Ichikoh Mfg.

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 1022 (N.L.R.B. 1993)

1022
312 NLRB No. 153
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On November 13, 1992, Administrative Law Judge William F.
Jacobs issued the attached decision. The General Counsel filed ex-
ceptions and a supporting brief, and the Respondent filed an answer-
ing brief.
2 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. 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.
3 All dates are in 1991 unless otherwise indicated.
4 In Our Way, the Board found that no-solicitation rules using the
phrase ‘‘working hours’’ were presumptively invalid because ‘‘that
term connotes periods from the beginning to the end of the work-
shifts, periods that include the employees’ own time.’’ 268 NLRB
at 395. In fn. 6, the Board stated that an employer could, however,
show that it ‘‘communicated or applied’’ the rule in such a way as
to convey an intent clearly to permit solicitation during breaktimes.
5 The judge’s reliance on Broadway, supra, is misplaced. In that
case no exceptions were filed concerning the judge’s finding that the
respondent had rebutted the presumptive invalidity of the no-solicita-
tion rule. We further note that the no-solicitation rule in that case
was found by the judge to be invalid under T.R.W. Bearings, 257
NLRB 442 (1981), which was overruled by the Board in Our Way.
Ichikoh Manufacturing, Inc. and David Branson
and Joseph A. Helton. Cases 9–CA–28922–1, –2
September 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Exceptions filed to the judge’s decision in this case
present the issues of whether the Respondent, in the
context of a union organizing campaign, promulgated
and maintained an unlawful no-solicitation rule,
discriminatorily imposed stricter adherence to plant
rules, coercively interrogated employees, created the
impression of surveillance among employees, solicited
grievances from employees with the implied promise
of rectifying them, directed the removal of union insig-
nia, issued a written reprimand to and subsequently
discharged employee Joseph Helton and suspended and
subsequently discharged employee David Branson be-
cause of their union activities.1
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions only to the extent consistent with this Deci-
sion and Order.
1. The General Counsel excepts to the judge’s dis-
missal of the complaint allegation that the Respondent
violated Section 8(a)(1) by promulgating and maintain-
ing an overly broad no-solicitation rule. We find merit
in this exception.
Since March 16, 1991,3 the Respondent has main-
tained the following rule:
The company prohibits solicitation or distribution
of materials by employees or non-employees on
company premises or during company business
hours except with prior written authorization from
human resources.
In the judge’s brief analysis of the no-solicitation
rule he stated that because, in practice, employees
‘‘have been permitted to solicit fellow employees and
distribute campaign materials to employees during
their lunch and rest breaks in non-working areas, the
presumption of invalidity has been overcome and there
is no violation,’’ citing Our Way, 268 NLRB 394
(1983), and Broadway, 267 NLRB 385 (1983).4
As the judge apparently recognized, the Respond-
ent’s rule is presumptively unlawful on its face. It re-
fers to ‘‘business hours,’’ rather than ‘‘working time.’’
In addition, it is subject to the reasonable construction
that solicitation on company premises, at any time, is
prohibited.
The judge reasoned, however, that the maintenance
of a presumptively invalid no-solicitation rule is not
violative of the Act, absent evidence that the rule had
been enforced in an unlawful way. We believe that the
judge has misapplied the burden of proof. If the rule
is presumptively unlawful on its face, the employer has
the burden of showing that it communicated or applied
the rule in such a way as to convey an intent clearly
to permit solicitation during breaktimes or other non-
work periods. See Pontiac Osteopathic Hospital, 284
NLRB 442, 465 (1987); J. C. Penney Co., 266 NLRB
1223, 1224–1225 (1983).5 In this regard, we note that
the Respondent has not shown that it has clearly com-
municated to all the unit employees to whom the pre-
sumptively invalid rule was disseminated that the rule
did not mean what it said and that employees could in
fact engage in solicitations during nonworking time.
The fact that some employees ignored the rule and
were not disciplined fails to meet the Respondent’s
burden of establishing that it conveyed to employees
‘‘an intent clearly to permit solicitation during
breaktime or other periods when employees are not ac-
tively at work.’’ Our Way, 268 NLRB at 395 fn. 6.
Accordingly, we find that the presumption of the rule’s
invalidity has not been rebutted and that by its promul-
gation and maintenance of the rule the Respondent has
violated Section 8(a)(1).
2. The General Counsel urges the Board to find that
on August 13, team leader Roy Yount unlawfully in-
terrogated employee Joseph Helton. Although the Gen-
eral Counsel discusses this incident in his brief accom-
panying his exceptions, he failed to except to the
judge’s dismissal of this violation in his exceptions.
Under these circumstances, we adopt the judge’s dis-
missal without considering the merits of the allegation.
See Board’s Rules and Regulations, Section 102.46(2).
1023ICHIKOH MFG.
6 Two weeks before the election the Respondent introduced a new
medical insurance policy with lower premiums. This conduct is not
alleged to be unlawful.
3. The General Counsel excepts to the judge’s dis-
missal of the complaint allegations that the Respondent
violated Section 8(a)(1) by creating the impression of
surveillance of the employees’ union activities, interro-
gating employees about their reasons for wanting a
union, and soliciting employee grievances with the im-
plied promise of rectifying them. We find merit in
these exceptions.
On July 30, several of the Respondent’s employees
met with a union organizer, and authorization cards
were distributed. On August 8, a second union meeting
was held and it was attended by several employees.
Additional authorization cards were distributed and
signed by employees.
On August 14, the Respondent held a series of 12
meetings with employees at which the union organiz-
ing campaign was discussed. Susan Kays, the Re-
spondent’s human resources manager, was present at
all these meetings, and told the employees that the Re-
spondent was against the Union, that she knew the
union meetings had been held at the Best Western
Hotel and when they had taken place, and that when
she heard about the union meetings she was angry.
Kays also advised the employees to continue to attend
union meetings to learn more about the Union.
During these August 14 meetings, Kays repeatedly
asked employees why they wanted a union. She said
that the employees did not need a union, that they
would be better off with the Company’s open-door
policy, and that the Respondent would be more lenient
than the Union about breaks. Kays predicted that the
Union would promise wage increases but that the
Company would not be able to afford them until 1994
and that union stewards would not do anything for em-
ployees.
Kays also discussed the employees’ health insurance
benefits. In response to an employee inquiry, Kays
stated that although the deductible and medical insur-
ance premiums were going up on the Respondent’s
present insurance policy, ‘‘we’re trying to see if we
can find another company, something better to suit our
needs.’’6
Several employees complained that team leaders dis-
played favoritism toward some employees and were in-
consistent in the way they treated employees. Kays ad-
mitted that inconsistency was a problem and that the
training courses for team leaders begun in the spring
of 1991 and the disciplinary procedures outlined in the
new employee handbook would correct the situation.
One employee, referring to the ‘‘employment at
will’’ clause in the July 1991 employee handbook,
asked Kays if she could be fired if she was absent and
had a doctor’s note. Kays initially replied ‘‘yes’’ but
later said that an employee would not be fired under
those circumstances. Another employee asked why
some employees would be fired for a certain number
of absences while others would not. Kays replied that
it would be taken care of in a new employee handbook
and that employees would not be automatically termi-
nated for minor offenses.
The judge found that, although Kays told employees
that the Respondent knew when union meetings had
been held and named the hotel where they had oc-
curred, this did not amount to creating the impression
that their union activities were under surveillance be-
cause, at the time of the employee meetings, the union
campaign was common knowledge among the employ-
ees. The judge concluded that Kays was in effect tell-
ing the employees that she knew ‘‘what was going
on’’ and that it was all right. We disagree.
The record evidence established that the union cam-
paign did not become overt until August 15, the day
after the employee meetings at which Kays made her
alleged unlawful remarks. On that day employees
began to wear union buttons and hand out union lit-
erature. Prior to that date, the Union had held two off-
premise, covert union meetings on July 31 and August
8, about which the Respondent learned the day after
they occurred. In light of the fact that at the time of
Kays’ remarks the employees’ union activities were
covert, we find that Kays’ statement to employees that
she knew where and when the union meetings had oc-
curred would reasonably lead employees to assume
that their union activities had been placed under sur-
veillance. United Charter Services, 306 NLRB 150
(1992). Accordingly, we find that the Respondent vio-
lated Section 8(a)(1) of the Act.
The judge found that the questioning of employees
about their reasons for wanting a union was not unlaw-
ful interrogation but rather was ‘‘either purely rhetori-
cal or designed to elicit communications from the em-
ployees.’’ We disagree.
Kays’ repeated questioning of the employees about
their reasons for wanting a union occurred in the con-
text of other unlawful conduct, described in this deci-
sion. Further, such questioning was designed to convey
to the employees the Respondent’s hostility to the
Union’s organizing campaign. Under these cir-
cumstances, we find that such questioning by a high-
ranking company official reasonably tends to color the
employees’ perception of the character and reason for
such inquiries and renders such questioning coercive
and unlawful. See EDP Medical Computer Systems,
284 NLRB 1232, 1264, 1265 (1987). Accordingly, we
find that the Respondent interrogated employees in
violation of Section 8(a)(1) of the Act.
With regard to the solicitation of grievances, the
judge noted that the Respondent had trained all mem-
bers of management on the ‘‘dos and don’ts of cam-
1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
paigning,’’ including the fact that no promises could
be made. He therefore found that Kays made no ex-
press or implied promises in the August 4 meetings.
We disagree.
At the meetings, Kays, after soliciting from the em-
ployees their concerns, stated that the Respondent
would be more lenient than the Union about
breaktimes, that its employment at will policy would
not be used to discharge employees for minor discipli-
nary infractions, and that the admitted past inconsist-
ency and favoritism by supervisors in their dealings
with employees would be rectified. Further, in re-
sponse to an employee’s stated dissatisfaction with the
increasing cost of the Respondent’s medical insurance,
Kays informed the employees for the first time that the
Respondent was trying to find a new, less-expensive
policy.
We find that, in the absence of any evidence that the
Respondent had a past practice and policy of soliciting
employee grievances, Kays, by the statements set forth
above, at least implicitly promised to remedy several
grievances raised in the August 14 meetings. Indeed,
in response to employee concerns regarding the Re-
spondent’s employment at will policy, the judge found
that Kays responded ‘‘the Company would take care of
that by working on a new [employee] handbook.’’
Under these circumstances, we find that the Respond-
ent solicited grievances with the promise to remedy
those grievances in violation of Section 8(a)(1) of the
Act. See Logo 7, Inc., 284 NLRB 204, 205 (1987).
4. The General Counsel excepts to the judge’s dis-
missal of the complaint allegation that the Respondent
violated Section 8(a)(1) in his remarks to employee
David Branson and another employee about their union
buttons. We find merit in the exceptions.
On August 18, Branson and another employee were
wearing union buttons, including one which read, ‘‘Or-
ganizing Committee.’’ Randy Popp, a team leader and
supervisor, commented to them that ‘‘if it was up to
him, he would take off the button’’ because ‘‘it looked
like they were trying to organize for the UAW.’’
The judge, in dismissing the allegation, found that
Popp did not instruct the employees to remove their
buttons, and that by his preface to his remarks he im-
plicitly admitted that it was not ‘‘up to him’’ and that
they could continue to wear the buttons.
It is well settled that the Act protects the right of
employees to wear union insignia while at work and,
absent ‘‘special circumstances,’’ it violates Section
8(a)(1) for an employer to prohibit employees’ wearing
of such insignia. Republic Aviation Corp. v. NLRB,
324 U.S. 794 (1945); Ohio Masonic Home, 205 NLRB
357 (1973). Here, we find, contrary to the judge, that
Popp’s remarks clearly conveyed the impression that
management wanted employees to cease wearing the
union buttons and thus violated Section 8(a)(1) of the
Act. While it is true that, as the judge found, Popp’s
remarks did not amount to an order that the employees
remove their union buttons, those remarks were none-
theless coercive. They conveyed the clear message that
it was not a good idea to be perceived as being
prounion and that union button-wearers would there-
fore be revealing themselves as members of a
disfavored group. See Certain-Teed Insulation Co., 251
NLRB 1561, 1564 (1980).
5. The General Counsel excepts to the judge’s dis-
missal of the complaint allegation that the Respondent
violated Section 8(a)(3) and (1) by suspending and dis-
charging David Branson. For the reasons stated below,
we agree with the judge that the Respondent has
shown that it discharged Branson because of his dis-
ciplinary record.
David Branson signed a union authorization card on
August 9, and he attended a union meeting on August
15. From that date, Branson was a member of the in-
plant organizing committee and wore union buttons at
work. He passed out union literature at a car wash and
told a small number of employees about an August 20
union meeting. Other union activists openly solicited
signatures on authorization cards and distributed union
literature at the plant. There is no evidence that
Branson encouraged others to sign authorization cards,
and the record established that many other employees
were perceived by the Respondent to be more active
in the union campaign.
Branson was hired in February 1990 and company
records reflect that he had a long history of discipli-
nary action. The Respondent introduced disciplinary
records showing that on February 12, Branson was
counseled about his disciplinary record of absences
and tardies during the preceding year. On May 30,
Branson was issued a written reminder for tardiness
and, because of previous tardies, he was informed that
any further tardies would result in a final reminder. On
June 25, Branson was issued a written reminder for ab-
senteeism, noting that he had received an oral reminder
on May 7, and a written reminder on June 13. Branson
was also advised that any future infraction of the ab-
sentee policy would result in the issuance of a final re-
minder.
The employee handbook, which Branson was given
when he started to work for the Respondent, included
a policy of 48 hours of paid personal time which could
be used by the employee for personal or family illness
or other personal business which could not be con-
ducted outside of work hours. On August 7, Branson
told his group leader Jason Nichols that he would be
absent the following day because he had a court ap-
pointment. Nichols told him that because he had used
all of his personal time, except for 1-1/2 hours, he
would not be able to attend court and that he would
be issued a written reminder if he did not come to
1025ICHIKOH MFG.
7 The call-in guidelines in the handbook provide:
In the event an employee must be absent from work, or in the
event he/she is unable to get to work on time because of sick-
ness or other reasonable cause, the employee must notify his/her
team or group leader an hour before the shift starting time.
8 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 1302 (1984).
9 The Respondent presented a list of 25 employees who had been
terminated for tardiness or absenteeism between November 8, 1989,
and January 30, 1992.
10 We further adopt, for the reasons stated by the judge, the
judge’s dismissal of the complaint allegations that the Respondent
violated Sec. 8(a)(3) and (1) by issuing a written reprimand to and
subsequently discharging Joseph Helton.
work. Branson said that it was still necessary to attend
court. He was issued a written reminder on August 8
when he did not come to work on that day.
On August 19, Branson told Nichols that he had to
return to court on August 22, and was absent from
work for 4 hours on that date. Under the Respondent’s
progressive disciplinary system Branson could have
been suspended, but because his absence was caused
by an unavoidable court appearance, Kays and Nichols
decided to issue him a second final reminder. Nichols
counseled Branson that another unexcused absence or
failure to notify the Company of an expected absence
would result in suspension or discharge.
On August 24, Branson was scheduled to start work
at 5 a.m. but failed to report for work and failed to
notify the Respondent in advance. At 5:47 a.m.
Branson’s mother called Mike O’Nan, Branson’s team
leader, and said that Branson was sick and would not
be reporting to work. O’Nan then spoke with Branson
and advised him that his absence would be reported to
Nichols. On August 26, at a meeting with O’Nan and
Nichols, Branson was told that he was being put on
suspension with the recommendation that he be dis-
charged. This recommendation was reviewed by Kays
and Manufacturing Manger Jim Van Gieson, who con-
curred. On August 27, Nichols told Branson that he
was being discharged based on his disciplinary record
and in particular the aggravated nature of the August
24 absence and failure to meet the call-in requirements
of the employee handbook.7
The judge dismissed the allegation that Branson was
suspended and then discharged for his union activities,
but failed to provide a Wright Line8 analysis. For the
reasons discussed below, we find that under Wright
Line, the Respondent has shown that it would have
suspended and discharged Branson even in the absence
of his union activity.
In Wright Line, the Board set forth its causation test
for cases alleging violations of the Act which turn on
employer motivation. The General Counsel has the ini-
tial burden of making a prima facie showing sufficient
to support the inference that protected conduct was a
‘‘motivating factor’’ in the employer’s decision. The
burden then shifts to the employer to demonstrate that
the same action would have taken place notwithstand-
ing the protected conduct. In this regard, the employer
cannot simply present a legitimate reason for its action,
but must persuade by a preponderance of the evidence
that the same action would have taken place even in
the absence of the protected conduct. Roure Bertrand
Dupont, Inc., 271 NLRB 443 (1984).
Applying the principles of Wright Line, we will as-
sume for the purposes of this analysis that the General
Counsel made the requisite prima facie showing that
the Respondent’s actions regarding Branson were moti-
vated at least in part by its antiunion animus. We find,
however, that the Respondent has shown that it would
have suspended and discharged Branson even in the
absence of his union activities.
Contrary to the General Counsel’s contention, we
agree with the judge, for the reasons stated by him,
that the record does not support a finding that the Re-
spondent required stricter adherence to plant rules after
the advent of the union organizational campaign or ap-
plied its disciplinary policies in an inconsistent manner
to discharge Branson. To the contrary, the record evi-
dence established, as the judge found, that the Re-
spondent ‘‘historically enforced its rules and dis-
ciplined employees who had an excessive number of
absences or incidents of tardiness.’’9 Further, the
record established that Branson’s August 24 failure to
report to work was in direct contravention of the Re-
spondent’s August 22 warning to Branson that a subse-
quent violation of the Respondent’s rules would result
in his discharge. Finally, there is no evidence that any
other employee similarly defied such a warning and
was not discharged.
Under these circumstances, and given Branson’s
long history of absenteeism problems and disciplinary
writeups, we find that the Respondent has met its
Wright Line burden of establishing that it would have
suspended and discharged Branson even in the absence
of his union activities. Accordingly, we dismiss this
complaint allegation.10
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices discussed in this decision,
we shall order the Respondent to cease and desist
therefrom.
ORDER
The Respondent, Ichikoh Manufacturing, Inc., Shel-
byville, Kentucky, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 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.’’ 1 All dates are in 1991 unless otherwise indicated.
(a) Promulgating and maintaining an overly broad
no-solicitation rule in order to discourage its employ-
ees’ union activities.
(b) Interrogating its employees regarding why they
want to be represented by a union.
(c) Creating the impression that its employees’
union activities are under surveillance.
(d) Soliciting grievances from employees with the
promise of rectifying them for the purpose of discour-
aging their participation in union activities.
(e) Directing its employees to remove union buttons.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its facility in Shelbyville, Kentucky, cop-
ies of the attached notice marked ‘‘Appendix.’’11 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 9, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately on receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondents to ensure that the notices are not al-
tered, defaced, 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 Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered 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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT promulgate or maintain an overly
broad no-solicitation rule in order to discourage our
employees’ union activities.
WE WILL NOT interrogate employees about their own
or other employees’ union activities.
WE WILL NOT create the impression of surveillance
of our employees union activities.
WE WILL NOT solicit grievances from our employees
for the purpose of discouraging their participation in
union activities.
WE WILL NOT direct our employees to remove union
insignia to discourage their own or others’ union sup-
port.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the rights
guaranteed them under Section 7 of the Act.
ICHIKOH MANUFACTURING, INC.
James E. Horner, Esq., for the General Counsel.
James U. Smith III, Esq. and W. Kevin Smith, Esq. (Smith
& Smith), of Louisville, Kentucky, for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge. This case
was heard in Louisville, Kentucky, on February 25–28 and
April 1 and 2, 1992. The charges were filed by David
Branson and Joseph Helton, individuals, on September 13,
1991.1 Complaint issued October 28 alleging that Ichikoh
Manufacturing, Inc. (Respondent, Employer, or Company)
violated Section 8(a)(1) and (3) of the National Labor Rela-
tions Act by discriminatorily imposing strict adherence to its
plant rules, issuing a written reprimand to Helton and later
discharging him, and suspending Branson and later discharg-
ing him, and violated Section 8(a)(1) by issuing an unlawful
no-solicitation rule, coercively interrogating employees, cre-
ating the impression of surveillance among employees, and
soliciting grievances from employees and implying that those
grievances would be adjusted. Respondent denies the com-
mission of any unfair labor practices.
All parties were represented at the hearing and were af-
forded full opportunity to be heard and to present evidence
and argument. General Counsel and Respondent filed briefs.
On the entire record, my observation of the demeanor of the
witnesses and after giving due consideration to the briefs, I
make the following
FINDINGS OF FACT
Respondent is a Kentucky corporation with offices and
manufacturing facilities located in Shelbyville, Kentucky,
where it is engaged in the manufacture and sale of auto-
mobile mirrors. The Company, a wholly owned subsidiary of
Ichikoh Industries Limited of Japan, was formed in 1987 and
has been in production since 1988. It employed from 260 to
280 persons during the relevant period in the summer and
fall of 1991, 180 to 200 of which were unit employees.
1027ICHIKOH MFG.
2 Yount denied that this conversation ever took place. However, I
credit Helton and find that it occurred as described above.
3 Hinton attended all the meetings except the 11:30 a.m. meeting
with quality assurance and shipping and receiving and the 1:30 p.m.
meeting with the office staff.
Sometime in July, certain of Respondent’s employees
manifested interest in obtaining union representation. On July
30, several of them met with a union organizer. Union au-
thorization cards were distributed at this time.
Respondent learned of the union activity of its employees
almost immediately. On August 1, its vice president, Theresa
Mills Hinton, was informed about the July 30 organizing
meeting which had been held at the Best Western Motel.
Human Resources Manager Susan Kays also heard about the
meeting the day after it had taken place.
That day, Kays contacted Respondent’s attorney, Grover
Potts, and made arrangements for him to visit the plant the
following day to meet with its supervisory personnel and ad-
vise them as to how to conduct themselves during the union
organizing campaign.
On August 2, Potts and another attorney from the same
firm, Mary Ann Main, met with Respondent’s managerial
personnel. Potts supplied each supervisor and member of
management with a 21-page manual containing information
on the rights of employees and of the Company during a
union organizational campaign. It contained a list of pro-
scriptions as to what supervisory personnel could and could
not do and say in response to Respondent’s employees’
union organizing activities. Potts reviewed, meticulously for
those present, the contents of the manual. He referred to the
acronym ‘‘TIPS,’’ stating that supervisory personnel were
prohibited from threatening, interrogating, promising, or spy-
ing in connection with the union activity of employees. Potts
also entertained questions. The meeting lasted 2 hours. Simi-
lar sessions were held on a weekly basis during the first part
of September.
On August 8, the Union held another meeting at the Best
Western Motel in Shelbyville. About 6 or 7 employees at-
tended this meeting including alleged discriminatee, Joseph
Helton. Union Representative Bill Young distributed addi-
tional cards at this meeting and obtained signatures from sev-
eral of those in attendance, including Helton.
On the evening of August 13, Roy Yount, a second-shift
team leader who had previously worked with Helton and had
also, at one time, supervised him, approached him and asked
him if he could speak with him. Yount, whom Helton con-
sidered a friend, then asked him if he had ‘‘heard anything
about the Union.’’ Helton replied, ‘‘What Union?’’ Yount
commented that if anyone knew about the Union, he thought
it would be Helton. Helton said that he had heard that
‘‘they’’ were trying to get one in, but that was all he had
heard. Yount remarked that he could probably get in trouble
asking Helton that question but he had just wanted to know
what was going on. The conversation came to an end at that
point. Helton was not wearing a union button or any other
insignia identifying him as a union activist when this con-
versation took place.2 No employees were wearing union
buttons at that time.
In preparation for a series of meetings which management
planned to hold with its employees, Potts again met with
Hinton and Kays and went over what company representa-
tives could and could not say. He discussed TIPS with them
but also told them that they could be candid with employees
about their opinions of the union and union representation.
On August 14, Kays conducted 12 meetings with Re-
spondent’s employees. Each department on each of the three
shifts had its own meeting during which union organizing ac-
tivity and other matters were discussed. President Tsuruta,
Vice President Kitamura, Hinton,3 and Kays attended the
meetings, all of which were conducted primarily by Kays.
The first meeting began at 7 a.m. The last one started at 6
p.m. They were all attended by team leaders and group lead-
ers along with the employees in their departments.
During the meetings, Kays covered such topics as wages,
benefits, and discipline. She advised employees that Re-
spondent was against union representation and gave reasons
for this position. She also advised them, however, that man-
agement was limited in what it could do and say about the
employees’ union activities. She mentioned the acronym
‘‘TIPS’’ and explained that, in connection with the employ-
ees’ union activities, management, personnel, and supervisors
were not permitted to threaten or interrogate employees, to
make promises of benefits nor surveil such activities.
During these meetings, Kays acknowledged that the em-
ployees had a right to union representation if they wanted it
and said that the Respondent respected this right. She said
that the employees should learn as much as they could about
the Union and union representation. She mentioned that she
was aware that the Union had held organizational meetings
at the Best Western in Shelbyville and that some of Re-
spondent’s employees had attended. She urged them to attend
future union meetings, especially if they had questions con-
cerning representation.
At the 7 a.m. meeting with the molding and maintenance
employees, Kays brought up the matters mentioned above.
She also, at one point, raised a blank union card and pointed
a finger. She said she knew that someone there had to have
started the Union, had to have called the Union and this had
made her mad at the time. She continued that the employees
did not need a union, that they would be better off with the
Company’s open-door policy. She added, according to one or
two of General Counsel’s witnesses, that with a union, the
employees’ pay scale, benefits, and seniority would all de-
crease. Kays predicted that the Union would promise them
raises and increased benefits but that the Company would not
be able to afford wage increases until at least 1994 because
it was still financially in the red. She warned the employees
about the possibility of large union dues. She stated that the
Company would be more lenient than the Union where
breaks were involved.
At the meetings, employees were encouraged to respond to
Kays’ comments and to ask questions concerning the matters
under discussion. When the subject of union stewards came
up, Kays commented that they would not do anything. This
remark drew an objection from one employee who stated that
his father was a union steward and there was nothing lazy
about him.
Some of the meetings were quiet with few questions being
asked. Others, however, were animated, with employees free-
ly expressing their opinions about union representation and
working conditions, challenging comments made by Kays
who sometimes returned the challenge. At one point, she ac-
1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Popp denied making the statement attributed to him, but I credit
Branson.
5 Pars. 7 and 10.
cused some employees of abusing the medical insurance ben-
efits program. On this subject she told one group that Re-
spondent was going to raise the deductible on the medical in-
surance plan and the premiums as well. However, Kays as-
sured those present that Respondent would look for another
insurance company that would ‘‘suit their needs.’’
Kays, after stating Respondent’s position with regard to
union representation, on several occasions questioned the em-
ployees about why they wanted union representation. Several
employees, in reply, complained that team leaders were in-
consistent in the way they treated employees and that there
was some favoritism. Inconsistencies had been discussed on
several occasions among members of management before the
Union came on the scene. Employees had complained about
management also, before the advent of the Union and had
been told that training courses for team leaders had begun in
the spring of 1991 and it was hoped that the courses would
improve their management abilities.
When the question of raises was brought up at several
meetings and the Company pleaded poverty, certain employ-
ees inquired as to why the Company had money enough to
purchase 36 acres of land but no money for raises. Hinton
fielded that question for Kays by explaining that the Com-
pany had borrowed to purchase the land and was using the
rent from tenants on the land to repay the loan.
Another subject brought up at these meetings concerned
the need for job protection. The July 91 handbook contained
an ‘‘Employment at Will’’ clause which led the employees
to consider seeking job protection through union representa-
tion. At one of the meetings, an employee asked Kays if she
could still be fired if she were absent and had a doctor’s
statement. Kays initially replied affirmatively but later said
that she would not be fired under those circumstances. Kays
explained that the Company would not fire employees for
minor infractions.
‘‘Employment at Will’’ was described by one employee
witness as ‘‘a big issue’’ with employees, and several of
them complained to Kays about it during the August 14
meetings. Kays tried to placate them by again assuring them
that they would not be fired ‘‘for just anything.’’ At one
point, an employee asked why certain employees would be
fired for a certain number of absences while other employees
would not. Kays replied that the Company would take care
of that by working on a new handbook.
Employee Larry Miller, at one meeting, complained to
Kays about too much overtime. He stated that he had been
working 10 to 12 hours per day plus 8 hours on Saturdays
ever since January. He reported that the excessive overtime
was adversely affecting the relations among the employees
because they were ‘‘really stressed out.’’ Other employees
complained that they were informed too late in the week that
they would be expected to work on the weekend, that there
was insufficient notice. Kays admitted that the Company had
a poor overtime planning process. Hinton testified that, as of
the hearing date, there was still a lot of overtime being
worked at the plant and still a lot of complaining.
On the morning of August 19, David Branson, one of the
two alleged discriminatees in this case, was working outside
P-3, a paint booth, with paint department employee, Billy
Mitchell. Branson was wearing a white union button in-
scribed, ‘‘Organizing Committee’’ and a yellow button in-
scribed, ‘‘The UAW is Our Union.’’ Mitchell was also wear-
ing the same white button as well as three or four other
union buttons.
At about 8 a.m., Randy Popp, the team leader in P-2,
walked up to where Branson and Mitchell were working and
commented that if it were up to him, he would take off the
white button because it looked as though they were trying to
organize for the UAW. Neither Branson nor Mitchell replied
to Popp’s comment. Popp made no further remarks.4 Neither
Branson nor Mitchell removed the buttons but continued to
wear them daily throughout the campaign. There is no evi-
dence that any other employees overheard Popp’s remark to
Branson and Mitchell.
Neither Branson nor Mitchell worked directly for Popp
who was the team leader in P-2. Among the employees who
did work for Popp was one named Wyatt. Popp testified that
although he could not recall Branson wearing any union but-
tons during the organizing campaign, he could recall that
Wyatt was wearing a yellow union button and offered to
trade it to Popp in exchange for the company button that
Popp was wearing at the time.
Since August 15, many employees throughout the plant
wore union buttons. In Popp’s paint booth two employees
wore white and yellow union buttons and numerous lapel
pins. Half of the employees in the paint department wore
union buttons on or after August 15. Similarly, half the em-
ployees on the first shift wore union buttons. Popp credibly
testified to having seen employees on his team actively solic-
iting employee signatures on union authorization cards, and
distributing cards and literature during breaks.
The complaint5 alleges that Respondent, since on or about
the week of August 11, imposed more onerous working con-
ditions on its employees by requiring strict adherence to its
plant rules. In support of this allegation, Helton testified that
before the union campaign began, Respondent had not been
strict with regard to breaktimes, that as long as an employee
left and came back roughly when he was supposed to, it was
all right. There were no buzzers or signals to advise the em-
ployees when the break was to start or finish. Employee
Michalene Willis testified that before the union campaign
began, things were a little more lax on the third shift, but
that when the union talk got started the Company wanted
strict 10- and 30-minute breaks. Team Leader Barry Johnson
told the molding department employees to watch their
breaktimes. Willis admitted that similar warnings had been
given before the union campaign. Willis also testified that
supervision clamped down on employees standing in groups
and talking among themselves, and recounted one incident,
during the union campaign, when Johnson came over and
broke up a conversation that she was having with another
employee.
Still another employee, Harold Bruce Thomas Jr., testified
that after the union campaign began, management was ‘‘a lit-
tle bit more stricter . . . in returning back from break on
time.’’ Thomas added that during the union campaign, em-
ployees were not as free to talk to each other as before. He
described how supervisors would patrol the work areas wear-
ing ‘‘No Union’’ buttons and testified that they would walk
1029ICHIKOH MFG.
6 Pars. 8(a) and 9.
7 Helton testified that he was only 1-1/2 minutes late, rather than
8 minutes. His testimony is not credited.
up and down, every so often, through the plant, ‘‘more than
they usually did before all this started.’’
Alleged discriminatee David Branson testified that before
the union campaign started, ‘‘You could walk in, after some-
body else did, a minute later, something like that, and they
wouldn’t say nothing to you ’cause they would always stand
around in the paint rooms and talk for a few minutes right
after lunch or break or before we even started working
again.’’ After the union campaign started, he added, the ‘‘at-
titude’’ changed, and management ‘‘was always on your
back, over your shoulder . . . you couldn’t stop, say ‘hi’ to
somebody. If you had to go to another department, you had
to come right back, and you had to be just on time. Just the
whole attitude [of] management had changed.’’
Employee Larry Miller testified that after the August 14
meeting with Kays, he observed Team Leader Jeff Kelly
with a stopwatch in his hand watching Miller and other em-
ployees as they went out the door. He added that this had
never occurred before the union campaign and, in fact, be-
fore the advent of the Union, employees took at least 15
minutes on their 10-minute breaks. Miller testified that after
the union campaign began, ‘‘we was up and out of there in
ten minutes.’’
Miller agreed with other witnesses for the General Counsel
that during the union campaign, supervisors, in particular
Thomas and Kelly, clamped down on employees talking to
each other. They would come over to employees engaged in
conversation and ask, ‘‘What are you talking about? Ain’t
you got something to do?’’ According to Miller, on one oc-
casion, sometime after August 14, he was walking through
the plant, at the end of his shift, and stopped to talk to a
coworker. Just as he said ‘‘hi’’ to her, however, Leo came
over to Miller and said, ‘‘She ain’t got time to talk to you,
and you ain’t got time to talk to her. You need to move on.’’
He added that after the union campaign began, ‘‘They kept
a real close eye on what you was doing then, whether it was
absenteeism or whatever, especially if you was wearing a
union button.’’
The complaint alleges6 that Respondent violated Section
8(a)(1) by issuing a reprimand to Helton on August 21 based
on discriminatory considerations. In his brief counsel for the
General Counsel states that the reprimand was just one ex-
ample of Respondent’s stricter enforcement of plant rules.
Respondent takes the position that Helton’s reprimand was
justified and was issued in accordance with standard proce-
dures. Discriminatory motivation is denied.
On August 20, Helton was scheduled to work the third
shift in the molding department. Quitting time was 7:30 a.m.,
August 21. Since the oncoming first shift was understaffed
by two mold changers, molding department employees from
the other two shifts were asked to fill in. As Helton was
about to clock out, first-shift team leader, Jim Leo, asked
him if he would work an additional 4 hours on the first shift.
Helton agreed.
The company policy was to give employees who were
going to work beyond their normal 8-hour shift a 10-minute
break before beginning their overtime. As Helton walked out
of the molding department to take his break, Leo was right
behind him. As they both left, Leo noticed that it was 7:20
a.m. Leo was on the way over to the assembly department
to discuss with other team leaders the production schedule
for the day. After completing his task, he returned to the
molding department. He then noticed Helton returning from
his break. He checked the time and determined that it was
7:38 and that Helton had been gone 18 minutes on his 10-
minute break.7
Leo reported Helton’s tardiness to Rick Rice, molding de-
partment group leader. Rice told Leo that corrective action
was in order. Leo then reviewed Helton’s personnel file and
attendance records to determine the appropriate level of dis-
cipline. Leo discovered from his analysis of Helton’s em-
ployee records that he had been issued an oral reminder on
June 3 for being 3-1/2 hours late that day and for having two
previous incidents of tardiness on his record. This was the
proper procedure under the disciplinary guidelines contained
in the old handbook, in effect at the time. Leo also discov-
ered that since June 3, Helton had been tardy twice more so
that his August 21 tardiness meant a total of six infractions
recorded in Helton’s employee records.
Leo determined that under the Company’s new handbook
and stricter discriplinary guidelines, the number of times
Helton had been tardy, made him subject to discharge. Leo
discussed the options with Rice and together they decided
that since Helton had not been counseled with regard to his
being tardy on July 23 and 24, he should not be discharged
but issued a final reminder. Leo then prepared the necessary
document.
Leo and Rice issued the final reminder to Helton at the
end of his overtime shift. They explained the reason for the
corrective action as well as for the level of discipline. They
told him what he had to do to correct his tardiness problem.
Helton admitted that he had been late coming back from his
break but denied that he had been 8 minutes late. Leo in-
formed Helton that ‘‘a tardy was a tardy whether it was one
minute or a hundred minutes.’’ Helton also objected to the
level of corrective action taken because he questioned how
his record could go from three reported instances of tardiness
directly to six. Leo encouraged Helton to write his objections
to the corrective action in the ‘‘Employee Comments’’ sec-
tion of the form. Helton did not do so but signed the form
despite his objections.
Respondent takes the position with regard to Helton’s Au-
gust 21 disciplining that it followed its standard practice and
that its practice is well documented. Thus, the policy is that
employees are permitted a 30-minute meal period and two
10-minute rest breaks during each 8-hour shift. This policy
was set forth specifically in the old employee handbook. The
new employee handbook, which was effective as of August
1, contains the same language. As noted earlier, an employee
who elects to work overtime following his regular 8-hour
shift, is entitled to an additional 10-minute break.
According to the record, the Company has also maintained
a policy with regard to employees returning tardy from meals
and rest breaks. Both the old and the new employee hand-
books reflect this policy by including the following defini-
tion:
1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Pars. 8(b) and (c).
Tardies are defined as unworked time less than four
hours, such as being late for work, returning late from
a break or lunch, and leaving work early . . . .
In its policy, the Company does not distinguish between
being late for work and being late returning from a break.
Nor, as Leo told Helton, does it distinguish between lateness
of 1 minute and lateness for a much longer period.
The Company, in its old employee handbook, had included
a section which reflected guidelines for the enforcement of
tardiness rules. These provided for progressive discipline:
Disciplinary action for unexcused tardies is as fol-
lows: Within any consecutive fifty-two week period:
Three Tardies: Step 1: Counseling with the team leader.
At the fourth tardy: Step 2: Counseling with the team
leader.
At the fifth tardy: Step 3: Counseling with the team
leader and group leader.
At the sixth tardy: Placement on probation: counsel-
ing with the human relations supervisor and written
documentation of absences.
At the seventh tardy: Discharge after an exist inter-
view with the human resources supervisor.
In the new employee handbook, promulgated on August 1,
the guidelines were made more stringent:
Corrective Action for Unpaid Absences and Tardies
Within any consecutive fifty-two week period:
One unpaid absence/tardy: Step 1: Counseling with
the team leader.
Two unpaid absences/tardies: Step 2: Counseling
with the team leader and group leader.
Three unpaid absences/tardies: Step 3: Probation:
Counseling with group leader and human resources
manager. Written documentation of absences/tardies.
At the fourth unpaid absence/tardy: Discharge after
an exit interview with the human resources manager.
This sequence of corrective action steps serves only
as a guideline. The Company reserves the right to de-
termine the severity of the corrective action or to imme-
diately discharge an employee depending on the nature
of the event and its severity.
The day after receiving the final reminder, Helton asked
Leo ‘‘why they were coming down on me when they never
bothered anybody else.’’ He testified, ‘‘I mean, everybody
else could stroll in and out and take breaks, even the team
leaders.’’ Leo replied that it was none of Helton’s business
what other people were getting done to them.
Respondent maintains an appeals procedure following im-
position of corrective action. On August 29, Helton, in pur-
suance of his rights under the Company’s open-door policy,
requested a review of the corrective action taken against him
on August 21. That morning, Senior Manufacturing Manager
Van Gieson met with Helton, Rice, and Leo. During the re-
view, Helton admitted that he had been late returning from
break on August 21 but denied that he was 8 minutes late.
He stated that he was only about 2 minutes late and that he
did not think that corrective action was appropriate. Van
Gieson considered the fact that Helton had entered no em-
ployee comment on the form when he signed it on August
21, and did not appeal until 8 days later. He decided that the
corrective action should stand, primarily because Helton ad-
mitted he was tardy. Helton complained that the open-door
policy was unfair and did not work. Van Gieson argued that
the policy was a good one and invited Helton to pursue the
matter further up the ladder with Kays or with Vice President
for Manufacturing Ken Kitamura. Helton agreed to do so.
Following the meeting, Van Gieson wrote a memorandum
describing its content.
Van Gieson contacted Kitamura who joined the meeting.
Helton explained his position to Kitamura. After reviewing
all of the circumstances, Kitamura sided with the position of
lower management. Helton was then offered the opportunity
to discuss the matter with the president of the Company but
declined the invitation.
Respondent’s position is that it has always consistently en-
forced its policy against employees returning late from
breaks. Team Leader Yount and Group Leader Rice both tes-
tified in support of Respondent’s position and described spe-
cific instances where they took corrective action against em-
ployees who returned late from breaks. Yount issued a writ-
ten reminder to employee Anita Sharp on November 13,
1990, after she had been late returning to work on four occa-
sions, including a 2-minute infraction on November 5, 1990,
and a 1-minute infraction on November 8, 1990.
Respondent further supported its position by offering into
evidence company records which reflect numerous instances
of corrective action being taken against employees who re-
turned late from meal periods and rest breaks. Many of the
periods of tardiness were extremely short and reflect correc-
tive action taken both before and after the initiation of union
activity.
The complaint alleges8 that Respondent, on August 26 and
27, first suspended, then discharged, David Branson for dis-
criminatory reasons. The record indicates that Branson was
hired February 12, 1990, and was assigned to the paint de-
partment where he worked until his discharge. Branson was
a paint technician on the first shift on the day of his dis-
charge. At the time, he was assigned to paint room 4, super-
vised by Mike O’Nan, team leader, and Jason Nichols, group
leader.
When Branson was first hired he was given a copy of the
employee handbook and signed an acknowledgement receipt
at the time. He received a copy of the new employee hand-
book on July 31 and signed a receipt for it the same day.
As noted earlier, both books contain a description of Re-
spondent’s policies regarding employee tardiness and absen-
teeism. These policies provided for an annual allowance of
48 hours of paid time for employees with 1 year or more of
service with the Company. The allowance was to serve as
compensation to employees for prearranged absences due to
personal illness, family illness, or personal business which
could not be conducted outside the regular workday.
Company records reflect that Branson had a long history
of absenteeism and tardiness for which he was disciplined
numerous times. On July 14, 1990, Carol Carey, his team
leader, issued him a verbal warning for returning tardy from
a rest break. This measure was in accordance with step 1 in
the disciplinary process of the relevant section of the em-
ployee handbook. Branson was required to sign documents
1031ICHIKOH MFG.
which indicated the times he was tardy and absent without
excuse. These documents stated that additional absences or
instances of tardiness could lead to additional disciplinary ac-
tion, including termination.
On February 12, Nichols counseled Branson about absen-
teeism during his performance and development review.
Branson, by that time, had already been absent three times
and tardy three times. The dates of these absences and times
tardy were noted in his personnel file and the category
‘‘Needs improvement’’ was checked. Though there was a
space for Branson to make any comment he might have on
the subject, he did not avail himself of the opportunity. The
form was signed by Branson and various members of man-
agement.
Nichols, on May 30, issued Branson a written reminder for
tardiness. This was in accordance with step 2 of the progres-
sive disciplinary process and was for his having been late on
four occasions through May 29. The corrective action form,
which both he and Nichols signed, informed him that the
next time he was tardy, he would be given a final reminder.
Kays and Van Gieson also signed this document.
On June 25, Nichols issued to Branson a written reminder
noting that he had received an oral reminder on May 7 and
a written reminder on June 13, both for absenteeism viola-
tions. At the time, absenteeism and tardiness were considered
separate types of violations warranting separate corrective ac-
tions. Later, in the new employee handbook, they were treat-
ed together in the same section. When Branson received the
written reminder, he was advised that any future infraction
of the absentee policy would result in the issuance of a final
reminder. At the time, Branson was counseled about the
problem he was creating for himself under the Company’s
policy on absenteeism and tardiness. He was also offered the
opportunity of making any comment he wished.
On August 7, Branson told Nichols that he would be ab-
sent the following day because he had to attend a hearing in
court. Nichols advised Branson that he did not have suffi-
cient paid time available to take off the following day and
that if he did so he would receive a final reminder. Branson
stated that, nevertheless, he would not be to work the next
day. Nichols then issued Branson the final reminder. Though
he was given the opportunity to comment, Branson chose not
to do so. Both he and Nichols signed the final reminder.
On August 9, Branson met employee Larry Miller at a car
wash, where he was given and signed a union authorization
card. On August 15, Branson attended his first union meet-
ing. He obtained two union buttons at the meeting and subse-
quently wore them to work. Miller asked Branson to be on
the in-plant organizing committee and he agreed. Thereafter,
he distributed a union bulletin at a car wash and on August
19, ‘‘passed the word’’ to a few first-shift employees about
the forthcoming August 20 union meeting.
The union organizing campaign began sometime in July.
Branson did not sign a union card until August 9, the day
after he received his final reminder on absences. The early
organizing campaign was apparently conducted without his
assistance.
The number of employees in the unit was approximately
180. To hold a representation election, there must be a show-
ing of interest of 30 percent or more. Thus, more than 50
unit employees must have signed cards. There is no indica-
tion that Branson was involved in obtaining signatures. But
other employees were engaged in this activity, openly, in the
plant in full view of management. Thus, it is apparent that
other employees were far more active than Branson.
When Nichols was asked to identify the most outspoken
union advocates in the paint department, he named Larry
Miller, Tom Wyatt, Charlie Dodd, and Robert Southworth.
These four employees are still employed.
Although Branson wore two union buttons to work, so did
many of the employees throughout the plant and in the paint
shop. One employee wore 200 buttons or more. Literature
was passed out at the plant openly by union activists.
Branson did not claim to have participated in the distribution
and, indeed, his pamphleteering was limited to the car wash
and pizza hut.
During the August 14 meetings, many employees were
outspoken in explaining to management why they wanted a
union. Branson apparently was not one of these. There is no
evidence of discrimination against these outspoken
prounionists.
On or about August 19, Branson showed Nichols certain
legal papers requiring him to appear in court again on Au-
gust 22. Nichols knew that Branson did not have any paid
time available which he could use to take time off to appear
in court. However, he also knew that Branson could not just
ignore the requirement that he make the court appearance.
Nichols agreed to work with Branson to help him make up
for the time he had lost. For the previous 2 weeks Branson
had voluntarily been reporting to work 2 hours early. In the
August 19 conversation, it was agreed that henceforth it
would be mandatory for Branson to report 2 hours early to
make up for the time he had lost.
On August 22, Branson was absent from work 4 hours.
According to the employee handbook, 4 or more hours was
regarded as an absence whereas less than 4 hours was re-
garded as tardiness. Since Branson had been absent and had
no paid time available to cover this absence, and since he
had a number of previous infractions, he could have been
suspended pending review of the circumstances. However,
Nichols and Kays discussed the situation and decided to ig-
nore Branson’s June 13 absence and merely issue a second
final reminder. Nichols made an exception in this case be-
cause he wanted to help Branson and because he did not
want to discipline him for making a court appearance.
The day after his second court appearance, when Branson
was given his second final reminder, Nichols counseled him
that another unexcused absence would result in a suspension
or discharge. He told Branson that anything short of an Act
of God would result in Branson’s termination. He stated that
failure to notify the Company of an expected absence would
likewise end in termination.
At this time, all paint department employees were working
a 10-hour day and were required to start at 5 a.m. On August
24, Branson failed to report for work. He was the only em-
ployee in the department to be absent on that date. He also
failed to call in, in advance, as required by the employee
handbook.
At 5:47 a.m. Branson’s mother contacted Mike O’Nan,
Branson’s team leader. She told him that Branson was sick
and would not be reporting for work. O’Nan asked to speak
to Branson personally, and when he did so, Branson con-
firmed what his mother had just told him. O’Nan advised
Branson that his absence would be reported to Nichols.
1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Pars. 8(d) and 10.
10 Helton’s explanation, that the period of time he was out of his
work area on the evening of September 6 and 7 was spent looking
for more plastic material, is not credited.
On Monday, August 26, at a meeting with O’Nan and
Nichols, Branson was told that he was being placed on sus-
pension with the recommendation that he be discharged. The
corrective action form, which had already been prepared, was
signed by all three, after first being reviewed. It was subse-
quently reviewed as well by Kays and Van Gieson who con-
curred in the recommended action. Branson was discharged.
At 9:30 a.m. on August 27, when Branson reported to the
plant, he met with O’Nan, Nichols, and Mary Richards.
Nichols advised Branson that he was being discharged. Nich-
ols testified that the decision to terminate Branson was based
on the aggravated nature of Branson’s August 24 absence, in
particular Branson’s failure to meet the call-in requirements
of the employee handbook covering absenteeism, Branson’s
attempt to have another person call in on his behalf to report
his absence, and, of course, the fact that Branson was absent
at a time when he had no more paid personal time left.
In order to show that Branson’s discharge was pursuant to
a long-established policy of terminating employees for exces-
sive absences, Respondent offered into evidence records indi-
cating that between November 8, 1989, and January 30,
1992, it terminated 25 employees for excessive absences
and/or tardiness.
The complaint alleges9 that Respondent discharged its em-
ployee Joseph Helton on September 9 in violation of Section
8(a)(1) and (3).
Helton was hired September 10, 1990. During the relevant
period, he was a mold changer on the third shift. On Friday
September 6, the Company asked for volunteers to work
overtime. Several employees volunteered including Helton
who reported on that date at 11 p.m.
The overtime volunteers that evening were scheduled to
function as mold technicians and operate the presses. Helton
was assigned to operate the 450 #1 line press, the 550 #4
line press, and a third press. As a mold changer, he was also
expected to assist the other operators in that capacity as well.
Helton was the only mold changer working the September 6
overtime shift. When Helton reported at 11 p.m., his presses
were already in full production, producing parts of acceptable
quality.
During the first hour of the overtime shift, employee
Bobby Tindle sustained an on-the-job injury to his hand. At
about 12:30 a.m., Barry Johnson announced that he was tak-
ing Tindle to the hospital for treatment. Before leaving the
plant, Johnson told Helton that the paint group leader would
be in charge of the department while he was out of the plant.
When Johnson left, Helton’s presses were all functioning
properly. When he returned at about 1:50 a.m. they were all
shut down and Helton was nowhere around. Johnson ques-
tioned the other mold department technicians about Helton’s
whereabouts. They reported that they had not seen Helton in
the area since the 1 a.m. break.10 Johnson continued to
search throughout the molding department trying to find
Helton but without success. He broadened his search to in-
clude the entire plant. He asked two maintenance employees
in the assembly department if they had seen Helton. Both re-
plied that they had not seen him since the 1 a.m. break.
Johnson left the assembly department and entered the
quality assurance department. As he did so, he noticed
Helton in the shipping and receiving area. He was sitting on
the gasoline-powered tow motor with one of his feet propped
up, talking to quality assurance employee, Kelley Williams.
Johnson continued to watch Helton talk to Williams for 1
or 2 minutes. During that time, Helton did not attempt to get
off the tow motor nor to start it. Johnson then went over to
Helton and asked him what he was doing. Helton replied,
‘‘Talking to Kelley.’’ Johnson told Helton he did not belong
in the warehouse and should be in his own department.
Helton drove back to his department with Johnson walking
beside him part way. By this time it was about 2:05 a.m.
Johnson had spent about 15 minutes looking for Helton.
When Johnson arrived back in the mold department, he
asked Helton why the presses were down. Helton replied that
the robot on the 450 #1 press was not functioning and the
550 #4 press was not receiving any material. Johnson then
asked Helton about the third press. Helton said that he was
unaware that there was anything wrong with that press. He
told Johnson that he had tried to get the other two presses
started but was unable to do so.
Johnson told Helton that he was going to have to write
him up for being out of his department. Helton claimed that
he was out of his department for a work-related reason.
Johnson repeated that Helton was not supposed to be out of
his department, apparently rejecting Helton’s explanation. At
the end of the shift, Johnson asked Helton to sign a written
reprimand but Helton refused and left the plant. The rep-
rimand accuses Helton of being out of his area ‘‘15 minutes
or more,’’ the period of time Johnson had spent looking for
him.
Johnson credibly testified that based on the description of
the problems and on the various problem indicators on the
presses themselves, Johnson was able to diagnose the reasons
for the malfunctions. Within 5 or 6 minutes, he had all three
presses operational and in production. The problems which
caused the three presses to malfunction were common ones
which occurred frequently to all of the Company’s presses.
Getting them into working order required no replacement
parts of tools and no expertise in electronics or machine
maintenance. They were, according to Johnson, simple prob-
lems that any mold changer with a reasonable understanding
of the presses could easily solve. Helton had the skill, experi-
ence, and ability necessary to get the presses moving.
Johnson considered Helton at fault for the situation that
existed in the molding department when he returned from the
hospital on the morning of September 7. The matter was a
serious one in Johnson’s view because the whole purpose of
working the overtime shift was for additional production.
Yet, Helton’s presses were not producing. Further, Helton
was being paid a premium rate of pay and was away from
his work station for no reason. Finally, the problems that had
put down Helton’s presses were such that he should have
been able to handle, and, if not, should have sought the help
of the maintenance men. Johnson determined that discipli-
nary action was in order.
Later that morning, Johnson prepared a memorandum cov-
ering the incident and included in it, other recent incidents
involving Helton. To determine the proper level of discipline,
Johnson reviewed Helton’s file. The file reflected that he had
received a final reminder for tardiness and a final reminder
1033ICHIKOH MFG.
11 On the stand, La Mar testified that Helton had been in her de-
partment 30 minutes or longer. Later, she testified that he was there
from 11:10 p.m. until 2 a.m. talking to Williams. Karen Kerney tes-
tified that Helton was in her department at least 45 minutes.
12 Pars. 5 and 9.
for absenteeism. Moreover, Johnson had encountered the
problem of Helton being out of his work area on several pre-
vious occasions, on one of which he had personally coun-
seled him. Other supervisors had also counseled Helton a
number of times with regard to this problem. After giving
due consideration to Helton’s overall record, Johnson deter-
mined that Helton should be suspended from work while the
entire situation was investigated and reviewed, with the pos-
sibility that discharge might be the eventual result.
About 7 a.m. that day, Group Leader Rice was scheduled
to report to work. Johnson decided to discuss the matter with
him before making any recommendation regarding Helton’s
discipline. Rice agreed with Johnson’s proposed discipline
but suggested that he advise Kays of the incident and seek
her advice.
Since Kays was not at the plant, Johnson called her by
telephone, described the incident, and informed her of his
planned course of action. Kays agreed that suspension pend-
ing review, with possible discharge, was the correct discipli-
nary action to take. Johnson had already prepared the proper
form but by the time he had been able to contact Kays,
Helton had already left work for the day. Later that day, Jim
Leo, team leader, advised Helton by telephone that he had
been placed on suspension for the incident of the previous
evening. He was told to report to the Company for a meeting
on Monday, September 9 at 7:30 a.m.
The followup investigation was conducted by Rice on Sep-
tember 7. He was concerned with the length of time Helton
was away from his presses and in the quality assurance de-
partment. Rice asked Helen King, team leader in that depart-
ment, to inquire of the technicians working there on second
shift whether a molding department employee had paid an
extended visit to the quality assurance department the pre-
vious evening. He requested King to report her findings to
either Kays or Van Gieson because he was going on vaca-
tion. He did not mention Helton’s name.
Next, Rice and Leo checked out the 450 #1 press and the
550 #4 press to determine if they had been down on third
shift and, if so, how long. Rice, by examining these ma-
chines, found them to be operating properly, and producing
successfully the same product which they had been produc-
ing on Helton’s third shift.
Rice then calculated how long each machine was down
during the third shift on September 6. He determined that
both machines had been down during Helton’s shift for an
excessive period of time.
On September 7, Rice telephoned Van Gieson and advised
him of the Helton situation. He told him that Helton had
been suspended pending review, that third shift production
had been calculated, and that King would report to him, the
result of her investigation.
In accordance with instructions received, King interviewed
the three quality assurance employees on September 7 con-
cerning the events of the previous evening. The three em-
ployees were Kelley Williams, Karen Kerney, and Lynn La
Mar. They had worked their regular shift on September 6
from 3:30 p.m. until midnight, then 2 hours overtime until
2 a.m. To King’s questions, all three stated that Helton had
visited their work area toward the end of their shift on Sep-
tember 6. When King asked them how long Helton had been
there, they estimated from ‘‘20 to 25 minutes’’ to ‘‘a long
period of time.’’11 When King next asked them what Helton
was doing there, they all agreed that he was talking to Kelley
Williams and performing no work. Shortly after the con-
versation, King placed the conversation in memorandum
form.
On Monday morning, September 9, prior to the scheduled
meeting with Helton, Van Gieson arrived at the plant to re-
view relevant information bearing on the Helton incident.
King furnished him with a copy of her memorandum and
Rice provided the production information. Van Gieson also
obtained from Johnson, his explanation of the events of Sep-
tember 6.
At approximately 7:30 a.m., Van Gieson met with Helton
and Johnson. Helton and Johnson each gave his version of
the events of September 6. Helton claimed that he had only
been out of his work area for 10 or 15 minutes for job-relat-
ed reasons. He denied engaging in extended conversation
with Kelley Williams. He stated that he had tried to fix the
presses but was unable to do so.
The discussion turned to the fact that Helton, on previous
occasions, had been seen out of his work area and had been
counseled by his supervisors about it. Helton took the posi-
tion that his job required him to be outside the molding de-
partment on occasion. Van Gieson conceded this point but
insisted that Helton’s primary function was to keep his press-
es running. Van Gieson noted that when Helton was out of
his work area, he was not performing his work duties and
was interfering with other employees’ work performance.
Van Gieson rejected Helton’s stated position that he had a
right to go to other departments and talk to other employees.
He told Helton that on September 6, he had abandoned the
molding department in a production crisis for an extended
period of time for purely personal reasons and that this was
the same type of activity about which he had previously been
warned. Van Gieson, unable to convince Helton of the posi-
tion of the Company, decided that he should be discharged
for his misconduct of September 6, specifically for using
work hours for activities of a personal nature.
Van Gieson said that the Company could not tolerate
somebody that would not go by the rules. He told Helton
that he was discharged. They reviewed the corrective action
form together. Helton added some comments to the form,
then signed it. Van Gieson later prepared a memorandum
covering the meeting. In it he recorded the content of the
meeting and the bases on which the discharge was decided.
Conclusions
The complaint12 alleges that Respondent violated Section
8(a)(1) of the Act by, since March 16, 1991, promulgating
and maintaining the following rule:
The company prohibits solicitation or distribution of
materials by employees or non-employees on company
premises or during company business hours except with
prior written authorization from human resources. Com-
pany resources and property of any kind may not be
used to transact personal business.
1034 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Our Way, Inc., 268 NLRB 394 (1983); Broadway, 267 NLRB
385 (1983).
14 Pars. 6(a) and 9.
15 Rossmore House, 269 NLRB 1176 (1984), enfd. sub nom. Hotel
& Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir.
1985).
16 Pars. 6(b)(i) and (9).
17 Pars. 6(b)(ii) and (9).
Respondent concedes that it solicitation/distribution rule
appears, on its face, overbroad, but since in practice the em-
ployees, according to record evidence, have been permitted
to solicit fellow employees and distribute campaign materials
to employees during their lunch and rest breaks in nonwork-
ing areas, the presumption of invalidity has been overcome
and there is no violation. I agree with Respondent’s posi-
tion.13
The complaint14 alleges that Respondent, through Roy
Yount, on August 13, 1991, interrogated an employee as to
his knowledge of the Union’s organizing campaign. This al-
legation, of course, refers to the incident, described above,
wherein Yount asked Helton if he had heard anything about
the Union. I find that the conversation occurred just as
Helton described but was brief, innocuous, isolated, non-
threatening, and therefore did not reasonably tend to restrain,
coerce, or interfere with Helton’s rights as guaranteed by the
Act.15
The complaint16 alleges that Respondent, through Susan
Kays, created the impression among its employees that there
union activities were under surveillance by Respondent. The
reference is to a number of meetings Kays conducted on Au-
gust 14, the contents of which have been discussed supra.
General Counsel urges that Kays conveyed to the employ-
ees the impression that their union activities were under sur-
veillance by telling them that Respondent knew where and
when meetings were being held, and who was attending the
meetings. Such statements, General Counsel argues, ‘‘were
designed to discourage employees from attending future
union meetings, lest management find out who had gone to
the meetings.’’
Although Kays had, in fact, mentioned that a union meet-
ing had been held at the Great Western on a certain date and
that Respondent’s employees had attended, this statement
does not amount to giving the impression of surveillance be-
cause it was accompanied by Kays’ statement that employees
had a right to union representation, that they should learn
more about the Union, and that they should attend future
union meetings. Moreover, surveillance and giving the im-
pression of surveillance concern covert campaigns where em-
ployees may be frightened of having their employer discover
their union activity. In the instant situation, the campaign
was overt. Everyone knew about it and Kays was, in effect,
telling the employees that she knew what was going on and
it was all right. I credit witnesses’ testimony to the effect
that Kays stated that she knew where and when the union
meeting took place but do not credit testimony to the effect
that Kays stated that she knew who attended the meetings.
I recommend that this allegation be dismissed.
The complaint17 alleges that Respondent, through Kays,
solicited grievances from its employees and implied that the
grievances would be adjusted. This allegation also refers to
the meetings held on August 14.
As noted, Kays held 12 meetings that day and addressed
180 unit members, minus absentees. With that many people
listening, there are bound to be a few who hear something
that was not said.
It must be recalled that all members of management were
given an education by Respondent’s labor lawyer. Several
meetings were held where it was instilled in their minds what
the dos and don’ts of campaigning are. The TIPS acronym
was emphasized over and over, both orally and in writing.
The P in TIPS was for no promises. After hearing this for
the previous 2 weeks, finally Kays addressed the employees.
She explained to them what management could and could
not do, including the TIPS acronym. After all of the prepara-
tion, General Counsel’s witnesses would have us believe that
Kays told the employees that she was soliciting grievances
for the purpose of implying that their grievances would be
adjusted, that, in effect, she was making promises in return
for their abandoning their organizational efforts. I do not be-
lieve that the record supports the General Counsel’s position.
With regard to the subject of wage increases, Kays stated
that the Company was in the red and there could be no wage
increases until, at least, 1994. Clearly, there was no promise
here. With regard to medical insurance, Kays stated that the
Respondent had been caught off guard, and that premiums
were expected to go up, but that the Respondent would look
around for another insurance company that wold suit the
needs of the employees. Although this statement might be
considered a promise, it appears more to be an admission
that Respondent had not been as attentive to the medical in-
surance problem as it might have been, and an apology for
the fact that premiums were about to be increased. It would
appear again to be an explanation of the status quo rather
than a promise that in exchange for employees rejecting the
Union, they would be given a new and better medical plan.
Another matter brought up by employees, in attendance at
Kays’ meetings on August 14, was inconsistencies and favor-
itism on the part of supervisors when dealing with rank-and-
file employees. Kays, in attempting to answer these changes,
admitted that there were problems in this area but stated that
training courses had been undertaken the previous spring to
correct the situation. She also stated that the subject would
be covered in the new handbook. I do not consider her treat-
ment of this subject as in violation of the Act. The subject
of ‘‘Employment at Will’’ as treated in the new employee
handbook, seems to have given rise to a certain amount of
uneasiness among Respondent’s employees. Their uneasiness
was given voice during the August 14 meetings. Kays, in re-
plying to their questions, merely tried to assuage their obvi-
ous discomfort with the subject by assuring them that they
would not be automatically terminated for minor offenses. I
do not consider her efforts in this direction to be a promise
in violation of the Act, but merely an explanation of the
meaning of the term, as used in the handbook. Finally, the
complaints of a number of employees concerning the exces-
sive overtime, and poor and belated scheduling of that over-
time, resulted in Kays admitting that the problems existed.
She did not, however, make any promises with regard to
overtime and, indeed, the problem was still there at the time
of the hearing. I find no violation with regard to the discus-
sion of overtime during the August 14 meetings. In sum, I
recommend dismissal of the allegation contained in para-
1035ICHIKOH MFG.
18 183 NLRB 1129 (1970).
19 Par. 6(b)(iii).
20 Rossmore House, supra.
21 Pars. 6(c) and 9.
22 Pars. 7 and 10.
23 Pars. 8(a) and 9.
24 Pars. 8(b) and (c).
25 Pars. 8(d) and 10.
26 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982).
graph 6(b)(ii) dealing with unlawful solicitation of griev-
ances.
As stated in ITT Telecommunications:18
The solicitation of employee grievances by an em-
ployer is not illegal unless accompanied by an express
or implied promise of benefits specifically aimed at
interfering with, restraining, and coercing employees in
their organizational effort. It does not appear, upon con-
sideration of all attendant circumstances, that the ac-
tions of the Respondent were taken with this objective.
Therefore, such conduct as taken by the Respondent,
we conclude, does not violate Section 8(a)(1) of the
Act.
The complaint19 alleges that Respondent, through Kays,
coercively interrogated employees on August 14 regarding
their desire for union representation. I find, however, that
Kays’ question, as to why the employees wanted union rep-
resentation, was either purely rhetorical or designed to elicit
communications from the employees, which management felt
had been lacking. Since the question was not attended by any
coercive action or language, it did not tend to restrain or
interfere with employee rights and did not violate Section
8(a)(1) of the Act.20
The complaint alleges21 that Respondent, through Randy
Popp, on August 18, violated Section 8(a)(1) by instructing
an employee to remove his union button. The incident giving
rise to this allegation is fully described above. The record in-
dicates that Popp did not instruct Branson to remove his
union button. On the contrary, when he began his statement,
‘‘If it were up to me,’’ he implicitly admitted that it was not
up to him, and that Branson was within his rights to continue
to wear the button just as the employees had been assured
by management. There is no violation here.
The complaint22 alleges that Respondent, since on or about
the week of August 11, imposed more onerous working con-
ditions by requiring strict adherence to its plant rules.
In support of this allegation, Counsel for General Counsel
called several witnesses who testified that following the ad-
vent of the Union, supervisors were strict with regard to in-
sisting on employees returning from breaks on time, whereas
before, they were not. An abundance of company records,
however, clearly indicates that tardiness had always been a
concern to management and the advent of the Union had
nothing to do with the tardiness rules being enforced.
General Counsel’s witnesses who testified vaguely to
stricter enforcement of rules against gathering in groups and
talking were unconvincing, and, in my opinion, General
Counsel has failed to support this allegation by a preponder-
ance of the evidence.
The complaint alleges23 that Respondent violated Section
8(a)(1) by issuing a reprimand to Helton on August 21 based
on discriminatory considerations. I find that Helton’s rep-
rimand was consistent with past practice, that Respondent
had a strict policy against tardiness which it enforced indis-
criminately before and after the advent of the Union. It
issued the August 21 reprimand against Helton in accordance
with this longstanding policy for just cause and not for dis-
criminatory reasons.
The complaint alleges24 that Respondent, on August 26
and 27, first suspended, then discharged David Branson for
discriminatory reasons. I find, however, that Branson was
terminated for cause, more particularly, for excessive ab-
sences and incidents of tardiness. I reach this conclusion
based on record evidence that indicates that Respondent his-
torically enforced its rules and disciplined employees who
had an excessive number of absences or incidents of tardi-
ness, and that Branson had not been singled out
discriminatorily. Moreover, Branson’s union activity was
minimal and unlikely was minimal and unlikely to draw the
special attention of management, in light of the activities of
other more active union supporters whose activities, de-
scribed above, were well known to supervision.
The complaint alleges25 that Respondent discharged its
employee, Joseph Helton, on September 9, in violation of
Section 8(a)(1) and (3). I find, however, that Helton, like
Branson, was only minimally involved with the Union and
that he was, in fact, terminated for cause. More particularly,
I conclude that Helton was terminated for failure to perform
his assigned duties and for being out of his work area for
an extended period of time in contravention of company
rules.
I have found that none of the allegations of violations con-
tained in the complaint are meritorious. I also find that Re-
spondent would have taken the same action even in the ab-
sence of protected conduct.26 Consequently, I shall rec-
ommend that the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Sec-
tion 2(2) of the Act and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent has not committed any of the unfair
labor practices alleged in the complaint.
[Recommended Order for dismissal omitted from publica-
tion.]