Funk Mfg. Co.

National Labor Relations Board - Board Decisions

Jan 15, 1991

301 N.L.R.B. 111 (N.L.R.B. 1991)

111
301 NLRB No. 15
FUNK MFG. CO.
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
2 In the third from the last paragraph of sec. IV of his decision, the judge
found that the Respondent’s disciplining of employees Robert Bolden and
Mark Layton violated Sec. 8(a)(3) of the Act. We agree. However, in his for-
mal Conclusion of Law 7 and in par. 1(g) of his recommended Order, the
judge inadvertently failed to include language descriptive of the nature of the
violation as to Bolden. We have modified par. 1(g) of the recommended Order
to include such language. We have also modified par. 1(b) of the judge’s rec-
ommended Order by deleting the word ‘‘solely,’’ to eliminate any suggestion
that the Respondent could lawfully enforce plant rules in a manner designed
only in part to prohibit employees from engaging in protected concerted activ-
ity. Finally, we have modified par. 1(a) of the judge’s recommended Order
to reflect our dismissal of the allegation that the Respondent maintained an
invalid no solicitation-distribution rule, as discussed infra.
3 Rules prohibiting solicitation and distribution during working time are pre-
sumptively valid. See Our Way, Inc., 268 NLRB 394 (1983); Essex Inter-
national, 211 NLRB 749 (1974). See also NLRB v. United Steelworkers of
America (Nutone), 357 U.S. 357 (1958).
The judge’s reliance on United States Steel, 223 NLRB 1246 (1976), for
finding a violation under the instant circumstances, is misplaced. In that case,
the rule in question was found to be overly broad because (unlike the rule in
the instant case) it prohibited distribution anywhere on plant property, during
both working and nonworking time, thus effectively—and impermissibly—pro-
hibiting distribution in nonwork areas during nonwork time.
The facial validity of the Respondent’s off-duty employee rule as set forth
in the employee handbook is not before us.
Funk Manufacturing Company and International
Union, United Automobile, Aerospace & Agri-
cultural Implement Workers of America—
UAW. Case 17–CA–14894
January 15, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On September 19, 1990, Administrative Law Judge
James M. Kennedy issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in support of the
judge’s decision.
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,1 and con-
clusions as modified and to adopt the recommended
Order as modified.2
1. The judge found that the Respondent’s no solici-
tation-distribution rule as set forth in the employee
handbook was unlawful on its face. We disagree. The
no solicitation-distribution rule reads as follows:
Solicitation and/or distribution of literature by
non-employees on Company property is prohib-
ited.
Solicitation by employees on Company prop-
erty during working time is prohibited. Working
time is the time an employee is expected to be
performing their [sic] job duties and does not in-
clude break periods or mealtimes.
Distribution of literature by employees on
Company property in non working areas during
working time as defined [in preceding paragraph],
is prohibited.
Distribution of literature by employees on
Company property in working areas is prohibited.
In finding the no solicitation-distribution rule
facially invalid, as overly broad, the judge focused on
the use of the term ‘‘on Company property’’ in the
second, third, and fourth paragraphs of the rule. While
conceding that the presence of the term ‘‘during work-
ing time’’ in the second paragraph might validate that
restriction on solicitation (the judge inadvertently
mischaracterized the second paragraph as a restriction
on distribution), the judge found that in any event the
use of the term ‘‘on Company property’’ in the third
and fourth paragraphs was ‘‘clearly too broad,’’ in that
it would prohibit distribution in nonworking areas and
in working areas at times when no work is required to
be performed.
We disagree with the judge’s reading of the rule.
We find that the inclusion of the terms ‘‘during work-
ing time’’ in the second and third paragraphs, and ‘‘in
working areas’’ in the fourth paragraph of the rule
makes it facially valid, and not overly broad. Thus, in
the second paragraph, the prohibition against solicita-
tion ‘‘on Company property’’ is expressly—and val-
idly—limited to ‘‘during working time.’’ The rule nei-
ther expressly nor implicitly prohibits solicitation on
company property during nonworking time. Similarly,
in the third paragraph, the prohibition against distribu-
tion in nonworking areas is expressly limited to ‘‘dur-
ing working time.’’ No prohibition against distribution
in nonworking areas during nonworking time is ex-
pressed or implied. Finally, in the fourth paragraph, the
prohibition against distribution ‘‘on Company prop-
erty’’ is expressly—and validly—limited to ‘‘in work-
ing areas.’’ Thus, we find, contrary to the judge, that
the Respondent’s no-solicitation-distribution rule is not
facially invalid, as overly broad, and we shall dismiss
this allegation.3
2. We agree with the judge that the Respondent un-
lawfully disciplined employees Mark Layton and Rob-
ert Bolden. As described more fully by the judge, the
Respondent has a formal system of progressive dis-
cipline involving warnings, in which step 1 is an oral
‘‘casual reminder,’’ step 2 is an ‘‘oral reminder,’’ and
step 3 is a ‘‘written reminder.’’ Although the step 1
and 2 warnings are not per se written warnings, the
Respondent’s plan calls for them to be recorded in the
individual’s personnel file.
On February 28, 1990, Layton distributed union lit-
erature in a nonwork area (the entrance to the building)
112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Apparently, there was no written record of this warning placed in Layton’s
personnel record; Waage testified, ‘‘I don’t put anything in the file for the cas-
ual reminder.’’
on nonwork time. The Respondent’s director of human
resources, Steve Waage, told Layton to stop and that
if he distributed literature again, he would be ‘‘in se-
vere violation’’ and ‘‘subject to disciplinary action.’’
According to Waage, ‘‘I advised him that further vio-
lation of the solicitation distribution rule would place
[him] in a circumstance where he could be further dis-
ciplined.’’ However, when asked whether his remarks
to Layton were actually a step 2 ‘‘oral reminder,’’
Waage testified that his interpretation of his conversa-
tion with Layton was that it was only a ‘‘casual re-
minder.’’ Waage elaborated:
By virtue of the disciplinary process that we have,
unless it’s for a severe incident, you’re going to
start with that casual reminder. . . . Had I come
across that incident again, my next step would
have been an oral reprimand and something for
the file, absolutely.
Thus, we find that by any reasonable standard of anal-
ysis, the judge correctly found that Waage gave Layton
a warning—here, a step 1 ‘‘casual reminder’’ within
the Respondent’s formal disciplinary plan—for distrib-
uting union literature in a nonwork area during non-
work time.4
We also agree with the judge that the Respondent
twice disparately enforced its off-duty employee rule
against employee Robert Bolden, and discriminatorily
gave him a disciplinary admonishment on the second
occasion.
Bolden was one of the first employees to become
active in the Union’s organizational campaign. Accord-
ing to Bolden, ‘‘every night periodically’’ during De-
cember 1989 and January 1990 he set out union lit-
erature on tables for perusal by other employees during
their work breaks. He also gave out union literature to
employees who asked him for it (but he asked that
they return it to him when they were finished with it).
Additionally, in early January he spoke with an esti-
mated 15 to 20 employees about the Union, before and
after his shift and during breaktimes. By late January,
Bolden had also begun to wear a union (UAW) cap to
work.
On January 12, 1990, Bolden was admonished by
his shift foreman for briefly bantering with another
employee, John Martin, for a few seconds about the
latter’s supposed distribution of union authorization
cards. At the time of this episode, Martin was on his
work time, and Bolden had not yet begun his work
shift. Bolden was not wearing his UAW cap. Later,
during Bolden’s work shift, Shift Superintendent Gene
Palmer told Bolden that from then on when he came
to work early he was not to stop and speak with any-
one, that there was a rule that prohibited talking to em-
ployees on other shifts (presumably, a reference to the
Respondent’s off-duty employee rule). Bolden ques-
tioned Palmer about why this rule was being applied
only to him, asserting that he was only doing what
others did. Palmer did not give Bolden any further ex-
planation.
About 2 weeks later, when his work shift ended,
Bolden, wearing his UAW cap, approached fellow em-
ployee Bill Jenkins, who was still on his work shift.
As Bolden began to speak to Jenkins, Shift Super-
intendent Gene White interceded, and told Bolden that
Jenkins was busy and could not speak with him until
Jenkins’ shift was over. Bolden complained to White
that he was being treated differently from other em-
ployees. White denied that he was.
The next day, Director of Human Resources Steve
Waage told Bolden that he had heard that Bolden had
been on the verge of being insubordinate to White the
night before. Waage told Bolden that he wanted Bold-
en to leave the plant at the end of his work shift, with-
out stopping to converse with other employees. As the
conversation ended, Waage told Bolden that he
‘‘liked’’ Bolden’s UAW cap. Bolden asked Waage
what he meant, and Waage replied that his remark was
a ‘‘joke.’’
We agree with the judge that regardless of whether
the Respondent intended its above statements to Bold-
en to constitute either ‘‘casual’’ or ‘‘oral reminders’’
within the Respondent’s formal system of progressive
disciplinary warnings, the Respondent’s admonish-
ments to Bolden were motivated by his union activity,
and Bolden had good reason, under the circumstances,
to perceive these admonishments in that coercive and
discriminatory light. Bolden manifested his support for
the Union by regularly setting out union literature for
review by other employees, by discussing the Union
with numerous other employees during his nonwork
time, and by wearing a UAW cap. We also note the
union-related subject matter of Bolden’s brief ban-
tering with Martin. The record establishes the Re-
spondent’s knowledge of union activity in the plant
around the same time that Bolden was first admon-
ished for violating the Respondent’s off-duty employee
rule. Thus, shortly after that mid-January incident, em-
ployee Earl Grove was unlawfully interrogated about
his union sympathies by Production Manager Max
Williams. And, as seen, Waage made direct reference
to Bolden’s union activity by his ‘‘joking’’ reference
to Bolden’s UAW cap at the conclusion of his admoni-
tory conversation with Bolden in late January or early
February. Moreover, we agree with the judge’s assess-
ment, in the introductory paragraph of section III,C
‘‘Application of the Rules,’’ of his decision as well as
in the fourth paragraph of section IV, that the Re-
spondent’s off-duty employee rule is not routinely en-
113FUNK MFG. CO.
forced. Particularly in light of the timing of the en-
forcement of this rule against open and active union
supporter Bolden, and in light of the evidence that this
rule is not routinely enforced, we agree with the judge
that the Respondent discriminatorily enforced this rule
against Bolden, in violation of Section 8(a)(1) and (3)
of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Funk
Manufacturing Company, Coffeyville, Kansas, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Prohibiting employees from distributing union
literature at times and places that would not interfere
with work production.’’
2. Substitute the following for paragraph 1(b).
‘‘(b) Enforcing plant rules in a manner designed to
prohibit employees from engaging in protected union
activity.’’
3. Substitute the following for paragraph 1(g).
‘‘(g) Disciplining its employees with respect to their
hire and tenure for lawfully passing out union hand-
bills and engaging in other protected concerted activ-
ity.’’
4. Substitute the attached notice for that of the ad-
ministrative law judge.
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 or-
dered 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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT prohibit employees from distributing
union literature at times and places that would not
interfere with work production.
WE WILL NOT enforce plant rules in a manner de-
signed to prohibit employees from engaging in pro-
tected union activity.
WE WILL NOT interrogate our employees regarding
their union sentiments and desires.
WE WILL NOT threaten our employees with loss of
their jobs in the event of unionization.
WE WILL NOT confiscate union literature in the pos-
session of our employees.
WE WILL NOT prohibit or interfere with our employ-
ees who are lawfully engaged in passing out handbills
pertaining to the International Union, United Auto-
mobile, Aerospace & Agricultural Implement Workers
of America—UAW or any other union.
WE WILL NOT discipline our employees with respect
to their hire and tenure for lawfully passing out union
handbills or engaging in other protected concerted ac-
tivity.
WE WILL NOT in any like or related manner restrain
or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL remove from our files any reference to the
discipline of Mark Layton and Robert Bolden and no-
tify them in writing that this has been done and that
the discipline will not be used against them in any
way.
FUNK MANUFACTURING COMPANY
Constance N. Traylor, Esq., for the General Counsel.
Paul J. Schroeder Jr. (Bryan, Cave, McPheeters &
McRoberts), of St. Louis, Missouri, for the Respondent.
Archie R. Buttram, International Representative, UAW, of
Kansas City, Missouri, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried before me in Coffeyville, Kansas, on June 12,
1990, on a complaint issued by the Acting Regional Director
for Region 17 of the National Labor Relations Board on
April 20, 1990. The complaint is based on a charge filed by
International Union, United Automobile, Aerospace & Agri-
cultural Implement Workers of America—UAW (the Union
or the UAW) on March 6, 1990, amended on April 17, 1990.
It alleges that Funk Manufacturing Company (the Respond-
ent) has committed certain violations of Section 8(a)(1) and
(3) of the National Labor Relations Act.
Issues
This case principally involves allegations by the General
Counsel that Respondent has engaged in a series of unfair
labor practices designed to nip a nascent union organizing
drive in the bud. Specifically, the complaint alleges that Re-
spondent has unlawfully interrogated and threatened employ-
ees because they were engaged in union activity, has con-
fiscated their union literature, has interfered with the lawful
distribution of handbills, and has unlawfully implemented or
enforced certain plant rules in order to prevent employees
from discussing the benefits of unionization.
114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Subsequent steps in the cooperative improvement plan are: ‘‘oral re-
minder,’’ ‘‘written reminder,’’ and ‘‘decision making leave.’’ Each of these
steps, including the first, ‘‘casual reminder,’’ is recorded in the employee’s
personnel file.
The parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Both the Gen-
eral Counsel and Respondent have filed briefs which have
been carefully considered. Based on the entire record of the
case, as well as my observation of the witnesses and their
demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Kansas corporation, manufactures and dis-
tributes transmissions for heavy equipment and trucks at its
facility in Coffeyville, Kansas, where it annually ships and
receives goods valued in excess of $50,000 to and from
points outside Kansas. Respondent therefore admits and I
find it to be an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent also admits the Union is a labor organization
within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is one of the largest, if not the largest, em-
ployer in (actually about 2 miles outside) Coffeyville, a small
town located in southeast Kansas. It employs about 350 peo-
ple. The plant operates round the clock on a three-shift basis,
although the third, the graveyard shift, does not appear to be
as large as the other two. The plant itself is quite large, lo-
cated in the open country. The acreage, including the parking
lot, is surrounded by a chain link fence, having at least one
and probably more, access gates. Until 1989 it was a sub-
sidiary of Cooper Industries. Sometime during that year, the
record is not clear exactly when, the operation was sold to
the John Deere Company. As a Cooper subsidiary, Respond-
ent’s employees were not represented by any labor union.
However, the Charging Party does represent Deere employ-
ees at other locations.
Sometime in early December 1989, Archie Buttram, one
of the Union’s International organizers, received a telephone
call from one of Respondent’s employees, Robert Bolden.
On December 18, another employee, Mark Layton, became
involved. Both were given literature to distribute. Both also
signed authorization cards. Buttram met with them on numer-
ous occasions and in mid-January 1990 the UAW rented an
office about 3-1/2 miles from the plant, manning it 2 days
a week. Layton has keys to the office and is often the indi-
vidual who is present when the office is open.
Bolden and Layton, together with two other employees,
Earl Grove and Roy Thompson, are the individuals who are
the subjects of the General Counsel’s complaint.
B. The Company Rules
Although owned by John Deere, Respondent during the
period in question, January and February 1990, continued to
operate under the plant rules as promulgated by Cooper.
These are set forth in detail in the employee handbook. (Jt.
Exh. 1.) The rules challenged by the complaint are those
dealing with the right of off-duty employees to be present at
the plant and the no-solicitation, no-distribution rule. Con-
nected to them are additional regulations which set forth the
appropriate punishment for their breach.
The off-duty employee rule, which is questioned as
discriminatorily enforced, reads as follows:
Except for a reasonable period of time (15 minutes)
before and after work, employees should not enter or
remain in any designated work area. Employees sched-
uled for work who arrive earlier or stay later than 15
minutes, must remain in designated break areas. Your
cooperation in this matter is important in preventing un-
necessary accidents and interruptions of scheduled
work.
Permission to enter the plant on an off-shift, to pick
up personal items left behind or to work on special
projects previously approved, must be obtained from
the management person in charge of work shift or the
Employee Relations Department.
The no-solicitation, no-distribution rule is under attack
both as being unlawful on its face and as being
discriminatorily applied. It reads as follows:
Solicitation and/or distribution of literature by non-
employees on Company property is prohibited.
Solicitation by employees on Company property dur-
ing working time is prohibited. Working time is the
time an employee is expected to be performing their
[sic] job duties and does not include break periods or
mealtimes.
Distribution of literature by employees on Company
property in non working areas during working time as
defined [in preceding paragraph], is prohibited.
Distribution of literature by employees on Company
property in working areas is prohibited.
To implement the rules set forth in the handbook, the book
contains what appears to be a system of progressive dis-
cipline, known as the Cooperative Improvement Plan. As im-
posed, the plan begins with a ‘‘casual reminder,’’ which is
nonetheless recorded and is the first step toward more serious
consequences. The book says that a casual reminder is ‘‘be-
tween the employee and the supervisor. Its primary purpose
is to identify the problem and outline a means for corrective
action.’’ Normally, of course, that would appear quite be-
nign, but as will be seen, when it comes to an employee dis-
tinguishing between a ‘‘casual reminder’’ and a routine re-
buke not having disciplinary consequences, the difference is
difficult to perceive.1
In addition, the handbook, on page 4, contains a three-
paragraph policy statement explaining that Respondent is
nonunion and believes that it is preferable not to deal with
an ‘‘outside party’’ such as a union. While that statement is
not alleged to be unlawful or evidence of union animus, it
nonetheless serves as a guide to understand management’s
policy insofar as its ready acceptance of unionization is con-
cerned.
115FUNK MFG. CO.
2 All further dates are 1990 unless otherwise indicated.
3 The tie-in time is the 15-minute period before actually beginning work. It
is usually used by counterpart employees to explain to the next shift the status
of the work on the machine.
4 Both Bolden and Jenkins are black. Bolden asserts that there are few black
employees at the plant and that most of the whites are not receptive to him.
He says he has few opportunities to socialize with fellow black employees.
For that reason he was sensitive to White’s intervention.
C. Application of the Rules
Before describing the incidents in detail, it should be ob-
served that there is a great deal of evidence that the rules
in question are not enforced. Many witnesses testified that
outside agencies commonly solicit within the plant. There are
Girl Scout cookie sales; a local church solicits orders for
homemade dinners to be brought into the plant; and raffle
tickets are sold. Moreover, private entrepreneurship has been
condoned, including cosmetic products, jewelry, vegetable
seedlings, and fresh produce. And, for years, Respondent has
permitted employee solicitation for a paycheck pool, a form
of gambling. All of these involve at least a minimum of in-
terference with work. Finally, although there are designated
break areas containing tables and vending machines within
the plant, people often take breaks elsewhere, including so-
cializing at the machines. There is one group of employees
known as the ‘‘Breakfast Club’’ which takes breaks at other
than authorized times, clearly ‘‘interfering’’ with each other’s
work. This entire scenario suggests that productivity is not
really affected by these sorts of interruptions, that Respond-
ent knows it, and is not concerned.
1. Robert Bolden
Bolden is a lathe operator having been employed for about
1-1/2 years. He was one of the very first to be interested in
representation by the UAW. Buttram gave him several types
of union literature which he took to work. During December
and January, he placed the literature on tables for perusal by
fellow employees during breaks and spoke about the Union
to an estimated 15–20 employees.
On January 12, 1990,2 Bolden came to work about 10:20
p.m. Although this was 40 minutes prior to the commence-
ment of his 11 p.m. shift, it was not unusual for him to ar-
rive so early. Indeed, uncontroverted evidence demonstrates
that many other employees often did so, too. On this occa-
sion, as he passed the inspection (quality control) office, he
briefly bantered with Inspector John Martin joking that he
had heard Martin was passing out union authorization cards.
According to him, the incident only took seconds, but in-
stantly Second-Shift Foreman Ron Ray appeared behind him
saying, ‘‘[W]hen you come in, go straight to your depart-
ment. Don’t stop and talk to any of my people.’’ Ray does
not disagree, saying he was enforcing Respondent’s policy
requiring early arrivers to go to a break area until their tie-
in time.3
Later that night, about 2:30 a.m., Bolden was called to the
plant superintendent’s office by Third-Shift Superintendent
Gene Palmer. After first discussing some errors Bolden had
supposedly made, Palmer told him, ‘‘[F]rom now on when
you come to the plant, don’t stop and talk to nobody. And,
as a matter of fact, you don’t have to come in that early . . .
there is a rule that says you can’t talk to any of the people
. . . the other shifts . . . if you come in early, you go to
the designated break area, but [if] you[’re] going to talk to
the guy on your machine, that’s all right, but other than that
don’t talk to nobody.’’ Bolden questioned why the rule was
being applied to him, asserting he was only doing what oth-
ers did and that it was a common practice. He thought he
was being ‘‘picked on.’’ He said Palmer would not explain
further.
Palmer testified he had this conversation because he had
observed Bolden talking to a grinder named Don Martin
about 10:20 p.m. He contends Bolden was interfering with
Don Martin’s productivity. He did not testify that he so told
Bolden, saying only that he told Bolden to stop bothering
other employees when he came to work.
About 2 weeks later, a similar incident occurred. On this
occasion, Bolden had come to work wearing a UAW base-
ball cap. When his shift ended, he walked to a nearby area
to speak with his friend and fellow employee Bill Jenkins.
He observed First-Shift Superintendent Gene White fol-
lowing him. As he started to speak to Jenkins, White
interceded, saying Jenkins was ‘‘busy now, he can’t talk to
you. If you want to talk to him, he gets off at 3 o’clock.’’
White objected that he wasn’t being treated the same as oth-
ers, that he could at that very moment observe other off-duty
employees conversing with on-duty employees.4
The next day, Steve Waage, Respondent’s director of
human resources, motivated by the incident between Bolden
and White (and not apparently by the previous incident in-
volving Ray and Palmer), told Bolden that he understood
Bolden had, the night before, been on the verge of becoming
insubordinate. Waage repeated that he wanted Bolden to
leave the plant at the end of his shift. Although their con-
versation was civil, Waage did say the conversation con-
stituted a ‘‘verbal warning.’’ As they broke off, Waage re-
marked that he ‘‘liked’’ Bolden’s UAW cap.
2. Mark Layton
In the early morning of February 28, Layton, together with
several union officials, were passing handbills to employees
at the main fence gate. At the suggestion of one of the offi-
cials, Layton, who was then off duty, determined to hand out
his handbills next to the door of the building. Accordingly,
he left the gate and walked across the property to the build-
ing entrance. There he began passing handbills to arriving
employees. About 7:10 a.m., Waage and Production Manager
Max Williams came outside through that same door. Waage
said to Layton, ‘‘Mark, I would advise you not to pass out
literature on company property. We have a no solicitation
rule here . . . . We don’t let anybody pass out literature
here; we won’t let you pass out literature here. If you do it
again, you’ll be in severe violation.’’ Waage also observed
that Layton was not scheduled to be at the plant until his
afternoon shift began.
Waage’s recollection of the incident is nearly identical,
specifically saying that Layton’s conduct had triggered the
progressive discipline system. He explained that Respondent
has always interpreted the no-solicitation rule to prohibit
handbilling anywhere within the fenced area of the facility.
Respondent has not suggested that Layton was interfering
with ingress or egress or was engaging in any disruptive ac-
tivity.
116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The transcript at Tr. 75:22 mistranscribes the word ‘‘liked’’ as ‘‘elected.’’
The error is corrected. Respondent’s argument that Thompson’s testimony is
unintelligible relies on that transcription error.
6 While Thompson is unable to read, one should not conclude that he is ig-
norant. He testified that the reason he was retaining the material was to allow
sufficient time to pass to see if Deere would operate the Company any dif-
ferently than Cooper had. Depending on his assessment of the situation, he
intended to either sign the authorization card or reject it. Palmer appears to
have sensed Thompson’s uncertainty and realized that there was some possi-
bility that Thompson might sign the card. Because Respondent’s handbook
states that it is a nonunion company which prefers to stay that way, it was
a simple step to enforce that policy by removing the card from Thompson’s
temptation.
7 U. S. Steel Corp., 223 NLRB 1246 (1976).
C. Roy Thompson
Roy Thompson operates a deburr machine on the grave-
yard shift. He has worked for Respondent for 16 years. He
testified that sometime in mid-February he was given a
UAW authorization card, a mailing envelope, and some other
literature. He placed the literature partially under his personal
toolbox and the card and mailer on top. The box itself has,
for many years, been stored on a company dolly. The dolly
is located across a hallway some distance to the rear as he
operates his machine.
The material had been sitting in that fashion for about a
week when early one morning, Shift Superintendent Gene
Palmer asked Thompson about it. Thompson said about 2:30
a.m. Palmer approached him with the material in his hand,
asking if it belonged to him. Thompson said it did, where-
upon Palmer asked if he wanted it. Thompson responded that
the material ‘‘wasn’t bothering him and wasn’t bothering no
one else.’’ Thompson recalled that Palmer then said he
‘‘liked’’5 Thompson’s work, that Thompson was good with
new employees, and that he would hate to see something
happen to Thompson’s job. He went on to explain that he
had had a bad experience with a union at a firm known as
Lee’s Manufacturing located in Cherryville. Subsequently,
Palmer threw Thompson’s material away.
At one point, Palmer asserted that Thompson had given
him permission to throw the material away, so he did so. He
observed that he knew Thompson was unable to read, so he
couldn’t see much likelihood that Thompson wanted to keep
the material around. He also said he had found it next to a
discarded soda can and potato chip bag so he thought it, too,
might be trash. Yet, he agrees that Thompson said the mate-
rial wasn’t bothering anybody. I fail to see where that state-
ment was Thompson’s permission to throw the material
away. Instead, it suggests that Thompson was mildly asking
Palmer to leave the material alone.6 Accordingly, Palmer’s
testimony on the point is rejected. In addition, Palmer denied
referring to Thompson’s job or to his union experience at
Lee’s. Based on Palmer’s equivocation with respect to
Thompson’s union literature and his confiscation of it, I re-
ject his denial that he made no threat regarding Thompson’s
job.
D. Earl Grove
Earl Grove works in the flexible machine center (where
three people share five machines). He has worked on two oc-
casions for Respondent totalling 7-1/2 years. He testified that
on January 23 Production Manager Max Williams came to
his work area to talk. Williams began the conversation by
asking Grove if he had discussed a recent pay raise with his
supervisor. After a brief discussion over Grove’s job descrip-
tion, Williams asked why the second shift needed a ‘‘f—
ing’’ union. Grove did not answer directly, but told Williams
he should ask everyone, because they all had different rea-
sons. Williams then went on to say the ‘‘f—ing union would
not do any good for Funk or anybody.’’ He asserted that a
union would render Respondent uncompetitive and it would
go broke. Grove recalls Williams saying he had seen both
sides of the union issue and that unions had not done any
good.
Williams denies mentioning the union during the conversa-
tion. Yet his recollection was not good and he was, as the
General Counsel observes, somewhat evasive. Certainly
Grove’s demeanor evinced more believability. Williams’ de-
nial is not credited.
IV. ANALYSIS AND CONCLUSIONS
In reviewing the factual material as described and found
above, I am compelled to conclude that the General Counsel
has prevailed in each instance. The facts are either not in sig-
nificant dispute or are easily resolved in favor of the General
Counsel. Moreover, as seen below, the law supports the con-
clusion that each of the allegations proven constitute unfair
labor practices.
Taking the no-distribution rule first, it is quite clear that
its second, third, and fourth paragraphs are unlawful on their
face. In each instance the paragraph prohibits distribution of
union literature ‘‘on Company property.’’ It is true that there
is an effort in the second paragraph to limit distribution to
‘‘working time’’ and, taken alone, that might withstand
8(a)(1) scrutiny. However, the use of ‘‘company property’’
in the remainder of the paragraphs is clearly too broad. It
prohibits distribution in nonworking areas and in working
areas at times when no work is required to be performed. In
some respects the paragraph is self-contradictory. That sort
of inconsistency creates an ambiguity in application which is
not easy to resolve on the floor. It can be interpreted to bar
the distribution of protected material at times and places
when there would be no interference with work, particularly
where the entire paragraph is governed by a ‘‘company prop-
erty’’ syndrome.
Moreover, the ‘‘company property’’ language itself is ex-
cessively restrictive in the context of this Respondent’s phys-
ical layout.7 As Waage testified that Respondent has always
considered the rule to be applicable to the property outside
the building, and as he enforced that understanding against
Layton on February 28, it is clear that the rule is not in-
tended to permit any in-plant distribution, much less outside
distribution. Respondent uses the ‘‘company property’’ catch-
all language to justify barring distribution anywhere within
the perimeter fence. Thus, the no-distribution rule as written
is unlawful. Tri-County Medical Center, 222 NLRB 1089
(1976).
In addition, its enforcement, as well as the enforcement of
the off-duty employee rule is discriminatory. It is quite clear
from the evidence that many things are allowed to tempo-
rarily disrupt work and it is also quite clear that off-duty em-
ployees are commonly found in the plant at locations other
than designated break areas. Only when Bolden and Layton
began using those privileges to distribute union material or
talk about unionization did management use those rules as
justifications for interdicting the conduct. In no case has Re-
117FUNK MFG. CO.
8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
spondent shown that Bolden actually interfered with any-
one’s work. His speaking with John Martin and Jenkins, at
least in terms of time, took only seconds. In fact his con-
versation with Jenkins does not even appear to have oc-
curred, for White stopped it before it started. Clearly Bolden
had been identified as a union sympathizer, if for no other
reason than his UAW cap or his willingness to engage in
union banter with John Martin. The evidence seems clear to
me that these rules were being applied to Bolden and Layton
only because of the nature of the subject matter they were
likely to be engaged in, union-related topics. Accordingly, I
find that Respondent violated Section 8(a)(1) in the way it
chose to invoke these two rules to inhibit the employees’
protected conduct of distributing union material or talking to
employees about unionization at times when their work
would not be adversely affected.
In addition, I find that in both instances Respondent in-
voked the first step of the progressive disciplinary system, or
it reasonably appears to have done so. Certainly, with respect
to Layton, Waage admitted that he had. Insofar as Bolden is
concerned, Respondent argues that the system had not been
invoked for no record was kept of either White’s, Palmer’s,
or Waage’s admonitions to him. Yet, how can one really
know that? It seems to me that each of these conversations,
by tone alone, constituted more than the minimum so-called
casual reminder. They may have even appeared to be the
next step, the ‘‘oral reminder.’’ Certainly Respondent did not
tell Bolden that they were admonitions less than disciplinary,
and he could not help but conclude otherwise.
The complaint alleges that the invocation of the discipli-
nary system violates Section 8(a)(3) as well as 8(a)(1) as it
affects the ‘‘hire and tenure’’ of an employee within the
meaning of that section. I agree. An 8(a)(3) violation occurs
where hire and tenure is affected as a result of discipline for
protected conduct, even if the discipline is less than a sus-
pension or discharge. Here, it reasonably appears that Bolden
was being subjected to the progressive discipline system and
Layton was admittedly so subjected. Accordingly, the con-
duct violated Section 8(a)(3).
Palmer’s treatment of Thompson in the wee hours of a
February morning violated Section 8(a)(1) in two separate
ways. First, Palmer had no permission to discard Thomp-
son’s union literature and authorization card. Second, it is
clear to me that he took advantage of the situation to utter
a not-so-subtle threat to Thompson that pursuit of the Union
might somehow result in Thompson losing his job. More-
over, the conversation necessarily attempted to force Thomp-
son to reveal his union sentiments and desires. Although not
couched in questioning terms, it was, nonetheless, an interro-
gation. This was not idle chatter.
Finally, there is Williams’ conversation with Grove. In it,
Grove asserts that Williams interrogated him, simultaneously
disparaging the Union, about why Grove’s shift wanted
union representation. Williams’ denial has previously been
discredited and it is clear that the interrogation was anything
but innocent. Its tenor suggests that Williams might well
have been intending to use the interrogation in an
intimidatory manner. He may well have wanted to know why
the employees wanted a union, but his tone suggests that he
also wanted Grove to know that he strongly disapproved,
hoping to convince Grove that unionization was unacceptable
to him. As a coercive interrogation it violates Section 8(a)(1).
CONCLUSIONS OF LAW
1. By maintaining and enforcing rules prohibiting employ-
ees from distributing union literature at times and places
which would not interfere with work production, Respondent
has violated Section 8(a)(1) of the Act.
2. By enforcing plant rules in a manner designed solely to
prohibit employees from engaging in protected union activ-
ity, Respondent has violated Section 8(a)(1) of the Act.
3. By interrogating its employees regarding their union
sentiments and desires, Respondent violated Section 8(a)(1)
of the Act.
4. By threatening its employees with loss of their jobs in
the event of unionization, Respondent violated Section
8(a)(1) of the Act.
5. By confiscating the union literature of its employees,
Respondent violated Section 8(a)(1) of the Act.
6. By prohibiting and interfering with its employees who
were lawfully engaged in passing out handbills pertaining to
the Union, Respondent violated Section 8(a)(1) of the Act.
7. By disciplining employees with respect to their hire and
tenure for lawfully passing out handbills pertaining to the
Union, Respondent violated Section 8(a)(1) and (3) of the
Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The Respondent, Funk Manufacturing Company, Coffey-
ville, Kansas, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Maintaining and enforcing rules prohibiting employees
from distributing union literature at times and places which
would not interfere with work production.
(b) Enforcing plant rules in a manner designed solely to
prohibit employees from engaging in protected union activ-
ity.
(c) Interrogating its employees regarding their union senti-
ments and desires.
(d) Threatening its employees with loss of their jobs in the
event of unionization.
(e) Confiscating the union literature of its employees.
(f) Prohibiting and interfering with its employees who are
lawfully engaged in passing out handbills pertaining to the
Union.
(g) Disciplining its employees with respect to their hire
and tenure for lawfully passing out union handbills.
(h) 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 the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Remove from its files any reference to the unlawful
discipline of Mark Layton and Robert Bolden and notify
them in writing that this has been done and that the dis-
cipline will not be used against them in any way.
118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
(b) Post at its Coffeyville, Kansas plant copies of the at-
tached notice marked ‘‘Appendix.’’9 Copies of the notice, on
forms provided by the Regional Director for Region 17, 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, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.