Trw Corp.

National Labor Relations Board - Board Decisions

Jul 29, 1988

290 N.L.R.B. 6 (N.L.R.B. 1988)

6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
TRW Vidar, a Division of TRW Corporation and
Teamsters-Warehousemen Local 381, Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America, AFL-
CIO.' Case 31-CA-10771
July 29, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
BABSON AND CRACRAFT
On June 9 , 1983, Administrative Law Judge
Jesse Kleiman issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings , findings,2 and
conclusions only to the extent consistent with this
Decision and Order and to adopt the recommended
Order as modified.
i On November 2, 1987 , the Teamsters International Union was read-
mitted to the AFL-CIO. Accordingly , the caption has been amended to
reflect that change.
2 The Respondent has excepted to some of the judge 's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d Cir. 1951)
We have carefully examined the record and find no basis for reversing
the findings.
0 We agree with the judge that the Respondent discriminatorily en-
forced its no-access rule in violation of Sec 8(a)(1) when it refused to
allow off-duty employees the use of the company cafeteria to discuss the
Union, while allowing other off-duty employee groups the use of the caf-
eteria for nonwork-related activities . However , in affirming the judge's
decision in this regard , we do not adopt his reliance on A. W. Schlesinger
Geriatric Center, 263 NLRB 1337 (1982 ). Fn. 2 of the Board's decision in
A. W. Schlesinger reveals that the Board did not find in that case that the
respondent there had disparately enforced its no -access rule In addition,
we find it unnecessary to pass on the issue , not raised by the complaint,
of whether the Respondent 's conduct would have violated the Act in the
absence of discrimination . See Methodist Hospital of Gary, 263 NLRB 411
fn. 3 (1982), enfd . 733 F.2d 43 (7th Cir. 1984). We shall modify the
judge's recommended Order to conform to the violation found
Chairman Stephens agrees that the cease-and-desist provisions of the
recommended Order should be modified by deleting the reference to "an
unlawfully broad no-access rule" and replacing it with the provision con-
tained in our modification of the Order . Because he considers the issue
actually litigated , even if not alleged , he would reach this result by grant-
ing the Respondent 's exception to the judge's overbreadth finding on the
ground that Tri-County Medical Center, 222 NLRB 1089 (1976), modified
the holding of GTE Lenkurt, Inc., 204 NLRB 921 (1973 ), only to the
extent that it is now lawful for an employer to maintain a clearly dissemi-
nated rule denying access to off-duty employees only if that rule is limit-
ed in its application to "the interior of the plant and other working areas"
and to those parts of "parking lots, gates and other outside nonworking
areas" for which a business justification for denying access can be shown.
Tn-County, supra Chairman Stephens would adhere to the Tri-County
rule as formulated , and, as the cafeteria is plainly not in an "outside
area," he would find that a rule such as the Respondent 's rule , so long as
it is not discriminatorily enforced , is lawful as applied to the cafeteria.
Chairman Stephens would overrule Hudson Oxygen Therapy Sales Co.,
264 NLRB 61 , 72 fn . 2 (1982), to the extent it holds otherwise.
The judge found that the Respondent's an-
nouncement, 1 week before the representation elec-
tion, that it would lay off a number of employees
was an unlawful , implied threat of layoff if the
Union won the election . The Respondent excepts
to this finding, claiming that the layoffs were justi-
fied by business considerations and that the an-
nouncement thereof was unrelated to the union
campaign . We find merit in the Respondent's ex-
ceptions.
The Union filed its petition for a representation
election on October 9 , 1980; after a hearing on De-
cember 18, 1980 , an election was scheduled for
January 16, 1981,4 at the Respondent 's facilities on
Southwood Drive and Tank Farm Road in San
Luis Obispo , California . The Respondent manufac-
tures telecommunications equipment, including
telephone-switching and transmission devices. It is
uncontested that during the period 1979 to 1980,
the Respondent 's business , which is heavily influ-
enced by the housing market , declined because of
an increase in the mortgage interest rate , which led
to a decrease in the number of housing starts. In
December 1980, the Respondent decided to
remove itself from the telephone -switching busi-
ness, to consolidate some of its operations, and to
reduce the number of employees at certain loca-
tions . There is no claim that the Respondent lacked
a substantial business justification for deciding to
take the action described above.
To effectuate its plan , the Respondent deter-
mined it would (1) phase out 150 employees at its
Sunnyvale, California facility between January and
June 1981 ; (2) lay off employees at the San Luis
Obispo facilities on February 27, 1981; and (3) lay
off employees in Melbourne , Florida, on January
16, 1981 . The Respondent put together an "overall
communication plan" designed to inform all em-
ployees at all affected locations at the same time of
its proposed reductions in force. The Respondent's
plant production manager , Ray Antunez, held a
meeting of Tank Farm Road employees on January
9. Antunez read a letter from the Respondent's
vice president and general manager , A. B. Lips-
comb , explaining the business need for a layoff and
noting that the layoff would affect San Luis Obispo
and Melbourne. Antunez advised the employees
that approximately 19 Tank Farm Road employees
would be laid off on February 27. An employee
who attended this meeting testified that Antunez
did not refer to the Union during his speech.
The Respondent's plant manager, Mac Brinton,
held a meeting with Southwood Drive employees
on January 12. Brinton announced that because of
4 All dates are in 1981 unless otherwise indicated.
290 NLRB No. 2
TRW CORP.
poor economic conditions 19 employees would be
laid off in late February . Vickie Wobermin, an em-
ployee who attended this meeting , testified that
Brinton also stated "with the union organizing
going on, he didn 't want to hide anything. He
wanted to be right up front and let them-let ev-
eryone know that there would be a layoff."
The judge found that the Respondent's an-
nouncement of layoffs during the critical preelec-
tion period constituted an implied threat of loss of
employment in violation of Section 8(a)(1). The
judge questioned the timing of the announcements
at the San Luis Obispo facilities , both of which
were made within 1 week of the January 16 elec-
tion . In this regard , the judge referred to the testi-
mony of Kent Anderson , the Respondent's director
of human resources . Anderson admitted that the
announcement of the employee layoffs at the San
Luis Obispo facilities could have been made after
the election because those layoffs were not to
occur until February 27. The judge thus deter-
mined that the Respondent had some flexibility in
timing the layoff announcements inasmuch as the
actual layoffs were scheduled for different times at
different locations . The judge also was not con-
vinced that the Respondent had a definite company
policy, which required such advance notice of lay-
offs. Finally , the judge referred to the statement
made by Mac Brinton to the Southwood Drive em-
ployees . Considering the facts surrounding the
layoff announcements as well as other evidence of
antiunion hostility, the judge found that the Re-
spondent's layoff announcements were implied
threats of loss of employment in violation of Sec-
tion 8(a)(1).
We do not agree with the judge's findings in this
regard . There is no dispute that the Respondent
had substantial and legitimate business reasons for
consolidating its operations and laying off employ-
ees; there is no claim to the contrary . Additionally,
there is no claim that the timing of the Respond-
ent's decision to consolidate its operations or the
schedule of layoffs was motivated by anything
other than legitimate business reasons.
Unlike the judge , we do not see the timing of the
layoff announcements as lacking in business justifi-
cation . The Respondent has a policy of giving as
much advance notice as possible to employees who
are being laid off. In this particular situation, the
Respondent desired to coordinate its announce-
ments so that all employees at all affected locations
were informed at the same time . The Respondent's
management expressed the need to present a con-
solidated communications plan to all affected em-
ployees so that they would understand the entire
operating plan. As the Respondent had scheduled
7
employee layoffs in Melbourne , Florida , on Janu-
ary 16 , coincidentally the date of the Board elec-
tion , the Respondent had little choice but to make
its announcement prior to that date . Although the
layoff announcements occurred prior to the elec-
tion, there is no evidence that the timing thereof
was for an unlawful purpose.
We also do not agree with the judge's conclu-
sions regarding the statements made by Mac Brin-
ton on January 12 to the Southwood Drive em-
ployees concerning being "up front" with the
"union organizing going on ." The judge concluded
that this statement could be construed by employ-
ees as being a "coercive threat rather than [an]
honest forecast." We do not find anything in Brin-
ton's statement that connects the presence of the
Union to the Respondent 's need to lay off employ-
ees. There is nothing in his statement that , either
expressly or impliedly , contains either a threat of
reprisal or promise of benefit . There is no evidence
that the Respondent was influenced in its actions
by the representation election or that the Respond-
ent acted in any way inconsistent with its usual
business practices . 5 Under these circumstances,
there is nothing in the Act that prohibits an em-
ployer from truthfully advising its employees of
forthcoming layoffs . Accordingly, we find that the
Respondent did not violate the Act by announcing
employee layoffs.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, TRW Vidar, a Division of TRW Corpo-
ration , San Luis Obispo, California , its officers,
agents, successors , and assigns , shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
"(a) Discriminatorily enforcing its no -access rule
against employees who engage in union activities."
2. Delete paragraphs 1(b) and 1 (c) and reletter
the subsequent paragraphs.
3. Substitute the attached notice for that of the
administrative law judge.
5 See Aunt Millie's Sauces, 259 NLRB 278 (1981).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form , join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discriminatorily enforce our no-
access rule against employees who engage in union
activities.
WE WILL NOT threaten to withhold employee
work reviews if a union wins an election.
WE WILL NOT in any like or related manner
interfere with , restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
TRW VIDAR, A DIVISION OF TRW
CORPORATION
Eugene L. Kusion, Esq., for the General Counsel.
Richard R. Pace, Esq. (Hill, Farrer & Burrill), of Los An-
geles, California, and Phillip R. Pearson, Esq., of Re-
dondo Beach , California, for the Respondent.
DECISION
STATEMENT OF THE CASE
JESSE KLEIMAN , Administrative Law Judge. On the
basis of a charge filed on January 13, 1981, by Team-
sters-Warehousemen Local 381, International Brother-
hood of Teamsters, Chauffeurs , Warehousemen & Help-
ers of America (Union), the General Counsel of the Na-
tional Labor Relations Board (Board), by the Regional
Director for Region 31, Los Angeles, California, duly
issued a complaint and notice of hearing on March 25,
1981, against TRW Vidar, a Division of TRW Corpora-
tion (Respondent), alleging that the Respondent engaged
in certain unfair labor practices within the meaning of
Section 8(a)(1) of the National Labor Relations Act (the
Act). On April 6, 1981, the Respondent filed an answer
denying the material allegations in the complaint.
A hearing was duly held before me in Santa Maria,
California,' on December 8, 1981. At the close of the
General Counsel's case, the Respondent moved to " dis-
miss paragraphs 8 and 9 of the complaint for failure of
proof, which allege that the Respondent on January 9
and 12, 1981, "impliedly threatened to lay off certain of
its employees if the Union won the election ." I denied
the motion . All parties were afforded full opportunity to
appear, to introduce evidence , to examine and cross-ex-
amine witnesses, to argue orally on the record, and to
file briefs . Thereafter, the General Counsel and the Re-
spondent filed briefs. In its brief the Respondent seeks
dismissal of the allegations in the complaint "out of
hand" for failure of proof. For the reasons set forth, I
deny the Respondent 's application for dismissal in its en-
tirety.
On the entire record and the briefs of the parties, and
on my observation of the witnesses , I make the following
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Respondent , at all times material , has been a cor-
poration organized under and existing by virtue of the
laws of the State of Ohio, with an office and principal
place of business located in San Luis Obispo , California,
where it is engaged in the manufacture of telecommuni-
cation equipment.2 In the course and conduct of the Re-
spondent 's business operations during the preceding 12
months, these operations being representative of its oper-
ations at all times material , the Respondent annually pur-
chases and receives goods or services valued in excess of
$50,000 directly from suppliers located outside the State
of California for use at its San Luis Obispo, California lo-
cation . The complaint alleges, the Respondent admits,
and I find that the Respondent is now , and has been at
all times material , an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
Furthermore , the complaint alleges, the Respondent
admits, and -I find that at all times material , Gerald
Cross, the Respondent 's personnel director, Mac Brinton,
its plant manager, and Ray Antunez, its production man-
ager at the San Luis Obispo , California plant have been,
and are now, supervisors within the meaning of Section
2(11) of the Act and agents of the Respondent acting on
its behalf.3
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent admits, and I
find that Teamsters -Warehousemen Local 381 , Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
' The transcript indicates that the hearing was held in Los Angeles,
California , but this is incorrect . It was held in Santa Maria , California
2 Regarding its operations in San Luis Obispo , California , the Respond-
ent maintains a facility located at 1050 Southwood Drive , and two annex
facilities at Tank Farm Road
8 Kent Anderson , the Respondent 's director of human resources work-
ing at its "Division Headquarters" in Sunnyvale, California , and John
Lane , its production supervisor at the San Luis Obispo, California facili-
ties both testified at the hearing It is obvious from their testimony that
they are supervisors within the meaning of Sec . 2(11) of the Act and
agents of the Respondent acting on its behalf, and I so find.
TRW CORP.
housemen & Helpers of America is, and has been at all
times material , a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges, in substance , that the Respond-
ent violated Section 8(a)(1) of the Act by discriminatori-
ly refusing to allow employees the use of the company
cafeteria during nonworking hours for protected or con-
certed activities , by impliedly threatening its employees
with layoffs if the Union won the election , and by threat-
ening its employees with the withholding of work re-
views if the Union won the election . The Respondent
denies these allegations.
A. Background
The evidence shows that the Union commenced its or-
ganizational activities at the Respondent 's Southwood
Drive and Tank Farm Road Annex facilities in San Luis
Obispo, California , in May 1980, and its activities contin-
ued through January 1981 . The Respondent 's brief as-
serts that , "On October 9, 1980, the Union , Teamsters
Local 381, filed a petition for a representative election
among the Respondent 's production and maintenance
employees . On December 18, 1980 , following a hearing
conducted by the Board , an election was ordered for
January 16, 1981.4 Gerald Cross , the Respondent's per-
sonnel manager at its San Luis Obispo, California facili-
ties testified that during this period he was fully aware
that some of the employees were engaging in activities in
support of the Union , attending union meetings , wearing
union campaign buttons, and distributing union "flyers or
propaganda."5
B. The Evidence
1. The Respondent 's refusal to allow employees to
use its cafeteria for a union -related meeting
Vickie Wobermin , employed by the Respondent at its
San Luis Obispo, California facilities since September
1971, and an active participant in the Union's organiza-
tional campaign at these facilities , 8 testified that she had
distributed a notice, prepared by herself , to "test depart-
ment personnel-the technicians and test specialists,"
scheduling a meeting to be held on Tuesday , December
2, 1980, at 4 p .m. in the Southwood Drive facility cafete-
ria.7 Wobermin asserted that the reason therefore was
that because of the pending Board election scheduled for
January 16 , 1981, the results of which could have "seri-
ous consequences" for the Respondent 's "professional-
technical employees," these employees should be fully
informed regarding what union representation would
mean , "ramifications of what geting in a union would do
to us." Wobermin related that the meeting had been ar-
The representation hearing was held on or about October 30, 1980.
5 Cross had testified at the representation hearing on October 30, 1980,
and acknowledged subsequently learning in December 1980 that the
Board had scheduled an election for January 16, 1981
6 Wobermin was a member of the Union 's employee organizing com-
mittee, attended union meetings , distributed union literature, and wore
union buttons.
7 See G .C. Exh. 2
9
ranged for 4 p.m. and to last until 4:30 p.m. because the
day-shift technicians completed their work shift at 4
p.m., while the night-shift technicians , her own work
shift , did not commence work until 4 : 30 p.m .; therefore,
all these employees would have a reason for being at the
plant and would already be physically on the premises
for the schduled meeting time . She added that this also
acted to set the meeting during nonwork hours.8
Wobermin testified that on December 2, 1980, at 4
p.m., she appeared at the plant cafeteria with Kathy
Tuomala , another technician employee , and that present
were Larry McNamee, a day-shift technician , and sever-
al other employees . Wobermin stated that McNamee evi-
denced surprise at her presence there and advised her
that the personnel manager , Gerald Cross, had "notified
the group leaders that none of their people were to
attend this meeting . . . they were told that they could
not attend ." Wobermin added that while she was in the
cafeteria she observed Cross and Carl Findlay , the "war-
ranty night-shift supervisor" walk up and down the hall-
way in front of the cafeteria entranceway several times.9
According to Wobermin , she remained in the cafeteria
until 4:30 p.m ., with no other employees appearing to
attend the meeting , whereupon she reported "immediate-
ly to work."
Wobermin recounted that approximately 2 days later
she wrote a letter to the Respondent 's management
through "direct line ... a direct communication letter
between management and employees" in which she
"ask[ed] why we were not allowed permission to have
our meeting in the cafeteria ."' 0 Wobermin related that
she subsequently received an answer from the Respond-
ent typewritten across the bottom of her original "direct
line" letter and posted on the "direct line board" which
stated that , "we had not gotten an authorization to hold
our meeting, and if they allowed us, they would have to
allow other people to have meetings in the cafeteria."
She testified that during the approximately 10 years she
had been employed by the Respondent, she was unaware
of any company rule requiring that employees obtain
prior authorization from the Respondent to hold meet-
ings on company premises . Wobermin added that she
knew about, and had observed herself, various employee
group meetings being held in the cafeteria during non-
work hours involving, "Weight Watchers ... the rac-
quetball club and the bowling league."
Gerald Cross testified that on or about December 1,
1980, he became aware of the efforts of some test spe-
cialists and technicians to hold a meeting in the South-
wood Drive facility cafeteria, which was scheduled for
December 2, 1980 , at 4 p .m. for the purpose of discuss-
ing union matters . Cross stated that he had been given a
copy of the meeting notice by Production Supervisor
Rudy Buchmann , who had told him that the notices
8 Gerald Cross confirmed in his testimony that technician and test spe-
cialists were not normally scheduled to work between 4 and 4.30 p.m.
9 Wobermin testified that Cross and Findlay were approximately 20
feet from the cafeteria entranceway when this was occurring.
10 See G C Exh . 6. This form is provided by the Respondent and aftet
completion by an employee is placed in a box located in the hallway at
the Southwood facility specifically for these communications
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
were being distributed in the plant cafeteria, and he
knew the date, time , place, and reason for the meeting.
He related that after learning of the intended meeting, it
was decided by himself in concert with "other members
of management" not to allow these employees to hold
the meeting because they had not requested nor received
approval.
Cross testified that, "The company has a broad, gener-
al no-access policy to the premises where employees are
denied permission to the plant before or after hours." He
related that the "no-access" rule applies only to the plant
interiors and other "working areas" and not to the park-
ing lots or sidewalk areas . Cross maintained that prior
permission from management to use the Respondent's
premises for meetings is always required as "standard op-
erating procedure" and that the employees had been
made aware of this through "past practice ."" Cross
stated: that the only written rule embodying the Re-
spondent 's "no-access policy" was a memorandum dated
January 18 , 1980, issued by him and posted on the plant
bulletin board . The subject of the "Memo" is "I.D.
Badges," and the stated purpose thereof being "to help
[the Respondent ] keep unauthorized people out of the
plant , and to ensure our visitors are properly identified."
The particular rule that allegedly encompasses the Re-
spondent 's "no-access" policy rule states, "No employee
will be allowed access to the plant for personal reasons
during off hours."' 2 He continued that the Respondent
has allowed various employees' groups, such as the com-
pany basketball team , the company bowling team, the
company racquetball club, and a "Weight Watchers"
group , to use the Southwood Road facility cafeteria
during nonwork hours, but that permission for such use
was always requested and received beforehand as stand-
ard operating procedure.' a Cross added that the Re-
11 Cross testified that such requests to use company premises for meet-
ing purposes were made orally to him or to "a sponsor of the employees'
committee," whenever the employees ' committee were going to meet."
such as the bowling team.
12 In substance , the rest of this "Memo" provides - that employees wear
their identification badges when at the facilities ; requires visitors to obtain
and wear color -coded badges based on the reasons for their visit while at
the facilities ; and that , "A list of employees authorized to be in the plant,
between 6 p.m. and 7 a . m., and weekends , will be maintained by the secu-
rity guard All others must have prior authorization by a manager or Su-
pervisor I Exceptions to this rule include personnel regularly scheduled
to work second or third shift , and employees working overtime " See
G.C. Exh . 4. Moreover, according to Cross, the Respondent enforces this
rule as follows , "we have a guard service that comes on at 4:00 o 'clock,
locks the plant ; in the main plant at 4 30 the guard makes a round to
check and see who's in the operation ," with Cross also checking after
hours to see "who is around ." The facility is locked until 7 a.m. and any
employee seeking entrance sooner "must sign in if they :re coming in to
work early ." When employees "are coming in after hours , then notice is
left with the guard service that people would be coming in" to use the
cafeteria , with such notice being given by Cross or his security assistant.
Cross added that the meetings to be held in the cafeteria after work are
generally attended by employees already on the premises and do not re-
quire notice to the guards for them to gain access to the facility
19 Cross testified that permission has also been granted to individual
employees who are also college students to use equipment on the plant
premises "to complete a requirement for graduation," but the Respondent
has denied other individual employees such use of equipment for "other
personal reasons "
spondent has also denied employee requests on behalf of
groups seeking access and use of the Respondent 's prem-
ises, i .e., permission was denied to hold a math class in
the facility that would have been accredited through
Quests College, and to hold a local San Luis Obispo
United Fund group meeting at its premises.
Cross testified on direct examination that he had not
instructed "certain group leaders of the technicians and
test specialists to tell their employees that they could not
attend that meeting." He also denied personally telling
"some of the test specialists and technicians themselves
that they could not . . . use the cafeteria of the company
to hold the meeting to discuss the union , even if it was
before or after work hours." The Respondent's counsel,
however, had previously submitted a "summary of facts
and statement of position" dated February 9, 1981, to the
Board 's Region 31 during the investigatory stage of this
proceeding in apparent response to the Union 's charge
filed herein and seeking the dismissal of the charge in its
entirety. This document states
The Company has a broad , general no-access
policy which prohibits employees from entering the
plant prior to the beginning of their scheduled shift,
or from remaining on the premises after their work-
day has been completed.
Pursuant to this rule, Cross informed the techni-
cians group that it could not conduct its meeting on
company premises after regular working hours. He
stated that although they were free to discuss the
Union or any other matter they wished during
breaks or lunch periods, they could not utilize the
company cafeteria after or before their normal
workday for the purpose announced in their notice.
To the best knowledge of the Company 's manage-
ment, the proposed meeting was not held.' 4
On cross-examination , Cross attempted to explain this ap-
parent inconsistency by asserting that what actually oc-
curred was that he had not personally informed the tech-
nicians and test specialists that they could not conduct
their planned meeting on the Respondent's premises, but
instead had instructed Rudy Buchmann to tell the group
leaders to advise these employees that the meeting could
not be held, and Cross believed that the group leaders
had done so.
2. The Respondent 's layoff of employees
Kent Anderson, the Respondent 's director of human
resources , testified that the Respondent , as part of its
business, is engaged in the manufacture of "telephone
switching and transmission equipment , which is heavily
influenced by housing starts-the housing industry-as
well as interest rates , mortgage interest rates." He related
that because the exceedingly high mortgage interest rates
during 1979-1980, which resulted in a depressed housing
market "which, in turn , has severely depressed the pur-
chase of capital telephone equipment in the telephone in-
14 G.C. Exh. 3 This document was admitted into evidence over the
objection of the Respondent 's counsel. See Harowe Servo Controls, 250
NLRB 958 (1980).
TRW CORP.
dustry . . . our whole industy was depressed ," resulting
in lower sales and the loss of a "significant amount of
money ." Anderson stated that in late December 1980,
the Respondent decided to "get out of the switching
business entirely because of continued depression of the
business" and, based on its "bookings and operating fore-
cast," made plans for "some reductions in our work
forces in various locations , plus some consolidation of
some activities."
Anderson continued,
What was decided was that we were going to
have to close out Sunnyvale manufacturing plant on
Borregas Avenue and move all of our ITS switch-
ing products to Melbourne , Florida ; and what trans-
mission product work that we were doing in Sunny-
vale was going to have to be moved back to San
Luis Obispo.
At the same time , we also knew that we were
going to have to make some reductions in force at
Melbourne, Florida in January based on our operat-
ing plan, and begin the layoffs at Sunnyvale in Jan-
uary.
We also knew that we were going to have to be
making some small number of cuts at San Luis
Obispo at the end of February.
Anderson recounted that the Borregas Avenue facility in
Sunnyvale , California , employed about 150 employees
who were going to be time-phased "completely out of
the facility by the end of June , 1981," starting in January
1981. He added that the layoffs of employees in the re-
duction in force at the Respondent 's Melbourne , Florida
facility was scheduled for January 16, 1981, with layoffs
at the San Luis Obispo, California facilities scheduled for
February 27, 1981.
Anderson testified,
There had been rumors about the fact that Borre-
gas possibly would be closing-had been rumors for
a considerable amount of time . We felt that it was
very important that we put together a consolidated
communication plan to all employees in the divi-
sion , explaining to them exactly how they were per-
sonally affected , and how the entire transition of
our business out of Sunnyvale 's manufacturing plant
to our other two locations, how it all tied together;
how each employee was affected.
According to Anderson , as part of "an overall communi-
cation plan" regarding the closing of the Sunnyvale plant
and the projected layoffs at both the Melbourne, Florida,
and San Luis Obispo, California facilities , the Respond-
ent notified all its employees at these locations on Janu-
ary 9 , 1981, about its above plans and about the sched-
uled layoffs of employees . He stated that the purpose of
this was to allay employee concerns about their jobs,
"part of our plan was to make sure that all employees
understood the entire operating plan . . . at the same
time so there would not be further concerns about when
11
the next shoe would drop, something like that ."' 5 While
Anderson did not personally participate in the planning
of the layoffs at the Respondent 's San Luis Obispo facili-
ties, he acknowledged that , given the fact that the Board
election was scheduled for January 16, 1981, and the lay-
offs of employees had been scheduled for February 27,
1981, the announcement of such layoffs made on January
9, 1981, could have been made after the election had
been held , but that the Respondent 's "feeling was that all
employees in the division deserved to know exactly what
was happening throughout the division at the same time,
and how it affected them ." He concluded , "I think it's
based on good employee relations practice."
The evidence shows that the Respondent 's "communi-
cation plan" was accomplished as follows: a "Memo"
dated January 9, 1981, from A. B. Lipscomb , the Re-
spondent 's vice president and general manager , explain-
ing the reasons for the proposed consolidation and re-
duction in work force at its various facilities,'s was read
to all employees by managerial and/or supervisory per-
sonnel who were instructed how to accomplish this in a
separate "Memo" to them from Lipscomb, dated similar-
ly January 9, 1981, and which, among other things, di-
rected them to hold meetings with the employees under
their supervision or report." Another "Memo," also
dated January 9, 1981, this time from Lipscomb and the
appropriate respective plant manager involved , was to be
distributed to the particular employees actually designat-
ed and scheduled for layoff at a subsequent time.' 8
Mac Brinton , the Respondent 's San Luis Obispo facili-
ties' plant manager, testified ' 9 that on or about Decem-
15 Anderson's testimony concerning this on cross-examination was
somewhat equivocal Although he maintained that all the Respondent's
employees "knew about the slowness in our business" and "were con-
cerned about their job security in varying degrees," he could not base
this on any actual statements made to him or to any other management
representative by employees indicating such concern Anderson was
called as a witness for the Respondent.
However, on redirect Anderson testified that he had received feedback
indirectly from employees about this since the Respondent had held a
number of employee meetings during which management representatives
discussed issues, problems, complaints, and "things they would like to see
improved" with the employees
16 See R Exh 5. The "Memo," in substance, recites the economic
basis for the recession in the Respondent's business and the accompany-
ing need for consolidation of its operations and reductions in work force
through layoffs, and its hopes for a brightening future to "get Vidar back
on the growth track " The Respondent also sets forth its plans for assist-
ing employees with "layoff benefits" This notice announces a general
layoff and does not specifically indicate the number of employees or, re-
garding those employees, who would actually be terminated.
17 See R Exh. 4 This "Memo," in substance, places responsibility for
communicating the Respondent's "plans for consolidation of operations
and reduction of work force to those employees who report to you," on
managers and supervisors, and lists a format through employee meetings,
which they were to follow
18 See R Exh 6 This "Memo," in substance, explains the reasons for
the Respondent's "business slowdown," the need for the layoffs to ac-
complish a reduction in work force, the date of termination of the em-
ployee, as in the case of the San Luis Obispo facility, being February 27,
1981, and an offer of assistance to find new employment for those em-
ployees terminated
19 Brinton testified as a witness for the Respondent
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ber 14 or 15, 1980 , there was a meeting of all the plant
managers and the director of operations in San Jose,
California, at which the decision was made to consoli-
date operations and reduce the work force by layoffs be-
cause of "business factors" and "current production rate
forecasts," which projected declining sales and the need
to reduce the level of production. He stated that since
"well, it 's company policy that once a decision has been
made to try and both make that decision to those affect-
ed known as rapidly as possible , and to synchronize a de-
cision so that all the various geographical locations were
informed at the same time ," it was decided to make the
announcement of consolidation and layoffs on January 9,
1981. Brinton continued that there had been approxi-
mately four layoffs of employees in the last 5 years and,
when he was asked if an announcement was made to em-
ployees in advance he responded, "There was a recent
one in October and we had [an] announcement ahead of
time there . We have, in the early 70's we had a layoff
and used that same approach there . It really depended
upon the situation and the timing ."20 He added that ac-
tually 52 employees , not 19 , were laid off at the San Luis
Obispo facility on February 27, 1981.
Concerning the timing of announcements of layoff,
Gerald Cross testified that the Respondent had scheduled
a layoff of employees in the engineering department for
late March or early April 1980, and had made a prior
general announcement to the employees in February
1980. He stated that subsequently the six individual engi-
neers involved were notified regarding their selection for
layoff, "so that the total notice would be minimum of a
month , but probably less than two."
a. The Tank Farm Road Annex meeting on January
9, 1981
Diana Keppel, employed by the Respondent from Oc-
tober 30, 1978, until October 30, 1981, 21 testified that on
or about January 8 or 9, 1981, about 10 a.m., she attend-
ed a meeting of employees and management representa-
tives held in the plant lunchroom . 22 She related that Ray
Antunez, the plant production manager, addressed the
gathered employees23 and read a letter to them from
A. B. Lipscomb, the Respondent 's vice president and
general manager, which stated that , "due to economy,
that there would be a layoff, and that one of the plants
20 On cross-examination Banton acknowledged that the Respondent's
policy to announce layoffs as soon as possible in advance thereof was not
a "concrete policy." He also testified , on cross-examination, regarding a
layoff that occurred in April 1980, that he could not recall when the an-
nouncement of such layoff was made , and for a scheduled October 1981
layoff, the announcement was made anytime between a week to a month
in advance.
S1 Keppel , called as a witness for the General Counsel, worked as a
production employee at the Respondent's Tank Farm Road Annex facili-
ty during all the times relevant . She functioned as a member of the
Union 's "in-plant organizing committee ," attending union meetings her-
self and asking other employees to attend such meetings, distributing
union literature to employees , and wearing union buttons
22 Keppel testified that she was advised about the meeting by her
group leader , Mary Salazar , and that her production supervisor, John
Lane, was also present at this meeting
22 Keppel stated that there were approximately 12-14 employee'.
present at the meeting , including Cynthia Stevens, Bobby Wright, and
Danny Skaggs
would close, and that the layoff would affect Melbourne,
Florida, and San Luis Obispo." Keppel continued that
Antunez then advised the employees that , "about 19 em-
ployees would be laid off, and that would happen
around-I mean on February the 27th, 1981. That it
would be done by seniority." She added that Antunez
had not mentioned anything about the Union or the or-
ganizing campaign during this meeting, and that this was
the very first time she had heard about the proposed lay-
offs.
Cynthia Stevens, employed by the Respondent from
March 1979 until February 198124 testified that she also
had attended the meeting held during the morning of
January 9, 1981, in the lunchroom at the Tank Farm
Road Annex One, during which "head of production,"
Ray Antunez , spoke to a group of production employ-
ees.25 She stated that to the best of her recollection, An-
tunez did not read from a letter when he addressed the
employees, but instead told them directly, "That because
of inflation , the company needed to lay off 19 people.
They weren 't doing very well economically ." Stevens
related that Antunez advised the employees that the lay-
offs would take effect on February 27, 1981. She contin-
ued that Antunez had not mentioned the Union during
his speech and that this was the first time that the Re-
spondent had notified its Tank Farm Road Annex em-
ployees that there would be layoffs . Stevens added that
she was subsequently given 2 weeks ' notice prior to Feb-
ruary 27, 1981, that she was one of the 19 employees to
be laid off, and during this 2-week period she obtained
other employment.
Ray Antunez26 the Respondent 's production manager
at its San Luis Obispo Tank Farm Road Annex facilities,
testified that the meeting with employees held on Janu-
ary 9, 1981, at the Tank Farm Road Annex One build-
ing, he " [b]asically . . . read the memo verbatim to the
employees," referring to Lipscomb's "Memo" dated Jan-
uary 9, 1981, directed to all employees . 27 This memo
states, in part , "Unfortunately, there will also be some
layoffs-at Melbourne immediately and at San Luis
Obispo in February ." Antunez related that he did not
make any statements other than what was written in the
"Memo" nor did he say anything afterward other than to
answer a few questions that were asked by the employ-
ees present . Antunez denied that he had said anything
about "the union, the union organizing campaign and the
upcoming election." However, on cross-examination, An-
tunez acknowledged that he also may have told the em-
ployees that the layoffs would occur on the basis of se-
24 The evidence shows that Stevens worked as a production employee
at the Respondent 's Tank Farm Road Annex facility during all the times
relevant under the same supervisors as Keppel , with Mary Salazar as her
group leader and John Lane as her production supervisor Stevens testi-
fied that she was active in the Union 's organizational campaign , attending
union meetings, distributing union literature , and wearing union buttons
She testified as a witness for the General Counsel
20 Stevens stated that there were 10 employees present at this meeting,
including Keppel.
26 Antunez testified as a witness for the Respondent.
27 See R. Exh . 5 Also see In. 16.
TRW CORP.
niority and that he may have said some other things that
were not included in the "Lipscomb memo."28
b. The Southwood Drive meeting on January 12, 1981
Vickie Wobermin testified that on the Monday before
the election scheduled for January 16, 1981, she attended
a meeting in Plant Manager Mac Brinton's office at
Southwood Drive, San Luis Obispo, California, at which
15-18 night-shift technicians and/or test specialists were
present. She stated that "group leaders" had been ap-
prised of the meeting and that they in turn notified the
employees to attend. Wobermin related that present rep-
resenting management were Brinton, Kent Anderson,
Carl Findley, her immediate supervisor, and Bruce
Austin, her "group leader." She continued that Brinton,
"announced that due to the bad economic conditions,
that there would have to be a layoff of 19 people on the
assembly line. . . . He said that with the union organiz-
ing going on, he didn't want to hide anything. He
wanted to be right up front and let them-let everyone
know that there would be a layoff," with such layoffs
scheduled for "late February" 1981. Wobermin added
that this was the first time she had heard about projected
layoffs at the San Luis Obispo facilities.29
3. The Respondent's employee work reviews
a. The meeting on January 12, 1981
Keppel testified that the Respondent issues employee
work performance reviews in March and September of
each year, which provide the basis for employee wage
increases . Keppel related that on Monday, January 12,
1981, 4 days before the Board-scheduled election, she at-
tended a meeting in the lunchroom at the Tank Farm
Road Annex facility at 10 a.m., having been advised
about the meeting by her group leader, Mary Salazar.
She recounted that present at the meeting were about 12
employees30 and for management, Gerald Cross and
John Lane. Keppel stated that Cross spoke to the em-
ployees telling them, "That if the Union won the elec-
tion-if we won the election-that was, the organizers-
that [everything] would be [at] a standstill and there
would not be any reviews, because they would be nego-
tiating [would take a long time, possibly 9 months]... .
That there would be negotiating and that possibly [after
that] they would go on strike. But there would be no re-
views."
Keppel continued that Cross spoke for about "half an
hour" or less and although he mentioned "other things"
that she could not clearly remember, since the Respond-
ent had held "so many meetings" in and around this
time , she particularly recalled Cross speaking about the
employee work reviews because that topic was the
"most penetrating" one he had discussed. Keppel added
that she particularly remembered this,
2$ Antunez testified that Plant Manager Mac Branton had instructed
him to read the "Memo " to the employees at the meeting
29 Although Brinton and Anderson testified , they did not deny any of
this testimony
so Keppel named employees Cynthia Stevens , Betty Lemus, Bobby
Wright , and Danny Skaggs as having been among the employees who at-
tended the meeting
13
Because if there was not to be any reviews, it
would definitely sway the vote of the employees,
because that's what everyone waits for, are the re-
views. That's when we get our raise in pay.
She stated that the Respondent granted pay raises to its
employees on the basis of the work performance re-
views.
Although the testimony of Cynthia Stevens concerting
this meeting was , in most part, similar to that given by
Keppel regarding what was said about the work per-
formance reviews, yet concerning some of the other as-
pects of the meeting, it differs in some respects. Stevens
testified that about 3 or 4 days prior to the Board's elec-
tion, held on January 16, 1981, she attended a meeting
during the morning in the Tank Farm Road Annex facili-
ty lunchroom. She related that Mary Salazar, her group
leader, had told her about the meeting and that there
were about 30 employees who attended it, including
Keppel, Lemus, and Carolyn Scaggs . Stevens continued
that Gerald Cross and Mac Brinton represented manage-
ment at the meeting and that Cross told the employees,
"That during the negotiations, the job reviews are-ev-
erything would be at a standstill , which would mean that
job reviews-which would mean that the March reviews
would be at a standstill because their hands were tied."81
She added that the job reviews, given in March and Sep-
tember of each year, covered "production, punctuality,
everything," and was the basis for determination of the
amount of pay raise an employee would receive, if
any. 3 2
Stevens testified that this meeting lasted between "half
an hour, perhaps an hour" and that other topics were
discussed by Cross and Brinton, for example, the "pros
and cons of union versus company benefits," and a com-
parison of employee benefits was shown by means of a
slide projector and screen presentation, between "other
electrical companies that are union" and the Respond-
ent's. However, on cross-examination, Stevens acknowl-
edged that the slide projection presentation might have
occurred at a subsequent employee meeting held by man-
agement prior to the Board election.
Gerald Cross testified that the January 12, 1981 meet-
ing was held for the purpose of educating the Respond-
ent's employees "as to what collective bargaining was
about."33 Cross stated that he spoke from "a prepared
text,"34 which he did not depart from at any time during
his presentation except for one instance when he ex-
plained to the employees the meaning of the term "chal-
91 Stevens denied that Cross had actually stated at this meeting , "If the
Union wins, however, our hands would be more or less tied while the
company bargained with the union , that is , we couldn' t make any
changes unless both sides agreed or until the company had satisfied its
bargaining obligation ," instead of what she had testified to
32 Wobermin testified that the work reviews included quality of work,
dependability, adaptability, and cooperation, and that the employees'
wage increase depended on this review
33 Cross' testimony concerning the time and place of this meeting was
similar to that given Keppel and Stevens According to Cross, he and
John Lane were present at the meeting for management and that "about
30" employees were in attendance.
34 See R . Exh. 2.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lenged ballot ," which appears therein . Cross related that
what he stated to the employees at the meeting was that
If the Company wins [the election], it will be free
to make whatever changes it deems appropriate.
The election rules prohibit us from making any spe-
cific promises concerning changes . I really can't say
anything more than that at this time.
If the Union wins, however, our hands would be
more or less tied while the Company bargained
with the Union-that is, we couldn 't make any
changes unless both sides agreed or until the Com-
pany had satisfied its bargaining obligation.
Cross denied that he had discussed or mentioned the
March work reviews, or said that wages or benefits
would "be frozen" or "be at a standstill ." Cross added
that visual aids were used in his presentation in the
nature of slide projections "in conjuction with the pre-
pared text ," and that he did not "speak extemporaneous-
ly . ,,
John Lane , the Respondent 's production supervisor at
its Tank Farm Road Annex facility, testified that he had
attended the January 12, 1981 meeting at which Cross
addressed approximately 30 to 37 employees . He stated
that this was an informational meeting to inform employ-
ees about "a bargaining possibility with the Union."
Lane recounted that Cross spoke to the employees from
a prepared text35 and "[did] not recall any extemporane-
ous speaking whatsoever." He added that Cross never
told the employees that the March reviews would be at a
"standstill , cancelled or frozen ," nor did Cross mention
the March reviews at all during his presentation.36
b. Posted notices concerning work reviews
Diana Keppel testified that sometime during the month
preceding the election held on January 16, 1981, she ob-
served a "bulletin" posted on the bulletin board at the
Tank Farm Road Annex location37 which stated, "That
if we won the election , that there wouldn 't be no re-
views, because the company would be negotiating with
the union ." She stated that this "bulletin" had a TRW
Vidar letterhead and was posted on the bulletin board
where management usually places its notice to employ-
ees. Keppel related that the "bulletin" was signed by
Gerald Cross or Mac Brinton.38
95 Lane , on direct examination , identified R Exh . 2 as the prepared
text used by Cross to give his speech , after Lane had looked at the exhib-
it, "Without going through the whole thing " On cross -examination,
however , he admitted that he had not had a copy of the prepared text at
the meeting when Cross spoke to the employees Lane stated that he had
looked at the "top sheet " of the text after the meeting, and from the
statements made by Cross to the employees , he could identify this exhibit
as the prepared text
36 Lane testified that he personally did not address the employees at
this meeting , which lasted "somewhere around an hour."
a' Keppel testified that there is only one bulletin board at this facility,
used by both management and employees to post notices , and that the
Respondent usually posts material related to work rules and regulations,
"job-related " notices, and "anything pertaining to our job from manage-
ment "
ae Keppel denied that the "bulletin" was "in the form of something
called a Question of the Day ," more about which appears subsequently.
Vickie Wobermin testified that there are two bulletin
boards located at the Southwood Drive facility on which
the Respondent posted "notices of company policies and
any memos . . . pictures of our picnics and Halloween
costume parties, and things like that ." She related that
during the Union 's organizational campaign , about a
month or 3 weeks before the election , or even before
that , the Respondent inaugurated a procedure entitled
"Question of the Day," which was in the form of a
typed, mimeographed , or xeroxed "plain paper" notice,
which contained a question , and then an answer to such
question . Wobermin continued that about 3 weeks before
the election she observed a "Question of the Day"
posted on the bulletin board that stated
[T]he question asked what would happen to our
reviews if the union negotiations were still going
on. And the answer said that everything would be
frozen-that there would be no reviews, because
everything had to stay the same way during the ne-
gotiations.39
Gerald Cross testified that , "during the course of the
campaign which preceded the union election on January
16,"40 he caused to be posted on the company bulletin
boards, "a number of bulletins" which collectively were
called "Questions of the day.' Cross stated that the
source of these "Questions of the Day" was Richard R.
Pace , the Respondent 's legal counsel at the trial, denying
that he personally had authored them. He related that
not all the "Questions of the Day" given to him by Pace
were posted , but that of those that were, Respondent's
Exhibits 3 (a) through 3(m) composed all of those that
were posted on the bulletin boards . Cross denied that he
had ever posted a "Question of the Day" that dealt with
the March work reviews or that stated "if the Union
won the election , that the reviews would be at a stand-
still," frozen , postponed , or canceled.
Cross testified that during winter 1980, he did author
and publish "possibly over 20" memos, some of which he
could not recall regarding content , but that he did clear-
ly remember that none of these "dealt with reviews"
except for one dated December 5, 1980 , directed to "all
supervisors ." This memo, according to Cross, in sub-
stance instructed the supervisors "to sit down with their
employees and review goals . . . and what improve-
ments they noted should be made between September of
1980 and March of 1981 ," which would be of assistance
to the supervisors "when they did their reviews in
March."41 Cross denied authoring or posting any memo
dealing with the March reviews being frozen , postponed,
or canceled for any reason.
Mac Brinton also denied having authorized , published,
or posted a "Question of the Day," bulletin or memoran-
dum dealing with the freezing , postponing , or canceling
39 On cross-examination , Wobermin was shown R Exhs. 3(j) and 3(f),
whereupon she stated that neither of these exhibits were the "Question of
the Day" that she referred to regarding the March work reviews
'O The Respondent , in its brief, states , "During the month of January
1981, the Respondent conducted a vigorous campaign in opposition to
the Union 's organizing efforts."
41 SeeR Exh'7
TRW CORP. 15
of the March work reviews. He stated that the "Ques-
tions of the Day" orginated out of the personnel depart-
ment . Although Brinton testified that he had authored "a
lot" of company memorandums during the winter of
1980, he denied that any of these concerned employee
work reviews.
c. Acts of interference, restraint, and coercion
Section 8(a)(1) of the Act prohibits an employer from
interfering with , restraining , or coercing its employees in
the exercise of their rights guaranteed in Section 7 of the
Act.
4. The Respondent 's refusal to allow employees to
use its cafeteria for a union -related meeting
The complaint alleges that in violation of Section
8(a)(1) of the Act, the Respondent discriminatorily re-
fused to allow employees the use of the company cafete-
ria during nonworking hours for the purpose of conduct-
ing a meeting to discuss the Union . The Respondent
denies this allegation.
a. Analysis and conclusions
In its "statement of position" dated February 9, 1981,
the Respondent 's counsel asserts that the Respondent
became aware of the intent of its "technical employees"
to hold a meeting in the company cafeteria at 4 p.m. by
obtaining a copy of the notice announcing such meeting.
The "statement of position" continues
No permission had been requested by the authors
either to circulate the notice or to hold the meeting.
The Company has a broad , general no-access
policy which prohibits employees from entering the
plant prior to the beginning of their scheduled shift,
or from remaining on the premises after their work-
day has been completed.
Pursuant to this rule, Cross informed the techni-
cians' group that it could not conduct its meeting
on company premises after regular working
hours.42
The Respondent additionally asserts that its "broad, gen-
eral no-access policy," is encompassed in a memo dated
January 18 , 1980, from its personnel manager, Gerald
Cross, to all its employees which states, in pertinent part,
"No employees will be allowed access to the plant for
personal reasons during off hours."43
42 See G.C. Exh. 3 at 6. Although there is uncontroverted testimony
by Wobermin in the record that the Respondent had given as one of its
reasons for denying the employees the use of the cafeteria , that the em-
ployees had failed to obtain prior management consent for the meeting, it
appears from the Respondent 's brief that it does not now maintain that
this was a significant consideration in its refusal of such permission. As
stated by the Respondent in its brief,
Evidence showed that in most instances , permission to use the plant
after hours was requested in advance No such permission was
sought by the group seeking to discuss union matters . However, for
the purposes of this proceeding , it is stipulated that had such permis-
sion been requested , it would have been denied.
40 See . G.C. Exh. 4. The written rule contains no requirement that
prior permission be obtained from management by employees seeking any
dispensation therefrom
From all of the foregoing , it is clear that the issue to
be resolved regarding the above is the validity of the Re-
spondent 's "no-access policy" rule, and pursuant thereto,
the lawfulness of its refusal to permit its employees the
use of the company cafeteria for a union -related meeting
during nonworking hours.
In GTE Lenkurt, Inc., 204 NLRB 921 (1973), the
Board stated
Under well-settled principles applicable to em-
ployees activities . . . an employer may not , absent
special circumstances, prohibit employees lawfully
on the premises from engaging in union solicitation
on their own time . However, it is also well settled
that nonemployees are not entitled to enter an em-
ployer's premises to engage in union activity there.6
Accordingly , to dispose of the issue here, we must
determine which of these principles applies to an
off-duty employee , i.e., whether, notwithstanding an
employer rule to the contrary , he has a right to
enter or remain on an employer 's premises if he
wishes to do so for this purpose.
In our view , he does not, for his status is more
nearly analogous to that of a nonemployee, and he
is subject to the principles applicable to nonem-
ployees . This is so because the interests to be bal-
anced in determining the validity of such a rule are
very different as between an employee on the prem-
ises in connection with his work and an off-duty
employee who seeks to enter . The former involves
a balancing of statutory rights of self-organization
against the employer's interests in production,
safety, or discipline , and in this situation the statuto-
ry rights prevail (unless it can be shown that inter-
ference with those rights is essential ) because an
employer may not close off this normal channel of
communication among the workers without proper
justification .' The latter situation , however, requires
a balancing of the employees' Section 7 rights
against the employer 's private property rights.8
It seems apparent that for purposes not protected
by this Act off-duty employees and nonemployees
would be invitees to the same extent , and one is no
more entitled than the other to admission to the
premises. We are unable to conclude that a different
rule is required where union organization is in-
volved, and absent a showing of inability to reach
the employees otherwise , we see no justification for
holding that an employer 's right to control ingress
to his property must give way for that purpose.
In view of the above, we find that the balance
between the competing interests in this situation is
properly struck by holding that , where an employ-
er's no-access rule is nondiscriminatory, i.e., it
denies off-duty employees access to the premises for
any purpose and is not disparately applied against
union activities , it is presumptively valid absent a
showing that no adequate alternative means of com-
munication are available .9 As there is no such
showing here , and no evidence that rule D was dis-
criminatorily enforced , we conclude that Respond-
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ent did not violate the Act by promulgating or
maintaining this rule.
8 NLR.B v. The Babcock & Wilcox Company, 351 U S. 105.
113.
r N.L.R B. v. The Babcock & Wilcox Company , supra at 112; Re-
public Aviation Corporation v N. L. R. B., 324 U S 793. 804.
8 See Diamond Shamrock Ca v NL.R.B., 433 F.2d 52 (C.A 3,
1971)
8 Prior cases , particularly McDonnell Douglas Corporation, 194
NLRB 514, are distinguishable on their facts However, to the
extent McDonnell Douglas Corporation , supra, remanded 472 F 2d
539 (C A. 8), and Diamond Shamrock Co , 181 NLRB 261, enforce-
ment denied 443 F.2d 52 (C A. 3), are inconsistent with the hold-
ing herein , they are hereby overruled.44
Subsequently , however, the Board narrowed the scope
of GTE Lenkurt, supra,45 in Tri-County Medical Center,
222 NLRB 1089 ( 1976), wherein it stated
The holding of GTE Lenkurt must be narrowly
construed to prevent undue interference with the
rights of employees under Section 7 of the Act
freely to communicate their interests in union activi-
ty to those who work on different shifts . We con-
clude , in order to effectuate the policies of the Act,
that such a rule is valid only if it ( 1) limits access
solely with respect to the interior of the plant and
other working areas; (2) is cle [a]rly disseminated to
all employees; and (3 ) applies to off-duty employees
seeking access to the plant for any purpose and not
just to those employees engaging in union activity.
Finally , except where justified by business reasons,
a rule which denies off-duty employees entry to
parking lots, gates, and other outside nonworking
areas will be found invalid.46
The Respondent alleges in its brief,
It is well-settled under the authorities cited above
that an employer 's published , non-discriminatory,
no-acess rule is presumptively valid , absent a show-
ing by the union that it has no adequate alternative
means of communication available to it .47 It is also
clear from these same authorities that such a rule is
not violatie of the Act if it meets the following
three criteria : ( 1) It limits access solely with respect
to the interior of the plant and other working areas;
(2) it is clearly disseminated to all employees; and
(3) it applies to off-duty employees seeking access
49 In GTE Lenkurt, the Board considered an employee work rule that,
in substance , prohibited off-duty employees from entering or remaining
on the employer 's premises for any purpose . The no-access rule in GTE
Lenkurt, supra, read, "An employee is not to enter the plant or remain on
the premises unless he is on duty or scheduled for work "
45 In substance , the decision in GTE Lenkurt, supra, held that when an
employer 's no-access rule denies all off-duty employees access to the
premises for any purpose and is not discriminatorily applied only against
employees engaged in union activities , the rule is presumptively valid
absent a showing by the Union that no adequate alternative means of
communication is available to it. Tn-County Medical Center, supra.
46 Bulova Watch Co, 208 NLRB 798 (1974); Litho Press ofSan Antonio,
211 NLRB 1014 (1974), enfd 512 F.2d 73 (5th Or 1975), Golden Oak
Mining Co., 218 NLRB 416 (1975) Also see Continental Bus System, 229
NLRB 1262 (1977)
44 The Respondent cites in support of its contention , GTE Lenkurt,
supra; Dart Industries, 210 NLRB 1086 (1974); All-Glass Aquarium Co,
214 NLRB 117 (1974); Diamond Shamrock Co., supra
to the plant for any purpose , and not just to those
employees engaging in union activity . 48 Uncontra-
dicted evidence introduced at the hearing on this
matter clearly established that each of these criteria
was satisfied in the instant case.
I do not agree with the Respondent 's assessment of the
evidence.49
The doctrine enunciated by the Board in GTE Lenkurt
requires that an employer's no-access rule deny all off-
duty employees access to its premises for any purpose
and not be disparately applied against employees en-
gaged in union activities in order that such rule be pre-
sumptively valid absent a showing that no alternative
means of communication are available . 50 Moreover, in
narrowing the construction of its holding in GTE Len-
kurt, the Board in Tri-County Medical Center now re-
quired for the validity of a no-access rule that the rule
limit access solely with respect to the interior of the
plant and other working areas, be clearly disseminated to
all employees , and apply to off-duty employees seeking
access to the plant for any purpose and not just to those
employees engaging in union activity.51
The evidence clearly shows that although the Re-
spondent 's no-access rule purports to deny all off-duty
employees access to "the plant for personal reasons" yet
the Respondent admittedly allows some off-duty employ-
ees the use of the company cafeteria for meeting pur-
poses as "exceptions in its application of the rule." The
Respondent permits its company bowling, basketball, and
racquetball club teams to hold meetings in the company
cafeteria . Additionally, it has allowed a "Weight Watch-
ers" group to also use this facility for meeting purposes,
as well as individual employees to use its facilities off
hours . The record also discloses that the Respondent has
also denied employee requests on behalf of groups seek-
ing access to, and the use of, the plant premises , i.e., per-
mission was denied to hold a math class in the facility
under the aegis of Questa College, and the Respondent
refused authorization to a local United Fund group to
hold a meeting on its premises.
48 In this connection , the Respondent cites Tri-County Medical Center,
supra , Litho Press ofSan Antonio , supra , Bulova Watch Co., supra ; Golden
Oak Mining Co, supra ; The Mandarin , 221 NLRB 264 (1975 ), Continental
Bus Systems, supra
48 I do agree with Respondent , however, that its no-access rule, which
provides that , "No employee will be allowed access to the plant for per-
sonal reasons during off hours ," was disseminated to all employees The
Respondent 's no-access policy was "reduced to writing" as a rule and
posted on the company bulletin board on or about January 18 , 1980, sev-
eral months prior to the advent of the Union 's organizational campaign
Howard Johnson Co, 242 NLRB 386 (1979). Moreover, none of the par-
ties asserts that such a posting of the rule was inadequate notice to the
Respondent 's employees and not a "clear dissemination " thereof. Al-
though Wobermin testified that she was unaware of any company rule
requiring that employees obtain prior authorization from the Respondent
to hold meetings on company premises , even if this was construed as her
having no knowledge of the non -access rule itself, this would not change
my above finding . (See Wometco Coca -Cola Bottling Co., 255 NLRB 431,
444 fn 58 ( 1981).) Furthermore , I agree with the Respondent that this
rule is applicable only to off-duty employees as stated.
50 The General Counsel does not assert that the Respondent's no-
access rule is invalid and in violation of Sec. 8(a)(1) of the Act because
there was no alternative means of communication available.
1 Also see Continental Bus Systems, supra
TRW CORP
The General Counsel asserts that "By refusing to
allow the test technicians and test specialists group the
use of the company cafeteria in order to discuss the
Union , while at the same time, allowing other groups the
use of the cafeteria for non -work related activities during
non-work hours , Respondent discriminatorily enforced
its no-access rule in violation of Section 8(a)(1) of the
Act." I agree.
As set forth , the Board in Tri-County Medical Center
found that the holding of GTE Lenkurt must be narrow-
ly construed "to prevent undue interference with the
rights of employees under Section 7 of the Act freely to
communicate their interest in union activity to those who
work on different shifts ."52 The Board then required, as
one of the criteria for establishing the validity of a no-
access rule, that it be applicable , "to off-duty employees
seeking access to the plant for any purpose and not just
to those employees engaging in union activity." This
same language was again reiterated by the Board in Con-
tinental Bus Systems , supra.
In E. I. du Pont & Co., 263 NLRB 159, 174 ( 1982),
during the week of a Board election the company pro-
mulgated and enforced a rule denying vacationing em-
ployees access to its plant except for the purpose of
voting . Just prior to the commencement of their vaca-
tion, two employees had requested permission to enter
the plant while they were on vacation, but were denied
such permission on the ground that it was the week of
the election . One of the employees testified uncondition-
ally that he was unaware of any rule restricting access to
the plant by vacationing employees . Additionally, the
evidence showed that in the past , retired employees had
been allowed in the plant for social visits in the cafeteria
and elsewhere with other employees . The Board af-
firmed without comment the holding of the administra-
tive law judge that
It is obvious that denial of permission for Merri-
man and Sharp to enter the plant during their vaca-
tion was a departure from the past practice and was
imposed for the purpose of limiting employee union
activities prior to the Board election . I find this was
an unwarranted limitation of their Section 7 rights
and a violation of Section 8(a)(1) of the Act. Tri-
County Medical Center, Inc., 222 NLRB 1089
(1976); GTE Lenkurt, Incorporated, 204 NLRB 921
(1973).
In Harrison Steel Castings Co., 262 NLRB 450, 456
(1982), the employer had a no -access policy barring off-
duty employees from its plant premises unless the em-
ployee could show that he or she had business in the
plant . Although the employer "freely conceded" that the
rule was relaxed and leniently applied regarding those
seeking entry for legitimate reasons , the evidence also
showed that employees gained access during their off-
duty hours for personal convenience unrelated to any bu-
sines interest of the employer. The Board affirmed the
52 This is consistent with the Board 's finding in GTE Lenkurt that off-
duty employees entering or remaining on an employer 's premises are sub-
ject to principles that "requires a balancing of the employees ' Section 7
rights against the employer 's private property rights."
17
ruling of the administrative law judge who, citing Tri-
County Medical Center , supra , and GTE Lenkurt, supra,
found therein.
Here, it does not appear that the scope of the
rule was ever formally communicated to employees.
And the record amply discloses that the rule did
not apply to those seeking access for all purposes,
with exceptions to the ban being undefined and
freely conferred . . . . Accordingly , the nonaccess
policy involved here did not meet the standards of
legitimacy set forth in Tri-County Medical Center,
supra.
Again , in A. W. Schlesinger Geriatric Center, 263
NLRB 1337, 1341 (1982 ), the employer had issued a
memorandum to its employees stating, in pertinent part,
that "Off duty employees may not attempt to organize
the SEIU on . . . Center property . . . inside in non-
work areas because the Personnel Policies states, 'Em-
ployees should not loiter around the buildings or grounds
when not on duty or receive visitors while they are on
duty ."' The Employer's director had organized an em-
ployee "Committee" to disseminate "more information
about the Union prior to the election ." The committee
then held meetings for employees in Respondent's
chapel. The Board affirmed the findings of the adminis-
trative law judge therein that
With regard to inside areas , a no-access rule must
be clearly disseminated to all employees and apply
to off-duty employees seeking access for any pur-
pose . Tri-County Medical Center, Inc. [supra]; Cen-
tral Solano County Hospital Foundation, Inc., d/b/a
Intercommunity Hospital, 255 NLRB 468 ( 1981).
Any ambiguity is to be construed against the party
which promulgates the rule . Eastern Maine Medical
Center [253 NLRB 224 ( 1980)]; Continental Bus
System , Inc., [supra]. Most importantly , the rule was
discriminatorily applied to permit off-duty employ-
ees to engage in activities on behalf of the commit-
tee or to attend committee meetings while prohibit-
ing off-duty employees from engaging in union ac-
tivities.53 Accordingly, I find that Respondent vio-
sa The Respondent asserts in its brief,
First , the abstract theory that an employer necessarily forfeits the
right to enforce otherwise valid rules concerning the use of its prop-
erty simply by failing to follow its own rules was squarely rejected
by the U . S Supreme Court in N.L R.B. v. United Steelworkers, [357
U.S. 357 ( 1958)] . . . In the instant case , it is clear that the union is
asking the Board to do what the Supreme Court refused to do in
United Steelworkers-invalidate an otherwise valid rule simply be-
cause the employer did not accord to the union the same privileges
which it accorded to itself
I do not agree What the Supreme Court actually held in the United
Steelworkers case as stated therein was that,
Employer rules prohibiting organizational solicitation are not in
and of themselves violative of the Act , for they may duly serve pro-
duction , order and discipline . See Republic Aviation Corp v Labor
Board, 324 U.S. 793 ; Labor Board v Babcock Bi Wilcox Co, 351 U S
105. In neither of the cases before us did the party attacking the en-
forcement of the no -solicitation rule contest its validity Nor is the
claim made that an employer may not , under proper circumstances,
engage in non-coercive anti-union solicitation indeed his right to do
Continued
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lated Section 8(a)(1) by promulgating and maintain-
ing an overly broad rule denying access to off-duty
employees and by discriminatorily applying such a
rule to interfere with activities on behalf of the
Union.54
so is protected by the so-called 'employer free speech ' provision of
Section 8(c) of the Act The very narrow and almost abstract question
here derives from the claim that, when an employer himself engages in
anti-union solicitation that if engaged in by employees would constitue a
violation of the rule--particularly when his solicitation is coercive or ac-
companied by other unfair labor practices--his enforcement of an other-
wise valid no-solicitation rule against the employees is itself an unfair
labor practice We are asked to rule that the coincidence of these cir-
cumstances necessarily violates the Act, regardless of the way in
which the particular controversy arose or whether the employers
conduct to any considerable degree created an imbalance in the op-
portunities for organizational communication . For us to lay down
such a rule of law would show indifference to the responsibilities im-
posed by the Act primarily on the Board to appraise carefully the inter-
ests of bath sides of any labor-management controversy in the diverse cir-
cumstances of particular cases and in light of the Board 's special under-
standing of these industrial situations
There was no indication in the record . . . that the employees, or
the union on their behalf, requested the employer , himself engaging
in anti-union solicitation , to make an exception to the rule for pro-
union solicitation
No attempt was made . . to make a showing that the no-solicita-
tion rules truly diminished the ability of the labor organizations in-
volved to carry their message to the employers.
We do not at all imply that the enforcement of a valid no-solicitation
rule by an employer who is at the same time engaging in anti -union so-
licitation may not constitute an unfair labor practice . All we hold is that
there must be some basis in the actualities of industrial relation& for
such a finding. [Emphasis added.]
This is exactly what the Board has done in the various cases cited
herein Also see AMF, Inc. 228 NLRB 1406, 1416 ( 1977); Wometco Coca-
Cola Bottling Co., supra, G. H. Bass & Co., 258 NLRB 140, 144 (1981);
St. Francis Hospital, 263 NLRB 834 (1982) Moreover , no-access rules are
subject to somewhat different principles than are applicable to no-solicita-
tion, no-distribution rules See The Mandarin , 221 NLRB 264 (1975); Bar-
ney's Club, Inc, 227 NLRB 414 (1976 ); Harvey 's Resort Hotel, 236 NLRB
1670 (1978)
6' Also see Intercommuntty Hospital , 255 NLRB 468 (1981 ), in which
the Board found that the Employer 's no-access rule did not meet "the
Tn-County standard" because it did not prohibit access for all purposes
and because " in addition, employees testified that they were permitted to
remain in the hospital after work while waiting for rides or car-pools."
The employer 's rule stated , "When you are off duty , visits to the hospital
should be limited to friends or relatives who are patients or on official
business with the hospital ." St. Vincent Hospital, 244 NLRB 331 (1979), in
which the Board affirmed an administrative law judge 's ruling that an
employer 's no-access rule stating , "Employees may not enter on hospital
premises or remain thereon except as required by the work relationship
unless they are themselves patients of the hospital or visiting a patient of
the hospital ," did not meet the Tri-County Medical Center criteria since,
among other reasons , the rule was not strictly enforced . The ALJ found
that "employees frequent the cafeteria before and after their shifts, off-
duty employees return to the hospital for employee parties , to visit pa-
tients, to visit on-duty employees , and to attend educational courses that
apparently are not required as a condition of retaining employment Some
employees habitually enter the premises a half hour or so before their
shift commences and remain for a period of time after the shift ends. Re-
spondent 's administrator admits that the rule would be difficult to enforce
and it is clear that no serious effort was made to enforce it except during
the period of the election campaign " Baptist Memorial Hospital, 229
NLRB 45 ( 1977), in which the Board affirmed the holding of an adminis-
trative law judge that the Employer 's no-access rule was invalid because,
among other reasons , "employees [were] not restricted for all purposes
The hospital permits, for example, employees to visit patients or to pick
up their paychecks during their nonduty hours , citing Tri-County Medical
Center.
In the instant case, the Respondent 's no-access rule
does not meet all the criteria established by the Board in
Tri-County Medical Center, supra, to be held valid. The
rule was not strictly enforced in its application to all off-
duty employees seeking access to the plant for any pur-
pose,55 with exceptions to the ban being undefined and
inconsistently applied .56 The Respondent permitted off-
duty employee groups access to the company cafeteria
for meeting purposes , i.e., the bowling , basketball, and
racquetball teams, and a "Weight Watchers" group, and
denied the use thereof to a college -sponsored mathemat-
ics class and a "local United Fund" group . The Respond-
ent failed to identify what criteria it used, if any, to de-
termine whether off-duty employees would be granted or
denied access to the plant . Moreover , while the evidence
shows that the Respondent initially gave its employees'
reasons to support the denial of the use of the company
cafeteria for a union-related meeting , these reasons were
apparently down -played or withdrawn as justification
therefor in its brief. 57 In effect , because no specific
reason for its action has been advanced other than the
no-access rule itself, any ambiguity therewith must be
construed against the Respondent , the party that promul-
gated such rule.58
I further find that the Respondent 's no-access rule is
invalid as being overbroad. In order for such a rule to be
valid it must "limit access solely with respect to the inte-
rior of the plant and other working areas."59 In Hudson
Oxygen Therapy Sales Co., 264 NLRB 61, 72 (1982), the
Board affirmed the finding of an administrative law
judge that the following no-access rule was overbroad
and therefore invalid:
No one except employees during their scheduled
working hours is permitted to enter the Plant unless
permission has been granted by the appropriate su-
pervisor or higher management . It should be noted
that this regulation forbids you to enter the plant
sa E L du Pont, supra; Harrison Steel Castings Co, supra, A. W. Schles-
singer Geriatric Center, supra; Intercommunity Hospital, supra ; St. Vincent
Hospital, supra, Baptist Memorial Hospital, supra; Tri-County Medical
Center, supra ; GTE Lenkurt, Inc., supra Additionally see for interest
Northeastern University, 235 NLRB 858 (1978); Trustees of Columbia Uni-
versity, 225 NLRB 185 (1976), and Methodist Hospital of Gary, 263 NLRB
411 in 3 ( 1982).
66 Harrison Steel Castings Co, supra.
67 According to Wobermin's iincontradicted testimony , the reasons
given by the Respondent for denying permission to the off -duty employ-
ees to hold the meeting in the company cafeteria were, that the employ-
ees had failed to obtain prior authorization to use the company cafeteria
for such a meeting , and that if the Respondent permitted these employees
such use of the cafeteria it would "have to allow other people to have
meetings in the cafeteria " Since the evidence shows that these reasons
have no validity in fact because the Respondent 's no-access rule, as writ-
ten, did not require permission for any exceptions to its application nor
make any exceptions thereto at all, all employees were not made aware
of any such requirement; and the Respondent already had allowed "other
people," employee groups and , in the case of the "Weight Watcher's
group," perhaps nonemployees, access and use of its company cafeteria,
there arises a strong inference under the circumstances in this case that
the reasons offered were pretextual and that the actual reason for deny-
ing these off-duty employees the use of the company cafeteria was the
purpose of such meeting, it being a union -related meeting.
ss A. W. Schlesinger Geriatric Center, supra, Eastern Maine Medical
Center, 253 NLRB 224 (1980); Continental Bus Systems, supra
59 Tri-County Medical Center, supra, Continental Bus System , supra.
TRW CORP.
during your off-hours unless you have been called
in to perform a job asignment.
The administrative law judge therein stated,
Since the rule here denies off-duty employees
access to "any of its [the plant 's] facilities, including
the plant lunch room" it is invalid . No business rea-
sons are advanced to justify no-access to . . . the
lunchrooms and other nonworking areas.34
94 Continental Bus Systems, supra at 1262.
The above is based on one of the criteria established by
the Board in Tri-County Medical Center, supra.
Again, the Board in St. Vincent Hospital, supra, af-
firmed the holding of an administrative law judge that an
employee no-access rule was invalid as not meeting the
Tri-County Medical Center criteria "inasmuch as it does
not clearly limit the restriction to the interior of the
building ." The no-access rule in St. Vincent Hospital read,
Employees may not enter on hospital premises or
remain thereon except as required by the work rela-
tionship unless they are themselves patients of the
hospital or visiting a patient of the hospital.
The administrative law judge stated therein,
There is no evidence that Respondent has ever
sought to widely disseminate to its employees its in-
terpretation of the term . . . "premises" to mean
only the interior of the building.
Moreover, in Panavision, Inc., 264 NLRB 1284, 1286
(1982), the Board adopted a hearing officer's findings
which stated,
Since the Board 's decision in Tri-County Medical
Center, Inc., 222 NLRB 1089, the Board has held
that, except where justified by business reasons, a
i rule which denies off-duty employees entry to park-
ing lots, gates and other outside non-working areas
will be found invalid . The Board has even refined
Tri-County to prohibit denial of access to off-duty
employees for union organizational activities in cer-
tain non-work areas inside the plant (e.g., the cafete-
ria). Maywood, Inc., 251 NLRB 979; Central Solana
County Hospital Foundation, Inc., 255 NLRB 468.
In the instant case the Respondent's no-access rule,
that "[n]o employee will be allowed access to the plant
for personal reasons during off hours," squarely falls
within the purview of the above recited cases . The Re-
spondent's refusal to allow off-duty employees the use of
its company cafeteria for a meeting renders invalid as
overbroad the use of the term "plant" in its rule without
more or some interpretation of this term to employees in
a lawful context.ao
60 In Woodvtew Rehabilitation Center, 265 NLRB 838 (1982), the Board
affirmed the finding of an administrative law judge that an employer's
no-access rule, "Employees are not permitted access to the interior of the
Home or outside work areas during off-duty hours , unless they have re-
19
After carefully considering the Respondent 's conten-
tions in its brief regarding this issue , which I reject as
being contrary and inconsistent with Board and court
law, although these contentions have a certain logic and
under the circumstances present in this case , I find that
the Respondent maintained and discriminately enforced
an invalid no -access rule when it refused to allow em-
ployees the use of the company cafeteria during non-
working hours for the purpose of conducting a meeting
to discuss the Union , with the Respondent thereby vio-
lating Section 8(a)(1) of the Act.
5. The Respondent 's layoff announcements as
implied threats of layoff
The complaint alleges that on or about January 9 and
12, 1981, the Respondent impliedly threatened to lay off
certain employees if the Union won the election , in vio-
lation of Section 8(a)(1) of the Act. The Respondent
denies these allegations.
a. Analysis and conclusions
To reiterate briefly, the evidence shows that the Re-
spondent , about mid-December 1980, decided to close its
Borregas Avenue facility in Sunnyvale , California, and to
lay off employees at its Melbourne , Florida, and San
Luis Obispo, California plants because of depressed eco-
nomic conditions in the telecommunications equipment
industry resulting in lower sales and a significant loss of
earnings for the Respondent . The Borregas Avenue facil-
ity employees were to be time-phased out over a period
commencing in January 1981, with completion at the end
of June 1981, when this facility would be closed down.
The reductions in force at the Respondent's Melbourne,
Florida facility was scheduled for January 16, 1981, and
at its San Luis Obispo, California facility on February
27, 1981, with the layoff of employees to take place on
those respective dates.
On January 9, 1981, the Respondent held a meeting
with its employees at its Tank Farm Road Annex facility
in San Luis Obispo, during which the plant production
manager, Roy Antunez , advised the employees present
that there would be layoffs of employees in February
1981. Diana Keppel and Cynthia Stevens, who had been
employees at the time and present at this meeting testi-
fied that this was the first time they had heard about pro-
posed layoffs of employees at the San Luis Obispo facili-
ties . They also testified uncontradictedly that no mention
served prior authorization from a Department Head or the Administra-
tor," was "facially valid " The administrative judge stated.
The new no-access rule , prohibiting employee access to both the in-
terior of the home and outside wort. areas during off-duty hours with-
out prior employer authorization , contrary to General Counsel, is
not inconsistent with Tri-County Medical Center. Inc, 222 NLRB
1089 (1976 ), since this rule (a) deals only with work areas ; (b) was
widely disseminated; and (c) applies generally and not merely to em-
ployees engaged in union activity Moreover , there is no suggestion
that Respondent was including parking lots and similar non work
areas within the rule
In the instant case , however, there was actual indication that the Re-
spondent included the company cafeteria , a nonwork area , as encom-
passed within the definition of the term "plant" as used in its no -access
rule.
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was made at this meeting about the Union or the Union's
organizational campaign . This meeting occurred 1 week
before the Board 's scheduled representation election to
be held on January 16, 1981.
Additionally, on January 12, 1981, the Respondent
held a meeting with its employees at its Southwood
Drive facility in San Luis Obispo where Plant Manager
Mac Brinton , announced the layoff of 19 assembly line
employees scheduled for "late February, 1981." Vickie
Wobermin testified that Brinton also stated , "that with
the union organizing going on, he didn 't want to hide
anything . He wanted to be right up front and let them-
let everyone know that there would be a layoff." Wober-
min also recounted that this was the first time that she
had heard about proposed layoffs at the San Luis Obispo
facilities .61 This meeting occurred just 4 days prior to
the election.
The General Counsel contends that "the timing of Re-
spondent 's layoff announcements is inherently suspect
and that the announcements themselves must be inter-
preted as implied threats intended to coerce employees in
violation of their Section 7 rights . It is submitted , there-
fore, that Respondent 's announcements of layoffs during
the critical pre-election period constituted implied threats
of loss of employment in violation of Section 8(a)(1) of
the Act." Although the issue is a close one , under the
circumstances of this case I agree with the General
Counsel.
In NLRB v. Gissel Packing Co., 395 U.S. 575, 616-617
(1969), the Supreme Court stated,
At the outset we note that the question raised
here most often arises in the context of a nascent
union organizational drive, where employers must
be careful in waging their antiunion campaign. Re-
garding conduct generally , the above-noted grada-
tions of unfair labor practices , with their varying
consequences, create certain hazards for employers
when they seek to estimate or resist unionization ef-
forts . But so long as the differences involve conduct
easily avoided , such as discharge , surveillance, and
coercive interrogation, we do not think that em-
ployers can complain that the distinctions are unrea-
sonably difficult to follow. Where an employer's an-
tiunion efforts consist of speech alone, however, the
difficulties raised are not so easily resolved. But we
do note that an employer's free speech right to
communicate his views to his employees is firmly
established and cannot be infringed by a union or
the Board . Thus, [Section 8(c) of the Act] merely
implements the First Amendment by requiring that
the expression of "any views , argument, or opinion"
shall be "evidence of an unfair labor practice," so
long as such expression contains "no threat of re-
prisal or force or promise of benefit" in violation of
Section 8(a)(l). Section 8(a)(1), in turn , prohibits in-
81 Although the Respondent to its brief declares that, "Furthermore,
both Mac Banton and Ray Antunez stated that during the respective an-
nouncements , the union and upcoming election were never mentioned,"
terference , restraint or coercion of employees in the
exercise of their right to self-organization.
Any assessment of the precise scope of employer
expression , of course , must be made in the context
of its labor relations setting . Thus, an employer's
rights cannot outweigh the equal rights of the em-
ployees to associate freely, as those rights are em-
bodied in Section 7 and protected by Section 8(a)(1)
and the proviso to Section 8(c). And any balancing
of those rights must take into account the economic
dependence of the employees on their employers,
and the necessary tendency of the former , because
of that relationship , to pick up intended implications
of the latter that might be more readily dismissed
by a more disinterested ear.
The Supreme Court's logic, as set forth above, is
equally applicable to the issue presented and now under
consideration . An employer has a right to run its busi-
ness as it sees fit subject generally of course to various
applicable laws and , particularly, as affects this case, to
its employees ' Section 7 rights under the Act. In balanc-
ing these respective rights the Supreme Court's direction
that consideration must be given to the employees' eco-
nomic dependence on their employers and the effect of
this relationship , comes into play and becomes an impor-
tant factor . Initially, while there is no allegation that the
Respondent 's decisions concerning plant closure and em-
ployee layoffs was violative of the Act,62 still it should
be remembered that this decision was made in December
1980, subsequent to the advent of the Union's organiza-
tional campaign and the Board 's hearing in the represen-
tation case involving the Respondent and the Union.
Moreover, the economic conditions that were the basis
for the Respondent 's decision to close one of its plants
and lay off employees at its other facilities , were in exist-
ence for some time prior thereto, and the announcements
were made to employees on January 9 and 12, 1981, after
the date of the Board election had been announced and
within 1 week of the holding of such election on January
16, 1981.
Additionally, the actual implementation of the Re-
spondent 's decision concerning plant closure and em-
ployee layoffs was scheduled for different dates at differ-
ent facilities, giving the Respondent , in all actuality,
some flexibility in the timing of any announcement. The
Borregas Avenue facility was scheduled for "phase-out"
between January and June 1981, and employee layoffs at
the Melbourne , Florida, and San Luis Obispo, California
facilities were set for January 16 and February 27, 1981,
respectively.
The Respondent asserts that , "the announcements, to
avoid rampant rumors , at other locations , had to be
made prior to layoffs at the Melbourne plant which were
scheduled to begin on January 16, 1981." However, it
would appear from the evidence that the Respondent
had tolerated similar "rampant rumors" previously re-
garding the possibility of the closing of the Borregas
only Antunez so testified . Wobermin's testimony thus remains unrebutted 62 The uncontradicted evidence shows that the Respondent had a
and is credited by this and for other considerations set forth "substantial business justification" therefore.
TRW CORP.
Avenue plant and for a "considerable amount of time,"63
without taking any immediate action to dispel , explain,
or "avoid" such rumors among its employees . It further
occurs to me, concerning the layoffs at the Melbourne,
Florida, and San Luis Obispo, California facilities, that
these plants are separated by the width of the North
American Continent being located on the east and west
coast of the United States , respectively . Be that as it
may, Kent Anderson , the Respondent 's director of
human resources,64 candidly admitted in his testimony
that given the fact of the Board 's election scheduled for
January 16, 1981, and that employee layoffs at the San
Luis Obispo facilities were not to become effective until
February 27, 1981 , the Respondent could just as well
have announced the layoffs after the election than
before, as it did , although he added that it was "better
employee relations practice" to have made the announce-
ment when the Respondent did and to all its employees
at the same time.
Furthermore, the credited testimony of Vickie Wober-
min shows that at the January 12, 1981 meeting with em-
ployees at its Southwood Drive facility in San Luis
Obispo, the Respondent 's plant manager, Mac Brinton,
along with announcing the Respondent 's decision to lay
off production employees at its San Luis Obispo facili-
ties, also remarked that , "with the Union organizing
going on, he didn 't want to hide anything . He wanted to
be right up front and let them-let everyone know that
there would be a layoff." Again applicable as analogous
is the Supreme Court's statement in the Gissel case that,
"[T]he Board has often found that employees who are
particularly sensitive to rumors of plant closings, take
such hints as coercive threats rather than honest fore-
casts." Although I am cognizant of the fact that the lay-
offs were of assembly employees and did not involve the
technical employees who were present at this meeting,
yet the election was only 4 days away at the time of this
announcement and involved plant closure and layoffs at
two other facilities so that the employees at the meeting
could well have taken such announcement as possibly
applicable to them in the future and as "coercive threats
rather than honest forecasts ," analogously.65
Finally , although there is evidence in the record that it
was the Respondent 's policy to notify employees affected
by a company decision as soon as possible, and that em-
ployee layoffs in the past were announced in advance,
yet the record also shows that the actual timing of such
advance announcements varied and in those prior in-
stances appeared not to have been required to be consid-
ered in the context of a "labor relations setting," as here.
In the total context of this record , I find and conclude
that the timing of the announcement in its relation to the
January 16 , 1981 election was motivated by antiunion
hostilities also manifested elsewhere in the Respondent's
conduct and, therefore , the Respondent 's announcements
63 See the testimony of Kent Anderson
64 Anderson is "responsible for all the personnel administration pro-
grams" and "involved in the area of communication of [layoff deci-
sions to the employees] "
65 Threats to employees made shortly before a scheduled election are
not to be taken lightly because they may influence the outcome of the
election Hilton Inn, 232 NLRB 873 (1977).
21
of layoffs during the critical preelection period constitut-
ed implied threats of loss of employment in violation of
Section 8(a)(1) of the Act.66
6. Alleged threats to withhold work reviews
The complaint alleges that the Respondent threatened
its employees orally and by posted notice to withhold
work reviews and keep March reviews at a standstill if
the Union won the election , all in violation of Section
8(a)(1) of the Act. The Respondent denies these allega-
tions.
a. Analysis and conclusions
Diana Keppel testified that sometime in December
1980, she observed a "bulletin" posted on the bulletin
board at the Respondent 's Tank Farm Road Annex facil-
ity, which stated that employee work reviews would not
be given if the Union won the election , "because the
company would be negotiating with the Union." Keppel
attributed the notice to either Mac Brinton or Gerald
Cross and indicated that it had a "TRW Vidar" letter-
head . Vickie Wobermin testified that "about three
weeks" before the election she saw a "Question of the
Day" posted on a bulletin board at the Respondent's
Southwood Drive facility that asked the question , in sub-
stance, what would happen to employee work reviews
during the Union negotiations , and answered that, "ev-
erything would be frozen-that there would be no re-
views, because everything had to stay the same way
during the negotiations." Brinton and Cross denied either
authorizing , publishing , or posting such notices, and the
Respondent even questions the actual existence there-
of.67
66 Taylor-Dunn Mfg Co , 252 NLRB 799, 814 (1980), J. P. Stevens &
Co., 244 NLRB 407 (1979) Contrast Aunt Millie's Sauces, 259 NLRB 278
(1981), where the Board found that there was a valid business reason for
the employer 's decision , as is true of the instant case , but also that the
announcement thereof, when made to employees, was not inconsistent
with its usual practices and "there was no mention of the Union or of the
pending election at the time the initial terms of employment were an-
nounced"
Moreover, the cases cited by the Respondent in support of its conten-
tions regarding this issue , in all actuality do not do so and are readily
distinguishable from the instant case. In R. J Reynolds Tobacco Co, 240
NLRB 620 (1979), the Board affirmed an administrative law judge 's find-
ing that an employer 's action in telling employees during an election
campaign that, "something big is going to happen after this election is
over," did not constitute a violation of Section 8 (a)(I) of the Act How-
ever , the ALTS finding was based on the ambiguity of such statement
since it was equally susceptible "of an interpretation as either a threat of
reprisal or a promise of benefits " and "of an innocuous interpretation." In
the instant case the statements of layoff were clear and unequivocal
Other differences are also plainly apparent between the cases
It is similarly apparent from a reading of C & E Stores, 221 NLRB
1321 (1976), that this case also fails to support the Respondent's position.
Most importantly , in the instant case the layoff and the dates thereof had
actually been set and included in the announcements of layoffs, although
this in and of itself is not violative of the Act.
67 Although the Respondent admits that , "During the pre-election
campaign , the Respondent posted a number of bulletins which collective-
ly were called 'Questions of the Day' on various bulletin boards at its
facility," it also asserts that it posted no "Question of the Day" other
than those contained in R Exh 3(a-m) This exhibit contains no "Ques-
tion of the Day" that specifically makes reference to employee work re-
views
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Furthermore, Keppel testified that on Monday, Janu-
ary 12, 1981, 4 days before the Board's scheduled elec-
tion on January 16, 1981, Cross held a meeting of em-
ployees at the Tank Farm Road Annex facility where he
told the employees that if the Union won the election,
there would be no work reviews because everything
would be at a "standstill" while negotiations proceeded.
Cynthia Stevens, who had also attended the January 12,
1981 meeting, testified similarly regarding what Cross
had told the employees at this meeting. She stated that
Cross had said that during negotiations between the Re-
spondent and the Union, the Respondent's "hands would
be tied" and therefore "everything would be at a stand-
still" including the March employee work reviews.
Cross denied that he had mentioned anything about
the March work reviews or that they would not be
forthcoming. He also denied stating to the employees
that wages or benefits would "be frozen" or "be at a
standstill." However, Cross acknowledged that he had
read the following from a prepared text, which he fol-
lowed without departure except for one explanatory in-
stance,
If the union wins, however, our hands would be
more or less tied while the company bargained with
the union-that is, we couldn 't make any changes
unless both sides agreed or until the company had
satisfied its bargaining obligation.
John Lane, a production supervisor also present at this
meeting , testified that Cross spoke directly from a pre-
pared text , which Lane identified as Respondent 's Exhib-
it 2, and "I do not recall any extemporaneous speaking
whatsoever." He also testified that Cross had never
stated that the March reviews would be at a standstill,
canceled , or frozen during his presentation at this meet-
ing.
From the above it is obvious that the resolution of this
issue depends substantially on a credibility determination
between the witnesses for the General Counsel and the
Respondent, respectively . I admittedly have found such a
determination to be difficult and distressing at best. As
the administrative law judge observed in Cos Walker's
Cash Stores, 249 NLRB 316, 321 ( 1980):
Resolution of credibility conflicts are often diffi-
cult, requiring the weighing of equally plausible
narrations of testimony of witnesses who appear to
be telling the truth and who are no more prejudiced
and biased than others who are telling a wholly dif-
ferent story . Of times, there are no fatal inconsisten-
cies nor contradictions for the determiner of factual
issues to seize upon to arrive at a firm conclusion.
In those instances , the trial judge or jury must rely
upon a sixth sense and instinct , which makes the
resolution of certain conflicts somewhat unsatisfac-
tory, leaving the chance, somewhat slight and many
times significant , that the final decision was errone-
ous. A reasonable doubt remains.
Although I have found that some of the above observa-
tions hold true in this case , still reasonable , appropriate,
and valid credibility resolutions can be and have been
made based on a careful review of all the evidence, my
observation of witness demeanor , the weight of the re-
spective evidence , established or admitted facts, inherent
probabilities , and reasonable inferences that may be
drawn from the record as a whole.68
After carefully considering all of the above factors, I
tend to credit the account of what occurred regarding
the events bearing on the issue under consideration, as
given by the General Counsel 's witnesses , for the reasons
that their testimony was generally forthright , mostly
clear and unequivocal , and consistent with each other
and the other evidence present in the record . Moreover,
while I also believed much of the general testimony
given by the Respondent 's witnesses , yet when it came
to bear on the crucial incidents that gave rise to the alle-
gations of unlawful conduct on the Respondent 's part,
the emphasis of their testimony was directed toward ac-
quitting such conduct of any tinge of unlawfulness as op-
posed to the truth of what actually occurred . 69 Their
testimony at times was contradictory and equivocal and
inconsistent with the other evidence in the record, as
will be referred to hereinafter.
Initially, and in reinforcement of my above credibility
determination , is that Vickie Wobermin was still em-
ployed by the Respondent at its Southwood Drive facili-
ty in San Luis Obispo at the time she testified in this
matter . As an employee of the Respondent , her testimo-
ny, adverse to its positions here , was given at consider-
88 Gold Standard Enterprises , 234 NLRB 618 (1978 ), V & W Casting's,
231 NLRB 912 ( 1977); Northridge Knitting Mills , 223 NLRB 230 (1976). 1
have also taken note in such resolutions that even witnesses whose de-
meanor and forthrightness of testimony engendering belief will often give
testimony that in part may seem inconsistent or unclear because of the
passage of time requiring the remembrance of things and events past.
ea Cross testified that he followed a prepared text (R Exh. 2) in ad-
dressing the employees at the January 12 , 1981 meeting and did not devi-
ate therefrom except once , to explain to them the meaning of the term
"challenged ballot ." However , the copy of the text in evidence is replete
with sentences that have been crossed out, indicating that Cross omitted
these in his presentation Additionally , question marks appear alongside
certain paragraphs , and words and sentences are underlined there creat-
ing ambiguities regarding what these signified to Cross and whether he
intended to or did in fact elaborate on these as he had done with the term
"challenged ballot," one of which significantly was the phrase "we
couldn't make any changes" if the Union won the election and the Re-
spondent 's hands were more or less tied, "changes " impliedly encompass-
ing wages and undefined benefits and other conditions of employment
Moreover, John Lane, a management employee and present at this
meeting, also testified that Cross had spoken from a prepared text and not
extemporaneously and had not departed therefrom After reviewing R.
Exh 2 , he identified it as a copy thereof However , his testimony regard-
ing this became suspect when , on cross-examination, it was revealed that
Lane did not have a copy of the prepared text before him at the meeting
nor had he seen it prior thereto . And, according to his own testimony, it
was only after the meeting had concluded that he had the opportunity to
"glance at the top sheet" of the text, but he "did not go through the
whole thing "
As the evidence shows, the Respondent , during the month of Decem-
ber 1980, and admittedly during the month of January 1981, up until the
time of the election on January 16 , 1981, "conducted a vigorous cam-
paign in opposition to the Union's organizing efforts " Thus, the Re-
spondent 's antiunion feelings were obvious to its management personnel,
whose interests would be furthered by support of their Employer's posi-
tion thereon rather than opposition or indifference thereto I do not mean
to infer or suggest that this is in any was unlawful , unless manifested by
these employees in a manner violative of the Act . It is mentioned to give
perspective in focusing events and management personnel actions that oc-
curred here.
TRW CORP.
able risk of economic reprisal , including loss of employ-
ment or promotion, and therefore unlikely to be false.70
Additionally , at least as applicable to Cynthia Stevens, if
not to Diana Keppel as well, and although laid off for
economic reasons, Stevens left the Respondent 's employ
prior to the hearing and under circumstances that show a
decided lack of animosity and bad feelings between she
and the Respondent , therefore she had no apparent
reason to testify as she did other than as to her own
recollection.71
Also of some significance in resolving this issue in
favor of the General Counsel , aside from the above
credibility findings , is the fact that although Cross testi-
fied that at the January 12, 1981 meeting , he not only re-
frained from mentioning anything about employee work
reviews, but also did not tell the employees that wages
or benefits would "be frozen" or "be at a standstill." The
evidence shows that Cross did read , as part of his pres-
entation from the prepared text , the following,
Myth No. 2-
If the Union wins, there will be a quick contract.
Don't count on it. First , contract negotiations are
often lengthy and can end up being drawn out over
a long period of time . And the employees wait for
raises and improvements in benefits while this takes
place.7 2
Aside from the contradiction implicit in the above be-
tween Cross ' denial regarding what he actually said
about wages and benefits and what he read above, and
albeit my crediting the testimony of Keppel and Stevens
as to what he told the employees at this meeting, even
assuming arguendo that Cross did not actually mention
employee work reviews by name and that such would not
be forthcoming if the Union won the election , yet the
clear and unequivocal impression that this would be the
case was conveyed to the employees by this statement as
being the only possible implication and meaning the em-
ployees could draw.
Rank-and-file employees are generally much less so-
phisticated in concepts and nuances of labor relations
law than are management employees, especially when
managements ' actions are orchestrated by labor relations'
counsel . The Respondent's practice and procedure con-
cerning employee raises was to issue employee work re-
views in March and September of each year on which
the amount of the raises, if any, were based. Thus, em-
ployees were well aware that without work reviews as in
the past , no salary raises would be granted, and as
70 The Board has long held that testimony against the interests of one's
employer while still in its employ is entitled to added support . 7-Eleven
Food Store, 257 NLRB 108 (1981 ); Shop-Rite Supermarket, 231 NLRB 500
(1977), DePaul Community Health Center, 221 NLRB 839 (1975); Georgia
Rug Mill, 131 NLRB 1304 (1961). Although I am also aware that Wober-
min was apparently a strong and active union adherent , I do not believe
that this fact without more offsets the peril inherent in an employee testi-
fying against the employer while still so employed
71 Tri-County Tube, 194 NLRB 103, 107 ( 1971). Stevens testified that
after notifying her of her intended layoff effective 2 weeks hence, the Re-
spondent actively assisted her in obtaining other employment with a dif-
ferent company , although Stevens thereafter found a better job by herself
before she started on this other position
72 R. Exh. 2 at 6
23
Keppel so credibly testified , "that's what everyone waits
for, are the reviews . That's when we get our raises in
pay."73 With this as background , Cross advised the em-
ployees that if the Union won the election , the Respond-
ent's "hands would be more or less tied while the com-
pany bargained with the Union ," that no changes could
be made unless both parties agreed or bargaining had
been satisfied . Soon thereafter Cross stated to them that
bargaining negotiations could be lengthy , "drawn out
over a long period of time ," and that employees would
then have to "wait for raises and improvements in bene-
fits while this takes place ." It was therefore obvious to
the employees that if the Union won the election, the
Respondent was telling them that no raises or improve-
ments in benefits would be granted while it negotiated
with the Union , and implicit in this therefore was the
withholding of the next work reviews , the March
review.74
Regarding the posting of written notices , the Respond-
ent, in its brief, states that the sole support for the
"Phantom Wage Freeze Notice" was the testimony of
Vickie Wobermin . This is incorrect since Diana Keppel
also testified that she had seen a notice concerning em-
ployee work reviews at the facility where she worked.
The Respondent maintains that the Union 's failure to
produce the notice supports its position of the nonex-
istence thereof. However, these would be notices pre-
pared and posted by the Respondent 's personnel depart-
ment , i.e., "Question of the Day," and in their control, so
how could the Union or the General Counsel produce
such notices unless the employees had removed them
from the company bulletin board , an act that I am sure
the Respondent does not encourage or condone regard-
ing posted notices . Moreover , Cross' testimony to the
effect that the "Questions of the Day ," which were in-
troduced into evidence by the Respondent, constituted
all those that were produced during the campaign and
that contained nothing about work reviews , was not cor-
roborated under oath by Pace , the Respondent 's counsel,
who allegedly authored all such notices. Although I am
sensitive to the ramifications of counsel testifying at the
same hearing in which he is representing a client, in the
instant case a witness testified to seeing a document al-
leged by an adverse witness to be nonexistent . Certainly
Pace 's testimony would have some bearing thereon.
The Respondent also asserts , in support of its denial
that it posted any notices threatening to withhold em-
ployee work reviews if the Union won the election, that
Cross published a memorandum dated December 5, 1980,
to "Supervision" instructing them to review their em-
ployees' performances in preparation for the "March 1,
1981, Performance Reviews," which shows that the Re-
spondent actually intended to issue such reviews.75
73 It is no wonder that Keppel and Stevens remembered Cross' state-
ments concerning this clearly while other topics he spoke about were
vague or forgotten entirely. To these employees, the work reviews and
possibly resulting pay raises were of paramount importance, taking prece-
dence over everything except job loss by layoff, discharge, or plant clo-
sure.
74 Again the Supreme Court's holding in the Gissel case rings true con-
cerning employer-employee relations.
7 b R. Exh 7.
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
However, even assuming that this was true when this
memorandum was issued on December 5, 1980, the Re-
spondent 's position could have changed as the Union's
organizing campaign heated up and its own campaign in
opposition thereto substantially increased in response to
Board notification to the parties about December 18,
1980, of the now-pending election to be held on January
16, 1981. Credited testimony that notices to the contrary
were posted by the Respondent directed to the employ-
ees amply shows that such a change might well have oc-
curred.
With the above in mind , the question to be resolved
now is whether such statements made by the Respond-
ent, orally and in writing , constitute a violation of Sec-
tion 8(a)(1) of the Act. The Respondent asserts in its
brief, "Even if it is found that Respondent did state that
March reviews would be 'at a standstill ,' such statements
are lawful under the Act." I do not agree that such state-
ments made by the Respondent are lawful under the Act.
The Board in Signal Knitting Mills, 237 NLRB 360,
361 (1978), set forth the principles applicable to the issue
presented . The Board stated
It is well established that an employer 's legal
duty in deciding whether to grant benefits while a
representation proceeding is pending , is to act pre-
cisely as it would if a union were not in the picture. In
the instant case , however, Respondent posted a
notice which purported to set forth the conse-
quences, vis-a-vis potential increases in wages or
benefits, of the Union's filing of objections to an
election . However , the notice contained no qualify-
ing language indicating that the "freeze" would
apply only to benefit and/or wage increases not in
accord with Respondent 's past practice . Further, the
notice indicated that the Union was the sole cause of
the wage and benefit freeze, thus placing the onus of
the employees ' potential loss of financial improvements
on the Union . Accordingly, we find that the notice,
on its face , conveyed to employees the message that
their union activity would harm their prospects for
improved wages and benefits and, therefore , threat-
ened and coerced employees in the exercise of the
rights guaranteed them in Section 7 of the Act in
violation of Section 8(a)(1) of the Act . [Emphasis
added.]
In the instant case the Respondent had a longstanding
policy of reviewing employee work performances twice
a year, in March and September , and granting or with-
holding wage increases based on these employee work
reviews . It is uncontested that if the Union were not in
the picture , such work reviews would have issued as in
prior years . Thus, the Respondent 's threats to withhold
employee work reviews, in actuality a threat to deny em-
ployees the basis for wage increases as in the past, was
unlawful . Moreover , by indicating expressly or impliedly
that this would only occur if the Union won the election
and the Respondent had to negotiate with it , the Re-
spondent was indicating to the employees that the Union
was the sole cause of their being denied their work
review and thus any wage increases , thereby placing the
onus of such potential loss of financial improvements on
the Union . The threatening and coercive effect of the
Respondent 's statement is most cogently illustrated by
Keppel 's testimony that,
Because if there was not to be any reviews, it
would sway the boat of the employees because
that 's when we get our raises in pay.
Accordingly , I find and conclude that the Respond-
ent's statements made orally and by posted written
notice, conveyed to its employees the message that their
union activity , i.e., voting in favor of the Union in a
Board-conducted election , would harm their prospects in
the exercise of the rights guaranteed them in Section 7 of
the Act in violation of Section 8(a)(1) of the Act.76
IV. THE EFFECT OF THE UNFAIR PRACTICES ON
COMMERCE
The activities of the Respondent set forth in section
III, above , found to constitute unfair labor practices oc-
curring in connection with the operations of the Re-
spondent described in section I, above , have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices , I shall recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
In light of the standards set forth in Hickmott Foods,
242 NLRB 1357 (1979), I conclude that a broad remedial
order is inappropriate since it has not been shown that
the Respondent has a proclivity to violate the Act or has
engaged in such egregious or widespread misconduct as
to demonstrate a general disregard for the employees'
fundamental rights . Accordingly, I recommend the use
of the narrow injunctive language "in any like or related
manner" in the recommended Order.
CONCLUSIONS OF LAW
1. The Respondent , TRW Vidar, a Division of TRW
Corporation , is an employer engaged in commerce
within the meaning of Section 2 (2), (6), and (7) of the
Act.
2. Teamsters-Warehousemen Local 381, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen &
76 United States Gypsum Co., 254 NLRB 339 (1981); Air Express Inter-
national Corp., 245 NLRB 478 (1979), Signal Knitting Mills, 237 NLRB
360 (1978). Also see Champion Road Machinery International Corp, 264
NLRB 927 (1982) 1 do not find merit to the Respondent's assertion that
the cases cited by the General Counsel in its brief and by me here are
"readily distinguishable from the facts of the instant case " I do find.
however, such distinguishability concerning the cases cited by the Re-
spondent in its brief in support of its contentions, i e, in Patsy Bee, Inc.,
249 NLRB 901 (1980), the administrative law judge and the Board found
that the evidence did not establish the existence of "a failure to abide by
established practice," among other things , as was established in the instant
case.
TRW CORP. 25
Helpers of America , is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent has interfered with, restrained, and
coerced its employees in the exercise of their rights guar-
anteed in Section 7 of the Act, and has thereby engaged
in unfair labor practices in violation of Section 8(a)(1) of
the Act by
(a) Denying to its off-duty employees equal nondis-
criminatory access to its facilities for purposes of engag-
ing in activities protected by Section 7 of the Act.
(b) Promulgating and discriminatorily enforcing an un-
lawfully broad no-access rule.
(c) Impliedly threatening its employees with layoff if
the Union won the election by unlawfully timing its an-
nouncements thereof during the critical preelection
period because of anitunion hostilities.
(d) Threatening to withhold its March employee work
reviews if the Union won the election.
4. That the unfair labor practices found above are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed77
ORDER
The Respondent , TRW Vidar, a Division of TRW
Corporation, San Luis Obispo, California , its officers,
agents, successors , and assigns, shall
1. Cease and desist from
(a) Denying its off-duty employees equal nondiscrim-
inatory access to its facilities for purposes of engaging in
activities protected by Section 7 of the Act.
(b) Promulgating and discriminatorily enforcing an un-
lawfully broad no-access rule.
(c) Impliedly threatening its employees with layoff if
the Union won an election.
(d) Threatening to withhold its March employee work
reviews or any such reviews if the Union won the elec-
tion.
(e) In any like or related manner interfering with, re-
straining , or coercing employees in, the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its San Luis Obispo, California facilities, in-
cluding the Southwood Drive and Tank Farm Road
Annex facilities , copies of the attached notice marked
"Appendix."78 Copies of the notice, on forms provided
by the Regional Director for Region 31, after being
signed by the Respondent's authorized representative,
shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspic-
uous places including all places where notices to employ-
ees 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.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
Tr If no exceptions are filed as provided by Sec 102.46 of the Board 's Ta If this Order is enforced by a judgment of a United States court of
Rules and Regulations , the findings, conclusions, and recommended appeals , the words in the notice reading "Posted by Order of the Nation-
Order shall , as provided in Sec . 102 48 of the Rules, be adopted by the al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
Board and all objections to them shall be deemed waived for all pur- the United States Court of Appeals Enforcing an Order of the National
poses. Labor Relations Board "