Foley-Wismer & Becker, a Joint Venture

National Labor Relations Board - Board Decisions

Aug 30, 1982

263 N.L.R.B. 793 (N.L.R.B. 1982)

FOLEY-WISMER & BECKER
Foley-Wismer & Becker, a Joint Venture and Dody
Norman. Case 19-CA-12268
August 30, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
On December 22, 1981, Administrative Law
Judge Frederick C. Herzog issued the attached De-
cision in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
General Counsel filed a motion to strike Respond-
ent's exceptions and, in the alternative, an answer-
ing brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NILRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
We also find totally without merit Respondent's allegations of bias and
prejudice on the part of the Administrative Law Judge. Upon our full
consideration of the record and the Administrative Law Judge's Deci-
sion, we perceive no evidence that the Administrative Law Judge pre-
judged the case, made prejudicial rulings, or demonstrated a bias against
Respondent in his analysis or discussion of the evidence.
The General Counsel in its answering brief filed a motion to strike Re-
spondent's brief which was submitted in support of exceptions to the Ad-
ministrative Law Judge's Decision, because it did not meet the require-
ments set forth in Sec. 102.46(b) and (c) of the Board's Rules and Regula-
tions. We hereby deny the General Counsel's motion to strike Respond-
ent's brief
2 In joining his colleagues in finding a violation of Sec. 8(aX1) here,
Chairman Van de Water does so solely on the basis that Respondent dis-
criminatonly applied a valid no-solicitation rule to employee Norman. He
does not join in any presumption that promulgation of a rule restricting
union solicitation and distribution during "working hours" or a "working
situation" is unlawful just because it is promulgated during a union orga-
nizational campaign, particularly here, where employees were informed
that the prohibition applied during working hours and did not apply
before work, or during their lunch period, under circumstances without a
rest period. The Chairman, therefore, would not rely on any ambiguity in
finding the rule invalid but does agree that the record supports the find-
ing that Respondent discriminatorily enforced the rule against Norman.
In adopting the Administrative Law Judge's Decision, Chairman Van
de Water does not rely in any way on T.R. W Bearinngs Division. a Divi-
sion of TR. W. Inc., 257 NLRB 442 (1981). As noted in Intermedics, Inc.
and Surgitronics Corporation, a wholly owned subsidiary of Intermedics, Inc.,
262 NLRB 1407 (1982), he approves the Board's Rules as expressed in
Essex International. Inc., 211 NLRB 749 (1974)
263 NLRB No. 107
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Foley-Wismer
& Becker, a Joint Venture, Richland, Washington,
its officers, agents, successors, and assigns, shall
take the action set forth in said recommended
Order.
DECISION
STATEMENT OF THE CASE
FREDERICK C. HERZOG, Administrative Law Judge:
On or about April 2, 1980, the charge herein was filed
by Dody Norman, an individual, alleging that Foley-
Wismer & Becker (hereinafter referred to as the Re-
spondent) violated Section 8(a)(1) and (3) of the National
Labor Relations Act by harassing, discriminating against,
and discharging employee Dody Norman. On May 30,
1980, the Acting Regional Director for Region 19 of the
Board issued a complaint alleging, among other things,
that the Respondent disciplined and discharged Dody
Norman in March 1980 because of Norman's union activ-
ities. The Respondent's answer, timely filed, admitted
certain factual allegations of the complaint but, generally
speaking, denied all wrongdoings.
This case was heard by me at Richland, Washington,
on November 6 and 7, 1980. All parties were afforded
the right to participate, to examine and cross-examine
witnesses, and to adduce evidence in support of their po-
sitions. In addition, the parties were afforded the right to
file briefs and to make oral argument at the conclusion of
the hearing.
Based on the record thus compiled, plus my considera-
tion of the briefs filed by counsel for the General Coun-
sel, the Charging Party, and the Respondent, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges and the answer admits that the
Respondent is a joint venture engaged in the business of
electrical contracting at Richland, Washington, that
during the 12 months preceding the issuance of the com-
plaint it sold goods and services valued in excess of
S500,000, that during the same 12 months it had both
direct and indirect interstate sales valued in excess of
S50,000, that during those same 12 months it had direct
and indirect purchases in interstate commerce in excess
of $50,000, and that at all times material the Respondent
has been an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
Based on these admitted allegations, I find and con-
clude that the Respondent is now, and at all times mate-
rial herein has been, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE I ABOR ORGANIZATION
The complaint alleges that United Association of Jour-
neymen and Apprentices of the Plumbing and Pipefitting
793
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Industry, Local No. 598, AFL-CIO (hereinafter called
the Union), is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
I find and conclude this allegation, which was ad-
mitted by the Respondent, to be true.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Near Richland, Washington, is the Hanford Works res-
ervation operated by the United States Atomic Energy
Commission. On this reservation an agency of the State
of Washington has been engaged in the construction of
three electrical generating plants. As is frequently the
case in projects of this magnitude, a number of different
contractors have been engaged. The Howard P. Foley
Company and Wismer & Becker are discreet corpora-
tions, engaged in the building and construction industry.
In connection with the construction of two of the three
electrical generating plants they jointly succeeded in ob-
taining the overall construction contract, a project de-
scribed during the hearing as entailing the expenditure of
nearly a quarter of a billion dollars. Throughout this
project they operated as a joint venture on the Hanford
Works reservation.
Simply stated, the Respondent's obligations in carrying
out the terms of its contract involve not only the con-
struction of the two electrical generating plants but, also,
keeping such a wealth of records, in highly organized
fashion, as to enable complete review of the manner in
which the project was carried out. In connection with
these obligations the Respondent has both a quality as-
surance and a quality control program. Some of this
work is done by inspectors, and other work is performed
by document control clerks and other clerical employees.
Dody Norman, the Charging Party, worked for the
Respondent from January 10, 1979, until she was dis-
charged on March 19, 1980. Initially she worked at the
Respondent's primary office on the construction site.
However, in October 1979 she was transferred to the
"field office," which served as the headquarters for the
inspectors on the construction site.
During her tenure Norman received pay raises in July
1979 and January 1980. While the Respondent argues
that such raises were more the product of the length
than the quality of her service to the Respondent, it is
clear that her last such pay raise, from the rate of $5.35
per hour to the rate of $6 per hour, resulted from the
view held and expressed by management officials in Jan-
uary 1980 that Norman "is a concerned and conscien-
tious Document Control employee. I recommend that
she be given a salary increase effective on her one year
anniversary date." The document in which this view was
exposed was signed by her department head, Joey
Gorman (Ottersen), and was countersigned by William
A. Liles, the Respondent's assistant project manager.2
It was located only a quarter mile from the Respondent's primary
office on the construction site. Employees went back and forth from the
primary office to the field office by means of a shuttle bus which took
only a few minutes to make the journey.
2 During the hearing the Respondent introduced both testimon) and
documentary evidence tending to indicate that Norman was not viewed
as a good worker by the Respondent's management. However, I reject
During August 1979 union organizational activity
began among the Respondent's document control and
quality control employees, on behalf of the Union. A pe-
tition for a representation election was filed, resulting in
an election on October 18, 1979, and the Board's certifi-
cation of the Union as the exclusive bargaining repre-
sentative of such employees on February 25, 1980. On
March 14, 1980, the Union and the Respondent began
collective-bargaining negotiations.
Dody Norman was an open and ardent advocate of
the cause of unionism during the election campaign in
the fall of 1979. When negotiations began she served as a
member of the Union's negotiating committee, attending
the first bargaining session. Thus, based on both the evi-
dence and the positions of the parties, it is clear that
Norman, from the time the organizational activities
began to the time she was discharged on March 19, 1980,
was regarded by both employees and management alike
as the project's prime advocate of unionism.3
William Liles, the Respondent's assistant project man-
ager, testified that it was he who made the decision to
discharge Norman, based upon her "failing to adhere to
a direct order" of March 12, 1980, to "discontinue the
interruption of other employees in their daily work
habits." Liles also testified that had Norman "not inter-
rupted other employees in their daily work habits from
March 12th [1980] to March 19th [1980]," she would not
such evidence as a predicate for the discharge of Norman, in light of the
repeated and clear testimony of Assistant Project Manager Liles regard-
ing the basis of his decision to discharge Norman. Nowhere within the
statement of reason supplied by Liles was any mention made of the var-
ious and sundry types of misconduct attributed to Norman, especially
during the fall of 1979, by both employees and supervisory witnesses for
the Respondent. Additionally, the Respondent's documentation of certain
warnings allegedly given to Norman cannot serve as a predicate for her
discharge. For, as with the evidence mentioned above, no such warnings
are among the reasons cited by Liles in explanation of his decision to dis-
charge Norman.
While it is clear that the events directly relating to her discharge did
not occur in a vacuum it is equally clear that the Respondent should not
now be heard to inconsistently attack Norman's standing as a "concerned
and conscientious Document Control employee" through testimony and
documentary evidence which was not known to or relied upon by the
person who made the decision about whether her work warranted her
retention as an employee. Instead, such make-weight, post hoc attempts at
justification have the effect of drawing the Respondent's stated reasons
and justifications for Norman's discharge into even greater doubt. It is
settled that an employer's distortion and magnification of an employee's
deficiencies cast a deep shadow over a claim that mere business judgment
was involved in the employee's termination. Cf. United States Postal Serv-
ice, 256 NLRB 736 (1981).
s Throughout the hearing the Respondent, both in the testimony of
Liles and others and through counsel, advanced the inference that Nor-
man's activities interfered with the Respondent's production standards.
Yet the Respondent's "evidence" in support of this contention consisted
of nothing more than generalities, and self-serving conclusionary state-
ments. Indeed, during Liles' testimony, I instructed the Charging Party's
counsel to cease cross-examination on this point, based upon my observa-
tion that it was a futility to seek details or specifics from Liles.
Obviously, the assertion of a claim that Norman interfered with pro-
duction, followed by a failure to provide a reasonable basis for the claim,
raises the inference that the claim was specious, and that it was advanced
in an attempt to magnify the alleged discriminatee's deficiencies as an em-
ployee. Under such circumstances it is not unreasonable to infer the pres-
ence of a discriminatory motivation on the part of the Respondent See,
for example, The Singer Company, 220 NLRB 1179 (1975); Daylin. Inc.,
Discount Division d/b/a Miller's Discount Dept. Stores, 198 NLRB 281
(1972); The J. L. Hudson Company, 198 NLRB 172 (1972); Selwyn Shoe
Manufacturing Corporation, 172 NLRB 674 (1968)
794
FOLEY-WISMER & BECKER
have been terminated. He stated that there were two,
and only two, incidents which caused him to determine
that Norman was failing to adhere to his direct order, set
forth above, of March 12, 1980.
One of the incidents was described by Liles as having
occurred on March 17 on the project's shuttle bus as it
made the quarter mile run between the two buildings at
the Respondent's jobsite. According to Liles, this inci-
dent consisted of Norman threatening Mary Clark, an
employee, with termination if she did not produce a $200
initiation fee and resume for the Union.
The other incident cited by Liles as having caused him
to determine to fire Norman consisted of Norman's
having detained three or four employees from their regu-
lar work on March 19, as she was talking to employees
Lori Roberts and Kathy Coombs.
As a backdrop for his decision, Liles testified that the
Respondent's job specifications required it to maintain
and promulgate to all its employees a rule prohibiting,
upon pain of possible discharge, unauthorized dues col-
lections or sale of tickets. Additionally, so Liles claimed,
Norman interfered with productivity, interrupted work,
and badgered and harassed fellow employees throughout
the election campaign, to the time she was discharged.
Liles testified that, during the election campaign, the
Respondent found it necessary to call employees into
meetings and explain to them that they could not talk
about organizing the Union except during lunchbreak,
coffeebreak, and after working hours.
However, Liles testified that throughout this period he
received reports from supervisors and managers to the
effect that Norman was interfering with the work of
other employees, ultimately leading him to call her into a
meeting on March 12, 1980.
According to Liles, he then warned Norman that the
Respondent viewed her interference with other employ-
ees as a "critical matter," that it was to stop, but that
"she could contact any employee she wanted any time
outside the regular working hours." Liles testified that
Norman voiced her understanding of, plus her agreement
with, the restrictions thus placed upon her.
Thus, so the Respondent apparently contends, Norman
entered her last week of employment with the Respond-
ent as something of a probationary employee, and was
shortly thereafter involved in the "two incidents" which,
according to Liles, sealed her fate as an employee of the
Respondent.
In light of Liles' claimed reliance upon the "two inci-
dents" as demonstrative of Norman's failure to abide by
the instructions given her during the meeting of March
12, it becomes important to examine their details.
A. Norman's "Threat" to Clark
On March 17 Norman used the shuttle bus to travel
between the Respondent's two buildings. The driver was
Ralph Webber. Mary Clark was also a passenger. While
in transit Webber and Norman got into a conversation,
part of which centered upon the Union's fee and/or
dues. Webber asked Norman whether the Union's dues
were different from those which he paid as a member of
the Teamsters Union. She replied by telling him that the
initiation fee was $200, and that it had to be paid by a
certain time. Clark, who had not been part of the con-
versation, then injected that she was unable to pay such
an amount at that time. Norman, with an admittedly mis-
chievous wink at Webber, said to Clark, "Well, if I were
you, I would beg, borrow, or steal it." 4
Liles' testimony to the effect that Norman threatened
Clark with termination of her employment during the
ride on the shuttle bus is disputed by Norman. Instead,
so Norman declared, it was several days prior to March
17 that, during a lunchbreak, she ran into Mary Clark
and Laurie Louden as they waited for the shuttle bus,
She asked Clark if she had given her a resume and Clark
replied that she had not. At that Norman told her that
there was a deadline for the receipt of the $200 initiation
fee, and that, if the deadline was missed, Clark would
not be permitted to vote on whether or not to accept the
tentative collective-bargaining agreement. And, Nor-
man's testimony continues, she went on to say that after
a contract was signed the Union would send letters to
the Respondent to cause the termination of those who
had still not joined the Union. As previously noted,
Clark did not testify. And Louden's testimony on this
point was merely to the effect that Norman once told
both her and Clark that their resumes were needed "for
the negotiations" and if things were "to go smoothly."
Indeed. when specifically asked by the Respondent's
counsel whether Norman had threatened to have either
Clark or her terminated, absent the payment of $200,
Louden emphatically responded that the subject was not
brought up at that time. Thus, notwithstanding my view
that Louden's demeanor evidenced a clear dislike for,
and bias against, Norman, Louden's testimony was not
supportive of the Respondent's position.
It seems clear that the credible evidence in this case
will not support the Respondent's proposition that
Norman engaged in misconduct by threatening Clark
during the course of a bus ride on March 17, 1980. While
I am aware that the Respondent contends that it could
and would have effectively countered Norman's testimo-
ny had Clark been present to testify, the fact remains,
however, that it did not, and, further, its inability in this
regard was not caused by any other party.5
The only evidence concerning this incident was Norman's testimony.
Though Webber was called to testify, he was unable to remember any
conversation at all between Norman and Clark, both of whom were
known to him. He did recall, however, that no inquiry was ever made of
him by the Respondent about any such conversation or incident. Clark
was not called as a witness, while the Respondent, through counsel, as-
serted that she was unavailable to testify. I find that, for whatever reason,
Norman's testimony on this point stands unrefuted.
' I do not accept the letter from Clark to Liles, dated March 19, as
sufficient to detract from the credibility I have attached to Norman's tes-
timony. The letter was, of course, unsworn and its contents were not the
subject of cross-examination. Nor do I view it as directly contradictory
of Norman in some important respects. Finally, I note that Liles, by his
own testimony, was not in possession of Clark's letter until sometime
during the termination interview with Norman I further note that the
Respondent's own minutes of that meeting make no mention of this inci-
dent. Finally, I note that the Respondent violated its own policy with re-
spect to verifying the truth and accuracy of the report it received on the
Clark incident for it stands unrefuted that, contrary to Liles' generalized
testimony about the Respondent's policy, the Respondent never contact-
ed the busdriver, Webber, to learn whether he recalled any such incident
as described by Clark And, though it received a statement from Laurie
Conrinued
795
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Norman's "Detention" of Roberts and Coombs
On March 19, 1980, employees Roberts and Coombs
went from the "document control" area in the Respond-
ent's primary office at the site to its field office. They
asked Norman to get some records out for their review.
When they received the records they laid them out on a
table and all three employees began working on them.
As they worked Coombs and Roberts asked questions of
Norman. Still working, Norman responded to their ques-
tions. This scenario continued for 5 minutes before being
interrupted angrily by Supervisor Lint, who told them
they were not supposed to talk about the Union on the
Company's time and "stormed out."
Coombs was not called as a witness. But Roberts testi-
fied, and she stated that it was not Norman who started
their talk about the Union. She also acknowledged her
own prior knowledge of the Respondent's rule against
discussion of the Union during "working time." As she
described the rule's enforcement it is clear that the only
effect of the rule was to compel employees to become
secretive. Thus, she recalled that Norman exclaimed,
"Now I am in trouble," upon observing Lint's approach.
Neither Roberts nor Coombs was disciplined in any fash-
ion for having violated the rule at the same time and in
the same manner as Norman.
Lint, who claimed to have observed the entire ex-
change between Norman, Coombs, and Roberts, testified
that it lasted only 45 to 90 seconds. His testimony sup-
plied no further details. Significantly, his testimony failed
to support any claim that Norman's conversation with
Roberts or Coombs resulted in any employee being "de-
tained" from work or experiencing a decline in produc-
tivity. The critical nature of this fact is shown by Liles'
testimony to the effect that, had Norman merely been
engaged in a conversation with Coombs and Roberts,
with no interruption of work, he would not have deemed
Norman to have engaged in misconduct. For, as Liles'
testimony made clear, such casual "workbench" conver-
sation was freely tolerated by the Respondent.
But it is not necessary to dwell upon this minor inci-
dent, obviously magnified e by Supervisor Lint and Liles.
For it could not possibly have been among the real rea-
sons relied upon by Liles when he determined to dis-
charge Norman. Liles testified that,
Actually, the deciding factor was the Mary Clark
incident. At reviewing my notes, it actually took
place on March 17th ....
Louden which spoke in general terms about Norman "pressuring" an em-
ployee Louden was training in the field, it is also clear that the incident
described by Louden could not, if consistent with Liles' testimony about
the reasons for Norman's discharge, have been one of the two incidents.
For Louden's "statement" is dated March 6, 1980, almost a full week
before the occurrence of the incidents described by Liles.
I Such overreaction by an employer to a violation of even a valid
work rule by an employee, especially when the rule has not been shown
to have been evenly enforced, or necessary to maintain production stand-
ards, supports the inference that such violation has been seized upon as a
pretext, and is supported only by an invidious and discriminatory motive.
Neptune Water Meter Co. v. N.LR.B., 551 F.2d 568, 570 (4th Cir. 1977);
Flowers Baking Company, Inc., 240 NLRB 870, 872 (1979); Sea-Land Serv-
ice, Inc., 240 NLRB 1146 (1979).
Surely, the Respondent cannot credibly claim that Nor-
man's brief response to questions from Roberts and
Coombs on March 19 was one of the two main incidents
forming a basis for her discharge in the face of Liles'
volunteered testimony that Norman's fate had already
been sealed by an incident which occurred at least 2
days prior thereto.
C. The Alleged Rule and its Violation
The Respondent has attempted to demonstrate the ex-
istence of valid, nondiscriminatory rules against "discus-
sion of the union" during working hours. It argues that
such a rule was, in essence, mandated by the Respond-
ent's job specifications, as well as by "disturbances" and
"diminished productivity" caused by discussions among
employees of the pros and cons of unionism, especially
when such discussions were carried on by Norman.
Moreover, based on this argument, it contends that the
warning extended to Norman on March 12, 1980, was
amply justified.
However, as previously noted, the "rule" in the Re-
spondent's job specifications (sometimes referred to
dunng the hearing as "site rules" or "project rules") ob-
viously cannot serve as a valid basis for warning or dis-
charging Norman because of conduct encompassed
within either of the two incidents previously set forth.
For this rule pertained only to unauthorized dues collec-
tion or sale of tickets. Norman's conduct, however,
cannot reasonably be said to have constituted a violation
of so narrow a rule. True enough, she did mention
"dues" in the presence of Clark on March 17, and she
did earlier advise Clark of the results to be anticipated
should Clark fail to join the Union or pay dues to the
Union by certain specified times. But nowhere has it
been demonstrated that Norman did more than convey
information to Clark. Moreover, the "collection" inci-
dent with Clark has already been demonstrated to have
played, at most, a very questionable part in Norman's
discharge.
But the Respondent's main reliance has been placed on
Norman's alleged violation of a "rule" which has not
been shown to have had any exact language. Instead, so
the Respondent claims, the discussions and disruptions
during both the preelection period and the period be-
tween the election and the beginning of negotiations led
it to see the need for a new rule. Accordingly, it held
meetings of employees to convey to them that they were
"not to discuss, either way, pro or con, the union, in a
work situation because it became very heated, emotional,
disruptive to work and caused bad feelings." Employees
were made to understand, so the Respondent claims, that
they could not discuss union policies or anything about
the Union during working hours. They could do so
before work, during their lunch period, and after work,
but not during the 4 hours in the morning and the 4
hours in the afternoon when work was supposed to be
done. From all this the Respondent argues that the rule
was conveyed to employees in such a way that they
could not have understood it to restrict solicitation or
distribution at times when employees were not actively
at work.
796
FOLEY-WISMER & BECKER
The evidence in this case, however, fails to support,
even belies, such claims and arguments. For according
even to the Respondent's evidence, this new rule was
conveyed to employees by word of mouth and, from all
that appears, never reduced to writing. Thus, it seems
scarcely surprising that none of the witnesses recalled
the wording, much less the essence, of the rule precisely
like any other witness on this subject matter. And the
Respondent's reliance upon the "clear intent" of the rule
seems badly misplaced, even were it not for the fact that
the holding in a case supporting such a rationale has,
since the hearing herein, been overruled. See T.R.W.
Bearings Division, a Division of T.R. W., Inc., 257 NLRB
442 (1981), overruling Essex International, Inc., 211
NLRB 749 (1974). Thus, whether considering this case
from a pre- or a post- T.R. W. Bearings standpoint, the
Respondent's "rule" must be considered as impermissibly
intrusive upon employees' rights to freely communicate
their thoughts concerning the merits or lack thereof of
unionism. Additionally, the rule must be found to be in-
valid on the basis of its ambiguity, 7 as well as upon the
basis of its disparate, discriminatory, and selective appli-
cation.8
The right of employees to communicate with each
other concerning the desirability of organizing is one
which is protected by Section 7 of the Act. For the ef-
fectiveness of organization rights "depends in some meas-
ure on the ability of employees to learn the advantages
and disadvantages of organization from others. Early in
the history of the administration of the Act the Board
recognized the importance of freedom of communication
to the free exercise of organization rights." Central Hard-
ware Company v. N.LR.B., 407 U.S. 539, 543 (1972).
? Employee Roberts was led to testify that the rule merely prohibited
discussion during "working time." Yet employee Louden testified that
the rule's prohibition extended to a "work situation." Employee Hughes
compounded this apparent conflict by stating that the rule prohibited dis-
cussion of union policies during "working hours." And, even with "clari-
fication" for Norman by Supervisor Otterson, the rule remained imper-
missibly broad and/or vague, for Otterson simply told Norman that she
wanted to hear no more union discussion from her from 7:30 until I I a.m.
(when Norman's lunch period began) or 11:30 a.m. until 4 p.m.
* The Respondent's rule was applied in an uneven fashion. The evi-
dence showed that "workbench conversation" was freely tolerated by the
Respondent. So were baby pools and pools of wagers on sporting events.
Indeed, such activity was not only well known to the Respondent's su-
pervisors, but also participated in by them.
Additionally, the Respondent seeks to draw a distinction between such
activities as are set out above and discussions concerning the merits of
unionism. It argues that the latter type discussions, and especially those in
which Norman participated, had the potential, and sometimes actual,
result of causing employees' tempers to flare, and their productivity to
fall. But its argument was supported by only unpersuasive, conclusionary
evidence, rather than any data or records, despite the clarity of its posi-
tion that the maintenance of reams of records of production was a pri-
mary activity of the very unit under discussion.
And, finally, the Respondent's argument and evidence fail to adequate-
ly explain its justification for maintaining distinctions between the various
types of conduct which were shown to have caused employees' tempers
to flare. For while the Respondent sought to squelch discussion of union-
ism on this basis, it appears to have remained rather sanguine regarding
the heated exchanges shown to have accompanied employee discussions
of such subjects as politics, or whether or not the "file exempt" (in an
attempt to avoid or evade payment of taxes).
In the face of this inconsistency I am compelled to conclude that the
Respondent's rule, and the Respondent's attempts to enforce it, was an
attempt on the part of the Respondent to illegally hinder and restrain em-
ployees in the exercise of rights protected by the Act.
"Direct personal contact is the most truly effective
means of communicating not only the option of collec-
tive bargaining, but the most compelling reasons for ex-
ercising that option." Belcher Towing Company, 256
NLRB 666, 667 (1981). Consequently, in seeking to dis-
cuss the desirability of selecting the Union as their bar-
gaining representative, the Respondent's employees were
exercising a right guaranteed to them by Section 7 of the
Act.
"No restriction may be placed on the employees' right
to discuss self-organization among themselves, unless the
employer can demonstrate that a restriction is necessary
to maintain production or discipline." N.LR.B. v. Bab-
cock & Wilcox Company, 351 U.S. 105, 113 (1956). The
facility where employees work has long been recognized
as a "place uniquely appropriate" for exercise of that
right of employees. Republic Aviation Corporation v.
N.LR.B., 324 U.S. 793, 801, fn. 6 (1945).
Thus, absent a valid rule or special circumstances em-
ployees are protected in such discussions. Hambre
Hombre Enterprises, Inc., d/b/a/ Panchito's, 228 NLRB
136 (1977).
I, therefore, find and conclude that the oral rule pro-
mulgated to employees by the Respondent and which,
generally speaking, prohibited discussion of the Union
"in a work situation," or "during working hours," is in-
valid, and is unlawful, as alleged in paragraphs 5 and 11
of the complaint. I shall, accordingly, require that the
Respondent rescind such rule, as well as all warnings and
discipline administered on the basis of its existences
D. Conclusion
The Respondent's actions in warning and discharging
its employee, Norman, were predicated upon the validity
of a rule which was clearly anything but valid. It follows
that the "rule," whatever its wording, must be rescinded.
Should the Respondent choose to replace it with another
rule it has but to incorporate within the actual working
of any rule it may promulgate sufficient clarifying lan-
guage, as the Board has time and again pointed out.
T.R. W Bearings Division, a Division of TR. W., Inc.,
supra.
Additionally, the Respondent shall be required to re-
scind the warning to Norman of March 12, 1980, and to
reinstate her to the position from which she was termi-
nated on March 19, 1980, with full seniority and other
rights and privileges intact. Backpay shall be as provided
hereinafter.
9 The General Counsel's prima facie cae has been established in this
case by the showing that Norman was warned and discharged pursuant
to an invalid and discriminatorily applied rule. The Respondent's justifi-
cations for its actions (i.e., the two "incidents" set forth previously
herein) have been thoroughly discredited by me, and, therefore, cannot
serve as any predicate for a defense that the Respondent would have
taken the action against Norman in any event, even absent any protected
activity on her part. Wright Line, a Division of Wright Line Inc. 251
NLRB 1083 (1980).
797
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Respondent, Foley-Wismer & Becker, a Joint
Venture, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act
by promulgating, maintaining, and enforcing a rule
which, though ambiguous, clearly prohibited and threat-
ened employees with discharge or other discipline if they
engaged in union or protected concerted activity which
it deemed violative of its rule against discussing the
Union during working hours or during certain hours of
the workday.
4. The Respondent has violated Section 8(aXl) and (3)
of the Act by discriminatorily warning and discharging
employee Dody Norman in an attempt to enforce the un-
lawful rule against discussing the Union, referred to
above, and/or in an attempt to cause her to cease her
other protected concerted activities on behalf of the
Union.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
ORDER l
The Respondent, Foley-Wismer & Becker, a Joint
Venture, Richland, Washington, its officers, agents, suc-
cessors, and assigns, shall:
I. Cease and desist from:
(a) Discriminatorily promulgating, maintaining, or en-
forcing its rule against discussion of the Union during
working hours.
(b) Discouraging union activity or membership in the
Union, or in any other labor organization, by warning,
disciplining, discharging, or otherwise discriminating in
any manner with respect to their tenure of employment
or any term or condition of employment.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act:
(a) Offer to Dody Norman immediate and full rein-
statement to her former position of employment, without
prejudice to her seniority or other rights and privileges,
and make her whole for any loss of earnings she may
have suffered by reason of her discriminatory discharge.
Backpay and interest shall be computed in the manner
prescribed by the Board in F. W. Woolworth Company, 90
NLRB 289 (1950), Florida Steel Corporation, 231 NLRB
651 (1977), and Isis Plumbing & Heating Co., 138 NLRB
716 (1962).
(b) Withdraw and rescind its unlawful rule, and notify
its employees in writing that it has taken such action.
10 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
rindings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
(c) Withdraw its warning to Dody Norman of March
12, 1980, and destroy, and hold for naught, any records
thereof.
(d) Preserve and, upon request, make available to the
Board and its agent, for examination and copying, all
payroll records and reports and all other records re-
quired to ascertain the amount, if any, of any backpay
which may be due under the terms of this Order.
(e) Post at its Hanford Works reservation, in the State
of Washington, its offices and facilities, copies of the at-
tached notice marked "Appendix." 1 7 Copies of said
notice, on forms provided by the Regional Director for
Region 19, after being signed by Respondent's authorized
agent, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that these notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
17 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to give
evidence the National Labor Relations Board has found
that we have violated the National Labor Relations Act
and we have been ordered to post this notice.
The Act gives employees the following rights:
To engage in self-organization, to form, join,
or assist any union
To bargain collectively through representa-
tives of their own choosing
To engage in activities together for the pur-
pose of collective bargaining or other mutual aid
or protection
To refrain from the exercise of any or all such
activities.
WE WILL NOT do anything that interferes with
these rights. More specifically,
WE WILL NOT discriminatorily promulgate, main-
tain, and enforce a rule against discussing the Union
during working hours or in a work situation. We
hereby notify you that any rule pertaining to this
subject matter has been withdrawn and abolished.
WE WILL NOT discourage membership or activi-
ties on behalf of United Association of Journeymen
798
FOLEY-WISMER & BECKER
and Apprentices of the Plumbing and Pipefitting In-
dustry, Local No. 598, AFL-CIO, or any other
labor organization, by warning or discharging em-
ployees or discriminating against them in their hire
or tenure.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed to them by
Section 7 of the Act.
WE WILL rescind and expunge from our person-
nel or other records any reference to the warning
issued to Dody Norman.
WE WILL offer to Dody Norman immediate and
full reinstatement to her former position of employ-
ment or, if that job is no longer in existence, to a
substantially equivalent position without prejudice
to her seniority or other rights and privileges, and
WE WILL also make her whole for any loss she may
have suffered as a result of the discrimination
against her, with interest thereon.
All our employees are free to join the above-named
labor organization, or any other labor organization, or to
refrain therefrom.
FOLEY-WISMER & BECKER, A JOINT VEN-
TURE
799