Curtin Matheson Scientific

National Labor Relations Board - Board Decisions

Apr 15, 1993

310 N.L.R.B. 1090 (N.L.R.B. 1993)

1090
310 NLRB No. 175
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In view of this disposition, we find it unnecessary to pass on the
hearing officer’s findings and recommendations concerning Peti-
tioner’s Objections 1, 2, 7, and 9.
2 The meeting concluded before the Board’s 24-hour prohibition
on captive-audience meetings went into effect.
3 Peyton Packing Co., 49 NLRB 828, 843 (1943), enfd. 142 F.2d
1009 (5th Cir. 1944), cert. denied 323 U.S. 730 (1944), quoted in
Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 fn. 10 (1944).
Labcraft Division of Curtin Matheson Scientific,
Inc. and United Food and Commercial Work-
ers International Union, Local 1099, AFL–
CIO–CLC, Petitioner. Case 9–RC–16068
April 15, 1993
DECISION AND DIRECTION OF SECOND
ELECTION
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held August 4 and 5, 1992, and the hearing officer’s
report recommending disposition of them. The election
was conducted pursuant to a Stipulated Election
Agreement. The tally of ballots shows 16 for and 17
against the Petitioner, with 1 challenged ballot, an in-
sufficient number to affect the results.
The Board has reviewed the record in light of the
exceptions and brief. Contrary to the hearing officer’s
recommendation regarding Objection 5, the Board has
decided to sustain that objection and orders that the
election be set aside and a new election held.1
Petitioner’s Objection 5 alleges that the Employer
interfered with employees’ free choice in the election
by prohibiting the distribution of union literature on
August 3, 1992, before an employer meeting. Between
4 and 6 p.m. on the afternoon before the day of the
election, the Employer scheduled a speech and recep-
tion at a motel. Attendance was mandatory at the
speech and optional at a reception to follow.2 The em-
ployees were informed that they would be paid for the
time that they spent at the meeting.
Prounion employee Judy Fryman arrived at the
motel with union handbills some time before 4 p.m.
The handbills contained questions that the Union urged
employees to ask the Employer at the meeting. Fryman
gave a handbill to employee Thane Fickle in the park-
ing lot before she entered the motel. She then passed
out handbills to an additional six to eight employees
in the lobby of the motel, where she was stationed at
about 3:55 p.m. when Division Vice President Jeff
Jenson and Corporate Vice President Edward McCaf-
frey arrived. Fryman continued to pass out handbills
inside the meeting room after 4 p.m., but only to those
employees whom she had not reached in the parking
lot and the lobby.
At 4:14 p.m., prior to Jenson’s starting the meeting,
Jenson noticed that Fryman was passing out handbills
inside the meeting room and conferred with McCaf-
frey. Both agreed that Jenson would tell Fryman to
stop the distribution. Jenson then approached Fryman
and instructed her to stop distributing the handbills and
to collect those she had already distributed.
By the time she received these instructions, Fryman
had distributed almost all of the handbills. After some
discussion, she complied with Jenson’s order, col-
lecting most of them and tucking them under her purse
as the meeting began. When employees asked Fryman
why she was collecting the handbills she had given
out, she replied: ‘‘Because Jeff [Jenson] said I can’t
pass them out.’’
The hearing officer concluded that the Employer’s
conduct did not warrant setting aside the election be-
cause it did not impair the Petitioner’s ability to com-
municate with employees or prevent employees from
receiving information from both sides so as to enable
them to make an informed choice as to representation.
According to the hearing officer, the Employer has no
obligation to provide the Union with equal access to
its employees in time reserved for a captive-audience
meeting, and the Employer’s conduct did not amount
to a prohibition on, or discipline for, asking questions.
Although we agree that there were no other impedi-
ments to the free exchange of information during the
campaign, we nonetheless find merit in the Petitioner’s
objection. It is unnecessary for us to decide here
whether it is an objectionable ban on distribution for
an employer to prohibit handbilling at a nonwork loca-
tion that the employer has reserved to deliver a cap-
tive-audience speech where there is no previously an-
nounced rule against such distribution. Here, the Em-
ployer went beyond merely halting the distribution of
union literature at its meeting; it also ordered that lit-
erature previously distributed when no ban was in ef-
fect be confiscated by a prounion employee, and made
that order so broad as to include handbills that had
been distributed outside the confines of the meeting
room and before the scheduled meeting time.
An employer cannot fairly rely on the well-estab-
lished principle that ‘‘[w]orking time is for work,’’3
when, as here, it requires a prounion employee to col-
lect union literature rightly in the possession of others.
Beyond the message on the material she handed out,
Fryman’s handbilling conveyed to employees her sup-
port for the Petitioner and her willingness to advance
its position in the representation campaign. By order-
ing her to collect the handbills, the Employer mani-
festly required her to repudiate that expression of
prounion sentiment or risk a charge of insubordination.
In essence, the Employer impermissibly ordered
Fryman to carry out the Employer’s antiunion instruc-
tions, and all of this occurred in the presence of the
1091CURTIN MATHESON SCIENTIFIC
4 Member Oviatt views the Employer’s order to Fryman to, in a
sense, align herself with the Employer’s antiunion position to be
analogous to requiring employees to assist the Employer in surveil-
lance of others’ union activities in violation of Sec. 8(a)(1). See,
e.g., Midland Transportation Co., 304 NLRB 4, 8 (1991), enfd. in
pertinent part 952 F.2d 1323 (8th Cir. 1992).
5 See generally Republic Aviation, supra at fn. 3.
other employees.4 At the same time, by requiring
Fryman to retrieve the union literature from those em-
ployees who had accepted it, the Employer singled out
those employees for its opprobrium in the presence of
their supervisors and fellow employees. Its order rea-
sonably tended to discourage all the employees in the
exercise of their right to engage in protected activity.
Fryman was ordered to collect handbills that she had
distributed not only in the meeting room, but in the
parking lot and motel lobby as well—locations where
there is no presumptive justification for an employer
ban on union solicitation or distribution.5 Because
Fryman complied with the Employer’s instructions by
collecting most of the handbills she had distributed, we
infer that at least some of the employees who had been
approached outside the meeting room were among
those whose handbills Fryman retrieved and that a sig-
nificant number of unit employees were approached in
the retrieval effort. Employees were also aware that the
Employer had prompted the collection. Thus, when
employees understandably expressed curiosity over
why Fryman was collecting handbills she had given
them only minutes earlier, Fryman explained that she
had been ordered by the Employer to do so. Even as-
suming for argument’s sake that the Employer could
ban distribution in the meeting room, we note that here
the Employer’s literature-retrieval efforts did not ex-
clude union literature distributed in the motel parking
lot and hallways and encompassed literature distributed
during nonmeeting time. Thus, in practical effect the
Employer discriminatorily promulgated an on-the-spot,
unlawfully broad no-distribution rule. See Stoddard-
Quirk Mfg. Co., 138 NLRB 615, 620–622 (1962).
In these circumstances, we find that the Employer
has interfered with the laboratory conditions necessary
for a fair election. We therefore sustain the Petitioner’s
Objection 5 and direct a second election.
[Direction of Second Election omitted from publica-
tion.]