THE BOEING COMPANY

National Labor Relations Board - Administrative Judge Opinions

Oct 26, 2012

11-CA-077979 (N.L.R.B. Oct. 26, 2012)

JD(ATL)-29-12
North Charleston, SC
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
THE BOEING COMPANY
and CASE 11–CA–77979
INTERNATIONAL ASSOCIATION
OF MACHINISTS AND AEROSPACE
WORKERS, AFL-CIO
Elaine Robinson-Fraction, Esq.,
for the Acting General Counsel.1
Alston D. Correll, Esq.
for the Respondent.2
William H. Haller, Esq.,
for the Charging Party.3
DECISION
Statement of the Case
WILLIAM NELSON CATES, Administrative Law Judge. This case was tried in
Charleston, South Carolina, on September 12, 2012.4 The Union filed a charge initiating this
matter on April 3 (thereafter amended), and the Acting General Counsel issued the complaint on
June 29.5 The government alleges the Company, about April 10, engaged in an act of
interference with its employees protected rights.
The Company, in its answer to the complaint and at trial, denies having violated the
National Labor Relations Act, as amended (Act) in any manner set forth in the complaint.

1 I shall refer to counsel for the Acting General Counsel as counsel for the government and to the National
Labor Relations Board (Board) as the government.
2 I shall refer to counsel for the Respondent as counsel for the Company and I shall refer to the Respondent
as the Company.
3 I shall refer to counsel for the Charging Party as counsel for the Union and I shall refer to the Charging
Party as the Union.
4 All dates are 2012, unless otherwise indicated.
5 I granted the government’s unopposed motion, at trial, to withdraw the allegations set forth in paragraph 7
of the complaint.
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The parties were given full opportunity to participate, to introduce relevant evidence, to
examine and cross-examine witnesses, and to file briefs. I carefully observed the demeanor of
the witnesses as they testified and I rely on those observations in making credibility
determinations here. I have studied the whole record, and based on the detailed findings and 5
analysis below, I conclude and find the Company violated the Act essentially as alleged in the
complaint.
Findings of Fact
10
I. Jurisdiction, Supervisory/Agency Status, and Labor Organization Status
The Company is a corporation with an office and place of business in North Charleston,
South Carolina, where it is, and continues to be, engaged in the assembly and nonretail sale of
aircraft. During the 12-month period ending May 31, the Company, in conducting its operations, 15
purchased and received at its North Charleston, South Carolina, facility, goods, and services
valued in excess of $50,000 directly from points outside the State of South Carolina. The parties
admit and I find the Company is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
20
It is admitted that, at all times material herein, Human Resources Manager Conja Rice
(HR Manager Rice or Rice) and Supervisor Darrell Mathis (Supervisor Mathis or Mathis) are
supervisors and agents of the Company within the meaning of Section 2(11) and (13) of the Act.
The parties stipulated and I find the Union is a labor organization within the meaning of 25
Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Issue and Facts 30
1. Issue
The sole issue here is whether HR Manager Rice, about April 10 at the Company,
instructed employees they could not talk about the Union during working time. 35
2. Government’s evidence
The government presented one witness, Ronald Bourrillion (Bourrillion), who works as a
construction mechanic in the mid-body assembly building (Bldg 8820), on first shift, in work cell 40
10 along with approximately 90 other employees. Bourrillion has worked for the Company for
approximately 3 years and actively supports unionization of the work force. At work Bourrillion
has worn union shirts, distributed union literature, and attempted to educate his coworkers on the
Union. On April 10 Bourrillion was directed by his then supervisor, Mathis, to attend a meeting
in the Human Resources Department with HR Manager Rice. Bourrillion, Mathis, and Rice met 45
for a few (10 to 15) minutes. Bourrillion testified Rice told him an unnamed supervisor had
JD(ATL)-29-12
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contacted her that some employees approached him saying they had overheard Bourrillion
speaking about the Union on Company time. Bourrillion refuted Rice’s claims and explained he
was well aware of labor laws and knew he could speak with employees before and after work
and during lunch and break times; and, that those he spoke with would also have to be on break
or lunch times. According to Bourrillion, Rice said she just wanted to make sure he was aware 5
of that and asked him to repeat after her that he would not talk about the Union on Company
time. Bourrillion told Rice he was not a child, that he was aware of labor laws and knew when
he could and could not speak with coworkers about the Union. Bourrillion said the meeting
ended and added Rice did not give him any documents at the meeting.
10
Bourrillion testified he talked daily, during working time, with his co-workers about
family, children, sports (Little League), and life in general. Bourrillion talked, at work, with
supervisors about sports, hockey teams (Rangers and Flyers), football, blood pressure
medications, and his supervisor’s traveling church choir. Bourrillion was unaware of any
Company rule prohibiting the distribution of literature during lunch time in the lunch room or 15
during break times in the break room.
Bourrillion testified, on cross examination, he distributed union fliers at the Company on
the day he was called to Rice’s office but said neither Rice nor Mathis mentioned flyer
distribution at the meeting. Bourrillion did not report to anyone else in management what Rice 20
told him at the meeting. He acknowledged no one else in management ever told him he could
not talk about the Union on Company time.
Bourrillion was not disciplined as a result of the meeting nor for any actions leading up to
the meeting.25
3. Company’s evidence
The Company called two witnesses, namely HR Manager Rice and Supervisor Mathis, in
support of its defense.30
Rice has only been with the Company for approximately 9 months but has 15 years
human resources experience at other companies. Additionally, Rice was provided training by the
Company on dealing with employees who might engage in union organizing activities. Rice is
assigned to provide human resources assistance to employees in cell 10 of the mid-body 35
assembly building (Bldg. 8820). Rice said she met with Bourrillion on April 10 because she
received an email on that date, which had been originated by an employee addressed to his
manager, Jane Lyons, asking what to do regarding an employee handing out forms for the Union
during working hours. The employee, in his email, also indicated it had been reported to him
Bourrillion had been in cell 30 talking with two employees. It was Rice’s understanding, from 40
the email, Burrillion had been outside his work area, not on break time, handing out literature
and talking about the Union with two the employees.
As a result of the email Rice asked Bourrillion’s supervisor, Mathis, to bring Bourrillion
to her office for a level set meeting to discuss what was allowed under the Company’s 45
distribution policy and to make sure Bourrillion understood he needed to distribute and engage in
JD(ATL)-29-12
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union activity outside of his work time and outside of his work area. Rice explained to
Bourrillion she had received a complaint he was out of his work area not on break time handing
out fliers and talking about the Union. Rice reminded Bourrillion he “could only distribute flyers
and talk about the Union outside of his normal work time during his breaks and outside of his
work area.” Rice asked Bourrillion to repeat to her he understood the Company’s policies. Rice 5
denied telling Bourrillion he could not talk about the Union and/or could not talk about the
Union on Company time. Rice explained that her instructions on Company policy to Bourrillion
were “he could distribute materials and speak about the Union during non-work times and non-
work areas.” Supervisor Mathis did not say anything during the meeting, but, testified Rice told
Bourrillion he could not talk about or solicit for the Union during Company time. 10
Rice testified, that to her knowledge, no employee, at this facility, had ever been
disciplined for discussing union matters on Company time.
It is appropriate to address credibility with respect to the three witnesses. In arriving at 15
my conclusions, I was impacted by impressions I formed as I observed the witnesses testify.
From appearance alone each witness was as credible as the other. Although I do not comment on
all testimony, I have; however, considered all as well as the exhibits in arriving at the facts here.
First, it is undisputed a meeting took place on April 10 in the human resource department with
Rice, Mathis, and Bourrillion in attendance. Second, it is likewise undisputed the meeting came 20
about as a result of activities Bourrillion engaged in near cell 30 in the mid body assembly
building (Bldg. 8820) on that date. Third, I find certain portions of Bourrillion’s and Rice’s
testimony to be accurate but, as explained, I reject portions of both witnesses testimony. I credit
Rice’s testimony that distribution of flyers was covered in the meeting. I do so, in large part,
because the email giving rise to the meeting addresses distribution and Bourrillion engaged in the 25
distribution of flyers that morning. In crediting Rice on this point I am not unmindful
Bourrillion denied distribution of flyers ever came up in the meeting. Simply stated I do not
credit that portion of Bourrillion’s testimony. I credit Bourrillion’s testimony Rice addressed, in
connection with the distribution of flyers, when and where he could talk about the Union with
coworkers. Bourrillion, Rice, and Mathis all testified that talking about the Union was discussed. 30
I specifically credit Bourrillion’s testimony Rice asked him to repeat after her that he would not
talk about the Union on Company time. HR Manager Rice described her comments to
Bourrillion as being he could talk about the Union and distribute flyers outside of his normal
work time and work area. Supervisor Mathis testified, and I credit his testimony, Rice told
Bourrillion he could not talk about or solicit for the Union during Company time. I am not 35
unmindful Rice specifically denied telling Bourrillion he could not talk about the Union on
Company time. I do not rely on that specific portion of her testimony because the overall
evidence demonstrates, to my satisfaction, it is not accurate and I do not rely on or credit it.
It is undisputed Bourrillion spoke with coworkers and supervisors about various sports 40
activities, family, children, medical conditions, traveling, and related subjects while on work
time in working areas.
JD(ATL)-29-12
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III. Discussion, Analysis, and Conclusions
It is clear Bourrillion was, and continues to be, an active union supporter and he engaged 5
in union activities the morning he was summoned to HR Manager Rice’s office for a discussion
concerning when such activities (talking and distributing literature) would be allowed. Pertinent
here, Rice told Bourrillion he could not talk about the Union on Company time. It is clear
employees were not prohibited from, and in fact, talked about various subjects unrelated to their
work tasks on Company time. For example, Bourrillion talked with coworkers, as well as 10
supervisors, about sports, family, medications, and a traveling church choir during working time.
The Board in Jensen Enterprises, Inc., 339 NLRB 877, 878 (2003), held:
It is settled law that an employer may forbid employees from talking about a 15
union during periods when the employees are supposed to be actively working, if
that prohibition also extends to other subjects not associated nor connected with
their work tasks. However, an employer violates the Act when employees are
forbidden to discuss unionization, but are free to discuss other subjects unrelated
to work, particularly when the prohibition is announced or enforced only in 20
response to specific union activity in an organizational campaign. Willamette
Industries, 306 NLRB 1010, 1017 (1992); Orval Kent Food Co., 278 NLRB 402,
407 (1986).
Here Rice promulgated a ban on discussion of all union related topics during working 25
time. She did so, as she stated, to ensure Bourrillion, and presumably others, understood the
Company’s policy prohibiting talking about the Union on Company time; she even requested
Bourrillion repeat to her the no talking policy she announced. HR Manager Rice’s
announcement to Bourrillion, of the prohibition, came immediately after he had engaged in
union campaigning type activities that morning at the Company. Rice’s promulgating a 30
discriminatory rule prohibiting employees from talking about the Union during working time,
while allowing discussions by employees on nonwork-related matters during working time
violates Section 8(a)(1) of the Act and I so find.
CONCLUSIONS OF LAW35
1. The Company, The Boeing Company, is an employer engaged in commerce with
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, International Association of Machinists and Aerospace Workers, 40
AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.
3. By promulgating and enforcing a discriminatory rule prohibiting employees from
talking about the Union during worktime, while allowing other nonwork-related discussions by
employees the Company has violated Section 8 (a)(1) of the Act.45
JD(ATL)-29-12
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REMEDY
Having found the Company has engaged in certain unfair labor practices, I find it must be 5
ordered to cease and desist and to take certain affirmative action designed to effectuate the
policies of the Act. I recommend the Company be ordered, within 14 days after service by the
Region, to post an appropriate “Notice to Employees” in order that employees may be apprised
of their rights under the Act, and the Company’s obligation to remedy its unfair labor practices.
10
On these findings and conclusions of law and on the entire record, I issue the following
recommended6
ORDER
15
The Company, The Boeing Company, North Charleston, South Carolina, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
20
(a) Promulgating and enforcing a discriminatory rule prohibiting employees
from talking about the Union during worktime, while allowing other nonwork-related
discussions by employees.
(b) In any like or related manner interfering with, restraining, or coercing25
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of the
Act.
30
(a) Within 14 days after service by the Region, post at its North Charleston,
South Carolina facility, copies of the notice marked “Appendix.”7 Copies of the notice, on forms
provided by the Regional Director for Region 11, after being signed by the Company’s
authorized representative, shall be posted by the Company and maintained for 60 consecutive
days in conspicuous places including all places where notices to employees are customarily 35
posted. In addition to physical posting of paper notices, notices shall be distributed
electronically, such as email, posting on an intranet or an internet site, or other electronic means,
if the Company customarily communicates with its employees by such means. Reasonable steps
shall be taken by the Company to ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of these proceedings, the Company 40

6 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 objections to them shall be deemed waived for all purposes.
7 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 the
United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”
JD(ATL)-29-12
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has gone out of business or closed the facility involved in these proceedings, the Company shall
duplicate and mail, at its own expense, a copy of the notice to all current employees and former
employees employed by the Company at any time since April 10, 2012.
Dated at Washington, D.C. October 26, 20125
__________________________________10
William Nelson Cates
Administrative Law Judge
JD(ATL)-29-12
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JD(ATL)-29-12
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 Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT promulgate and/or enforce a discriminatory rule prohibiting our employees
from talking about the International Association of Machinists and Aerospace Workers, AFL-
CIO, or any other labor organization, during worktime, while permitting other nonwork-related
discussions by our employees.
WE WILL notify our employees we do not object to them talking about the International
Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, as
long as we allow other nonwork-related discussions by our employees.
The Boeing Company
(Employer)
Dated: _________________ By __________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
4035 University Parkway, Republic Square, Suite 200 Winston-Salem, NC 27106-3325
(336) 631-5201, Hours: 8:00 a.m. to 4:30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (336) 631-5216