Summitville Tiles

National Labor Relations Board - Board Decisions

Sep 28, 1990

300 N.L.R.B. 64 (N.L.R.B. 1990)

64
300 NLRB No. 9
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondents have excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
We also find without merit the Respondents’ allegations of bias and preju-
dice on the part of the judge. On our full consideration of the record and the
decision, we perceive no evidence that the judge prejudged the case, made
prejudicial rulings, or demonstrated a bias against the Respondents in his anal-
ysis or discussion of the evidence.
In sec. D. of his decision, the judge found that Summitville Tiles discharged
Roger and Jennie Minor on December 12, 1987. In fact, they were discharged
on December 12, 1986.
The Union argues that Summitville Tiles disparately enforced its discipli-
nary rules against Roger Minor. Minor suffered a motorcycle accident, but re-
ported his injury as a football accident to collect insurance. Minor was termi-
nated for the false report. The Union claims that Minor’s supervisor, David
Bartholomew, also falsely reported a motorcycle injury as another type of acci-
dent to collect insurance, but was not disciplined. Even assuming that Bar-
tholomew falsely reported his motorcycle accident, the record contains no evi-
dence that the Company knew of Bartholomew’s falsification at the time of
Minor’s discharge. Without any evidence that the Company was aware of Bar-
tholomew’s purported falsification at the time the Company discharged Minor,
we cannot find any disparate treatment in discharging Minor for falsely report-
ing an injury to obtain coverage under the Company’s insurance plan.
2 Pursuant to the reasoning of his dissent in Redd-I Inc., 290 NLRB 1115
(1988), Chairman Stephens would hold that Sec. 10(b) bars the finding that
Respondent Summitville Laboratories Division of Summitville Tiles, Inc., vio-
lated Sec. 8(a)(5) through unilateral changes promulgated in its March 1987
handbook. Although he agrees with the judge that a general refusal-to-bargain
charge is sufficiently broad to encompass an unlawful unilateral change, he
does not find it acceptable to litigate a change on which, as in this case, a
particular unfair labor practice charge has been filed and then withdrawn. The
chairman also notes that the general unfair labor practice charge on which the
8(a)(5) portions of the complaint were predicated specifies that the conduct it
encompasses commenced ‘‘on or about May 5, 1987.’’ This is an additional
reason that the charge could not reasonably have been construed as covering
the issuance of the handbook.
3 We conform the judge’s Conclusions of Law to his finding that
Summitville Tiles’ lawsuit independently violated Sec. 8(a)(1).
4 All subsequent dates are in 1987, unless specified otherwise.
Summitville Tiles, Inc. and Summitville Labora-
tories Division of Summitville Tiles, Inc. and
United Steelworkers of America, AFL–CIO.
Cases 8–CA–19867, 8–CA–20211, and 8–CA–
20159
September 28, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On February 14, 1989, Administrative Law Judge
Karl H. Buschmann issued the attached decision. The
Charging Party filed exceptions and a supporting brief,
the Respondents filed exceptions and a supporting
brief, and the General Counsel, the Charging Party,
and the Respondent Summitville Tiles, Inc.
(Summitville Tiles or the Company) 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,1 and con-
clusions2 as modified and to adopt the recommended
Order as modified.
1. The judge found that Summitville Tiles violated
Section 8(a)(1) and (4) of the Act by filing a state
court lawsuit against employees Michael Cogley and
Douglas Jackson in retaliation for the filing of Board
charges and a civil action against Summitville Tiles.
We agree for the following reasons.3
On October 31, 1986, the Union, on behalf of
Cogley and Jackson, filed 8(a)(3) charges against
Summitville Tiles, but subsequently withdrew them.
On November 6, 1986, Cogley and Jackson filed a
state court civil suit against Summitville Tiles for as-
sault and wrongful discharge. On January 5, 1987,4 the
Union again filed 8(a)(3) charges on behalf of Cogley
and Jackson, but subsequently withdrew them. On Feb-
ruary 20, the Union for a third time filed the 8(a)(3)
charges, and the General Counsel issued a complaint
on April 30. On May 21, Cogley and Jackson filed a
motion to dismiss their civil suit.
On May 29, Summitville Tiles initiated a state court
civil suit against Cogley and Jackson and codefendants
John Roe and Richard Doe. The complaint states that
the ‘‘identities and activities’’ of Doe and Roe ‘‘are
currently not fully known,’’ but they ‘‘are believed to
be co-conspirators as employees, officers, agents or
members of the United Steelworkers of America.’’
The complaint alleges a count of malicious prosecu-
tion by Cogley and Jackson based on the filing of
three unfair labor practice charges, the withdrawal of
the first two charges, and the filing and dismissal of
the employees’ civil suit. Doe and Roe are named in
this count as individuals who may have participated
with Cogley and Jackson in the filing of the initial un-
fair labor practice charge.
The complaint also alleges a count of civil con-
spiracy against all the defendants. More specifically,
the complaint states, inter alia, that ‘‘COGLEY and
JACKSON in conjunction with ROE and DOE devel-
oped a diverse ongoing program of conspiratorial har-
assment as directed against the Plaintiff . . . and evi-
denced in multiple National Labor Relations Board fil-
ings, subsequent withdrawals of filings and repetitive
refiling of the identical charge . . . while at the same
time seeking identical relief for alleged ‘wrongful dis-
charge’ in State Court litigation.’’ In addition, the
complaint states that the defendants’ conduct ‘‘was and
is contrary to the long established doctrine of federal
labor law and federal agency pre-emption, which doc-
trine was known or should have been known by DOE
and ROE, as established members, officers, employees
and/or representatives of a national labor organiza-
tion.’’
In its lawsuit, the Company sought a total of
$20,000 in compensatory damages ($10,000 for mali-
65SUMMITVILLE TILES
5 We find that the Company has not satisfied its burden of showing that the
filing of the unfair labor practice charges and the employees’ state court law-
suit were undertaken in bad faith and therefore did not constitute activities
protected by the Act.
6 Accordingly, we need not address whether the Company’s lawsuit lacked
a reasonable basis in fact and law. Chairman Stephens would expressly find
that the Company’s lawsuit lacked a reasonable basis in fact and law.
Given our decision concerning the Company’s motivation in filing the law-
suit, we find it unnecessary to pass on whether the Company’s suit was pre-
empted by Federal law. Even if the suit were preempted, the nature of our
inquiry would remain the same. In other words, we would still examine wheth-
er the Company acted with a retaliatory motive to determine if the filing of
the suit violated the Act. See American Pacific Concrete Pipe Co., 292 NLRB
1264 (1989).
cious prosecution and $10,000 for civil conspiracy). In
addition, the Company sought $100,000 in exemplary-
punitive damages and reasonable attorneys’ fees.
In August, the state court granted summary judg-
ment in favor of Cogley and Jackson. The court ruled
that Summitville Tiles had failed to show a seizure of
person or property required by Ohio law to maintain
a malicious prosecution action and determined that the
Board preempted the court’s jurisdiction in adjudi-
cating the issues raised by the conspiracy claim. On
November 16, 1988, the state appellate court affirmed
the lower court’s granting of summary judgment.
In finding that Summitville Tiles violated Section
8(a)(1) and (4) of the Act, the judge noted that Section
7 of the Act protects employees who seek to improve
working conditions through the auspices of administra-
tive and judicial forums, Eastex, Inc. v. NLRB, 437
U.S. 556, 566 (1978), and the filing of labor-related
lawsuits and Board charges constitute two such activi-
ties protected from employer retaliation by Section
8(a)(1) and (4), respectively. Trinity Trucking & Mate-
rials Corp., 221 NLRB 364 (1975); Kansas Refined
Helium Co., 242 NLRB 744 (1979), enfd. 683 F.2d
1296 (10th Cir. 1982). Summitville Tiles testified that
it continued its suit, even though the employees with-
drew their suit, to recover the Company’s expenses.
The judge found that Summitville Tiles’ efforts went
beyond recovering expenses because the Company
sought punitive damages from the employees and con-
ceded in its testimony that a purpose of its litigation
was to retaliate against the Union for filing charges on
behalf of Cogley and Jackson.
The judge stated that the Board may enjoin an em-
ployer’s state court action for malicious prosecution if
the lawsuit is baseless, as well as filed for retaliatory
purposes. Johnson’s Restaurants v. NLRB, 461 U.S.
731, 741 (1983). The judge found that the motive for
filing the lawsuit was to retaliate against the employees
and the Union for filing unfair labor practice charges,
that the Company’s civil action was preempted by Fed-
eral law, that the Company’s suit lacked a reasonable
basis in fact and law, and that Cogley’s and Jackson’s
resort to the legal process to regain their jobs could not
be defined as malicious prosecution. The judge rec-
ommended that Summitville Tiles be ordered to with-
draw its lawsuit.
The judge correctly stated that employees filing
labor-related civil suits and unfair labor practice
charges are protected from employer reprisals by Sec-
tion 8(a)(1) and (4), respectively.5 Similarly, the Board
has held that where, as here, the charge is filed by a
union, it is a violation of Section 8(a)(4) and (1) for
an employer to retaliate against an employee because
that employee is named in the charge. Murcole, Inc.,
204 NLRB 228, 237 (1973).
In Johnson’s Restaurant, the Supreme Court held
that establishing a retaliatory motive and a lack of rea-
sonable basis in fact or law are both essential pre-
requisites to enjoin prosecution of a state court lawsuit.
But the Court also held that if the plaintiff’s lawsuit
has been finally adjudicated and the plaintiff has not
prevailed, its lawsuit will be deemed meritless, and the
Board’s inquiry, for purposes of resolving the unfair
labor practice issue, may proceed to resolving whether
the respondent/plaintiff acted with a retaliatory motive
in filing the lawsuit. See Phoenix Newspapers, 294
NLRB 47 (1989).
Here, the Company’s lawsuit is no longer pending,
and the Company did not prevail. Thus, the merits of
the suit have already been adjudicated against the
Company, and we need only decide whether the Com-
pany filed the lawsuit against Cogley and Jackson for
retaliatory reasons.6
We find that Summitville Tiles conceded a retalia-
tory motive in its testimony. Summitville Tiles’ vice
president of administration, David Johnson, testified as
follows:
Q. Did you have any information indicating to
you that you’d ever be able to successfully satisfy
any judgment you received from Doug Jackson or
Mike Cogley?
A. My—my target was the United States—the
U. S. Steelworkers’ Union,—
Q. And was that—
A. —who was named in that suit.
Q. Okay. So, your—is it fair to say your real
target was the union because you believed they’d
harassed you in filing these unfair labor practice
charges and in seeking to represent your workers?
A. To the extent that they had a role in this.
Yes. In this case.
This testimony explicitly admits a retaliatory motive
against the Union because of the Union’s filing of
charges. As explained below, we find that Summitville
Tiles also intended to retaliate against Cogley and
Jackson.
In its lawsuit, the Company made little effort to dis-
tinguish the conduct of Cogley and Jackson from that
of the Union. To the contrary, the pleadings establish
66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Member Cracraft finds it unnecessary to rely on the fact that Summitville
Tiles’ lawsuit sought punitive damages as evidence of the lawsuit’s retaliatory
motive.
8 We shall modify the judge’s recommended Order to reflect that the lawsuit
is no longer pending.
9 The judge also determined that this complaint allegation was not time
barred by Sec. 10(b). The filed charges did not specifically include this allega-
tion. The judge, citing Galloway Co. v. NLRB, 856 F.2d 275 (D.C. Cir. 1988),
and Redd-I, Inc., 290 NLRB 1115 (1988), correctly found that the complaint
allegation was closely related to the charges. The judge also noted that the
charge forms used by the Union contain the preprinted language ‘‘the em-
ployer has interfered with, restrained, and coerced employees in the exercise
of the rights guaranteed in Sec. 7 of the Act.’’ We note that the Board, in
Nickles Bakery of Indiana, 296 NLRB 927 (1989), overruled precedent per-
taining to the preprinted charge form language.
10 The Board has cited Nutone for the general proposition that ‘‘no-solicita-
tion, no-distribution rules are not binding upon employers.’’ St. Francis Hos-
pital, 263 NLRB 834, 835 (1982), enfd. 729 F.2d 844 (D.C. Cir. 1984).
11 Concerning the fourth incident mentioned above, the judge overlooked
Minor’s testimony that he could not be sure a supervisor observed this inci-
dent. Without a showing that the Company was aware of the distribution of
antiunion literature, this incident cannot serve as a basis for finding disparate
enforcement of the no-distribution rule.
that the Company viewed the employees and the
Union as acting in concert. In the malicious prosecu-
tion count, the Company claimed that the employees
were primarily responsible for the filing of unfair labor
practice charges. In fact, these charges were filed by
the Union, not the employees. In the civil conspiracy
count, the Company alleged that Cogley and Jackson,
acting in conjunction with Union Representatives Doe
and Roe, developed a plan to harass the Company by
instituting and withdrawing litigation before the Na-
tional Labor Relations Board and the state court. This
count clearly linked the Union and the employees to-
gether and claimed they were jointly responsible for all
the litigation instigated against the Company. Based on
the Company’s admission that it filed its lawsuit with
a retaliatory motive against the Union and based fur-
ther on the pleadings themselves, which alleged a close
relationship between the Union and the employees, it
is reasonable to infer that the Company also intended
to retaliate against Cogley and Jackson because of
what the Company believed their role to be in the Na-
tional Labor Relations Board and state court litigation.
Further, in agreement with the judge, we rely on the
fact that Summitville Tiles’ lawsuit demanded punitive
damages as evidence of the lawsuit’s retaliatory mo-
tive.7
Finally, we rely on the contemporaneous unfair
labor practices, including the unlawful discharges of
Cogley and Jackson, which evidence Summitville
Tiles’ antiunion animus directed at Cogley and Jack-
son, to support our finding that the lawsuit was in-
tended to retaliate against Cogley and Jackson because
of their protected concerted activities.
Accordingly, we adopt the judge’s finding that
Summitville Tiles, by initiating and maintaining a law-
suit against Cogley and Jackson, violated Section
8(a)(1) and (4).8
2. The judge found that Summitville Tiles dispar-
ately enforced its no-solicitation and no-distribution
rules in violation of Section 8(a)(1) of the Act.9 For
the following reasons, we reverse.
The judge relied on five incidents to evidence the
Company’s alleged disparate enforcement. First, Mi-
chael Cogley observed an employee wearing a ‘‘vote
no’’ hat solicit a mill operator at the Company’s
Summitville facility during worktime; Supervisor Bob
Miller noticed the solicitation, but took no action. Sec-
ond, Douglas Jackson overheard Supervisor Robert
Christen tell an employee that the Union was no good.
Third, former employee Janet Lautzenheiser recalled
that employee Frank Savonna spoke against the Union
to employees in the grinder room at the Company’s
Pekin facility during worktime; Savonna’s conversa-
tions with the employees occurred in the presence of
a foreman. Fourth, Roger Minor observed a colleague
during her worktime passing out antiunion literature 1
week before the election. Finally, the judge found that
the Company displayed antiunion material in its plants,
but did not tolerate the posting of prounion literature
on company property.
Section 8(c) of the Act permits an employer and its
agents to express their views on unionization as long
as the opinions do not contain proscribed threats or
promises. NLRB v. Gissel Packing Co., 395 U.S. 575,
618–619 (1969). Further, absent evidence that a union
does not have sufficient means to communicate with
employees, an employer does not violate the Act by
enforcing a valid no-solicitation rule while engaging in
antiunion solicitations of its own. NLRB v. Steel-
workers (Nutone, Inc.), 357 U.S. 357, 364 (1958).10
The Christen incident involves a supervisor engaging
in antiunion solicitation; it is not an example of an em-
ployer representative permitting an antiunion employee
to solicit during worktime. There is no evidence that
the Union was unable to communicate with employees.
Further, the complaint does not allege, nor does the
record show, that Christen’s conduct was coercive. In
sum, the fact that a supervisor lawfully engaged in
campaign activity simply does not support the judge’s
finding of disparate treatment of prounion versus
antiunion employees.
Similarly, the judge erred in relying on Summitville
Tiles’ posting of material on its property. The record
indicates that Summitville Tiles prohibited both
prounion and antiunion employees from posting mate-
rials at its facilities. The Company merely exercised its
free-speech right in posting its own materials con-
cerning unionization, and no party challenges the con-
tents of the materials as unlawfully coercive. If an em-
ployer may prohibit employee solicitation during
worktime while engaging in soliciting of its own with-
out violating the Act, Nutone, supra, then an employer
that is uniformly enforcing a no-posting-by-employees
rule may post its own materials on company prop-
erty.11
67SUMMITVILLE TILES
Only two incidents remain. The solicitations of the
mill operator and employees in the grinder room took
place at two separate facilities that employ several
hundred employees, and occurred over a 3-month pe-
riod during the Union’s organizational campaign.
Under all the circumstances, we find that these two in-
cidents are too isolated to satisfy the General Coun-
sel’s burden of establishing by a preponderance of the
evidence that the no-solicitation and no-distribution
rules were disparately enforced. See Seng Co., 210
NLRB 936 (1974); Emerson Electric Co., 187 NLRB
294 fn. 2 (1970).
Accordingly, we shall dismiss the complaint allega-
tions that Summitville Tiles unlawfully enforced its
no-solicitation and no-distribution rules.
AMENDED CONCLUSIONS OF LAW
1. Delete the judge’s Conclusion of Law 1, and re-
number the subsequent Conclusions of Law.
2. Substitute the following for the judge’s Conclu-
sion of Law 3 and renumber as Conclusion of Law 2.
‘‘2. By initiating and maintaining a civil action for
malicious prosecution and civil conspiracy against Mi-
chael Cogley, Douglas Jackson, and others in retalia-
tion for their protected concerted activities, Respondent
Summitville Tiles violated Section 8(a)(1) and (4) of
the Act.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondents,
Summitville Tiles, Inc., and Summitville Laboratories
Division of Summitville Tiles, Inc., Minerva and
Summitville, Ohio, its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.
1. Delete paragraph A, 1(b) and reletter subsequent
paragraphs accordingly.
2. Substitute as paragraph A, 1(b) the following for
the judge’s paragraph A, 1(c).
‘‘(b) Initiating or maintaining a baseless lawsuit
against employees in retaliation for their protected con-
certed activities.’’
3. Substitute the following for paragraph A, 2(c).
‘‘(c) Reimburse Michael Cogley, Douglas Jackson,
and the Union for all legal expenses incurred in the de-
fense of the Respondent’s lawsuit (87–Civ–625), in-
cluding the appeal, in the manner set forth in the rem-
edy section of the judge’s decision.’’
4. Substitute the attached Appendix A for that of the
administrative law judge.
CHAIRMAN STEPHENS, dissenting in part.
Pursuant to the reasoning of my dissent in Redd-I,
Inc., 290 NLRB 1115 (1988), I would hold that Sec-
tion 10(b) bars the finding that Respondent
Summitville Laboratories Division of Summitville
Tiles, Inc., violated Section 8(a)(5) through unilateral
changes promulgated in its March 1987 handbook. Al-
though I agree with the judge that a general refusal-
to-bargain charge is sufficiently broad to encompass an
unlawful unilateral change, I do not find it acceptable
to litigate a change on which, as in this case, a par-
ticular unfair labor practice charge has been filed and
then withdrawn. I also note that the general unfair
labor practice charge on which the 8(a)(5) portions of
the complaint were predicated specifies that the con-
duct it encompasses commenced ‘‘on or about May 5,
1987.’’ This is an additional reason that the charge
could not reasonably have been construed as covering
the issuance of the handbook.
APPENDIX A
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.
WE WILL NOT discharge any employees because of
their union activities or discriminate in any other man-
ner with respect to their hire or tenure of employment
or any term or condition of employment, in violation
of Section 8(a)(3) and (1) of the Act.
WE WILL NOT initiate or maintain a baseless lawsuit
against employees in retaliation for their protected con-
certed activities.
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.
WE WILL offer Michael Cogley and Douglas Jackson
immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equiv-
alent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed and
WE WILL make them whole for any loss of earnings
and other benefits resulting from their discharges, less
any net interim earnings, plus interest.
WE WILL remove from our files any reference to the
discharges of Michael Cogley and Douglas Jackson
and notify them in writing that this has been done and
that evidence of the discharges will not be used against
them in future personnel actions.
WE WILL reimburse Michael Cogley, Douglas Jack-
son, and the Union for all legal expenses incurred in
68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The record is corrected in accordance with the errata listed in app. E–l to
the Respondents’ brief.
2 The Respondents’ answer admitted that the Companies are Ohio corpora-
tions. However, the Respondents’ complaint in the state court alleges that they
are Delaware corporations (C.P. Exh. 2).
the defense of our lawsuit (87–CIV–625), including the
appeal, plus interest.
SUMMITVILLE TILES, INC.
Rufus L. Warr, Esq., for the General Counsel.
Theodore M. Mann Sr. and Theodore M. Mann Jr., Esqs., of
Cleveland, Ohio, for the Respondents.
James S. Gwin, Esq. (Gutierrez, Mackey & Gwin), of Can-
ton, Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge. These
cases were tried at Canton, Ohio, on November 3–5 and 17–
19 and December 1–2, 1988. The charges were filed by the
Union on February 18, 1987, in Case 8–CA–19867, on June
9, 1987, in Case 8–CA–20159, and on July 1, 1987, in Case
8–CA–20211. The original complaint was issued on April
30, 1987, an amended consolidated complaint was issued on
July 31, 1987, and a second amended consolidated complaint
was issued on August 28, 1987, which was amended on Oc-
tober 23, 1987. The complaints charge the Respondents,
Summitville Tiles, Inc. (Summitville Tiles) and Summitville
Laboratories Division of Summitville Tiles, Inc. (Summitville
Laboratories), with violations of Section 8(a)(1), (3), (4), and
(5) of the National Labor Relations Act (the Act). The pri-
mary issues in the complaints are: (l) whether Respondent
Summitville Tiles unlawfully and discriminatorily prohibited
its employees from campaigning for the Union and distrib-
uting union signs at its facility, (2) whether the same Re-
spondent engaged in surveillance of a union rally in Novem-
ber 1986, (3) whether Respondent Summitville Tiles dis-
charged its employees Michael Cogley and Douglas Jackson
because of their union activities, (4) whether Respondent
Summitville Tiles discharged its employees Roger and Jenny
Minor because of their union activities, (5) whether Respond-
ent Summitville Tiles filed a lawsuit against Michael Cogley
and Douglas Jackson because of their protected concerted ac-
tivity, including the filing of unfair labor practice charges
herein, (6) whether Respondent Summitville Laboratories
failed and refused to recognize and bargain with the Union,
and (7) whether Respondent Summitville Laboratories unilat-
erally implemented a new employees’ handbook for its em-
ployees at Summitville Laboratories Division.
On the entire record,1 including my observation of the de-
meanor of the witnesses and after consideration of the briefs
filed by the General Counsel, the Respondents, and the
Union, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondents are Summitville Tiles, Inc. and
Summitville Laboratories Division of Summitville Tiles, Inc.
Both Companies are Ohio corporations.2
Summitville Tiles has an office and place of business in
Summitville, Ohio, where it is engaged in the manufacture
and sale of tile and brick. Annually, it purchases and receives
products and goods valued over $50,000 from points outside
the State.
Summitville Laboratories has an office and place of busi-
ness in Minerva, Ohio, where it is engaged in the manufac-
ture and sale of adhesives, sealants, and tile care products.
Annually, it sells and ships goods and materials valued in ex-
cess of $50,000 directly to points outside the State.
The Companies admit, and I find, that they are employers
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
The Union, United Steelworkers of America, AFL–CIO,
CLC, is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
In August 1986, the Union commenced an organizational
drive at Summitville Tiles, Inc., initially at Summitville Lab-
oratories at Minerva, Ohio, which employs approximately 12
hourly workers. Subsequently, the Union campaigned at the
main plant at Summitville, Ohio, which maintains a work
force of about 450 employees. The campaign lasted several
months resulting in an election on November 14, 1986, for
the employees at Summitville Tiles and on November 21,
1986, for the employees at Summitville Laboratories. The
Union was defeated at Summitville Tiles, but won the elec-
tion at Summitville Laboratories and was duly certified by
the National Labor Relations Board on April 1, 1987, as the
collective-bargaining representative for its unit employees.
In summary, the contentions are as follows: During the
union campaign Respondent Summitville Tiles’ employees
were permitted to campaign against the Union by soliciting
and distributing antiunion material in the plant, but the Com-
pany prohibited such conduct by its employees on behalf of
the Union. On November 11, 1986, prounion employees held
a rally near the plant. Summitville Tiles’ officials observed
the event. It is alleged that Summitville Tiles’ conduct
amounted to unlawful surveillance. On October 28, 1986,
Summitville Tiles discharged its employees Douglas Jackson
and Michael Cogley ostensibly for ‘‘stealing time,’’ i.e.,
being ‘‘away from their respective assigned job-work areas
with work to do and with Jackson admitted throwing tile’’
(R. Br. 27). On December 2, 1986, Summitville Tiles dis-
69SUMMITVILLE TILES
charged its employees Roger Minor and Jenny Minor osten-
sibly for ‘‘medical insurance fraud.’’ The General Counsel
and the Charging Party argue that the employees were dis-
charged because of their union activities. Both parties further
contend that Respondent Summitville Laboratories refused to
bargain with the Union, and that on March 1, 1987,
Summitville Laboratories unilaterally issued a new employee
handbook without bargaining with the Union. Finally, the
record shows that Respondent Summitville Tiles initiated a
civil action in the local court against Cogley and Jackson for
malicious prosecution and civil conspiracy. The General
Counsel and the Charging Party argue that this lawsuit was
baseless and in retaliation for the unfair labor practice
charges filed herein and other protected concerted activity.
B. Independent Violations of Section 8(a)(1)
1. Solicitation/distribution
The complaint contains three allegations of 8(a)(1) viola-
tions. Two of them deal with Respondent Summitville Tiles’
rules entitled ‘‘Bulletin Board— Solicitations,’’ which pro-
vide (R. Exh. 18, p. 22):
Notices on bulletin boards are not to be removed or
altered. No solicitation or distribution of written, print-
ed or other published material during working time, is
to be made. Working time does not include break peri-
ods, lunch time or any other period during the workday
when not engaged in performing work-related duty.
Failure to observe this policy will result in immediate
discharge.
The Employer had also posted a notice prohibiting the
posting of stickers in the plant (Tr. 424).
The General Counsel argues that ‘‘[t]he evidence shows
that Respondent disparately enforced a valid rule prohibiting
solicitation and allowed anti-Union employees to campaign
against the Union on work time while pro-Union employees
were prohibited from campaigning in favor of the Union on
worktime’’ (G.C. Br. 27). The General Counsel further ar-
gues that the Company prohibited the distribution and post-
ing of union literature while instructing its employees to
fashion antiunion signs and to hang them in the plant. The
Respondent contends that the General Counsel has failed to
show management knowledge or authorization of any iso-
lated incidents which may have occurred, that the Company
has a right to express its views on its own premises, and that,
in any case, the allegations were not supported by the
charges filed by the Union.
The record shows that the allegations of the complaint are
based on three separate charges filed by the Union on
preprinted forms (G.C. Exhs. l(a), (f), and (k). The charges
deal specifically with the discharges of the four employees,
the failure to bargain, and the initiation of the lawsuit. The
forms also contain the preprinted language that the ‘‘em-
ployer has interfered with, restrained, and coerced employees
in the exercise of the rights guaranteed in Section 7 of the
Act,’’ but the charges do not specifically describe the allega-
tions of independent 8(a)(1) conduct. However, all the alle-
gations of the complaint are closely related to the specific
charges. G. W. Galloway Co. v. NLRB, 856 F.2d 275, 282
(D.C. Cir. 1988); Redd-I, Inc., 290 NLRB 1115 (1988). The
charges filed by the Union deal with the discriminatory dis-
charges in violation of Section 8(a)(3) and (1) and the initi-
ation of a lawsuit in violation of Section 8(a)(4) and (1), as
well as the failure to bargain in violation of Section 8(a)(5)
and (1) of the Act. Even if the Board were prohibited from
relying on the printed language at the bottom of the form,
which is designed to encompass violations of employees’
Section 7 rights, the record here indicates that the allegations
of 8(a)(1) misconduct, namely, the discriminatory enforce-
ment of the no-solicitation rule and unlawful surveillance,
arose out of the same union campaign and a similar factual
situation as the alleged discriminatory discharges and the
other alleged misconduct. The Respondent’s action occurred
during the union organizational drive, which set into motion
the sequence of events beginning with the posting of union
and antiunion material and the staging of a union rally, ex-
pression of employee support, and management’s reaction,
including the discharges. The violations alleged herein are
essentially one ‘‘ball of wax’’ relating to a vigorous cam-
paign which the Respondent has characterized as ‘‘the ‘dirti-
est’ campaign in the experience of current management.’’(R.
Br. 24.)
As to the merits of the allegations, the record shows that
employees were aware that solicitation and distribution of
union literature during worktime was prohibited and that the
posting of posters on company property was not allowed.
Yet, testimony shows that employees talked to other employ-
ees about the Union during working hours. Employee Mi-
chael Cogley testified that he observed employee Terry Bea-
dle wearing a ‘‘vote no hat,’’ talking to a mill operator dur-
ing working time in September, ‘‘saying that Summitville
didn’t really need a union; that they were better off the way
they were.’’ According to his testimony, Bob Miller, a super-
visor, noticed the two employees conversing but took no ac-
tion (Tr. 60). Another employee, Douglas Jackson, testified
that he overheard Supervisor Robert Christen talking to an
employee about the Union, ‘‘saying it was no good and that
they wouldn’t want any part of it.’’ Jackson did not recall
the employee’s name nor precisely when the conversation oc-
curred (Tr. 423). Janet Lautzenheiser, a former employee, re-
called during her testimony that employee Frank Savonna
talked to groups of employees in the grinder room during
their worktime (Tr. 524–525). She overheard him saying
‘‘that he couldn’t understand why the people were doing this,
how it would do no good; the unions were—the Union
would be no good; that Company President Johnson didn’t
have to bargain with any of the people; he didn’t have to do
this, he didn’t—just things like that.’’ She recalled that this
conversation occurred right after the Union started, and that
her foreman, Charlie Greenwalt, was present at these meet-
ings of employees.
Employee Roger Minor testified that he observed em-
ployee Linda Beadnow as she passed out antiunion literature
to the employees approximately 1 week before the election.
According to Minor, Beadnow distributed the material at the
timeclock during her worktime (Tr. 293–294). Minor also
conceded that he may have talked about the Union with his
crew during worktime (Tr. 359–360).
The Respondent prepared and displayed antiunion signs
within its plant on company property (Tr. 1013–1014; R.
70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The General Counsel has not objected to the display of these posters (Tr.
112).
Exh. 72).3 Yet, the Respondent did not tolerate the distribu-
tion or the posting by its employees of union material on
company property or on companytime (Tr. 294, 531, 534–
535, 537–538). For example, Michael Cogley was ordered to
remove a union sign from his forklift truck (Tr. 109). In
short, the evidence shows that there were more than a few
isolated violations of the no-solicitation and no-distribution
policy which the Company tolerated when such infractions
occurred in its favor. Although the Respondent’s policy is
presumptively valid, it was discriminatorily and unfairly ap-
plied in violation of Section 8(a)(1) of the Act. Wm. H.
Block Co., 150 NLRB 341 (1964).
2. Surveillance
The complaint alleges that ‘‘Respondent [Summitville]
Tiles engaged in surveillance of employees attending a rally
held by the Union on public property.’’ The Respondent ar-
gues that company officials lawfully observed the rally from
its corporate property as the rally was expected to draw a
large crowd and was intended to be a public event.
The record shows that the Union held a rally on November
11, 1986, in front of the plant along the highway adjacent
to company property (Tr. 291, 1363). Approximately 25 to
30 employees and representatives of the Union attended.
Present also were the mayor, the sheriff, and local police of-
ficials. The Respondent’s management expected a larger
crowd because the Union had attempted to obtain the support
of several local union officials in their efforts to stage the
rally. The demonstrators displayed a large sign (a 4-by-7 foot
sheet of plywood) stating ‘‘Vote yes for the Union’’ (Tr.
291).
Company President Peter Johnson and Vice President
David Johnson, as well as several foremen and other com-
pany officials, were positioned outside their offices and
openly observed the rally. Peter Johnson had a camera in his
possession and took photographs of the events. There was
testimony that the Company expected a larger parade than a
rally of only 30 people. Arthur Kosko, mayor of the small
town of Summitville, testified that he had issued a permit for
the parade. He had ‘‘heard any number from 200 to 500 was
going to attend this parade’’ (Tr. 1344). Peter Johnson admit-
ted having a camera and taking pictures when he ‘‘saw this
group of people on his property down along the highway’’
(Tr. 1977; R. Exh. 120). Johnson testified that he heard ru-
mors that would be a Veterans Day parade with up to 500
people in attendance. After observing the rally from approxi-
mately 250 yards, Johnson took the photographs ‘‘purely to
show that people were on his property’’ (Tr. 1978). He testi-
fied as follows (Tr. 1978):
My purpose in taking them was the fact that there was
people on my property, inside the fence, and that was
when I went in the office, got the camera, and came
back out and took the pictures, purely to show that peo-
ple were on my property.
Although the rally was a public event, taking pictures of
the employees’ union activity could be regarded as creating
the impression of management surveillance of protected ac-
tivity. However, where, as here, the purpose of the picture
taking was to establish that the participants had been tres-
passing or demonstrating on company property, the Respond-
ent’s conduct does not violate Section 8(a)(1) of the Act.
Berton Kirshner, Inc., 209 NLRB 1081 (1974), enfd. 523
F.2d 1046 (9th Cir. 1975).
C. The Discharge of Michael Cogley and
Douglas Jackson
The complaint alleges that Respondent Summitville Tiles
discharged employees Michael Cogley and Douglas Jackson
because of their union activities. In substance, the Respond-
ent’s position is that employee Cogley was fired for cause,
‘‘including verified sabotage of product, defacement of cor-
porate property, insubordination, stealing time in being away
from his assigned-designated work station, and
aiding/abetting the recognized prohibited dangerous conduct
of throwing projectiles in a plant environment’’ (R. Br. 2).
Jackson was fired for cause, according to the Respondent,
‘‘including insubordination, stealing of time in being away
from his assigned designated work station in disruption of
production and the inherently dangerous conduct by his own
admission of throwing projectiles in a plant environment’’(R.
Br. 3).
The record shows that Michael Cogley had been employed
since August 22, 1977, initially as a laborer, subsequently as
a selector and a carrier, and finally as a forklift operator at
the time of his discharge on October 28, 1986. The area of
his assignment was the color tile department at Summitville
Tiles. His work consisted of ‘‘removing pallets from the se-
lecting area and hauling them to the storage area and . . .
moving different pallets around . . . various parts of the
shop’’ (Tr. 1436). During his more than 9-year tenure,
Cogley was regarded as a good worker who had never been
reprimanded and had an excellent attendance record (Tr.
712–713, 2134).
Cogley was recognized by management as a union sup-
porter (Tr. 2381). He had signed a union authorization card,
had attended at least three union meetings, and was a com-
mitteeman. For about a month prior to his discharge he regu-
larly wore a union hat (Tr. 45–46). Approximately 1 week
prior to his discharge Cogley fashioned a prounion placard
and posted it on his forklift for display in the plant. After
about an hour, Tom Moore, his supervisor, ordered him to
remove the poster (Tr. 109).
Douglas Jackson was also assigned to the color tile depart-
ment (selection No. 1 area). He was hired on September 2,
1983, as a carrier at Summitville Tiles. His work required
him to unload the tile from the kiln cars and to load the tile
on selecting tables. After the selectors separated the good tile
from the bad, Jackson would then stack the selected tile on
pallets. During his 3-year tenure, Jackson was regarded by
management as a good and steady worker and as a well-liked
employee (Tr. 766–770).
Jackson was also an early union supporter. He had signed
a union card, had attended three or four union organizational
meetings, and wore a union hat in the plant. The record sug-
gests that management regarded Jackson as an active union
71SUMMITVILLE TILES
4 Johnson testified that he was not certain of Jackson’s union support; how-
ever, he stated in an affidavit that Cogley and Jackson were active union sup-
porters, ‘‘demonstrating their support in verbal acts and actions as well as
wearing of pro-union clothing’’ (C.P. Exh. 39, p. 2).
supporter.4 On the day of his discharge, October 28, 1986,
Jackson wore a union hat.
The events which precipitated the discharge of both em-
ployees were preceded by two incidents. On October 27,
1986, management, consisting of Peter Johnson, the Com-
pany’s president, David Johnson, vice president, and John
Hothem, vice president of manufacturing, distributed to the
employees in the plant T-shirts which were white and dis-
played in red lettering on the front ‘‘VOTE X NO UNION’’
(C.P. Exh. 5). On the back, the T-shirts showed the statement
‘‘NO TO STEALWORKERS’’ with the intentional mis-
spelling of ‘‘Steelworkers’’ (Tr. 48). The second related inci-
dent happened 1 day later, on October 28, when Cogley
came to work with a T-shirt which contained the logo
‘‘USWA all the way’’ on the front and the statement ‘‘Yes
to Steel Workers. We steal no more than Johnson’s’’ on the
back. When, about 9 a.m., Cogley exposed the T-shirt, which
he had worn under a flannel work shirt, David Johnson was
notified by a foreman. Johnson instructed the foreman not to
take any action so that Peter Johnson Sr. could handle it per-
sonally. At approximately 1 p.m., Peter Johnson, accom-
panied by John Hothem, approached Cogley as he sat on his
forklift in his T-shirt. Peter Johnson ordered Cogley off the
vehicle and to follow him, to the color tile department.
There, in the presence of the other employees, and after get-
ting their attention, Johnson Sr. loudly ordered Cogley to re-
move his shirt, repeating: ‘‘I told you to take that damn shirt
off.’’ Cogley hesitantly complied because he did not wear
another shirt. He handed the shirt to Johnson. Johnson Sr.
took the shirt, threw it on the floor, stamped on it, and said,
‘‘This is what I think of the Steel Workers Union.’’ As
Cogley walked to the locker room to get another shirt, John-
son followed him, shook his finger at him, and said, ‘‘If I
ever see my name on anything again, I will personally punch
you out,’’ or ‘‘deck you.’’ The employees, including Cogley,
were then instructed to return to work. According to the Re-
spondent, no disciplinary action was taken against Cogley as
a result of the T-shirt incident.
The events leading to the discharge of Cogley and Jackson
occurred several hours later, after they had returned to work.
Cogley had completed most of his work prior to the 2 p.m.
break, such as ‘‘dumping hoppers, moving full pallets from
the designated area to the stock area’’ (Tr. 68). About 30
minutes before his 2 p.m. break he parked his forklift truck
and walked about 50 feet away from the color tile selecting
area to an overhead door. According to his testimony, all his
work had been completed, the forklift was hot, and he want-
ed to cool off. As he stood in the doorway, Douglas Jackson,
who had finished unloading the 13th and final car of
unselected tile for the day, joined him at the doorway. Ac-
cording to his testimony, Jackson had substantially finished
his work and had no immediate duties when he talked to
Cogley. During their conversation, Jackson had thrown two
small pieces of tile (l-inch pieces) out the door towards a
scrap truck, when Peter and David Johnson approached the
area. They saw the two employees standing at the doorway
talking and observed Jackson throwing the tile. David John-
son inquired what they were doing. Jackson responded that
he had picked up scrap tile from the floor and tossed it out.
Johnson disputed it, saying: ‘‘Well, no, that’s quality one tile
and you’re costing the company money.’’ Jackson explained
again, saying, ‘‘I picked it up off the floor’’ and ‘‘it was
scrap’’ (Tr. 416). David Johnson, insisting that he had
thrown quality tile, ordered the men to go back to work and
to look busy until breaktime. Cogley looked for a broom as
he was told and swept the floor. Jackson had returned to his
work carrying tile, when Johnson overheard Jackson telling
his coworkers that he wished he had worn a ‘‘Vote No’’ hat
instead of his union hat. Johnson then said, ‘‘Union or no
Union, do you think you are going to be able to stand around
and throw tile into the weeds?’’ (Tr. 417.) Shortly thereafter
Supervisor Tom Moore informed Jackson of a verbal warn-
ing for his misconduct.
After several minutes, Peter Johnson Sr., accompanied by
his son Peter Johnson Jr., returned to the area and, in the
presence of several other employees, made another comment
about the Union and asked why Jackson was throwing away
quality tile. When Jackson replied that it was scrap tile, he
told Jackson, ‘‘You’re fired for destruction of company prop-
erty’’ (Tr. 52, 419). He turned to Cogley and said: ‘‘As a
matter of fact, you’re fired, too, for standing there letting
him do it’’ (Tr. 52, 420). When Jackson inquired whether
they were fired merely for throwing scrap tile, Johnson be-
came angrier and ordered them out of the shop ‘‘imme-
diately’’ (Tr. 420).
The testimony by both employees consistently related the
sequence of events surrounding their discharges, as well as
the reasons given by Peter Johnson. Johnson Sr. testified as
follows about the episode (Tr. 1984):
I believe it was my son that came into the plant. I was
up in one part of the plant doing something, and they
went through. They were going somewhere else up
there and they came back and advised me that they—
what they had encountered down there, that Cogley and
Jackson were at the doorway, off their job station, and
they were throwing tile
I went down. Doug Jackson was back at his station. I
asked him, I said, ‘‘Doug, were you throwing tile?’’
And he said, ‘‘Yes.’’ I said, ‘‘I’m sorry, but you are
fired.’’ I went—then went to find Cogley, who was not
at his work station. He was back between a row of pal-
lets, and he wasn’t sweeping, he was pushing a broom
back and forth. I told him, ‘‘You’re off your work sta-
tion and were you witnessing this tile throwing?’’ He
said, ‘‘Yes,’’ and I said, ‘‘You’re fired.’’
I told both of them, ‘‘Get your buckets and come with
me,’’ and I escorted them up to the time clock and out
the door.
The General Counsel and the Charging Party strongly con-
tend that the true motive for the discharge of the two em-
ployees was their union involvement and the Respondent’s
union animus. The Respondent, in an effort to show that the
employees were fired for cause, has offered several reasons,
including postdischarge evidence. According to the Respond-
ent, Cogley was discharged ‘‘for unacceptable conduct viola-
tive of corporate policies’’ by arbitrarily shutting down his
high-lift, leaving his work area, engaging in conversation
with Jackson, and defacing tile (R. Br. 39–41). The Respond-
72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 There is no reason to doubt Jackson’s testimony, for he impressed me gen-
erally as an honest and truthful witness, and his testimony is consistent with
that of Cogley.
6 The following employees violated the rule against absence from the work
area (rule B,3): Donna Harsh on May 21, 1987; Tony House on March 7,
1986; Patricia Kelly on March 7, 1986; Denise Marra on February 19, 1986;
Jeff McCourt on April 21, 1986; Ruth Bergert on March 7, 1986; John
McElroy on March 7, 1986; Paul Scarry on March 20, 1986; and James Spen-
cer on April 18, 1986. None of them was fired for the offense (C.P. Exh. 14).
ent further accused Cogley of ‘‘insubordination,’’ ‘‘stealing
time,’’ ‘‘acting as a lookout for his tile throwing co-worker
Jackson,’’ being ‘‘abusive in response to management in-
quiry,’’ and ‘‘sabotage participation’’ (R. Br. 39–76). The
Respondent’s reasons for Jackson’s discharge are similar,
‘‘aberrant inherently dangerous prohibitive conduct of throw-
ing projectiles, stealing time, being fifty (50) feet from his
designated-assigned work area . . . with work waiting for
him’’ (R. Br. 46, 77–82).
An analysis of the relevant factors regarding the discharge
of the two employees shows that the Respondent’s reaction
to the tile-throwing incident was exaggerated, not in accord
with the Company’s policy, nor with the Employer’s past
practice, and that the Respondent offered varying and shift-
ing reasons drawn from essentially the same circumstances.
Moreover, the Respondent’s union animus, as well as the
timing of the discharges, shows that the Respondent’s con-
duct was motivated by the employees’ union activities. With-
out embellishment of the incident, Cogley and Jackson were
simply observed by management not working and idly con-
versing under an open doorway, while Jackson threw a few
tiles through the open doorway. As to whether the tile
thrown was scrap or quality tile, Jackson repeatedly testified
that it was scrap which he had picked up off the floor. David
Johnson unequivocally testified that he ‘‘couldn’t possibly
have seen where Jackson got the tile from’’; he ‘‘wasn’t
there when Jackson picked the tile’’ (Tr. 717). Johnson also
conceded that there were tiles on the floor in the area where
Jackson and Cogley stood and that such tile could have been
scrap tile (Tr. 717–719).5 There is no controversy that Jack-
son was fired first by Peter Johnson Sr. with the explanation
that ‘‘he was fired for destroying company property’’ or for
‘‘throwing tile’’ (Tr. 52, 419, 1984). Cogley was fired with
the explanation that he was away from his work station and
witnessing Jackson throwing tile (Tr. 52, 420, 1984). The
Respondent has subsequently found additional reasons, such
as ‘‘stealing time,’’ ‘‘insubordination,’’ and ‘‘dangerous con-
duct,’’ for essentially the same incident. The Respondent
summarily discharged the employees, who had unblemished
work records and who had been in the Company’s employ
for 3 and 10 years, respectively, following their relatively
minor misconduct during the height of the union campaign.
Moreover, in spite of the numerous ‘‘grounds’’ which the
Respondent has assigned to this one episode, the Respondent
also relies on evidence accumulated after the discharge to
show sabotage.
Arguably, Cogley and Jackson engaged in no particular
misconduct whatever; they both testified that they had fin-
ished their work assignments. Cogley had completed his
work and turned off the engine of his forklift because it was
hot and he wanted to cool off. Jackson had substantially fin-
ished his work by unloading the last carload of tile and
joined Cogley for a few minutes at the doorway, where he
idly threw a couple of scrap tiles out the door. The entire
episode was brief, possibly less than 5 minutes. To be sure,
the unwritten rule for any employee is to avoid looking idle.
The Respondent referred to the company rule ‘‘that if no
work was available there was always clean-up work and em-
ployees were to ‘grab a broom’’’ (R. Br. 80). This is all the
employees failed to do. However, there is no basis to sug-
gest—as the Respondent argues—that Cogley ‘‘abandoned
his machine,’’ ‘‘concealed himself,’’ went into ‘‘hiding,’’
acted ‘‘as a lookout’’ for his coworker, and was ‘‘abusive’’
or ‘‘insubordinate’’ (R. Br. 72–74). It is equally exaggerated
for the Respondent to argue that Jackson’s conduct amounted
to ‘‘inherently dangerous conduct of throwing tile—projec-
tiles . . . ‘blind’ across a traveled roadway,’’ which was
‘‘harmful to rights or safety of co-workers’’ (R. Br. 77–79).
In fairness, the employees’ conduct amounted to no more
than ‘‘loafing’’ or idleness, which the Respondent character-
izes as ‘‘stealing time’’ Jackson’s additional activity of
throwing tile could not be equated with destruction of com-
pany property because the ‘‘projectiles’’ were scrap and,
even if it had been quality tile, the monetary worth was indi-
cated by the Respondent to be less than 1 cent (Tr. 787). In-
deed, the throwing of tiles by employees was not unusual
and was a practice for which another employee received at
most an oral warning (Tr. 1418–1427). Other employees had
thrown tile from the same area from which Jackson had
thrown it without receiving any discipline or without any
suggestion that such a practice was considered dangerous
(Tr. 481, 1424–1425). Neither employee, Cogley nor Jack-
son, exhibited an act of insubordination during that episode.
At all times, both employees meticulously followed the or-
ders of management, those by Peter Johnson or David John-
son. Yet, David Johnson’s explanation for his conclusion that
the employees were ‘‘insubordinate’’ was that they did not
appear to take him seriously or exhibited a defiant attitude
(Tr. 930–933). This accusation is unfounded and is belied by
Cogley’s and Jackson’s demeanor. For example, Cogley was
earlier subjected to a humiliating experience in the presence
of his coworkers when he was ordered to take off his shirt,
stood nude to his waist, and was publicly scolded and hu-
miliated by Peter Johnson. The discharge episode in the pres-
ence of the other employees was equally humiliating. Yet,
both employees kept their composure, followed manage-
ment’s orders, and left the plant quietly and without any sign
of resistance.
The Respondent’s other and chief reason to substantiate
the discharges, namely, the employees’ absence from their
work area, is specifically covered by the Respondent’s work
rules (Tr. 813–816, 929–931). However, the rules provide
that discharge is indicated only after three infractions. In-
deed, the record shows that other employees who had en-
gaged in similar conduct in violation of rule B,3 were simply
given warnings (Tr. 943–955).6
The Respondent’s policy is contained in an employees’
handbook (R. Exh. 19). It lists 10 ‘‘work situations’’ which
would result in immediate discharge as follows:
WORK SITUATIONS
A. These acts will result in immediate discharge.
1. Carelessness resulting in damage to Company
property.
73SUMMITVILLE TILES
7 The Respondent concedes the point because a violation of that rule is not
cited in the brief.
8 When pressed for examples, the Respondent referred to the termination of
11 employees in 1981 because all of them had walked off their jobs to play
poker. That conduct was obviously covered by rule A,9 (Tr. 2070–2071). An-
other example cited by the Company was the discharge of John Holenchek
in September 1986. It was established, however, that he had violated a specific
rule (Tr. 2074–2075). The termination of John Hetherington on November 19,
1984, involved the throwing of tile. However, the Respondent conceded that
the incident involved a dispute between two employees who threw the tile at
each other. This conduct is a violation of rule A,4.
9 The testimony of David Johnson throughout the proceeding was argumen-
tative, self-serving, and frequently unresponsive to the questions of counsel.
Moreover, his demeanor as a witness did not impress me as sincere and hon-
est. He frequently appeared hostile and angry at the questions of counsel and
cavalier or arrogant with his responses.
2. Unauthorized removal or attempted removal of
any property or records belonging to the Company.
3. Bringing weapons or explosives into the plant or
upon Company property.
4. Fighting or provocation which leads to fighting in
the plant or upon Company property.
5. Using or possessing intoxicants or illegal, non-pre-
scribed drugs or chemicals in the plant or on Company
property.
6. Failure to report personal injury occurring in the
course of employment at the time it occurs, unless
physically unable to do so.
7. Sleeping during working time.
8. Falsification of a time card, medical statements or
other records or making an entry on a time card or
other record without authorization.
9. Leaving the plant during working time or not re-
turning to work following lunch break without prior
permission from a supervisor.
10. Refusal to follow direction or instructions of a
supervisor. No employee will be required to perform
any function which would be abnormally dangerous.
The employees violated none of these policies. Although
Peter Johnson had initially accused Jackson of destroying
company property, the record does not support such an accu-
sation. The tile-throwing incident did not amount to a viola-
tion of rule A,l, above.7 The tile was worthless, and Cogley
took no part in that activity. The handbook recites other
types of misconduct which could result in a discharge but
only after three infractions. These are listed as follows:
B. A third notice of violation of one of the following
procedures will result in discharge.
1. Clocking-in or clocking-out prior to fifteen (15)
minutes before scheduled starting time or later than fif-
teen (15) minutes after the end of scheduled quitting
time.
2. Entering the plant during non-scheduled hours; at-
tempting to enter the plant where there is a reasonable
doubt of ability to work safely or efficiently; bringing
unauthorized persons into the plant.
3. Absence form a work station for excessive periods
without cause or authorization or leaving the plant to
go to the parking lot during a break or during the lunch
period.
4. Work below acceptable levels of performance or
interfering with the performance of other employees.
5. Failure to use or wear mandatory safety equip-
ment.
6. Failure to park in designated area, or operating ve-
hicles at excessive speed or in a reckless manner in
parking areas.
In addition, the Company enforces an absentee policy which
similarly has a progressive system of discipline. The Re-
spondent has in the past carefully adhered to its policy and
never discharged any employees unless they violated the
rules of the handbook. For example, the record shows that,
in the 5 years preceding the instant discharges, 23 employees
were terminated (C.P. Exhs. 13–14). The reasons which ap-
pear on a list of the discharged employees, as well as the tes-
timony of John Hothem, vice president of manufacturing,
show that, with the exception of two, the terminated employ-
ees were discharged for specific violations of the rules enu-
merated in the handbook (Tr. 2083–2084). The two excep-
tions were employees Patty Clark and Gary Lawn. However,
they simply were not recalled after an extended leave be-
cause of their inability to perform the work (Tr. 2083). There
was testimony by David Johnson and Fred Johnson to the ef-
fect that the handbook was designed as a mere guide and not
as an exhaustive list of infractions which would result in im-
mediate discharges However, that testimony was not sup-
ported by the Respondent’s past practice.8
I accordingly find that the Respondent’s decision to dis-
charge the two employees was in total disregard of its past
practice and its practice of progressive discipline.
The Respondent also resorted to ‘‘post discharge discov-
ered-developed evidence’’ to support the discharge of Cogley
(R. Br. 76). Even though the testimony by a handwriting ex-
pert was permitted solely for impeachment purposes (Tr.
1615), the Respondent argues that Cogley was fired because
of ‘‘sabotage.’’ Initially, I reject the Respondent’s argument
because it is based on evidence received only for impeach-
ment purposes (Tr. 1615). Moreover, any attempt to show
that the Respondent had suspicions of such conduct at the
time of the discharge is unconvincing. I simply do not credit
David Johnson’s testimony in which he talked about a ‘‘pret-
ty strong suspicion’’ of ‘‘sabotaging products’’ (Tr. 797).9
The alleged act of sabotage was no more than handwriting
on two tiles (R. Exhs. 75–76). The handwriting on one tile
states: ‘‘This place really sucks.’’ The other statement is:
‘‘Have something to say in what goes on in the plant.’’ Ac-
cording to the Respondent, these tiles could have been part
of a shipment of tiles to a customer. Presumably, such a cus-
tomer would have the two tiles replaced or simply would
have cleaned off the writing because the writing was not
etched into the material. The most likely scenario would be
that the tile would have been spotted by other employees fur-
ther down the production line and recovered (Tr. 965). Even
assuming that such an incident can be termed ‘‘sabotage,’’
the Respondent failed to prove that its ‘‘suspicions’’ were
well founded on that Cogley was responsible for it. Cogley
admitted having written in 1986 a union-related message
such as ‘‘Vote yes for the Union’’ on a piece of broken 6-
by 6-inch tile which would have ended up in the scrap pile
(Tr. 963–964). But he specifically and credibly denied hav-
ing written the statements on these tiles or any finished or
quality tile (Tr. 2314). Moreover, in spite of his credentials,
Phillip Bouffard’s expert conclusion that the writing on the
two tiles was that of Cogley is suspect. He was hired by the
74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Bartholomew denied in his testimony that he suggested to Minor to mis-
represent his accidental injury (Tr. 1917). However, Bartholomew conceded in
his testimony that he had suspected that Minor’s injury was the result of a
motorcycle accident, and that he did not inform upper management of his sus-
picions (Tr. 1922, 1961).
Respondent not to ascertain who among the Respondent’s
numerous employees wrote the messages on the tiles but to
show that Cogley’s writing could be matched with that on
the tile. Dr. Bouffard conceded that point (Tr. 1704), as well
as the failure in his comparison to compare words with
words other than a simple letter comparison (Tr. 1705). For
these and other reasons, I would reject the handwriting anal-
ysis as grossly biased and inclusive.
In any case, the Respondent had never articulated this inci-
dent in prior proceedings, such as the unemployment hearing
on February 5, 1987 (Tr. 950– 952; R. Exh. 12). And the
record shows that the Respondent did not rely on the ‘‘tile
defacement’’ incident as a reason for Cogley’s discharge.
Rather, the Respondent has seized upon this incident in an
effort to justify the discharge from an apparent realization
that the other reasons were insufficient for the purpose of
this proceeding.
The mandate of the Act is to prevent unfair labor prac-
tices, including ‘‘discrimination in regard to hire or tenure of
employment or any term or condition of employment to en-
courage or discourage membership in any labor organiza-
tion’’ and, as argued by the Respondent, certainly not to
‘‘second-guess’’ corporate management or to ‘‘allow em-
ployees to hide behind’’ their union activity (R. Br. 71). The
record here fully demonstrates that the Respondent’s dis-
criminatory conduct was motivated by union animus. John-
son’s demeanor during the T-shirt incident exhibited the Re-
spondent’s outspoken hostility toward the Union. Under-
standably irritated by Cogley’s adverse reference to the John-
son name, Johnson Sr. went beyond a typical display of irri-
tation when he, in a calculated fashion, assembled the em-
ployees to witness his contempt for the Union, stamping his
foot on the T-shirt and exclaiming, ‘‘This is what I think of
the Steel Workers Union.’’ In spite of his distinguished posi-
tion as the chief executive of a reputable corporation, he then
pointed his finger at the employee and threatened to deck
him. He similarly assembled the employees to witness the
discharge of Cogley and Jackson. The Respondent was keen-
ly aware of the two employees’ outspoken union support
and, in no uncertain terms, sent a message to all employees
shortly before the union election that minor misconduct—or-
dinarily punishable by a warning—was now used to fire two
reputable and reliable workers. This message may have
served the purpose when the Union was defeated at
Summitville Tiles. The Respondent’s shifting and exagger-
ated reasons, the timing of the discharges during the crucial
weeks of the campaign, the Respondent’s disregard of its
own policies, and the disparate treatment toward the two
prominent union supporters, all demonstrate that the Re-
spondent violated Section 8(a)(1) and (3) of the Act. Initially
blaming Cogley for an absence from his work station and
‘‘stealing time,’’ then terming the conduct as insubordina-
tion, and finally the belated reliance on some graffiti on two
tiles shows the Respondent’s disingenuous motives. Similar
was the Respondent’s first claim of Jackson’s destruction of
company property, which changed to the absence from his
work and ultimately to a violation of safety rules. The Re-
spondent’s pretextual reasons do not even suggest a dual mo-
tive. Compare Wright Line, 251 NLRB 1083 (1980). In the
absence of the Respondent’s union animus these employees
would not have been discharged.
D. The Discharge of Roger and Jenny Minor
On December 12, 1987, Respondent Summitville Tiles dis-
charged its employees Roger and Jenny Minor. The Com-
pany’s official reason for the discharges was ‘‘insurance
fraud.’’ The General Counsel and the Union argue that the
Minors were discharged because of their strong union sup-
port. The record shows that Jenny Minor had been employed
since January 17, 1983, as a production worker. Her hus-
band, Roger, was hired on August 28, 1984, to work as a
mill operator and a refacer on the swing shift. Both employ-
ees were active in the union campaign. They regularly wore
union shirts and a Steelworkers hat. Roger Minor was an or-
ganizer for the afternoon shift, he passed out union literature
in the plant, and he was also an observer for the Union dur-
ing the election (Tr. 288–289). His pickup truck, in which
he commuted to work and which was visible to management,
displayed a large sign stating, ‘‘Vote ‘Yes’ on November
14th’’ (Tr. 315). Jenny Minor was also a vigorous union sup-
porter who passed out union cards, solicited signatures near
the timeclock, and participated in the union rally (Tr. 150–
151).
For several years, Roger Minor had engaged in motorcycle
racing. One of his companions was his fellow employee and
supervisor, David Bartholomew. On September 29, 1985,
Roger Minor suffered an accident on a racetrack at Malvern,
Ohio, and was injured. He was taken by ambulance to the
Aultman Hospital in Canton, Ohio. He falsely reported to the
hospital and the ambulance personnel that his injuries were
the result of a football accident. He also submitted an insur-
ance claim to Summitville Tiles insurance in which he simi-
larly misrepresented the cause of his injuries (Tr. 301–302).
More specifically, the insurance policy with Summitville was
written in his wife’s name because the Company’s policy for
both employees was nominally under her name (Tr. 168; R.
Exhs. 33–34). The Company paid the claim of almost $9000
(R. Exh. 35).
According to his testimony, Minor reported the accident as
a football injury based on a conversation which he had with
David Bartholomew in August 1985. During that conversa-
tion, Bartholomew said that ‘‘he’d had an accident on his
motorcycle and that he had turned it in as being hurt on a
three-wheeler’’ and, because the insurance had not covered
it, ‘‘he was going to turn his in as something else’’ (Tr.
301). Bartholomew and Minor were friends, they had raced
motorcycles together, and in 1985 Bartholomew purchased a
motorcycle from Minor.
Ten weeks after the accident, on September 29, Minor re-
turned to work. According to Minor’s testimony, Bar-
tholomew talked to him at that time inquiring about his inju-
ries and stating that ‘‘it was . . . good that he turned it in
as something other than a motorcycle injury’’ because the
company’s insurance would not have covered it (Tr. 302–
303).10 Minor also testified about a subsequent conversation
with Bartholomew approximately 2 weeks prior to the elec-
tion. During that conversation, according to Minor, Bar-
tholomew said: ‘‘I can’t understand why you’re doing what
75SUMMITVILLE TILES
11 The Charging Party urges a finding that the note was written by David
Bartholomew. However, the record is not clear on this issue.
12 An examination of the few writing samples in the record and their com-
parison with the handwriting on the note is inconclusive and speculative (C.P.
Exhs. 35–43).
13 This is supported by the testimony of Minor about a conversation with
Robert Christen. The latter told him that Bartholomew had turned him in (Tr.
307–308).
you’re doing. . . . Being involved with the Union. . . .
Well, you know you’re not doing right . . . because you
made out on your insurance. . . . You know as well as I do
that you didn’t have the football injury like you stated and
that you got hurt on the motorcycle’’ (Tr. 304–305).
On November 11, 1986, the day of the union rally, Roger
Minor had parked his truck near the highway. His truck dis-
played the large prounion sign. As he reported for work,
Peter Johnson Sr., who had observed the rally with bin-
oculars in his hand, asked him where were all his supporters.
Minor replied: ‘‘Well, it’s still early. They should be here.’’
On the following day, Supervisor John E. Rance received an
anonymous tip on a piece of paper (C.P. Exh. 34). It read:
‘‘Just to let you know that Roger Minor’s accident last year
was a motorcycle accident.’’11 This prompted an investiga-
tion by the Company of the insurance claim, which led to
a decision by John Hothem and Jack Rance to discharge
Roger Minor and Jenny Minor (Tr. 865).
According to Minor, he was called into the conference
room and confronted by Hothem and Rance in the following
manner (Tr. 311–313).
John Hothem started questioning me, asking me what
had happened on September 29th, 1985, and I told him
that I didn’t recall the date and I didn’t really know
what did happen. And he said that I’d had a motorcycle
accident on that date, and I told him, I said, ‘‘Well, I’d
said football injury.’’ And he said, ‘‘Well, it wasn’t a
football injury. We have proof that you had a motor-
cycle accident.’’
. . . .
I’d asked John, I said, ‘‘Well, how come it took a year
and a half for you to, you know, start checking into
this—well, approximately a year and a half to start
checking into this accident?’’ And he gave me a real
smirky smile like and then said that ‘‘The wheels of
justice turn slowly.’’
The Union argues that the anonymous note left in Super-
visor Rance’s office on November 12, 1986, 1 day after the
union rally, must have been written by Bartholomew. His
knowledge of motorcycle racing and his familiarity with the
Malvern racetrack would support such a finding.12 However,
there is no hard evidence in the record on which I could base
such a finding. In any case, the timing of the investigation
during the height of the union campaign after more than a
year had elapsed since the accident, as well as the Respond-
ent’s strong antiunion sentiment in relation to the two vig-
orous union activists, would suggest that the discharges were
motivated by union animus. This is supported by Bartholo-
mew’s threat to Minor that he should cease his union support
in view of the insurance recovery (Tr. 304–305). Bartholo-
mew’s denial of such a conversation is not convincing, as is
his testimony claiming only rumored knowledge of the mo-
torcycle accident. Bartholomew was Minor’s supervisor, he
was a personal friend over a period of years, and he was ac-
tively involved in the same hobby, namely, motorcycle rac-
ing at the same track at Malvern. Bartholomew must have
known about the accident and did not inform the Employer
until the union campaign.13 However, the record shows that
the Respondent had good cause to discharge Roger Minor
once the false insurance claim had been uncovered. The Re-
spondent also had a good reason to suspect that his wife,
Jenny Minor, had taken an active part in the falsification of
the documents. They were husband and wife. The documents
were signed in her name and it was assumed that she had
accompanied her husband in the ambulance to the hospital
and obviously knew about the accident. The instant situation
presents a dual-motive discharge. Here, the Employer has
successfully shown that it would have taken the same action
regardless of the employees’ protected activity. Wright Line,
251 NLRB 1083 (1980). Accordingly, I find that the Em-
ployer did not violate the Act when it discharged Roger and
Jenny Minor.
E. The Respondent’s Lawsuit
The next allegation in the complaint alleges that Respond-
ent Summitville Tiles filed a baseless lawsuit against Mi-
chael Cogley and Douglas Jackson in violation of Section
8(a)(1) and (4) of the Act. The record shows that on May
29, 1987, Summitville Tiles initiated a civil action in the
Court of Common Pleas, Columbiana County, Ohio (87–
Civ–625) against Douglas Jackson and Michael Cogley for
‘‘Malicious Prosecution and Civil Conspiracy for Money
Damages with Multiple Discovery Requests.’’ (C.P. Exh. 2.)
The complaint of the local action seeks a judgment ‘‘in ex-
cess of Ten Thousand Dollars’’ and ‘‘exemplary-punitive
damages in the amount of One Hundred Thousand Dollars’’
with attorneys’ fees, and alleges that Cogley’s and Jackson’s
filing and refiling of charges with the Board, as well as a
lawsuit filed by the employees against Summitville Tiles,
amounted to malicious prosecution.
More specifically, Cogley and Jackson had filed a civil ac-
tion on November 6, 1986, in the Columbiana County Court
of Common Pleas against Summitville Tiles for assault and
wrongful discharge (R. Exh. 2). The allegations relate to the
confrontation on October 28, 1986, between Peter Johnson
Sr. and Michael Cogley, as well as the discharges of the two
employees. On May 21, 1987, following the issuance of the
complaints in the Labor Board cases, Cogley and Jackson
filed a motion for dismissal of their local action in Case 86–
Civ–1304 (R. Exhs. 1–4). As already stated, the complaints
in the Labor Board cases are based on the unfair labor prac-
tice charges filed by the Union. The first in a series of
charges by the Union were those filed on October 31, 1986,
in Case 8–CA–19601 and on January 5, 1987, in Case 8–
CA–19756. They were withdrawn by the Union. It filed new
charges in Case 8–CA–19867 on February 18, 1987, which
resulted in the issuance of one of the present complaints by
the Region on April 30, 1987.
The Respondent’s complaint of May 29 in the local court
for malicious prosecution was based on these repetitive fil-
ings of the unfair labor practice charges and the state court
action. But Cogley and Jackson had effectively terminated
the lawsuit a week earlier on May 21, 1987.
76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 On November 21, 1988, the Charging Party filed a motion to supplement
the record herein with the decision of the Columbiana County Court of Ap-
peals, which in a decision dated November 16, 1988, affirmed the trial court.
On December 6, 1988, the Respondent submitted a reply and a brief. Judicial
notice in the instant case will be limited to the decision by the appellate court
without consideration of any factual or legal arguments by either party in this
case.
15 Testimony from other company officials indicated that the preparation of
the new handbook had begun in December 1985 (Tr. 2101).
The Columbiana County Court granted summary judgment
in favor of the defendants, Cogley and Jackson, on August
26, 1987 (C.P. Exhs. 3–4). In its opinion, the court deter-
mined ‘‘that those matters [the issues involved] must nec-
essarily be litigated and determined in proceedings before the
National Labor Relations Board, wherein that agency pre-
empts this State Court.’’ (C.P. Exh. 4.) In an earlier ruling
dated August 4, 1987, the court stated that an action for ma-
licious prosecution under Ohio law requires ‘‘a showing of
seizure of person or property, whether actual or construc-
tive,’’ which Summitville Tiles had failed to show (C.P. Exh.
3).14
David Johnson testified that he proceeded with the mali-
cious prosecution suit against the two employees even
though they had withdrawn their suit to recover the expenses
incurred in preparing for the suit (Tr. 1139). However, it is
clear that the Respondent’s efforts went beyond that because
the relief requested included punitive damages. It was also
conceded in the Respondent’s testimony that another purpose
of the litigation was to retaliate against the several charges
filed by the Union on behalf of the employees (Tr. 1141–
1142, 1149–1150).
It is well recognized that Section 7 of the Act ‘‘protects
employees from retaliation by their employers when they
seek to improve working conditions through resort to admin-
istrative and judicial forums.’’ Eastex, Inc. v. NLRB, 437
U.S. 556, 566 (1978). The filing of a labor-related lawsuit
by employees against their employer seeking actual and pu-
nitive damages is considered a protected activity, unless
prompted by malice or bad faith. Trinity Trucking Materials
v. NLRB, 221 NLRB 364 (1975). An employer’s interference
with that activity violates Section 8(a)(1) of the Act. In addi-
tion, Board law has established that an employer violates
Section 8(a)(4) by filing a civil suit for malicious prosecution
against an employee for filing an unfair labor practice
charge. George A. Angle, 242 NLRB 744 (1979); United
Credit Bureau, 242 NLRB 921 (1979).
If an employer’s suit against an employee for malicious
prosecution can be regarded as baseless and filed for retalia-
tory reasons, the Board is empowered to enjoin a state court
action. Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731,
741 (1983). An analysis of the Respondent’s complaint, as
well as the testimony, shows that the Respondent’s motive
was punitive and in retaliation against the two employees and
the Union because of their protected activity in filing unfair
labor practice charges. Moreover, it is also clear that the gra-
vamen of the Respondent’s lawsuit in the state court was
preempted by Federal law and properly disposed of by the
court. Finally, the Respondent’s lawsuit lacked a reasonable
basis in fact and in law. This is especially true in consider-
ation of Ohio law, which for an action for malicious prosecu-
tion requires a seizure of person or property, actual or con-
structive. In any case, the Respondent’s lawsuit is totally
baseless. It is simply ludicrous to suggest that a resort to
legal process by two fired and jobless employees to regain
their jobs can be defined as malicious prosecution. Bill John-
son’s Restaurants, supra at 740.
F. The Refusal to Bargain
The complaint charges Respondent Summitville Labora-
tories with violations of Section 8(a)(5) of the Act for its
failure to bargain with the Union as the certified bargaining
representative of the employees in the stipulated bargaining
unit and for its unilateral change of an employee handbook.
The Respondent argues that the Union failed to make a time-
ly request to bargain and that the Union has lost the support
of its unit employees, all of which relieved the Company
from its duty to bargain. With respect to the unilateral
changes, it is the Respondent’s position that the allegation is
barred by Section 10(b) of the Act, and that the preparation
of the handbook had preceded the union campaign.
Following an election on November 21, 1986, for the lab-
oratory employees at the Minerva plant, the Union was cer-
tified on April 1, 1987 (G.C. Exh. 2). The Respondent’s ob-
jections to the election dated November 28, 1986, were de-
nied by the Regional Director as untimely (G.C. Exhs. 2(f)–
(i)).The appropriate bargaining unit was stipulated (G.C. Exh.
2(j)):
All laboratory employees employed at the Employer’s
Brush & Arbor Road, Minerva, Ohio facility, excluding
all office clerical employees, professional employees,
guards and supervisors as defined in the Act.
On March 1 or 2, 1987, Summitville Laboratories issued
a new handbook to its employees (G.C. Exh. 6). Prior to that
time and before the election on November 21, 1986,
Summitville Laboratories had used the same handbook for its
employees that had been in use at Summitville Tiles. (Tr.
1005, 1083; R. Exh. 19.) After the election, the Company de-
cided ‘‘that it was important that . . . . Summitville Labora-
tories have their own handbook’’ (Tr. 1084).15 The new
handbook differed from the old one in several respects. For
example, the new handbook eliminated Christmas bonuses
and bonuses for perfect attendance; it also provided for per-
formance appraisals, drug testing, and searches of employ-
ees’ lockers. The new handbook also changed the layoff pro-
cedure (Tr. 2130–2132). The old handbook was still in use
for the employees of the main facility at Summitville Tiles.
It is undisputed that the Respondent issued the new hand-
book after the election but prior to certification without prior
notice to the Union and without bargaining with the Union
(Tr. 683–686).
The Union filed a charge on March 12, 1987, relating to
the unilateral changes (Case 8–CA–19927), but subsequently
withdrew it (Tr. 688–690). On June 9, 1987, the Union filed
another charge (Case 8–CA–20159) which in Board language
alleged as violations of Section 8(a)(5) and (1) the following:
‘‘Since on or about May 5, 1987, and at all times thereafter,
it Summitville Laboratories . . . has refused to bargain col-
lectively’’ (G.C. Exh. l(f). Although the specific charges re-
lating to the unilateral charges were withdrawn, the new
charges were broadly drafted. They are closely related to and
encompass the specific allegations in the amended complaint
77SUMMITVILLE TILES
16 Burga also testified that Robert Vasquez, a staff representative of the
Union, had attempted to reach Johnson by telephone without success (Tr. 692–
693).
17 The record does not support any contentions that the Union has lost its
majority status or that ‘‘unusual circumstances’’ existed which justify the Re-
spondent’s refusal to bargain. The presumption of the Union’s majority status
remains.
(G.C. Exhs. l(r) and (u)). G. W. Galloway Co. v. NLRB, 856
F.2d 275, 282 (D.C. Cir. 1988); Redd-I, Inc., 290 NLRB
1115 (1988). The Respondent’s reliance on Section 10(b) is
therefore misplaced. Moreover, even though the Respondent
effectuated the new employee policy contained in the hand-
book prior to the Union’s certification and during the pend-
ency of objections to the election, the Respondent acted at
its peril. The Employer changed the terms and conditions of
employment for the unit employees without notifying the
Union and without bargaining in violation of Section 8(a)(5)
and (1) of the Act. Mike O’Connor Chevrolet, 209 NLRB
701 (1974).
The record also shows that the Respondent generally re-
fused to honor its bargaining obligation. By letter dated May
4, 1987, William Burga, the Union’s subdistrict director of
District 27, informed the Company that the Steelworkers
‘‘are prepared to meet with the Summitville Lab Company
for the purpose of negotiating a new collective bargaining
agreement for the employees’’ (G.C. Exh. 3). The Company
responded by letter dated May 13, 1987, notifying the Union
as follows (G.C. Exh. 4):
No common purpose would be served by meeting in
the interim period at this point in time ‘‘for the purpose
of negotiating a new collective bargaining agreement
. . .’’ beneficial to the employees—company pending
resolution of litigatory problems.
The Union replied by letter of May 19, 1987, stating, inter
alia (G.C. Exh. 5):
There are no litigation problems outstanding at
Summitville Laboratories, Inc.
Therefore, we renew again our request to commence
collective bargaining for our members at Summitville
Laboratories, Inc.
In spite of the Union’s certification as the employees’ bar-
gaining representative and its repeated request to bargain,16
the Company has unequivocally shown its refusal as further
demonstrated by Johnson’s testimony (Tr. 1111):
Q. Is your position as of today that there are prob-
lems that preclude your bargaining with the union?
A. Yes.
Q. So that if requested you would not bargain with
the union today?
A. Pending the resolution of these litigatory matters
in court.
Q. Right. And they haven’t been resolved to your
satisfaction?
A. No. They have not.
The Respondent’s argument that the ‘‘Union has not
sought to bargain and employer has not refused to bargain’’
or its claim that the Union made ‘‘no legitimate effort to ini-
tiate bargaining’’ is totally unfounded (R. Br. 102– 103). The
Union made two written requests to bargain and the Re-
spondent responded with an unequivocal rejection. A delay
of approximately 1 month following the certification is not
regarded as an act of dereliction. And the Respondent’s ob-
jections to the election, which were untimely, are not prop-
erly before the Board in this proceeding. The record plainly
shows that the Respondent refused to honor its bargaining
obligation without any justification,17o violation of Section
8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. By discriminatorily enforcing its no-solicitation, no-dis-
tribution policy, Respondent Summitville Tiles violated Sec-
tion 8(a)(1) of the Act.
2. By discharging its employees Michael Cogley and
Douglas Jackson because of their protected concerted activ-
ity, Respondent Summitville Tiles violated Section 8(a)(3)
and (1) of the Act.
3. By initiating and maintaining a civil action for mali-
cious prosecution and civil conspiracy against Michael
Cogley, Douglas Jackson, and others because of their pro-
tected concerted activities, Respondent Summitville Tiles
violated Section 8(a)(4) and (1) of the Act.
4. By failing and refusing to bargain with the Union as the
certified bargaining agent on behalf of the unit employees of
Summitville Laboratories, and by unilaterally issuing a hand-
book changing the employees’ working conditions, Respond-
ent Summitville Laboratories violated Section 8(a)(5) and (l)
of the Act.
5. All other allegations in the complaint have not been
substantiated.
REMEDY
On concluding that the Respondents have engaged in cer-
tain unfair labor practices, I find it necessary to recommend
that they cease and desist and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent Summitville Tiles unlaw-
fully discharged Michael Cogley and Douglas Jackson, Re-
spondent Summitville Tiles will be ordered to offer them re-
instatement, and make them whole for lost earnings and
other benefits on a quarterly basis from the date of discharge
to the date of a proper offer of reinstatement, less net interim
earnings, in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
Having further found that Respondent Summitville Tiles
filed a baseless lawsuit in the Court of Common Pleas,
Columbiana County Ohio (87–Civ–625) for malicious pros-
ecution and civil conspiracy against Michael Cogley, Doug-
las Jackson, and other respondents in retaliation for their pro-
tected concerted activities, Respondent Summitville Tiles will
be ordered to cease and desist and to withdraw the lawsuit.
In addition, Respondent Summitville Tiles must be ordered
to place the employees and the Union in the position they
would have been absent the violations of Section 8(a)(4) and
(1), and to make the employees and the Union whole for all
legal expenses they incurred in the defense of the lawsuit,
plus interest as computed in New Horizons, supra.
78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Order
shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and
all objections to them shall be deemed waived for all purposes.
19 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of National Labor Relations
Board.’’
20 See fn. 19, supra.
Having further found that Respondent Summitville Labora-
tories violated Section 8(a)(5) and (1) of the Act by unilater-
ally issuing a new employee handbook to the employees
without bargaining with the Union and by failing and refus-
ing to bargain with the Union as the certified bargaining rep-
resentative for the unit employees, Respondent Summitville
Laboratories will be ordered to rescind the employee hand-
book, and to bargain with the Union as the employees’ col-
lective-bargaining representative.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended18
ORDER
A. Respondent Summitville Tiles, Inc., Summitville, Ohio,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging any employees because of their union ac-
tivities or discriminating in any other manner with respect to
their hire or tenure of employment or any term or condition
of employment, in violation of Section 8(a)(3) and (1) of the
Act.
(b) Discriminatorily enforcing and maintaining a no-solici-
tation and no-distribution policy which prohibits its employ-
ees from campaigning for the Union on company time or on
company property.
(c) Prosecuting and further appealing its lawsuit for mali-
cious prosecution and civil conspiracy (87–Civ–625) in the
state courts or the Columbiana County Courts against Mi-
chael Cogley, Douglas Jackson, and the Union.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the 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) Offer Michael Cogley and Douglas Jackson immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against them, in the manner set forth in the rem-
edy section of the decision.
(b) Remove from its files any reference to the discharges
of Michael Cogley and Douglas Jackson and notify them in
writing that this has been done and that evidence of the dis-
charges will not be used against them in future personnel ac-
tions.
(c) Withdraw its lawsuit for malicious prosecution and
civil conspiracy (87–Civ–625) filed in the Columbiana Coun-
ty Court and any appeals against Michael Cogley, Douglas
Jackson, and the Union and reimburse them for all legal ex-
penses incurred in the defense of the lawsuit, including the
appeals, in the manner set forth in the remedy section of the
decision.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its place of business in Summitville, Ohio, cop-
ies of the attached notice marked ‘‘Appendix A.’’ 19 Copies
of the notice, on forms provided by the Regional Director for
Region 8, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt 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, defaced, 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.
B. Respondent Summitville Laboratories Division of
Summitville Tiles, Inc., Minerva, Ohio, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally issuing employee handbooks or unilaterally
changing the terms or conditions of employment for the em-
ployees in the following certified bargaining unit:
All laboratory employees employed at the Employer’s
Brush & Arbor Road, Minerva, Ohio facility, excluding
all office clerical employees, professional employees,
guards and supervisors as defined in the Act.
(b) Refusing to bargain with the Union as the collective-
bargaining representative on behalf of the unit employees.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the 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) Revoke the employee handbook and other policy
changes in the employees’ working conditions as of the time
of the election of the Union as the collective-bargaining rep-
resentative for the unit employees at Summitville Labora-
tories.
(b) On request, bargain collectively and in good faith with
United Steelworkers of America, AFL–CIO, CLC as the col-
lective-bargaining representative of its employees in the
above-described bargaining unit with respect to wages, hours,
and other terms and conditions of employment.
(c) Post at its place of business in Minerva, Ohio, copies
of the attached notice marked ‘‘Appendix B.’’20 Copies of
the notice, on forms provided by the Regional Director for
Region 8, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt 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, defaced, or covered by any other material.
79SUMMITVILLE TILES
(d) 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 RECOMMENDED that the complaint allega-
tions not specifically found be dismissed.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT unilaterally issue employee handbooks or
unilaterally change the terms or conditions of employment
for our employees in the following certified bargaining unit:
All laboratory employees employed at the Employer’s
Brush & Arbor Road, Minerva, Ohio facility, excluding
all offfice and clerical employees, guards and super-
visors as defined in the Act.
WE WILL NOT refuse to bargain with the Union as the col-
lective-bargaining representative on behalf of the unit em-
ployees.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL revoke the employee handbook and other policy
changes in the employees’ working conditions as of the time
of the election of the Union as the collective-bargaining rep-
resentative for the unit employees at Summitville Labora-
tories.
WE WILL, on request, bargain collectively and in good
faith with United Steelworkers of America, AFL–CIO, CLC
as the collective-bargaining representative on behalf of the
employees in the above-described bargaining unit with re-
spect to wages, hours, and other terms and conditions of em-
ployment.
SUMMITVILLE LABORATORIES DIVISION OF
SUMMITVILLE TILES, INC.