Braden Mfg., Inc.

National Labor Relations Board - Board Decisions

Dec 23, 1994

315 N.L.R.B. 1145 (N.L.R.B. 1994)

1145
315 NLRB No. 143
BRADEN MFG., INC.
Braden Manufacturing, Inc. and Shopmen’s Local
Union No. 620 of the International Association
of Bridge, Structural and Ornamental Iron
Workers. Case 26–CA–16050
December 23, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND COHEN
On August 26, 1994, Administrative Law Judge
Harold Bernard Jr. issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering 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 briefs and has de-
cided to affirm the judge’s rulings, findings, 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, Braden Manufacturing,
Inc., Fort Smith, Arkansas, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Bruce E. Buchanan, Esq., for the General Counsel.
Richard L. Barnes, Esq., of Tulsa, Oklahoma, for the Re-
spondent.
Mr. Owen J. Bill, of Tulsa, Oklahoma, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
HAROLD BERNARD, JR., Administrative Law Judge. I heard
the case June 8, 1994, in Fort Smith, Arkansas, on charges
filed February 25 and complaint issued March 29, 1994, al-
leging Respondent’s plant rules unlawfully curtail employees
from engaging in union solicitation, distribution of union lit-
erature, and use of bulletin boards to post union-related lit-
erature thereby violating Section 8(a)(1) of the Act; and that
Respondent disciplined employee Gail Mangham for support-
ing the Union violating Section 8(a)(3) and (1) of the Act.
FINDINGS OF FACT
I. JURISDICTION
Respondent manufactures exhaust silencing duct works for
gas turbine engines at a plant in Fort Smith, Arkansas, from
which it annually sells products valued in excess of $50,000
directly to customers outside Arkansas. Respondent admit-
tedly is an employer engaged in commerce within the mean-
ing of the Act, and the Union is admittedly a labor organiza-
tion as statutorily defined.
II. THE UNFAIR LABOR PRACTICES
Respondent’s plant rules 16 and 27 respectively prohibit
the following:
Bringing printed materials, radios, or other non-work
related items in the plant during working hours without
authorization.
Solicitation of fellow employees for any purpose,
selling tickets, passing petitions, or distributing lit-
erature on company premises without authorization of
Management.
The rules are enforced beginning with oral or written
warnings leading to suspension and discharge. (G.C. Exh. 4.)
Respondent’s Fort Smith plant started operations in Feb-
ruary 1991 manned by 125 employees on 2 shifts. The plant
employees were unrepresented by a union. Beginning some-
time in December 1993, the Union began an organizing drive
seeking to represent Respondent’s employees. It is admitted
that the plant rules described above, as well as others dis-
cussed below, governed employee conduct at all times rel-
evant here. The Board while finding an employer’s plant
rules unlawful recently noted as follows:
The judge found that Respondent’s plant rule 27,
prohibiting solicitation or distribution ‘‘[o]n Company
premises . . . unless approved by the Company,’’ was
presumptively invalid under Our Way, Inc., 268 NLRB
394 (1983). The judge went on to observe, however,
that the rule’s existence had no apparent restrictive im-
pact on the wearing of union insignia, the distribution
of union literature, and the solicitation of union
aurthorization card signatures on the Respondent’s
premises during the Union’s organizational efforts in
1987 and 1988. The judge therefore concluded that the
Respondent did not violate Section 8(a)(1) because the
rule was applied in such a way as to convey an intent
to permit union solicitation or distribution during the
employees’ nonworking time. We disagree.
At the outset, we note that the rule, on its face, is
overly broad, i.e., it is not restricted to working time.
It is clear that the maintenance of a rule that is not so
restricted is presumptively unlawful. See Our Way,
supra. However, an employer can avoid the finding of
a violation by showing through extrinsic evidence that
its rule was communicated or applied in such a way as
to convey an intent clearly to permit solicitation during
breaktime or other periods when employees are not ac-
tively at work. Our Way, 268 NLRB at 395 fn. 6, citing
Essex International, 211 NLRB 749, 750 (1970). We
find, however, that Respondent in this case failed to
make that showing.
In this regard, we note that Respondent failed to ad-
duce any evidence that it told employees that solicita-
tion during nonworking time was permitted. Nor did
Respondent show that it knowingly tolerated solicitation
during nonworking time. MTD Products, Inc., 310
NLRB 733.
Respondent in the proceedings before me failed to present
any evidence that it drew a distinction between working and
nonworking time in the enforcement of the rules so as ‘‘to
1146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
convey an intent clearly to permit solicitation during
breaktime or other periods when employees are not actively
at work.’’ Essex International, Inc., supra, 211 NLRB 749,
750. There is no evidence that the Respondent here told em-
ployees that solicitation during nonworking time was per-
mitted or that Respondent tolerated such conduct. It is further
clear and undenied that rule 16 governing distribution ‘‘is
not confined to work areas and that Respondent has not
shown that it knowingly tolerated distribution in nonwork
areas.’’ MTD Products, supra at 733 fn. 3. Based on the
foregoing, Respondent’s overly broad rules prohibited all so-
licitation and distribution in violation of Section 8(a)(1) of
the Act.
A. Bulletin Board Restriction
Employee Gail Mangham testified credibly and without
contradiction that about a week prior to February 17, 1994,
Plant Superintendant John Stiles called him to a meeting
with Foreman John House present and accused Mangham of
hanging union papers on a bulletin board in the stainless
steel shop. The papers invited employees to a union meeting.
Mangham denied doing so and Stiles retorted by claiming he
had two witnesses and asking whether Mangham was calling
them liars. He then ordered Mangham to read Respondent’s
work/conduct rule 26, which prohibits the posting of notices
on bulletin boards or in other plant areas without authoriza-
tion of management. (G.C. Exh. 4.) After asking if the em-
ployee understood the rule. Stiles then ordered Mangham ‘‘to
go on back to work and not put any notices on the board.’’
Mangham testified further, still without contradiction by
Stiles or House, that the bulletin board in question serves as
a board where employees put up for-sale notices to sell cars
and boats and where company literature is posted. He further
explained there is a covered (or enclosed) board, while others
are open where employees tack up notices—and that the
board involved in this instance was an ‘‘open’’ board. He
testified that antiunion postings continued after Stiles’ admo-
nition against posting union-related notices. Included among
such materials is a copy of a note posted where employees
pick up their tools by Leadman Clarence Green in the
toolcrib. The note reads:
I took my posters down but, a lot of rumors started
goin round so now as you see there no longer down
Roses are red violets are blue now what’s the union
going to do
This box is mine O don’t it shine The union can kiss
my behind
Space for rent must be nonunion Cost free See
owner of this box
CG. [G.C. Exh. 6.]
Employee witness Gary Pruitt testified that he posted a gos-
pel saying on a bulletin board used by employees in the plant
without getting permission, that 22 individuals signed it, in-
cluding Foreman John House, himself, and that the notice re-
mained on the board as of this hearing a month since he
posted it. Pruitt credibly testified without denial that Re-
spondent published and posted ‘‘Rumor—Fact’’ bulletins re-
butting so-called rumors originating from the Union’s orga-
nizing campaign on all the plant bulletin boards.
Respondent did not question Stiles, House, or Green on
the corroborated testimony credibly rendered by Mangham
and Pruitt. Instead, it called Supervisor Bill Rozell, who re-
plied to leading questions about an incident allegedly occur-
ring ‘‘since December of 1993’’ when he allegedly found
and removed union meeting notices on a ‘‘restricted’’ bul-
letin board in the department but admittedly did not know
whether another bulletin board by the bathroom was re-
stricted or not. Rozell corroborated Pruitt and Mangham in
fact, admitting that Respondent posts ‘‘Rumor—Fact’’ bul-
letins on the Company bulletin board regarding alleged ru-
mors the Union is circulating. Moreover, Rozell did not ad-
dress or connect his account to that rendered by Mangham,
leaving the latter’s testimony intact.
The applicable legal standards are well established:
However, where an employer permits its employees to
utilize its bulletin boards for the posting of notices re-
lating to personal items such as social or religious af-
fairs, sales of personal property, cards, thank you notes,
articles, and cartoons, commercial notices and
advertisments, or in general any non work related mat-
ter, it may not ‘‘validly discriminate against notices of
union meetings which employees also posted.’’ More-
over in cases such as these an employer’s motivation no
matter how well meant, is irrelevant.
Guardian Industries Corp., 313 NLRB 1275 (1994), and
cases cited. The Respondent’s conduct here parallels that
prohibited in the cited cases and likewise violates Section
8(a)(1). A further basis for such conclusion rests in the
undenied testimony that Stiles ordered employee Mangham
not to put any notices on the board after accusing him of
posting union meeting notices. Even assuming that Respond-
ent’s bulletin boards consist of glass enclosed ones and open
ones—a genuine question given Supervisor Rozell’s inablility
to identify which ones in his own department are restricted
as opposed to open ones—Plant Superintendent Stiles left
ambiguous and uncertain whether he was promulgating a
new rule against employees putting union-related matter on
all the plant bulletin boards or just on restricted ones. As has
been noted by the Board:
Where ambiguities appear in employee work rules pro-
mulgated by an employer, the ambiguity must be re-
solved against the promulgator of the rule rather that
the employees who are required to obey it.
Fruehauf Corp., 237 NLRB 399, 400 fn. 8 (1978). Stiles’ in-
junction to the employee thus amounts to an unlawful dis-
criminatory blanket prohibition against the use of any plant
bulletin board to post any union-related communication to
employees.
Although the findings of disparate enforcement of Re-
spondent’s rules concerning use of its bulletin boards was not
specifically alleged in the original complaint, the matter was
fully litigated at trial without objection by Respondent’s
counsel rendering a conclusion thereon appropriate. Leather
Center, Inc., 312 NLRB 521 fn. 4 (1993). Accordingly, the
General Counsel’s motion on brief to amend the complaint
to confirm the pleadings to the proof in such respects is
granted, and I find Respondent through Stiles promulgated
1147BRADEN MFG., INC.
and maintained rules governing the use of plant bulletin
boards violative of Section 8(a)(1) of the Act.
B. Respondent’s Discipline Against Employee Mangham
Employee Gail Mangham began work as a fitter/welder on
the first shift under Foreman Ray House in June 1991. He
first became actively involved in the Union’s campaign to or-
ganize employees at the Respondent’s facility in December
1993, placing union stickers on his work toolbox, on his
truck and lunch bucket, and on his hardhat, which he wore
8 hours a day around the plant. The lettering on the hat
reads, ‘‘Vote yes for the Union,’’ and when the inscription
wore off, he replaced it with a new such slogan. Mangham
also held membership on the Union’s organizing committee.
Foreman House testified he obviously became aware in 1993
that Mangham actively supported the Union, and as noted
Plant Superintendant Stiles accused Mangham of engaging in
the posting of union meeting notices together with House,
Stiles antagonistically attempting to put Mangham on the de-
fensive by suggesting Mangham accused two witnesses to his
posting of the union meeting notices of being liars. Plant
Manager W. Grant Olcott became aware of the Union’s cam-
paign in early or mid-December 1993 and testified the Com-
pany sent out letters to employees setting forth its opposition
to the Union. Olcott testified he knew Mangham, and was
aware in January and February 1994 he was in favor of the
Union’s representing employees at the Fort Smith plant, that
Mangham was up front and forward about it. Foreman House
acknowledged in his testimony that he didn’t think it was a
good idea for the Union to come in.
The timing of the below-described warnings issued against
Mangham, February 1 or 2, 14, and 17, 1994, are less than
2 months after the union campaign commenced during which
Mangham outwardly displayed his prounion sentiments.
C. The Warnings
Mangham testified he tried to secure a copy of his several
pages’ long appraisal on numerous ocasions. While acknowl-
edging he had signed it in House’s presence, he understand-
ably testified he wanted to read it to see if he could improve
himself free from the intimidating presence of Foreman
House. He recalls that on February 1 or 2, 1994, he asked
J. R. Meadows a leadman and admitted supervisor as de-
fined in the Act to get him a copy of the appraisal because
the personnel office ‘‘don’t give you a copy.’’ Meadows told
Mangham ‘‘they’d not let it out of the office after Meadows
tried to secure a copy.’’ Notwithstanding the fact that the
employee had directed his request to an admitted supervisor
who manifestly could have rejected it, House issued a verbal
warning to Mangham for what he had done, yet remarkably
conceded the rule, rule 23, which simply states as being pro-
hibited conduct: ‘‘Failure to follow production procedures set
up by your Supervisor or by Company Management.’’ Gen-
eral Counsel’s Exhibit 4 does not really set forth a prohibi-
tion of the conduct for which he disciplined Mangham. He
failed to explain why Mangham’s reliance on Meadows—a
supervisor House testifies he relies on for input on the 12
employees under him—did not exculpate Mangham from any
blame whatsoever.
On February 14 Mangham went to the office on his lunch-
time to see a copy of his evaluation and was told by Linda
Thompson he couldn’t see it without House being present.
Mangham explained that he didn’t want to take it out, just
read it there. Although the chronology in later events is left
somewhat unclear, it appears that the request on February 14
was rejected and admittedly House told him later during the
below-described meeting on February 17, that House verbally
warned him regarding Mangham’s February 14 visit to the
front office. This would make it two verbal warnings so far.
On February 17, Mangham asked Meadows for permission to
go to the office at lunchtime to see his evaluation and Mead-
ows gave him approval to do so, telling Mangham he had
his permission.
D. The February 17 Written Warning
On arrival during lunchtime Mangham’s request led
Thompson to tell him she would call the Tulsa office and get
a ruling, that he should return at 2 p.m. on break. Meadows
on the report from Mangham told him that would be fine.
Later House called Mangham to his office and issued him a
written warning citing rule 16, described and set forth above,
viz because the employee brought a camera into the plant
without authorization; and a further warning for violating
rule 23, by going to the front office without seeing a fore-
man first. (G.C. Exh. 5.)
Yet rule 23 as noted fails to interdict Mangham’s conduct.
It reads simply as prohibited conduct: ‘‘Failure to follow pro-
duction procedures set up by your Supervisor or by Com-
pany Management.’’ Rule 16 likewise fails to prohibit bring-
ing cameras into the plant, simply stating as prohibited con-
duct: ‘‘Bringing printed materials, radios or other non-work
related items in the plant during working hours without au-
thorization.’’
Mangham had brought a camera into the plant to photo-
graph antiunion notices in Green’s toolcrib and the pictures
did not develop. The parties agreed that this was the only oc-
casion between January 1, 1992, to the time of the hearing
June 8, 1994, that any employe in the Fort Smith plant force
was ever given written disciplinary action for violating either
rule. Respondent’s own Human Resources Manager Sharon
Lawrence not only testified that she told Thompson at some
point in the chronology of events involving Mangham that an
employee should be able to get a copy of the appraisal but
significantly also testified that the cited rule 23 would not be
violated by an employee visiting the office for the purpose
Mangham had if it was on breaktime or lunchtime as did
Mangham. Even more significantly, Respondent, according to
Lawrence dropped this intepretation of the rule altogether
and allows employees to have copies, yet would not agree
that it was unfair to nevertheless discipline Mangham based
on the jettisoned ‘‘rule.’’ House originally didn’t even know
whether or not there was a rule against bringing a camera
into the plant. Employee witnesses testified they’d never
been informed of such a rule. They testified to past examples
where there was use of cameras in the plant without the ob-
taining of permission and a video camera recording was re-
ceived into evidence further supporting such a finding. To
avoid offending collateral matters and delay to this proceed-
ing, I agreed with respect to a video film to resolve on an
assuming arguendo basis the legal significance of whether a
two employee video of the plant picked up one asking
whether supervision would object. (All Party 1.) The General
Counsel and I do not hear such question; Respondent counsel
1148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 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.
2 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.’’
does. Assuming the question is asked, such does not rise to
the level of probative evidence the two employees knew that
authorization for the filming was required either then or gen-
erally and I so find. Moreover, the record is replete with in-
stances when nonemployee visits occurred at the plant and
other picture taking occurred, facts which tend to weaken
Respondent’s alleged support for the camera rule being based
on proprietary concerns for the confidentiality of its products,
as well as to militate against there being any rule at all in
such regard. Respondent’s asserted basis for disciplining
Mangham for visiting the front office is even more flimsy
and unsupported inasmuch as Lawrence admitted such a visit
on breaktime simply didn’t violate the work/conduct rule in-
volved, rule 23 which makes no mention whatsoever of con-
duct which would prohibit what Mangham did. Significant
indeed is the abundent and uncontradicted testimony by em-
ployees that they routinely visited the front office on person-
nel matters on many occasions without first securing permis-
sion.
Based on clear, abundant evidence of Mangham’s union
activities, Respondent’s knowledge thereof, and animus to-
ward the employee’s protected conduct as well as the timing
of Respondent’s actions against him combined with the re-
markably unpersuasive and totally unsupported advanced rea-
sons for the discipline against him together with self-damag-
ing admissions by Respondent agents, I find that the General
Counsel has established a clear prima facie case to support
the complaint allegations. The burden therefore falls on Re-
spondent to demonstrate that it would have disciplined
Mangham in the respects noted even aside from his support
for the Union. Wright Line, 251 NLRB 1083 (1980), affd.
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983). This it failed to do. I find the Respondent’s actions
against Mangham violate Section 8(a)(3) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Seciton 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By maintaining and enforcing overly broad rules that
prohibit unauthorized solicitation and distribution at all times,
including employees’ nonworking time, the Respondent has
violated Section 8(a)(1) of the Act.
4. By promulgating, maintaining, and enforcing a policy
which prohibits employees from posting union-related mate-
rials on bulletin boards that are available for personal use by
employees, Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
5. By issuing verbal and written warnings against Gail
Mangham on February 1 or 2 and 14 and 17, 1994, Respond-
ent violated Section 8(a)(3) and (1) of the Act.
6. The unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent violated Sec. 8(a)(1) and
(3) of the Act, I recommend an order that it cease and desist
therefrom and take certain affirmative action designed to ef-
fectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The Respondent, Braden Manufacturing, Inc., Fort Smith,
Arkansas, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Enforcing and maintaining overly broad rules that pro-
hibit unauthorized solicitation and distribution at all times,
including employees’ nonworking time.
(b) Maintaining or enforcing a policy which discrim-
inatorily prohibits its employees from posting union-related
material on bulletin boards which are otherwise available for
personal use by employees.
(c) Prohibiting its employees from posting union-related
materials on bulletin boards which are otherwise available
for personal use by employees.
(d) Issuing verbal and written warnings or otherwise dis-
criminating against any employee for supporting Shopmen’s
Local Union No. 620 of the International Association of
Bridge, Structural and Ornamental Iron Workers or any other
labor organization.
(e) 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 this affirmative action to effectuate the policies of
the Act.
(a) Rescind work/conduct rules 16 and 27 which prohibit
unauthorized solicitation and distribution at all times, includ-
ing employees’ nonworking time.
(b) Withdraw and rescind any rules or policies which
discriminatorily restrict employees’ use of Respondent’s bul-
letin boards which are otherwise available for general use by
employees.
(c) Rescind the disciplinary warnings against Gail
Mangham, remove them from Respondent’s files, and de-
stroy any and all writings comprising documenting or refer-
ring to the warnings and notify Mangham in writing that this
has been done and that those unlawful actions will in no way
serve as a ground for or influence future personnel or dis-
ciplinary action against him.
(d) Post at its facility in Fort Smith, Arkansas, copies of
the attached notice marked ‘‘Appendix.’’2 Copies of the no-
tice, on forms provided by the Regional Director for Region
26, 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.
1149BRADEN MFG., INC.
(e) 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.
WE WILL NOT try to enforce and maintain a rule prohibit-
ing unauthorized solicitation or distribution during employ-
ees’ nonworking time.
WE WILL NOT prevent you from posting union-related ma-
terials on bulletin boards available to you for personal use.
WE WILL NOT issue verbal and written warnings against
any employee because of the employee’s support for
Shopmen’s Local Union No. 620 of the International Asso-
ciation of Bridge, Structural and Ornamental Iron Workers or
any other labor organization.
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.
WE WILL rescind work/conduct rules 16 and 27 which pro-
hibit unauthorized solicitation and distribution at all times,
including employees’ nonworking time.
WE WILL rescind and not try to enforce and maintain any
policy which discriminatorily prohibits you from posting
union-related materials on bulletin boards which are other-
wise available to you for personal use.
WE WILL rescind the disciplinary warnings against Gail
Mangham, remove them from our files, and destroy any and
all such writings regarding the warnings and notify him in
writing that this has been done and that the unlawful dis-
cipline will in no way serve as grounds for any future action
against him.
BRADEN MANUFACTURING, INC.