A.O. Smith Automotive Products Co.

National Labor Relations Board - Board Decisions

Dec 16, 1994

315 N.L.R.B. 994 (N.L.R.B. 1994)

994
315 NLRB No. 148
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evident convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 We note that no exceptions have been filed to the judge’s find-
ings that the Respondent did not violate the Act in the incidents de-
scribed in par. 5, subpars. (a) through (e), of her conclusions of law.
3 Similarly with regard to the judge’s interrogation findings, Chair-
man Gould and Member Devaney find it unnecessary to rely on the
incident of January 22, 1993, in which Production Manager Peterson
asked employee Roberts, an open union adherent, why he wanted a
union. Given evidence of other unlawful interrogations supporting
the order, this is cumulative.
Member Stephens would reverse the judge’s finding that this inci-
dent constituted unlawful interrogation because, under all the cir-
cumstances, Peterson’s remarks had no reasonable tendency to inter-
fere with or coerce employee Roberts in the exercise of his Sec. 7
rights.
4 All dates are in 1993 unless stated.
5 The Respondent stipulated to his supervisory status before
May 1.
A. O. Smith Automotive Products Company and
International Union, United Automobile, Aero-
space and Agricultural Implement Workers of
America (UAW). Cases 14–CA–22452 and 14–
CA–22549
December 16, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On March 23, 1994, Administrative Law Judge
Nancy M. Sherman issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions,2 as modified, and to adopt the recommended
Order.
1. We agree with the judge that the Respondent vio-
lated Section 8(a)(1) when its supervisors distributed
campaign paraphernalia in a manner pressuring em-
ployees to make an observable choice or open ac-
knowledgment of their union sentiments. Lott’s Elec-
tric Co., 293 NLRB 297, 303–304 (1989), enfd. mem.
891 F.2d 281 (3d Cir. 1989); Houston Coca-Cola Bot-
tling Co., 256 NLRB 520 (1981); and Kurz-Kasch,
Inc., 239 NLRB 1044 (1978). By having its super-
visors directly offer employees paraphernalia opposing
the Union, the Respondent effectively put employees
in the position of having either to accept or reject the
Respondent’s proffer. In adopting the judge’s findings,
however, we find it unnecessary to consider whether
offers of paraphernalia made to open union adherents
who were wearing, or had worn, prounion parapherna-
lia also violated Section 8(a)(1). Inasmuch as the
record established similar distributions to employees
not shown previously to have expressed their union
sentiments, any additional instances of distribution to
other employees would be cumulative.3
2. We agree with the judge that during mid-May
19934 the Respondent placed Jerald Richards in a posi-
tion in which employees reasonably could believe that
Richards was acting on behalf of management, and
that Richards had apparent authority to act on the Re-
spondent’s behalf when, on May 12 and 19, Richards
coercively interrogated employee Mike Pakovich.
In adopting the judge’s finding of apparent author-
ity, we note particularly that the interrogations oc-
curred between May 1 and 22, when, according to the
Respondent’s production manager, William G. Peter-
son, department 1011 was in a ‘‘transition period.’’
Prior to May 1, Richards was the second-shift super-
visor in department 1011.5 On May 1 the Respondent
transferred Richards to a newly created position on the
first shift known as a TQM facilitator, which the Re-
spondent contends is a nonsupervisory position. How-
ever, between May 1 and 22, when Richards interro-
gated department 1030 employee Pakovich during the
second shift, Richards remained on the second shift for
4 to 6 hours daily responsibly directing employees new
to department 1011 and assisting newly transferred
management personnel in the intricacies of department
1011 procedures.
In these circumstances, second-shift employees rea-
sonably could perceive that Richards was continuing to
act on behalf of management during the ‘‘transition pe-
riod.’’ Richards remained in department 1011 on the
second shift for substantial periods over several weeks,
directing employees and assisting management person-
nel. Accordingly, we adopt the judge’s findings that
the Respondent violated Section 8(a)(1) during that pe-
riod through Richards’ conduct toward Pakovich.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, A. O. Smith Automotive
Products Company, Granite City, Illinois, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Mary J. Tobey, Esq., for the General Counsel.
Jay W. Kiesewetter, Esq. and Shawn R. Lillie, Esq., of Mem-
phis, Tennessee, and John DiClemente, Esq., of Milwau-
kee, Wisconsin, for the Respondent.
John Truffa, of Detroit, Michigan, for the Charging Party.
995A. O. SMITH AUTOMOTIVE PRODUCTS CO.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge. These
consolidated cases were heard before me in St. Louis, Mis-
souri, on August 23, 24, and 25, 1993, pursuant to a charge
in Case 14–CA–22452 filed against Respondent A. O. Smith
Automotive Products Company by International Union,
United Automobile, Aerospace, and Agricultural Workers of
America (UAW) (the Union) on April 27, 1993, and amend-
ed on June 7, 1993; a complaint in that case issued on June
16, 1993, and amended on July 9,1993; a charge in Case 14–
CA–22549 filed by the Union on June 21, 1993, and amend-
ed on July 19, 1993; and a consolidated amended complaint
in both cases issued on July 19, 1993, and amended on Au-
gust 18 and 23, 1993. The consolidated complaint in its final
form alleges that Respondent violated Section 8(a)(1) of the
National Labor Relations Act (the Act) by interrogating em-
ployees about union activity, forcing employees to reveal
their union sympathies, making certain oral statements re-
garding union matters, promising benefits if the Union were
rejected, threatening reprisals if the employees opted for
union representation, and disparately enforcing a rule restrict-
ing solicitation, literature distribution, and posting of notices.
On the entire record, including the demeanor of the wit-
nesses, and after due consideration of the briefs filed by
counsel for the General Counsel (the General Counsel) and
Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation authorized to do business in
the State of Illinois. Respondent operates a facility in Granite
City, Illinois, where it is engaged in the manufacture and
nonretail sale and distribution of automotive parts. During
the 12-month period ending June 30, 1993, Respondent sold
and shipped from its Granite City, Illinois facility goods val-
ued in excess of $50,000 directly to points outside Illinois.
I find that, as Respondent admits, it is engaged in commerce
within the meaning of the Act, and that assertion of jurisdic-
tion over its operations will effectuate the policies of the Act.
The Union is a labor organization within the meaning of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
About May 1992, some of Respondent’s employees got in
touch with the Union in an effort to obtain union representa-
tion for employees at Respondent’s Granite City plant.
Prounion employees mailed union literature to employees’
homes, told them about the Union, and asked them to come
to meetings. In late 1992 or early January 1993, the Union
began to conduct regular weekly meetings.
On November 19, 1992, the Union filed a representation
petition seeking to be certified as the representative of some
of Respondent’s Granite City employees. On December 15,
1992, Respondent and the Union executed a Stipulated Elec-
tion Agreement for an election to be held on January 29,
1993; this agreement was approved by the Regional Director
for Region 14 on December 15 or 16, 1992. On January 28,
1993, the Union submitted a request to withdraw its petition.
Respondent objected to the withdrawal request, on the
ground that were the election to be conducted as scheduled
and were the Union to lose, the Union would be barred from
filing a new petition for a year, whereas approval of the
withdrawal request would provide for only a 6-month bar to
refiling the petition. On January 28, 1993, the Regional Di-
rector granted the withdrawal request, and stated that unless
good cause was shown to the contrary, no petition filed by
the Union within 6 months would be entertained. As of the
August 1993 hearing, the Granite City production employees
were not union-represented, but the Granite City millwrights
and electricians had been represented since at least 1990 by
the Carpenters and the IBEW, respectively.
As previously noted, the first charge in the instant pro-
ceeding was filed 3 months after the Union’s withdrawal re-
quest. The complaint in its final form alleges unfair labor
practices between early November 1992 and June 1993. As
of August 25, 1993, the instant charges were the only
charges ever filed against Respondent with respect to the
Granite City plant, which was opened in 1954.
B. Alleged Violations through Human Resources
Manager Richard G. Smith
The pleadings establish that Richard G. Smith (not to be
confused with Richard Schmitt; see infra) is the Granite City
human resources manager, and that he is a supervisor within
the meaning of the Act.
Archie Williams worked for Respondent between January
1986 and February 1993, when Smith discharged her for rea-
sons which are not shown by the record, and which are not
alleged in the complaint to have been unlawful. Williams
was very active in the Union; she was on the union commit-
tee and wore union shirts and buttons in the plant. She testi-
fied that people generally knew that she was for the Union,
that she did not make it any secret, and that on the date of
the alleged conversation discussed below, Smith knew she
was for the Union. She also testified that she did not like
him.
Williams testified that on an occasion, which preceded
Christmas 1992 and may have been as early as October
1992, she attended a conference at about 11 a.m. at the union
hall in Granite City with some ‘‘people’’ who were trying
to get a union in Respondent’s Rockford, Illinois plant and
were visiting Granite City. She went on to testify that at
about 6 p.m. that same day, when she was leaving the Gran-
ite City ladies’ locker room at the end of her break, she ran
into Smith. According to Williams, Smith told her that he
had heard she had been at the union meeting with the people
from Rockford, she replied that she had, and he ‘‘just looked
at’’ her.
Smith testified that during a meeting with Williams, initi-
ated by him in his office on a date between November 9 and
12, Smith expressed his concern about a report that she had
untruthfully told some of the other employees that he had
had told her he knew the identity of the employees who were
going to union meetings; according to Smith, Williams re-
plied that she had made no such statement. Smith denied tell-
ing Williams that he knew she had attended a union meeting
held in Granite City with some Rockford employees. For de-
meanor reasons, I credit Smith.
996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The complaint does not allege that any unlawful statements were
made by Podawiltz.
C. Alleged Violations through Plant Manager
Jack Johnson
At all material times, Jack Johnson has been vice president
of Respondent’s Granite City operation, and has admittedly
been a supervisor within the meaning of the Act.
In January 1993, before the scheduled election, Johnson
conducted several employee meetings during working hours
at which Respondent communicated its position on the
Union’s petition. Also representing management during three
of these meetings was Joe Podawiltz, who is Respondent’s
vice president of human resources. Johnson credibly testified
that during the last two or three meetings, he asked the em-
ployees to give him an opportunity to work with them with-
out representation from the Union. In view of his testimony
in this respect, uncontradicted employee testimony that dur-
ing one of these meetings Podawiltz asked the employees to
reject the Union, and uncontradicted evidence that Respond-
ent was otherwise attempting to induce employees to vote
against the Union, I infer that the Union’s defeat was also
urged by Johnson and Podawiltz during the other preelection
meetings.
First-shift employee Kenneth Crain testified about a meet-
ing with departments 1010 and 1030, which was attended by
Podawiltz, and which Crain timed as ‘‘it was getting close
to the election. One of the last captive meetings.’’ According
to Crain’s testimony, Johnson said that since the union orga-
nizing started some problems had come to his attention, in-
cluding the problem of overtime scheduling; and that he
would try or was going to do something but he ‘‘couldn’t
do nothing right now.’’ Johnson denied promising employ-
ees, at any time during the union organizing activity, that he
would do something to help them if they voted against the
Union, and denied telling people, during a meeting which
may or may not have been the one testified to by Crain, that
Johnson would not remedy or look into any problems until
after the union drive was over. To the extent that Crain’s and
Johnson’s testimony may differ, for demeanor reasons I cred-
it Crain.
Second-shift employee Donald Floyd, who works in de-
partment 1030, testified about a meeting which he timed as
having occurred during the last week before the scheduled
election. Because Johnson’s speeches were given during
working hours and Floyd worked on a different shift than did
Crain, I see nothing significant in any alleged conflict be-
tween Crain and Floyd about the contents of the two Johnson
speeches they respectively testified about. Floyd credibly tes-
tified that during the meeting attended by him Podawiltz
talked about ‘‘what a Union would do—or couldn’t do for
you, jeopardizing your future, or the future of the Company,
all the hard work they had put into this Company, don’t
jeopardize it by putting a Union in here and making it harder
to do business.’’1 Still according to Floyd’s testimony, John-
son then said that
he felt that he had to take the full responsibility for any
problems that we might be having around the shop, that
he understands that people had concerns. And they
were going to hold meetings to help to address some
of these concerns and needs, and let people voice their
opinions. They would give people a better communica-
tion of what was going on in the shop to give them an-
other chance, that these problems could all be worked
out.
Johnson credibly testified that at the ‘‘last meeting’’ (it is
unclear whether this was a meeting described by any em-
ployee witness) he said that he wanted to conduct an inter-
view with each employee on his birthday to ‘‘review on an
informal, one-on-one basis where the business is going, what
we are doing, if we have production problems, what we
should be doing to try to get better at them . . . the buck
does stop at my desk.’’ When asked whether during ‘‘these
[preelection] meetings that were mentioned, did you say that
you were going to address problems in the plant?’’ Johnson
testified:
It’s very difficult to address—you want to look at
them, you want to listen to them, and see if you can
do something that will make the overall plant more
[valuable] and better. You can’t promise anything—you
never-what one person might want another person
might find offensive so you can’t—you have to be very
cautious and when you get to be my age you learn you
don’t promise anything any more.
To the extent that Floyd’s and Johnson’s testimony may dif-
fer, for demeanor reasons I credit Floyd.
Second-shift employee Gerald Wood, who works in de-
partment 1052, testified about a meeting which employees
had to attend, and which he timed as having occurred within
days of the scheduled election. According to Wood’s credible
testimony, Johnson said that ‘‘we knew we had problems in
the plant, but we don’t need a union to solve these problems,
that we have an open-door policy [see infra fn. 13], and we
can solve these problems ourselves . . . anybody could come
and see him.’’ Because Wood worked in a different depart-
ment than did Crain and Floyd, and on a different shift than
did Floyd, I see nothing significant in any alleged conflict
between Wood on the one hand, and Crain and Floyd on the
other, about the contents of the three Johnson speeches the
three employees respectively testified about. Wood further
credibly testified that the plant had had an ‘‘open-door’’ pol-
icy for a number of years, and that he did not recall John-
son’s saying anything about taking it away if the Union won
the election. Johnson, too, credibly testified that the ‘‘open-
door’’ policy had been in effect as long as he had been at
the plant, and credibly denied telling anyone that he would
terminate that policy if the Union won the election.
First-shift employee Don McNew testified on direct exam-
ination that a couple of weeks before the election, at a meet-
ing of employees in departments 1010 and 1030, Johnson
said that he had a lot of good ideas but could not put them
into place until the union drive was over. On cross-examina-
tion, McNew testified that Johnson said that he knew there
were problems in the plant which were not being addressed
in these meetings, but he could not do anything until the
campaign was over. McNew’s prehearing statement to the
Board said, ‘‘I don’t recall Johnson saying anything about
knowing what our problems are.’’ Johnson denied saying, at
a meeting which may or may not have been the one testified
to by McNew, that Johnson had a lot of good ideas but could
not put them into place until the union drive was over. John-
997A. O. SMITH AUTOMOTIVE PRODUCTS CO.
2 Richards did not discipline Pakovich for this activity.
son further testified to telling the employees that Respond-
ent’s new human resource manager, Joe Divine, had men-
tioned a lot of things that he had done at other facilities that
Johnson thought would help resolve some of ‘‘the issues that
we had over time and the bid systems and . . . the hours
worked.’’ In view of the inconsistencies between McNew’s
testimony and his prehearing affidavit, as to what Johnson
said at this meeting I credit Johnson to the extent his testi-
mony may conflict with McNew’s testimony.
D. Alleged Unlawful Conduct in Connection with
Election Literature and Paraphernalia
1. Respondent’s written rule (not attacked in the
complaint) regarding solicitation and distribution
At all material times, Respondent maintained in its em-
ployee handbook the following rule:
SOLICITATION AND DISTRIBUTION OF
LITERATURE
. . . work time, for the purposes of this policy, is
defined as those periods of the work day which are des-
ignated for the performance of assigned job tasks . . .
employees are prohibited from engaging in any of the
following:
Soliciting for any causes or reason during work time.
Distributing pamphlets, circulars or other written mate-
rials during work time or in work areas. Posting of no-
tices at any time anywhere on the premises.
The General Counsel does not contend that this rule is un-
lawful on its face to the extent it may apply to union lit-
erature or union solicitation.
About mid-December 1992, employee Mike Pakovich
handed out union T-shirts to other employees in work areas
during worktime; he stopped this activity upon being told by
Jerald Richards (at that time, admittedly a supervisor) that
‘‘it was against Company policy to distribute Union para-
phernalia, literature in a working area during working
hours.’’2 In addition, before January 13, 1993, employee sup-
porters of the Union distributed union literature in the break
areas and in the bathrooms, and also, outside of their own
working time, laid literature on the side of operating ma-
chines so that it could be read by the operator at breaktime.
During this same period, employee opponents of the Union
passed out literature and antiunion buttons in the same way,
and also distributed them during working time in work areas.
2. The alleged incident involving Supervisor Watkins
and employee Roberts
The pleadings establish that all material times, Second-
Shift Supervisor Dan Watkins was a supervisor within the
meaning of the Act. Watkins did not testify.
Employee Greg Roberts testified that in late November
1992, while Roberts was going to work, he walked down the
aisle with Watkins, who was holding several ‘‘vote no’’ hats.
According to Roberts’ testimony, Watkins asked Roberts if
he wanted a hat, to which Roberts said no. Roberts regularly
wore union paraphernalia to work, and testified that Watkins
knew Roberts supported the Union. Roberts’ prehearing
statement to Respondent’s counsel (see infra sec. II,E) states,
‘‘At no time did any manager official or supervisor ever
[offer] me a pro-company shirt, cap or button or [imply] I
should wear one.’’ Nevertheless, because Roberts’ testimony
in this respect is uncontradicted, because other employees
credibly testified that Watkins directed similar conduct to
employees other than Roberts on other occasions (see infra),
and in view of Roberts’ testimony about his state of mind
when he gave this statement to company counsel (infra sec.
II,E), I credit Roberts.
3. Vice President for Human Resources Podawiltz’
instructions regarding management distribution of
antiunion paraphernalia
The pleadings establish that at all material times, Mainte-
nance Supervisor Terry Leach and Third-Shift Foreman Kent
Patterson were supervisors within the meaning of the Act.
Leach testified that in January 1993, on a date he was not
asked to give, Vice President of Human Resources Podawiltz
during a supervisory training session stated that the super-
visors could not ‘‘force’’ vote-no caps, T-shirts, and buttons
on anyone, or ‘‘insist that they take one.’’ Patterson testified
that during a January 1993 training session before these para-
phernalia were made available to employees, Podawiltz said
that the supervisors could only give them out to employees
who asked to receive them. The record fails to show that
Patterson and Leach were purporting to describe the same
training session. In any event, I believe that their respective
descriptions constituted their honest recollection of what they
understood Podawiltz to say.
Human Resources Manager Smith testified that after Janu-
ary 13, 1993 (see infra sec. II,D,6), Respondent’s ‘‘distribu-
tion of buttons and shirts were [sic] based upon the request
of the employee and then the supervisor would deliver them.
That was the way we were proceeding.’’
4. Supervisor Watkins’ efforts to distribute ‘‘vote no’’
buttons to second-shift employees
About January 6, 1993, when a group of second-shift em-
ployees were sitting in the break area just before the begin-
ning of their shift, Supervisor Watkins came into the area
with a plastic sandwich bag of ‘‘vote-no’’ buttons. He stood
in front of each of the employees, held out the bag of but-
tons in one hand and one button in the other, and, while
making a circle with his hand, asked whether anyone wanted
a button and would wear it. None of the employees was dis-
playing ‘‘vote-no’’ paraphernalia, and some of them (includ-
ing employee Joe Corrado) were wearing union parapherna-
lia. When Watkins smilingly asked him whether he wanted
a vote-no’’ button, Corrado said, ‘‘I’ll take the whole bag if
you want to give them to me.’’ Watkins laughed and said
he could only give Corrado one. Corrado said that if he
could not have the whole bag, he did not want any. None
of the employees present accepted a button.
5. Supervisor Leach’s distribution of ‘‘vote-no’’
paraphernalia
About a week before the scheduled election, Supervisor
Leach approached employees McNew and Crain when the
two employees were actively working in the same area.
Leach was carrying ‘‘vote-no’’ shirts and caps. Both employ-
998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 This finding is based on credible parts of the testimony of
McNew and Crain. Crain testified on cross-examination that he was
pretty sure that the union paraphernalia he was wearing at that time
consisted of a button. All three men testified that Leach solicited the
two employees to trade ‘‘vote-no’’ paraphernalia for the union para-
phernalia they were wearing.
4 Spelled ‘‘Goodwin’’ in many portions of the transcript. Respond-
ent’s unopposed motion to correct the spelling to ‘‘Goodman’’ is
hereby granted. Her given name is sometimes referred to in the
record as ‘‘Lorraine.’’
5 Respondent’s answer admits Peterson’s supervisory status. The
complaint alleges that his title was ‘‘production manager;’’ he testi-
fied that his title is ‘‘manager manufacturing materials and mainte-
nance;’’ and Respondent’s tables of organization give his title as
‘‘manager, manufacturing/maintenance/materials.’’ Because the table
of organization before May 1993 assigns to another individual (Dan-
iel Borkowski) the title of ‘‘manufacturing manager,’’ for purposes
of clarity Peterson will be referred to herein as the production man-
ager.
6 My findings in these three sentences are based on Smith’s and
Peterson’s testimony, which was not offered for the truth of the re-
ports made to management by Goodman and others. She did not tes-
tify. Corrado’s previously summarized testimony about his conversa-
tion with Goodman is the only probative evidence of its content.
7 The record fails to show whether she ever filed such charges.
ees were wearing union caps, and Crain was wearing a union
shirt.3 Leach said that the employees did not ‘‘need’’ the
union caps, but ‘‘needed the vote-no hats.’’ He asked
McNew whether he would like to trade his union cap for
Leach’s ‘‘vote no’’ cap. McNew said that he was happy with
the cap he had. Then, Leach asked Crain whether he would
like to trade his union shirt for Leach’s ‘‘vote no’’ shirt.
Crain said that he was happy with the one he had. Leach
said that he had been on both sides of the fence before, that
he felt nonunion was the best way to go for business, and
that if the plant got a union it might be bad for business.
Then, still carrying the ‘‘vote no’’ paraphernalia, he walked
down the aisle to the other departments, where he talked to
the employees while they were working. Leach never revis-
ited either Crain or McNew about the matter. Leach testified
that this was a ‘‘joking conversation’’ in normal tones of
voice; that the employees were smiling and did not appear
offended or upset; that Leach had gone to them because he
felt comfortable around them, had known them for more than
7 years, and had worked with them both as an hourly and
as a salaried employee; and that he had always thought he
had a friendly relationship with them. When asked whether
Leach had been joking, McNew testified, I cannot say that
for sure . . . I mean, it is not a joke to me when someone
is messing with my future.’’
Leach spoke with four other employees about ‘‘vote no’’
paraphernalia. In each such instance, the employee asked
Leach what union paraphernalia he had and Leach thereupon
told him and asked if he would like to have one; in at least
one case, Leach accompanied this offer by holding up a
‘‘vote no’’ T-shirt. In this manner, Leach gave out three T-
shirts and two caps.
6. Management’s January 13, 1993 instructions to
employees regarding distribution of election literature
and paraphernalia, and related events
Beginning about the fall of 1991, employee Corrado had
a series of personality clashes with employee Linda Good-
man.4 In consequence of these difficulties, Corrado bid out
of her department (1011) and into the department (1030)
where he was working at the time of the hearing.
Most of the department 1030 employees on Corrado’s shift
supported the Union. About early January 1993, Corrado
began to distribute union literature in department 1011 dur-
ing periods before his shift had started but after the begin-
ning of department 1011’s shift. Where a department 1011
employee was operating his or her machine, Corrado fol-
lowed the practice of laying the union literature beside the
machine. Probably on, but perhaps a few days before, Janu-
ary 13, 1993, Goodman, who had been wearing an antiunion
shirt, reacted to Corrado’s distribution of union literature is
department 1011 by telling him that ‘‘we are running pro-
duction even if you are not.’’ Corrado said that he was not
bothering her production, and told her to leave him alone.
Thereafter, and probably a few minutes later that same
day, Goodman approached Human Resources Manager
Smith. She told him that Corrado had been handing out
union literature to employees in her department 1011 at
about 3:20 p.m., after her shift began in that department; and
said that when she questioned Corrado as to why he had the
right to do this, he used some abusive language toward her.
Smith thereupon relayed this report to Production Manager
William G. Peterson, admittedly a supervisor.5 Management
then conducted an investigation, which unearthed no inde-
pendent witnesses to the Goodman-Corrado conversation but
during which a number of people reported that he had been
distributing literature in her department.6
Right after the beginning of Corrado’s shift on January 13,
Corrado’s immediate supervisor, Dan Watkins, took Corrado
to the office and said that Goodman had accused him of di-
recting abusive language to her and was filing sexual harass-
ment charges.7 Corrado said that he was not going to be har-
assed or intimidated over Goodman or passing out literature.
Watkins said that her report was being investigated by him
and Peterson.
At about 9 p.m. that day, at Peterson’s and Smith’s in-
structions, Watkins brought Corrado into Smith’s office.
Present were Corrado, Smith, Peterson, and Watkins. A
member of management said that allegations had been made
regarding Corrado’s language toward Goodman, and regard-
ing his distribution of union literature in department 1011.
Corrado denied directing abusive language toward Goodman,
and asked whether management was ‘‘going to let her make
allegation after allegation and never discipline her . . . until
she gets lucky.’’ He stated that he had distributed union lit-
erature in department 1011 while people were working, but
that he had placed this material up on the press panels and
had not interfered with anyone working. He further stated
that he had received reports from employee Donald Floyd,
and perhaps others, that ‘‘pro-Company people’’ had been
passing out literature. Corrado stated that Goodman was
‘‘supposed to have been’’ handing out literature at a team
meeting (a term explained infra sec. II,G,3), and that Floyd
had told him that people had handed out things for the
United Way Campaign solicitation. Management thereupon
concluded the meeting.
Later that evening, Peterson and Smith decided that ‘‘it
was not conclusive that Mr. Corrado had directed abusive
language’’ at Goodman. Then, Peterson and Smith had Wat-
kins bring Floyd and Corrado to Smith’s office. After man-
999A. O. SMITH AUTOMOTIVE PRODUCTS CO.
8 Corrado credibly testified that partly because Peterson had re-
marked on an undisclosed occasion that Goodman was wearing a
‘‘vote no’’ shirt and Corrado was wearing a union shirt he believed
that Peterson’s instructions about department 1011 were due to
Corrado’s conflicts with Goodman.
9 This finding is based on credible parts of Smith’s testimony,
which as to this conference is uncorroborated. Although Smith testi-
fied that management ‘‘again explained the no-soliciting policy to
her,’’ there is no other evidence (laying the employee handbook to
one side) that it had ever been explained to her before. Laying the
handbook to one side, the record fails to show whether management
ever specifically advised any other antiunion employees of this pol-
icy.
10 My findings in this paragraph are based on Corrado’s
uncontradicted testimony. Employee Williams credibly testified that
during this same period, while the employees were working, she saw
Watkins carry brand new T-shirts along the working aisle toward the
welding line.
agement closed the door, Smith said that he and Peterson
wanted to set some ground rules for the union campaign. Pe-
terson said that up until that point both sides had done things
that may not have been legally correct, and that from this
point on he wanted to do things the way they were supposed
to be done. Peterson said that Corrado had been violating
labor law by distributing literature in department 1011, even
though the press lines were not stopping and the literature
distribution was not slowing down production. Peterson said
that from now on, if Corrado and Floyd wanted to distribute
literature in the plant, they would have to either leave it in
the break area or distribute it at the front door where the em-
ployees came in and out, and that Corrado and Floyd could
no longer go through the departments themselves. Peterson
further remarked that he wanted them to stay out of depart-
ment 1011; that the employees in that department were try-
ing to set Floyd and Corrado up; and that for their own
good, it would be best to stay out of there.8 Management
said that under company ‘‘policy rule,’’ employees were not
to distribute materials during working hours in working
areas. Corrado said that he did not think this was fair, be-
cause Supervisor Watkins had been distributing ‘‘vote no’’
buttons, and asking employees if they wanted buttons, with-
out giving any reason why they should vote that way. Peter-
son leaned back in his chair and said, ‘‘We don’t think that
is a problem.’’ Without giving specifics, Floyd said that
‘‘your guys’’ were distributing antiunion literature in the de-
partments ‘‘all the time.’’ Peterson said that he would talk
to them; and that if Corrado or Floyd saw an employee dis-
tributing antiunion literature in a work area, to tell Peterson
about it and he would take care of it. Similar statements
were made by Smith. Smith went on to say that ‘‘we would
be getting with the pro-Company employees and informing
them of the no-solicitation rule’’ (see infra fn. 9).
At this point, Floyd was excused from the meeting. Then,
Smith and/or Peterson told Corrado that they were unable to
determine whether it was he or Goodman who was telling
the truth. Corrado offered to take a lie detector test, but man-
agement said the matter was being dropped. Later that
evening, Smith and other members of management called
Goodman into the office, told her that they did not know
who had told the truth about her conversation with Corrado,
and told her to abide by the ‘‘no-soliciting policy.’’9
My findings as to the events on January 13 are based on
a composite of credible parts of the testimony of Corrado,
Floyd, Peterson, and Smith. To the extent inconsistent with
my other findings, I do not credit Peterson’s or Smith’s testi-
mony that Corrado and Floyd evinced satisfaction with man-
agement’s statement that the limitations on literature distribu-
tion would extend to both prounion and antiunion employees.
Johnson, Peterson, and Smith all credibly testified that so
far as they knew, no employee-whether in favor of or against
the Union—had violated the solicitation/distribution rule after
this January 13 conference.
7. Additional efforts by Supervisor Watkins to
distribute ‘‘vote no’’ paraphernalia to employees
For several months before mid-January 1993, employee
Crain had worn prounion paraphernalia at the plant every
day, and also had handed out union literature at the plant.
On a day about 2 weeks before the scheduled election, as
Crain was coming from the locker room on his way to leav-
ing the plant for the day, Supervisor Watkins asked Crain
whether he wanted to trade his union pin for a ‘‘vote no’’
hat. Crain said no. Watkins said, ‘‘Are you sure?’’ Crain
said, ‘‘Yes, I’m sure.’’ Crain testified that when Watkins
first came up to him and said this, Crain thought it was a
joke, but that when Watkins asked the same thing again, then
‘‘I took it as it wasn’t a joke.’’
On a day between January 13 and 29, Supervisor Watkins
asked various employees whether they wanted a ‘‘vote no’’
shirt. If an employee said that he wanted one, Watkins went
back and got it. After responding ‘‘no’’ to such an inquiry,
Corrado while working at his machine later that day saw
Watkins walking by with some ‘‘vote no’’ shirts on his
shoulder. Corrado said that he wanted a shirt because he had
had a hydraulic spill and was going to use it. Watkins
laughed and kept on walking.10
A few days before the scheduled election, when second-
shift employee Floyd was working behind his machine, Wat-
kins came by while carrying some ‘‘vote no’’ shirts on his
arm. He sternly told Floyd to ‘‘vote no,’’ but did not offer
him a shirt.
8. Activities by Supervisors Campbell, Patterson,
and Richards
McNew credibly testified that about a week before the
scheduled election, he saw admitted Supervisor Jim Camp-
bell with antiunion paraphernalia in his hands walk from em-
ployee to employee through the plant, and talk to them while
they were supposed to be working. Campbell unexplainedly
failed to testify.
McNew credibly attributed similar activities to Supervisor
Kent Patterson. Patterson testified to the following effect:
On two days a week or a week and a half before the
scheduled election, he came to work wearing a ‘‘vote-
no’’ shirt and a ‘‘vote-no’’ ball cap with a ‘‘vote-no’’
button. On these occasions, several employees came up
to him and asked where they could get a ‘‘vote-no’’ hat
and/or a T-shirt. In response to each of these queries,
Patterson ascertained what size they wanted, and then
brought them the size they wanted. He handed out these
‘‘vote-no’’ items on working time and in working
areas. Patterson never asked any employee if he wanted
1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 My findings as to the Prior-Raderman incident are based on the
uncontradicted testimony of employee Gerald Wood, who was not
close enough to overhear what Prior said to her. Prior and Raderman
did not testify.
procompany paraphernalia, never asked any employee
to wear them, and never initiated any conversation with
any employee about obtaining them. Nor did Patterson
carry through the plant any more shirts than had been
requested by employees.
In view of Campbell’s unexplained failure to testify, I
inter from McNew’s testimony that Campbell’s conversations
with employees during working time included suggestions
from him that they wear the paraphernalia he was concomi-
tantly carrying. However, I credit Patterson’s testimony,
which is consistent with McNew’s testimony, about Patter-
son’s conversations with employees.
In January 1993, Richards (admittedly a supervisor at that
time) gave out ‘‘vote no’’ paraphernalia, during working
time and in working areas, to employees who asked for
them. He never asked an employee if he wanted a ‘‘vote-no’’
cap, shirt, or button when the employee had not brought the
matter up.
9. Supervisor Koch’s distribution of vote-no
paraphernalia
The pleadings establish that at all material times, Dennis
Koch was a supervisor within the meaning of the Act. Em-
ployee Roberts testified that on two or three different occa-
sions in December 1992 and January 1993, including an oc-
casion after January 13, he saw Koch drive an electric scoot-
er around department 1011, talk to employees (outside of
Roberts’ earshot) who were walking from their break area to
their machines, and then give ‘‘vote no’’ T-shirts to some
employees but not others. Roberts further testified that on
one occasion after January 13 but before the scheduled Janu-
ary 29 election, Koch drove up with several red T-shirts say-
ing, ‘‘Stop the UAW,’’ and asked Roberts whether he want-
ed one. Roberts went on to testify that he said no, and that
Koch then said that he had been working for Respondent a
long time; that he had worked union and nonunion; that the
‘‘place’’ as it was right now was a good place to work; that
he knew there were ‘‘problems’’; but that if the employees
brought in a union, ‘‘the Company could get very nasty.’’
Roberts regularly wore union paraphernalia to work, and he
testified that Koch knew Roberts supported the Union.
Roberts’ prehearing statement to Respondent’s attorney
(see infra sec. II,E) states, ‘‘At no time did any manager of-
ficial or supervisor ever [offer] me a pro-Company shirt, cap
or button or [imply] I should wear one. I work in an isolated
area and third shift is pretty far removed from this sort of
thing.’’ Also, as to many matters he was a very hesitant wit-
ness. On the other hand, Koch was evasive as to whether he
asked Roberts if he wanted a union cap or shirt. Koch denied
stating to Roberts that if the Union came in, Respondent
could get nasty to work with or that things would get worse,
or implying that things would get worse. On balance, as to
this conversation, I credit Roberts. Further, because when
testifying for Respondent Koch was not asked about the
other distribution activities attributed to him by Roberts, I
infer from Roberts’ testimony that Koch took the initiative
in asking employees whether they wanted this vote-no para-
phernalia.
10. Distribution of ‘‘vote no’’ caps, during working
time and in working areas, by Supervisor Prior
and employee Raderman
The parties stipulated that at all times material to this pro-
ceeding, before May 1, 1993, Dennis Prior was a supervisor
within the meaning of the Act. Toward the end of January,
Prior, who was carrying a stack of ‘‘vote no’’ caps in a
working area of the plant, said something to employee Mary
Raderman, who at that time was supposed to be actively op-
erating a fork truck. Then, while still talking to her, he gave
her several of the caps. After that, he headed out of the area.
Raderman drove her fork truck behind him, and passed out
caps to other employees who at that time were supposed to
be actively working. There is no evidence that any manage-
ment officials saw her driving around handing out the ‘‘vote-
no’’ caps.11
11. Other antiunion activity during working time
Employee McNew credibly testified that after he heard
about the January 19 conference regarding union solicitation,
he saw employee Pete Bauman placing antiunion literature in
the break area, during working hours and after the regular
scheduled break. McNew further credibly testified that after
he heard about the January 13 conference, and while he was
actively working, he was approached by Paul Calkins, who
said that McNew did not need his union hat, he needed a
‘‘vote-no’’ hat. Bauman’s employee status is undisputed. The
General Counsel contends that Calkins, who is a salaried en-
gineer, is not a supervisor; and Respondent’s posthearing
brief describes him as a ‘‘non-supervisory engineer’’ (p. 49).
Production Manager Peterson testified in August 1993 that
Calkins was a member of management and was ‘‘manager of
quality engineering.’’ A memorandum from Vice President
Johnson dated May 13, 1993, states that Calkins had been re-
assigned to assuming responsibility for quality and engineer-
ing activities, and would continue to report to Johnson. I can
find no other record evidence bearing on Calkins’ status at
any time. Production Manager Peterson, an admitted super-
visor, testified that the no-solicitation rule does not apply to
‘‘supervisors or managers.’’ There is no evidence that any
admitted supervisor observed this activity by Bauman or
Calkins.
E. The Incident Involving Production Manager Peterson
and Employee Roberts
At about 7:30 a.m. on January 22, 1993, employee Roberts
had occasion to turn in some production reports and paper-
work at a point just outside Production Manager Peterson’s
office. At that time, Roberts was wearing a union hat. Peter-
son asked Roberts to come into the office and speak with
Roberts, whereupon he entered Peterson’s office. The two
men discussed possible ways to simplify moving a die in and
out of one of the blankers Roberts was working on. Then,
Peterson, who had been working for Respondent for 5 or 6
months, asked Roberts (a 5-year employee) ‘‘what some of
his concerns were, what some of the issues were, how [Re-
1001A. O. SMITH AUTOMOTIVE PRODUCTS CO.
12 The quotation is from Peterson’s testimony.
13 The Company’s employee handbook invites employees to ex-
press any disagreement with a policy or practice ‘‘through our ‘Open
Door’ and problem solving procedure. . . . Every question, problem
or suggestion will be considered and answered as quickly as pos-
sible.’’
14 Immediately preceding Roberts’ signature are the words, ‘‘I de-
clare under penalty of perjury that the foregoing affidavit is true and
correct.’’ I need not and do not consider whether the statement,
which is not notarized, in fact, constitutes an affidavit.
15 Among other things, I credit Peterson’s denial of Roberts’ testi-
mony that Peterson said in terms that there would be no open-door
policy if the Union won the election.
16 Also on July 2, 1993, Roberts signed a paper, tendered by com-
pany counsel either or after Roberts signed his statement, stating that
her only purpose in interviewing him was to investigate the facts and
prepare a defense to union unfair labor practice charges against Re-
spondent, that his job or his rights as an employee would not be af-
fected by his participation or nonparticipation is the investigation,
and that he had the right to join or not to join any union without
fear of reprisals. In view of Roberts’ demeanor when testifying, I
conclude that this document did not in fact fully reassure him.
spondent] could get better, what some of the problems
were.’’12 Roberts described some perceived safety problems.
Peterson said that they were being corrected but it would
take some time. Roberts said that he did not think anything
would change without some help from the Union. Peterson
asked Roberts why he wanted a union in the plant. Roberts
said that the employees needed job security and a contract,
‘‘some rules written down on paper, so that they cannot
change them at their discretion.’’ Peterson said that the
Union does not provide job security, that the jobs coming
into the plant are what provide the job security. Roberts said
that the employees did not have any fair grievance proce-
dures. Peterson said that Respondent presently had an open
door policy.13 He went on to say that he previously worked
for two unionized employers, that some union contracts per-
mit or require employees and the employer to communicate
through a third party such as a steward, and that under these
circumstances the existence of a bargaining representative
would add an extra step in the communication process be-
tween the employer and the employee and cause some griev-
ances to take a long time, even up to 2 years. Roberts said
that all he wanted was to get the ‘‘damn problems’’ fixed.
Peterson further said that if the Union came in Respondent
and the Union would negotiate about Respondent’s oper-
ations; and that ‘‘in negotiations we bargain. You gain, you
lose . . . you are negotiating one point versus another point
and there is always that possibility. There is no guarantee.’’
In addition, Peterson said that ‘‘You could lose a lot of what
you have before you gain the one thing that you wanted.’’
Roberts asked Peterson a lot of questions about his opinions,
Respondent’s ‘‘direction,’’ and Peterson’s past experiences
with unions. The conversation lasted from 45 minutes to an
hour. Peterson gave honest testimony that it was ‘‘friendly’’
in tone.
My findings as to the contents of this conversation are
based on a composite of credited parts of Peterson’s testi-
mony, credited parts of Roberts’ testimony, and a prehearing
written statement prepared by Respondent’s counsel, signed
by Roberts, and offered into evidence by Respondent without
limitation and received without objection.14 To the extent not
reflected in my findings, for demeanor reasons, I do not ac-
cept Peterson’s or Roberts’ testimony about what was said.15
Roberts’ prehearing statement to Respondent’s attorney fails
to include certain remarks to which Roberts testified before
me, and further states that Roberts did not remember what
was said. To the extent reflected in my findings as to what
occurred, I nonetheless credit portions of his testimony which
are not referred to in his prehearing statement, in view of Pe-
terson’s partial corroboration thereof and Roberts’ credible
testimony that four or five times Respondent’s attorney asked
him to sign the statement and he refused, she ‘‘finally’’ said
that it was ‘‘in his best interests’’ to sign (he did not remem-
ber at the hearing what, if anything, she said about why it
would be in his best interests), this ‘‘got [him] rattled,’’ and
the situation made him feel ‘‘scared.’’16 For similar reasons
and the additional reasons set forth in Radio Officers v.
NLRB, 347 U.S. 17, 51 (1954), I do not accept the assertion
in Roberts’ written statement that the January 22 conversa-
tion did not cause him to feel threatened or intimidated.
F. Conduct Allegedly in Connection with Article About
Ford Audit
After the Union withdrew its petition, several of the em-
ployees prepared, and mailed to their fellow employees,
newsletters dated April 29, May 29, and June 29, 1993,
which all had the same format, and which were directed to
maintaining the employees’ interest in the Union. The May
29 newsletter, which is the only one in the record, states,
‘‘Prepared for you by your co-workers that favor UNION
representation’’ (emphasis in original), and urges employees
to show support for the Union, attend union meetings, and
find out what needed to be done in order to install the Union
as ‘‘our’’ bargaining representative. That newsletter included
an article with the headline, ‘‘Management Misleads Ford Q-
1 Audit!/First Rule in [Business]: ‘Don’t Cheat, or Lie to
Your Customer’!’’ This article alleged that during a Septem-
ber 1992 inspection by Ford Motor Co., Respondent’s big-
gest customer, Respondent had given false charts to the qual-
ity inspector from Ford. The article further stated that the in-
spected products were in fact of good quality, and expressed
concern that use of falsified records might cause Respondent
to lose customers and, therefore, jobs.
Granite City Vice President Johnson credibly testified that
he was concerned about this article because he feared that it
might cause Respondent to lose Ford and others as cus-
tomers. He arranged for Ford, and some of Respondent’s per-
sonnel outside the Granite City plant, to review the article.
These reviews showed, to the satisfaction of all the review-
ers, including Ford, that the article was incorrect in its alle-
gations about misleading charts, and that the errors in the ar-
ticle were caused by the failure of the quality control inspec-
tors, who had provided the information on which the article
was based, to have a clear understanding of what goes on in
a review with a customer. Also, Johnson initiated a practice
of letting the inspectors sit in at meetings with customers. In
addition, management tried to find out who had written the
article, but nobody admitted responsibility. Neither the in-
spectors nor anyone else was ever disciplined or reprimanded
as a result of this article. Johnson testified that the employ-
ees’ reaction to this article was ‘‘mixed,’’ but that a majority
were very angry because they took it as a threat toward their
jobs. Although it is not wholly clear from his testimony
1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 This finding is based on the testimony of employee Corrado.
For demeanor reasons, I do not credit Johnson’s denial that he made
the quoted remarks. He admittedly believed that the newsletter had
been issued by the Union.
18 For cost-control purposes, the gloves were kept in the gauge
room in a locked box to which the ‘‘TQM person’’ (see infra sec.
II,G,3) had a key. The ‘‘TQM’’ room is next to the gauge room.
Schmitt testified that it would have been ‘‘easier’’ for Corrado to
use the radio to ask the ‘‘TQM person’’ to bring Corrado the gloves.
The record suggests that the ‘‘TQM person’’ is paid more than
Corrado.
19 Burton did not testify, and there is no evidence that anyone but
the participants could hear the conversation. Corrado, whose de-
meanor impressed me favorably, testified that the conversation and
its subject had been initiated by Burton.
20 My findings as to the June 29 incident are based on a composite
of a memorandum prepared by Schmitt that evening and credible
portions of Schmitt’s and Corrado’s testimony. For demeanor rea-
sons, I do not credit Schmitt’s denial of any discussion with Corrado
about the newsletter article, Schmitt’s testimony that he did not then
know that Corrado had written this article, Schmitt’s denial that he
directed obscenities to Corrado, or Schmitt’s denial that Stack (who
did not testify) said anything to him. Schmitt’s memorandum admits
being advised that Corrado had not been talking with Burton
throughout the period between the two occasions when Schmitt saw
them talking. The sequence of events as testified to by both Corrado
and Schmitt is difficult to reconcile with Schmitt’s testimony that
Corrado had obtained his new gloves by the time of his conversation
with Schmitt at Corrado’s machine in Stack’s presence.
21 This finding is based on Roberts’ testimony. Richards testified
that he could not ‘‘recall’’ any ‘‘conversations’’ with Roberts about
the Union, and that Richards did not tell Roberts, ‘‘I know you are
whether he was attributing this anger to the publication of
the article or to the alleged company conduct described
therein, I am inclined to think that he was describing the em-
ployees’ perceived reaction to the former activity.
After concluding the investigation of the article’s accuracy,
Johnson conducted various group meetings with employees,
at which he told them about the investigation and explained
that Ford had not been misled. At one of these meetings,
which meeting employees were required to attend but which
did not include any employees from ‘‘quality,’’ Johnson said
that when he first saw the article, he was really upset, but
that then he had decided in all fairness to conduct an inves-
tigation, that Respondent had had nothing to hide and every-
thing was fine, and that ‘‘this was just the UAW trying to
stir things Up.’’17 So far as the record shows, the Union
never apologized to Respondent or the employees for any
part the Union may have played in connection with this arti-
cle.
The article had in fact been written by employee Corrado,
who is an operator and not an inspector, on the basis of in-
formation which he obtained from various other employees.
Corrado was among the employees who attended, about June
28, the meeting where Vice President Johnson had attributed
the quality-control article to the UAW’s desire to stir things
up. On the following day, en route to the restroom, Corrado
encountered and greeted employee Lowell Burton, who was
standing near his machine and about 25 feet from Corrado’s
work station. While the two were exchanging greetings, Shift
Supervisor Schmitt (whose supervisory status is established
by the pleadings) drove by in an electric scooter. After visit-
ing the restroom, Corrado returned to his machine. About a
half hour after this chat with Burton, Corrado’s work gloves
developed a hole, and he headed for the gauge room for
some new work gloves. On this errand, he again went by
Burton’s machine. Burton stopped Corrado and asked him
about the meeting which Johnson had held the day before.
After they had been chatting for 2 minutes at most, Schmitt
again drove by. This time, he stopped and asked Corrado
what he was doing ‘‘over here.’’ Corrado said that he was
going to the gauge room to get a pair of gloves. Schmitt,
who normally does not curse, said that Corrado had been in
Burton’s work area for at least a half hour, and obscenely
ordered Corrado to return to his machine.18 Corrado did so.
Then, Schmitt asked Burton what Corrado had been doing in
Burton’s work area. Burton truthfully told him that Johnson’s
meeting had been the subject of the conversation, and un-
truthfully stated that the conversation and its subject had
been initiated by Corrado.19
Schmitt thereupon looked at Corrado, and saw that he was
not operating his machine and was talking to Jamie Stack,
a fork lift operator. In the belief that Schmitt had been angry
in ordering Corrado back to his machine because Schmitt be-
lieved Corrado and Burton had been chatting throughout the
half-hour interval between Corrado’s trip to the restroom and
his aborted trip for the gloves, Corrado waved Schmitt over
and asked Stack to tell him where Corrado had been 15 min-
utes earlier. She said that Corrado had been at his machine
for a while before leaving it to get some new gloves. Schmitt
told Corrado that if he needed gloves, he should radio the
‘‘TQM person,’’ who would bring him some. Corrado admit-
ted that he had been wrong, but said that his second con-
versation with Burton had occurred because Burton had
called him over, and that if Schmitt did not believe Corrado,
Schmitt should ask Burton. Schmitt said that he already had,
and that Burton had said Corrado had asked his opinion of
Johnson’s meeting ‘‘on union letters and accusations.’’
Schmitt went on to say that he had no problem if Corrado
went to Burton’s machine because Burton asked for his help
on a work problem. However, Schmitt said, if Corrado want-
ed opinions from people on Johnson’s meeting, Corrado
should ask them on break and lunch and not during produc-
tion time. Corrado said that he did not appreciate Schmitt’s
‘‘hollering’’ at him, and that if Corrado did something
wrong, Schmitt should tell him about it, and it would not
happen again. Schmitt said, ‘‘Joe, you were wrong . . . if
you’re interested in what people think about the meeting we
had yesterday, then you would stop writing articles about this
Company that are pissing people off.’’ Corrado said that he
did care about the people out there. Schmitt said that he
hoped this was true, and drove off.20
G. Alleged Unfair Labor Practices Through
Jerald Richards
1. Events while Richards was admittedly a supervisor
Respondent stipulated that Jerald Richards was a super-
visor before May 1, 1993.
About Thanksgiving 1992, on a day when third-shift em-
ployee Roberts had begun work early and before the end of
the second shift, Second-Shift Supervisor Richards walked up
to Roberts when he was heading for his work area and told
him that Richards knew who was going to the union meet-
ings.21
1003A. O. SMITH AUTOMOTIVE PRODUCTS CO.
going to Union meetings.’’ To the extent that their testimony may
differ, for demeanor reasons I credit Roberts.
22 My findings in this paragraph are based on Corrado’s testimony.
Richards admitted having conversations with Corrado about the
Union, and did not deny Corrado’s testimony about their content.
For demeanor reasons, I credit Corrado’s testimony about their fre-
quency.
23 My findings as to this incident are based on Pakovich’s testi-
mony. Richards testified that he did not ‘‘recall’’ any conversations
with Pakovich about articles which were appearing in the union
newsletter, and denied asking him, or any other employees, who was
writing the articles for the union newsletter. Schmitt testified for Re-
spondent, but was not asked about this incident; Pakovich testified,
in effect, that Schmitt observed the two men talking although
Schmitt may not have been close enough to hear what they said. For
demeanor reasons, I credit Pakovich.
About late December 1992, while employee McNew was
working, Richards initiated a conversation by asking him
when the next union meeting was, to which McNew replied
that he could not tell Richards that. Richards had known
McNew for 6 or 7 years, during which period Richards had
always been a supervisor and McNew an employee. Richards
credibly testified to knowing since the first union campaign
in 1987 or 1988 that McNew favored unions. McNew wore
prounion paraphernalia in the plant, and on several occasions
orally expressed (and sometimes volunteered) support of the
Union to Richards, and on several occasions had asked Rich-
ards, during conversations about the Union, how he felt
about things; in response, Richards would express his views
on unions. During the union campaign, on a date or dates not
shown by the record, McNew told Richards that ‘‘this time’’
the Union had planned a new strategy which consisted of a
joint campaign for a simultaneous election among all of Re-
spondent’s satellite plants; the record fails to show whether
this was true.
During the organizing campaign, the Union periodically
held employee meetings, usually on Wednesdays. These
meetings were held just before the beginning of the second
shift, to which both Richards and employee Corrado, an open
union supporter, were assigned. Although the two men
worked in different areas, on Wednesdays Richards would
find a reason to be in Corrado’s department and, on many
occasions, would asked such things as, ‘‘What’s happening
today? What have you got planned for us next?’’ Later,
Richards asked Corrado whether the Union was going to
‘‘pull’’ the petition (as the Union eventually did do). Some-
times Richards would initiate these conversations by ap-
proaching Corrado at his work station or stop him in the
aisle when he was on a fork truck, and sometimes Corrado
would stop his fork truck in anticipation of questions from
Richards. In response to these questions, Corrado would try
to tell him nothing. During this period, Corrado and Richards
had many conversations about the Union; on occasion, this
subject was brought up by Corrado, who asked Richards
about union activity in Rockford, Illinois, where Respondent
operates another plant.22
2. Events after Richards allegedly became an employee
Employee Pakovich wore a union button in the plant, al-
ways supported the Union, on one occasion had been re-
proved by Richards for distributing prounion paraphernalia in
working areas during working hours, and testified that most
people in the plant, including Richards, would have known
that Pakovich supported the Union. On May 12, 1993, while
Pakovich was using a forklift to pick up a basket, Shift Su-
pervisor Schmitt and Richards drove up in a scooter to count
baskets. Richards came over to Pakovich and asked him if
he knew who was writing articles in the union newsletter.
Pakovich untruthfully replied that he did not know. Richards
then said that if Pakovich found out who it was, Pakovich
ought to let Richards know.23
The original charge which underlies the instant complaint
was filed on April 27, 1993. Thereafter, employee Pakovich
gave a statement to the NLRB which named Richards. After
giving this statement, Pakovich encountered Richards in an
aisle of the plant about May 19, 1993. Richards blocked
Pakovich and asked him if he knew anything about the labor
charges which the Union had filed against Respondent.
Pakovich untruthfully replied that he did not. Then, Richards
said that he had already had to talk to the Company, and that
all he had told the company lawyer was that Richards had
not said anything that was half as bad as had been said by
Sam Licavoli, whom Pakovich testimonially identified as
‘‘the corporate person in Milwaukee for A. O. Smith.’’
Pakovich testified that he responded untruthfully to Rich-
ards’ question about the ‘‘labor charges’’ because ‘‘I didn’t
feel that I had to tell him that I went down to the Labor
Board—you know, filed charges . . . maybe I didn’t feel
comfortable about telling him . . . that I was down there
. . . I didn’t know . . . if it was my right [not to tell him].
I didn’t look at it that way.’’ Pakovich went on to testify that
he did not feel it was any of Richards’ business.
3. Richards’ status after April 1993
At all times relevant here, Johnson, who is vice president
of the Granite City operations, has been responsible for the
overall operations of the Granite City plant. Also at all times
relevant here, Smith has been the human resources manager
at that plant, and Peterson has been the production manager
at that plant (see supra fn. 5).
At all relevant times, the plant has operated on a three-
shift basis. Before May 1, 1993, the production employees
reported directly to the ‘‘resource/manufacturing’’ (usually
referred to by plant personnel as a foreman, and so referred
to here) assigned to their department on their shift. Some of
the five ‘‘resource/manufacturing’’ foremen supervised only
one department on their shift, and some supervised more
than one. Between 1985 and the end of April 1993, Richards
was a ‘‘resource/manufacturing’’ foreman who supervised
department 1011 on the second shift. Richards was admit-
tedly a statutory supervisor at all material times during the
period before May 1993. Between at least October 1992 and
the end of April 1993, Daniel Borkowski was classified as
a manufacturing manager. During this period, all the
‘‘resource/manufacturing’’ foremen (including Richards) and
Borkowski reported directly to Production Manager Peterson.
As discussed infra, effective May 1, 1993, Richards’ job
title became ‘‘TQM facilitator,’’ which Respondent contends
is a nonsupervisory job. On June 15, 1993, Richards was
issued a job appraisal which stated that his ‘‘Major Respon-
sibilities’’ were:
1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 Richards’ appraisal forms for periods between May 1991 and
June 1993 show that Respondent was then seeking to develop the
ability of members of management to involve employee teams in
plant operations.
25 After becoming TQM facilitators, the former foremen left their
personal effects in their respective cubicles, which have not been re-
dedicated to any specific use and are centrally located. From the
honest testimony of employees Crain and Floyd that these exforemen
still use these cubicles, and from Peterson’s testimony that these cu-
bicles ‘‘are used by just about anybody because it is a good place
to meet with employees,’’ I infer that the exforemen continued to
use their respective cubicles for this and other purposes.
All second shift press operations . . .
Second shift Tooling . . .
Determine work assignments
Facilitate the teaming work ethic
Quality, efficiency, safety and ‘‘people’’ responsibilities
of above identified departments
In connection with this last entry (and, perhaps, all of
these entries), Production Manager Peterson testified on di-
rect examination as follows:
Q. . . . Your testimony earlier was that the
facilitators do not have people responsibilities. It was
the supervisors who had people responsibilities. Do you
remember that?
A. Yes.
Q. Is that true?
A. Yes.
Q. What is that in reference to then if [Richards] was
a facilitator?
A. This is his evaluation for the year previous so this
would be a one-year evaluation from the period of June
of ’92 to June of ’93 of which he was a supervisor for
eleven months so the evaluation is primarily based on
the performance of Jerald Richards for eleven months
of which he was a supervisor.
Q. So the description on the front page is a combina-
tion of eleven months as a supervisor and one month
as a facilitator?
A. Yes
The appraisal states that Richards’ ‘‘Time in Present Assign-
ment’’ was ‘‘8 years 6 months.’’ However, the appraisal fur-
ther states that one month previous, Richards had been as-
signed to his ‘‘present job.’’
Under the heading ‘‘Projects and Strategic Objectives
since Last Appraisal’’ were the entries:
Train Operators in doing their own die changes . . .;
Increase Operator performance levels to meet customer
requirements and elimination of overtime; Facilitate
teaming/operator ownership.
Richards was rated partly on the basis of his ‘‘Management
Competence.’’ Under this heading were entries which in-
cluded:
1. Delegating: . . . follows up on delegated respon-
sibilities to the degree that subordinates carry out as-
signments even when not under constant supervision.
. . . .
2. Developing Subordinates: Selects, trains and de-
velops subordinates so that they can function effectively
with a high degree of independence and without close
supervision. Identifies potential in subordinates and pro-
vides and recommends training and developmental ex-
perience to realize that potential.
. . . .
5. Organizing-Systematically organizes . . . work of
those supervised.
When Johnson took over the Granite City plant in late
1990, he entertained the intention of improving the quality
of Respondent’s products by, among other things, using em-
ployee ‘‘teams’’ in order to involve employees in this ef-
fort.24 At a time not clear in the record, Respondent intro-
duced to the employee ‘‘teams’’ a concept called
‘‘starpoint,’’ with each point on the star representing a sepa-
rate ‘‘discipline’’ involved in running a factory, such as
human resources, production, safety, and quality. On each
employee ‘‘team,’’ some employees were each given one of
these separate ‘‘starpoint’’ functions. On behalf of the team,
such ‘‘starpoint’’ employees meet with an appropriate mem-
ber of management to review matters involved in making the
plant more productive and competitive.
As part of this effort to improve product quality, a man-
agement reorganization was effected in the spring of 1993.
Among other things, Respondent eliminated the job title of
‘‘resource/manufacturing’’ which had been held by eight ad-
mitted supervisors (including Richards) who had reported di-
rectly to Peterson. In addition, Respondent created the job
title of ‘‘operations’’ shift supervisor, one for each shift, and
gave such jobs to three of the former resource/manufactur-
ing’’ foremen (Borkowski, Patterson, and Schmitt), who re-
ported directly to Peterson. Also, Respondent set up a
‘‘TQM’’ (‘‘total quality management’’) branch headed by
TQM coordinator Donna Romeo, an admitted supervisor who
reported directly to Peterson. Under her were 10 individuals
(divided among the three shifts), including Richards, to
whom Respondent gave the job title of ‘‘TQM facilitator.’’
Of these 10, 3 (including Richards) had previously been su-
pervisors, and the rest had not. Peterson testified that Re-
spondent decided to create the job of TQM facilitator be-
cause ‘‘we needed individuals who could isolate and work on
these items of continuous improvement involving both man
and machine, materials, methods, which would be training,
you know, uh, quality problems we have, just the whole
gamut, somebody who could isolate themselves just to the
problems.’’
All 10 of the TQM facilitators had been salaried person-
nel, and their salaries were not appreciably changed when
they became classified as TQM facilitators. The TQM
facilitators continue to receive pay on days they are out sick,
a benefit which is accorded all salaried employees but not
hourly employees. If figured on an hourly basis, Richards’
salary is greater than the average per-hour rate of Respond-
ent’s hourly paid production employees. Before the manage-
ment reorganization, the departmental supervisors each had a
cubicle which they used as an office. Since the reorganiza-
tion, the TQM facilitators have all occupied a room, referred
to by Peterson as the TQM room, where they work by a
large conference table and have no individual desks.25 The
TQM facilitators confer daily for 30 to 90 minutes at the be-
ginning and end of each shift, and all of them meet with
upper management twice a week.
1005A. O. SMITH AUTOMOTIVE PRODUCTS CO.
26 In August 1993, almost 4 months after seeing the ‘‘overhead,’’
employees Floyd and Crain, both of whom testified for the General
Counsel, gave erroneous descriptions of the overhead.’’ In evaluating
their testimony, I have taken these errors into consideration.
27 Determination of which individual employees are to work the
overtime determined by management is made by a ‘‘starpoint’’ em-
ployee. In some departments the determination is made by seniority,
and in some on a rotational basis. In Richards’ department, the em-
ployee who worked the fewest overtime hours is given the initial
offer of overtime hours, with ties being governed by seniority.
On April 30 or May 1, 1993, production manager Peterson
read to all of the employees a speech in which he stated, in
part:
First, we are going to have only one person for each
shift act as supervisor. This [person’s] role will be to
assure communications are consistent and accurate. This
will allow us to consistently communicate policy, pro-
cedure and treat everybody fairly under the same rules.
These individuals will be the only persons you should
seek for information. . . .
The second thing we are doing is creating a team
that will be headed up by Donna Romeo. We are call-
ing this team TQM (total quality management) team.
. . . .
. . . these teams will have as [their] primary role the
elimination of waste and the implementation of the so-
lution to the problems we have. Their responsibility
will be to identify the causes of lost time and scrap and
take corrective actions to reduce and eliminate these
causes. . . . At times the tasks that they will [under-
take] will require the help of many of you during nor-
mal working hours and on overtime. They will be a
part of your team. They will listen to and try to identify
your problems and work on the implementation of the
solutions and continually communicate with you.
They will follow the simple rule of [identifying] the
problem, plan the solution, make the changes, follow up
on the corrections and lastly and most important take
action . . . when the solution does not perform as it
was [supposed] to. These individuals have no one re-
porting to them. . . . These changes will take effect on
Monday [May 3.] But, it will take some time for the
transition to take place . . . and everybody to get used
to this new way of doing business.
During this speech, Peterson put on the wall an ‘‘over-
head’’ which showed that Romeo directly reported to him,
that the TQM facilitators (including Richards, who like the
others was identified by name) directly reported to her, and
that the three shift foremen (identified by name and ‘‘Oper-
ations’’ followed by their respective shift) directly reported
to Peterson.26
At least after giving this speech to the first shift, Peterson
opened the floor for questions. On of the employees asked
whether the TQM was ‘‘going to be a bird dog or somebody
watching us all the time;’’ to which Peterson replied,’’. . .
only if you make him.’’ Another employee asked what
would happen if Borkowski, the shift supervisor on the first
shift, was not there; Peterson replied that in that event, the
employees should go to the facilitator.
The job description for the TQM facilitators, which states
‘‘Job Analyzed 5/4/93,’’ states that the facilitator’s primary
function includes elimination of ‘‘too much transportation
(both person and part); excessive operator movement . . .;
too much waiting time/excessive machine movement; . . .
and unbalanced layout/worker load. Leads the PPI [product
process improvement] process.’’ The facilitator’s duties and
responsibilities include identifying who is connected with
waste; plotting lost time and cause of lost time; monitoring
the causes of scrap and the ‘‘corrective actions necessary to
eliminate’’ it; and facilitating ‘‘Operator involvement through
the PPI . . . process [, which] will be used where results
must be quickly altered —efficiency, scrap and lost time.’’
Also, ‘‘In shared responsibility with the Operational Super-
visor [the admittedly supervisory shift foreman], [the
facilitator] pays particular attention to operator performance
in areas of 1) Operator fatigue/boredom and 2) operations
that cannot be repeated exactly by another Operator to
minimize/eliminate inefficiency and potential injury.’’ The
May 5, 1993, job description of the ‘‘Coordinator/TQM’’
(Donna Romeo), to whom the facilitators immediately report
according to the organizational chart, includes’’. . . the
elimination of waste through proactive Operator owner-
ship. . . . General supervisory responsibilities for TQM
facilitators and of the shop floor in support of the team ap-
proach.’’ The May 5, 1993 job description of the ‘‘Oper-
ations Supervisor’’ (shift foreman) includes, ‘‘Daily monitors
operational efficiencies and interaction with teams and star
point leaders. . . . Motivates the star point leaders and shop
floor teaming. . . . Keeps and consistently administers com-
pany policy, rules and regulations. . . . Provides direction
and assistance to complete daily production schedules.’’
On May 13, 1993, Vice President Johnson issued a written
announcement which stated, in part:
Donna [Romeo’s] primary task will be to coordinate
the activities of the TQM facilitators in the elimination
of waste.
. . . .
Each shift will have a team of facilitators to provide
manufacturing-quality-maintenance-engineering exper-
tise to support team objectives for continuous improve-
ment in all activities through pro-active operator owner-
ship in quality, cost and delivery of our products to our
customers. The individual facilitators will be assigned
to specific teams and are charged with building the
teams into high performance units.
. . . .
Each shift will have an Operations Resource to pro-
vide leadership through coaching and shared vision to
our factory teams. All factory employees will report di-
rectly to their respective Operations Resource.
At a training session for TQM facilitators, all of them (in-
cluding Richards) were told that they are not supervisors.
They cannot hire, fire, issue discipline to, promote, demote,
or reward employees. TQM facilitators do not have authority
to permanently reassign employees to other departments,
grant employees time off, or authorize employee overtime.27
However, when the shift supervisor is on vacation or is ab-
sent for other reasons, his supervisory authority is exercised
by (according to Johnson) a TQM facilitator on that shift
who is selected by the shift foreman or (according to Peter-
1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
28 Because Peterson and Richards have a better opportunity than
Johnson to observe what is in fact done on the factory floor, as to
the substitute-supervisor matter I accept Peterson’s and Richards’
testimony. However, of arguably more significance in determining
whether facilitators are supervisors at all times is upper manage-
ment’s uncertainty about when they substituted for shift supervisors
and admittedly exercised the authority of a statutory supervisor.
29 Two of these proceeded from one employee, Tim Moline.
30 Team leaders are hourly employees, not claimed to be super-
visors. The selection of transferees is made by seniority or rotation.
son and Richards) each of the facilitators on that shift with
respect to that facilitator’s department.28 Each shift super-
visor has an annual vacation of 3 weeks, and may be absent
for other reasons for up to a week a year.
Before becoming the shift supervisor on the second shift
on May 1, 1993, Schmitt had had only a limited amount of
experience in department 1011, which Richards had been su-
pervising on the second shift. Also, about May 10, Respond-
ent transferred to department 1011 on the second shift 12
new employees who had never worked in that department be-
fore. During a period which ended about May 22, Richards,
who appeared on the new organizational chart as a TQM
facilitator on the first shift, worked in department 1011 on
the second shift (his shift before May 1993) for 4 to 6 hours
a day. According to Peterson, during this period Schmitt
‘‘had to get used to the paperwork that is generated, the cal-
culations, the efficiency and [Richards] had to pass on that
knowledge to him, how he calculated the efficiencies, under-
standing how the paperwork was, the schedules. The sched-
ules used in the press department is totally different than the
schedules used where Richard Schmitt was so [Richards]
tried to help him understand how the schedules are inter-
preted and how . . . the jobs proceed in order.’’
Most of the employees receive a total of 3 weeks’ paid va-
cation. They are required to take 1 week’s continuous vaca-
tion, during a period which they select early in the calendar
year. As to their remaining vacation days, they frequently,
and perhaps usually, take a day or two at a time. Requests
for such brief vacations must be initially approved by a
‘‘starpoint’’ employee in the department, who is not sup-
posed to permit more than two employees in the department
to be on vacation at the same time. Before May 1993, Rich-
ards approved two or three vacation requests a week. Be-
tween about May 18 and August 25, 1993, a period which
included a 3-week leave of absence by Richards, he ap-
proved four vacation requests from employees on the first
shift and three vacation requests from employees on the sec-
ond shift, including three requests from employees in the de-
partment and shift (department 1011, second shift) which
Richards had admittedly been supervising before May
1993.29 There is no evidence as to whether Schmitt, who
after April 1993 was the shift supervisor on the second shift,
was actively working when Richards approved these vacation
requests from second-shift employees. Borkowski, who after
April 1993 was the shift supervisor on the first shift, was on
vacation when Richards approved the vacation requests from
first-shift employees.
Before May 1993, an employee’s timecard was signed by
his immediate supervisor or, if he was not there, by a super-
visor from another department. Before May 1993, Richards
ordinarily signed the timecards of the employees whom he
supervised; after April 1993, timecards were ordinarily
signed by the shift supervisor. Employee Crain testified in
August 1993 that the facilitator signs the time cards when the
shift supervisor is not there. As previously noted, there is no
evidence that Schmitt, the shift supervisor on the second
shift, was on vacation or otherwise absent at any material
time. Richards signed the time cards for about 18 second-
shift employees for the week ending May 23, 1993. Peterson
testified that Richards did this because ‘‘he knew who the in-
dividuals were and he was there and he could verify . . .
that they were there, whereas Richard Schmitt was unaware
of who some of these people were. He had never met them
before. Some were new employees that had been hired in
within a month previous to that and [Richards] knew who
they were.’’ In addition, Richards signed the time cards of
about 23 first-shift employees the week ending June 27;
Borkowski, the first-shift supervisor was on vacation on the
day the timecards for that week were supposed to be signed.
Also, Richards signed the timecard of one first-shift em-
ployee for each of the weeks ending May 9 (Beeler) and
June 6 (Hawkins), respectively; and a timecard for a third-
shift employee (Schultz) for the week ending June 6, al-
though there is no evidence that the shift supervisor on that
shift was absent at any material time.
As a practical matter, employees cannot leave the plant be-
fore the end of their regular shift (because of, for example,
a family emergency) without a gate pass; an employee may
be discharged for leaving early without one. Before May
1993, gate passes were signed by the employee’s immediate
supervisor or, if he was unavailable, by the supervisor of an-
other department, Smith, or Human Resource Manager Di-
vine. Before May 1993, Richards normally signed all of the
gate passes (two or three a week) for employees in the de-
partments which he supervised. After April 1993, if an em-
ployee could not find a supervisor to sign a gate pass, the
employee went to his facilitator. On May 25, 1993, while
Borkowski was on vacation, Richards signed three gate
passes, at least two of them for first-shift employees.
When on duty during the ‘‘transition period’’ which ended
about May 22, Richards directed employees in what to do,
told them about safety on a press, and told them how to con-
duct team meetings. The first shift, whose sole immediate su-
pervisor (Respondent contends) is Borkowski, consists of 100
to 120 employees. Borkowski circulates in the plant by using
an electric scooter, spends about 25 percent of his time in
department 1011 (for which Richards is the first-shift TQM
facilitator), and usually does not attend that department’s
team meetings, all of which are attended by Richards. Rich-
ards testified, in effect, that after the reorganization the em-
ployees did not have a direct supervisor who was in contact
with them at all times. Peterson testified that on occasion, the
shift supervisor ‘‘may go ahead and act just on the [TQM
facilitator’s] recommendation.’’
Peterson testified that the facilitator may recommend the
temporary transfer of an employee, and Borkowski would
give Richards’ recommendation great weight, but that
Borkowski would actually effect the transfer. Richards testi-
fied that Borkowski ‘‘normally’’ handles a team leader’s re-
quest for assignment of more or fewer employees to his line,
the selection of individuals to be transferred being made by
the leader of the team where they are working.30 Richards
further testified that ‘‘normally,’’ temporary interdepartment
1007A. O. SMITH AUTOMOTIVE PRODUCTS CO.
31 No different conclusion is suggested by Star Fibers, Inc., 299
NLRB 789 (1990), cited by Respondent. The Board there found that
in context, this remark was addressed to the collective-bargaining
process; no such context was present in the case at bar.
32 Hubbard Regional Hospital, 232 NLRB 858, 870 (1977), enfd.
in relevant part 579 F.2d 1251, 1257–1258 (5th Cir. 1978); Pennsy
Supply, Inc., 295 NLRB 324, 325 (1989). ‘‘Ordinarily, the more im-
minent a representational election, the greater the presumption that
management’s expression of concern for employee welfare has an
impermissible motive.’’ NLRB v. Rich’s of Plymouth, Inc., 578 F.2d
880, 883 (1st Cir. 1978).
transfers are handled by Borkowski. However, Richards testi-
fied that if Borkowski were busy dealing with some other
problem in another part of the plant, Richards would in case
of an emergency (such as an employee injury) say to a par-
ticular team leader, ‘‘We can get by on one fewer guy on
your line. Would you send one over to the other line?’’; and
that the team leader would view Richards as having the au-
thority to give that instruction.
Richards performs production work only to relieve rank-
and-file employees for such things as bathroom breaks. Both
before and after becoming a TQM facilitator, he walked
around his department to see that it was running, investigated
line stoppages, and tried to get the line running again. John-
son testified that the facilitators’ basic job is that of problem
solvering. He further testified that when the facilitator de-
cides that the problem is a ‘‘people problem,’’ the perceived
‘‘people problem’’ is turned over to the shift supervisor. Pe-
terson testified that lost time may be caused by employee
error, operator negligence, or employee ‘‘goofing off;’’ and
in that event, the facilitator may recommend further training.
Peterson further testified that where scrap has resulted from
operator error, the facilitator is supposed to try to ‘‘fool-
proof’’ the job; that telling the operator to be more careful
is primarily the supervisors job but ‘‘we would hope’’ any
employee, including the facilitator, would tell this to an un-
safe operator; and that the facilitator would attempt to bring
up an employee’s low production by analyzing the method
he used, but not by reporting that the employee was not
working very hard. Richards testified that on occasion, where
he suspected that a particular employee was creating a ‘‘bot-
tleneck’’ on the production line, Richards would suggest to
the employee that he change his technique in order to reduce
fatigue; that Richards ‘‘would have thought’’ the employee
would try the technique suggested by Richards; and that he
would report to Borkowski any failure by the employee to
do so. Richards further testified that if he believed excessive
scrap was being caused by operator inattention, he would tell
the operator that he needed to pay attention and ‘‘Hopefully,
they would.’’ Also, Richards testified that he would inves-
tigate the reasons for an employee’s seemingly excessive ab-
sence from his machine and if Richards were not satisfied
with the employee’s explanation, would make a report to the
shift supervisor but would not tell the employee to go back
to work. Peterson testified that Richards’ shift supervisor,
Borkowski, would give great weight to Richards’ rec-
ommendations as to department 1011. Richards testified that
if he gave an employee a direction, Richards would expect
him to follow Richards’ direction, but that he did not think
that ‘‘in all cases’’ employees would expect that they were
required to follow his direction. For demeanor reasons, I
think Richards understated his expectations of obedience.
Employee Floyd credibly testified in August 1993 that the
TQM facilitators are constantly present in his department,
take notes, count machines, and ‘‘suggest you get back to
your job . . . in such a stern manner or way that you get
the feeling that this is somebody that if you didn’t pay atten-
tion to them when they were speaking that you will catch
some trouble for it somewhere later.’’ He further gave honest
testimony that he viewed TQM facilitators as supervisors (al-
though nobody ever told him they were supervisors) ‘‘or
somebody with more authority than an hourly person.’’ Em-
ployee Crain identified Shift Foreman Borkowski as Crain’s
immediate supervisor. An employee-authored flier to other
employees dated May 29, 1993, refers to the facilitators as
‘‘overseers’’ who are ‘‘ordered to’’ build the teams into
‘‘high pressure’’ units.
H. Analysis and Conclusions
1. Alleged threats and promises by Koch and Johnson
I agree with the General Counsel that Respondent violated
Section 8(a)(1) of the Act when Supervisor Koch told em-
ployee Roberts that the plant was presently a good place to
work, but that if the employees brought a union in, Respond-
ent could get ‘‘very nasty.’’ M. K Morse Co., 302 NLRB
924, 930 (1991).31
Moreover, I agree with the General Counsel that Respond-
ent violated Section 8(a)(1) when Vice President Johnson,
during employee meetings conducted by Respondent during
which it urged a vote against the Union, told employees (1)
that since the union organization started, some problems had
come to Johnson’s attention, including the problem of over-
time scheduling, and he would try to or was going to do
something but could not do anything ‘‘right now’’; (2) that
he intended to hold meetings with employees to address their
concerns and needs, that the employees should give Re-
spondent another chance, and that ‘‘these problems could all
be worked out’’; and (3) that Respondent’s new human re-
source manager had mentioned likely solutions to ‘‘the issues
that we had over time and the bid systems and . . . the
hours worked.’’ I conclude that Johnson thereby promised
benefits to the employees in order to discourage them from
unionization, in violation of Section 8(a)(1) of the Act.32
At the outset of the hearing, Respondent moved to dismiss
paragraph 5,D,2 of the consolidated amended complaint,
which is docketed as Cases 14–CA–22452 and 14–CA–
22549, was served on July 19, 1993, and alleges that about
January 22, 1993, Respondent, through Production Manager
Peterson and in violation of Section 8(a)(1), ‘‘Informed an
employee that employees could no longer approach Respond-
ent directly if they selected the Union as their collective bar-
gaining representative.’’ Respondent’s motion was based on
the alleged absence of a sufficient underlying charge. How-
ever, less than 6 months elapsed between the date of this al-
leged conduct (January 22, 1993) and the June 16, 1993,
service of the original complaint, which included this allega-
tion. Moreover, the charge and amended charge on which the
original complaint (docketed as Case 14–CA–22452) was
based allege unlawful interference with the same organiza-
tional campaign; indeed, the April 27, 1993, charge alleges
that on January 22, 1993—the same day as the conversation
attacked in paragraph 5,D,2 Respondent unlawfully ‘‘told
employees [Respondent] would remedy grievances that were
1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
33 The June 16 charge alleges, in part, that ‘‘since on or about No-
vember 1, 1992, [Respondent] has interfered with, restrained, and
coerced its employees . . . by promising to remedy [employees’]
problems if they reject the Union.’’
34 Respondent does not appear to dispute that Corrado engaged in
protected concerted activity by drafting an article, for a newsletter
to be distributed among his fellow employees for the avowed pur-
pose of sustaining their interest in unionization, which expressed
concern for employment security in reliance upon Respondent’s
quality control employees’ erroneous conception of the nature of a
review between Respondent and its customers. See Delta Health
Center, 310 NLRB 26 (1993), enfd. mem. 5 F.3d 1494 (5th Cir.
1993); Allied Aviation Service Co., 248 NLRB 229 (1980), enfd. 636
F.2d 1210 (3d Cir. 1980). I note (1) that the newsletter in which the
article appeared shows on its face that it was prepared and circulated
by Respondent’s employees in an effort to induce their fellow em-
ployees to support the Union; (2) that it was directed solely to such
employees, there being no evidence that either the employees or the
Union ever drew it to the attention of any of Respondent’s cus-
tomers (although company Vice President Johnson elected to send
it to Ford); (3) that the article stated that the Respondent’s products
brought up in the campaign.’’33 Accordingly, I conclude that
paragraph 5,D,2 is not barred by the 6-month limitation pe-
riod prescribed in Section 10(b). NLRB v. Overnite Express
Co., 938 F.2d 815, 820–821 (7th Cir. 1991); NLRB v.
Complas Industries, Inc., 714 F.2d 729, 732–733 (7th Cir.
1983); Recycle America, 308 NLRB 50 (1992); Buckeye
Plastics Molding, 299 NLRB 1053 (1990); Electrical Work-
ers (Paramax Systems), 311 NLRB 1031, 1053 (1993).
However, on the merits, I agree with Respondent that it
did not violate the Act when production manager Peterson
told employee Roberts that Respondent presently had an
open door policy, that some union contracts permit or require
employees and the employer to communicate through a third
party such as a steward, and that under these circumstances,
the existence of a bargaining representative would add an
extra step in the employer-employee communication process
and cause some grievances to take up to 2 years. See Pem-
broke Management, Inc., 296 NLRB 1226 (1989); Purolator
Products, Inc., 270 NLRB 694 (1984), enfd. 121 LRRM
2120 (4th Cir. 1981). Moreover, I agree with Respondent
that it did not violate the Act when Johnson said, during the
employee meeting described by Wood, that Respondent and
the employees did not need a union to solve problems in the
plant, but that these problems could be solved by resort to
Respondent’s long-standing ‘‘open door’’ policy. See Estab-
lishment Industries, Inc., 284 NLRB 121 fn. 2 (1987). Nor
did Respondent violate the Act when Peterson told Roberts
that during negotiations, the employees might gain and might
lose, and that they could lose a lot of what they had before
gaining the one thing they wanted; this is an essentially accu-
rate description of the collective-bargaining process. See
Fern Terrace Lodge of Bowling Green, 297 NLRB 8 (1989);
Liquitane Corp., 298 NLRB 292, 297 (1990); Clark Equip-
ment Co., 278 NLRB 498, 499–500 (1986); Uarco, Inc., 286
NLRB 55, 58 (1987).
2. Remarks by Supervisor Schmitt to employee Corrado
a. Respondent’s procedural defense
Paragraph 5(1) of the consolidated amended complaint,
which was issued on July 19, 1993, alleges that Respondent
had violated Section 8(a)(1) in that about June 29, 1993, Su-
pervisor Schmitt ‘‘told an employee that other employees
were upset because the employee wrote articles for a pro-
Union newsletter.’’ On August 23, 1993, on the first day of
the hearing and before the first witness testified, the General
Counsel stated that the complained of statement actually con-
sisted of the assertion that other ‘‘people’’—not other ‘‘em-
ployees’’—were upset. Respondent’s posthearing brief con-
tends that this allegation should be stricken because it is in-
sufficiently supported by the only charge filed after this
statement was allegedly made. That charge (filed on July 19,
1993) alleges, in part, that Respondent had violated Section
8(a)(1) ‘‘by advising employees that other employees were
upset by those employees’ union or concerted activities.’’
Because the alleged unlawful statement set forth in the July
19 charge is much the same as the June 29 statement at-
tacked in the July 19 complaint (particularly as explained by
the General Counsel in August 1993 before any testimony
was adduced), and because both the complaint and the Gen-
eral Counsel’s explanation were received by Respondent less
than 6 months after the event in question, I conclude that the
July 19 charge is sufficient to support the July 19 complaint.
NLRB v. Fant Milling Co., 360 U.S. 301, 307–309 (1959);
NLRB v. Overnite Express, supra at 820–821; Complas In-
dustries, supra at 732–733; Recycle America, supra; Buckeye
Plastics Molding, supra at 1053; Electrical Workers
(Paramax Systems), supra at 1053.
b. The merits
In determining the legality of Schmitt’s remarks to
Corrado, it is appropriate to consider their context. On the
previous day, Company Vice President Johnson had told em-
ployees who were attending a company meeting (including
Corrado) that Johnson had been ‘‘really upset’’ at the article
about the allegedly misleading ‘‘quality’’ charts, and that this
article ‘‘was just the UAW trying to stir things up.’’ Corrado
had in fact written this article, and Schmitt’s allegedly un-
lawful remarks to him revealed that Schmitt knew this.
Schmitt’s remarks further revealed his knowledge that the
meeting where Vice President Johnson expressed at least ini-
tial unhappiness with Corrado’s article had been the subject
of Corrado’s conversation with Burton on company time.
Also, Corrado was aware (1) that Schmitt entertained the rea-
sonable (although mistaken) belief that Corrado’s conversa-
tion with Burton when they were supposed to be actively
working had lasted a full half-hour, (2) that Schmitt had been
untruthfully advised by Burton that the Burton-Corrado con-
versation had been initiated by Corrado, and (3) that this
contact had so annoyed Schmitt that he had ‘‘hollered’’ at
Corrado and, contrary to Schmitt’s normal practice, had di-
rected obscenities at him. Further, Corrado had openly cam-
paigned in favor of the Union, which Respondent opposed,
and had been reproved by Respondent for distributing union
literature during his own time in work areas to other employ-
ees when they were supposed to be actively working.
In short, when Schmitt made his remarks to Corrado,
Corrado had very good reason to believe that Respondent
was angry at him because of his protected union activity (in-
cluding his activity in writing the ‘‘quality’’ article) and be-
cause of conduct which was associated with that activity al-
though it may not have been statutorily protected in itself.34
1009A. O. SMITH AUTOMOTIVE PRODUCTS CO.
were of good quality; (4) that so far as the record shows, the article
accurately reflected representations made to the writer by quality
control employees about quality control charts; (5) that Johnson in
effect conceded that the errors in such representations were not in-
tentional but, rather, were attributable to misunderstandings by qual-
ity control employees which Respondent took steps to correct; and
(6) that the article showed on its face that it was directed toward
the wholly proper purpose of preserving employees’ jobs, a normal
objective of union organization.
35 Lott’s Electric Co., 292 NLRB 297, 303–304 (1989), enfd. 891
F.2d 601 (3d Cir. 1989); Houston Coca-Cola Bottling Co., 256
NLRB 520 (1981); and Maremont Corp., 294 NLRB 11, 40 (1989).
36 I need not and do not consider whether Section 8(a)(1) was vio-
lated through the techniques used by Supervisor Patterson in distrib-
uting ‘‘vote no’’ paraphernalia. Any such findings would be cumu-
lative and would not affect the remedy.
37 See Gemco, 279 NLRB 1138, 1146 (1986); Frederick’s Inc.,
269 NLRB 165, 168 (1984); and Photo Drive Up, 267 NLRB 329,
329, 353 fn. 158 (1983). See also A. P. Green Fire Brick Co. v.
NLRB, 326 F.2d 910, 914 (8th Cir. 1964) (‘‘executives who threaten
in jest run the risk that those subject to their power might take them
in earnest’’).
In this context, I agree with the General Counsel that Schmitt
was threatening Corrado with reprisal for his protected union
activity when Schmitt stated that his vexation at Corrado’s
working-hours conversation with Burton about the meeting
had been exacerbated by the fact that that very meeting had
been caused by Corrado’s article, that Corrado’s action in
writing it evinced indifference to the opinions and welfare of
plant personnel, and that the opinions of plant personnel (in-
cluding management) were so condemnatory of the article (at
least after hearing Johnson’s explanation at the meeting of
the allegedly misleading charts) that an employee genuinely
concerned about these opinions would stop writing articles
which thus angered other plant personnel. See El-Tech Re-
search Corp., 300 NLRB 522, 524, 530, 537 (1990);
Wometco Coca-Cola Bottling Co., 255 NLRB 431, 443
(1981); United States Aviex Co., 279 NLRB 826, 831 (1986)
(telling employee that satisfied employees did not wear union
hats).
3. Alleged impression of surveillance
I agree with the General Counsel that Respondent gave
employees the impression of surveillance, in violation of
Section 8(a)(1) of the Act, when Supervisor Richards ap-
proached employee Roberts and told him that Richards knew
who was going to union meetings. NLRB. v. Gold Standard
Enterprises, 679 F.2d 673, 676–677 (7th Cir. 1982); Filene’s
Basement Store, 299 NLRB 183, 195, 234 (1990); Forrest
City Grocery Co., 306 NLRB 723, 727 (1992).
4. Alleged unlawful interrogation
a. Distribution of antiunion paraphernalia
An employer violates Section 8(a)(1) of the Act by distrib-
uting insignia or paraphernalia in such a manner as to pres-
sure employees to make an observable choice or open ac-
knowledgment concerning their position in a union cam-
paign.35 The credible evidence shows that techniques used by
Respondent’s supervisors to distribute ‘‘vote no’’ para-
phernalia among the employees effected such pressure. Thus,
Supervisor Watkins approached a group of second-shift em-
ployees, some of whom were wearing prounion insignia and
some of whom were not, and offered to give them ‘‘vote
no’’ buttons provided the employees would wear them. In
addition, he and Supervisor Koch asked various employees
whether they wanted a ‘‘vote no’’ T-shirt, and gave shirts to
those who said they wanted them. Moreover, Watkins and
Koch each volunteered ‘‘vote no’’ paraphernalia to employee
Roberts, who regularly wore prounion paraphernalia to work;
when Roberts refused, Koch advanced a threat of reprisal
against employees if the Union won the election. Further-
more, Supervisors Watkins and Leach asked employees who
were wearing prounion paraphernalia if they wanted to trade
them for ‘‘vote no’’ paraphernalia, and, when employee
Crain said ‘‘no,’’ Watkins asked him whether he was
‘‘sure.’’ Further, in the absence of any direct testimony as
to the conversation between employees and Supervisors
Campbell and Prior when distributing ‘‘vote no’’ parapherna-
lia, I infer from the undisputed employee testimony about
these supervisors’ out-of-earshot conduct that they volun-
teered such paraphernalia to employees.36 As to these inci-
dents, dismissal is not indicated by Wm. T. Burnett & Co.,
273 NLRB 1084, 1092–1093 (1984), or by McDonald’s, 214
NLRB 879, 883 (1974), both of which are relied on in Re-
spondent’s posthearing brief. In these cases, the supervisor’s
conduct evinced indifference as to whether the employee dis-
played the paraphernalia in question.
Respondent’s contention that its supervisors’ conduct with
respect to union paraphernalia did not violate the Act where
directed to employees who were open union supporters, or
because the concomitant Watkins-Corrado, Watkins-Crain,
and Leach-Crain McNew conversations were at least alleg-
edly conducted in a joking manner and between friends, is
irrelevant to Watkins’ January 6 conduct with respect to sec-
ond-shift employees who were not overt union supporters
and as to whom there is no evidence of any friendship with
Watkins, or to the conduct by Supervisors Koch, Campbell,
and Prior. Furthermore, Crain credibly testified that when
Watkins asked Crain whether he was ‘‘sure’’ he did not want
to substitute management’s tendered ‘‘vote no’’ parapherna-
lia for the union paraphernalia Crain was actually wearing,
he ‘‘took it as it wasn’t a joke.’’ Rather similarly, McNew
testified that he could not say ‘‘for sure’’ whether Leach had
been joking when he asked employees Crain and McNew to
trade their union paraphernalia for ‘‘vote no’’ paraphernalia;
‘‘it is not a joke to me when someone is messing with my
future.’’37 Nor is Watkins’ distribution of ‘‘vote no’’ buttons
shown to be lawful by employee Corrado’s conduct—when
Watkins offered him a button individually after unsuccess-
fully tendering buttons to a group of employees including
him—in stating that he would only accept Watkins’ entire
stock of buttons, thereby implying that Corrado would accept
buttons only under circumstances which would empower him
to halt their distribution to others. Humor is a not infrequent
technique in attempting to ameliorate stress imposed by a su-
perior.
b. Other forms of interrogation
My action in discrediting Williams’ testimony about
Smith’s remarks to her calls for dismissal of the complaint
allegation that he unlawfully interrogated her.
However, I find that Respondent violated Section 8(a)(1)
of the Act when (1) Production Manager Peterson asked em-
1010 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
38 This conversation preceded by 2 weeks the article about the
Ford audit. Richards testified, in effect, that he did not hear until
about 10 days after his May 12 conversation with Pakovich that an
article about Respondent’s quality control program was being pre-
pared. However, Pakovich did testify that for 2 to 3 weeks before
this conversation, ‘‘it wasn’t a secret’’ in the plant that organizing-
committee members were gathering information to write an article
about Respondent’s quality program.
39 Production Manager Peterson, Quality Control Supervisor
Campbell, Human Resources Manager Smith, and TQM Coordinator
Romeo.
ployee Roberts why he wanted a union in the plant; (2) when
Richards (at that time, admittedly a supervisor) (a) asked em-
ployee McNew when the next union meeting was (a question
which McNew declined to answer), (b) asked employee
Corrado whether the Union was planning to ‘‘pull’’ its peti-
tion, and (c) repeatedly asked him about what was happening
at union meetings and what the Union was planning to do,
during contacts which Richards regularly brought about
shortly after the Union’s regular Wednesday meetings; and
(3) when Richards, after having become a TQM facilitator,
asked employee Pakovich who was writing articles in the
union newsletter, told him to let Richards know if Pakovich
found out who it was,38 and asked him if he knew anything
about the labor charges which the Union had filed against
Respondent, in connection with which Pakovich named Rich-
ards in a statement to the NLRB Regional office. In so find-
ing, I note that Pakovich gave untruthful responses to Rich-
ards’ questions; that Corrado tried to give uninformative an-
swers and McNew declined to give an answer; that Produc-
tion Manager Peterson was a second ranking member of on-
site management at the plant; that prior to the interview
when Peterson interrogated Roberts, Supervisor Watkins had
made an unlawful effort to induce Roberts to substitute a
‘‘vote no’’ hat for the union cap which Roberts wore during
his conversation with Peterson, and Supervisor Richards had
unlawfully given Roberts the impression of surveillance over
union meetings; that the interrogation of Corrado was re-
peated and calculated; that none of the questioning by Re-
spondent’s management had a legitimate purpose or was ac-
companied by assurances against reprisal; that some ques-
tioned employees were asked to identify by name the em-
ployees who were engaging in certain union activity, and to
describe union activities of employees other than themselves;
that Respondent encouraged employee distribution of ‘‘vote
no’’ paraphernalia during working time while forbidding em-
ployees to distribute union material during working time (see
infra Part 2,H,5); that Respondent was admittedly seeking to
keep the plant from being unionized; and that Respondent’s
principal executive at that plant had unlawfully promised
benefits in an effort to bring about the Union’s rejection. See
NLRB v. Shelby Memorial Hospital Assn., 1 F.3d 550, 558–
560 (7th Cir. 1993); Jays Foods, Inc. v. NLRB, 573 F.2d
438, 444 (7th Cir. 1978), cert. denied 439 U.S. 859 (1978);
Central Transport, Inc. v. NLRB, 997 F.2d 1180, 1189–1190
(7th Cir. 1993); Action Auto Stores, 298 NLRB 875, 887
(1990), enfd. 951 F.2d 349 (6th Cir. 1991); Hickory Creek
Nursing Home, 295 NLRB 1144, 1147 (1989), enfd. 917
F.2d 1304 (6th Cir. 1990); and Mississippi Chemical Corp.,
280 NLRB 413, 415 (1986).
I agree with the General Counsel that whether or not Rich-
ards was a statutory supervisor after becoming a TQM
facilitator on May 1, 1993 (an issue which I find it unneces-
sary to address), Respondent was answerable for his conduct
on May 12 and 19, 1993, when he asked Pakovich about
who was writing articles for the union newsletter and about
the Union’s NLRB charges against Respondent. Where an
employer places an employee in a position where other em-
ployees could reasonably believe that the employee spoke on
behalf of management, the employer has invested the em-
ployee with apparent authority to act as the employer’s
agent, and the employee’s actions are attributable to the em-
ployer. Transit Management Services, 298 NLRB 721, 729
(1990). conclude that at least during the period in question
(May 12–19, 1993), Respondent put Richards in such a posi-
tion with respect to Pakovich. Thus, until May 1993, Rich-
ardson had admittedly been a supervisor on the second shift,
where Pakovich worked at all material times. When Richards
was admittedly a supervisor, his duties included approving
vacation requests and approving time cards and gate passes;
he also performed such duties on various occasions between
about May 18 and about June 8. During the ‘‘transition’’ pe-
riod which began on May 1 and ended about May 22, he
worked with at least four admitted members of manage-
ment,39 training new employees. Between May 24 and 28,
when admitted Supervisor Borkowski (the shift foreman on
the first shift) was on vacation, Richards admittedly pos-
sessed supervisory powers with respect to the first-shift em-
ployees. Moreover, even when announcing on April 30 or
May 1 that Richards and others had been made TQM
facilitators and were no longer supervisors, production man-
ager Peterson told the first-shift employees to go to the
facilitator if the admittedly supervisory shift supervisor was
not there, and that the facilitator would watch the employees
all the time if they made him do so. I conclude that Rich-
ards’ conduct with respect to employee Pakovich on May 12
and 19, 1993, is attributable to Respondent. Sears & Roebuck
de Puerto Rico, 284 NLRB 258 (1987); Classic Industries,
254 NLRB 1149, 1154–1155 (1981), enfd. 667 F.2d 205 (1st
Cir. 1981). I note, moreover, that Richards’ comment to
Pakovich in connection with Richards’ inquiries about who
was writing union newsletter articles—namely, that if
Pakovich found out, he ‘‘ought to’’ let Richards know—indi-
cates concern by Richards as a manager rather than as a fel-
low employee, a friend, or merely an inquisitive person; and
that management obviously had an interest in the unfair labor
practice charges against it, the subject of Richards’ later in-
quiry to Pakovich.
5. Alleged unlawful disparate enforcement of limits on
solicitation and distribution
As found supra section II,D,1, Respondent’s employee
handbook includes a rule (not claimed to be facially unlaw-
ful) which forbids solicitation during work time, and lit-
erature distribution during work time or in work areas. Para-
graph 6(B) of the complaint in its final form alleges that
about January 13, 1993, Respondent, in violation of Section
8(a)(1), ‘‘enforced [this] rule . . . selectively and disparately
by verbally reprimanding employees for distributing ‘pro-
Union’ literature in working areas while allowing its super-
visors to distribute ‘anti-Union’ buttons and apparel on work-
1011A. O. SMITH AUTOMOTIVE PRODUCTS CO.
40 The parties have tacitly assumed that for purposes of this case,
the right to distribute literature is indistinguishable from the right to
distribute election paraphernalia. Accordingly, I need not and do not
consider whether these rights are indistinguishable for all purposes;
cf. Oklahoma Installation Co., 309 NLRB 776, 789 fn. 29 (1992).
41 The Heartland conclusions of law found that the employer vio-
lated Sec. 8(a)(1) by, inter alia, ‘‘discriminatorily enforcing a rule
prohibiting campaigning for the Union in hallways while permitting
campaigning against the Union in the same areas’’ (307 NLRB at
168). The cease-and-desist order prohibits the employer from, inter
alia, ‘‘discriminatorily prohibiting campaigning for the Union in
areas where campaigning against it is permitted’’ (307 NLRB at
169). As to this matter, the notice substantially tracks the order (307
NLRB at 170).
42 Thus, Heartland may reflect the principle that a health-care em-
ployer’s disparate enforcement between employees and supervisors,
as to solicitation in a nonworking area (like, perhaps, a hallway)
where nonhealth-care employers may not normally forbid solicitation
by employees, is unlawful because the health-care employer’s action
in permitting solicitation by supervisors negates any contention by
the health-care employer that solicitation activity in that area would
disrupt the delivery of medical care. See Fairfax Hospital, supra at
312.
ing time and in working areas.’’40 Respondent’s posthearing
brief admits (p. 12), and I find, that it did in fact engage in
this alleged conduct. However, I agree with Respondent that
such conduct did not violate the Act. NLRB v. United Steel-
workers (Nutone, Inc.), 357 U.S. 357 (1958); Fairfax Hos-
pital, 310 NLRB 299, 299 fn. 3, 312 (1993), enfd. mem. 14
F.3d 594 (4th Cir. 1993); Summitville Tiles, 300 NLRB 64,
66 (1990). Nutone cannot be distinguished, as the General
Counsel seeks to do, on the ground that the supervisory con-
duct in disregard of the rule was coercive in itself; see
Nutone, supra at 359–360, 362–363; see, also, the partial dis-
sent in that case, 357 U.S. at 367–369.
At the hearing and in her posthearing brief, the General
Counsel relied on Heartland of Lansing Nursing Home, 307
NLRB 152, 160 (1992). I am unable to perceive any straight-
forward reading of Heartland which is reconcilable with
Nutone, a case not cited in Heartland. In Heartland, the
Board found that a health care facility maintained in its
handbook a written no-solicitation rule which was unlawful
on its face because it forbade solicitation in areas other than
immediate patient care areas; see 307 NLRB at 159–160,
168–169. In addition, the employer permitted supervisors to
talk against unions at nursing stations and in hallways, while
forbidding employees to talk about unions in hallways; the
decision does not specifically state whether the written rule
could lawfully or did in fact apply to nursing stations or hall-
ways. After describing the disparate enforcement as to hall-
ways, the Board found (307 NLRB at 160) that the employer
‘‘violated Section 8(a)(1) by applying its no-soliciting rule in
a discriminatory manner whereby it prohibited prounion em-
ployees from discussing [the union] in the hallways while
permitting antiunion campaigning in the same areas,’’ citing
Blue Bird Body Co., 251 NLRB 1481, 1485 (1980), a case
which dealt with discrimination between solicitation by
prounion and by antiunion employees in a factory.41 The
Board may wish to clarify the basis for this ruling in Heart-
land.42 Meanwhile, since I cannot reconcile the Board’s deci-
sion in Heartland with the Supreme Court’s decision in
Nutone, I am, of course, constrained to follow the latter.
At the outset of the hearing, Respondent moved to dismiss
paragraph 6(B) of the complaint, essentially on the grounds
summarized above. At that point, and before the receipt of
any evidence, the General Counsel stated that she would
show one incident where a supervisor had an employee dis-
tribute for him. The General Counsel’s posthearing brief
states, in part, that after the January 13, 1993, meeting (see,
supra, sec. II,D,6), ‘‘Respondent’s supervisors . . . continued
to permit anti-union employees to distribute in violation of
the rule,’’ describing, inter alia, the Prior-Raderman incident
(see, supra, sec. II,D,10). The General Counsel’s brief then
goes on to say (emphasis added), ‘‘Although the Employer’s
no solicitation/distribution rule appears to be valid on its
face, the evidence establishes that it is being applied dispar-
ately, even though it was ostensibly directed against both pro
and antiunion activities, because Respondent permitted other
employees and supervisors to distribute anti-union apparel in
working areas and during working time. See Columbus Mills,
303 NLRB 223, 230–231 (1991),’’ which based an 8(a)(1)
finding on disparate enforcement of a no-distribution rule be-
tween prounion and antiunion employees. Moreover, Re-
spondent’s posthearing brief includes a heading ‘‘The Com-
pany Did Not Enforce The Policy Against Pro-Union Em-
ployees While Allowing Anti-Union Employees To Violate
It,’’ followed by two and a half pages in attempted support
of the merits of this allegation (pp. 48–50). Accordingly, I
conclude that this issue is properly before me notwithstand-
ing footnote 81 on page 48 of Respondent’s brief, which
footnote contends that there should be no finding of violation
as to this issue because it ‘‘goes beyond any reasonable read-
ing of the allegations set forth in the Complaint.’’ See Ernst
Home Center, 308 NLRB 848, 849–850 (1992); Graham-
Windham Services, 312 NLRB 1199 (1993); Heartland,
supra at 152; Marshall Durbin Poultry Co., 310 NLRB 68
fn. 1 (1993). When an issue relating to the subject matter of
a complaint is fully litigated at a hearing, the judge and the
Board are expected to pass upon it even though it is not spe-
cifically alleged to be an unfair labor practice in the com-
plaint. Mine Workers, District 29, 308 NLRB 1155, 1156
(1992), and cases cited.
As Respondent does not appear to question, an employer
violates Section 8(a)(1) of the Act by permitting employees
to distribute antiunion material at times when and/or in loca-
tions where he forbids employees to distribute prounion ma-
terial. Nashville Plastic Products, 313 NLRB 462 (1993);
Standard Products Co., 281 NLRB 141, 142 (1986), enfd. in
material part 824 F.2d 291 (4th Cir. 1987); Columbus Mills,
supra at 230–231; and Capitol Records, Inc., 232 NLRB 228,
238–239 (1977). Further, the undisputed evidence shows that
although Respondent forbade employees to distribute
prounion material during worktime or in work areas, employ-
ees did distribute antiunion paraphernalia, without being dis-
ciplined therefor, in work areas and/or at times when the em-
ployee distributing these items and/or the recipient was sup-
posed to be actively working. Respondent contends that this
evidence does not establish an unfair labor practice, on the
ground that there is no evidence that such activity was ob-
served by management. However, the evidence as to the
Prior-Raderman incident shows that during working time and
in a working area, Prior gave ‘‘vote no’’ caps to Raderman
with at the very least the expectation, and perhaps with the
instruction, that she distribute them to her fellow employees
1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
43 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
44 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
during working time and in work areas, as she in fact did.
As Respondent tacitly concedes (Br. p. 49 fn. 83), the fact
that he gave her several caps shows that he contemplated she
would give most of them to other employees. Moreover, he
gave them to her during working time while she was on her
fork truck, which is a most unlikely and impractical place to
retain them until breaktime but is a very convenient means
of passing them out in work areas at once, as she in fact did.
Accordingly, I conclude that Respondent violated Section
8(a)(1) of the Act by permitting employees to distribute
antiunion material during times when and in locations where
employees were forbidden to distribute prounion material.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of this Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act by
engaging in the following conduct:
a. When Supervisor Koch told employee Roberts that the
plant was presently a good place to work, but that if the em-
ployees brought a union in, Respondent could get very nasty.
b. When Vice President Johnson told employees, for the
purpose of discouraging unionization, that Respondent would
try to solve their problems.
c. When Shift Supervisor Schmitt threatened employee
Corrado with reprisal for his protected union activity.
d. When Supervisor Richards told employee Roberts that
Richards knew who was going to union meetings.
e. When Respondent’s supervisors distributed ‘‘vote no’’
paraphernalia in such a manner as to pressure employees to
make an observable choice or open acknowledgment con-
cerning their position in a union campaign.
f. When Production Manager Peterson interrogated em-
ployee Roberts as to why he wanted a union in the plant.
g. When Supervisor Richards interrogated employees
McNew and Corrado about union activity.
h. When TQM facilitator Richards interrogated employee
Pakovich about the identity of the author of union news let-
ters and about the Union’s unfair labor practice charges
against Respondent.
i. When Respondent permitted an employee to distribute
‘‘vote no’’ paraphernalia during working time and in work
areas, while forbidding employees to distribute union lit-
erature during working time and in work areas.
4. The unfair labor practices set forth in Conclusion of
Law 3 affect commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
5. Respondent did not violate the Act when:
a. Human Resources Manager Smith talked to employee
Williams.
b. Vice President Johnson told employees that a union was
not needed to solve problems in the plant, but that these
problems could be solved by resort to Respondent’s ‘‘open
door’’ policy.
c. Production Manager Peterson told employee Roberts
that some union contracts permit or require employer-em-
ployee communication through a union representative, and
that under these circumstances, the existence of a bargaining
representative would add an extra step in the employer-em-
ployee communications process and cause some grievances
to take up to 2 years.
d. Production Manager Peterson told employee Roberts
that during negotiations, the employees might gain and might
lose, and could lose a lot of what they had before gaining
the one thing they wanted.
e. Respondent forbade employees to distribute union lit-
erature during working time and in work areas, while permit-
ting supervisors to distribute ‘‘vote no’’ paraphernalia during
working time and in work areas.
THE REMEDY
Having found that Respondent has violated the Act in cer-
tain respects, I shall recommend that Respondent be required
to cease and desist from such conduct, and like or related
conduct, and to post appropriate notices.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended 43
ORDER
The Respondent, A. O. Smith Automotive Products Com-
pany, Granite, Illinois, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Threatening employees with reprisals for activity on
behalf of International Union, United Automobile, Aerospace
and Agricultural Workers of America (UAW), or any other
labor organization.
(b) Promising employees benefits to discourage them from
such activity.
(c) Giving employees the impression of surveillance over
such activity.
(d) Distributing paraphernalia in such a manner as to pres-
sure employees to make an observable choice or open ac-
knowledgment concerning their position with respect to the
UAW or any other labor organization.
(e) Interrogating employees with respect to activity in con-
nection with the UAW or any other labor organization, in a
manner constituting interference, restraint, or coercion.
(f) Permitting employees to distribute antiunion para-
phernalia during working time and in work areas, while for-
bidding employees to distribute union literature during work-
ing time and in work areas.
(g) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its facilities in Granite City, Illinois, copies of
the attached notice marked ‘‘Appendix.’’44 Copies of the no-
tice, on forms provided by the Regional Director for Region
14, shall be posted by it immediately upon receipt and main-
1013A. O. SMITH AUTOMOTIVE PRODUCTS CO.
tained for 60 consecutive days thereafter, in conspicuous
places, including all places where Respondent customarily
posts notices to employees. Reasonable steps shall be taken
by Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
Paragraphs 5A, 5D,2, and 3 of the consolidated amended
complaint are dismissed. Paragraphs 5F and 6B of the com-
plaint are dismissed to the extent they allege violations not
otherwise found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
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 protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT threaten you with reprisals for activity on
behalf of International Union, United Automobile, Aerospace
and Agricultural Workers of America (UAW), or any other
union.
WE WILL NOT promise you benefits to discourage you
from such activity.
WE WILL NOT give you the impression of surveillance over
such activity.
WE WILL NOT distribute paraphernalia in such a manner as
to pressure you to make an observable choice or open ac-
knowledgment concerning your position with respect to the
UAW or any other union.
WE WILL NOT interrogate you with respect to activity in
connection with the UAW or any other union, in a manner
constituting interference, restraint, or coercion.
WE WILL NOT permit employees to distribute antiunion
paraphernalia during working time and in work areas, while
forbidding employees to distribute union literature during
working time and in work areas.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of your rights under
the Act.
A. O. SMITH AUTOMOTIVE PRODUCTS COMPANY