Southeastern Brush Co.

National Labor Relations Board - Board Decisions

Mar 30, 1992

306 N.L.R.B. 884 (N.L.R.B. 1992)

884
306 NLRB No. 181
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us 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.
In adopting the judge’s finding that Production Manager Van
Voorhees’ October 23, 1990 statement to employees was a violation
of Sec. 8(a)(1), we note that, in addition to the reasons cited by the
judge, Van Voorhees’ proscription of any employee’s engaging in
union activities on ‘‘Company time’’ was overly broad since ‘‘Com-
pany time’’ could reasonably be construed as encompassing both
working and nonworking time. See Hoyt Water Heater Co., 282
NLRB 1348, 1357 (1987).
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(3) and (1) by withholding wages from employee Helms and de-
ducting attendance points from his record because of his union ac-
tivities, we note that the judge made an inadvertent error in referring
to Union Business Agent Anna Hampton as a grievant. This does
not affect the result. We emphasize that, at the time of the second
step grievance meeting, the Respondent’s only objection to Helms’
attendance was that he had been scheduled to attend a class within
the time period for this meeting. It did not object that Helms’ attend-
ance was barred by the Respondent’s interpretation of the contract.
Finally, in adopting the judge’s finding that the Respondent vio-
lated Sec. 8(a)(5) and (1) by refusing to comply with the Union’s
request for information, we note that, although the Respondent con-
tends that the grievances are procedurally defective and therefore, it
has no obligation to supply the requested information, ‘‘the Board,
in passing on an information request, is not concerned with the mer-
its of the grievance, [and] it is also not ‘willing to speculate regard-
ing what defense or defenses an employer will raise in an arbitration
proceeding.’’’ Pfizer, Inc., 268 NLRB 916, 918 (1984) (quoting
Conrock Co., 263 NLRB 1293, 1294 (1982)).
Southeastern Brush Company and International
Brotherhood of Firemen and Oilers, Local 288,
AFL–CIO. Case 10–CA–25112
March 30, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On August 15, 1991, Administrative Law Judge
Howard I. Grossman issued the attached decision. The
Respondent filed exceptions and a supporting brief and
the Charging Party 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-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Southeastern Brush Com-
pany, East Point, Georgia, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order, except that the attached notice is substituted for
that of the administrative law judge.
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
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 pro-
tected concerted activities.
WE WILL NOT prohibit employees from discussing
grievances in nonworking areas during nonworking
time.
WE WILL NOT tell employees discussing grievances
during nonworking time that they will be discharged
for engaging in union activity during working time.
WE WILL NOT discourage membership in the Inter-
national Brotherhood of Firemen and Oilers, Local
288, AFL–CIO, or any other labor organization, with-
holding wages or deducting attendance points from our
employees for engaging in union activities, or by oth-
erwise discriminating against them in connection with
their wages, hours or tenure of work, or conditions of
employment.
WE WILL NOT refuse, on request, to supply the
Union with information that it needs as the employees’
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.
WE WILL, on request, supply the Union with the in-
formation which we unlawfully refused to give it.
WE WILL rescind our prohibition against employees
engaging in grievance discussions during nonworking
time in nonworking areas.
SOUTHEASTERN BRUSH COMPANY
Victor McLemore, Esq., for the General Counsel.
Robert L. Thompson, Esq. and Victor J. Maya, Esq. (Elarbee,
Thompson & Trapnell), of Atlanta, Georgia, for the Re-
spondent.
Paul L. Styles, Jr., Esq., of Atlanta, Georgia, for the Charg-
ing Party.
885SOUTHEASTERN BRUSH CO.
1 All dates hereinafter are in 1990 unless otherwise specified.
2 The posting is dated September 24. R. Exh. 6. Bell testified that
it was posted after the first shift on September 23, and remained
posted for about 3 days. The collective-bargaining agreement re-
quires posting in the event of a vacancy R. Exh. 1, art. XII(5).
Helms asserted and Bell denied that the latter tried to avoid posting.
I credit Bell.
3 Bell testified that three of the applicants were female employees,
and that he discussed with them the requirements of the master me-
chanic position. Bell stated that he did not know who crossed out
their names. The posting also carried the name of a fictitious char-
acter that appears in cartoons.
4 Cutting threads, reading micrometers, and machine shop work.
5 Electrical work.
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge. The
charge was filed on January 11, 1991, by International Broth-
erhood of Firemen and Oilers, Local 288, AFL–CIO (the
Union), and an amended charge on March 1, 1991. Com-
plaint issued on the latter date, and alleges that Southeastern
Brush Company (Respondent or the Company) violated Sec-
tion 8(a)(1) of the National Labor Relations Act (the Act) by
prohibiting its employees from discussing grievances on
company premises, by threatening them with discharge if
they engaged in union activities on said premises, and by
telling an employee that he was denied a promotion because
of his union activities. The complaint also alleges that the
Company violated Section 8(a)(3) of the Act by withholding
wages and deducting attendance points from an employee be-
cause of his union activities, and Section 8(a)(5) by refusing
to supply the Union with information which it needed as the
employees’ collective-bargaining representative.
This case was heard before me in Atlanta, Georgia, on
April 23 and 24, 1991. Thereafter, the General Counsel, Re-
spondent, and the Charging Party filed briefs. On the entire
record, including my observation of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Georgia corporation with an office and
place of business located at East Point, Georgia, where it is
engaged in the manufacture of industrial brushes. During the
past calendar year, a representative period, Respondent pur-
chased and received at its East Point, Georgia facility goods
valued in excess of $50,000 directly from suppliers located
outside the State of Georgia. Respondent is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Union’s Representative Status, the Vacancy in
the Master Mechanic Position, and the Company’s
Posting of the Vacancy
The Union was certified as the collective-bargaining rep-
resentative of the Company’s production and maintenance
employees in 1979, and had a collective-bargaining agree-
ment with it at the time of these proceedings.
The Company had a vacancy in early 19901 for a position
designated as master mechanic and posted this vacancy in
late September. It selected Ricky Sherman for this position.
Sherman began work on October 15. He was a former em-
ployee who had held this job when it was classified as lead
mechanic, and had also been a union steward.
Johnny Helms was a ‘‘Class A’’ mechanic in the mainte-
nance department at the time of this litigation, and became
the Union’s steward on September 19. Helms, and others, ap-
plied for the master mechanic position when it was posted.
Although the complaint does not allege that Helms was
discriminatorily denied the position, it does allege that he
was told that he had not been appointed because of his union
activities including the filing of grievances. Helms had con-
versations with maintenance supervisor, William Bell, before
the posting of the position and his appointment as steward.
These conversations concerned Helms’ qualifications for the
master mechanic position, and the Company’s plans with re-
spect to the vacancy.
Helms contended that he had a conversation with Bell in
June 1990 in which the latter told him that he, Helms, was
‘‘next in line’’ for the position. Helms also asserted that he
had two conversations with Bell in August, in which the lat-
ter told him that Bell did not need a supervisor, that he was
thinking of hiring Ricky Sherman, and that he intended to
put Sherman on one side of the production line and Helms
on the other. Further, according to Helms, Bell intended to
promote all the maintenance employees one classification.
Although Bell acknowledged conversations with Sherman
prior to the job posting, he testified that they were social in
nature, and denied that they had anything to do with Sher-
man’s return to the Company. Bell denied that he told Helms
that he intended to put Sherman and Bell on opposite sides
of the production line. This was impractical, because most of
the high priority machines were on one side the line, and the
asserted arrangement would therefore result in an unequal
distribution of work. Bell also detailed several areas in which
Helms lacked sufficient expertise for the master mechanic
position—specifically, the programming of some of the ma-
chines and electrical work—and testified that Helms asked
him how to qualify for the position. Helms partially corrobo-
rated Bell on these matters, and I conclude that he was not
promised advancement to the master mechanic position, or
‘‘sharing the line’’ with Sherman.
In late September, Helms—who had been appointed stew-
ard on September 19—had a conversation with Bell in which
he advised him that the master mechanic vacancy had to be
posted. The posting took place on September 23 or 24.2 Two
maintenance employees, one of whom was Helms, and two
production employees signed the posting. Three female appli-
cants also signed, but their names were crossed out.3
Bell affirmed that none of the applicants was qualified for
the position, and gave detailed reasons. As for Helms, Bell
listed various areas of lack of expertise. Helms testified that
he agreed with Bell as to his own lack of skill in some
areas,4 and disagreed with Bell’s assessment in only one
area.5
Helms also testified that Bell told him on October 2 that
he was not given the master mechanic position because he
886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 R. Exh. 1, art. XII, sec. 5.
7 Kemuel Fowler, Bettye Nunnally, Josephine Arnold, Clara Lott,
Johnnie Ward, Dorothy Robinson, and Greg York. G.C. Exh. 2; R.
Exhs. 4, 7.
8 One of the grievances alleges that Personnel Manager Garrett
Gerst stopped Helms from writing grievances at 3:40 p.m. on Octo-
ber 17 on company premises, and another protests changes in em-
ployee classifications.
9 Sec. 1 and step 1 of art. VII of the contract, as relevant, read:
Section 1. Should any employee have a grievance arising from
the operation or interpretation of this Agreement, an earnest ef-
fort to adjust such grievance shall be made in accordance with
the procedure hereinafter provided.
Step 1. Any grievance as defined above shall be taken up by
the Steward and/or by the employee with the aggrieved employ-
ee’s immediate supervisor within five (5) working days of the
occurrence of the event giving rise to the grievance, or within
five (5) working days of the time that the employee has knowl-
edge of it or is reasonably charged with knowledge of it . . .
10 Production Manager S. Coert Van Voorhees stated that Bell was
the immediate supervisor of all maintenance personnel, and was cor-
roborated by Personnel Manager Garrett Gerst.
11 Supra, fn. 9.
12 Gerst’s memo appears in the exhibit file in the middle of G.C.
Exh. 5, a seniority list.
13 Bettye Nunnally, Josephine Arnold, Clara Lott, and Johnnie
Ward.
had filed grievances. Helms further contended that Bell said
this at a later time, while Bell denied that he ever did so.
Helms had not filed any grievances as of October 2, and I
do not credit his statement that Bell on that date gave griev-
ance filing as one of the reasons for the Company’s failure
to select him.
The collective-bargaining agreement provides that deter-
minations as to skill, ability, and qualifications of an appli-
cant will be made by the Company. If it determines that no
bidder is qualified, the Company may transfer an employee
from another classification or hire a new employee from the
outside, subject to the grievance and arbitration provisions of
the contract.6
Bell testified without contradiction that Ricky Sherman
called him a few days after the posting, and asked whether
there was any opening. Bell replied that there was, and the
two discussed whether Sherman’s planned schooling would
interfere with his working. Bell replied that he would let
Sherman know, and, a few days after October 2, told Sher-
man that he had the job. Sherman started work on October
15.
B. Alleged Additional Conversations Between Helms
and Bell, and the Filing of the Grievances
Helms contended that Bell told him on October 15 that he,
Helms, had been selected for the master mechanic position.
Nonetheless, Helms filed grievances on October 16 or 17 be-
cause, he said, ‘‘his supervisor (Bell) had not come back to
(him) and told him about it.’’ Helms asserted that he did not
trust Bell’s word on the matter. A few days later, according
to Helms, on October 18 or 19, Bell told all the applicants
the reasons they were rejected, and advised Helms that he
was not selected because he had filed grievances. Bell testi-
fied that the only time that Helms was told he had been de-
nied the master mechanic position was at the meeting on Oc-
tober 2, and, as indicated, denied that he ever told Helms
that the reason was Helms’ filing of grievances.
I do not credit Helms’ testimony that Bell told him on Oc-
tober 15 that he, Helms, was getting the master mechanic po-
sition—Sherman started work in that position on the same
day. If Helms in fact had been promised the position, his rea-
sons for filing grievances on his own behalf were strained.
I do not credit Helms’ assertion that Bell, on October 18 or
19, told Helms that he had not been promoted because of the
grievances—this was a decision which Bell had made prior
to the filing of the grievances.
The grievances which Helms filed or attempted to file are
dated October 16, 17, or 18. Helms filed several on his own
behalf, while other employees also submitted their grievances
to Helms for filing. The names of several employees appear
on one of the grievances with a statement that they were fil-
ing.7 The grievances generally allege that Respondent vio-
lated the contract by hiring Ricky Sherman without posting
the master mechanic vacancy and giving other employees an
opportunity to bid on the job.8
Bell testified that he was not the immediate supervisor of
the employees listed on the grievances. This was true with
respect to some of them. Respondent considered this to be
significant because of a provision in the collective-bargaining
agreement requiring that a first-step grievance be filed with
the employee’s ‘‘immediate’’ supervisor.9 However, Helms
himself was a maintenance employee, and Bell acknowl-
edged that he was Helms’ supervisor.10 Personnel Manager
Gerst testified that former Steward Ricky Sherman filed a
grievance with Bell.
Respondent contended that a first step grievance involved
an oral discussion. The Union argued that the reading aloud
of a previously written grievance was not inconsistent with
the contractual requirements.11 Helms testified that he
walked into Bell’s office on October 16 or 17 and placed 5
grievances on Bell’s desk. The latter said they were not any
good, did not want to discuss the matter further, and walked
out of the office with Helms following him. Bell agreed that
he told Helms that the filing was incorrect or ‘‘not legal.’’
Asked whether he told Helms the reason, Bell replied that
Helms was in a hurry to get out of the office. It is unlikely
that Helms, the steward, would have avoided conversation
over the grievances, and I credit his version of the filing.
Personnel Manager Garrett Gerst appears to have written
Helms a memo dated October 22 denying the grievances be-
cause they ‘‘did not follow the proper steps as outlined in
the contract.’’12
Helms returned to Bell’s office on October 24 with several
of the other grievants.13 Bell testified that the other grievants
signed the grievances, but that he refused Helms’ request to
initial the documents indicating that he was a witness. Per-
sonnel Manager Gerst testified that Helms was the first stew-
ard who filed more than one grievance.
C. Alleged Prohibition Against Discussing Grievances
on Company Premises
1. Summary of the evidence
The collective-bargaining agreement contains prohibitions
against union activity in certain circumstances and against
887SOUTHEASTERN BRUSH CO.
14 Secs. 2 and 3 of art. III of the contract read:
Section 2. There shall be no Union activity carried on during
work time of the Company’s premises or work sites except in
connection with the Grievance Procedure as provided herein.
Section 3. It is further agreed that no employee shall threaten
another employee in an effort to have him join or refrain from
joining the Union or to participate or refuse to participate in
union activities. Any employee who engages in such activity
shall be subject to discipline or discharge as a result of such ac-
tivity whether it occurs on or off the Company’s premises or
work sites. [R. Exh. 1, art. III.]
15 As indicated, York was one of the grievants. Supra, fn. 7.
16 R. Exh. 4.
17 The General Counsel moved to admit Gerst’s pretrial affidavit,
G.C. Exh. 6, in order to establish prior inconsistency in his testi-
mony. I reserved ruling on the motion, and now grant it.
18 The pleadings establish that Van Voorhees was a supervisor
within the meaning of the Act.
19 Van Voorhees stated that the date was October 23.
threatening another employee to participate in such activi-
ties.14
Helms affirmed that he was talking with employee Greg
York about grievances in the company parking lot at 3:35
p.m. on October 17.15 Working time for both of them had
ended for the day. The parking lot is not a production area,
and there are no company rules against being in the parking
lot, according to Helms.
Helms testified that Personnel Manager Gerst approached
and told him to quit filling out grievances on company time
and premises. Helms asked how he could get the grievances
filled out properly, Gerst replied that Helms had to leave the
property, and that he could give the grievances to employees
to take home for completion. According to Helms, he handed
Gerst another grievance, and then left with York.
Helms testified that the United Way is allowed to solicit
donations from employes, that employees solicit contribu-
tions for wedding gifts, and that Production Manager Van
Voorhees allows an employee to keep candy in Voorhees’
office for sale to employees on behalf of the school attended
by the employee’s child.
Personnel Manager Gerst testified that Maintenance Super-
visor Bell told him that two employees—Luis Santiago and
Ricky Bates—had complained to Bell that Helms was
‘‘harassing’’ employees. Gerst contended that he investigated
this complaint, but agreed that he did not question either
Santiago or Bates. Neither employee testified at the hearing.
On direct examination, Gerst stated that he saw Helms in
the parking lot on October 17 standing by his truck with a
briefcase. He approached Helms, and the latter ‘‘slammed’’
his briefcase shut. Gerst denied seeing York, denied knowing
that Helms was soliciting grievances, and denied telling
Helms to stop discussing grievances on company property
after working time. All he did tell Helms was to stop
‘‘harassing’’ employees after work. (Helms denied that Gerst
made the latter statement.) Gerst agreed that Helms handed
him a grievance.16
On cross-examination, Gerst acknowledged that the alleged
harassment concerned the filing of grievances. He initially
denied telling Helms to have the employees take the griev-
ances home and return them to Helms the next day. How-
ever, after being shown his pretrial affidavit, Gerst acknowl-
edged that he may have said this to Helms. Gerst initially
denied that the Company’s policy was to prohibit any type
of solicitation. However, on being shown his pretrial affi-
davit, he agreed that the Company’s policy was to prohibit
any type of solicitation during working hours.17 Gerst agreed
that the Company allows solicitation by United Way and that
Van Voorhees allows an employee to keep candy in Van
Voorhees’ office for sale to employees, but denied solicita-
tion for wedding gifts.
2. Factual analysis
The only evidence in support of this complaint allegation
is Helms’ testimony and the written grievances themselves.
Although I have not credited other parts of Helms’ testimony
relating to other matters, I must consider his averments on
this issue. The only evidence opposing his testimony is that
of Personnel Manager Gerst. The contradictions in Gerst’s
testimony outlined above cast doubt on his reliability as a
witness, and, in fact, constitute partial admissions. Gerst’s
failure to question the two employees who assertedly com-
plained about Helms and Respondent’s failure to call them
as witnesses are additional reasons for discrediting Gerst. I
conclude that Helms was the more reliable of the two wit-
nesses who testified about this matter.
I therefore conclude that Helms was engaged in union ac-
tivity, to wit, grievance solicitation, during nonworking time
in a nonworking area on October 17. There is no published
company rule prohibiting such activity. While Helms was en-
gaged in the activity described above, Personnel Manager
Gerst told him to stop filling out grievances on company
time and premises, to give the grievances to the employees
to take home, and to leave the property.
D. The Alleged Threat to Discharge Employees for
Engaging in Union Activities
1. Summary of the evidence
Helms testified that Production Manager Van Voorhees18
called a meeting of all employees in the afternoon of October
24 as a result of overhearing them discussing the grievances
during break periods. Van Voorhees said that orders were
getting ‘‘thin.’’ He also said that any employees talking
about the union or engaging in union activities on company
time and premises would be terminated.
Van Voorhees testified that the Company was ‘‘experi-
encing a slowdown.’’ ‘‘People were congregating, talking,
walking around, leaving their work stations, [and] all the ma-
chines seemed to go down at the same time.’’ This occurred
during work time, according to Van Voorhees. Production
declined ‘‘significantly.’’
Van Voorhees testified that he attempted to approach em-
ployees ‘‘while they were in groups,’’ but that the group
would thereupon disperse. A few minutes later it would form
again.
Van Voorhees gets daily production reports. None was
presented at the hearing. Helms denied that there was a slow-
down, affirmed that the machines never stopped running,
and, as indicated, testified that the employee discussions took
place during break periods.
Van Voorhees called a meeting of all employees during
the afternoon after a break period.19 On direct examination
he said that he told the employees they were being paid to
work during work time, and that they would be disciplined
888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 The record contains evidence of other asserted wage with hold-
ings on other dates, and asserted repayments. I have not considered
this evidence because the complaint alleges only a withholding on
October 26.
21 The collective-bargaining agreement provided that, at a step 2
grievance meeting, the Union could be represented by its business
manager or his representative, and a representative from the Inter-
national. R. Exh. 1, art. VII.
22 Ibid.
23 Gerst argued that Helms was not required to be present under
the terms of the contract.
24 Errors in transcript have been noted and corrected.
25 Anna Hampton, who had a grievance.
for ‘‘congregating’’ and failing to put out a work product.
On cross-examination, Van Voorhees first denied saying that
the ‘‘slowdown’’ would not be tolerated if it was caused by
union activity, but then affirmed that he did say this if the
union activity took place during work time. Van Voorhees
acknowledged that the phrase ‘‘during work time’’ does not
appear in his pretrial affidavit.
2. Factual analysis
Van Voorhees’ testimony is questionable because of the
changes he made in it, and the fact that the Company did
not produce any production reports to support Van Voorhees’
assertion of a slowdown. In these circumstances, I credit
Helms’ denial that there was a slowdown. I also credit
Helms’ testimony that the employees discussed the griev-
ances during break periods, and that Van Voorhees overheard
at least some of these discussions. Van Voorhees admitted
that he approached employees engaged in group discussions.
I conclude that, at the meeting, he told employees that they
would be terminated if they engaged in union activities on
company time and premises.
E. The Alleged Withholding of Wages and Deduction
of Attendance Points
The complaint alleges that Respondent withheld wages and
deducted ‘‘attendance points’’ from Helms on October 2620
because of his union activities. The latter allegation concerns
Respondent’s disciplinary program of deducting points for
unauthorized absences from a preset quota of points.
Helms called International Representative Lawrence
McNeil, and informed him that there were problems with the
filing of the grievances. McNeil testified that he called Per-
sonnel Manager Gerst on October 18 and again on October
23, and asked what was wrong with the manner in which
Helms filed the grievances. McNeil denied that Gerst said
Helms was bypassing the first step of the grievance proce-
dure. All that Gerst replied was: ‘‘Read the contract.’’ Gerst
testified that he told McNeil that the grievances had been
filed incorrectly and to read step 1 of the contract. I credit
McNeil’s version of this aspect of their conversation.
McNeil wanted a meeting with management on the griev-
ances, and wanted Helms to attend.21 The contract provided
that in the absence of adjustment a second-step grievance had
to be filed and a meeting held within 7 days of the filing
of the first step grievance.22 This would have mandated a
second-step meeting during the week of October 22. How-
ever, the Company had scheduled a 2-day training class in
hydraulics for maintenance employees beginning October 25,
and Helms was assigned to attend this class.
McNeil testified that he and Gerst tentatively decided on
Friday, October 26, as the date of the second step meeting.
McNeil informed Gerst that Helms, the steward who had
filed the grievances, would be present. Gerst replied that
Helms was assigned to a class that day. McNeil testified that
he then asked whether Gerst wanted to ‘‘extend the time’’
(for the second step meeting) to accommodate this conflict
in schedules. According to McNeil, Gerst replied, ‘‘No.’’
Gerst asserted that he could not remember whether NcNeil
made this request, and was ‘‘unclear’’ on whether Helms
would be present.23 I credit McNeil.
On October 24, the day after McNeil’s second conversa-
tion with Gerst, Helms asked Maintenance Supervisor Bell
whether he, Helms, should attend class or the grievance
meeting on October 26. Bell replied that he would not give
an opinion, and that Helms had to make his own decision,
according to Helms Bell affirmed that he told Helms he
knew what his assignment was,24 and I credit Helms.
Helms attended the first day of the class, on October 25,
without incident. It was held at a Ramada Inn about 30 min-
utes drive from the plant. Helms arrived at the plant at 6:30
a.m. the next morning, October 26. Both the training class
and the grievance meeting were scheduled to begin at the
same time, 9 a.m. Helms testified that he attempted to clock
in, but that his timecard was not in its slot. Bell testified that
he had pulled the timecards of all employees who were as-
signed to the class. He did not let Helms go to work that
morning, but did allow him to walk around the plant while
Bell was working. Bell contended that he told Helms to go
to class. At 8:20 a.m., Gerst came to the production area and
told Helms to go back to his car.
The grievance meeting began at 9 a.m., and was attended
by McNeil, Helms, and another employee25 for the Union,
while the Company was represented by Gerst, Van Voorhees,
and Bell. The meeting lasted about 20 or 25 minutes. McNeil
asked what was wrong with the grievances, and Gerst replied
that they were procedurally defective. When McNeil asked
for an explanation, Gerst responded: ‘‘Read the contract.’’
Gerst admitted that he did not tell the union representatives
‘‘in plain English’’ that the grievances were defective be-
cause they had not been filed with the ‘‘immediate’’ super-
visor, but contended that he did say that ‘‘Step 1 had not
been met.’’ McNeil, corroborated by Helms, denied that
Gerst said anything about step 1. I credit McNeil and Helms.
McNeil further testified that he asked Van Voorhees why
the latter had told employees on October 23 that they would
be fired if they talked about the Union. Van Voorhees re-
plied that he did not have a tape recorder, and did not re-
member saying this. He said nothing about a slowdown.
McNeil’s testimony as to Van Voorhees’ statements on Octo-
ber 26 is uncontradicted and is credited.
McNeil testified that, about 15 minutes into the meeting,
Van Voorhees stood up and said that it was a waste of time.
McNeil persuaded him to sit down and continue the meeting
for another few minutes, but ‘‘they finally said, ’Get out, you
need to leave or we will call the police.’’’ Gerst’s version
is that, as the meeting closed, ‘‘the president of the Company
walked by.’’ McNeil asked why the president did not call the
police and have the union representatives removed. The
president replied that they would do that if they had to.
889SOUTHEASTERN BRUSH CO.
26 The Union’s written requests for information were received in
evidence as G.C. Exhs. 3 and 4. Nonetheless, these exhibits do not
appear in the formal exhibit file, and attempts to secure copies have
been unsuccessful.
Despite these lapses, the record is sufficient to support findings
because of the pleadings and testimonial evidence.
27 G.C. Exh. 5.
28 R. Exh. 5.
29 McNeil’s description of this letter attributes to the Company a
position which is consistent with the one it advanced during the
presentation of the grievances.
30 The complaint is silent on the contractual ban against union ac-
tivity during working time on company premises.
31 Ling Products Co., 212 NLRB 152 (1974); Chem Fab Corp.,
257 NLRB 996, 1000 (1981), enfd. 691 F.2d 1252 (8th Cir. 1982).
The only management representatives mentioned by
McNeil and Helms were Gerst, Bell, and Van Voorhees; the
president of the Company did not testify. McNeil was a more
trustworthy witness than Gerst, and I credit his account of
this matter.
McNeil then asked the management representatives a se-
ries of questions: (1) Should Helms go back to work? (2)
Would he be allowed to clock in? (3) Would he be docked
points for the day? (4) Would he be docked for the entire
day if he drove to the Ramada Inn (where the class was
being conducted). To each of these questions, a management
representative gave the same response: ‘‘He knows what to
do.’’ Gerst admitted that he told McNeil that Helms knew
his work assignment, and further agreed that this was not his,
Gerst’s, normal response to an inquiry of this nature.
Helms testified that he had already missed about one-third
of the class, taking into account driving time to the Ramada
Inn, and did not know whether they would allow him to
enter. He could not clock in at the plant, because there was
no timecard in his slot. Accordingly, Helms went to the
union hall to discuss the situation with a union lawyer, and
remained there for the day. He was not paid for October 26,
and two points were deducted from his attendance record.
F. The Alleged Refusal to Give Information
to the Union
The pleadings as amended at the hearing establish that on
October 20 and 30, the Union requested and Respondent
thereafter failed to furnish the Union with the following in-
formation: current seniority roster; employee breakdown by
age, race, and sex; the qualifications for the positions of mas-
ter mechanic and mechanic class A & B; personnel records
for newly hired mechanics and operators; evaluations for all
unit employees for one year, including performance reviews;
training records for all machinery for one year; training
manuals for mechanics and operators; current and past per-
sonnel files of Ricky Sherman; names, job classifications,
and rates of pay of all unit employees for 1 year prior to the
date of the Company’s response, together with their dates of
hire, transfers, terminations or layoffs, hours worked and
benefits received. International Representative McNeil testi-
fied that one of his written requests for information stated
that the request was necessary in order to process griev-
ances.26
McNeil repeated this necessity in his testimony, and
averred that there were grievances in addition to those in-
volving the master mechanic position. He stated that a se-
niority roster was necessary because of the contractual provi-
sion allowing the Company to consider length of service
when an applicant is bidding for a job. McNeil acknowl-
edged receipt of a roster dated June 26,27 but asserted his
need for a more recent one. He wanted the information as
to age, sex, and race because of the other grievances that
were ‘‘in a black hole somewhere.’’ He needed the master
mechanic and mechanic A and B qualifications to make cer-
tain that there had been no recent changes, and cited a letter
to the Union from the Company in September 1989 listing
a change in the title of maintenance leader to master me-
chanic.28
On November 5, according to McNeil, the Company wrote
the Union a letter stating that the Union was not entitled to
any of the requested information because the grievances were
procedurally deficient.29
G. Legal Analysis and Conclusions
1. Statements of Personnel Manager Gerst
The credited evidence establishes that Respondent, by its
Personnel Manager Gerst, told an employee engaged in
grievance solicitation in a nonworking area during
nonworking time to stop engaging in such activity, to give
the grievances to the employees to take home, and to leave
the property. Respondent has shown no business justification
for this action. It is therefore clear that it violated Section
8(a)(1) of the Act. Pizza Crust Co., 286 NLRB 490 fn. 1
(1987).
2. Statements of Production Manager Van Voorhees
The record establishes that during break periods on about
October 23, employees congregated in groups and discussed
the grievances. Production Manager Van Voorhees ap-
proached these groups and overheard at least some of the
discussions. Later, the same day or soon thereafter, Van
Voorhees called a meeting of employees and told them that
any employee engaging in union activities on company time
and premises would be terminated. The record contains evi-
dence that Respondent permitted other solicitation in the
plant, although it is unclear whether any of this took place
during working time. The collective-bargaining agreement
prohibits union activity during working time on company
premises, except for activity ‘‘in connection with the Griev-
ance Procedure’’ provided in the contract.30
‘‘The test of a violation of Section 8(a)(1) is whether the
employer’s conduct reasonably tends to interfere with the
employees’ exercise of their Section 7 rights.’’ NLRB v.
Hitchiner Mfg. Co., 634 F.2d 1110, 1113 (8th Cir. 1980),
enfg. 234 NLRB 927 (1979). The fact that Van Voorhees’
statement about union activities during working time took
place immediately subsequent to the employees’ discussion
of grievances during nonworking time tended to link the two
subjects. Respondent’s opposition to employee discussion of
grievances during nonworking time in nonworking areas was
established by Gerst’s prior unlawful statements to Helms.
Considering all the circumstances, I conclude that Van Voor-
hees’ statement was coercive.31
The language of the collective-bargaining agreement does
not provide Respondent with a defense. The ban on union
890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
32 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989, approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983).
33 Shrader’s, supra; Bristol Manor Health Care Center, 295 NLRB
1106 (1989); Glover Bottled Gas Corp., 292 NLRB 873 (1989);
Bundy Corp., 292 NLRB 671 (1989); American Commercial Lines,
291 NLRB 1066 (1988); Champ Corp., 291 NLRB 803 (1988);
FMC Corp., 290 NLRB 483 (1988).
34 Potters’ Medical Center, 289 NLRB 201 (1988); Shangri-La
Health Care Center, 288 NLRB 334 (1988).
activity during working time has an exception allowing activ-
ity ‘‘in connection’’ with the grievance procedure. Although
it may be argued that this language refers to the formal steps
of the grievance procedure, an equally plausible argument is
that employee discussion of grievances is ‘‘connected’’ to
the grievance procedure and thus falls within the exception
to the ban. In any event, whatever the interpretation of the
contract language, it is clear that the Union did not waive
the employees’ statutory rights under Section 7 of the Act by
entering into the agreement. Page Avjet Corp., 275 NLRB
773, 778 (1985).
I therefore conclude that Van Voorhees’ statement to the
employees was violative of Section 8(a)(1) of the Act.
3. Alleged discriminatory withholding of wages from
Helms and deduction of attendance points
The General Counsel has the burden of establishing a
prima facie case that is sufficient to support an inference that
protected conduct was a motivating factor in Respondent’s
decision to withhold wages from Helms and to deduct attend-
ance points. Once this is established, the burden shifts to Re-
spondent to demonstrate that the discipline would have been
administered even in the absence of the protected conduct.32
The General Counsel has established a strong prima facie
case that Helms’ grievance activity was a motivating factor
in the withholding of wages and deduction of attendance
points. There is ample evidence of Respondent’s opposition
to the filing of the grievances. In addition to the unlawful
statements of Supervisors Gerst and Van Voorhees discussed
above, Respondent was unresponsive to the Union’s attempts
to ascertain the Company’s reason for the asserted illegality
of the filings. Gerst’s letter to Helms dated October 22 states
merely that he had not followed ‘‘the proper steps as out-
lined in the contract’’ but was not explicit. When Inter-
national Representative McNeil asked Gerst the reason on
the telephone, he received the curt reply, ‘‘Read the con-
tract.’’ This obduracy continued throughout the October 26
meeting, and at no time did Respondent inform the Union of
its position that the filings were defective because they had
not been submitted to the affected employees’ ‘‘immediate’’
supervisor. Aside from the Company’s refusal to explain its
position, it is clear that, with respect to Helms at least, the
Company’s position had no merit, since Bell was Helms’ im-
mediate supervisor. Finally, after a brief meeting, on October
26, the Company told the union representatives to leave or
it would call the police.
Respondent’s argument that the contract did not require
Helms’ attendance at the second-step meeting is not estab-
lished by the record. The agreement provided for the attend-
ance of the business manager or his representative, together
with a representative from the International. Other than Inter-
national Representative McNeil, the only other two employ-
ees at the meeting were Anna Hampton, who had a griev-
ance, and Helms, the steward. There is nothing to show that
Helms was not the business manager’s representative, pursu-
ant to the contract. This argument, in any event, is a techni-
cality recently advanced by Respondent. Prior to the hearing
in this case, the Company’s only objection to Helms’ attend-
ance at the grievance meeting was the fact that he had been
scheduled to attend a class within the time period for the sec-
ond step grievance meeting. However, when McNeil sug-
gested that the meeting be postponed so that Helms could at-
tend both, Gerst declined.
The merits of the grievances themselves are irrelevant,
since it is well established that lack of merit does not affect
the protected status of the filing of grievances. Such activity
is normally held to be protected regardless of the time of day
it occurred or its effect on production. Johnnie Johnson Tire
Co., 271 NLRB 293, 294–295 (1984).
Respondent’s unlawful motivation is further evidenced by
the cryptic response from its managers to McNeil’s repeated
requests for instructions about the remainder of Helms’
day—‘‘He knows what to do’’—plus Gerst’s admission that
this was not his normal response to an inquiry of this nature.
Since Helms could not have clocked in at the plant without
a timecard, had already missed about one-third of the class
counting traveling time, and did not even know whether he
would be admitted to the class, his uncertainty about what
to do was justified. I conclude that Respondent’s refusal to
give him instructions amounted to a constructive layoff
discriminatorily motivated. Accordingly, its failure to pay
him his wages for the day and the deduction of attendance
points were violative of Section 8(a)(3) and (1) of the Act.
4. Alleged unlawful refusal to supply information
Respondent disputes the relevance of the information
sought by the Union. The Board has recently stated that ‘‘it
is well settled that a union is not required to show the pre-
cise relevance of such (requested) information unless the em-
ployer has submitted evidence sufficient to rebut the pre-
sumption of relevance . . . . Thus, if the information is of
potential or probable relevance, the General Counsel need
not make a showing that the information is clearly disposi-
tive of the negotiation issues between the parties.’’
Shrader’s, Inc., 293 NLRB No. 76, slip op. at 3, fn. 3 (Apr.
11, 1989) (not reported in Board volumes). A host of Board
decisions has affirmed the relevance of the type of informa-
tion sought by the Union herein.33 Respondent argues that it
had already supplied certain information (seniority list, job
descriptions), but it is obvious that a seniority list becomes
dated with the passage of time and the hiring of new em-
ployees, while there is evidence of prior change in a job de-
scription. The Board has held that failure to update relevant
information is violative of the Act.34
CONCLUSIONS OF LAW
1. Southeastern Brush Company is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. International Brotherhood of Firemen and Oilers, Local
288, AFL–CIO is a labor organization within the meaning of
Section 2(5) of the Act.
891SOUTHEASTERN BRUSH CO.
35 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendments to 26 U.S.C. § 6621. Interest accrued before January
1, 1987 (the effective date of the amendment) shall be computed as
in Florida Steel Corp., 231 NLRB 651 (1977).
36 If no exceptions are filed as provided by Sec. 102. 46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102. 48 of the Rules,
be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
37 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
Continued
3. Respondent committed unfair labor practices within the
meaning of Section 8(a)(1) of the Act,
(a) By prohibiting an employee from discussing grievances
in a nonworking area during nonworking time; and,
(b) Immediately after employee discussion of grievances
during breaks, by telling them that they would be discharged
for engaging in union activity on working time and premises.
4. Respondent withheld wages from Johnny Helms for Oc-
tober 26, 1990, and deducted two attendance points from his
record because of his union activities, thus discouraging
membership in a labor organization in violation of Section
8(a)(3) and (1) of the Act.
5. All production and maintenance employees employed
by Respondent at its East Point, Georgia facility including all
machine operators, shipping and receiving employees, chem-
ical plant employees, and truck drivers, but excluding all of-
fice clerical employees, professional employees, technical
employees, guards and supervisors as defined in the Act con-
stitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
6. At all times since June 7, 1979, the Union described
above has been and is the representative of the employees in
the unit described above, and has been and is the exclusive
representative of such employees for the purpose of collec-
tive bargaining.
7. By refusing in October 1990 to comply with the
Union’s request for certain information needed to enable the
Union to fulfill its statutory responsibility as the employees’
representative, to wit, a current seniority roster, the qualifica-
tions for the positions of master mechanic and mechanics
class A and B, personnel records for newly hired mechanics
and operators, evaluations of unit employees for 1 year, in-
cluding performance reviews, training records for all machin-
ery for 1 year, current and past performance files of Ricky
Sherman, names, job classifications, and rates of pay of all
unit employees for 1 year with their dates of hire, transfers,
terminations, or layoffs, hours worked, and benefits received,
Respondent thereby committed an unfair labor practice with-
in the meaning of Sections 8(a)(5) and (1) of the Act.
8. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
9. Respondent has not committed any unfair labor prac-
tices except as specifically found herein.
THE REMEDY
It having been found that Respondent has engaged in cer-
tain unfair labor practices, it is recommended that it be or-
dered to cease and desist therefrom and take certain affirma-
tive action designed to effectuate the purposes of the Act.
It having been found that Respondent unlawfully withheld
wages and deducted attendance points from Johnny Helms
on October 26, 1990, it is recommended that Respondent be
ordered to make Helms whole by restoring his deducted at-
tendance points and by paying him the salary and other bene-
fits to which he would have been entitled absent Respond-
ent’s unlawful conduct, less net interim earnings, in the man-
ner prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).35
It having been found that Respondent unlawfully refused
to supply information needed by the Union to enable it to
fulfill its statutory responsibility as the employees’ represent-
ative, it is recommended that Respondent, on request, be or-
dered to furnish such information to the Union.
I shall further recommend that Respondent be ordered to
rescind its unlawful rule against grievance solicitation during
nonworking time in nonworking areas. I shall also rec-
ommend the posting of notices.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended36
ORDER
The Respondent Southeastern Brush Company, East Point,
Georgia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Prohibiting employees from discussing grievances in a
nonworking area during nonworking time.
(b) Telling employees that they will be discharged for en-
gaging in union activities during working time on company
premises immediately subsequent to their discussion of griev-
ances during break periods.
(c) Discouraging membership in the International Brother-
hood of Firemen and Oilers, Local 288, AFL–CIO, or any
other labor organizations, by withholding wages or deducting
attendance points from employees because of their union ac-
tivities, or by otherwise discriminating against them with re-
gard to their wages, hours of work, tenure of employment,
or conditions of work.
(d) Refusing to give the Union the information described
in Conclusion of Law 7.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make Johnny Helms whole for the unlawful with-
holding of his wages and deduction of attendance points in
the manner described in the remedy section of this decision.
(b) On request, supply the Union with the information de-
scribed in Conclusion of Law 7.
(c) Rescind its prohibition against employees engaging in
grievance activity during nonworking time in nonworking
areas.
(d) Preserve and, on request, make available to the Board
or its agents for copying, all payroll records, social security
payment records, timecards, and all other records necessary
to analyze the remedial action necessary under the terms of
this Order.
(e) Post at its East Point, Georgia facility, copies of the
attached notice marked ‘‘Appendix. ’’37 Copies of the notice,
892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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. ’’
on forms provided by the Regional Director for Region 10,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that, with respect to any allega-
tion in the complaint not found to be a violation herein, the
allegation is dismissed.