Brunswick Corp.

National Labor Relations Board - Board Decisions

Jan 22, 1987

282 N.L.R.B. 794 (N.L.R.B. 1987)

794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mercury Marine-Division of Brunswick Corp. and
International Union, United Automobile, Aero-
space and Agricultural Implement Workers of
America (UAW), AFL-CIO. Case 16-CA-
12543
22 January 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 23 September 1986 Administrative Law
Judge Richard J. Linton issued the attached deci-
sion . The Respondent filed exceptions and a sup-
porting brief;' the General Counsel filed cross-ex-
ceptions and a brief in support thereof and in reply
to the Respondent's exceptions; and the Respond-
ent filed a brief in answer to the General Counsel's
cross-exceptions.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings,2 fmdings,3
and conclusions only to the extent consistent with
this Decision and Order.
1. The judge found, inter alia, that remarks made
by the Respondent's supervisor, Turner, to employ-
ee Wiles in November 1985 did not violate Section
8(a)(1) of the Act. The General Counsel filed ex-
ceptions to that fording. We fmd merit in the Gen-
eral Counsel's exceptions.
The relevant facts, as more fully set forth in the
judge's decision, are as follows. In the course of a
union organizing campaign in the fall of 1985,
Wiles signed an authorization card and became an
active union supporter by distributing cards and so-
liciting on behalf of the Union. In November 1985
Turner said to Wiles in the presence of two other
employees, "What would stop [the Company] from
1 The Respondent has requested oral argument. The request is denied
as the record, exceptions , and briefs adequately present the issues and the
positions of the parties.
2 The Respondent has excepted to the judge's failure to grant its
motion to dismiss par. 7(a) of the complaint following the General Coun-
sel's resting without adducing any evidence concerning the Respondent's
no-solicitation/no-distribution rule. In the absence of a showing that the
judge's allowing the General Counsel to reopen his case resulted in preju-
dice to the Respondent, we find no merit in this exception.
s The e Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings . Additionally, the Respondent in a motion for rehearing as-
serts that the judge's findings are a result of bias. After a careful examina-
tion of the entire record, we are satisfied that tins allegation is without
merit and, accordingly , we deny the Respondent's motion.
picking up and moving down to Mexico if the
union did get in this plant here?" Turner also re-
marked to Wiles that, if the Union were voted in,
Long, a group leader who sometimes helped Wiles
by operating a second forklift, would no longer be
able to assist Wiles.
The judge dismissed those paragraphs of the
complaint relating to Turner's statements on the
ground that the statements appeared to be discus-
sions of possible campaign issues rather than threats
of retaliation. Regarding Turner's statement about
Long's no longer being able to assist Wiles, the
judge noted that he had to infer that Turner was
referring to certain restrictive work practices in
some collective-bargaining agreements. Regarding
Turner's rhetorical question about the Company's
moving its plant to Mexico, the judge found Tra-
Mar Communications, 265 NLRB 664 (1982), cited
by the General Counsel, to be inapposite because it
involved many unlawful acts by the owner, includ-
ing an outright threat to move the plant.
Contrary to the judge, we fmd that Turner's
statement regarding Long's assistance does not
constitute a prediction of potential adverse conse-
quences which could flow from a plant's unioniza-
tion. Absent any reference to the collective-bar-
gaining process, Turner's statement must be under-
stood instead as a threat of unilateral action to be
undertaken in retaliation for unionization. Com-
pare, e.g., Aero Tec Laboratories, 269 NLRB 705,
706 (1984), and Piggly Wiggly, Tuscaloosa Division,
258 NLRB 1081, 1092-1093 (1981). Since no such
context was shown here, we fmd that Turner's
statement violated Section 8(a)(1).
We also disagree with the judge's fording that
Turner's rhetorical question regarding the plant's
relocation to Mexico was nothing more than a dis-
cussion of possible campaign issues . In Stanford
Seed Co., 245 NLRB 1064, 1067 (1979), the Board
found that a similarly rhetorical question by a su-
pervisor to an employee constituted an unlawful
threat of plant closure. We fmd, accordingly, that
this statement by Turner also, violated Section
8(a)(1).
2. The judge found that the Respondent since 20
September 1985 has maintained an unlawfully
broad no-solicitation/no-distribution rule in viola-
tion of Section 8(a)(1) of the Act. We agree with
the judge's finding that the rule is unlawful on its
face. The rule requires employees to obtain the Re-
spondent's permission before engaging in the pro-
tected activity of union solicitation in work areas
during nonworking time, and it requires the Re-
spondent's authorization in order to solicit in the
lunchroom and lounge areas during breaks and
lunch periods. In Enterprise Products Co., 265
282 NLRB No. 119
BRUNSWICK CORP.
NLRB 544, 554 (1982), citing Peytin Packing ,Ca,
49 NLRB 828 (1943), and Stoddard-Quirk Mfg. Co.,
138 NLRB 615 ( 1962), the Board held that any rule
that requires employees to secure permission from
their employer as a precondition to engaging in
protected concerted activity on an employee's free
time and in nonwork areas is unlawful. Further, the
Board held in Sch, adig Corp., 265 NLRB 147, 157
(1982), citing Staco, Inc., 244 NLRB 461 (1979),
that the mere existence of an overly broad rule
tends to restrain and interfere with employees'
rights under the Act even if the rule is not en-
forced. We fmd, accordingly, that the Respondent's
promulgation and maintenance of its no-
solicitation/no-distribution rile constituted a per se
violation of Section 8(a)(1).
3. Finally, the judge found that the Respondent's
discharge of Wiles on 21- February 1986 violated
Section 8(a)(3) and (1) of the Act. In agreeing with
the judge, however, we find it unnecessary to rely
on the judge 's finding that Employee Relations
Manager Papen had been told by Turner that Wiles
occasionally took his breaks out by the trailers,
where he was discovered on 19 February 1986.
ORDER
The National Labor Relations Board orders that
the Respondent, Mercury Marine-Division of
Brunswick Corp., Stillwater, Oklahoma, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with plant closure be-
cause of their interest in or activity on behalf of the
Union.
(b) Threatening, employees with more onerous
working conditions in retaliation for unionization.
(c) Maintaining any rule which requires employ-
ees to request company permission to engage in so-
licitation in work areas during nonworking time, or
which requires company authorization in order to
solicit in nonworking areas of the plant on employ-
ees' own time.
(d) Discharging or otherwise discriminating
against any employee for supporting the UAW or
any other union.
(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Notify its employees in writing, by memoran-
dum or letter separate from the notice to employ-
ees, that the no-solicitation rule contained at pages
21-22 of the employee handbook is no longer in
effect.
795
-, =(b)-Insert a written notice in the employee hand-
book where the no-solicitation rule appears, advis-
ing readers that the rule, as written, has been re-
scinded, or substitute a valid rule in the handbook
for the one now appearing there.
(c) Offer. Rick Wiles immediate and full reinstate-
ment to his former job or, if that job no longer
exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or
privileges previously enjoyed, and make him whole
for any loss of earnings and other benefits suffered
as a result of the discrimination against him, in the
manner set forth in the remedy section of the deci-
sion.
(d) Remove from its files any reference to the
unlawful discharge and notify Rick Wiles in writ-
ing that this has been done and that the discharge
will not be used against him in any way.
(e) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(f) Post at its facility in Stillwater, Oklahoma,
copies of the attached notice marked "Appendix."4
Copies of the notice, on forms provided by the Re-
gional Director for Region 16, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(g) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.5
4 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 Nation-
al 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."
5 The judge included in his recommended Order a visitatorial clause
authorizing the Board , for compliance purposes , to obtain discovery from
the Respondent under the Federal Rules of Civil Procedure under the su-
pervision of the United States court of appeals enforcing the Board's
Order. In the circumstances of this case , we find it unnecessary to in-
clude such a clause
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 violated 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 representa-
tives of their own choice
To, act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT threaten employees with plant
closure because of their interest in or activity on
behalf of the Union.
WE WILL NOT threaten employees with more on-
erous working conditions in retaliation for union-
ization.
WE WILL NOT maintain any rule which requires
employees to request company permission to
engage in solicitation in work areas during non-
working time, or which requires company authori-
zation in order to solicit in nonworking areas of the
plant on employees' own time.
WE WILL NOT discharge or otherwise discrimi-
nate against any of you for supporting the UAW or
any other union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL notify you in writing, by memorandum
or letter separate from this document, that the no-
solicitation rule contained at pages 21-22 of the
employee handbook is no longer in effect.
WE WILL insert a written notice in the employee
handbook where the no-solicitation rule appears,
advising readers that the rule, as written, has been
rescinded, or WE WILL substitute a valid rule in the
handbook for the one now appearing there.
WE WILL offer Rick Wiles immediate and full re-
instatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other
rights or privileges previously enjoyed and WE
WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any
net interim earnings, plus interest.
WE WILL notify Rick Wiles that we have re-
moved from our files any reference to his dis-
charge , and that the discharge will not be used
against him in any way.
MERCURY MARINE-DIVISION OF
BRUNSWICK CORP.
Eric V. Oliver, Esq., for the General Counsel.
Richard L. Barnes Esq., of Tulsa, Oklahoma, for the Re-
spondent.
Richard J. Beasley, of Denver, Colorado, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. My
principal finding is that Respondent unlawfully dis-
charged Rick Wiles on 21 February 1986. I order Re-
spondent to offer him reinstatement and to pay him
backpay, with interest.
This case was tried before me in Stillwater, Oklahoma,
on 18 June 1986 pursuant to the 29 April 1986 complaint
issued by the General Counsel of the National Labor Re-
lations Board through the Regional Director for Region
16 of the Board. The complaint is based on a charge
filed 20 March 1986 by International Union, United
Automobile, Aerospace and Agricultural Implement
Workers of America (UAW),-AFL-CIO' (UAW, Union,
or Charging Party) against Mercury Marine-Division of
Brunswick Corp. (Respondent or Mercury Marine).'
In the complaint the General Counsel alleges that Re-
spondent (1) violated Section 8(a)(1) of the Act by pro-
mulgating and maintaining since 20 September an unlaw-
fully broad no-distribution and no-solicitation rule, by
threatening in November to close its plant, and by
threatening in November an employee with more oner-
ous working conditions if the Union came in, and (2)
violated Section 8(a)(3) of the Act on 20 February 1986
by discharging Rick Wiles.
By its answer Respondent admits certain factual mat-
ters but denies violating the Act.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsels and the Re-
spondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Delaware corporation with its principal
office in Stillwater, Oklahoma, the facility involved here,
manufactures stern drive inboard motors and related
products. During the past 12 months Respondent has
I I show the full name of the Union as listed in the official names of
national unions, NLRB Style Manual at 55, 57 (1983).
2 All dates are in 1985 unless otherwise indicated.
8 Counsel for the General Counsel attached to his brief a proposed
notice to employees
BRUNSWICK CORP. 797
purchased and received at its Stillwater - facility- goads
and materials valued in excess of $50,000 directly from
points outside Oklahoma . Respondent admits, and I find,
that it is an employer within the meaning of Section 2(2),
(6), and (7) of the Act. I
II. LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that the UAW, is a
labor organization within the meaning of Section 2(5) of
the Act.
M. THE ALLEGED UNFAIR LABOR PRACTICES
A. Allegations of Interference, Restraint, or Coercion
1. Introduction-
Hired in May 1983, Rick Wiles had worked at Re-
spondent's Stillwater facility for some 2 years and 10
months when Respondent's employee relations manager,
Harold Papen, fired him on 21 February 1986. At the
time of his discharge, Wiles worked as a forklift driver in
Department 501 under Supervisor Michael E. Turner.
The UAW, apparently in the, late summer of 1985,
began an organizing drive at Mercury Marine. Papen tes-
tified that he became aware of the campaign in Septem-
ber (1:76). Some employees opposing the UAW formed a
"NO Way" committee. It appears that the different
groups distributed campaign literature to the employees.
Papen testified that Respondent, using three shifts, em-
ploys slightly over 1000 production and maintenance em-
ployees at the plant (1:78-79).4
In November Wiles signed a UAW authorization card
and became active on behalf of'the Union' by distribution
cards , soliciting on behalf of the UAW, and attending
union meetings . From November until he was fired,
Wiles openly displayed his support of the Union by
wearing four "UAW Region 5" pins on his hat and car-
rying a union pen in his jacket pocket, (1:17-19).
'2. Remarks by Supervisor Michael E. Turner
In November, Wiles testified, Supervisor Turner, in
the .presence of employees David Fultz (who wore a No
Way pin) and Ted Allen, asked Wiles, "What would stop
the union5 from picking up and moving down to Mexico
if the union did get in this plant here?"6
Turner added, Wiles testified, that if a union did get
in, Troy Long could no longer assist Wiles.7 As, Wiles
explained, Troy Long, a group leader in Department
501, assisted Wiles by operating a second forklift when
the workload became too heavy for Wiles (1:20). Wiles
testified that although he responded to Turner, he did
not recall what he' said. Whether group leaders are statu-
tory supervisors is a point which was neither stipulated
nor litigated at the hearing.
' Citations to the one volume transcript of testimony are by volume
and page.
5 Wiles obviously garbled this, and [ find that the word Turner used
was "company" rather than "union."
6 Complaint par. 7(b) alleges this to be an unlawful threat to close the
plant
T Complaint par. 7(c) alleges this to be an unlawful threat of more on-
erous working conditions.
Turner- denied that, any such conversation occurred
(1:160-161), Fultz testified that he never heard any such
remarks by Turner (1:168), and Allen did not testify. I
credit Wiles, who testified more believably on this point
than did either Turner or Fultz. Although I credit
Turner on other points rather than Wiles, Fultz testified
in an entirely unreliable fashion and I do not credit him
on any disputed issue.
In arguing that Turner's rhetorical question was un-
lawful, the General Counsel cites Tra-Mar Communica-
tions, 265 NLRB 664, 681 (1982). Tra-Mar involved
many unlawful acts by the owner, including an outright
threat to sell the business and move to Florida. Tra-Mar
is inapposite.
I shall dismiss complaint paragraphs 7(b) and (c) be-
cause Turner's statements appear to have been nothing
more than a discussion of possible campaign issues be-
tween an open supporter of the UAW and his supervisor
rather than threats of retaliation.
It is true I must infer that in the statement concerning
assistance by group leaders Turner was referring to cer-
tain restrictive work practices in some collective-bargain-
ing agreements, and that he was not making a threat of
what he personally would do in retaliation. In the con-
text here I think that inference is warranted.
3. The no-solicitation/no-distribution rule
Complaint paragraph 7(a) attacks as overly broad Re-
spondent's no-solicitation/no-distribution rule. Appearing
at pages 21-22 of the handbook Respondent distributes
to its employees (1:65; G.C. Exh. 4 at 21-22), the rule
reads:
NO SOLICITATION RULE
While it is the Company's policy to support worth-
while community-wide charitable activities, it is our
experience that unlimited solicitations , collections,
sales of merchandise or chances, distribution of lit-
erature, circulation of petitions , and promotion of
outside activities to our employees not only can be
a burden upon our employees but can, and do,
interfere with out [sic] production process. There-
fore, the Company had adopted the following NO
SOLICITATION RULE:
None of the foregoing activities shall be per-
mitted 'during work periods and in working areas
of the Company's facilities without the express
permission of the Company, which permission
shall be granted only to selected community-wide
charitable activities and to Company sponsored
events. Distribution of literature anywhere on
Company facilities shall be prohibited if it results
in housekeeping problems or constitutes an inter-
ference with safe production activities on Compa-,
ny property. Nothing shall be posted on any
Company property without the express written
consent of the Company.
Company authorized solicitations are permitted
in lunchroom and lounge areas during breaks and
lunch periods provided that these activities do
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not carry over into production areas or cause
housekeeping problems. Under no circumstances
are solicitations to be made on Company proper-
ty by nonemployees.
The rule is unlawful on its face because it requires em-
ployees to obtain Respondent's permission before engag-
ing in the protected activity of solicitation in work areas
during nonworking time or even in the lunchroom and
lounge areas during breaks and lunch periods.
It is immaterial that some distributions by employees
of the contending groups did occur in the breakroom, for
the mere existence of the rule interferes with rights
granted by Congress in the statute.
Respondent contends (Br. 5) that a 19 September
memo to all employees from the plant manager, R. E.
Agner, neutralizes the issue because the memo expressly
grants permission in the last sentences as follows (R.
Exh. 1): "Discussions on this matter should be done on
breaks, lunch periods or other non-work time."
First, what Congress grants, Mercury Marine cannot
withhold or restrict. The employees do not need Re-
spondent's permission to engage in protected activities.
Second, the primary thrust of Agner's memo is to advise
employees that they can oppose unionization, and neither
the employee handbook nor the no-solicitation/no-distri-
bution rule that handbook contains is mentioned by
Agner.
Because Respondent's rule is overly broad it may not
stand, as written, and I shall order Respondent to notify
employees in writing that they may deem the rule as ex-
punged from the handbook and that Respondent will not
attempt to restrain their right to engage in protected ac-
tivities.
B. Allegations of Discrimination
1. Introduction
The General Counsel alleges and argues that Respond-
ent violated Section 8(a)(3) of the Act by discharging
Rick Wiles.
In common language, Wiles was fired for sleeping on
the job,8 but that description is an oversimplification of
the facts. For his afternoon break on Wednesday, 19
February 1986, Wiles drove his forklift away from his
general work area and out to the area where semitrailers
are parked diagonally and he parked between two of the
semis .9 He appeared to be sleeping when seen by Main-
tenance Superintendent Paul L. Hicks and Maintenance
Supervisor Frank Schritter.
Although Wiles extended his break,10 the length of
the break is not one of the reasons Respondent fired
Wiles. As both Papen (1:86) and Turner (1:155-156) testi-
fied, the determining factor in the decision to fire Wiles
was the fact (as they purportedly perceived it) that Wiles
had concealed himself. Two additional reasons were that
he was sleeping (although this possibly gets into the ex-
tended break concept, as well as the safety aspect, be-
cause Turner's policy allows employees to sleep during
their breaks) and endangering his safety.,
A written statement dated 7 March 1986 which Em-
ployee Relations Manager Papen furnished Wiles con-
cerning the "Reasons for Termination" reads (G.C. Exh.
2) "You were terminated for concealing yourself, sleep-
ing and endangering your safety."
There is no dispute that Respondent had knowledge of
Wiles' union sentiments. Contending the discharge was
pretextual, the General Counsel argues that animus by
Respondent is demonstrated by (1) shifting and contra-
dicting reasons given by Respondent (Br. 9-13); (2)
Turner's statements in November (which I already have
found noncoercive); (3) reliance on multiple reasons (Br.
14); (4) Respondent's failure to cross-examine the Gener-
al Counsel's witnesses who testified at the hearing (Br.
14); (5) falsity or condonation of the concealment and
endangerment grounds (Br. 14); (6) disparity (Br. 15); (7)
haste, by failing to give Wiles "an opportunity to clear
himself' (Br. 16); and finally (8) "Papen's resolute stance
and unwavering position regarding Wiles' discharge is
proof of Respondent's eagerness to seize upon the Febru-
ary 19 incident as a pretext." (Br. 16.)
2. Facts
From a guard shack near where the trailers and Wiles
were parked behind the plant, Superintendent Hicks, a
minute or two before 2 p.m., telephoned Turner about
the sleeping forklift driver. Turner (who figured that the
driver was Wiles) initially downplayed the matter, saying
that the driver might be on break, but agreed to come
when Hicks stated that the location was risky and the
driver was concealed (1:135-151). Even when Hicks,
driving an electric buggy, picked up Turner, Turner in-
sisted they go to the nearby guard shack and wait until
2:10 p.m. when the break period would be over to give
Wiles the opportunity to be up by the end of the break
period (1:136, 151-152).
At 2:10 p.m. the party (Turner, Hicks, and possibly
Schritter)11 left the guard, shack and walked to Wiles.
As they approached Wiles a truck with a semitrailer
drove up and stopped near them. Whether the noise of
the semi awoke Wiles, or whether Wiles was simply rest-
ing and took the occasion to end his rest, there is no dis-
pute that Wiles rose up and began stretching.
Approaching Wiles, Turner asked him why he was be-
tween the trailers sleeping. "Why not?" responded Wiles.
This exchange was repeated a couple of times , and Wiles
eventually added that it was his break. Turner said wit-
nesses reported that he was sleeping . Wiles said the wit-
nesses were lying. Turner said it was 2:13 p.m. when he
(Turner) arrived. Wiles shrugged his shoulders. Turner
suspended Wiles (1:138, 153-154).12
s Indeed, the payroll change form states it just that way (G.C. Exh. 5).
There was a clearance of 2 to 3 feet on each side of his forklift
(1.188).
is On this point, I do not believe Wiles, and I credit the testimony of
Respondent's witnesses that Wiles was parked at least by 1:50 p.m., a
time 10 minutes before the beginning of his 2 to 2:10 p.m break.
i i Turner and Flicks testified, but Schntter did not. Gerald L. Sump-
ter, the guard stationed at the guard shack in that area, was called as a
witness by Respondent . Sumpter did not accompany the others when
they left the guard shack to approach Wiles.
i2 I have credited the account of Turner and Hicks rather than the
somewhat different version given by Wiles. As to the time, Wiles conced-
ed that he rose up at 2:13 p.m. (123)
BRUNSWICK CORP. ' 799
By the time Turner was able to report- the mattersto,:
'Employee Relations Manager Papen it was about shift
change time, and Papen suggested they investigate the
matter the next day (1:81-82).
The following day, 20 February 1986, Papen and
Wiles conversed by telephone, with Wiles giving his ver-
sion (that he was on break and not asleep) and requesting
a meeting with Papen and Turner - so he could clear up
the suspension. Papen, said he would check with Turner
and let him know. Later that day Papen interviewed
Hicks and Schritter and spoke again with Turner.
On 20 February Papen and Turner conferred with
Turner's superior, Joe Foss, as well as Papen's.supervi-
sor, Tom Hagen (1:103, 155). The decision, on Papen's
recommendation, was to discharge Wiles, based on past
practices, because of the concealment (1:103, 155-156). -
The following day, Friday, 21 February, Papen con-
veyed the termination decision to Wiles by telephone.
Papen listed the three grounds, (1) concealing himself,
(2) sleeping on the job, and (3) endangering his safety
(1:84, 181). Papen's notes on this matter at one point
show that he mentioned only sleeping on the job (R.
Exh. 9 at 2), while at another point he has a checklist of
the three reasons to cover when he spoke to- Wiles (R.
Exh. 9 at 3; 1:100-101). The General Counsel argues that
the absence of the concealment and endangerment
grounds in the first portion of the notes show these were
afterthoughts added .as makeweights (Br. 11, 12). Wiles'
own testimony shows that in the 21 February telephone
conversation with Papen he kept explaining that he was
not trying to conceal himself nor was he endangering his
safety (1:26). Wiles would not have spoken thus unless,
as Papen testified , Papen had given him all three reasons.
I find that Papen did give the three reasons to Wiles.
The General Counsel argues (Br. 12) that Papen con-
tradicted himself because he testified that the sleeping
aspect was inconsequential, for it was Wiles' concealing
of his whereabouts that was the determining factor
(1:86). Arguably there is some inconsistency on the
sleeping aspect. Turner's testimony is clear that he does
not object to his employees sleeping during their breaks
so long as they are up and ready to work when the
breaks end (1:157). Turner also conceded that he was
aware Wiles occasionally took breaks on the patio area
near Department 501 and on the concrete pad where the
trucks drive behind behind the building (1:157). And
Wiles credibly testified that in the past he has informed
Turner, when the latter asked, that the reason he some-
times took his breaks farther away in the area'of the se-
mitrailers was to be off alone, and that Turner did not
instruct him to discontinue this practice (1:21-22).
The record reflects that Respondent, including Turner,
usually does not strictly limit the breaks to 10 minutes,
and' that employees frequently add a couple of minutes
on either sidle. Turner's acknowleged actions on 19 Feb-
ruary indicate that, initially at least, he, saw nothing un-
usual about Wiles' presence near the trailers.
That brings us to the issue of Respondent's past prac-
tice and the General Counsel's disparity argument. Re-
spondent has discharged other employees in the past for
sleeping on the job while concealed. The names estab-
lished in the record regarding this are those of Freddie
-$biplett,Jr:, Jeff Todish, Anthony Mitchell, and Kelly
Wright:
Shiplett and Todish, furnance room employees, were
fired the same day, about 19 March 1985, for concealing
themselves and sleeping on the job (1:54; R. Exh. 3). As
Papen conceded, both were completely hidden in the in-
cidents giving rise to their discharges (1:86-87). More-
over, as Shiplett credibly testified, each had been caught
doing the same thing four or five times previously by Su-
pervisor David Rupp (1:52-55, 184-185).
Although the previous incidents of Shiplett and Todish
apparently predate Papen's arrival at the plant on 28
February 1985, Papen's notes reflect that he had actual
knowledge that Shiplett had been caught previously (R.
Exh. 8 at 2).13 Presumably Papen had actual knowledge
that Todish had been caught previously and not fired be-
cause the Shiplett and Todish incidents occurred at the
same time and each had been caught previously by the
same supervisor.14
In the incidents giving rise to their discharges, Shiplett
concealed himself behind a furnace in order to sleep
beyond his break (R. Exh. 8), and Todish had concealed
himself in an upstairs storage area of the furnace room
(R Exh. 3). As Papen conceded, neither was visible
(1:86-87).
Wiles' situation differs from that of Shiplett and
Todish in several respects., First, Wiles had never been
told, he was not to park out by the trailers. Indeed,
Turner was on notice that Wiles occasionally parked
there on breaks and acquiesced in the practice. Second,
not only were Shiplett and Todish completely hidden,
they had used, boards or buckets to block themselves
from view. Todish was even in a kind of crow's nest off
the floor (1:55). By contrast, Wiles was clearly visible
from the front or'end views, and only from a side view
was he not fully visible. (Actually, I infer that he even
was partially visible from a side view because his forklift
presumably could be seen from under the trailers. As is
generally known, the bottom of a semitrailer sits several
feet above ground. That open space would leave at least
the bottom half of a forklift truck visible on the other
side 'of the trailer.) Third, while it might be said that
Wiles used the -trailers to block his presence to the limit-
ed extent the trailers could do so, Wiles did not rear-
range any of Respondent's property in an affirmative
effort to conceal himself from view. In short, I find the
circumstances of the cases of Shiplett and Todish to be
significantly different from those existing in the case of
Wiles.
Anthony Mitchell's case, as the General Counsel
argues (Br. 15), has "aggravated" circumstances substan-
tially different from Wiles' situation . Thus,,Mitchelll was
filed on 2 June 1985 because he used an unsafe method
to enter a furnace on 26 May when he doubly concealed
" 18 Papen testified unpersuasively that he understood the previous inci-
dents involved only sleeping and not concealment (1:89). 1 find that, he
was fully informed of the concealment aspect. I further find that Papen's
testimony on this point reflects adversely on his credibility.
14Todish had received a "verbal " warning at some earlier date for
some reason not specified in the record (R Exh . 2). During his employ-
ment, Wiles received an oral warning , in July or August 1985, but that
was for excessive absenteeism (1.28).
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
himself in or by a box. Moreover, Mitchell and others
had been instructed they were not to enter the furnace
unless specifically directed to do so (R. Exhs. 6 and 7).
Mitchell's case is inapposite.
Respondent also fired maintenance employee Kelly
Wright on 2 June. Wright was helping with weekend
work on 26 May. Instead of working, Wright went to a
locker room in an unoccupied area of the plant,
stretched out on a bench, and went to sleep. He was
found there 2-1/2 hours later and thereafter fired for his
conduct ( 1:88; R . Exhs. 4 and 5).
In a real sense Wright concealed himself, 15 and in an
area where he had no business. Moreover, he had been
missing for 2-1/2 hours. I fmd Wright's case to be signifi-
cantly different from that of Wiles'.
The General Counsel' points to the case of Harold
James, a maintenance employee who was suspended for
3 days in June 1985 when he was found sleeping on the
job (G.C. Exh. 3). James was working the "graveyard"
shift from 11:30 p.m. to 8 a.m. He had performed as-
signed work on a light system and had sat down after 5
a.m. at a desk in that area to rest. He fell asleep. A guard
awoke him at 5:30 a.m. (1:90-92; G.C. Exh. 3).
Papen testified that no evidence was presented to him
that, unlike James' supervisor, Turner knew where Wiles
was (1 :92). I disbelieve Papen. I find that Turner told
Papen that on occasion Wiles took his breaks out by the
trailers. As we have seen, on 19 February Turner insisted
that he and Hicks wait at the guard shack until the break
ended to see if Wiles would be up by the end of his
break (1:151-152). If Turner had been surprised and con-
cerned about the location Wiles had chosen to park for a
break, then surely Turner would not have acted as he
did on the occasion. His conduct reinforces Wiles' testi-
mony that Turner had impliedly consented to Wiles'
taking breaks there, and it ,further reassures me in my
finding that Turner informed Papen that Wiles occasion-
ally took his breaks out by the trailers.
Although Wiles repeatedly requested a meeting, Papen
denied the request on the basis that there was nothing to
be gained in the absence of any new information (1:85,
156). With most of the others , including Shiplett, Antho-
ny Mitchell, and Jeff Todish, Papen apparently inter-
viewed them in person, although there is no evidence
there was a conference ' with the employee, Papen, and
the supervisor as Wiles requested in his own case.
3. Analysis and conclusions
I find that the General Counsel presented a prima facie
case regarding Wiles. This is shown by Respondent's
proceeding to discharge Wiles even though, as I have
found, Employee Relations Manager Papen knew that
Turner had given his implied consent for Wiles occasion-
ally to take his breaks,on the concrete pad behind the
plant where the semitrailers are parked. By so disregard-
ing Wiles' implied permission to be where he was on a
break, and by discharging Wiles without warning when
Respondent knew that Freddie Shiplett and Jeff Todish
had received warnings in the past before .they were fired,
I infer that there was another reason Respondent chose
to fire Wiles, and that this other reason was the unlawful
one of Wiles' open and active support of the Union.
Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470
(9th Cir. 1966).
Although neither Mitchell nor Kelly Wright was
shown to have received a prior warning, Mitchell had
been instructed not to go where he did. His case borders,
and perhaps constitutes, insubordination. Wiles had
Turner's implied permission to be "where he was.16 And
Wright certainly had no permission to hide in aVacant
area of the plant and sleep for 2-1/2 hours. Neither of
these cases is apposite.
Having found that Respondent was unlawfully moti-
vated in discharging Wiles, I turn to the question of
whether Respondent demonstrated that it would have
fired him in any event. I find that the answer is no.
As for Wiles' sleeping for 3 minutes past his break,
Papen , conceded that the, sleeping aspect was immaterial
(1:86) and, as Wiles credibly testified, on 21 February
Papen repeatedly told Wiles that the time consumed for
the break was not an issue (1:26).
Little attention is given in the record to the asserted
ground of safety. While safety is always important, I fmd
that Respondent would not have discharged Wiles on
that ground alone if for no other reason than Supervisor
Turner had given his implied permission for Wiles to
park out by the trailers.
For these reasons I fmd that Respondent, absent its un-
lawful motivation, would not have discharged Rick
Wiles. As Respondent therefore violated Section 8(a)(3)
of the Act by discharging Rick Wiles, it must offer him
reinstatement and make him whole, with interest.
CONCLUSIONS OF LAW
1. Mercury Marine-Division of Brunswick Corp. is an
employer within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The UAW is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has- violated Section 8(a)(1) of the Act
by maintaining, since 20 September 1985 (a date 6
months prior to the filing and service of the charge in
this case), an overly broad no-solicitation/no-distribution
rule in its employee handbook.
4. Respondent did not violate Section 8(a)(1) of the
Act by statements made by Supervisor Michael E.
Turner in November 1985.
5. Respondent violated Section 8(a)(3) of the Act by
discharging Rick Wiles on 21 February 1986.
6. The unfair labor practices found affect commerce
within the meaning of Section 2(6) and (7) of the Act.
's A principal reason, I find , that Papen avoided any conference with
is Although Wright was visible to anyone who entered the locker both Turner and Wiles present is the opportunity that such presence
room, a searcher would first have to enter the locker room before he would prompt Wiles to elicit an admission from Turner that Turner had
would be able to see Wright. given his implied consent for Wiles to take his breaks out by the trailers.
BRUNSWICK CORP. 801
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I find it necessary to order it to
cease and desist and to take certain action designed to ef-
fectuate the policies of the Act.
Because the no-solicitation rule contained in Respond-
ent's handbook for employees is overly broad in interre-
lated aspects , Respondent must notify its employees in
writing that the rule, as written, is without effect and
should be disregarded . For any handbooks Respondent
distributes after the date of this decision, Respondent
must insert a written notice to the same effect.
Respondent must offer Rick Wiles immediate and full
reinstatement to his former job or , if that job no longer
exists , to a substantially equivalent position , without prej-
udice to his seniority or any other rights and privileges
previously enjoyed . Respondent must also make Rick
Wiles whole, with interest, for any loss of earnings and
other benefits he may have sufferd as a result of Re-
spondent unlawfully discharging him on 21 February
1986. Backpay shall be computed in the manner estab-
lished in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest calculated as prescribed in Florida Steel
Corp., 231 NLRB 651 (1977). See generally Isis Plumbing
Co., 138 NLRB 716 (1962).
Although Respondent suspended Wiles on 19 Febru-
ary 1986 pending further investigation , that suspension
was not alleged to be unlawful , and the issue was not liti-
gated.
Respondent must remove from its files any reference
to its unlawful discharge of Rick Wiles , and it must
notify Wiles in writing that this has been done and that
evidence of the discharge will not be used as a basis for
further personnel action against him.
[Recommended Order omitted from publication.]