FMC Corp.

National Labor Relations Board - Board Decisions

Jun 20, 1974

211 N.L.R.B. 770 (N.L.R.B. 1974)

770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FMC Corporation and Textile Workers Union of
America, AFL-CIO, and Linda Cecil. Cases
5-CA-6217, 5-CA-6343, and 5-CA-6223
June 20, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On February 8, 1974, Administrative Law Judge
Ralph Winkler issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed a memorandum in reply.
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.
We agree with the Administrative Law Judge that
Respondent violated Section 8(a)(1) by unlawfully
restricting the employees' rights to solicit on behalf
of the Union. Initially, we are faced with the no-
solicitation rule set forth in the employee handbook.
That rule proscribed any "unauthorized solicitation
.. , on Company property," and the Respondent
concedes that it was unlawfully broad. It contends,
however, that the rule was voided in May 1973, that
a proper rule was announced to supervisors and
employees in a series of meetings in May and June,
and that such rule was posted throughout the plant
on July 25.
However, we find, as did the Administrative Law
Judge, that there was no effective repudiation or
repeal of the unlawful handbook rule. At all times
here relevant that rule remained unchanged in the
handbook which was given to all new employees
without any notice that the rule had been voided.
Further, the July 25 notice does not purport to repeal
the handbook rule nor to announce a new rule.
Rather that notice on its face is primarily concerned
with announcing that certain employees had been
warned for union solicitation on worktime and
others disciplined for threatening fellow employees.
But there is nothing in the notice stating that the
handbook rule was voided or rescinded, or that the
language of the notice was the "new rule."
The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
To be sure, the notice did state, although in
passing, that "employees are not permitted to engage
in soliciting or union organizing activities during
work time . . . [which] includes all paid time except
breaks and meal periods." While such language on
its face would appear to be presumptively valid as a
no-solicitation rule if so contended, it was not the
same as the rule announced by Respondent's
industrial relations manager to supervisors and
employees at the May-June meetings, which, as he
explained it in his testimony, provided that "solicita-
tion on company property was not permitted except
in non-work areas and non-working time." (Emphasis
supplied.) Even there, additional restrictions were
placed on employees' solicitation so that employees
could not solicit in all nonwork areas and on all
breaktimes. The plant manager testified that the rule
did not permit solicitation during smoking breaks
which were taken in a smoking area. A smoke break,
he explained, is company time. In fact, breaktime
under the rule was, as the industrial relations
manager stated, limited to two established 10-minute
breaks, the scheduled lunch period, and before and
after shifts, and such seems to be the understanding
of supervisors and at least some employees concern-
ing the limits of the rule. Consequently, if there was a
"new rule" it was not what was spelled out in the
July 25 notices, and a fair reading of management's
testimony suggests under the "new rule" that
solicitation was prohibited at all times in work areas,
a presumptively unlawful limitation when imposed
on free time, and was permitted only in nonwork
areas during some but not all breaks , again a
presumptively unlawful limitation .2 Finally, during
the period here in question, and according to
credited testimony, employees were in effect warned
against soliciting for the Union, while in another
instance a supervisor threatened an employee with
discharge if she said "anything about a union."
In view of all the foregoing, we conclude that
Respondent did not effectively rescind the unlawful
handbook rule, that it did not establish or announce
any lawful no-solicitation rule, and that its manage-
ment and supervision did not act in accordance with
any such lawful rule. For these reasons, we agree
with the Administrative Law Judge that Respondent
violated Section 8(a)(1) by publication and mainte-
nance of unlawful no-solicitation rules.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544, enfd . 188 F.2d 362 (C.A. 3). We have carefully
examined the record and find no basis for reversing his findings.
2 Compare Essex International, 211 NLRB No. 112.
211 NLRB No. 113
FMC CORPORATION
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that FMC Corporation, Radford,
Virginia, its officers, agents , successors, and assigns,
shall take the action set forth in the recommended
Order.
DECISION
STATEMENT OF THE CASE
RALPH WINKLER, Administrative Law Judge: This
consolidated proceeding involves complaints issued by the
General Counsel on September 12 and 20 and November
1, 1973, alleging violations of Section 8(a)(1) and (3) of the
Act. Respondent filed answers denying the violations
alleged , and a hearing thereon was held in Radford,
Virginia, on November 14-16, 1973.
Upon the entire record in the case, including my
observation of the demeanor of witnesses and upon
consideration of briefs,' I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
FMC Corporation, Respondent herein, is a Delaware
corporation engaging in the manufacture of yarn in
Radford, Virginia; its interstate purchases and sales
respectively exceed $50,000, yearly. Respondent is engaged
in commerce within Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Textile Workers Union of America , AFL-CIO, herein
called the Union , is a labor organization within Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Respondent began operations with some 40 employees at
its Radford plant in April 1972; it reached full capacity by
December of that year with a working complement of
approximately 300 employees. The Union has been
attempting to organize the plant since 1972; it renewed
such activities in spring of 1973 and filed a representation
petition on October 26, 1973, in Case 5-RC-8759.2
On July 21, 1973,3 Respondent terminated employees
Lorna Bowman and Ronald Day for allegedly threatening
employees; 3 days later it suspended Florence Ann
Whittaker, originally for purportedly soliciting for the
Union and then for allegedly making "indirect" threats.
The General Counsel alleges that Respondent violated
Section 8(a)(1) and (3) of the Act by discharging or
otherwise disciplining these three employees and that it
further violated Section 8(a)(1) by engaging in other
alleged conduct.
I should like to acknowledge the very competent briefs submitted by
the General Counsel and the Respondent.
2 1 take official notice that an election in that case was held on January
11, 1974, after the close of the hearing in the present case , with the following
results: 108 employees voted for the Union , and 190 voted against.
771
A. Interference, Restraint, and Coercion
At all times at the Radford plant, Respondent has given,
and still gives, each newly hired employee a copy of its
employee handbook. This handbook states, as Respondent
is entitled to state, that "this is a non-union plant. We
believe that you and we will fare better if the plant remains
non-union. We intend to oppose unionization by all proper
means." Disciplinary rule no. 14 in the handbook prohibits
"Unauthorized soliciting or collection of contributions for
any purpose on Company property."
Mr. Tom George became Respondent's industrial
relations manager' on May 1, having been transferred from
a position as training director. George testified, in
substance, that he realized the above-mentioned rule 14
was unlawfully broad and that the rule was modified and
has not been enforced in its original form. George thus
further testified that immediately upon becoming industri-
al relations manager in May, he advised all supervisors that
"solicitation on company property was not permitted
except in non-work areas and non-working time, which
was their break. Two 10-minute breaks, a scheduled lunch,
and before and after the shift." Some , but the record does
not establish that all, employees were concurrently in-
formed to a similar effect. But not until July 25 did
Respondent advise the general employee body to such
effect by a notice on the bulletin board. Respondent
nevertheless still gives newly hired employees the employee
handbook containing the original version of rule 14 and
admittedly without indicating to them that the rule has
been deleted or revised. It also appears that employees are
permitted to take additional smoke breaks in working areas
and Plant Manager Byers testified that union discussions
are prohibited at such times and places under Respon-
dent's purportedly revised regulations.
The record thus establishes that Respondent prohibited
union discussion and solicitation during nonworking time
on company property; and that while it later posted a
notice telling employees that they could engage in such
activities during lunch periods and the two 10-minute
break times, Respondent nevertheless has continued
distributing original rule no. 14 to new employees and also
prohibits all employees from such activities during addi-
tional smoking breaks in working areas.
At best, as the General Counsel contends, Respondent
left its employees in an ambiguous situation as to whether
company rules permitted them to discuss and solicit in
behalf of the Union on company premises.4 There was
nothing ambiguous about Foreman Darrell Reed's state-
ment to Linda Cecil as Cecil was about to leave for a 10-
minute break sometime in May. Reed adverted to a union
matter involving a wage increase at the time, and Cecil
credibly testified without contradiction that Reed then said
that Cecil would "go out the door . . . if I ever catch you
saying anything about a union," and it is also undenied
that Reed's statement did not distinguish between working
and nonworking times. Linda Cecil joined the Union early
3 All dates hereinafter are in 1973 unless otherwise stated.
4 It is interesting to note that several supervisors testified that ever since
1972 the Company has permitted employees to solicit during nonworking
time on plant premises . As indicated above , this is inconsistent with
Respondent 's own position herein.
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in 1973 and also distributed union cards during break
periods. On an occasion in June or July, Cecil was
summoned to the office where Industrial Relations
Manager George told her in the presence of Supervisors
Michael Ware and Tom Neal that he had heard she had
been soliciting for the Union. Employee Rhonda East also
credibly testified that she was called to the office, and
Byers told her that her name had come up as having
solicited for the Union. It was East's understanding that
employees were prohibited from soliciting at any time on
company premises.
Michael Ware is the texturizing manager. Ware called
employee Sharon Burton to his office on July 25. They
discussed a matter of Burton's absenteeism and suspension
therefor. At the end of the conversation on that occasion,
according to Burton's credible-albeit denied-testimony,
Ware asked Burton whether she had signed a union card.
Burton replied it was "none of his damn business."
Another instance of interrogation occurred on or about
August 1, when Supervisor Guy Wohlford observed
employee Toby Caldwell wearing a union T-shirt. Remark-
ing first about the shirt, Wohlford then asked Caldwell,
according to the latter's denied but credible testimony,
whether she got "a little blue card too," which in context
referred to a union authorization card.
In April Foreman Annie McPeak and employee Hazel
Boback were standing together in the plant when they
observed employee Lawrence Underwood in the aisle.
According to Boback's credible and uncontroverted
testimony, McPeak told Boback that Underwood was
attempting to organize the employees for the Union and
McPeak asked whether Boback knew anything about it. In
mid-June, while leaflets were being distributed at the plant
gate , McPeak told Boback "to watch and see if I saw
anybody in the plant passing out leaflets or cards at any
time in the plant, and to let her know." Boback told
McPeak not to discuss union matters with her again.
About August 14, McPeak observed that the members of a
four-man tieover crew were wearing union T-shirts.
McPeak thereupon told Boback, again according to the
undenied and otherwise credible testimony of Boback, that
she (McPeak) was going to "write up" the crew and have
them fired for such display of prounion sentiment.
The record establishes that Respondent also engaged in
surveillance of union activities or gave employees the
impression it was doing so. Thus, on the morning following
employee Rex Caldwell's attendance at a union meeting in
the summer of 1973, Jerry Viers asked Caldwell about the
meeting . Viers is head of the shipping department and
Caldwell's supervisor. Caldwell then inquired how * iers
learned about Caldwell's attendance at the meeting,
whereupon Viers replied that he had followed Caldwell on
that occasion. Caldwell's credible testimony is undenied in
this regard. Former employee Debbie Sifford also credibly
testified and Supervisor Ermond Bryant denied, that she
had attended a union meeting late in July and that Bryant
approached her the following morning with the comment
that "I can tell you all who went to the union meeting last
night." Sifford replied that she was free to attend as it was
on her own time, whereupon Bryant rejoined that he
"could call" Sifford's supervisor, Guy Wohlford.
During the period of the Union's organization campaign
in the summer of 1973, Respondent's supervisors also
conducted periodic meetings of small groups of employees
to present Respondent's views concerning the Union. At
one such meeting, according to employee Joy Nestor's and
employee Linda Buck's credible testimony, Supervisor
Harold Baxter stated that, if the employees voted the
Union in as their bargaining representative, they would
have "to start all over from scratch."5 Baxter testified that
he told employees "there was always [the] possibility" they
would receive less wages as a result of negotiations "if the
Union got in," and he mentioned the experience of another
plant in the area. Baxter's explanatory testimony concern-
ing this other plant is in part, as follows:
A. The information I had was that we had another
plant in the area-I cannot recall the name at this time,
unless it would happen to be Electrotech, which was
non-unionized. They became unionized, and I don't
know what the wages were or what happened, but the
information I had was that they ended up by getting
less than they were getting before. We used that as an
example of something that had happened, expressing
the idea that we always had that possibility. But I really
don't know what happened.
Concerning another June meeting conducted by Supervi-
sors Baxter and Conrad Mattherly, employee Phyllis
McCormack credibly testified that employee Connie
Quesenberry asked Mattherly on that occasion whether
Respondent would let the employees strike if the Union
"got in." Mattherly said it would, and Quesenberry then
asked whether Respondent would close down the plant.
Mattherly replied that Respondent "will do anything to
keep the union out," 6 and that the employees didn't need a
union for the Company was going to be "good" to them.
At still another meeting in July, Supervisor Hicks told
assembled employees, according to Toby Caldwell's
credible and undenied testimony in this respect, that
Respondent would cut the work force if the Union "came
in" and "we would be time studied and heavier work loads
would be put on us."
In addition to adducing testimony to support other
similar allegations of interference, restraint, and coercion
as interrogation, surveillance , and threats of economic loss,
the General Counsel adduced supportive testimony for an
allegation that Respondent further violated Section 8(a)(1)
of the Act by a wage increase on July 1, 1973. Even if
allegations as to these additional matters were sustained,
the ultimate conclusions of law and remedial provisions
5 The General Counsel does not claim the use of this phrase is itself a 6 Mattherly recalled having discussed union matters with Quesenberry in
separate unfair labor practice, he contends, rather, that it is only part of the private conversations on other occasions, but he denied McCormack's
supportive circumstances for an allegation that Respondent threatened to testimony that she raised such matters at a group meeting
reduce wages should the Union become the statutory representative.
FMC CORPORATION
would be unaffected. I therefore find it unnecessary to
discuss and resolve them.?
B. The Discharges
Lorna Bowman was called into the office of Plant
Manager George Byers on July 21, 1973. Byers told
Bowman she had been accused of making threats to other
employees, and Bowman denied to Byers that she had
threatened anyone. Byers then summarily fired her for
such purported reason. Byers refused Bowman's request
for the names of her accusers or otherwise to give her an
opportunity to present her side of the situation. Industrial
Relations Manager George handed Bowman her check and
said he "no longer wanted" her on company property.
Ronald Day received a similar summons that same day,
and Byers fired him for the same purported reason. Byers
told Day that he, Byers, had been receiving reports
concerning threats by Day for a long time and that
Respondent had "testimony" that "you have been threat-
ening [employees] because they don't see the Union the
same way you do." Day denied to Byers that he had made
any threats and he asked why Byers had not done anything
about the matter earlier if, as Byers claimed, Byers had
been receiving these reports for a long time. Byers did not
reply, nor was Day given the names of his accusers. Day
received his termination check, and Byers told Day "never
to set foot on FMC property again."
Bowman was hired by Respondent in October 1972. The
following spring she became active in the Union's effort to
organize the plant; she passed out union cards and
attended union meetings . Tom Neal was Bowman's
supervisor, and it is undisputed that by May 1973 he knew
of Bowman's prounion sentiments. On July 20, 1973, the
day before Bowman's discharge, Industrial Relations
Manager George called her into his office and inquired
about her "likes and dislikes" about the Company. They
discussed the Union at some length and George told
Bowman that signing a union card is "like signing a blank
check. You didn't know how much it was going to cost
you." Although George denied doing so, I am satisfied on
the basis of Bowman's credible testimony that George
asked Bowman during this conversation whether she was
"for the Union" and that he also mentioned that someone
had told him she was a "spot." Bowman replied she was for
the Union; she said nothing regarding George's "spot"
comment for, as she testified, she was then unfamiliar with
the meaning of the term. (The record explains the word
"spot" in this context to mean an employee planted in a
company in order to organize employees for a union.)
George testified in effect that he spoke to Bowman on this
occasion in order to ameliorate antagonistic problems
between some employees, and that he assured Bowman at
the end of the conversation that he would attempt to work
out these problems.
Day has had two periods of employment with Respon-
dent; the first was from April 1972 until terminated in July
1972 by "mutual agreement" for reasons unrelated to
union matters , and the second period began in November
773
1972 and lasted until July 21, 1973. Day signed a union
card in May 1973 and became active in the Union's
organizational efforts-attending meetings and soliciting
and signing up other employees.
Plant Manager George Byers testified that on July 20
employees Nancy Powell and Edna Lamb came to see him
concerning a situation involving purported threats by
Bowman and Day in connection with the latter employees'
union efforts. Byers and other management representatives
discussed the matter with Powell and Lamb. Byers testified
that he thereupon decided to discharge Bowman and Day
on the basis of what Powell and Lamb told him, and that
he consulted corporate, advisors and superiors before doing
so. Byers also testified that he does not usually become
involved in rank-and-file disciplinary problems and that he
could not recall being personally involved in any other
discharge situation; his testimony explaining his departure
from practice was that the Bowman-Day situation was of
"vital importance" to the Company and "it was one that I
did not want to ask a subordinate to carry out." Byers also
testified that neither he nor any of his subordinate
supervisors had discussed the Powell-Lamb charges with
either Bowman or Day before deciding to discharge Day
and Bowman, and, as stated above, he did not discuss the
merits of the accusations when he discharged them on July
21. According to Byers, he fired Bowman because she had
told lamb and Powell that "if they [Lamb-Powell]
reported that she [Bowman) had been soliciting them or
bothering them on the job, that she would get even with
them." Byers testified that he fired Day for having told
Lamb-Powell that "if they did not [sign a union card] that
he would run over them." Byers further testified that these
purported threats were made a week or two before the July
21 discharges.
C. The "Threats"
Powell and Lamb were called as Respondent witnesses.
Powell testified to two conversations with Bowman. On the
first occasion, according to Powell, Bowman asked whether
she was for the Union and Powell replied she was not.
Another employee and Bowman then sought to explain the
advantages of a union to Powell, and Powell rejected
Bowman's repeated request to sign a union card. Powell
testified she was "upset" by Bowman's importunities. The
second conversation concerned a question-and-answer
session on which occasion employees submit written
questions to company officials, and Powell testified that
Bowman had asked Powell to write out Bowman's
questions which Powell did. Bowman, according to Powell,
later gathered up all questions written by employees and
told Powell and employee Kathy Dellinger not to tell
anyone she had them. However, Dellinger did inform
Supervisor Tom Neal, according to Powell. Bowman
shortly walked up to Powell, who was standing in the
smoking area with Lamb. Bowman inquired who had
informed Neal about Bowman's conduct as to the
questions and, according to Powell, Bowman then "got up
in our faces and said that she would fix anybody that
r Except , of course , to the extent that any such matters are involved in
the discharge and suspension cases discussed hereinafter.
i 14 DECISIONS OF NATIONAL LABOR RFLATIONS BOARD
talked on her." Lamb's testimony is that Bowman was
concerned about someone reporting her union solicitation
activities to management , and Lamb testified that Bowman
"pointed her finger" in Lamb's and Powell 's faces and said
that "if anyone says anything about her soliciting or
talking about the Union while on the floor , .. . she would
fix them."
Bowman testified she was "all out" for the Union and
that she had spoken to Lamb and Powell about the
organization . Bowman denied having threatened anyone,
and she further explained that "as for me telling Nancy
Powell I 'd get even with her for telling the Company I was
talking Union, that's ridiculous . Tom Neal already knew I
was for the Union and I had nothing to hide." Bowman
testified that the phrase "getting even" was mere "shop
talk."
In their discussion with plant management on July 20,
both Lamb and Powell also told Byers, and as they testified
here, that a week or two earlier Day had unsuccessfully
solicited their support for the Union, that they discussed
the matter "back and forth" and that Day told them when
the conversation ended at the shift change , that "I guess I
will have to run over you" if they wouldn' t change their
minds. Day denied the "run over" statement attributed to
him. Lamb testified about a subsequent incident with Day
a day or two before his discharge . On this occasion she and
Day were assigned to the same machine and there was
some "wrap" on her portion of the equipment which
condition she reported to a supervisor . The supervisor
neglected to remove the wrap and then Lamb mentioned
the matter to Day. Day then offered to help Lamb and he
did assist her in removing the wrap. Lamb and Day
laughed and joked together at the time and, according to
Lamb, Day "was right nice about it."
Lamb and Powell testified that they became so disturbed
by the statements of Day and Bowman as to be unable to
do their work properly and that they accordingly reported
the matter to Byers on July 20.
D. The Whittaker Suspension
Florence Whittaker was hired in April 1973. She signed a
union card, attended organizational meetings , and handed
out union leaflets at the plant gate.
In the plant cafeteria before work on July 23, employee
Donald Beasley gave Whittaker his signed union card to
hand in, and Whittaker observed employees Kay Viers and
Rita Baines sitting nearby and that they saw her receive
Beasley's card . Later that day Whittaker told Ellen
Beasley, Donald Beasley 's sister, that Viers and Baines had
seen her brother give her a union card and Whittaker
expressed a concern that Viers and Baines would report the
matter to management representatives . Whittaker told
Beasley that Viers and Baines could not to trusted and that
"we are going to beat their ass if they don't shut up." This
impugning of Viers and Baines' trustworthiness provoked
an argument between Whittaker and Beasley , for Beasley
was a close friend of theirs . Beasley told Whittaker she
(Beasley) would withdraw her own union card , whereupon
Beasley tried to persuade her not to do so and the
conversation ended. Ellen Beasley reported this conversa-
tion to Supervisor Wohlford who called it to the attention
of Supervisor Stewart Ringwood . Supervisor Ringwood
then asked Ellen Beasley whether Whittaker had been
soliciting and Ellen said "not so much trying to sell as she
was just talking about it." Ringwood asked Ellen whether
she would be willing to tell Plant Manager Byers "about
'.his," and she said she would . Ringwood went up to
Whittaker a short time later and told her , on Ware's orders,
she was suspended for soliciting on company time. She told
Ringwood in effect that the Donald Beasley card incident
occurred before working hours. The suspension stood, and
she left the plant . Ringwood told her at the time that she
would be suspended pending an investigation of the
soliciting charges and that she would be reimbursed for
lost wages should the Company finally determine the
charges to be unfounded.
The next morning Ellen Beasley recounted the Whittaker
conversation to Ware. Ware thereupon determined and in
effect advised Whittaker that the solicitation matter was
being dropped, but that she would be on suspension for a
week (it actually was about 4 days ) for threatening to beat
up Viers and Baines.
Whittaker returned to work on a Monday and Baines
told her in the plant that she, Baines , wanted to fight
Whittaker . Whittaker told Baines to "draw back" and
reported this incident to Supervisor Ringwood , who said he
would look into the matter . He never discussed it again
with Whittaker and I do not credit Ringwood 's explana-
tion that he dropped the matter because Whittaker
purportedly did not prefer charges against Baines. Ring-
wood testified in that connection that he immediately
discussed the matter with Baines to find out what the facts
were. There have been other incidents of "fussing" among
the employees , both on and off the premises , but the only
other occasion-apart from Whittaker , Day, and Bow-
man-that Respondent took any disciplinary action was
one involving an actual fight between two employees on
plant premises. Ware testified that he suspended both
employees for 7 days , but that he then "suspended this
suspension due to the fact that there was a tremendous
amount of time elapsed [since the incident ] . . . about 10
days or 1 1 /2 weeks."
E. Further Findings
Employers are entitled to oppose the unionization of
their employees , but not by prohibited means. Respondent
here has overstepped the bounds and thus violated Section
8(a)(1) of the Act by coercively interrogating employees
concerning their union membership and other protected
concerted activities , by giving employees the impression of
surveillance-if not actually engaging in surveillance-of
such activities , by requesting employees to report on union
activities of other employees , by threatening to cause the
discharge of employees for their prounion sentiments, and
by threatening to cut the work force and impose heavier
duties on employees and by otherwise threatening econom-
ic reprisal for union considerations . N.L.R.B. v. Gissel
Packing Co., 395 U.S. 575, 616-618 (1969); Hendrix
Manufacturing Company, Inc. v. j N.L.R.B., 321 321
F.2d 100, 104 (C.A . 5, 1963). Respondent does not ser-
iously j contend , I if I at t all, 'that its rule 14 in the employee
FMC CORPORATION 775
handbook did not violate the Act at least before it
purportedly revised the rule.- While Respondent thereafter
advised employees that they could solicit and discuss union
matters on plant premises during their lunch and 10-
minute breaks, it continued to distribute rule 14 in its
original form . and it did prohibit such activities during
other permitted smoke breaks. These circumstances, as
well, for example , as Foreman Reed's threat to Linda
Cecil, hardly reflect a good-faith and unambiguous
publication by Respondent to its employees that rule 14
was revised to comport with their protected rights under
the Act. Respondent, I find, has not effectively modified
the rule. Rule 14 unduly prohibits union discussion and
solicitation during breaks, lunch periods, or other actual
nonworking time, and its publication and maintenance is
violative of Section 8(a)(1) of the Act. Republic Aviation
Corporation v. N .L.R.B., 324 U.S. 793, 893-805; P. R.
Mallory & Co., Inc. v. N. L. R B., 389 F.2d 704, 709-710
(C.A. 7, 1967).
Now turning to the discharge and suspension cases.
Respondent defends its action in these cases solely on the
ground that in the course of a union discussion the
involved employees threatened bodily harm to other
employees, "indirectly" in Whittaker's suspension situa-
tion. Day and Bowman deny having made the statement
attributed to them. While I find that Day and Bowman
made such statements and that Whittaker admitted making
the subject statement in her case, I am satisfied that
Respondent penalized each of these employees for promot-
ing the Union and not because they threatened bodily
harm.
Firstly, I am not satisfied that the statements of Day and
Bowman are threats of bodily harm. "I'll get even with
someone" or "I'll fix someone"; "I guess I 'll have to run
over you." How often in everyday situations do we use
seemingly extravagant language to express disapproval or
disagreement or frustration. How frequently do we hear
someone utter words which, for example, impugn paren-
tage if taken literally. Yet how often is it that we truly
understand the speaker to intend and the listener to take
the phrase "S.O.B." as really meaning anything of the sort?
The words "getting even" or "fixing" can mean anything
or mean nothing, and the record does not establish that
Bowman said in what way she would "fix" or "get even."
In my opinion, the subject words do not necessarily mean,
they do not unambiguously mean, they cannot be
reasonably interpreted to mean in the context of their
utterance in this case, that Bowman intended to convey the
notion or that Powell or Lamb understood her to mean
that she would physically attack anyone. Nor does the
record establish any subsequent elucidating conduct by
Bowman to support a contrary finding.
The phrase "run over" could, but does not necessarily,
mean "run over with a vehicle." But did Day intend Powell
and Lamb to believe he would do so or did Powell and
Lamb really believe he was threatening to do so? I doubt
that either is so . Powell and Lamb waited 1 and 2 weeks
8 Although Day and Bowman denied making the statements attributed
to them I do not believe that their honesty as witnesses is impugned by my
finding that they had made the statements . The words, as I also have found,
had no significance in the context of the respective conversations with
before such report. Day had been "right nice," according
to Lamb, in helping Lamb remove the wrap , and they
laughed and joked together at the time . Whatever may
have motivated Powell and Lamb in reporting Day's
statement , and I reject their explanation therefor, I
consider it unreasonable to find that they believed
themselves in physical jeopardy from Day and I also reject
any claim that Day's remark was intended to instill such
fear in them . It was merely an "expression ," in my opinion,
and I find that Day did not threaten or even suggest bodily
harm in conversation with them.8
Whittaker 's statement is somewhat different , for it is
reasonable to accept the statement in terms of the literal
meaning of the words ; and Baines apparently treated them
as such, as indicated by her invitation to fight Whittaker
on the latter's return from suspension.
Even if, arguendo only, all the foregoing statements be
considered threats of bodily harm-which I do not as to
Day and Bowman-I nevertheless am satisfied that
Respondent discharged Day and Bowman and suspended
Whittaker for their prounion activity and not because of
threats . Other employees had fussed before, and Respon-
dent had not disciplined any of them except in the instance
of an actual fight . And even in that situation, Respondent
"suspended a suspension" because of the lapse of 10 days.
Yet, that was the approximate time interval in the Day-
Bowman situations. I need not discuss Respondent's union
animus and its other unlawful conduct found above, nor is
it necessary to repeat the other singular circumstances
attending the discharges and suspension involved here.
"... if the discharge was motivated , even in part, by union
activity, it is illegal despite the existence of adequate cause
for firing her." N.L.R.B. v . Historic Smithville Inn, 414 F.
2d 1358, 1361 (C.A. 3, 1969), cert. denied 397 U.S. 908
(1970).
I accordingly conclude that Respondent violated Section
8(a)(1) and (3) of the Act in discharging Day and Bowman
and suspending Whittaker.
CONCLUSIONS OF LAW
1. Respondent is an employer within Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within Section
2(5) of the Act.
3. Respondent violated Section 8(a)(1) and (3) of the
Act by discharging Lorna Bowman and Ronald Day and
by suspending Florence Whittaker.
4. Respondent has further violated Section 8(a)(1) of
the Act by coercively interrogating employees concerning
union matters, threatening reprisal for engaging in union
or concerted activities, creating the impression of-if not
actually engaging in-surveillance of employees' union
activities, requesting employees to report other employees'
union activities, and prohibiting employees from union
discussion and solicitation during non-work times (includ-
ing smoking breaks).
Powell and Lamb. There is no particular reason why Bowman and Day
should recall uttering the words under consideration and it is therefore
understandable to me that they could , in all honesty , deny saying them
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The aforesaid unfair labor practices affect commerce
within Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(aXl) and (3) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action , including reinstating
Bowman and Day and making whole Bowman , Day, and
Whittaker, in order to effectuate the policies of the Act. All
backpay computations shall be in accordance with F. W.
Woolworth Co., 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
Upon the foregoing findings , conclusions , and the entire
record, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDERS
thereof, and be maintained for 60 consecutive 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 said notices are not altered , defaced, or covered by
any other material.
(e) Notify the Regional Director for Region 5, in writing,
within 20 days from the receipt of this Decision , what steps
have been taken to comply herewith.
9 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.
10 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."
Respondent FMC Corporation, Radford, Virginia, its
officers , agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Discharging, suspending , or otherwise discriminating
against employees for activities in behalf of Textile
Workers Union of America, AFL-CIO, or any other
union.
(b) Coercively interrogating employees concerning union
sentiments or activities , threatening reprisal against em-
ployees for engaging in union activities , creating the
impression of, or engaging in, surveillance of employees'
union activities, and requesting employees to report other
employees ' union activities.
(c) Prohibiting union discussion and solicitation by
employees during nonwork times (including smoking
breaks).
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their nghts as
guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Lorna Bowman and Ronald Day reinstate-
ment to their former jobs or, if these jobs no longer exist, to
substantially equivalent positions , without prejudice to
their seniority or other rights and privileges, and make
them and Florence Whittaker whole as set forth in "The
Remedy" section above, for any loss of earnings suffered
as a result of the discrimination against them.
(b) Rescind rule 14 of the employee handbook and
advise, in writing, each employee to whom it has given
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE wILL reinstate Lorna Bowman and Ronald Day
and make them whole for earnings lost since their
discharges, and will also make whole Florence Whit-
taker for earnings lost during her suspension.
WE WILL advise our employees that they have a right
to discuss and to solicit respecting union matters at
lunch periods, and during all rest and smoking breaks
and at any other time they are not actually working.
WE WILL NOT interrogate employees concerning
union membership or other union activities or ask
employees to report on such matters.
WE WILL NOT threaten discharge or other reprisal for
union reasons.
WE WILL NOT engage in surveillance of union
activities or give employees the impression we are
doing so.
WE WILL NOT discharge , suspend, or otherwise
discriminate against employees to discourage or in
reprisal for union activities.
FMC CORPORATION
(Employer)
such handbook that rule 14 has been rescinded . Dated By
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records , social security payment records, timecards,
personnel records and reports , and all other records
necessary to analyze the amount of backpay due and the
right of reinstatement under the terms of this Order.
(d) Post at its plant in Radford , Virginia, copies of the
attached notice marked "Appendix." 10 Copies of said
notice, on forms provided by the Regional Director for
Region 5 of the Board , after being duly signed by
Respondent , shall be posted by it immediately upon receipt
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office
Federal Building , Room 1019 , Charles Center, Baltimore,
Maryland 21201 , Telephone 301-962-2822.