The Scott & Fetzer Co.

National Labor Relations Board - Board Decisions

Mar 22, 1977

228 N.L.R.B. 1016 (N.L.R.B. 1977)

1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Douglas Division, The Scott & Fetzer Company and
International Association of Machinists and Aero-
space Workers, AFL-CIO. Case 26-CA-5877
March 22, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On November 4, 1976, Administrative Law Judge
Maurice S. Bush issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings,' fmdings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order .3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Douglas Divi-
sion, The Scott & Fetzer Company, Walnut Ridge,
Arkansas, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, except that the attached notice is substitut-
ed for that of the Administrative Law Judge.
i Respondent contends it was entitled under the Freedom of Information
Act to an order from the Administrative Law Judge requiring that counsel
for the General Counsel produce all written statements of any witnesses the
General Counsel might call to testify. At the hearing, the Administrative Law
Judge properly denied Respondent's motion and in his Decision properly
found that such denial of Respondent's motion to obtain witnesses' affidavits
poor to their testifying at the hearing did not prejudice Respondent. The
Administrative Law Judge admitted into evidence Respondent's requests for
information under the Freedom of Information Act, directed to the Regional
Director and the General Counsel , as well as letters from the Regional
Director and the General Counsel denying those requests . The Administra-
tive Law Judge admitted those exhibits in order to give Respondent the
"evidentiary basis for an appeal." The General Counsel excepts to the
Administrative Law Judge' s admission of the exhibits, contending that the
Board has set forth in Sec. 102.117 of the Board's Rules and Regulations,
Series 8 , as amended, detailed procedures for parties to make requests for
documentation under the Freedom of Information Act. In the instant case,
Respondent followed these procedures by making its requests to the
Regional Director and appealing the Regional Director's decision to the
General Counsel, who in turn denied the appeal . Thus, Respondent
exhausted its avenues of appeal in seeking disclosure of documents under the
Freedom of Information Act. Its only recourse at this stage would have been
to have sought judicial review under the Freedom of Information Act. (5
U.S.C Sec 552(4)(6).) The Board's Rules do not contemplate that Adminis-
trative Law Judges should be involved in this process, and the admission of
the exhibits in issue provides no additional "evidentiary basis for an appeal."
228 NLRB No. 124
Accordingly, we find that the Administrative Law Judge committed error by
admitting into evidence correspondence between Respondent and the
Regional Director and General Counsel concerning requests pursuant to the
Freedom of Information Act. However , since such error is not prejudicial, we
shall not expunge these exhibits from the record.
z In the absence of exceptions , we adopt, pro forma the Administrative
Law Judge's finding dismissing the allegations of the complaint concerning
Respondent's no-solicitation rule.
3 The Administrative Law Judge recommended an order containing
broad injunctive language , but inadvertently omitted the requisite language
from the notice . We shall correct the notice to conform to the recommended
Order.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees with
plant closure if they designate or select Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO, or any other labor organiza-
tion, as their bargaining representative.
WE WILL NOT interrogate our employees con-
cerning their union membership, activities, or
desires.
WE WILL NOT give our employees the impres-
sion of surveillance of their union or concerted
activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in their
rights to self-organization, to bargain collectively
through representatives of their own choosing, or
to engage in other concerted activities for the
purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such
activities.
All of our employees are free to become or remain
or to refrain from becoming or remaining members of
International Association of Machinists and Aero-
space Workers, AFL-CIO, or any other labor organi-
zation.
DOUGLAS DIVISION, THE
SCOTT & FETZER
COMPANY
DECISION
STATEMENT OF THE CASE
MAURICE S. BUSH, Administrative Law Judge: Respon-
dent, the Douglas Division of the Scott and Fetzer
Company, is engaged in the manufacture of vacuum
cleaners and other products at its new and relpcated plant
in Walnut Ridge, Arkansas, where it employs approximate-
ly 70 employees, mostly women.
The Walnut Ridge plant has been unrepresented since its
opening in 1972. However, in about late September 1975,
DOUGLAS DIVISION
the Union, here involved as the Charging Party, com-
menced a campaign to organize the Walnut Ridge plant.
Respondent sought to combat the union campaign by its
own antiunion propaganda letters to its Walnut Ridge
employees. In one of these letters, the Company described
the Walnut Ridge operation as "just one small part of the
Scott & Fetzer Company," the parent Company, which as
the letter states has "many plants all over the country, some
with unions and plenty without."
In a later antiunion letter to its employees , Respondent
called attention, as " FACT # I," to what had happened to
Respondent's former employees at its predecessor plant at
Bronson, Michigan, as follows:
The Douglas operations in Walnut Ridge used to be in
Bronson , Michigan . Before this [Walnut Ridge] plant
opened in 1972, Douglas used to make all of its vacuum
cleaners in Bronson , and those cleaner employees were
represented by one of the biggest unions in the world.
They had a union contract which had wages and
benefits and all kinds of other things. And then in 1972,
Scott & Fetzer opened this new Douglas plant in
Arkansas, and all of a sudden those people up in
Michigan lost the most important thing of all - their
jobs. That's right, your job used to belong to another
person who lives in Michigan, but now you've got it and
you're working and earning a living, but that Michigan
worker - well, you figure it out. The fact is that when
collective bargaining in Bronson pushed the costs of
making vacuum cleaners too high, Scott & Fetzer
relocated those operations to Walnut Ridge, and all
those good people who worked on vacuum cleaners in
Michigan lost their jobs. Now its your plant and your
job, and you should be very careful before you decide to
bring a union in this plant . Think about it.
Under the above undisputed background facts, the issues
herein under the pleadings, aside from Respondent's
separate affirmative defense, are as follows: (1) whether
Respondent threatened its employees with plant closure if
they supported the Union; (2) whether Respondent en-
gaged in unlawful interrogations of its employees; (3)
whether Respondent created the impression that its em-
ployees' union activities were under surveillance; (4)
whether Respondent solicited grievances from its employ-
ees in order to dissuade them from supporting the Union;
(5) whether Respondent maintained and enforced an
invalid no-solicitation rule; and (6) whether Respondent
discriminatorily promulgated , maintained, and enforced a
notice on the women's restroom limiting the number of
occupants, in violation of the Act.
The final issue under Respondent's affirmative defense is
whether Respondent repudiated its alleged unlawful con-
duct . In its answer Respondent sets forth this defense as
follows: "Even if Respondent has engaged in any of the
unfair labor practices set forth in the complaint, which
Respondent denies , such violations were isolated in nature
and/or were effectively and fully retracted by Respon-
dent."
The complaint herein was issued on December 10, 1975,
pursuant to an original charge filed on October 24, 1975,
and a first amended charge filed on December 18, 1975,
1017
copies of which were duly served upon Respondent.
Respondent's answer denies the alleged unfair practices
and in addition pleads the affirmative defense set forth
above.
The case was heard on January 29, 1976. Briefs were duly
filed by the parties on March 9, 1976. These have been
carefully reviewed and considered.
For reasons hereinafter indicated, Respondent will be
found in violation of the Act as alleged in the complaint,
except as hereinafter noted.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent is a corporation doing business in the State
of Arkansas with an office and place of business located in
Walnut Ridge, Arkansas, where it is engaged in the
manufacture of vacuum cleaners , carpet cleaners, and
custom molded parts. During the 12 months preceding the
issuance of the complaint herein, Respondent, in the course
and conduct of its business operations, purchased and
received at its Walnut Ridge, Arkansas, location, products
valued in excess of $50,000 directly from points located
outside the State of Arkansas, and during the same period
of time Respondent sold and shipped from its Walnut
Ridge location products valued in excess of $50,000 directly
to points located outside the State of Arkansas; and during
the same period of time it had a gross volume of business in
excess of $500,000. As admitted, Respondent is an employ-
er engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists and Aerospace
Workers, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III. RULINGS ON MOTIONS FOR PRETRIAL DISCOVERY
At the hearing herein, Respondent offered in evidence
certain documents relating to its efforts to obtain from the
Regional Director before the opening of the hearing herein
the names of Respondent's employees whom the General
Counsel planned to call as witnesses in substantiation of the
allegations of the complaint or, in the alternative, "copies of
all written statements, signed or unsigned, contained in the
Board's case file . . . for inspection and copying," under
the provisions of the Freedom of Information Act. The
documents Respondent moved to place in evidence includ-
ed Respondent's pretrial discovery requests and the Re-
gional Director's denials thereof.
Counsel for General Counsel objected to the receipt of
the proffered documents in evidence on technical grounds.
These objections were overruled and the documents were
received in evidence as Respondent's Exhibits 1 to 5,
inclusive, in order to give Respondent the evidentiary basis
it apparently believes it needs for an appeal on the denial of
the pretrial data it requested.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the hearing the record was also left open, upon
Respondent's motion, for the additional receipt in evidence
of an expected but not yet received related reply from the
General Counsel to Respondent's pretrial requests.
Shortly after the close of the hearing herein , Respondent
received the expected reply in the form of a letter dated
January 28, 1976. That reply, like the earlier replies from
the Regional Director , denies Respondent's requests.
Respondent has submitted to the Administrative Law
Judge the said reply of General Counsel along with
Respondent's brief herein under a transmittal letter dated
March 4, 1976, with a request that the reply from General
Counsel be received in evidence as Respondent's Exhibit 8,
pursuant to leave granted at the hearing on January 29,
1976.
Counsel for General Counsel on March 12, 1976, filed his
opposition to the receipt in evidence of Respondent's
Exhibit 8, together with a motion for reconsideration of the
earlier receipt in evidence of related Exhibits 1 through 5,
inclusive . The opposition to Respondent 's Exhibit 8 is
overruled and the exhibit is received in evidence; t the
motion for the reconsideration of the earlier rulings,
admitting Respondent's Exhibits 1 through 5 into evidence,
is denied.
I have allowed Respondent 's Exhibit 8 in evidence for the
same reasons I have allowed the earlier Respondent's
Exhibits 1 through 5 in evidence, that is, to give Respondent
the evidentiary basis for an appeal, if desired, on the denial
of its requests for pretrial discovery by officials other than
the Administrative Law Judge.
At the opening of the hearing herein and before any of
General Counsel 's witnesses were called to testify Respon-
dent made the same request , this time by a motion before
me, "that counsel for General Counsel be required to
produce any and all written statements of any witnesses
that he planned to call." That motion was denied under the
long-established rule that a respondent is not entitled to
such statements by government witnesses until after the
conclusion of each witness' direct examination by counsel
for General Counsel.
Although Respondent's counsel has persistently sought
to see the statements of General Counsel 's employee-
witnesses in advance of the hearing, the record ironically
shows that counsel for Respondent had actually seen the
statements of General Counsel's first and lead employee-
witness , Henrietta Tate, in advance of the hearing, as she
had made the copies of her statements available to her
employer's counsel before the hearing started.
Moreover, the record shows that Respondent was so well
aware of what its employees, Henrietta Tate, Brenda
Graither, William F. (Junior) Allen, Mary Ditto, Becky
Ditto, Sue Hill , Richard Monroe , and Bonita Webster,
would testify to against the Company that Respondent's
counsel never even sought to rebut their testimony under
paragraphs 7, 8(a) and (b), 9(a) and (b), and 11 of the
complaint.
i Resp. Exh. 8 has been inserted in the official folder continuing
Respondent 's exhibits.
2 The complaint does not allege any unlawful promises by the plant
manager in reply to such inquiries.
From the record as a whole I find that Respondent's
defense herein was not in any way prejudiced by the fact
that the statements of the Board witnesses were not made
available to Respondent's counsel for inspection and
preparation for his cross-examination until after the witness
had testified in behalf of General Counsel.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issue as to the Threat To Close Plant if Union
got in
The complaint under paragraph 10 alleges that Respon-
dent Plant Manager Terry McGarry, by a letter dated
November 13, 1975, to the employees at the Walnut Ridge
plant and by speeches to the employees at or about the
same date , threatened that the Company would close its
plant if the employees selected the Union as their collective-
bargaining representative.
As aforenoted the Union started its drive to organize the
Walnut Ridge plant in about late September 1975.
On about November 6, 1975, a group of about 20 female
employees requested and received a meeting with Plant
Manager McGarry for the primary purpose of asking him if
the employees could get "better insurance and better
benefits" from the Company without a union,2 but other
questions were also asked. One of the employees asked
McGarry about a rumor that the plant would close if the
Union got in. It is undisputed that McGarry assured the
women at the meeting that "the plant would not shut
down" if the Union got in.
However, notwithstanding this assurance, McGarry on
November 13, 1975, sent a long letter to all of the
employees in the plant in which he told them, as PACT # 1,
about the closing of the predecessor plant at Bronson,
Michigan , because "when collective bargaining in Bronson
pushed the costs of making vacuum cleaners too high, Scott
& Fetzer relocated those operations to Walnut Ridge, and
all those good people who worked on vacuum cleaners in
Michigan lost their jobs." 3 The letter also informed the
employees that the forthcoming representation election
would be by secret ballot and that the employees "can vote
against the union even if you have signed a union card or
attended union activities." Finally, McGarry in his letter
also told the employees that, "If the Company wins the
election, I guarantee you that we will not discharge or
mistreat any employee who supported the union."
McGarry not only sent the above-described letter of
November 13 to each of the employees at the plant, but also
on the same day personally and publicly read the letter to
the employees at three separately called employee meetings
in groups of about 20 employees at the plant, in order to
make doubly certain that the employees would be made
aware of the contents of his letter even before they received
the letter.
After consultations with labor law attorneys about the
legality of the contents of his letter, McGarry on November
26, 1975, sent a followup letter to the employees in which he
3 The above-quoted excerpt is part of the paragraph from McGarry's
letter of November 13, 1975, as set forth in full in the opening pages of this
Decision.
DOUGLAS DIVISION
stated his purpose was to, "to clear things up on my own -
even though our lawyers would prefer that I keep my mouth
shut." In this new letter under the caption "FACT # 1
REVISITED," McGarry stated that, "The Company is not
going to close our plant if the union wins the election!" He
expressed surprise that he had to reassure the employees on
that score in view of the fact that, "when a group of our
plant employees asked to meet with me on November 6,
somebody asked me if the Company was planning on
closing the plant if the union won the election, and I
answered `No.' "4
However, after making this reassurance of no plant
closure if the Union won the election, McGarry restated
and reemphasized in his letter of November 26 the reasons
for the closing of the predecessor plant in Bronson,
Michigan, practically word for word as he had stated in his
earlier letter of November 13 to the employees, as hereto-
fore quoted in the opening pages of this Decision. In
pertinent part that reiteration appears in the November 26
letter as follows:
Now that I've said that [i.e. no plant closing if the
Union won the election], I believe I also ought to repeat
some of the things I said in Fact # 1 [i.e., in the earlier
letter of November 13 ] You see, it really is true that the
Douglas operations in Walnut Ridge used to be in
Bronson, Michigan. Before our plant opened in 1972,
Douglas made all of its vacuum cleaners up in Bronson,
and those cleaner employees belonged to one of the
biggest unions in the world and they had a fine union
contract. And then in 1972, Douglas built this new plant
in Arkansas and now we are making all of Douglas'
vacuum cleaners, and a lot of nice people up in
Michigan lost their jobs. That's right - now it's your
plant and your job and your wages and your benefits.
And, to be completely truthful, the reason our plant and
our jobs are in Arkansas instead of Michigan is because
collective bargaining simply pushed the costs of making
vacuum cleaners too high, and Douglas couldn't be
competitive with other cleaner companies. That's not a
threat - it's a fact - and it's FACT # 1. Think about it.
Discussion and Conclusions
Respondent relies on McGarry's express assurance in his
letter of November 26, 1975, that, "The Company is not
going to close our plant if the Union wins the election," and
McGarry's earlier same but incidental assurance made to a
small group of employees, as a complete defense to the
allegation of the complaint that he "threatened its [Respon-
dent's] employees by telling the employees that Respon-
dent would close its plant if the employees selected the
Union as their collective-bargaining representative."
I find and conclude, however, that McGarry's November
26 letter of assurance of no plant closure, even if the Union
won the election, did not remove the coercive effect of
McGarry's earlier raw and powerful but indirect threat of
November 13, that union representation at the Walnut
Ridge plant could cause the Walnut Ridge employees to
4 This statement by McGarry is in accord with a prior finding that at an
employee requested meeting with McGarry with respect to the benefits the
employees could expect without a union , McGarry in response to a chance
1019
suffer the same fate and loss of jobs the Bronson employees
had suffered when Respondent closed the Bronson plant
because of the rising costs of operating under collective-
bargaining agreements. This conclusion is compelled by the
fact that McGarry's November 26 letter not only again
reminded the Walnut Ridge employees of the fate of the
Bronson employees in the precise words of the earlier letter,
but by this very reminder again indirectly rethreatened the
Walnut Ridge employees with the possible loss of their jobs
if they voted the Union in, notwithstanding McGarry's
assurances to the contrary. While I do not discredit
McGarry's asserted promise of no immediate plant closure
even if the Union was voted in, I find that his reminder to
them of the fate of the Bronson employees had a new
coercive and deterring effect on the Walnut Ridge employ-
ees, designed to make them fear that the selection of the
Union as their bargaining representative could be the
starting point for the eventual closing of the Walnut Ridge
plant. As heretofore shown, McGarry in an earlier letter to
the Walnut Ridge plant employees , seeking to stem the
union activity at the plant, had indirectly called the
attention of the employees to the flexibility of the parent
Company to open and close plants in the following words:
You know, our Douglas plant in Arkansas is just one
small part of the Scott & Fetzer Company. Scott &
Fetzer has many plants all over the country, some with
unions and plenty without.
Although there is a line of cases which holds that an
employer may relieve itself of liability for coercive conduct
by an unambiguous repudiation, I find that this alleged
affirmative defense is not open to Respondent under its
disavowal of any intent to immediately close the plant if the
Union won the election as stated in its letter of November
26 because that very letter also reiterated the earlier veiled
threat of a possible eventual loss of jobs for the Walnut
Ridge plant employees on the basis of what had happened
to the Bronson plant employees when the Respondent
closed the Bronson plant. All other defenses are likewise
found without merit.
In summary, I find and conclude that Respondent's
veiled threats of plant closure in its letters of November 13
and 26, 1975, in the event the employees voted to have
union representation , constitute violations of Section
8(a)(1) of the Act.
B. Issues as to Unlawful Interrogations and
Solicitation of Grievances
The complaint alleges numerous allegations of unlawful
interrogations of various employees by top management
personnel. These interrogations commenced not long after
the Union started to organize Respondent's plant sometime
in late September 1975. The Company under a letter to its
employees, dated October 16, 1975, signed by aforemen-
tioned General Manager McGarry, took official notice of
the Union's attempt to organize the plant and sought
therein to combat the campaign by asking the employees to
question gave assurance that the plant would not be closed if the Union won
the election.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be wary of "any empty promises that might come from the
union." Although the letter itself5 is not alleged to be in
violation of the Act, it is indicative of the motivation for the
interrogations alleged by the complaint.
The record shows that Respondent through its supervi-
sors interrogated eight of its employees concerning their
union membership activities and desires . These will be
taken up generally in the time sequence shown in the
complaint. Respondent has not offered any rebuttal defens-
es to these interrogations but does assert other defenses
thereto.
Brenda Graither. Graither has worked at the Walnut
Ridge plant for about 3-1/2 years but at the time of the
hearing she was in layoff status . Before her layoff she was
employed as a timekeeper and quality control inspector.
Her direct supervisor was Nathan Howard, personnel
manager. Her unrebutted and wholly credited testimony
shows the following interrogations. In the morning of
October 9, 1975, Howard looked her up at her desk and
asked her if she had been approached by other employees
in the plant about organizing the plant. She replied she had
but declined to answer any further questions about the
Union except in the presence of a fellow employee witness.
Later that morning Howard called Graither into his office
and again sought to question her about the Union because
as he said the Company had to know something of what
was going on in the plant before they consulted counsel.
Graither again politely declined to answer any questions
about the Union unless Howard gave her permission to
have a coworker present during her interrogation . Howard
chose not to press the issue then , but a few moments later
he again summoned Graither to the office with notice to her
that she could bring a fellow employee with her to witness
her interrogation. She asked if she could bring anyone and
was told that she could bring any employee except
Henrietta Tate and William Allen, Jr., who the record
shows Respondent believed were union activists. Graither
then selected coworker Debbie Osburn to be her witness at
her interrogation.
The meeting actually took place in General Manager
McGarry's office with both McGarry and Howard present
for the interrogation. McGarry asked Graither if the
employees were seeking to organize the plant and she said
that they were. McGarry then asked why the employees
were organizing and Osburn intercepted and replied, "for
higher wages, better working conditions and better bene-
fits." McGarry then asked how many union authorization
cards had been signed and Graither replied that 65 percent
of the employees in the plant had signed cards. McGarry
also inquired if the Union had filed an election petition and
Graither replied that a petition had been filed.
Henrietta Tate. Tate has been in the employment of the
Company for 4 years and is employed as a service clerk in
the shipping department . Her unrebutted and wholly
credited testimony shows the following interrogation. On
October 20, 1975, Personnel Director Howard approached
Tate at the plant and asked her what she thought about
Plant Manager McGarry's letter to the employees of
October 16, 1976, and about President Kornstein's speech
5 This is the letter also alluded to earlier for the sentences reading, "You
know, our Douglas plant in Arkansas isjust one small part of Scott & Fetzer
thereon or reading thereof at the employees' meeting of the
same date . This was a reference to the letter heretofore
referred to in which the Company, in seeking to counteract
the union organizational campaign, advised its employees
to be wary of "any empty promises that might come from
the Union." Sensing that Howard was probing to find out
how she now felt about the Union, Tate told Howard "that
he didn't really want me to tell him what I thought about
the letter." Although the letter bore the signature of Plant
Manager McGarry, the record shows that the letter was
actually drafted by Howard. I find that Howard's interro-
gation of Tate about the letter was a coercive but abortive
attempt to find out if the letter was having any adverse
effect on the union campaign to organize the plant.
William Franklin Allen, Jr. Allen, a young man, worked
for the Company as a shipping clerk for about 3-1/2 years,
prior to November 1975 when he quit his job to enter the
ministry. (He was one of the "two witnesses" who Person-
nel Director Howard had told the aforementioned employ-
ee Graither would not be acceptable to him as Graither's
witness during her interrogation by management about the
union activity at the plant.) Allen's unrebutted and wholly
credited testimony shows the following interrogations, one
by Howard, the aforementioned personnel manager, and
another date by Al Stainer , the plant superintendent . In late
October 1975, Howard engaged Allen at the plant in a
conversation. Howard asked Allen if he had heard Presi-
dent Kornstein's speech of October 16, 1975, which
consisted primarily of a reading to the assembled employ-
ees of Plant Manager McGarry's aforementioned letter of
the same date in which the Company warned the employees
to be wary of union promises during its campaign to
organize the plant. When Allen informed Howard that he
was not at the plant when Kornstein spoke to the assembled
employees, Howard told Allen, "that Mr. Kornstein said
they didn't want a union in the factory." Howard then
asked what Allen thought about McGarry's letter. Allen
avoided the question by asking Howard "what was I
supposed to think about it?" In response , Howard "just
kind of laughed," thus ending the conversation.
Allen's further unrebutted and wholly credited testimony
shows that Plant Supervisor Stainer on October 23, 1975,
upon Allen's return to work after a week 's vacation, asked
Allen how McGarry's above-described letter of October 16
had "grabbed him." Allen in answer merely smiled and
shrugged his shoulders and this caused Stainer to ask, "Oh,
it didn't grab you, huh?" Allen replied in the affirmative,
"Uh-uh," by which I fmd he meant that the McGarry letter
did not dissuade him from supporting the Union.
Mary Ditto. Ditto has been employed by the Company
for somewhat over 2 years as a sort of general helper
throughout the plant under General Foreman Bill Mullins.
Her unrebutted and wholly credited testimony shows the
following interrogation . On an unremembered day in
October 1975 , Foreman Mullins approached Ditto at work
and asked her, "What do you think about the mess that
everything's in right now." Although Stainer did not
mention the word "union," it is clear from the context of
Ditto's unrebutted testimony that Mullins was indirectly
Company . Scott & Fetzer has many plants all over the country, some with
unions and plenty without."
DOUGLAS DIVISION 1021
interrogating her about the union activities at the plant and
where her sympathies lay. In reply to Mullins's question,
Ditto mentioned that she had lost 3 days' work in the plant
due to an improper layoff when an employee of lesser
seniority was retained. She went on to tell Mullins that, "If
we would have a union . . . I would have got paid for the 3
days that I missed."
Becky Ditto. Becky Ditto is a sister-in-law of the
aforementioned Mary Ditto. She has been employed at the
plant for 2-1/2 years and, like Mary, she is also a general
worker around the plant and likewise works under General
Foreman Mullins. Her unrebutted and wholly credited
testimony shows the following interrogation. In the latter
part of October, Mullins approached her in the factory and
asked her what she "thought about the problem they was
having out there." Although Mullins did not mention the
word "union" when he asked Becky for her thoughts
"about the problems," I infer and fmd that Mullins was
trying to find out how Becky felt about the Union at a time
when it was common knowledge among the employees and
management personnel that the Union was attempting to
organize the plant. Becky avoided the question by saying,
"I don't know."
Carolyn Sue Hill. Hill, an assembly line worker, has been
in the employment of the Company for nearly 4 years and
works under the supervision of the aforementioned Plant
Superintendent Stainer. Her unrebutted and wholly credit-
ed testimony shows the following interrogation. In Novem-
ber or possibly in late October 1975, when the Union was
engaged in its campaign to organize Respondent's plant,
Stainer approached Hill on the assembly line and asked
her, "What do you think of our little problem?" without
specifically mentioning the Union. She fended the question
by asking, "What little problem?" and Stainer did not
pursue his interrogation. I infer and fmd that Stainer was
attempting to feel Hill out about her sympathies for the
Union, as it was common knowledge among the employees
at that time that there was quite a bit of excitement at the
plant both among the employees and management person-
nel about the then current campaign to organize the plant.
Richard Monroe. Monroe has been in the employment of
the Company as a painter for some 6 months under the
supervision of the aforementioned General Foreman Mul-
lins. (As shown above, Mullins is the same supervisor who
had unlawfully interrogated Mary Ditto and Becky Ditto.)
Monroe's unrebutted and wholly credited testimony shows
the following interrogation. At an unremembered date after
the Union started to organize the plant, probably sometime
in October 1975, Mullins approached Monroe and asked
him, "what was the trouble in the factory?" I infer from this
question and the similar questions Mullins put to Mary and
Becky Ditto that Mullins was seeking to interrogate
Monroe about his interest in the Union. Monroe replied,
"That I didn't really know."
Bonita Webster. Webster was briefly employed by Re-
spondent in its molding department from about October 1
to about November 15, 1975, when she was laid off and is
now employed elsewhere. On the issue of the solicitation of
employee grievances by President Vincent Kornstein,
6 As heretofore shown the testimony by other employees shows that
Kornstein's speech consisted primarily of a reading of Plant Manager
Webster's unrebutted and wholly credited testimony shows
the following. On October 17, 1975, she attended an
employee meeting at the plant which was addressed by
President Kornstein6 on the occasion of his first visit to the
plant. During the course of his speech which sought to
dissuade the employees from supporting the Union, Korn-
stein told the assembled employees that, if they had any
"troubles," they should "feel free to come into the office" to
discuss them with management as the door to the front
office was always open to them as it had been several
months ago when some of the women at the plant had
signed a petition asking for a review of their wage scale
which resulted in an improved wage scale. Webster's
testimony further shows that at the time she began her
employment with Respondent she was given a copy of an
employee handbook, entitled "Policies and Procedures,"
which under the heading of "Problems" gives each employ-
ee the opportunity to discuss any problems he or she has at
the plant with the employee's immediate supervisor and, if
the problem is not resolved, then with general foremen and,
if the problem is still not resolved, then with the plant's
general manager. The full test of that section of the
handbook reads as follows:
PROBLEMS
Any employee who has a problem should always feel
free to discuss his problem with his immediate foreman
or supervisor. If after doing this the employee does not
receive an answer or is not satisfied with the answer
received from his immediate superior, he should request
of such superior that he be permitted to discuss the
problem with the general foreman or general supervisor
to whom the foreman or supervisor is responsible.
Arrangements for such a discussion will be made by the
foreman without undue delay.
If no answer is received or if the answer received is not
satisfactory in this second discussion, the employee may
request that his problem be further aired with the next
higher management representative, and so on, to the
general manager of the Plant.
Discussion and Conclusions
Respondent's brief seeks to characterize the above-de-
scribed interrogations by management personnel of Re-
spondent's employees on their union sympathies and
activities as "casual inquiries" or as "joking" inquiries and
therefore lacking the quality of coercion required for
violations of the Act. Respondent also contends that
General Foreman Mullins' inquiries of employees on what
they thought about the "problem" at the plant or "the mess
that everything's in right now" is "too ambiguous and
minimal an inquiry to constitute interrogation of employees
as to their Union activity."
While the record does show that the questions put by
management personnel to the employees about their union
sympathies were often couched in indirect language and
asked in a casual or even joking manner, I find and
McGarry's heretofore noted antiunion letter of October 16,1975, to the plant
employees.
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclude from the number of the employees so interrogat-
ed, from the number of the top management personnel who
engaged in the interrogations, and from the ways the
employees by their cautious answers generally regarded the
questions to be interrogations into their union sympathies
and activities, that the interrogations, individually and
collectively, were coercive in intent and were so regarded
by the involved employees, despite the casual and indirect
manner in which the questions were put.
The above fording is reinforced by the fact that Respon-
dent did not see fit to call any of the management people
involved in the described interrogations to rebut the fact
that such interrogations did take place or to deny that the
purpose of the interrogations was for any purpose other
than to ferret out the employees in the plant who were
union sympathizers and activists. The finding is further
reinforced by the fact that virtually all of the interrogations
took place after the Company had discovered the union
activity at its plant and after the Company had taken action
to counteract such union activity by Plant Manager
McGarry's aforenoted letter of October 16, 1975, to all the
plant employees in which he frankly and openly stated the
Company's opposition to the Union. The letter by its
contents clearly indicates that, as of October 16, the
Company had had legal advice as to what it could or could
not do under the law to oppose the efforts of the Union to
organize its plant.? It is noteworthy that, prior to the date of
its letter and obviously before receiving legal advice,
Respondent through Plant Manager McGarry engaged in a
raw and outright unlawful interrogation of employee
Brenda Graither as to the union activity going on at the
plant. Thus, as shown above, McGarry, as early as October
9, 1975, asked Graither not only whether the Union was
seeking to organize the plant but also the percentage of the
workers who had signed union authorization cards. But,
thereafter, and obviously following legal advice, the Com-
pany's interrogation as to union sympathies and activities
became indirect and disguised as questions on the "prob-
lem" or the "mess" at the plant, but the purpose remained
the same, to ferret out union sympathizers and activists. I
further find that these disguised interrogations, whether
intended or not, had the coercive effect of making the
employees fearful of expressing any union interest because
of possible company reprisals. I accordingly find that
Respondent's so-called "casual" or "joking" interrogations
about the union activity at the plant are interrogations of a
coercive nature despite their indirection because they
tended to interfere with the employees' exercise of rights
guaranteed under the Act. Florida Steel Corporation, 215
NLRB 97 (1974). I also fmd all other defenses to the
interrogations to be without merit.
In sum, I find and conclude that Respondent is in
multiple violation of Section 8(a)(l) of the Act by reason of
its numerous coercive interrogations of its employees on
their union sympathies and activities, substantially as
alleged in the complaint.
Respondent contends that, even if the above-described
interrogations are found to be unlawful, the Company
should nevertheless not be found in violation of the Act by
reason of Plant Manager McGarry's letter of November 26,
1975, to the employees by which Respondent contends
there has been a retraction of the unlawful interrogations
by reason of McGarry' s statement therein, after consulta-
tion with counsel, "that the Company is completely
opposed to any interrogation or surveillance concerning
union activities." For reasons stated in the following section
of this Decision, I find Respondent's alleged retrac-
tions of the unlawful interrogations to be ineffective as
retractions.
In support of the allegation of the complaint that
Respondent Plant Superintendent Al Stainer on or about
October 18, 1975, solicited grievances from the Company's
employees in order to dissuade them from supporting the
Union, counsel for General Counsel appears to rely on the
above-described testimony of employees Mary and Becky
Ditto, Carolyn Hill, and Richard Monroe. My above
findings on the testimony of these employee-witnesses and
the description of their testimony in General Counsel's
brief fail to show that Superintendent Stainer solicited
grievances of any kind, in the commonly accepted mean-
ings of that word, from the indicated employees for the
purpose of dissuading them from supporting the Union.
Accordingly, I will recommend the dismissal of the in-
volved allegation of the complaint for failure of proof.
In support of the allegation of the complaint that
Respondent President Kornstein, "solicited grievances
from its employees in order to dissuade them from
supporting the Union," General Counsel relies on the
unrebutted and wholly credited testimony of former short-
time employee Bonita Webster that Kornstein in mid-
October 1975 in a speech to the assembled plant employees
told them to "feel free to come into the office" to discuss
any troubles they had in their employment at the plant.
However, as shown in the findings, Webster's testimony
also shows that Kornstein's invitation to the employees to
take up any problems they may have with the front office
was merely a reiteration of the Company's long established
"open door" policy to individual employee problems as set
forth in the Company's employees' handbook of which
Webster received a copy as a new employee before the
Union had commenced its campaign to organize Respon-
dent's plant.
In view of the fact that the Company's employees'
handbook work rules were published and distributed to the
employees long before the Union began its campaign to
organize the plant, I find and conclude that Kornstein's
reminder to the assembled employees of the rights of
employees under the company rules to present grievances
to all succeeding levels of resident supervisors at the plant
did not become violative of the Act merely because the
reminder took place during the heat of a union organiza-
tional drive.
I accordingly further find and conclude that there was a
failure of proof that Kornstein solicited grievances from
Respondent's employees in order to dissuade them from
supporting the Union as alleged in the complaint merely by
his reminder to the employees of their appeal rights on
personal grievances through company channels under a
r The letter, for example, states , "Under Federal law, Douglas cannot try
to win votes during the campaign by improving wages or benefits or by even
promising to make any future improvements in wages and benefits."
DOUGLAS DIVISION 1023
company rule adopted and established long before the
present union activities commenced at the plant. It is
obvious that Kornstein , in reminding the employees of their
rights under company rules to process grievances through
company channels, was not soliciting grievances for better
wages or benefits because in his speech to the employees
Kornstein read the aforementioned sentence from Plant
Manager McGarry's letter of October 16, 1975, to the
employees, to wit: "Under Federal law, Douglas cannot try
to win votes during the campaign by improving wages or
benefits or by even promising to make any future improve-
ments in wages and benefits."
For the above-stated reasons I will likewise recommend
the dismissal of the allegation that Respondent through
President Kornstein solicited grievances in order to dis-
suade its employees from supporting the Union because of
failure of proof.
C. Issue as to Surveillance Impression
The complaint alleges that in the latter part of October
1975 Respondent's aforementioned plant superintendent,
Stainer, "created the impression" that the Company had
the union activities of its employees under surveillance.
The employee who testified in support of the above
allegation is the aforementioned Henrietta Tate.8
Tate's unrebutted and wholly credited testimony shows
the following evidence on the impression of surveillance
issue . At or around the date of October 20, 1975, Plant
Superintendent Stainer contacted Tate in the shipping
department and asked her if her aforementioned coworker,
William Allen, Jr., who was then on a week's vacation from
the plant, had received Plant Manager McGarry's hereto-
fore described letter of October 16, 1975, setting forth the
Company's opposition to the Union. Tate said she did not
know because she had not spoken to Allen. Stainer
commented that he "figured" that Allen already knew
about the union activity at the plant and laughingly added,
"I figured you two [Tate and Allen] were one of the biggest
ducks in the puddle." Tate responded that she did not know
about that. Stainer thereupon taunted her, "You do know,
don't you?" and Tate answered, "It's more than just one or
two; it's more like everybody." Stainer responded, "Oh,"
and walked away.
As part of its affirmative defense on the impression of
surveillance issue as well as on the interrogation issues,
Respondent has alleged that, if the violations are found,
they "were isolated in nature and/or were effectively and
fully retracted by Respondent." In proof of the "retraction"
defense, Respondent relies on the "P. S." or postscript to
Plant Manager McGarry's heretofore noted letter of
November 26, 1975, to all the employees in the plant .9
The postscript to McGarry's November 26 letter reads as
follows:
P. S. I just talked to one of the Company lawyers and
he wants me to let everybody know that the Company is
completely opposed to any interrogation or surveillance
concerning union activities . Quite frankly, all of these
8 In an earlier section of this Decision it was found that Tate on October
20, 1975, had been unlawfully interrogated by Personnel Director Howard.
9 The body of that letter was quoted and discussed above in connection
legal rules are pretty hard for me to understand and I
know that I haven't intentionally done anything wrong.
However, if I have questioned any of you about your
union feelings, I want to apologize and assure you that I
won't do it again - and that also goes for Dave and
Nate and Al. All we want is a fair campaign with a lot of
honest talk about some of the problems and difficulties
that can come from this union and collective bargaining
- just the Facts - nothing more and nothing less.
The phrase in the letter reading, "and that also goes for
Dave and Nate and Al," are references to David Colbert,
the Company's molding operations manager, Nathan
Howard, the Company's personnel manager, and Al
Stainer, the Company's plant superintendent, respectively.
I find no references to David Colbert in the transcript of the
testimony in the case or in the briefs of counsel.
In connection with the timelessness of the above -alleged
retractions under the PS in McGarry's letter, I take official
notice of the pending representation case involving Re-
spondent in Case 26-RC-5134, pursuant to the request of
General Counsel. (See fns. 8 and 15 in his brief.) The
petition in the representation proceeding, filed on October
14, 1975, is currently blocked by the instant unfair labor
practice case.
Discussion and Conclusions
Under the complaint herein all of the numerous unfair
labor practices charged to Respondent, except one, are
alleged to have taken place in the month of October 1975.
Respondent showed official cognizance of the union
activity going on at its plant in October by its letter of
October 16, 1976, to its employees. The findings in the
previous section of this Decision show that all of Respon-
dent's many unlawful interrogations took place in the same
month of October. The above-described and undisputed
conversation on the issue of Respondent's creation of the
impression of surveillance of union activity also took place,
as shown, in the same month of October. In the light of
these facts I adduce and find that in the month of October
the matter that was uppermost in the minds of both
management personnel and Respondent's rank-and-file
employees was the then ongoing campaign by the Union to
organize Respondent's plant.
Under these circumstances I infer and find that when
Plant Superintendent Stainer, as shown above, laughingly
but undisputedly accused Henrietta Tate along with Allen,
Jr., of being among "the biggest ducks in the puddle,"
Stainer clearly meant and conveyed to Tate that she and
Allen, Jr., were among the leaders in the Union's campaign
to organize the plant. I find that Tate clearly and instanta-
neously understood that to be the meaning of Stainer's
remark as disclosed by her reply, "It is more than one or
two; it's more like everybody."
I, therefore, find and conclude that Stainer's remark to
Henrietta Tate that she and Allen, Jr., were the "biggest
ducks in the puddle" was not an ambiguous remark as
contended in defense by Respondent but, on the contrary,
with the issue described under the caption , "Issue as to the Threat To Close
Plant f Union got in. " Under the present discussion , we are concerned only
with McGarry's postscript to the letter after his signature.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the remark clearly and unambiguously conveyed the
impression to Tate that Respondent had been keeping
employee union activity at the plant under surveillance as
alleged in the complaint in violation of the Act.
Respondent's second defense to the impression of surveil-
lance issue , if decided adversely to Respondent as so
decided above, is that the complaint thereon is nevertheless
subject to dismissal because of Respondent 's alleged
retraction of its unfair labor practices as set forth in the
above-quoted postscript in Plant Manager McGarry's letter
of November 26, 1975, wherein McGarry in behalf of
himself and Personnel Manager Howard and Plant Super-
intendent Stainer apologized for any "surveillance concern-
ing union activities" as well as for "any interrogation" and
assured the employees that there would be no repetition of
such unlawful conduct in the future.
While it is established that an employer may relieve
himself of liability for coercive conduct by repudiation, it is
also established that a repudiation , in order to be effective,
must be "timely," "unambiguous," "specific in nature to
the coercive conduct," and "free from other prescribed
illegal conduct." Sequoyah Spinning Mills, Inc., 194 NLRB
1175, 1192 (1972); Chicopee Manufacturing Corporation of
Georgia, 85 NLRB 1439, 1442 (1949); Salant & Salant,
Incorporated 92 NLRB 417, 444-446 (1950); Livingston
Shirt Corporation, etc., 107 NLRB 400, 402-403 (1953);
Austin Powder Company, 141 NLRB 183, 191-192 (1963);
Hart Beverage Co., Inc., d/b/a Pepsi-Cola Bottling Co. of
Sioux City, Iowa, 170 NLRB 438, fn. 4 (1968); and
Fleetwood Trailer Co., Inc., 118 NLRB 1355 (1957).
I find that General Manager McGarry's attempted letter
repudiation of November 26, 1975, of many of the
Company's unfair labor practices during the preceding
month of October was too late and, accordingly, too
untimely to meet the requirements of law to erase the
effects such unfair labor practices would have on the results
of an election for which the Union had petitioned the Board
on October 14, 1975, unless remedial action is granted and
complied with by Respondent.
I also find that McGarry's attempted repudiation does
not have the "unambiguous" quality required under the
statute to save Respondent from remedial liability . This is
evident from the fact that McGarry by his letter does not
squarely acknowledge that any of the alleged unfair labor
practices have been committed, but merely states that "if"
he and his named supervisory associates have engaged in
any unlawful interrogations, they apologize and promise
that they "won't do it again." Moreover, while the letter
states that upon legal advice the Company is opposed to
"surveillance concerning union activities ," as well as to
unlawful interrogations, the letter is totally devoid of any
express repudiation of the Company's above-found con-
duct in creating an impression of surveillance of its
employees' union activities. In the letter McGarry further
states that it was "pretty hard" for him to understand even,
under the advice of counsel, that he had "intentionally done
anything wrong." This is a further factor reflecting the
ambiguity of Respondent's alleged repudiation.
Finally, McGarry's repudiation letter fails to meet the
legal requirements that a repudiation must be "specific in
nature to the coercive conduct," because the letter fails to
make any reference to General Foreman Mullins' above-
found undisputed interrogations of employees on their
union sympathies and activities which by their inherent
nature were coercive. Thus, there is a total failure of proof
ofany repudiation of Mullin's unlawful interrogations.
As aforenoted the alleged repudiations here under
consideration are not a part of the body of McGarry' s letter
of November 26, 1975, but appear therein as a postscript.
The body of the letter contains antiunion propaganda. The
alleged repudiations by McGarry's postscript are oversha-
dowed and outweighed by the antiunion propaganda in the
body of the letter; thus, the repudiations, even if they were
per se valid, would not constitute an effective substitute for
a Board order requiring Respondent to cease and desist
from the unfair labor practices here under consideration.
In sum, I find and conclude for the reasons above stated
that Respondent's affirmative defenses of a retraction of
both Respondent's unlawful interrogations and its creation
of an impression of surveillance of the union activities of its
employees are without merit and do not constitute effective
substitutes for an appropriate cease -and-desist order here-
in.
D. Issue as to Alleged Invalid No-Solicitation Rule
The evidence shows that Respondent has a printed
handbook of employee rules which is distributed to all
employees, heretofore referred to in another connection,
the front cover of which bears the title, "Policies and
Procedures." On the subject of solicitations, the handbook
states the company policy as follows:
NO SOLICITATION POLICY
Employees shall not engage in solicitations of any kind
on the premises of the Company during their working
hours. . . . [Emphasis supplied.]
The record shows that the above policy rule was
promulgated by Respondent in the commonly accepted
sense of having been posted and also circulated among the
employees. Respondent, however, denies that this policy
rule was maintained and enforced as alleged in the
complaint.
The same employee handbook also contains a related
concurrent no-solicitation rule under the general caption
of, "Plant Rules and Regulations," which reads in pertinent
part as follows:
2. Employees shall not engage in any solicitations of
any kind on the premises of the Company during
any time that they are expected to be working.
Furthermore, employees shall not distribute any
kind of notices, circulars, or written materials at
any time that they are expected to be working....
[Emphasis supplied.]
I find the above concurrent plant rule and regulation to
be a clarification of Respondent's aforenoted "No Solicita-
tion Policy."
The record shows that the Company's above-described
employee handbook, containing its "No Solicitation Poli-
cy" and its "No Solicitation Rule," was printed and
DOUGLAS DIVISION
distributed at a time when no union activity was going on at
Respondent's plant.
Although the above first-quoted "No Solicitation Policy"
on its face 10 appears to prohibit solicitations of any kind by
employees "during their working hours," the undisputed
record shows that Respondent has made no attempt to
maintain and enforce that no-solicitation policy during any
rest and lunch periods. This is established by the unrebut-
ted testimony of the aforementioned former employee,
Bonita Webster, one of General Counsel's witnesses, who in
her period of employment at the plant became an ardent,
active, and uncompromising solicitor of union support. Her
undisputed testimony shows that during break periods she
solicited support for the Union, regardless of whether or not
any supervisors were within earshot, without any hin-
drance, interference, or restraint from management person-
nel. Her undisputed testimony further shows that these
break periods were also used to solicit money for the benefit
of the sick children of fellow employees and in connection
with funerals, without hindrance, interference, or restraint
from Respondent.
Under the above evidentiary findings, I find and con-
clude that Respondent's "No Solicitation Policy," as
clarified by Respondent's concurrent "No Solicitation
Rule," and as further clarified by actual practice, does not
bar solicitations for union support during rest and lunch
periods, but prohibits such solicitations only during work-
ing time.
Discussion and Conclusions
Counsel for General Counsel in his brief offers no
rationale for his requested ruling that Respondent's "No
Solicitation Policy," as clarified by Respondent's concur-
rent "No Solicitation Rule" and as further clarified by
actual practice, is violative of the Act but appears to leave it
up to the Administrative Law Judge to supply such
rationale. I find that the cases cited by Respondent and my
own research fails to supply any rationale or justification
for a holding that Respondent's "No Solicitation Policy,"
under the above expressly stated circumstances, is unlaw-
ful. On the contrary, the principal case relied on by General
Counsel, Essex International, Inc., 211 NLRB 749 (1974), is
in itself authority for the dismissal of the allegation of the
complaint charging a violation of the Act by reason of
Respondent's "no solicitation policy."
Although the Essex case does hold that a company rule
prohibiting solicitations "during working hours" is prima
facie invalid, the Essex case also holds (at 750) that an
employer may "show by extrinsic evidence that, in the
context of a particular case, the `working hours' rule was
communicated or applied in such a way as to convey an
intent clearly to permit solicitation during breaktime or
other periods when employees are not actively at work." In
the present case Respondent has shown by both intrinsic
and extrinsic evidence that its no-solicitation policy applied
only to working time. The "intrinsic evidence" is that the
very employee handbook in which Respondent's no-solici-
tation policy "during work hours" is printed also carries a
10 As distinguished from Respondent 's concurrent "No Solicitation"
plant rule.
i l The notice also stated , "In addition to the above, we wish to bring to
1025
clarification rule which as shown prohibits solicitations by
employees only "during the time they are expected to be
working." The "extrinsic evidence" is that Respondent has
not enforced its no-so';citation policy in break periods, as in
actual practice union solicitations during break periods
have been permitted in the plant without any hindrance,
interference, or restraint by Respondent.
For these reasons the allegation of the complaint here
under consideration will be recommended for dismissal
because of failure of proof.
E. Issue on Validity of Posted Notice Limiting Use
of Women's Restroom
In the latter part of October 1975 Respondent posted the
following notice on the door of women's plant restroom:
Final Notice
This notice is to bring to your attention that the
Company will not tolerate any further abuse by certain
employees using the women's restroom. It has been
observed that as many as two to six employees are
leaving their work stations at the same time. If this
condition is not corrected at once, disciplinary action
will be taken and in certain cases cause immediate
discharge of the employee.11
The record shows through the credited testimony of
Personnel Manager Howard, as corroborated by the
heretofore mentioned employees, Mary Ditto and Brenda
Graither, that the above notice replaced an identical or
similar notice which had been on the door of the women's
restroom for a year or so prior to the posting of the above-
quoted, "Final Notice," except that the caption, "Final
Notice" was not on the first posted notice. At the time of
the posting of the original notice, there was no union
activity at the plant. The old notice was replaced because it
had become torn but more importantly because Howard
had had complaints from General Foreman Mullins and
the line foreman about the use of the restroom for
apparently social reasons by the same group of employees,
and because he (Howard) on checking on these complaints
had personally observed that a certain group of the same
five or six female employees would leave their work stations
at 8 o'clock in the morning and again at or about 2:30 in the
afternoon to congregate in the women's restroom which has
a commodious lounge room in addition to an adjoining
commode room.
This apparent misuse of the women's restroom facilities
has been a problem at the plant from at least since 1973
when Howard took over his duties at the factory as
personnel manager. Howard's testimony, as corroborated
by employee Brenda Graither, shows that from time to time
he has had to admonish certain groups of women about
their excessive misuse of the women's restroom . Howard's
credited testimony further shows that this misuse of the
restroom facilities by a certain group of women became so
acute in October 1975 as to cause him to post the above-
your attention that there is a five-minute period from 3:25 till 3:30 for
cleaning your work areas. Your cooperation in the above memo will be
greatly appreciated and expected "
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
noted stern warning against such misuse in his "Final
Notice."
The record is undisputed that the use of the women's
restroom in nonbreak periods for any use other than for
lavatory purposes has the effect of slowing down Respon-
dent's production and thus adding to the cost of produc-
tion. It is also undisputed that Respondent's female
employees are free to use the ladies' restroom at any time
for strictly lavatory purposes. In this connection, Howard's
credited testimony shows that the Company has, "never set
a limit of two people in the bathroom."
Discussion and Conclusions
For purposes of convenience I requote below the body of
Respondent's "Final Notice" with respect to the use of the
women's restroom in the plant.
This notice is to bring to your attention that the
Company will not tolerate any further abuse by certain
employees using the women's restroom. It has been
observed that as many as two to six employees are
leaving their work stations at the same time. If this
condition is not corrected at once, disciplinary action
will be taken and in certain cases cause immediate
discharge of the employee.
The complaint specifically alleges that the above final
notice, "allows not more than two persons to be in the
restroom at one time," and that Respondent posted the
final notice "because its employees joined or assisted the
Union, or engaged in other union or concerted activities for
the purpose of collective bargaining."
I find first that there is a complete failure of proof that the
quoted "Final Notice," as alleged, "allows not more than
two persons to be in the restroom at one time," because
there is nothing in the final notice that literally bars more
than two women being in the ladies' restroom at one time
for legitimate purposes. It is evident from the very first
sentence in the final notice that the whole thrust of the
notice was against "any further abuse by certain employees
using the women's restroom," and not for the purpose of
imposing any limitation of the number of women simulta-
neously seeking to use the restroom for lavatory purposes as
distinguished from loitering. (Emphasis supplied.) The
undisputed testimony of Personnel Manager Howard, as
corroborated by employee testimony, shows that the
Company "never set a limit of two people in the bathroom"
for lavatory purposes. The employee testimony further
shows that it was well known among the female employees
at the plant that the final notice was meant as a warning
only to certain employees who by prearrangement used the
restroom lounge for simultaneous unauthorized rest breaks.
Secondly, I further find that, even if the ladies' restroom
was used by certain employees for union activities at the
times they were expected to be working, it was not unlawful
12 N.L. R.B v. Express Publishing Company, 312 U.S. 426(1941); N.LR.B.
v Entwistle Mfg Co., 120 F.2d 532 (C.A. 4, 1941); Consolidated Industries,
Inc, 106 NLRB 60(1954), and cases cited therein.
13 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
under the Essex case, supra, for Respondent to prohibit
such use of the restroom during working time.
In conclusion I find and conclude that Respondent
promulgated and maintained the above-quoted restroom
rule for substantial business reasons and not because of
union activity.
For these reasons, I will recommend the dismissal of
allegations of the complaint here under consideration for
failure of proof.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The above-named Respondent is an employer en-
gaged in commerce within the meaning of Section 2(6) of
the Act.
2. The above-named Union is a labor organization
within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action of the type
which is conventionally ordered in such cases as provided
in the recommended Order below, which I find necessary to
remedy and to remove the effects of the unfair labor
practices and to effectuate the policies of the Act. Because
of the character and scope of the unfair labor practices
found, I shall recommend a broad cease-and-desist order.12
Upon the foregoing findings of fact and the entire record
in this proceeding, I make the following:
ORDER 13
The Respondent, Douglas Division, The Scott & Fetzer
Company, Walnut Ridge, Arkansas, its officers, agents,
successors, and assigns, shall:
I. Cease and desist from:
(a) Threatening its employees that it would close its plant
if they selected the Union as their collective-bargaining
representative.
(b) Interrogating its employees concerning their union
membership, activities, and desires.
(c) Creating the impression that the union activities of its
employees are under surveillance by the Company.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act.
conclusions , and recommended Order herein shall, as provided in Sec . 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes.
DOUGLAS DIVISION
(a) Post at its plant in Walnut Ridge, Arkansas, copies of
the attached notice marked "Appendix." 14 Copies of said
notice, on forms provided by the Regional Director for
Region 26, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
14 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
1027
ensure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS ALSO ORDERED that, as to all allegations of the
complaint not specifically found to have been in violation
of the Act, those allegations shall be dismissed.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."