Stoody Co.

National Labor Relations Board - Board Decisions

Dec 18, 1995

320 N.L.R.B. 18 (N.L.R.B. 1995)

18
320 NLRB No. 1
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 269 NLRB 1176 (1984), enfd. sub nom. Hotel & Restaurant Em-
ployees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
2 Id. at 1178 fn. 2.
3 Midland Transportation Co., 304 NLRB 4, 8 (1991).
4 Litton Microwave Cooking Products, 300 NLRB 324 (1990).
Stoody Company, Division of Thermadyne, Inc. and
International Union, United Automobile, Aero-
space and Agricultural Implement Workers of
America (UAW), AFL–CIO and The Hand-
book Committee, Party in Interest. Cases 26–
CA–15425, 26–CA–15428, and 26–CA–15521
December 18, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS COHEN
AND TRUESDALE
On September 23, 1993, Administrative Law Judge
Claude R. Wolfe issued the attached decision. The Re-
spondent and the General Counsel filed exceptions and
supporting briefs. They also filed answering briefs.
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, and con-
clusions as modified and to adopt the recommended
Order as modified.
1. The judge found that the Respondent did not vio-
late Section 8(a)(1) of the Act when Production Man-
ager Ray Renken interrogated employee Tony Jaggers
about the Union because Jaggers was an open and ar-
dent union supporter and the questions to Jaggers were
no more invasive or intimidating than those found law-
ful in Rossmore House.1 We disagree. Under the total-
ity of the circumstances in this case, we find that
Renken’s interrogation was coercive and therefore a
violation of Section 8(a)(1).
The essential facts are not in dispute. On March 9,
1993, Jaggers was called into Renken’s office where
Supervisor Dale Hugelmaier was also present. Renken
told Jaggers that he would be written up for insubor-
dination if he did not sign his evaluation or give a
written statement explaining his refusal to sign. Jaggers
refused to sign or give a written explanation. Renken
then gave Jaggers a writeup for insubordination and
told him that if he did not sign the writeup, he would
be further disciplined. Jaggers signed the disciplinary
writeup. Immediately after Jaggers signed, Renken
asked why Jaggers was for the Union. Jaggers said it
was due to the Company’s policies. Jaggers and
Renken talked further about comparisons between
Bowling Green benefits and those at a California union
plant. Jaggers then left the office.
In Rossmore House, the Board stated that it would
weigh the setting and nature of interrogations involv-
ing open and active union supporters when applying
the test of whether under all the circumstances the in-
terrogation reasonably tends to restrain, coerce, or
interfere with rights guaranteed by the Act.2 The Board
found that some factors which may be considered in
making such an analysis are: (1) the background; (2)
the nature of the information sought; (3) the identity
of the questioner; and (4) the place and method of the
interrogation. Considering these factors in this case, we
find that Renken’s interrogation went beyond the
bounds of permissible questioning.
Initially, we note that this interrogation occurred
against a background of numerous unfair labor prac-
tices committed by the Respondent in an attempt to
prevent its employees from selecting the Union as their
exclusive collective-bargaining representative. The Re-
spondent, among other things, unlawfully prohibited
off-duty employees from distributing union handbills
in nonworking areas, threatened employees with dis-
charge if they did not obey the unlawful no-access
rule, granted a more favorable method of computing
overtime in order to discourage union membership and
activity, and promised to remedy employee concerns in
order to discourage union organizing.
Further, Renken was a high level supervisor, supe-
rior in rank to Jaggers’ immediate supervisor, Dale
Hugelmaier. The interrogation occurred in Renken’s
office, ‘‘the core of management authority,’’3 in the
context of a confrontation over Jaggers’ evaluation.4 It
was immediately after the confrontation ended in a dis-
ciplinary writeup that Renkens questioned Jaggers
about his support for the Union. There was no appar-
ent proper purpose for Renken’s questions. Nor did
Renken give assurances to Jaggers that he did not have
to answer or that his answer would not affect his job.
This is particularly significant in light of the fact that
Renken had disciplined Jaggers moments before bring-
ing up the question of the Union.
We believe that in these circumstances, Renken’s
questioning was not the kind of casual questioning re-
flecting the realities of the workplace which the Board
held lawful in Rossmore House. A consideration of all
the factors compels the conclusion that the interroga-
tion was coercive. The questioning of an employee
about his union sentiments by a high level supervisor
in his office immediately after a confrontation which
led to discipline, with no proper reason or assurances
given concerning the questioning, reasonably tends to
restrain, coerce, or interfere with statutory rights. This
conclusion is further supported by the fact that the Re-
spondent committed unfair labor practices directed to-
ward discouraging union and concerted activity both
before and after Renken’s interrogation of Jaggers. In-
deed, Renken committed an unfair labor practice the
morning after he interrogated Jaggers by attempting to
19STOODY CO.
5 Chairman Gould finds it unnecessary to address the propriety of
the Rossmore House approach to interrogation because a violation is
established here, even under that approach.
6 All dates are in 1993 unless otherwise indicated.
7 Tr. 228, LL. 9–13.
8 360 U.S. 202 (1959).
prevent Jaggers from telling fellow employees about
the discipline he had received from Renken the day be-
fore.
Accordingly, we find that under the test established
in Rossmore House, the interrogation of Jaggers vio-
lated Section 8(a)(1) despite the fact that he was an
open and ardent union supporter.5
2. The judge found that Respondent dominated the
formation and administration of the Handbook Com-
mittee and contributed financial support to it and there-
by violated Section 8(a)(2) and (1) of the Act. We find
that the Handbook Committee created by the Respond-
ent did not engage in a pattern or practice of dealing
with the Respondent on employment conditions. Ac-
cordingly, we find that the Committee was not a labor
organization under Section 2(5) of the Act and that the
Respondent did not violate Section 8(a)(2) in connec-
tion with the Committee.
The judge credited the testimony of Plant Manager
Hodges that he announced to employees in a meeting
on January 7, 1993,6 the formation of a handbook
committee that ‘‘was not to discuss wages, benefits, or
working conditions, but was to gather information
about different areas in the handbook that were incon-
sistent with our current practices, that were obsolete, or
that were misunderstood by employees so we could get
them cleared up as soon as possible.’’ The judge fur-
ther found that neither Hodges nor any other of the
Respondent’s agents referred to the discussion of the
handbook’s contents as negotiations. Although the
judge found that the Respondent committed other un-
fair labor practices in connection with the Union’s or-
ganizing campaign, he did not find that the Handbook
Committee was formed in response to or to avoid
unionization.
The first meeting of the Handbook Committee took
place on January 14. Hodges was not present at this
meeting. Director of Materials Management Hewitt
was in charge of the meeting attended by seven non-
supervisory employees and two other supervisors. Em-
ployee members of the Committee went beyond the
discussion of inconsistencies between the handbook
and current practice by raising concerns and making
proposals about such matters as notification for vaca-
tion time. Hewitt did not attempt to prevent the Com-
mittee from discussing such matters. Instead, he par-
ticipated in the discussion of employment conditions.
The Committee recommended that the vacation notifi-
cation time be changed from 2 weeks to 1 week. The
meeting lasted for 1 hour. The next meeting was
scheduled for January 21.
On January 15, Hewitt wrote a memo to Hodges de-
scribing the subjects that had been discussed and rec-
ommending that the wording be developed on the va-
cation notification issue ‘‘and incorporate the calendar
year changes so we can put this to bed.’’ Hodges also
had a discussion with Hewitt after the Committee
meeting. According to Hodges’ uncontradicted testi-
mony, Hewitt told Hodges that the meeting had gone
well but that he had trouble with one of the members
wanting to call it ‘‘negotiations.’’ Hodges testified: ‘‘I
told him that he had to confront that issue up front and
make sure that they understood, again, that it was not
to discuss wages, benefits, or working conditions. That
it was an information gathering committee.’’7
Soon after Hodges’ discussion with Hewitt, the Re-
spondent received notice that the Union had filed
charges that the Respondent’s conduct concerning the
Committee violated Section 8(a)(2). A brief meeting of
the Committee was held on January 21 for the purpose
of announcing that the Committee would not hold any
more meetings. No further meetings had been held or
scheduled at the time of the hearing in this case.
The judge conceded that no pattern or practice of
entertaining employee proposals on working conditions
had been established. However, he found that because
the Respondent had scheduled another meeting of the
Committee and had established no cutoff date for the
life of the Committee, it was not unreasonable to con-
clude that the meetings would have continued in the
same vein, absent the filing of unfair labor practice
charges. In this regard, he found that the absence of
any showing that succeeding meetings would not have
continued in the same manner was sufficient to support
the inference that the meetings would so continue. The
judge found: ‘‘However blameless the original intent
of Respondent may have been in establishing the
Handbook Committee, Respondent acquiesced to and
willingly participated to a change of course and pur-
pose when the January 14 meeting became a forum for
the presentation of employee concerns which Hewitt
undertook to remedy as his memo plainly shows with
respect to the prevacation notification requirement and
the scheduling of future discussion of ‘concerns which
people have regarding our policies.’’’ The judge con-
cluded that in these circumstances the Handbook Com-
mittee had employee members and existed, at least in
part, for the purpose of dealing with the Respondent
concerning conditions of work. Under the rationale of
the Supreme Court’s decision in NLRB v. Cabot Car-
bon Co.,8 the judge found that the Handbook Commit-
tee was a labor organization within the meaning of
Section 2(5) and that the Respondent’s actions toward
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 311 NLRB 893, 894 (1993).
10 Id. Chairman Gould agrees in substantial part with this analysis
of the term ‘‘dealing with’’ under Sec. 2(5). It is a reasonable con-
struction of the Act which allows employers and employees to ex-
plore cooperative efforts without the fear that one error or isolated
incident will transform a genuine attempt to cooperate into the un-
lawful domination of a labor organization.
11 Chairman Gould notes that Sec. 2(5) refers to dealing with the
employer on ‘‘grievances, labor disputes, wages, rates of pay, hours
of employment, or conditions of work.’’ In this connection, he be-
lieves that the du Pont decision was in error to the extent that it
treated the subjects listed in Sec. 2(5) as interchangeable with man-
datory subjects of bargaining. The determination of whether a sub-
ject of bargaining is mandatory or nonmandatory is made with re-
spect to the obligation to bargain under Sec. 8(a)(5). The law tends
to be restrictive in this area. See, e.g., First National Maintenance
Corp. v. NLRB, 452 U.S. 666 (1981), where the Supreme Court held
that a management decision to engage in a partial closing was not
a mandatory subject of bargaining. See W. Gould, The Supreme
Court’s Labor and Employment Docket in the October 1980 Term:
Justice Brennan’s Term, 53 U. Colo. L. Rev. 1, 6–18 (1981). In con-
trast, the law tends to be more expansive with respect to the subjects
listed under Sec. 2(5). See, e.g., Cabot Carbon Co., 360 U.S. 203,
213–214 (1959), where the Supreme Court in finding that the em-
ployee committee at issue was a statutory labor organization referred
not only to its dealing with the employer on grievances, but to its
dealing with the employer ‘‘with respect to matters covering nearly
the whole scope of the employment relationship.’’
As he has stated elsewhere, Chairman Gould thinks the better pol-
icy is to compel bargaining on all subjects bearing some nexus to
the employment relationship and not to make the artificial distinction
between mandatory and nonmandatory subjects. See William B.
Gould IV, Agenda for Reform: The Future of Employment Relation-
ships and the Law, (MIT Press, 1993), pp. 170–173. Under his view,
both subjects of bargaining and subjects defining a statutory labor
organization should be construed expansively. That, however, is not
the current state of the law and for this reason, he believes it is not
correct to interchange mandatory subjects of bargaining under Sec.
8(a)(5) with the subjects listed under Sec. 2(5) as du Pont appears
to have done.
12 Chairman Gould has long believed such an interpretation can
lead to the achievement of true democracy in the work place. See
Chairman Gould’s concurrence in Keeler Brass Co., 317 NLRB
1110 (1995), and works cited therein.
it were, therefore, subject to the prescriptions of Sec-
tion 8(a)(2). We disagree.
The critical question in this case is whether the
Handbook Committee existed, at least in part, for the
purpose of dealing with the Respondent concerning
grievances, labor disputes, wages, rates of pay, hours
of employment, or conditions of work as set forth in
Section 2(5) of the Act. Contrary to the judge, we find
that the Committee did not exist, even in part, for such
a purpose. In E. I. du Pont & Co.,9 the Board de-
scribed ‘‘dealing with’’ as a bilateral mechanism be-
tween two parties. The Board said:
That ‘‘bilateral mechanism’’ ordinarily entails a
pattern or practice in which a group of employees,
over time, makes proposals to management, man-
agement responds to these proposals by accept-
ance or rejection by word or deed, and com-
promise is not required. If the evidence estab-
lishes such a pattern or practice, or that the group
exists for a purpose of following such a pattern or
practice, the element of dealing is present. How-
ever, if there are only isolated instances in which
the group makes ad hoc proposals to management
followed by a management response of accept-
ance or rejection by word or deed, the element of
dealing is missing.10
Drawing the line between a lawful employee partici-
pation program and a statutory labor organization may
not be a simple matter because it may be difficult to
separate such issues as operations and efficiency from
those concerning the subjects listed in the statutory
definition of labor organization.11 If parties are bur-
dened with the prospect that any deviation, however
temporary, isolated, or unintended, from the discussion
of a certain subject, will change a lawful employee
participation committee into an unlawfully dominated
labor organization, they may reasonably be reluctant to
engage in employee participation programs.
We support an interpretation of the Act which
would not discourage such programs.12 The portion of
the majority opinion in du Pont discussed above pro-
vides such an interpretation. By requiring that ‘‘deal-
ing’’ consist of a pattern or practice of making propos-
als to management on the subjects covered in Section
2(5), du Pont allows for the isolated errors that may
occur in any genuine attempt to change the interaction
between employer and employees. Such errors or
missteps will not result in a finding that an employee
participation committee is a statutory labor organiza-
tion. At the same time, du Pont makes it clear that re-
curring instances of an employee participation commit-
tee making proposals to management on mandatory
subjects constitutes ‘‘dealing’’ and the committee will
be found to be a labor organization. This, we believe,
strikes a proper balance which permits experimentation
with employee participation but protects against the
danger of an employer dominated labor organization
which Section 8(a)(2) was designed to address.
Applying this analysis to the facts here, we find that
there was no dealing. As the judge conceded, no pat-
tern or practice of dealing was established by the Gen-
eral Counsel. The Committee had the brief lifespan of
1 hour only. Clearly, a 1-hour meeting in itself shows
no pattern or practice of any kind. Further, we believe,
contrary to the judge, that the evidence supports the in-
ference that if additional meetings of the Committee
had been held, the meetings would not have resulted
in proposals to management on working conditions.
In announcing the formation of the Committee to
employees, Hodges carefully limited the purpose of the
Committee to information gathering. He stated that the
Committee was not to discuss wages, benefits, or
working conditions, but was to gather information
about inconsistencies between the employee handbook
21STOODY CO.
13 If an employer formed an employee participation committee in
response to a union organizing campaign, Chairman Gould would
draw the inference that the organization was designed to thwart em-
ployee independence and free choice.
14 Member Cohen agrees that there was no ‘‘dealing’’ in this case.
Accordingly, in his view, it is unnecessary to reach any issues con-
cerning the scope of the subject matters listed in Sec. 2(5). However,
he notes his general agreement with Chairman Gould that Sec. 2(5)
is ‘‘more expansive’’ in this respect than the more ‘‘restrictive’’ def-
inition of mandatory subjects.
Member Cohen also wishes to emphasize that the 8(a)(2) allega-
tion is dismissed herein because of the absence of ‘‘labor organiza-
tion’’ status. Thus, it is unnecessary to reach any issues of ‘‘unlaw-
ful domination.’’
and actual practices. During the 1-hour meeting, it was
not Hewitt who led the members beyond the process
of gleaning information about current practices. Em-
ployee members of the Committee initiated the discus-
sion of working conditions and the making of propos-
als. True, Hewitt did not assert control over the discus-
sion and participated in the discussion of proposals
concerning working conditions. But this alone is hardly
evidence that the Respondent was prepared to abandon
its original idea and allow the Committee to deal with
it on working conditions in future meetings. Indeed,
the uncontradicted testimony of Hodges indicates that
prior to receiving notice of the unfair labor practice
charge, he expressed alarm to Hewitt that the Commit-
tee had strayed from information gathering and in-
structed Hewitt to make sure that the Committee un-
derstood that it was not a negotiating body, that it was
to glean information about inconsistencies but not to
make proposals concerning the change of practices or
policies.
In light of Hodges’ comments before and after the
meeting of the Committee, we find that the evidence
supports the inference that the Committee would not
have been permitted to continue to deal with working
conditions, and that the 1-hour meeting would not have
grown into a pattern or practice of dealing with the
Employer within the meaning of Section 2(5). What
happened here appears to us to be the kind of situation
that is likely to occur when an employer is attempting
something new and its supervisors have little or no ex-
perience with participation efforts. Absent evidence of
a pattern or practice, or of a design to interfere with
the organizing efforts of an independent labor organi-
zation,13 we do not think such conduct violates the
Act. Accordingly, we find that the Handbook Commit-
tee was not a labor organization and that the Respond-
ent’s actions in connection with it, therefore, did not
violate Section 8(a)(2).14 We dismiss these allegations
of the complaint.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Stoody Company, Division of Thermadyne, Inc.,
Bowling Green, Kentucky, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 1(f).
‘‘(f) Interrogating employees about their union ac-
tivities or sympathies or threatening to interfere with
protected concerted activity.’’
2. Delete paragraph 1(a) and reletter the subsequent
paragraphs.
3. Delete paragraph 2(a) and reletter the subsequent
paragraphs.
4. Substitute the attached notice for that of the ad-
ministrative 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 maintain or enforce any rule prohibit-
ing off-duty employees from distributing union lit-
erature in nonworking areas when there is no justifi-
able business reason to do so.
WE WILL NOT grant benefits to our employees in
order to discourage union membership or activities.
WE WILL NOT promise to remedy employee con-
cerns during the course of a union organizing cam-
paign.
WE WILL NOT threaten to discharge or otherwise re-
taliate against employees because they do not obey un-
lawful company rules.
WE WILL NOT interrogate employees about their
union activities or sympathies or threaten to interfere
with protected concerted activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
STOODY COMPANY, DIVISION OF
THERMADYNE, INC.
Jane Vandeventer, Esq., for the General Counsel.
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are 1993 unless otherwise specifically indicated.
2 International Brotherhood of Electrical Workers Local Union
369, AFL–CIO.
3 Counsel for the General Counsel had noted on the record before
Judge Miller on January 14 that if there proved to be merit in the
new charges filed that day, but which had not yet been investigated,
General Counsel would consider moving to consolidate the new
charges with those then before Judge Miller if required to so do by
Jefferson Chemical, supra.
4 See, e.g., Venture Packaging, 290 NLRB 1237 fn. 1 (1988).
5 Compare Best Lock Corp., 205 NLRB 648 (1991), and
Martemont Corp., 249 NLRB 216, 217 (1980).
Jerry Kronenberg, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge. This pro-
ceeding was litigated before me in Nashville, Tennessee, on
June 23 and 24, 1993, pursuant to charges timely filed and
served and consolidated complaint issued April 15, 1993, and
amended at trial. General Counsel alleges that Respondent
violated Section 8(a)(1), (2), and (3) of the National Labor
Relations Act (the Act) in early 1993.1 Respondent denies it
has violated the Act.
On the entire record, and after considering the testimonial
demeanor of the witnesses and the posttrial briefs of the par-
ties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, Respondent admits, and I find Re-
spondent is a corporation which has been engaged in manu-
facturing and selling welding products and related materials
at its facility in Bowling Green, Kentucky, at all times mate-
rial to this proceeding and, during the 12-month period end-
ing December 31, 1992, sold and shipped goods valued in
excess of $50,000 directly from that facility to points outside
the State of Kentucky and purchased and received at the fa-
cility more than $50,000 worth of goods arriving directly
from points outside the State of Kentucky. At all times mate-
rial to this proceeding, Respondent has been and now is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. SUPERVISORS AND AGENTS
At all material times, the following individuals held the
positions set forth opposite their respective names and have
been supervisors of Respondent within the meaning of Sec-
tion 2(11) of the Act and agents of Respondent within the
meaning of Section 2(13) of the Act:
Dave Hodges Plant Manager
Renae Spencer Director of Human Resources
Dale Hugelmaier Supervisor
Ray Renken Production Manager
Ed Whaley Coiling Supervisor
Ron Parker Coating Supervisor
Gary Hewitt Supervisor
IV. PREVIOUS LITIGATION
On June 21, 1993, Judge Michael O. Miller issued his De-
cision in Stoody Company Division of Thermadyne, Inc.,
Case 26–CA–15025, recommending to the Board that Re-
spondent be found in violation of the Act in certain respects.
I have taken official notice of certain motions before Judge
Miller and his rulings thereon which are relevant to Re-
spondent’s affirmative defense in this proceeding urging the
dismissal of many allegations in the consolidated complaint
before me on the ground they were known or should have
been known by the General Counsel prior to or during the
hearing before Judge Miller, and their litigation before me is
therefore barred by Jefferson Chemical Co., 200 NLRB 992
(1972), and its progeny.
V. THE JEFFERSON CHEMICAL DEFENSE
The facts that must be considered in assessing the validity
of this defense are quite clear as are the applicable principles
of law. Turning first to the facts, the complaint in Judge Mil-
ler’s case alleging violations of Section 8(a)(3) and (1) of the
Act occurred in February and April 1992, issued May 22,
1992, and was litigated before Judge Miller on January 14
and 15, 1993. The charging union in that case was the
IBEW.2 The first charge in the matter before me was filed
January 14, 1993. Subsequent charges and amended charges
were filed in January, February, and March. As previously
noted, the consolidated complaint issued April 15. It alleges
violations of the Act in January 1993.
On February 24, 1993, counsel for the General Counsel
filed a motion to Judge Miller to consolidate cases and re-
open hearing. In support of this motion, counsel for the Gen-
eral Counsel argued that matters alleged in Cases 26–CA–
15425 and 26–CA–15428 (which are now before me) should
be consolidated for hearing with Case 26–CA–15025 (which
Judge Miller had heard) because the allegations in the later
cases were directly related to allegations before Judge Mil-
ler.3 Counsel for the Respondent opposed the motion and ar-
gued that the cases should not be consolidated because there
was no substantive or temporal relationship between them.
On March 9, 1993, Judge Miller denied the motion to con-
solidate and reopen the record because he found insufficient
nexus between the cases to warrant consolidation.
General Counsel contends the opportunity to litigate the
allegations cannot be denied and Judge Miller’s denial of the
motion to consolidate left General Counsel free to litigate the
cases before me. I agree. The absence of a common charging
party4 and the time lapse5 between matters litigated before
Judge Miller and those litigated before me are sufficient to
warrant separate trials, as Judge Miller’s ruling clearly im-
plies. Moreover, the Board has recently held that if an
amendment of the complaint to allege closely related matters
is disallowed, the General Counsel is free to litigate those re-
jected allegations in a later proceeding. Highland Yarn Mills,
310 NLRB 644, 645 (1993). An effort to consolidate cases
in order to litigate all closely related matters in one proceed-
ing is functionally equivalent to a motion to amend. In both
cases the aim of the motion is to combine all related matters
in one proceeding. When counsel for the General Counsel
23STOODY CO.
moved to consolidate, she fulfilled her duty on behalf of
General Counsel to make efforts to litigate all related matters
in one proceeding. When Judge Miller denied her motion she
was free under the Highland Yarn Mills rule to litigate before
me the allegations she was not permitted to consolidate. For
the foregoing reasons, Respondent’s contention that the fail-
ure to litigate the items before Judge Miller that it now seeks
to strike is sufficient reason to bar General Counsel from
now litigating them is rejected.
VI. THE ALLEGED UNFAIR LABOR PRACTICES
The allegations may be most conveniently dealt with as
falling within three general classifications, i.e., (1) the insti-
tution of a new policy for calculating overtime; (2) rules and
statements concerning solicitation and distribution; and (3)
the formation and utilization of a handbook committee.
A. The Overtime Policy
David Hodges came to Respondent’s Bowling Green, Ken-
tucky facility as its vice president and general operations
manager on November 2, 1992, almost 7 months after the
employee conduct found by Judge Miller to constitute unfair
labor practices. Prior to that time he had been a division con-
troller in Respondent’s corporate offices in St. Louis, Mis-
souri.
When Hodges arrived at Bowling Green, he found that
employees were being paid overtime for work performed
over 40 hours a week and that the basic 40 hours could in-
clude vacation days, holidays, and sick days on which the af-
fected employee did no work. After consultation with the
Corporation’s director of human resources, who advised
overtime was to be paid only for hours actually worked per
week in excess of 40 hours a week, Hodges on December
4, 1992, convened a meeting with all the employees, an-
nounced a change in the method of computing overtime, and
gave the employees copies of an interoffice memorandum
signed by him and reading, in relevant part, as follows:
In the past twelve months overtime has been paid
many different ways and the policy interpreted many
different ways. This is how I, and the corporate office,
interpret the policy and how overtime pay will be han-
dled:
Overtime pay is for all hours worked in excess of 40
hours per week. The pay for overtime will be 11/2
times straight time. Hours worked are defined as
time physically worked at your job for the Company.
This does not include hours paid for sick time, vaca-
tion time or holiday time.
If a non-exempt employee is asked to work on a hol-
iday, that employee will be paid his normal straight
time for hours worked plus his holiday pay.
At no time was there the intent to duplicate pay or
to pay employees time and a half for holiday pay.
Again, I would like to re-emphasize that overtime
pay, by Federal and State law and by our policy, is for
hours physically worked in excess of forty hours per
week. We will pay time and a half for all non-exempt
employees working overtime.
This change in the method of computing overtime is neither
alleged nor found to be an unfair labor practice.
Several employees met with Larry Reid, regional organizer
for the Union, on December 21, 1992, and discussed union
organizing. The following day about eight of the employees
began to wear union organizing buttons to work. On the
morning of January 4, 1993, before the work shift com-
menced, four or five employees stood beside the company
timeclocks and distributed union handbills to employees as
supervisors passed by.
Two days later, on January 6, Hodges directed a memoran-
dum to employees concerning overtime pay which advises:
After our last meeting on factory overtime pay on
December 1st, I had a lot of employees approach me
with complaints about the overtime policy stating that
the policy was not consistent with standard practice of
other factories in the area.
I gave this a great deal of consideration and made
a proposal to our corporate office to change our policy
manual at Stoody. This has been approved.
The proposed revision is that all hours worked in ex-
cess of normal scheduled work hours will be paid over-
time. Thus is an employee is normally scheduled to
work eight hours per day and works nine hours in that
day, the employee will be paid eight hours straight time
and one hour at time and one-half overtime rate. If an
employee is normally scheduled to work Monday
through Friday and that employee is asked to work on
Saturday and does so, the employee will be paid time
and one-half overtime rate for all hours worked on Sat-
urday.
Under our present schedule, any hours worked in ex-
cess of eight hours per day or any hours worked on
Saturday or Sunday would be paid at overtime rate.
I believe this policy change will give most employ-
ees what they are requesting and be in the best interest
of all employees.
I have not said anything about this prior to today be-
cause I do not want to get in the habit of promising
things or telling you things will happen before I have
the necessary approvals to ensure that they will happen.
I am proposing this change to each of you and would
like to have a meeting at 3:15 on January 7 to discuss
the change and any objections there may be.
As promised in the memo, Hodges subsequently did meet
with the employees on January 7 and personally confirm the
changes in overtime pay set forth in the memo. This new
overtime pay policy providing for time-and-a-half for hours
worked in excess of 8 on any day and further providing
time-and-a-half for any hours worked on Saturday or Sunday
presented the employees with a potential increase in earnings
without increase in actual hours worked. Thus, a person
working 4 10-hour days would, under the January 6 plan, re-
ceive 44 hours pay whereas there would be no overtime pay
under the December 4 plan until the employee worked more
than 40 hours a week.
The complaint alleges Respondent, about January 8, 1993,
reinstituted a policy for calculating overtime which included
holidays, sick days, and vacation days as time worked in
order to discourage support for the Union. Respondent clear-
ly did not reinstitute a policy which included holidays, sick
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Fairfax Hospital, 310 NLRB 299, 314 fn. 18 (1993); Gencorp,
294 NLRB 717 fn. 1 (1989); Chicago Rivet & Machine Co., 275
NLRB 1298, 1301 fn. 7 (1985); General Battery Corp., 241 NLRB
1166, 1169 (1979).
days, and vacation days as time worked but, rather, instituted
a brand new policy on computation of overtime. Neverthe-
less, the matter was fully litigated and no party contends the
allegation is not broad enough to cover the action Respond-
ent took. Accordingly, I deem it appropriate to decide wheth-
er the institution of the new policy violated the Act.
The implementation of the new policy 15 days after em-
ployees starting wearing union buttons to work, 2 days after
the employees publicly displayed union support by
handbilling at the facility, and but 1 month after the earlier
policy revision which Hodges avers was the result of con-
sultation with and approval by corporate headquarters, is not
only suspicious but may suggest antiunion animus as a moti-
vating factor in the January 6 policy change. NLRB v. Rain-
Ware, Inc., 732 F.2d 1349, 1353 (7th Cir. 1984); Equitable
Resources Energy Co., 307 NLRB 730 (1992). Moreover,
Respondent’s statement in its employee handbook, which
was in effect on January 6, 1993, contains the following
‘‘Policy Statement’’:
Stoody Company is a union free Company. It is our
sincere belief that a union would not benefit the em-
ployees at Stoody Company, and it is our intention to
prevent any union from interfering with the present
open relationship that exists between our employees
and management by every proper and legal means
available.
We prefer to deal with people directly rather than
through a third party. This is a non-union organization
and it is certainly our desire that it always be that way.
This does not mean that from time to time we do not
have problems. However, we have always been able to
work these out among ourselves without the interven-
tion of outsiders. No organization is free from day to
day problems but we have the desire and believe that
we have policies and practices to help resolve problems
rather than fight with each other. Unions have never
gotten any employee their job, neither have they caused
anyone to keep his job. Only all of us working together
to make this a viable, healthy organization are able to
do that. We encourage you to bring your problems to
your supervisor or anyone else you feel can help you
and we in turn promise to listen and give the best pos-
sible response that we can. In today’s world there are
many pressures. We want to keep our organization free
from artificially created tensions that can be brought on
by the intervention of outsiders such as a union. We
feel that a union would be of no advantage to any of
us. It would hurt the business on which we all depend
for our livelihood. We accept our responsibility to pro-
vide the best working conditions, pay and benefits that
we can afford. It is not necessary for you to pay union
dues to receive fair treatment in this company. Each of
you is an individual and you have the right to speak for
yourself.
At some point in your career at Stoody Company,
you may be approached by a paid organizer or a fellow
employee who will try to persuade you to sign a card
requesting union representation. Their job is to make
unions sound good and try to convince you that a union
can do something beneficial for you.
Before you sign anything—before you give away
your privilege to speak and act on your own behalf—
we urge you to consider the problems associated with
having a union as your exclusive representative, as well
as the total job package Stoody Company is currently
providing to you and your family. This total job pack-
age has been earned by you and provided by the Com-
pany without the need for a union, without payment of
union dues, without strikes and without the loss of indi-
vidual freedom. Invest in your future security, and that
of your family, by protecting your individual freedom
and supporting the policy of positive and open manage-
ment without third party union interference.
Although it is not alleged and I do not find this statement
of policy violates the Act, it clearly shows Respondent’s
strong aversion to unionization and may be used to show
antiunion animus.6 The combination of overt union activity
known to Respondent, the timing of the January 6 policy
change, and Respondent’s openly announced opposition to
unionization is sufficient to warrant an inference, which I
draw, that antiunion animus was a motivating factor in the
decision to make the change in overtime computation an-
nounced to employees on January 6, 1993.
Respondent’s defense to this allegation is based on the tes-
timony of David Hodges, whose testimony relates the follow-
ing sequence of events: When he announced the December
4 policy, employees complained it was not the general prac-
tice in the area and was not consistent with Respondent’s
handbook, to which he replied that he would have a survey
conducted on overtime in the geographical area, would dis-
cuss the matter with corporate officers, and would see what
could be done. He then instructed Renae Spencer, director of
human resources at the facility, to survey area companies of
a size comparable to that of Respondent to ascertain their
practice concerning overtime payments. Spencer reported to
him about December 14 that 27 percent of similarly sized
area companies paid overtime for hours worked over 8 per
day and for Saturday work if their normal scheduled work-
week was Monday through Friday, and that Holley, a much
larger company from which 20 or 25 percent of Respond-
ent’s employees had come, handled overtime pay the same
way. This information moved Hodges to decide to change
the policy as he did in January, but he first had to get ap-
proval from the corporation’s president, executive vice presi-
dent, and executive vice president of human resources. He
was unable to contact them because they were otherwise en-
gaged until Christmas day when he talked to the executive
vice president who agreed to set up a meeting with all three
corporate officers, all of whom did then have a conference
call with Hodges on January 6, 1993, and approved the plan
which he wrote and distributed that day. Hodges’ version of
events leading to the January change in overtime computa-
tion is plausible but, with the exception of acknowledgment
by General Counsel’s witnesses that Hodges told then when
he announced the change in January that the change was
based on a survey of other employers in the area, is sup-
ported by nothing more than his say so. Renae Spencer, testi-
25STOODY CO.
7 International Automated Machines, 285 NLRB 1122 (1987); Red-
wood Empire, 296 NLRB 368 fn. 1 (1989).
fying on other matters, gave no testimony concerning the
conduct ascribed to her by Hodges in connection with the
purported survey of area companies. No documentation of
said survey, or indeed any document relevant to the issue
other than Hodges’ January 6 memo to employees, was prof-
fered in evidence. None of the corporate officials who pur-
portedly discussed and approved Hodges’ plan were called to
testify. There is no showing they were unavailable to Re-
spondent. Spencer was obviously available. Considering the
obvious fact that testimony from these persons which cor-
roborated Hodges’ testimony would bolster his credibility
and go a long way toward exonerating Respondent with re-
spect to the allegation here leveled against it, the failure of
Respondent to call any of these potential witnesses to testify
in support of Hodges with regard to the matters relating to
the establishment of the January 1993 policy concerning
overtime gives rise to an inference these persons, if called,
would not have supported Hodges’ description of significant
events.7 Accordingly, I do not credit Hodges’ recitation of
the planning, authorization, and timing of the new policy.
Respondent has not rebutted General Counsel’s prima facie
case. I therefore conclude and find General Counsel has
shown by a preponderance of the credible evidence that Re-
spondent violated Section 8(a)(3) and(1) of the Act by grant-
ing the employees a more favorable method of computing
overtime pay on January 6, 1993, in order to discourage
union membership and activity.
B. The Handbook Committee
During the January 7 meeting in which he announced the
new overtime computation policy discussed above, Hodges
also announced the formation of a handbook committee.
After studying the testimony of other management and rank-
and-file employees concerning what Hodges said when he
made that announcement, I am persuaded and find that his
testimony which follows is a credible and reasonably accu-
rate recollection of his explanation to the employees and su-
pervisors assembled on January 7.
I announced that I wanted a Handbook Committee.
This Handbook Committee would be consisted of vol-
unteers of both exempt and non-exempt employees
throughout the facility. That this committee was not to
discuss wages, benefits, or working conditions, but was
to gather information about different areas in the hand-
book that were inconsistent with our current practices,
that were obsolete, or that were misunderstood by em-
ployees, so we could get them cleared up as soon as
possible.
I further find that at no time did Hodges or other of Re-
spondent’s agents refer to the discussion of the handbook’s
contents as negotiations or otherwise state those contents
were being negotiated. To the extent certain of the employ-
ees referred to handbook negotiations or negotiating meet-
ings, I conclude these references were their own construc-
tions rather than reflective of any of Respondent’s statements
concerning the handbook review.
Hodges appointed Gary Hewitt, Respondent’s director of
materials management, to conduct the handbook review and
to supervise the selection of employees to serve on the com-
mittee. This selection was accomplished by employee elec-
tion of representatives in each department. These elections
and Respondent’s selections of management representatives
resulted in a committee composed of seven nonsupervisory
employees and three supervisors: Hewitt, Pat Paro, and Dale
Hugelmaier, with Hewitt clearly in charge of the project. The
selection of a committee thus accomplished, its first meeting
took place on January 14. Employee members of the com-
mittee were paid for the time. Hewitt and employees Randy
Hawks and Marilyn Hastings testified concerning the content
of that meeting. Although Hawks and Hastings make ref-
erence to ‘‘negotiations’’ with the Company during the meet-
ing, both concede Respondent’s representatives never in their
presence so characterized what went on at that meeting. I
have examined the testimony of Hawks, Hastings, and Hew-
itt, Hewitt’s notes made at the meeting, Hewitt’s January 15
memo to Hodges describing what transpired during the meet-
ing, compared their testimonial demeanor, and concluded the
hour-long meeting proceeded in the folllowing fashion. Em-
ployee members of the committee, notably Hawks, did not
confine themselves to issues of inconsistency between hand-
book requirements and actual practices in accord with the
purposes for which Respondent asserts it established the
committee, but raised concerns and suggested changes in
both policies and practices. The reason for this venture into
matters outside the parameters announced by Respondent
was, I believe, the understanding expressed by Hawks, ‘‘I
thought we were there to negotiate the policy handbook.’’
Consistent with his understanding so stated, Hawks raised
questions on several issues which went beyond cleaning up
the handbook to confirm with the policies, as did other em-
ployees. Hewitt’s January 15 memo to Hodges concerning
what went on at the meeting the prior day relates, in relevant
part:
The purpose of the committee is to define current
policies and bring to the attention of management any
discrepancies or errors in our handbook.
We had our first meeting yesterday with most of the
members present. We made a list of concerns which
people have regarding our policies. They are structured
under the following generic headings:
1. Seniority issues (Departmental, Job Classifica-
tion, Plant) with job posting, bidding, trial periods,
recall procedures.
2. Sick days, make-up time, personal time.
3. Formalized complaint procedures.
4. Explanation of ‘‘employment at will’’ para-
graph on page 2.
5. Reduce the two week vacation time notifica-
tion.
6. Clearly define overtime policy and provide ex-
amples.
7. Better define length of time for maternity leave.
8. Briefly discussed evaluations and the Corporate
policy on reviews requiring the supervisors signature
as well as the next level manager’s.
We decided to discuss vacation notification time
first. We concluded that a one-week notice prior to a
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Electromation, Inc., 309 NLRB 990, 991 (1992).
9 Respondent’s argument that it cannot be held liable for a viola-
tion of the Act because Hawks and other union advocates ‘‘sought
to corrupt the stated purpose of the committee to accommodate their
own ends,’’ i.e., by making the proposals listed by Hewitt which re-
late to working conditions of employees, is unconvincing. Hewitt
need only have refused to consider such suggestions if they were in-
deed not germane to the purposes of the committee, but he elected
otherwise.
10 NLRB v. Cabot Carbon Co., 360 U.S. 202, 214 (1959).
11 E. I. du Pont Co., 311 NLRB 893 (1993).
one week or more vacation should be sufficient in most
cases. There are times when it could be at the super-
visor’s discretion that even less than a week would be
fine. In addition, when taking a day or two, two day’s
notice should be sufficient, again at the supervisor’s
discretion.
I suggest before the next meeting Renae, you and I
meet to develop the wording on this and incorporate the
calendar year changes so we can put this to bed.
We agreed to discuss item number 2. next and get
additional feedback from employees. The next meeting
is scheduled for Thurs 1/21 at 3:30 in the Boardroom.
The recitation of items discussed comports with Hewitt’s
notes taken at the meeting and, I believe, is reasonably accu-
rate. Hewitt made no promises at the meeting to remedy the
employees’ expressed concerns, and advised that any policy
changes had to be approved by Respondent’s corporate offi-
cers in St. Louis.
The next meeting scheduled for January 21 was canceled
because the Union filed charges with the Board on January
15, 1993, alleging Respondent’s conduct vis-a-vis the com-
mittee violated the Act. No further meetings had been held
or scheduled at the time of the hearing before me. The con-
solidated complaint now before me alleges, among other
things, Respondent violated Section 8(a)(2) and (1) of the
Act by announcing and commencing the formation of the
handbook committee to deal with Respondent concerning
wages, hours, and other terms and conditions of employment;
supervising the selection by employees of representatives to
the committee; convening and participating in a meeting of
its employees in the committee; and rendering assistance and
support to said committee by conducting the selection of em-
ployee representatives and conducting a meeting on its prem-
ises during worktime. It is further alleged that Respondent
violated Section 8(a)(1) of the Act by the conduct of Gary
Hewitt and Dale Hugelmaier, at the January 14 meeting, of
soliciting and impliedly promising to remedy employee
grievances in order to discourage union support.
Section 8(a)(2) provides it shall be an unfair labor practice
for an employer:
to dominate or interfere with the formation or adminis-
tration of any labor organization or contribute financial
or other support to it: Provided, That subject to rules
and regulations made and published by the Board pur-
suant to section 6, an employer shall not be prohibited
from permitting employees to confer with him during
working hours without loss of time or pay.
The first issue here presented is, therefore, whether the hand-
book committee is or was a labor organization as defined in
Section 2(5) of the Act to be:
any organization of any kind, or any agency or em-
ployee representation committee or plan, in which em-
ployees participate and which exists for the purpose, in
whole or in part, of dealing with employers concerning
grievances, labor disputes, wages, rate of pay, hours of
employment, or conditions of work.
The Board explained in Electromation8 that:
Under the statutory definition set forth in Section 2(5),
the organization at issue is a labor organization if (1)
employees participate, (2) the organization exists, at
least in part, for the purpose of ‘‘dealing with’’ em-
ployers, and (3) these dealings concern ‘‘conditions of
work’’ or concern other statutory subjects, such as
grievances, labor disputes, wages, rate of pay, or hours
of employment. Further, if the organization has as a
purpose the representation of employees, it meets the
statutory definition of ‘‘employee representation com-
mittee or plan’’ under Section 2(5) and will constitute
a labor organization if it also meets the criteria of em-
ployee participation and dealing with conditions of
work or other statutory subjects. Any group, including
an employee representation committee, may meet the
statutory definition of ‘‘labor organization’’ even if it
lacks a formal structure, has no elected officers, con-
stitution or bylaws, does not meet regularly, and does
not require the payment of initiation fees or dues.
Here employees participated in committee activity at the be-
hest of the Respondent who caused the departmental selec-
tion of employee representatives who were to present the em-
ployees point of view during committee meetings. Notwith-
standing Hodges’ announcement that the committee’s task
was to identify and correct inconsistencies between handbook
statements and current practices, the testimony and Hewitt’s
January 15 memo establish that employees attendant at the
January 14 meeting were permitted to raise their concerns9
and make proposals on several subjects plainly related to
working conditions. Moreover, Hewitt’s memo to Hodges re-
flects he and the others present agreed on what would be an
appropriate period for notification of intent to take a vaca-
tion, discussed employee evaluations, and agreed to further
discuss sick days, makeup time, and personal time, all of
which items are reasonably subsumed by the term ‘‘condi-
tions of work,’’ and that he recommended to Hodges that the
agreement on prevacation notification be reduced to writing
and placed in effect.
The Supreme Court has held that, even if proposals and
requests similar to those in this case and presented by an em-
ployee committee are no more than recommendations, the
employer is free to accept or reject in its sole discretion, the
presentation and consideration of the proposals and requests
are sufficient to establish the committee is ‘‘dealing with’’
the employer.10 The Board has recently commented in E. I.
du Pont11 concerning what constitutes ‘‘dealing’’ as follows,
in significant part:
[T]he concept of ‘‘dealing’’ does not require that the
two sides seek to compromise their differences. It in-
volves only a bilateral mechanism between two parties.
That ‘‘bilateral mechanism’’ ordinarily entails a pattern
27STOODY CO.
12 Hugelmaier did not testify.
13 Parrish’s account, supported by the recollections of Hawks and
Jaggers, is credited.
or practice in which a group of employees, over time,
makes proposals to management, management responds
to these proposals by acceptance or rejection by word
or deed, and compromise is not required. If the evi-
dence establishes such a pattern or practice, or that the
group exists for a purpose of following such a pattern
or practice, the element of dealing is present. However,
if there are only isolated instances in which the group
makes ad hoc proposals to management followed by a
management response of acceptance or rejection by
word or deed, the element of dealing is missing.
Because there was only one meeting, it cannot fairly be
said a pattern or practice of entertaining employee proposals
has been definitively shown but, inasmuch as Respondent
had scheduled another meeting and had established no cut-
off date for the life of the handbook committee, it is not un-
reasonable to conclude that but for the filing of the charges
on January 15, the meetings would have continued for some
indeterminable time. The absence of any showing succeeding
meetings would not have continued in the same vein is suffi-
cient, I believe, to support an inference they probably would.
Furthermore, the fact the concerns set out in Hewitt’s memo
to Hodges appear to have little to do with correcting the
handbook to accord with established practice, indicates Re-
spondent had willingly permitted the work of the committee
to expand to cover those very matters Hodges had stated
would not be dealt with, i.e., conditions of work. There is
no persuasive evidence the same would not be true of future
meetings. The fact that more meetings of the handbook com-
mittee would have been held, at least once on January 21 is
certain, and the absence of any showing the conduct of fu-
ture meetings would have differed in terms of subject matter
or procedure militates against a conclusion the meetings, ei-
ther held or to be held, are isolated instances or consist only
of the proffer and receipt of ad hoc proposals to be simply
accepted or rejected.
Hewitt’s memo to Hodges establishes that Hewitt antici-
pated discussing the items he enumerates therein at future
meetings. That he anticipated more than one such meeting is
clear from his notation to Hodges that the committee would
discuss item number two on his list (sick days, makeup time,
and personal time), which obviously relates to working con-
ditions, at the January 21 meeting. However blameless the
original intent of Respondent may have been in establishing
the handbook committee, Respondent acquiesced to and will-
ingly participated to a change of course and purpose when
the January 14 meeting became a forum for the presentation
of employee concerns which Hewitt undertook to remedy as
his memo plainly shows with respect to the prevacation noti-
fication requirement and the scheduling of future discussion
of ‘‘concerns which people have regarding our policies.’’
The facts in this case require a finding, consistent with the
Supreme Court’s holding in Cabot Carbon, Respondent was
‘‘dealing with’’ the Handbook Committee on January 14
concerning working conditions, and would have continued on
that course if the unfair labor practices had not been filed on
January 15. Accordingly, I conclude and find the handbook
committee has, at times material to the allegations before me,
had employee members, existed, at least in part, for the pur-
pose of dealing with Respondent concerning employee condi-
tions of work, and has at such times been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
Respondent totally controlled the formation of the commit-
tee, the election of its members, its meeting dates, and the
conduct of its meetings. Respondent also paid employee
members for time spent at committee meetings. By such con-
duct, Respondent dominated the formation and administration
of the handbook committee, contributed financial support to
it, and thereby violated Section 8(a)(2) and (1) of the Act.
I do not agree with General Counsel that Respondent so-
licited grievances during the January 14 meeting. What really
happened in that regard is that Hawks and others unilaterally
without coaxing by Respondent raised the subjects described
in Hewitt’s memo. I do, however, conclude that by entertain-
ing the matters raised by Hawks et al., and reserving them
for further consideration in some cases and reaching a con-
sensus in others, e.g., the vacation notification requirements,
Respondent impliedly promised to remedy these concerns.
Such conduct while a union organizing effort is going on,
reasonably tends to interfere with and restrain employees in
the exercise of their Section 7 right to seek union representa-
tion, and therefore violates Section 8(a)(1) of the Act.
C. Rules and Related Conduct
1. The no-access rule
The employees’ handbook issued March 1992 provides for
discipline up to and including termination for violation of
any one of a number or rules, including one barring employ-
ees from ‘‘Entering company property without proper author-
ization at any time other than authorized working hours.’’
At midnight on January 8, 1993, off-duty employees Ran-
dall Hawks, Tony Jaggers, Dennis Nuyt, and Thomas Parrish
stood on the sidewalk and in the company lot, both abutting
Respondent’s facility, and there spoke to departing second-
shift employees on behalf of the Union and gave them union
handbills. Dale Hugelmaier,12 a supervisor and agent of Re-
spondent, directed the four to leave company property be-
cause their conduct was contrary to company policy. At one
point he also pointed his finger at Parrish, shouted, ‘‘Tom!’’
and added, ‘‘Got you, that’s all I need!’’13—when Parrish
turned to him in response to his shout.
The four employees named above met with Renae Spen-
cer, Respondent’s director of human resources, supervisor,
and agent within the meaning of the Act, on January 12,
1993. Tammie Dutton, an executive secretary, was also
present and later reduced her notes to a written description
of what transpired. Considering the notes of Dutton, the testi-
mony of the other participants, which is complementary rath-
er than contradictory to any appreciable extent, and the prob-
abilities, I find that the men asked if they could be dis-
charged for distributing literature. Spencer replied they were
free to so do before and after work and during lunch in non-
work areas. This response is consistent with another hand-
book rule, whose validity General Counsel does not chal-
lenge, and which reads in pertinent part as follows:
To avoid interference with work and to prevent you
from unnecessary annoyance, soliciting, collecting, ac-
cepting contribution or distributing written materials is
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 I credit Jagger, Parrish, and Hawks that Spencer did confirm
discharge for violation of the no-access rule was possible. Moreover,
merely showing the rule in the handbook to the employees advised
them that was the case because the rule is clearly listed as one
whose violation could result in termination.
not permitted during an employee’s work time or to an-
other employee while that employee is on working
time. Distribution of literature is not permitted for any
purpose at any time in working areas of the facility.
Pressed by Nuyt concerning whether this meant handbilling
could be done at night when the second shift was coming
off, i.e., midnight, Spencer said this was not permitted be-
cause it was a safety and security problem. While so stating,
she showed Nuyt the handbook rule, first quoted above, con-
cerning the entering of company property at times other than
working hours, and confirmed that discharge could be im-
posed for a violation of this no-access rule.14 After new
lights were installed in the parking lot in early February
1993, by memo dated February 10, 1993, and distributed to
all employees by February 18, Respondent revoked the no-
access rule and announced the following to be its policies
concerning solicitation, distribution of literature, and access
to company property, effective February 10:
To avoid interference with work and to protect you
from unnecessary annoyance:
* Soliciting, collecting, accepting contributions or dis-
tributing written materials is not permitted during an
employee’s work time or to another employee while
that employee is on working time;
* Distribution of literature is not permitted for any pur-
pose at any time in working areas of the facility;
* Non-employees are prohibited from soliciting or dis-
tributing material on Company property; and
* Employees may not enter the interior of the plant or
other work areas except the reception area, at any
time other than their scheduled work hours.
Conclusions
The applicable test for no-access rules is set forth in Tri-
County Medical Center, 222 NLRB 1089 (1976), which ex-
plains that a no-access rule concerning off-duty employees is
valid only if it (1) limits access solely with respect to the
interior of the plant and other working areas; (2) is clearly
disseminated to all employees; and (3) applies to off-duty
employees seeking access to the plant for any purpose and
not just to those employees engaging in union activity, and
that except where justified by business reasons, a rule which
denies off-duty employees entry to parking lots, gates, and
other outside nonworking areas will be found invalid. ‘‘En-
tering company property without proper authorization at any
time other than authorized working hours’’ is prima facie in-
valid because it does not meet criteria (1) and denies off-duty
employees access to the parking lot and the sidewalk which
is obviously an outside nonworking area.
Was the rule nevertheless justified by business reasons?
Respondent asserts it was justified for reasons of safety and
security. According to Renae Spencer, Hodges advised her in
December 1992 that no employees were to be permitted in
the parking lot after dark for safety and security reasons be-
cause some employees had become concerned because there
were several people in the lot after dark the previous night,
and the employees were unable to ascertain who they were
in the dark. Spencer avers this was the information she relied
on when she spoke to the four union supporters on January
12, 1993. She further explains that the reason for the hand-
book no-access rule was an incident in July or August 1991
when someone broke into the plant one night, gunshots were
fired, and the police were called.
Hodges does not speak to the need for the rule which was
in place when he came to the Bowling Green facility, but re-
calls employees being fearful of the presence of unknown
persons in the parking lot after dark one night in early De-
cember 1992. The unknown persons proved to be the family
of a night-shift employee when Hodges approached them. He
recalls then observing the poor lighting in the lot and there-
after causing better lighting to be installed. He agrees with
Spencer that he told her of the incident in the parking lot,
and adds that he also told her he was having the lighting im-
proved.
It is difficult to imagine what deterrent effect a rule bar-
ring employees from the premises would have on plant
breakins like that in 1991, which has not been shown to be
the act of an employee or employees. The reason thus ad-
vanced for the promulgation of the rule is speculative and
not convincing. See, e.g., Orange Memorial Hospital, 285
NLRB 1099, 1100 (1987). Moreover, the rule is ambiguous
and may be read as a blanket prohibition barring employees
from being anywhere on company property, night or day, if
they are neither working nor otherwise specifically author-
ized by Respondent to be there. This is far too broad a rule
on its face and has not been shown to be justified by busi-
ness reasons. Accordingly, I conclude the rule is invalid and
violated Section 8(a)(1) of the Act as did its enforcement
against the union handbillers. Compare, e.g., Presbyterian
Medical Center, 227 NLRB 904, 905 (1977).
Turning to Respondent’s argument that when it stopped
the handbilling at night it was enforcing a more limited rule
which prohibited off-duty employees from entering or re-
maining on its parking lot after dark, I do not credit Spen-
cer’s claim Hodges told her in December 1992 that employ-
ees were to be excluded from the parking lot after dark.
Hodges did not corroborate this testimony, but merely stated
he took steps to remedy the inadequate lighting for safety
and security reasons. There is no evidence whatsoever that
employees were ever notified of any such policy. All that
Spencer did on January 12 when with the four employees is
advise them of the written rules. Her advice to them that
they could not handbill at night referred to safety and secu-
rity problems in conjunction with the application of the writ-
ten no-access rule and cannot be construed as some sort of
pronouncement of a second rule hitherto unknown to anyone,
apparently even to Hodges. I believe that in this connection
Respondent is grasping at straws, imaginative but unconvinc-
ing.
With respect to Hugelmaier’s remark to Parrish that he
had ‘‘got’’ him, I note that Hugelmaier testified before Judge
Miller that his attitude toward unions was ‘‘Unions are not
really in my eyes a good function for a company, because
they’re for employees that really don’t want to work, or
don’t want to be here at work. They’re for troubled employ-
ees.’’ Inasmuch as Parrish and his handbilling companions
were obviously acting on behalf of the Union, I conclude
29STOODY CO.
15 Dorothy Shamrock Coal Co., 279 NLRB 1298, 1299 (1986).
16 General Counsel cites NTA Graphics, 303 NLRB 801 (1991),
for the proposition that an employee’s protest of a requirement cer-
tain documents be signed, constitutes protected concerted activity.
NTA does not go quite that far. In that case 16 employees, not just
1, refused to sign handbooks and there was evidence of antiunion
animus, all resulting in a violation of Sec. 8(a)(3) of the Act.
Hugelmaier considered them ‘‘troubled employees’’ whose
prounion conduct he disapproved of. When a supervisor with
such an attitude gleefully advises an employee, in this case
Parrish, that the employee has been apprehended in violation
of a company rule and this apprehension fit the supervisor’s
need, the supervisor is plainly communicating he is preparing
to take some unspecified action against the employee for that
violation. The rule here was bad. It could not be lawfully en-
forced. Parrish was engaged in protected union activity. The
statement by Hugelmaier was a threat to retaliate against
Parrish’s protected union activity, and reasonably tended to
interfere with, restrain, and coerce employees in the exercise
of their rights guaranteed in Section 7 of the Act, all in vio-
lation of Section 8(a)(1) of the Act.
Returning to January 12, 1993, when Renae Spencer in-
formed employees that the no-access rule hereinabove found
unlawful was in effect and violations thereof by handbilling
of the second shift at midnight could result in discharge, Re-
spondent by its agent Spencer violated Section 8(a)(1) by
threatening employees with discharge by enforcement of an
unlawful rule. Fairfax Hospital, 310 NLRB 299 (1993).
2. Statements by Ron Parker, Ray Renken, and
Ed Whaley
Parker, Renken, and Whaley are all admitted supervisors
and agents of Respondent. It is well settled that Respondent
is responsible for the conduct of its supervisors.15 On Janu-
ary 5, 1993, they were instructed by Renae Spencer to read
the handbook rule on distribution and solicitation to their
employees. This rule is the one previously quoted in this de-
cision which General Counsel does not challenge as unlawful
and which is in fact not unlawful.
Leaving the meeting with Spencer, Parker returned to his
department and conducted a meeting with employees that
same day. Employees Hawks, Douglas, Boards, Frazier tes-
tify concerning Parker’s statements. A careful study of their
testimony persuades me that to the extent Hawks does not
agree with the other three, he is not credited. Hawks, an ac-
tive and outspoken union advocate with a clear interest in the
outcome of this proceeding was not as believable as the other
three who were consistent each with the other, displayed no
pro or antiunion bias, and impressed me as honest working
people relating only that which they in fact observed and
heard. What happened in the meeting was short and simple.
Parker started to read the following excerpt from the em-
ployee handbook:
To avoid interference with work and to prevent you
from unnecessary annoyance, soliciting, collecting, ac-
cepting contribution or distributing written material is
not permitted during an employee’s work time or to an-
other employee while that employee is on working
time. Distribution of literature is not permitted for any
purpose at any time in working areas of the facility.
Non employees are prohibited from soliciting or distrib-
uting material on company premises.
Hawks interrupted by insisting what Parker was reading was
incorrect because it conflicted with information in a union
booklet Hawks was holding. Parker advised the handbook
was company policy and finished reading the above-quoted
material. I find Parker proceeded exactly as Spencer had in-
structed. He read a lawful rule to the employees and did not,
as the complaint alleges, violate the Act by unlawful prohibi-
tion of distribution of literature or prohibition of conversation
about the Union.
Like Parker, Whaley conducted a meeting of employees on
January 5, 1993, at the same hour in the morning. After first
making a few remarks about cleaning in the department, he
advised those present that he was going to discuss solicita-
tion and distribution. He then started to read the same rule
in the handbook that Parker had read to employees in his de-
partment. There is some disagreement among the witnesses
concerning what then transpired. Bearing in mind that Spen-
cer had instructed the handbook be read to employees, there
was no apparent reason for Whaley to depart from those in-
structions, he clearly tried to so do, Renken finally managed
to so do, and Respondent’s witnesses on the matter were
more believable than Jaggers, Parrish, and Hastings, I con-
clude Whaley did start to read the rule aloud. He was, how-
ever, almost immediately interrupted by Tony Jaggers who,
like Hawks at Parker’s meeting, asserted that the union hand-
book in his hand contradicted what Whaley was saying. Fel-
low union activists Marilyn Hastings and Thomas Parrish
joined Jaggers in quoting from the union booklet with re-
spect to solicitation and distribution rights. Ray Renken
joined the group while this was going on. When Renken at-
tempted to intervene so that Whaley could finish reading the
Handbook rule, his efforts were unsuccessful. He therefore
terminated the meeting and directed the employees to return
to work. They did so. Whaley did not complete his reading
of the rule, and I am convinced that was all he tried to do,
I do not credit testimony he made extraneous remarks which
would tend to illegally restrict distribution of literature or
would contradict the very rule he was trying to read.
Within an hour, the meeting was reconvened by Renken.
He apologized for abruptly concluding the earlier meeting,
opined that Jaggers may have been correct in his statement
concerning employee distribution rights, and read the rule
aloud as Whaley had attempted to do earlier that day.
I conclude and find Whaley made no statements on Janu-
ary 5, 1993, considering distributing literature that violated
the Act. The complaint allegations to the contrary are dis-
missed.
On March 9, 1993, Jaggers was called into Renken’s of-
fice and advised that if he did not sign his evaluation or give
a written statement explaining his refusal to sign, he would
be written up for insubordination. Jaggers refused to sign or
provide an explanatory statement. Renken then handed him
an insubordination writeup and said that Jaggers would be
further disciplined if he refused to sign that.16 Jaggers signed
the disciplinary writeup. After this transaction, Renken asked
why Jaggers was for the Union. Jaggers explained it was due
to the Company’s policies. There was some further conversa-
tion concerning comparisons between Bowling Green bene-
fits and those at a California union plant. Jaggers then left.
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
Jaggers was an open and ardent union supporter as his
conduct in the January 5 meeting illustrates. Respondent
knew this was so when Renken asked why it was so.
Renken’s question is no more invasive or intimidating than
the questions posed to Harvey and accompanied by the pro-
nouncement the employer would fight the Union ‘‘to the
hilt’’ in Rossmore House, 269 NLRB 1176 (1984). Accord-
ingly, I find and conclude it did not constitute coercive inter-
rogation violative of Section 8(a)(1) of the Act.
The following morning, January 10, Jaggers informed a
number of his fellow employees he had been disciplined for
refusing to sign his evaluation, a disciplinary action, he told
them he had not heard of ever being done before. Jaggers
concedes, however, that he had been earlier told by Renae
Spencer he was required to either sign his evaluation or ex-
plain in writing why he would not. He further testified that
both Hugelmaier and Whaley had told him he did not have
to sign his evaluation, but he does not claim anyone told him
the alternative condition of giving a written explanation was
not necessary.
After Jaggers had discussed his discipline with other em-
ployees and commenced working on January 10, Renken
came to his work station. According to Jaggers, Renken said
he had heard Jaggers had been talking about his January 9
discipline and did not want him to do this because it slowed
the work force down, and further stated that if Jaggers con-
tinued to talk about it he, Jaggers, would be committing an
insubordinate act and this would be cause for discharge.
Renken’s version is that when he heard Jaggers had been
complaining to other employees about his discipline, which
caused them to be upset, he went to Jaggers and told Jaggers
that he did not want Jaggers to cause a ‘‘ruckus’’ in the plant
that could interfere with production. This evoked the reply
from Jaggers that he could tell anybody he wanted to about
his writeup. To this, says Renken, he rejoined that if Jaggers
was going to tell the story he should be accurate and relate
it was Jaggers’ own fault he was written up and that if he
continued to tell the story as he had been doing, Renken
would ‘‘straighten the stories out.’’ Renken denies threaten-
ing Jaggers with discipline if he continued to talk to employ-
ees about his January 9 discipline.
Jaggers denies that Renken offered to go with him and talk
about the incident if Jaggers continued to talk about it. This
does not quite meet Renken’s claim he said he would
straighten the stories out, but is in the general neighborhood.
Renken is credited where he and Jaggers differ because he
was the more believable of the two in general and his testi-
mony had the ring-of-truth in this instance. I therefore find
he did not threaten Jaggers with further discipline, but I do
find that his efforts to curtail Jaggers’ communications to
other employees concerning the application of Respondent’s
policy relative to the signing of evaluations violated Section
8(a)(1) of the Act as reasonably calculated to interfere with,
restrain, and coerce Jaggers in the exercise of Section 7
rights because Jaggers was engaged in protected activity
when he discussed a working condition, i.e., discipline for re-
fusing to sign an evaluation, with other employees during
breaktime. Pepsi Cola Bottling Co., 301 NLRB 1008, 1041
(1991). As the Board noted in Pepsi Cola, citing Root Car-
lin, Inc., 92 NLRB 1313, 1314 (1951), ‘‘the guarantees of
Section 7 of the Act extend to concerted activity which in
its inception involves only a speaker and a listener, for such
activity is an indispensable preliminary step to employee
self-organization.’’ There is no evidence Jaggers’ activity
Renken sought to curtail had slowed production or had a rea-
sonable tendency to create a ‘‘ruckus’’ and thus impede pro-
duction. Renken simply did not want Jaggers to air his views
to other employees, whether on breaktime or not, concerning
Respondent’s policy of requiring evaluations to be signed.
Renken was not impeded in any way from presenting Re-
spondent’s views to the employees concerning that policy
and its applications or from openly contradicting Jaggers’
message, but that does not mean Respondent was entitled to
stifle Jaggers on the subject when he was on his own time,
i.e., breaktime. Renken’s efforts to so silence Jaggers were
coercive interference with Jaggers’ statutory rights.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By forming, dominating, and assisting The Handbook
Committee, a labor organization within the meaning of Sec-
tion 2(5) of the Act, Respondent violated Section 8(a)(2) and
(1) of the Act.
4. By maintaining and enforcing a rule prohibiting off-duty
employees from distributing union handbills in nonworking
areas, Respondent violated Section 8(a)(1) of the Act.
5. By granting its employees a more favorable method of
computing overtime in order to discourage union member-
ship and activity, Respondent violated Section 8(a)(3) and (1)
of the Act.
6. By promising to remedy employee concerns at a time
it knew union organizing was afoot, Respondent interfered
with, restrained and coerced its employees in the exercise of
the rights guaranteed them in Section 7 of the Act, and there-
fore violated Section 8(a)(1) of the Act.
7. By threatening to discharge employees if they do not
obey its unlawful no-access rule, Respondent violated Sec-
tion 8(a)(1) of the Act.
8. By threatening an employee with unspecified retaliation
because he had not obeyed its unlawful no-access rule, Re-
spondent violated Section 8(a)(1) of the Act.
9. By threatening to interfere with an employee’s statutory
right to engage in protected concerted activity, Respondent
violated Section 8(a)(1) of the Act.
10. The unfair labor practices found above have an effect
on commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
In addition to the usual cease and desist and notice posting
requirement, I shall recommend Respondent be required to
formally disestablish and cease giving assistance or any other
support to the handbook committee. Inasmuch as Respondent
has abolished the no-access rule I have found violative of the
Act, and has so notified its employees, a formal order that
it so do is unnecessary.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended17
31STOODY CO.
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.
18 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ORDER
The Respondent, Stoody Company, Division of
Thermadyne, Inc., Bowling Green, Kentucky, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Dominating, assisting, or otherwise supporting the
handbook committee created in January 1993 at its Bowling
Green, Kentucky facility.
(b) Maintaining or enforcing any rule prohibiting off-duty
employees from distributing union literature in nonworking
areas where there is no justifiable business reason therefor.
(c) Granting benefits to its employees in order to discour-
age union membership or activity.
(d) Promising to remedy employee concerns during the
course of a union organizing campaign.
(e) Threatening to discharge or otherwise retaliate against
employees because they do not obey unlawful company
rules.
(f) Threatening to interfere with protected concerted activ-
ity.
(g) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Immediately disestablish and cease giving assistance or
any other support to the handbook committee.
(b) Post at its Bowling Green, Kentucky facility, copies of
the attached notice marked ‘‘Appendix.’’18 Copies of the no-
tice, on forms provided by the Regional Director for Region
26, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by Respondent immediately on
receipt and maintained for 60 consecutive days in conspicu-
ous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps have been taken to
comply.