Hayes-Albion Corp.

National Labor Relations Board - Board Decisions

Mar 17, 1972

195 N.L.R.B. 935 (N.L.R.B. 1972)

HAYES-ALBION CORPORATION 935
Hayes-Albion Corporation , Wolverine Plastics Divi-
sion and Etta Cronenwett . Case 7-CA-8492
March 17, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND KENNEDY
On November 22, 1971, Trial Examiner Lloyd Bu-
chanan issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a support-
ing brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceding to a three-member panel.
The Board has considered the record and the Trial
Examiner 's Decision in light of the exceptions and brief
and has decided to affirm the Trial Examiner' s rulings,
findings, and conclusions , except as modified herein,
and to adopt his recommended Order.
We agree with the Trial Examiner's finding that Re-
spondent violated Section 8(a)(1) of the Act by making
various threats to employees, interrogating employees,
and engaging in unlawful surveillance of an employee's
activities. He also concluded , and we agree , that Re-
spondent's disparate enforcement of a work rule as well
as its discriminatory harassment of employee Etta Cro-
nenwett, the Charging Party, violated Section 8(a)(3)
and (1) of the Act.
The Trial Examiner also found that Respondent
maintained and implemented unlawful no-solicitation
and no-distribution rules in violation of Section 8(a)(1)
of the Act.'
On January 30, 1971, the Charging Party prepared
a petition expressing employee dissatisfaction with the
Union and with certain work conditions and solicited
signatures during her nonworking time. She later gave
the petition to employee Ciersezwski who also solicited
signatures on nonworking time. About February 4,
both employees were separately questioned about the
petition by two of Resondent's managers , Stiman and
Jonas. Stiman told the Charging Party that whoever
had started the petition would be fired for breaking the
rule. Jonas told Ciersezwski that he would fire whoever
initiated the petition if either she or her steward told
him who it was. About a week later, at a meeting of the
Union's negotiating committee, Jonas mentioned the
petition and told the committee that any employee who
distributed it during working hours would be repri-
manded.
' As fully quoted in the Trial Examiner's Decision, these rules prohibited
all solicitation and distribution "during working hours."
The Trial Examiner concluded that these incidents
constituted unlawful implementation and maintenance
of the rules . We agree with the maintenance finding,
but not the implementation finding, for the incidents
involved only statements or explanations of the rules.
Respondent 's maintenance of these rules as explained
to the employees-without making any reference to or
distinction between an employee 's working and non-
working hours-is clearly illegal .' We therefore modify
the Trial Examiner 's finding and hold that Respond-
ent's maintenance of unlawful no-solicitation and no-
distribution rules is violative of Section 8(a)(1) of the
Act.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that Hayes-
Albion Corporation, Wolverine Plastics Division, Mi-
lan, Michigan, its officers, agents, successors, and as-
signs, shall take the action set forth in the Trial
Examiner's recommended Order.
i See Southern Electronics Co., Inc., 175 NLRB 69, enfd. 430 F.2d 1391
(C.A. 6, 1970).
' We are not passing on whether the rules are presumptively invalid since
it is not clear from the record whether that issue was litigated.
TRIAL EXAMINER'S DECISION
LLOYD BUCHANAN, Trial Examiner: The complaint
herein (issued May 20, 1971; charge filed February 16, 1971),
as amended, alleges that the Company has violated Section
8(a)(3) of the National Labor Relations Act, as amended, 3
Stat. 519, by verbally reprimanding Esther Ciersezwski and
Etta Cornenwett and by harassing the latter by refusal to
provide a relief employee; and Section 8(a)(1) of the Act by
said acts and by maintaining and implementing unlawful
no-solicitation and no-distribution rules, threatening dis-
charge or reprimand and coercively interrogating employees
in connection with circulation of a petition, and informing
employees of orders to engage in surveillance of their activi-
ties with respect to such petition. The answer denies the
allegations of violation.
The case was tried before me at Detroit, Michigan, on
August 4, 1971. Counsel were heard in oral argument at the
conclusion of the trial. Pursuant to permission granted to all
parties , a brief has been filed by the Company. I was not
favored with a brief from the General Counsel.
Upon the entire record in the case and from my observa-
tion of the witnesses , I make the following:
FINDINGS OF FACT
(WITH REASONS THEREFOR)
AND CONCLUSIONS OF LAW
1. THE COMPANY'S BUSINESS AND THE LABOR
ORGANIZATION INVOLVED
The facts concerning the Company's status as a Delaware
corporation, the nature and extent of its business in the manu-
facture, sale, and distribution of plastic parts for the automo-
tive and appliance industries and related products, and its
195 NLRB No. 170
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engagement in commerce within the meaning of the Act are
admitted; I find and conclude accordingly. I also find and
conclude that, as admitted, Local No. 552, United Rubber,
Cork, Linoleum and Plastic Workers of America, AFL-CIO,
is a labor organization within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Alleged Independent Violation of Section 8(a)(1)
Pursuant to a union-shop agreement which is not under
attack here , Local 552 is the exclusive collective -bargaining
representative of the employees within our purview. There
are three 8-hour shifts, which include a 20-minute lunch
period as well as a prelunch and a postlunch 10-minute break,
the Company paying for all of these.
Company rules providing successively for reprimand,
warning, suspension, and discharge were posted in the last
week of December 1970. Our concern is with the following
rules:
4. Solicitation for any purpose, during working hours
without permission from the Division Manager or his
designee.
6. Distribution of literature or other related items during
working hours without permission.
8. Interfering with other employees on the job.
The General Counsel's position is that the rules against solici-
tation and distribution are not unlawful on their face but that,
as alleged, their implementation was too broad and violative.
The issues here arose over a petition which Cronenwett pre-
pared on January 30, 1971, and which, on solicitation by
herself and some others, was signed by some 50 employees,
expressing dissatisfaction with their representation by Local
552. Jonas, the Company's works manager, admitted that he
asked Cronenwett whether she was aware of a rule against
passing out such a paper on company property without per-
mission. Whether or not that question (interrogation is fur-
ther considered below) constituted "implementation" of the
rules, it was stipulated that no one has ever been reprimanded
or disciplined under rule 6 or, by later extension to include
references to solicitation , under rule 4.
Further testimony concerning those rules and their ap-
plication or implementation was received from Stiman, the
division manager. If his statement to a Board agent, as he
explained it, constituted an admission of an unlawful rule or
of an unlawful interpretation of the rules, that question was
specifically removed from consideration in the case; it is not
proof of implementation, and it is the latter, we have seen,
which is in issue. The testimony on this point was for a while
equivocal and unclear, with what appeared to be inconstant
referents. Without need to repeat the various statements and
the distinctions attempted, we were left with no serious her-
meneutic problem when we were finally told that, under the
Company's application of the rules, an "original" distributor
(an employee who prepares a document, as Cronenwett did
in this case) who passed papers out on her own time would
be in violation of the rules while another employee, not hav-
ing prepared them but merely distributing, would not be in
violation.
Having to this point considered the no-solicitation and
no-distribution rules, we can now anticipate the findings be-
low that they were in fact implemented by various acts of the
Company. I find and conclude that by such implementation
the Company maintained and implemented unlawful no-
solicitation and no-distribution rules, in violation of Section
8(a)(1) of the Act.
Cronenwett secured the assistance of employee Ciersezw-
ski, who obtained several signatures on the petition. The next
day, which was about February 4, Ciersezwski was called into
Jonas' office where, in the presence of her Local 552 steward,
he asked her whether she had signed the petition . Jonas then
delcared that he would fire whoever initiated the petition if
either of these two told him who it was. He also told Cier-
sezwski that he would reprimand her for violating rule 4. The
allegation of discrimination by reprimand of Ciersezwski (it
does not appear that a reprimand was issued to her) was
withdrawn and not litigated . The threat to discharge the
author of the petition and the question put to Ciersezwski in
that context were violative.
Ciersezwski had given the petition to another employee,
Brainard , for signing . Davis , another employee and secretary
of Local 552, had apparently taken the petition from Brai-
nard and given it to Stiman . The next morning , again about
February 4, Cronenwett went to Stiman 's office , told him that
she spoke for the employees , and asked for the petition. First
denying that he had it , Stiman said that he would not return
it, and then asked Cronenwett who had initiated it. Jonas now
asked the same question . Stiman followed by declaring that
whoever had started the petition would be fired for breaking
the rule. Here again were violative interrogation and threat.
At a meeting with Local 552's bargaining committee early
in February , Jonas told the committee members that any
employee who distributed a petition during working hours
would be reprimanded . Jonas defined working time as work-
ing hours as excluding lunch and break periods . It may be
noted that in limiting the application of the rule , Jonas con-
tradicted the distinction and the declaration of violation pro-
nounced by Stiman , his superior . The threat, made to mem-
bers of the union committee without evidence that they had
been informed or were aware that "working hours" meant
anything less than shift time for which employees are paid,
implemented the Company 's rules , tended to interfere with
protected concerted activities , and violated the Act.
It was testified without contradiction that about the end of
February or the beginning of March Foremen Trail and Snell
told several employees of orders to watch Cronenwett and to
write her up for anything they could. This also violated the
Act.
B. The Alleged Violation of Section 8(a)(3)
Although she never told a company representative that she
had prepared the petition, it was Cronenwett who early in
February identified herself as spokesman for the signers and
asked Stiman for the petition. Jonas admitted that he several
times discussed with the union bargaining committee a con-
versation on February 22 when Cronenwett, arriving more
than an hour before her shift began, briefly asked Brainard
whether she would be a witness for her before the Board.
Jonas also told his foreman that the committee had informed
him that Cronenwett was coming in early and bothering
employees and he told them that this must stop.
Thus pinpointed by the Union, identified by Stiman, and
the subject of discussion and proposed action by manage-
ment, Cronenwett was apparently the most disturbing ele-
ment in a group of renitent employees in a company-union
relationship premised on a collective-bargaining agreement
which includes a membership requirement.
With knowledge of the provenance of the agitation and of
at least some of Cronenwett's activity, the Company now
unlawfully resisted her attempts to pierce the carapace of the
established relationship. On February 23 Cronenwett was
given what appears to be a first-offense verbal reprimand with
written confirmation, or a second-offense written warning,
which charged her with entering a department off her shift
and, by talking, interfering with another employee. That this
was a disparate and discriminatory enforcement of rule 8 in
violation of Section 8(a)(3) (under the Company's rules a
reprimand is a preliminary to suspension or discharge) is
HAYES-ALBION CORPORATION
clear from the uncontradicted testimony concerning similar
instances when no reprimand or warning was issued and one
when Trail declared that he would have to write up an em-
ployee so that Cronenwett would not "get" him for discrimi-
nation. Indeed it was stipulated that various employees have
been observed by supervisors to be talking when one or the
other employee was working and that reprimands have not
been issued therefor.
Nor should we magnify by recital or piddling details the
analysis of instances of discriminatory harassment, ques-
tioned but not controverted by the Company, when super-
visors departed from company practice of providing a relief
employee on request. Although explanation appeared to be
unnecessary, Cronenwett did explain her need on one occa-
sion to go to the lavatory and on another to get a drink of
water. We were regaled with the details but not favored with
any countering explanation. Nothing before us even remotely
suggests that Cronenwett was unlawfully testing or attempt-
ing to provoke her supervisors.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I make the following recommended:
ORDER'
Respondent, Hayes-Albion Corporation, Wolverine Plas-
tics Division, Milan, Michigan, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Encouraging membership in Local No. 552, United
Rubber, Cork, Linoleum and Plastics Workers of America,
AFL-CIO, or in any other labor organization, by harassing
employees because they engaged in protected concerted ac-
tivities or discriminating in any other manner in respect to
their hire or tenure of employment or any term or condition
of employment.
(b) Maintaining and implementing unlawful no-solicitation
or no-distribution rules, threatening discharge or reprimand,
coercively interrogating employees in connection with their
protected concerted activities, and informing employees of
orders to engage in surveillance of such activities and to
discipline them therefor.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Cancel and remove from its files the disciplinary action
taken against Etta Cronenwett.
(b) Post at its plant in Milan, Michigan, copies of the
attached notice marked "Appendix."' Copies of said notice,
on forms provided by the Regional Director for Region 7,
shall be posted by the Company, after being duly signed by
its representative, immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to its em-
ployees are customarily posted. Reasonable steps shall be
In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 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.
' 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
937
taken by the Company to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 7, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.'
' In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read: "Notify
the Regional Director for Region 7, in writing , within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT encourage membership in Local No.
552, United Rubber, Cork, Linoleum and Plastics
Workers of America, AFL-CIO, or in any other labor
organization, by harassing employees because they en-
gaged in protected concerted activities or discriminating
in any other manner in respect to their hire or tenure of
employment or any term or condition of employment.
WE WILL NOT maintain and implement unlawful no-
solicitation or no-distribution rules, threaten discharge
or reprimand, coercively interrogate employees in con-
nection with their protected concerted activities, or in-
form employees of orders to engage in surveillance of
such activities and to discipline them therefor.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
right to self-organization, to form labor organizations, to
join or assist Local No. 552, United Rubber, Cork, Lino-
leum and Plastics Workers of America, AFL-CIO, or
any other labor organization, and to engage in other
concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from
any or all such activities, except to the extent that such
right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employ-
ment, as authorized in Section 8(a)(3) of the Act.
WE WILL cancel and remove from our files the disci-
plinary action taken against Etta Cronenwett.
All our employees are free to become or remain , or refrain
from becoming or remaining, members of Local No. 552,
United Rubber, Cork, Linoleum and Plastics Workers of
America, AFL-CIO, or any other labor organization, except
to the extent that such right may be affected by an agreement
requiring membership as a condition of employment as au-
thorized in Section 8(a)(3) of the Act.
HAYES-ALBION
CORPORATION,
WOLVERINE PLASTICS
DIVISION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
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.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Any questions concerning this notice or compliance with Building, 1249 Washington Boulevard, Detroit, Michigan
its provisions may be directed to the Board 's Office, 500 Book 48226, Telephone 313-226-3200.