Anderson Co.

National Labor Relations Board - Board Decisions

Dec 19, 1991

305 N.L.R.B. 878 (N.L.R.B. 1991)

878
305 NLRB No. 129
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent further contends that the administrative law
judge’s findings are tainted with bias and prejudice against the Re-
spondent. We find this allegation to be without merit. Our review
of the record and the decision of the administrative law judge reveals
no evidence that he prejudged the case, made prejudicial rulings, or
demonstrated bias.
1 Counsel for Respondent represents that Respondent’s proper
name is Anco Div. of Anco, Inc. Both counsel for the General
Counsel and Respondent wanted the caption of the case to remain
unchanged.
Anderson Co. (ANCO), Div. of Cooper Industries
and International Association of Machinists
and Aerospace Workers, District Lodge No. 72.
Case 25–CA–21069
December 19, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On September 11, 1991, Administrative Law Judge
Martin J. Linsky issued the attached decision. The Re-
spondent 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, Anderson Co. (ANCO),
Div. of Cooper Industries, Michigan City, Indiana, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order.
John N. Petrison, Esq., for the General Counsel.
Stephen A. McCarthy, Esq., of Houston, Texas, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On January
7, 1991, the International Association of Machinists and
Aerospace Workers, District Lodge No. 72 (the Union or
Charging Party) filed a charge against Anderson Co., a Divi-
sion of Cooper Industries (Respondent).1
Thereafter, on February 20, 1991, the National Labor Re-
lations Board by the Regional Director for Region 25 issued
a complaint alleging that Respondent violated Section 8(a)(1)
of the National Labor Relations Act (the Act) on two occa-
sions when it allegedly threatened employees with the loss
of their company savings benefit plan if they selected a
union as their collective-bargaining representative and when
it promulgated, maintained, and enforced a rule prohibiting
the discussion of unions, the distribution of union material
and the solicitation of union authorization cards.
Respondent filed an answer in which it denies it violated
the Act in any way.
A hearing was held before me in Michigan City, Indiana,
on May 23, 1991.
On consideration of the entire record, to include
posthearing briefs submitted by the General Counsel and Re-
spondent, and on my observation of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is, and has been at all times material, a cor-
poration organized under, and existing by virtue of, the laws
of the State of Delaware.
At all times, the Respondent has maintained its principal
office and place of business at Michigan City, Indiana, where
it is engaged in the manufacture of automobile wiper blades
and related products.
During the past 12 months from the date of the complaint,
Respondent sold and shipped from its Michigan City, Indiana
facility products, goods and materials valued in excess of
$50,000 directly to points outside the State of Indiana and
it also during that same period purchased and received at its
Michigan City, Indiana facility products, goods, and supplies
valued in excess of $50,000 directly from suppliers located
outside the State of Indiana.
Respondent admits, and I find, that it is now, and has been
at all times material, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that the Union is now, and
has been at all times material, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Overview
The Union began an organizing campaign among Re-
spondent’s employees. During the time that the organizing
campaign was going on it is alleged that Respondent twice
violated Section 8(a)(1) of the Act. Each alleged violation
will be treated separately. The union organizing campaign,
however, did not reach the level of an election petition being
filed or a demand by the Union for recognition.
B. Threat of Loss by Employees of Company
Savings Benefit Plan
Respondent maintained a company savings benefit plan. It
was called the Cooper Savings Plan or ‘‘Co - Sav’’ for short.
879ANDERSON CO.
The employees whom the Union was seeking to organize
were eligible to participate in this company savings benefit
plan.
On December 5, 1990, Wilma Rister, division director for
employee relations, and three other supervisors conducted a
series of approximately seven meetings with employees. It
was a periodic update of employee benefits that had been
given quarterly for at least the prior 5 years. Rister and the
other supervisors had available to them 36 transparencies
which were projected onto a screen to be viewed by the em-
ployees attending the presentations. Five of the thirty-six
transparencies addressed Respondent’s savings benefit plan,
which again is called the ‘‘Co - Sav’’ plan. Basically Re-
spondent matches contributions to the plan made by employ-
ees and even if an employee contributes nothing to the plan
Respondent will still make a contribution. Rister gave the
presentation on the ‘‘Co - Sav’’ retirement plan and she
states credibly that it took about 12 minutes to present.
It is alleged that Section 8(a)(1) of the Act was violated
when Rister showed a transparency, during the union orga-
nizing campaign, at these December 5, 1990 meetings, which
stated in part:
ELIGIBILITY:
CO - SAV IS AVAILABLE TO ALL EMPLOYEES OF COO-
PER INDUSTRIES, EXCEPT THOSE WHO ARE MEMBERS OF
BARGAINING UNITS. [Jt. Exh. 1n.].
This statement on eligibility to participate in the ‘‘Co -
Sav’’ program was in capital letters but so were all the rest
of the transparencies. Rister also said during her presentation
that employees who were members of bargaining units were
not eligible to participate in the ‘‘Co - Sav’’ program.
Is this a threat in violation of Section 8(a)(1) of the Act?
Yes. The law is clear that if an employer threatens employ-
ees with a loss of benefits if they select a union as their col-
lective-bargaining representative it violates Section 8(a)(1) of
the Act. See Alpha Cellulose Corp., 265 NLRB 177 (1982).
In the instant case the employees of Respondent had a ben-
efit, i.e., their eligibility to participate in the ‘‘Co - Sav’’
program. At the December 5, 1990 meetings they are told
and it is shown them in print that they are not eligible to
participate if a member of a bargaining unit. Under the law
employees who select a union to represent them continue to
enjoy the benefits of employment, such as participation in a
pension plan as the ‘‘Co - Sav’’ program was, until that ben-
efit is modified by agreement between the employer and the
Union or until the parties bargain in good faith to impasse
and the employer makes a unilateral change. The trans-
parency in question and the statements of Rister convey to
the employees something quite different, i.e, if you select a
Union to represent you you lose the ‘‘Co - Sav’’ pension
plan you now have available to you. This is a clear cut
threat, and one which would tend to cause an employee to
hesitate in deciding to vote in favor of representation. See
299 Lincoln St., 292 NLRB 172 (1988).
The ‘‘Co - Sav’’ program was stipulated by counsel for
Respondent to be a significant benefit and correctly so be-
cause as employee Micheal Zeeze testified his ‘‘Co - Sav’’
account was $12,225.04, which is not an insignificant
amount of money. Zeeze credibly testified that Rister said at
the meeting he attended that if the employees joined a union
they would be ineligible to participate in the ‘‘Co - Sav’’ re-
tirement plan. Rister claims she never ad-libbed but only
read the allegedly objectionable language. It doesn’t make
any difference, however, since the printed language violates
Section 8(a)(1).
The December 5, 1990 meetings each lasted about 1 hour
and the ‘‘Co - Sav’’ transparencies were 5 out of 36
transparancies and the challenged language was 18 words.
But, it was a critical 18 words. Working Americans are vi-
tally concerned about their pensions and language going to
the issue of eligibility for pension rights are likely to heard
and stand out.
The threat of ineligibity for the ‘‘Co - Sav’’ retirement
program if the employees selected a union was a significant
threat and was not repudiated by Respondent thereafter.
I note that at the time of the rollover from the 401 K re-
tirement plan to the ‘‘Co - Sav’’ retirement program in ap-
proximately 1988 employees were given a brochure which
more accurately reflected the law. In Joint Exhibit 3, an
eight-page brochure entitled ‘‘Cooper Savings Plan’’ the fol-
lowing language is used in regards to who is eligible for the
‘‘Co - Sav’’ plan. The language is as follows: ‘‘However,
members of bargaining units whose contracts do not call for
participation in the Plan are not eligible.’’
The brochure (Jt. Exh. 3) was given out to employees long
before the December 5, 1990 meetings, and, therefore, does
not furnish Respondent with the defense of repudiation, i.e.,
don’t hold a threat against us because we immediately set the
record straight. See Passavant Memorial Area Hospital, 237
NLRB 138 (1978).
Employees had also prior to the December 5, 1990 meet-
ings been given a copy of a brochure entitled ‘‘Your Indi-
vidual Account Retirement Plan’’ (Jt. Exh. 2), which does
not contain the words ‘‘Co - Sav’’ but which states as fol-
lows:
Eligibility for Membership
If you are an hourly employee of ANCO, not covered
by a collective bargaining agreement, you will auto-
matically become a plan member effective on July 1,
1990.
Since the two brochures were distributed to employees be-
fore the December 5, 1990 meetings they do not render the
language spoken and shown by Rister as not objectionable.
Employee Juanita Lynn Taylor corroborated Zeeze. She
was at the same meeting as he. Employee Mary Francis
Mullins was at a different meeting and Rister showed the
transparency on ‘‘Co - Sav’’ eligibility and said the employ-
ees were not eligible for ‘‘Co - Sav’’ if you were in a bar-
gaining unit. A male employee, whose name Mullins
couldn’t remember, was at the same meeting as Mullins. He
asked Rister if Rister was saying that anyone belonging to
a bargaining unit could not belong to ‘‘Co - Sav’’ and Rister
said yes. I found Zeeze, Taylor, and Mullins to be credible
and accurate. Rister claims she was asked no questions on
eligibility at the meetings. Rister is an honest person but in-
accurate on this point.
880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
C. Did Respondent Promulgate, Maintain, and Enforce
a Rule Unlawfully Prohibiting the Discussion of
Unions, Distribution of Union Materials and the
Solicitation of Union Authorization Cards
Each workday the employees were given two 5-minute
breaks, a 15-minute lunchbreak, and at the end of the shift
a 5-minute washup period. Page 10 of General Counsel Ex-
hibit 2, i.e., ‘‘The Anderson Company Hourly Employees
Handbook’’ provides, in pertinent part, as follows:
WORKING HOURS
The regular workweek at ANCO is from Sunday to
Saturday and normally consists of forty (40) hours. In
the course of doing business, job requirements may ne-
cessitate overtime work. ANCO provides a lunch period
of 15 minutes for factory employees plus two five
minute breaks—one in the morning, the other in the
afternoon, and a five minute wash up period at the end
of the shift. All of this break time is paid.
Several witnesses for the General Counsel credibly testi-
fied that there was no prohibition on what employees could
do or talk about during the break times referred to in the
handbook. In addition, employees were permitted to go to
the restroom as needed during the work day. There was, ac-
cording to several credible witnesses for the General Coun-
sel, no prohibition on what the employees could talk about
with one another when in the restroom.
It is hornbook labor law that a no-solicitation or no-dis-
tribution policy cannot be discriminatorily promulgated,
maintained, or enforced, i.e., you cannot have a bar on union
solicitation or distribution and no bar on other employee so-
licitations or distributions. See Republic Aviation Corp. v.
NLRB, 324 U.S. 793 (1945).
In mid-January 1991 employee Mary Francis Mullins
come into work a little early and spoke about the Union with
two other women employees in the ladies room. She told one
of them, who said she never saw any union literature, that
she (Mullins) would leave some in the ladies room for her.
Thereafter, Supervisor Tom Mosley asked to speak to
Mullins. According to Mullins, whom I. credit, Mosley said
‘‘Mary, the 3:00 to 11:00 shift does not want a Union and
I’d advise you not to be bringing any literature or leaving
it lay around or handing any of it out.’’ (Tr. 56.)
Tom Mosley admits that he found out that Mullins was
talking about the Union in the ladies’ room. He approached
Mullins and, by his own admission, said ‘‘I heard that you
were in the bathroom talking Union before work, it’s no big
thing, it’s just, you know, somebody else saying it, and I
go—I go you shouldn’t be doing that.’’ (Tr. 116.) This is the
only restriction on what employees may discuss in the rest-
room. Heretofore, employees were free to discuss anything
they wanted in the restroom. There is no evidence that
Mullins kept the lady in the restroom and would not let her
return to work. Accordingly, to prohibit discussions about the
Union and not prohibit discussions about any other matter is
discriminatory and a violation of Section 8(a)(1) of the Act.
A second incident occurred around February 21, 1991,
when employee Jo Ann Ailes was handing out union lit-
erature at the time clock during the 5-minute washup period.
Supervisor Ron Krantz, according to Ailes, told her that
she should not pass out union literature on company time.
She later spoke to Dennis Searinger, a supervisor in em-
ployee relations, and he told her the same thing.
It is clear from that portion of the employee handbook set
out verbatim in the text above that the 5-minute washup pe-
riod is break time. Break time is the employee’s time and
not company time. There was no evidence that in handing
union literature Ailes was interfering with employees work-
ing or trying to clock in or out. Accordingly, it was unlawful
for Respondent to tell her that union literature could not be
passed out during the 5-minute washup period at the end of
her shift. This was a violation of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce, and
in operations affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act when it
threatened its employees with the loss of their company sav-
ings benefit plan if they joined, formed, or selected a union
as their collective-bargaining agent.
4. Respondent violated Section 8(a)(1) of the Act when it
discriminatorily promulgated, maintained and enforced a rule
which prohibited an employee from discussing the Union in
the restroom and when it prohibited an employee from pass-
ing out union literature during the 5-minute washup break
period at the end of the shift.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Anderson Co. (ANCO), Div. of Cooper
Industries, Michigan City, Indiana, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Threateaning its employees with the loss of their com-
pany savings benefits plan if they join, form, or select a
union as their collective-bargaining representative.
(b) Prohibiting employees from discussing the Union when
in the restroom while allowing them to discuss other matters
and from prohibiting employees from handing out union lit-
erature while on the 5-minute washup breaktime at the end
of the shift.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
881ANDERSON CO.
3 If this 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.’’
4 General Counsel’s motion to reopen the record and to consolidate
complaints issued in Cases 25–CA–21069 and 25–CA–21383 is de-
nied. I deny the motion because I believe it will unduly delay final
disposition of the allegations in Case 25–CA–21069.
(a) Post at its facility in Michigan City, Indiana, copies of
the attached notice marked ‘‘Appendix.’’3 Copies of the no-
tice, on forms provided by the Regional Director for Region
25, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.4
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 threaten our employees with the loss of
their company savings benefit plan if they join, form, or se-
lect a union as their collective-bargaining representative.
WE WILL NOT discriminatorily promulgate, maintain, or
enforce a rule which prohibits our employees from dis-
cussing the Union in the restroom or which prohibits our em-
ployees from passing out union literature during the 5-minute
washup break period at the end of the shift.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
ANDERSON CO. (ANCO), DIV. OF COOPER INDUSTRIES