Yamaha Music Mfg.

National Labor Relations Board - Board Decisions

Feb 28, 1991

301 N.L.R.B. 1097 (N.L.R.B. 1991)

1097
301 NLRB No. 137
YAMAHA MUSIC MFG.
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
1 Respondent’s name appears as stipulated at the hearing.
2 The pleadings establish that Craft was a supervisor and an agent of Re-
spondent within the meaning of the Act.
Yamaha Music Manufacturing, Inc. and Industrial
Union Department, AFL–CIO. Case 10–CA–
24528
February 28, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On August 22, 1990, Administrative Law Judge
Howard I. Grossman issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Yamaha Music Manufac-
turing, Inc., Thomaston, Georgia, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
Mary Bulls, Esq., for the General Counsel.
John R. Crenshaw, Esq. (Crenshaw & Johnson), of Atlanta,
Georgia, for the Respondent.
Harold McIver, Organizing Director, of Riverdale, Georgia,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge. The
charge was filed on January 3, 1990, by Industrial Union De-
partment, AFL–CIO (the Union), and complaint issued on
February 2, 1990. It alleges that Yamaha Music Manufac-
turing, Inc.1 (Respondent or the Company), in early Decem-
ber 1989, solicited its employees to report to Respondent the
union activities of its employees, and prohibited its employ-
ees from talking about the Union during working hours, in
violation of Section 8(a)(1) of the National Labor Relations
Act (the Act). The complaint also alleges that Respondent
issued a written warning to employee Keith Fleming because
of his union and other protected activities, in violation of
Section 8(a)(3) and (1) of the Act.
A hearing was held before me on these matters in
Thomaston, Georgia, on April 5, 1990. On the entire record,
including briefs filed by the General Counsel and Respond-
ent, and on my observation of the demeanor of the witnesses,
I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Georgia corporation with an office and
place of business in Thomaston, Georgia, where it is engaged
in the manufacture of musical instruments. During the cal-
endar year preceding issuance of the complaint, a representa-
tive period, the Respondent sold and shipped from its
Thomaston, Georgia facility finished products valued in ex-
cess of $50,000 directly to customers located outside the
State of Georgia. Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act. The parties stipulated, and I find, that the Union
is a labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Fleming’s Union Activities
Fleming had been employed for about 2 years at the time
of the hearing as a template fixture maker. A union cam-
paign started in late November or early December 1989, and
Fleming attended union meetings. On about December 11,
during working time, Fleming notified about 10 employees
that there would be a union meeting that evening, and asked
them to attend. One of these was James M. White. Accord-
ing to Fleming, he was going to the stockroom to pick up
some parts while White was coming by on a forklift. Flem-
ing testified that this conversation took ‘‘a couple of sec-
onds,’’ and White affirmed that he did not stop working.
B. Respondent’s Investigation and Warning to Fleming
1. The conversation between White and
Supervisor Craft
(a) Summary of the evidence
James E. Craft Jr. was the Company’s supervisor of mate-
rial control and distribution.2 He testified that ‘‘manage-
ment’’ had asked him to keep it informed if he heard any-
thing about unions. Craft also stated that several employees
told him that Fleming had invited them to a union meeting.
Craft told Vice President Ingram Haley of these reports, and
the latter directed Craft to get statements from employees.
Craft obtained several statements. One of the employees in-
formed Craft that Fleming had also talked to White, and
Craft called the latter to his office for an interview on the
afternoon of December 11, the same day that Fleming had
spoken to White.
White testified that Craft told him that he was not going
to ‘‘have’’ or ‘‘provoke’’ a union. The supervisor gave
White a pencil and pad, and directed him to write down what
Fleming had said to White. White protested and asked the
reason, but Craft told him to write the statement and told
him that no one would get into trouble. White testified that
1098 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 G.C. Exh. 3.
4 Bohemia, Inc., 266 NLRB 761, 764 fn. 13 (1983); Southern Paint & Wa-
terproofing Co., 230 NLRB 429, 431 fn. 11 (1977).
5 The Company elicited testimony from White that he was ‘‘upset’’ with
Craft because the latter, subsequent to the interview, issued an adverse ap-
praisal of White which he thought was unfair. White testified that he told the
supervisor that he would try to improve. I have carefully considered this evi-
dence. It is insufficient to offset the reasons for crediting White which are set
forth above.
6 The pleadings establish that Leverett was a supervisor and an agent of Re-
spondent within the meaning of the Act. 7 G.C. Exh. 2.
he ‘‘didn’t have any choice.’’ The statement reads: ‘‘Keith
Fleming informed me of a union meeting at Best Western
Motel.’’ Beneath the text is the legend: ‘‘Time: (Maybe
Break).’’ The words ‘‘Maybe Break’’ are lined out, and the
words ‘‘(Before Break)’’ written underneath them.3
According to Craft, he told White that Vice President
Haley had instructed him to get a ‘‘voluntary’’ statement
from any employee to whom Fleming had spoken. Asked on
cross-examination whether he told White that the latter’s
statement was ‘‘voluntary,’’ Craft said that he had to think
a moment before answering, and then contended that he did
say this to White. However, Craft also testified that White
‘‘was leery because he felt like it might get somebody in
trouble.’’
Craft explained the alteration in White’s statement. When
White handed it to him, Craft note the words ‘‘Maybe
break.’’ The supervisor concluded that this must have been
false because of what another employee had told him, pre-
sumably about another conversation the other employee had
with Fleming. Craft then handed the statement back to White
and told him to be ‘‘absolutely positively sure about the time
and if he couldn’t be sure about the time there was really
no need in taking the statement.’’ White then crossed out the
words ‘‘Maybe break’’ and wrote ‘‘Before break.’’
Craft denied telling White that the employees were not
going to bring a union into the plant. However, he admitted
telling White that the Union was a ‘‘crock,’’ and agreed that
talk about unions bothered him because, he testified, ‘‘I don’t
like Unions.’’
(b) Factual analysis
White was a current employee at the time of his testi-
mony. The Board has concluded in similar circumstances that
such testimony is entitled to considerable weight since it is
unlikely to be false when it is adverse to an employee’s pe-
cuniary interest, such as preservation of a job.4 Further,
Craft’s testimony partially corroborates White. The latter was
a more credible witness than Craft, who, I conclude, was bi-
ased.5 I find that Supervisor Craft directed White to write a
statement concerning what Fleming had said to White, and
thereafter induced White to change the document so as to in-
dicate that Fleming’s statement was made ‘‘before break,’’
i.e., during working time rather than during a break period.
As indicated, this was factually correct. Further, Craft told
White that he was not going to have a union in the plant.
2. Respondent’s conversations with and warnings
to Fleming
(a) Summary of the evidence
Phil H. Leverett was Respondent’s administration man-
ager.6 He testified that Company Vice President Haley in-
formed him that Fleming, during working time, was asking
employees to attend union meetings. Leverett then had a
number of conversations with Fleming. According to
Leverett, the first of them took place on December 11, the
same day that Fleming spoke to employees. Fleming, in re-
sponse to a leading question, affirmed that his initial con-
versations with Leverett occurred several days after his con-
versations with employees. The evidence shows that Leverett
was accompanied by Fleming’s supervisor, Lewis Eaton, dur-
ing the first meeting.
Fleming testified that Leverett told him that he was ‘‘so-
liciting,’’ and that he ‘‘could not talk about the Union during
working hours.’’ Fleming replied that, if the employees could
talk about football, they could talk about the Union. Leverett
argued that talk about the Union would offend people and
gave Fleming a writeup which the latter read and signed. All
Fleming could remember about the document was that it said
he would be discharged if he continued to talk about the
Union. Fleming asked for a copy of the writeup, but Leverett
replied that the copying machine was malfunctioning, and
that Leverett would give him a copy at a later time.
Leverett testified that Fleming raised the subject of em-
ployees talking about sports (baseball), and contended that
this caused some ‘‘confusion’’ in his mind. He argued that
discussing sports was different from asking some one to go
to a union meeting because the latter constituted ‘‘solicita-
tion.’’ Since there was some doubt about the matter, Leverett
asserted, he told Fleming that he would get ‘‘clarification’’
rather than ‘‘issue’’ the warning. Asked by company counsel
whether he told Fleming that he was ‘‘withdrawing’’ the
writeup, Leverett replied, ‘‘Not at that point; we said that it
would need to be clarified.’’ Leverett denied that he told
Fleming that the reason for not giving him a copy of the
writeup was a malfunctioning copying machine—rather,
Leverett averred, the reason was Leverett’s doubt that the
warning constituted a ‘‘correct notice.’’ Leverett did not
deny Fleming’s testimony that Leverett said Fleming could
not talk about the Union during working hours. Supervisor
Eaton did not testify.
Fleming attempted to get a copy of the warning on two
occasions the same day. At lunchtime, he testified, Leverett
said that he had ‘‘re-read’’ the law, and had to rewrite the
warning because there were ‘‘some disagreements’’ in it.
Leverett agreed that he spoke to Fleming at lunch, and told
him that the matter had not yet been ‘‘clarified.’’ Fleming
sought out Leverett again at the end of the day and the same
exchange took place. Fleming did not obtain a copy of the
warning.
Fleming testified that ‘‘right after’’ he received the first
warning, he told other employees that the Company had
‘‘written [him] up’’ for talking about the Union. James
White affirmed that Fleming told him that Leverett had
‘‘written him up’’ for informing White and others about a
union meeting. According to White, both he and Fleming
were ‘‘upset’’ and ‘‘worried.’’
Fleming had another meeting with Leverett at which he
was given an ‘‘Employee Action Report’’ dated December
12, 1989,7 a Tuesday. Although this date was only 1 day
after the December 11 conversations between Fleming and
Leverett, Fleming testified that he received the document on
1099YAMAHA MUSIC MFG.
8 The reason for the report is said to be a ‘‘policy violation,’’ and reads:
Your approaching YMM employees in their work areas and/or during
their or your work time in soliciting for any reason is prohibited. This
is to remind you of that fact and advise you that any further violation
of Company policy may result in disciplinary action from counselling up
to and including termination (G.C. Exh. 2).
9 Whether Leverett gave a malfunctioning copying machine as the reason for
his failure to give Fleming a copy—as Fleming asserted—or did not do so
because of his doubts about the accuracy of the first writeup is not particularly
significant. I conclude that Leverett first gave the copying machine expla-
nation, and, later during the same day, told Fleming that the matter had not
yet been clarified.
10 R. Exh. 2.
11 Fleming and White also testified about announcements posted on a bul-
letin board about various matters, including a hunting and fishing club, and
White’s forthcoming marriage.
Friday of the same week, i.e., December 15. Leverett initially
contended that this meeting took place on December 12, but
conceded that it may have been on Friday of the same week.
Leverett carried the first writeup into the meeting. Fleming
somehow obtained possession of it, and said that he wanted
a copy because he had signed it. Leverett took it back, said
that it was ‘‘no good’’ and that a copy would not be in
Fleming’s file, and tore it up. He then gave Fleming the De-
cember 12 ‘‘Employee Action Report,’’ which ‘‘cautioned’’
Fleming for ‘‘soliciting’’ during working time.8 He did not
tell Fleming that the first warning would not be repeated.
White testified that he heard nothing about the first warning
being torn up, and that the Company did not say anything
about the matter.
(b) Factual analysis
I conclude from Fleming’s unrebutted testimony that dur-
ing his first meeting with Leverett on December 11, the latter
told him that he could not talk about the Union during work-
ing hours. Leverett then gave Fleming a ‘‘writeup’’ which
the latter signed. It stated, at least in part, that Fleming
would be discharged if he continued to talk about the Union.
Leverett refused to give Fleming a copy when the latter pro-
tested. Although the administration manager told Fleming
that the writeup needed ‘‘clarification,’’ he specifically testi-
fied that it was not withdrawn ‘‘at that point.’’9
On the next day, December 12, Fleming told another em-
ployee that he, Fleming, had received a writeup for telling
employees about a union meeting. Both employees were
upset.
I conclude that the next meeting between Leverett and
Fleming took place 3 days later, on December 15. Leverett
tore up the original writeup, told Fleming that it was invalid,
and said that a copy would not be in Fleming’s file. At the
same time, Leverett gave Fleming the ‘‘Employee Action
Report’’ dated December 12.
There is no evidence that the Company told any other em-
ployee about invalidation of the first writeup or its oral rule
to Fleming, or gave assurances that any such action would
not be repeated in the future.
3. Respondent’s written no-solicitation rule
(a) Summary of the evidence
At all times material, Respondent maintained a written rule
stating that ‘‘[s]oliciting for any cause on company premises
during an employee’s working time or distributing literature
of any kind in working areas during an employee’s working
time or otherwise, or soliciting or distributing literature so as
to interfere with employees who are themselves working is
prohibited.’’10 As explicated at the hearing, the General
Counsel’s position is that the written rule is facially
unobjectionable, but that it was disparately and therefore un-
lawfully applied. In addition, the General Counsel argues that
an unlawfully broad rule was orally promulgated.
Fleming testified that he purchased raffle tickets from an
employee in the plant during working time and that Girl
Scout cookies were also sold. These activities were con-
ducted ‘‘openly.’’ White affirmed without contradiction that
he purchased raffle tickets from Supervisor Craft ‘‘during
working time,’’ and that Craft told him that the employees
‘‘could talk about anything’’ as long as they did not stop
working. White further stated that there was a ‘‘flower fund’’
for hospitalized family members of employees, and that an
employee collected contributions from other employees for
this fund ‘‘during working hours.’’11
Administration Manager Leverett contended that any form
of ‘‘solicitation’’ constitutes a violation of company policy.
This would include, according to Leverett, one employee
asking another to go to a football game. Company policy
with respect to such solicitation depends on individual cir-
cumstances, particularly whether the solicited employee is
engaged in dangerous work. Therefore, different types of so-
licitation are treated differently. Leverett acknowledged that
the company sponsors hunting and fishing events, and that
notices pertaining to these matters are posted on a bulletin
board. He denied knowledge of the sale of raffles but admit-
ted knowledge of the collection of money for hospitalized
family members.
Supervisor Craft testified that he organizes various func-
tions which the company sponsors—hunting, fishing, and
archery contests, and softball games. Craft signs up employ-
ees for these events, and was uncertain whether he did so
‘‘only’’ during break periods. Notices of these events are
posted on a bulletin board. In addition, Craft instructs the
telephone operators to make announcements concerning these
events ‘‘over the intercom . . . ten or fifteen minutes before
the time to get off work.’’
Craft testified that every one in his department had signed
up for the ‘‘flower fund,’’ and that an employee collected
money for it, although Craft stated that he did not know
whether collection took place during working time. Requests
for United Way contributions take place during an annual
‘‘birthday luncheon . . . during normal lunch hours.’’ This
is the ‘‘only charitable organization that Yamaha supports.’’
Craft has asked on direct examination whether he was aware
of any other type of solicitation ‘‘for charitable functions’’
which took place ‘‘during time when employees were sup-
posed to be working.’’ Craft answered, ‘‘Not charitable func-
tions.’’ He was then asked whether he was aware of ‘‘any
type of solicitation,’’ but direct examination was terminated
without an answer to this question.
(b) Factual analysis
Despite Respondent’s printed rule prohibiting ‘‘solicita-
tion’’ during ‘‘working time,’’ the evidence establishes that
it permitted and engaged in such activity. I credit White’s
uncontradicted testimony that Supervisor Craft sold raffle
1100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 See also, in addition to the cases cited in Sorenson, Corrugated Partitions
West, 275 NLRB 894, 985 (1985); F. Mullins Construction, 273 NLRB 1016,
1023 fn. 1 (1984); and Horizon Air Services, 272 NLRB 243, 253 (1984).
13 Respondent cites Consolidated Edison Co., 280 NLRB 338 (1986), where
the Board found that interrogation concerning an employee’s union activities
was not unlawful. However, in that case the employee in question was not
only soliciting on working time, but was also interfering with the work activi-
ties of other employees. There is no evidence of that here. See sec. 3, infra.
14 Angelica Healthcare Services, 284 NLRB 844 (1987); Southwest Gas
Corp., 283 NLRB 543 (1987); Highland Steam Laundry, 272 NLRB 1056
(1984); Our Way, Inc., 268 NLRB 394 (1983).
15 NLRB v. S. E. Nichols, Inc., 862 F.2d 952 (2d Cir. 1988), enfg. as modi-
fied 284 NLRB 556 (1987); Marathon LeTourneau Co. v. NLRB, 699 F.2d
248 (5th Cir. 1983), enfg. 256 NLRB 350 (1981); T & H Investments, 291
NLRB 409 (1988); Our Way, Inc., supra; Timken Co., 236 NLRB 757 (1978).
tickets during working time, and Craft’s admission that he
caused announcements of various activities unrelated to work
to be made to employees over a public address system a few
minutes before work ended. It is obvious that these an-
nouncements were made during working time. Since they
reached all employees who could hear them without regard
for the possibly hazardous type of work in which the em-
ployees were engaged, Leverett’s attempt to distinguish so-
licitations based on this factor has no meaning. As White put
it, Supervisor Craft stated that the employees could talk
about ‘‘anything’’ as long as they continued to work. There
is no evidence that Fleming’s conversations with employees
caused any of them to stop working. With respect to his con-
versation with White, the evidence shows that this took only
a ‘‘couple of seconds’’ and that White did not stop working.
In addition to Craft’s participation in these activities,
Leverett admitted knowledge of employee collections for the
‘‘flower fund.’’ As noted, Craft, when asked whether he
knew of any types of solicitation during working time other
than those for the United Way, replied, ‘‘Not charitable func-
tions.’’ The only reasonable interpretation of this testimony
is that Craft did have knowledge of other, noncharitable so-
licitations taking place during working time and I so find.
As noted, the complaint alleges both an unlawful rule
against talking about the Union, and unlawful discrimination
against Fleming. Fleming’s testimony that Leverett, on De-
cember 11, told him he could not talk about the Union dur-
ing working hours is unrebutted. Although there is evidence
that Respondent destroyed its original written warning to
Fleming and substituted another, there is no evidence that it
ever said anything further about Leverett’s oral statement on
December 11. The substituted warning given Fleming on De-
cember 15 says nothing specific about that statement, while
Leverett’s action and language on December 15 pertained
only to written warnings.
C. Legal Analysis and Conclusions
1. Alleged unlawful solicitation to report on union
activities of other employees
The facts as summarized show that shortly after the advent
of a union campaign and invitations to a union meeting by
Fleming, a union supporter, Respondent’s supervisor Craft
told employee White that the latter was not going to ‘‘have’’
or ‘‘provoke’’ a union. White was not a union supporter at
the time. Craft directed White to write down what Fleming
had said to White—saying that it would not get anybody into
trouble. White protested but finally complied with what he
perceived to be an order. After he did so, Craft induced
White to alter his statement so as to establish that Fleming’s
invitation took place during working time—which was, in
fact, true.
In Rossmore House, 269 NLRB 1176 (1984), enfd. 760
F.2d 1006 (9th Cir. 1985), the Board held that, with respect
to interrogation of open and active union supporters, it would
assess the legality of the interrogation under all the cir-
cumstances, and determine whether it reasonably tended to
restrain, coerce, or interfere with rights guaranteed by the
Act. White was not an open and active union supporter.
However, the Board has applied the Rossmore test to in-
stances where the employee involved was not a union activ-
ist. Sunnyvale Medical Clinic, 277 NLRB 1217 (1985).
Respondent’s hostility to the Union was manifested to
White by Craft’s statement that he was not going to ‘‘have’’
or ‘‘provoke’’ a union. Craft’s interrogation took place soon
after the advent of the union campaign and was opposed by
White. Although White’s correction of the statement, induced
by Craft, conformed with the facts, Craft’s insistence on the
change shows that Respondent was attempting to establish a
case against Fleming, and thus further manifested to White
the Company’s union animus. Although Respondent’s posi-
tion is that it was merely attempting to enforce a valid no-
solicitation rule, I hereinafter reject this defense. Accord-
ingly, Craft had no legitimate business reason for his interro-
gation of White.
The Board has concluded that an interrogation as to the
identity of a person who started a union violated Section
8(a)(1). Sorenson Lighted Controls, 286 NLRB 969, 976–977
(1987).12 I conclude that Craft’s interrogation of White tend-
ed to coerce White, and, accordingly, was unlawful.13
2. The alleged unlawful no-solicitation rule or rules
As noted, the complaint alleges only that Respondent un-
lawfully prohibited its employees from talking about the
Union during working hours. At the hearing, counsel for the
General Counsel more fully explained her position as an alle-
gation of an unlawfully broad oral rule, and disparate appli-
cation of a facially unobjectionable written rule. Both issues
were fully litigated.
Supervisor Leverett’s verbal statement to Fleming on De-
cember 11, that he could not talk about the Union during
working hours, was an unlawfully broad rule.14
With respect to the written rule, the Board has held with
judicial approval that selective application of an otherwise
lawful no-solicitation rule, so as to bar only union activities,
is unlawful.15 In a case with factual similarities to the instant
proceeding, the Board stated:
We find . . . that Respondent disparately enforced
its no-solicitation rule by permitting its employees to
sell such items as candy, cookies, and Christmas post-
ers, etc., and to raffle a chain saw, while precluding
them from engaging in organizational activities. We
further find that Respondent admittedly allowed em-
ployees . . . to solicit for a ‘‘flower fund’’ for employ-
ees and their families in the event of sickness or death,
which is further evidence that Respondent disparately
enforced its no-solicitation rule. [Hammary Mfg. Corp.,
258 NLRB 1319 fn. 2 (1981).]
1101YAMAHA MUSIC MFG.
16 R. Br. 14.
17 Supra, fn. 8.
18 R. Br. 14.
19 See Red Arrow Freight Lines, 289 NLRB 227 (1988).
20 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983).
The fact in this case that a supervisor as well as employees
was involved in the solicitation adds weight to a conclusion
that the rule was disparately applied.
Respondent argues that any unlawful restriction on Flem-
ing’s activities was ‘‘clarified promptly’’ by the second writ-
ten warning,16 which was actually given to Fleming on De-
cember 15. This argument has no merit. In the first place,
there is nothing ‘‘clear’’ about the second warning because
of its use of the combined conjunction ‘‘and/or.’’17 On one
interpretation, the warning could be read so as to bar solicita-
tion in work areas at any time. It is not a paraphrase of Re-
spondent’s written rule, and is ambiguous.
In sum, Respondent first told Fleming that he could not
talk about the Union during working hours, and then gave
him a written warning stating in part that he would be dis-
charged if he continued to talk about the Union. Although
Respondent refused to give him a copy, it did not withdraw
the warning ‘‘at that point.’’
Four days later, Respondent tore up the first warning but
then issued one to Fleming which has the ambiguity noted
above. At the same time, Respondent maintained a facially
unobjectionable written rule which it disparately enforced.
The natural result of all this was the creation of confusion
in the minds of the employees about their solicitation rights.
This in itself is a ground for finding Respondent’s rules to
be unlawful. MGM Grand-Reno, Inc., 249 NLRB 961
(1980), enfd. as modified 653 F.2d 1322 (9th Cir. 1981).
Respondent argues that its asserted ‘‘clarification’’ made it
unnecessary for it to ‘‘repudiate’’ any prior unlawful ac-
tion.18 There was no clarification. In order to relieve itself
of liability, Respondent would have had to make a timely,
unambiguous and specific repudiation of its unlawful con-
duct. Further, it would have been required to make an ade-
quate publication of the repudiation to the employees in-
volved, to have refrained from engaging in unlawful conduct
after the repudiation, and to have given employees assur-
ances that it would not interfere with employee rights in the
future. Passavant Memorial Area Hospital, 237 NLRB 138
(1978). It is clear that Respondent did not meet these re-
quirements.19
For the foregoing reasons, I conclude that Respondent
issued an unlawfully broad oral rule prohibiting employee
discussion about the Union during working hours, and dis-
parately enforced a written no-solicitation rule so as to pro-
hibit only union activity, in violation of Section 8(a)(1) of
the Act.
3. The alleged discrimination
The General Counsel has the burden of establishing a
prima facie case that is sufficient to support an inference that
protected conduct was a motivating factor in Respondent’s
decision to discipline an employee. Once this is established,
the burden shifts to Respondent to demonstrate that the dis-
cipline would have been administered even in the absence of
the protected conduct.20
Supervisor Craft’s unlawful interrogation of employee
White, accompanied by the statement that White was not
going to have a union, and Respondent’s unlawful no-solici-
tation rules manifest the Company’s animus against the
Union. Fleming was a union activist, and the General Coun-
sel has established a prima facie case that this activity was
a motivating factor in Respondent’s decision to issue a warn-
ing to him.
There is no evidence that Fleming interfered with the work
activity of any employee. Although Respondent interviewed
and took statements from several employees about Fleming’s
union activities, none was called as a witness. The only evi-
dence, from Fleming and White, shows that their conversa-
tion, although on worktime, took only ‘‘a few seconds,’’ and
that White did not stop working. This brief exchange is in-
sufficient to establish violation of a no-solicitation rule.
Lamar Industrial Plastics, 281 NLRB 511, 513 (1986).
Moreover, Respondent has not sustained its position that
it was merely trying to enforce a valid no-solicitation rule.
On the contrary, its rules, or their disparate application, were
themselves unlawful. Accordingly, I conclude, by issuing a
written warning to Fleming on December 15, 1989, because
of his protected concerted activity, Respondent thereby vio-
lated Section 8(a)(3) and (1) of the Act. Cerock Wire &
Cable, 274 NLRB 888 (1985).
In accordance with my findings above, I make the fol-
lowing
CONCLUSIONS OF LAW
1. The Respondent, Yamaha Music Manufacturing, Inc., is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Industrial Union Department, AFL–CIO is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. By engaging in the following conduct, Respondent com-
mitted unfair labor practices within the meaning of Section
8(a)(1) of the Act:
(a) Coercively interrogating an employee as to statements
made to him about the Union by another employee.
(b) Orally promulgating a no-solicitation rule so as to pro-
hibit employees from talking about the Union during work-
ing hours.
(c) Selectively applying a written no-solicitation rule so as
to prohibit only union activities.
4. By issuing a warning to employee Keith Fleming be-
cause he engaged in protected concerted activities, Respond-
ent violated Section 8(a)(1) and (3) of the Act.
5. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Respondent argues that no remedy is required in this case,
citing Board dismissals of allegations in Consolidated Edison
Co., supra, and East Bay Newspapers, 263 NLRB 566
(1982). In the former case, a supervisor clarified a former
prohibition against solicitation by adding that it must not
interfere with the work of other employees. There was no
such clarification here. In the second cited case, although the
employer’s no-solicitation rule was valid under Board law at
1102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Essex International, 211 NLRB 749 (1974).
22 T.R.W. Bearings, 257 NLRB 442 (1981).
23 The Board has since returned to the rule in Essex International, supra.
Our Way, Inc., supra.
24 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Order
shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and
all objections to them shall be deemed waived for all purposes.
25 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
the time it was promulgated21 but was later unlawful under
a new standard,22 the employer changed its rule so as to con-
form to the Board’s revised standard on solicitation rules.23
The rationale for dismissal of this technical violation is inap-
plicable here.
Accordingly, inasmuch as Respondent has been found to
have engaged in certain unfair labor practices, I shall rec-
ommend that it be ordered to cease and desist therefrom and
take certain affirmative action designed to effectuate the pur-
poses of the Act.
It having been found that Respondent orally promulgated
an unlawful rule prohibiting employee discussion of the
Union during working hours, and disparately enforced a writ-
ten no-solicitation rule so as to prohibit only union activity,
I shall recommend that it be required to rescind such rules.
It having been found that Respondent, on December 15,
1989, issued a written warning to employee Keith Fleming
because he engaged in protected concerted activity, it will be
recommended that Respondent remove from its personnel
records all references to such warning, and notify Fleming in
writing that it has done so and that evidence of the warning
will not be used as a basis for future personnel action against
him.
It will also be recommended that Respondent post an ap-
propriate notice.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended24
ORDER
The Respondent, Yamaha Music Manufacturing, Inc.,
Thomaston, Georgia, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Coercively interrogating employees concerning their
union activities or sympathies, or the union activities or sym-
pathies of other employees.
(b) Promulgating or enforcing rules which discriminatorily
prohibit employees from talking about the Union during
working hours, or which disparately enforce no-solicitation
rules so as to prohibit only union activity.
(c) Discouraging membership in Industrial Union Depart-
ment, AFL–CIO, or any other labor organization by issuing
warnings to employees because of their protected concerted
activity, or by discriminating against them in any other man-
ner with regard to their hire, tenure of employment, or terms
and conditions of employment.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind its rule prohibiting employee discussion of the
Union during working hours, and terminate its application of
its written no-solicitation rule which caused the latter to pro-
hibit only the union activities of its employees.
(b) Remove from its personnel records all references to its
unlawful written warning given to Keith Fleming on Decem-
ber 15, 1989, and notify Fleming in writing that it has done
so, and that evidence of the warning will not be used as a
basis for future personnel action against him.
(c) Post at its Thomaston, Georgia plant copies of the at-
tached notice marked ‘‘Appendix.’’25 Copies of the notice,
on forms provided by the Regional Director for Region 10,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 vio-
lated 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 representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT coercively interrogate employees concerning
their union activities or sympathies, or the union activities or
sympathies of other employees.
WE WILL NOT promulgate or enforce rules which
discriminatorily prohibit employees from talking about the
Union during working hours, or which disparately enforce
no-solicitation rules so as to prohibit only union activity.
WE WILL NOT discourage membership in Industrial Union
Department, AFL–CIO, or any other labor organization, by
issuing warnings to employees because of their protected
concerted activity, or by discriminating against them in any
other manner with regard to their hire, tenure of employment,
or terms and conditions of employment.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
1103YAMAHA MUSIC MFG.
WE WILL rescind our rule prohibiting employee discussion
of the Union during working hours, and terminate our appli-
cation of our written no-solicitation rule which caused it to
prohibit only the union activities of our employees.
WE WILL remove from our personnel records all references
to our unlawful written warning issued to Keith Fleming, and
notify Fleming in writing that we have done so, and that evi-
dence of the warning will not be used as a basis for future
personnel action against him.
YAMAHA MUSIC MANUFACTURING, INC.