Rood Industries, Inc.

National Labor Relations Board - Board Decisions

Jan 22, 1986

278 N.L.R.B. 160 (N.L.R.B. 1986)

160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rood Industries , Inc. and District Lodge 117, Inter-
national Association of Machinists and Aero-
space Workers , AFL-CIO. Cases 7-CA-22930
and 7-CA-23394
22 January 1986
DECISION AND ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 11 July 1985 Administrative Law Judge
Leonard M. Wagman issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed 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 brief and has
decided to affirm the judge's rulings, findings, I and
conclusions2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Rood Indus-
tries, Inc., Sturgis, Michigan, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order.
i The Respondent has excepted to some of the judge's credibility fmd-
mgs The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the' relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings No exception was taken to the judge's dismissal of the alle-
gation that the Respondent's no-solicitation rule violated Sec. 8(a)(1) of
the Act
2 In agreeing with the judge that the Respondent, through President
Rood, violated Sec. 8(a)(1) of the Act by advising employees that he
would not run an organized shop, Member Johansen concludes that
Rood's remarks constituted a threat of reprisal rather than a warning
about the futility of Joining or supporting a union
Charles Morris, Esq., for the General Counsel.
John S. Schauer, Esq. (Seyforth, Shaw, Fairweather & Ger-
aldson), of Chicago, Illinois, for the Respondent.
Wayne E(fler, Business Representative, of Battle Creek,
Michigan, for the Charging Party.
DECISION
STATEMENT OF THE CASE
Workers, AFL-CIO on 15 December 1983,1 the Region-
al Director for Region - 7 issued a complaint in Case 7-
CA-22930 on 27 January against the Respondent, Rood
Industries, Inc. Thereafter, on a further charge filed by
the Union in Case 7-CA-32334 on 26 April against the
Respondent, the Regional Director for Region 7 issued
an order on 29 May consolidating the two cases and
amending the complaint against Respondent. The con-
solidated complaint' alleged that Respondent violated
Section 8(a)(1) of the National Labor Relations Act by
coercively interrogating its employees regarding their
union activities and sentiments, and the union activity
and sentiment 'of other employees, threatening employees
with discharge for discussing the Union, promulgating an
overly broad and discriminatory rule prohibiting employ-
ees from soliciting employee support for the Union, ex-
pressly and impliedly threatening employees with eco-
nomic reprisals, including plant closure, if the Union suc-
ceeded in organizing Respondent's employees. The com-
plaint, further alleges the Respondent violated Section
8(a)(1) by implying that Respondent's employees' sup-
port for the Union would be futile, creating the impres-
sion of surveillance of its employees' union activity,
promising and later granting a benefit to employees to
cause them to abandon the Union, and to refrain from se-
lecting it as their exclusive collective-bargaining repre-
sentative, suggesting that election of the Union as the
employees' bargaining representative would cause Re-
spondent to lose an important customer, by threatening
its employees with the imposition of stricter plant rules if
the employees selected the Union as their collective-bar-
gaining representative, threatening an employee with
more limited future - employment opportunities because
he supported the Union, and by threatening to discontin-
ue the practice of permitting employees to present their
problems or concerns to management if the employees
selected the Union as their collective-bargaining repre-
sentative. Respondent, by its timely answers, denied
commission of the alleged unfair labor practices.
These cases were tried before me at Sturgis, Michigan,
on 16, 17, and 18 October 1984. At the hearing, after the
General Counsel had rested, I granted Respondent's
motion to dismiss, for lack of proof, the allegations that
it had violated Section 8(a)(1) of the Act by threatening
an employee with more limited future employment op-
portunities, and by threatening to discontinue its policy
of permitting employees to present their problems or
concerns to management. I now reaffirm my order dis-
missing those allegations.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Respond-
ent, I make the following
LEONARD M. WAGMAN, Administrative Law Judge.
On a charge filed by the Union, District Lodge 117,
International Association of Machinists and Aerospace
' All dates are from September 1983 until May 1984, unless otherwise
indicated
278 NLRB No. 26
ROOD INDUSTRIES 161
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
Respondent, a ' Michigan corporation, maintains its
office and place of business at Sturgis, Michigan, where
it manufactures,, sells, and distributes steel tubing for
automobile exhaust systems. Respondent, in the course
and conduct of its business, annually manufactures, sells,
and distributes products valued in excess of $100,000, of
which products valued in excess of $50,000 are shipped
from Respondent's Sturgis, Michigan plant directly to
points outside the State of Michigan. The Respondent
admitted the foregoing data. I find that at all times mate-
rial, Respondent was an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
The consolidated complaint alleged, Respondent ad-
mitted, and I fmd that the Union, District Lodge 117,
International Association of Machinists and Aerospace
Workers, AFL-CIO, is, and has been at all material
times, a labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union's effort to organize Respondent's approxi-
mately 80 plant employees began in late October 1983.
On 7 November the Union filed a petition seeking a
Board-held election to obtain certification as the exclu-
sive collective-bargaining representative of Respondent's
plant employees. The Respondent received a copy of the
Union's petition on 15 November. Thereafter, on 16 De-
cember, the Regional Director conducted an election in
the unit sought by the Union. Following the election, the
Regional Director impounded the ballots and has not yet
determined the results of the election. The General
Counsel has attempted to show that Respondent, in op-
posing the Union's organizing campaign violated Section
8(a)(1) of the Acta by interfering with, restraining, and
coercing its employees in the exercise of their Section 7
rights3 to assist the Union's campaign, and to choose the
Union as their collective-bargaining representative.
B. Alleged Interference, Restraint, and Coercion
1. Interrogation
a. The facts
On 20 October Respondent's night foreman, Richard
Halderman, approached second-shift employee Larry
Bassage, who had been in Respondent's employ since 4
2 Sec. 8(a)(1) of the Act provides:
Sec. 8 . (a) It shall be an unfair labor practice for an employer-
(1) To interfere with, restrain, or coerce employees in the exercise of
the rights guaranteed in section 7,
a Sec 7 of the Act provides in pertinent part.
Sec. 7. Employees shall have the right to self-organization, to form,
,loin, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection . .
April 1981 in the plant and asked him if he knew "who
was talking union." Bassage replied: "No, I don't."4 This
ended the conversation.
It was Bassage who first contacted the Union about
organizing. Respondent's plant in early October. Thereaf-
ter, Bassage did most of the organizing for the Union on
the second shift. He distributed union authorization
cards, notified employees about union meetings, and col-
lected signed authorization cards. He also wore a union
button at the, plant from 24 or 25 October through De-
cember.
From 19 November through 21 November, Respond-
ent's president, Del Rood, conducted one-on-one inter-
views with employees in his office at Respondent's plant.
In his testimony, Rood admitted that he held these meet-
ings because he was "surprised that an organization at-
tempt was underway." In Rood's view, this development
meant "somehow that our communication was not very
good." In Rood's opinion, the employees "felt strongly
about something and weren't saying so...." He con-
cluded "that it was high time that [he] got better ac-
quainted.
One of the employees whom Rood summoned to his
office was Larry Bassage, who wore a union button
throughout the interview. Although Rood had on occa-
sion conversed with Larry Bassage on the plant floor,
this was the first time Rood had called Bassage to his
office. Rood first asked Bassage "how things were going
out in the shop." He also remarked, "I see you're wear-
ing a union pin and then asked Bassage how the organiz-
ing campaign was going. Larry Bassage replied: "Okay."
The conversation then shifted to Bassage's remodeling of
his home.5
4 Supervisor Richard Halderman flatly denied ever asking Larry Bas-
sage "who was talking union," or words to that effect However, Haider-
man, who had clearly received word that employees Larry Bassage,
David Huber, and Chester Casner Jr were soliciting employee support
for the Union, did not deny conversing with Bassage , who worked on his
shift. Halderman also demonstrated his eagerness to supply Respondent's
president Del Rood with the names of union supporters, by giving the
names of Bassage , Huber, and Casner to the president on the same day he
heard about them It thus seems likely that Halderman would have
sought to identify additional union supporters. These factors, together
With my impression that on cross-examination Halderman's demeanor
suggested a reluctance to provide his best recollection, caused use to
doubt the reliability of Halderman's flat denial I noted this tendency par-
ticularly when counsel questioned Halderman about his sources of infor-
mation regarding the identity of the leading union supporters,' and about
Del Rood's meetings with employees. This doubt, together with my im-
pression that of the two, Larry Bassage was the more candid witness,
persuaded me to credit Bassage's testimony that his best recollection was
that Halderman asked him to identify "who was talking union."
5 President Rood denied making any reference to Bassage's union pin.
However, on cross-examination , he seemed less self-assured when he an-
swered. "Not that I recall no." Rood's testimony corroborated the re-
mainder of Larry Bassage's account of their conversation However,
Rood gave his recollection of how the conversation began in a tentative
manner and could not specifically recall whether Bassage was wearing a
union pin, button, or badge.
However, I have found from Bassage's credited testimony that he wore
a union button from late October through December I also find from
Bassage's testimony that he wore a union button during his meeting with
Rood It thus appears likely that Rood saw Bassage's union button and
made the remark attributed to him by Bassage, whose forthright manner
persuaded me that he was providing his best recollection of Rood's re-
marks
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Analysis and conclusions
In Rossmore House, 269 NLRB 1176, 1178 fn. 20
(1984), the Board set forth the factors it considers in de-
termining whether an employer's interrogation of em-
ployees regarding union activity and sympathies violates
Section 8(a)(1) of the Act, as follows:
Experience convinces us that there are myriad situa-
tions in which interrogations may arise. Our duty is
to determine in each case whether, under the dic-
tates of Sec. 8(a)(1), such interrogations violate the
Act. Some factors which may be considered in ana-
lyzing alleged interrogations are: (1) the back-
ground; (2) the nature of the information sought; (3)
the identity of the questioner; and (4) the place and
method of interrogation.
Applying the Board's policy expressed in Rossmore, I
find that Richard Halderman's attempt to learn the iden-
tity of employees who were "talking union" carried with
it the suggestion that Respondent had some punishment
in mind for them. Thus, notwithstanding that a first level
supervisor was asking the question in the familiar sur-
roundings of the work place, the information sought was
likely to instill fear of reprisal in the listener, I find there-
fore, that this interrogation was coercive and violated
Section 8(a)(1) of the Act. Frank Black Mechanical Serv-
ices, 271 NLRB 1302, 1315 (1984).
I also find that Rood's questions of Bassage in Novem-
ber was coercive. At the time of this interrogation, Bas-
sage after 2-1/2 years' employment by Respondent found
himself, for the first time, alone, in President Rood's
office. In light of these circumstances, and the coercive
interrogation which Bassage had recently experienced in
an encounter with Supervisor Halderman, I find that by
Rood's asking Bassage how the Union's organizing drive
was going, Respondent coerced its employees in viola-
tion of Section 8(a)(1) of the Act.
2. Threats
On 24 October Night Superintendent Larry D.
Monroe approached employee Larry Bassage at the
plant and said: "Hey, you do not want your job here."
When Bassage sought an explanation of that remark,
Monroe replied: "Because you have been talking union."
When Bassage denied having talked union, Monroe
grinned and walked away.,
Monroe's remarks strongly suggest that Bassage's ad-
vocacy of the Union' s cause among his fellow employees
was inconsistent with continued employment at Re-
spondent's plant . That suggestion was likely to interfere
with, restrain , and coerce Bassage and his fellow em-
ployees in the exercise of their rights to support a labor
organization in its effort to become their collective-bar-
gaining representative. Accordingly, I find that by Mon-
roe's warning, Respondent violated Section 8(a)(1) of the
Act. F W.I.L. Lundy Bros. Restaurant, 248 NLRB 415,
429 (1980); D.R.C Inc., 233 NLRB 1409, 1414 (1977).
President Del Rood made antiunion speeches to sepa-
rate groups of his employees at the plant on 2, 14, and 15
December. Rood used a single speech outline for all
three speeches and referred to charts showing, among
other things that Respondent suffered losses of $23,971 in
1980, $123,054 in 1981, $198,935 in 1982, and, for the
first 9 months of 1983, $28,362. He showed that Re-
spondent's losses for the 3 years ending 30 September,
totaled $374,321.- Rood also reviewed charts reflecting
the wage increases which the Respondent had previously
granted.
However, before he showed the Respondent' s losses,
and the prior wage increases, Rood expressed strong op-
position to the Union. He warned the assembled employ-
ees that "it's a serious matter"; that they would not see
Respondent "posting any cartoons" or "any funny things
about how to vote. We won't measure equipment to sug-
gest we're going to move it. We won't bring in trucks
with Alabama license plates." Rood told his listeners that
he did not bluff, promise, or scare, and then warned
"that if trucks ever do back in, its gone because I won't
be bluffing." Later in his speech, Rood explained that he
had located Respondent's plant in Sturgis, Michigan be-
cause "the talents is [sic] here. That's where the work
force is." Rood asserted that most of his friends and ties
were in Illinois . He also mentioned that during the previ-
ous year, he had received an offer to purchase his
home.'
Granted that President Rood's remarks contained a
prediction of plant closure, his words ran afoul of Sec-
tion 8(a)(1) of the Act. For, his prediction was not "care-
fully phrased on the basis of objective fact to convey
[his] belief as to demonstrably probable consequences
beyond his control or to convey a management decision
already arrived at to close the plant in case of unioniza-
tion." NLRB., v. Gissel Packing Co., 395 U.S. 575, 618
(1969). Instead, I find that Rood 's language strongly sug-
gested that he had already decided to remove the ma-
chinery from the plant and possibly move to Illinois, if
the Union's organizing effort succeeded.
Rood's presentation of figures showing the 'Respond-
ent's operating losses for 3 successive fiscal years, cou-
pled with his warning, was likely to make the point
among the listening employees. The point was that finan-
cial difficulty had not yet dampened his determination to
operate the plant at Sturgis, Michigan, but that a union
victory in the pending election would cause Del Rood to
close that plant. I find, therefore, that Rood's remarks,
quoted above, constituted a threat of retaliation at his
hands, if a majority of Respondent's plant employees
voted for union representation. By that threat, Respond-
ent violated Section 8(a)(1) of the Act. NLRB v. Gissel
Packing Co., supra, 395 U.S. at 618.
During his speech, Rood referred to Respondent's cus-
tomers, including Midas, Maremont, and Car-X. He
stated that Respondent's customers "were anxious for us
to get back to normal." Rood mentioned that "things
were going to be back to normal and [he] would call
6 I based my findings regarding the incident of 24 October on Bas- 7 I based my findings of fact on the testimony of Del Rood and
sage's testimony Charles W Huber
ROOD INDUSTRIES 163
them promptly and let them know.8 He also declared
that if the employees voted against the Union, "It would
be a message to Midas, Maremont, etcetera, that you're
behind me. That we want their business." I also credited
Rood's denial that he told the employees that any cus-
tomer would be lost if the employees voted for union
representation.
Contrary to the General Counsel, I find that Rood's
remarks about customers did not carry the suggestion of
plant closure. Instead, I find that Rood's remarks raised
the spectre of customer dissatisfaction with interruptions
in the stream of production and increased costs as possi-
ble effects of the Union's organizing campaign. Absent
was any threat, express or implied, that Respondent
would layoff employees or otherwise impose any eco-
nomic burden on its plant employees because of a_loss of
-customers. I find that Section 8(c) of the Act protected
these remarks. -Daniel Construction Co., 264 NLRB-569 ,
570 (1982). See also Tri-Cas4 Inc.,, 274 NLRB 377, 378
(1985). I shall, therefore, recommend dismissal of the al-
legation that these remarks violated-Section 8(aXl) of the
Act.
On an occasion in December, Superintendent Larry
Monroe told prounion employee Chester Casner Jr.9 "I
know that Del Rood would close the shop if [the Union]
comes in." I find that an employee hearing this remark
was likely to conclude that Monroe as a second level su-
pervisor was an authoritative source conveying Rood's
expressed intent. I find, therefore, that Monroe's remark
was a coercive threat of economic reprisal if the employ-
ees voted for the Union in the pending election. Accord-
ingly, I further find that by Monroe's threat, Respondent
impaired its' employees' freedom to select a collective-
bargaining representative and thereby violated Section
8(a)(1) of the Act.
I find, from employee Charles W. Huber' s testimony,
that on 15 December he approached his supervisor, Bob
Brown, and announced:
If Del [Rood] is going to shut the plant down, then
I'm gong to vote no because I don't want to lose
my job.
Brown responded: "If I were Del Rood, I'd shut the
plant down because its not big enough for a union." I
find that Supervisor Brown's remarks, as quoted above,
were an expression of his personal attitude toward the
Union. An employee hearing this remark would readily
discern that Brown was not speaking for Del Rood or
the Respondent,- but ` only for himself. I find, therefore,
s I based my findings regarding Rood's references to customers on his
testimony. The General Counsel's witnesses' testimonies were sketchy
and came across as tentative . In contrast, Rood seemed certain of his de-
tailed recollection, which he gave in a forthright manner.
B I based my findings regarding Monroe's remarks to Casner on the
latter's testimony. Monroe, after testifying that he could not recall having
done so, flatly denied ever discussing plant closing with employee Casner
or any employee. However, Monroe's testimony showed that he dis-
cussed the- Union and union activity with employee Casner in December
1983. Thus, it appears that-Monroe had opportunity to raise the-topic of
plant closing with ,Canner on that occasion. Further, of the two, Casner
impressed me as the more straight forward .witness on this alleged inci-
dent For these reasons, I have credited Casner's testimony rather than
Monroe's.
that Brown's remark was not a threat and was protected
by Section 8(c) of the Act. Accordingly, his remark did
not, violate Section 8(a)(1) of the Act and I shall recom-
mend dismissal of the allegation that it violated that sec-
tion of the Act.
In December, Superintendent Larry Monroe spoke to
employee George Amburgey, who was seated, waiting
for parts, near the plant's spray booth. Monroe re-
marked, in substance, that if the employees had a union
bargaining representative they would not be allowed to
sit 'down. Monroe also told Amburgey that a union could
force the Respondent to discharge employees who
"missed three days in a row."' o
Monroe's warnings to Amburgey contained two im-
plied threats. The first was that if the Union's organizing
campaign succeeded, Respondent, would adopt a more
stringent policy requiring employees to stand while
working. ' The second threat was more subtle. Monroe
announced that a union would oblige Respondent to dis-
charge employees- who were absent from work for 3
consecutive days. At the time Monroe made this asser-
tion, 'Respondent had a more' liberal policy toward em-
ployee absences. There was no showing that Monroe
supported his prediction by exhibiting a union contract
or any -other evidence that the Union or any other labor
organization insisted on the discharge of employees who
were absent from -work 3 consecutive days. Thus, the
thrust of Monroe's warning was that, if the employees
selected the Union as their collective-bargaining repre-
sentative, Respondent' would impose a harsher policy on
employee absences and discharge those who were absent
for, 3 consecutive days. , -
I find that Larry Monroe 's warnings of harsher poli-
cies if the -employees voted for the Union as their collec-
tive-bargaining representative restrained and coerced em-
ployees in the exercise of their rights to support and vote
for the Union. Accordingly, I find that Respondent, by
Monroe's warnings, violated Section 8(a)(1) of the Act.
Atlas Microfilming, 267 NLRB 682, 686 (1983), enfd. 753
F.'2d 313 (3d Cir. 1985).
3. Warnings of futility
In a speech,'to employees of the first shift, on the
morning of 26 October, in the plant's breakroom, Presi-
dent Del Rood asserted that he had heard that someone
was passing out union cards and then he launched into
some antiunion remarks. In the course of his speech,
Rood told the employees that the union' s organizing
drive was underway and that he would not "run an or-
ganized shop." t i
10 I based my findings regarding Monroe's remarks to Amburgey on
the latter's testimony. Monroe testified that he frequently scolded Ambur-
gey for sitting down on the job, and that he "probably"' scolded lum in
late December Monroe denied warning Amburgey about a tightening of
Respondent's policy toward sitting down and absences if the Union won
the election However, of the two, Amburgey impressed, me as being
more certain and convincing in demeanor while testifying about the al-
leged warnings
11 I based my findings on Del Rood's testimony As Rood seemed
more certain of his remarks, I have credited his version where it differed
from that offered in Charles W. Huber's testimony
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When examined in context, Del Rood's statement that
he would not run an organized shop amounted to an un-
lawful warning that if the employees selected the Union
as their collective-bargaining representative, Rood would
not recognize it as such. The import of Rood's message
to his employees was that it would be futile for them to
join or support the Union. I fmd that by Rood's state-
ment, Respondent restrained employees and interfered
with their Section 7 right to support the Union' s organiz-
ing drive and thereby violated Section 8(a)(1) of the Act.
Antonio's Restaurant, 246 NLRB 833 (1979); Kenworth
Trucks of Philadelphia, 229 NLRB 815, 818 (1977).
On 28 October Night Superintendent Larry D.
Monroe encountered employee Larry Bassage , who was
on his way to a break period, and asked him why he was
not wearing a large union pin. Bassage'replied in sub-
stance that he did not have a big pin. Monroe told Bas-
sage that the size of the pin did not matter because he,
Monroe, was going to benefit from it and Bassage would
not. I find that Monroe' s statement carried the message
that with union representation, Bassage and his fellow
employees would end up no better off than they would
have been without union representation. Thus did
Monroe inform Bassage that it was futile to support the
Union 's organizing campaign . I find therefore that Mon-
roe's advice to Bassage violated Section 8(a)(1) of the
Act. EL L duPont Co., 263 NLRB 159, 165 (1982), enfd.
744 F.2d 537 (6th Cir. 1984).
4. The impression of surveillance
At his meeting with the day-shift employees and su-
pervisors early on the morning of 26 October, President
Del Rood revealed that he knew of union activity among
his employees. Specifically, Rood announced that: "I had
heard there was solicitation being made for card signers
and that an organization attempt was underway."
Among those present at the meeting was employee Dave
Huber, a union activist, who had already participated in
the inception of the Union's campaign by arranging two
meetings for its representative, Wayne Eifler, with em-
ployees held on 24 October. It also appears that Huber
had told employees about the meetings.
Later, on the morning of 26 October, Rood ap-
proached Huber in the plant and asked if he, Huber,
"had any problems." Huber replied that he had none.
Rood then said that he heard that Huber "was a card
carrier." Huber responded: "I had stories told about me
before." Huber broke off the conversation to get a ciga-
rette. 12
In South Shore Hospital, 229 NLRB 363 (1977), the
Board declared: In determining whether a respondent
created an impression of surveillance, the test applied by
the Board is whether employees would reasonably
assume from the statement in question that their union
12 I based my findings of fact regarding Rood's conversation of 26 Oc-
tober with Dave Huber on the latter's version. Some of Rood's responses
to counsel 's questions regarding this conversation seemed evasive . In par-
ticular, Rood was evasive when questioned about whether he called
Huber "a card carrier " In contrast , Huber was a conscientious witness
on this incident, who provided straightforward answers. Therefore where
his testimony differed from Rood's on this topic, I have credited Huber.
activities have been placed under surveillance. Schre-
menti Bros., 179 NLRB 853 (1969).
Here, I find it unlikely that Rood's remarks created
the impression that Dave Huber's union activities were
under surveillance . Granted, Rood's remarks reflected a
strong suspicion that Huber was a union activist. Howev-
er, Huber's credited testimony showed that by 26 Octo-
ber he had assumed a leading role in arranging meetings
between, employees and the Union's representative,
Eifler. I fmd from Huber's testimony that he had also
spread word of these meetings among the employees at
the plant. The first meeting took place on 24 October, 2
days before Rood approached him about his "problems."
Thus, the evidence showed that by 26 October, Rood
might have received word of Dave Huber's union activi-
ty from information volunteered by employees or super-
visors, without resort to surveillance of Huber's activity.
In sum , I find that Rood's remarks to Dave Huber
were not likely to cause him or any other employee to
believe that Respondent had placed his union "activities
under surveillance . I shall therefore recommend dismissal
of the allegation that those remarks violated Section
8(a)(1) of the Act.
During the week of 12 December, but prior to the
election on 16 December, Night Superintendent Monroe
came to employee Casner at the plant and began asking
him about union meetings . Casner, a prounion employee,
attended a union meeting on 24 October and thereafter
attended such meetings in November and December. He
also helped to notify other employees of these meetings.
Monroe asked Casner how the union meetings were
going at the latter's home. Casner replied that there were
none. Monroe rejoined: "Well, there's a lot of cars at
your house . I know you 've been having union meetings
at your house." Casner,retorted: "You know better than
that."13 Applying the Board's test, I find that Monroe's
remarks left little doubt that Monroe or someone acting
for Respondent had been watching Casner 's home to
keep track of his union activity. That Casner and
Monroe had a social relationship of 3 years' duration in
which they had occasionally gone out drinking together
at nearby bars and engaged in friendly conversation did
not reduce the coercive effect of Monroe's questions.
From Casner's testimony I find that Monroe did not
punctuate his remarks with levity or evidence of friend-
ship. I also find, therefore, that Monroe's remarks were
likely to give Casner the impression that his union activi-
ty was under surveillance by Respondent. Accordingly, I
further fmd that Monroe's remarks were coercive and
that they-violated Section 8(a)(1) of the Act.
13, I based my findings of fact regarding Monroe's remark to Casner on
the latter's testimony Monroe's testimony and his demeanor caused me
to doubt the reliability of his version. When Respondent 's counsel asked
Monroe if his version was a complete account, Monroe gave this quali-
fied response : "Basically, that's about what it amounted to, yes."
Later, Monroe answered "Yes," when Respondent 's counsel asked if
his version was a complete account, "to the best of your recollection." I
also noted that Monroe seemed uncertain as he related his version and
answered counsel's questions In contrast , Casper appeared more certain
of his version, as he testified without qualifying Ins answers.
ROOD INDUSTRIES 165
5. The no-solicitation rule
Prior to 25 October, Respondent did not have a plant
rule, written or oral, regarding solicitation. On that date,
during the second shift, employee Peter Wolgamood
complained to Superintendent Larry Monroe about em-
ployee Larry Bassage . Peter Wolgamood reported that
Bassage had- talked to Peter's brother Jim about signing a
card; that an argument had erupted in which "Larry
cussed [Jim] out." Peter threatened to take action against
Bassage unless Monroe intervened.
A few minutes later, Monroe found Bassage at work in
the plant, and scolded him for bothering Jim Wolga-
mood. Referring to Bassage 's solicitation of Jim Wolga-
mood, Monroe told Bassage: "You can't do that during
working hours." Bassage. parked the lift truck he was
driving and went to Foreman Joe. Lough's desk where
he began a conversation with Lough and Superintendent
Monroe about solicitation for the Union.
In substance, Monroe told Bassage that he could talk
about the Union to other employees during breaks. Bas-
sage asked if he could be fired because of his solicitation
of Peter Wolgamood. Monroe answered that he probably
could for soliciting during working hours.
On 27 October Superintendent Monroe provided fur-
ther clarification in a written warning notice he issued to
employee Bassage because of the solicitation of Jim Wol-
gamood on 25 October. The remarks section of the
warning contained the following:
Soliciting on Company time and away from normal
working areas without our permisson [sic].
I also find from Bassage's testimony, that during the
Union's campaign, following his encounter with Superin-
tendent Monroe, he and other employees solicited em-
ployee support at the plant, during rest periods, or other
break periods.
Monroe admitted that the only written warning14 he
had ever issued for solicitation on Respondent's property
was the one he issued to Bassage . However, there was
no showing that Monroe or any other of Respondent's
supervisors had observed employee solicitation during
working time or received a report, of employee solicita-
tion which had occurred during working time at the
14 I based my findings of fact regarding Supenntendent'Monroe's re-
marks to employee Bassage about Respondent's no-solicitation rule on
Monroe's testimony. I have rejected employee Casner' s version in which
he asserted that he heard Monroe prohibit "union talk on the premises, in
the parking lot or anywhere in the factory ." Bassage's admission, cor-
roborated by Casper, that after 25 October, he and other prounion em-
ployees freely engaged in union solicitation on Respondent's premises
during breaks, cast serious doubt on the hkhhood that Monroe voiced the
broad proscription which Casner reported in his testimony : I also noted
that Casner did not remember any reference to Bassage's solicitation of
,employee Wolgamood. Bassage and Monroe testified that Monroe made
reference to that incident in his remarks to Bassage
I also rejected Bassage's testimony where it differed from Monroe's ac-
count. Bassage's testimony on cross-examination was significantly incon-
sistent with his testimony on direct examination regarding Monroe's ad-
monition , delivered as Bassage sat on a forklift Further, unlike Monroe,
who testified in a full and forthright manner, Bassage was uncertain
about what was said to him on the evening of 25 October by Monroe and
Foreman Joe Lough
plant, other than the one Monroe received on 25 Octo-
ber, regarding Bassage.
In Our Way, 268 NLRB 394 (1983), the Board held
that rules prohibiting employees from soliciting during
"working time" are presumptively valid and that rules
prohibiting employees from soliciting during "working
hours" are presumptively invalid. However, in footnote
6 of Our Way, the Board citing Essex International,' 211
NLRB 749, 750 (1974), recognized that no violation
would be found where an employer could: "show by ex-
trinsic evidence that, in the context of a particular case,
the "working hours' rule was communicated or applied in
such a way as to convey an intent clearly to permit so-
licitation during breaktime or other periods when em-
ployees are not actively at work." The Board has also
held that a rule prohibiting employee solicitation during
"company time" does not violate Section 8(a)(1) of the
Act Bluebonnet Express, 271 NLRB 433 fn. 3 (1984).
In the instant case, Respondent's no-solicitation rule, as
stated by Superintendent Monroe, did not violate Section
8(a)(1) of the Act. For, moments after he issued the fa-
cially invalid proscription, Monroe made plain that Re-
spondent would permit employee solicitation at-the plant
during break periods Respondent also demonstrated its
intent to limit its no-solicitation policy to working time
by the reference to "company time," in the warning slip
which it issued to Bassage on 27 October. Indeed, Bas-
sage's testimony-, showed that following his discussion
with Monroe on 25 October, and for the rest of the
Union's organizing campaign, he and other employees
freely engaged in solicitation for the Union during break
periods. Finally, there was no showing that Respondent
permitted employee solicitation during work time for
purposes other than union organizing, such as sales or
charitable causes. Accordingly, I shall 'recommend dis-
missal of the allegations that Respondent's no-solicitation
rule was overly broad and discriminatory.
6. The promise of a better attendance point system
and its implementation 1 s
Since 1981, Respondent has maintained a point system
which penalizes employees by giving- points or half
points for absence, tardiness,. or failure to complete a
shift. Three points result in a verbal warning. Employees
who accumulate 5, 7, or 10 points receive written warn-
ings . When an employee, reaches 15 points, the Respond-
ent discharges the offender.
In the spring of 1982, employee dissatisfaction with the
point system and other concerns caused Del Rood to, es-
tablish an employee plant committee to study the system
and other employee concerns. In August 1982 the com-
mittee and Rood worked - toward some liberalization of
the point system. Two months later, Rood agreed to
remove all points from employee records and start each
with zero points.
In, April 1983 Rood convened a special employee com-
mittee, primarily to consider, the point system. Rood
agreed to give all employees one free day annually and
to provide for leave when an employee's wife "was
15 I based my findings of fact in this section on Del Rood's testimony.
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
having a child." He also agreed to an occasional "earned
day off." Respondent did not grant any further changes
in the point system during the remainder of 1983-There
were no committee meetings during the summer of 1983.
In the fall of 1983, Rood changed the membership of
the plant committee and met with it to discuss further
changes in the point system to permit point reduction
and the status of employees who fail to complete a shift
due to illness.
On 13, 14, and 15 December Rood held meetings with
groups of his plant employees, at which he expressed an-
tiunion sentiment , warned of plant closure if the Union
succeeded in the coming election , and discussed matters
of interest to the employees , including the attendance
point system . Rood 's remarks to employees at all three
meetings admittedly "suggested" that Respondent was
reviewing the point system and that Respondent "expect-
ed to make changes" Rood also invited the employees to
provide "input in the program." Suggestions were to be
"simple to administer" and "the same for everybody."
He did not expressly promise any specific change. At the
meetings of 14 and 15 December , Rood 's statements
about changes were in response to employee questions
about the point system.
I find from Rood's testimony that on 31 March Re-
spondent announced two changes to its point system, ef-
fective 1 April. The first announced change was that any
plant employee who had 2 straight months of perfect at-
tendance, excepting vacation days, holidays, bereave-
ment, and military leave , would earn an allowance day
off. The second change was that Respondent would not
penalize an employee, who was unable to finish his or
her assigned shift because of illness or other good cause.
Respondent 's announcement of the two changes on 31
March and their implementation on 1 April occurred in
the context of the Union's organizing campaign among
Respondent's plant employees. For although the Region-
al Director held a representation election among Re-
spondent's employees on 16 December, he impounded
the ballots cast in that election pending the outcome of
the instant case . Thus, at the time Respondent announced
and implemented the two changes to its point system, the
Union's representation petition was still pending and
there remained the possibility that the Regional Director
might fmd it necessary to direct a second election among
Respondent's employees.
By thus"emphasiz[ing] to [its] employees that there is
no necessity for a collective bargaining agent " (NLRB. v.
Bailey Co., 180 F.2d 278, 279 (6th Cir. 1950), Respondent
unlawfully interfered with their right of self-organiza-
tion: In view of Respondent's hostility toward the Union,
as shown by Rood's threat to close the plant if the Union
won the election of 16 December, the timing of the an-
nouncement of Rood 's intent to change the point system,
the announcement and implementation both of which
benefited his employees, of the two changes, and Re-
spondent's' failure to explain its action on the basis of le-
gitimate_busiaess conditions, I find that Respondent was
prompted by an unlawful purpose. Rood's remarks about
changes on 13, 14, and 15 December, in the face of the
representation election scheduled for 16 December, the
announcement of the two improvements on 31 March
and their implementation on 1 April, were designed to
suggest to the Respondent's plant employees "that the
source of benefits now conferred is also the source from
which future benefits must flow and which may dry up if
not obliged." NLRB. v. Exchange Parts Co., 375 U.S.
405, 409 (1964). _
The evidence strongly suggested that Rood was using
the employees' concern about the point system to defeat
the Union. Rood's announcement of his intent to change
the point system and his request for employee sugges-
tions occurred in the context of antiunion speeches given
during the last 3 days before the representation election
of 16 December among his plant' employees. These an-
nouncements also came after a series of changes liberaliz-
ing the point system. That circumstance, together with
Rood's expressed interest in employee suggestions, was
very likely to lead his listeners to infer that he was im-
pliedly promising to further liberalize the point system
and I so fmd. I also find that from the antiunion context
the employees were likely to understand that Rood was
holding out these promises as an inducement for them to
reject the Union.
Respondent contends that there has been no showing
of unlawful intent on the ground that Rood's December
announcements and the resulting April changes were all
part of a process which predated the arrival of the Union
in October. However, I find no merit in Respondent's
contention.
The Respondent's contention lacked evidentiary sup-
port. There has been no showing that prior to the
Union's campaign, Rood or any other member of Re-
spondent 's management had given any thought to a De-
cember announcement of a plan for further liberalizing
the point system. Further, there was no evidence that
prior to the surfacing of the Union's campaign, Rood
had given his employees any ground for expecting Re-
spondent to agree to the two improvements announced
on 31 March.
In sum, Respondent has not rebutted the evidence
which amply showed that its implied promise of im-
provements in the point system and the implementation
of that promise were motivated by an intent to interfere
with its plant employees' freedom of choice in the pend-
ing representation proceeding. I find therefore that by
the implied promise of changes and by the carrying out
of the promise, the Respondent violated Section 8(a)(1)
of the Act.
CONCLUSIONS OF LAW
1. The Respondent engaged in unfair labor practices
affecting commerce within the' meaning of Section
8(a)(1) and Section 2(6) and (7) of the Act, by: coercive-
ly interrogating an employee regarding the union senti-
ment and union activity of other employees; threatening
an employee with discharge because he supported the
Union; implying to its employees that their support for
the Union's organizing effort was futile; creating the im-
pression that it was keeping the union activity of Chester
Casner Jr. under surveillance; threatening its employees
with a rule prohibiting employees from sitting while
working and with discharge after three absences if the
ROOD INDUSTRIES 167
Union succeeds in organizing them ; threatening on two
occasions , to close its plant if the Union succeeded in or-
ganizing its employees ; and by impliedly promising to
liberalize its attendance point system and by thereafter
carrying out its promise for the express purpose of dis-
suading its employees from supporting the Union in a
Board-held representation election.
2. Respondent has not otherwise violated the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices , I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
edt6
(a) Post at its plant in Sturgis , Michigan , copies of the
attached notice marked "Appendix." 17 Copies of the
notice on forms provided by the Regional Director for
Region 7, after being signed by the Respondent 's author-
ized representative , shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable 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 in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply. `
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
ORDER
The Respondent , Rood Industries , Inc., Sturgis , Michi-
gan, its officers, agents, successors , and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees regarding the
union sentiment and union activity of other employees.
(b) Threatening employees with discharge or other re-
prisals because they support District Lodge 117, Interna-
tional Association of Machinists and Aerospace Workers,
AFL-CIO, or any other labor organization.
(c) Implying to its employees that their support for
District Lodge 117's organizing effort, or for the orga-
nizing effort of any other labor organization is futile.
(d) Creating the impression that it was keeping the
union activity of Chester Casner Jr. or of any other em-
ployee under surveillance.
(e) Threatening to close its plant or to otherwise retali-
ate against its employees if District Lodge 117 or any
other labor organization succeeds in organizing its em-
ployees.
(f) Impliedly promising to liberalize its attendance
point system, or promising other benefits to employees,
or implementing such promises for the express purpose
of dissuading employees from supporting District Lodge
117 or any labor organization in a Board -held representa-
tion election.
(g) Threatening to impose on its employees stricter
plant rules including a prohibition against sitting while
working, and threatening to discharge employees after
three absences, if they choose District Lodge 117 or any
other labor organization as their exclusive collective bar-
gaining representative.
(h) In any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
16 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 .45 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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 "
APPENDIX
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
violated the National Labor Relations Act and has or-
dered 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 protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT coercively interrogate you regarding
the union sentiment or union activity of other employees.
WE WILL NOT threaten you with discharge or other
reprisals because you support District Lodge 117 Inter-
national Association of Machinists and Aerospace
Worders, AFL-CIO or any other labor organization.
WE WILL NOT imply to you that your support for Dis-
trict Lodge 117's organizing efforts or for the organizing
effort of any other labor organization is futile.
WE WILL NOT create the impression that we are keep-
ing your union activity under surveillance.
WE WILL NOT threaten to close down our Sturgis,
Michigan plant or otherwise retaliate against you if you
select District Lodge 117 or any other labor organization
as your collective -bargaining representative.
WE WILL NOT impliedly promise to liberalize our at-
tendance point system or promise other benefits to you
or implement such promises for the express purpose of
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dissuading you from supporting District Lodge 117 or
any other labor organization in a Board -held representa-
tion election.
WE WILL NOT threaten to impose upon you stricter
plant rules, including a prohibition against sitting while
working and a rule requiring that you be discharged
any other labor organization as your exclusive collective-
bargaining representative.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
after three absences, if you choose District Lodge 117 or ROOD INDUSTRIES, INC.