Veeder-Root Co.

National Labor Relations Board - Board Decisions

Aug 25, 1978

237 N.L.R.B. 1175 (N.L.R.B. 1978)

VEEDER-ROOT COMPANY
Veeder-Root Company, a Division of Western Pacific
Industries, Inc. and Pamela Bates and Theresa For-
tune. Cases 1-CA-13694 and 1-CA-13697
August 25, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JE NKINS
AND PEN ELI.0
On June 5. 1978. Administrative Law Judge
George F. McInerny issued the attached Decision in
this proceeding. Thereafter, the Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel submitted a brief in support of the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings.' and
conclusions 2 of the Administrative Law Judge and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Veeder-Root Company,
a Division of Western Pacific Industries, Inc., Hart-
ford, Connecticut, its officers, agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order.
The Administrative L aw Judge inadvertently stated in fn 7 of his Deci-
sion that "Respondent was in ans was damaged . .he v.ord "no"
should be substituted for the word "any."
2 In the absence of exceptions. the Board adopts.proforma, the Adminis-
trative Law Judge's dismissal of the additional alleged violations.
DECISION
STATEMENT OF THE CASE
GEORGE F. MCINERNY, Administrative Law Judge: This
case was heard at Hartford, Connecticut, on March 1,
1978. The consolidated complaint I alleging violations of
Section 8(a)(l) of the National Labor Relations Act, as
Allegations in the complaint alleging violations of Sec. 8(bi( I I(A} of Ihe
Act by Capital City Lodge No. 354 of District 26, International Assoclatilon
of Machinists and Aerospace Workers. AFL (CIO. ere settled prior ito the
opening of the hearing. The complaint was amended at the hearing to delete
all references to such allegations.
amended, issued December 5, 1977. This complaint, in
turn, was based on charges filed by Pamela Bates and
Theresa Fortune alleging that their employer, the Respon-
dent herein.2 had warned other employees about associat-
ing with them and had warned both, and suspended one of
them, for engaging in activities protected by the Act. Re-
spondent's answer denies these allegations.
Upon the entire record in the case, including the testi-
mony, exhibits. and briefs, I make the following:
FINDINGS OF FACT
I JLRRISDIC ION
The Company is a Connecticut corporation engaged in
the manufacture, sale, and distribution of counting, re-
cording, and controlling instruments at its Hartford, Con-
necticut, plant. It annually ships from its plant finished goods
valued in excess of $50,000 directly to points located outside
the State of Connecticut. The complaint alleges, the answer
admits, and I find that the Company is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II IHI ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The facts in this case are brief, uncomplicated, and un-
denied.
On April 20, 1977, company officials observed the
Charging Parties, Pamela Bates and Theresa Fortune, pass-
ing out literature outside the plant gates, on a public side-
walk and before working hours, to employees as they were
coming into the plant.
The literature in question was a single sheet, printed on
both sides, which seems to have been primarily designed to
urge participation in a "May Day" rally to be held in Bos-
ton on April 30, 1977.
However, the literature contained a great deal of strident
and inflammatory rhetoric directed against capitalism, op-
pression, South Africa, employers, and labor leaders, and
exhorted its readers to violent but unspecified revolu-
tionary activity. Particular references were made to Re-
spondent's activities with respect to its employees. Piece
rates were described as "jacked up." Workers were
"thrown out" of work, made to do the work of two, injured
because of speedups and harassed "to death."
After they had observed this distribution of the literature
by the Charging Parties, company officials obtained copies
and then called a meeting between Michael A. Petro, the
Company's personnel director, the union (grievance) com-
mittee, and, separately, with the two individuals who had
passed out the flyers. There is no evidence as to what Bates
said at this meeting. Fortune was described as defiant,
threatening to "sue us and do a lot of things.3
The complaint was amended at the hearing to show the Compan)'s
change in affiliation from a Disision of Veeder Industries. Inc. to a Dis-
sion of Western Pacific Industries. Inc
3 While she was present at the hearing. Fortune was not called upon to
testif).
237 NLRB No. 186
1175
DECI)SIONS OF NATIONAL lABOR RFI.ATIONS BOARI)
Based on the previous experience with Fortune,4 the
Company, through Petro, administered a 3-day suspension
to her.5 Presumably because Bates had not been involved
before, she was given a written warning.
There were two other instances of alleged violations of
law by Respondent. The first of these occurred in either
April or May 1977. 6 Fortune was observed by Staley and
two other supervisors talking to other workers. including
Bates, for a period of 15 minutes. Staley could not hear
what was being said, and he made no investigation to de-
termine whether this conversation interfered with the pro-
duction records of any of these three employees. He did.
however, give Fortune a verbal warning for "interference"
with her own work and the work of others. The verbal
warning was memorialized in the form of a written report
on the incident.
The second incident occurred in July 1977 and involved
Pamela Bates. She testified that a woman was apparently
injured on the job and rushed out of the area where then
both were working. Bates left her lugging machine, went
over to investigate, observed blood, and began discussing
the incident with another woman. At this point a person
admitted by Respondent to be a supervisor came hby and
told the women to stop talking about it. In Bates' testi-
mony the supervisor told the other woman not to talk, par-
ticularly to Bates, about it. He then told Bates she should
be working and if she was working then it wouldn't be ans
of her business.
B. Discus .von
A threshold question to be decided relative to the distri-
bution of literature on April 20 is whether that action con-
stituted concerted activity.
As noted above, the main message of the literature ap-
peals to the readers to attend a May Day rally in Boston.
Other parts of the sheet inveigh against classes, groups, and
individuals. If this were all, there would be a serious doubt
of the connection between this activity and the kinds of
activities listed in Section 7 of the Act.
However, the third paragraph of the flyer refers specifi-
cally to the employer:
Even as they, throw some of us out of work, they come
down harder on those of us still on the job. Here at
4 Fortune had been engaged fir sonic mine ihe dilseminatmni hlcraiulr' ol
an almost identical nature to the ilaterial irisolxced im this ase Shlt had
worn T-shirts and hullons be ring jejune res lutiininar sllanx anid had I
passed ou fiseers advertising some kind if film to, eeri all lf thl prior
activili had occurred in the plant, during s, orking hi urs I-or these alttiillt
she h ad been disciplined, and the disciplinary actioi, ass uphield bx ran
arbitrator. I do not consider that this pri'l actsl I, t) .LIrrllI as It i111 11
the (lonipans's tinme and piopert. i ies rclnt to the isses ill this ase. etei
though the ( orpiln\'s actsions maYn ha.ie been mo tini ed hb i nslideliit1
of that prior a;civit .
Ihere was eidence that the t nlion prsced i less \etliC fr it-,.ne
reason did not take the matter to arhbitrltion Since the illeiatlols ll 1 tl
complaint relative to the Unihon uere wiihdrarn. this is i0 ll ii ltclll ia Ihe
issues here
6James T. Stales .i general forem in testified that the incidenrl tocsilicd
on May 5, 1977 A document refeiring io the incident dlated April . 1977
Stale' was unsure, hut thought the date on the documen t 1itght he ii crror
I find that the incident occurred in N1la
Veeder-Root we see piece work rates being jacked up,
we are forced to work faster having one worker do the
job of two so we can meet the bosses production quo-
tas. We see people risking their own safety, getting
fingers caught in the way of the machinery as we
struggle to make the bosses' rates. And the bosses
here, as in every other shop. harass us to death when
we take up the fight against these outrages. They fear
us when we fight them as individuals, but what gets
them really shaking in their boots is when we're orga-
nized together to take them on like we're gonna [sicJ
be on May Day when we raise our demand FIGHT
WAGE CU FS AND SPEED-UP!
While this paragraph, like the remainder of the docu-
ment. is phrased only in the most general terms, it is related
to such items as piecework rates. layoffs, production quo-
tas, and safety, all of which, in turn, are related to employ-
ment and all of which are properly the subject of negotia-
tions and grievances. Further, it is admitted that it was this
paragraph to which Personnel Manager Petro took offense
and on which he based the disciplinary action against
Bates and Fortune. This action. then, was not taken be-
cause of the political message of the flyer,' but because of
what he considered inaccurate and offensive references to
the Company contained in the paragraph quoted above.
I find, therefore, that by distributing this document on a
public street before working hours, Bates and Fortune were
engaged in concerted activity.
Hlaxving made this determination, the next question to be
decided is whether this activity is protected by law or
whether, as Respondent argues, the references to it are so
scurrilous, defamatory', and insulting as to render distribu-
tion of such matters outside the protection of the Act.
Thlie Board and the courts have attempted over the years
to balance the right of employees to engage in concerted
activities for the purpose of collective bargaining or other
mutual aid or protection. On the other hand, the employer
has a right to maintain plant discipline and to bar inflam-
matory material from its premises. N I. R.B. v. Local 1229.
/Inlterlronlol Brotherhlood o/ i/cclri(al Workers [Jefferson
S'altldard BroadulcastinA, ( onpanlp /, 346 U.S. 464 (1953);
Marltland Drvtdock (Conpaln v. N.L.RB., 183 F.2d 538
(C .A. 4, 1950).
One type of case where activities such as those here have
been held to be unprotected manifests a pattern of con-
duct, handbilling. picketing. or otherwise demonstrating in
a manner unrelated to wages, hours, or working conditions,
or alleged unfair labor practices of the employer. This was
the case in \ IL.R.B. v. Ircal 1229. Electrical Workers, su-
ptL,. w here broadcast technicians employed by a radio sta-
tion. instead of striking over a contract dispute, launched
an attack, described by the Court as "vitrioloc," on the
compans's broadcasts. 'Ihe technicians were discharged.
tUpholding the discharges, the Court emphasized the lack
of connection between the activities of the technicians and
their wages. hours, and working conditions. Indeed, the
employees omitted all references to their contract dispute
RcponidentI's hiel'[ idiitslte, Ih~lt Respondent was in any sa.i damaged
a. mii
x
c*,l t1 tI / 11i (111in.d ed Ihe f]ler
1176
VEEDFR-ROOT COMPANY
with the employer, thereby diverting attention from it to
focus upon "public policies of the company which had no
discernible relation to that controversy." "It was a continu-
ing attack . . . upon the very interests which the attackers
were being paid to conserve and develop." N. L. R B. v. l.o-
cal 1229, Electrical Workers, supra at 476.
Similarly, in cases where. though the activities ma' be of
a nature which would generally be termed protected. the
attitude of the employees is flagrantly dislosal. wholly in-
commensurate with any grievances which they may have.
and manifested by public disparagement of the employer's
product or undermining of its reputation. the Board has
held disciplinary action to be justified. Firethous.v RAtrau-
rant, 220 NLRB 818 (1975).
In the instant case, the actions of Bates and Fortune
bear a sufficient relation to their wages, hours, and condi-
tions of employment to avoid the thrust of these cases. It
may also be noted that there is no evidence here that an's
attempt was made to involve the general public. The flier
appears to be directed at Veeder-Root employees. The dis-
tribution was made at the plant gates at a time when em-
ployees were coming in to work. No members of the public
were seen in the area, and there is no indication of any
wider distribution of this flyer.
Another series of cases approaches the problem from the
viewpoint of the innate propriety of the activity, even
though the activity is clearly related to wages, hours, work-
ing conditions, or grievances arising out of these condi-
tions. The Supreme Court, many years ago, pointed out the
function of the Board to work out adjustments between the
right to self-organization and the "equally undisputed right
of employers to maintain discipline in their establishments,
further noting this 'Opportunity to organize and proper
discipline are both essential elements in a balanced soci-
ety.'" Republic Aviation Corporation v. N.L.R.B.. 324 i.S.
793, 798 (1945).
Pursuant to this general direction, the Board has worked
out standards in an attempt to attain this balance. " he
Act does not protect everything an employee ma's do or
say in the course of union or concerted activits and has
ruled that there are certain standards of conduct which
must be observed in the course of such activity for an em-
ployee to retain the Act's protection. The Board, however.
has determined that publication of 'false.' 'misleading.' or
'inaccurate' statements made in the course of concerted
activity do not deprive such activity of the Act's protection,
provided that the statements were not 'deliberately or mali-
ciously false,' and further that it is immaterial to a determi-
nation that an employer has unlawfully discharged an em-
ployee for giving currency to inaccurate information in the
course of concerted actisity that the employer acted upon a
good faith belief that the information was deliberately or
maliciously false if such were not the case." El Mundo
Broadcasting Corporation. 108 NLRB 1270, 1278-79 (19541.
Beyond this, an employer may legitimately impose disci-
pline where employee conduct "exceeds the bounds of le-
gitimate campaign propaganda or is so disrespectful of the
employer as seriously to impair the maintenance of disci-
pline." N.L.R.B. v. Blue Bell, Inc., 219 F.2d 796. 798 (C A.
5, 1955); Maryland Drydock Co. v. N. L. R. B., supra., Indiana
Gear Works v. N.L.R.B., 371 F.2d 273 (C.A. 7. 1967):
Southwestern Bell Telephone Company, 200 NLRB 667. 670
(1972); United Parcel Service, Inc.. 230 NLRB 1197 (1977).
In a case containing some curious similarities to this
case. emplosyees were discharged ostensibly for falsifying
their employ)ment applications. The Board found, however,
that theN were in fact discharged for the distribution of
literature and the wearing and sale of T-shirts bearing the
message "FI ight Speed-up." .4nierican Motors Corporation.
214 NL.RB 455. 462 (1974). As in the instant case, the liter-
ature in .4lmoerican 3tlotors bore a strident and threatening
message w hich company officials viewed as "political." But
there. as here. there was a connection between the lan-
?uaec of the literature and wages, hours, and working con-
ditiotns in the plant.
l here is no question but that the literature distributed by
Bates and Fortune was harsh and intemperate in tone, but
there are no statements in that literature which urge any-
one to do anything which would be disruptive of Company
discipline or would distrub the right of the Company to
entjoi an orderl, workplace. There was no testimony from
emploNces or anyone else that an' disruption or interrup-
tion of ordinars. normal activities took place following this
distribution.
Further. it may be fairly said that the references to the
Compan? are certainly misleading. if not inaccurate or
false. There was. however. no testimony from Bates or For-
tune as to whether the statements were framed or the litera-
ture distributed with a malicious intent or as a part of a
design to falsify deliberately.
Based on the standards cited above. I am constrained to
find that the two employees were here engaged in lawful
protected concerted activity. and that Respondent, by im-
posing discipline on them for this reason, even though in
perfect good faith its agents believed that the literature dis-
tributed vwas deliberately and maliciously false, violated
Section 8(a)(I ) of the Act.
C(. iin' I orhbal Ilrning to ihere.sa Fortune
the onls evidence in the record concerning the verbal
warning given to Fortune on Man 5, 1977, is the testimony
of James 1. Stale), a general foreman, that on that date he
observed Fortune leave her work station and engage three
other employees, including Bates. in conversation for a pe-
riod of 15 minutes. IThis activity entailed a violation of
several compan) rules.
Counsel for the General Counsel, in his brief, character-
izes Stale\ 's response to Fortune's conduct as "shoot from
the hip punishment" and urges that I infer from the prior
incidents invol ing Fortune that this warning was a part of
a campaign to "stamp out all employee concerted activity
in an effort to guarantee as trouble-free a labor relations
atmosphere as possible."
llowever. in order to proceed from a suspicion to an
inference to a finding of a violation of law requires that
IRcspondent
'
, counrsei did olt cross-examine Bates and Fortune. who
did not Ictlds at lil. In addlllo,. the xaguenes of the references io the
-,rking londition, indtatcs lano desire hs the auihhors to bargain indepen-
detirl, of h t bein as o 1) .onac ithin the aimbii otf Fmptlir-r ('apI ,1
i t( (), 420 t) S 5i 1975}
1177
DECISIONS OF NATIONAL LABOR REI.ATIONS BOARD
there be some evidence of a discriminatory motive. or cir-
cumstances pointing to unusual or disparate treatment ac-
corded this individual which was not directed toward
others. I am not an arbitrator, interpreting the collective-
bargaining agreement and applying broad concepts of fair
treatment and industrial justice. Thus, the failure of Staley
to investigate the circumstances of the conversation be-
tween Fortune and the others is not significant. unless it
were shown that Staley ordinarily followed such a proce-
dure, and did not only in this instance. General Counsel
has submitted no evidence on this point. Indeed. General
Counsel has submitted no evidence at all on this incident
other than Staley's own testimony that he saw Fortune vio-
lating company rules and he wrote her up for it.
In the absence of antiunion animus, and I have found
that even with respect to the distribution incident Respon-
dent was acting in good faith under the impression that the
literature was false, misleading, and inaccurate. I cannot
find this incident to be in violation of Section 8(a)(1).
D. The Incident Invsolving Pamnela Bate.s
In like manner, this incident appears to be isolated and
almost meaningless. An employee is injured and rushed
out of the shop. Other employees gather, as is perfectly
natural, to discuss the incident. A supervisor tells the em-
ployees to stop talking and return to work. which is also
perfectly natural. The only element in the whole incident
which might be termed suspicious is the statement by Bates
that the supervisor told another girl not to discuss the mat-
ter, particularly with Bates. There is no other evidence on
this issue. Kodes, the supervisor, was not called as a wit-
ness. More significantly, the other employee, identified in
the record as "Stella." was not called to corroborate Bates'
testimony.
In these circumstances, I conclude that General Counsel
has not supported this allegation by a preponderance of
the credible evidence and therefore find that the allegation
has not been sustained.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent has violated Section 8(a)( ) of the Act by
issuing a disciplinary warning to Pamela Bates and by sus-
pending Theresa Fortune.
3. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
4. Respondent did not violate Section 8(a)(1) of the Act
in any other manner.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Respon-
dent to cease and desist therefrom and to take certain affir-
mative action designed to effectuate the policies of the Act.
Having found that Respondent unlawfully issued a
warning to its employee Pamela Bates, I recommend that
Respondent expunge such warning from its records.
Having found that Respondent unlawfully suspended its
employee Theresa IFortune on April 21, 22, and 25, 1977, I
recommend that Respondent make her whole for any loss
of earnings suffered by her as a result thereof by payment
to her of a sum of money equal to that which she normally
would have earned but for the unlawful suspension, with
interest thereon to be computed in the manner prescribed
in F 11 ' o W /rorth Companre. 90 NLRB 289 (1950). and
l/oritda Steel ('orporation, 231 NLRB 651 (1977). 9
Upon the foregoing findings of fact, conclusions of law,
and the entire record. and pursuant to Section 10(c) of the
Act. I hereb\ issue the following recommended:
ORDE R l0
The Respondent. Veeder-Root Company, a Division of
Western Pacific Industries, Inc., Hartford. Connecticut, its
officers. agents, successors. and assigns, shall:
I. Cease and desist from issuing written warnings to or
suspending employees for engaging in concerted activities
for their mutual aid or protection, or in any other manner
interfering with, restraining, or coercing its employees in
the exercise of their rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Expunge from her records the written warning issued
to Pamela Bates on April 20, 1977.
(b) Expunge from her records the written notice of sus-
pension issued to Theresa Fortune on April 20, 1977. and
make her whole for any loss of earnings as a result of her
unlawful suspension in the manner set forth in the section
entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination or copying, all payroll
records. social security payment records, timecards. per-
sonnel records and reports, and all other records necessary
for determination of the amount of backpay due under the
terms of this Order.
(d) Post at its place of business in Hartford, Connecti-
cut, copies of the attached notice marked "Appendix." "
Copies of the notice, on forms provided by the Regional
Director for Region I. after being duly signed by Respon-
dent's representative, shall be posted by it immediately
upon receipt thereof and be maintained by it for 60 consec-
utive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that such notices are not altered, defaced, or covered by
any other material.
See, generallt. Ii. Phlirbinig & Hl'ting (',, 138 Nl RB 716 (1962).
In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National I abor Relations Board. the findings.
conRlusIrs. and the recommended Order herein shall. as provided in Sec.
102.48 of Ihe Rules and Regulations he iadopted bh the Board and become
its findings,, conclusions. and Order. and all objections thereto shall be
deemed waived for all purposes.
" In the esent this Order is enforced by a judgment of a United States
Court of Appeals, the Wxords in the notice reading "Posted by Order of the
National I abor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the titred States (ourt of Appeals Enforcing an Order of the
National l.hbor Relations Board."
1178
VEEDER-ROOT COMPANY
(e) Notify the Regional Director for Region I, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS HEREBY FURTHER RECOMMENDED that the complaint be.
and it hereby is, dismissed to the extent it alleges violations
not found herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REIATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the change to give
evidence, it has been decided that we have violated the
National Labor Relations Act and we have been ordered
to post this notice.
The National Labor Relations Act gives you, as employ-
ees, certain rights, including the rights:
To self-organization
To form, join, or help unions
To bargain collectively through a representative
of your own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all such activities.
Accordingl,. we give you these assurances:
Wi anIt -ol issue written warnings to or suspend
employees for engaging in concerted activities for
their mutual aid or protection, or in any other manner
interfering with, restraining, or coercing our employ-
ees in the exercise of their rights guaranteed above.
Wr \ ILL NOT suspend you. reprimand vou, or other-
wise discriminate against you in respect to your hire.
tenure, or any other term or condition of employment
because you join, support or assist a union.
WE A ILL expunge from her records the written warn-
ing issued to Pamela Bates on April 20, 1977.
WE WIi.l expunge from her records the written no-
tice of suspension issued to Theresa Fortune on April
20, 1977. and WE wii make her whole for any loss of
earnings as a result of her unlawful suspension, with
interest.
VEt-DFR Roor COMPANY A DIvISION OF WESTERN
PAClfI( INDt:ST RIFS, IN(
1179