Wagner Electric Corp.

National Labor Relations Board - Board Decisions

Jan 30, 1975

216 N.L.R.B. 392 (N.L.R.B. 1975)

392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wagner Electric Corporation and International Union
of Electrical , Radio and Machine Workers, AFL-
CIO-CLC. Case 10-CA-10666
January 30, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On October 31, 1974, Administrative Law Judge
Joel A. Harmatz issued the attached Decision in this
proceeding . Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three -member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings , findings, and
conclusions 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Wagner Electric
Corporation, Sevierville, Tennessee, its officers,
agents , successors , and assigns , shall take the action
set forth in the said recommended Order.
DECISION
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is a corporation with an office and principal
place of business located at Sevierville, Tennessee, from
which it is engaged in the manufacture of automobile
electrical accessories and other electrical components.
During the calendar year preceding issuance of the
complaint, a representative period, Respondent shipped
and sold from said location finished products valued in
excess of $50,000 directly to customers located outside the
State of Tennessee.
I find that Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint, as amended , alleges , the answers admits,
and I find that International Union of Electrical, Radio
and Machine Workers, AFL-CIO-CLC, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
There is no bargaining history covering employees at
Respondent's Sevierville facility. Operations first com-
menced at that location in May 1972 and were based
initially in a temporary facility during construction of a
new plant. At the temporary location, there was an attempt
to organize Respondent's employees which apparently was
later abandoned. In November 1972, production opera-
tions began in the newly constructed plant. The testimony
of Plant Manager Frank Fellin and Personnel Manager
Robert Montgomery conceded that the Company opposed
organization of its employees at the new plant. Both are
named in the complaint as the principal offenders of
employee statutory rights during a renewed organizational
effort which began in either late 1973 or early 1974.
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge: This case
was heard in Sevierville, Tennessee, on September 12, 1974,
upon a charge filed on April 1 , 1974, and a complaint
issued on May 22, 1974, as amended on July 30, 1974,
alleging that Respondent violated Section 8(axl) of the
Act by coercively interrogating employees concerning their
union activity, by threatening to refuse the hiring of job
applicants who supported union activity , by threatening
that it would move the plant if employees joined the
Union, and by maintaining an unlawfully broad no-
distribution rule. Respondent's duly filed answers denied
that the alleged unfair labor practices were committed.
After the close of the hearing , briefs were filed by the
General Counsel and Respondent.
Upon the basis of the entire record in this proceeding,
including my observation of the witnesses while testifying,
and upon careful consideration of the posthearing briefs, I
make the following:
216 NLRB No. 77
B. Issues
The complaint presents questions as to whether Re-
spondent in furtherance of its desire to maintain a union-
free operation, unlawfully interfered with statutory organi-
zational rights by coercive interrogation and threats and by
maintenance of an unlawfully broad restriction on employ-
ee distribution of literature on company property. With the
exception of the no-distribution rule, the issues presented
are factual , turning upon a resolution of conflicting
testimony.
C. The Restriction on Employee Distribution of
Union Literature
The allegation that Respondent violated Section 8(a)(l)
in this respect gives rise to a question of law. Respondent
admits that, since October 2, 1973, each newly hired
employee at Sevierville was given a booklet entitled
"Wagner Handbook," which contained the following
restriction:
WAGNER ELECTRIC CORPORATION 393
Soliciting - soliciting contributions, selling tickets,
distributing handbooks or pamphlets, except when
permitted by the Personnel Department, is forbidden.
The above rule on its face precludes, in all-encompassing
terms, the distribution of "handbooks or pamphlets." The
distribution of such materials on behalf of a labor
organization is not specifically exempted from the prohib-
ition, and the rule reasonably would be understood as
including such activity within the broadly stated ban, even
if conducted in nonworking areas, on an employee's own
time. Under settled authority, such limitations on employ-
ee distribution' of union literature "must be presumed to be
an unreasonable impediment to self-organization and
therefore discriminatory in the absence of evidence that
special circumstances make the rule necessary in order to
maintain production or discipline." i
Respondent, by way of defense, makes no showing that
special considerations warranted a prohibition upon the
statutory right of employees to distribute literature in
nonworking areas on nonworking time. Instead, it is
argued that no unfair labor practice should be found
because the rule was not designed to apply to union
activity, and was neither intended to be, nor actually
enforced, against such activity. Consistent with Respond-
ent's argument testimony adduced on its behalf indicates
that at a meeting with employees in September 1972, those
in attendance were informed that they had a right to
distribute on behalf of the Union on company property in
nonworking areas on nonworking time. Further testimony
indicates that management officials on other occasions,
when questioned by employees as to their rights to
distribute literature, mformed such employees to the same
effect.
Assuming the accuracy of the evidence offered by
Respondent in support of its contention, the defense is
lacking in merit . Whatever Respondent's uncommunicated
intent in formulating the rule, it was nevertheless drafted in
a manner proscribing all distribution of literature on
company property. The rule was never modified specifical-
ly so as to narrow the scope of the ban and to permit
protected forms of union distribution. Employees were
never informed by means which would have had a
comprehensive reach and which would have placed all on
notice that union distribution on company property was
permitted if conducted in nonworking areas on nonwork-
ing time . It is not enough that those who happened to be
employed at the time of the September 1972 meeting with
the plant manager or who made specific inquiry, were
informed of the unwritten, unpublished limitation upon the
scope of the written rule. Indeed, as Plant Manager Fellin
and Personnel Manager Montgomery admitted in their
testimony, the only reference to the Company's policy with
respect to union distribution available to employees who
did not attend the September 1972 meeting was the
"Wagner Handbook." It may well be that an uninformed
employee, by asking a supervisor or other management
official, could ascertain that the company policy behind
the rule did not limit protected activity. However,
Respondent cannot be relieved of the restraining effects of
its published rule by creating a situation whereby employ-
ees, as a prerequisite to engaging in protected union
activity, must divulge their intentions in that regard to
management.2 For the above reasons I find that Respond-
ent violated Section 8(a)(1) of the Act by maintaining a
published prohibition on distribution which, by its terms,
prohibited employees from distributing union literature in
nonworking areas on nonworking time.
D. Interrogation and Threats
Two former employees of Respondent, Roy Burrows and
Junior Burns, were called by the General Counsel and gave
testimony supporting the 8(a)(1) allegations imputing
coercive conduct to Plant Manager Frank Fellin and
Personnel Manager Robert Montgomery.
Thus, according to Burns, on January 7, 1974, in the
course of a preemployment interview , Montgomery asked
Burns what he thought about Respondent being organized
by a union. Burns responded in noncommittal fashion.
Burns further testified that he was given a job and the next
day, when he reported to work, he was asked by
Montgomery whether Bums knew that another plant in the
area (the Concordia plant, which had been organized) had
closed down because of a union. When Bums replied in the
negative, Montgomery is alleged to have said that more
than one-third of the work force at that plant had applied
at Wagner, and that Respondent had no intention of hiring
any of them. Montgomery denied that the Union was
discussed during his January 7 interview of Burns. With
respect to their January 8 conversation, Montgomery
admits to informing Burns that Respondent's plant in
Sevierville was not organized and "that we did not feel that
we needed a union," but denied that he made the
statements Bums attributes to him concerning the Concor-
dia plant. Montgomery further denied that he ever
questioned Burns concerning his sentiments towards
organization . Also, according to Montgomery, it was
Burns, rather than himself, who injected both the subject of
the closing of the Concordia plant and the difficulty that
employees of Concordia would face in attempting to find
work. I credit Burns over Montgomery. Bums impressed
me with his forthright responses and, considering the
nature of the remedy involved here, I regard it as entirely
unlikely that his account of the conversations were
manufactured, nor do I believe that his interests in the
outcome were of such a nature as to influence him to
i See Peyton Parking Co, Inc, 49 NLRB 828, 843, 844(1943), and
Stoddard-Quirk Manufacturing Co., 138 NLRB 615(1962).
2 See J R Simplot Company Food Processing Division, 137 NLRB 1552,
1553(1962), where the Board held a rule unlawful which prohibited all forms
of solicitation save those authorized by the employer , and in doing so
rejected the employer' s contention that union solicitation was always
authorized . The Board reasoned that an employer cannot predicate the
exercise of a Section 7 rights upon its own authorization I regard J. R
Simplot as dispositive of Respondent 's contentions in this case . Here, as in
that case, the published rule was so broad as to require unknowing
employees either to comply and forego union distribution on plant premises,
or to take the initiative to inquire of management as to whether the
Employer authorized this form of statutorily protected union activity. J R
Simplot also brands as immaterial the fact that an employer may be
possessed of an uncommunicated intention to refrain from applying a
published , unlawfully broad rule to union activity
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violate the oath.3 On the other hand, from my observation
of Montgomery, his testimony reflected an evasiveness as
to certain matters so obviously within his knowledge as to
reflect a general reluctance on his part to reveal the actual
extent of the Company's antiunion policy and the steps
taken in furtherance thereof. Furthermore while I consider
it unlikely that Burns would have raised the Concordia
issue , the fact that in subsequent antiunion propaganda
Respondent referred to that closedown as part of its
antiunion message, heightens the probability that Mont-
gomery would have been disposed to make a similar pitch
to a new hire.
Having credited Burns, I find that Montgomery, by
questioning him, during the initial employment interview,
as to his union sentiments , engaged in coercive interroga-
tion violative of Section 8(a)(1) of the Act. I further find
that, through Montgomery' s statement on January 8, 1974,
to the effect that Respondent would not hire applicants
with a history of representation by a labor organization,
Respondent coerced an employee in a manner calculated
to restrain him in the exercise of Section 7 rights, and
thereby also independently violated Section 8(a)(1) of the
ACt.4
Roy Burrows testified concerning two instances in
February 1974, in which he was approached by Plant
Manager Fellin and Montgomery, respectively. Both
occurred shortly after the new plant was opened to the
public for inspection on February 9, 1974. According to
Burrows, a few days after this "open house", Fellin
approached him at his work station and stated that he
heard that Burrows brought two union representatives
from the Electrical Workers to the "open house." Fellin
then asked Burrows, if he was trying "to get a union in."
Burrows replied that he did not know what they were
trying to do, adding that if Felten didn't know, "he'd be
hurting." Fellin admits to raising the issue with Burrows,
but denies that he questioned Burrows as to the latter's
intention with respect to the Union. Instead, Fellin testified
that he simply asked Burrows "if he knew that these fellows
were talking to our employees about the Union."
I agree with the General Counsel that under either
version Fellin's inquiry was calculated to elicit Burrows'
union sentiments, and, under the circumstances, even if
credited, Fellin's version would constitute coercive interro-
gation violative of Section 8(a)(1). In any event, I regard
Burrows as the more credible. I consider it entirely unlikely
that Fellin would have put the question to Burrows in the
form Fellin describes. Two aspects of Felhn's testimony
engender doubt. First, considerable concern arises as to
why Fellin would seek out Burrows simply to ascertain
whether Burrows, himself, knew what the individuals he
was taking through the plant were doing. Fellin's explana-
tion that he took this course in order to make sure that
Burrows knew what they were doing, "in case he did not
want to get involved with the union," was entirely
unconvincing. It is highly doubtful that Fellin would have
sought out Burrows for that limited purpose. I am also at a
loss to understand how Fellin could have assumed that
Burrows, as Fellin's testimony implies, did not know what
the people that Burrows was escorting through the plant
were doing. Considering the foregoing, and Fellin's
admitted opposition to the Union, I credit Burrows'
version as the more consistent with the probabilities; i.e.,
that Fellin was disturbed by the reports that an employee
had taken advantage of the "open house" as a means of
providing nonemployee union adherents access to the
plant and that Fellin wanted to get to the bottom of this
incident. I find that Respondent, by Fellin's questioning of
Burrows as to union activity, violated Section 8(a)(1) of the
Act.
Burrows further testified that a few days after the above
confrontation with Fellin, Montgomery approached Bur-
rows at'his work station , stating that the Company did not
need a union, and "if the Union came in, the plant would
move away." Montgomery, while not specifically denying
that he made any such statement, testified that he did not
remember discussing the Union with Burrows on any
occasion other than a terminal interview, in which Burrows
had signified his intention to quit in order to take a better
job. I credit Burrows. I have previously discredited
Montgomery in connection with his conversation with
Burns . My observations relative to Montgomery's demean-
or underlying that credibility finding are equally applicable
here. Furthermore, it would seem that the threat attributed
to Montgomery by Burrows involved one of the more
blatant forms of coercion, which if not in fact made, would
have been emphatically denied. Montgomery's repeated
imposition of lack of recollection as to Burrows' account,
enhances the latter's credibility. I find that Respondent
violated Section 8(a)(1) by Montgomery's threat that the
plant would move if organized by the Union.
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2 (2), (6), and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By maintaining a published rule precluding employ-
ees from distributing union literature on company proper-
ty, by coercively interrogating employees concerning their
union activity or sentiments , by threatening not to hire
applicants because they previously were represented by a
union , and by threatening that the plant would move if
organized by the Union , Respondent has violated Section
8(a)(1) of the Act.
3 Discrepancies in Burn's pretrial affidavit as to the actual date of his 4 Contrary to Respondent 's contention , the fact that Burns , at the time of
preemployment interview and the physical setting of his January 8 the conversations with Montgomery, had no view one way or the other on
conversation with Montgomery are regarded as negligible and not of the question of union representation , does not diminish the unlawfulness of
sufficient import to be given overriding weight in assessing his credibility . Montgomery 's remarks
WAGNER ELECTRIC CORPORATION
4. The aforedescribed unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact , conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 5
Respondent, Wagner Electric Corporation , Sevierville,
Tennessee, its officers, agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Interfering with , restraining , and coercing employees
in their right to form , join, or assist a labor organization, by
maintaining a rule precluding distribution of union
literature in nonworking areas on nonworking time, by
coercively interrogating employees concerning their union
activity or sentiments, by threatening that job applicants
previously represented by a union would not be hired, and
by threatening that the plant would move if organized by a
union.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights to self-organization , to form, join, or assist labor
organizations , including International Union of Electrical,
Radio and Machine Workers , AFL-CIO-CLC, to bargain
collectively through representatives of their own choosing,
to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities:
2. Take the following affirmative action, which I find
will effectuate the policies of the Act:
(a) Post at its Sevierville , Tennessee , plant copies of the
attached notice marked "Appendix.."6 Copies of the notice
on forms provided by the Regional Director for Region 10,
after being duly signed by an authorized representative of
the Respondent , shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained for 60
consecutive days thereafter, in conspicuous places , includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that the notices are not altered , defaced, or
coverer} by any other material.
395
(b) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
5 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall , as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions, and Order and all objections thereto shall be
deemed waived for all purposes.
6 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order 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
WE WILL NOT maintain a rule precluding our
employees from distributing union literature in non-
working areas of the plant on nonworking time.
WE WILL NOT question our employees concerning
their activities on behalf of a union.
WE WILL NOT threaten to move the plant if our
employees choose to be represented by a union.
WE WILL NOT threaten to deny employment to job
applicants because of their previous representation by a
union.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce our employees in their right to
self-organization, to form labor organizations, to join
or assist the International Union of Electrical, Radio
and Machine Workers, AFL-CIO-CLC, or any other
labor organization, to bargain collectively through
representatives of their own choosing, to engage in
concerted activities for the purpose of mutual aid or
protection, or to refrain from any and all such
activities.
WAGNER ELECTRIC
CORPORATION