Uniflite, Inc.

National Labor Relations Board - Board Decisions

Dec 12, 1977

233 N.L.R.B. 1108 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Uniflite, Inc. and UBC, Southern Council of Industrial
Workers, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO. Cases I I-CA-
6829 and 11 -RC-4282
December 12, 1977
DECISION, ORDER, AND
CERTIFICATION OF RESULTS
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On August 22, 1977, Administrative Law Judge
Joel A. Harmatz issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and the Respon-
dent filed a brief.1
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
IT IS FURTHER ORDERED that the objections in Case
I 1-RC-4282 be overruled.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for UBC, Southern
Council of Industrial Workers, United Brotherhood
of Carpenters and Joiners of America, AFL-CIO,
and that said labor organization is not the exclusive
representative of all the employees, in the unit herein
involved, within the meaning of Section 9(a) of the
National Labor Relations Act, as amended.
t The Respondent has requested oral argument. This request is hereby
denied as the record, the exceptions, and the brief adequately present the
issues and the positions of the parties.
2 No exceptions were filed in the representation case.
233 NLRB No. 159
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge: Upon a
charge filed on November 23, 1976, a complaint issued on
January 4, 1977, alleging that Respondent violated Section
8(a)(3) and (1) of the Act by suspending an employee
without pay in reprisal for his union or protected activity.
In its duly filed answer, Respondent denied that any unfair
labor practices were committed.
Pursuant to a representation petition filed on November
11, 1976, in Case I l-RC-4282, and a stipulation for
certification upon consent election agreement approved on
November 23, 1976, a secret ballot election was conducted
on December 17, 1976, among employees in the appropri-
ate unit. The tally of ballots showed that, of approximately
135 eligible voters, 32 ballots were cast for, and 84 against,
the Petitioner. There were 16 challenged ballots which were
insufficient to affect the results. Thereafter, the Petitioner
filed timely objections to conduct affecting the results of
the election. On January 17, 1977, the Regional Director
for Region 11 issued a Report on Objections, Direction and
Order Consolidating Cases, indicating that said objections
raised material issues of fact warranting a hearing, and
concluding that, as a complaint had issued on unfair labor
practice charges in Case 1 I-CA-6829, said objections be
consolidated with Case 11 CA-6829 for hearing, ruling,
and decision by an Administrative Law Judge.
On March 29, 1977, a hearing was conducted in the
consolidated proceeding before me in Jacksonville, North
Carolina. After close of the hearing, briefs were filed by the
General Counsel and Respondent Employer.
Upon the entire record in this proceeding, including my
observation of the witnesses while testifying, and consider-
ation of the posthearing briefs, I find as follows:
FINDINGS OF FACT
I. JURISDICTION
Respondent Employer is incorporated in the State of
Washington and is engaged in the manufacture of boats at
its Swansboro, North Carolina, plant. In the course of said
operations, during the 12-month period preceding issuance
of the complaint, a representative period, Respondent
purchased and received from points directly outside the
State of North Carolina goods and raw materials exceeding
$50,000 in value, and additionally Respondent Employer
sold and shipped goods valued in excess of $50,000 from
said facility directly to points outside the State of North
Carolina.
The complaint alleges, the answer admits, and I find that
Respondent Employer is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer in substance admits,
and I find that UBC, Southern Council of Industrial
Workers, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, is, and has been at all times material,
1108
UNIFLITE, INC.
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
This complaint raises the limited question of whether
Respondent violated Section 8(a)(3) and (1) of the Act by
issuing a 3-day suspension without pay to Timothy
Sullivan because of the latter's purported violation of an
established rule barring solicitation on "actual working
time."
B. Concluding Findings
A published employee handbook maintained by Respon-
dent includes the following rule:
SOLICITATIONS AND DISTRIBUTIONS:
NO SOLICITATION RULE. Persons not in the employ of
this Company are not allowed to solicit this Company's
employees or anyone else on Company property for
any purpose. No employee will be allowed to solicit for
any reason while he is on the job and on Company
time. This rule applies only to actual working time, not
to break time, lunch time or before or after work. All
types of solicitations on Company time are prohibited
by this rule, including solicitations on behalf of or in
opposition to any labor organization. Anyone who
violates this rule and who thereby neglects his own
work or interferes with the work of any other employee
will be subject to immediate discipline up to and
including discharge.
At the outset of organizational activity, the Union on
October 81 forwarded a telegram to Respondent reporting
the Union's campaign to organize Respondent's employ-
ees. The telegram named eight employees, declared to be
members of the inplant organizing committee. Included
was employee Timothy Sullivan, the alleged discriminatee
in this case. Upon receipt of the telegram, a notice was
posted in the plant by Respondent, reproducing the above
no-solicitation, no-distribution rule, and also listing the
names of the inplant organizing committee. The notice
expressed the Company's assumption that the Union was
authorized to use the names of those employees, and stated
that the designated members of the inplant organizing
committee would be subject to discipline for enforcement
of plant rules to the same extent as any other employee.
The incident which triggered the suspension of Sullivan
took place on November 15. Earlier that morning Peggy
Turner, a recently hired employee, who had worked only 2
to 3 days, was engaged in wood finishing in the interior of a
boat. Sullivan was assigned to take measurements on that
boat that morning. He entered the boat with a legal pad
I Unless otherwise indicated, all dates refer to 1976.
2 I credit the testimony of Sullivan that he entered the boat with the tape
and pad. Although Turner testified that she did not see such implements,
she acknowledges that Sullivan might have taken measurements while on
the boat, and it is the sense of her testimony that it was possible that
Sullivan possessed these items at the time.
and measuring tape.2 Sullivan admittedly had never before
seen Turner. He asked her if she was new and if she had
knowledge of the unionization effort. She replied that she
was a new employee but knew nothing of union activity.
He then asked whether at the time of her hire anyone in the
office mentioned the union effort; Turner gave a negative
response. Sullivan then advised Turner that he could get
her a union card, and suggested that he have Pat
Waggoner, another employee on the inplant organizing
committee, talk to her should she need more information.
Turner rejected this offer, stating that as she was a new
employee she did not want to get involved. With this, the
conversation ended, and Sullivan left the boat.3
A dispute exists as to whether the discussion involved a
disruption of work. Sullivan claims that during the
conversation he continued to take measurements, and that
he did not see Turner doing anything while he was on the
boat. It is the sense of Turner's testimony that Sullivan
addressed her directly and was not taking measurements
during their conversation, although he could have been
engaged in work at other times during his presence on the
boat that morning. Turner admits that she continued to do
her work during the conversation. I consider it unlikely
that during this confrontation with a new employee,
concerning the Union, Sullivan gave undivided attention to
his work. It is my belief, consistent with the probabilities,
that he addressed Turner directly. Although any disruption
that might have occurred was at best momentary and of no
measurable impact upon output, I am convinced that
Sullivan was not continuously engaged in work during the
conversation in question.
After Sullivan left the boat, Ron Meadows, Turner's
supervisor, returned to the boat. Turner asked Meadows if
"something could be done about people pestering her on
working time." Meadows indicated that it depended on
what occurred. Turner reported that a fellow employee had
come on the boat and questioned her about the Union,
whether she would like to sign a card, and whether she
wished to speak to another employee about the Union
during her lunch break. After Turner identified Sullivan,
Meadows contacted Tommy Robinson, the assistant plant
superintendent, under whose authority Sullivan had been
working, relaying Turner's report. Robinson then appar-
ently reported the incident to John Henry, Respondent's
personnel manager. Henry then contacted Joe Sanders, the
plant manager, reporting the possibility that a violation of
the no-solicitation rule had occurred. Sanders instructed
Henry to investigate and ascertain whether that was the
case. Henry then contacted the Company's attorneys and,
after doing so, discussed the matter with Meadows, asking
the latter if Turner would be willing to give a statement
concerning the incident. Later, Turner, in her own
handwriting, furnished the following statement:
I Peggy J. Turner was working at the time I was ask
[sic] about the Union it was not on my own time or
3 The foregoing is based on a composite of believable elements of the
testimony of Sullivan and Turner. Although Sullivan's account omits
reference to his offer to obtain an authorization card for Turner, I believe
Turner's testimony that this in fact occurred. Otherwise, except as indicated
below, the essentials of their testimony are not the subject of material
conflict.
1109
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
break period. Tim Sullivan came to me when my Surior
[sic] went for a light bulb. And when I was not
interested he wanted to send some one else to talk to
me about the Union. He interrupted for about 5
minutes of my work this was 1 1-15-76
Peggy J. Turner
On November 16, Henry discussed with Robinson the
alternative forms of discipline that were available. Both
decided that a 3-day layoff would be appropriate, being of
the view that a discharge was too harsh, and a written
warning too lenient. Following the discussion with Robin-
son, Henry, who had already prepared a written report of
the incident, went to the office of Sanders informing the
latter of the various disciplinary alternatives that were
available, and recommending the 3-day layoff. Sanders
wanted time to think about the matter,4 but by the next
morning he had decided to approve the recommendation.
That day, November 17, Robinson called Sullivan to his
office, with C. R. Brinkley, the production superintendent,
also in attendance. Robinson handed "a rule infraction
report" to Sullivan, which recited as follows:
Uniflite is in receipt of a signed statement which alleges
that you did, on or about 11/15/76 at this plant during
regular working hours and not during a scheduled
break or lunch period, violate this Conpany's [sic] "No
Solicitation" Rule which is published on page fourteen
of the Uniflite employee handbook and which was also
posted verbatim on bulletin boards and in public places
throughout the plant during the period 10/8/76 thru
11/13/76, by interrupting your work and the work of
another employee for the discussion of union matters.
As a result of an investigation conducted on 1I 1/16/76,
it is felt that the allegation is true. Accordingly, you are
suspended without pay for a period of three days
effective today. You may report for work on 11/22/76.
At Robinson's request, Sullivan read and signed the report.
Sullivan testified that during the meeting with Robinson he
could not recall the incident and asked if he could see a
copy of the statement referred to in the report. Robinson
indicated that this would probably be in order but
indicated that Henry had the statement. However, Robin-
son telephoned Henry and was advised that Sullivan would
not be permitted to view the statement. Robinson informed
Sullivan of this, but Sullivan insisted that he would find out
from Henry why he could not see the statement. Both then
went to Henry's office and, in the ensuing discussion,
Sullivan demanded the statement, Henry refused, and
Sullivan threatened to file suit. An argument ensued which
4 Errors in the transcript have been noted and corrected.
5 See, e.g., Peyton Packing Company, Inc.. 49 NLRB 828, 843 (1943);
Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793, 803-804 (1945).
6 See. e.g., N.L.R.B. v. Murray-Ohio Manufacturing Company, 358 F.2d
948 (C.A. 6, 1966); Singer Company v. N.LR.B., 429 F.2d 172 (C.A. 8,
1970); Wellman Industries, 201 NLRB 958, 961 (1973); Dayton Tire d
Rubber Company, 216 NLRB 1003 (1975); Montgomery Ward d Co., 224
NLRB 104 (1976); Maremont Corporation, 229 NLRB 746-753 (1977).
7 These terms distinguish Wellman Industries, supra, a case heavily relied
upon by the General Counsel in support of his claim that there was no
violation of the no-solicitation rule in this case. In Wellman, the rule only
ended with Henry's comment to Sullivan, as the latter was
leaving, "[G ]ood luck, you asshole, you."
The General Counsel, in claiming that the 3-day
suspension violated Section 8(aX3) and (I), concedes that
the rule under which Sullivan was disciplined was pre-
sumptively lawful. Under established Board policy, while
such a rule may be enforced to assure plant discipline,5 it
may not lawfully be seized upon as a device to obstruct or
impede self-organization. Consistent therewith, the Board
has found 8(aX3) and (1) violations in varying factual
contexts, in which it condemned discipline under a lawful
rule, where seized upon as a device to selectively punish
union adherents, or to otherwise thwart organizational
activity. 6 These decisions furnish the predicate for the
General Counsel's theory of discrimination in this case.
In support of his position, the General Counsel cites the
fact (1) that Sullivan was known from the outset of the
organization drive to have been one of eight employees
serving on the inplant organizing committee, (2) that
Respondent reproduced the rule from its employee hand-
book and posted it throughout the plant when informed
that the organization drive was in progress, (3) that no
employee previously had been suspended or disciplined for
violation of the no-solicitation rule despite the fact that
worktime solicitation for various other causes had occurred
in the past, and (4) that Respondent opposed the
unionization of its employees. In addition to the foregoing,
the General Counsel also argues that there was no
disruption of work as a consequence of the Sullivan-Turner
encounter, and that therefore his conduct did not violate
the no-solicitation rule.
In my opinion, the General Counsel's position is not
supported by the record. First, there is no merit in the
assertion that Sullivan did not violate the rule. By its very
terms the operative restriction applies to those who both
engage in the lawfully barred solicitation "and who thereby
neglects his own work or interferes with the work of any
other employee . . ." [Emphasis supplied.]? In the instant
case, the conversation between Turner and Sullivan was
concerned essentially with the Union, occurred during
working time, and did entail a departure, albeit momen-
tary, from Sullivan's normal duties during working hours.
Respondent, as part of its investigation of the incident,
developed evidence in the form of a written statement from
Turner indicating that Sullivan interrupted her work for
about 5 minutes. The disciplinary notice presented to
Sullivan and signed by him at the time he was dealt the 3-
day suspension specifically recites that he violated the rule
"by interrupting [his] work and the work of another
employee for the discussion of union matters."8 Contrary
to the General Counsel, the evidence on which discipline
was invoked against Sullivan, the formal description of his
applied to solicitation "which in any way interferes with the production of
the company." In finding that the employer in that case violated Sec. 8(aX3)
by enforcing the rule, the Administrative Law Judge first found that the
rule, as written, did not proscribe solicitation absent an interference with
production, and then concluded that the rule was not violated because the
employer acted without evidence that the disciplined employees disrupted
production.
8 Cf. Dayton Tire & Rubber Company, 216 NLRB 1003, 1009 (1975),
where under substantially identical language appearing in a no-solicitation
rule, the Administrative Law Judge found an 8(aX3) and (I) violation with
respect to an employee who engaged in worktime solicitation. There,
1110
UNIFLITE, INC.
misconduct as furnished by Respondent, and, indeed, what
actually occurred during the Sullivan-Turner confrontation
fell within the proscriptive scope of the no-solicitation rule.
This violation of the no-solicitation rule, in my opinion,
formed the predicate for the legitimate exercise of Respon-
dent's disciplinary authority. It is true that this infraction
resulted in a work disruption of negligible proportions, a
factor which concededly the Board has adverted to in
concluding that an otherwise lawful rule was discriminato-
rily enforced.9 Nonetheless, the negligible degree of any
work disruption occasioned by breach of a no-solicitation
rule is but one factor to be considered against others in the
overall determination as to whether enforcement of the rule
was founded upon illicit considerations. For, the Act has
not been construed to condition an employer's right to
enforce restrictions upon worktime solicitation to those
incidents which provoke significant disruptions in work.
Violation of a legitimate restriction on worktime activity,
regardless of the absence of real impact upon production, if
condoned, would hardly promote plant discipline.
On the entire record, however, the factors relied upon by
the General Counsel are insufficient to place Respondent's
conduct in this case under statutory interdict. Although it
does not appear that any other employee had been
disciplined for violating the rule in question, the evidence
demonstrating that Respondent condoned such conduct in
the past is limited to two isolated incidents involving low-
level supervisors whose digressions from work were for a
beneficent cause on the one hand, and an act of employee
welfare on the other.i0 Neither reflects the type of
widespread worktime solicitation indicative of disparate
application of the rule. Nor is the claim of discrimination
convincingly enforced by Respondent's posting of the rule
immediately upon receiving information that an organiza-
tional drive was in progress. Insofar as can be ascertained
here, the rule was one of long standing, and, though
perhaps relevant to the inquiry, renewed publication
thereof is not necessarily inconsistent with a desire, based
on fairness, to remind employees of preexisting limitations
of their ability to engage in union activity on plant
premises."t
Finally, it is noted that the indicia of discrimination
offered by the General Counsel is not aided by convincing
evidence of hostility. The suspension accorded Sullivan
was not unduly harsh, and as such did not itself carry a
suggestion of Union-inspired discipline. Nor was enforce-
ment of the rule effected in the context of other unfair
labor practices. Finally, although Respondent actively
campaigned against the Union, the record is devoid of
union animus of a nature suggesting a propensity on
however, the Administrative Law Judge acted on evidence that the
employer did not "believe" that the offending employee had either neglected
his own work or interfered with that of the other employee.
9 See, e.g., Montgomery Ward d Co.. Incorporated, 224 NLRB 104, 109
(1976).
10 Employee Jesse Downey testified that he purchased a ticket from an
individual named Kinder, who was then a foreman on his line, for a chance
to win a shotgun. Both Kinder and Downey were supporters of the "little
league" and the rame was for the benefit of that project. In the second
incident, Sullivan relates that Bud Boyagian, whom Sullivan descnbed as
then being a "supervisor," asked Sullivan to make a donation to a fund for
the family of a deceased employee. See. e.g.. The May Department Stores
Company d/b a Famous-Barr Company, 174 NLRB 770 (1969); Emerson
Respondent's part to commit acts of reprisal against
employee protagonists of the Union.
For the above reasons, I find that the General Counsel
has failed to establish by a preponderance of the evidence
that Respondent imposed the 3-day suspension upon
Sullivan for any reason other than its legitimate interest in
enforcing the established and plainly legitimate no-solicita-
tion rule. Accordingly, I shall dismiss the complaint in its
entirety.
IV. THE OBJECTIONS
Petitioner's Objections I through 11 were referred to me
for hearing, as raising material issues of fact. The evidence
adduced in support of the objections was insubstantial and,
accordingly, all shall be overruled.
More specifically, Objections I through 9 relate to
misrepresentations and coercive statements imputed to
Plant Manager Joe Sanders during a speech given by the
latter on December 16.12 Plant Manager Sanders testified
that, in addressing employees at the meeting in question, he
read from a prepared text, on a word-for-word basis, with
no departure therefrom either by addition or deletion.
Personnel Manager John Henry confirmed this, relating
that he was present at the meeting, and followed the
remarks of Sanders at that meeting from a copy of the
prepared text, for the purpose of checking against any
deviations. Petitioner called Timothy Sullivan, who con-
veyed his recollection of what was said on that occasion.i3
Sullivan concedes that at the time of the speech, he made
no record or notation of the words uttered, and it is the
sense of his testimony that the information he testified to at
the hearing was based solely upon his ability to recall the
details of the speech. Sullivan showed a strong tendency to
inject his own understanding or interpretation of what was
said, and he did not impress me as capable of recalling,
precisely, the remarks of Sanders on December 16.
Consistent with the testimony of Sanders and Henry-
noting that Sullivan's account does reflect a relationship
between his version of what was said and ideas actually
appearing in the speech-I am convinced that the speech
itself constitutes a more reliable source of detailed
arguments conveyed to employees by Sanders.14
Having examined Respondent's Exhibit 9, only certain
portions thereof arouse cause for concern. Thus, the
following segments of the speech are worthy of reproduc-
tion as the only phrases approaching a coercive departure
from protected campaign argumentation:
The way to end all this union talk for good is to vote no
tomorrow and send the Union away from here for
Electric Co., 187 NLRB 294, fn. 2 (1970); Serv-Air Inc., 175 NLRB 801
(1969); and Atkins Pickle Company, Inc.. 181 NLRB 935 (1970).
" Generally speaking the plant environment furnishes the most oppor-
tune setting for employee communication relative to the pros and cons of
unionization during a campaign, discussions which might arouse controver-
sy among employees adversely affecting the quality of their performance
under nonmeasurable conditions.
12 The speech ended more than 24 hours before the opening of the polls
the next day.
13 A stipulation was also made that if other witnesses were called by
Petitioner their testimony would conform with Sullivan's account.
14 The text of the speech is in evidence as Resp. Exh. 9.
1111
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
good. When you vote tomorrow, remember that
without this union, you have a steady job and a steady
paycheck. There is a very, very important fact that all
of you need to know and fully understand. .... This
Company has almost three million dollars invested here
in this Swansboro plant. In the 5 years that Uni-Flite
has been here, this plant has not made a profit. In fact
this plant has lost $775,000 on Uni-Flite's investment
here in Swansboro. This is because it actually costs us
more to build a boat here than it costs us to build the
same boat in Bellingham even though the hourly pay
rates in Bellingham are higher than they are here. We
cannot and will not-just because the Union wants us
too-increase our existing financial problems and
production costs if that means jeopardizing the future
of this plant. What you will be voting on tomorrow is
not whether you like the sound of fancy union talk but
whether you are willing to risk you [sic] steady job and
paycheck and the welfare of your family on promises of
outside professional union salesmen.
.... If you believe that you will be better off
without union trouble here; if you do not want to pay
dues; if you do not want to give up your personal
freedom; if you do not want to take a chance on strikes
and lost paychecks and lost jobs; you will make an "X"
in the no box ...
If we believe we can put in a pay raise at the proper
time, as we have done in the past, we will do so.
However, we will not let any ridiculous union demands
of more money or anything else put us out of business.
We do not intend to let any union or anybody else
force us to put your jobs in danger; and if the Union
call you out on strike to try to force us to do something
which we think will hurt our business and effect [sic]
your jobs then we will simply face up to a strike and get
people in here who do want to work.
Considering the above references in the overall context
of the speech, although not entirely free from doubt, it is
my view that the adverse job consequences referred to
therein were adequately linked to legitimate explanation of
the Employer's right to replace economic strikers, or to the
possibility that the Union would make unreasonable
demands. On balance, it is my conclusion that the speech
in its entirety embodied fair argumentation protected by
Section 8(c) of the Act.15 Accordingly, Objections 1, 2, 4, 5,
6, 7, 8, and 9 shall be overruled.
Objection 10 apparently relates to a speech made by
Sanders on December 14 which was accompanied by a
slide show and question and answer period. The only
evidence offered in support of this objection was the
testimony of Tim Sullivan to the effect that the slide show
depicted the UBC's bad strike record, violence, and
financial data on the union officials, including their salaries
15 Insofar as the objections assert that the election should be set aside on
the basis of misrepresentations, apart from the lack of merit in such
objections under the Board's recent decision in Shopping Kart Food Market,
and expense allowances. Sullivan also related that union
dues and initiation fees were depicted on slides and
discussed. In sum, Sullivan's testimony in support of this
objection was vague and in the form of broad descriptions
not allowing a substantive finding of misconduct. Accord-
ingly, Objection 10 is not substantiated by competent proof
and it shall be overruled.
Objection 11 charges that on the day of the election a
representative of management appeared at the polls
seeking to vote though he knew he had no right to do so,
thereby destroying the laboratory conditions required for a
Board election. Here again, Petitioner's claim is derived
from Sullivan, who testified that at a meeting held by the
Company on December 14 one Richard Geary indicated
that he could not vote because he was "a professional," he
was salaried, and he was a controller in charge of computer
printouts on boat billings. Geary attempted to vote in the
election. The testimony of Sullivan as to what was said by
Geary in defining his status at the December 14 meeting
constitutes uncorroborated hearsay, and was not compe-
tent to bind the Company. Thus, no primary evidence was
offered to show that Geary exercised supervisory authority
or was in any respect an agent of the Company. It is noted
that Geary's name did appear on the election eligibility list.
Also in apparent support of this objection, Sullivan
testified that Bobby Peterson was a management employee
who also appeared at the polls. Here again, there is no
evidence that Peterson was a supervisor or agent. Instead
Sullivan simply indicated that it was his impression that all
professional employees were management employees.
Peterson was a quality control inspector, and assuming his
ineligibility there is no evidence whatever to establish that
he held a status whereby his appearance at the polls would
influence freedom of choice.
Although not within the strict confines of Objection 11,
Sullivan also testified that an employer observer; namely,
Charles Patton, had been promoted to the position of
"foreman" shortly before the election. Here again, there
was no substantial evidence of a primary nature indicating
that Patton when serving as an observer possessed or
exercised supervisory authority or was a managerial
employee. The evidence does not substantiate Objection 11
and, as indicated at the hearing, said objection is overruled.
Objection 3 is drafted in "catchall" terms and charges
the Employer with conducting "a fear and smear cam-
paign" through which it "intended to intimidate and coerce
... employees, and deny them a free and uncoerced
choice in the election, said free choice, guaranteed by the
Law and the Act." Apart from the evidence heretofore
discussed, there is no competent and specific proof tending
to substantiate this broad allegation. Accordingly, it is
overruled.
Having overruled Objections I through 11 inclusively,
and having dismissed the complaint in Case I l-CA-6829,
it shall be recommended that the results of the election
conducted on December 17, 1976, be certified.
Inc., 228 NLRB 1311 (1977), the evidence presented in support thereof,
while attributing certain low-keyed references to the Employer, does not
substantiate any dramatic departures from truth.
1112
UNIFLITE, INC.
CONCLUSIONS OF LAW
1. Respondent Employer is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Charging Party-Petitioner is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. Respondent did not violate Section 8(aX3) and (1) of
the Act by issuing a 3-day suspension to employee Tim
Sullivan because of his violation of a lawful rule against
solicitation during working hours.
i6 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
4. The Respondent Employer engaged in no unfair
labor practices or other misconduct warranting that the
election conducted on December 17, 1976, be set aside.
Upon the foregoing findings of fact and conclusions of
law, and the entire record in this proceeding, and pursuant
to Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 16
It is hereby ordered that the complaint herein be, and it
hereby is, dismissed in its entirety.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
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