one of the grievances expressed by nearly every em-
ployee from whom Respondent’s supervisors solicited com-
plaints or grievances was ‘‘more money,’’ Respondent’s
widespread polling or soliciting of the employees implied
Respondent promised that it would remedy this general mal-
content. Raley’s, Inc., 236 NLRB 971 (1978).
Since the timing of the meetings with the employees in
Reliance coincided with the union’s organizing campaigns,
the Board found that the meetings violated Section 8(a)(1) of
the Act.
In the instant case, Respondent (Freddie Williams and
Greg Bryant) did not have a previous practice of soliciting
employee grievances because nearly all the employees testi-
fied without dispute that this was the first time they had been
called in by their supervisor and asked about their complaints
and grievances. Not only was this the first time Respondent
solicited such complaints from its employees, but the solici-
tation took place only a few days or weeks after Respondent
learned on May 8, 1989, about the employees union activity.
Under these circumstances, there is a compelling inference
that Respondent, here, implicitly promised to correct those
employee’s dissatisfactions it learned about by soliciting the
employees. Reliance Electric Corp., supra. However, here,
unlike there, Respondent (Supervisor Williams) did in fact
promise to rectify one of Kent Jones’ complaints of ‘‘more
money’’ when Williams told him, ‘‘the money is coming.’’
The latter statement by Williams constitutes an unequivocal
promise of more money for Jones.
Notwithstanding, Supervisor Williams’ explicit promise to
Jones that ‘‘the money is coming,’’ as counsel for the Gen-
eral Counsel cites, the Board has further held in Uarco Inc.,
216 NLRB 1 (1974), that:
It is not the solicitation of grievances itself that is
coercive and violative of Section 8(a)(1) but the prom-
ise to correct grievances or a concurrent interrogation
or polling about Union sympathies that is unlawful; the
solicitation of grievances merely raises an inference that
the employer is making such a promise, which infer-
ence is rebuttable by the employer. [Id. at 2.]
Not only does the evidence of record fail to show that Re-
spondent periodically held meetings with its employees and
solicited complaints and grievances, but the credited testi-
mony affirmatively establishes that the meetings with the
employees here were the first ever held. Consequently, the
inference that Respondent’s solicitations would be acted on
or rectified if the employees did not select the Union is not
rebutted by Respondent and such solicitations were therefore
in violation of Section 8(a)(1) of the Act. Blue Grass Indus-
tries, 287 NLRB 274 (1987).
Hence, in the instant case, even if Williams had not made
the explicit promise that ‘‘the money is coming,’’ he and Su-
pervisor Chuck Fletcher engaged in concurrent interrogation
or polling of employees about their union sympathies, as is
further described, infra. Consequently, since Supervisors Wil-
liams’ and Fletcher’s solicitation of grievances were not dis-
avowed by either of them, but were also accompanied by in-
terrogation of employees about their union sympathies and
activities, Respondent’s solicitation of grievances was coer-
cive and therefore, in violation of Section 8(a)(1) of the Act.
Uarco Inc., supra.
Moreover, as the Board held in Raley’s, Inc., 236 NLRB
971 (1978), to find that an employer’s solicitation of employ-
ees’ grievances is not coercive simply because the employer
did not express the promise to remedy them, would result in
concluding that such solicitation meetings were a ‘‘largely
meaningless exchange concerning the employee’s grievances
and complaints.’’
Paragraph 8 of the consolidated complaint also alleges that
during their May meetings with employees, Supervisors
Freddie Williams and Greg Bryant either threatened and/or
informed employees of the following consequences if the
employees selected the Union as their collective-bargaining
representative.
In reference to the above allegations, employee Kent Jones
credibly testified that during the May meeting with Super-
visor Williams, the latter asked him if Jones knew anything
about a union. He replied, ‘‘No, not really,’’ and Williams
told him he had been in a union before and there were some
questions Jones needed to ask if he wanted to know anything
about a Union. Among other things, Williams said if the em-
ployees go on strike they could not draw unemployment ben-
efits and the employees ‘‘needed to think about their fam-
ily.’’ Williams said if the employees go on strike they would
not lose their jobs but they could be replaced; and that Ring
(Respondent) did not have to give the employees anything;
that the president of the Union could ask for anything but
Ring could say no as many times as he wanted. Williams de-
nied he told employees it would be futile for them to select
the Union because they would not get anything.3
358 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
having a tendency to intimidate or cause Jones to have doubtful thoughts about
the wisdom of unionization. It was already noted, as the record well reflects,
that although Williams was trying to be tactful in explaining technical aspects
of labor relations to Jones, Williams did not express himself well and had
some difficulty communicating as he testified in this proceeding. Hence, I was
persuaded that his testimony was not altogether truthful and accurate. Williams
manifested an effort to be loyal to the Respondent’s position and in doing so,
I was further persuaded that he told employee Jones that they would not get
anything if they selected the Union because the Union could ask for employee
benefits but the Respondent could say no as many times as he desired.
4 In evaluating Shaw’s testimony in comparison with Williams’ denials, I
particularly note the consistency of Shaw’s account with Kent Jones’ account
of the private conversations Williams held with each of them. Both accounts
reveal the tremendous curiosity of Williams to learn how these employees felt
about the Union, and how Williams’ mostly voluntary comments to them
manifested union animus and suggested to them that it would be futile for the
employees to select unionization. I was also persuaded by the demeanor of
these three witnesses, that Jones and Shaw were giving a truthful and accurate
description of the conversations, and that Williams’ account was less accurate
and most of his denials not truthful. I therefore credit Jones and Shaw’s ac-
count and discredit Williams’ other denials.
Additionally, employee Henry Shaw testified that during
his meeting Williams in late May 1989 Williams asked him
what he thought of the Union and he told Williams he
thought the employees needed a union so they could have
some say-so on company rules. Williams told Shaw that
Union President Willis Rudd would not pay his car note; and
that all the employees would wind up doing is paying union
dues, which they did not need. Williams told him he pre-
viously worked for a company where the employees elected
the Union as their representative. Employees thereafter went
on strike and the company closed down; and that if Respond-
ent’s employees selected the Union, Respondent would prob-
ably close down. Williams denied he made the latter state-
ments.
Shaw said Williams also asked him if he liked to walk a
picket line and Shaw said he told Williams he would if he
had to; that Williams said that is ‘‘what you will probably
end up doing because if the Union comes in,’’ they were
going to strike and close down Respondent. Williams also
denied he made the latter statements to any employees.
Shaw said he asked Williams would Respondent probably
take back the newly painted bathroom, a raise, and a holiday
it had recently given the employees. Williams said he did not
think so, but Respondent could not promise the employees
anything. Williams denied he told the employees they would
lose their jobs or their benefits if they selected the Union.
Since I believe Shaw asked Williams the latter question, I
credit Williams’ latter denial.4
Based on the foregoing and other credited testimony in
this record, I find that during late May and early June 1989
Respondent, by Supervisor Freddie Williams, interrogated
employees Kent Jones and Henry Shaw about their union in-
terest, membership, activities, and sympathies by asking them
during a union campaign what they thought about the Union;
that it threatened employees with loss of jobs; telling em-
ployees Respondent did not have to give the employees any-
thing; and that by telling employees Respondent could tell
the Union ‘‘No’’ as many times as it desired, Respondent
suggested to employees that Respondent would not sign a
union contract, thereby informing or inferring that it would
be futile for the employees to select the Union as their col-
lective-bargaining representative; that Respondent (Williams)
threatened employees with loss of employment by suggesting
that Respondent would probably close down if the Union
came in and the employees went on strike; and that Respond-
ent created the impression among employees that their union
activities were under surveillance by Respondent, by telling
employee Henry Shaw Respondent knew he had been attend-
ing union meetings and what the union representative was
telling the employees; and that all of such conduct by Re-
spondent had a coercive and restraining effect on the exercise
of employees’ protected Section 7 rights, in violation of Sec-
tion 8(a)(1) of the Act.
D. Paragraph 9 of the Complaint Alleges Violations on
or about June 22, 1989
The complaint alleges that on or about June 22, 1989, Re-
spondent Supervisor Chuck Fletcher:
a. Interrogated employees about their union membership,
activities, and sympathies.
b. Threatened employees with loss of benefits if they se-
lected the Union as their collective-bargaining representative.
c. Threatened employees with plant closure if they selected
the Union as their collective-bargaining representative.
d. Informed employees it would be futile for them to se-
lect the Union as their collective-bargaining representative,
by telling them other employees represented by a union had
reduced working hours and no collective-bargaining agree-
ment.
Supervisor Chuck Fletcher
Employee witness John Murphy testified that a week be-
fore the election held on June 29, 1989, Supervisor Chuck
Fletcher told him he wanted to see him in the break room.
There, Supervisor Fletcher told him ‘‘you are a union man,
you know.’’ Murphy told Fletcher he was undecided whether
to vote for or against the Union. Murphy said Fletcher told
him Union Representative Rudd was not any good; that his
dad worked where they had the union and Rudd did not do
anything for the employees—the union was not any good;
that the furniture factory in Memphis closed, and look at
what they did to the employees at Master Apparel where the
employees are hardly working 1 or 2 days a week; and that
Ring Can would probably end up the same way. After Swift
and Charon Douglas came into the breakroom, Fletcher said
if the Union gets in, the recently granted holiday to employ-
ees might get cut off and the employees may lose the credit
union because they may be subject to negotiations; that stu-
dent and part-time employee Charon Douglas might not get
hired anymore because the Respondent would have to nego-
tiate a contract; and that the raise granted may have to be
bided on all over again.
Fletcher told Murphy he was just about to complete his
probation and get a raise, but if the employees voted for the
Union and thereafter go on strike, Respondent had the au-
thority to fire them and they might lose their jobs; and that
the recently acquired insurance benefits to the employees
could be cut off, in order to pay the higher wages. Fletcher
testified that he only gave the employees his personal opin-
ions and Murphy acknowledged Fletcher was expressing his
opinions in this regard. However, the evidence does not show
that all of his opinions were solicited by the employees.
Since Fletcher initiated the conversation, I am persuaded he
volunteered his opinions on subjects other than paid holidays
359RING CAN CORP.
5 In crediting the participating witnesses in the breakroom discussion, it is
noted that Supervisor Fletcher did not deny he told Murphy ‘‘You are a Union
man, you know,’’ or that he told Murphy and other employees that Willie
Rudd and the Union were not any good as well as other statements attributed
to him by Murphy and Douglas. However, as I observed the demeanor of the
witnesses, I was persuaded by the demeanor of the employee witnesses as
compared with the demeanor of Fletcher, that the employees testified with
greater self-assurance and accuracy. Fletcher’s testimony is uncertain as to the
time of the conversation as well as to some aspects of the contents of the con-
versation. I particularly noted that it was Supervisor Fletcher who admittedly
called Murphy into the breakroom and initiated the conversation, by first call-
ing Murphy a union man. When employees Douglas and Swift appeared at the
site of the conversation, Fletcher continued to discuss the Union, unionization
of other companies, and some of the labor relations problems they were hav-
ing. Under these circumstances, I am persuaded the employees, particularly,
Swift and Douglas, did ask some questions of Fletcher, such as would Douglas
be hired next summer. However, I am persuaded by the demeanor of the wit-
nesses, as well as the partially corroborating testimony of Douglas, that Mur-
phy and Douglas were testifying truthfully with respect to Fletcher asking
them what they thought about the Union and whether they had attended union
meetings, as well as Fletcher informing them of some adverse consequences
of unionization. That is, that Rudd and the Union were not any good, and that
Ring Can would probably end up like the Furniture Factory and Master Ap-
parel (reduced working hours, or closed). I do not draw an adverse inference
from the fact that the General Counsel did not call Swift as a witness because
Murphy testified how Swift indicated he was for the Respondent and against
the Union. Phillips may not have been called to testify because of a suspicion
that he too was for Respondent.
and the credit union, and the credited evidence substantiates
this conclusion.
John Murphy further testified that Fletcher asked him had
he been to a union meeting and he replied ‘‘no’’; that Fletch-
er asked David Swift and Charon Douglas had they been to
a union meeting. Charon said ‘‘no’’ and Swift, who was pre-
viously for the Union said ‘‘yes,’’ but thereafter Murphy said
he noted Swift started wearing the ‘‘Win-Win’’ hat and stood
for everything which was against the Union, including oper-
ating the intercom system which Fletcher showed him how
to operate, and saying, ‘‘vote no for Ring Can.’’
Employee witness Charon Douglas corroborated Murphy’s
testimony of the time of the meeting; and that Fletcher asked
David Swift and himself what they thought about the Union.
Douglas said he told Fletcher it did not make any difference
to him and Fletcher told them what could happen if the
Union gets in, like Furniture Workers, with all those employ-
ees out of work.
Douglas further testified that Fletcher asked him about
other factories in Somerville, like Master Apparel. He said
he told Fletcher his father worked at Master Apparel. Fletch-
er asked him how many days a week was his father working
and he told Fletcher at times he worked 2 or 3 days a week.
Fletcher asked him did Douglas want that to happen to him,
because ‘‘he [Fletcher] did not want that to happen.’’
Douglas testified Fletcher also asked them during the same
meeting had they been going to union meetings in Somer-
ville. Douglas told Fletcher he had been to one meeting.
Murphy told Fletcher he had been to some meetings and
David Swift told Fletcher he had been to two meetings.
Fletcher then told him if the Union got in it was possible his
job would be frozen and Douglas might not be able to work
for Respondent next summer.
Chuck Fletcher testified that he became a supervisor April
3, 1989, and that he held a conversation with John Murphy,
Charon Douglas, and David Swift some time before the
union election, he could not recall just when. Fletcher said
Murphy initiated the discussion about layoffs and strikes and
Charon Douglas mentioned Master Apparel where his father
was working 2 days a week. Fletcher also said Douglas
raised the question whether he would be able to return to
work next summer. He told Douglas he did not know be-
cause if the Union is voted in his summer job may have to
be negotiated. Fletcher denied he told any employees they
could lose their jobs if the Union won and they went on
strike; and that he did not bet an employee the employee
would not wear a Win-Win hat for a day. Fletcher also de-
nied he asked employees what they thought about the Union.
Supervisor Chuck Fletcher acknowledged he met with em-
ployees John Murphy, David Swift, and Charon Douglas in
the breakroom but he could not give an approximate date of
their meeting except, that it occurred before the union elec-
tion. Under these circumstances, based on the demeanor of
Murphy, Swift, and Douglas, I credit Murphy’s corroborated
testimony of the date they met with Fletcher (a week before
the election).5
Conclusions
Based on the foregoing credited testimony and other cred-
ited evidence of record, I conclude and find that a week be-
fore the union election, Supervisor Chuck Fletcher:
a. Accused employee John Murphy of being a ‘‘union
man’’ in order to elicit a reaction from Murphy, to which the
latter responded he had not decided how he was going to
vote in the union election; that Fletcher asked employees
Murphy, Swift, and Douglas what they thought about the
Union, and had they attended a union meeting, to which they
responded in the affirmative; that Fletcher did not assure ei-
ther employee against reprisals for engaging in union activ-
ity; and that, I find, under such circumstances, Fletcher’s
(Respondent) interrogation of Murphy, Swift, and Douglas
was coercive and in violation of Section 8(a)(1) of the Act.
Southwire Co., 282 NLRB 916 (1987).
b. During his interrogation of the employees, Fletcher
threatened employees with loss of a recently granted raise
and their insurance benefits if the employees selected the
Union as their collective-bargaining representative. By so ad-
vising employees Murphy, Swift, and Douglas, without any
subsequent disavowal of the validity of such eventualities by
Supervisor Fletcher, I find such a threatening prophecy, or
unsolicited opinions of a supervisor, had a coercive and re-
straining effect on the exercise of employees’ protected
rights under Section 7, and therefore violated Section 8(a)(1)
of the Act. Blue Grass Industries, 287 NLRB 274 (1987).
I do not find that Fletcher threatened employees Murphy,
Swift, and Douglas with loss of holidays and the credit union
because Murphy admitted Fletcher was expressing his per-
sonal opinion in this regard, and presumably in response to
the curiosity of Murphy.
c. During the same interrogation, Supervisor Fletcher told
employees Murphy, Swift, and Douglas that if the employees
selected the Union as their collective-bargaining representa-
tive and the employees thereafter go on strike Respondent
had the authority to fire them; that Respondent will probably
end up like Furniture Worker Company (in the community)
which closed down and the employees were out of work; and
that such unqualified forecasting statements by Supervisor
Fletcher, without any disavowals or assurances against repris-
als against employees for their union activity, constituted a
threat of loss of jobs and plant closure. As such, Fletcher’s
360 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
statements had a coercive and restraining effect upon the ex-
ercise of employees’ protected Section 7 rights, in violation
of Section 8(a)(1) of the Act. Blue Grass Industries, supra.
d. During the same interrogation conversations, Supervisor
Fletcher informed employees Murphy, Swift, and Douglas
that other unionized companies like Furniture Worker had
closed down and Master Apparel’s employees were working
2 or 3 days a week without a collective-bargaining agree-
ment; and that the same union and Representative Willie
Rudd were not any good and they did nothing for the em-
ployees at one of the aforementioned unionized companies.
Such statements by Supervisor Fletcher, without disavowal of
any of them not only manifested union animus, but also:
e. Threatened employees with loss of employment if they
selected the Union.
Fletcher’s statements that Union Representative Rudd and
the Union were not any good because they did nothing for
employees at another unionized company, and as such, tend-
ed to influence the employees that it was futile for them to
select the union as their collective-bargaining representative.
These unsolicited statements by Fletcher only a week before
the election had a coercive and restraining effect on the exer-
cise of employees’ rights protected by Section 7. Con-
sequently, Respondent’s conduct was in violation of Section
8(a)(1) of the Act. Coradian Corp., 287 NLRB 1207 (1988).
Paragraph 9 of the complaint also alleges that Respondent
(Supervisor Chuck Fletcher):
(2) On or about June 23, 1989, at its Oakland, Ten-
nessee facility interrogated its employees regarding
their union sympathies and polled its employees con-
cerning their support for the Union through its distribu-
tion of anti-union hats.
Employee Jeanetta Richardson testified essentially without
dispute that after the date for the election was scheduled
Company President Pete Libby started having meetings with
the employees every Thursday at 2:30 p.m. in the engineer-
ing office. In a meeting with all 30–35 employees, a week
before the election, Libby told the employees he had ‘‘Win-
Win’’ hats for anyone who wanted one; that the ‘‘Win-Win’’
program meant new customers, and products for new cus-
tomers. The hats were in a large box at the front of the meet-
ing room where all persons in the room had to come near
or pass as they went out of the only exit of the room. Man-
ager Ron Larner was standing next to the box with one hat
in his hand. Other supervisors were present, including Super-
visors Freddie Williams and Jimmy Miles. As the employees
left the room, they either passed by the box or came to the
front near the box and some of them took hats and others
did not. Richardson said she and some other employees were
wearing a union bottom. Richardson’s testimony is substan-
tially corroborated in this regard by employee Daisy
Billingsley, who added, that Managers Libby and Larner, as
well as Supervisor Williams were in a position where they
could see employees who took a hat and those who did not.
Libby said a lot of you are wearing different kinds of hats
and we will be wearing ‘‘Win-Win’’ hats. In this regard,
Billingsley’s testimony is uncontroverted.
In his speech to the employees on June 27, 1989 (R. Exh.
4), President Peter C. Libby testified that over the weekend
there had been a union meeting. On Monday, he said the
rumor circulated through the plant that the employees had
been cautioned at the union meeting that Respondent would
probably use scare tactics by threatening to shut down the fa-
cility if a union was voted in. So on Tuesday and Wednes-
day, June 27, he told the employees that was not true; that
the Company was headquarters of a corporation, and that
there was no way we would shut down the facility.
Employee Henry Shaw testified he attended a company
called meeting approximately 2 weeks before the election
where Libby was wearing a ‘‘Win-Win’’ hat and others were
on hand for employees who wanted one. Shaw recalls Libby
telling the employees that Union President Willie Rudd will
try to scare them by telling them Respondent will shut down
if the Union is selected, ‘‘but we have not said that.’’ He
promised the employees that their jobs will remain exactly
the same if the Union is selected. He also told them the em-
ployees’ had the right to form a union—to organize—and
that it did not make any difference which way they voted.
However, Shaw further testified that Libby did not specifi-
cally tell them that notwithstanding what any management
person might have told them, the employees would not lose
their jobs or the plant will not shut down, as had in fact been
forecasted by Supervisors Williams and Fletcher. Nor did
Libby tell them that supervisors would not threaten them, or
any such threats would not be carried out, if the Union is
selected as Supervisors Williams, Bryant, and Fletcher had
specifically done prior to the election. Under these cir-
cumstances, I find that President Libby’s statements to the
employees that Respondent would not shut down were made
in defense of what Libby called rumors of threats of plant
closure, attributed to Union Representative Rudd (the Union).
Such a general blanket disavowal of what a union representa-
tive might have said at a union meeting is not specific
disavowals in response to specific threats, interrogation, and
antiunion statements made by Respondent’s supervisors to
the employees.
As the Board stated in Passavant Memorial Area Hospital,
237 NLRB 138 (1978), an employer may relieve itself of li-
ability for unlawful questions and statements by repudiating
them. To be effective however, the repudiation must be time-
ly, unambiguous, specific in nature as to the coercive con-
duct, and free from other proscribed illegal conduct. In the
instant case, Libby’s statements were not specific in nature,
timely, nor responsive to the statements and questions by su-
pervisors, and therefore do not satisfy the criteria enumerated
by the Board. Certainly, Respondent’s conduct in this regard
was not free from the numerous illegal conduct found here.
Passavant Memorial Area Hospital, supra.
Employee Valerie Wallace testified that when she was
leaving the plant at the parking lot gate on June 21, 1989,
Supervisor Teary Keelin pulled up in his truck, got out and
asked her, in the presence of employee Carl Watkins, where
was her ‘‘Win-Win’’ hat. She told him she did not want one,
and he left. At that particular time, she said she was wearing
her ‘‘jobs for justice’’ pin for the Union.
Conclusions
It is clear from the foregoing essentially uncontroverted
and credited testimony that Respondent did promote the
Company’s program by making its slogan ‘‘Win-Win’’ hats
available to the employees at a company called meeting only
a few days before the union election. Since the Company’s
361RING CAN CORP.
6 Although Supervisor Williams denied he interrogated employees about
their union membership, activities, and sympathies, I was not persuaded by his
demeanor that he was testifying truthfully. Williams’ demeanor and his testi-
mony throughout this proceeding, clearly demonstrate that he was the most ac-
tive company proponent against unionization of the company. Many of his
statements on the record to Henry Shaw, Emmerson Gatewood, and to other
employees manifest union animus. The record also partly reflects how Wil-
liams was often selective in his answers to questions. On the other hand, both
Shaw and Gatewood testified in a straightforward manner absent any appear-
ance of bias. The substance of their testimony lacks any appearance of being
contrived but manifest a ring of consistency which matches the demeanor of
Williams that I observed. Consequently, I credit the testimony of Gatewood
and Shaw, and I discredit Williams’ denials and explanations.
‘‘Win-Win’’ program was in effect prior to Respondent’s re-
ceipt of knowledge of the employees’ union activities on
May 8, 1989, it would appear, at first glance, that Respond-
ent did nothing contrary to employees’ Section 7 rights.
However, when it is noted that Respondent had not only
made the hats available to the employees by allowing them
to take or not to take a hat from an unsupervised box of hats
as they left the exit door of the plant, but that Respondent
previously announced in the company called meeting of all
employees and supervisors that the hats were available for
anyone who wanted one. This was after President Libby had
already made reference to the fact some employees were
wearing different hats but stated, we are wearing ‘‘Win-
Win’’ hats.
Additionally, Plant Manager Ron Larner stood beside the
box of hats, and President Libby, and Supervisors Williams
and Jimmy Miles were all in a position to see which employ-
ees took a hat, and which employees did not. Under such cir-
cumstances, the logical inference from such an arrangement
is that most employees who took a hat would probably favor
the employer in the election, and those employees who did
not take a hat would probably favor the Union.
Given the Respondent’s meeting arrangement and distribu-
tion of the hats, I find that the employees were deprived of
a free and private choice in selecting a collective-bargaining
representative; and that the Respondent’s promotion of its
program under such circumstances, had a coercive effect on
the exercise of employees’ Section 7 rights, in violation of
Section 8(a)(1) of the Act. Porta System Corp., 238 NLRB
192, 199 (1978), enfd. 625 F.2d 399 (2d Cir. 1980).
E. Paragraph 13 of the Complaint Alleges that
Respondent Interrogated Employees Concerning
Employees’ Union Membership, Activities,
and Sympathies
Supervisor Freddie Williams
Employee Emmerson Gatewood testified he was called to
the office by Supervisor Williams 2 weeks before the elec-
tion, held on June 29, 1989, in which Williams asked him
what did he think about the Union. He told Williams he did
not know anything about the Union and asked Williams
‘‘why don’t you tell me about it.’’ Williams denied he asked
any employees how they felt about the Union. Nevertheless,
Gatewood further testified that Williams told him he knew
the Union was telling them about their side, but they have
never told you about the Respondent’s side. When he asked
Williams about his raise he was to receive 90 days after his
probation, Williams told him, ‘‘you know you will get your
raise when 90 days elapse, but if the Union comes in you
would not get it because everything will be frozen until an
agreement is reached through bargaining.’’ As Gatewood was
leaving the office, Gatewood said Williams called him back
and told him he would receive his raise even if the Union
came in—‘‘you are a young man . . . I won’t put up with
no bull shit.’’
Gatewood said Williams also asked him how did he think
he got hired so fast, ‘‘Did he think his step mamma helped,’’
and he said ‘‘no.’’ Gatewood said he put in an application
and Williams said he Knew that, but you got hired the same
day, and Gatewood said ‘‘right.’’ Williams told him the rea-
son he got hired so fast was because ‘‘My dad and Mike
Taylor are real close’’; that Mike Taylor is a nice guy and
he will help people but he has some people around here who
don’t want to help him.
Employee Henry Shaw testified that about a week before
the union election, Williams sent for him and asked him
what did he think about the Union. He said he told Williams
he still thought the Union should come in. Williams asked
him how did he feel about walking the picket line and he
replied that he would still walk the picket line. Williams said
‘‘You mean you’re still willing to walk a picket line when
18 wheelers are trying to get in,’’ and he said ‘‘Yes.’’ Wil-
liams said he ‘‘was going to get in if he had to run over
someone.’’ However, Williams denied he asked any employ-
ees what they thought about the Union.
Shaw said Williams also told him
I know you’ve been going to Union meetings and
Willie Rudd (Union President) has been filling your
head up that you will be making more money if the
Union comes in, but Troxel (a union company) does
not have a contract, and neither has Somerville Mills (a
unionized company), and Master Apparel (a union com-
pany) is closing down; and that would probably happen
here if the Union comes in.6
Conclusions
I conclude and find on the foregoing credited testimony
that during the last 2 weeks before the union election held
on June 29, 1989, Supervisor Freddie Williams (Respondent)
sent for employee Gatewood and, on another occasion, called
employee Shaw into his office and initiated conversations
with each of them as follows:
a. Asked employees Gatewood and Shaw what they
thought about the Union. By asking the employees such a
question, only a few days before the union election, and
without giving them any assurances against reprisals for their
union interest or activity, Respondent coercively interrogated
employees Gatewood and Shaw about their union member-
ship, activities, and sympathies. Southwire Co., 282 NLRB
916 (1987).
b. Told employee Gatewood he knew Gatewood was at-
tending union meetings and that the Union was telling the
employees its side but not telling the Company’s side. Wil-
liams told employee Shaw he knew Shaw had been going to
union meetings and that Union President Willie Rudd was
filling his head up that he and other employees will make
more money with a union. Such statements by Respondent
created the impression among the employees that their union
activities were under surveillance by the Respondent. Gupta
Perimold Corp., 289 NLRB 154 (1988).
362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
c. When Supervisor Williams asked Shaw what he thought
about the Union, Shaw told him he thought the Union should
represent the employees. Williams asked Shaw for the sec-
ond time how he felt about walking a picket line. When
Shaw told Williams he would still walk a picket line, Wil-
liams asked him, even if an 18-Wheeler was trying to get in.
When Shaw said ‘‘yes,’’ Williams said he would get in even
if he had to run over someone. It is clear that such extensive
questions and statements by Respondent constituted union
animus and coercive interrogation of employees only a week
before the election. Southwire Co., supra.
d. Respondent (Williams) asked employee Gatewood if he
knew why he was hired so quickly. When Gatewood stated
he applied for the job, Williams immediately informed him
that he was hired quickly because his father was socially
close with Plant Manager Mike Taylor. Williams also stated
that Manager Taylor was a nice guy and would help people,
but some people [employees] do not want to help him (infer-
entially, by not voting for the Union). By the latter state-
ments Williams implicitly threatened Gatewood that he
would be fired just as rapidly as he was hired, through the
same connections by which he was hired, if the employees
selected the Union. Link Mfg. Co., 281 NLRB 294 (1986).
e. Supervisor Williams told employee Shaw there were
two other unionized companies in or near the community
that did not have a union contract, and that another unionized
company (Master Apparel) was closing down, and that would
probably happen to Respondent (if the Union came in). Such
statements by Williams constituted a threat of plant closure,
without any factual basis for his prediction. Coradian Corp.,
287 NLRB 1207 (1988).
It is therefore clear that all of the above questions and
statements with employees, only 2 weeks before the union
election, and without any disavowal or assurances to employ-
ees against reprisals by Respondent, had a coercive and re-
straining effect on the exercise of employees’ Section 7
rights, and were clearly in violation of Section 8(a)(1) of the
Act.
F. Allegations in Paragraph 10 of the Complaint
a. Respondent President Peter Libby verbally promulgated
a rule restricting employees from distributing union handbills
on Respondent’s property during nonworking time.
b. Paragraph 11 of the complaint alleges the verbal pro-
mulgation of the rule threatened the employees with unspec-
ified reprisals if they violated the rule.
Employee Joan McKennon, an inspector-packer, has been
employed by Respondent over 10 years. Employee Correy
McFerren was employed by Respondent from 1983 until Au-
gust 1989. Both McKennon and McFerren testified that at
about 11 a.m. on the day of the election (June 29, 1989) they
had union handbills for distribution to the employees. Con-
sequently, they stood outside by the steps of the plant near
a lunch truck waiting for the employees to come out on their
break. They noticed Supervisor Joe Kreiger came out of the
door and immediately went back in. A few minutes later,
President Peter Libby came out of the door and told them
‘‘if you don’t want to mess up your plans, you’d better get
off the property.’’
McKennon and McFerren left their position near the door
and went down to the end of the road, 20 or more feet away
from the door, and waited for the employees to come out for
30 minutes lunchbreak. McKennon acknowledged that was
the only day any official of Respondent ever told them not
to handbill on Respondent’s property.
President Peter Libby acknowledged he saw McKennon
and McFerren with handbills just outside the personnel and
shipping door on the morning of the election; and that he
thought about the 24-hour rule against campaigning before
the election. With that in mind, he asked McFerren and
McKennon to leave the location because he felt they might
be violating the 24-hour rule and jeopardizing their position
(a valid union election). McKennon and McFerren quitely
went down to the end of the road where no one from man-
agement said anymore to them.
McKennon testified that no one had told them that cam-
paigning within 24 hours of an election was prohibited.
Conclusions
The above testimony is essentially uncontroverted and
credited.
Although employees McKennon and McFerren acknowl-
edged Respondent did not prohibit them from handbilling on
its property before the day of the election, the fact that Presi-
dent Libby ordered them to leave the location on company
premises is not protected by the 24-hour rule. The latter rule
applies to speeches by employers to captive massed assem-
blies of employees within 24 hours of a union election. Peer-
less Plywood Co., 107 NLRB 427 (1953). However, cam-
paigning on the premises, away from the balloting or polls
area is not prohibited by regulations governing elections.
In fact the Board has held that in the absence of a safety
or compelling business reasons for its action, employees have
a statutorily protected right to distribute campaign literature
in parking lots or other nonworking areas on their own time.
EPE, Inc., 284 NLRB 21 (1987). An employer’s prohibition
against the distribution of union literature by off duty em-
ployees was held in violation of 8(a)(1) of the Act. Pizza
Crust Co., 286 NLRB 45 (1987).
Since Respondent in the instant case ordered handbilling-
employees McKennon and McFerren off its premises, such
order constituted a verbal promulgation of a rule by Re-
spondent, restricting employees from handbilling on their
own time. Such a rule violated the Act. EPE, Inc., supra.
President Libby’s added ultimatum to them ‘‘if you don’t
want to mess up your plans’’ constituted a threat of unspec-
ified reprisals if the employees did not leave the property is
also in violation of Section 8(a)(1) of the Act. Pizza Crust
Co., supra.
G. Allegations in Paragraph 12 of the Complaint
a. On or about June 22, 1989, Respondent Supervisors
Freddie Williams and Greg Bryant promulgated a rule re-
stricting employees access to the outside premises of Re-
spondent’s plant during employees’ nonworking time.
A composite of the essentially corroborated and credited
testimony of employees Kent Jones, William Lewis, Daisy
Billingsley, Jeanetta Richardson, and Emmerson Gatewood,
as well as Supervisors Freddie Williams and Greg Bryant,
established that between 11 and 11:25 p.m. after the shift on
June 22, 1989, employees Kent Jones, William Lewis, Daisy
Billingsley, and Jeanetta Richardson walked out of the plant
to a distance of about 20 feet, stopped, and engaged in a
363RING CAN CORP.
conversation. As they stood there conversing, employees
Henry Shaw, Emmerson Gatewood, probably Barbara Jones,
and other employees exited the plant and proceeded walking
toward the parking lot.
A few minutes later, Supervisor Williams came out of the
plant and approached Jones, Lewis, Billingsley, and Richard-
son and told them they had to get in their cars and get off
the parking lot. Richardson said ‘‘we haven’t been leaving.’’
Jones said he kept walking. The employees nevertheless con-
tinued to walk slowly toward the parking lot, stopping at
times.
Supervisor Williams came out of the plant again and or-
dered the employees to leave the premises. They told him,
they were not in any hurry. At that time, Supervisor Greg
Bryant came out of the plant and Williams asked Bryant to
call the police. A few minutes later the police arrived and
approached and talked with Supervisor Williams and Bryant.
Thereafter, the police approached Richardson, Billingsley,
Jones, and other employees and told them Supervisor Wil-
liams said he was having problems with them standing on
the property, and if they did not leave, they would have to
accompany them in their squad cars.
Both employees Kent Jones and William Lewis testified
that employees had previously congregated on the premises
after the work shift on many occasions and had never been
directed to leave the premises. Jones testified employees
have previously remained on the premises as long as two to
three hours after the shift and employee Lewis said Super-
visor Williams had previously sat outside and talked with
them.
Employees Jones, Billingsley, and other employees denied
they were talking loud or using profane language while con-
versing on the parking lot.
Supervisor Freddie Williams testified that on the night in
question (June 22) he looked out the door at 11:20 p.m., as
he routinely does at the end of his shift, and he saw the un-
usual congregation of employees making a lot of noise and
cursing. He could not recall who was cursing. Employees
Jones, Richardson, and others denied the employees were
talking loud or using profane language. Supervisor Williams
nevertheless testified that earlier in the day on June 22, 1989,
employees Maggie Anderson and Helen Kiest and Manager
Mike Taylor told him that employee William Lewis had been
carrying a knife or weapon for him (Williams). Lewis denied
he had a knife. Williams said he had decided to go outside
and ask the employees to leave the premises. He said
Jeanetta Richardson told him to go get ‘‘Flld.’’ Super-
visor Greg Bryant came outside 5 minutes later. Williams
said he was concerned about the safety because there had
been incidents of vandalism (slashing of tires or breaking
into cars). Richardson testified that her tires had been slashed
2 years ago but she had not heard of any further incidents
of vandalism. Supervisor Williams denied he told the em-
ployees he was making a rule that employees could not tarry
outside the plant after the shift.
On further examination, Supervisor Williams acknowl-
edged that neither he nor any other member of management
called employee William Lewis to the office and questioned
him about possessing a knife or weapon; and that he admit-
ted he did not see Lewis with a knife when he approached
the employees on the lot. He acknowledged he was not
threatened by any employee and that he had never asked em-
ployees to leave the premises prior to this time. He said they
never hung around the premises that long. However, employ-
ees Kent Jones and William Lewis testified that employees
did tarry on the premises after the 3 to 11 p.m. shift and I
credit their testimony because I was persuaded by their de-
meanor and all the credited evidence of record, infra, that
some employees, including Supervisor Williams have pre-
viously tarried on the premises after the work shift.
Conclusions
Although Supervisor Williams testified he directed the em-
ployees to leave the Company’s property on June 22 because
he had received rumors that day that employee William
Lewis had a weapon (knife) for him, I am not persuaded by
Williams’ contended reason for his action because the
sources of the contended rumor, neither Maggie Anderson
nor Helen Kiest appeared and testified, and Manager Mike
Taylor did not corroborate Williams’ testimony of the rumor.
William Lewis acknowledged he and other employees have
access to a knife as a tool in the performance of their jobs,
but he denied he carried or had a knife on his person before
or after the work shift on June 22.
Moreover, neither Supervisor Williams nor any other
member of management called employee Lewis or otherwise
investigated the rumor. It is also particularly noted that Wil-
liams assumed all risk of verifying the contended rumor by
walking outside by himself where Lewis and other employ-
ees were congregated. I am not persuaded that Williams
would have assumed such a risk if there was in fact such a
rumor. Williams acknowledged that no one threatened him
when he approached and directed the employees to leave. In
the absence of threatening, loud and profane language, or
evidence of violence, I am persuaded that calling the police
with the threat of arrest was excessive and motivated by the
employees’ union activities and the union animus of Wil-
liams. This is especially persuasive since employees have loi-
tered on Respondent’s property after the shift on prior occa-
sions and were never ordered to leave.
Additionally, it is particularly noted that Supervisor Wil-
liams was the most active antiunion member of management.
He was involved in nearly all alleged unlawful conduct in
the complaint, and most of the evidence introduced in sup-
port thereof, and thus far, has been found involved in most
of the unlawful conduct by the Respondent. Under these cir-
cumstances, I find that Williams’ contended rumor of an em-
ployee having a weapon is not substantiated by the evidence.
I discredit his assertion and the contended reasons for order-
ing and enforcing the employees departure from the premises
on June 22. I further find, in view of Williams and Bryant’s
previously found unlawful conduct, that such conduct by Su-
pervisors Williams and Bryant constituted a verbal promulga-
tion of a rule a week before the election, restricting employ-
ees access to the outside premises of Respondent’s facility
during employees’ nonworking time; and that such a rule and
the enforcement of it by the Respondent coerced and re-
strained the employees in the exercise of their protected Sec-
tion 7 rights, in violation of Section 8(a)(1) of the Act.
Local 282’s Objections to the Election
The question presented for determination is whether the
established unfair labor practices committed by Respondent
364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
during the organizing campaign of its employees were of
such consequential magnitude as to have interfered with the
election process and preventing a free and fair election.
In this regard, the credited evidence of record established
that during the critical period between the filing of the peti-
tion for representation on May 8, 1989, and the date of the
election, June 29, 1989, Respondent committed the following
unfair labor practices:
Objection 2 relates to the substantiated allegation in para-
graph 12 of the complaint that a week before the election,
the Respondent promulgated a rule restricting employee’s ac-
cess to its outside premises during the nonworking time of
employees.
Objection 3 relates to substantiated paragraphs 10 and 11
of the complaint that Respondent verbally promulgated a rule
on election day, which restricted employees from distributing
handbills on
Respondent’s property during employees’ nonworking
time, and that on the same date or dates threatened employ-
ees with unspecified reprisals if they violated the rule.
Objection 5 relates to paragraph 7 of the complaint which
was deleted by stipulation of the parties, and to the substan-
tiated allegation in paragraph 9(1)(c) of the complaint, that
a week before the election, Respondent threatened the em-
ployees with plant closure if the employees selected the
Union as their collective-bargaining representative.
Objections 6 and 7 relates to substantiated paragraph 8 of
the complaint that between May 11 and 18, 1989, after the
representation petition was filed on May 8, 1989, and before
the election on June 29, 1989, Respondent solicited employ-
ees’ complaints and grievances, promised employees in-
creased benefits and improved conditions of employment.
Objection 8 relates to substantiated paragraphs 9(1)(d) and
13(3) that by telling employees or implying on or about June
22, 1989, that employees in other companies represented by
the Union had reduced working hours and no contract, Re-
spondent was informing employees or implying that Re-
spondent would never sign a contract with the Union and
that it would be futile for them to select a union as their col-
lective-bargaining representative.
Objection 9 relates to substantiated paragraph 9(b) of the
complaint that on or about June 22, 1989, Respondent threat-
ened employees with loss of benefits if they selected the
Union as their collective-bargaining representative; and that
in paragraph 9(1)(e) Respondent threatened its employees
with loss of employment if they selected the Union as their
collective-bargaining representative.
Objection 9 relates to substantiated paragraphs 9(1)(b),
9(1)(e), 13(2), 14(2), 14(3) and 15, as follows: that in early
June 1989, Respondent threatened employees with loss of
benefits if they selected the union as their collective-bar-
gaining representative;
Paragraph 14(2), that on or about June 15, 1989, Respond-
ent threatened employees with loss of benefits if they se-
lected the union as their collective-bargaining representative.
Paragraph 14(3) that on or about June 15, 1989, Respond-
ent threatened employees with loss of employment if they se-
lected the Union as their collective-bargaining representative.
Paragraph 15 that on or about the last week in June, 1989,
Respondent threatened employees with loss of benefits if
they selected the Union as their collective-bargaining rep-
resentative.
Consequently, having found that the credited evidence of
record substantiates all the above described objections, I fur-
ther conclude and find that Respondent’s afore-found unlaw-
ful conduct constituted the commission of independent, sub-
stantial, and pervasive unfair labor practices disruptive of fair
election conditions and processes, which prevented the hold-
ing of a free and fair election.
Accordingly, I recommend that the election in Case 26–
RC–13273 be set aside and that the Regional Director for
Region 26 be directed to direct, and supervises the conduct
of an election at such time as the Regional Director deter-
mines that a free election can be held, when compliance with
the Order herein can be voluntarily achieved, after the elapse
of the posting period; and should the Respondent fail to com-
ply with the provisions in the Decision and Order and it is
necessary to enforce the Order by decree of the United States
Court of Appeals, then upon the Respondent’s full compli-
ance with such decree. The Regional Director may also in
his discretion, consider what bearing the five challenges may
have in his decision.
IV. THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I will recommend that it be ordered to
cease and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent threatened employees with
reprisal, loss of benefits, employment and plant closure if the
employees selected the Union as their collective-bargaining
representative, coercively interrogated employees concerning
their union membership, activities, and sympathies; during
the union campaign promised employees increased benefits
or improved conditions of employment, created the impres-
sion among employees that their union activities were under
surveillance by Respondent, informed employees it would be
futile to select the Union as their collective-bargaining rep-
resentative; promulgated a rules restricting employees’ dis-
tribution of handbills (literature) on company premises; and
promulgated a rule restricting employees access to Respond-
ent’s outside premises immediately after working hours, Re-
spondent has restrained and coerced employees in the exer-
cise of protected Section 7 rights, in violation of Section
8(a)(1) of the Act, the recommended Order will provide that
Respondent cease and desist from engaging in such unlawful
conduct.
Because of the character of the unfair labor practices
found here, the recommended Order will provide that Re-
spondent cease and desist from in any like or related manner
interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
NLRB v. Entwistle Mfg., Co., 120 F.2d 532, 536 (4th Cir.
1941).
On the basis of the above findings of fact and the entire
record in this case, I make the following
CONCLUSIONS OF LAW
1. Respondent, Ring Can Corporation, and RABAC, a
Joint Venture between Ring Can Corporation and Microwave
Development, Inc., a Joint Employer, is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
365RING CAN CORP.
7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
8 If this Order is enforced by a Judgment of a United States Court of Ap-
peals, 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.’’
2. Furniture Workers Division, I.U.E., Local 282 AFL–
CIO is and has been at all time material a labor organization
within the meaning of Section 2(5) of the Act.
3. By threatening employees with reprisal, loss of benefits,
employment and plant closure if the employees selected the
Union as their collective-bargaining representative, Respond-
ent has violated Section 8(a)(1) of the Act.
4. By coercively interrogating employees concerning their
union membership, activities, and sympathies, Respondent
has violated Section 8(a)(1) of the Act.
5. By promising employees increased benefits and im-
proved terms and conditions of employment during the union
campaign, the Respondent has violated Section 8(a)(1) of the
Act.
6. Unlawfully soliciting employees’ complaints and griev-
ances.
7. By creating the impression of surveillance of employ-
ees’ union activities, the Respondent has violated Section
8(a)(1) of the Act.
8. By informing employees it would be futile to select the
Union as their collective-bargaining representative, Respond-
ent has violated Section 8(a)(1) of the Act.
9. By promulgating rules restricting employees’ distribu-
tion of union handbills during non-working time, Respondent
has violated Section 8(a)(1).
10. By promulgating a rule restricting employees’ access
to the Company’s outside premises during nonworking time,
Respondent has violated Section 8(a)(1) of the Act.
11. By interfering with, coercing, and restraining employ-
ees in the exercise of their protected Section 7 rights.
On these findings of fact and conclusions of law and the
entire record, I issue the following recommended7
ORDER
The Respondent, Ring Can Corporation, and Rapac, a
Joint Venture between Ring Can Corporation and Microwave
Development, Inc., a Joint Employer, Oakland, Tennessee, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with reprisal, loss of benefits
and employment, and plant closure if the employees select
the Union as their collective-bargaining representative.
(b) Coercively interrogating employees concerning their
union membership, activities, and sympathies.
(c) Promising employees increased benefits and improved
terms and conditions of employment during a union cam-
paign.
(d) Creating the impression among employees that their
union activities are under surveillance by Respondent.
(e) Informing employees it would be futile to select the
Union as their collective-bargaining representative.
(f) Promulgating a rule restricting employees from distrib-
uting union handbills on company property during non-
working time.
(g) Promulgating a rule during a union campaign restrict-
ing employees’ access to Respondent’s outside premises dur-
ing nonworking time.
(h) Unlawfully soliciting employees’ complaints and griev-
ances.
(i) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercises of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at Respondent’s place of business in Oakland,
Tennessee, copies of the attached notice marked ‘‘Appen-
dix.’’8 Copies of the notice, on forms provided by the Re-
gional Director for Region 26, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region in writing
within 20 days from the date of this Order what steps Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT threaten employees with reprisal, loss of
benefits and employment, and plant closure if our employees
select the Union as their collective-bargaining representative.
WE WILL NOT coercively interrogate employees concerning
their union membership, activities, and sympathies.
WE WILL NOT unlawfully solicit employees’ complaints
and grievances.
WE WILL NOT promise employees increased benefits and
improved terms and conditions of employment during a
union campaign.
WE WILL NOT create the impression among employees that
their union activities are under surveillance by us.
WE WILL NOT inform employees it would be futile to se-
lect the Union as their collective-bargaining representative.
366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT promulgate rules restricting employees dis-
tribution of union handbills during nonworking time.
WE WILL NOT promulgate a rule only during a union cam-
paign restricting employee’s access to our outside premises
during nonworking time.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise and enjoyment
of rights guaranteed them by Section 7 of the Act.
All our employees are free to become or remain, or refuse
to become or remain, members of Furniture Workers Divi-
sion, I.U.E., Local 282 AFL–CIO, or any other labor organi-
zation.
RING CAN CORPORATION, AND RAPAC, A
JOINT VENTURE BETWEEN RING CAN COR-
PORATION AND MICROWAVE DEVELOPMENT,
INC., A JOINT EMPLOYER